HOMENYA vs. THE REPUBLIC [1991]DLHC2029

Date	1991-11-21
Suit No.
Citation No.	[1991]DLHC2029

ACQUAH J.

J. M. V. DOTSE FOR THE APPELLANT.

MISS E. C. KWAWUKUME FOR THE REPUBLIC.

<p class="mb-5" id="contentDlCitation"  hidden>[1991]DLHC2029</p>
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes"><b><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">HOMENYA<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes"><b><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes"><b><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">THE REPUBLIC<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes"><b><span style="font-size: 10pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">[HIGH COURT, HO]<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes"><b><span style="font-size: 10pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">[1992] 2 GLR 305<o:p></o:p></span></b></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"><span style="font-size: 10pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">Date: 21
NOVEMBER 1991</span><b><u><span style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;"><o:p></o:p></span></u></b></p>

</div><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination:
none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:
yes"><b><span style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">COUNSEL:<o:p></o:p></span></b></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination:
none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:
yes"><span style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">J. M. V. DOTSE FOR THE APPELLANT.<o:p></o:p></span></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" style="margin-bottom:5.0pt;mso-pagination:none;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">MISS E. C. KWAWUKUME FOR THE REPUBLIC.<b><u> <o:p></o:p></u></b></span></p>

</div><p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes"><b><u><span style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">JUDGMENT OF ACQUAH J.<o:p></o:p></span></u></b></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination:
none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:
yes"><span style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">The appellant herein was arraigned before the Circuit Court, Hohoe
charged with the offences of causing unlawful damage contrary to section 172(1)
(b) and threat of harm contrary to section 174 of the Criminal Code, 1960 (Act
29) respectively. He pleaded not guilty to both charges and was tried and acquitted
of threat of harm but convicted of causing unlawful damage. He was then
sentenced to a fine of ¢100,000 or two months’ imprisonment with hard labour
and in addition he was ordered to execute a bond of ¢400,000 with one surety to
be of good behaviour for one year or two months’ imprisonment with hard labour.<o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination:
none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:
yes"><span style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">The facts of the case are that the first prosecution witness, an
elderly woman, had put up her house on a portion of a stretch of land at Kpando
Gadza, while the appellant farms on the adjoining portion. There are apple
trees on this land which the first prosecution witness claims she planted to
fence her building. On 6 September 1989, while the first prosecution witness
was in her house, she heard an unusual noise outside and so she came out with
her daughter, the second prosecution witness, to find out what it was. She saw
the appellant cutting down the apple trees. She confronted him but the
appellant claimed ownership of both the land and the trees and further directed
her to report him to the chief, if she was not satisfied with his answer. The
first prosecution witness also alleged that the appellant further threatened
her life. She therefore rather reported him to the police and the appellant was
arrested.<o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination:
none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:
yes"><span style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">While under cross-examination the first prosecution witness stated
that her land shares a boundary with the farmland of the appellant who had for
a considerable number of years been farming on the land. The first prosecution
witness further stated that although she and the appellant are boundary owners,
their boundary had not been demarcated. She further pointed out that on the day
in question the appellant was clearing the area to plant corn. She then
admitted that she did not know whether she was first to the area before the
appellant came to do his farming. The evidence of the second prosecution
witness, her daughter, was on the charge of threat of harm in respect of which
the appellant was acquitted.<o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination:
none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:
yes"><span style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">The police investigator who testified as the third prosecution
witness said that on receipt of the complaint of the first prosecution witness
he went to the scene and saw that seven apple trees had been cut down. He was
therefore instructed to charge the appellant with the offences set out above. He
went on to say that although he was aware that the first prosecution witness
and the appellant are boundary owners, yet he did not find out the extent of
the first prosecution witness’ land.<o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination:
none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:
yes"><span style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">In his defence the appellant contended that the apple trees and the
land on which the trees stand belong to him. He said he acquired the land from
the people of Kpando-Konda in 1946 when he was the headmaster of Kpando
Catholic Senior School. He tendered the minutes book of the Gadza School
Building Committee to support his claim that the land belonged to the people of
Kpando-Konda. On acquiring the land, which originally was a virgin forest, he
hired people to break the forest. One of such persons, Humphrey Dorkor,
testified as the first defendant witness. The appellant said he tried to put up
a building but he was suddenly transferred from Kpando. He then gave the land
to one Teacher Huheho to farm. The said teacher farmed and later left the place
when he too was transferred. Thereafter his sisters and nieces made farms
there. Later in 1965 he fenced part of the land with a wire netting. The
inhabitants of the village started using the other portion of the land as a
refuse dump. Thus seeds including those of the apple trees in question started
growing there. In 1987 and 1988 he made corn farms on the land but he saw that
because of the trees the corn was not growing properly. Therefore in 1989 when
he was planting, he decided to cut down the trees. It was in the course of
cutting down the trees that the first prosecution witness came up to claim
ownership of the trees. In cross-examination the appellant said that he was on
the land before the first prosecution witness came to build her house there,
and that the first prosecution witness indeed put up her kitchen on his land.
The appellant therefore maintained that as the owner of the land and the trees
he was justified in cutting them down, and was therefore not guilty.<o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:5.0pt;text-align:justify;mso-pagination:
none;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:
yes"><span style="font-size: 12pt; line-height: 115%; font-family: &quot;Book Antiqua&quot;, serif;">In his judgment the trial circuit judge found that the appellant
was first in the area before the complainant went there to build. He then went
on to state that once the appellant said that he cut down the trees because
they were on his land, the appellant was thereby raising the defence of a claim
of right. He dealt with what constitutes a claim of right and then went to sea
on the character and professional status of the appellant, and thereafter
indulged in matters quite extraneous to the issue before him. For example, he
determined whether the trees were planted in a straight line or not, whether or
not the appellant was aware of the presence of the trees on the land (as if the
appellant had denied knowledge of these trees). He held that once the appellant
said that he cut down the trees because they thwarted the growth of his corn,
his conduct was mala fide. He therefore held that the explanation of the
appellant wa</main>