February 29, 2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal decision, authored by Barbara Ackah-Yensu, JA, arises from a dispute over farmland near Nakpanduri and Gomisuka involving families of the Bimoba tribe with ancestral origins in Togo. The Plaintiff/Respondent sought declaration of title, recovery, and an injunction, while the Defendant/Appellant counterclaimed title to the Gomsuka lands and enforcement of alleged arbitral awards. The High Court decreed title for the Respondent and dismissed the counterclaim; the Appellant appealed, arguing the judgment was against the weight of evidence and that the Respondent failed to prove boundaries, and later raised a procedural substitution issue after the death of the plaintiff. The appellate court held that the identity of the land was not in issue because both parties pleaded consistent boundaries, that proof of identity need not be mathematically precise, and that the Respondent’s traditional history and recent acts of possession were more credible and corroborated. The court found that non-substitution was a curable irregularity and that the Appellant waived objection. The appeal was dismissed and costs awarded.
BARBARA ACKAH-YENSU, JA The instant appeal is against the judgment of the High Court sitting at Tamale, delivered on 23rd October, 2012. Per the said judgment the Court decreed title in favour of the Plaintiff/Respondent (page 237 of ROA), as follows: “From the totality of the evidence, I think the scale of justice tilts in favour of the plaintiff.
In other words based on the proof by preponderance of the probabilities, the plaintiff’s case is more probable than that of the defendant.
For this reason, judgment is hereby entered in favour of the plaintiff on all his reliefs.
The defendant’s counterclaim is hereby dismissed.
I hereby decree that the defendant should forthwith vacate the said portion of land granted to the defendant by plaintiff and which the defendant appropriated at the time the plaintiff moved to Nakpunduri town.
The plaintiff should recover the said farm land.
I hereby decree perpetual injunction against the defendant whether himself or his servants, agents, workmen assigns or any other person from entering, farming or being on the said land for whatever purpose. ”Being dissatisfied with this judgment, the Defendant/Appellant appealed on the grounds set out in the Notice of Appeal filed on 30/11/12 thus: “(a). That the judge erred when he held that there was no valid customary arbitration.
b). That the judgment is against the evidence on record.
c). Further grounds of appeal to be filed on receipt of the record of proceedings”. On 16th June 2014, additional grounds of appeal were filed as follows: “(a) That the defendant was not given adequate opportunity to present his case and this occasioned a substantial miscarriage of justice.
b) That with the death of the second person who had, on his part, substituted the original plaintiff, it was wrong for the Court to have proceeded to hear the case without substitution as there was in essence at that stage no plaintiff in the case.
c) That the plaintiff failed to prove with certainty the boundaries of the land to which he laid claim with the result that the learned trial judge erred to have decreed title in favour of the plaintiff”. The genesis of this case is that the Plaintiff/Respondent (hereinafter to be referred to simply as the “Respondent”) issued a writ of summons against the Defendant/Appellant (also to be referred to simply as the “Appellant”), claiming: “a. Declaration of title to a piece or parcel of farm land situated and being at the western side of the outskirts of Nakp