OPANIN KWASI BOYE AND 2 OTHERS vs. OPANIN KWAME AMAKYE AND OFORI ASUMADU [2018]DLCA5331

Date	2018-01-16
Suit No.	CIVIL APPEAL: H1/06/2017
Citation No.	[2018]DLCA5331

K. A. ACQUAYE JA (PRESIDING)

S. K. GYAN JA

M. M. AGYEMANG (MRS.) JA

MR. ASURO NAPARI FOR DEFENDANTS / APPELLANTS

[2018]DLCA5331
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN KWASI BOYE AND 2 OTHERS<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>OPANIN KWAME AMAKYE AND OFORI ASUMADU<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL (CIVIL DIVISION), KOFORIDUA]<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: H1/06/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
16TH JANUARY, 2018<o:p></o:p>

</div>COUNSEL:<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. ASURO
NAPARI FOR DEFENDANTS / APPELLANTS<o:p></o:p>

</div>CORAM: &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>K. A. ACQUAYE JA (PRESIDING), S. K. GYAN JA, M. M.
AGYEMANG (MRS.) JA<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="MsoNormalCxSpMiddle" align="center" style="text-align:center;line-height:
115%;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">JUDGMENT<o:p></o:p>

</div>AGYEMANG,
JA:<o:p></o:p>In this appeal against the judgment of the Circuit
Court, Mpraeso, delivered on the 29th day of October 2015, the sole ground of
appeal set out by the defendants/appellants is that the judgment is against the
weight of the evidence on record.<o:p></o:p>These are the matters antecedent to this appeal.<o:p></o:p>The first and second plaintiffs, the head and
member respectively of the Aduana (Gyase) family of Obomeng Kwahu (hereafter
referred to alternately as the plaintiffs or the respondents), commenced suit
against the first, second and third defendants head and members respectively of
the Agona family of Obomeng Kwahu (hereafter referred to as the defendants or
the appellants) claiming inter alia, a declaration of title to, recovery of
possession of, and damages for trespass to all that piece or parcel of land
situate, lying and being at Nkawkaw (Obemeng Section) described as Plot Number
102 Block D Section IB.<o:p></o:p>It was the plaintiffs’ case that the said parcel of
land was the property of their family and that the defendants had resisted
their attempt to put a permanent building structure thereat. The suit was
strongly resisted by the defendants who also alleged that the said parcel of
land was their family property. <o:p></o:p>It was common cause that in or about 1930, the
ancestors of the two feuding families, the parties herein, two very close
friends: Opanin Kwame Ansa-Ako of the Aduana (Gyase) family, and Opanin Kwasi
Abankwa, acquired a plot of land measuring 80 feet by 80 feet from then
Obomenghene Nana Yaw Mensah, jointly. They each built a mud dwelling house on
opposite ends of the land. After the death of both men, Opanin Kwame Ansa-Ako
was succeeded by Opanin Kofi Twerefuor who inherited the land with house
thereon belonging to his predecessor. Opanin Kwadwo Amakye inherited the land
with house thereon belonging to his predecessor Opanin Kwasi Abankwa.<o:p></o:p>The said successor of Opanin Kwame Ansa-Ako: Opanin
Kofi Twerefuor demolished the mud house and erected a cement block (sand crete)
building in its place. The mud house put up by Opanin Kwasi Abankwa however
fell into ruins during a heavy rainstorm and was never rebuilt. Indeed, Opanin
Kwasi Amakye was said to have removed the roofing sheets and other building
materials of the collapsed building for his personal use. <o:p></o:p>After a while, one Opanin Kofi Dompreh, a mechanic
went onto the land to operate his fitting workshop business. During the trial
of the suit, the land was still occupied by the workers of the said gentleman
now deceased. Both parties alleged that the said gentleman was placed on the
land by them. The plaintiffs alleged that they rented the land to the gentleman
and received rents from him. The defendants alleged that Dompreh was their
licensee having been placed on the land free of charge by reason of familial relations
and friendship between the then head of family Opanin Asante who even named his
son after the said gentleman Dompreh.<o:p></o:p>While the defendants traced their root of title to
the original purchase and occupation by their ancestor Opanin Kwasi Abankwa, the
plaintiffs traced theirs to a sale by the successor Opanin Kwasi Amakye to the
successor of Opanin Kwame Ansa-Ako: Opanin Kofi Twerefuor. <o:p></o:p>It was the plaintiff’s case that the land was sold by
Opanin Kwadwo Amakye after the mud house constructed by his predecessor collapsed
onto an occupant and killed her. The land was allegedly sold to Opanin Kofi
Twerefuor for One Hundred Pounds. The said purchaser then placed people
thereat, including his sister, who paid the ground rent on the property. As
aforesaid, the plaintiffs claimed that their family remained in possession of the
land through the occupation of Dompreh who lived on the land as their family’s
tenant and paid rent to successive successors of Opanin Kofi Twerefuor, the
last such person being one Auntie Dora of Tema who gave corroborative evidence
of this alleged fact as PW2.<o:p></o:p>At the close of pleadings, the plaintiffs set out nine
issues which were adopted by the court for determination. The learned trial
judge however limited her consideration to two of the said issues and they were:<o:p></o:p>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbs</main>