NANA OTSIWAA v. J.K. YANNEY
2012
COURT OF APPEAL
GHANA
CORAM
- MARFUL-SAU, JA (PRESIDING)
- HONYENUGA, JA
- DENNIS ADJEI, JA
Areas of Law
- Property and Real Estate Law
- Evidence Law
- Civil Procedure
2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Ghana Court of Appeal, per Marful‑Sau, JA (with Honyenuga, JA and Dennis Adjei, JA concurring), dismissed an appeal from the Circuit Court, Cape Coast, in a land ownership dispute over 'Odenteh Bosom' at Enyan Ebaasa. The respondent family, led by its head, traced acquisition to predecessor Kwesi Andoh and maintained continuous possession. The appellant asserted the land formed part of a larger tract acquired by ancestor Nana Otsiwa and alleged permissive use for a mosque and cemetery. A court‑appointed surveyor, David Anthony Bennin, produced composite plan Exhibit C1 and testified that Obar trees, used to mark boundaries, encircated the respondent’s land; the trees were planted by the appellant’s predecessors. The appellant offered no explanation for the demarcation and failed to produce a claimed document concerning a grant to Maame Adjoa. Applying the preponderance of probabilities and the possession‑as‑title doctrine (Asher v. Whitlock; Aidoo v. Adjei), the court upheld the trial judgment and dismissed the appellant’s counter‑claim and the appeal.
MARFUL-SAU, JA: -
This is an appeal against the judgment of the Circuit Court, Cape Coast. The judgment which is dated the 31st January, 2008 was written by the late Justice Tom Bentil but read by His Honour Richard Asiedu –Badu. Hearing of this case commenced before the late A.A. Okofo- Darteh, then Circuit Judge at Cape Coast. The dispute in this case relate to the ownership of a parcel of land commonly described as’’ Odenteh Bosom’’ situate at Enyan Ebaasa.
The plaintiff/respondent who will be called the respondent in this appeal claimed that the land was acquired by his predecessor Kwesi Andoh who first cultivated the land as a virgin forest. The respondent who sued as the head of his family pleaded and testified that his family has been in possession of this land since the acquisition by Kwesi Andoh. The defendant/appellant herein to be called the appellant denied the claim by the respondent and counter-claimed for a declaration that the said land belonged to his family.
The appellant claimed that the land in dispute formed part of a larger land originally acquired by his ancestor Nana Otsiwa and the family has exercised ownership rights since then. Appellant’s claim further was that the predecessor of the respondent, Kwesi Andoh who was a Muslim requested and was granted the right to build a mosque and to use portion of the land for a Muslim cemetery, by Nana Otsiwa III, who himself was a Muslim. According to the appellant as a result of this grant to Kwesi Andoh, the Muslim Mission cultivated oranges and coconuts on the land. From the record, though the appellant claimed his predecessor allowed Kwesi Andoh to possess and use portions of the land for cemetery and mosque, evidence was not led as to the nature of the grant. Was it a gift, lease or a mere licence? The record does not provide an answer to this important issue.
The trial Judge in its judgment which is at page 93 to 97 of the record of appeal delivered at page 97 as follows:-
‘’Both the plaintiff and defendant called witnesses and they all sounded credible. I am therefore going to rely on the plan to determine this case. And the question is why did the defendant planted Obar trees around his land and demarcated same from the land in dispute by planting Obar trees to demarcate the land being claimed by the plaintiff. No explanation was offered for this act.’’
The judgment of the trial court was thus grounded on the above finding by the court. The appellant is seeking to set aside the