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JUDGMENT
ABBAN J.A.
This is an appeal from the
judgment of the Circuit Court,
Kumasi presided over by her
Honour Miss Mariama Owusu, dated
26th July, 1996.
The Appellant who was the
Defendant at the Court below is
alleged to have trespassed onto
the respondents farm land, and
persistently denied the
respondent her right of
possession to the said land. As
a result of the said trespass,
the respondent was compelled to
take out a writ of summons
claiming damages for trespass to
respondent’s farm situate at
Atwe-Nkwanta on Nyinahin Stool
land and perpetual injunction
restraining the Appellant and/or
his agents from interfering with
respondent's ownership and
possession of the said farm.
In her statement of claim, the
Respondent who claims to be a
native of Nyinahin and a
subject of the Nyinahin stool,
averred that sometime in 1968
she acquired a piece of farm
land from Nyinahin stool land
and cultivated cocoa on it. The
land thus acquired was bounded
by the farms of Kwasi Gyansah
(a.k.a. J.J.Peprah) Yaw Konto,
Kwame Boakye and a forest
reserve at a place called Atwee
Nkwanta.
Twenty years later, two men (Yaw
Twumasi and Osei Kwame)
trespassed onto the said land
and asserted adverse title to
it. The Respondent herein took
action against them in the
Kumasi Circuit Court for a
declaration of title, recovery
of possession and perpetual
injunction in a suit entitled.
"Madam Yaa Asonko vrs: Yaw
Twumasi and Osei Kwame in suit
No. LC 229/87. The defendants to
the said suit entered appearance
but failed to file their
statement of defence and so on
the 16th November, 1988,
judgment was given in favour of
the Respondent.
Sometime in 23/8/90 she applied
for a writ of possession and she
was accordingly put into
possession by the Registrar of
the Circuit Court Kumasi and the
two men subsequently left the
farm.
The appellant herein who did not
join the previous suit and was
in no way a party to the said
suit later trespassed onto the
same farm land and persistently
denied the respondent herein her
right to possession of the farm
in dispute.
The appellant's behaviour is
therefore an affront to the
processes of the honourable
Circuit Court and his illegal
assumption of possession of the
farm constituted a trespass.
Though the Appellant was never a
party to suit No. LC 29/87, his
representatives Kofi Teng and
Kwarteng who were found working
on the land at that time were
served with the writ of
possession and this constituted
a notice to the appellant herein
of the existence of the
litigation between respondent
and Twumasi and Osei Kwame, but
appellant never reacted to the
service of the process on his
agents or representatives."
The respondent took the present
action against the appellant
herein for Damages for trespass
and perpetual injunction on 19th
November 1991 at the Circuit
Court, Kumasi in suit No.
LC.90/91. Strangely enough the
appellant never counter-claimed.
On 26th July, 1996, the Circuit
Court, Kumasi presided over by
her honour, Miss Mariama Owusu,
Circuit Judge gave judgment for
the respondent, and it is
against this judgment that the
appellant has appealed.
There are three (3) grounds of
appeal namely (1) The learned
trial judge's decision was
against the weight of evidence.
(2) The learned trial Judge
contradicted herself when she
held the Respondent's Exhibit
"A" to be the same as the land
described in the plan" Exhibit
1"
(3) The learned trial judge
failed to properly evaluate"
Exhibit 2" the judgment from the
stool Lands Boundary settlement
commission or at all.
The appellant argued the ground
2 first. In his submissions,
counsel for the appellant states
that in her endorsement on the
writ of summons, the respondent
claimed damages for trespass to
her "farm situate at
Atwe-Nkwanta on Nyinahin stool
land". The same description was
given in paragraph "3 & 4 (a) of
the affidavit of Moses Yaw
Asare-Bediako of Okomfor-Anokye
chambers Kumasi at page. 8 of
the Record of Appeal and
paragraph 9 of the Notice of
Amendment at page 9 of the
Record of Appeal and in addition
she mentioned the names of the
people she shared boundary with.
Throughout her evidence she
maintained that her land was on
Nyinahin stool land. In fact
even in" Exhibit 'A' i.e. LC
29/87 she maintained the same
description of her farm land and
mentioned the names of the same
boundary owners.
The Appellant on the other hand
in his amended statement of
Defence described his land as
being at Kwadwo Mensah Krom on
Nkawia stool land bounded on all
sides by Asenaso Forest Reserve,
J.J. Peperah's cocoa farm,
Akwasi Boahenes Cocoa farm, Yaw
Konto his cocoa farm, James
Manu's cocoa farm, Osei Kwame's
cocoa farm and an undeveloped
land covering an area of about
26.28 acres belonging to the
Nkawiehene. Appellant also
tendered his plan of the land
"Exhibit 1".
It is the opinion of the court
of appeal that the Appellant's
appeal has merit and therefore
must be upheld for the following
reasons.
(i) where a defendant is in
possession of land, a plaintiff
who sues in trespass must prove
that he has a better title than
that of the defendant.
See the case of Mensah vs:
Ahodjo (1961) 1 GLR 297 holding
(2).
The evidence on record shows
that both the Appellant and the
Respondent are farming on Nkawie
Stool land though the Respondent
is under the mistaken impression
that she is on Nyinahin stool
land. Her own witness (P.W.1
J.J. Peperah) also known as
Kwasi Gyansah under
cross-examination testified that
the Respondent's land is on
Nkawie stool land.
In his testimony the PW1 said he
lived at Nyinahin and that he
was a farmer. He went on to
state that his farm is at
Atwinenkwanta and that he and
the respondent plus one Yaw
Kontoh went to acquire the land
in 1968.
In fact his land is to the left
side of the respondent's land.
In cross-examination he
testified that he is a native of
Nyinahin as well as the
Respondent whilst the appellant
is from Nkawie Kuma. He admitted
under cross examination that he
knows there was a dispute
between Nkawie and Nyinahin
which said dispute had been
settled. At the end of the said
dispute his land and that of the
respondent became Nkawie stool
land after Judgment was
delivered. He admitted also that
it was Nkawiehene who gave him
his land.
Even though the respondent
claimed that she acquired the
land from Nyinahinhene in 1968,
Exhibit 2 shows that in 1974 by
letter No. LMR. 29/33/7 dated
10th December, 1974, the
Ministry of Lands and Mineral
Resources had referred a
boundary dispute between Nkawie
and Nyinahin to the stool lands
Boundaries settlement Commission
for settlement.
The Commission at the end of the
day refused to disturb a
decision of His honour Sir
Francis Charles Suller Esq.,
(deceased) the Chief
Commissioner of Ashanti
describing the boundary marks
for Nkawie and Nyinahin in 1913
which said decision was tested
in the High Court, then at the
Court of appeal and the action
terminated in favour of Nkawie.
Nyinahin then appealed to the
Privy Council in England, but
the said appeal abated when the
Government of Ghana abolished
appeals from Ghana Court of
Appeal to the Privy Council.
Reading through Exhibit 2 we are
inclined to the view that the
judgment of the Court of Appeal
in the Consolidated cases Civil
Appeal No, 85/58 is still
binding on the parties since no
further action has been taken
after 1958.
The learned trial Judge should
have adverted her mind to this
fact before concluding that
though the land is Nkawie stool
land, people from Nyinahin can
still farm on Nkawie stool land.
We agree with learned counsel
for the appellant that if the
learned trial judge had done a
proper evaluation of Exhibit 2,
she would have realised that
long before the grant of the
land in dispute to the
respondent by Nyinahin stool,
the boundaries had already been
decided upon and that the land
in dispute fell within Nkawie
stool land and that by virtue of
this fact the Nyninahin stool
did not have any title or
interest in the disputed land to
grant it to the respondent in
1968. Thus the judgment in
Exhibit A was wrong and she
should not have been influenced
by it to give judgment in favour
of Respondent.
We disagree with learned trial
judge on the decision that the
fact that she had already made a
finding that the land in dispute
is on Nkawie stool land did not
affect the plaintiff's position.
In what capacity was the
respondent suing the Appellant?
Was she in lawful possession of
the land ?
Did she have any rights as a
Nyinahin subject to farm on
Nkawie stool land without
attorning tenancy to Nkawie
stool? Could judgment no. LC
29/87 between Respondent and
Osei Kwame and Twumasi operate
as estoppel per rem judicatam?.
All these questions were not
answered by the learned trial
Judge.
In the case of Cobblah vs:
Okraku it was held inter alia
that a plea of estoppel per rem
judicatam cannot be sustained
where the land the
subject-matter of a current suit
is not identical with the
subject-matter of a present
suit, and especially where the
plaintiff is not claiming as a
subject of the grantor and there
is no contention by the
plaintiff that the stool which
granted land to him is a
substool to the stool grantor.
The second holding of Cobblah
vs: Okraku supra states that
"although the judgment in
Cobblah vs: Gariba and Modua
Abrahams dated 25th February
1955, affected a larger area of
which the land in the present
dispute forms part, it is
nevertheless in admissible
against the Defendant herein to
establish estoppel per rem
judicatam because there is not
sufficient evidence that the
Defendant knew of that suit nor
that the subject-matter of that
suit included the land in the
present suit. The said judgment
is however admissible as
evidence of plaintiff’s
possession and of active steps
taken by him on previous
occasions to resist attempts to
violate his possession.
I find it equally strange that
though the Appellant tendered
Exhibit 1, a plan of his land as
granted him by Nkawie stool, the
learned trial judge failed to
order a survey plan of the land
in dispute to be made to enable
her identify the land in
dispute, but went on to adjudged
the issues based solely on the
oral evidence of the
respondent..
In the case of Kobina Ababio II
etc vs: Priest-in-charge,
Catholic Mission, Ampenyi and
ors. (1935) WACA 380 where it
was contended that similar
judgements tendered were
inadmissible as the defendant
was not a party to the suits in
which those judgments were
given, it was held that the
previous judgments were
admissible to show acts of
possession as distinct from
establishing estoppel or res
judicata.
Now, although this action is in
trespass, yet by his defence,
the appellant put the respondent
to strict proof of her title.
Therefore to succeed, the
respondent had to prove that at
the date of the appellant’s
entry upon the land, she the
respondent, either was in
possession of the said land as
the person having title to it,
or if not in actual physical or
constructive possession thereof,
that as between her and the
appellant she is the person in
whom was vested the right to
immediate possession. It is upon
this principle that the case was
to have been considered by the
trial court, bearing in mind
that it is upon the plaintiff
that the onus lies to establish
those facts.
Again in deciding this case, the
Court has to bear in mind the
principle established in the
case of Mantse Anege Akwei vs:
Mantse Kojo Ababio (1918) F.C.
February 1919, 64, that as
between stools, the stool whose
subjects are shown to be in
occupation of a particular piece
of land is, in law, the owner of
that particular land.
For the appellant herein,
evidence was led supported by
D.W.1 (the caretaker of
Nkawiehene) that he (appellant)
got a grant of the land in
dispute in 1986 and he went into
effective occupation in 1990.
From the record before us, we
find as a fact that as at 1990
when the appellant went on to
the land in dispute, the
respondent was not in effective
occupation, and has never been
in effective occupation
following the decision in the
Mantse Anege Akwei case Nkawie
stool having been adjudged the
rightful owner of the land in
dispute which said judgment of
the court of appeal has not been
upturned see Civil Appeal No.
82/58 referred to in Exh. 2 at
page 50 of the record of appeal,
Appellant being a subject of
Nkawie stool and also having
been put in possession by the
said stool has a better title to
the disputed land then the
respondent who all these years
seems to have been on the land
as a trespasser. On the totality
of the evidence, the Respondent
failed to show that Nyinahin
stool, her grantor, had a better
title to the land than Nkawie
stool, the Appellant's grantor.
The respondent therefore failed
to discharge the primary burden
on her, and her action therefore
fails.
This appeal succeeds and the
judgment of the court below is
set aside along with the
consequential orders made
thereunder.
The appellant is awarded costs
in the sum of ¢2.5 million Cedis
as against the Respondent.
(SGD.)
HENRIETTA ABBAN (MRS.)
JUSTICE OF APPEAL.
LARTEY J.A.
I agree.
F.M. LARTEY
JUSTICE OF APPEAL
ASARE KORANG J.A.
I also agree.
A. ASARE-KORANGE
JUSTICE OF APPEAL
COUNSEL
M.Y. ASARE BEDIAKO FOR
RESPONDENT
A.A. SOMOA ASAMOAH FOR
APPELLANT.
EAS.
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