MANSAH AND ANOTHER v. DONKOR

JUDGMENT OF ROGER KORSAH J.

This is an appeal from the judgment of the District Court Grade II, Offinso, delivered on 11 July 1974.

The plaintiff by his writ of summons claimed against the defendant ¢200 as damages for trespass. By his statement of claim, [p.827] however, he claimed that he was the:

“owner in possession of a piece of farmland having food-stuffs planted thereon situate lying and being on Offinso stool land at a place commonly known and called ‘Asuakoo-Akrofonso’ and which is bounded on the right by the property of Kwame Manu, then public incinerator, and then public latrine and then public cemetery, on the left by the property of Kwaku Forkuo and motor road.”

In support of his title, he claimed that his grandfather, Nana Appiah Osei, originally acquired a large tract of land from Nana Akwamuhene of Offinso of which the area in dispute formed a part. The grandfather cleared a parcel of the said land and made a gift of the disputed area to his son—the plaintiff’s father, Kwame Gyedua. Kwame Gyedua built a house on the land, planted oranges and other cash crops and in turn made a gift of his interest in the said land to the plaintiff. Thus the plaintiff put his title to the land in issue.

According to the plaintiff, about two years before he instituted his action, the defendant entered upon the said land and carried away large quantities of food-stuff and continues plundering the land in spite of persistent warnings from the plaintiff to desist from these acts of plunder. These are the acts of the defendant which the plaintiff complains of as being wrongful and trespassory.

The defendant on her part admitted going upon the said land and carrying away food-stuff as alleged by the plaintiff, but denies that her acts are wrongful or trespassory. She claims that she derives her title from the co-defendant and that by an arbitration award in her favour the plaintiff is estopped from asserting any claim to the disputed area.

The defendant appeals against the judgment of the trial court on three main grounds:

“1. that the trial magistrate erred in not recalling the witnesses who were present at the visit to the locus in quo to give evidence when the parties re-assembled after the inspection;

2. the trial magistrate erred in basing his judgment against the defendant and co-defendant on evidence wholly or partly not on oath; and

3. the trial magistrate misdirected himself on the burden of proof when he stated that: ‘the court is to consid