BUOKERI TOKUORIAND OTHERS vs. MWINE KANDA [2010]DLCA3075

Date	2010-11-26
Suit No.	CIVIL APPEAL NO. H1/18/2009
Citation No.	[2010]DLCA3075

MARIAMA OWUSU (MISS) J.A. (PRESIDING)

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

[2010]DLCA3075
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													<main id="main" class="content" style="min-height: 60rem" >BUOKERI TOKUORIAND OTHERS<o:p></o:p>vs.<o:p></o:p>MWINE KANDA<o:p></o:p>[COURT
OF APPEAL, KUMASI]<o:p></o:p>CIVIL APPEAL NO. H1/18/2009&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; DATED:
26TH NOVEMBER, 2010<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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</div>CORAM:<o:p></o:p>MARIAMA OWUSU (MISS) J.A. (PRESIDING), F.G.
KORBIEH J.A., IRENE C. DANQUAH (MS.) J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGEMENT<o:p></o:p>

</div>F.G. KORBIEH, J.A.<o:p></o:p><o:p>&nbsp;</o:p>This appeal emanates from the Circuit
Court, Wa which was presided over by His Honour, Anthony K. Amoah-Aturu. It is
important to recount the events that led to the appeal at this stage. The suit
was ostensibly commenced by one Mwine Kanda who purportedly issued a writ of
summons wherein he described himself as the “Yidana of Guo-Dorimon Traditional
Area”. Mwine Kanda purportedly asked for the following reliefs from the court
below: 1. a declaration of title to a large parcel of land lying to the western
side of a foot path on the Wa-Dorimon road; 2. perpetual injunction restraining
the appellants, their heirs, workmen and any person claiming title through them
from interfering with “the plaintiff’s peaceful enjoyment of the land.”; 3. an
order that the appellants remove their pegs from the land and 4. damages for
trespass. The case for the plaintiff/respondent in the court below (as
contained his pleadings) was that the plaintiff (i.e. Mwine Kanda) was the
“Yidana of Guo-Dorimon Traditional Area Lands” and the “Tendana of the entire
Dakpam-yiri Royal Gate of Dorimon Traditional Area” and that he had instituted
the action as such; that the plaintiff’s ancestors were “descendants of Dagbon in
the Yendi Traditional Area” who, led by their leader, Kanda, fought battles all
the way from Yendi to their present settlement where his said ancestors settled
and took possession of the land which was vacant; that the boundary between the
plaintiff’s land and the appellants’ land is a foot path that starts on the
Wa-Dorimon road and runs south-west wards “to and beyond Nakori Dam to join the
Nakori-Vieri road to the South, all measuring a distance of about 8 km more or
less”; that this boundary had been respected by all until 1997 when the action
of the Nakori-Naa precipitated a boundary dispute which was subsequently
referred to the then Wa-Naa, Naa Momori, who went into the matter and declared
the boundary between the parties as the foot path which decision all accepted;
that in April, 2006 the defendants/appellants put pegs on the
plaintiff/respondent’s side of the land and all attempts to persuade them to
remove the pegs failed; that this resulted in another dispute that also went to
the Wa-Naa at the time but no solution was found to the problem; hence the
plaintiff’s action in court. The defendants/appellants denied most of the
averments made by the plaintiff/respondent (i.e. Mwine Kanda) and especially
denied that the plaintiff/respondent (or Mwine Kanda) was the “Yidana” and
“Tendana” of Guo. They averred that one Pembu was the “Yidana” of Guo whilst
Kawkpe and Mwengu were the “Tendamba” of Guo. They also averred as follows:
that they were the first settlers on the land and had been there for over six
enturies; that the boundary between their land and plaintiff’s land is the
Kompieni stream or valley which runs “from a point just off a footpath on the
Wa-Dorimon Road, and runs the whole length to cross the Wa- Vieri Road”; that
boundaries between neighbouring communities were usually shown by natural
features; that there had been a dispute between Nakori and Chansa over a piece
of land “beyond Gyeribulee on the Nakori-Vieri Road” and that Naa Bondiri
Momori had re-stated the boundary between the Nakori and Guo-Dorimon lands to
be the Kompieni stream or valley; that in the second dispute that went to
Wa-Naa Seidu Soalia, the Wa-Naa sent one Froko to inspect the land and based on
Froko’s report the Wa-Naa expressed surprise at the respondent’s claim and accordingly
ignored the claim. The defendants/appellants then made a counter-claim for the
following reliefs: 1. “A declaration of title to all that piece or parcel of
land starting at a point on the Wa-Dorimon Road some 5 km from Wa at a footpath
leading southwards and upon encountering the Kompieni valley following the
valley (stream) southwestward for distance of some 8 km until it reaches the
Wa-Vieri Road”. 2. A declaration that the boundary between plaintiff’s land and
defendants’ land is the Kompieni valley. 3. Perpetual injunction restraining
plaintiffs from laying claim to or trespassing on the defendants’ land. At the
close of pleadings, the issues set down for trial were as follows: 1. Whether
or not the plaintiff is the Yidana of the Guo-Dorimon Traditional Area; 2.
Whether or not the plaintiff’s ancestors were the first to settle on the land
now known as the Guo-Dorimon Traditional Area; 3. “Whether the boundary between
the land of the Plaintiff’s Traditional Area and the land of Nakori is a footpath&nbsp; starting about 5 km on the Wa-Dorimon Road to
the North and follows a path running South Westwards to join the Wa-Vieri road
or the Kompini stream (valley)”; 4. Whether the site given to the Ahmadiyya
Mission to build their hospital west of the boundary as asserted by the
plaintiff was eventually determined to be the plaintiff’s Traditional Area land
by Wa-Naa Momori Bondiri; 5.Whether the late Wa-Naa Momori Bondiri found as a
fact that the boundary between the plaintiff’s Traditional Area land and that
of Nakori was what the plaintiff says it is or what the defendants say it is;
6. Whether or not the plaintiff is entitled to his claim; 7. Whether or not the
defendants are entitled to their claim on their counterclaim; 8. Any other
issues emanating from the pleadings.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>After the application for directions
was taken but before the trial begun, one Asumah Gewira, claiming to be the
customary successor of the plaintiff, applied by motion ex parte, to be
substituted for the plaintiff, whom he said, had died. The application was
granted and the said Asumah Gewira</main>