BRESSAAH vs. ASANTE AND ANOTHER [1965]DLSC1788

Date	1965-03-08
Suit No.
Citation No.	[1965]DLSC1788

MILLS-ODOI JSC

OLLENNU JSC

BRUCE-LYLE J.S.C.

OWUSU-AFRIYIE FOR THE APPELLANT.

D. S. EFFAH FOR THE RESPONDENTS.

[1965]DLSC1788
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													<main id="main" class="content" style="min-height: 60rem" >BRESSAAH <o:p></o:p>vs.<o:p></o:p>&nbsp;ASANTE AND ANOTHER <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 117<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:
8 MARCH 1965.<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">

OWUSU-AFRIYIE FOR THE APPELLANT.<o:p></o:p>

D. S. EFFAH FOR THE RESPONDENTS.<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">

MILLS-ODOI, OLLENNU AND BRUCE-LYLE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MILLS-ODOI J.S.C.<o:p></o:p>This is
an appeal from the judgment of Apaloo J. (as he then was) sitting in the High
Court, Kumasi. The action resulting in this appeal was instituted by the
plaintiffs-respondents (hereinafter shortly referred to as the plaintiffs)
against the defendant-appellant (hereinafter referred to as the defendant)
claiming for themselves and as representing the other members of the Roman
Catholic Church of Juaso a declaration of title to a piece of land, a site plan
of which was attached to the writ, an injunction to restrain the defendant from
building on the said land, and damages for trespass.<o:p></o:p><o:p>&nbsp;</o:p>The case
for the plaintiffs is that about the year 1928 the land in dispute was granted
to them by the Juasohene, Nana Kofi Danso, for the purpose of building thereon
a Roman Catholic Church; but before any aseda or customary drink could be paid
or given to the Juaso stool to validate the grant Nana Danso died. He was
however succeeded by Nana Kwabena Agyei to whom the plaintiffs performed the
necessary custom and the grant which was otherwise inchoate became perfect.
Within a period of two years after the perfection of the grant, the plaintiffs
built a Roman Catholic Church on a portion of the land in dispute.<o:p></o:p><o:p>&nbsp;</o:p>In 1959,
the defendant, without any leave and licence of the plaintiffs or any member of
the Roman Catholic Church, trespassed upon and started erecting a building on a
portion of the land in spite of vehement protests and repeated objections from
the plaintiffs. For these reasons the plaintiffs instituted this action against
the defendant.<o:p></o:p>The
defendant admitted the entry upon the land in dispute and the construction
thereon of the building but denied that that land was granted to the plaintiffs
by the Juaso stool. He contended that even if a grant was made to the
plaintiffs by the said stool it was void as against his family, inasmuch as the
disputed land was and still is the ancestral land of his family. He further
contended that the plaintiffs were estopped by conduct from impugning his right
to build on the land in dispute, because the question whether or not he was
entitled to build on the said land was at one time the subject-matter of an
arbitration conducted by the Juasohene in which he was adjudged entitled to
erect thereon the said building.<o:p></o:p><o:p>&nbsp;</o:p>The
cardinal or primary issues of fact, therefore, which arose for determination
are: <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">(a)
whether the Juaso stool made a valid grant of the land in dispute to the
plaintiffs and, if so, whether that grant is binding on the defendant’s family;
and <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">(b) Whether
the dispute has been arbitrated upon by the Juasohene?<o:p></o:p><o:p>&nbsp;</o:p>After
hearing evidence the learned trial judge, in a well reasoned judgment, decided
the issues in favour of the plaintiffs in the following words:<o:p></o:p>“I find
that the land in dispute was validly granted to the plaintiffs for the purpose
of erecting thereon a Roman Catholic Church about 35 years ago. I am satisfied
that at the date of the said grant, it was vacant unappropriated land which was
vested in the Juaso stool. I find it proved that the defendant in or about 1959
wrongfully entered onto a portion of the said land and commenced and completed
thereon the erection of a building despite protests and objections from the
plaintiffs. I accordingly find that the meeting at the Juasohene’s pal</main>