NANA SARBENG DIAWUO v. MR. OPOKU

AYEBI J.A.

1. This appeal is against the dismissal of the plaintiff/appellant’s claim against the defendant/respondent by a Sunyani High Court in its judgment dated 14th April, 2005.

2. At the High Court, the plaintiff/appellant (hereinafter called the plaintiff) claimed against the defendant (hereinafter called the defendant) the following reliefs:

(a) Declaration of title, recovery and possession of all that piece and parcel of building plot, lying, situate and being at Sunyani and numbered Plot No.31, Penkwasi, Sector 3, Block “C”.

(b) General damages for trespass unto the building plot under reference.

(c) An order of perpetual injunction, restraining the defendant, the agents, servants, assigns, privies etc from dealing and interfering in any way whatsoever with the building plot in dispute.

3. The plea of the plaintiff in support of this claim is that one Opanin Badu, since deceased, transferred his interest absolutely in the plot to him and in 1973 the necessary documents were prepared in his name. Plaintiff further pleaded that in 1976 he paid the ground rent for the period 1976 to 1991 on the land. He again paid the ground rent from 1991 to 2001.

4. Later the plaintiff alleged, he granted the request of a medical officer to build a kiosk on the land and operate a drinking bar. He pleaded the medical officer engaged the services of the defendant’s parents to ran the drinking bar. But now defendant is laying adverse claim to the land, hence the reliefs he seeks against him.

5. In his statement of defence, defendant denied all the material averments of the plaintiff and put him to strict proof. He first of all challenged the capacity of the plaintiff to bring this action. On the acquisition of the land, defendant pleaded that his father originally acquired and lived on it with his family. Later his father and brothers relocated to Asiakwa and left him in possession and occupation. The further plea of the defendant is that the plaintiff was all the time in Sunyani when he was putting up a house on the plot but did not challenge him. And in paragraph 10 in particular, he pleaded that it is too late in the day for the plaintiff to raise this issue as the plaintiff is caught by laches and acquiescence and it is inequitable for the plaintiff to dispute his ownership today.

6. The plaintiff joined issues with the defendant and raised the following issues for determination of the court.

(a) Whether or not the building plot in dispute is for