NANA OTSIWAA AND ENYAN EBAASA vs. J.K. YANNEY AND ENYAN EBAASA [2012]DLCA5489

Date	2012-02-23
Suit No.	CIVIL APPEAL NO. HI/141/2011
Citation No.	[2012]DLCA5489

MARFUL-SAU JA (PRESIDING)

HONYENUGA JA

DENNIS ADJEI JA

JOSEPH APPIATSE FOR DEFENDANT/APPELLANT.

SAMUEL ADINKRAH FOR THE PLAINTIFF/ RESPONDENT.

[2012]DLCA5489
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													<main id="main" class="content" style="min-height: 60rem" >NANA OTSIWAA AND ENYAN EBAASA<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>J.K. YANNEY AND ENYAN EBAASA<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, CAPE COAST]<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.
HI/141/2011&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; 23RD
FEBRUARY, 2012.<o:p></o:p>

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARFUL-SAU,
JA: - This is an appeal against the judgment of
the Circuit Court, Cape Coast. The judgment which is dated the 31st
January, 2008 was written by the late Justice Tom Bentil but read by His Honour
Richard Asiedu –Badu. Hearing of this case commenced before the late A.A.
Okofo- Darteh, then Circuit Judge at Cape Coast. The dispute in this case
relate to the ownership of a parcel of land commonly described as’’ Odenteh
Bosom’’ situate at Enyan Ebaasa.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff/respondent who will be called the respondent in this appeal claimed
that the land was acquired by his predecessor Kwesi Andoh who first cultivated
the land as a virgin forest. The respondent who sued as the head of his family
pleaded and testified that his family has been in possession of this land since
the acquisition by Kwesi Andoh. The defendant/appellant herein to be called the
appellant denied the claim by the respondent and counter-claimed for a
declaration that the said land belonged to his family. <o:p></o:p>The
appellant claimed that the land in dispute formed part of a larger land
originally acquired by his ancestor Nana Otsiwa and the family has exercised
ownership rights since then. Appellant’s claim further was that the predecessor
of the respondent, Kwesi Andoh who was a Muslim requested and was granted the
right to build a mosque and to use portion of the land for a Muslim cemetery,
by Nana Otsiwa III, who himself was a Muslim. According to the appellant as a
result of this grant to Kwesi Andoh, the Muslim Mission cultivated oranges and
coconuts on the land. From the record, though the appellant claimed his
predecessor allowed Kwesi Andoh to possess and use portions of the land for
cemetery and mosque, evidence was not led as to the nature of the grant. Was it
a gift, lease or a mere licence? The record does not provide an answer to this
important issue.<o:p></o:p>&nbsp;The trial Judge in its judgment which is at
page 93 to 97 of the record of appeal delivered at page 97 as follows:-<o:p></o:p>&nbsp;‘’Both the plaintiff and defendant called
witnesses and they all sounded credible. I am therefore going to rely on the plan
to determine this case. And the question is why did the defendant planted Obar
trees around his land and demarcated same from the land in dispute by planting
Obar trees to demarcate the land being claimed by the plaintiff. No explanation
was offered for this act.’’<o:p></o:p>The
judgment of the trial court was thus grounded on the above finding by the
court. The appellant is seeking to set aside the judgment and has argued this
appeal in terms of the grounds in the notice of appeal filed on 3rd
March 2008. The grounds were stated as follows:-<o:p></o:p>‘’i) That the judgment
given was against the weight of evidence.<o:p></o:p>ii) That the learned trial
judge did not adequately consider the case of the appellant.<o:p></o:p>iii) That the learned
trial judge misconstrued the significance of the Obar trees planted on the
boundaries.’’<o:p></o:p>&nbsp;Learned counsel for appellant argued the above
grounds together in his statement of case. In his submissions, counsel for
appellant observed rightly that the judgment failed to pronounce on the
appellant’s counter-claim. Even though this was not made a ground of appeal, I
need to deal with this omission and its effect on the judgment under appeal. It
is trite law that where a trial court fails to pronounce on a party’s
counter-claim in a judgment, the said judgment is not rendered a nullity by the
omission, the judgment only remains incomplete and an appellate court is entitled
to pronounce on the counter-claim based on evidence on record .See SAKYI v.
APPIAH (1992/93) PART 4, GBR 1620. Accordingly, this court will pronounce on
appellant’s counter-claim in this judgment.<o:p></o:p>I
now turn to the grounds of appeal. The appellant has argued that the judgment
is against the weight of evidence. The law is trite that when an appellant
raises this ground of appeal then the appellate court is enjoined to review the
evidence on record and ascertain whether the trial court’s decision in the
judgment could be supported by evidence adduced at the trial. See AKUFO- ADDO
v.CATHELINE (1992)1 GLR 377. In terms of this principle of law and the law that
an appeal is by way of rehearing, I shall re-examine the evidence on record to
see whether the trial court was right in its conclusion.<o:p></o:p>