NTOAH vs. APPEADU [1984]DLCA950

Date	1984-05-09
Suit No.
Citation No.	[1984]DLCA950

ADADE J.S.C

EDUSEI JA

MENSA BOISON J.A.

C. F. HAYFRON-BENJAMIN FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1984]DLCA950
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NTOAH<o:p></o:p>

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

[1984-86] 1 GLR 45<o:p></o:p>

DATE:
9 MAY 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">

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

NO
APPEARANCE BY OR ON BEHALF OF 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">

ADADE J.S.C., EDUSEI AND MENSA BOISON JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADADE J.S.C.<o:p></o:p>This case
comes to us on appeal from the High Court, Kumasi (coram Roger Korsah J.). The
suit had originally been heard and determined by the District Court Grade II,
Effiduasi.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff sued for a declaration that she is the owner of a piece of land at
Odaho. She says the land belonged to her grandmother, Ama Nyarko. On her death
it passed to her mother, Akosua Konadu. She has succeeded Akosua Konadu, and
has by virtue of the succession become entitled to the land. She had been in
possession of the land for about ten years. In 1976 the defendant trespassed
onto the said land, and she sued. In an affidavit filed on 8 June 1976 the
defendant claims the said land as his property, “being given to [him] by Nana
Odahohene.”<o:p></o:p><o:p>&nbsp;</o:p>After
hearing evidence and inspecting the area the district court magistrate, his
Worship Tekyi Mensah, dismissed the plaintiff‘s claim and entered judgment for
the defendant. Her appeal to the High Court, Kumasi was also dismissed. In this
court the plaintiff‘s case has been argued substantially on the ground that the
decision of the High Court, like that of the district court, is against the
weight of the evidence.<o:p></o:p><o:p>&nbsp;</o:p>The
judgment of the district magistrate is significant for its brevity. After a
short resume of the evidence of the various witnesses, the honourable
magistrate tersely concluded:<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">“After
considering the evidence led by both parties and their witnesses as well as the
result of the inspection of the area in dispute, I do not accept the
plaintiff’s claim of ownership in respect of the land which is the subject
matter of this action and accordingly dismiss her claim with costs...”<o:p></o:p><o:p>&nbsp;</o:p>There is
nothing in the judgment to show that the magistrate considered the evidence of
the parties and their witnesses; which statements he believed and which he did
not believe. He made no findings of fact at all. This court therefore has to
come to its own conclusions on the facts if there is material on record from
which this can be done. Otherwise the case has to go back to be tried de novo.
Nor is much help provided by the inspection report which the magistrate
prepared. The report merely recites the boundary features allegedly shown by
the parties, but in the absence of a plan one can hardly make anything out of
the report.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff led evidence to show that the land had been her ancestral property
which had descended to her through her grandmother, Ama Nyarko, and mother,
Akosua Konadu. To prove possession she called Emmanuel Kwasi Abreshie alias
Kwasi Emma, a palmwine tapper. He had felled palm trees on the land in 1970,
1972 and 1976, and on each occasion had paid the fees involved to the
plaintiff. At the inspection the said Kwasi Emmanuel showed the remains of the
palm tree he had felled; these were all “within the area which the plaintiff
claims”, according to the inspection report.<o:p></o:p>