DEESA PENROSE vs. NII NUERTEY AKPO ‘1’ [2014]DLCA3647

Date	2014-02-13
Suit No.	C. A NO. H1/22/2012
Citation No.	[2014]DLCA3647

KANYOKE J.A. (PRESIDING)

OFOE J.A.

DZAMEFE J.A.

MR. ATTA AKYEA FOR PLAINTIFF/APPELLANT

MR. ADUMUA BOSSMAN FOR THE DEFENDANT/RESPONDENT

[2014]DLCA3647
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													<main id="main" class="content" style="min-height: 60rem" >DEESA PENROSE<o:p></o:p>vs.<o:p></o:p>NII NUERTEY AKPO ‘1’<o:p></o:p>&nbsp;[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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C.
A NO. H1/22/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 13TH FEBRUARY, 2014<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>MR. ATTA AKYEA FOR
PLAINTIFF/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

MR. ADUMUA BOSSMAN FOR THE 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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</div>JUDGMENT <o:p></o:p>KANYOKE, J.A.:&nbsp;
On the 18th day of October 2010, the High
Court, Accra, after trial, dismissed the plaintiff/appellant’s action against
the defendant/respondent for inter alia, a declaration of title to a large
piece or tract of land situate, and lying at Aburi-Adomorobe along the
Accra-Aburi road in the Eastern Region of Ghana.&nbsp; Feeling dissatisfied with the judgment the plaintiff/appellant
(hereinafter referred to as the plaintiff) has appealed to us to set aside the
judgment and “give direction on the
area/portion of the land the plaintiff gave defendant”.&nbsp; See page 218 of the Record of Appeal (ROA).&nbsp; The grounds of appeal canvassed by counsel
for the plaintiff in his written submissions filed on 20-3-2012 are as follows:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “1&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The ruling is against the weight of
evidence. <o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>2&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
trial judge misapplied the law against the available evidence.<o:p></o:p><o:p>&nbsp;</o:p>3&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
trial judge misapplied the law/rule on estoppels.”<o:p></o:p>Before
proceeding to deal with the appeal on these grounds, it is important to give
the background history or the relevant histories of how the parties came by
their relative claims to the land in dispute as gathered from the Record of
Appeal (ROA).&nbsp; At the time of the action
in June 2001 the original plaintiff was the acting head of the Kwaakwa Asiampong
Asakyiri family of Aburi-Adomorobe in the Eastern Region of Ghana.&nbsp; It is the case of the plaintiff that his
ancestors/predecessors settled and founded the town called Adomorobe in the
year 1772.&nbsp; According to the plaintiff,
his family had a shrine called Osedu Akwatia which they placed in the forest
and worshiped.&nbsp; The plaintiff said that
some elders of the family particularly, one Owusu were made to settle around
this shrine and set up a village to guard it so the settlement around the
shrine came to be called the Osedu Forest or Oseduase or Seduase.&nbsp; The plaintiff’s case is further that
subsequently some people from Kpone in the Greater Accra Region migrated from
Kpone to Adomorobe and pleaded with the then head or leader of the plaintiff’s
family called Owusu to be allowed to stay there and farm. The pleas of the
migrant Kpone people were accepted by Opanin Owusu on Condition that they paid
yearly tolls of fowls, eggs, yams, natural water, etc. to the Chief of Adomorobe
during the celebration of the Osedu Shrine Festival; that condition was
accepted by the Kpone people so they were allowed to settle and farm on various
parts or portions of the Adomerobe land.&nbsp;
Then in 1974, the plaintiff averred Nana Kwaakwa Asiampong II became the
head of family and Chief of Adomorobe and caused the large tract of the
Adomorobe land inclusive of the portions or parts settled on by the defendant’s
predecessors to be demarcated and swore to a Statutory Declaration effectuating
the ownership of the land in the plaintiff’s family.&nbsp; Nana Kwaakwa Asiampong II then submitted a
plan of the demarcated land together with the Statutory Declaration to the Land
Title Registry of the Lands Commission at Koforidua for registration and the
land was subsequently registered in 1987 as No. 6721/1987.&nbsp; The plaintiff averred and testified that the
predecessors of the defendant/respondent (hereinafter referred to simply as the
defendant) were paying the yearly tolls to his family until somewhere in the
1990s when the defendant, claiming to be the chief of Seduase and leader of the
Kpone migrant settlers started laying claim of title to the portions settled on
by them and embarking on acts or activities adverse to the ownership of the
entire Adomerobe land by plaintiff’s family claiming that they purchased these
portions of the land from the plaintiff’s family at various times and periods, hence
the plaintiff’s action for the reliefs endorsed on the writ of summons.<o:p></o:p><o:p>&nbsp;</o:p>For
his part, the defendant, as gathered from his pleadings and evidence in court
denied virtually all the claims of the plaintiff except admitting that the
whole of the Adomorobe land originally belonged to the plaintiff’s family and
that they are in truth and in fact settlers at Adomorobe.&nbsp; The defendant however averred and testified
that his predecessors purchased all the parts or portions of the Adomorobe land
they settled on and occupied and that he had receipts of such purchases.&nbsp; According to the defendant, the land he was
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