AGYEMAN VII vs. NKUM AND ANOTHER [1980]DLHC2080

Date	1980-06-19
Suit No.
Citation No.	[1980]DLHC2080

SARKODIE J.

JAMES MERCER FOR THE PLAINTIFF.

WILLIE AMARTEIFIO FOR THE DEFENDANTS.

[1980]DLHC2080
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													<main id="main" class="content" style="min-height: 60rem" >AGYEMAN VII <o:p></o:p>vs. <o:p></o:p>NKUM AND ANOTHER <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1987-88] GLR 520<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:
19 JUNE 1980<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 PLAINTIFF. <o:p></o:p>

WILLIE AMARTEIFIO FOR THE DEFENDANTS.<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">

SARKODIE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SARKODIE J.<o:p></o:p>The
plaintiff claims against the defendants a declaration of title to a piece of
land with a cocoa farm thereon situate at Mpokuampa, Bibiani and commonly
called “Sahuma.” According to him he shares boundaries on one side with Ekua
Seguah, and on another with Kwabena Ennin. On the third side the land is
bounded by the farm of Kwaku Duro and on the fourth side by the motor road from
Bibiani to Abrofrem. Also he claims an order for possession, perpetual
injunction, ¢20,000 damages for trespass and an order for an account of cocoa
proceeds from 1969 to 1978.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff, the Omanhene of Lower Dixcove in the Western Region, is the
successor of two of his late uncles, Nyame Bobuo and Kwesi Bomua who, according
to the plaintiff settled at Bibiani about 1910, obtained the land described
above from the chief of Nkawie and in about 1912 made a cocoa farm on it. Since
the death of the last of the two uncles in 1941, the plaintiff says he has been
in possession and control of the said farm and has been paying tribute to the
chief of Nkawie. The plaintiff alleges that in 1969 the second defendant drove
the plaintiff’s caretakers and labourers from the farm, occupied and continues
to occupy the said farm to the detriment of the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants deny that the plaintiff is entitled to his claim and say that the
said land was never occupied by Nyame Bobuo and Kwesi Bomua in 1912 or at any
other time. The first defendant says he acquired title to the land in dispute
by succession and he traced this through his ancestors Kobina Nketsia and Kofi
Sekyi who developed the land into a cocoa farm. That Kofi Sekyi was survived by
Kobina Nketsia. Upon the death of Kobina Nketsia he was succeeded by Kwame
Bentum, the immediate predecessor of the first defendant. In 1947 Kwame Bentum
obtained a loan of £15 from one Koomson, the immediate predecessor of the
plaintiff in this case and in exchange, the said Bentum pledged the cocoa farm
to Koomson for six years. Since the death of Kwame Bentum, the first defendant
has made every effort to redeem the farm but the plaintiff has refused and says
the farm is his own property. Owing to the attitude of the plaintiff, the first
defendant entered the farm, took possession of it and put the second defendant
in charge. The first defendant in his counterclaim asks for a declaration of
title to the land in dispute an order for possession, perpetual injunction and
¢1,000 damages for trespass.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff claims a declaration of title to the land in dispute, trespass and
perpetual injunction. The defendant has challenged the plaintiff’s title to the
land in dispute. This puts into issue the title of the plaintiff: see Kponuglo
v. Kodadja (1933) 2 W.A.C.A. 24. The plaintiff must therefore succeed on the
strength of his case. The plaintiff himself is not resident at Bibiani and therefore
had to rely on witnesses whom he put forward as boundary owners. Apart from the
evidence of these persons the plaintiff himself did not seem to know the land
in dispute.<o:p></o:p><o:p>&nbsp;</o:p>In 1969
the plaintiff instituted an action in the District Court, Bibiani against the
defendant claiming title to the very parcel of land the subject-matter in the
present suit. That case was struck out for want of prosecution and ¢60 costs
were awarded against the plaintiff. Following submission by counsel for the
defendants as to the value of the land the court ruled it had no jurisdiction
to hear the case. In that case, as appears in exhibit 1, the plaintiff gave the
names of Madam Afua Tawiah, Kwasi Bi, Andrews Akoto as his boundary owners. In
cross-examination in this case he denied ever knowing these persons. He also
denied he shared boundaries with them. The writ in this case was issued in
1969. In it, Afuah Tinwah, Kwasi Bi and Andrews Akoto were put forward as
boundary owners. Summons for directions were taken in 1973. In 1974 the
plaintiff amended the indorsement on his writ and gave as his boundary owners
Ekua Acquah, Kwabena Ennin and Kwaku Duro, all persons he had not mentioned
before.<o:p></o:p><o:p>&nbsp;</o:p>