OHENEBA KOFI DURO vs. KWAME MANHYIA [2003]DLCA6551

Date	2003-11-20
Suit No.	CIVIL APPEAL NO.54/99
Citation No.	[2003]DLCA6551

MISS OWUSU J.A.

(PRESIDING)

OSEI J.A.

QUAYE J.A

[2003]DLCA6551
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													<main id="main" class="content" style="min-height: 60rem" >OHENEBA KOFI DURO<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>KWAME MANHYIA<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO.54/99&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:&nbsp;
20TH NOVEMBER, 2003.<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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;<o:p></o:p>

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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>QUAYE
J.A.<o:p></o:p>&nbsp;This appeal is from the decision of the High
Court, Kumasi, given on 30th May, 1996 in favour of the plaintiff/respondent
(herein called the respondent), By his writ of summons filed on 3rd June, 1985
the respondent herein endorsed a claim for"<o:p></o:p>&nbsp;(a) a declaration that all piece of land
situate at a place known and commonly called BESEHO AHOREYE at Aburom near
Saman on Kwabere Kenyase Stool land and having boundaries with Odumanafo Stool
land, Saman Dikro's farm land, Opanin Asuria of Konkodie's land, the land of
Serwaa Akoto and the Stool land of Abodwese and measuring about 50.59 acres
more or less........is property of plaintiffs material family <o:p></o:p>(b)
.........a declaration that the land described........above was the subject of
a pledge by the plaintiff's predecessor Kofi Duro for the sum of four pounds
thirteen shillings £4.13/-<o:p></o:p>&nbsp;(c) An order against the defendant for the
redemption of the land described ....above by the payment to the defendant by
plaintiff of the said sum of £4.13/-. <o:p></o:p>(d)
An order of perpetual injunction to restrain defendant, his servants, Agents
and assigns from interfering with the plaintiffs right in the said land."<o:p></o:p>&nbsp;The crux of the action therefore appears to be
firstly to declare or confirm the ownership of the defined subject land in the
respondent, and when that hurdle of ownership had been cleared in favour of the
respondent, for the court to proceed to make a second finding that the said
piece of property measuring some fifty acres or more, was subject of a pledge
by the predecessors of the respondent to those of the defendant/appellant (in
the Judgment simply referred to as appellant) By his defence, the appellant
merely claimed his family ownership of the subject property and counterclaimed
for a declaration of title thereto and also for an order of perpetual
injunction against the respondent and his family.<o:p></o:p>&nbsp;The respondent gave evidence and was supported
by three witnesses who testified as boundary owners and related what they know,
observed or had been handed down by traditional evidence to them respecting the
disputed land. His evidence centered on how the disputed land came to be owned
by his family. According to the unchallenged evidence of the respondent an
ancestress of his, by the name Nana Adwapa was married to one Nana Antwi Kofi
the then Kenyasehene, and as the custom invariably was, the husband/chief
sealed off the marriage with a gift of the disputed land to his said wife. The
respondent named one Boadu Twafo the Kenyase Twafohene as the one who
physically demarcated the land to the respondent's ancestress Nana Adwapa.<o:p></o:p>&nbsp;As was stated earlier on this Judgment, the
above evidence which materially shows how the land was acquired, and
underscores the respondent's claim for a declaration of title, was neither
disputed nor challenged even in the remotest terms by the appellant. The issue
as to whether or not the subject matter of this dispute was a gift to a
predecessor of the respondent by one Barima Antwi Kofi, Kenyasehene, therefore
needed no further evidence of proof. The bare denial in his pleadings by the
appellant of the respondent's contention in his statement of claim on the
issue, was not sufficient to discharge the onus upon the appellant to traverse
specifically and unequivocally the assertion made by the respondent. This
conclusion may be illustrated by reference to the Court of Appeal decision in
ARMAH VS: ADDOQUAYE (1972) 1GLR 109. The brief facts of that case as provided
in the head notes are that "The plaintiff claimed a declaration of title
to land and other consequential reliefs in the High Court. was given for the
defendant on the ground that the plaintiff had failed to discharge the burden
of proof upon him. The plaintiff appealed to the Court of Appeal and during the
hearing counsel drew the court's attention to the fact that that part of the
statement of claim (para.(2)) which recited his root of title had not been
traversed either specifically or generally in the statement of defence. He
submitted that by virtue of Order 19 rules 14 and 18 of LN 140A/54 the
averments contained in paragraph (2) must be deemed to have been admitted by
the defendant and consequently there was no need for the plaintiff to adduce
any evidence in the support of his title to the land. The court held that:<o:p></o:p>&nbsp;"(1) Order 19 rule 14, 18 and 20 have one
common object, namely, to compel each party in his turn to admit fully or deny
fully each allegation of fact in the pleading of his opponent. Under Order 32
rule 6 any party at any stage may move for such Judgment on admissions of fact
made, either on pleadings or otherwise, as upon such admissions he may be
entitled to, without waiting for the determination of any other question
between the parties.......".<o:p></o:p>&nbsp;The action, BILLA vrs: SALIFU (1971) 2 GLR 87,
more directly addresses the point on hand. In that action, an adultress
admitted sleeping with the named adulterer, however, this piece of evidence was
not challenged in cross-examination. The trial High Court, Tamale held that—<o:p></o:p>&nbsp;"(1) plaintiffs' evidence could only have
meant that she was confessing to having had sexual intercourse with the
appellant. The failure of the appellant to challenge this evidence was in
effect an admission of</main>