KWADWO AZIE v. HARRISON ODENKE ADDO & ANOTHER

JUDGMENT

MARFUL- SAU, JA:- The fundamental issue raised in this appeal is whether or not the Appellant’s father was gifted the land the subject matter of the dispute by Ga Mantse, Nii Tackie Tawiah I in or about the year 1870. The appellant’s case which was rejected by the trial court as not proved, was that the land in dispute situate at Kpobiman was gifted to his late father Kofi Azie. According to the appellant his father who was a herbalist healed Ga Mantse, Nii Tackie Tawiah I of a disease and as an appreciation he was gifted the land in dispute.

The appellant contended that after the death of Kofi Azie his son Vodo Azie was appointed head of family and it was during his reign that the 1st respondent’s mother called Prophetess Maa was granted a parcel of land to build on. In 2003 the appellant who succeeded Vodo Azie as head of family noticed that the 1st respondent was alienating land belonging to the Kofi Azie family hence this action.

The 1st respondent on the other hand contended that the land in dispute is owned by the Nii Okai Mensah Family and it was that family that granted the land to his mother Prophetess Maa on which she built an eleven bedroom house. 1st respondent stated further that he was the caretaker of the Nii Okai Mensah land and has been dealing with Theophilus T. Tackie Yarboi who was once head of the Nii Okai Mensah family.

The 2nd respondent who applied to join the suit asserted that the land in dispute was for Nii Okai Mensah family having acquired same by settlement in or about 1800 and founded a village thereon. 2nd respondent contended that it was his family that granted the land to 1st respondent’s mother and also appointed 1st respondent as overseer of Nii Okai Mensah family land.

As stated above after the trial the court entered judgment for the 2nd respondent on his counterclaim and dismissed the claim of the appellant. Dissatisfied with the said judgment the appellant has mounted this appeal on the following grounds:-

“1. The trial Judge erred when he placed the burden of proof on the plaintiff when in the pleadings defendant admitted the Plaintiff’s late father’s long undisturbed possession of the land in dispute but pleaded that he was their licencee.

2. The trial judge erred in law when he failed to invoke and apply the principles of priority of interest as between the plaintiff and the defendants who were relying on the same land document.

3. The 2nd Defendant who applied and was joined to the case and cou