OPANIN KWASI NSIAH vs. OPANIN KWADWO MANU AND AKOMEA [2010]DLHC8188

Date	2010-11-03
Suit No.	SUIT NO. C11/16/2010
Citation No.	[2010]DLHC8188

HIS LORDSHIP JUSTICE JACOB B. BOON

KWAME ADOM APPIAH FOR PLAINTIFF/APPELLANT

KWASI BEMPAH FOR DEFENDANT/RESPONDENT

[2010]DLHC8188
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN KWASI
NSIAH<o:p></o:p>vs.<o:p></o:p>OPANIN KWADWO MANU AND AKOMEA<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C11/16/2010&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 3RD NOVEMBER, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWAME
ADOM APPIAH FOR PLAINTIFF/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

KWASI
BEMPAH 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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HIS LORDSHIP JUSTICE JACOB B. BOON<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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</div>This is an appeal from the judgment of His Honour Judge
Adjei-Frimpong, as he then was, sitting as an additional magistrate at Bekwai District
Court. In that action, the plaintiff/appellant, to be referred to &nbsp;&nbsp;simply
as the plaintiff, claimed the following reliefs: (a) declaration of title to a
piece of farmland at a place known and called “MPRANEUMU” on Deduako Stool land
and bounded by the properties of Opanin Yaw Badu, Madam Yaa Serwaa, Opanin
Marfo, Opanin Kofi Agyeman, Abono-Hene’s land and “KOMAN” river, (b) recovery
of possession of the said land, (c) Two Million Old Cedis for trespass, and (d)
an order of perpetual injunction to restrain the defendants, their agents and
persons claiming through them. Judgment was entered in part for him against the
defendant/respondents, to be referred to as the defendants. In particular, the
trial court found that title to the disputed land is vested in the plaintiff,
but held that in respect of portions of it occupied by the second defendant and
two others, he stood by and watched their possession of those portions for such
periods that laches and acquiescence must operate against him and he could not
recover those portions of the land. The trial court further held that plaintiff
was entitled to the portion of the land that is occupied by one Kofi Nti who is
on it with his consent and permission. Consequently, his claim for damages for
trespass was also not allowed. The plaintiff is dissatisfied with the judgment,
necessitating the instant appeal on the following grounds:<o:p></o:p><o:p>&nbsp;</o:p>“1. The learned judge erred
in law when he ruled that the plaintiff/applicant has&nbsp; been caught by laches and acquiescence.<o:p></o:p>2. That the judge erred in
law when he failed to apply the doctrine of estoppel per rem judicatam <o:p></o:p>3. That the decision of the
District Court was against the weight of evidence on record.”<o:p></o:p><o:p>&nbsp;</o:p>In support of the grounds of appeal, counsel for the
plaintiff filed a written address in which he further elaborated them. I have
carefully studied the submissions in relation to the evidence on record and I
am tempted to agree with counsel on most of the issues contained therein. On
the other hand, counsel for the defendants failed and/refused to file his
address though he agreed with the court to do so on or before 31st
August, 2010. In the instance, I was compelled to write this judgment without
the benefit of the legal opinion of counsel for the defendants on the issues raised
by the appeal.<o:p></o:p><o:p>&nbsp;</o:p>From the record the plaintiff asserted that two of his
ancestors, Yaw Adjei and Kofi Antwi originally acquired the disputed land from
the Odikro of Deduako on which they cultivated cocoa. He said the land devolved
on him through succession, and when the cocoa cultivated by his ancestors
withered, he entered into a tenancy agreement with one Kofi Nti from Nyameani.
According to the plaintiff, whilst his tenant was on the land, one Abora from
the family of the defendants trespassed into it and was cultivating for one
Asamoah. At the same time, the plaintiff said he realized that the second
defendant had cultivated citrus on a portion of the land. It was the case of
the plaintiff that he confronted Abora who said he will inform the first
defendant who is his head of family about his concerns but nothing was heard
from Abora for about a year. According to the plaintiff, he also warned second
defendant to stay off the land, but the warning was ignored; instead, second
defendant cleared a portion of it in preparation to cultivate. Plaintiff said
he instructed his tenant and he planted plantain suckers on the area so cleared
but same were removed by the second defendant. Plaintiff asserted that he
confronted and threatened to summon him before the Otumfour. According to him,
second defendant, there and then, apologized for his conduct and replanted the
plantain suckers and vacated the land. Plaintiff further led evidence that he
contacted the first defendant as current head of family of the defendants, who
agreed with him to inspect the land with a view to demarcating their respective
boundaries. &nbsp;He led further evidence that
when they visited the land, he pointed out his boundaries, but the defendants
requested to be given a fortnight to enable them mark out theirs, but refused
to turn up on the appointed date. Plaintiff testified that he again went to the
first defendant for an explanation, and was told that the Abonohene had told
him he owned the land, and there was no such boundaries to be demarcated between
the parties. Plaintiff said the matter did not end that way as he and the
Odikro of Deduako met the Abonohene who proposed that the land be shared
between him and the defendants. This proposal, ac</main>