GILBERT OWUSU-YIANOMA vs. AMOA KORANGTEN & 2 ORS. [2005]DLCA6474

Date	2005-06-10
Suit No.	CIVIL APPEAL NO.: H 1 /216/2004
Citation No.	[2005]DLCA6474

OWUSU J.A. [PRESIDING]

ANIM J.A.

APALOO J.A.

H. D. OWUSU-YIANOMA FOR APPELLANT

FRANK DONKOR FOR RESPONDENTS.

[2005]DLCA6474
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													<main id="main" class="content" style="min-height: 60rem" >GILBERT OWUSU-YIANOMA<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>AMOA KORANGTEN &amp; 2
ORS.<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO.: H 1 /216/2004&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 10TH JUNE, 2005<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">&nbsp;H. D. OWUSU-YIANOMA FOR APPELLANT.<o:p></o:p>

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</div>CORAM: &nbsp;&nbsp;&nbsp;&nbsp;<o:p></o:p>OWUSU
J.A. [PRESIDING], ANIM J.A., APALOO J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>APALOO, J.A.<o:p></o:p>&nbsp;This is an appeal from the decision of the
Circuit Court Asamankese dated 26th April 2000.<o:p></o:p>&nbsp;The parties to this suit are closely related
and hail from Mamfe in the Akwapim District of the Eastern Region. The Plaintiff/Appellant
alleged that his father acquired a piece of land, the subject matter of this
suit and put the first tenant Kwadwo Afum to cultivate it and after his death,
one Madam Manko was appointed caretaker who in turn appointed Kofi Ayigbe as
the tenant farmer. The evidence is that Kofi Ayigbe remained on the land until
about 1982 when he departed to Wassa in the Western Region to cultivate his own
farm.<o:p></o:p>&nbsp;The Co-defendant who claims the land for
herself and some other women pleaded the same facts as to the persons who acted
for and on behalf of the parties, to wit, Kwadwo Afum, Madam Manko and Kofi
Ayigbe. She claims these named persons acted for and on behalf of her
predecessors through whom the land came into her possession and the possession
of the other two women. Kofi Ayigbe was referred to variously as Kofi Robert,
or Asinyo. He lived on the land for well over 40 years.<o:p></o:p>&nbsp;The trial Circuit Court dismissed the
plaintiff's action. There being no counter-claim for consideration of the Court
the status quo ante which disclosed that possession was in the hands of the
Co-defendant remained where it was.<o:p></o:p>&nbsp;The main ground of appeal was that the
judgment is against the weight of evidence. There was indication that
additional grounds will be filed on receipt of the record. The additional
grounds which were filed on 22/7/2004 consisted of nine different narration's
of errors on the part of the trial Court. These narrations pointed, to findings
of fact on the part of the trial judge which in my view are inconsistent with
the provisions contained in Rule 8 of C.I.19, the Court of Appeal Rules. I
shall accordingly ignore them and handle this appeal as one formulated under
the omnibus clause that the judgment is against the weight of evidence. <o:p></o:p>When
directions were taken, out of the ten issues set down for trial, I believe the
first issue is germane to the trial and I shall concentrate on that issue. The
issue being whether or not the disputed land is the property of late Owusu
Yianoma or the joint property of Abena Oye and Ama Afi [Owusu-Yianoma's mother]
I have taken this position because the whole of the evidence led in the Court
below was geared towards the establishment of this issue; <o:p></o:p>This
suit is for a declaration of title to land whose boundaries have been endorsed
in the writ of summons, to wit on one side by the property of Ohene Kwabena on
one side by the property of Ankobea Ofei. On one side by the property of
Kwabena Owusu and on the other side by the Ensu Stream. The reliefs for general
damages and perpetual injunction are ancillary to the main claim for a
declaration of title. The law with respect to a declaration of title to land is
well settled. The plaintiff can only succeed if he is able to and succeeds in
establishing the identity of the land satisfactorily according to law so as to
entitle him to a declaration and other reliefs sought. In Anane vrs. Donkor
[1965] GLR.188 at p.192 the then Supreme Court per Ollenu, J.S.C. as he then
was, stated the law as follows; <o:p></o:p>"Where
a court grants declaration of title to land or makes an order for injunction in
respect of land, the land the subject of that declaration should be clearly
identified so that an order for possession can be executed without difficulty,
and also if the order for injunction is violated, the person in contempt can be
punished. If the boundaries of such land are not clearly established, a
judgment or order of the Court will be in vain. Again a judgment for
declaration of title to land should operate as res judicata to prevent the
parties relitigating the same issues in respect of the identical subject-matter
but it cannot so operate unless the subject matter thereof is clearly
identified. For these reasons a claim for declaration of title or an order for
injunction must always fail if the plaintiff fails to establish positively the
identity of the land to which he claims title to the land the subject matter of
the suit." <o:p></o:p>The
plaintiff/respondent at the Court below gave evidence to establish the identity
of the land in dispute. Indeed there was no dispute whatsoever about the
identity of the land. The dispute associated with the land centered on
ownership and possession. There is no doubt that possession is of great
importance in land law. The decision by the Privy Council in Wuta-Offei vrs.
Danguah [1961] 1 GLR 487 explains the concept of possession. On p.491 the Privy
Council relying on the authority of Bristow vrs Cormican [1878] 3 App. Cas. 641
stated as follows:<o:p></o:p>&nbsp;"The slightest amount of possession would
be sufficient to entitle the person who is so in possession, or claims under
those who have been or are in such possession, to recover as against a mere
trespasser." <o:p></o:p>