NKYI XI v. KUMAH (BEDU SUBST.)

JUDGMENT OF VAN LARE , J.A.

The plaintiff, by his writ of summons issued on the 19th day of June, 1948 in the Asin Confederacy Native Court "A," claimed damages for trespass, and an injunction restraining the defendant, [p.283] his agents and servants, from entering upon, or in any way interfering with the plaintiff in his ownership, possession and occupation of his stool land known as and called Basofi land, situate in the Asin Apimanim State. The suit was transferred to the Land Court.

The plaintiff filed a statement of claim averring ownership of the said land by original settlement on it by his ancestors. The cause of action, as given both in the writ of summons and in the statement of claim, is that the defendant by his agents and servants entered upon a portion of the said land in May, 1948, and constructed a motor road thereon from a village called Nduaso, thereby damaging existing motorable roads and bridges thereon, and consequently obstructing the plaintiff's tenants, James Brodie Apprey and others, engaged in timber business on that portion of the land.

In a statement of defence the defendant admitted committing the acts which the plaintiff complained of, but pleaded that he committed those acts in the exercise of his right as owner in possession of the said land acquired by his ancestors by original settlement.

The trial-Judge directed himself that upon the pleadings the issue raised for trial was one of title. In his judgment he found, upon the evidence before him, that the plaintiff's ancestors were the first to settle on the land in dispute, and became by native custom the owners of the land. The assessor who sat with the learned Judge agreed with the Judge's findings as to original settlement, and the effect, according to native law and custom, of that original settlement.

Upon those findings of fact, and the declaration of native law and custom, the learned Judge entered judgment for the plaintiff for declaration of his title to the land, and damages for trespass.

The three main grounds of appeal argued before us are:

(1) the learned Judge was wrong in making a declaration of title to the land in favour of the plaintiff when no such relief was asked for or sought;

(2) the plaintiff's action was misconceived in that not being in possession of the land in dispute, and his reversionary interest in the land (if any) not having been infringed, he could not maintain an action for trespass, and

(3) the judgment was against the weight o