EBUSUAPANIN KOFI ASIEDU vs. EBUSUAPANIN KWEKU APPIAH [2001]DLSC2363

Date	2001-02-07
Suit No.	CA. NO. 12/98
Citation No.	[2001]DLSC2363

MRS. BAMFORD-ADDO J.S.C. (PRESIDING)

AMPIAH J.S.C.

ADJABENG J.S.C.

ACQUAH J.S.C

ATUGUBA J.S.C.

MR. AHENKORAH FOR APPELLANTS

MR. ODURO FOR RESPONDENTS

[2001]DLSC2363
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													<main id="main" class="content" style="min-height: 60rem" >EBUSUAPANIN KOFI ASIEDU<o:p></o:p>vs.<o:p></o:p>EBUSUAPANIN KWEKU APPIAH<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CA.
NO. 12/98<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:
7TH FEBRUARY, 2001.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
AHENKORAH FOR 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">

MR.
ODURO FOR RESPONDENTS<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>AMPIAH,
J.S.C.: <o:p></o:p>This
is an appeal from a decision of the Court of Appeal which affirmed the decision
of the High Court.<o:p></o:p>In
his Writ of Summons, the plaintiff/respondent (hereinafter referred to as the
plaintiff) claimed against the defendant/appellant (also hereinafter referred
to as the defendant),<o:p></o:p>"(a) A declaration of title to
all that piece or parcel of land known as and called MPREBUA lying being and
situate at Breman Asikuma bounded by TUROME, KYIDOMHENE's FAMILY LAND, ASIKUMA
BENIN and BREMAN ASIKUMA OMANHENE's LAND which is more particularly delineated
by the PLAN attached to the Writ of Summons herein.<o:p></o:p>(b) Recovery of possession of the said
land.<o:p></o:p>(c) ¢5,000.00 (Five thousand Cedis)
damages for trespass for wanton destruction of plaintiff’s tenants’ farms and
the cultivation of new farms for his exclusive enjoyment to the detriment of
the plaintiff.<o:p></o:p>(d) Perpetual injunction restraining
the defendant, his agents, servants and/or workmen from having anything to do
with the said land".<o:p></o:p>The
defendant resisted the plaintiff’s claim.<o:p></o:p>The
parties gave evidence and called witnesses in support of their case.&nbsp; The trial court gave judgment for the
plaintiff. The defendant appealed against the decision of the Court of Appeal
which on 31st March, 1994 affirmed the decision of the trial court and
dismissed the appeal. Concluding its judgment the court said,<o:p></o:p>“(1) That the paramount or allodial
title is vested in the plaintiff. The appeal therefore fails, in so far as it
relates to paramount or allodial title.<o:p></o:p>(2) Usufructuary title in the areas of
disputed land established to be occupied by the defendant is decided in favour
of the defendant.<o:p></o:p>The appeal is allowed to this extent
but subject to the defendant continuing to pay rent as previously.<o:p></o:p>(3) The appeal in respect of trespass
and damages were not argued before us and is dismissed as abandoned.<o:p></o:p>(4) An order for injunction granted by
the High Court also fails. The appeal against that injunction succeeds and is allowed.<o:p></o:p>We
award costs of 100,000.00 Cedis to the plaintiff/respondent.&nbsp; Both Counsel agree on Mr. Benin, a Cape Coast
Licensed Surveyor to carry out the order in the light of the evidence and the
plan before the trial court.&nbsp; Each side
is to deposit 50,000.00 Cedis towards his preparation”.<o:p></o:p>On
what basis did the Court of Appeal make the final orders?&nbsp; The trial judge had concluded his judgement
thus,<o:p></o:p>“… All told I do say that on the
balance of probabilities the plaintiff should succeed on his claim.&nbsp; <o:p></o:p>I therefore enter judgment for the
plaintiff”.<o:p></o:p>Apart
from the claim for title, the plaintiff asked also for recovery of possession
and damages for trespass as well as an order for injunction. Since no damages
were awarded against the defendant, it was not clear from the judgment whether
any trespass had been committed and if so in what area? Which portion of the
area then was the plaintiff entitled to recover? Although the defendant did not
plead that his land was called ABINA, subsequent evidence showed that there was
land by that name even though this land was included in the whole of the
plaintiff’s land. Evidence was also led to show that the defendant or his
tenants had occupied portions of the defendant's ABINA LAND which as stated
before was included in the MPREBUA LAND. Some of these occupants had lived on
the land for some time. Were they paying rents and if so how much?<o:p></o:p>From&nbsp; the evidence the trespass complained of and
which had provoked this action was at a small place which had originally been
occupied by one Egya Ata and subsequently succeeded to by Nsiah. The trial
judge had not made any findings of fact on these occupations. He concluded his
judgment thus,<o:p></o:p>