KWAW vs. AWORTWI [1989]DLCA628

Date	1989-12-13
Suit No.
Citation No.	[1989]DLCA628

AMPIAH J.A

LAMPTEY J.A

ESSIEM J.A.

DR. TACKIE-OTOO FOR THE APPELLANT.

NO APPEARANCE FOR AND ON BEHALF OF THE RESPONDENT.

[1989]DLCA628
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													<main id="main" class="content" style="min-height: 60rem" >KWAW <o:p></o:p>vs. <o:p></o:p>AWORTWI<o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1989-90] 2 GLR 190<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:
13
DECEMBER 1989<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">

DR. TACKIE-OTOO FOR THE APPELLANT.<o:p></o:p>

NO APPEARANCE FOR AND 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">

AMPIAH, LAMPTEY AND ESSIEM JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ESSIEM J.A.<o:p></o:p>The plaintiff-respondent
(hereinafter referred to as the plaintiff) instituted this action against the
defendant-appellant (herein after referred to as the defendant). The claim of
the plaintiff as indorsed in his writ of summons was for:<o:p></o:p>“(a)
damages for trespass to the plaintiff’s cocoa farm situate at Wassaw Damang;
and <o:p></o:p>(b)
perpetual injunction restraining the defendant, his agents servants and workmen
from committing any acts of trespass on the plaintiff s cocoa farm aforesaid.”<o:p></o:p><o:p>&nbsp;</o:p>From the
pleadings, the plaintiff’s case is that about 27 years before the institution
of this action he, as a native of Wassaw Damang, with the consent and
concurrence of the then chief of Wassaw Damang entered a piece of virgin forest
at Wassaw Damang, broke the same and reduced it into cultivation. He had made
three sets of cocoa farms on the land. The cocoa is bearing fruits and he has
been harvesting same for years without interference from any person. Recently
however the defendant has laid claim to one of the cocoa farms. The defendant
had in furtherance of the claim entered the same farm and carried away cocoa
already harvested on the farm and sold same. The defendant has pocketed the
proceeds, hence this action.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant’s version is different. He pleaded that the plaintiff is not a native
of Damang and that it was the Agona family of Wassaw Damang which granted the
plaintiff licence to occupy a portion of that family’s land for subsistence
farming. The defendant pleaded also that he is now the head of family. His
predecessor detected that the plaintiff instead of engaging in subsistence
farming had not only planted cocoa on the land but had also granted portions of
the land to abusa tenants contrary to the terms of the licence granted him. The
plaintiff was challenged by his predecessor but he paid no heed. When he, the
defendant, became head of family he reported the matter to the chief of Damang.
He pleads that an arbitration was held over the dispute and the plaintiff was
found liable.<o:p></o:p>The abusa
tenants of the plaintiff were asked to attorn tenant to him. He denied having
entered the plaintiffs cocoa farm and carried away cocoa as alleged by the
plaintiff. The defendant then counterclaimed as follows:<o:p></o:p>“(a) a
declaration of title to all that piece or parcel of land at Damang at a place
commonly known and called ‘Gyedawuo’ including the land the plaintiff is
claiming, measuring about three miles square and bounded by Subri stool land,
Opanyin Kweku Tene’s land and the Damang Forest Reserve; <o:p></o:p>(b) Forfeiture
of the plaintiff’s licence; <o:p></o:p>(c) Accounts;
<o:p></o:p>(d) Mesne
profits; and <o:p></o:p>(e) Perpetual
injunction restraining the plaintiff from alienating the land under licence and
from further cultivating the land in breach of the licence,”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff in his reply to the defendant’s statement of defence denied ever
being a licensee </main>