BANAHENE AND OTHERS vs. HIMA AND OTHERS [1963]DLSC1999

Date	1963-03-25
Suit No.
Citation No.	[1963]DLSC1999

ADUMUA-BOSSMAN JSC

BLAY JSC

AKUFO-ADDO JSC

N.Y.B. ADADE FOR THE APPELLANTS

D.S. EFFAH FOR THE RESPONDENTS

[1963]DLSC1999
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BANAHENE AND OTHERS

[SUPREME COURT]

[1963] 1 GLR 323

DATE: 25TH MARCH, 1963.

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COUNSEL:&nbsp;&nbsp;

N.Y.B.
ADADE FOR THE APPELLANTS.

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ADUMUA-BOSSMAN, BLAY AND
AKUFO-ADDO JJ.S.C.

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&nbsp;

The respondents to this appeal (hereinafter referred to as the
plaintiffs) who described themselves as acting “for themselves and as
representing the management committee of Kwamang-Kwabre No. 2 and the farmers
in the Kwamang Area,” brought an action against the appellants (hereinafter
referred to as the defendants) in the High Court, Kumasi, claiming by their
writ of summons:

“1. A declaration of the Court that the second defendant’s
predecessor in office having sold the timber trees on Kwamang stool land to the
plaintiffs for £G1,000 the first and second defendants have no legal rights in
the said timber trees and are not entitled to enter into any agreement for
felling the said timber trees.

2. An order of perpetual injunction restraining the third
defendant upon an alleged agreement between him and the first and second
defendants from cutting timber on Kwamang stool land the said timber having
been sold to the plaintiffs for £G1,000 by the predecessor in office of the
second defendant.

3. £G2,000 damages for trespass from the defendants whereof
£G1,900 represents special damages suffered by the plaintiffs through the
cutting of timber trees and the destruction of cocoa trees and other cash crops
in their farms by the third defendants and £G100 represents general damages.”

The defendant Nana Owusu Banahene is the Ohene of Kenyasi in
Asante, the defendant Kofi Ti is the Odikro of Kwamang and a sub-chief of the
Ohene of Kenyasi. The defendant Owusu is a timber merchant to whom the other
two defendants had granted timber felling rights on Kwamang land. The
plaintiffs and those whom they claim to represent in the action are all natives
of Kwamang and therefore subjects of the Odikro of Kwamang and the Kenyasihene.

The plaintiffs’ case is that the inhabitants of Kwamang are mainly
farmers who have reduced into cultivation the whole of the forest land in
Kwamang. Sometime in 1949, according to the plaintiffs, the Kenyasi stool
needed money to defray a debt, and to raise the requisite money the then
Kenyasihene and the Odikro of Kwamang arranged to grant to a timber merchant
(not the defendant Owusu) timber felling rights on Kwamang land in
consideration of the sum of £G1,000 which was apparently the amount required by
the Kenyasi stool to clear itself of its debt. The proposed grant was wholly
unwelcome to the farmers of Kwamang who contended that any timber felling
operations on Kwamang land would do irreparable damage to their farms inasmuch
as every available timber tree on Kwamang land stood on a farm belonging to one
Kwamang farmer or another. To save their farms therefore from the ravages of
timber felling operations then and thereafter, the farmers of Kwamang offered
to pay to the Kenyasi stool the sum of money required to satisfy the stool’s
debt. The offer was accepted, the proposed grant of timber rights to the timber
merchant was called off, and an agreement was reached between the farmers and
the stool of Kenyasi (represented by the Kenyasihene, the Odikro of Kwamang and
the principal elders of the stool) whereby in consideration of the sum of
£G1,000 paid to the stool by the farmers, the Kenyasi stool, according to the
plaintiffs, relinquished all its rights to all timber trees in Kwamang in favour
of the Kwamang farmers. In the words of the plaintiffs’ averment in their
statement of claim:

“The Kwamang stool and its wing chiefs agreed with the farmers
jointly that £G1,000 was the amount the Kwamang stool and its wing chiefs
expected from royalties for the timber and the farmers in the area therefore
jointly paid to the Kwamang stool £G1,000 on the understanding that ownership
of the timber thereafter vested in the farmers.”

The plaintiffs say in short that by that transaction the Kenyasi
stool sold, and the Kwamang farmers purchased, all timber trees standing on
Kwamang land for the price of £G1,000.

In 1960 the Kenyasi stool made a grant to the defendant Owusu of
timber felling rights on Kwamang land to which the Kwamang farmers objected
strongly as being in breach of the aforesaid agreement of 1949. The defendant
Owusu actually entered upon the land and started felling operations, hence this
action.