MENSAH-MONCAR v. CHAINARTEY

JUDGMENT OF ABBAN J.

In this application it has been contended that, on the pleadings, the court should hold that in law the plaintiff's action is not maintainable, and the same should be dismissed by virtue of Order 25, rr. 2 and 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The said rules provide that:

"2. Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial, provided that by consent of the parties, or by order of the Court or a Judge on the application [p.295] of either party, the same may be set down for hearing and disposed of at any time before the trial.

3. If, in the opinion of the Court or a Judge, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counterclaim, or reply therein, the Court or Judge may thereupon dismiss the action or make such other order therein as may be just."

The plaintiff sued the defendant for a declaration of title to a piece of land fully described in the writ of summons. He also claimed damages for trespass and an order for perpetual injunction. In his statement of claim paragraphs (3) to (6) the plaintiff alleged as follows:

"By an indenture dated 29 March 1951 and registered in the Deeds Registry as No. 1290/1953 and made between Christopher Adjah Kwaku therein described as the vendor and the plaintiff herein described as the purchaser of the land described on the writ was conveyed to the plaintiff.

(4) The plaintiff says he entered into possession of the land in dispute and fixed corner pillars on the said land.

(5) The plaintiff says he has been in uninterrupted and undisturbed possession of the land until November, 1970 when the defendant trespassed on the land and commenced building operations on the land.

(6) The plaintiff says the defendant has ignored all warnings given him and persists in his acts of trespass on plaintiff's land. Wherefore the plaintiff claims as per the writ of summons."

The defendant disputed the plaintiff's claim to the land in question, and averred that the indenture being relied upon by the plaintiff could not confer title to the land on the plaintiff. The defendant further contended that he had been in undisturbed possession of the land since 17 August 1968, and it was the Government of the Republic of Ghana that granted the land to him. Parag