OBOAGYAN vs. GOMOAH [1979]DLHC1093

Date	1979-10-25
Suit No.
Citation No.	[1979]DLHC1093

OSEI-HWERE J.

O. K. SAMPSON FOR THE APPELLANT.

J. D. HAMMOND FOR THE RESPONDENT.

[1979]DLHC1093
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													<main id="main" class="content" style="min-height: 60rem" >OBOAGYAN <o:p></o:p>vs. <o:p></o:p>GOMOAH<o:p></o:p>[HIGH COURT, CAPE COAST] <o:p></o:p>[1978] GLR 664<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:
25 OCTOBER 1979<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">

O. K. SAMPSON FOR THE APPELLANT.<o:p></o:p>

J. D. HAMMOND 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 1.0pt 0in">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>This is
an appeal against the judgment of the District Magistrate Court Grade II,
Ajumako, which dismissed the plaintiff’s action and entered judgment for the
defendant with ¢60 costs. The plaintiff had sued the defendant in the court
below for trespass and for perpetual injunction. At the trial the plaintiff
called three witnesses and the defendant two witnesses. The defendant also
tendered certain documents of title to various portions of the land. After both
parties had closed their case the court moved to inspect the locus. The trial
magistrate dismissed the plaintiff’s case because he was satisfied “from the
evidence adduced in court and the inspection at the locus in quo coupled with
the contents of the documents on the land that the defendant had committed no
trespass.”<o:p></o:p><o:p>&nbsp;</o:p>The only
ground of appeal filed on behalf of the plaintiff is the common ground that the
judgment cannot be supported having regard to the evidence. When he came to
argue this ground the plaintiff’s counsel contended that the trial magistrate
erred in relying upon his inspection report as it offended the practice
direction laid down by the Court of Appeal on 10 June 1959 reported in Practice
Note (Gblevi Family v. Amanie) [1961] 1 G.L.R. 1, C.A. Counsel also argued that
the documents of title tendered were irrelevant to the issue of trespass vel
non. He sought to show that whilst the plaintiff had sufficiently proved the
defendant’s trespass, the defendant on the other hand, tried to deny that the
plaintiff owned any land in the area. Arguing in support of the judgment the
defendant’s counsel also contended that the plaintiff bore the burden of
proving his title which he failed to discharge as he called none of his
boundary owners. Counsel then sought to justify the trial magistrate’s
rejection of the evidence of the plaintiff and his witnesses. Counsel further
argued that the procedure adopted in regard to the inspection was not fatal and
that if the evidence about the inspection was left out that would still leave
the decision impeccable.<o:p></o:p><o:p>&nbsp;</o:p>The
injunction prayed for by the plaintiff in his writ of summons is only one
intended to restrain “the defendant his servants, workmen and agents from
entering the plaintiff’s said meadow or from destroying or otherwise injuring
the hedge or demarcation on south side thereof or from in any way interfering
with the plaintiff’s use and enjoyment of the said meadow.” The plaintiff then
described the said meadow as bounded on one side by the property of the late
Atseaserew, on the other side by the property of the defendant and on the other
side by the property of late Abanor, Odikro of Akotsi, and on the other side by
the property of Kojo Acquah. Even though by his claim for an injunction the
plaintiff thereby also claimed title, title was not made an issue at the trial
and the plaintiff had, therefore, no need to prove title to the general mass of
his land: see Anto v. Mensah (1957) 3 W.A.L.R. 218, C.A. This was especially so
as the dispute mainly concerned the starting point and direction of their
common boundary as well as the determination of the issue as to whether or not
the defendant had crossed this common boundary. It was, therefore, not fatal
that the plaintiff failed to call all his boundary owners.<o:p></o:p><o:p>&nbsp;</o:p>To help
the court below arrive at a decision it found it necessary to visit the locus.
As noted before, the court’s reliance on what took place at the inspection has
become the subject of attack as the inspection failed to comply with the
procedure laid down in Gblevi Family v. Amanie and reported as the Practice<o:p></o:p><o:p>&nbsp;</o:p>Note
(supra). The gist of that procedure is that all those persons who, at the
inspection, pointed out such places and things which are material to the case
must be put in the witness-box, when the court re-assembles and, on oath, state
what part they took in the visit to the locus and what each did.<o:p></o:p><o:p>&nbsp;</o:p>