ROBERT AGGREY v. KOBINA MOSHIE
2021
COURT OF APPEAL
GHANA
CORAM
- IRENE CHARITY LARBI (MRS.), JA (PRESIDING)
- GEORGINA MENSAH-DATSA (MRS.), JA
- YAW DARKO ASARE, JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Tort Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This second appeal from Cape Coast concerns a neighbour-access dispute at Gomoa Abaasa. The Respondent acquired land from the Chief and elders of Abaasa and built his home in 1992, later using a designated 10-foot access route. In April 2015, the Appellant, whose house lies nearby, piled sand across the access near the Respondent’s gate. The Respondent sued for removal; the District Court granted a perpetual injunction and costs. The Appellant’s High Court appeal—raising grounds including a wrongful interlocutory order, evidentiary weight, and failure to rule on a counterclaim—was largely rejected; the injunction was affirmed, the counterclaim dismissed, and costs of GH¢10,000 awarded. On this second appeal, Mensah-Datsa JA (with Larbi JA presiding and Asare JA concurring) dismissed all four grounds—weight of evidence, interlocutory order, misquotation of witness testimony, and costs—finding no miscarriage of justice and affirming the High Court’s judgment.
GEORGINA MENSAH-DATSA (MRS.), J.A.
This is an appeal by the Defendant/Appellant/Appellant (hereinafter referred to as Appellant) against the judgment of the High Court, Cape Coast dated 14th January, 2019 in favour of the Plaintiff /Respondent/Respondent (hereinafter referred to as Respondent).
The grounds of appeal are as follows:
i. That the judgment is against the weight of evidence.
ii. That the learned High Court Judge erred in law when he decided that even though the order by the court below was wrong it (the appellate court) could not do anything about it because of lapse of time even though the ground of appeal canvased by the defendant/appellant was that the Magistrate had by the wrongful order prejudged the final outcome of the suit.
iii. The learned High Court Judge erred in law in misquoting the evidence of DW1 by attributing DW2’s evidence to DW1 and thereby came to the wrong conclusion.
iv. The cost of GH¢10,000.00 was manifestly excessive having regard to the fact that the plaintiff/respondent did not engage a lawyer and did also not file submission.
Further grounds will be filed on receipt of the full record of proceedings.
The relief the Appellant seeks from this Court is that the judgment of the High Court, Cape Coast dated 14th January, 2019, in favour of the Respondent be set aside and judgment entered for him.
The Respondent instituted this action on 2/6/2015 seeking an order of the court to compel the Appellant to remove his sand from the entrance of the Respondent’s house, upon several attempts to have Appellant to remove the sand failed.
The Appellant counterclaimed against the Respondent for declaration of title to and recovery of possession of a piece of plot measuring 10 feet which he claimed the Respondent had trespassed onto. He contended that the land encroached by the Respondent was leased by Appellant’s elders to one Adjoa Nana now deceased. He claimed that the Respondent had unlawfully encroached his land and planted coconut trees and erected a gate. The Appellant prayed the court for an order to compel the Respondent to vacate from the 10 feet land which was trespassed by Respondent.
The parties herein are neighbours.
The Respondent’s case in summary is that he acquired his land from the Chief and elders of Abaasa and started constructing his house in 1992. According to him, after completing his house, he went to see the Chief and elders of Abaasa on how to get access to his house because the path he was using