Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 KWESI YAW v. KWAW ATTA | GhanaLegal - Resources for the legal brains

KWESI YAW v. KWAW ATTA


  • New
  • 1961-07-31
  • HIGH COURT
  • GLR 513-523
  • Print

ADUMUA-BOSSMAN, J.


Summary

Evidence?-Proving title to land by traditional evidence?-Testing traditional evidence.Estoppel?-Judgment admitted in evidence but not specifically pleaded as estoppel per rem judicatam.Practice?-Person entitled at customary law to sue for declaration of title even though he has not been disturbed in his occupation thereof.

Headnotes

The plaintiff as head of the Adwenadzi family of Edukrome sued in the Abura Native Court 'B' for a declaration of title to the Edukrome lands, basing his claim on the allegations that those lands were his family stool lands and that his family had occupied them from time immemorial. The suit was transferred to the Land Court for hearing. The defendant denied the plaintiff's title and claimed on the contrary that plaintiff was his, defendant's, caretaker. It seems that the plaintiff herein had on an earlier occasion fought and lost an action instituted at the instance of one Kwamin Guare in the Asebu Native Court 'B' for declaration of title to some portions of the area in dispute. The defendant herein gave evidence for the said Guare and claimed the land as his own, Guare won the case. The Guare judgment was not pleaded by the defendant, but he tendered it in evidence.

Judgement

ACTION for declaration of title to Edukrome lands.

By the writ of summons which was issued in the Native Court "B" of Abura but transferred to be dealt with in the Land Court, Cape Coast, the plaintiff claimed declaration of title to an area of land designated Edukromelands described by boundaries in the said writ, and also an order of injunction to restrain the defendant, his agents, servants, and workmen, from trespassing on the said land.

By the statement of claim filed in support of the said writ, it was alleged that the said area of land was attached to the plaintiff's family stool located at Edukrome (or Adukrome) in the Abura state, and that from time immemorial the plaintiff's family and other inhabitants of Edukrome have been in occupation and possession of the said land, and the family have granted permission to some strangers also who have occupied and are working on portions of the said land; that the defendant when giving evidence in a case between one Kwamin Guare as plaintiff and the plaintiff in this action as defendant in the Asebu Native Court "B" at Moree, asserted title to the said land, wherefore the plaintiff has been obliged to sue for declaration of his family's title to the land.

The statement of defence filed on behalf of the defendant denied the plaintiff's family stool's alleged ownership of the land in dispute and proceeded to set up the case that:

?"Plaintiff is a mere caretaker of the land. Plaintiff's occupation of the land has always been at the will of the defendant; and defendant will at the hearing adduce evidence in support of his claim to ownership of the land."

The statement of claim and defence therefore disclose a straightforward and clear-cut issue between the parties as to which of them has the ownership of the land in dispute. In respect of that issue, it seems unnecessary to remind ourselves of the legal position that the plaintiff having sought the declaration, assumes the onus of satisfying the court: "that he is entitled on the evidence brought by him to a declaration of title." (See per Webber, C.J. in Kodilinye v. Odu1). Before turning however to consider how far the evidence adduced by and on behalf of the plaintiff succeeds or fails to discharge that onus, which is the main matter for consideration in this, as indeed in every other action for declaration of title, let us turn to make a cursory examination of the plans prepared for the trial of the case.

In this matter of a plan, the initial order of the court appointed Mr. Ekow Selby, licensed surveyor of Cape Coast, to undertake the survey and preparation of a plan of the land in dispute for the trial of [p.515] the action. It appears however that when Mr. Selby went to do the work, although he notified the defendant to attend, the latter would not and did not attend, with the result that Mr. Selby made a plan by the directions of the plaintiff and his people only. That plan was admitted as exhibit A, in respect of which the following material evidence was elicited from Mr. Selby:

?"Q. You supplied a copy to the defendant?

A. Yes.

Q. You have indicated everything which the plaintiff pointed out to you?

A. Yes.

Q. You have compared the plan prepared on behalf of the defendant . . . . . with that of the plaintiff; do they agree in every respect?

A. Almost, except in two places. On the east (in exhibit A) where the plaintiff called Abusantsin Pow the defendant does not claim that. Another small plot (projection) marked in exhibit Z with J. M. Sarbah's land below it, is also not claimed by the defendant.

Q. On the plaintiff 's plan exhibit A you have shown many sites?

A. Yes. There were 79 farms of the plaintiff's people, i.e. Edukrome people; and eleven of tenants, i.e. people from Nkanfoa and other neighbouring villages who had got permission from him. I have shown all of them in the plan, i.e. the sites of the farms and names of the farmers.

Per Curiam:

Q. This is not a cocoa growing area, is it?

A. No. Cassava, corn, garden-eggs, pepper and the like."

The plan exhibit A therefore, as will be observed, was made very detailed and elaborate indeed, and quite suitable for the trial. The defendant however expressed dissatisfaction with it, and leave was therefore granted to him and he employed his own surveyor, Mr. Aikins, also a licensed surveyor of Cape Coast, who prepared another plan by his direction which was admitted as exhibit 1. In respect of that plan also, certain evidence elicited from Mr. Aikins under cross-examination appears pertinent and significant, and attention is accordingly drawn to it as follows:

"Q. Before making your plan (exhibit 1) had you seen Mr. Selby's plan exhibit A.

A. No. I had not then; but I have since.

Q. And the area claimed by the plaintiff in exhibit A is practically the same area claimed by the defendant which he pointed out to you and you have shown in exhibit 1.?

A. Yes."

It would appear therefore from Mr. Aikin's admission as above, that there was very little necessity for the defendant to go to the trouble and expense of having the further plan exhibit 1 made. However, the same having been made and both plans being available, it seemed to have become necessary for the court to order some sort of reconciliation between the two separate plans on one single sheet and the court so ordered, and in due course a plan exhibit Z was prepared and filed. It will be to that plan exhibit Z therefore that the judgment in the action will be related.

It falls now to consider how far the evidence adduced by and on behalf of the plaintiff, as affected by the evidence adduced by and on behalf of the defendant, succeeds or fails to discharge the onus of proof on him. [p.516]

The plaintiff adduced traditional evidence of how his ancestor came to acquire the land in dispute, as well as evidence of occupation and possession and use thereof within living memory up to date. Normally the traditional evidence falls to be examined and considered first. As Lord Alness expressed it in Kponuglo v. Kodadja2: "the first question, logically and chronologically, to consider . . . is the traditional evidence regarding the acquisition of a title to the disputed territory." In this case however it appears to be more convenient to deal firstly with the evidence of occupation and use of the land in dispute, having regard to the attitude of the defendant towards that occupational evidence of the plaintiff as declared or expressed by the defendant's counsel during the course of the examination-in-chief of Mr. Selby. In this connection, it will be recalled that Mr. Selby, in response to a question whether on the plaintiff's plan exhibit A he had shown many sites occupied, answered in the affirmative and added: "There were 79 farms of the plaintiff's people, i.e. Edukrome people, and eleven of tenants, i.e. people from Nkanfoa and other neighbouring villages who had permission from him. I have shown all of them on the plan, i.e. the sites of the farms, and names of the farmers." Immediately after that, he was asked the further question:

"Q. Looking at defendant's plan filed (which at this stage by consent is admitted as exhibit '1') you see there are certain farms without any names of the owners indicated; do those not correspond with farms which plaintiff 's people claim?

A. Yes?-They do."

It was at this stage that Mr. Abadoo rose up and intervened and announced to the court: "My client is not claiming ownership of any farms on the area in dispute." Accordingly Mr. Blay in turn stated: "In view of that I do not examine further as to occupation of the area in dispute." Together with this declaration by counsel on behalf of the defendant, should be read and considered the defendant's own evidence under cross-examination concerning occupation of the land in dispute as follows:

"Q. You say your ancestor gave this land to the plaintiff's ancestor; what do you suggest your ancestor prescribed to be done as a token of the fact that he is owner of the land and plaintiff's ancestor was only to work on the land?

A. I was asked the same or similar question in the Guare case (See exhibit 3) in the native court and I replied that 'nothing was done', i.e. my predecessor did not prescribe performance of anything.

Per Curiam:

I want to be quite clear as to the nature of the grant which you allege your ancestor made to plaintiff's ancestor, i.e. whether outright gift, or to have the mere usufruct, or some special form of tenancy.

A. In those days the Ashantis were fighting some of us Fantis, and so when he came, my ancestor granted him the land without any special arrangement. But he did that, so that if the Ashantis attacked him, he would assist him. That's what I was told, that there was no special arrangement as to the grant of the land; so when I succeeded I never asked for anything in respect of the land."

With regard to the defendant's own allusion to his evidence in the Guare case in the Asebu Native Court "B", on referring to his said evidence (see page 10 of exhibit 3) we find that although the initial evidence was [p.517] that: "After a time, a man called Edu-Abekur came to Kwa-Panyin-Edu and obtained his permission to allow him a place to found a village thereon. Kwa-Panyin-Edu then granted unto the said Edu-Abekur the land whereon he founded the present village of Edukrome," and appeared to suggest that the grant was the customary usufructuary kind which does not affect but reserves, the owner's radical title. The witness went on to explain and elucidate it quite clearly that it was an outright grant by way of gift, when he stated firstly in examination-in-chief that: "That Nsahumabiw land was gifted by my uncle to his brother-in-law Odoom, and where Edukrome is now founded, to one Edu-Abekur." Later under cross-examination he stated: "My elder told me that the land was gifted to your elder Edu-Abekur by Kwa-Panyin-Edu and therefore no agreement for any money was made." That indeed is what one would expect the nature of the grant to be, i.e. an outright grant by way of gift, if it was a grant in consideration of the donee or grantee assisting or helping to defend the donor or grantor in time of danger or actual attack, and provided the story of the grant can be believed at all.

But leaving aside for the time being the question of the credibility of the defendant's story, which appears to be purely traditional, to be determined later in this judgment, one thing which emerges with sufficient clarity from the defendant's evidence is this, namely, that in so far as the plaintiff's occupation is admitted or recognised, it is the occupation of an owner. This must necessarily follow from the defendant's evidence that the land on which Edukrome was founded was gifted.

Turning now to examine the plaintiff's traditional story, it is as follows:

"The tradition is that after the Bori-Bori Fantis had fought with the Asebus and driven them away, the land became free for the Fantis to occupy. Sometime about that time my ancestor migrated from Abura-Abakrampah and came and cultivated the virgin forest of the Edukrome land. He came with his people and they cultivated and settled at Edukrome. At that time there was no other village round about, and Amosima was not then in existence. After settling at Edukrome he and his people took control of and worked on the area which I now claim. My people and I occupy the land now, as I showed to the surveyor. My direct ancestor was farming in five different places, Oberim, Osenbon (just a little North-East of Oberim in plan exhibit A) Akwekyir, Oguabonmu and Opambil, and the immediately surrounding lands."

Counsel for the defendant argues that there is no corroboration of this traditional story. I entirely disagree, and I am satisfied it is strongly and decisively corroborated, for what stronger corroboration can you have than the concrete and cogent fact that the plaintiff and his people are in effective occupation and control at the date hereof? Counsel would appear to be under the impression that getting another witness or other witnesses to repeat the traditional story is the way or manner in which it should be corroborated. But that, surely, is a misconception. From the earliest enunciations of the principle by Griffith, C.J. and other distinguished judges of our old Supreme Court and of the Privy Council in pre-republic days, that tradition should be supported by what Griffith, C.J. referred to as "accomplished facts"; it is concrete and tangible occupation which has been usually and most commonly recognised as the "accomplished [p.518] fact" which confirms or corroborates. Thus in Re Acquisition of Land for Coco-nut Plantation,3 judgment dated 3rd June, 1902 (unreported) he, Griffith, C.J. stated: "I propose to go, not on ancient myths, but on modern occupations." In a later case, Agyeman v. Yarmoah,4 Watson, J., expressed himself as follows:

"Both sides claim a title historically, extending back from time immemorial probably at least 400 years. I express the opinion that it is not possible for me to say which story is the true one?-whether the Obutus or the Fettehs first settled in this neighbourhood. Apart from this I do not propose to base my judgment upon a claim of this nature, as I cannot admit the principle that land in this colony can be said to vest by use and occupation of an indefinite tract, supported only by tradition handed down from one generation to another by word of mouth only. I think something more definite must be shewn to enable one Stool to establish a title to land as against another Stool, and I therefore ignore entirely the long historical traditions which have been adduced by both sides . . . I propose to take the state of things as they are now, and to examine the Plaintiff's claim from that standpoint. It is undisputed that the Fettehs are in physical possession of the land in dispute and that they have been farming there for the past 50 years . . . It has been held by the Courts that mere use and occupation for some time cannot of itself oust an original title, in other words that there is no such thing in native customary law as a prescriptive title. Accepting that principle it still follows that the Fettehs are in occupation and the 'Onus' is upon the Plaintiffs to shew a better title."

In the more modern and recent cases, e.g. Duah III v. Tandoh,5 Stool of Abinabina v. Enyimadu6 and Adjeibi-Kojo v. Bonsie Anor.,7 the attitude suggested by Watson, J. of disregarding the traditional stories altogether is not approved, and another attitude is suggested, that of examining and weighing them up, i.e. the traditional stories, against the background of well established existing facts and circumstances, especially unchallenged occupation. So in the Adjeibi-Kojo v. Bonsie case supra, Lord Denning pointed out as follows:

"Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their beliefs . . . The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable . . . So far as [that] ground is concerned, their Lordships have themselves reviewed the evidence. Two facts stand out as established:

The first is that the defendants have enjoyed the profits of the land for eighty years."8

There is therefore this decisive circumstance of concrete and tangible occupation, available to confirm the plaintiff's traditional story in our instant case. This by itself is enough to establish title: see Ebu v. Ababio.9 But there is in addition, the equally cogent evidence of the boundary owners who acknowledge the plaintiff as the owner of the land in dispute with which their respective parcels of lands form boundaries. With [p.519] regard to the boundary owners Mr. Selby was cross-examined and he gave evidence as follows:

"Q. In exhibit Z you have shown boundary owners; were they called?

A. No, not in exhibit Z which is only a compilation of exhibit A and exhibit 1. But when I made the plaintiff's plan exhibit A almost all the boundary owners except one or two attended.

Q. I put it to you most of those boundary owners came from Amosima.

A. No. The number from Amosima is six; the rest from different places, and they came personally or sent representatives.

Q. Can you remember those who did not attend personally but sent representatives ?

A. Yes, the following; Dankwa-Krome sent representative and Nkanfoa sent representatives."

So that according to the surveyor, Mr. Selby, the majority of the number of about sixteen to eighteen boundary owners came forward at the survey to agree their boundaries with the plaintiff. Four of them, who are boundary owners along the north-western boundary, were called and gave evidence which was in no way challenged, acknowledging the plaintiff as their boundary owner.

It seems to me therefore that the general circumstance of the acknowledgment by the majority of the boundary owners of the plaintiff as owner of the area in dispute, is further cogent confirmation of the plaintiff's traditional story. (See Kuma v. Kuma10).

Whilst dealing with the question of how far the boundary owners' attitude or conduct and evidence might support the respective cases, it seems a convenient stage at which to deal with the defendant's witnesses No. 2 Kwow Ayeyi, No. 3 Kofi Obu, the representative of the Chief of Akroful, and No. 4 Kojo Andoh, whose main evidence was that they form boundary with the defendant and not with the plaintiff. They are on their respective admissions Asebu men whose natural inclination would be to give evidence to support the defendant, an Asebu man?-in contrast to the neutral and non-partisan witnesses of the plaintiff who were Oguaa subjects, i.e. P.W.1 from Dankwa-Krome, P.W.3, Chief of Besa-Krome and P.W.4 witness from Nkanfoa, and I am satisfied that the defendant's witnesses Nos. 2, 3 and 4 did not testify truthfully in so far as each deposed that it was not with the plaintiff but rather with the defendant that he forms a boundary.

It seems necessary next to examine the defendant's traditional story to see how far, if at all, it is credible. To do so satisfactorily, it seems necessary to examine the traditional story in the context of and against the background of the whole of his evidence. [His lordship then examined the evidence of the defendant and continued:] Of the traditional narrative so set out by the defendant one important part which is definitely not accurate, is the part that the Aburas aud Asebus did not fight, because the historical tradition that they fought is a matter of common knowledge [p.520] in this Fanti district. Sarbah refers to the tradition in his Fanti National Constitution (1906) where at page 2 he states:

"From popular Gold Coast and Ashanti tradition we learn that the Fanti tribes migrated Southwards from Takieman . . . . very many years ago, and coming in conflict with tribes on the Sea Coast regions, subdued several of them including Etsiifu . . . and Asebufu and settled on their lands."

Abura, it is well known, was one of the invading tribes who came to be later called Bori-Bori Mfantsi who took over Fanti land from the aboriginal owners and could occupy wherever any Bori-Bori tribal group or family pleased. It therefore seems most unlikely, as suggested by counsel for the plaintiff in cross-examination of the defendant, that an Abura man would beg for a forest for cultivation or settlement from an Asebu elder. The defendant in the course of his evidence in the Guare case (exhibit 3, p. 11) admitted that the plaintiff 's elder "hails from Takyiman in Ashanti and therefore he is a Bori-Bori Fanti". It would seem therefore that plaintiff's elder was one of the original arrivals. If that is so, then how very unlikely, as plaintiff's counsel has suggested, that he would apply for a grant of forest land from an Asebu elder in the circumstance which we know quite well from historical tradition that the Asebus were a vanquished tribal unit with whatever lands which they originally had, taken from them for the time being, and that it was long afterwards that they were permitted by their conquerors to settle on some of the lands taken from them.

There appears also to be this extraordinary feature about the defendant's traditional story, that his ancestor should have given this relatively small area edged blue which the defendant calls Nsa Ahuma Biw to his brother-in-law, in comparison with the extensive area in dispute admitted to have been in the occupation of the plaintiff and his people from the earliest period up to date.

The defendant's counsel next relied on the judgment in the Guare case in support of his traditional story and his case generally. As to this, one cannot help observing that it seems a pity that the Government Agent to whom application was made for transfer of the case on the ground of doubtful jurisdiction, did not see his way to transfer the case to the Land Court for trial. The plaintiff in the case was claiming as an Asebu man land which had been undoubtedly in the possession of an Abura man for many years, founding the claim on the allegation that the land had been pledged. Allowing the case to be tried in the Asebu court was surely, in effect, accepting the Asebu man's claim that the land was in origin Asebu land of which an Abura man had been given conditional occupation?-an obviously undesirable, nay unfair, pre-judging of the issue. Surely in a case such as that, Lord Hewart, C.J.'s classic pronouncement that: "Justice should not only be done, but should manifestly and undoubtedly be seen to be done,11 made it imperative that the case should have been tried neither in the Asebu nor the Abura Native Court but in the impartial atmosphere of the Land Court where neither party could rely on the sympathies of fellow tribesmen but rather solely on the [p.521] merits of his case. Be that as it may, it is clear the judgment in that case does not preclude a reconsideration of the allegations in the case, in so far as they have been submitted by the defendant for consideration in this case. Even if the judgment were capable of operating as res judicata it has not been expressly pleaded and therefore the matter is at large.

In Magrath v. Hardyl2, Tindal, C.J. stated the law as follows:

"It is undoubtedly true, as a general rule, that no man can make any averment contradictory to a record. Our law books are full of cases in which this doctrine is stated or distinctly implied. . . . . . But although it is true that no one can be allowed to aver against a record, and that not only parties and privies, but even strangers also, are estopped to aver anything to the contrary, it is a different question whether this estoppel will bind the jury from finding the truth of the fact where the estoppel is not pleaded and relied on . . . however the case may be in the special case of an estate in the land by estoppel, and where the question arises upon the general issue, there are not wanting cases to show that in general an estoppel does not bind the jury, and more particularly that if the estoppel appears upon the record, and the party who is entitled to take advantage of it, instead of relying upon it, goes to issue on the fact, he puts the matter at large, and the jury may disregard the estoppel."

See also the local case of Ollivant Ltd. v. Korsah,13 where the court states:

"Counsel for the respondents, in his opening, did not mention estoppel and though in his final address he quoted cases of estoppel, this was not, in our opinion, sufficient to create a plea which required to be answered, and it was not competent to the learned trial Judge to find that the claimant was estopped by conduct from preferring his claim."

It is clear therefore that were the judgment capable of operating as estoppel, it could not be so regarded because it was not specifically pleaded. But I am satisfied that it does not and cannot operate as res judicata, not even to estop the plaintiff in the present capacity in which he is claiming as the head of the Edu Aberkwa (or Abekur) section of the Adwenadzi family of Edukrome, although he was a party in another capacity in that Guare case. He cannot be estopped in his present capacity because when the former suit was in progress he applied in this present capacity as head of the family of which the original defendant was a member to be be joined, (see motion paper and affidavit, pages 11 and 12 exhibit 3) but was opposed by the plaintiff in that case on the ground set out in paragraph 4 of his affidavit appearing at page eleven of exhibit 3 as follows:

"The land the subject of this action was pawned or pledged to Kweku Baah, uncle of the defendant by plaintiff's ancestor late Kweku Arhin. Also that Baah was not occupying a stool at the time of the pledge and he received the pledge of land in his private capacity . . . therefore this property passed on to the defendant herein as nephew on the demise of the said Baah . . . . and so it is not a family property as alleged by the applicant Ebusua-Panyin Kwesi Yaw."

Thereupon the trial court duly disallowed the application for joinder. It is also significant that the present defendant's claim as head of his ancestor Kwa-Panyin-Edu's family to be joined as a party in the proceedings in that Guare case, was also dismissed. For purposes of this action [p.522] therefore the judgment in the Guare case, is clearly res inter alios acta. (see Ekem v. Nerba14). In so far therefore as Kwamin Guare's representative has given evidence in these proceedings to the effect that the land edged blue is Kwamin Guare's family land and that he has successfully maintained an action in respect of it, I regret that I am not persuaded, as the Asebu Native Court was, that the defendant Egyiraku and his predecessor's long undisputed possession as ostensible owners, was adequately enough displaced by the flimsy evidence that Egyiraku himself on an occasion admitted that the land had been pledged?-an alleged admission which was vehemently denied. In a similar case where one party, the plaintiff, set up an alleged pledge to displace long years of undisputed occupation as ostensible owner, the case of Adjeibi-Kojo v. Bonsie (cited supra), Lord Denning observed as follows:

"Two facts stand out as established:

The first is that the defendants have enjoyed the profits of the land without interruption for eighty years. Three or four generations have passed and no suggestion has been made that it was the subject of a pledge. The evidence shows that, if there had been a pledge, it is customary on the death of the pledgee, for a reminder to be given to his successors, whereas none such was given. Even if the custom were the other way round (as was suggested) still no reminder was given; and surely, if no reminder was given, the plaintiff ought to have taken steps long since to draw the defendant's attention to his claim. The failure of the plaintiff and his predecessors to do this goes far to negative his claim."15

In so far therefore as the evidence is resubmitted to the court to accept or reject the allegation of a pledge, the court's unhesitating decision is to reject the allegation.

In the ultimate result, the court can find no satisfactory or convincing corroborative evidence of the defendant's traditional story whatsoever capable of displacing the concrete and tangible fact of long uninterrupted occupation in the character of ostensible owners which the plaintiff and his predecessors for several generations have held of the land in dispute.

There has been some suggestion in the arguments of counsel for the defendant that plaintiff has no cause of action because he has not been interfered with in his occupation of the land. The argument would be of considerable force if English law were applicable to the determination of the case or if the claim were for damages for trespass. But it is not, and it is customary law which is applicable. By customary law, there is a sufficient cause of action if a person by oath anywhere in or out of court asserts title to one's property. The owner of the property to which another asserted title becomes entitled either by counter-oath or summons to institute proceedings to have the question of title investigated. Moreover the statement of defence has specifically raised the issue of ownership for investigation and adjudication?-and not an issue whether the statement of claim discloses any cause of action or not?-and there is therefore no substance in the submission in the course of the defendant s counsel's address that no cause of action has been proved. [p.523]

Finally, in the investigation of the issue of ownership, after the most careful consideration of all the available evidence adduced by the parties, I find it adequately and sufficiently established that the plaintiff's ancestor on his own, without any intervention by the defendant's ancestor, and assisted by his own people, cleared and cultivated the virgin forest and founded and settled Edukrome village, and in due course by further clearings and cultivation reduced the whole area in dispute under his control and thereby acquired the absolute ownership or title to it.

The onus on the plaintiff, I am satisfied, is adequately discharged, and judgment is thereby entered in favour of the plaintiff decreeing ownership and title to all that piece or parcel of land edged green on the plan exhibit Z (or edged red or pink in exhibit A) excluding the blue-edged plot within the green which was the subject-matter of the Guare case exhibit 3. There will also be an order granting perpetual injunction to restrain the defendant and his people from trespassing on the said land, the subject-matter of the action.

Decision

<P>Judgment for the plaintiff.</P>

Plaintiff / Appellant

R.S. Blay

Defendant / Respondent

D. Myles Abadoo

Referals

(1)  Kodilinye v. Odu (1935) 2 W.A.C.A. 336.

(2)  Kponuglo v. Kodadja (1931) 2 W.A.C.A. 24, P.C.

(3) Re Acquisition of Land for Coco-nut Plantation, Land Court, Accra, June 3, 1902, unreported

(4)  Agyeman v. Yarmoah (1913) D. &. F. '11-'16, 56

(5)  Duah III v. Tandoh (1927) P.C. '74-'28, 109

(6)  Stool of Abinabina v. Enyimadu (1953) 12 W.A.C.A. 171, P.C.

(7)  Adjeibi-Kojo v. Bonsie (1958) 3 W.A.L.R. 257; [1957] 1 W.L.R. 1226, P.C.

(8)  Ebu v. Ababio (1957) 2 W.A.L.R. 55, P.C.

(9)  Kuma v. Kuma (1938) 5 W.A.C.A. 4, P.C.

(10)  Ex parte McCarthy [1927] 1 K.B. 256

(11)  Magrath v. Hardy (1838) 4 Bing (N.C.) 781; 132 E.R. 990

(12)  Ollivant Ltd. v. Korsah (1941) 7 W.A.C.A. 188

(13)  Ekem v. Nerba (1947) 12 W.A.C.A. 258.

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