NYAMEKYE vs. ANSAH [1989]DLCA652

Date	1989-01-19
Suit No.
Citation No.	[1989]DLCA652

OSEI-HWERE JA

AMPIAH JA

LAMPTEY J.A.

J. B. SHORT FOR THE PLAINTIFF-APPELLANT.

A. B. SAM FOR THE SECOND DEFENDANT-RESPONDENT.

[1989]DLCA652
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													<main id="main" class="content" style="min-height: 60rem" >NYAMEKYE <o:p></o:p>vs. <o:p></o:p>ANSAH<o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1989-90] 2 GLR 152<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:
19
JANUARY 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">

J. B. SHORT FOR THE PLAINTIFF-APPELLANT.<o:p></o:p>

A. B. SAM FOR THE SECOND DEFENDANT-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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMPIAH J.A.<o:p></o:p>The
plaintiff in her action claimed against the defendants a declaration of title
to a piece of land at Kajebil and an order of perpetual injunction to restrain
the defendants, their agents, workmen and assignees from interfering with her
family’s rights over and in the disputed land. The defendants denied the
plaintiff’s claim and counterclaimed for a declaration of title to almost the
same land. The learned trial judge at the High Court, Sekondi on 2 August 1983,
dismissed the plaintiff’s claim and gave judgment for the defendants on their
counterclaim. Against this judgment the plaintiff has appealed to this court.<o:p></o:p>The
plaintiff has attacked the judgment on many grounds, one of which is that the
judgment was against the weight of the evidence. The issues which the parties
set down for determination were:<o:p></o:p>(a) Whether the land in dispute belongs to the whole royal
Ekissi family of Kajebil or to the T. S.<o:p></o:p>Apia’s branch of the said family.<o:p></o:p>(b) Whether the new cemetery was sold to the oman or whether
the oman were licensees.<o:p></o:p>(c) Whether it is the plaintiff’s family or the second
defendant who has been collecting proceeds from the felling of palm trees at
the cemetery.<o:p></o:p>(d) Whether or not the plaintiff or the second defendant is
entitled to their respective claims.”<o:p></o:p><o:p>&nbsp;</o:p>I think
the main issue was as to the ownership of the land; the other issues being
overt acts to establish ownership. Since both parties claimed title to the
land, the onus fell equally on both not only to establish the root of their
title but also the identity of the land they respectively claimed.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff contended that since the first defendant did not give evidence,
judgment should have been entered against him. I do not agree. A party to an
action need not give evidence himself. Provided he can adduce evidence of some
sort from other sources, the court would have to look at that evidence in
considering the totality of the evidence before it. And, in a case where the
first defendant can be described as a nominal defendant who derives his claim
through the second defendant, it is sufficient if the second defendant adduces
evidence sufficient to establish his title to the land. The first defendant
would succeed or fail with the second defendant. What was necessary in the
instant case was whether or not the second defendant had been able to establish
his claim to the land.<o:p></o:p><o:p>&nbsp;</o:p>It is not
disputed that both the plaintiff and the second defendant belong to the royal
Ekissi family, the owners of the Kajebil stool. The evidence however showed that
there were three sections of this family originated by three women and that
succession to the stool was by rotation. The plaintiff and the second defendant
belong to different sections of the royal family.<o:p></o:p><o:p>&nbsp;</o:p>There was
overwhelming evidence that individual members of the stool family occupied
various portions of the land and that such portions transferred to members of
</main>