AWULAE ATTIBRUKUSU III vs. OPPONG KOFI & 4 ORS [2009]DLCA6649

Date	2009-02-26
Suit No.	CIVIL APPEAL NO. HI/133/08
Citation No.	[2009]DLCA6649

MRS. AKOTO BAMFO J.A. (PRESIDING)

KANYOKE J.A.

HONYENUGA J.A

MR. D. A. OTOO FOR BODZA LUMOR FOR PLT/APPELLANT

MR. ACHEAMPONG OPOKU FOR DEFTS’/RESPTS'

[2009]DLCA6649
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													<main id="main" class="content" style="min-height: 60rem" >AWULAE ATTIBRUKUSU III<o:p></o:p>vs.<o:p></o:p>OPPONG KOFI &amp; 4 ORS.<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;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO. HI/133/08&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: 26TH FEBRUARY 2009<o:p></o:p>

MR.
ACHEAMPONG OPOKU FOR DEFTS’/RESPTS'<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>HONYENUGA J.A. <o:p></o:p>This
is an appeal from the Judgment of the High Court, Sekondi dated the 27th day of
February 2007. The facts underlying the appeal are that on the 17th day of June
1996, the Plaintiff/Appellant as the Omanhene of Lower Axim Traditional Area
claiming for himself and the Royal Nvaviley Family of Lower Axim and the Stool
issued a writ against the Defendants/Respondents, their Servants,
Agents/Assigns etc. for:— <o:p></o:p>a.&nbsp; DECLARATION OF TITLE to all that piece and
parcel of land situate, lying and being within Lower Axim Traditional Area in
the Western Region of Ghana measuring 15 square Miles and bounded on the North
by the Main Axim-Takoradi Motor Road, on the South by Agyemfra Stool Lands on
the West by Domunli/Agyan and Akonu Stool Lands and on the East by Agyambra and
Abura Stool Lands. <o:p></o:p>b.&nbsp; RECOVERY OF POSSESSION <o:p></o:p>c.&nbsp; DAMAGES FOR TRESPASS <o:p></o:p>d.
PERPETUAL INJUNCTION against the Defendants, their Agent and/or Servants,
Assigns and Workmen etc. from interfering with Plaintiff and the Royal Nvaviley
Family of Lower Axim and the Stool’s possession occupation and enjoyment of the
said land;<o:p></o:p>e.&nbsp; AN ORDER to set aside/ or for the revocation
of the Declaration Instrument dated 22nd August, 1984 and marked as SDI.924/84
made in favour of ADIA KPOLLEY (deceased) the Predecessor of the 1st Defendant
and the then Head of Nvaviley Family of Ewoku for and on behalf of Ewoku
Nvaviley Family of Ewoku in respect of the land described on paragraph (a) of
the claim above; OR ALTERNATIVELY <o:p></o:p>f.&nbsp; A DECLARATION that the Declaration Instrument
dated 22nd August 1984 and marked as SDI.924/84 made in favour of ADIA KPOLLEY
(deceased) the predecessor of the 1st Defendant and the then Head of Nvaviley
Family of Ewoku Nvaviley Family of Ewoju in respect of the land described in
paragraph (a) of the claim above is null and void and of no legal effect. <o:p></o:p>The
Plaintiff/Appellant did not file a statement of claim after the
Defendants/Respondents entered appearance until an application to strike out
the Writ for want of prosecution. <o:p></o:p>In
his belated statement of claim, the Plaintiff/Appellant claimed the land is
commonly known as Lower Axim Family land attached to the Stool of Lower Axim of
which he is a member and in charge of same. He pleaded that although the
defendants were members of the Royal Nvaviley Family of Lower Axim, they were
not immediate family members.&nbsp; He also
pleaded that the ancestors of the plaintiff named Ebriku and King Kweku Kyina I
granted permission to the defendants’ ancestors to farm on various portions of
the land in dispute.&nbsp; He averred that the
land in dispute forms part of Lower Axim Stool Lands. &nbsp;He further averred that the land in dispute
had been the subject of several concession inquiries and also the subject
matter of litigations which went in favour of the chiefs of Lower Axim. <o:p></o:p>The
Defendants/Respondents on the other hand, admitted that the land falls within
the Lower Axim Paramount Stool Land but averred that their ancestors acquired
the land in dispute after their sister had founded the village of Ewoku.&nbsp; The defendants also admitted that they paid
tribute to the plaintiff during Kundum Festival until 1982 in the form of
foodstuff.&nbsp; The defendants pleaded that
the usufructuary title laid with them.&nbsp;
They insisted that the land in dispute is for their family.&nbsp; They pleaded that if the Plaintiff/Appellant
involved himself in concessional grants, it was because the land falls within
his paramountcy.&nbsp; They averred that a
Statutory Declaration was made because the land belongs to them. They also
averred that they have several people living in villages who paid tolls to
them, <o:p></o:p>At
the Summons for Directions Stage, the following were the issues set down for
trial:— <o:p></o:p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether or not the disputed land is
commonly called Lower Axim Family land and is attached to the Stool of Lower
Axim. <o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether or not the disputed land was
acquired by Defendants’ ancestors. <o:p></o:p>