FELIX PENEPAH v. AYINDENABA-AZOR & ORS
2021
COURT OF APPEAL
GHANA
CORAM
- OFOE, J.A
- BARTELS-KODWO, J.A
- BERNASKO ESSAH, J.A
Areas of Law
- Property and Real Estate Law
- Civil Procedure
- Equity and Trusts
- Probate and Succession
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Felix Penepah appealed from the Bolgatanga High Court’s dismissal of his suit and grant of a counterclaim in favor of the personal representatives of the late Azor Akaliga concerning neighboring plots 35A and 35C at the Dagmew Residential Area, Bolgatanga. Penepah maintained he held plot 35C from the Tindana Daporetindongo and that his building stood on 35C, not 35A. The High Court, relying on an unappealed 1998 judgment in suit No. 8/97 (Azor Akaliga v. Felix Penepah), held res judicata and declared 35C an illegal creation, found Penepah’s building lay on 35A, and treated him as a licensee who forfeited his interest by challenging title, ordering recovery of possession and removal within thirty days, with costs of GHC6,000. The Court of Appeal dismissed a preliminary capacity objection to the administrators, affirmed res judicata on the fresh claims, but rejected the license interpretation, holding that the 1998 judgment conferred an equitable interest on the footprint of Penepah’s building that persists until demolition or abandonment, setting aside recovery and removal orders and reducing costs to GHC3,000.
OFOE, J.A:
The plaintiff/appellant went to the trial court for:
“1. A declaration that, save that they have a common boundary, the plots of land numbered 35a, 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. 35a.
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 Defendant’s predecessor (the late Azor Akaliga) is located on Plot No. 35c and not 34A or any part thereof.
5. An order of perpetual injunction restraining the defendants’ whether they act by themselves or by their agents, workmen, heirs, successors, personal representatives, assigns, relatives and associates from trespassing upon Plot No. 35c Dagmew Residential Area, Bolgatanga or in any way howsoever described interfering with the Plaintiff’s interest or interests therein.
6. Recovery of possession.
7. General damages for trespass”.
The basis of these claims are that the late Akaliga Azor owned property numbered 35A, a plot which is different from plot No 35C. Plaintiff/appellant was granted this plot No 35C by The Tindana Daporetindongo and had constructed a building thereon in which he is in occupation with his family. He averred that the late Azor did not accept that there was a plot No 35C and therefore sued him in 1997 for a declaration of title to plot No 35A and had judgment accordingly. The suit was No 8/97 entitled Azor Akaliga vrs Felix Penepah. It is the case of the plaintiff/appellant that even though this judgment did not affect his plot No 35C, late Azor mobilized agents who vandalized his building on plot No 35C and sacked him and his family from the property. It is these acts of Azor that had caused him to issue the instant writ with the claims endorsed thereon as quoted above. We reproduce part of his pleadings in this instant suit.
“9. The late Azor did, sometime in 1997 lay claim to the land then plotted into plot No 35c insisting that it was part of plot No 35A and pursuant to such claim trespassed upon a portion of plot No 35c and constructed a drinking bar thereon.
10. The late Azor did also, in 1997, institute lega