NYAME vs. YEBOAH [1961]DLSC10237

Date	1961-05-29
Suit No.	G L R 281 – 285
Citation No.	[1961]DLSC10237

KORSAH C.J.

SARKODEE-ADDO J.S.C

AKIWUMI J.S.C.

E. AKUFFO-ADDO FOR THE APPELLANT.

J.B. KWENIN FOR THE RESPONDENT

[1961]DLSC10237
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													<main id="main" class="content" style="min-height: 60rem" >NYAME<o:p></o:p>vs.<o:p></o:p>YEBOAH<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL:<o:p></o:p>E. AKUFFO-ADDO FOR THE APPELLANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

J.B. KWENIN FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

KORSAH C.J.,
SARKODEE-ADDO J.S.C, AKIWUMI J.S.C.<o:p></o:p>

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;KORSAH
C.J.<o:p></o:p>&nbsp;Korsah C.J. he delivered the judgment of the
court.&nbsp; The plaintiff instituted this
action in the Kwahu Local Court Grade "A", Nkwatia, claiming a
declaration of title to, and ownership of, a cocoa farm and £G75 damages for
trespass.&nbsp; The plaintiff's case may be
briefly summarised thus: the plaintiff's brother Kwasi Kissi, deceased, had
cleared a forest and made cocoa and food crop farms in the area when a larger area
including the area of Kwasi Kissi's cultivation was declared a forest reserve
under the Forests Ordinance1 whereby owners of farms and other cultivations
within the area so declared were prohibited from entering and continuing their
cultivations.&nbsp; Some time after this
forest reserve was declared Kwasi Kissi died and the plaintiff became his
successor.<o:p></o:p>&nbsp;In the meantime the Forestry Department
released Kwasi Kissi's area including the adjacent forest from the reserve
thereby enabling the farmers in that area to continue their respective
cultivations.&nbsp; It was later discovered
that the defendant had cleared and made a new cultivation on part of Kwasi
Kissi's area. Thereupon the plaintiff protested and the Odikro of the place
with the assistance of his elders investigated and found that the defendant had
trespassed on Kwasi Kissi's farmstead and ordered that the defendant should
pacify the plaintiff with the sum of £G16. The defendant having paid the amount
to the plaintiff, the Odikro volunteered to apportion the land for the
plaintiff and the defendant.&nbsp; The
attempt, however, failed because the plaintiff complained that the Odikro had
indicated his intention of allocating a portion of the area towards which the
plaintiff was entitled by custom to extend her cultivation.&nbsp; In the result, the plaintiff brought this
action against the defendant.<o:p></o:p>&nbsp;At the trial it became apparent that the
issues involved were as follows:<o:p></o:p>&nbsp;1.&nbsp;
Where is the site of the original cultivation of Kwasi Kissi?<o:p></o:p>&nbsp;2. Whether it was situated by the old
foot-path or by the new foot-path from Aworoso-Oworobong.<o:p></o:p>&nbsp;3. How far was the distance between the old
and the new foot-paths.&nbsp; The plaintiff
claimed that the late Kwasi Kissi's plantation was made in an area through
which the new Aworoso-Oworobong foot-path passed.&nbsp; The defendant, on the other hand, contended
that the area in dispute was by the old Aworoso-Oworobong foot-path.&nbsp; After hearing evidence the trial court inspected
the area and issued a report stating, inter alia:<o:p></o:p>&nbsp;"... this court having carefully
examined the disputed area in the inspection, agrees that the disputed area
forms part and parcel of the farming land of late Kwasi Kissi whose right the
Plaintiff is claiming. The farming land referred to is the farmstead of late
Kwasi Kissi of Bepong (Agyoguo-land).&nbsp;
The present Aworoso foot-path is not the ancient path as agreed in the
evidence of the defendant and his witnesses.&nbsp;
The evidence of the plaintiff and his witnesses is the correct on the
record in view of the inspection. The farmstead (Agyoguo) of late Kwasi Kissi
of Bepong ends by the stump of the chewing stick plant. The boundary line fixed
by Beponghene through the disputed area is not correct. It was fixed
unsatisfactorily and it has no customary support, because the defendant has no
land there".<o:p></o:p>&nbsp;The trial court after very careful
consideration of the evidence and the report of the inspection entered judgment
for plaintiff.&nbsp; We may mention that
although there was a claim for damages in addition to the claim for a
declaration of title to, and ownership of, the cocoa farm, the court did not
award any damages, but made the following order: "Plaintiff to hold
possession of the disputed area as her family property originated by late Kwasi
Kissi of Bepong".<o:p></o:p>&nbsp;In the course of the proceedings evidence was
adduced suggesting that the Beponghene, one of the defendant's witnesses, and
his elders had arbitrated in the matter between the parties. This apparently
refers to the meeting of the Odikro (Beponghene) and his elders at which the defendant
admitted that he had trespassed on the plaintiff's portion of the forest and
was ordered to pay £G16 as pacification.&nbsp;
In our view there is no evidence on </main>