July 27, 2022
SUPREME COURT
CORAM
AI Generated Summary
After a 1998 High Court decision declared Plot 35A at Dagmew Residential Area, Bolgatanga to belong to the late Azor Akaliga and found Felix Penepah to be a trespasser, the court nevertheless allowed Penepah to remain within the four corners of his existing building on humanitarian grounds. In 2016, Penepah sued Azor’s personal representatives, insisting that Plot 35C was distinct and his residence was on 35C, seeking declarations, injunction, possession and damages. The High Court dismissed Penepah’s claims as res judicata and granted the defendants’ counter‑claim for recovery. The Court of Appeal partially reversed, holding Penepah had a perpetual equitable interest until demolition or abandonment. On further appeal, the Supreme Court, per Justice A. M. A. Dordzie, waived a procedural irregularity, reviewed the record, held Penepah abandoned the building and that equity cannot perpetuate an illegal trespass, set aside the Court of Appeal, and ordered recovery of the portion of Plot 35A claimed.
DORDZIE (MRS.) JSC:-
BACKGROUND
In1997, the father of the defendants in this case, Azor Akaliga sued the plaintiff herein Felix Penepah in the High Court Tamale, claiming declaration of title to a piece of land described as Plot Number 35A Dagmew Residential Area Bolgatanga. An order for perpetual injunction, restraining the defendant Felix Penepah, his agents assigns successors or servants from interfering with plaintiff’s possession and use of plot number 35A; and General damages for trespass. The High Court in its judgment dated 10 February 1998 gave judgment in favour of the plaintiff, declared him the owner of plot number 35A Dagmew Residential Area Bolgatanga. The court declared the defendant a trespasser and granted the restraining order but limited it to the unoccupied portion of plot 35A. It was the court’s view that the defendant had already built on a portion of the land and was living there with his family. It would be unfair and unequitable to restrict him in respect of the entire plot of land. However, peace never prevailed between the parties; the defendant eventually built another house and moved out from No 35A Dagmew Residential Area. In 2011, the plaintiff Azor Akaliga passed. Several years after the High Court judgment, 18 years precisely, the defendant, in a writ filed on 9 August 2016, commenced a suit against the personal representatives of Akaliga Azor in the High Court Bolgatanga in respect of the same subject matter, 35A Dagmew Residential Area Bolgatanga.
Facts
I would reproduce the claims as endorsed on the writ of summons and the facts of the case as unfolded in the pleadings of the parties.
The claims
The Plaintiff's claim against the Defendants jointly and severally is for-
1. A declaration that, save that they have a common boundary, the plots of land numbered 35A and 35C Dagmew Residential Area, Bolgatanga are two separate and distinct plots of land one from the other.
2. A declaration that the storey building put up by the Defendants' predecessor (the late Azor Akaliga) is located on plot No. 35 A.
3. Declaration of title to plot, No. 35C which plot is bounded to the North by the Bolgatanga-Bawku Highway to the South by Plot No. 35A to the East by an unnamed road and to the West by Plot No. 35B and measuring in the aggregate 0.20 acre.
4. A declaration that the Plaintiff's residential building vandalized by the Defendants' predecessor (the late Azor Akaliga) is located on Plot No. 35C and not on Plot No. 35A