AMOABIMAA AND ANOTHER vs. OKYIR AND ANOTHER [1965]DLSC1774

Date	1965-02-22
Suit No.
Citation No.	[1965]DLSC1774

MILLS-ODOI JSC

OLLENNU JSC

BRUCE-LYLE J.S.C.

B. J. DA ROCHA FOR THE APPELLANT.

I. K. ABBAN FOR THE RESPONDENTS.

[1965]DLSC1774
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													<main id="main" class="content" style="min-height: 60rem" >AMOABIMAA AND ANOTHER <o:p></o:p>vs. <o:p></o:p>OKYIR AND ANOTHER <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 59<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:
22 FEBRUARY 1965.<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">

B. J. DA ROCHA FOR THE APPELLANT.<o:p></o:p>

I. K. ABBAN FOR THE RESPONDENTS.<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">

MILLS-ODOI, OLLENNU AND BRUCE-LYLE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>This is
an appeal by the defendants in each of the consolidated cases in the court
below, from a judgment of Sowah J. delivered in favour of the plaintiffs in the
said two consolidated cases. The facts in the cases are briefly as follows:<o:p></o:p><o:p>&nbsp;</o:p>There is a
family in Nyakrom known as Yego family; the said family has four sections.
Until the year 1949, the four sections were administered together as a
composite family, with an overall head over and above the sectional heads, and
properties owned by the different sections were enjoyed in common. The
defendants are respectively queenmother and head of one of the said four
sections, their section is known as the Ampiakoko section; another section is
known as the Apaa section. Differences arose between the defendants’ section on
one hand and the remaining three sections on the other; this led, in 1949, to
customary severance of the family ties between the defendants’ section from the
rest. In consequence of this severance the defendants’ section now enjoy their separate
properties in severalty; their lands in question are known as Obuafi,
Otsikorang and Busumpa. In 1954 the defendants obtained judgment in the Agona
Native Court against certain individual members of the other three sections of
the Yego family for a declaration of title to the said three pieces of land,
and for recovery of portions thereof occupied by those individuals. The said
judgment was confirmed by the West African Court of Appeal and eventually by
the Privy Council. In execution of the said judgment the defendants obtained a
writ of possession and upon it ejected not only the defendants in that case,
i.e. those against whom they had obtained judgment, but they also ejected the
plaintiffs herein and other persons who were not parties to the said suit, and
dispossessed them of cocoa farms they own on the lands. In consequence thereof,
the plaintiffs instituted the present actions and claimed (i) recovery of
possession and (ii) an order for accounts.<o:p></o:p><o:p>&nbsp;</o:p>Each of
the plaintiffs pleaded two important averments, namely, <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1) That
he was not a party to the suit in respect of which the execution had been
issued, and <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) That
he is a member of the defendants’ section, the Ampiakoko section of the Yego
family, having joined the same and been adopted into that branch of the family
in 1914. The defendants admitted that the plaintiffs were not parties to the
said suit, but they denied that the plaintiffs belong to the Ampiakoko section;
they pleaded that the plaintiffs are by ancestry members of the Apaa section of
the Yego family, that the judgment upon which the execution had been issued was
against members of the other three sections of the Yego family in a
representative capacity and therefore binding upon the plaintiffs. The
defendants contended therefore that the plaintiffs were lawfully dispossessed
of their land and farms, and are not entitled to any of the reliefs they seek.<o:p></o:p><o:p>&nbsp;</o:p>The trial
judge found that the suit in respect of which the execution had been issued was
against the defendants therein in their individual capacities and not in any
representative capacity, and therefore the judgment therein was not binding
upon the plaintiffs; he also found that the plaintiffs are members of the
Ampiakoko section of the Yego family. He held, therefore, that in either case
the plaintiffs were wrongly dispossessed, and were entitled to each of the
reliefs which they claim.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel for the defendants admitted candidly that the findings of the learned
trail judge that the plaintiffs were not bound by the judgment upon which the
execution had been issued, and that they are members of the Ampiakoko section
of the Yego family are incontrovertible. In view of those admissions counsel
did not argue the two original grounds of appeal filed. We woul</main>