[2010]DLCA3656 Login to Read Full Case <span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center"><strong><span style="font-size:12.0pt;line-height:115%; font-family:"Book Antiqua","serif";mso-bidi-font-family:Calibri;color:#00B0F0">REV. BISHOP HAGAR FRIMPONG<o:p></o:p></span></strong></p><p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center"><strong><span style="font-size:12.0pt;line-height:115%; font-family:"Book Antiqua","serif";mso-bidi-font-family:Calibri;color:#00B0F0">vs.<o:p></o:p></span></strong></p><p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center"><strong><span style="font-size:12.0pt;line-height:115%; font-family:"Book Antiqua","serif";mso-bidi-font-family:Calibri;color:#00B0F0">NANA FOASE GYAN AND ANOTHER<o:p></o:p></span></strong></p><p class="MsoNormal" align="center" style="text-align:center"><span style="font-size: 10pt; line-height: 115%; font-family: "Book Antiqua", serif;"> [COURT OF APPEAL, KUMASI]</span><b><span style="font-size:10.0pt;line-height: 115%;font-family:"Book Antiqua","serif";mso-bidi-font-family:Tahoma"><o:p></o:p></span></b></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNoSpacing" style="line-height:115%;border:none;mso-border-bottom-alt: solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-family:"Book Antiqua","serif"">CIVIL APPEAL NO. H1/19/2010 </span><span style="font-family: "Book Antiqua", serif;">DATE: 26</span><sup><span style="font-family:"Book Antiqua","serif"">TH</span></sup><span style="font-family:"Book Antiqua","serif""> NOVEMBER, 2010<em><span style="font-style: normal;"><o:p></o:p></span></em></span></p> </div><p class="MsoNoSpacing" style="line-height:115%"><b><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">CORAM: <o:p></o:p></span></b></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNoSpacing" style="line-height:115%;border:none;mso-border-bottom-alt: solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">MARIAMA OWUSU (MISS), J.A. (PRESIDING), F.G. KORBIEH, J.A. AND IRENE C. DANQUAH (MS.), J.A.<o:p></o:p></span></p> </div><p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt"><b><u><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; mso-bidi-font-family:"Times New Roman""><o:p><span style="text-decoration-line: none;"> </span></o:p></span></u></b></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt; text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt; padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><b><span style="font-size:12.0pt; line-height:115%;font-family:"Book Antiqua","serif";mso-bidi-font-family:"Times New Roman"">JUDGMENT<o:p></o:p></span></b></p> </div><p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt"><b><u><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; mso-bidi-font-family:"Times New Roman"">F.G. KORBIEH, J.A.</span></u></b><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; mso-bidi-font-family:"Times New Roman""> <o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; mso-bidi-font-family:"Times New Roman"">On the 21/4/2005 the plaintiff/appellant (hereinafter only referred to as the appellant) filed a writ at the registry of the High Court, Sunyani, claiming against the defendants/respondents (hereinafter referred to simply as the respondents) three reliefs the second two of which she put together in one claim. The reliefs she sought were: (i) a declaration of title to and possession of two building plots situate at Nkwaeso on Techiman stool land and bounded by the properties of Osofo Mensah, Benjamin Attah Boateng and other plots of the plaintiff on the Techiman-Sunyani motor road; (ii) general damages for trespass and (iii) an order of perpetual injunction to restrain the defendants, their agents, assigns etc from dealing with the disputed land. The appellant’s case before the trial court was that in 2001 she acquired six building plots by way of sale from one Benjamin Attah Boateng and went into possession thereof; that the said Benjamin Attah Boateng executed a statutory declaration confirming his ownership of the plots and his transfer of the same to her; that at the material time the chief of Nkwaeso had died and had not yet been replaced; that when the 1<sup>st</sup> respondent was later installed, she went and introduced herself to him through the afore-mentioned Benjamin Attah Boateng and some other people; that she paid “¢50,000.00 as drink money” to the 1<sup>st</sup> respondent as custom demanded; that she later realized that Benjamin Attah Boateng had sold two of her plots to the 2<sup>nd</sup> respondent; that she lodged a complaint before the Techimanhene who eventually arbitrated the matter; that the Techimanhene directed that she pay ¢1,000,000.00 and a bottle of schnapps to the 1<sup>st</sup> respondent as customary fee for the plots which she did through Okyeame Taakora; that this payment notwithstanding, the 1<sup>st</sup> respondent “went back and permitted the 2<sup>nd</sup> respondent to build on the two plots”; that the 1<sup>st</sup> respondent is estopped from giving the plots in dispute to the 2<sup>nd</sup> respondent; that the acts of the respondents were unlawful and unless they were restrained would dispossess her of her lawfully acquired property; wherefore she sought the reliefs endorsed on her writ of summons. <o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; mso-bidi-font-family:"Times New Roman""><o:p> </o:p></span></p><p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; mso-bidi-font-family:"Times New Roman"">The respondents filed a common statement of defence in which they denied any wrong doing. Their case was that the allocation, transfer and sale of building plots at Nkwaeso could not be effected or perfected without the consent and approval of the 1<sup>st</sup> respondent and his elders/committee and any purported allocation, transfer and sale without such consent and approval was a nullity; that there was an approved procedure for the acquisition or transfer of interest in land at Nkwaeso but this did not include a statutory declaration; that 1<sup>st</sup> respondent was installed in 2000 and as custom demanded all stool properties were placed in his custody; that after an exercise undertaken by the 1<sup>st</sup> respondent, all vacant stool lands were ascertained and ear-marked for allocation and the 2<sup>nd</sup> respondent was allocated the two plots in dispute in that manner; that the 2<sup>nd</sup> respondent never made any representation that the two plots were sold to her by Benjamin Attah Boateng who was only a member of the team that allocated the plots to her; that the 2<sup>nd</sup> respondent had lawfully acquired the two plots and had developed them into a poultry farm and a dwelling house; that the 1<sup>st</sup> respondent was present at the arbitration by the Techimanhene between the appellant and Benjamin Attah Boateng; that at the end of the arbitration the Techimanhene made it clear that Benjamin Attah Boateng had no right to allocate Nkwaeso land to anybody without the consent and approval of the 1<sup>st</sup> respondent who is the custodian of the land; that the Techimanhene also directed that in order not to visit undue hardship on the appellant, the appellant should pay ¢1,000,000.00 plus a bottle of schnapps to the 1<sup>st</sup> respondent as customary fee within two weeks for a new plot in place of the two; that when the appellant failed to abide by the conditions set by the Techimanhene, the latter vacated his orders and prohibited the 1<sup>st</sup> respondent and his elders from giving further audience to the appellant; that the 1<sup>st</sup> respondent was not estopped from giving or permitting the 2<sup>nd</sup> respondent to develop the two plots in dispute; that the appellant was not entitled to the reliefs sought by her.<o:p></o:p></span></p><p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; mso-bidi-font-family:"Times New Roman""><o:p> </o:p></span></p><p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align: justify"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"; mso-bidi-font-family:"Times New Roman"">At the end of the trial, the trial court gave judgment in favour of the respondents and that judgment has resulted in the present appeal. The only ground of appeal in contention is that: “The judge failed to consider the totality of the evidence on record properly particularly that of the Plaintiff/Appellant and her witnesses and wrongly gave Judgment to the Defendants.” This in effect is saying that the judgment is against the weight of the evidence. Several judicial decisions have held that when the ground of appeal is to the effect that the judgment is against the weight of the evidence, the appellant has duty to satisfy the Court that there were certain pieces of evidence on the 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 that the onus was on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against. (See the cases of <b>Djin v. Musa Baako [2007-2008] SCGLR 686</b> and <b>Bonney v. Bonney [1992-93] Part 2 GBR 779</b>.<b>)</b> In defence of the appeal, learned counsel for the appellant contended generally that the learned trial judge did not evaluate the evidence of the appellant and her witnesses properly and that that resulted in perpetuat