AGYEI vs. APRAKU AND OTHERS; GYAMFI AND. APRAKU AND OTHERS;BOATENG vs. APRAKU AND OTHERS (CONSOLIDATED) [1976]DLCA1221

AGYEI vs. APRAKU AND OTHERS; GYAMFI AND. APRAKU AND OTHERS;BOATENG vs. APRAKU... [1976]DLCA1221

Date	1976-11-22
Suit No.
Citation No.	[1976]DLCA1221

APALOO JA

SOWAH JA

FRANCOIS J.A.

E. D. KOM (DWIRA POODO WITH HIM) FOR THE APPLICANTS.

K. ADU-SAKYI (KODUA WITH HIM) FOR THE RESPONDENTS.

[1976]DLCA1221
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													<main id="main" class="content" style="min-height: 60rem" >AGYEI vs. APRAKU AND OTHERS; GYAMFI <o:p></o:p>AND. <o:p></o:p>APRAKU AND OTHERS;BOATENG vs. APRAKU AND OTHERS (CONSOLIDATED) <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1989-90]1 GLR 111<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 NOVEMBER
1976<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">

E. D. KOM (DWIRA POODO WITH HIM) FOR THE
APPLICANTS.<o:p></o:p>

K. ADU-SAKYI (KODUA WITH HIM) 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">

APALOO, SOWAH AND FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT BY APALOO J. A.<o:p></o:p>Apaloo
J.A. delivered the ruling of the court. In September 1971, government acquired
for use as a game reserve and a national park a fairly large piece of land in
the Kumawu Traditional Area of Ashanti. The area was otherwise known as the
Digya National Park and the Kogyae Strict Natural Reserve. It was a compulsory
purchase and the government came under a statutory obligation to pay
compensation to the owners whose titles were extinguished or whose rights were
otherwise affected by the acquisition.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence shows that in addition to the Kumawu stool which claimed the
compensation payable therefor, the applicants also claimed in their own right
such compensation and the basis of their claim seems to be that the land
acquired was their ancestral property. The government paid to the applicants an
aggregate sum of one point five million cedis, odd. This payment seems to have
been made in December 1975.<o:p></o:p>Some time
after becoming cognisant of the payment, the respondents who claimed to be the
customary custodians of all the of the Kumawu stool, sought by action to
recover this sum from the applicants relief was sought in the High Court,
Kumasi, and the action was based on the premises that the compensation was
properly payable to the stool or oman of Kumawu which was in truth the owner of
the land. The respondents also claimed that in obtaining payment of this sum
for themselves, the applicants acted in fraud of the stool. The applicants, for
their part, disputed the right of the stool to this money on the ground that
they, and not the latter, were entitled to the receipt of the compensation, it
being their ancestral property. This was broadly the difference between them.<o:p></o:p><o:p>&nbsp;</o:p>The
applicants were not entirely consistent in their stand because although their
answer to the respondents’ claim was that the compensation was properly payable
and receivable by them in virtue of their ancestral ownership of the land
acquired, they also claimed that they had in fact surrendered and paid over to
the stool the whole of the compensation and the latter returned to them only
such portion as they were customarily entitled to. The respondents point to the
applicants’ inconsistent positions as evidence of bad faith. The learned judge
stigmatised it as fraudulent. We do not feel called upon to furnish any epithet
of the applicants seeming irreconcilable positions.<o:p></o:p><o:p>&nbsp;</o:p>While
this suit was pending, the respondents applied to the court to order the
preservation of the money and to enjoin the applicants to lodge this sum into
court to await the outcome of the case. The respondents preferred reason for
this was that if this step were not taken, the applicants might dissipate the
funds before or by the time the action was concluded. As is to be expected, the
applicants seriously resisted this order and in the result, unsuccessfully.
After listening to an exhaustive legal argument, the learned judge, Anterkyi
J., in his ruling Apraku v. Agyei, High Court, Kumasi, 1 September 1976,
unreported, ordered the first applicant in the consolidated cases to pay into
court on or before 8 September 1976, the sum of ¢600,600.00. Similar orders
were made in respect of relief was sought’ and the two other applicants. This
interlocutory relief was sought and granted under Order 50, r. 5 of the High
Court (Civil Procedure) Rules 1954 (L.N. 140A).<o:p></o:p><o:p>&nbsp;</o:p>The
applicants expressed themselves as aggrieved by the, court’s interlocutory
order and believing that the matter was properly governed by section 10 (5) (a)
of the Courts Act, 1971 (Act 372), sought leave of the High Court to appeal.
This was denied. Availing themselves of the enabling provision of rule 28 of
this court’s procedural rules, i.e. the Court of Appeal Rules, 1962 (L.I. 218),
the applicants repeated their application for leave to appeal before this
court.<o:p></o:p>