FREDERICK YAW AGYARKWA SOMUAH & ANOR v. NII ODAMETEY & F. K. COMPANY

JUDGMENT

SUURBAAREH, JA

This is an appeal against the judgment of the High Court, Accra, in which the trial Court entered judgment for the Plaintiffs/Respondents, whilst dismissing the counterclaim of the 2nd Defendant/Appellant.

The facts that gave rise to this appeal are not in much dispute. The Plaintiffs/Respondents initially issued out a writ against the 1st defendant seeking against him a declaration of title to a piece of land at Ashaladza, near Kasoa; recovery of possession, damages of trespass as well as an order for perpetual injunction, as land belonging to the 2nd and 3rd Plaintiffs/Respondents’ Akwanor family of Ashalaja.

The 1st defendant, who in his defence denied the Plaintiffs/Respondents’ claim, went on to contend that the disputed land, situated at Afioaka, was acquired by the Ngleshie chief and that it shared boundary with Ashalaja and Danchira to the North and South respectively.

The Plaintiffs/Respondents, who later amended their statement of claim, averred that the disputed land was granted to the 1st Plaintiff/Respondent, by the 2nd and 3rd Plaintiffs/Respondents’ Akwanor family. The Plaintiffs/Respondents, who pleaded that the Akwanor family had granted portions of their land to other developers, concluded that the High Court had decreed their family’s title to the land in Suit No. 1222/89 entitled, Nii Kojo Appiah III and Others v Nii Akwanor (Subst) Adams Addy & Another, per Appau J (as he then was) (unreported), dated 3rd December 2003.

The 1st defendant, who also sought and amended his statement of defence, denied the Plaintiffs/Respondents’ claim and contended that the disputed land was at Busuafise, where he was a chief, and that it shared boundary with Ashalaja. After giving the history of the land, he concluded that he had filed an appeal against the judgment the Plaintiffs/Respondents were relying on as having decreed title in their family.

It was after this amendment by the 1st defendant that the 2nd defendant/appellant applied and was joined in the suit as a defendant. This joinder necessitated an amendment of the writ of summons and Statement of claim on 12th April 2013 (see pages 179 – 183 of the record of appeal). In their amended statement of claim, the Plaintiffs/Respondents averred that the disputed land belonged to the 2nd and 3rd Plaintiffs/Respondents’ Akwanor family of Ashalaja, and which they had granted to the 1st Plaintiff/Respondent. They also averred that the family had registered a Statutory Declar