REV. BISHOP HAGAR FRIMPONG vs. NANA FOASE GYAN AND ANOTHER [2010]DLCA3657

Date	2010-11-28
Suit No.	CIVIL APPEAL NO. H1/19/2010
Citation No.	[2010]DLCA3657

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

F.G. KORBIEH J.A

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

[2010]DLCA3657
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													<main id="main" class="content" style="min-height: 60rem" >REV. BISHOP HAGAR FRIMPONG<o:p></o:p>vs.<o:p></o:p>NANA FOASE GYAN AND ANOTHER<o:p></o:p>&nbsp;[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. H1/19/2010&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: 28TH NOVEMBER, 2010&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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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MARIAMA
OWUSU (MISS), J.A. (PRESIDING), F.G. KORBIEH, J.A. AND IRENE C. DANQUAH (MS.),
J.A.<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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JUDGMENT<o:p></o:p>

</div>F.G. KORBIEH. J.A<o:p></o:p><o:p>&nbsp;</o:p>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 1st 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 1st
respondent as custom demanded; that she later realized that Benjamin Attah
Boateng had sold two of he plots to the 2nd 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 1st respondent as customary fee for the plots
which she did through Okyeame Taakora; that this payment notwithstanding the 1st
respondent “went back and permitted the 2nd respondent to build on
the two plots”; that the 1st respondent is estopped from giving the
plots in dispute to the 2nd 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><o:p>&nbsp;</o:p>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 1st
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 1st
respondent; was installed in 2000 and as custom demanded all stool properties
were placed in his custody; that after an exercise undertaken by the 1st
respondent, all vacant stool lands were ascertained and ear-marked for
allocation and the 2nd respondent was allocated the two plots in
dispute in that manner; that the 2nd 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 allocate the plots to her; that the 2nd
respondent had lawfully acquired the two plots and had developed them into a
poultry farm and a dwelling house; that the 1st 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 1st respondent
who is the custodian of the land; that the Tedchimanhene 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 1st 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
latte vacated his orders and prohibited the 1st respondent and his
elders from giving further audience to the appellant; that the 1st
respondent was not estopped from giving or permitting the 2nd
respondent to develop the two plots in dispute; that the appellant was not
entitled to the reliefs sought by her.<o:p></o:p><o:p>&nbsp;</o:p>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 bee 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 Djin v. Musa Baako [2007-2008] SCGLR 686 and Bonney v. Bonney [1992-93]
Part 2 GBR 779.) 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
perpetuating an injustice on the appellant. The appellant herein therefore had
a duty to convince this Court that there were certain pieces of evidence on the
record which, if applied in her favour, could have changed the decision in her
favour, or that certain pieces of evidence had been wrongly applied against
her. Learned counsel for the appellant argued in part as follows: that it was
clear from the record that “the sale to the Appellant, however wrongful or
irregular, was subsequently ratified by the 1st defendant upon his
receipt of the ¢50,000.00 as well as his personal directive that 2/3 of the
sale money to be paid by the said Benjamin Attah Boateng to the Stool as was
the practice in the area.” By this statement learned counsel openly admits that
the sale of the land to the appellant by Benjamin Attah Boateng was wrongful
and irregular. The statement also means that the appellant got no title to the
land from Benjamin Attah Boateng and that if she ever acquired any title at
all, it was from the 1st respondent through his ratification of what
Benjamin Attah had purported to do. The r</main>