Fynn v Dadzie

BENIN JA. The plaintiff-respondent herein namely, H E Dadzie, acting for and on behalf of the Awodwinfio stool family of Kwesimintsim, sued the defendant seeking declaration of title to a piece of land situate within the Effia Concession which he claimed defendant had unlawfully appropriated. He sought also damages for conversion. The plaintiff’s case as pleaded is that his family is the allodial owner of the land in dispute which was the subject of the Effia Concession Enquiry No 1256 which was validated and a certificate of validation issued. He averred that the defendant’s family owns land which shares boundary with the plaintiff’s land on the south-western portion of the concession. The defendant pledged his land and when he recently redeemed it he was shown the boundary with the plaintiff. Yet the defendant has trespassed onto plaintiff’s land and occupied some 33 numbered plots.

The defendant filed a statement of defence describing himself as the Head of the Sekyi Akona Obratu Ebiradzi stool family of Kwesimintsim and Aseka. He averred that his family owned a large tract of land of which the area in dispute formed part. He counter-claimed for a declaration of title to the same plots mentioned in the statement of claim and for damages for trespass and perpetual injunction.

After hearing the evidence, the trial court entered judgment for the plaintiff. The defendant then appealed to this court on several grounds. But when the appeal was listed for hearing, the defendant-appellant’s counsel filed a notice of intention to raise a preliminary legal point formulated thus: whether in view of section 4(2) of the Stool Lands Boundaries Settlement Decree 1973 (NRCD 172) the trial judge ought not to have stayed proceedings for the boundary between the two stools to be determined before deciding that the land in dispute fell within the boundary of the respondent’s stool land.

Arguing this legal point, counsel for the defendant-respondent made references to portions of the pleadings and evidence adduced at the trial and submitted that the trial judge should have advised himself that the issue of the boundary between the two stools was incidental to a resolution of the dispute. He cited the case of Sah v Darku [1987-88] 1 GLR 123, CA holding 5. He then made reference to a portion of this judgment where he said the trial judge had determined the boundary between the two stools. Counsel also cited the case of Gabbs Ltd v Boakye [1991] 1 GLR 533, C