ODONKOR AND OTHERS vs. AMARTEI [1993]DLSC4247

Date	1993-05-26
Suit No.
Citation No.	[1993]DLSC4247

WUAKU JSC

AMUA-SEKYI JSC

OSEI-HWERE JSC

WIREDU JSC

HAYFRON-BENJAMIN JSC

E D KOM (WITH HIM NII APONSAH) FOR THE APPELLANTS

JAMES AHENKORAH FOR THE RESPONDENT

[1993]DLSC4247
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ODONKOR AND OTHERS<o:p></o:p>vs.<o:p></o:p>AMARTEI<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1993 - 4] 1 GBR&nbsp; 59 - 85&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; &nbsp; &nbsp; &nbsp; DATE: 26 MAY 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E
D KOM (WITH HIM NII APONSAH) FOR THE APPELLANTS.<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">

JAMES
AHENKORAH FOR 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 1.0pt 0in">

WUAKU
JSC, AMUA-SEKYI JSC, OSEI-HWERE JSC, WIREDU JSC, HAYFRON-BENJAMIN JSC<o:p></o:p>

</div>HAYFRON-BENJAMIN
JSC. This is a second appeal with the leave of the Court of Appeal by the
defendants who shall hereafter be referred to as “the appellants” from the
judgment of Their Lordships of the Court of Appeal dated the 23rd May 1991
affirming the judgment of Dove J sitting in the High Court, Accra and dated the
11th day of October 1990.<o:p></o:p>The
action giving rise to this appeal was concerned with certain alleged acts of
trespass by the appellants to a tract of land on which the village of Haatso is
situate and claimed by the respondent, the plaintiff, in the said action. In
this judgment the plaintiff shall be referred to as “the respondent”.<o:p></o:p>Two
reliefs were claimed on the respondent’s writ of summons, namely: (a) five
million cedis (¢5,000,000) damages against the appellants severally for
trespass and (b) an injunction to restrain the appellants and their privies
from committing further acts of trespass.<o:p></o:p>It
was not in dispute between the parties that the respondent had been in
possession of the lands for over 200 years. The appellants contend, however,
that until 1904 the respondent’s ancestors were paying tolls to them. It is
also not in dispute that since 1904 the respondent’s ancestors had paid no
tolls for the exclusive use of the lands. The appellants contend that as a
result of evidence given in their favour by Tettey Kwao, the ancestor of the
respondents in the case of Kwasi Bosompem v Martey the respondent’s ancestors
were permitted to live ‘free of charge’ on the land. <o:p></o:p>The
learned High Court judge heard and considered the evidence and gave judgment
for the respondent. In his judgment, the learned High Court judge made the
following findings:<o:p></o:p>“(a) that if the contention of the
appellants were right that the land was given for farming then it could not
only cover the area of the ‘Huts’. In any case even Tettey Kwao in his evidence
in the Bosompem case had stated: ‘There are about 5 huts in the village now,
there used to be more ...<o:p></o:p>(b) that since 1904 the respondent’s
family had dealt with the land as their own and had paid no tolls. This belied
any assertion that the respondent had been paying tolls;<o:p></o:p>(c) that if the appellants are correct
that they allowed the respondent’s family to live on the land ‘free of charge’
then this amounted to an absolute grant and the respondent’s family were under
no obligation to perform any services to the appellants;<o:p></o:p>(d) that it was possible among the Ga-speaking
tribes for a person to acquire title to land by prescription contrary to the
concept among the Akan-speaking tribes that such acquisition of title by
prescription is not possible.”<o:p></o:p>In
support of this proposition the learned High Court judge relied on a passage
from the Report on Land Tenure in Customary Law of Non-Akan speaking Areas by R
H J Pogucki, a former Commissioner for Lands in this country, at page 40
paragraph 901 where he wrote:<o:p></o:p>“In so far as Ga customary law is
concerned, the principle of acquisition of rights in land by lapse of time is
accepted.”<o:p></o:p>The
learned High Court judge also relied on the judgment of the Privy Council in
Mantse Anage Akue v Mantse Kojo Ababio IV dated 27 June 1927 and found:<o:p></o:p>“(e) that the respondent gave ample
evidence of acts of possession by members of his family and called witnesses as
to grants made by them to those witnesses and others;<o:p></o:p>(f) that the appellants failed to give
evidence of possession in support of their pleading;<o:p></o:p>(g) that the appellants had abandoned
their rights of possession to the land, if any;<o:p></o:p>(h) that the respondent had made out
his charge of trespass against the appellants, the appellants having also
admitted their trespass by paragraph 7 of their statement of defence. “<o:p></o:p>For
ease of reference paragraph 7 of the statement of defence reads thus: <o:p></o:p>“7. The 1st and 2nd defendants deny
the wrongful acts attributed to them and say that their acts are rightful and
consistent with their family’s absolute ownership of the lands in dispute.”<o:p></o:p>For
the reasons stated above Dove J gave judgment for the respondent and awarded
damages for the trespass and costs against the appellants. Being aggrieved by
that decision the appellants appealed to the Court of Appeal.<o:p></o:p>It
is pertinent at this stage to re-examine the notice of appeal filed by the
appellants on </main>