OPANIN KWAME ATIA SETH ASANTE vs. NANA YAW BOAKYEM [2005]DLSC2411

Date	2005-06-20
Suit No.	CIVIL APPEAL NO. J4/30/2004
Citation No.	[2005]DLSC2411

MISS AKUFFO J.S.C. (PRESIDING)

MS. WOOD J.S.C

DR. TWUM J.S.C

ANSAH J.S.C

ANINAKWA J.S.C.

MR. E. NARH FOR APPELLANT.

MR. BOB SENYALAH FOR RESPONDENT.

[2005]DLSC2411
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN KWAME ATIA SETH
ASANTE<o:p></o:p>vs.<o:p></o:p>NANA YAW BOAKYEM<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>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;&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">

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

</div><o:p>&nbsp;</o:p>J
U D G E M E N T<o:p></o:p>ANINAKWA.
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)&nbsp;
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)&nbsp;
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 K wame 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 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
K warne 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 K waku 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 1 st
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 - 1
st 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 ChieflMankorado 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 lMankrado of Senchi, witnessed the demarcation.<o:p></o:p>Later a Deed of Conveyance
was executed between Issac Mensavi Dugbatey and Opanin K wame 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 as Deeds Registry No. 211/1960.&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 tress.&nbsp; He also put up buildings
in addtion to what had been built by Dugbatey.&nbsp;
He also granted portions of the land to tenants farmers 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 corn 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 handling over of the land to
them.&nbsp; This statement was repeated by P.
W. 2 Elizabeth Adwoa Amoaforo alias Adwoa Adwoase – sister of the plaintiff –
in her unchallenged evidence to support the gift by Osei Kwaku.&nbsp; Plaintiff and his brothers and sisters duly
performed custom by presenting a sheep and one bottle Schnapps as Aseda;
whereby Osei Kwaku formally gifted the land to them.&nbsp; When plaintiff and his brothers and sisters
were given possession of the land they cultivated corn and other food crops –
until later when Osei Kwaku died.<o:p></o:p>