NANA AMA AMPONSAH vs. FRANKLYN AMOAH NYAMAAH [2009]DLSC2716

Date	2009-02-11
Suit No.	CIVIL APPEAL NO. J4/10/2008
Citation No.	[2009]DLSC2716

WOOD (MRS) C.J (PRESIDING)

ANSAH J.S.C

DOTSE J.S.C

ANIN YEBOAH J.S.C

BAFFOE-BONNIE J.S.C.

CHARLES HAYIBOR FOR THE CO-DEFENDANT/APPELLANT/APPELLANT

AKWASI OPOKU FOR THE PLAINTIFF/RESPONDENT/RESPONDENT

[2009]DLSC2716
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													<main id="main" class="content" style="min-height: 60rem" >NANA AMA AMPONSAH<o:p></o:p>vs.<o:p></o:p>FRANKLYN AMOAH NYAMAAH<o:p></o:p>[SUPREME
COURT]<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">

CIVIL
APPEAL NO. J4/10/2008&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 11TH FEBRUARY, 2009.<o:p></o:p>

</div>COUNSEL<o:p></o:p>CHARLES
HAYIBOR FOR THE CO-DEFENDANT/APPELLANT/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">

AKWASI
OPOKU FOR THE PLAINTIFF/RESPONDENT/RESPONDENT<o:p></o:p>

</div>CORAM:&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">

WOOD
(MRS) C.J (PRESIDING), ANSAH J.S.C, DOTSE J.S.C, ANIN YEBOAH J.S.C,
BAFFOE-BONNIE J.S.C.<o:p></o:p>

</div>J U D G M E N T<o:p></o:p>&nbsp;ANSAH, J.S.C.<o:p></o:p>The
plaintiff sued the defendants in the High Court, Agona Swedru, for<o:p></o:p>(a)&nbsp; a declaration of title and recovery of
possession of a piece or parcel of land situate lying and being at a place&nbsp; commonly known and called Ayensuako and
bounded as follows on the North by Kwa-Baa, Kobina Dadzie, Okuta and Ayensuako
stream<o:p></o:p>On
the North by Kojo Ahoro, Kwa-Otuo, Kwaku Bu.<o:p></o:p>On
the East by Kojo Ahoro, Ofadaa lands.<o:p></o:p>On
the West by Ayensu River.<o:p></o:p>(b)&nbsp;&nbsp; ¢20,000,000.00 general damages for trespass.<o:p></o:p>(c)&nbsp; Order for accounts, and;<o:p></o:p>(d)
Perpetual Injunction restraining defendants and agents and assigns from
interfering with plaintiff’s peaceful enjoyment of the land in dispute.<o:p></o:p>In
support of his case, the plaintiff stated Nana Kofi Antwi I, also known as
Ofinam, first settled on the land in dispute as a tribute paying tenant to the
Duakwa Stool. In 1914 he agreed to a request by his brother Osimpo the
herbalist and his children, to join him to till the land. They went to the land
acknowledging Nana Antwi I as their overlord. Osimpo died in 1925 but his
children remained on the land on the leave and license of Nana Kofi Antwi I. <o:p></o:p>Later
in 1928, the Chief of Duakwa, Nana Amuakwa I, offered the land to Nana Kofi
Antwi I for sale. Nana Kofi Antwi I accepted the offer, and the land was sold
to him for #465.10. When the money was paid a receipt was issued to acknowledge
payment. This was tendered at the trial as Exhibit A. The plaintiff tendered
Exhibit B dated 1930 prepared to evidence the sale, to prove his assertion of
the sale of the land to his predecessor in title.<o:p></o:p>The
plaintiff traced the sequence of succession that when Nana Kofi Antwi I died in
1930; he was succeeded by Nana Kofi Antwi II, till it got to the turn of Nana
Kofi Antwi V, the present plaintiff at the trial.&nbsp;&nbsp;&nbsp; <o:p></o:p>It
was in 1976 when Nana Kofi Antwi II died that a faction of the Ayensuako elders
enstooled one Kwaku Arhin, a grand-child of Osimpo, as the chief of Ayensuako.
Ofinam’s successors brought an action at the Awutu Traditional Council seeking
an order to destool Kwaku Arhin. Kwaku Arhin himself conceded that he was not a
chief of Ayensuako and therefore withdrew his claim. Accordingly Nai Awulabi
was enstooled as Nana Kofi Antwi IV and controlled the lands of Ofinam until he
died in 1997.<o:p></o:p>In
2000, the plaintiff was enstooled as Nana Kofi Antwi V and one Akyeampong
slaughtered a sheep to claim the land in dispute, for it had been jointly
purchased by Ofinam and Osimpo and he had come to claim the portion that went
to Osimpo his ancestor. His action was opposed by the plaintiff who reported
the matter to the Police.<o:p></o:p>It
was after these events that it came to light that the second defendant had
felled fifty palm trees on the land; it was further revealed it was the first
defendant who authorized him to do that. The result was the institution of the
suit that has traveled the whole distance to this court.<o:p></o:p>On
the other hand the defendant, the respondent in this appeal pleaded that the
land was acquired jointly by Ofinam and his cousins, who only allowed him to
use his name in the documentation for he was the educated and eldest amongst
them.&nbsp;&nbsp; <o:p></o:p>The
suit being one for a declaration of title the plaintiffs have an onerous burden
to discharge. This is trite law. Akoto II v Kavege [1984-86] 2 GLR 365, C.A,
decided in an action of declaration of title in a judgment read by Francois JSC
that:<o:p></o:p>&nbsp;<o:p></o:p>“The
suit being one for a declaration of title, the plaintiffs have an onerous
burden to discharge. This is trite law and would have necessitated no further
comment but for the procedure adopted by the plaintiffs of throwing this burden
to the winds. No root of title was disclosed. Neither the tradition of
acquisition of an inherited estate nor the incidents of purchase, if acquired
by sale were divulged. No clear and positive acts of unchallenged and sustained
possession or of substantial user emerged from the evidence. The boundaries of
the land were not established. No boundary neighbors were called to testify to
the ownership of the adjoining lands.”<o:p></o:p>Akoto
II v Kavege (supra) laid in pithy terms what a plaintiff in an action for
declaration of title to land must prove on the preponderance of probabilities
in order to secure a verdict by the court in his favor.<o:p></o:p><</main>