BUKARI ATIIGA AKUSI v. BUKARI NINECHIMAH & ANOTHER
2022
COURT OF APPEAL
GHANA
CORAM
- V. D. OFOE, JA (PRESIDING)
- J. BARTELS-KODWO (MRS.), JA
- S. R. BERNASKO ESSAH (MRS.), JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Presiding Justice V. D. Ofoe delivered a brief Court of Appeal opinion affirming the High Courts resolution of a land boundary dispute between Bulugu and Kolpeligu. The Acting Tindana of Bulugu sued after learning that shops and other structures were being built near Bulugu Primary School on land he claimed as ancestral, granted by the 1st defendant. He sought boundary declarations, demolition, and an injunction. The defendants countered with res judicata, relying on a 10 September 2009 Bawku District Court judgment in Musah Nechemah v Akussi Atiiga and Abdul-Rahmah Sumaila that set the MissigaKulungugu road as the boundary. The High Court accepted res judicata, dismissed the plaintiffs claims, and granted counterclaim reliefs including an injunction. On appeal, the plaintiff argued the judgment was against the weight of evidence and attacked the Magistrates boundary selection. The Court of Appeal held any such error required a timely appeal of the 2009 decision, affirmed the binding effect of that judgment, and dismissed the appeal.
V. D. OFOE
This appeal, as is evident from our delivery, under the factual circumstances of this case, compels a brief opinion.
The plaintiff is the Acting Tindana of Bulugu. He believed certain constructional works that went on around the Bulugu Primary School were on his ancestral land and these were without his consent. He got to know that the developers had the 1st defendant as their grantor. Since the defendants were not ready to cease developments on the land he found himself with only one option, to sue. It is for this reason on the 25th of June 2015 he issued a writ of summons against the defendants claiming:
“1. A declaration of Court that Kolpeligu village lies to the East of Bulugu village and the boundary between Bulugu village and Kolpeligu village is the Kultiis Stream flow 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 Blackberry tree and the Missiga-Kulungungu road.
2. A declaration that the respective pieces of land, (near the Bulugu Primary School and to the east across the Missiga-Kulngungu road) on which Defendants are constructing structures to house shops are situate in Bulungu and not Kolpeligu.
3. An order of Court for Defendants to demolish and remove the structures constructed on the said pieces of land, or else plaintiff be at liberty to demolish and remove same and the cost thereof be surcharged on the Defendants.
4. An Order of Perpetual injunction restraining the Defendants their privies, heirs, successors, assigns and workmen from interfering with Plaintiff’s quiet possession and use of the said land.
5. Costs”.
The defendants contested the plaintiff’s claim, filed a defence and counterclaimed which reads:
“a. A Declaration that the boundary between Kolpelgu and Bulugu has already been determined in the case of Musah Nechemah v Akussi Atiiga and Abdul-Rahmah Sumaila on 10th September, 2009 by the District Court, Bawku and that the same operates as Res judicata.
b. A Declaration that Kolpelgu village lies to the East of Bulugu village and is bounded to the North by the Agel River, to the South by Missiga village, to the East by Saagabul and to the West by the Missiga-Kulungungu road.
c. A Declaration that the main and distinct boundary separating Kolpelgu and Bulugu villages is the Missiga-Kulungungu road.
d. A Declaration that the respective lands near the Bulugu Primary School where Defendants are constructing