NYAASEMHWE AND ANOTHER vs. AFIBIYESAN [1977]DLCA1374

Date	1977-06-21
Suit No.
Citation No.	[1977]DLCA1374

ARCHER JA

ANIN JA

HAYFRON—BENJAMIN J.A.

JAMES MERCER FOR THE APPELLANTS.

AMUA-SEKYI FOR THE RESPONDENT.

[1977]DLCA1374
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >NYAASEMHWE AND ANOTHER <o:p></o:p>vs. <o:p></o:p>AFIBIYESAN <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977]2 GLR 452<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:
21 JUNE 1976<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">

JAMES MERCER FOR THE APPELLANTS.<o:p></o:p>

AMUA-SEKYI 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">

ARCHER, ANIN AND HAYFRON—BENJAMIN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.A<o:p></o:p>This is
an appeal by the defendants from the concurrent judgments of two lower courts
in favour of the plaintiff in a suit for a declaration of title to a parcel of
land, two poles square, at Asafoa Gyintu, and for ¢250.00 damages for the
defendants’ “wrongful entry and cultivation of food crops upon the said land.”
On the issue of title, the trial magistrate held that the plaintiff and his
witnesses “had proved beyond reasonable doubt that the disputed land was owned
by the plaintiff’s ancestors”. He also held that there had been a valid
arbitration into the land case between the parties which ended in favour of the
plaintiff; but that “what disturbed the mind of the court was the absence of
the defendants at the inspection.”<o:p></o:p><o:p>&nbsp;</o:p>The doubt
entertained by the magistrate about the legal effect of the defendants’ absence
at the inspection of the locus in quo was dispelled by the learned judge of the
Sekondi High Court who heard the first appeal of the defendants. In a two-page
judgment devoted exclusively to the arbitration issue, he held that the
magistrate rightly concluded that there had been a valid arbitration, and the
defendants were consequently estopped from relitigating the case. The learned
judge’s decision has been attacked in this appeal on two grounds argued before
us by Mr. Mercer, learned counsel, for the defendants. The first ground was
that:<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
plaintiff had no cause of action in that according to his own evidence and that
of his witnesses, the land in dispute had been granted by his predecessor to
the late Busumprah whom the defendants had succeeded and inherited and the
defendants were therefore vested with possessory or usufructuary title which
they could maintain against their grantor.”<o:p></o:p><o:p>&nbsp;</o:p>The gist
of the plaintiff’s case was that the disputed land was acquired by his
ancestors and that he succeeded his uncle Ntrama who died about ten years
before the action and thereby became the owner in possession of the land. He
permitted the late Busumprah, to farm on the land. Though he knew that defendants
are related to the late Busumpra, nevertheless he had not permitted them to
farm on the land. When the defendants trespassed upon the land, he lodged a
formal complaint against them before the chief of Hotopo, who in an arbitration
award found in the plaintiff’s favour.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s nephew and third witness, Ejokosua, corroborated the plaintiff on
his allodial title and gave few details about the licence given to the late
Busumprah to farm on the land. He claimed to have been present on the occasion,
some three years earlier, when Busumprah approached the plaintiff for
permission to farm on his land at Asafoa Gyintu. His uncle agreed to the
request made and Busumprah “paid the sum of 5s. (50p) for Mfufudzi rum drink.
The plaintiff however returned it to Busumprah as Ebukan.” Though Ejokosua
explained under cross-examination that “the payment of the 50p represented that
permission had been granted to Busumprah to cultivate the plaintiff’s land,”
yet he did not explain why it was refunded to the plaintiff, nor the meaning of
“Ebukan.” Neither the plaintiff nor Ejokosua spelled out the duration or type
of licence given to the late Busumprah; for example they did not disclose
whether it was a sowing tenure limited in duration to one season and not
heritable or whether it was an annual tenure, i.e. from year to year and
capable of being enjoyed until terminated or enduring for so long as the
licensee or his successor recognised and did not dispute the title of the
grantor. Again, the evidence adduced by and for the plaintiff did not indicate
whether any rent, toll or tribute was payable periodically or otherwise in
respect of the licence granted. No financial or share-cropping arrangements
were disclosed. Neither an abusa nor an abunu tenancy was alleged to have been
concluded between the parties. In short, the evidence was completely silent
about the type of licence or,customary tenancy that was created in favour of
the late Busumprah, except for an oblique allusion in the plaintiff’s evidence
to “Busumprah having asked for a piece of land to farm cassava crops.” The
plaintiff for his part did not specify the nature or terms of the licence he is
in fact granted in response to Busumprah’s said request.<o:p></o:p><o:p>&nbsp;</o:p>