JUDGMENT OF SOWAH J.A.
In September 1952, the plaintiffs applied for a writ of summons to issue against the defendants in the Native Court B, Honuta, claiming a declaration of title to the land described therein, recovery of possession, perpetual injunction and damages for trespass.
In February 1953, upon the application of the plaintiffs that the dispute involved difficult points of law, the suit was transferred to the High Court, Ho, where pleadings were ordered.
The following averments in the statement of claim are pertinent.
“(1) The plaintiffs being the chief and elders of the Honuta stool are the owners in possession of all piece or parcel of land situate lying and being at Honuta and bounded on the north by Hanyigba Todzi land, on the south by the land of the Klore on the east by a boundary line fixed by a judgment of the magistrate court dated 31 July 1953 in the suit entitled Chief Akoto versus Divisional Chief Ayisah and on the West by Honuta stool land.
[p.136]
(2) The land in dispute knows as Ayeho was originally founded by the forefathers of the plaintiffs when they migrated from Notse and were led to the land by a man called Awudatsi and the plaintiffs’ ancestors lived and farmed the land without interruption for a considerable time.
(3) As the place which is on a hill top was found in later years to be too cold, the plaintiffs’ ancestors removed to the valley now known as Honuta, but still farmed the land in dispute and have cocoa farms on the said land.
(4) About twenty-five years ago, the land in dispute was encroached upon by the Awoame people including the defendants and the Chief of Awoame instituted an action for trespass against the first plaintiff.
(5) The said Chief Akoto of Awoame failed to prove his possession of the land and the then magistrate demarcated the eastern boundary now known as Gutch boundary between the land belonging to the plaintiffs and defendants respectively.
(6) A few years ago the defendants crossed the said Gutch boundary and trespassed into the plaintiffs’ land and farms. Wherefore the plaintiffs claim against the defendants the reliefs sought for in the writ of summons.”
The defence was a general denial coupled with an assertion that there has been a prior demarcation of the land by one Dr. Grummer, a German administrator in 1914, between the predecessors of the parties. “The plaintiffs,” so runs the defence, are estopped from relitigating the issue."
Three issues were set down summons for dire
