OBOBAAHEMAA OKOMFO ESSABA II vs NANA BOTWE & 6 ORS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    CAPE COAST - A.D 2018
OBAAHEMAA OKOMFO ESSABA II - (Plaintiff/Respondent)
NANA BOTWE & 6 ORS - (Defendants/Appellants)

DATE:  23 RD MAY , 2018
CIVIL APPEAL NO:  H1/23/2018
JUDGES:  IRENE CHARITY LARBI MRS. J.A (PRESIDING), L. L. MENSAH (J.A), ANGELINA M. DOMAKYAAREH MRS. (J.A)
LAWYERS:  CAB ADDAE FOR THE PLAINTIFF/RESPONDENT
ISHMAEL TURKSON FOR THE DEFENDANTS/APPELLANTS
JUDGMENT

IRENE CHARITY LARBI (MRS) J.A.

(1) This is an appeal against the decision of the High Court, Cape Coast dated 7th December, 2009 filed by the Defendants on 14th February, 2010.

(2) The Plaintiff, upon service of the Notice of Appeal on her, on 1st March 2010 filed a Notice of Intention to contend that the decision of the High Court dated 7th December, 2009 be varied.

(3) The brief facts of the case are as follows:-

The Plaintiff by her amended writ filed on 02/12/98 claimed against the Defendants jointly and severally for;

1. Declaration of title to all that piece or parcel of land comprising smaller parcels popularly known as Kokoado, Abotse Akwa, Obotwe, Nkoransa, Kokoado etc. but collectively known as Amanfodo in the vicinity of Gomoa Osamkrom and Mangoase which piece or parcel of land is bounded on one side by the property of Kwakwa of Agona Family of Ekwamkrom and Agona Odoben, and by Yoko Family of Gomoa Osamkrom represented by Nana Amoa Dabi on one side by River Akora, on one side by Jibreal Adam on one side by Odafa Kwasi Baah of Ayensuadze land and on the remaining side by the property of Kwame Affo of Agona Family of Nsuaem.

2. Recovery of possession of any portion that may be found to be in possession of Defendants or their agents, assigns etc. at the end of the suit together with any plan or other documents unlawfully appropriated by Defendants.

3. Special damages of 28,560,000.00 being the value of 740 Palm trees and 50 bunches of palm fruits unlawfully appropriated by Defendants.

4. General damages for trespass.

5. An amount of 500,000.00 extracted by 1st Defendant from Plaintiff by fraud with the collusion of 2nd to 5th Defendants.

6. Perpetual injunction restraining Defendants, their agents servants etc. from entering Plaintiff rights to the said land (sic).

 

(4) The basis of the Plaintiff’s claim is that she is a member of the Aboradze clan of Gomoa Ekwamkrom as well as the queen mother of the town. The 1st Defendant is the chief of Agona Swedru and a trespasser to the disputed land. The 3rd to 5th Defendants are family members but are not eligible royals barred by taboo from ascending to the Stool. The 6thDefendant is an agent of the 1st Defendant. The 7th Defendant unlawfully felled Plaintiff’s 120 palm trees on the land. The property is an ancestral property of the Plaintiff descending from Nana Ekwam I a hunter who migrated from Abrekum and first settled on the disputed land known as “Amanfudo (old settlement). Ekwam I was the first chief of old Ekwamkrom followed by Ekwam II. During the time of Ekwam II the old township caught fire and as a result the inhabitants moved to the present Ekwamkrom in 1907. Few days prior to the institution of the action, the 3rd to 5th Defendants connived with the 1st Defendant to make unlawful claim to the disputed property which had been in possession of the Plaintiffs for-bears long before 1907. The 3rd to 5th Defendant who are from Owuhaa and Kwagya Lineage had been causing confusion within the family by attempting to claim monopoly of portions of the disputed land. Plaintiff averred that through acts of fraud, 1st Defendant in collaboration with the other Defendants collected 300,000.00 from Plaintiff as drink under the guise of showing her a documents by which 1st Defendant was falsely claiming title to the land. Further monies, all totaling ₡500,000.00 were collected under the same false pretense. Plaintiff alleged that through this unlawful claim, the 1st Defendant by his unlawful activities sold 740 palm trees planted by the Plaintiff which were felled for palm wine at a face value of 28,560.00. The 1st Defendant has also authorized the 2nd Defendant to take unlawful control of the area and he is parading the area with weapons and granting leases without authority.

 

(5) The Defendants case, as per their statement of defence admitted the capacity of the Plaintiff but denied some of her averments. The Defendants claim the property through the 1st Defendant’s ancestor who acquired title to the land through discovery called Nana Kwaa Tutu alleging that Ekwam I only got access to the land through marriage between a female relation of 1st Defendant’s ancestors. According to the Defendants the Plaintiff voluntarily paid 300,000.00 as accumulated rent arrears for 33 years to 1st Defendant and willingly gave the palm trees on the land to be felled and shared with 1st Defendant.

 

(6) The Defendants contended that the Plaintiff knew that the document referred to Amanfodo and that was why she paid monies totalling 300,000.00 and receipt issued to her.

The Defendants averred further that, the Plaintiff agreed that the disputed land should properly be demarcated to enable 1st Defendant enter into proper tenancy agreement with Plaintiff. The Defendants counterclaimed against the Plaintiff for;

(i) Declaration of title to all that piece or parcel of land described in relief 1 of Plaintiff’s writ of summons.

(ii) Recovery of possession.

(iii) General damages for trespass.

(iv) Perpetual injunction restraining Plaintiff, her agents, assigns, personal representatives from having anything to do with the disputed land.

 

(7) Before we proceed further, it is pertinent that we set the record straight.

After a full trial, the High Court on 7th December, 2009 entered judgment for the parties in the following terms:-

For the Plaintiff, the High Court entered Judgment as follows:-

“(1) Declaration of title to all the Northern portion of the land delineated in the plan including Obotwe lands and Nkransah area.

(2) The Plaintiff is already in possession but where the Defendant has trespassed she will be entitled to a recovery of possession.

(3) Perpetual injunction will also issue to restrain Defendant, his agents, assigns etc. from interfering with the peaceful enjoyment of the land by the Plaintiff”.

For the Defendant the High Court entered judgment as follows:-

“(1) Declaration of title to all that parcel of land marked green in Exhibit ‘CIA’ that is the map drawn up on the instructions of the court including Apeteakwa and Kokodo and all the lands called Kwa Tutu lands in the Southern portion of the land.

(2) The Defendant is also to recover possession of the said lands.

(3) Perpetual injunction will also issue restraining the Plaintiff, her assigns etc. from interfering with the peaceful enjoyment of the land by the Defendant.

 

(8) On 27th June, 2017, this court struck out the appeal of the Defendant based upon a Registrar’s summons issued for non-compliance with Rule 20(1) of C.I.19.

On 28th June, 2017, the Court granted a motion to substitute Mercy Quainoo the applicant in place of the Plaintiff Obaahemaa Okomfo Esaaba who was deceased.

On 30th October, 2017 the court granted leave for extension of time for the Plaintiff to file her written submissions out of time.

As at the time the appeal was fixed for hearing, the Defendants had not made any effort to have their appeal restored. Therefore only the Plaintiff’s Notice of intention to contend that the decision of the Court below dated 7th December, 2009 be varied is what requires our attention for determination.

 

 

(9) The grounds upon which the Plaintiff filed the appeal are as follows:-

“(a) The judgment is against the weight of evidence.

(b) The interpretation placed on Exhibit ‘C’ was wrong in law.

(c) The Learned High Court Judge erred in law in admitting counterfoils of original receipts purportedly issued to Plaintiff by 1st Defendant and putting weight on same in spite of the objection by Plaintiff that no such receipt was issued to her and that if the originals existed a notice to produce should have been served on Plaintiff to produce the originals.

(d) Granted that the 300,000.00 and Gh30.00 paid by Plaintiff to 1st Defendant was to offset arrears of rent, which is denied, the Learned High Court Judge erred in law in granting title and possession to 1st Defendant. Further or in the alternative that portion of the judgment flies in the face of good reason, equity, Section 26 of (NRCD 323) and Section 10 of the Limitation Decree.

(e) The Learned Judge erred in law in failing to assess on the claim for trespass of the land adjudged to belong to Plaintiff thereby denied Plaintiff’s claim for damages.”

 

(10) Rule 8(4) and (5) of the Court of Appeal Rules 1997 (C.I.19) state:-

(4) “Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated;

(5) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the Appellant intends to rely at the hearing of the appeal without an argument or a narrative and shall be numbered consecutively”.

 

(11) In the Notice filed by the Plaintiff seeking for a variation of the judgment, the grounds (b), and (e) allege grounds of error in law without given particulars thereof contrary to Rule 8(4) of C.I.19.

The ground (d) we also find to be argumentative and thus contrary to Rule 8(5) of C.I.19.

Accordingly, the grounds (b) (c) (e) and (d) being relied on by the Plaintiff to contend that the judgment of the High Court be varied are hereby struck out as incompetent same being infractions of the rules of this court.

This leaves us with the ground (a) which is the omnibus ground that “the judgment is against the weight of evidence” for our consideration.

 

(12) The role of the Appellate Court in determining the omnibus ground of appeal has been decided in several cases including AKUFO-ADDO VRS. CATHLINE [1992] 1 GLR; DJIN VRS. MUSAH BAAKO [2007-2008]1 SC GLR 686; ABBEY VRS ANTWI [2010] SC GLR 891.

 

(13) IN DJIN VRS. MUSAH BAAKO (supra) the Supreme Court explained the omnibus ground in Headnote (1) thus:-

“Where (as in the instant case) an Appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him”.

 

(14) Under Rule 8(1) of C.I.19, an appeal is by way of re-hearing. It was explained by their Lordships of the Supreme Court in TUAKWA VRS. BOSOM [2001-2002] SC GLR 61 at 65 per Sophia Akuffo JSC (as she then was) that:-

“In such a case………… it is encumbent upon an Appellate Court in Civil case to analyze the entire record of appeal, take account of the testimonies and all documentary evidence at the trial before arriving at its decision so as to satisfy itself that on the balance of probabilities, the conclusions of the Trial Judge are reasonably and amply supported by the evidence”.

 

(15) Further, the Appellant has to properly demonstrate what lapses he is complaining about.

See; DJIN VRS. MUSAH BAAKO (supra). CONTINENTAL PLASTICS ENGINEERING

CO. LTD. VRS. IMC INDUSTIRES TECHNIK GMBH [2009] SC GLR 298 & QUARCOOPOME VRS. SANYO ELECTIRC TRADING CO. & ANOR. [2009] SC GLR 213.

 

It is clear from the claim of the Plaintiff and the counterclaim of Defendants that the parties in the suit were claiming the same piece or parcel of land. This is buttressed by the survey instructions filed by the Defendant on 29/9/1999 and the Plaintiff on 11/11/1999 at pages 21 to 22 and 23 to 24 of the record of appeal respectively.

 

(16) Both parties thereafter went to the locus in quo with the surveyor (‘CW1’) who was appointed by the court. ‘CW1’ tendered in evidence the plan as Exhibit “CW1A”. With reference to the plan this was the explanation, he gave:

(1)Area claimed by Plaintiff edged Violet.

(2)Information given by Plaintiff underlined Violet.

(3)Area claimed by Defendant to have been leased by 1st Defendant’s predecessors to the ancestors of Plaintiff edged Green.

(4)Information given by Defendant is underlined Yellow.

(5)Area claimed by Defendant to have been leased by 1st Defendant’s predecessors to the ancestors of Ayesuadze is coloured Yellow.

(6)Area in dispute edged Red”.

 

(17) In cross-examination of ‘CW1’ by counsel for the Plaintiff this is what ensued:

Q. looking at Exhibit ‘CW1A’ it is apparent that the Plaintiff is claiming a wider area than Defendants?

A: Plaintiff is claiming the entire area.

Q. The portion which Defendants claims his ancestors gave to Plaintiff’s ancestors does not include the Northern portion of the area being claimed by Plaintiff?

A: It does not include the Northern portion.

Q. Looking at Exhibit ‘CW1A’, the Northern portion of the area being claimed by the Plaintiff is bigger than the Southern portion?

A: Yes.

Q. Apart from the area where the Defendant has mentioned Nana Amuesi of Asesuadze and Asesuadze Abosompow, Defendant does not indicate anything on the Northern portion?

A. That is correct.

 

(18) From Exhibit ‘CW1A’ the evidence of ‘CW1’ that the portion edged green was restricted to only the Southern portion of the land seems to be the correct position.

 

The claim of the Defendants is premised on the assertion that the land in dispute was acquired by the 1st Defendant’s predecessor in title through discovery by name Nana Kwaa Tutu who reigned from 1698-1725, the Defendants further asserted that Nana Ekwam 1 whom the Plaintiff claimed to be the first to settle on the disputed land known as “Amanfo (old settlement) was rather introduced to Nana Kwaa Tsen, then chief of Agona Swedru who allowed Ekwam I to settle at Amanfodo to carve wood.

 

(19) The fact that the Plaintiff and the Defendants are from the same family i.e. the Aboradze Royal Family of Ekwamkrom is not in dispute. The fact that there are three branches of the family and the 3rd to 5th Defendants belong to Owuhaa and Kwagae branches is not in dispute. Further from the evidence of both parties, each branch of the family is staying on portions of the land in the Northern and Southern part of the land in dispute.

 

(20) It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the fact in issue that has the quality of credibility failure of which his claim may fail.

 

The Plaintiff relied on traditional history whereas the Defendants relied on both traditional history and documentary evidence.

 

(21) The most important issue in our view for determination, is whether the disputed land was acquired by the Plaintiff’s ancestor Nana Ekwam 1 or the 1st Defendant’s ancestor Nana Kwaa Tutu.

 

(22) The Plaintiff’s attorney in her testimony as to how the disputed land was acquired by her ancestor Nana Ekwam 1 recounted that her ancestor was a carpenter and a hunter. In the course of his hunting expedition, he came across a virgin forest. He stayed there for his hunting expedition and erected a cottage where he stayed to dress his game. Whilst hunting, he identified trees of the same species at spots covering a wide area and suitable for settlement. He invited his Kinsmen to join him. The settlement became known as Ekwamkrom. He became the first chief of the settlement until the fire that engulfed and destroyed Ekwamkrom and the people then moved to the present day Gomoa-Ekwamkrom. The old settlement became known as “Amanfodo”.

 

(23) On the acquisition of the disputed land, the 2nd Defendant testified at page 114 of the record of appeal that:-

“My elder was called Ekwam and my great grandmother was called Nana Essaba. It was our great grand ancestor who came to settle at Abreku, he begat three children called Nana Ekwam @ Otobua another called Ehuahaa @ Eduyaa and the last called Kwegyaa. Ekwam being the eldest of the children because of his children went to settle at Abunu to enable him carry on with his profession carving canoes from Abunu. He moved to settle on Nana Kow Tutu’s land”.

 

(24) He continued with his testimony thus:

Before my grand uncle Ekwam Settled on the land Nana Amuesi had already broken the forest and the land was shared between Nana Amuesi and Ekwam i.e. “Ebunu”, The portion belonging to the Swedru people was given to my grand uncle Ekwam…………….. they prepared document on this arrangement and that document is with my lawyer”.

 

(25) After several narratives and interjections by both counsel for the Plaintiff and the Judge, the 2nd Defendant continued thus:-

“Judge: Let us put it this way, that Ekwam land, what has happened so far?

A: The issue as at now is that my sister the Plaintiff is claiming the land but I know it is for the 1st Defendant’s ancestors. When we moved to settle at present-day Ekwamkrom, my elders were not paying the land to the chief of Swedru so my grand uncle Amuesi charged his nephew Kwame Afreh to inform my elder called Nana Benya to go and pay his toll to the chief of Swedru, which amounted to 192 Pounds 10 Shillings.

 

(26) The 1st Defendant on how the land was acquired by his ancestor stated that it was his ancestor called Nana Kwaa Tutu who broke the virgin forest of the land in dispute. At page 203 of the record of appeal, he continued his testimony as follows:-

“Q: Nana, tell me this Southern portion of the disputed land what dealings took place between your ancestors and anybody if you know?

A. There was transaction between my ancestor Nana Benyi of Ekwamkrom.

Q: What was the nature of the relationship of the transaction between Benyi and ancestor?

A. Nana Benyi approached my ancestor called Nana Kofi Nyarko and obtained a portion of land. After acquiring land, Nana Benyi failed to pay the annual tolls. So he was summoned to pay £192.10 before he would be allowed to feed on the land for 40 years.

Q. Take a look at this document, (Exhibit ‘C’) and tell the court if it is the document evidencing the £192 transaction?

A. That is it.

Q. What happened after the document?

A. When I found this document in my belongings, I invited Ebusuapayiny Saah of Ayensuadze and told him this I have found this document and that the names on it are not part of the list of people who payment to me Ebusuapayin Saah replied that they used to pay but had stopped”.

 

Both the 1st and 2nd Defendant identified Exhibit ‘C’ as the Agreement between the 1st Defendant’s ancestor and Nana Benyi.

 

(27) It is immediately clear that apart from the Exhibit ‘C’ which both the 1st and 2nd Defendants admitted to be the basis of the claim to the disputed land, their traditional evidence as to how the land was acquired by their predecessors conflicted each other.

 

(28) Whereas the 2nd Defendant claimed it was Nana Amuesi who broke the forest which was shared between him and Nana Ekwam on “Ebunu”, the 1st Defendant claimed it was his ancestor called Nana Kwaa Tutu who broke the virgin forest of the land in dispute. As to how the ancestors of the Plaintiff came to be on the land in dispute the 2nd Defendant stated emphatically that it was Nana Kwa Oteng, Chief of Swedru who allowed Ekwam 1 to settle on the land in dispute in cross-examination at page 173 of the record of appeal.

 

Eventually, the 1st Defendant and 2nd Defendant ended their claim to the land through the transaction between the 1st Defendants ancestor called Nana Kofi Nyarko and the Plaintiff’s ancestor called Nana Benyi which transaction is covered by the Exhibit ‘C’.

 

(29) It is significant at this stage that we quote the content of the Exhibit ‘C’ which reads as follows:-

“I the undersigned Chief Kojo Nyarku of Aguna Swedru and my elders have this day received from Chief Kweku Benyah of Ekwamkrom cash the sum of £192.10. One Hundered and Ninety Two Pounds Ten Shillings as my land I have given to live for forty (40) years and the said Chief Kweku Benyah of Ekwamkrom has right from today to do everything………………….. And if these forty (40) years expires, Chief Kweku Benyah has to bring or pay the annual fee to me as it is done usual.

And that £192.10 One Hundred and Ninety Two Poinds Ten Shillings passed away or finished”.

The document was dated 10/12/1925.

 

(30) Although in land suit a party is not required to identify the land with mathematical precision or certainty in AYEH AKAKPO VS. AYAA IDDRISU [2010] SC GLR 891 at 901, the Supreme Court speaking through Brobbey JSC approved and relied on the decision of Abban J.A (as he then was) in NYIKPLORKPO VS. AGBEDORTOR [1987-1988] 1 GLR 169 at 171 where it is sated that;

“………………to succeed in an action for declaration of title to land, injunction, recovery of possession, the Plaintiff must establish by positive evidence, the identity and the limits of the land he claims”.

Significantly, we observed that since both the 1st and 2nd Defendants claim to the disputed land is based on the Exhibit ‘C’ it would have been useful if there was a positive evidence on the face of the Exhibit ‘C’ to link their claim to the land in dispute. However it is clear even at a glance, that the Exhibit ‘C’ failed to disclose or describe the identify, location, boundaries and or limit of the land, the subject matter in the Exhibit ‘C’.

 

(31) The fact that the Defendants did not know the layout or description or boundaries of the land alleged to have been given out in 1925 to Chief Kweku Benyah was conceded by the 2nd Defendant in examination-in-chief at page 153 of the record of appeal when he stated that:

“The 1st Defendant told them that he did not know the size of the land and they should draw plan so that he will know the size of land to enable him determine how much they will pay”.

The 1st Defendant also stated at page 207 of the record as follows:-

“We agreed to meet again in two weeks to appoint a surveyor to survey the entire land. And after that we would determine the amount of money they should pay as annual rent”.

Thus the 1st Defendant evidence confirmed the fact that he did not know the area or description or the limit of the land and therefore needed a surveyor to undertake that work.

 

(32) Our courts have consistently refused to declare title in any claim for land if the land cannot or has not been clearly identified. The rationale for this was succinctly stated in ANANE VS. DONKOR; KWARTENG VS. DONKOR (Consolidated) [1965] GLR 118, SC per Ollennu JSC as follows:

“Where a court grants declaration of tile to land or makes an order for injunction in respect of land, the land subject matter of that declaration should be clearly identified so that an order for possession can be executed without difficulty”.

Thus the High Court ought not to have placed any probative value on the Exhibit ‘C’ to declare title in the Defendant.

 

(33) Then again it is not in dispute that the first settlement of Ekwamkrom falls within the

Southern portion of the land which is being claimed by the 1st and 2nd Defendant now as the land that is covered by the Exhibit ‘C’. From the Exhibit “CWIA” which is the Surveyor’s plan, the ruins of the first settlement with the palace, chiefs and royals of Ekwamkrom Aboradze Family Burial Place, ruins of the Methodist Church, meeting place, ancestor’s dumping place all fall within the Southern Portion of the land in dispute. It is this land that the parties referred to as “Amanfodo” or the old settlement. However the 2nd Defendant at the visit to the locus in quo with the Surveyor appointed by the court indicated it as Kwaa Tutu Land.

 

(34) The fact that there was an old settlement of Ekwamkrom before Exhibit ‘C’ was confirmed in the testimony of 2nd Defendant at page 152 as follows:-

“I remember in 1925 when we moved from old settlement to the present, my uncle called Nana Beenya, my grand uncle Amuesi sent his nephew Kwame Afreh to Swedru to go and pay his toll amounting to £192.10 (One Hundred and Ninety-two Pounds Ten Shillings). That money was paid and a receipt was issued to that effect in 1925”. (Emphasis mine).

 

(35) At page 72 of the record of appeal, the Plaintiff’s Attorney, commenting on the 1925 document Exhibit ‘C’ stated as follows:-

“I found that the document was dated 1925. Meanwhile our ancestors left the disputed land in 1907 so that in this case the document was prepared 18 years after my ancestors had left the disputed land. That is the first explanation I gave that the land did not belong to them”.

 

(36) The inference that can be drawn from these pieces of evidence is that the Exhibit ‘C’ could not be referable to the Southern Portion where the Plaintiffs ancestor’s had their old settlement known as Ekwamkrom which became known as Amanfodo after it was engulfed by the fire which compelled them to move to the present site of Ekwamkrom at Gomoa.

 

(37) Then again, we observed that prior to 1925 when Exhibit ‘C’ was executed, the old or 1st settlement known as Ekwamkrom was already in existence and had enstooled several chiefs prior to Chief Kojo Nyarku mentioned in the said Exhibit ‘C’. At page 315 of the record is an Extract from a Certified Copy of Public Records from Archives Department No.000046 dated 11th June, 2003 which is a list of Chiefs in 1924 in the Gold Coast for Wineba District. The Chief for Ekwamkrom in 1924 was indicated as Kweku Beenya. In 1930, the chief who was enstooled after Chief Kweku Benya for Ekwamkrom was indicated as Yaw Ekwam IV at page 316 of the record of appeal. This supports the fact that there had been previous chiefs of Ekwamkrom before 1924 and for that matter about three previous chiefs bearing the stool name “Ekwam” had been enstooled before Chief Benya in 1924.

 

(38) In his evidence, the 2nd Defendant sought to give the impression that his section of the family dutifully paid yearly rent to the 1st Defendant as owner of the land in dispute. However, he contradicted himself under cross-examination by acknowledging that he had acted under authority given him by the Plaintiff in recent times to give out portions of the land in dispute to tenants and collect monies and further that the rent he paid to 1st Defendant was not fixed. Yet if the Defendant should be believed, from the Exhibit ‘C’ the rent to be paid was fixed.

 

(39) The persons the 2nd Defendant conceded he gave portions of the land to as tenants include Akofi, Kwame Amoah, Okyeku and Safohene Agyin who cultivated Palm trees on portions of the disputed lands. The portions where these persons mentioned above occupied are captured on the Exhibit “CWIA”.

 

(40) Thus in our view, but for the discovery of the Exhibit ‘C’ by the 1st Defendant, the Plaintiff and the 2nd Defendant had been in possession of the Southern portion without any interruption from anybody.

 

(41) The Defendants in their counter claim sought for declaration of title to that piece or parcels of land described in relief (1) of on the Plaintiff’s writ. The boundaries of that land was fully particularized in the Plaintiff’s relief (1). Without amending their counter-claim the Defendants in their survey instructions abandoned their claim to the entire land and limited their claim only to the Southern portion. They further in evidence restricted their claim to only the Southern portion of the land and as if that was not a serious departure from their pleadings they also differed as to the name of their ancestors who first broke the virgin forest of the land in dispute as well as how their ancestors came to be in possession of the land.

 

(42) In our view, the Trial High Court ought not to have glossed over these conflicting testimonies on these crucial issues as to how and who first acquired and possessed the land in dispute.

 

(43) From the 2nd Defendant’s own testimony, he and the members from his section of the family had a grudge to bear with the Plaintiff in respect of the land. At page 146 of the record of appeal the 2nd Defendant among other things told the court that there came a time when his nephew who was then the Chief was preventing them from feeding on their portion of the land bequeathed to them by their grand uncle Nana Amuesi. This piece of evidence was confirmed by the Plaintiff’s Attorney in her evidence that the Defendants attempted to claim monopoly over portions of the land which was resisted. Could this have been the underlying motive that made the Defendants from the other two sections of the royal family decide to back up a stranger to take away the Southern part of the land which the 2nd Defendant claim Nana Amuesi and Nana Ekwam shared on Abunu?

 

(44) What is baffling from the evidence of the 2nd Defendant is that if Amuesi broke the virgin forest and shared it with Ekwam 1, why then should the portion of Ekwam 1 fall within the portion of Swedru people but that of Amuesi did not fall within portion of the Swedru people. Surely, there is a contradiction there, for if as the Defendants are claiming all the land as belonging to the Swedru, people then, the portion of Amuesi should also be part of the Swedru lands.

 

(45) As an appeal is by way of rehearing, in our respectful view, a critical analysis of the claims of the parties, the pleadings and the testimonies defeat the conclusion the High Court arrived when it took the simplistic approach by dividing the land and giving the Southern Section to the Defendants and the Northern Section to the Plaintiff.

 

(46) At page 77 of the record of appeal, the Plaintiff’s Attorney led evidence in respect of the Palm trees felled by the Defendant. She stated that the 1st Defendant was sued before Omankrado of Swedru called Nana Abena Gyimah and in the course of arbitration the 1st Defendant admitted before the panel that he ordered Jibil Adam to fell the Palm trees. This evidence was not challenged by Defendant. Indeed in paragraph 8 of the statement of defence the Defendants admitted that the 1st Defendant received a share of the Palm trees. However, we noticed that the Plaintiff did not produce sufficient evidence to assist the court ascertains the quantum of the damages involved but this does not take away the act of trespass of the lands out. Defendant’s witness Jibil Adam (DW1) admitted harvesting Palm Trees from the land of Akofi who is tenant farmer of the Plaintiff because the Swedru Chief made it clear the land belonged to him at page 250 of the record of appeal.

 

(47) From the totality of the evidence on the record, we are of the view that the Defendants failed to satisfy the proof as required under Section 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) to be entitled to the reliefs granted them by the High Court under the judgment in contention in this appeal.

 

(48) For these reasons, we will vary the judgment of the High Court dated 7th December, 2005 and set aside the judgment entered for the Defendants and enter judgment for the Plaintiff for declaration of title to all that piece or parcel of land described in relief (1) on the writ, recovery of possession and perpetual injunction restraining the Defendants, agents, servants and assigns and anyone lawfully claiming through them from entering the disputed land, laying adverse claim or in any way interfering with Plaintiff’s right to the said land. We will further award general damages of Ten Thousand Ghana Cedis [Gh10,000] against the Defendants jointly and severally for trespass.

 

(49) Accordingly the Plaintiff’s notice for variation of the judgment of the High Court dated 7th December, 2005 hereby succeeds and varied in part.

 

(Sgd).

IRENE C. LARBI (MRS).

(Justice of Appeal)

 

(Sgd).

L. L. MENSAH

(Justice of Appeal)

 

(Sgd).

ANGELINA M. DOMAKYAAREH (MRS).

(Justice of Appeal)