MANUKURE vs. AGYEKUM AND OTHERS [1993]DLCA4332

Date	1993-05-13
Suit No.
Citation No.	[1993]DLCA4332

ADJABENG JA

BROBBEY JA

FORSTER JA

BOADU FOR THE APPELLANT

[1993]DLCA4332
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													<main id="main" class="content" style="min-height: 60rem" >MANUKURE<o:p></o:p>vs.<o:p></o:p>AGYEKUM AND OTHERS<o:p></o:p>[COURT
OF APPEAL, KOFORIDUA]<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">

[1992-93]
2 G B R 888 – 891&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 13 MAY 1993<o:p></o:p>

</div>COUNSEL:<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">

BOADU
FOR THE APPELLANT<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 1.0pt 0in">

</div>BROBBEY JA. This is an
appeal against the decision of Williams J sitting in the Koforidua High Court.
The appeal followed a decision of the trial judge in which he awarded judgment
for the respondents.<o:p></o:p>The original trial itself
centred around a rather narrow issue concerning title to a portion of land
which formed part of the Adasewase stool lands.<o:p></o:p>The undisputed facts of
the case were the following: The land in dispute formerly belonged to the
Adasewase stool. The predecessors of the appellant bought a large part in 1922
and occupied it for nearly forty years from 1923. In 1963 the respondents
entered the portion of lands which the appellant claimed to have bought. The
appellant consequently issued a writ against the respondents in the Koforidua High
Court.<o:p></o:p>At the trial the
respondents conceded that the appellant’s predecessors bought some portions of
the Adasewase stool lands. They however contended that the portion sold to them
was much less than the lands actually claimed by those predecessors.<o:p></o:p>The basic issue in the
case turned, not on the entire land bought by the plaintiffs but on the portion
of the purchased land which had been entered by the respondents.<o:p></o:p>The only ground of appeal
in this case was that the judgment of the judge was against the weight of
evidence. During the trial evidence was given by the appellant as to how the
land was acquired. He gave a graphic description of the processes leading to
the sale, the cutting of guaha and virtually all relevant customs which were
performed to symbolise the purchase of the land. Most important of all, he
vividly described the boundaries of the land bought by his predecessor. The
features which he described in his testimony in court were pointed out when the
parties visited the locus in quo with the court-appointed surveyor. Even the
testimony of the surveyor confirmed the boundaries as described by the
appellant.<o:p></o:p>Owners of lands adjoining
the area in dispute were also called and they corroborated the boundaries as
described by appellant. The most significant evidence in the boundaries came
from the co-defendant. He too conceded that the correct boundaries were as
described by the appellant.<o:p></o:p>At the end of the trial,
the appellant’s case stood strongly corroborated while that of the respondents
was so clearly conflicting that the judge himself described the defendants as
liars.<o:p></o:p>The general rule is that
the case of the party which has been corroborated should be preferred to that
which has not been corroborated: See Asare v Donkor &amp; Serwah II [1962] 2
GLR 176 in which the Supreme Court held that “where the evidence of the only
independent witness on a vital issue corroborates the evidence of one party or
the other, a court is bound to accept the case of the party so corroborated
unless there are good reasons for discrediting the independent witness, in
which case these reasons must be clearly stated in the judgment”.<o:p></o:p>In the instant case, the
appellant’s case was corroborated by no less a person than his opponent the
co-defendant during the trial and the trial judge assigned no valid reason for
preferring the conflicting case of the respondents to the corroborated case of
the appellant.<o:p></o:p>In the face of such
weighty and preponderant evidence delineating the boundaries in dispute and
distinguishing the appellant’s boundaries from those of his neighbours and
other lands of the stool, it was surely wrong for the trial judge to have held
that the appellant had failed to describe the boundaries of the land he
claimed. The finding of the trial judge on the boundaries was clearly not borne
out by evidence.<o:p></o:p>The judgment becomes all
the more difficult to defend when one considers the fact that the trial judge
himself described the defendants as liars and expressed the hope that they
would quit the area occupied by them. Amazingly, he proceeded to enter judgment
for the defendants after literally condemning their veracity, his main reason
for giving judgment for them being that the plaintiff-appellant failed to
identify the land in dispute. On the contrary, the record showed that there was
ample evidence which established the appellant’s land and also described the
areas of the land encroached upon by the respondents.<o:p></o:p>The findings of the judge
on the all-important issue of the boundaries were clearly contrary to the evidence
adduced before him as can be seen in his appeal record.<o:p></o:p>Another significant point
which the judge glossed over was that the appellant and his predecessor were in
undisturbed possession of the entire land for some forty odd years. This was
not controverted by the respondent. If indeed the land truly belongs to the respondents,
they would not have waited for forty years before attempting to re-take them
from the appellant and his predecessors in title.<o:p></o:p>If the evidence had been
properly evaluated, judgment should have been entered for the appellant instead
of the respondents.<o:p></o:p>It was for these reasons
that the appeal was allowed. The judgment of the trial judge is set aside.
Judgment is consequently entered for the appellant against the respondents on
the first relief in the writ of summons.<o:p></o:p>No evidence was led on the
claim for ¢20 million damages for trespass. It was a figure named arbitrarily
in the writ without particulars as to how it was arrived at. In the
circumstances whatever figure that will be awarded as damages will be equally
arbitrary.<o:p></o:p>The fact still stands
however that the respondents occupied some portions of land properly acquired
by the appellant’s predecessors by way of sale. Nominally at least, the
respondents are liable to the appellant for damages for trespass brought about
by their occupation o</main>