EMMANUEL K AZAMETI vs. DINGLE DORDZI ATTIPOE AND KWAWU NYATEFE [2019]DLCA8839

Date	2019-12-18
Suit No.	CIVIL APPEAL NO. H1/01/2019
Citation No.	[2019]DLCA8839

MABEL M. AGYEMANG J. A (PRESIDING)

ALEX POKU ACHEAMPONG J.A

MERLEY A. WOOD (MRS) J.A

COUNSEL FOR PLAINTIFF /APPELLANT: V.K. GBORKPOR

COUNSEL FOR DEFENDANTS /RESPONDENTS: DR. JOE ATTIPOE

[2019]DLCA8839
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													<main id="main" class="content" style="min-height: 60rem" >EMMANUEL K AZAMETI<o:p></o:p>(PLAINTIFF/
APPELLANT)<o:p></o:p>vs.<o:p></o:p>DINGLE DORDZI ATTIPOE AND KWAWU
NYATEFE<o:p></o:p>(DEFENDANTS/ RESPONDENTS)<o:p></o:p><o:p>&nbsp;</o:p>[COURT
OF APPEAL, HO]<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. H1/01/2019&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:&nbsp; 18TH DECEMBER 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>COUNSEL FOR PLAINTIFF /APPELLANT:&nbsp; V.K. GBORKPOR <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">

COUNSEL FOR
DEFENDANTS /RESPONDENTS: DR. JOE ATTIPOE<o:p></o:p>

</div>CORAM:<o:p></o:p>MABEL M. AGYEMANG J. A (PRESIDING), ALEX POKU ACHEAMPONG
J.A, MERLEY A. WOOD (MRS) J.A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>MERLEY WOOD JA<o:p></o:p>On 12th December 2016, the
High Court, Ho delivered judgment dismissing the claims of the
Plaintiff/Appellant and entering judgement for the Defendants/Respondents on
their counterclaim and declaring title in land referred to as Kpotavi land.
This is an appeal by the Plaintiff/Appellant (hereafter referred to as the
Plaintiff or Appellant) against the said judgment.<o:p></o:p>The matters antecedent to the instant
appeal are as follows: <o:p></o:p>The Plaintiff, the acting head of the
Kpeyehi family claimed as per his amended statement of claim, that his great
grandfather founded a large tract of land at Ziope which extends beyond the
Ziope township. This land is in two lots A and B, with the disputed land being
a portion of Lot A. It is his case that Lot A is bounded on one side by the
property of Ahiagba (Bortrie), Zilevu, Dugo and Humali Ashabi families, on two
sides by the property of Kportave family, on another side by Dzokple stream and
on the last side by the Ho-Aflao Main Road. &nbsp;&nbsp;The
property in dispute is bounded on one side by the property of Humali Ashabi and
Dugo family lands, on two sides by Kpotave family land and on the last side by
Kpeyehi family land. In 1986, following the 2nd Defendant lodging a
complaint of trespass and stealing against PW1 C.K Gblorkpor, an arbitration
was held. The panel concluded that C.K. Gblorkpor had trespassed onto the
Defendants land and had sowed maize beyond a burnt toti tree which both parties
acknowledge was the boundary feature between Kpeyehi (Plaintiff family) land,
Kpotave family land and Homali Ashiabi land and therefore the 2nd
Defendant was entitled to harvest the maize sowed beyond the said boundary. &nbsp;<o:p></o:p>It is the Plaintiff’s case that
sometime in 1990, the Defendants sued the Plaintiffs in respect of the Hiakatame
portions of Kpeyehi family land but abandoned it. However, the 1st
Defendant especially allegedly started cultivating portions of Kpeyehi family
land with impunity by the use of force and threats. The Plaintiff/Appellant
complained that the Defendants had trespassed onto their family land and were
cultivating same. According to the Plaintiff, the Kpotavi land was pledged to
Defendant’s father and that in spite of advice from the original common
boundary owners as to the true boundary between Kpeyehi, Humali Ashiabi and
Kpotave family lands, the Defendants continued to provoke members of Kpeyehi
family by laying claim to what rightly belongs to Kpeyehi family.<o:p></o:p>According to the Plaintiff, the
boundary features along the common boundaries for Humali Asiabi and Kpotave
family lands are as follows: burnt Wokpa and Xeti trees which are on an ant
hill then to a burnt Toti tree which serves as a common boundary point for
Humali Ashiabi, Kpotave and Plaintiff’s family lands. From the common meeting
point for Kpeyehi, Humali Ashiabi and Kpotave family lands i.e. burnt Toti
tree, Plaintiff’s land stretches across Ziope-Batume feeder road to Exekor to a
Toti tree to an Adido tree then to Atitekor, then to Heheti to another Adido
tree and then to a point close to the said Adido tree.&nbsp; From this point which is close to the Adido
tree, Kpeyehi land stretches across a marshy land known as Hiakatame in Kpeyehi
family land and finally to the Wokpa and Xeti trees where Kpeyehi and the Humali
Ashiabi family lands meet. <o:p></o:p>The Plaintiff contends that since time
immemorial they have cultivated their family land themselves and leased
portions of the land to people like Dzato Densu, Paul Kobla Dogbe, Madam Akote,
Agbalalevor, Busa Kofi and Mabel Worgba to cultivate. The Plaintiff denied
sharing a boundary with the Defendants and further denied that there is a
stream called Hiakatame/Gadzatorwui which is a boundary feature. It is his
contention that the said feature rather belonged to the Kpeyehi family.<o:p></o:p>The Plaintiff therefore claimed in a
Further Amended Writ of Summons and an Amended Statement of Claim filed on 10th
May 2016 the following reliefs:<o:p></o:p>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Declaration
of title to all that piece of land near Ziope and bounded as follows:<o:p></o:p>-