MADAM COMFORT OFORI v. KWAME APPENTENG
2016
COURT OF APPEAL
GHANA
CORAM
- KUSI-APPIAH J.A. (PRESIDING)
- ACQUAYE, (J.A.)
- DZAMEFE, (J.A.)
Areas of Law
- Property and Real Estate Law
- Civil Procedure
- Evidence Law
- Tort Law
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Kusi-Appiah J.A. (presiding), allowed Comfort Ofori’s appeal from the High Court (Land Division), Accra, which had dismissed her land title action. Ofori and her husband acquired two contiguous plots from the Nii Koitse family in 1978 at Bawaleshi, East Legon Extension, Accra, while the defendant, Mr. Apenteng, later obtained a 2004 lease from Nii Kotei Amli III and erected a wall and structure. The appellate court held that the parties were disputing the same land; CW1’s composite plan (Exhibit CE1) and testimony confirmed the defendant’s plot lay within Ofori’s boundaries, and minor discrepancies were attributable to survey scale or grid errors. Treating identity as an agreed fact, the court found the trial judge’s contrary conclusion perverse. Applying the rule against derogation from a prior grant and nemo dat, the court held the later 2004 grant void because Ofori’s 1978 grant came first. The court set aside the High Court’s judgment and entered judgment for Ofori on all reliefs.
KUSI-APPIAH, ( J.A.):
This is an appeal against the judgment of the High Court (Land Division), Accra, dated 28th May, 2015 per Eric Baah (J.), by which the learned Judge dismissed the plaintiff’s action against the defendant/respondent herein.
I will refer to the parties in the manner they appeared at the Court below.
By her amended writ of summons, the plaintiff claimed against the defendant for:
1. Declaration of title to and recovery of possession of all that piece or parcel of land situate lying and being at Bawaleshi, East Legon Extension measuring about 0.21 acre, which said the site plan annexed to the indenture therefore dated 10th December, 1978 and registered in the Land Registry as No.Ac 2193/84
2. Declaration that the adverse claim raised by the defendant against plaintiff’s said land is unlawful and the construction by defendant of a fence wall around the land and depositing of building materials on same against protestations by the plaintiff constitutes trespass unto plaintiff’s land.
3. Damages for trespass.
4. Perpetual injunction to restrain the defendant from interfering in the plaintiff’s ownership of the said lease.
5. Costs.
The facts giving rise to this action are very simple.
By an amended statement of claim filed on 8th March, 2012, the plaintiff averred that in 1978 she and her husband K. Nkansah-Baah, acquired two contiguous plots of land from the Nii Koitse family of La Klanaa, Accra evidenced by two deeds of lease registered as No.AC 2193/84 and No.2817/84 respectively.
According to the plaintiff, her plot of land measured 0.21 acres more or less and she exercised rights of ownership thereon by depositing 2,000 blocks on it in preparation for a building project.
She stated that even though she was issued with a building permit, her building project suffered a setback due to her husband’s protracted illness.
Notwithstanding that, she remained on it and continued to enjoy quiet possession until when the defendant laid adverse claim on her said land.
Hence, her relief against the defendant.
The defendant resisted the claim and also called evidence to show how he acquired the land in dispute for valuable consideration.
The defendant by his amended defence delivered on 12th February, 2013, stated that the land which he was in occupation of with a wall around its parameters, was granted to him by Kotey Amli III, Head of Nikoi Tse family of La Klanaa quarter by the execution of a deed of lease in his favour.
Acco