TOGBE ANKUDEY III & 2 ORS v. SIMON KWAMPAH & 2 ORS

KULENDI JSC:

INTRODUCTION:

1.The Defendants/Respondents/Appellants (hereinafter called ‘the Defendants”) invoked the appellate jurisdiction of this Court by the filing of a Notice of Appeal on 1st August, 2023, to challenge the Judgement of the Court of Appeal which is dated 20th July, 2023 by which the learned Justices of the Court of Appeal set aside the Judgement of the High Court and, in its stead, granted in part, the reliefs endorsed on Plaintiffs/Appellants/Respondents (hereinafter referred to as “Plaintiffs”) Writ of Summons and Statement of Claim.

BACKGROUND:

2.The Plaintiffs by an amended Writ of Summons filed on 22nd May, 2015, prayed the High Court, Ho for the following reliefs:

a. A declaration of title to the Sende, Gbade and Donyi lands, all situate and being at Kpenoe and particularly bounded as follows at paragraphs 1 (Sende), 13 (Gbade 1), 16 (Gbade 2) and 17 (Donyi) of the statement of claim.

b. General and Special Damages for trespass.

c. Recovery of possession.

d. Perpetual Injunction restraining the Defendants, their assigns, privies, workmen, agents, servants and anybody claiming title through them from having anything to do with the lands in dispute whatsoever.

e. A declaration that the Asiale Clan held portion of the Sende land in trust for the Agadzi Clan when Togbe Kotoku assumed the Chieftaincy after installation by Agadzi Clan, but has since trespassed beyond same.

3.The facts upon which the Plaintiffs grounded the reliefs sought are that the Plaintiffs are members of the Agadzi clan of Kpenoe, whilst the 1st and 2nd Defendants are members of the Asiale clan of Kpenoe. The 3rd Defendant is an estate developer who acquired portions of the land in dispute.

4.It was the Plaintiffs’ case that their ancestor and forefather, Togbe Letsu, who is said to have been the first settlor of the Agadzi clan, discovered vast tracts of land through hunting expeditions. The Plaintiffs further contended that, owing to the absence of a suitable male successor to inherit from Togbe Letsu, he requested his maternal uncle, Yaw Kwesi of the Asiale clan, to be installed as Togbe Kotoku and entrusted him with certain lands to hold in trust until such time as a male descendant from the Agadzi clan could be installed.

5.The Plaintiffs aver that the land so entrusted was known as the Sende land, which they described as sharing boundaries with the Gbade land, the lands of Togbe Afe