J. W. ARTHUR v. AMA YIEH AND AMPONTUA

Judgment:

The appellant's claim before the Asantehene's Divisional Court "B" was for damages for trespass committed by the defendants on appellant's farm.

The appellant's case was that the farm in dispute was cultivated by his late uncle Abebrese on land acquired from Nyamianihene. The Nyamianihene had taken possession of the farm at the time of the death of plaintiff's uncle Abebrese. The plaintiff decided to litigate with the Nyamianihene with the object of recovering the farm and he asked the first defendant, a member of Plaintiff's family, to join him in the litigation. The first defendant refused to join him saying that she was fed up with litigation. The Plaintiff succeeded in his action and obtained possession of the farm. He therefore warned that first defendant and her agent the second defendant not to go to the farm as it belonged to him. They disregarded the warning and so he instituted this action.

The first defendant's case was that the land was acquired by her uncle Abebrese and that she helped him to make the farm. Later there was a dispute between the Stool of Nyamiani and the Stool of Kwaso. A boundary was demarcated between the Stool lands and it ran through the farm which had been made by Abebrese on the land originally belonging to the Nyamiani Stool. Part of the farm was on Kwaso Stool land after the demarcation. Before the death of Abebrese she was appointed by Abebrese to inherit his estate. She said she shared the estate of the deceased with the Plaintiff. Later the Plaintiff wrote and said he was going to litigate with the Nyamianihene over the land. She replied and eventually told the Plaintiff to litigate over the portion on Nyamiani land while she the defendant would see the Kwasohene about the other portion. She succeeded in recovering that portion also from the Ohene of Kwaso. Plaintiff plucked the cocoa on the Kwaso portion and Defendant made a complaint to the Native Authority Police. Later the Plaintiff instituted this action.

There was an admission by both parties before the Native Court that the property in question was not shared. The Trial Native Court gave judgment for the Plaintiff on the ground that Plaintiff had obtained judgment in respect of the property in dispute. The defendant appealed and the Native Appeal Court reversed the judgment and held that the property in dispute belonged to both parties by right of succession. It held the view (although not expressly stated) that the Nyamiani portion of the land b