OPANYIN EDWARD KWAKU AGYARKWA v. JAMES FOLAGIN

BY COURT:

The Plaintiff as the head of Tete pa ogya Agona family of Adamorobe, claimed for and on behalf of the said family the following reliefs against the Defendant:

a) Declaration of title to all that land situate and lying and being at Adamorobe on the Dodowa Road containing an approximate area of 6 plots and bounded on the South by the Accra-Oyibi main road, on the East by Plaintiff’s family land and on North by Plaintiff’s family land and on the West by Plaintiff’s family land.

b) Damages for Trespass.

c) Recovery of possession.

d) An Order of Perpetual Injunction to restrain the Defendant, his agents, servants, privies, and assigns from entering unto or in any way disturbing the Plaintiff’s family’s possession of the said land.

The Statement of claim that accompanied the writ traced the plaintiff’s root of title from conquest, and possession from time immemorial. The Defendant filed a defence and denied the Plaintiff’s claim. The defendant however traced his root of title from the Mayawei family of Nungua, and counter-claimed for the following:

a) General Damages for trespass unto Defendant’s six plots of land lying at oyibi.

b) Injunction to restrain the Plaintiff from entering into Defendant’s land, threatening Defendant’s life and or demolishing Defendant’s property.

c) Damages.

d) Cost.

On 21st May, 2009 after application for direction had been filed, the Defendant’s solicitors filed an application to join Quaye family of Nungua as second Defendant. The applicant failed to move the application, and same was dismissed on 1st June, 2009 as being incompetent, as the application was supposed to be by the Quaye family of Nungua without disclosing which member of the family is to represent the family. The affidavit in support of the application for joinder was sworn by one Richard Khimson Avetu of Accra who described himself as the court clerk of the Applicant’s law firm. In the meantime, in the statement of defence, the Defendant pleaded that the land belonged to the Mayawei family of Nungua.

The issues set down for resolution were as follows:

a) Whether or not plaintiff’s ancestral family had at all material times owned the land in dispute.

b) Whether or not the Mayawei family of Nungua are the owners of the disputed land.

c) Whether or not the plaintiff had at all material times been in possession of the land.

d) Whether or not the plaintiff is entitled to his claim.

e) Any other matters arising out of the pleadings.

After direct