REV. SAMUEL KWABENA OFEI (PLAINTIFF) vs. KWABENA AMOAFO AND TWO OTHERS (DEFENDANT) [1999]DLCA7501

REV. SAMUEL KWABENA OFEI (PLAINTIFF) vs. KWABENA AMOAFO AND TWO OTHERS (DEFENDAN... [1999]DLCA7501

Date	1999-10-26
Suit No.	CIVIL APPEAL NO: 3/97
Citation No.	[1999]DLCA7501

WOOD J. A. (PRESIDING)

BROBBEY J. A.

ARYEETEY J.

[1999]DLCA7501
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													<main id="main" class="content" style="min-height: 60rem" >REV. SAMUEL
KWABENA OFEI<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>KWABENA AMOAFO
AND TWO OTHERS<o:p></o:p>(DEFENDANT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL APPEAL NO: 3/97&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 26TH OCTOBER,1999<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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CORAM:&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; &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;WOOD
J. A. (PRESIDING), BROBBEY J. A., ARYEETEY J.<o:p></o:p>

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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm;mso-border-between:1.5pt solid windowtext;
mso-padding-between:1.0pt">JUDGMENT<o:p></o:p>

</div>&nbsp;BROBBEY J. A.<o:p></o:p>&nbsp;This case of the appellant who was the
plaintiff at the trial court was that he was one of ten Akuapem citizens who
acquired virgin forest in 1954 at a place called Atom on Nkawie and Nyinahin
stool lands. The lands were granted to them by Nana Kwasi Duah and Nana Kofi
Marfo, chiefs of Nyinahin and Nkawie respectively. They were actually
demarcated for them by the chief of pomaakrom with the authority of the chiefs
of Nkawie and Nyinahin.<o:p></o:p>&nbsp;The appellant averred that he developed his
portion of the land by making farm and planting cocoa trees. He even gave part
of his land to one Kwame Tano testified as PW1. <o:p></o:p>The
appellant described the boundaries of his land by naming his boundary owners.
He added that in 1978 a surveyor who demarcated its actual boundaries made a
plan of his land for him. <o:p></o:p>According
to the appellant, Kwame Tano said his father had given him land to farm upon.
That was in 1981. While working on the land of the appellant before 1981 Kwame
Tano used to be assisted by the first respondent. Therefore when Kwame Tano
decided to quit the land of the appellant, the first respondent requested to be
allowed to continue farming on the land. The requested was granted. It was
while he was farming on the land that the dispute arose was that dispute culminated
in this litigation. <o:p></o:p>The
respondents in this appeal were the defendants at the trial court. They were
three at the time they filed their defence. The third defendant died in the
course of the trial. The evidence indicated that the second defendant succeeded
him but the record did not show that there was a formal motion for
substitution. Since he was not legally substituted, the judgment of the trial
court and the judgment in this court bind only the first and second
respondents.<o:p></o:p>&nbsp;The defence of the defendants/respondents was
that they admitted that some ten Akuapem citizens acquired some tracks of land
at Atom. They however denied in their pleadings that the disputed land was
included in the land of the Akuapem people. Rather they averred that the first
respondent was found farming on the disputed land. He was queried by one Kwasi
Addai, who was then the Odikro of Atom as to how he acquired that land. He
explained that the PW1 gave him the land. According to the first respondent,
the PW1 had gone to his hometown at Akanten. He therefore went Akanten and
called him before the Odikro and his elders and the PW1 then explained that the
land was given to him by his (the PW1’s) father. The Odikro and his elders
rejected the explanation. The Odikro then entered into an abunu tenancy
agreement with the first respondent in respect of the disputed land. As far as
he was concerned, the land belonged to the Odikro of Atom and not the
appellant. <o:p></o:p>After
the trial, the High Court judge dismissed the appellant’s claim and entered
judgment for the respondent. The appellant then appealed against that judgment
to this court, initially on the omnibus ground that the judgment was against
the weight of evidence. Five additional grounds were later filed. By a
unanimous decision of this court, the appeal was allowed on the 7th October
1999. These are the reason for that decision. <o:p></o:p>In
sum, trial judge dismissed the appellant’s case on three main grounds, namely,
that<o:p></o:p>&nbsp;1. The appellant did not know the extent of
his land <o:p></o:p>2.
The appellant was not in possession of the disputed land <o:p></o:p>3.
The appellant adduced traditional evidence and therefore assumed a higher onus
of proof equivalent to proof in criminal cases but he failed to establish that
proof. <o:p></o:p>Not
surprisingly therefore, the appellant's first additional ground of appeal was
that <o:p></o:p>“The learned High Court
Judge misdirected himself in law and in fact by holding that the plaintiff did
not know the extent of his land, when the Plaintiff and Defendant were ad idem
as to the identity of the land in dispute and so the question of the extent of
that land was irrelevant”<o:p></o:p>&nbsp;There can be no doubt that the trial judge
erred in his finding that the appellant did not know the extent of his land.
The second and third respondents conceded in their pleadings that the disputed
land formed part of the land given to the Akwapim citizens. Even the first
respondent who made no formal admission in his pleadings eventually conceded
under cross-examination that the disputed land was included in the land given
to the Akwapim tenant farmers. In his testimony in court, the DW3 told the
trial court that he was among those who demarcated the land to the Akwapim
tenant farmers and he subsequently saw the ap</main>