OPANIN KWEKU ENU (SUBSTITUTED BY KOJO TUAKWA) vs. KWEKU BOSOM [2001]DLSC2358

Date	2001-02-14
Suit No.	CA. 2/2000.
Citation No.	[2001]DLSC2358

WIREDU AG. CHIEF JUSTICE

KPEGAH J.S.C

ADJABENG J.S.C

ATUGUBA J.S.C

MS. AKUFFO J.S.C.

MR. OWUSU ANSAH FOR THE APPELLANT.

MR. IVAN QUANSAH FOR THE RESPONDENT.

[2001]DLSC2358
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN KWEKU ENU (SUBSTITUTED BY KOJO TUAKWA)<o:p></o:p>vs.<o:p></o:p>KWEKU BOSOM<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CA.
2/2000.<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">

DATE:
14th February, 2001.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
OWUSU ANSAH FOR THE APPELLANT.<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">

MR.
IVAN QUANSAH 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">

WIREDU
AG. CHIEF JUSTICE, KPEGAH J.S.C., ADJABENG J.S.C., ATUGUBA J.S.C, MS. AKUFFO
J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>SOPHIA
AKUFFO, J.S.C.<o:p></o:p>On
February 14th 2001, we unanimously allowed the appeal herein but reserved our
reasons, which we now give as follows:—<o:p></o:p>In
this appeal against the judgment of the Court of Appeal dated June 17th 1999,
the Appellant set out his grounds of appeal in rather prolix terms.<o:p></o:p>These
may however, be briefly summarised as follows:—<o:p></o:p>a. The Court of Appeal erred in not
assessing the evidence before the trial court to ascertain whether or not the evidence
supported the trial court's judgment.<o:p></o:p>b. The Court of Appeal erred in
proceeding on the assumption that the matter before the trial court turned
solely on the facts and thereby ignored issues of law, which had been raised by
the evidence.<o:p></o:p>c. Since the appellant's claim was for
a declaration of title and the respondent had not counterclaimed for a similar
declaration, or at all, the Court of Appeal erred in upholding the trial
court's order that 'the status quo ante should be maintained'.<o:p></o:p>The
background to this appeal is that, the appellant, on his own behalf and as the
Head of the Aburadze family of Gwira Akyinimu, claimed against the respondent
for declaration of title to two pieces of land known as Gwira Akyinimu, in the
Edina Traditional Area, and orders for recovery of possession and perpetual
injunction.<o:p></o:p>The
appellant's case was to the effect, that the disputed lands were originally
broken and settled by his ancestor Kwesi Gwira, the first Odikro, who had been
accompanied by his sister, Tseasewa. In the course of time, according to the
appellant, a member of the defendant's family married the niece of the Odikro
and, as a result of the marriage, Gwira promised that farming land would be
made available to members of the respondent's family who wished to farm, and
this became an established practice. Also, according to the appellant, when the
respondent himself needed land for a salt industry, he had approached Nana
Gwira III and requested an allocation, which request had been granted after the&nbsp; performance of custom. However, the
respondent had, without the consent of the Odikro, attempted to extend the area
of his allocation, and, moreover, had been claiming ownership of the entire
land and purporting to sell portions thereof, thereby precipitating the suit.<o:p></o:p>For
his part, the respondent, asserted that the lands were the family's ancestral
property and that, therefore, he needed no permission or consent from the
appellant to alienate any part. The respondent also claimed that the founder,
Kwesi Gwira was his ancestor who hailed from the Adwenadze (Aowin) family of
Bantama near Elmina. According to the respondent, Kwesi Gwira married Tseasewa
who was from Anomabu and was the ancestress of the appellant. After Kwesi Gwira
died, his children were permitted to farm on the lands and function as
caretakers for their father's Adwenadze family, provided they paid annual
homage to the family's Stool at Bantama. In further support of his contention,
the respondent asserted that, during the time of one of the appellant's
predecessors, Kofi Gin (or Kofi Gyem), an attempt was made by the appellant's
family to enstool a chief at Gwira Akyinimu, without the requisite prior
reference to the respondent's family, as a result of which the Head of the
respondent's family swore the Great Oath of Elmina on the said
predecessor.&nbsp; Consequently, the matter
was arbitrated upon and it was made clear to the appellant's family that it
could not enstool anyone at Gwira Akyinimu without the prior consent and
permission of the respondent's family. The appellant's family then slaughtered
a sheep to appease the respondent's family. The respondent also contended that
his family, as the landowners, had at various times made grants of portions of
the land and had also, upon the request of the appellant, made grants to the
Oman of Gwira Akyinimu and had otherwise exercised acts of ownership on the
lands without any protest from the appellant or his family. Therefore, the
respondent contended further that the appellant was estopped by the arbitration
award, by his conduct and acquiescence and by the respondent's long and quiet
possession, from claiming title to the lands.<o:p></o:p>Subsequently,
four other persons successfully applied to be joined as co-plaintiffs claiming
that, when the trial court ordered a survey of the property in dispute, the
areas pointed out by the respondent for demarcation as his property encroached
onto their respective properties. The co-plaintiffs are not Appellants herein.<o:p></o:p>In
the Court of Appeal, the appellant's original ground of appeal was simply that
the decision of the trial court was against the weight of the evidence.
Subsequently, and with the leave of the Court of Appeal, he argued on
additional grounds to the effect that:—<o:p></o:p>a. The trial judge did not apply any
principle of law in his judgement and thereby fell into error.<o:p></o:p>b. The trial Judge failed to
appreciate that since the appellant had been in undisturbed possession of the
land in dispute for seve</main>