Andema v Amogre and Another (Civil Appeal No. H1/7/2025) [2025] GHACA 15 (7 May 2025)

IN THE SUPERIOR COURT OF JUSTICE IN THE COURT OF APPEAL TAMALE – GHANA AD - 2025

Coram

MENSAH-DATSA (MRS.), JA (PRESIDING) BAAH JA KWAMINA BAIDEN, JA CIVIL APPEAL NO. H1/7/2025 DATED: 7TH MAY, 2025

EMMANUEL ANDEMA PLAINTIFF/RESPONDENT V

1. AKURIBIRE AMOGRE DEFENDANTS/APPELLANTS

2. ANIPOKA AMOGRE AND

1. ABOKUTUM ABONGO DEFENDANTS TO COUNTERCLAIM/RESPTS.

2. THE ROMAN CATHOLIC CHURCH

3. THE GHANA EDUCATION SERVICE

Judgment

KWAMINA BAIDEN, JA The parties to this appeal will retain their designation in the trial Court. original parties to this suit Emmanuel Andema, Plaintiff and Akuribire Amogre and Anipoka

Amogre, Defendants hailed from Kandiga. For the Plaintiff, the land in dispute was acquired by his ancestors in a place they call Akurugu -Daboo. Defendants however, claimed the land in dispute belonged to their ancestors acquired through first settlement a nd was situated in a place called Akongugu which formed part of Kandidga lands. It was the case of the Plaintiff that the Defendants had trespassed unto this family land of theirs. They successfully drove off the 1st Defendant from the land on two occasions when he tried to give the land to some persons. However, 1 st Defendant brought the 2nd Defendant unto the land and they have refused to leave the land despite efforts of the Plaintiff to get them to vacate same. The Plaintiff therefore institute d this action against the Defendants. Plaintiff claimed the following reliefs against the Defendants: a. A declaration of title to all that piece or parcel of land lying North of Akurugu- Daboo Catholic Church at Kandiga Junction measuring about Six (6) acres, bounded to the North by Agangmikre Amole's house, and bounded to the East by Amogre's farmland and to the South by Akantuse Atiba's farmland and by Asuriya's farmland to the West. b. A declaration that 1st and 2nd Defendants have trespassed unto Plaintiff's family land above described. c. An order for 2 nd Defendant to remove her building on Plaintiff's land above described d. Recovery of possession of all that piece or parcel of land above described. e. Perpetual injunction restraining Defendants, their agents, privies assigns and all those claiming through them from interfering with the Plaintiffs ownership possession and control of the land in the dispute. f. Damages g. Costs

SUMMARY OF PLAINTIFF’S CASE: Plaintiff’s case is that about seventy years ago his grandfather Ataaya Akabe a native of Kandiga, a different village from Doba, acquired the land in dispute from Afanya Apungu, the then Tindana of Doba through a customary grant after all the necessary customary requirements were fulfilled. This parcel of land which is the land in dispute comprises all that piece and parcel of land lying in Akunkongo, Doba North of Akurugu Daboo Catholic Church at Kandiga Junction measuring about six (6) acres. It is bounded to the North by Agangmikre Amole's house, and bounded to the E ast by Amogre's farmland and to the South by Akantuse Atiiba's farmland and by Asuriya's farmland to the West. Plaintiff’s late father Peter Andema later inherited the land from his (Plaintiff’s) grandfather Ataaya Akabe. The father worked on the said parcel of land which forms part of the disputed land for many years whilst they were staying at Kandiga. Later in 1957 his father migrated from Kandiga to settle at Akunkongo on part of his parcel of land near the disputed land. Plaintiff states that 1st Defendant's grandfather Amogre Akagili was made a Caretaker of Doba lands at Akunkongo on behalf of the Tindana of Doba. After Amogre Akagili his first son Akulga Amogre became the Caretaker of Doba lands at Akunkongo and both Amogre Akagili and his first son Akulga Amogre lived and co -operated peacefully with Plaintiff's family. Plaintiff further states that after Akulga Amogre's death Akuribire Amogre, 1st Defendant succeeded Akulga Amogre as Caretaker of Doba lands at Akunkongo for and on behalf of Tindana of Doba. However, according to Plaintiff, about five (5) years ago, Akuribire Amogre the 1 st Defendant brought someone to settle on Plaintiff's family land at Akunkongo and was resisted by Plaintiff and his brothers Vincent (deceased) and Roland as well as the Tindana of Doba, Abotokum Apungu.

Plaintiff says that 1 st Defendant after that brought again another woman to settle on Plaintiff's land at Akunkongo but was again sent off by Plaintiff and the Tindana of Doba. For the third time however, Akuribire Amogre, 1st Defendant went and brought 2nd Defendant to trespass on Plaintiff's family land and to settle on Plaintiff's legally acquired land from the Tindana of Doba at Akunkongo and they have since defied all demands by Plaintiff and the Tindana of Doba to halt the said trespass. 1 st Defendant continued to encourage 2nd Defendant to construct her building on the land. Plaintiff states that 1 st Defendant's father, Amogre Akagili migrated from his village known as Kandiga to Doba where the disputed land is situated and approached the then Tindana of Doba for land to settle on and same was granted to him. Because of the long distance of the said land in dispute at Akunkongo - Doba from Tindana of Doba's house, the then Tindana of Doba called A -uka made 1 st Defendant/Counterclaimant's father a caretaker of the Tindana of Doba's lands at Akunkongo-Doba. Both Plaintiff and 1st Defendant and their families are stranger-settlers on Doba lands at Akunkongo which belongs to Doba Tindana and that the land in dispute does not form part of the piece of land given to 1st Defendant/Counterclaimant's father, Amogre Akagili but rather that the land was that portion of land which was validly alienated through a customary grant to his grandfather Ataaya Akabe. The school and Catholic Church were not built on 1 st Defendant family land and the same were never built on the said lands with the permission of 1st Defendant's family. The land upon which the Catholic church was built belongs to the Asuriya family and the said Asuriya family itself is on Doba lands under the Tindana of Doba, Abomotum Apungu as the allodial tittle holder. Plaintiff, James Akasuma and Sylvester Amikiya together approached the Asuriya family through one Abibi of the Asuriya family for the piece of land to build the Catholic Church. After they met with the Asuriya family, Plaintiff, Sylvester Amikiya and Jam es Akasuma further went to the allodial tittle holder of the lands in that area of Doba, Tindana Abokootum Apungu, to further

request for the piece of land to build the Catholic Church following which they presented customary items; a ram, a cook, a ball of tobacco and a hoe to Abokotum Apungu who performed the necessary rites before the church was built. Plaintiff states that the local Akurugu - Daboo Basic School was built about fifty (50) to fifty - five (55) years ago on land allocated to the school authorities directly by Tindana A-uka as no family was granted that land and it was not cultivated. The said school was not built on the family land of 1st Defendant. The local basic school and the Catholic Church were named Akurugu - Daboo as that is the name of the area they were located. T he name Akurugu - Daboo has been in existence since time immemorial and there was no protestation against the name of the school and the church when they were built. Defendants started protesting against same before this Honourable Court. Plaintiff's father owned the land in dispute by virtue of inheritance from Plaintiff's grandfather whom Plaintiff admits does not hail from Doba i.e. the village in which the disputed land is situated but that Plaintiffs grandfather as above stated migrate d from Kandiga just as 1 st Defendant's father Amogre Akagili equally migrated from Kandiga to settle in Akunkongo - Doba. Plaintiff’s father owned the land in dispute because Plaintiff’s grandfather Ataaya Akabe customarily acquired same from the Tindana of Doba about seventy - five (75) and more years ago.

SUMMARY OF DEFENDANTS/COUNTERCLAIMANTS’ CASE: It is the case of Defendants/Counterclaimants that their family is the absolute and beneficial owner of all that piece and parcel of land lying and being at Akunkongo in the Kassena - Nankana District bounded to the East by a farmland of Asigmoor to the

South by Akuntuse's farmland to the West by Kandiga main road of an approximate size of not less than 5 acres in the first instance and 15 acres in the second instance. Their ancestors acquired the land between Atangdire river and Anayere river and with Akunkongo shrine near Kandiga Junction at the centre and stretching Northwards to Azaasi inclusive and Southwards to Passinga (confluence of the two rivers). They further state that their ancestors' land was acquired by discovery, driving wild animals away and settlement and included major shrines that became names of places known today as Azaasi, Afuga, Atosale, Abagzola, Akunkongo, Abempingo and Atababa. The 1st Defendant/Counterclaimant states that his ancestor one Akuntebe and his (Akuntebe's) nephew known as Atiiba discovered Akunkongo and its surrounding lands which includes the lands the subject matter of this suit and he and his relations have since occupied same by farming and building residence s on same for over 100 years to the knowledge and notice of all, including Plaintiff and his family without any form of challenge. The 1st Defendant/Counterclaimant categorically asserts that his blood ancestor, namely the said Akuntebe brought forth Agengo, who brought forth Anaba, who brought forth Akagile, who brought forth Amogre, who brought forth Akuribire Amogre. Their family practices the traditional patrilineal system of inheritance which pertains and is observed in the area. Defendants’ family lands have always been clearly identified and they have exercised various acts of possession and ownership including but not limited to farming, pasturing, hunting, building and settlements on part and permitting others to do same. There have been various acts of unlawful interference with their person and their land by the Plaintiff aided by the Tindana including acts of harassment using the criminal process.

The 1st Defendant to Counterclaim is only a caretaker of shrines or gods and a spiritual head of the Doba community across the Anayere river and has no jurisdiction in and over the lands the subject of this dispute, but is only aiding and being influenced by Plaintiff, then a DCE, to use his political and traditional might to unlawfully take Defendants' lands. Amogre and Akagile, who are direct predecessors of the 1 st Defendant, and 1 st Defendant himself have all been Tindanas over the land the subject matter of this suit for over 50 years without any challenge, including supervision of sacrifices and customary rites by assistants under them at any particular time. Plaintiff's action is ill-conceived, baseless, unmeritorious and it ought to be dismissed with punitive costs since the said land claimed by the Plaintiff is part of the larger land owned by the Defendants' family.

SUMMARY OF CASE OF 1ST DEFENDANT TO COUNTERCLAIM: The case of 1st Defendant to Counterclaim is that 1st Defendant/Counterclaimant is not a native of Doba where the disputed land is situated but that 1 st Defendant/Counterclaimant is a native of a different village known as Kandiga. His father, Amogre Akagili, migrated from his said village known as Kandiga to Doba where the disputed land is situated and approached the then Tindana of Doba called A-uka for land to settle on and it was granted to him. As a result of the long distance of the land in dispute at Akunkongo - Doba from Tindana of Doba's house, the then Tindana of Doba, A-uka, upon a request from 1 st Defendant/Counterclaimant's father gave him a piece of land to settle on and the Tindana of Doba made him a caretaker of the Tindana of Doba’s land at Akunkongo- Doba.

The local Kurugu Dabo basic school and Catholic Church were not built on 1 st Defendant/ counterclaimants family land and the structure were never built at their present location with the permission of 1 st Defendant/Counterclaimants family. T he land upon which the Catholic Church is built belongs to the Asuriya family and that the said Asuriya family itself was settled by the Tindana of Doba called Afanya Apungu on Doba lands. Plaintiff, James Akasuma and Sylvester Amikiya together approached the Asuriya family through one Abibi of the Asuriya family for the piece of land to build the Catholic Church. After meeting with the Asuriya family, Plaintiff, James Akasuma and Sylvester Amikiya further came to Tindana Abokootum Akasuma Apungu as the allodial title holder of lands in that area of Doba, and further requested for the piece of land to build a Catholic Church following which they presented a ram, a cock, a ball of tobacco and a hoe to him as required by custom and he performed the necessary rites before the said church was built. The local Akurugu - Daboo Basic School was built about fifty (50) to fifty-five (55) years ago on land allocated to the school authorities directly by Tindana A-uka as no family was granted that land and it was not cultivated. The school was therefore not built on the family land of 1 st Defendant/Counterclaimant. The local basic school and the Catholic Church were named Akurugu - Daboo as that is the name of the area they were located. That name has been in existence since time immemorial and same has been noted by Captain L.J. Mothersil l, District Commissioner of the Gold Coast in a report dated 14th and 15th July, 1939. The 1st Defendants to C ounterclaim denies that 1 st Defendant/Ccounterclaimant protested against the use of the name Akurugu - Daboo associated with the basic school and church and stated that 1 st Defendant/Counterclaimant started doing same in the Honourable Court.

About seventy- five (75) or more years ago Plaintiff ’s grandfather, Ataaya Akabe a native of Kandiga, a different village from Doba, acquired the land in dispute from Afanya Apungu, the then Tindana of Doba and predecessor of 1 st Defendant to Counterclaim through a customary grant after all the necessary requirements were fulfilled. Both Plaintiff and 1 st Defendant/Counterclaimant and their families are stranger settlers on Doba lands at Akunkongo which belongs to Doba Tindana and that the land in dispute does not form part of the piece of land given to 1 st Defendant/Counterclaimant's father, Amogre Akagili, but rather that the land was that portion of land which was validly alienated through a customary grant to Plaintiff's grandfather Ataaya Akabe. The 1st Defendant to Counterclaim states that 1 st Defendant/Counterclaimant's ancestors were caretakers of Doba lands at Akunkongo, and that 1 st Defendant/Counterclaimant himself was still a caretaker of Doba lands at Akunkongo until lately when he started denying, Tindana of Doba, his grantor's title to the lands situated at Doba. The true boundaries of the land granted to 1st Defendant/Counterclaimant’s father by the then Tindana of Doba to settle on as a caretaker of Doba lands is bounded by Akaabe Ayangba and Peter Andemas houses to the North and to the East by Abiya Akurigo and Aguma Akoligo’s houses and to the west by Apowum Nsohs farmland and to the south by a stream called Adendee-Boka. The 1st Defendant to Counterclaim says that the 1 st Defendant/Counterclaimant’s father was also granted a small parcel of land by Tindana A-uka which lies east to the Plaintiff’s family land. The said land does not extend to Plaintiff’s father’s land. The 1st Defendant’s father and brother had always respected the boundary. It is bounded on the west by Andema and Ayenvales families land, East by Ayim Aguure, North by Asigmoo and south by Atugma.

As the allodial owner of the lands, 1 st Defendant to Counterclaim says that Plaintiff asked him to settle issues between him and 1 st Defendant/Counterclaimant when the latter caused the 2nd Defendant to trespass on Plaintiff's family land. The land at Akunkongo - Doba described by 1 st Defendant/Counterclaimant in Paragraph 23 of his Amended Statement of Defence and Counterclaim is not 1 st Defendant/Counterclaimant's family land but that the said land falls within the land allocated to Plaintiff's grandfather by Tindana Afanya Apungu. The 1st Defendant to Counterclaim says that the lands lying between Atankire river and Anayere river including places named after shrines called Afuga, Atosale, Abangzola and Akunkongo are situated at Doba and are owned by him as same has been passed on to him by his ancestors who have been Tindanas of the land. Lands at the various places including Azaasi lands fall under Doba and same has been noted by Captain L.J. Mothersill, District Commissioner of the Gold Coast in a report dated 14th and 15th July 1939 . Again, a judgement had been given by the Kassena - Nankanni Federation court in the case of Akiregea vrs Awolle before Mr. E.O RAKE, Assistant Chief commissioner sitting at Navrongo on the 19th day of March, 1936 in which Agassi has been declared as Doba lands but not Kandiga lands. The lands at Passinga, the confluence of two rivers and Abempingo and Atababa belong to Tindana Atawam Ayawine lands over the years The 1st Defendant/Counterclaimant's ancestors who hail from Kandiga could not have come to Doba to found land by discovery and settlement as the said land already belongs to a known village and under a known allodial owner, the Tindana of Doba. The 1st Defendant/Counterclaimant's ancestor and relations had always farmed on lands allocated to them by the Tindana of Doba and had acknowledged the ownership of Tindana of Doba over the lands until recently that 1 st Defendant/Counterclaimant started denying the title of the Tindana of Doba.