MALM v. LUTTERODT

JUDGMENT OF CRABBE J.S.C.

This is an appeal from a judgment of Adumua-Bossman J. (as he then was) given at Accra on the 17th May, 1961, when he entered judgment decreeing ownership or title of the plot of land in dispute to the plaintiff, and also made an order of perpetual injunction and £G20 damages for trespass against the defendants. The plaintiff's main claim was for a title to a certain piece or parcel of land, the description and boundaries of which were set out in the writ of summons as follows: "all that piece or parcel of land situate lying and being at Kpehe, Accra, and bounded on the north by the property of Lutterodt family, on the south by a proposed road, on the west by the property of Mr. Malm and on the east by Lutterodt family land." This plot in dispute is shown delineated in pink or red colour in the plan of the area prepared by a surveyor for the trial of the action. This was admitted and marked exhibit Z.

The facts upon which the plaintiff based his action may be briefly stated. The land, the subject matter of the dispute was a portion of the Lutterodt family land at Kpehe, Accra. It was sold and conveyed to the plaintiff under an indenture of conveyance dated the 8th May, 1953, made between Eric Parchardt Lutterodt, as head of the Lutterodt family at the time, with the concurrence of the other principal elders of the family, whose names appear in the indenture, as vendor of the one part, and the plaintiff as purchaser of the other. Immediately after the sale the plaintiff took possession of this land by causing pillars to be fixed thereon to mark the boundaries. He also had the land cleared whenever it was overgrown with weeds. In 1960, the plaintiff permitted one lady who lived in a house near the plot to use it for planting shrubs and [p.4] flowers. Some time in June of the same year, as this lady was so using the land, the first defendant led a number of persons to the land, removed the plaintiff's pillars, and started to fix his own new pillars on the said land. On hearing a report of what was happening on the land, the plaintiff rushed to the scene where he demanded an explanation from the first defendant for his alleged encroachment on the land. The first defendant claimed that the land belonged to his late father Peter Malm and that this had devolved upon him and his sister (the second defendant) as the surviving children of their late father who died intestate.

It was contended by the plaintiff throughout the trial that