BIRIMPONG vs. BAWUAH [1990]DLCA2221

Date	1990-11-22
Suit No.
Citation No.	[1990]DLCA2221

AMPIAH JA

ESSIEM JA

AMUAH JA

E D KOM (WITH HIM AYIKOI OTOO) FOR THE PLAINTIFF.

TOTOE FOR THE DEFENDANT.

[1990]DLCA2221
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													<main id="main" class="content" style="min-height: 60rem" >BIRIMPONG<o:p></o:p>vs.<o:p></o:p>BAWUAH<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 20<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 22 NOVEMBER 1990<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E D KOM
(WITH HIM AYIKOI OTOO) FOR THE PLAINTIFF.<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">

TOTOE FOR
THE DEFENDANT. <o:p></o:p>

AMPIAH,
ESSIEM AND AMUAH JJA<o:p></o:p>

</div>JUDGMENT
OF AMPIAH JA.<o:p></o:p>This
action is in respect of land which the parties described as Besease lands in
the Atwima District of Ashanti. The plaintiff claimed as the allodial owner of
all these Besease lands. After a series of amendments, the plaintiff eventually
claimed for: “a declaration that plaintiff is sub-allodial owner of all Besease
lands forming boundaries with ... of which land the plaintiff is a caretaker
for the Golden Stool of Ashanti.”<o:p></o:p>The
defendant, who described his land similarly, denied the plaintiff’s claim and
counterclaimed for a declaration of title to all the lands as described in
paragraph 14 of his amended statement of defence filed on 21 May 1988. Even
though the defendant had also counterclaimed for one-half share of proceeds and
profits from the land, the final amended statement of defence did not pursue
this claim. It was therefore not necessary to give judgment on that aspect of
the claim.<o:p></o:p>At the
end of the trial, the learned trial judge gave judgment for the defendant,
declaring title in him of all the Besease lands except that portion described
as Asakraka and Ntabaanu lands. Of these two portions of the land, the judge
declared title in the plaintiff. The plaintiff has appealed against the whole
of the judgment while the defendant has appealed against that part of the judgment
which vested title in the Asakraka and Ntabaanu lands in the plaintiff.<o:p></o:p>For the
determination of the case, the plaintiff set down as many as 22 issues on the
summons for direction filed on 18 March 1976. An additional issue was filed on
15 July 1976. Despite the numerous amendments that were made subsequently in
the pleadings, the parties did not think it necessary to file any further
issues. Unfortunately, these issues could not be settled before hearing started
on 3 March 1987. On 10 October 1988, before judgment, the learned trial judge
drew counsel’s attention to this irregularity. The position was regularised by
counsel who agreed to adopt the issue as filed.<o:p></o:p>I must
say that some of the issues raised in the action were obviously chieftaincy
matters. The learned trial judge, in my view, rightly steered clear off the
determination of those chieftaincy issues. For his purpose, it was sufficient
for him to declare that both the plaintiff and the defendant were occupants of
a stool and that the plaintiff’s stool was higher in status than the
defendant’s. As to the relationship between the stools, he did not venture to
state. He concerned himself with the issue of who the owner of the Besease
lands was.<o:p></o:p>There was
no dispute that the land as described by the parties consisted of differently
named portions. As between the parties there was no uncertainty about the whole
of the land in dispute. What was not clear was the description of the various
portions which constituted the whole of the Besease lands.<o:p></o:p>The learned
trial judge could not accept the plaintiff’s story that his ancestor, Nana
Aboagye Asare, was the Akwamuhene of Denkyira at the time that Nana Osei Tutu,
Asantehene, made him chief in Ashanti; he found the story not reasonably
probable. He, however, found on the evidence that Nana Aboagye Asare was made
chief while living at Abease, before the defendant’s stool was created for them
by Nana Osei Kwadwo, the Asantehene. His conclusion was that since he could not
believe the defendant’s story that it was his family that made Nana Aboagye
Asare Odikro, his further contention that his family had made Nana Aboagye
Asare caretaker of the lands could not be true. It is this conclusion that has
invited attacks from counsel for the plaintiff.<o:p></o:p>The
plaintiff’s counsel contended that if in the judge’s own words he could not
accept the defendant’s story of the caretakership then he should have accepted
the plaintiff’s version of the story and given him judgment on it.<o:p></o:p>I think
such a conclusion would be erroneous and misconceived. It is possible to
divorce the questions of odikroship and caretakership from the real issue as to
who first acquired the land. The evidence shows that the plaintiff’s ancestor,
Nana Aboagye Asare, was made odikro while he was at Abease. It is true that he
subsequently went to Besease. The evidence preponderantly shows that before
Nana Aboagye Asare moved to Besease, the relatives of Afra Saa were already
settled on that land. There is evidence that Atwima Mansah, the daughter of
Apiyoo Tempong, one of the relatives of Afra Saa, was settled on the land and
that t</main>