IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
KUMASI - A.D 2018
OPANIN KWADWO NYAMEKYE - (Plaintiff/Appellant)
MADAM AFUA FOFIE - (Defendant/Respondent)
DATE: 23 RD JANUARY, 2018
SUIT NO: H1/77/2014
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, WELBOURNE (MRS) JA
YAW SAKYI FOR PLAINTIFF/APPELLANT
NO REPRESENTATIVE FOR THE DEFENDANT/RESPONDENT
ADUAMA OSEI JA:
This is the judgment of this Court in an appeal filed by the Plaintiff/Appellant against a judgment of the Circuit Court, Juaben – Ashanti, delivered on the 9th of July, 2013. In this judgment, the Plaintiff/Appellant is referred to as “the Appellant”, and the Defendant/Respondent is referred to as “the Respondent”.
The writ of summons that initiated the present suit was issued in the Circuit Court, Juaben– Ashanti, on the 21st of June, 2010 at the instance of the Appellant. By the indorsement on the writ of summons, the Appellant, as head of the Akosua Adoma Family of Ntonso in the Kwabre District of the Ashanti Region, claimed reliefs against the Respondent as follows:
“1. A Declaration of Possessory Title to all that farm land lying at the outskirts of Ntonso Township commonly known as ‘Yeresere’ and having boundaries with the farm lands of:
a. Kwame Frimpong, b. Paul Donkor, c. Akwasi Oduro and d. Baah Yaw.
“2. An order of the Court for an injunction restraining the Defendant by herself, anybody claiming any interest in said land through the Defendant by herself, workmen, or whosoever from in any way interfering with the Plaintiff’s possessory title.
“3. An order for recovery of possession”.
In the statement of claim that accompanied the writ of summons, the Appellant pleaded that he was the customary head of the Adoma Family of Ntonso and claimed to have brought the action for himself and all other members of the said family.
The land in respect of which he brought the action was described as sharing boundaries with the predecessors of Kwame Frimpong, Paul Donkor, Akwasi Oduro and Baah Yaw, and it was alleged to have been first cultivated as a virgin forest by his great grandfather Kwadwo Tuffour of Ntonso. It was cultivated as a cocoa farm, and a cottage named “Yeresere” was built on it.
The Appellant alleged in the statement of claim that the farm and cottage became the property of his family, the Adoma Family, by virtue of a gift inter vivos made by Kwadwo Tuffour to his grand mother, Akosua Adoma, who was the wife of the said Kwadwo Tuffour.
The Appellant alleged that when Kwadwo Tuffour died, he was succeeded by his brother Kofi Mensah who took Akosua Adoma as a customarily inherited wife and that up to the death of Kofi Mensah, Akosua Adoma continued to enjoy an uninterrupted occupation and use of the farm and cottage. Upon the death of Akosua Adoma, she was succeeded by her daughter Akosua Afrah who, without let or hindrance, exercised possession over the farm and cottage for over 20 years before she died in 1992. The successor of Akosua Afrah was alleged to be Adwoa Nkrumah and at the time of Adwoa Nkrumah’s death, the farm land was alleged to have fallen into the development area of Ntonso township.
Setting out the reason for the institution of the action, the Appellant alleged that with the death of Adwoa Nkrumah, the farm land had fallen into the hands of the Appellant and his family but that the Respondent had, in the past 6 months been laying adverse claim to the land or part thereof.
The appellant contended that the Respondent had no valid claim in respect of the land and was, in any event, barred by statute, having regard to his family’s long occupation of the land, from making any claim. The Appellant also alleged that the Respondent had by various means frustrated attempts to have the dispute resolved through customary arbitration.
In her statement of defence, the Respondent described the Appellant as her grandson by virtue of Akosua Adoma having married Kwadwo Tuffour, and also claimed to have been a granddaughter of Kwadwo Tuffour. The Respondent admitted that the disputed property had been cultivated and established by Kwadwo Tuffour. Regarding the boundaries of the property however, the Respondent alleged that Kyerewaah and Benyade were also boundary owners.
The Respondent denied the gift inter vivos alleged by the Appellant in respect of the disputed property, and also denied that Kwadwo Tuffour was succeeded by Kofi Mensah. The Respondent alleged that it was rather Nana Kwasi Kuma who customarily succeeded Kwadwo Tuffour; the said Nana Kwasi Kuma did not, however, take Akosua Adoma for a wife.
The Respondent also denied the Appellant’s allegation that Akosua Adoma had enjoyed a continued and uninterrupted occupation and use of the disputed property. She also denied that Akosua Afrah and Akosua Adoma exclusively exercised acts of ownership over the disputed property. She said they all depended on the said property and that the same had all along been in the undisputed possession of her mother, Yaa Kwartemaa, and after her, the Respondent herself and her siblings, who had cultivated same for their subsistence and had farmed on it continuously from their childhood up to their old age, when they were aged between 75 and 80 years. .
Regarding the failure of the attempt to resolve the dispute by customary arbitration, the Respondent alleged that it was rather the Appellant who refused to co-operate in the effort.
The Respondent proceeded to counterclaim against the Appellant for reliefs as follows:
“a) Declaration of possessory title to all that piece and parcel of land cultivated by her mother Yaa Kwartemaa, niece of late Kwadwo Tuffour alongside with defendant and her other siblings which land was bounded by Kwame Frimpong, Paul Donkor, Akwasi Oduro, Baah Yaw, Kyerewaah and Benyade which land was cultivated in its virgin state by late Kwadwo Tuffour at a place commonly known as ‘Yeresere’ on Ntonso Stool Land.
“b. Damages for trespass.
“c. Perpetual injunction restraining the plaintiff, his agents or assigns”.
In its judgment delivered on the 9th day of July, 2013, the trial Court held that the Appellant’s maternal family had never owned the disputed land and that the Respondent and members of her maternal family were rather entitled to exclusive possession of the same. The trial Court also held that the acts and conduct of the Appellant’s family in respect of the disputed land amounted to trespass. The trial Court accordingly dismissed the Appellant’s claims and granted the Respondent the reliefs sought under her counterclaim.
This appeal has been filed because the Appellant is dissatisfied with the decision of the trial Court. In his notice of appeal, the Appellant contends that the judgment of the trial Court is against the weight of evidence and he prays this Court to reverse the judgment of the trial Court and enter judgment in his favour.
It is acknowledged that in his notice of appeal, the Appellant indicated an intention to file additional grounds of appeal upon receipt of the “full record of proceedings”. I do not find any record of additional grounds filed by or on behalf of the Appellant as notified, yet I notice that in his filed submissions, without stating the authority therefor, Counsel for the Appellant purports to argue two grounds in addition to the general ground specified in the notice of appeal. I do not consider those two grounds as proper grounds in this appeal and the arguments made thereunder will not be considered in this judgment.
In arguing the ground that the judgment of the trial Court was against the weight of evidence, Counsel for the Appellant observed that the trial Court failed to give credence to the evidence given by the Appellant in respect of the inter-vivos gift made to the Appellant’s great grandmother, Akosua Adoma by her husband, Kwadwo Tuffour and that the Court erred in that regard. Counsel noted that the trial Court glossed over the Appellant’s evidence as well as the cross-examination of PW.1 and based consideration of the evidence on the 4 essentials of a perfect gift.
Counsel also considered that in evaluating the evidence, the trial Court wrongly applied the principle, nemo dat quod non habet. In so doing, the trial Court erroneously concluded that Kwadwo Tuffour could not have given land which belongs to the Ntonso-Gyaase stool to Adoma inter vivos.
In the view of Counsel, there was evidence of exclusive occupation, possession and control of the farm and cottage by the Appellant’s maternal family from the days of Kwadwo Tuffour up to recent times, and that was enough to establish the intention of Kwadwo Tuffour to make a gift, and the giving of aseda by Akosua Adoma. Counsel regretted that the trial Court failed to take notice of this.
Counsel also observed that in a case like the present one, it would be difficult to bring forward all persons who witnessed the gift to testify since most of them would be dead by now. In this circumstance, the trial Court should have considered significant the Respondent’s own admission that the Appellant’s family was in occupation of the farm and cottage.
Counsel also argued that having acquired the disputed land in its virgin state, Kwadwo Tuffuor was entitled to gift it to his wife without first seeking the consent of the Ntonso-Gyaase stool, and the trial Court was wrong in not acknowledging this position.
Counsel also contended that, given that the Appellant’s claim was through his maternal line, and given also that under customary law it is the immediate family and not the extended family in whom possession and use of property vests, the trial Court erred in deciding against the Appellant. The Appellant being the only surviving member and head of family, was entitled to the sole control and enjoyment of the disputed property and he was entitled to sue in respect of it.
Addressing the submission by Counsel for the Appellant that the trial Court did not give credence to the evidence of the Appellant and the cross-examination of PW.1, Counsel for the Respondent adverted to the statement by Ollennu J, as he then was, in Majolagbe Vs. Larbi  GLR 190 that where a party makes an averment capable of proof in some positive way, he does not prove it by going into the witness box and repeating that averment on oath, or having it repeated by his witness. On the strength of this statement, Counsel described the submission made on behalf of the Appellant as unacceptable.
Counsel also considered that, on the facts of the present case, the trial Court’s reliance on the principle of nemo dat quod non habet in ruling out the inter vivos gift alleged by the Appellant was justified. Counsel argued that while in the case of Dzorkui II Vs. Adzmli (2013)57 GMJ 183, cited by Counsel for the Appellant, it was clear that the development undertaken on the land had been made possible by gifts of land made by the defendants and those before them to their own relatives as well as strangers without any protests from any of the plaintiffs, in the present case, it was clear that there was a conflict of traditional history which could best be resolved by considering recent acts in relation to the land. Counsel considered that apart from the mere allegation that the disputed land was given to Adoma, there was nothing on record as to recent acts on the land to buttress the case of the Appellant or his predecessors.
Counsel for the Respondent also made the point that the Appellant did not appear to be sure about his boundaries. He said the boundary owners listed in the Appellant’s claim were entirely different from those mentioned in his evidence, and the confusion was even worsened by his witnesses.
Counsel expressed the view that this appeal is without merit and he invited this Court to dismiss same.
As has been noted above, the Appellant is contesting the judgment of the trial Court on the ground that it is against the weight of evidence on record. And what is required of the appellate court when an appellant before it bases his grievance with the judgment of the trial court on that ground is now trite. This requirement has been variously expressed, but what it all amounts to is that the appellate court is called upon to review the entire record to find out whether the conclusion of the trial court is reasonably supported by the evidence. In doing so, the appellate court must caution itself against disturbing findings of fact made by the trial court even if the appellate court would have come to a different conclusion, unless the findings of fact made by the trial court wholly lacked support from the record. The explanation for this position, mainly, is that as between the trial court and the appellate court, the trial court had the advantage of following the proceedings and watching the reactions and demeanour of the parties and their witnesses. Cases that may be cited on this point include Bonney Vs. Bonney [1992-93] GBR 779, Koglex Ltd. (No. 2) Vs. Field  SCGLR 175, Tuakwa Vs. Bosom [2001-2002] SCGLR 6, In Re Okine (Decd.); Dodoo Vs. Okine [2003-2004] SCGLR 582, Kotey Vs. Kolote [2005-2006] SCGLR 368, Oxyair Limited & Darko Vs. Wood [2005-2006] SCGLR 1057 and Owusu-Domena Vs. Amoah [2015-2016] SCGLR 790.
In the present case, the trial Court dismissed the Appellant’s claims and upheld the Respondent’s counterclaim; and to determine whether those decisions have reasonable support from the record, it may be necessary to assess the findings that guided those decisions, in the light of the evidence on record.
My summary of the findings from which the trial Court concluded that the Appellant’s claims against the Respondent were not maintainable is that, even though the disputed land and cottage had been founded solely by Nana Kwadwo Tuffour, the said Nana Tuffour had subsequently divested himself of the property and attached same to the Gyaase sub-stool. The disputed property having become a Gyaase sub-stool property, was under the control of that stool and it was in his capacity as Gyaasehene that Nana Kwadwo Agyei granted a portion of the property to the late Nana Tuffour.
The grant Nana Tuffour obtained from Nana Kwadwo Agyei was nothing more than a possessory interest and if Nana Tuffour had gifted a portion thereof to his wife Akosua Adoma inter vivos as alleged by the Applellant, all that Akosua Adoma could have obtained was a possessory interest. But the alleged gift to Akosua Adoma was not proved and Akosua Adoma enjoyed possessory farming rights over a portion of the land only by virtue of having been the wife of Nana Tuffour and subsequently, Kofi Mensah, Nana Tuffour’s successor. The Appellant is a grandson of the late Akosua Adoma and any interest he may have in the disputed property can only be derived from the late Akosua Adoma.
But while the Respondent and the late Nana Tuffour both belong(ed) to a maternal family originated by female ancestors and are both members of the Gyaase family, the Appellant does not belong to the Gyaase family and he and the Respondent are not related by blood. The disputed property belongs to the Gyaase family and the Appellant, not being a member of that family, is only a gratuitous licensee of the family, the Respondent’s family, in respect of the property. The Appellant’s claims against the Respondent in respect of the property cannot therefore succeed.
Regarding the success of the Respondent’s counterclaim, the findings on which it was based were that, although the disputed land is attached to the Gyaase stool, the beneficiaries entitled to enjoy the inheritable possessory interest in it are the members of the maternal family to which the late Nana Tuffour belonged and to which the Respondent also belongs. The Respondent inherited this possessory interest from her mother, and she together with the generations after her, are entitled to enjoy the said interest, subject to the allodial right of the Gyaase sub-stool.
The Appellant’s conduct in respect of the disputed property in the form of selling portions thereof as building plots amounts to unjust enrichment and trespass, and the Respondent and her family are in the circumstance entitled to be compensated in damages, and to be granted exclusive possession of the disputed land.
Now I have carefully reviewed the record, and having exercised the caution which an appellate court needs to exercise when called upon to reverse findings of fact made by a trial court, I have not found any reasonable basis for reversing any of the findings upon which the trial Court decided to dismiss the Appellant’s claims.
It has been noted above that in his filed submissions, Counsel for the Appellant particularly expressed dissatisfaction with the trial Court’s evaluation of the testimonies of the Appellant and his first witness on the issue of gift inter vivos. In the view of Counsel for the Appellant, the trial Court failed to give credence to the Appellant’s evidence in respect of the inter-vivos gift and also glossed over the cross-examination of PW.1 on that issue.
From my own review of the record, however, I do not consider the criticism of the trial Court’s decision on the issue fair. I think the trial Court gave due consideration to the testimonies of the Appellant and PW 1, and gave plausible reasons for its position on the alleged gift inter vivos. I have myself been struggling without much success to draw from the testimony of the Appellant a positive assertion of the gift inter vivos allegedly made to Adoma by Kwadwo Tuffuor, and to illustrate my difficulty in this endeavour, I quote hereunder that part of the Appellant’s evidence-in-chief that gets close to relating Adoma to the disputed property:
“Upon the demise of Tuffuor he was succeeded by Kofi Mensah. When Tuffuor died, Kofi Mensah married his wife, Adoma. Kofi Mensah and Adoma were in possession of the land. None of the boundary owners disturbed the possession of the land by Mensah and Adoma. Akosua Afra was my mother and a daughter of Tuffuor. Before he died, Tuffuor gave the land to be occupied and enjoyed by her and his customary successors to be. Tuffuor stated during his lifetime that after his demise Kofi Mensah and Adoma should take and possess the land”.
Now, in this part of his evidence-in-chief, was the Appellant testifying about a grant made to both Kofi Mensah and Adoma, or a grant made exclusively to Adoma? Was he testifying about a grant that was to take effect during the lifetime of Tuffuor, or a grant that was to take effect after Tuffuor’s death? By customary law, a person cannot appoint his own successor. Given this position of the law, was the Appellant suggesting in this testimony that Tuffuor knew before his death that Kofi Mensah was going to be his successor? If he knew, did he know Kofi Mensah would marry Adoma? Was it probable that before he died, Tuffuor would give land to a specified successor to be occupied and enjoyed by that successor together with his wife?
It is clear from the statement of claim that the Appellant’s root of title, or of whatever interest he was claiming, was the gift inter vivos allegedly made to Adoma by Tuffuor in respect of the disputed land. The making of the gift was therefore an event which the Appellant needed to establish, if his action was to succeed. To my mind however, that part of Appellant’s testimony quoted above is not the testimony of a person who knows the circumstances under which Adoma got into possession of the land. The Appellant is clearly uncertain as to how and why Adoma got into possession of the land and I do not think his Counsel is being fair when he tries to fault the trial Court for not giving credence to the testimony of the Appellant.
There is also the unchallenged testimony of the Respondent during her cross-examination, that in farming on the disputed land, the Appellant’s ancestors had no right to old palm trees as well as cola and wild palm. The significance of this testimony on the issue of gift inter vivos is noted when it is acknowledged that under customary law, strangers, that is persons who have no inherent right to occupy land, are precluded from felling economic crops like oil palm trees.
This limitation on user of land by strangers is explained by Ollennu in his Principles of Customary Land Law in Ghana, London, Sweet and Maxwell, 1962, at pages 64 and 65 as follows:
“Cultivation of land with nothing else is, in the eyes of the customary law, not a user which is adverse to the title of the owner of land. ‘Custom does not permit any person to be improved out of his land, but it permits him to benefit from improvement of his land, provided that benefiting from such improvement does not amount to ill-gotten gain, ….. Acts like felling oil palm trees, Agor palm, or timber trees on land, as we have already seen, is a special prerogative of the owner of the determinable title, and in the eyes of customary law is the same as sale of land. Therefore, the felling of palm or other economic trees on land by a stranger is a user of land which is inconsistent with, or adverse to the title of the owner”.
When the unchallenged evidence that the Appellant’s ancestors had no right to old palm trees and cola on the disputed land is viewed in the light of the above exposition of the customary law, one cannot pass as unreasonable the trial Court’s findings that the late Nana Tuffour divested himself of the disputed property, that the Appellant’s ancestors had nothing more than a possessory interest in the disputed property, that the gift to the late Adoma had not been proved, and that the Appellant’s ancestors were only licensees on the disputed land.
It has been noted above that Counsel for the Appellant considered the exclusive occupation and control of the disputed land by the Appellant’s maternal family from the days of Kwadwo Tuffuor as sufficient user of the land to demand an inference by the trial Court that there had been a gift of the land, and an offer of “aseda” made therefor. I think, however that what Ollennu says above that in the eyes of customary law, cultivation of land per se is “not a user which is adverse to the title of the owner of land”, is an invitation to the Appellant to review his position on the issue. This is especially so when, as just discussed, there is unchallenged evidence that while in occupation of the land, the Appellant’s maternal family had no right to economic crops. Custom, Ollennu reminds us, “does not permit any person to be improved out of his land”.
If, as I have already held, the trial Court’s finding that the late Nana Tuffour divested himself of the disputed property has reasonable support from the record, then there was also a good basis for the application of the principle, nemo dat quod non habet by the trial Court. The interest Nana Tuffour had in the disputed property which he could have granted to any person, was the possessory right which he acquired from the Gyaase sub-stool, per Nana Kwadwo Agyei and he could not have granted Akosua Adoma more than that interest.
Another deficiency I find in the Appellant’s case relates to the capacity in which he sued. In his statement of claim, he described himself as head of the Akosua Adoma family of Ntonso and pleaded as having brought the action “for himself and all other members of the Adoma family of Ntonso”. It is noted however, that during the trial, the Appellant said absolutely nothing about his capacity as head of the Akosua Adoma family and appeared to have abandoned that capacity in favour of a new capacity as head of the Asakyiri family of Ntonso. Is the Asakyiri family the same as the Akosua Adoma family? There is no evidence on record showing any relationship between the Asakyiri family and the Adoma family.
But that is not all. There also appears to be a problem with the boundaries of the land in respect of which the Appellant was seeking a declaration of “possessory title” and other reliefs like recovery of possession and injunction. It has long been established that for a claim for a declaration of title to land or recovery of possession or an injunction to succeed, the plaintiff ought to establish positively the identify of the land claimed by him with the land the subject-matter of the suit. (See Anane Vs. Donkor  GLR 188, Bedu Vs. Agbi  2 GLR 238, and Kwabena Vs. Attuahene  GLR 136).
Now, as we recall, in the indorsement on his writ of summons, the Appellant described the land in respect of which he was seeking reliefs as having boundaries with the farm lands of Kwame Frimpong, Paul Donkor, Akwasi Oduro and Baah Yaw. When the Appellant mounted the witness box to establish his case however, we note that he came with a completely different set of boundary owners. None of the pleaded boundary owners or their successors, was mentioned, and the boundary owners he gave in his evidence-in-chief were Gyaase, Maame Nkrumah and Kwaku Forkuo. The Appellant’s lawyer must have found something amiss about the boundary owners he gave, so he asked him by way of re-examination: “You mentioned some boundary owners in your evidence, do those persons have any names apart from the names you stated in your evidence, Christian names or otherwise”? But no. The Appellant knew no other names. So his response to his lawyer’s question was: “The names I know are those I have mentioned in my evidence-in-chief already”.
And the Appellant’s first witness, Yaw Poku, was of little help on the issue of the land’s identity. When he had the opportunity to tell the trial Court about the boundaries of the disputed land, his statement was: “We do not share a boundary or boundaries with anybody except Maame Nkrumah, Opanin Kwabena Konadu and Maame Kraa”.
So with this discrepancy between the identity of the disputed land as pleaded and its identity as described on oath, how could the Appellant expect to succeed in his claims? The reason why the Appellant could not expect to succeed is given by Ollennu JSC in Anane Vs. Donkor (supra):
“Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty, and also if the order for injunction is violated the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain. Again, a judgment for declaration of title to land should operate as res judicata to prevent the parties relitigating the same issues in respect of the identical subject-matter, but it cannot so operate unless the subject-matter thereof is clearly identified. For these reasons a claim for declaration of title or an order for injunction must always fail if the plaintiff fails to establish positively the identify of the land to which he claims title with the land the subject-matter of the suit”.
After this quotation, I need not say more by way of explaining why this Court cannot reverse the trial Court’s decision dismissing the Appellant’s action. There is reasonable support for that decision in the record and the same is upheld.
But what about the decision granting the Respondent’s counterclaim? The counterclaim is an action by itself and the merits of the decision granting it ought to be assessed in the same manner the decision dismissing the Appellant’s claims has been assessed. And this involves considering whether the decision granting the counterclaim is amply supported by the record.
As we will recall, the findings on which the trial Court’s decision granting the counterclaim was based were:
i) that the disputed land is attached to the Gyaase stool;
ii) that although it is attached to the Gyaase stool, the beneficiaries entitled to enjoy the inheritable possessory interest in it are the members of the maternal family to which the late Nana Tuffour belonged;
iii) that the Respondent belongs to the said maternal family and inherited this possessory interest from her mother;
iv) that the Respondent and the generations after her are entitled to enjoy the said interest, subject to the allodial right of the Gyaase sub-stool;
v) that the Appellant’s conduct in respect of the disputed property amounts to unjust enrichment and trespass, and
vi) that the Respondent and her family are in the circumstance entitled to be compensated in damages, and to be granted exclusive possession of the disputed land.
Now, in his reply to the submissions filed on behalf of the Respondent, Counsel for the Appellant has questioned the capacity of the Respondent to sue in respect of Gyaase stool property or property of the Gyaase royal family. Counsel has also observed that the Respondent did not counterclaim for the entire land the Appellant claimed but for only that portion of the land on which she farmed. Counsel has contended that that being the case, the trial Court erred when it decided for the Respondent without pronouncing on the entire land put in issue in the Appellant’s action.
So, in what capacity did the Respondent counterclaim? And in respect of which land did she counterclaim? Do the reliefs granted her have reasonable support from the record?
As we notice from the writ of summons and its accompanying statement of claim, the Appellant’s action was against the Respondent in her personal capacity, and, as we also notice from paragraph 15 of the statement of defence and counterclaim, it was in such capacity that the Respondent made her counterclaim. Indeed, there are moments in the judgment of the trial Court when the Court appears to be considering the claims as ones brought in a representative, rather than a personal, capacity. We find for instance that unlike reliefs (b) and (c) which are granted in a personal capacity, relief (a) is granted to the Respondent “and members of her maternal family unit within the larger Gyaase family”. My opinion however is that, provided the Respondent is otherwise entitled to the reliefs granted by the trial Court, these lapses should not give cause to deny her those reliefs. This Court can do true justice by awarding the reliefs to the Respondent in the appropriate capacity.
But there is the observation by Counsel for the Appellant that the Respondent did not counterclaim for the entire land the Appellant claimed. This draws attention to the issue of boundaries in respect of the Respondent’s case, and I find in this regard that while boundary owners are mentioned in the pleadings, the description of the boundaries in the evidence is anything but satisfactory. In her evidence-in-chief, the Respondent tells the Court: “I do not know the exact size of the land. At the time I was tilling the land, Adoma, the plaintiff’s grandmother was also farming on a portion of the land. Both of us (that is myself and Adoma) tilled different portions of Tuffuor’s land at the same time”. During her cross-examination, she was asked: “Has there been any identifiable boundary between the portion of the disputed land you are farming and that on which the plaintiff farms”? And her response was: “No. But each has confined himself to his portion”.
But as noted above from the dictum of Ollennu JSC in Anane Vs. Donkor (supra), where a court grants declaration of title to land or makes an order for injunction in respect of land, the identity of the land should not be in doubt, and it should be possible to execute an order for possession without difficulty. As the learned jurist explained further, “if the order for injunction is violated, the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain”. Again we may recall that in Bedu v. Agbi (supra), this court held that failure by the plaintiffs to establish their northern boundary was fatal to their claim.
In the present case, this Court has upheld the trial Court’s findings that Nana Kwadwo Tuffour had divested himself of the disputed property and attached same to the Gyaase sub-stool, that the disputed property had become a Gyaase sub-stool property, that the Appellant is not a member of the Gyaase family and is only a licensee of the said family, and that the Respondent, on the other hand, is a member of the Gyaase family and has inherited a possessory interest in the property from her mother. In spite of the above, however, in view of the unsatisfactory nature of the evidence on record as to the identity of the land claimed against the Appellant by the Respondent, this Court cannot affirm the decision of the trial Court granting the Respondent the reliefs sought under her counterclaim. In my view, the unsatisfactory nature of the evidence as to the identity of the land demands of this Court that it reverses the said decision of the trial Court, and I do so accordingly by setting aside that part of the trial Court’s judgment granting the Respondent the reliefs sought under her counterclaim.
In conclusion, this Court upholds the order of the trial Court dismissing the Appellant’s action but reverses the orders of the trial Court granting the Respondent the reliefs sought under her counterclaim. This appeal therefore fails in part and succeeds in part.
K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I AGREE SENYO DZAMEFE
[JUSTICE OF APPEAL]
I ALSO AGREE MARGARET WELBOURNE (MRS.)
[JUSTICE OF APPEAL]