BUKARI ATIIGA AKUSI (PER HIS LAWFUL ATTORNEY) AND AWUDU ATIIGA AKUSI vs. MUSAH NINCHEMAH, BUKARI NINCHEMAH, MORO AYAMBA AND DANIEL APIAWIN [2019]DLHC8171

BUKARI ATIIGA AKUSI (PER HIS LAWFUL ATTORNEY) AND AWUDU ATIIGA AKUSI vs. MUSAH N... [2019]DLHC8171

Date	2019-07-13
Suit No.	SUIT NO. C1/16/2015
Citation No.	[2019]DLHC8171

HIS LORDSHIP JUSTICE JACOB B. BOON

ROBERT TATER FOR THE PLAINTIFF

KENNETH ADABAYERI FOR THE DEFENDANTS

[2019]DLHC8171
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													<main id="main" class="content" style="min-height: 60rem" >BUKARI ATIIGA
AKUSI (PER HIS LAWFUL ATTORNEY) AND AWUDU ATIIGA AKUSI<o:p></o:p>vs.<o:p></o:p>MUSAH
NINCHEMAH, BUKARI NINCHEMAH, MORO AYAMBA AND DANIEL APIAWIN<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT,
BOLGATANGA]<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">

SUIT
NO. C1/16/2015&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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 JULY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ROBERT
TATER FOR THE PLAINTIFF<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">

KENNETH
ADABAYERI FOR THE DEFENDANTS<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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HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

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

</div>The plaintiff filed
the instant suit in the Registry of this Court on 26th June, 2015. From
the pleadings, a core issue is the determination of the boundary between two
villages, namely, Bulugu and Kolpeligu, both in the Pusiga Traditional Area of
the Upper East Region. Whereas the plaintiff asserted that a key boundary
feature between the villages is a stream called Kultis which takes its source
from Kultis sub-village in Bulugu, the defendant held out that the main
boundary is the Missiga-Kulungugu road, insisting there is no village known as
Kultis in the location of the disputed area. He acknowledged the existence of
the name Kultis in the area but said it refers to a shrine which belongs to
Kolpeligu village though his answers during cross-examination by counsel for
the plaintiff, Mr Tater, suggest Kultis exits as a village without a headman &nbsp;because he had not appointed one for the
settlement. Plaintiff’s response is that the springing up of both villages
predated the construction of the Missiga-Kulungugu road, stressing that the
road did not exist at the time the villages were founded. It is the case of the
plaintiff that the road passes through Bulugu and cannot be the boundary
between the two villages. Both sides admit the villages were founded before the
construction of the road in its present form, but according to the first
defendant in his cross-examination, the road existed as a market path but later
expanded into a main road, insisting, it had always been the boundary between
the two villages. <o:p></o:p><o:p>&nbsp;</o:p>Another key issue
is the relevance of a judgment of Bawku District Court of 10th
September, 2009, delivered by His Honour Judge Alex Owusu-Ofori, as he then
was, sitting as additional Magistrate, between the first defendant in the
instant suit, then as plaintiff, and the father of the attorney for the
plaintiff and another. The judgment is exhibited by both plaintiff and defendants
as exhibit ‘AA3’ and ‘MN1’ respectively, whilst the writ of summons of that
case is exhibited by the plaintiff and marked as exhibit ‘AA2’. It is significant
to add that the current plaintiff’s attorney also held a power of attorney for
the first defendant in the District Court. Relying on the judgment, defendants pleaded
res judicata aimed at preventing the plaintiff from reopening the matter,
particularly the boundary between the two villages because it was urged
strongly on their behalf by their counsel, Mr Adabayeri, that the issue was
determined in the judgment of the Bawku District Court. <o:p></o:p><o:p>&nbsp;</o:p>The plaintiff argued
that the plea of res judicata is inapplicable in this suit. His lawyer opined
that the defendants misconceived the effect of the judgment which he contended
was in respect of a piece of land meant for the construction of a filling
station and not of the boundary between Bulugu and Kolpeligu. It is the
plaintiff’s case that at the District Court, both sides described the
boundaries of the property in dispute, stressing that the first defendant
herein mentioned the boundary as a river called Kulpeok and a tree known as
Kpikpalik, whilst the plaintiff said the boundary was the Kultis stream,
dawadawa, ebony, shea nut, and silk cotton trees as well as the
Missiga-Kulungugu road, and at the end of the day, judgment was entered for the
plaintiff’s predecessor. It is significant to add that the District Court ruled
that the Missiga-Kulungugu road serves as the boundary between the villages.<o:p></o:p><o:p>&nbsp;</o:p>For the sake of
clarity, the plaintiff described himself as the Tindana of Bulugu, and, as
already indicated, issued the writ of summons through his attorney, claiming
the following reliefs:<o:p></o:p>1. A
declaration that Kolpeligu village lies to the East of Bulugu village and the
boundary between Bulugu village and Kolpeligu village is the Kultis stream
flowing from Kultis village through to Agel River and also bounded to the
South-East by a Dawadawa tree, a Kapok tree, an Ebony tree, a shea nut tree and
a Black berry tree and </main>