June 16, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal decision, authored by Justice Barbara Ackah-Yensu, resolves a family land dispute involving siblings over the portion of land behind the Gunu House at East Teshie, Accra, owned by the late Alfred Kwasi Attachie. The Appellants, children of Akosiwaa Agbodzi, claimed the Respondents, children of Akua Amuzu, trespassed by building a toilet on land they said belonged to them and sought declaratory and injunctive relief. Evidence showed Attachie allocated to Akosiwaa a defined 50-by-50-foot space behind the Gunu House (acknowledged by Exhibit 4) and one room plus the land behind it to the Appellants maternal group. The court held that trespass protects possession and precision in land identity was not required where identity was common ground. Assessing exhibits and testimony, the court found the toilet sat on the Respondents side, rejected trespass, affirmed the trial judgment, and reduced costs from GH8,000 to GH4,000. Judges Jennifer Dodoo and R. Adjei Frimpong concurred.
ACKAH-YENSU, JA
INTRODUCTION
The fundamental issue for determination in this appeal appears to revolve around the question as to who are the beneficiaries of a portion of land being disputed by the parties herein. This parcel of land includes an area where a toilet structure has been constructed. If the evidence proves that the disputed portion of land belongs to the Plaintiffs/Appellants then the judgment of the trial court under attack would have to be set aside. On the other hand, if the disputed land is proved to have been gifted to the Defendants/Respondents, as found by the trial court, the said judgment would have to be affirmed.
BACKGROUND FACTS
The Plaintiffs/Appellant (hereinafter referred to as the “Appellants”) commenced a suit at the Circuit Court on 16th March, 2015 which was subsequently amended on 9th March, 2016, against the Defendants/Respondents (hereinafter referred to as “Respondents”) for the following reliefs:
“a. Declaration that the activities of the defendants on plaintiffs’ portion of land given to them intervivos amounts to trespass.
b. Damages for trespass.
c. Recovery of possession of any portion of plaintiffs’ land trespassed unto.
d. Perpetual Injunction restraining the defendants, their agents, assigns, and workmen from ever interfering with plaintiffs’ enjoyment of their portions of land”.
The undisputed facts of this case are that Alfred Kwasi Attachie who died on 16/01/1990 had two (2) wives, namely Akua Amuzu (4th Respondent) who had six (6) children (the 1st to 3rd Defendants included) with him; and Akosiwaa Agbodzi who also had six (6) children with him (5 of whom are the Appellants). The deceased in his lifetime was the owner of H/No. 16/12 which is located at East Teshie, Accra. The late Alfred Kwasi Attachie also owned a second house at Ashaiman where Appellants lived until they reached adulthood and moved out with the exception of 1st Appellant who is still resident there. Alfred Kwasi Attachie, during his lifetime, shared his two houses between his two sets of children by giving the Teshie house, house in dispute before the trial court, to 4th Defendant and her children and the Ashaiman house to Appellants’ mother and the children he had with her.
The Appellants’ case as per their pleadings is that the Respondents had constructed a toilet structure on land belonging to the Appellants. Appellants wanted to develop their portion by erecting a partitioning fence wall but the Respondent allegedly demolished