AMIDU ALHASSAN AMIDU & ANOR. vs. MUTIU ALAWIYE & 6 ORS. [2019]DLSC6573

Date	2019-07-24
Suit No.	CIVIL APPEAL NO. J4/54/2018
Citation No.	[2019]DLSC6573

BAFFOE-BONNIE JSC (PRESIDING)

GBADEGBE JSC

BENIN JSC

APPAU JSC

PWAMANG JSC

AGNES OPAREBEA MANTE FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS.

C. K. KOKA FOR THE DEFENDANTS/ APPELLANTS/RESPONDENTS.

[2019]DLSC6573
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													<main id="main" class="content" style="min-height: 60rem" >AMIDU ALHASSAN AMIDU &amp; ANOR.<o:p></o:p>(PLAINTIFFS/RESPONDENTS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>MUTIU ALAWIYE &amp; 6 ORS.<o:p></o:p>(DEFENDANTS/AAPPELLANTS/RESPONDENTS)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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APPEAL NO. J4/54/2018&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 24TH
JULY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AGNES OPAREBEA MANTE FOR
THE PLAINTIFFS/RESPONDENTS/APPELLANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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C. K. KOKA FOR THE DEFENDANTS/
APPELLANTS/RESPONDENTS.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>BAFFOE-BONNIE JSC (PRESIDING), GBADEGBE JSC, BENIN
JSC, APPAU JSC, PWAMANG JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>MAJORITY OPINION WAS READ BY PWAMANG, JSC:-<o:p></o:p>The
parties to this appeal are litigating over ownership of a rather small piece of
land at Okaishie in Central Accra which they claim through their respective
predecessors-in-title. The land was acquired in the early twentieth century
when the city of Accra was much smaller and not laid out as we have it today. The
original acquisitions of both predecessors-in-title were covered by conveyances
which delineated their grants on site plans. At the trial in the High Court, the
parties led oral evidence and tendered their respective documents and site
plans and a court appointed surveyor prepared a composite plan. The surveyor
testified and was cross-examined. <o:p></o:p>At
the close of the trial, the High Court gave judgment in favour of the
plaintiffs and granted the reliefs they claimed save for relief (e), a claim
for damages for trespass. Upon an appeal by the defendants, the Court of Appeal
disagreed with the trial judge’s findings on the evidence, set aside its
judgment and found for the defendants. Being aggrieved by the decision of the
Court of Appeal dated 15th June, 2017, the plaintiffs appealed from
it to this court. In this judgment, the plaintiffs/respondents/appellants shall
be referred to as plaintiffs and the defendants/appellants/respondents as
defendants.<o:p></o:p>The
only ground of appeal is that the judgment of the Court of Appeal is against
the weight of the evidence. We are therefore called upon to rehear the case,
review the evidence in the record, and come to our own conclusion as to whether
the view taken of the evidence by the Court of Appeal is correct. See Akufo-Addo v Catheline [1992] 1 GLR 377.<o:p></o:p>But,
before proceeding to examine the evidence, I wish to clarify the matter about
public lane or thoroughfare in the area of the disputed land pleaded by the
plaintiffs in paragraphs 15 and 16 of their statement of claim and the
defendants in paragraph 7b of their amended defence. The plaintiffs averred
that the defendants have occupied and built structures on a public lane that,
from the site plan in the document of their processor-in-title, was supposed to
lay south of their land. Based on this averment, they claimed in their relief
(c) for an order for defendants to demolish the structures they have on the
said public lane. <o:p></o:p>However,
even a casual reading of the whole statement of claim makes it obvious that that
matter was completely extraneous to the substantive case of the plaintiffs and
their claim for declaration of title to land covered by their document of
title. If by their own pleadings that public lane did not form part of their
land, on what legal ground could they claim relief in respect of it? The
plaintiffs have not described the boundaries of the public lane so in respect
of which land are the structures to be demolished? A cause of action in public
nuisance cannot lie in law as plaintiffs alone do not satisfy the number of
complainants required for a nuisance to qualify as public. See AG v PYA Quarries [1957] 2 QB 169. What
is more, civil suits on public nuisance are brought by the Attorney-General and
not private persons. Clearly therefore, plaintiffs had no cause of action
against the defendants as far as the alleged public lane was concerned and those
averments and the plaintiffs’ relief (c) ought to have been struck out, sua sponte, in the early stages of the
case as frivolous, vexatious and likely to embarrass or delay the trial of the
action. This the trial court could have done pursuant to the inherent
jurisdiction of the High Court or &nbsp;Or 11 R 18 of the High Court (Civil
Procedure) Rules, 2004 (C.I.47). Consequently, I shall dismiss plaintiffs’
relief (c) in limine. &nbsp;<o:p></o:p>The
defendants too who could have applied to the court to strike out those
offending pleadings did not do so but rather also pleaded that the land
allegedly owned by the plaintiffs at Okaishie is a public thoroughfare. The
claim of the plaintiffs is for a declaration of title and whether the land is a
thoroughfare or not is of no legal significance as in law ownership of land is a
question completely different from its use. <o:p></o:p>Because
these frivolous and vexatious pleadings were not expunged, copious unnecessary evidence
was led on them thereby beclouding the trial judge in his consideration of the
real claims of the parties before him. Despite the fact that the Court of
Appeal in their judgment rightly took the view that the matter of a public lane
or thoroughfare was irrelevant to a determination of the case, the parties in
their statements of case filed in this final appeal have persisted in
discussing &nbsp;the question of the location
of the public lane at length. That is a pointless discussion because, from the
evidence on record, the present lay of the area is different from the zoning
that pertained about one hundred years back when the ancestors of the parties
acquired their respective lands. <o:p></o:p>When
the irrelevancies are shorn off the pleadings and evidence, the established
facts in this case are quite simple and are that, in 1910 the defendants
predecessor, Alhaji Shaibu Alawiye, acquired a piece of land described </main>