KWANTRENG II AND OTHERS v. KLU

JUDGMENT OF AMPIAH J.A.

The parties in this action belong to the Kle Musum Quarter of Teshie which consists of eight houses. The evidence shows that this quarter owns a piece of land at Teshie which is vested in the Ayiku and Osabu Wulomo for use by the quarter. The evidence further shows that the defendant who belongs to the Tsier-We house of the quarter, is the incumbent Ayiku and Osabu Wulomo.

In this action the plaintiffs who claimed to be heads of six of the eight houses of the Kle Musum quarter contended that by custom they were entitled to consent and concur in all dispositions of the quarter's lands. Accordingly, they claimed for:

(1) a declaration of title to all that piece of land at Teshie vividly described in the writ of summons;

(2) an order for accounts; and

(3) an order for injunction to restrain the defendant, his agents and workmen from in any way alienating or disposing of any part of the quarter's lands.

In his defence, the defendant contended that although the plaintiffs belong to the Kle Musum quarter, they had no right to consent or concur in any grant of the quarter's lands. He averred that the Kle Musum lands belong to the Tsier-We house by reason of original purchase and settlement by his predecessor Numo Tsier. He said [p.96] further that the other houses of the quarter had arrived later and had joined them and that they had been given portions of the land to settle on. That concession, he claimed, did not give the other houses a right to consent or concur in any disposition of the quarter's lands. The learned trial judge at the end of the hearing dismissed the plaintiffs' claim and gave judgment for the defendant. The plaintiffs have appealed against that judgment.

Although the plaintiffs filed a notice of appeal containing detailed grounds of appeal, the written judgment of the judge could not be traced; it is not included in the record of proceedings. Upon a petition by the plaintiffs to the Chief Justice, the Chief Justice had directed that the matter be heard de novo in the absence of the written judgment. Lamptey J. (as he then was) before whom the matter came, was of the opinion that since judgment had been given and the losing party had appealed, the Chief Justice had no power to direct a retrial and that the power to direct what was to be done in the matter rested with the Court of Appeal, when the appeal came before it. We think he was right. Eventually, when the appeal came before this court for determination,