OSEI KWAKU vs. OPANIN KOFI MARFO AND ATTA TWUM [2013]DLCA8126

Date	2013-05-24
Suit No.	CIVIL APPEAL NO.: H1/34/2013
Citation No.	[2013]DLCA8126

AYEBI J.A. (PRESIDING)

IRENE DANQUAH (MRS.) J.A.

TANKO AMADU J.A.

MR. K. K. SEY FOR THE DEFT/APPELLANT

MR. K. ADDO ATUAH FOR THE PLT/RESPONDENT

[2013]DLCA8126
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													<main id="main" class="content" style="min-height: 60rem" >OSEI KWAKU<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>OPANIN KOFI MARFO AND ATTA TWUM<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<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;
padding:0cm 0cm 1.0pt 0cm">

CIVIL
APPEAL NO.: H1/34/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
24TH MAY, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
K. K. SEY FOR THE DEFT/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">

MR.
K. ADDO ATUAH FOR THE PLT/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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AYEBI
J.A. (PRESIDING), IRENE DANQUAH (MRS.) J.A., TANKO AMADU J.A.<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;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>AYEBI J.A.<o:p></o:p>This is an appeal against the judgment of the
Mampong-Ashanti High Court which affirmed the decision of the District Court,
Mampong.&nbsp; Before the District Court, the
respondents were the plaintiffs while the appellant was the defendant.&nbsp; The claim of the plaintiffs was for
declaration of title to and possession of a farm land situated and lying at a
place commonly known and called Ebuoso at Ebuoso on Asante Mampong stool lands
bounded by the properties of Nana Kwaku Owusu, Opanin Kwame Apraku, Madam Afia
Subi and of the defendant which land the defendant has trespassed on and is
claiming despite repeated complaints.&nbsp;
The plaintiffs also claimed perpetual injunction to restrain the
defendant, his workmen and anybody who claims any interest in the land through
the defendant as well as GH¢1,000.00 damages for trespass.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiffs did not attach a statement of
claim.&nbsp; But defendant filed a statement
of defence in which he claimed the land as his ancestral property.&nbsp; He referred to the plaintiffs as the
licensees of his ancestors which license he had revoked.&nbsp; At the trial, the 1st plaintiff
gave evidence that his grandfather Kwabena Gyima from the Bretuo family of
Penteng was granted the tract of land by Nana Darkwa, the Odikro of Ebuoso.&nbsp; This evidence was corroborated by PW2 a
former Odikro of Ebuoso.<o:p></o:p><o:p>&nbsp;</o:p>Defendant on his part gave evidence that his
ancestors acquired the Ebuoso land.&nbsp;
Specifically he stated that his ancestor Nana Ayinam demarcated Mampong
township.&nbsp; In so doing, his ancestor
carved out Ebuoso lands for his family for farming.&nbsp; He said his family also belong to the Bretuo
clan and that is why most of the people who requested for land from them are
members of the Bretuo clan.&nbsp; In all they
gave land to thirteen (13) individuals.<o:p></o:p><o:p>&nbsp;</o:p>In her judgment, the trial magistrate drew
attention to the claim of the plaintiffs as title to the land.&nbsp; She identified the issue to be resolved as
“who released the farm land to the plaintiffs family”.&nbsp; She then opined that “if it is the defendant’s
family, then they (plaintiffs) are to pay royalties to the defendant’s
family.&nbsp; If not then they do not own any
obligation to the defendant”.&nbsp; The trial
magistrate then observed that since the disputed land forms part of the Mampong
stool lands, defendant should have invited an elder of the palace to counteract
the evidence of PW2, the Odikro whom she referred to as chief.<o:p></o:p><o:p>&nbsp;</o:p>She proceeded to find the defendant liable to the
claim of the plaintiffs.&nbsp; She declared
the plaintiffs as owners of the land and restrained the defendant, his agents
and relatives from interfering with the disputed land.&nbsp; She awarded against the defendant GH¢200.00
for damages for trespass and cost in the same amount.<o:p></o:p><o:p>&nbsp;</o:p>Defendant filed an appeal against the whole
judgment as well as the cost awarded to the High Court.&nbsp; He sought a reversal of the judgment of the
District Court in his favour.&nbsp; Yet the
High court judge found the plaintiff’s evidence of grant from the Odikro of
Ebuoso a better grant and dismissed the appeal and awarded cost of GH¢1,000.00
against the defendant in its judgment dated 22nd November, 2011.<o:p></o:p><o:p>&nbsp;</o:p>Still dissatisfied with the judgment, defendant
with leave of the High Court has appealed to this court to set aside the whole
judgmen</main>