MIEH v. ASUBONTENG

JUDGMENT OF AKUFO-ADDO J.S.C.

The appellant as the successor of her deceased brother Kwabena Afriyie brought an action in the Local Court of Offinso Kwabre by which she claimed a declaration of her ownership to a piece of farm land situate at Mantukwa in Offinso and described as to the boundaries thereof in her writ of summons, £G100 for damages for trespass and an injunction.

The land in dispute is part of Offinso stool land and both the defendant and the plaintiff's predecessor Kwabena Afriyie, as subjects of the Offinso stool, cultivated farms in the area named Mantukwa.

[p.39]

According to the evidence some time in or about 1940 a dispute arose between Kwabena Afriyie and the defendant concerning the boundary between their respective cultivated areas. An action brought in the then Offinso Native Tribunal ended in Afriyie's favour and as a result a boundary was demarcated between Kwabena Afriyie's area and that of the defendant. A result of this boundary demarcating appears from the evidence to have been that the land left for the use of the defendant was a relatively small piece of land, and he bargained and sold his interest in it to Kwabena Afriyie for £G9. This piece of land has, according to the plaintiff, since formed part of Afriyie's cultivated area of which he was in undisturbed possession up to the time of his death.

This was the plaintiff 's case which the local court magistrate accepted.

The defendant who said he left Offinso some time after the demarcation of the boundary and returned after the death of Kwabena Afriyie to find the plaintiff in possession of the land entered upon the land to assert his title thereto. Hence this action.

The defendant denied the allegation of the sale to Afriyie and claimed the demarcated boundary line as being still the line separating Afriyie's land from his.

As already indicated the local court magistrate accepted the evidence of the plaintiff and her witnesses regarding the sale to Afriyie, and gave judgment declaring her the owner of the land described in her writ of summons. Nothing was said about the claim for damages and injunction.

On appeal to the High Court, Kumasi, Djabanor J. set aside the judgment of the local court magistrate and entered judgment for the defendant. The plaintiff appeals to this court from that decision.

The arguments of learned counsel for the plaintiff were directed to establishing the untenability of the grounds on which the judgment of the High Court proceeded. Th