NANA KWAKU SIAW vs. ELIZABETH BOATENG [2012]DLHC8211

Date	2012-11-11
Suit No.	SUIT NO. C1/244/08
Citation No.	[2012]DLHC8211

HIS LORDSHIP JUSTICE JACOB B. BOON

[2012]DLHC8211
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													<main id="main" class="content" style="min-height: 60rem" >NANA KWAKU SIAW<o:p></o:p>vs.<o:p></o:p>ELIZABETH BOATENG<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;
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SUIT
NO. C1/244/08&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
11TH NOVEMBER, 2012<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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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-indent:
0cm;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">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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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>The plaintiff in this
action described himself as a farmer and the Nkosuohene of Anwomaso near Kumasi
on 31/3/08, he instituted a case against the defendant claiming declaration of
title and recovery of possession to a piece of land described as plot numbers
81 and 82, Block IV Anwomaso, damages for trespass and injunction. However, in
the endorsement to the writ the block number of the plots was stated both as IV
and VI. In the statement of claim, the same description was given to the
property that is block numbers’ IV and VI. However, in his testimony, and in
the exhibits tendered at the trial, the number was consistently stated as VI
without any objection from the other side. For example, exhibits ‘A’ and ‘B’
are the allocation papers and site plan respectively. Exhibit ‘A’ was prepared
by the Osei-Boa stool signed by the Anwomasohene, the Krontihene and an elder
of the stool on 1st February, 2000. Exhibit ‘C’ represent receipts
of property rates issued to the plaintiff by the Kumasi Metropolitan Assembly
in respect of the disputed property. At the six receipts described the property
as Nos. 81 and 82 Block VI.<o:p></o:p><o:p>&nbsp;</o:p>As indicated, all
these documents were tendered in evidence without any opposition from the
defendant who was ably represented by legal counsel throughout the hearing.<o:p></o:p><o:p>&nbsp;</o:p>To the contrary the
attempt by the defendant to put in evidence an allocation paper in her favour
which described the disputed property as plots 81 and 82 Block IV Anwomaso was
promptly objected to because in her counter-claim, she indicated ‘VI’ to be the
block number. The objection was upheld by the count. But the fact remains that
between the parties the property in dispute is plots 81&nbsp; and 82, Block VI, Anwomaso. Though in an
action for declaration of title to land, a party is bound to clearly establish
the identity of the land, that rule was not mandatory where the identity of the
property was not put in dispute. In this suit, both sides have admitted the
identity of the land, the outstanding issue is who lawfully it from the
Osei-Boa stool of Anwomaso: see Agbosu and Others v Kotey and Others
(3003-2004) IGLR685, holding(4) in the following terms:<o:p></o:p><o:p>&nbsp;</o:p>“Although the general principle that a claim for
declaration of title or an order for injunction should always fail it the plaintiff
failed to establish positively the identity of the land claimed with the land
in dispute was sound law, its application was not mandatory where the identity
or boundaries of the land claimed was undisputed. Where the identity or the
boundaries of the land in dispute as pleaded by the plaintiff was admitted or
not denied by the defendant, the applicable principle was that since no issue
had been joined, no evidence needed to be led on the identity of the land.”<o:p></o:p><o:p>&nbsp;</o:p>In this case, the
property in dispute is plot Nos. 81 and 82, Block VI, Anwomase. Plaintiff
claims he acquired the property from the Osei-Boa stool of Anwomaso. Having
decided to develop the property, he said he dumped sand and stone on it, but
travelled and on his return, he said he realized someone had trespassed into
it. According to him, his enquiries showed that it was defendant who committed
the trespass and was, indeed, rapidly developing the property. <o:p></o:p><o:p>&nbsp;</o:p>From the evidence of
the plaintiff, he made a report to the Police Buffalo Unit in Kumasi and some
policemen were detailed to accompany to the property that though they did not
meet embody on site, there was evidence some development was taking place on
the land as working tools and other materials were seen and collected by the
police possibly as evidence. That action ended in criminal charges against the
defendant in the Kumasi Circuit Court. However, the matter was not heard on
merits as the attorney General exercised its fiat by filing a nolle prosque;
His prayer is for the court to declare him owner of the land.<o:p></o:p><o:p>&nbsp;</o:p>