NANA ADU KWAMENA II & ANOTHER v. EBUSUAPANYIN J. K. EBI NYANKEKROM

HONYENUGA, J.A.

This is an appeal against the judgment of the Circuit Court, Takoradi dated the 9th day of January 2007. The said court gave judgment in favour of the plaintiff/respondent.

The facts of this appeal are that the plaintiff/respondent for and on behalf of his family instituted an action against the defendant/appellant claiming as follows:-

“a. Plaintiff’s claim against the defendant is for declaration of title to all that piece or parcel of land lying and situate at Mfiase, near Agona Nkwanta and popularly referred to as “Mfiase Land”.

b. Damages for trespass.

c. Recovery of possession of the trespass and portions.

d. Perpetual injunction restraining the defendant, his agents, assigns etc from interfering in plaintiff’s possession”.

The Writ of Summons was accompanied by an eight paragraph statement of claim in which paragraph 3 depicts the boundaries of the land in dispute. The defendant/appellant also filed an appearance and later filed an amended statement of defence. This culminated into the plaintiff/respondent filing an amended Reply.

At the Summons for Directions stage the following issues were set down for trial:-

“a) Whether or not the plaintiff’s ancestors were the 1st to break the virgin forest.

b) Whether or not plaintiff has carved out portions of the land to tenant farmers.

c) Whether or not defendant has committed trespass”.

During the trial, the plaintiff/respondent testified and called one witness. On the other hand, the defendant/appellant also testified and called two witnesses. After hearing both parties and their witnesses, the learned trial judge on the 9th January, 2007 delivered judgment in favour of the plaintiff/respondent and granted all the plaintiff/respondent’s reliefs as against the defendant/appellant.

Being dissatisfied with the judgment of the Circuit Court, Takoradi, the defendant/appellant filed the instant appeal based on the following grounds:-

“a) The learned trial judge erred in holding that the issue of capacity did not arise when in the pleading it had been indicated to him that he will be required to prove that, and had been challenged.

b) The learned trial judge erred in holding that the defendant is estopped by Exhibits C, D and B when these exhibits did not give any boundary and the plaintiff had failed to lead evidence of the boundary.

c) The learned trial judge erred in treating PW1 as a hostile witness, when his evidence corroborates plaintiff’s exhibit No. ‘C’.

d) The learned t