TSOME vs. GALE AND ANOTHER [1961]DLHC1381

Date	1961-11-21
Suit No.
Citation No.	[1961]DLHC1381

PREMPEH J

E. KOM FOR THE DEFENDANTS-APPELLANTS

F. T. C. AMORIN FOR THE PLAINTIFF-RESPONDENT.

[1961]DLHC1381
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >

<a name="_gjdgxs"></a>&nbsp;vs.

&nbsp;[HIGH COURT, HO]

[1961] GLR 692

DATE: 21ST NOVEMBER, 1961.

</div>

COUNSEL:&nbsp;&nbsp;

E.
KOM FOR THE DEFENDANTS-APPELLANTSF. T. C. AMORIN FOR THE
PLAINTIFF-RESPONDENT.

</div>

PREMPEH, J.

</div>

&nbsp;

This is an appeal from the judgment of the Ho Local Court Division
II delivered in favour of the plaintiff-respondent herein. The respondent’s
claim against the appellant was for a declaration of title to a portion of land
commonly known as and called Ketikpome land, the boundaries of which are set
out in the writ of summons, and he also claimed damages for trespass. The
defendant-appellant counterclaimed for a declaration of title to a portion on
land known as Kpetotoe land and he also gave the boundaries thereof which were
different from those set out by the respondent.

It was the case of the plaintiff-respondent that the Kpetotoe land
for which the defendant-appellant had counterclaimed was acquired by his
(respondent’s) grandmother, that he had inherited the said land for the last
ten years, and that he held no objection to the defendant-appellant occupying
or using any part of the said Kpetotoe land, as the appellant was a descendant
of his grandmother, but he resisted the appellant’s claim for title to the said
land. The respondent maintained that the Ketikpome land which he claimed by his
writ was acquired by his grandfather and that it had passed to him by
succession, he having succeeded his father Kwadzo Komla, deceased; that the
said Ketikpome land is distinct from Kpetotoe land, and that since the
appellant is not related to him paternally, he is not entitled to enjoy as of
right any portion of the said Ketikpome land.

The appellant on the other hand denied that there is any division
on the land. He denied further that any portion of the said land is known as
Ketikpome land, and he claimed that the entire area of land was known as
Kpetotoe land. The appellant maintained that the said Kpetotoe land was
acquired by his grandmother, the late Amedzohe, by purchase, and that somehow
it came into the possession of Kwadzo Komla, whom as already indicated was the
respondent’s father, and whom also the respondent succeeded.

After hearing the parties and their witnesses, the trial court
visited the locus in quo and it gave judgment for the respondent on his claim,
and dismissed the appellant’s counterclaim.

Several grounds of appeal were filed, and among those forcefully
argued on behalf of the appellant and which in my view must prevail are the
following:

(a) the magistrate erred in
law in accepting the traditional evidence of P.W.1 Joseph Ablang Koku, without
enquiring whether he was competent to give the same or not;

(b) The plaintiff-respondent
failed to discharge the onus of proof that lay on him as a person seeking for
declaration of title;

(c) The local court magistrate
erred in law in taking and accepting evidence from one Dzansi at the locus in
quo when he was not at all called as a witness for the plaintiff-respondent,
nor was the evidence given on oath.

Having regard to ground (c), clearly the proper procedure for the
trial court to have adopted after hearing a statement from a boundaryman by
name Dzansi at the inspection was to have called him into the witness-box on
the resumption of the court’s sitting, and to have obtained his evidence on
oath, as to what he said at the inspection: see the Practice Note (Gblevie
Family etc. v. John Amanie)1(9).

The statement made by this boundaryman was important in so far as
it strongly supported the respondent’s case as to the existing boundary between
Ketikpome land and Kpetotoe land, and since the judgment of the trial court is
partly based on the statement of the said Dzansi which was wrongly received,
that judgment in my view is erroneous.