KWABENA v. ATUAHENE

JUDGMENT OF ARCHER J.A.

In this case, the plaintiff claimed against the defendant, a declaration of title to one cocoa and foodstuff farm situated at Bronkrome on Tepa stool land, damages for trespass, recovery of possession and perpetual injunction. The circuit court sitting at [p.137] Kumasi gave judgment for the plaintiff and granted the reliefs sought.

The defendant has appealed from that judgment to this court and the only ground of appeal filed by him was, "that the judgment of the learned circuit judge is against the weight of evidence." In arguing this sole ground, learned counsel for the defendant concentrated mainly on the identity of the land and submitted that the plaintiff failed to establish the identity of the land in dispute and as such he was not entitled to a declaration. In support of this argument, learned counsel drew attention to the description of the land and the names of the boundary owners in the indorsement on the original writ of summons and submitted that the particulars indorsed were at variance with the description given by the plaintiff in his evidence-in-chief.

It would be convenient at this stage to dispose of this submission first. The indorsement on the writ of summons is:

"The plaintiff's claim against the defendant herein is for declaration of title to one cocoa and foodstuff farm situate at a place commonly known as Bronkrome on Tepa stool land forming boundary with Abena Broni, Kwaku Eshun, Bronkrome stream or Akontabuo stream and Osei Akwasi."

It appears from the record of appeal that on 6 October 1974, the plaintiff filed an amended writ of summons and thereby amended his indorsement as follows:

"The plaintiff's claim against the defendant herein is for:

Declaration of title to one cocoa and foodstuffs farm situate and being at a place commonly known as Bronkrome on Tepa stool land bounded on all sides by the properties of Abena Broni, Kwaku Eshun, Bronkrome stream, Akontabuo stream, Osei Akwasi, Owusu Dome, Kwaku Boateng, Kojo Ofeh and Yaw Adom."

Undoubtedly, this amendment became necessary in view of the plaintiff's directions to the surveyor filed on 19 August 1974, as follows:

“(a) Boundaries with Abena Broni, Kwaku Eshun, Osei Kwasi, the Bronkrome, Akontabuo stream, Yaw Adom, Kojo Ofeh, Kwaku Boateng, Kwabena Dome and Osei Kwabena.

(b) Features: Bronkrome stream, flowers, Dannan tree, Akontabuo stream."

On 16 December 1974, the plaintiff, by his solicitor, filed the following pursuant order:

[p.