ASARE AND OTHERS v. APPAU II

JUDGMENT OF AMUA-SEKYI J.A.

In the vicinity of the town of Pankrono, there is a tract of land which the parties to this suit call Domi. Each side claims it by original settlement of their ancestors some three hundred years ago. The appellants, who were the defendants in the court below, are Nana Brobbey Kwakye Asare, Odikro of Pankrono, and Nana Owusu Afriyie II, Ohene of Nkwantakese. The stool of Pankrono is a sub-stool of that of Nkwantakese. The respondent, who was the plaintiff in the court below, is Nana Kwabena Kuffour II, Ohene of Nkawie.

The action was commenced in or about 1954 by Nana Twum Barima Appau II, the then Ohene of Nkawie, in the Kumasi Municipal Court. After two abortive trials, the case was sent to the High Court, Kumasi for yet another retrial. Hearing started before Roger Korsah J [p.601] but was concluded before Anterkyi J. who entered judgment for the plaintiff.

By the time the case came up for trial in the High Court the original parties and most of the witnesses who gave evidence before the Kumasi Municipal Court were dead. At the request of the parties the court adopted some of the evidence adduced in the earlier trials and made them part of the proceedings in the High Court.

Each of the parties traced his ancestry to Denkyira. According to the Nkawiehene, his forbears migrated to Ashanti during the reign of Osei-Tutu and were settled at Domi. After some years they moved to their present abode, leaving behind some of their subjects under Safohene Gyamfi as caretakers of the land. He asserted that the people now in occupation of the land still owed allegiance to him.

The forebears of the Nkwantakesehene also migrated to Ashanti during the reign of Osei-Tutu. They were first settled at a place called Doti, but afterwards moved to the Pankrono area and, according to the defendants, founded a number of villages, including Domi. It was admitted that the disputed land is in the occupation of subjects of the Nkawie stool; but the defendants explained that Gyamfi was the son of Owurasie (or Wadiesie), the first odikro of Domi, who permitted the said Gyamfi to live off the land, in other words the descendants of Gyamfi and the Nkawie stool subjects on the land are there by the leave and licence of the Nkwantakese stool.

The Nkawiehene did not rely solely on the traditional history to support his claim to the land. He led evidence that Gyamfi came to Domi on his own, that he brought a fetish called Tano Bodom from Denkyira and tha