EBUSUAPANYIN KWEKU SAM AND JUSTICE PETER ANSAH (PLAINTIFFS) vs. NANA OSHEWOKAW ESAA II (DEFENDANT) [2008]DLHC7413

EBUSUAPANYIN KWEKU SAM AND JUSTICE PETER ANSAH (PLAINTIFFS) vs. NANA OSHEWOKAW E... [2008]DLHC7413

Date	2008-01-29
Suit No.	LAND 19/2000 29/1/200B
Citation No.	[2008]DLHC7413

ALHAJI M.A. MUSTAPHA J

[2008]DLHC7413
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													<main id="main" class="content" style="min-height: 60rem" >EBUSUAPANYIN KWEKU SAM AND JUSTICE PETER ANSAH<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>NANA OSHEWOKAW ESAA II<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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19/2000 29/1/200B&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 29TH JANUARY
2008.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ALHAJI M.A. MUSTAPHA, J<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>By
their writ of summons, plaintiffs claim against defendant: <o:p></o:p>(a)
Declaration of title to all that piece or parcel of land situate and lying at
Gomoa Amanful and bounded by the properties of Opanyin Afedzi on one side; on
another side by the property of Maame Ketuwa and on another by the property of
Opanyin Kow Arko. <o:p></o:p>(b)
An order for the payment of the sum of ¢582,500.00 being arbitration award made
against defendant by an arbitration panel chaired by Nana Attakum Atta, S <o:p></o:p>(c)
Senior Divisional Chief of Gomoa Assin Traditional Area in respect of the land
in dispute. <o:p></o:p>(d)
Damages for trespass. <o:p></o:p>(e)
An order for the recovery of possession. <o:p></o:p>(f)
An order for accounts in respect of all palm trees defendant had felled and
charcoal burned by defendant. <o:p></o:p>(g)
Perpetual injunction restraining defendant from interfering with plaintiffs'
title to the land in dispute. <o:p></o:p>The
case of plaintiffs is that the virgin forest of the disputed land was broken by
their ancestor Kwaa Kum who was a herbalist. The said Kwaa Kum lived on the
land to treat his mental patients. The plaintiffs further contend that ever
since the death of Kwaa Kum, his descendants (including plaintiffs) have
continued to be on the land. According to plaintiffs in 1999, defendant
trespassed unto portion of the land to farm. The matter was reported to one
Nana Attakum Atta, a Divisional Chief of Gomoa Assin; the panel heard the case,
visited the locus in the company of the parties and gave judgment in favour of
plaintiffs. On the other hand, defendant contends that the virgin forest was
broken by his ancestor Esa Broni; that subsequent ancestors settled on the
land; that his ancestor Essilfie also settled on the land. According to
defendant, the said Nana Kwaa Kum was a herbalist practicing at Gomoa Amanful;
that his mental patients were creating nuisance at the village, so he was
ordered to leave the village with his patients. He approached Essilfie who
graciously permitted him to settle on a portion of the disputed land. He
therefore denied that it was the said Kwaa Kum who broke the virgin forest.
After pleadings had closed, the underlisted issues were set down for trial— <o:p></o:p>(a)
Whether or not the virgin forest of the land in dispute was broken by
plaintiffs' ancestor Kwaa Kum. <o:p></o:p>(b)
Whether or not plaintiffs' family have been in possession and occupation of the
land in dispute since time immemorial. <o:p></o:p>(c)
Whether or not there was a valid arbitration between the parties before Nana
Atta Kum and his panel. <o:p></o:p>(d)
Whether or not defendant is estopped by the verdict of the arbitration panel.
(e) Whether or not plaintiffs are entitled to their claim. <o:p></o:p>(f)
Any other issues arising out of the pleadings. <o:p></o:p>The
case of the plaintiffs was presented through 2nd plaintiff, Nana Atakum Atta,
(PW1) and Kweku Afedzi. 2nd plaintiff told the court almost as per the
statement of claim. He said his ancestor built a cottage on the land,
constructed a well and built a cemetery where his patients were buried and
another one when his ancestors were buried. 2nd plaintiff said the arbitration
panel visited the locus and found defendant liable. Under cross-examination, he
denied that no award was published; he also denied that defendant refused to
submit to the arbitration.<o:p></o:p>PW1
— Nana Atakum Atta said he chaired the arbitration panel and that the merits of
the matter were gone into; that the panel visited the locus and that due to a
fetish grove, a ram had to be slaughtered before the exercise/inspection could
begin. He said finally the panel gave a verdict in favour of plaintiffs. PW1
denied under cross-examination that defendant refused to submit himself to the
arbitration. He also denied that defendant reported his (PW1's) conduct to the
Omanhene of Gomoa Assin Traditional Area subsequent upon which he (PW1) was
destooled. He insisted that both parties gave evidence and called witnesses,
after which the locus was visited. <o:p></o:p>