DURO AND ANOTHER vs. ANANE [1988]DLCA734

Date	1988-07-14
Suit No.
Citation No.	[1988]DLCA734

ABBAN J.S.C.

OSEI-HWERE JA

LAMPTEY J.A.

H. W. KOFI SACKEY FOR THE APPELLANTS.

W. E. OFFEI FOR THE RESPONDENT

[1988]DLCA734
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													<main id="main" class="content" style="min-height: 60rem" >DURO AND ANOTHER <o:p></o:p>vs. <o:p></o:p>ANANE <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 275<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
14 JULY 1988<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">

H. W. KOFI SACKEY FOR THE APPELLANTS. <o:p></o:p>

W. E. OFFEI 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 J.S.C., OSEI-HWERE AND LAMPTEY
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.S.C.<o:p></o:p>On 31
January 1986, judgment was delivered in favour of the respondent by the Circuit
Court, Kumasi. The respondent had sued the appellants for a declaration of
title to a piece of land. He had also sought an order for perpetual injunction
restraining the appellants from entering the disputed land.<o:p></o:p><o:p>&nbsp;</o:p>The land
in question was a portion of the stool land of Trede in Ashanti. It was at a
place commonly known and called Afra Nkwanta. The respondent (hereinafter
called the plaintiff) had boundaries with the lands of the Krontihene,
akwamuhene, mpatasehene and pekyihene all of Trede. The plaintiff was not only
the head of his family but also the twafohene of Trede.<o:p></o:p><o:p>&nbsp;</o:p>According
to the plaintiff, his ancestors acquired the land, above described, as a virgin
forest from the stool of Trede and reduced the same into their possession. At a
later date when the land had become secondary forest, the ancestors of the
appellants (hereinafter referred to as the defendants) arrived from Denkyira to
settle at Trede. They made a request for a grant of a portion of the
plaintiff’s family land. The request which was passed through the then
Tredehene was granted. Consequently, the plaintiff’s ancestors carved a portion
of their land which had then become secondary forest for the defendants’
ancestors.<o:p></o:p><o:p>&nbsp;</o:p>It was
the case of the plaintiff that the portion of the secondary forest, so carved
for the ancestors of the defendants, had always been marked by “a footpath
leading from Trede to Odumasi.” The presence of the defendants on the
plaintiff’s side of this boundary line provoked the present dispute.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff, in his evidence, said his late uncle Kwame Totoe, married one Abena
Kwabena, a member of the defendants’ family, and by reason of that marriage the
said uncle permitted his wife, Abena Kwabena, to make a foodcrop farm on the
plaintiff ‘s side of the boundary line; and even after the uncle’s death,
because of the children the uncle had with Abena Kwabena, the latter was
allowed by the plaintiff ‘s family to continue her farming activities on the
plaintiff’s side of the said boundary, side by side with members of the
plaintiff’s family.<o:p></o:p><o:p>&nbsp;</o:p>The
peaceful co-existence was broken by the second defendant, assisted by the first
defendant, when the plaintiff also attempted to cultivate some portion of the
land on his family’s side of the boundary line. The plaintiff said the second
defendant, Ama Serwah, challenged his right to farm on the land and from that
time the defendants “had been acting with respect to the land in a manner
inconsistent with the title of the plaintiff ‘s family” and it was in those
circumstances that the plaintiff brought the action and sought the two reliefs.<o:p></o:p><o:p>&nbsp;</o:p>It was
not denied by the defendants that the second defendant and some members of the
defendants’ family had been farming on the other side of the boundary line as
described by the plaintiff. The first defendant, Opanyin Kofi Oduro, was head
of his family of which the second defendant was a member. Their defence was
that the boundary line given by the plaintiff was not the true boundary between
the plaintiff’s family land and that of the defendants’ family. To the
defendants the correct common boundary between the two lands was marked by a
stream called Nankasu and that where the second defendant had been farming was
on the defendants’ side of that stream; and so the cultivation of farms by the
second defen</main>