December 18, 2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case involves a boundary and title dispute near Ziope between the Kpeyehi family and descendants of Bernard Tetekpli Nyatefe Attipoe (Togbi Duklui Attipoe III) over Kpotave land, culminating in a High Court judgment for the defendants and a subsequent appeal. The Kpeyehi family described the disputed strip and relied on boundary owners and users, including a 1986 elders’ adjudication that PW1 trespassed beyond a burnt toti tree recognized as a common boundary. The defendants relied on a 1923 purchase for £5 and asserted long possession and boundary features, including the seasonal Hiakatame/Gadzatorwui stream. On rehearing, the Court of Appeal held the High Court’s judgment was against the weight of the evidence, faulted the trial judge for conflating claim and counterclaim, found the purchase documents lacked descriptions that could not be cured to defeat the plaintiff’s proven boundary, and allowed the appeal in part—preserving the counterclaim only insofar as consistent with the plaintiff’s boundary from the burnt toti tree across the Ziope–Batume road to a wokpa tree on an anthill.
MERLEY WOOD JA
On 12th December 2016, the High Court, Ho delivered judgment dismissing the claims of the Plaintiff/Appellant and entering judgement for the Defendants/Respondents on their counterclaim and declaring title in land referred to as Kpotavi land.
This is an appeal by the Plaintiff/Appellant (hereafter referred to as the Plaintiff or Appellant) against the said judgment.
The matters antecedent to the instant appeal are as follows: The Plaintiff, the acting head of the Kpeyehi family claimed as per his amended statement of claim, that his great grandfather founded a large tract of land at Ziope which extends beyond the Ziope township.
This land is in two lots A and B, with the disputed land being a portion of Lot A. It is his case that Lot A is bounded on one side by the property of Ahiagba (Bortrie), Zilevu, Dugo and Humali Ashabi families, on two sides by the property of Kportave family, on another side by Dzokple stream and on the last side by the Ho-Aflao Main Road.
The property in dispute is bounded on one side by the property of Humali Ashabi and Dugo family lands, on two sides by Kpotave family land and on the last side by Kpeyehi family land.
In 1986, following the 2nd Defendant lodging a complaint of trespass and stealing against PW1 C.K Gblorkpor, an arbitration was held.
The panel concluded that C.K. Gblorkpor had trespassed onto the Defendants land and had sowed maize beyond a burnt toti tree which both parties acknowledge was the boundary feature between Kpeyehi (Plaintiff family) land, Kpotave family land and Homali Ashiabi land and therefore the 2nd Defendant was entitled to harvest the maize sowed beyond the said boundary.
It is the Plaintiff’s case that sometime in 1990, the Defendants sued the Plaintiffs in respect of the Hiakatame portions of Kpeyehi family land but abandoned it.
However, the 1st Defendant especially allegedly started cultivating portions of Kpeyehi family land with impunity by the use of force and threats.
The Plaintiff/Appellant complained that the Defendants had trespassed onto their family land and were cultivating same.
According to the Plaintiff, the Kpotavi land was pledged to Defendant’s father and that in spite of advice from the original common boundary owners as to the true boundary between Kpeyehi, Humali Ashiabi and Kpotave family lands, the Defendants continued to provoke members of Kpeyehi family by laying claim to what rightly belongs to Kpeyehi family.
According to the Plaintiff, the