BADU vs. BI [1962]DLSC1389

Date	1962-05-28
Suit No.
Citation No.	[1962]DLSC1389

KORSAH JSC

C.J. JSC

VAN LARE JSC

ADUMUA-BOSSMAN J.S.C.

A. ASAFU-ADJAYE WITH HIM PREMPEH FOR THE DEFENDANT APPELLANT.

NO APPEARANCE FOR THE PLAINTIFF RESPONDENT.

[1962]DLSC1389
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">BADU<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">BI <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1962] 1 GLR 406<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 28TH MAY, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

A.
ASAFU-ADJAYE WITH HIM PREMPEH FOR THE DEFENDANT APPELLANT.<o:p></o:p>

NO
APPEARANCE FOR THE PLAINTIFF RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

KORSAH, C.J., VAN LARE AND
ADUMUA-BOSSMAN, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
ADUMUA-BOSSMAN J.S.C.<o:p></o:p>The action resulting in this appeal was commenced by the
respondent before this court in the Ahafo/Ano Local Court “C” where by her writ
of summons she claimed in effect £G50 damages for trespass to a cocoa farm
situate at a place called Kwame-Kyemkrome on Afarihene’s stool land described
as “having boundaries with the properties of Kwasi Manu, forest and a farmstead
of Kwasi Manu.”<o:p></o:p>The appellant before this court counterclaimed for (1) declaration
of ownership, (2) £G50 damages for trespass and (3) injunction to restrain
interference with his right and title in respect of the same farm.<o:p></o:p><o:p>&nbsp;</o:p>The parties will be referred to shortly as the plaintiff and
defendant respectively. The trial court gave judgment for the defendant
dismissing the plaintiff’s claim. On appeal by the plaintiff to the
Asantehene’s “A2” Court, that court allowed the appeal and set aside the
judgment of the trial court. The court did not, however, by what would seem to
be inadvertence, give judgment for the plaintiff upon her claim. The defendant
appealed to the Land Court, Kumasi, but the appeal was dismissed, and he has
brought this further appeal to this court. The judgment of the Land Court was
just an adoption of the decision of the Asantehene’s Court, so this appeal
resolves itself into a question of competition between the decision of the
Asantehene’s Court and that of the trial court; or perhaps it would be more
accurate to say that the determination of the appeal depends upon a
consideration of the question as to whether or not there was any good or
sufficient cause or reason for the Asantehene’s Court as an appellate court,
interfering with the decision of the trial court. It falls therefore firstly to
consider the proceedings before the trial court and the judgment.<o:p></o:p>The plaintiff’s case was that one Kofi Asiwubuoo acquired forest
land at Kwame-Kyemkrome from the Afarihene’s stool and cultivated part of it
and planted cocoa and foodstuffs before his death, after which he was succeeded
by his nephew Kwasi Manu (or Menano or Amenano). This successor was the
plaintiff’s husband, and he having cultivated a portion of forest, gave or
granted a portion of the cultivated area or farmstead to the plaintiff for his
infant son Kwabena Amuah by her, whereupon she planted cocoa and foodstuffs in
it. The portion granted formed boundary with land in the occupation of her
husband, the boundary being marked by “a timber tree, thence to Odum tree,
thence to Owawa tree, and thence to the farmstead of Menano (decd.)”. She left
the farm for about three years and when on her return she went to cultivate the
same, the defendant came along and took steps to restrain her from further
entry into the farm. The matter eventually came before an arbitration presided
over by one Kwabena Gyau, and there Yaw Pem, successor of Kwasi Menano as head
of Asiwubuoo’s family, was called to state what he knew about the matter, and
he stated that he knew a grant was made to the plaintiff but did not know the
farm; he knew also that a grant was made to the defendant but did not know that
farm also. Eventually an inspection was directed and commenced but the
defendant swore “Ntamkese” (the Ashanti Great Oath) and thereby prevented the
inspection from continuing to completion. The plaintiff did not respond to the
oath, but later sent labourers to the farm to cultivate the same, when the
defendant got her arrested, and on her release she instituted the action
resulting in this appeal.<o:p></o:p><o:p>&nbsp;</o:p>She called as her first witness Yaw Pem, whose short material
evidence was the following:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“My elder brother Kofi Asiwobuoo (decd.) acquired land at
Kwame-Kyemkrome. He gave part of the cocoa farm cultivated to the defendant.
After the death of Kofi Asiwobuoo, Amenano succeeded him. The successor Amenano
allotted part of the farmstead to the plaintiff. Amenano informed the whole
family of the gift. I succeeded Amenano (decd.) ... When I intended to view the
farms of the deceased Amenano I fell ill. Later on I was called by Kwabena Gyau
on the dispute of the same property of the plaintiff and the defendant. I told
the arbitrators that I do not know the boundary of the disputed farm. The land
was not viewed when the defendan</main>