ANIOMEGA AND OTHERS vs. AHIABOR AND OTHERS [1970]DLCA2076

Date	1970-02-16
Suit No.
Citation No.	[1970]DLCA2076

AZU CRABBE AG. C.J

JIAGGE JA

ARCHER JJ.A.

AMORIN FOR THE APPELLANTS.

E. D. KOM FOR THE RESPONDENTS.

[1970]DLCA2076
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													<main id="main" class="content" style="min-height: 60rem" >ANIOMEGA AND OTHERS<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;vs. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>AHIABOR AND OTHERS <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 1 GLR 1<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
16 FEBRUARY 1970.<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;
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AMORIN FOR
THE APPELLANTS.<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;
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AZU CRABBE AG. C.J. JIAGGE AND ARCHER
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE AG. C.J<o:p></o:p>This was
a transferred suit from the Anlo State A and Native Appeal Court, Keta, to the
Lands Court, Accra. Pleadings were ordered and filed, but upon the
establishment of a High Court at Ho, the case was further transferred to that
court, and was eventually heard and determined by Prempeh J. against whose
decision this appeal has now been brought.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs’ case was that on 15 January 1955, in consideration of the sum of
£G225 which they paid to the late Togbi Sri II, Awoame Fia of Anlo, then the
head of the Adjorvia Tribe of Anlo, the late Togbi Sri II granted them fishing
rights for three fishing seasons in the Kpordui creek for the period 1955-1957
inclusive. In consequence of this grant the plaintiffs entered the Kpordui
creek and fished for only one season, because constant flooding of the creek
made it impossible for them to fish for the two remaining seasons. By special
arrangement with the late Togbi Sri II, the period was extended to enable the
plaintiffs to have full benefit of fishing for three fishing seasons as agreed
in January 1955. The plaintiffs alleged that in the fishing season of October
1957-March 1958, the defendants, without permission from the plaintiffs,
entered and fished in the Kpordui creek. By this act the defendants prevented
them from making any profit from the creek, and they thereby suffered damage.
The plaintiffs further alleged that in the one season that they fished in the
Kpordui creek their sale of fish amounted to £G350 and odd. The plaintiffs
therefore claimed from the defendants jointly and severally the sum of five
hundred pounds (£G500) damages for their trespass in the Kpordui creek.<o:p></o:p>

In a
statement of defence filed on behalf of all the defendants on 23 October 1958,
the defendants emphatically denied that the Kpordui creek belonged to the
Adjorvia tribe, or that the late Togbi Sri II had any disposable interest over
the said creek. They maintained that the creek in dispute originally belonged
to one Agama of Agave, and that this was subsequently purchased from Agama by
Azima Hada, the ancestor of Heletsi Agbetepe. The defendants claimed that they
were the licensees of Heletsi Agbetepe, the lawful owner of the creek in
dispute, and that the plaintiffs were not entitled to the reliefs they sought.<o:p></o:p><o:p>&nbsp;</o:p>On 20
November 1958, a separate defence was filed on behalf of the fifth defendant by
another solicitor, and in the statement of defence it was averred that the
Kpordui creek belonged to the Azima Hada family, whose head was one Hiadzi
Sakpaku, and that the fifth defendant had been put in possession of the creek
by the said Hiadzi Sakpaku. It was further averred that the profits realised
from fish caught in the creek for one season would not exceed £G150.<o:p></o:p><o:p>&nbsp;</o:p>Before
hearing commenced, the co-defendants, Emmanuel Hiadzi Sakpaku and Heletsi
Agbetepe, who claimed to be the head and principal members respectively of the
Azima Hada family applied to be joined as parties to the suit on the ground that
the defendants were their licensees, and that their interests were likely to be
affected by any judgment that might be given in the case. They were accordingly
joined.<o:p></o:p>