AWUKU KONGLO BOKOR vs. MANKRALO JAMES ASAFO (DEC.) & 2 OTHRS [2006]DLCA6648

Date	2006-03-10
Suit No.	H1/144/05
Citation No.	[2006]DLCA6648

ARYEETEY JA [PRESIDING]

ANIM JA

APALOO JA

MR. W.A.N. BOSSMAN FOR PLAINTIFF/APPELLANT

MR. ALFRED AGBESI FOR 1ST DEFENDANT/RESPONDENT

MR. CHARLES HAYIBOR FOR 2ND DEFENDANT/RESPONDENT

[2006]DLCA6648
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													<main id="main" class="content" style="min-height: 60rem" >AWUKU KONGLO BOKOR<o:p></o:p>vs.<o:p></o:p>MANKRALO JAMES ASAFO
(DEC.) &amp; 2 OTHRS<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">

H1/144/05&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 10TH MARCH, 2006<o:p></o:p>

MR.
CHARLES HAYIBOR FOR 2ND DEFENDANT/RESPONDENT.<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">JUDGMENT<o:p></o:p>

</div>APALOO, JA <o:p></o:p>This
appeal emanates from the judgment of the High Court Ho, dated 15th November
1996.&nbsp; The Court was presided by his
Lordship G.K. Acquah then a Supreme Court Judge sitting as additional High
Court Judge. <o:p></o:p>The
trial judge entered judgment for the Plaintiff against the 1st Defendant for a
declaration that the Plaintiff is the owner of the Bokor land.&nbsp; While dismissing 1st Defendant's
counter-claim the trial Judge refused Plaintiff's reliefs for damages and
perpetual injunction against the 1st Defendant. <o:p></o:p>The
Plaintiff had sought by his writ the following reliefs. <o:p></o:p>(a)
A declaration that the Defendant was a mere tenant or alternatively a licensee
of the Plaintiff in respect of the land in dispute. <o:p></o:p>(b)
Damages for trespass. <o:p></o:p>(c)
Perpetual injunction restraining the Defendant's Afloto family, their servants,
agents etc. from further felling the Bokor family's oil palms or making any
fresh cultivation of the said parcel of land without the consent in writing of
the Plaintiff. <o:p></o:p>By
his defence the 1st Defendant stated among others that the land, the subject
matter of the claim devolved on the Mankralo or chief but subject to user by
both Plaintiff and Defendant's families respectively.&nbsp; 1st Defendant added that the palm trees felled
by him were his bona fide property. <o:p></o:p>The
2nd Defendant who joined the suit as Co-defendant by a statement of defence
averred particularly by his paragraphs 3, 4 and 5 as follows:— <o:p></o:p>(3)
The Co-defendant says that the land in dispute, which is known as Dzawoe land
was founded by his great ancestor by the name Tsrienye. <o:p></o:p>(4)
The Co-defendant says that the Dzawoe land is bounded as follows: On one side
by the Gevier tribal land.&nbsp; On one side
by the Plaintiff, on one side by the Defendant and on one side by the property
of the Co-defendant. <o:p></o:p>(5)
The Co-defendant says that both he and his predecessors have been in undisputed
possession of the said Dzawoe land and have exercised and continue to exercise
overt acts of ownership over same without let or hindrance. <o:p></o:p>Two
appeals were filed for determination.&nbsp;
The first by 2nd Defendant/Appellant and the second by the
Plaintiff/Appellant.&nbsp; The first appeal
attacked the judgment affecting the 2nd Defendant and his claims to the Dzawoe
land.&nbsp; His grounds were that the judgment
was against the weight of evidence and that the trial judge failed to correctly
define the boundaries established between the Plaintiff's Bokor land and the
2nd Defendant's Dzawoe land as clearly set out in the ease. <o:p></o:p>The
Plaintiff/Appellant complained that <o:p></o:p>(a)
"So much of the judgment as found that the 1st Defendant's predecessors
has (sic) consistently accepted that the land was for Bokor." And <o:p></o:p>(b)
the refusal of the learned trial Judge to award the Plaintiff damages on the
ground that the Plaintiff failed to establish that the felling of the palm
trees occurred on the Plaintiff's exclusive domain on the land. <o:p></o:p>(c)
the failure of the trial judge to exercise his discretionary power under Rule
32 of L.I. 128 for the purposes of a complete adjudication of all material
points of difference between the Plaintiff and Defendant. <o:p></o:p>The
grounds of appeal of the Plaintiff/Appellant repeated particulars contained in
his complaints against the judgment with details thereof. <o:p></o:p>The
case for the Plaintiff was that 500 acre land in dispute was given to his
ancestor Bokor by a Gevier clan man called Gbettor as payment in kind in return
for a loan.&nbsp; Defendant's case was that
Gbettor gave the land to Bokor and Afloto together as brothers.&nbsp; Bokor was the Plaintiff's ancestor and Afloto
was the ancestor of the 1st Defendant.&nbsp;
The 2nd Defendant claimed the land in dispute as his family land and
referred to it as Dzawoe lands.&nbsp; He
pleaded a number of judgments as having demarcated the boundary between his
land and that of the Plaintiff. <o:p></o:p>