AKWASI ATTA vs. AMA KOMFUO AND OTHERS [2010]DLSC3055

Date	2010-10-29
Suit No.	CIVIL APPEAL NO. H1/30/2009
Citation No.	[2010]DLSC3055

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

F.G. KORBIEH J.A.

IRENE C. DANQUAH [MISS] J.A.

MR. KWAME ADOM APPIAH FOR THE RESPONDENT/APPELLANT.

KWAME OWUSU SEKYERE FOR THE DEFENDANT/APPELLANT/ RESPONDENT.

[2010]DLSC3055
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													<main id="main" class="content" style="min-height: 60rem" >AKWASI ATTA<o:p></o:p>vs.<o:p></o:p>AMA KOMFUO AND OTHERS<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. H1/30/2009&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATED:
29TH OCTOBER, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. KWAME ADOM APPIAH FOR THE
RESPONDENT/APPELLANT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWAME OWUSU SEKYERE FOR THE
DEFENDANT/APPELLANT/ 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 [MISS] 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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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGEMENT<o:p></o:p>

</div>F.G.
KORBIEH, J.A.<o:p></o:p><o:p>&nbsp;</o:p>The Appellant in this case was the
Plaintiff in the District Court at Mamponteng where he had sued the 1st
Respondent alone fro two reliefs which were (a) a declaration of title to and
recovery of possession of a farm land situate, lying and being at place
commonly called “Adubinsua” and (b) the award of ¢1,000,000.00 as general
damages for trespass to his land.&nbsp; In the
course of the trial the 2nd Respondent was joined to the suit as
Co-Defendant.&nbsp; Following an order by the
trial District Court for the parties to file pleadings, the Appellant filed a
statement of claim on the 31/10/2003 in which he averred as follows: that he
was a farmer and the “abusuapanin of Adubinsua”,&nbsp; that one day, whilst patrolling his land
situate between Edwinase and Ebuoho, he noticed that the 1st
Respondent had cleared part of his land on Adubinsua stool land for farming
purposes; that after the 1st Respondent destroyed food crops he
planted on that land cleared by him, he also uprooted some cassava the 1st
Respondent planted on the land; that the 1st Respondent reported him
to the Police at Offinso who advised him to pay for the crops he had destroyed;
that he paid for the crops but the 1st Respondent was warned not to
trespass on the land again; that because the 1st Respondent
persistently refused to heed the warning he took the action against her.&nbsp; The 1st Respondent filed a
statement of defence on the 28/11/2003 in which she admitted paragraphs 1to 4
of the Appellant’s statement of claim but denied that; (1) the Appellant had
come across her after she cleared part of his land, (2) the Appellant had
warned her off the land but she had refused to listen and (3) she had destroyed
food crops planted by the Appellant on the land.&nbsp; She then went on to aver, among other things,
as follows: that the land was here ancestral land on which she had planted the
cassava that the Appellant destroyed; that the Appellant had indeed paid for
the cassava he destroyed on the advice of the Police but that it was the
Appellant who was warned to stay off the land and that it was not true that the
action was taken because she had refused to heed the warning of the
Appellant.&nbsp; It was at that juncture that
the 2nd Respondent was joined to the suit as Co-Defendant.&nbsp; He subsequently filed a statement of defence
on the 27/8/2004.&nbsp; Following that the
Appellant filed what he termed a “Statement of Plaintiff” on the
24/9/2004.&nbsp; For a reason that one cannot
easily fathom, the 2nd Respondent filed another process which he
termed “Statement of Defence of Co-Defendant and Counterclaim” on the 13/1/2005
in which he made a counterclaim for a declaration of his stool’s title to the
land in dispute.&nbsp; So whereas his first
process was a statement of defence simpliciter, this second one had a
counterclaim attached to it.&nbsp; Again whereas
in the first one he denied that the Appellant was an “abusuapanin” in the second
one he admitted the Appellant was an “abususpanin.”&nbsp; Another difference between the two was that
whereas in the first one he said the Appellant had removed the “Nkrandedua”
which was a boundary feature, in the second one he averred that the Appellant
had “attempted to remove the Nkrandedua that was the boundary feature.”&nbsp; The rest of the averments in the two
statements were almost the same and may be summarized as follows: the 2nd
Respondent is the Pampasohene of Kumasi and caretaker of a tract of land called
“Bomso” on Pampaso stool land and is bounded by the stool lands of Adubinsua,
Edwinase, Wiawso, Ampabame and Bessease; the boundary between his stool land
and Adubinsua is a sawyer pit where there was a big “odum” tree that was the
head boundary between Bomso, Adubinsua and Edwinase; his stool carved out a
portion of its stool land for Afua Kesse who was the grandmother of the 1st
Respondent; the land carved for the 1st Respondent’s grandmother
shared boundaries with the farms of Afua Gyamfua, Ama Serwaa and Adwoa Serwaa
the grandmother of the Appellant; his stool also gave land to one of its stool
elders called Kwaku Nnuro who was the husband of Adwoa Serwaa (the grandmother
of the Appellant); the boundary of the lands given to Afua Kesse and Kwaku
Nnuro respectively is “Nkrandedua”.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>The trial began with the evidence of
the Appellant who repeated substantially the same things he alleged in his
statement of claim.&nbsp; The Appellant called
two witnesses to testify in support of his case.&nbsp; P.W.1 knew next to nothing about the land in
dispute.&nbsp; P.W.2 said that Edwinase Adubinsua
and Buoho shared a common boundary at a place called Abuabonkam which is a
valley.&nbsp; He added that the 1st
Respondent had cultivated the Appellant’s land and that he went and saw the
place himself.&nbsp; The evidence for the
defence was supplied by the 1st Respondent, the 2nd
Respondent’s attorney and two others.&nbsp;
The 1st Respondent’s evidence was also a repeat of the
averments in her statement of defence.&nbsp;
The evidence of the 2nd Respondent’s attorney may be
summarized as follows: the disputed land formed part of a larger tract of land
called “Bomso” belonging to the 2nd Respondent’s stool of which he
was the “krontihene”; his stool land shared boundaries with Edwinase stool
land, Adubinsua stool land, Ampabame stool land, Besease stool land and Wiawso
stool&nbsp; land; the boundary features
between his stool land and Adubinsua stool land and Edwinase stool lands
respectively was an “odum” tree; the disputed land fell on his side; Nana Afua
Kesse farmed on the land, followed by her daughter Ama Serwaa and her daughter
the 1st Respondent, all of whom were subjects of the 2nd
Respodnent; another subject of the 2nd Respondent called Kwaku Nnuro
also had a farm near the 1st Respondent’s farm; Kwaku Nnuro had been
married to the Appellant’s grandmother and she inherited the farm after his
death; athe Appellant’s grandmother gave birth to the Appellant’s mother called
Adwoa Serwaa who also inherited the same farm from her mother; after the death
of Adwoa Serwaa the Appellant inherited the farm; about twelve years ago the
boundary between Pampaso and Adubinsua was demarcated and the disputed land
fell on the Pampaso side.&nbsp; D.W.1
testified that the land in dispute was on the Pampaso side and that he was one
of those who took part in the demarcation exercise; that the Appellant (who
represented the chief of Adubinsua) and the 2nd Respondent’s
attorney also partook in the exercise; that the bounda</main>