NYIKPLORKPO vs. AGBODOTOR [1987]DLCA790

Date	1987-05-09
Suit No.
Citation No.	[1987]DLCA790

ABBAN JA

OSEI-HWERE JA

AMPIAH J.A.

KWAMI TETTEH (WITH HIM ANYADE) FOR THE APPELLANT.

OWUSU-YEBOAH FOR THE RESPONDENT.

[1987]DLCA790
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													<main id="main" class="content" style="min-height: 60rem" >NYIKPLORKPO <o:p></o:p>vs. <o:p></o:p>AGBODOTOR <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 165<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
9 APRIL 1987<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">

KWAMI TETTEH (WITH HIM ANYADE) FOR THE APPELLANT. <o:p></o:p>

OWUSU-YEBOAH 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">

ABBAN, OSEI-HWERE AND AMPIAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>On 26
January 1984 the Circuit Court, Ho entered judgment against the
defendant-appellant (hereinafter referred to as the defendant) in a land suit.
It is from this judgment that the defendant appealed.<o:p></o:p>The
plaintiff-respondent (hereinafter referred to as the plaintiff) had sued the
defendant for a declaration of title to a piece of land at Mafi Nukportoe, the
recovery of possession of the said land, damages for trespass and perpetual
injunction. The plaintiff had brought the action in his capacity as the head of
Gle family, and his case was that a maternal ancestor of his, called Adedeke,
owned a large tract of land. Adedeke granted a portion of that land to one Gle.
This Gle happened to be the plaintiff’s paternal ancestor.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff alleged that Gle, his said paternal ancestor, during his lifetime
gave permission to an ancestor of the defendant, by name Tsirinyi, to farm on a
“small portion” of that land which had been granted by Adedeke to Gle. It was
the contention of the plaintiff that in granting those farming rights to the
defendant’s said ancestor, the latter was forbidden to fell or uproot any
economic trees, such as timber and palm trees, which would be found on the land
and that the defendant’s ancestor was to “provide the plaintiff’s ancestor with
a bag of corn and groundnuts each time that the defendant’s ancestor cultivated
corn and groundnuts on the land.”<o:p></o:p>It was
the further contention of the plaintiff that the defendant’s ancestor,
Tsirinyi, and all his successors adhered to the terms and conditions attached
to the grant. But when the defendant became successor the defendant had refused
to abide by the said conditions. That is the defendant had refused to provide
the corn and the groundnuts, had indiscriminately felled timber on the land for
charcoal and had felled or uprooted palm trees. What was worse, the defendant,
according to the plaintiff, had been selling portions of the land to other
persons when his family was granted permission only to farm. Hence the action.<o:p></o:p><o:p>&nbsp;</o:p>The
defence was a complete denial. The defendant averred that his ancestor,
Tsirinyi, came by the land through original cultivation. He founded a village
on it which village grew into a township. And that Tsirinyi’s descendants had
been in possession and occupation of the land since “generations” and had been
exercising acts of ownership over the land. The defendant averred further that
even on one occasion his predecessor in title in a case, Adjei-Letsa v. Dagadu,
asserted his right to the land to the knowledge of the plaintiff’s family and
so the plaintiff was estopped by the judgment given in the case on 28 June
1916.<o:p></o:p><o:p>&nbsp;</o:p>I should
observe that there was a cross-appeal. But I will deal first with the
substantive appeal. About four grounds of appeal were argued by learned counsel
for the appellant. It was contended that the judgment was bad for uncertainty
since it did not define the area which belonged to the plaintiff and the
portion which was granted to the defendant’s ancestor, and that the learned
trial judge erred in granting all the reliefs sought by the plaintiff when, by
the judge’s own findings, whatever portion which was granted to the defendant’s
ancestor was granted unconditionally.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel submitted that the judgment did not resolve the issues the court was
called upon to decide; because the land alleged to have been granted to the
defendant’s ancestor, was supposed to be encompassed within the boundaries
given by the plaintiff in his statement of claim; and since the grant,
according to the learned trial judge, was absolute and that the defendant had a
right to deal with the land so granted in any manner he liked, the learned
trial judge erred in awarding damages against the defendant for doing what he
was entitled to do. Counsel further submitted that the learned trial judge
similarly erred in granting the recovery of possession and making an order
restraining the defendant from entering his own land.<o:p></o:p></spa</main>