PITIKO – KWAHU STOOL vs. ABETIFI – KWAHU STOOL [2017]DLSC4968

Date	2017-11-29
Suit No.	CIVIL APPEAL NO. J4/38/2011
Citation No.	[2017]DLSC4968

YEBOAH JSC (PRESIDING)

BAFFOE-BONNIE JSC

BENIN JSC

APPAU JSC

PWAMANG JSC

W. A. N. ADUA-BOSSMAN FOR THE 1ST CLAIMANT/APPELLANT/APPELLANT.

CHARLES HAYIBOR FOR THE 2ND CLAIMANT/RESPONDENT/RESPONDENT.

[2017]DLSC4968
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													<main id="main" class="content" style="min-height: 60rem" >PITIKO – KWAHU STOOL<o:p></o:p>(1ST CLAIMANT/APPELLANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>ABETIFI – KWAHU STOOL<o:p></o:p>(2ND CLAIMANT/RESPONDENT/RESPONDENT)<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;
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CIVIL
APPEAL NO. J4/38/2011&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; &nbsp; &nbsp; &nbsp; 29TH
NOVEMBER, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>W. A. N. ADUA-BOSSMAN FOR THE 1ST CLAIMANT/APPELLANT/APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p>YEBOAH JSC (PRESIDING), BAFFOE-BONNIE JSC, BENIN
JSC, APPAU JSC, PWAMANG JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:12.0pt;
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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>PWAMANG, JSC:-<o:p></o:p>This appeal is against the judgment of the Stool
Lands Boundaries Appeals Tribunal dated 16th June, 1993. In that judgment the
Appeals Tribunal dismissed an appeal by Pitiko Stool, hereinafter referred to
as the appellant, against the decision of the Stool Lands Boundaries Settlement
Commissioner, to be called the Commissioner, dated 25th January, 1991 and
varied the said decision by granting a larger land to the Abetifi Stool, which
shall be referred to as the respondent. The disputed land lies roughly between
the Obosom river which is along the boundary between the Ashanti and Eastern
Regions of Ghana to the north, Dede river to the East and the Afram river to
the west. At the enquiry the parties relied on traditional evidence and also
testified on acts of possession within the disputed land in proof of their
boundary claims. A surveyor was appointed by the trial Commissioner who
prepared and tendered a plan on which he indicated the respective boundaries
claimed by the parties and their villages, farms, shrines and other features of
possession.&nbsp;&nbsp;&nbsp; <o:p></o:p>In this final appeal the appellant filed one
ground of appeal and seven additional grounds and argued all of them. We have
reviewed the record of the appeal, as we are enjoined to do since an appeal is
a rehearing, and have identified four main objections taken by the appellant
against the judgments of the two lower courts. <o:p></o:p>The first main objection is the appellant's
complaint that the trial Commissioner erred by relying on the endorsement on
the writ of summons&nbsp; they filed in the
High Court, Koforidua to hold that it&nbsp;
admitted a common boundary with the respondent whereas those pleadings
were not part of the evidence led at the enquiry. The appellant is so
complaining because whereas they admitted a common boundary with the respondent
in the writ of summons and statement of claim they filed in 1980 which
commenced this litigation it subsequently denied in their evidence at the
hearing that the respondent had land in the area and are aggrieved that the
trial Commissioner accepted their earlier position on the issue of common
boundary and rejected their evidence to the contrary. From the record this case
was started by the appellant filing a writ of summons accompanied by a
statement of claim in the High Court, Koforidua claiming title to the land in
dispute which was described in the endorsement on the writ of summons and
statement of claim as having the respondent stool land as their boundary owner
and that its land adjoined respondent's land on the south with respondent's
land to its north. It was alleged that subjects of the respondent had
encroached on appellant's land without their consent so it claimed declaration
of title and related reliefs. When the respondent was served with the writ and
statement of claim it objected to the jurisdiction of the court on the ground
that by the provisions of the Stool Lands Boundaries Settlement Decree 1973
(NRCD 172) exclusive jurisdiction in disputes concerning boundaries of stool
lands was conferred on the Commissioner. The High Court in upholding the
objection stayed proceedings and transmitted the case docket with all processes
filed to the Commission so they became part of the processes before the
Commission. But the case the appellant is making on this ground is that subsequent
to the writ of summons it filed an affidavit on 5/12/1988 in support of a
motion to relist the enquiry before the Commissioner and in it stated its
disagreement about the boundaries of its land but the respondent did not react
to that affidavit so it meant the boundaries were at large without any
admission of a common boundary. The affidavit referred to which was deposed to
by a new Pitikohene different from the one who filed the writ in 1980 is found
at page 7 of the record and at paragraph 7 of it he deposed as follows;<o:p></o:p>"Unfortunately
I differed, on the insistence(sic) and advise of my own Stool&nbsp; Elders, from the Omanhene as to the
boundaries of the Pitiko stool land which shares a common boundary with
Bukuruwa Kwahu (ie. River Dede on the East) and with Kumawu Ashanti (ie. River
Obosom on the North). Consequently the attempted settlement proved abortive,
and the Omanhene wrote to inform Commissioner Amorin accordingly on 28th May,
1987."<o:p></o:p>We have quoted from the affidavit to show that the
difference stated by the appellant was not as to its boundaries as described on
the writ of summons in the High Court but between the new Pitiko chief and the
Kwahu Omanhene who was attempting&nbsp;
settlement of the case after the dispute had gone to court. In our view
if in 1988 the new Pitiko chief seriously believed that he had no common
boundary with the respondents then the dispute was not one within the
jurisdiction of the Commissioner who was to determine stool land boundaries
cases and he should not have gone back to the Commission. </main>