OPANYIN OPONE KWABENA, SUCCESSOR TO THE LATE ATIUKA DECEASED AND THE SUHUM CO-OPERATIVE PRODUCERS MARKETING SOCIETY LIMITED v. J. R. O. LARBI AND OTHERS

Judgment:

The plaintiffs, Opanyin Opone Kwabena and the Suhum Co-operative Producers Marketing Society Limited issued their writ out of this court on the 21st April, 1951, claiming a declaration of title to land situate at Suhum and damages for trespass.

Pleadings were ordered and were duly filed. It was averred in paragraph 1 of the Statement of Claim that the plaintiff Opanyin Opone Kwabena, was the owner of the land, and in paragraph 2 it was pleaded that the said Opanyin Opone had demised that land to the plaintiffs, the Suhum Co-operative Producers Marketing Society Limited who had erected a house on that land known as house No. 138/C. These facts were not traversed by the defendants in their statement of defence dated the 15th August, 1951, and are thus deemed to have been admitted and I do so find.

It is pleaded further that these premises were attached under the authority of a writ of fieri facias obtained at the instance of the defendant, J. R. O. Larbi and that they were sold by public auction by the 2 nd defendant, J. Kojo Bruce, and purchased by the 3rd defendant Apaw Fianko. Those facts again are not traversed by the statement of defence and I do accordingly find them to have been established. The evidence satisfied me that the sale was effected on the 23rd December, 1950.

It is evidenced that on this day the three defendants entered the building which was in the possession of the Suhum Co-operative Producers Marketing Society Limited by reason of a lease granted to them by Opone Kwabena on the 10th April, 1947, and it is this act of trespass complained of and in respect of which damages are claimed.

The writ of fieri facias was not exhibited. It is agreed that it was issued out of the Native Court of Kukurantumi at the instance of a judgment-creditor, namely J. R. O. Larbi (1st Ylefendant) in execution for the recovery of a judgment debt due to him by a judgment-creditor named Opanin Asong Kwasi.

During the course of the trial I found it established that the said Opanin Asong Kwasi was a member of the Suhum Co-operative Producers Marketing Society Limited who had permitted him to have installed in one of the rooms of the building a telephone and I accept that evidence. Now after the attachment of that land and building the plaintiffs interpleaded in the Native Court of Kukurantumi, and, on the 14th November, 1950, the Native Court dismissed the summons and directed the Registrar to notify the Auctioneer to proceed with the sale immediat