ADABLA AND ANOTHER vs. KISSEH AND ANOTHER [1971]DLCA2182

Date	1971-10-25
Suit No.
Citation No.	[1971]DLCA2182

AZU CRABBE J.S.C.

LASSEY JA

SOWAH J.A.

J. K. AHENKORAH FOR THE APPELLANTS.

NO APPEARANCE BY OR FOR THE RESPONDENTS.

[1971]DLCA2182
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													<main id="main" class="content" style="min-height: 60rem" >ADABLA AND ANOTHER <o:p></o:p>vs. <o:p></o:p>KISSEH AND ANOTHER<o:p></o:p>&nbsp;[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;[1972] 1 GLR 43<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
25 OCTOBER 1971.<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">

J. K. AHENKORAH FOR THE APPELLANTS.<o:p></o:p>

NO APPEARANCE BY OR 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">

AZU CRABBE J.S.C., LASSEY AND SOWAH
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LASSEY J.A.<o:p></o:p>On 22
February 1971 we dismissed this appeal and we now give our reasons for such
dismissal.<o:p></o:p>The
appeal was brought by the defendants against the decision of the High Court,
Ho, granting the plaintiffs the relief of partition whereby the land commonly
owned by the parties was ordered to be divided between them. The central issue
in the appeal turned on the validity of this order of division.<o:p></o:p><o:p>&nbsp;</o:p>I find it
unnecessary to repeat the full facts which formed the background to the
dispute, as these have already been set out in the judgment appealed from. The
dispute, no doubt, appeared to have been a longstanding one, and not of recent
origin. The land in question is a village settlement occupied by the families
of two tribal groups alongside the banks of the Volta river, and has ever been
in their joint ownership and occupation. It seems some generations past the
ancestors of both tribes migrated and settled on separate portions of this
territory.<o:p></o:p><o:p>&nbsp;</o:p>Their
manner of occupation was such that by mutual understanding one section was
permitted to squat on one part of the land, while the other kinship group also
established itself on the remaining tip of the common property. The plaintiffs
who are of the Djavier tribe of Tefle refer to the portion of the communal land
in their definite possession as “Tamlago” land, and the defendants who belong
to the Hervier tribe call their area “Akpafleto” land. The territory thus
shared between these two groups of people is the ancestral land which is the
subject-matter of the present dispute. Although this ancestral land now in
dispute has not been distinctly demarcated between the tribes as such, yet the
areas in separate occupation of either tribe are recognisable and easily
identifiable by means of natural or physical features which have been
traditionally accepted by the parties as forming the dividing boundary line
between them.<o:p></o:p><o:p>&nbsp;</o:p>The
history of the early settlement on the ancestral land showed that for many
years the families of the two tribes lived side by side peacefully and shared
common benefits and privileges equally in their environment on account of their
common origin. An important feature of the way in which the two tribes lived on
separate portions of the land now in dispute was that members of one group were
not allowed to trespass or encroach upon the cultivation rights enjoyed by
members of the other section in respect of the piece of land under its separate
occupation, while it was also expected of each group to safeguard or guarantee
the rights of the other to free utilisation of the benefits realisable from its
area of occupation, and also to have peaceable and quiet enjoyment of it
without molestation in any form whatsoever. The parties and their families also
shared without hindrance, free access to common foot-paths running through the
land.<o:p></o:p><o:p>&nbsp;</o:p>This
mutual arrangement whereby the families of the two tribes lived in peace and
harmony on the ancestral land worked very smoothly and satisfactorily until
such time that serious and constant differences or dissatisfaction between the
various families living on separate portions of the land tended to disturb the
spirit of good neighbourliness which hitherto had formed the basis for their co-existence
and co-operation. The result of this was that the undivided portion of the
piece </main>