OPANIN KWASI DONKOR vs. KOFI LAMAYA & 4 ORS. [2006]DLCA6555

Date	2006-05-26
Suit No.	CIVIL APPEAL NO. 14/2003
Citation No.	[2006]DLCA6555

OWUSU J.A. [PRESIDING]

TWENEBOA-KODUA J.A.

ANIM J.A.

MR. ADJABENG AKRASI FOR DEFENDANTS/RESPS

MR. FRED AWUAH FOR THE PLAINTIFF/APPELLANT

[2006]DLCA6555
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN KWASI DONKOR<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>KOFI LAMAYA &amp; 4 ORS.<o:p></o:p>(DEFENDANTS/RESPONDANTS)<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;
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CIVIL
APPEAL NO. 14/2003&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 26TH MAY, 2006.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. ADJABENG AKRASI FOR DEFENDANTS/RESPS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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&nbsp;MR. FRED AWUAH FOR THE PLAINTIFF/APPELLANT<o:p></o:p>

</div>CORAM:<o:p></o:p>OWUSU J.A. [PRESIDING], TWENEBOA-KODUA J.A., ANIM 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;border:none;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>&nbsp;ANIM, J.A. <o:p></o:p>This is a an appeal from
the Judgment of His Honour I. Lartey-Young [as he then was] of the Circuit
Court, Tarkwa, dated 2nd September, 2002.<o:p></o:p>&nbsp;On 26th January 2001 the Plaintiff/Appellant
[hereinafter referred to as "the Plaintiff"] commenced action at the
Circuit Court, Tarkwa, against the Defendants/Respondents [herein after referred
to as "the Defendants". <o:p></o:p>By his writ of summons the
Plaintiff asked the Court for:—<o:p></o:p>&nbsp;[a] Recovery of Possession of all that piece
of secondary Forest Land situate at a place commonly known and called
"SUBRITIFI" on the BEPON STOOL LAND bounded by the properties of Agya
Owuo, Atta Boadi, Opanin Armah, Nana Badu and River Subri.<o:p></o:p>&nbsp;[b] Declaration of title.<o:p></o:p>&nbsp;[c] Damages for trespass<o:p></o:p>&nbsp;[d] Perpetual Injunction. <o:p></o:p>The brief facts are that
the Plaintiff contends by his statement of claim that he is the grandson of the
late Kwabena Asare who originally acquired the piece of land, portion of which
is the disputed land and that after his death the land had become family
property. The Defendants, however, claim that it is never true, that the land
belonged to the late Kwabena Asare. They averred that the land in dispute was a
virgin forest cultivated by the 1st Defendant for the benefit of his children. <o:p></o:p>On 6th February, 2001 the
Plaintiff joined issue with the Defendants and the issues as set down in the
Summons for Directions filed on the same date for determination were as
follows:— <o:p></o:p>[a] Whether or not the
Plaintiff is entitled to the reliefs he seeks;<o:p></o:p>&nbsp;[b] whether or not the 1st Defendant was the
one who cultivated the virgin forest for the benefit of his children.<o:p></o:p>&nbsp;After a full trial and an evaluation of the
evidence the learned trial judge gave judgment for the Defendants on the 2nd
day of September 2001. <o:p></o:p>Aggrieved by and
dissatisfied with the said judgment the Plaintiff has appealed to this court on
the following grounds, namely:—<o:p></o:p>&nbsp;[a] The judgment is against the weight of
evidence. <o:p></o:p>[b]
The learned trial judge misdirected himself on the issues at stake. <o:p></o:p>[c]
The learned trial judge misdirected himself on the actual Land in dispute and
made a finding on land that is not in contention. <o:p></o:p>[d]
The learned trial judge misdirected himself on the evidence of a witness whose
evidence was not tested and dwelled on it to give judgment against appellant. <o:p></o:p>[e]
Additional grounds to be filed upon receipt of record of Proceedings <o:p></o:p>Significantly, no
additional grounds of appeal have been filed. Furthermore, the Plaintiff in his
statement of case filed on 9/1/2004 argued only grounds [a] and [d] set down in
the Notice of Appeal. The Plaintiff is therefore deemed to have abandoned Grounds
[b] and [c] of the notice of Appeal.<o:p></o:p>&nbsp;On 28th April, 2006, the date set down for
judgment, the question as to the capacity of the plaintiff came up for
consideration. The court therefore, ordered that the plaintiff should file his
address on that issue on of before the 5th of May, 2006. The defendant was also
to respond on or before 12th May, 2006. The suit was thus adjourned for
judgment on 19th May 2006. It is significant to note that as the time of
writing the judgment on 17th May 2006 only the plaintiff's address was on the
file. On 19th May 2006, just as judgment was about to be read, Learned counsel
for the defendant graved the Court's indulgence to be heard. He explained to
the Court that he was served with the plaintiff's submission on capacity on the
11th of May and that he filed his reply on the 17th May 2006. Counsel therefore
prayed the court for his reply to be accepted and encompassed as part of the
proceedings. The Court granted Counsel's request and adjourned the case once
more to 26th May 2006 for judgment. It follows that submissions from both the
plaintiff and the defendant were received for consideration on the issue of
capacity.<o:p></o:p>&nbsp;In arguing this issue learned Counsel for the
plaintiff submitted </main>