MADAM ABENA TIWAA v. AKOSUA NSIAH _ 40 ORS. KOFI OKAI.
2004
COURT OF APPEAL
GHANA
CORAM
- Farkye, J.A. [Presiding]
- Tweneboa-Kodua, J.A.
- Asiamah, J.A
Areas of Law
- Property and Real Estate Law
- Evidence Law
2004
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
In the Ghana Court of Appeal, Tweneboa-Kodua, J.A., writing for the court, affirmed a High Court, Kumasi judgment in favor of the plaintiff (now respondent), granting a declaration of title and a perpetual injunction over land at Asokore/Owerekokrom on Asokore Stool lands, bounded by the properties of Kwasi Owusu, Kwasi Dadaa and Yaw Darkwa, and marked by the Nununkum and Naama streams. On appeal, counsel for the defendants and co-defendant (appellants) abandoned two grounds and pressed only that the land’s identity was vague. Applying Anane v Donkor, the court held that a simple description by neighboring owners and natural features was adequate for enforcement, contempt, and res judicata. It further applied section 26 of the Evidence Decree (NRCD 323) to estop the appellants, noting PW3, Yaw Agyei—nephew of the sixth appellant—trespassed beyond a notorious boundary, paid for trees felled, and met the preponderance standard under section 12. The appeal was dismissed and the High Court’s orders, damages, and costs were sustained.
JUDGMENT
TWENEBOA-KODUA, J. A.
The plaintiff, qua respondent in this appeal, obtained judgment in the High Court, Kumasi against the defendants and Co-defendant, all as appellants for relief as follows:—
"1. A declaration of title to all that piece and parcel of land with cocoa trees thereon situate, lying and being at Asokori on a land commonly known and called Owirekokrom on Asokori Stool lands bounded by the properties of Kwasi Owusu, Kwasi Dadaa, Yaw Darkwa and "mununkum" and Yamoah Naama streams, and
"3. Perpetual injunction restraining the defendants, their agents, servants and/or workmen from anyway interfering with the subject matter in dispute".
The Court below also granted against the defendants/appellants damages assessed at ¢2,000 in favour of the respondent. Above all, the respondent was adjudged to recover costs assessed at ¢5,000 against all the appellants.
The appeal herein has been launched from the judgment of the court below on grounds formulated as follows:
"(i) The judgment is against the weight of the evidence on record.
(ii) The learned judge erred in law in giving judgment for the plaintiff when the plaintiff failed to describe fully the identity of the land.
(iii) The judge failed to make a finding on the Co-defendant's counterclaim."
In the submission filed on behalf of his clients, counsel for the appellants limited
the appeal to the second ground and, in robust self-confidence and self-satisfaction, hoped that the argument urged upon us on that crucial ground would carry the day. He therefore abandoned the other couple of grounds.
Counsel for the appellants submitted that there had been a vague description of the disputed land in the court below. He adverted to the endorsement on the writ of summons and to the description in the first limb of the claim, viz" . . . . . all that piece or parcel of land with cocoa trees thereon situate, lying and being at Asokore on a land commonly called Owereko-Krom on Asokore Stool land and bounded by the properties of Kwasi Owusu, Kwasi Dadaa, Yaw Darkwa, Munukum and Yamoah Stream;" and contended that the identity of the land was not made manifest by this description.
Counsel adverted to paragraph 2 of the respondent's statement of claim in the Court below at page 7 of the Appeal Record which carried a similar description of the disputed land. As well the respondent swore in-chief in the court below, counsel submitted, to an identity of the disputed land in vague and nebulous terms