NANA ATWERE BEDIAKO vs. OSEI OSWUSU ALIAS OSEI OWUSU ACHAW [2010]DLCA3129

Date	2010-01-29
Suit No.	CIVIL APPEAL NO. H1/10/2009
Citation No.	[2010]DLCA3129

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

F.G. KORBIEH J.A.

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

SOMOAH-ASAMOAH FOR DEFENDANT/ APPELLANT.

ANANE QUABA FOR PLAITNTIFF/RESPONDENT.

[2010]DLCA3129
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													<main id="main" class="content" style="min-height: 60rem" >NANA ATWERE BEDIAKO<o:p></o:p>vs.<o:p></o:p>OSEI OSWUSU ALIAS OSEI OWUSU ACHAW<o:p></o:p>[COURT OF APPEAL, KUMASI]<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. H1/10/2009&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; 29TH JANUARY, 2010.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SOMOAH-ASAMOAH FOR DEFENDANT/
APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ANANE QUABA FOR
PLAITNTIFF/RESPONDENT.<o:p></o:p>

</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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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>FRANCIS
G. KORBIEH J.A.:<o:p></o:p>This is an appeal against the
judgment of the High Court, Kumasi presided over by His Lordship Frank Amoah, J.&nbsp; The brief facts leading to the appeal are as
follows:-&nbsp; on the 23/1/2003, the plaintiff/respondent
(hereinafter referred to as the respondent) sued the defendant/appellant
(hereinafter referred to as the appellant) in the Kumasi High Court claiming
the following reliefs: <o:p></o:p>“(a)
Declaration of title to all that 15 acre piece and parcel of land encompassing
situate and lying at Amanfrom near Kumasi and bounded by the properties of
Abondease Stool land.&nbsp; <o:p></o:p>(b)
Declaration that the defendant is liable to forfeit the land described in
paragraph (a) <o:p></o:p>(
c) Order for recovery of possession of the said 15 acre parcel of land. <o:p></o:p>(d)
Order of perpetual injunction against the defendant herein whether by himself
or his servants, agents workmen or assigns from in anyway interfering with the
plaintiff’s possession occupation and enjoyment of the said plots.” <o:p></o:p><o:p>&nbsp;</o:p>The respondent’s case was that in
1990, the appellant acquired 15.4 acres of land from him in his capacity as the
chief of Amanfrom and occupant of the Abondwease stool; that the grant was made
to the appellant on the understanding that the appellant would provide
electricity and pipe-borne water to the Amanfrom Community and pay a token sum
of (GH¢270.00);&nbsp; that apart from the
payment of the GH¢270.00, the appellant failed to perform his obligations under
the grant; that in 2001 it came to the notice of the respondent that the
appellant had wrongfully and unlawfully demarcated the land granted into plots
for sale to private developers for residential accommodation; that the
respondent caused his solicitors to write to the appellant drawing his
attention to the breach of the terms and conditions of the grant and to remedy
the same failing which the respondent would re-enter and the appellant would forfeit
the land; that even though the appellant received the letter, he failed to
comply and persisted in selling the plots; that the appellant later framed him
and two others up on charges of threat of death but that all three of them were
acquitted and discharged by the criminal tribunal; that during the criminal
proceedings the appellant admitted having sold 15 plots of the disputed
land.&nbsp; In his defence, the appellant
denied most of the material averments of fact including the averment that he
was supposed to supply electricity and pipe-borne water to the Amanfrom
community; he also averred as follows: that the demarcation and sale of the
land had been done with the prior consent of the respondent’s elders; that his
obligation was to build a church and a school (which he had done) and no more;
that he reported the respondent to the police after the respondent and some 15
“machomen” had tried to disrupt the construction of the school building; that
he had not breached any term or condition of the grant.&nbsp;&nbsp; He then counter-claimed for a declaration of
title to the land and other reliefs, contending that the respondent’s elders
had defrauded him by selling some of the plots and under-declaring the amount
of money received therefrom. <o:p></o:p><o:p>&nbsp;</o:p>At the close of pleadings, thirteen
issues were set down for determination, including the following two that the
trial court had set down suo moto: <o:p></o:p>1.&nbsp;
Whether or not the appellant could alienate parts of the land &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;without the consent of the respondent;
and<o:p></o:p>2.&nbsp;
Whether or not the land given to the appellant was a customary grant or
sale of land. <o:p></o:p>At the end of the&nbsp; trial, the trial court gave judgment in
favour of the respondent based primarily on the reasoning that the land in
dispute was acquired under a customary grant.&nbsp;
It then proceeded to grant the respondent all the reliefs asked for in
the writ of summons. <o:p></o:p><o:p>&nbsp;</o:p>It is against this judgment that the
appellant has appealed on the sole ground that the judgment it against the weight
of the evidence.&nbsp; In his submissions to
this Court, learned counsel for the appellant recognized that he had a duty to
satisfy the Court in accordance with the requirements of the law as set out in
the case of Djin&nbsp; v. Musah Baako [2007-2008] SCGLR 686
which are basically that either certain pieces of evidence on record, which, if
applied in his favour, could have changed the decision in his favour or that
certain pieces of evidence had been wrongly applied against him and the onus
was on such an appellant to demonstrate to the appellate court the lapses in
the judgment appealed against.&nbsp; Counsel
thereafter proceeded to contend as follows; that the only written record of the
grant was the allocation paper and that the only express condition were those
found in exhibit 1; that the respondent’s reliefs were sought on the basis of
the breach of the terms of the grant which the respondent had claimed to be (a)
the payment of GH¢270.00, (b) the provision of electricity to the Amanfrom
community and ( c) the provision of pipe-borne water to the Amanfrom community;
that the trial judge himself had found that apart from the payment of the
money, (which had been done) the other two were not conditions for the grand of
the land in dispute; that the trial judge had based his decision and the order
of forfeiture on the ground that the appellant had breached the conditions of
the grant by selling po</main>