ZAKARIA ALHASSAN v. GORDON AWUKU & ORS
2021
COURT OF APPEAL
GHANA
CORAM
- IRENE CHARITY LARBI (MRS.), JA (PRESIDING)
- GEORGINA MENSAH-DATSA (MRS.), JA
- YAW DARKO ASARE, JA
Areas of Law
- Property and Real Estate Law
- Evidence Law
- Civil Procedure
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Georgina Mensah-Datsa, JA, reviewed an appeal from a High Court, Winneba judgment in a land dispute at Gomoa Nyanyano between a Respondent who claimed a 2015 grant from the Nyanyano stool, and Appellants who asserted a 1999 grant from the same chief to the 2nd Appellant, Yvonne T. Wood, and her siblings, evidenced by an indenture. The High Court had ordered a composite plan and, on a preliminary motion under Order 33 rule 5, disposed of the entire case, granting title, possession, trespass damages, injunction, and costs to the Respondent. On appeal, the Court held the trial court erred by relying on an expert composite plan without taking evidence or permitting cross-examination, misapplied procedural rules, and improperly granted declaratory relief without trial. The appeal was allowed entirely, the judgment set aside, and the matter remitted to be tried before a different judge.
GEORGINA MENSAH-DATSA (MRS.), JA
This is an appeal by the 1st and 2nd Defendants/Appellants (hereinafter referred to as Appellants) against the judgment of the High Court, Winneba dated 8th August, 2018 in favour of the Plaintiff/Respondent (hereinafter referred to as Respondent) and dismissing the Appellants counterclaim.
The grounds of appeal are as follows:
a. The judgment is against the weight of evidence.
b. The learned trial Judge erred when he held that the analysis of the composite plan vis á - vis the area in dispute and the rights of the parties to the subject matter in dispute indeed disposes of the cause or matter before the Court and therefore rendered the trial of the main cause or matter unnecessary when a cursory look at the composite plan shows that same was not prepared according to the survey instructions filed and or contained grave errors.
c. The learned trial Judge erred when he accepted the composite plan (which is only filed in court but not tendered in evidence) without giving any good reason for accepting same when it is common knowledge that position of land shown in layout (toposheet) is likely to shift as compared to cadastral plan.
d. That the learned trial Judge erred when he ignored indication from the Defendants that they shall be seeking leave of the Court to cross examine the Regional Surveyor on the composite plan thereby causing grave miscarriage of justice to the 2nd Defendant/Appellant.
e. The learned trial Judge erred in holding that even if the Defendant had been exercising acts of ownership and claims to be in effective possession of the disputed land, then simply put, the Defendants have all along (sic) exercising acts ownership and have also been in possession of the Plaintiff’s land instead of the land that the Defendant acquired from their grantor as same glossed over established principles of law applicable to resolving the dispute between the parties.
f. The learned trial Judge erred when by, his judgment of August 8, 2018, he failed to give the opportunity to the parties to prove their respective claims especially the claim of the Plaintiff that the parties appeared before their common grantor who informed the Defendants that their land was somewhere else and advised the Plaintiff to continue his construction when the Defendants in their pre-trial checklist filed pursuant to an order to the Court indicated that a subpoena would serve on the said common grantor to appear and testify as to what he knew