BENJAMIN OSEI vs. KIESER [2004]DLCA6661

Date	2004-02-27
Suit No.	CIVIL APPEAL NO. 90/2002
Citation No.	[2004]DLCA6661

OMARI-SASU J.A. (PRESIDING)

TWENEBOAH KODUA J.A.

QUAYE J.A.

K.T. OSEI—FOR RESPONDENT

ANTHONY NORVOR—FOR APPELLANT.

[2004]DLCA6661
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													<main id="main" class="content" style="min-height: 60rem" >BENJAMIN OSEI<o:p></o:p>vs.<o:p></o:p>KIESER<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

CIVIL APPEAL NO. 90/2002&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 27TH FEBRUARY, 2004<o:p></o:p>

ANTHONY
NORVOR—FOR APPELLANT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">REASONS FOR JUDGMENT<o:p></o:p>

</div>OMARI-SASU, J.A. <o:p></o:p>On
January 22, 2004, this court entered judgment for the Plaintiff-Respondent
(hereinafter to be referred to simply as the Respondent) and against the
Defendant-Appellant (who shall henceforth be referred to as the Appellant) but
the reasons for the decision were deferred. They are now stated hereunder. <o:p></o:p>From
the endorsement on the writ, the Respondent claimed against the Appellant as
follows:— <o:p></o:p>(a)
A declaration of title to that piece or parcel of farm land with cocoa and
foodstuffs on it situate and lying at a place commonly known and called BRUTASE
on AYOMSO Stool land and having boundaries with Kofi Baasare, S.K. Danso;
Donkor Kieser; Kwaku Wiredu and Adwoa Boah – succeeded by Plaintiff. <o:p></o:p>(b)
Damages for trespass. <o:p></o:p>The
writ was issued out together with a Statement of Claim on December 10, 1985.
After entering appearance the Appellant filed his Defence to the claim on March
27, 1986. At Summon for Directions stage two (2) issues were set out to be
resolved. These are: <o:p></o:p>(1)
Whether or not the Respondent is a Customary Successor to Madam Adwoa Boah
(deceased); and<o:p></o:p>(2)
Whether or not the sum of ¢540 paid by Adwoa Boah to the Appellant was the
purchase price of the land in dispute or it was a loan. <o:p></o:p>From
the Record of Appeal the Respondent’s case is that he is the son of one Madam
Adwoa Boah (deceased) who died in or about 1980 at Okomfo Anokye Teaching
Hospital, Kumasi and was buried at Abetifi in the Eastern Region of Ghana. <o:p></o:p>Before
her death the said Adwoa Boah had purchased from the Appellant the land
described in the writ for a consideration of ¢540 in or about 1971 in the
presence of witnesses. Thereafter the Appellant demarcated the land said to be
Ten Ropes in traditional parlance and the sale had been sealed with drinks
provided by the purchaser – Madam Adwoa Boah and drunk by witnesses who
included PWS 1 &amp; 2, the vendor and purchaser. In time, Madam Adwoa Boah
entered unto the land which was a virgin forest, got the land cleared after
which she planted cocoa and food crops the produce of which she enjoyed till
her death in or about 1980. It is said by the Plaintiff and his witnesses and
also admitted by the Appellant that during the lifetime of the said Madam Adwoa
Boah neither the Appellant nor any other person disturbed her quite enjoyment
of the farm but after her death the Appellant seized the farm and prevented the
Respondent and his brothers and sisters from having any access to the land and
farm. A complaint was made to the over lord of the land – Nana Akwaboahene of
Kumasi who invited the Appellant for questioning but the Appellant is said to
have denied ever selling any land to the complainant’s mother. <o:p></o:p>The
Respondent who was then away in the Republic of Nigeria returned home on
hearing of his month’s death and of Appellant’s trespass to his mother’s farm
and he instituted the action in the court below. The Respondent says his family
at Abetifi had appointed him to succeed to his late mother’s estate and so he
has locus standi in the matter. <o:p></o:p>The
Appellant on his part admits he took out the sum of £270 or ¢540 from the late
Madam Adwoa Boah as a loan. He had lost his son and he had to travel to
Republic of Togo for the funeral of the deceased son. He needed more money for
his travel to Togo and he approached the said Madam Adwoa Boah, mother of the
Respondent for assistance. She gave him £270 to be repaid during the next cocoa
season.<o:p></o:p>On
his return Madam Adwoa Boah came to demand her money. As he could not
immediately repay the loan he allowed the woman to farm on a portion of his
virgin forest, but he directed her to plant food crops for herself and cocoa
for him and also that she should sell the foodstuffs from the farm and set off
the proceeds of sale against the loan. To this Madam Boah agreed and she was
able to repay herself from the said sale of foodstuffs from the farm before she
died. When Madam Boah died he took over his land. At page 34 of the Record,
however the Appellant described late Madam Boah as his Abusa Tenant in respect
of the land he gave her in 1971. He then shifts from this stance and says one
Ayim, a brother of Respondent made a complaint against him in respect of late
Madam Adwoa Boah's farm to the Akwaboahene who arbitrated on the matter and found
Ayim liable but when pressed he Appellant could not say what the award which
was made in his favour was. He said he had forgotten it. Appellant also said
Ayim once stole his farm produce and he reported the theft to the Police who
made Ayim pay for the value of items stolen in settlement of the complaint.
Appellant thus denied Plaintiff's claim in the court below even though he made
no counterclaim against Respondent. <o:p></o:p>The
grounds of appeal and additional grounds are as follows: <o:p></o:p>(i)
Since Respondents witnesses admitted in evidence that a valid arbitration had
been held between Appellant and family of Respondent regarding title to the
disputed land which had been awarded to Appellant, the learned trial Judge
erred by entering judgment for the Respondent. <o:p></o:p>