OPANIN OJO AND MAAME MANU vs. KWAKU AFRIYIE [2020]DLCA9900

Date	2020-11-20
Suit No.
Citation No.	[2020]DLCA9900

OFOE J.A

BARTELS-KODWO J.A

BERNASKO J.A

[2020]DLCA9900
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													<main id="main" class="content" style="min-height: 60rem" ><a name="_Hlk35510717">OPANIN OJO AND MAAME MANU<o:p></o:p></a>&nbsp;(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>KWAKU AFRIYIE <o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

SUIT
NO:.HI/36/2016&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;DATE:
20TH
NOVEMBER, 2020<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>OFOE, J.A, BARTELS-KODWO, J.A,
BERNASKO, J.A<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0in;">

<p class="MsoNormalCxSpFirst" align="center" style="text-align:center;line-height:
150%;tab-stops:147.0pt;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>OFOE,J.A<o:p></o:p>The
plaintiff/respondent had judgment in the Circuit Court against the
defendant/appellant for the claim he endorsed on the writ as follows:<o:p></o:p>“a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Plaintiff’s
claim against 1st and 2nd Defendants jointly and
severally&nbsp; for&nbsp; declaration of Title&nbsp; of Plot No. 6 at 1st Closed
Nerebehi on Dumakyi Stool Land which&nbsp;
share boundaries with the following&nbsp;
building plots Nos. 8,7,1st closed&nbsp; Lane and a Technical School.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Recovery of possession<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Damage for trespass<o:p></o:p>d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Perpetual
injunction&nbsp; to&nbsp; restrain the 1st&nbsp; and 2nd&nbsp; Defendants their agents,&nbsp; family members, servants,&nbsp; workman, assigns, privies and all those
who&nbsp; take&nbsp;
authority from&nbsp; the 1st&nbsp; and 2nd Defendants from further
interference of &nbsp;above&nbsp; described Plot No. 6 at 1st closed
Nerebehi on Dumakyi tool Land”.<o:p></o:p>The
case he put before the court was that on the 15th of July, 1996 he
acquired the disputed plot, plot No 6 at 1st Close, for the wife
from the Dumakyi stool. He was given a site plan and an allocation letter duly
stamped and signed by the late chief of Dumakyi with his elders. He and the
wife took possession immediately putting 3 trips of sand and 1000 blocks on
this plot. Four years later he was prevented from putting up a foundation on
the plot by the defendants. The grantor, Dumakyihene, who he believed could
solve the matter and therefore he made a complaint to sought to divide the plot
into two and giving half to the defendants. He objected to the division of the
plot. Since the defendants were bent on annexing the plot he had to seek the
intervention of the court. He described the boundaries of the plot in paragraph
12 of his statement of claim as Plots numbers 7, 8, 1st Close Lane
and the technical school.<o:p></o:p>The
defendants by their paragraph 6 of the defence stated that the land in dispute
which was once farmed by their mother Akua Mansah was allocated to the
plaintiff by the Dumakyihene. When they confronted the Domakyihene why he
allocated the plot to the plaintiff he impressed upon them to allow the
plaintiff to continue his development. The Dumakyi hene then allocated a
different plot, plot No 6A, to them and issued a site plan and an allocation
letter signed by the Dumakyihene and elders. They describe the boundaries of
this plot No 6A in paragraph 8 and 15 as bounded by plot No 7,8, 1st
Close Street and a road. It is this plot the plaintiff is attempting to annex
and not that they have entered the plaintiff’s land as alleged by the
plaintiff.<o:p></o:p>They
counterclaimed for a declaration of title to this land, recovery of possession
and Damages for trespass.<o:p></o:p>From
the record of appeal a total of 12 issues were set down for trial. But reading
closely the record of appeal, particularly the evidence led by the parties it appears
to us the prominent issue should be whether plot No 6A was created out of plot
No 6 and whether that could be done by the Dumakyihene, the grantor of both
parties.<o:p></o:p>The trial
judge found that the defendants admitted the grant of plot No 6 to the
plaintiff and thereafter the carving out plot No 6A to them. That being the
case the plaintiff no more had the duty to lead evidence to establish his
ownership of plot No 6. He relied on the authorities of Francis Assuming &amp; 64 others
vrs Divestiture Implementation Committee (2008) 3 GMJ 35 SC, West African
Enterprises Ltd Vrs Western Hardwood Enterprise Ltd (1995-96) 1GLR 153, Asere Stool vrs
Akora Oworsika (2005-2006) SCGLR 637 where the principle was stated that an
admitted fact needs no more evidence to proof.<o:p></o:p>He
concluded that since the chief had divested himself of this plot No 6 to the
plaintiff, he no more had any interest in this plot to grant part of it in the
form of 6A to the defendants. He therefore found the grant of plot 6A to the
defendants invalid. Consequently, he gave judgment to the plaintiff and
dismissed the counterclaim of the defendants.<o:p></o:p>It
is this judgment that had evoked the grounds of appeal filed by the defendants.
We have the first and second grounds of appeal being the judgment is against
the weight of evidence and that the cost awarded against the defendants is
excessive. These two grounds were the original grounds of appeal filed. After
ferreting through the record of appeal the defendant’s counsel had added the
grounds of appeal complaining that the trial judge failed to find that the
plaintiff lacked capacity to institute the action. Also added is the allegation
that the trial judge erred when he entered judgment against the 2nd
defendant without giving him a hearing in breach of the rules of natural
justice. Under what the defendant described as particulars of error, defendants
allege that the 2nd defendant did not enter appearance to the suit
herself as required by Order 9 rule 3(2). The appearance entered and statement
of defence and counterclaim filed were filed on behalf the 2nd
defendant by the 1st defendant. Counsel contends that by these
breaches all these processes filed are void. Under this alleged error of law
the defendants have another ground of appeal that even though the 2nd
defendant erroneously continued to appear in court and is alleged to have filed
a counterclaim, he was not called upon to cross exami</main>