FRANCIS AGBEDZIE vs. NANA OPPONG BASAWUKU II [2010]DLCA4744

Date	2010-11-04
Suit No.	CIVIL APPEAL NO: H1/63/2009
Citation No.	[2010]DLCA4744

ABBAN (MRS.) JA

(PRESIDING)

KANYOKE JA

APALOO JA

MR. PAUL NKUAH-GYAPONG FOR THE PLAINTIFF/APPELLANT

CAPT. (RTD) NKRABEA EFFA-DARTEY FOR DEFENDANT/RESPONDENT

[2010]DLCA4744
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													<main id="main" class="content" style="min-height: 60rem" >FRANCIS AGBEDZIE<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>NANA OPPONG
BASAWUKU II<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<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: H1/63/2009&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;DATE: 4TH NOVEMBER,
2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
PAUL NKUAH-GYAPONG FOR THE PLAINTIFF/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CAPT.
(RTD) NKRABEA EFFA-DARTEY FOR DEFENDANT/RESPONDENT<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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ABBAN
(MRS.) JA, (PRESIDING), KANYOKE JA, APALOO JA<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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>KANYOKE
J. A.:<o:p></o:p>By this appeal, the
plaintiff/appellant (hereinafter the appellant) questions the decision of the
High Court, Sefwi Wiaso on the lone well known and often used general ground or
reason that ‘The judgment is against the weight of evidence.”<o:p></o:p>Briefly the facts culminating
in the instant appeal are that the appellant contends that somewhere in 1983 he
approached the Chief of Debiso Nana Aforo Kwaw II for a piece/parcel of land
for farming purposes.&nbsp; Nana Aforo Kwaw II
led a delegation of some people to a place variously described as Kramokrom;
Adiembra or Adabokrom and demarcated a portion of a virgin forest land for the
appellant.&nbsp; The appellant in turn gave or
offered to the chief and his elders twelve thousand old cedis (¢12,000.00) as a
customary drink for the land.&nbsp; The
appellant cultivated the land and planted Cocoa and oil plam.&nbsp; When the cocoa trees grew and matured into
fruit yielding trees the appellant harvested the cocoa for two or three seasons
without any hindrance from anybody.&nbsp;
Subsequently one Kwabena Dwomoh a.k.a. Kwa Dwomoh (deceased), a brother
to the respondent herein laid adverse claim of title to the land.&nbsp; The appellant reported the matter to Nana Aforo
Kwaw II the Debisohene who after visiting the land ruled in favour of the appellant.&nbsp; But Kwabena Dwomoh (deceased) persisted in
his adverse claim to the disputed land.&nbsp;
The appellant again reported the matter to the then Committee for the
Defence of the Revolution (C.D.R.).&nbsp; The
C.D.R. invited the parties and after listening to their respective stories,
visited the land and attempted to redemarcate a boundary between the land
claimed by the appellant and that claimed by Kwabena Dwomoh.&nbsp; The C.D.R. were however unable to settle the
matter between the appellant and Kwabena Dwomoh.&nbsp; The C.D.R. therefore referred the matter to
the Castle (Presidency).&nbsp; The Presidency
appointed a Committee known as the Asare Committee to investigate the
matter.&nbsp; The Asare committee, after its
investigations directed each of the appellant and Kwabena Dwomoh to go and
continue cultivating their respective lands.&nbsp;
Shortly thereafter Kwabena Dwomoh a.k.a. Kwa Dwomoh was taken ill and
eventually succumbed to his illness.&nbsp;
Meanwhile the appellant who was then an army sergeant at the Liberation Barracks
Sunyani left on peacekeeping mission in Cambodia in 1990 and entrusted his
cocoa farm i.e the disputed land to the care and control of his son Called
Frimpong.&nbsp; Frimpong was however
subsequently forcibly driven away from the land by the respondent herein who
claimed that the land was gifted to him and Kwabena Dwomoh (deceased) jointly by
their late Father – Kofi Tia and that they paid aseda to their late father for
the gift.<o:p></o:p>When the appellant
returned from Cambodia and learnt of what happened to his cocoa farm and
Frimpong, his son, he instituted the action in the instant appeal.&nbsp; The respondent did not only deny the
appellant’s claim but he also counterclaimed for inter alia, a declaration of
title for the land in dispute.&nbsp; At the conclusion
of the trial the trial court found in favour of the&nbsp; respondent, hence this appeal&nbsp; on the sole ground that the judgment is
against the weight of the evidence on record.<o:p></o:p>Let me put it on record
that in this appeal we have only the statement of case of the counsel for the
appellant filed on 22nd of January 2009 to consider.&nbsp; Learned Counsel for the respondent filed his
Reply on 28th May 2009.&nbsp;
Obviously that Reply or Response was filed out of time and without leave
for extension of time to file same.&nbsp;
Thereafter there was a change of Solicitor for the Respondent.&nbsp; The new Solicitor for the Respondent, also
without first applying for and obtaining leave for extension of time to file a
Reply, proceeded to file a Reply or a Response on 29th March
2010.&nbsp; However, realizing his mistake the
new solicitor for the respondent filed a motion on notice for extension of time
to file his Reply to the appellant’s statement of case but that motion was
dismissed by this court on 3rd June 2010.<o:p></o:p>With this background
history of the case culminating in this appeal I now proceed to consider the merits
of the appeal.&nbsp; The law is that where the
appellant contends that the judgment appealed against is against the weight of
the evidence all that the appellant is saying is that the totality of the
evidence on the record is not supported by the material facts found by the
court forming </main>