JOHN ESHUN v. OKO QUARTEY & NII AYITTEY AGBOFU II

ARYEETEY, J.A.:

In this judgment I would refer to the plaintiff/respondent as simply the plaintiff, the defendant/appellant and co-defendants/appellants as defendant and co-defendants respectively. The plaintiff's claim against the defendant is for the following reliefs: "(a) Ejection from the land situate off Avenor comprising site plan No. ACA 3095822 measuring 40' x 120' x 110' x 100', which the Ghana Railway Corporation gave to the plaintiff in [1998] and which land the defendant has refused to vacate same in spite of repeated demands. (b) General Damages for trespass". According to his Statement of Claim the plaintiff is a grantee of the Ghana Railway Corporation in respect of the land described in the writ of summons. That land forms part of land acquired by the Government of Ghana in 1909. About six months prior to the issue of the writ of summons the defendant trespassed on the land and put up wooden structures on it. In spite of warning from the plaintiff the defendant persisted in his acts of trespass. The defendants' stand is that he had been in uninterrupted possession of the land in dispute twenty-four years prior to the alleged trespass on the land. His possession followed a grant by the Ashong Kwaku family of Avenor. He maintains that the wooden structure complained of was put up by him some four years before the challenge from the plaintiff, on the land of which he had been in possession. On the very day hearing in the case concluded on 6th November 1998 an application for joinder was filed on behalf of the co-defendants.

After the court had granted the application for joinder the co-defendants filed their defence and counterclaimed for what looked like declaratory reliefs namely: "(a) That they are the traditional allodial owners of a larger area of land of which the portion in dispute forms a part as same is described by paragraph 2 of Statement of Claim. (b) The plaintiff is unknown to the co-defendants and has no right to disturb the defendant who is known to them customarily". The contention of the co-defendants in support of the defendants stand is that as allodial owners of a much wider area of land, which embraced the land in dispute they approved of the grant of the land by Ashong-Lamptey family to the defendant. The two concluding paragraphs of the judgment of the court below read as follows:

"From the totality of the evidence adduced in court the plaintiff is entitled to his claim as per the writ of summons. I therefore make