NANA YAW BOAKYEM vs. OPANYIN KWAME ATIA & SETH ASANTE [2005]DLSC2409

Date	2005-06-20
Suit No.	CIVIL APPEAL NO.J4/30/2004
Citation No.	[2005]DLSC2409

AKUFFO (MS) J.S.C. (PRESIDING)

WOOD (MRS) J.S.C.

DR. TWUM J.S.C

ANSAH J.S.C

ANINAKWAH J.S.C.

MR. E. NARH FOR APPELLANT.

MR. BOB SENYALAH FOR RESPONDENT.

[2005]DLSC2409
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													<main id="main" class="content" style="min-height: 60rem" >NANA YAW BOAKYEM<o:p></o:p>vs.<o:p></o:p>OPANYIN KWAME ATIA &amp; SETH ASANTE<o:p></o:p>[SUPREME COURT]<o:p></o:p>CIVIL
APPEAL NO.J4/30/2004<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: 20TH JULY 2005.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>&nbsp;MR. E. NARH FOR 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.
BOB SENYALAH FOR RESPONDENT.<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">

AKUFFO
(MS), J.S.C. (PRESIDING), WOOD, (MRS), J.S.C., DR. TWUM, J.S.C., ANSAH, J.S.C.,
ANINAKWAH, J.S.C.<o:p></o:p>

</div>J U D G E M E N T<o:p></o:p>ANINAKWAH, J.S.C.: <o:p></o:p>This
appeal is by the Plaintiff/Respondent/Appellant (hereafter referred to as the
plaintiff from the judgment of the Court of Appeal dated the 15th day of June
2002 reversing the Judgment of the High Court Koforidua, dated the 25th day of
June 1998. The Defendant! Appellants/Respondents shall hereafter be referred to
as 1st and 2nd Defendants.<o:p></o:p>On
or about the 7th day of July 1988, the plaintiff issued the writ of summons at
the Registry of the Koforidua High Court, claiming for:<o:p></o:p>(a)
A declaration of title to the land more particularly described the schedule
hereunder.<o:p></o:p>(b)
¢5,000,000.00 - General Damages for trespass<o:p></o:p>(c)
An order of perpetual injunction restraining the Defendants,<o:p></o:p>Their
agents/ servants and privies from further entry unto the Land.<o:p></o:p>The
schedule heretofore referred to being “ALL THAT PIECE OR PARCEL OF LAND situate
lying and being at Senchi in the Akwarnu Traditional Area and bounded on the
North by the Senchi Stool Lands, on the South by the properties of E. B.
Otinkorang, Daniel Tei, J. D. Awaitey, on the East by the Volta River and Abena
Babla's property, and on the West by the Senchi - Atimpoku Motor Road.<o:p></o:p>The
Writ of Summons IS accompanied by a statement of claim- the first paragraph of
which describes plaintiff as the Son of the late Opanin Kwame Amoaforo and
brings this action on his own behalf and on behalf of his brothers and sisters,
the children of the late Opanin Amoaforo.<o:p></o:p>The
1st&nbsp; Defendant is the chief of Senchi
while the 2nd Defendant is a native of Senchi.<o:p></o:p>The
Defendants through their Solicitors filed their appearance and statement of
Defence denying Plaintiff's claims.<o:p></o:p>The
Plaintiff's case as gathered from his pleading and evidence at the trial is
that his father the late Opanin Kwame Amoaforo - who in his lifetime lived at
Senchi in the Akwamu Traditional area, hailed from Jekiti - Akwamu aforesaid.
His late father died in 1962, survived by five children including himself.
Plaintiff names his said brothers and sisters as Kwaku Agyekum, Kwadwo Sakyi,
Sakyi No.2 and Abena Adwoase.<o:p></o:p>In
1950, the plaintiff's father with the active support of his friends Opanin Dade
Kofi and the 1st Defendant, Chief/Mankrado of Senchi acquired by purchase a
piece and parcel of land covering an area of70.91 acres from one Isaac Mensavi
Dugbatey.<o:p></o:p>This
Mensavi Dugbatey was a citizen of Ada who had lived at Senchi for .a long time
and was leaving for his hometown for good and decided to sell his land. The
Mankrado of Senchi – 1st Defendant herein and Opanin Dade Kofi - a witness in
this case told Opanin Amoaforo of the land. Opanin Amoaforo told them he would
buy the land but he would first inform the Traditional Council for their
approval. This was because as Opanin Dade Kofi put it in his supporting
evidence, Mensah Dugbatey was a stranger leaving Senchi for his hometown, so
Opanin Amoaforo wanted to buy the land publicly as he did not want any shoddy
deal. The Akwamu State Council met and approved of the sale. Among the elders
present at the State Council meeting were Opanin Dade Kofi and the
Chief/Mankorado of Senchi, the 1st Defendant herein.<o:p></o:p>After
the endorsement of the sale by the State Council the land was demarcated to
Opanin Amoaforo who bought it for £200. Elders of Senchi including Opanin Dade
Kofi and the 1st Defendant – Chief/Mankrado of Senchi, witnessed the
demarcation.<o:p></o:p>Later
a Deed of Conveyance was executed between Issac Mensavi Dugbatey and Opanin
Kwame Amoaforo to cover the sale transaction.<o:p></o:p>The
Omanhene of Akwamu Traditional Area - Nana Kwafo Akoto II and some of his
elders, endorsed the deed. After the endorsement by the Omanhene, same was
stamped and registered at the Land Registry in Accra&nbsp; as Deeds Registry No. 2115/1960.&nbsp; The Registered deed is in evidence as Exhibit
‘A’.<o:p></o:p>It
is part of plaintiff’s case that after his father had purchased the land, the
father planted corn and oil palm trees.&nbsp;
He also granted portions of the land to tenant formers on tenancy
basis.&nbsp; Plaintiff’s father died in 1962,
after working on the land for 12 years.&nbsp;
He was succeeded by his nephew one Osei Kwaku who continued from where
his late uncle had left off.&nbsp; He, too,
cultivated orn and yam.&nbsp; After working on
the land for sometime, Osei Kwaku called the plaintiff and his brothers and
sisters and told them that after all the land belong to them and that they
should perform the necessary custom for the formal handing over of the land to
them.&nbsp; This statement was repeated by
P.W. 2 Elizabeth Adwoa Amaoforo alias Adwoa Adwoase – sister of the plaintif</main>