NYAME v. YEBOAH

JUDGMENT OF KORSAH C.J.

Korsah C.J. he delivered the judgment of the court. The plaintiff instituted this action in the Kwahu Local Court Grade "A", Nkwatia, claiming a declaration of title to, and ownership of, a cocoa farm and £G75 damages for trespass. The plaintiff's case may be briefly summarised thus: the plaintiff's brother Kwasi Kissi, deceased, had cleared a forest and made cocoa and food crop farms in the area when a larger area including the area of Kwasi Kissi's cultivation was declared a forest reserve under the Forests Ordinance1 whereby owners of farms and other cultivations within the area so declared were prohibited from entering and continuing their cultivations. Some time after this forest reserve was declared Kwasi Kissi died and the plaintiff became his successor.

In the meantime the Forestry [p.283] Department released Kwasi Kissi's area including the adjacent forest from the reserve thereby enabling the farmers in that area to continue their respective cultivations. It was later discovered that the defendant had cleared and made a new cultivation on part of Kwasi Kissi's area. Thereupon the plaintiff protested and the Odikro of the place with the assistance of his elders investigated and found that the defendant had trespassed on Kwasi Kissi's farmstead and ordered that the defendant should pacify the plaintiff with the sum of £G16. The defendant having paid the amount to the plaintiff, the Odikro volunteered to apportion the land for the plaintiff and the defendant. The attempt, however, failed because the plaintiff complained that the Odikro had indicated his intention of allocating a portion of the area towards which the plaintiff was entitled by custom to extend her cultivation. In the result, the plaintiff brought this action against the defendant.

At the trial it became apparent that the issues involved were as follows:

1. Where is the site of the original cultivation of Kwasi Kissi?

2. Whether it was situated by the old foot-path or by the new foot-path from Aworoso-Oworobong.

3. How far was the distance between the old and the new foot-paths. The plaintiff claimed that the late Kwasi Kissi's plantation was made in an area through which the new Aworoso-Oworobong foot-path passed. The defendant, on the other hand, contended that the area in dispute was by the old Aworoso-Oworobong foot-path. After hearing evidence the trial court inspected the area and issued a report stating, inter alia:

"... this court having care