2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Delivering the lead opinion, Dennis D. Adjei, J.A., reversed a Cape Coast High Court judgment that had granted the Eburbonko Stool family declaratory and injunctive relief over Kusuku Bonsam land. The plaintiff’s pleadings omitted any boundary description, instead attaching two site plans to delineate the land and citing earlier suits including a 1946 consolidated case (Kwaw Ayie v. Kofi Dadzie VII) with plans (Exhibits E and F). The defendant, from the Adwenadze/Ebiradze family, denied the claim and described different boundaries around Akofurdo and Asebu Ekroful. The Court of Appeal held that attaching documents to pleadings is impermissible and not evidence; the 1946 judgment left the limits undefined; and although mathematical precision is unnecessary, identity must be ascertainable. Finding the plaintiff failed to prove identity, the court set aside the High Court’s judgment. Presiding Justice S. Marful-Sau and Justice C.J. Honyenuga concurred.
DENNIS ADJEI, J.A:
On 2nd June, 2008 the defendant/appellant herein filed an appeal against the decision of the High Court, Cape Coast delivered on 5th May, 2008 in which he lost.
For the purposes of this appeal the defendant/appellant would be referred to as the Defendant and the plaintiff/respondent as Plaintiff.
The brief facts of this case were that the plaintiff was claiming ownership to Kusuku Bonsam lands which forms part of Eburbonko Stool lands.
The plaintiff did not describe the identity of the land but rather attached to the writ of summons, two maps (site plans) which sought to delineate the disputed land.
The trial High Court Judge gave judgment in favour of the plaintiff for all the reliefs endorsed on his writ of summons.
The defendant aggrieved by the judgment of the trial High Court appealed to this court to reverse the judgment on several reasons, particularly that the judgment was wrong because the identity of the subject matter of the litigation (the land) remains unknown and it sins against the time tested decisions which are to the effect that a party who fails to give a vivid description of his/her land to make it identifiable cannot succeed in claims for declaration of title and an order for perpetual injunction.
See the case of Kwabena vs. Atuahene [1981] GLR 136.
The defendant filed 13 grounds of appeal and they are as follows:
“a. The trial Judge erred by holding in his judgment that the plaintiff discharged the duty imposed on him by law to prove the identity of the disputed land by the tendering of the plans used in the suit entitled KOW EYIE odikro of Eburbonko vs. Kofi Dadzie VII Odikro of Wioma when the defendant/appellant and his privies were not parties to the said suit.
b. The trial Judge by holding in his judgment that the plaintiff discharged the burden of proof imposed on him by law to prove the identity of the disputed land wrongly relied on the plan attached to the plaintiff’s statement of claim which had been falsified by the plaintiff by insertion therein “Akofurdo and Kusuku Bonsam” instead of the original two (2) plans forming part of the judgment and proceedings in the suit entitled EKOW EYIE VS. KOFI DADZIE VII tendered in evidence by the plaintiff/Respondent which plans did not contain “Akofordo and Kusuku- Bonsam lands.
c. The Trial Judge should have dismissed the plaintiff’s case on grounds that the plaintiff failed to prove the identity of the land in dispute.
d. The trial Judge arrived at the