2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
In the Court of Appeal, Justice Mariama Owusu (presiding) dismissed an appeal from the Circuit Court, Bekwai/Ashanti, in a land dispute over Akwasiampeso on Fomena Stool land. The plaintiff, acting for himself and purportedly for his family, sought declarations and injunction against defendants who claimed through a gift from the late Opanin Akwasi Dei. On appeal, the plaintiff argued the judgment was against the weight of the evidence, that he had capacity to sue on behalf of the family, and that the alleged gift was invalid. The appellate court held that points of law concerning locus inspection procedure could not be argued under the omnibus “weight of evidence” ground and that any non-observance at the locus did not cause injustice. The court further held the plaintiff lacked capacity under Order 4 rule 9 of C.I. 47 because he was neither head of family nor acting under necessity, with the head of family present and testifying. Finally, the court affirmed the trial court’s finding of a valid customary gift to defendants, supported by ‘aseda’, publicity, identity, and longstanding possession, and dismissed the appeal.
MARIAMA OWUSU, J.A:
This is an appeal against the decision of the Circuit Court, Bekwai/Ashanti, dismissing the plaintiff’s claim as not proved.
Judgment was then entered in favour of the defendants on their counterclaim.
Dissatisfied with the decision of the court, the plaintiff appealed to this court.
The Grounds of Appeal are:
a. The judgment is against the weight of evidence adduced at trial.
b. The learned Judge erred when he ruled that the plaintiff has no capacity to commence and maintain the action.
c. The learned Judge erred when he ruled that a valid gift of the land in dispute had been made in favour of the defendants.
d. Additional grounds of appeal to be filed on receipt of the record of proceedings.
The Relief being sought:
The judgment of the Honourable Court dated 17-6-2010 be set aside.
The facts of the case are as follows: The plaintiff issued a writ of summons for himself and on behalf of his family members of New Akrofuom claiming:
a. A declaration of Title and Ownership to all that piece or parcel of a scrub land situated, lying and being at New Akrofuom at a place commonly known and called “Akwasiampeso” on Fomena Stool land which defendants have trespassed unto claiming same as the property of the late Op.Kwasi Dei.
b. Recovery of Possession and ownership of the land.
c. General Damages for trespass.
d. Perpetual Injunction In the statement of claim which accompanied his writ of summons, the plaintiff avers that, his late grandparents, Nana Abuaa and Opanin Yaw Barima acquired the Akwasiampeso land in its virgin state from Opanin Apotoe, the then Gyaasehene of Fomena who is the Overlord of the said land.
Plaintiff avers further that, Nana Abuaa and Opanin Yaw Barima cultivated cocoa and coffee on the land and enjoyed same till Nana Abuaa died and Opanin Yaw Barima became blind.
It is the case of the plaintiff that, when Nana Yaw Barima became blind, he entrusted the said land into the care of Akwasi Dei his Nephew who took possession of the said land till Opanin Yaw Barima died.
Upon the death of Opanin Yaw Barima, the land devolved onto Opanin Akwasi Dei who enjoyed the proceeds of the land for about sixty years till he died in the year 2003 when the land devolved onto Kwadwo Donkor, the brother of Akwasi Dei who had enjoyed the proceeds to date.
Plaintiff avers further that, during his life time, Akwasi Dei curved portions of the land to other tenants to cultivate on abunu basis.
The remaining portion of the lan