SASU AND ANOTHER v. AMUA-SEKYI AND ANOTHER
November 28, 1983
COURT OF APPEAL
GHANA
CORAM
- APALOO C.J.
- FRANCOIS
- MENSA BOISON JJ.A
Areas of Law
- Civil Procedure
- Evidence Law
- Property and Real Estate Law
November 28, 1983
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Chief Justice Apaloo delivered the ruling of the Court of Appeal in a land dispute from South Odorkor, Accra, where title is vested in the Akumajay stool and both sides held written grants delineated by site plans. After the High Court dismissed the trespass and possession action based on a court-appointed surveyor’s neutral evidence, the plaintiffs appealed. The Court of Appeal, on its own motion, summoned the surveyor and a representative of the Chief Lands Officer to clarify the plan and received corrected, ex parte evidence while the successful party below was absent and unrepresented. When the court later reversed the trial judgment, the first defendant immediately applied under rule 25(1) of LI 218 to set aside that ex parte judgment and rehear the appeal. Applying general principles and balancing hardship, the court found greater injustice in refusal, set aside its 11 July 1983 judgment, ordered a rehearing, required payment of ¢500 costs, and made no order as to costs on the motion.
JUDGMENT OF APALOO C.J.
[p.774]
He delivered the ruling of the court. The parties own land near or contiguous to each other at South Odorkor, a suburban building area in Accra. It is common knowledge that title to that area is vested in the Akumajay stool. Both parties derive title from that stool or its grantees. They obtained written grants. The areas covered by their respective grants are delineated on site plans.
The plaintiffs, hereafter called the respondents in the instant proceedings, apparently felt that the first defendant, hereafter called the applicant, had trespassed upon their land. So they brought a suit against him in the High Court for damages and for possession. It appears that the only real issue between them was the identity of their land. For this reason, a surveyor was appointed by the court to make a composite plan to show their respective areas. As is the usual practice, he was called as a witness by the court. He then tendered the plan and gave evidence. The learned trial judge, no doubt, influenced by the neutral evidence provided by the surveyor, felt satisfied that no trespass had been committed. He therefore dismissed the action. The respondents aggrieved by this judgment, appealed to this court. In the court below, for reasons which are not now material, neither party had the assistance of counsel.
The appeal came for hearing before this court on 16 November 1980. The record exhibited in this application shows that the plaintiffs' as the appellants, were represented by counsel. But the respondents to the appeal, i.e the applicant in the instant proceedings, was not. He was also recorded to be absent. On that day, counsel for the appellants addressed oral argument to the court in support of the appeal. The court's mind seems to have been afflicted with some doubt about the accuracy of the plan on which the judgment of the court below was based. So on its own motion, it ordered the surveyor who prepared the plan to testify before it. It also ordered that the Chief Lands Officer be summoned to assist the court to resolve that doubt.
On 5 May 1982, the surveyor appeared before the court and in evidence, conceded to some error in the preparation of the plan and offered to rectify it. On 18 May 1982, a representative of the Chief Lands Officer also appeared in answer to the subpoena and gave evidence before the court. After his evidence, the surveyor was recalled and tendered a corrected plan. All this time the successful par