KOFI vs. KUMANSAH [1984]DLCA931

Date	1984-11-07
Suit No.
Citation No.	[1984]DLCA931

FRANCOIS JA

COUSSEY JA

ABBAN J.A.

E.B. GAISIE FOR THE APPELLANT.

KWESI EPTON FOR THE RESPONDENT.

[1984]DLCA931
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KOFI <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 116<o:p></o:p>

DATE:
7 NOVEMBER 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

E.B.
GAISIE FOR THE APPELLANT. <o:p></o:p>

KWESI
EPTON 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">

FRANCOIS, COUSSEY AND ABBAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>Abban
J.A. delivered the judgment of the court. The appellant sued the respondent in
the District Court Grade II, Shama in respect of a piece of land situated and
lying at Shama. The trial district court after the hearing entered judgment for
the appellant. On appeal to the High Court, Sekondi by the respondent, the said
judgment was reversed and judgment was entered for the respondent. It is
against the judgment of the High Court that the appellant has appealed.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant’s case was that he gave the land to one Afadu for farming purposes
when the land was an outskirts land. Afadu cultivated coconut and plantain
farms on it. Later when the town of Shama began to develop, the land became an
urban land, and it became useful for building purposes only. The appellant said
he therefore sold portions of the land as building plots to about five
purchasers, one of whom was Egya Kobena Onyewhee. The latter went on to the
land and started to construct a house thereon. But the respondent prevented him
from so doing. Egya Onyewhee reported the respondent’s conduct to the
appellant. The appellant got in touch with the respondent. Both the appellant
and the respondent later went to the disputed land in order to show their
respective boundaries. But in the long run the parties could not agree on any
of the boundaries. According to the appellant, on the suggestion of the
respondent it was agreed that the dispute was to be settled amicably later on
and the parties left the land.<o:p></o:p>The
appellant said the settlement never came on but the respondent went to the land
and unilaterally fixed his boundary pillars. It was this conduct of the
respondent that precipitated the action. The appellant’s writ reads:<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 claims from the defendant all that piece or parcel of land situated
and being at Saanasi, Shama, bounded on the north by Anona family, on the south
by Kofi Badu’s family, on the east by Ekitsi’s family and on the west by River
Trapo. That the land being bona fide property of the plaintiff, the defendant
without the knowledge and consent of the plaintiff entered the said land and
put up cement pillars indicating that the said land is his.”<o:p></o:p><o:p>&nbsp;</o:p>The
respondent, however, contended that the disputed area formed part and parcel of
his ancestral land and his family had been farming on it from time immemorial
when it was an outskirts land. But since the land became town land and was no
longer suitable for farming, portions of the land were allocated by him to
members of his family who had built houses thereon. The respondent said he also
granted a portion of it to the Methodist Church of Shama. But the church
encroached on other portions of his land which had not been granted to the
church and in order to prevent further encroachment by the said church, the
respondent caused a plan of the whole area (exhibit 1) to be made and this was
about five years before the dispute arose.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent maintained that the pillars he fixed were on the correct boundary
line between his land and that of the appellant and that they were not fixed on
the appellant’s land. He however admitted that he prevented the appellant’s
grantees from putting up their buildings because the portions which the
appellant granted to those persons were within his (respondent’s) land.<o:p></o:p><o:p>&nbsp;</o:p>It is
significant to note that there were no pleadings in the case quite apart from
the writ of sum</main>