ABADWUM STOOL, EDUBIASE STOOL AND BENKUM & ADONTEN STOOLS vs. AKROKERRI STOOL [2017]DLSC2558

Date	2017-05-31
Suit No.	CIVIL APPEAL NO. J4/28/2016
Citation No.	[2017]DLSC2558

AKUFFO (MS) JSC PRESIDING

YEBOAH JSC

BAFFOE-BONNIE JSC

BENIN JSC

PWAMANG JSC

OWUSU-BANA FOR 2ND 3RD & 4TH CLAIMANTS/APPELLANTS/APPELLANTS

PAUL ADU GYAMFI FOR 1ST CLAIMANT/RESPONDENT/RESPONDENT

[2017]DLSC2558
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ABADWUM
STOOL, EDUBIASE STOOL AND BENKUM &amp; ADONTEN STOOLS<o:p></o:p>vs.<o:p></o:p>AKROKERRI
STOOL<o:p></o:p>[SUPREME COURT, ACCRA]<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">

CIVIL APPEAL NO. J4/28/2016&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&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: 31ST MAY, 2017<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>OWUSU-BANA FOR 2ND,
3RD &amp; 4TH CLAIMANTS/APPELLANTS/APPELLANTS<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">

PAUL
ADU GYAMFI FOR 1ST CLAIMANT/RESPONDENT/RESPONDENT<o:p></o:p>

</div>CORAM: <o:p></o:p>AKUFFO
(MS), JSC PRESIDING YEBOAH, JSC BAFFOE-BONNIE, JSC BENIN, JSC AND PWAMANG, JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGEMENT<o:p></o:p>

</div>PWAMANG, JSC:-&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>Some centuries back, the predecessors of the
peoples of Akrokerri, Abadwum, Tarkwa and Kwaman in present day Adansi area in
the Ashanti Region settled next to one another on lands that were vacant at the
time. It is most likely that with time the original settlers came to know their
respective boundaries and respected them. However, it appears that with the
passage of time, knowledge of their exact boundaries handed down through oral
tradition faded and current versions of where their boundaries lie tended to
conflict. That is how come from about 1950 these peoples have been disagreeing among
themselves over their exact boundaries leading to the filing of a suit by the
Akrokerri Stool against the Abadwum Stool in the Circuit Court, Obuasi in 1982.
After the close of pleadings and summons for directions it became clear to the
Circuit Court judge that in substance the case was a boundary dispute so he
made an order transferring it to the Stool Lands Boundary Settlement Commission,
hereafter to be referred to as the Commission, established under the Stool Lands Boundaries Settlement Decree,
1973 (NRCD 172).<o:p></o:p>When proceedings commenced before the Commission, Akrokerri
Stool became the 1st claimant and Abadwum Stool became 2nd
claimant. Subsequently, the Edubiase Stool, under which Abadwum Stool serves,
joined as 3rd claimant whilst Tarkwa and Kwaman Stools were jointly
joined to the claim as 4th claimant. In accordance with the
procedure of the Commission, the parties filed their respective claims and
survey instructions. 3rd claimant however relied on the survey
instructions of 2nd claimant since their claims were coterminous.
Under directions of the Stool Lands Boundary Settlement Commissioner, to be
referred to as the Commissioner, a survey of the lands was conducted by Mr C. C
Nuque, licensed surveyor, and he prepared a composite plan showing the
respective claims of the parties. The taking of evidence before the
Commissioner commenced on 21st July, 1997 at the office of the
National House of Chiefs at Kumasi. <o:p></o:p>While the Commissioner was still hearing the case
the Commission was dissolved with the passage of the Stool Lands Boundaries Settlement (Repeal) Act, 2000 (Act 587) which
came into force on 20th October, 2000. Act 587 transferred all pending cases and proceedings to the High
Court but it nevertheless provided that matters in which the taking of evidence
had commenced before the Commissioner shall be continued with by him and
completed not later eight months. The Commissioner, Justice John Augustus Osei,
continued with the hearing of the instant case and closed the taking of
evidence on 18th June, 2001, two days to the end of the eight months
grace period. On that day the Commissioner ordered the lawyers of the parties
to file their addresses as soon as practicable and adjourned the case sine die.
<o:p></o:p>Thereafter, nothing was done in the claim until 18th
June, 2002 when Justice J. A. Osei, then former Commissioner, was given
appointment in the Judicial Service as a Court of Appeal judge. On 19th
June, 2002 the Chief Justice in exercise of his powers under article 139(1)(c)
of the 1992 Constitution, requested Justice J. A. Osei “as an Additional High
Court judge to sit and complete all cases and proceedings pending eight months
after the coming into force” of Act 587. On 13th December, 2002
Justice J. A. Osei, sitting in his capacity as a High Court judge, delivered
judgment in this case in favour of the 1stclaimant/respondent/respondent,
to be referred to in this judgment as the respondent. The 2nd, 3rd,
and 4th claimants/appellants/appellants, whom we shall call the
appellants, jointly appealed against the judgment but were unsuccessful at the
Court of Appeal, hence this appeal.<o:p></o:p>The appellants filed six grounds of appeal in this
court but beside ground one which is a point of law the rest can conveniently
be subsumed under the omnibus ground. We shall therefore consider the appeal on
two main grounds which are as follows; i) the judgment of the High Court is a
nullity since it was delivered after the lapse of the eight months provided for
in section 3(2) of Act 587. ii) The judgment of the Court of Appeal is against
the weight of the evidence. We shall start with a discussion of the first
ground but before proceeding, the distinction ought to be noted that the
judgment was delivered by the High Court and not the Commission though the same
person functioned in the different capacities.<o:p></o:p>In order that it is not said that we misunderstood
the case of appellants on this ground of appeal we shall quote the main
paragraphs of their submissions on the point. They stated as follows;<o:p></o:p>“(v)
With the greatest respect, the Court of Appeal did not sufficiently consider
and appreciate our submission on S. 3(2) of ACT 587. We never argued that Act
587 nullified the authorization by His Lordship the Chief Justice to the
Commissioner to sit and complete all cases and proceedings pending. Our plaint
is with the non-compliance with the mandatory provi</main>