AYISI vs. ASIBEY III AND OTHERS [1964]DLHC1871

Date	1964-12-18
Suit No.
Citation No.	[1964]DLHC1871

APALOO J.S.C.

HEWARD-MILLS (DWAMENA WITH HIM) FOR THE PLAINTIFF.

VICTOR OWUSU (E. K. EDUSEI WITH HIM) FOR DWEDWENASE STOOL AND ITS DEFENDANTS.

ADADEVOH FOR MIRIWASAN STOOL AND ITS DEFENDANTS.

N. Y. B. ADADE (OSEI-BONSU WITH HIM) FOR THE BANSO STOOL.

KOKOFUHENE IN PERSON.

TWENTY-THIRD AND THIRTY-THIRD DEFENDANTS IN PERSON.

[1964]DLHC1871
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													<main id="main" class="content" style="min-height: 60rem" >AYISI <o:p></o:p>vs. <o:p></o:p>ASIBEY III AND OTHERS <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1964] GLR 695<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
18 DECEMBER 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

HEWARD-MILLS (DWAMENA WITH HIM) FOR THE PLAINTIFF.<o:p></o:p>

VICTOR OWUSU (E. K. EDUSEI WITH HIM) FOR
DWEDWENASE STOOL AND ITS DEFENDANTS.<o:p></o:p>

ADADEVOH FOR MIRIWASAN STOOL AND ITS DEFENDANTS.<o:p></o:p>

N. Y. B. ADADE (OSEI-BONSU WITH HIM) FOR THE BANSO
STOOL.<o:p></o:p>

TWENTY-THIRD AND THIRTY-THIRD DEFENDANTS IN
PERSON.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APALOO J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>In this
action, the plaintiff representing a syndicate of Akwapim farmers, claims
against the defendants an order of perpetual injunction restraining the
defendants from any further interference with the rights of the plaintiff on a
large tract of land said to be situated on the Banso stool land, a plan of
which was attached to the writ, and damages for trespass. The plaintiff claims
that the land in dispute was sold to his syndicate in 1927 by the Banso stool.
Almost all the defendants are farmers and made cocoa farms on various portions
of the land at varying periods. The defendants do not all derive their title
from one source. The second, fourth, fifth, sixth, seventh, eighth, ninth,
tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth,
seventeenth, eighteenth, twentieth, twenty-first and twenty-second defendants
rely on a customary grant from the Miriwasan stool. The twentieth,
twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth,
twenty-ninth, thirtieth, thirty-first, thirty-second and thirty-fourth claim
title from the third defendant who is the Odikro of Dwedwenase. The
twenty-third and thirty-third defendants claim title from the Banso stool. The
nineteenth defendant alone relies on a customary oral grant from the Kyempo
stool. A plan showing the land in dispute and the farms of these various
defendants was made by a licensed surveyor by the name of Edifor, pursuant to
an order made by me and was admitted in these proceedings as exhibit Z. For the
sake of convenience, I shall designate the defendants according to the source
from which they derived their title. Accordingly, I will refer to the
defendants claiming title from the Odikro of Miriwasan as the Miriwasan
defendants, those relying on a grant from the Dwedwenase stool as the
Dwedwenase defendants, and in like manner, I will call the twenty-third and
thirty-third defendants the Banso defendants. As the nineteenth defendant alone
obtained his title from the Kyempo stool, I will refer to him simply as the
nineteenth defendant. The Banso stool itself sought and was joined to this
action as co-defendant. Its avowed object was to resist the plaintiff’s claim
inasmuch as it alleges that the land in dispute was sold to the syndicate by
the Banso stool. The plaintiff also sued the Kokofu stool the stool to which
the stools of Dwedwenase, Miriwasan and Kyempo are subservient. It is not
apparent from the plaintiff’s writ and statement of claim, the ground on which
he considers himself entitled to either an injunction or damages against the
Kokofu stool qua stool, and I am inclined to think the object of their being
sued is to anticipate an issue of title likely to be raised between the
plaintiff or Banso stool against any of its subordinate stools.<o:p></o:p><o:p>&nbsp;</o:p>The
multiplicity of the defendants is reflected in the diversity of the issues
joined between the plaintiff and the various defendants. The pleadings filed by
the defendants were the subject of such constant amendments that they have
proved to be anything but helpful in clarifying the questions which ought to be
determined between the plaintiff and the various groups of defendants.
Accordingly, the true issues are discernible from the evidence rather than what
is formally set out in the summons for directions. As I see it, the most
important question which ought to be determined as between the plaintiff and
the co-defendant stool is: Was the agreement which was admittedly entered into
between the plaintiff and the co-defendant in 1927 in respect of the land in
dispute, one of sale or customary abusa tenancy? If it was the latter, then the
action must collapse as the basis of the plaintiff’s claim would have failed.
The evidence, of course, establishes that the plaintiff and members of the
syndicate have occupied the disputed land since 1927 and have made extensive
farms and built cottages and villages on it. If the agreement was one of sale,
then I apprehend the long possession and exercise of acts of ownership by
members of the syndicate should prove to be of great value in determining the
issue of title joined between the Banso and Dwedwenase stools. There is also
pleaded by the co-defendant stool against the plaintiff, estoppel by conduct.
That does not seem to me to be a serious question and was not urged with
anything approaching zeal by counsel for the co-defendant stool.<o:p></o:p><o:p>&nbsp;</o:p></main>