PRAKA vs. KETEWA [1964]DLSC1947

Date	1964-06-29
Suit No.
Citation No.	[1964]DLSC1947

OLLENNU JSC

ACOLATSE JSC

APALOO J.S.C.

G. D. AMPAW FOR THE APPELLANT.

D. S. EFFAH FOR THE RESPONDENT.

[1964]DLSC1947
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													<main id="main" class="content" style="min-height: 60rem" >PRAKA <o:p></o:p>vs. <o:p></o:p>KETEWA <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 423<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
29 JUNE 1964.<o:p></o:p>

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

G. D. AMPAW FOR THE APPELLANT.<o:p></o:p>

D. S. EFFAH FOR THE RESPONDENT.<o:p></o:p>

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

OLLENNU, ACOLATSE AND APALOO JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. This is an appeal from a judgment
of Bruce-Lyle J. delivered at Sunyani on 24 January 1963 which reversed a
judgment of the Brong/Ahafo Central Local Court Division II. The proceedings
commenced with a claim filed in the local court by the plaintiff, hereinafter
called the appellant, for trespass to a portion of a farm situate at Mampong,
Nkwanta, but the whole issue boiled down to a boundary dispute between a farm
of the appellant and an adjoining farm owned by the defendant, hereinafter called
the respondent.<o:p></o:p><o:p>&nbsp;</o:p>The facts
are very simple. The respondent was the wife of one Kwame Dapaah deceased. She
and her said husband made separate farms which formed boundary with each other.
Kwame Dapaah died about five years prior to the commencement of the dispute and
was succeeded by one Kwadwo Nsiah, the first witness for the respondent. After
Dapaah’s death, the respondent together with the said Kwadwo Nsiah, Dapaah’s
successor, and other members of Dapaah’s family went over all the boundaries of
Dapaah’s farm and she agreed with the family on the boundary between her farm
and the farm of Dapaah which Kwadwo Nsiah had inherited. Kwadwo Nsiah later
pledged the farm he had succeeded to to one Amma Donkor, the second witness for
the appellant, and took the said pledgee Amma Donkor to the farm and pointed
out all the boundaries of it to her. Kwadwo failed to repay the loan at the
agreed time and in due course Amma sued and recovered judgment against him; she
then attached and sold the farm at a public auction under a writ of fi. fa. in
execution of her said judgment. The appellant was declared the purchaser at the
sale; he went into possession of the farm thereafter, and was in possession at
the date he issued the writ of summons.<o:p></o:p>Some time
ago, the respondent laid claim to a small portion of the farm in the
appellant’s possession; this, according to the appellant, happened about three
years before the proceedings in the local court. The appellant resisted the
claim, and continued to harvest cocoa from the farm as a whole; in consequence
of that, the respondent lodged a complaint with the local council police
against the appellant that he had stolen cocoa from her farm. The local council
police investigated the matter but did not prosecute the appellant. Finding that
the local council police could not help her, the respondent entered upon the
portion she claims, and plucked some cocoa therefrom; that action of hers
constituted the cause of action in the instant case.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant gave evidence of the boundary shown to him by Amma Donkor, his second
witness, the execution creditor; this was corroborated by the said Amma Donkor.
The respondent also gave evidence of the boundary and called Kwadwo Nsiah to
support her, but unfortunately for her, the evidence of Kwadwo Nsiah did not
corroborate the respondent’s evidence. The local court magistrate inspected the
farm. While at the inspection the appellant and his witnesses were able to
point out to the local court magistrate the one boundary they each gave
evidence of, and pointed out distinctive features on it; the said Nsiah and the
respondent on the other hand disagreed; in fact Nsiah was unable to point out
any intelligible boundary.<o:p></o:p><o:p>&nbsp;</o:p>The
boundary which the local court was called upon to determine is the boundary which
existed between the farm made by Kwame Dapaah now owned by the appellant on the
one hand and the farm made by the respondent on the other. Upon the evidence
the decision involved two stages, (1) whether the boundary described by Amma
Donkor, the second witness for the appellant, is the one which Kwadwo Nsiah,
the respondent’s first witness, pointed out to her at the time of the pledge
which took place shortly after he had succeeded to the farm, and if the answer
to (1) is in the affirmative, (2) whether that is the boundary which the
respondent and Kwadwo Nsiah agreed upon soon after the death of Kwame Dapaah.<o:p></o:p><o:p>&nbsp;</o:p>The first
point is a question of oath of Amma Donkor and the oath of Kwadwo Nsiah. The
local court magistrate, for good reasons which are apparent on the face of the
record, was not at all impressed with the credibility of Kwadwo Nsiah. He was
however </main>