OKYEAME YIMA, TEYE TIMOTHY DOKU AND MRS. CHRISTIANA EDITH AGYAKWA vs. MAJOR KEELSON (RTD) [2008]DLCA6553

OKYEAME YIMA, TEYE TIMOTHY DOKU AND MRS. CHRISTIANA EDITH AGYAKWA vs. MAJOR KEEL... [2008]DLCA6553

Date	2008-04-03
Suit No.	SUIT NO. NO. H1/282/04
Citation No.	[2008]DLCA6553

ARYEETEY J.A. (PRESIDING)

MARFUL SAU J.A.

MARIAMA OWUSU J.A.

PLAINTIFFS/RESPONDENTS– MR. ASANTE ANSONG

DEFENDANT/APPELLANT – MR. S. K. AKOTO

[2008]DLCA6553
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													<main id="main" class="content" style="min-height: 60rem" >OKYEAME
YIMA, TEYE TIMOTHY DOKU AND MRS. CHRISTIANA EDITH AGYAKWA<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>MAJOR
KEELSON (RTD)<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">SUIT
NO. NO. H1/282/04&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 3RD
APRIL, 2008<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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S. K. AKOTO <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ARYEETEY J.A. (PRESIDING),
MARFUL SAU J.A., MARIAMA OWUSU J.A.<o:p></o:p>

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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>ARYEETEY,
J.A. <o:p></o:p>These
two consolidated cases, which were marked as SUIT NO. L. 81/92 and SUIT NO. L
20/92 respectively in the court below, have a common origin. Both of them
undisputedly have their roots in the land acquired by a purchasing syndicate by
name Agyakwa and Company, whose leader was the late Odikro Kwabena Agyakwa of
Begoro and Mampong-Akwapim, from the Akim Aboakwa and Begoro stools.
Specifically the two consolidated cases supposedly relate to the portion of
that land that was allotted to the late Odikro Agyakwa after the purchase. In
respect of Suit No. L 81/92 the plaintiff’s position is that she and his late
brother Dr. Samuel Nyako Agyakwa were two of the children of their late father
Odikro Kwabena Agyakwa brought the action on their own behalf and on behalf of
their brothers and sisters. In the course of the litigation in the court below
Dr. Samuel Agyako, the first plaintiff died. Rather than applying to the court
for substitution of her late brother, Christiana Edith Agyakwa Aboa who was
originally the second plaintiff applied for the name of his late brother to be
struct out as a party. Her stand is that in or about 1924 her late father,
Odikro Kwabena Agyakwa as leader of a group which they called Agyakwa and
Company purchased the land from Akim Abuakwa and Begoro Stools. Members of the
group shared the purchased land. Odikro Kwabena Agyakwa sold part of his share
to certain Krobos who were led by one Kwesi Ghartey alias W. D. Ghartey, the
predecessor of the defendant/appellant. Kwesi Ghartey was also known as Kwesi
Photo or Photo Kwesi. <o:p></o:p>After
Odikro Kwabena Agyakwa had disposed of part of his land he kept the remainder
which is described under SCHEDULE A and SCHEDULE B endorsed on the writ of
summons for himself. The descriptions under the said SCHEDULE A is as follows:
“ALL THAT PIECE OR PARCEL OF LAND situate lying and being at Akwamu Kotoku
(Miaso) near Begoro in the Eastern Region of the Republic of Ghana and bounded
on the North by property of Kwaku Larbi &amp; Co., on the South by Charles
Odame’s property, on the East by Tetteh Kwaku Adjiwo’s property and on the West
by property of Kwesi Ghartey alias W. D. Ghartey and Otieku &amp; Co.” Under
SCHEDULE B we have “ALL THAT PIECE OR PARCEL OF LAND situate lying and being at
Akwamu Kotoku aforesaid and bounded on the North by property of Kweku Larbi
&amp; Co., on the South by River Mia, on the East by property of Kwesi Ghartey
alias W. D. Ghartey and Otieku &amp; Co. and on the West by River Mia.” On 24th
August 1951 Odikro Agyakwa granted the two parcels of land described in
SCHEDULE A and SCHEDULE B to his children by way of customary gift. Following
the death of Kwesi Ghartey the defendant, his nephew succeeded him. When the
defendant came to occupy his uncle’s land he persistently trespassed on the
plaintiff’s lands, farming on the said lands, re-demarcating them, collecting
proceeds of farms cultivated by the plaintiffs agents, collecting rents from
the plaintiff’s tenants and appropriating the proceeds to his own use. The
plaintiff therefore claims the following reliefs: (a) Declaration of Title to
the parcels of land described in SCHEDULE A and SCHEDULE B. (b) Damages for
Trespass, (c) An order for Recovery of Possession, (d) An order for Account,
(e) An Order for Perpetual Injunction. <o:p></o:p>According
to the defendant’s amended pleading in respect of Suit No. L 81/92, in 1948 his
late uncle W. D. Ghartey purchased a large track of forest land of about
1052.50 acres from Odikro Kwabena Agyakwa for an amount of £2688 in his
personal capacity. He gave the boundaries of his late uncle’s land as follows:
It is bounded on one side by the property of Adjaweh &amp; Co., and on another
side by the property of Agyakwa &amp; Co., on the third side by the Mia River
and on another side by the property of Kwaku Larbi &amp; Co. (which was later
purchased and owned by W. D. Ghartey). His late uncle went into possession of
the land he purchased from the late Agyakwa. The land, which Agyakwa owned is
now occupied by some Krobo farmers. After he had taken over control of his
uncle’s land he did not see the plaintiff and her late brother on the land in
dispute. He had not come across any agents of the plaintiff farming on the land
on her behalf. He had never trespassed on the plaintiff’s land neither had he
received any warning, directly or indirectly from the plaintiff in respect of
his possession of the land. <o:p></o:p>