ADUBIA vs. BOANYO [1966]DLHC1640

Date	1966-06-03
Suit No.
Citation No.	[1966]DLHC1640

HAYFRON-BENJAMIN J.

HAYFRON-BENJAMIN FOR THE APPELLANT.

ANSAH-TWUM FOR THE RESPONDENT.

[1966]DLHC1640
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													<main id="main" class="content" style="min-height: 60rem" >ADUBIA<o:p></o:p>&nbsp;vs.<o:p></o:p>&nbsp;BOANYO <o:p></o:p>[HIGH COURT, SUNYANI]<o:p></o:p>[1966] GLR 433<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:
3 JUNE 1966.<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">

HAYFRON-BENJAMIN FOR THE APPELLANT.<o:p></o:p>

ANSAH-TWUM 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">

HAYFRON-BENJAMIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF HAYFRON-BENJAMIN J.<o:p></o:p>This
appeal comes from the Tano Local Court, and it is against a decision of the
magistrate sitting at Duayaw Nkwanta which he gave on 28 December 1965. He
entered judgment for the plaintiff declaring him the owner of the land in
dispute. The plaintiff claimed by his writ a declaration of title to all that
piece and parcel of land situate, being and lying at a place known as Apatasu
in front of the plaintiff’s cocoa farm, a portion of which has been cultivated
by the defendant and which forms common boundaries with the defendant’s
property and Yaw Mensah’s property. This farm is situate on Duayaw Nkwanta
stool land. He also claimed damages for trespass, but none was awarded. The
plaintiff, a student and a young man, customarily succeeded his uncle in 1956.
His case is that as he was too young to manage the estate, his father was
empowered by the family to manage the estate on his behalf.<o:p></o:p><o:p>&nbsp;</o:p>The
estate consisted of a cocoa farm with a cottage, and adjoining forest land.
This cocoa farm had been cultivated by the plaintiff’s uncle, who was the
husband of the defendant. The said uncle had however made another farm with the
aid of his wife, the defendant, at another place called Bisigya. She however,
was staying at the same village with her husband. About six months prior to the
commencement of the suit, the plaintiff’s father informed him that one Ahenkan
had trespassed and weeded a portion of the forest land adjoining the
plaintiff’s uncle’s farm by permission of the defendant. He the plaintiff, went
to the spot, and found that a portion of the forest had been cultivated. He
questioned the defendant, who claimed that that portion was hers. He therefore
complained to the relatives of the defendant, who heard their respective
stories, inspected the land, and decided that the land should be shared. Both the
plaintiff and the defendant disagreed with this, and the plaintiff reported the
matter further to the Omanhene of Duayaw Nkwanta, but the defendant refused to
attend. The plaintiff therefore sued the defendant. There was another attempt
to settle the matter; according to the plaintiff:<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">“The
matter was gone into and the arbitrators chose to view the place in dispute.
All of us went to the place and the arbitrators arrived at the conclusion that
the defendant had weeded my area. They suggested to demarcate a portion to the
defendant because she had cultivated the forest land. I consented to the
suggestion. The defendant also agreed. The defendant later said that she was
not satisfied with the decision of the arbitrators and therefore I was
compelled to pursue the matter.”<o:p></o:p><o:p>&nbsp;</o:p>It is
important to note, that nowhere in his evidence did the plaintiff testify to
any gift from his uncle to the defendant. He was too young. It was left to his
two witnesses to give evidence as to the gift. The first was the Krontihene of
Duayaw Nkwanta. He is the father of the deceased Kwabena Donkor. There is
nothing in his testimony showing that he is in the slightest way acquainted
with the area in dispute. His son told him of his intended gift to his wife,
the defendant, and he accepted the aseda which the defendant paid for the gift.
He also deputed Kwame Dapaa, Kwame Anane and Adwoa Adae the sister of the
deceased to inspect the portion gifted to the defendant. Adwoa Adae was called
and she supported the Krontihene’s evidence that she went to see the area which
the deceased gave to the defendant. She claimed to know the place very well.
The deceased, she testified, cut a line through the forest land and marked
trees. This is the sum total of the evidence for the plaintiff who seeks a declaration
of his title. I would not have hesitated to allow the appeal and dismiss his
claim, if his counsel had not put forward a brave and subtle submission on the
onus of proof.<o:p></o:p><o:p>&nbsp;</o:p>The
submission is shortly this: that where the defendant’s case admits the
plaintiff’s original title, but contends that the plaintiff has at a certain
point in time divested himself of his title then it is for the defendant to
establish and prove the divestative act. In this case, he contends that the
defendant admits that the whole farm originally belonged to the plaintiff’s
predecessor in title, and that a portion of it was given to her as a gift. It
is therefore incumbent for her to prove the gift, and in so doing she must of
necessity prove the extent of the land comprised in the gift. Support for this
contention, if indeed authority be required, is found in the decision of the
West African Court of Appeal in the case of Apapam Stool v. Attaa.1<o:p></o:p>