JUDGMENT OF OLLENNU J.
In this appeal from a judgment of the West Akim Abuakwa Local Court "A" delivered on the 21st November, 1959 it is contended on behalf of the appellant who was plaintiff that the judgment is wrong in two respects, namely, (a) that the local court wrongly held that there had been acquiescence on the part of the plaintiff in trespass committed by the defendant and therefore he was not entitled to an order for recovery of possession, and (b) that the local court was wrong in making an order for recovery of possession in favour of the defendant-respondent who had not counter-claimed.
Learned counsel argued that for acquiescence to operate as an estoppel it must be shown to be laches amounting to fraud, and cited the case of Willmott v. Barber (15 Ch.D. 96) which was relied upon by the West African Court of Appeal in the case of Abbey v. Ollennu (14 W.A.C.A. 567) in support of that submission. As a proposition of law, that submission is sound; and that appears to be the principle applied by the local court in this case.
For a proper appreciation of my decision in this case, both as to the facts and the law, it is necessary to refer to the writ of summons in extenso. The said writ is as follows:
"The plaintiffs as joint customary inheritors to and of real properties left by the late Kofi Koogblame (deceased) claim against the defendant for declaration of right title and interest to, and recovery of possession of all that piece or parcel of land with cocoa farm thereon situate lying and being at Yunse near Asamankese which form part and parcel of three native ropes of 24 fathoms each of land originally owned by the late Kofi Koogblame, plaintiffs' deceased father and uncle.
The property in dispute is bounded on one side by plaintiffs' property, on one side by Tetteh Kutor's property, on one side by Kwaku Ponuku's (defendant's) property and on one side by Kwadjo Amaning's property.
2. Order of court for straightening and rectification of boundary line between the properties of plaintiffs and defendant by court.
In the alternative plaintiff claims £100 damages from the defendant".
Analysis of this writ of summons reveals the following averments or statements of acts:
1. that the defendant is in possession of the piece or parcel of land with cocoa farm thereon described in the writ of summons;
2. that the said farm forms boundary with farm or land belonging to the plaintiffs on one side, and with farm or land of the defendant on
