NANA YAW ADWUBENG vs. NANA MENSAH DOMFEH [1999]DLSC6751

Date	1999-06-16
Suit No.	CIVIL MOTION 58/97
Citation No.	[1999]DLSC6751

HAYFRON-BENJAMIN J.S.C. (PRESIDING)

AMPIAH J.S.C.

KPEGAH J.S.C.

ADJABENG J.S.C.

ACQUAH J.S.C.

ATUGUBA J.S.C.

AKUFFO (MISS) J.S.C.

[1999]DLSC6751
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													<main id="main" class="content" style="min-height: 60rem" >NANA YAW ADWUBENG<o:p></o:p>(PLAINTIFF/RESPONDENT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>NANA MENSAH DOMFEH<o:p></o:p>(DEFENDANT/APPELLANT/RESPONDENT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL MOTION 58/97 &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: 16TH JUNE, 1999<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HAYFRON-BENJAMIN J.S.C. (PRESIDING),
AMPIAH J.S.C., KPEGAH J.S.C., ADJABENG J.S.C., ACQUAH J.S.C., ATUGUBA J.S.C., AKUFFO
(MISS) J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RULING<o:p></o:p>

</div>AMPIAH,
J.S.C. <o:p></o:p>The
applicant seeks a review of the Court's judgment of 16th July, 1997. I have
read the Statement Of case filed by both parties in the action and the
submissions made therein. It appears to me that the applicant is using this review
application as an appeal by calling on this court to have a second look at its
own judgment. This is not the intent and purpose of a review application. <o:p></o:p>Rule
54 of C.I. 16 (the Supreme Court Rules, 1996) requires that for the purpose of
a review application, the applicant must show:— <o:p></o:p>"(a)
exceptional circumstances which have resulted in a miscarriage of justice. <o:p></o:p>(b)
discovery of new and important matter or evidence which after the exercise of
due diligence, was not within the applicant's knowledge or could not be
produced by him at the time when the decision was given". <o:p></o:p>All
the necessary documents which the applicant relied on were available at the
time of hearing and were tendered in evidence although they were rejected by
the court after an exhaustive examination of the contents and their import. No
new evidence or matter which could not have been within the knowledge of the
applicant at the time of the hearing has been introduced in this application.
The argument now put forward in respect of these documents in this review
application was canvassed at the hearing of the appeal. Rule 54(b) of C.I. 16
has not been satisfied. <o:p></o:p>With
regard to the ground under Rule 54(a) of C.I. 16, the only complaint by the
applicant is that the judgment has resulted in a miscarriage of justice.
According to him the vesting of ownership of the whole of the DUASI LAND in the
respondent was unjust as the respondent only claimed a portion of that land.
Further, he argued, since the respondent was not the allodial title owner of
that land, the court could only grant him, if at all, possessory title as was
done by the lower courts but not an absolute title. Acquah J.S.C., delivering
the leading judgment of the court, set down the various claims by the parties
and dealt exhaustively with the evidence in support of these claims. Claim (1)
of the Writ of the respondent (i.e. the plaintiff) described the land as
'DENDEN' and showed the boundaries of this particular land. 'DENDEN' Land
according to the respondent, was part of the 'DUASI' Land. This means the
'DUASI' land was a bigger Land. The respondent explained why he was limiting
his claim to only that portion of the 'DUASI' Land, even though he claimed that
the whole of the 'DUASI' Land belonged to his family. The evidence showed that
apart from the 'DENDEN' land which the respondent claimed they were in absolute
control of, parts of the DUASI land were in the possession of other persons
including the two wives of Nana Opoku Ware I, namely Niwaa Tuapin and Agyeiwaa
Buta. The applicant himself is said to be on a portion of the 'DUASI' Lands,
called KUSIASI. The applicant surprisingly referred to his land as 'DENDEN' and
similarly described its boundaries as that of the respondent. That could not be
correct because the description given by the responded covered only a portion
of the 'DUASI' Land. The so-called Kwadason Committee's report was clear; it
was not meant to be binding on the parties. The Chairman of the Committee
himself stated in no uncertain words that the parties were at liberty to resort
to court action if they were not satisfied. Aside of this statement, the
evidence showed that there were other persons laying claim to portions of the
'DUASI' Land. Consequently, any conclusions came to under the proceedings would
not be binding on those persons and could not have resolved any issue regarding
ownership of the 'DUASI' Lands. <o:p></o:p>The
evidence showed that aside of the traditional evidence, offered by both
parties, the respondent's Stool were in absolute possession and control of the
'DENDEN' LAND. That is why the trial judge declared them as possessory title
owners. And, if the evidence of the applicant that it was his family which
settled the respondent's family on the land were to be believed, the respondent
would have held the absolute title in a property he and his family had occupied
for over 300 years exercising full control over the land. That was why the
judgment was varied to vest absolute title in him of the DENDEN Land and not
the DUASI LAND. <o:p></o:p>When
His Lordship Justice Acquah J.S.C. declared the plaintiff (respondent herein)
"...... owner of the DUASI Land as described in the summons ..", he
was declaring title in the 'DENDEN' land only since that was the claim by the
plaintiff. 'DENDEN' land is only part of the 'DUASI' land. In other words the
plaintiff was the owner of that portion of the 'DUASI' LAND called 'DENDEN' as
described in the Writ of Summons. This created no ambiguity or uncertainty in
the description of the land. The applicant, mistook the 'DENDEN' Land as
described in the Writ of Summons for the whole of the 'DUASI' Land he was
claiming. By so doing, he failed to identify correctly the land he was actually
claiming. His counterclaim was bound to fail! <o:p></o:p>

In
conclusion, we see no miscarriage of justice resulting from the judgment of
this court. Accordingly we would dismiss the application<o:p></o:p></main>