HOME  JUDGEMENT OF THE COURT OF APPEAL

JUDGMENT

LAMPTEY, J.A.

Before the District Court Grade I, Sekondi, Nana Kojo Mensah (hereinafter referred to as the plaintiff) sued Sophia Gordon (hereinafter called the defendant) and claimed the reliefs endorsed on the Writ of Summons. The Plaintiff's Solicitors filed a Statement of Claim which among other matters averred that the plaintiff had sued in a representative capacity. Solicitors acting for the defendant filed a Statement of Defence and a counter-claim. No reply to the Statement of Defence was filed by Plaintiff's Solicitor. No Statement of Defence to the Counter-claim was filed by the Plaintiff. Pleadings were completed and hearing on the merits commenced. The Plaintiff closed his case. During the hearing of the case for the Defendant, the Solicitors acting for the Defendant filed a Motion on Notice praying the trial Court to make an order to join one Bosom Kwesi as Co-defendant.  The Co-Defendant did not file any pleadings after he was joined as Co-Defendant. The Co-Defendant closed his case without calling any witnesses.

The trial magistrate in a written judgment dismissed the claim of the Plaintiff. He dismissed the Counter-Claim of the Defendant. He entered Judgment for Co-Defendant on his “counter-claim.” He awarded co-defendant damages for trespass committed by the Plaintiff. The Defendant accepted the dismissal of her counter-claim and therefore she did not appeal against the judgment. She is therefore bound by the judgment because she did not appeal to the High Court Sekondi.

In the Notice of Appeal among other grounds, two grounds were stated as follows:—

“(a) The Learned Trial Magistrate erred in holding that the Plaintiff had no capacity to institute the action.

(a) The Learned Trial Magistrate erred in giving judgment for the Co-Defendant when Co-Defendant had not counter- claimed for any relief at all.”

The appellate High Court Judge heard submissions and arguments of Counsel for the parties. He delivered his judgment.  He dismissed the appeal of the Plaintiff. Dissatisfied and aggrieved by the judgment of the High Court, the Plaintiff appealed further to this Court. In the Notice of Appeal filed against the judgment of the High Court, two grounds of appeal were filed. In the Notice of Appeal one ground was that the judgment was against the weight of evidence before the District Magistrate Court.

In the Statement of case filed on behalf of the Plaintiff, his Counsel argued ground (b) on the notice of Appeal. He submitted that the Co-Defendant did not expressly ask for any particular relief before the District Court. He stated that after the Co-Defendant was joined as a Co-Defendant he failed and or omitted to file any pleadings before the District Court. He submitted that Co-Defendant breached the mandatory rules in Cap.4. He argued that since Co-Defendant did not file a Statement of Defence and a Counter-claim for a declaration of title to the lands in dispute the trial Magistrate was wrong in law when he made a declaration of title to the lands in dispute in the person of Co-Defendant.

In reply, Counsel for Co-Defendant submitted that the trial Magistrate was right in granting Co-Defendant judgment on the evidence before him. He pointed out that the Co-Defendant was not ordered by the Court to file any pleadings, I must point out that these arguments were made before the appellate High Court Judge. In his Judgment, he did not advert to the serious issue of law raised by Counsel for Plaintiff. He did not advert to the reply made by Counsel for Co-Defendant. He therefore failed to resolve the serious issue of law raised for his determination. The omission is unfortunate and no doubt led to this further appeal.

In order to appreciate and understand the criticism levelled against the judgment of the trial Magistrate, I must consider the import of the decision of the trial Magistrate that “Co-Defendant has proved his counter-claim.”

As pointed out by Counsel for Plaintiff, the claim of the plaintiff was “for a declaration of title to:

(1)   Ebionkessim land and

(2)   Abakan land.”

These two parcels of land were the subject-matter in dispute between plaintiff and the defendant. I refer to the affidavit of co-defendant in support of his motion to join as co-defendant. In the affidavit, Bosom Kwesi, described in paragraph 3 the parcel of land which he claimed. That paragraph reads:

“3 .... I am applying to be joined as co-defendant to vindicate my family's title to all that piece or parcel of land...at Essipon and sharing boundaries with Ngyiresi Stool, Sofokrom Stool, the sea and motor road.”

The land claimed in this affidavit must be described in a Statement of Defence and counter-claim so that it formed part of the pleadings before the court. The Rules of Court (Cap.4) enjoined co-defendant to file a Statement of Defence and a Counter-claim to enable the plaintiff and the defendant meet the case he had put forward. The failure of the co-defendant to file pleadings cannot be glossed over. It is fatal to the case of co-defendant. A careful and critical examination of the boundaries of the two parcels of land claimed by the plaintiff on the one hand, and the co-defendant on the other hand shows that the two parcels of land are not the same. In the plaintiff’s description of the land the boundaries do not include a motor road. The sea is also not given as a boundary. The co-defendant claimed boundaries with Nkuase land and Mpimtsim Stool land in his affidavit in support of his application to join. It mentioned a specific motor road as Essipon to Inchaban motor road. The different descriptions of the lands claimed by the plaintiff and co-defendant ought not be treated casually by the trial magistrate especially, in this case, when co-defendant had breached the rules of court and not filed pleadings. The equally serious slip by the trial magistrate was his failure to note that in his evidence-in-chief the co-defendant did not seek a declaration of title to any parcel of land. This is his evidence-in-chief.

“The Ebirashaen Abiradze Family of Essipon owns a land at Essipon. Our land shares boundaries with Inchaban, Sofokrom, Mpimtsim and Ngyiresi. I have counter-claimed against the plaintiff because Plaintiff who does not belong to the family has granted part of the family land to one Keanye and the nephew of a certain lawyer.”

The description of the land as "our land" does not meet the burden of proof of ownership of the land in respect of which he obtained a declaration of title. He failed to prove the boundaries of the land he claimed. He failed to adduce other evidence to corroborate the claim he had put forward. In the instant case, the plaintiff claimed membership of the very family to which co-defendant belonged. The plaintiff sued in a representative capacity. The co-defendant in his evidence before the trial court described himself as head of the very family to which the plaintiff claimed membership. The co-defendant did not purport to defend the action in a representative capacity; he did not plead his capacity. The judgment in favour of co-defendant was therefore not free from doubt. Was the land claimed by co-defendant adjudged to be land belonging to the Ebirashaen Ebiradze family of Essipon? To expose the grave error of the trial magistrate, I refer to paragraph 1 of plaintiff’s statement of claim thus:

“The Plaintiff sued for himself and on behalf of the Ebirashaen Ebiradze Stool Family of Essipon.”

The trial magistrate made a declaration of title to the land in dispute “in the Ebirashaen Ebiradze Stool Family of Essipon” I must point out that in the instant action that was the declaration sought by the plaintiff. Indeed the trial magistrate concluded his judgment thus:

“There is therefore evidence on record to support a finding that the allodial title to all the parcels of land situate at Essipon is vested in the Ebirashaen Ebiradze family of Essipon.”

I must point out immediately that the co-defendant did not file a counter-claim in this action for a declaration of title to any particular parcel of land. Since the trial magistrate held that on the evidence before him the lands described by plaintiff in the writ of summons were lands belonging to Ebirashaen Ebiradze Stool Family, he gravely erred in law when he dismissed the claim of the plaintiff. The plaintiff was entitled to judgment on his claim.

At this point, I must draw attention to what I view as grave breach of professional ethics on the part of Dr. Tackie-Otoo. It was Dr. Tackie-Otoo who acted as Solicitor and Counsel for defendant. He also acted as Solicitor and Counsel for Defendant throughout the whole trial. The defendant put forward a bona fide claim to portion of Ebirashaen Ebiradze Stool family land. The defendant supported her claim with a judgment relating to the portion of land she claimed. During the course of the hearing and disregarding the instructions and interest of the defendant, Dr. Tackie-Otoo accepted and received instructions from Bosam Kwasi whose claim run counter and adverse to that of the defendant. I am amazed that Dr. Tackie-Otoo saw nothing professionally wrong when he accepted the brief of the co-defendant and proceeded to act as Solicitor and also conduct the cases of both the defendant and the co-defendant before the trial court and also before the appellate High Court.

In short, my opinion is that it was professionally wrong for Dr. Tackie-Otoo in the same action to act for co-defendant who claimed the headship of the Ebirashaen Ebiradze Stool Family of Essipon on the one hand and the defendant, Sophia Gordon on the other hand. The defendant who made a claim adverse to that of Ebirashaen Ebiradze Stool Family of Essipon.

I find that the trial magistrate misdirected himself on the real issue in dispute between the Plaintiff and the co-defendant. I must point out that on the evidence before the trial court plaintiff and co-defendant had sought the same relief against the defendant. He therefore erred in law when he ordered that co-defendant be joined as co-defendant rather than be joined as co-plaintiff if this was necessary.

The case before the trial magistrate as may be discerned from the record of appeal was that plaintiff and his witnesses had sought to prove and establish by evidence that:

(1) the lands in dispute were stool lands belonging to and owned by the Ebirashaen Ebiradze Stool Family of Essipon; and

(2) that defendant had committed trespass to the land by her adverse claim of title to portions or plots of that land.

Understood this way, what was the need and what was the legal basis for Kwesi Bosom to seek to be joined as co-defendant at that stage of the proceedings to seek the same reliefs and remedy claimed by the plaintiff, especially when the plaintiff had closed his case and the defendant had also closed her case.

The application by Kwesi Bosom to be joined as co-defendant was supported by an affidavit. The reason stated in the affidavit was that Kwesi Bosom was the proper person to sue for a declaration of title to the land in dispute in the Ebirashaen Ebiradze Stool- Family of Essipon. In other words, the plaintiff was not clothed with capacity to sue the defendant. But surely that was for defendant to prove. Co-defendant must seek to join as a co-plaintiff.

The trial magistrate did not appreciate the rival claims put forward by the defendant and co-defendant. He wrote as follows:—

“In their defence the defendant and the co-defendant denied the plaintiff's assertion that the land belongs to the Ebirashaen Ebiradze Stool Family of Essipon.”

This bold statement by the trial magistrate is not supported by the evidence before him. In particular, the co-defendant did not dispute nor challenged the title of the Ebirashaen Ebiradze Family to the land in dispute. At paragraph 3 of the affidavit filed by co-defendant in support of his application for joinder he deposed as follows:—

“3.... I am applying to be joined as a co-defendant to vindicate my family's title to all that piece or parcel of land .... being at Essipon....”

Co-defendant described the capacity in which he sought to be joined at paragraph 2 as follows:—

“2.   That I am the head of the Ebirashaen Ebiradze Family, of Essipon....”

In my view, the trial judge plainly misdirected himself on the claim put forward by the co-defendant. He was wrong when he held that co-defendant disputed the title of the Ebirashaen Ebiradze Stool Family to the land in dispute. Surprisingly the same trial magistrate entered judgment for co-defendant and made a declaration of title to that land in his favour.

In my view, the trial magistrate was wrong in the view he took of the application for joinder brought by co-defendant. The application was ill conceived and unwarranted on the evidence.

The curious and absurd position that resulted in the needless and unnecessary confusion caused and created by Dr. Tackie-Otoo, was that at the end of the day the co-defendant obtained a declaration of title to the land in dispute. He was represented by lawyer Dr. Tackie-Otoo. In the same action he represented defendant, Sophia Gordon who counter-claimed for a declaration of title to portions of the same land. She lost the action. The plaintiff who had sought the declaration of title to the lands in dispute which the trial magistrate found was land for plaintiff’s stool family, nevertheless lost the action.

In my view the plaintiff proved and established by evidence that he had authority and consent of the stool family to sue the defendant in respect of the Essipon Stool Land. The plaintiff gave evidence to establish that he had the authority to commence the action. To corroborate his evidence, he called witnesses. The plaintiff gave the name of one Odum Krah as the over-all head of family.

For the co-defendant, one Kumi Wiabo was named as the over-all head of family. I refer to the court notes on this issue:

“Mr. Lumor (Counsel for plaintiff). Our witness Odum Krah is old and blind. We wish to apply that the count moves to take his evidence at Mpintsim”. This is the head of the family of the plaintiff.

Dr. Tackie-Otoo (Counsel for defendant and co-defendant). I have no objection. The head of family called Kumi Wiabo is so old and we will also want the court to move to his residence and take his evidence.”

It is not clear whether or not Kumi Wiabo is head of defendant's family or head of family of the co-defendant's family.

BY COURT:— Applications are granted as prayed.” In due course Odum Krah gave evidence as PW.3. He testified that plaintiff was a member of the Ebiradze Family. He stated he was the head of family of Ebirashaen Ebiradze. He testified that plaintiff was a member of the Ebiradze Family. He stated he was the head of family of Ebirashaen Ebiradze. He testified that he authorised the plaintiff to prosecute the case before the court. The evidence of P.W.3 that he was head of family of Ebiradze Family was not challenged nor disputed by the defendant or co-defendant. Indeed P.W.3 was in an earlier suit sued by Defendant over the lands in dispute.

This came out as a result of cross-examination as follows: P.W.3

“Q.  Do you know of a litigation involving you and the defendant over Bonkesim land.

A.  I know that. I asked the plaintiff to contest that case.

Q.  This happened 13 years ago.

A.  I cannot tell because I am illiterate.

Q.  You lost the action.

A.  The District Court found for the defendant .......”

The cross-examination of P.W.3 did show that plaintiff was a member of P.W.3’s family and had litigated over the land in dispute. The evidence of P.W.1 was that plaintiff was a member of the Ebiradze Family. This evidence was not disputed nor challenged by cross-examination. On these pieces of evidence from P.W.1 and P.W.3 the finding that plaintiff was not a member of the Ebiradze family cannot be supported; especially when the defendant and co-defendant closed their case without adducing and providing evidence from their so called head of family, Kumi Wiabo. The court had consented to receive Kumi Wiabo's evidence in the comfort of his home. There is no note on record to explain the failure of the defendant or the co-defendant to call Kumi Wiabo, a material witness. The co-defendant claimed he was head of family. His evidence was not corroborated by other evidence on his claim.

I find that the co-defendant was not truthful and candid to the court on the issue whether or not the plaintiff was a member of the Ebiradze Family. In his evidence he stated as follows:—

“I do not know the plaintiff ........

The plaintiff is not a member of the Ebirashaen Ebiradze Family of Essipon .......”

When cross-examined on the status of plaintiff, co-defendant made the following replies.—

Q. During the illness of Nana Abena IV, it was the plaintiff who was the Regent?

A. I do not remember.”

I am amazed that co-defendant could not remember whether or not there was a regency and who the regent was, especially when he claimed that he was head of the family. He was challenged on this claim. He admitted he was not head of the entire family of eleven divisions. This was made clear through the following cross-examination:—

“Q.  How many divisions are in that family?

A.  They are eleven divisions.

Q. Are you head of all the eleven divisions?

A. I am the Ebusuapanyin of Mpintsim and Essipon.”

The finding by the trial magistrate that the co-defendant is the head of Ebirashaen Ebiradze Stool Family is not supported by the evidence before the Court. Co-defendant gave evidence-in-chief that he did not know the plaintiff as a person and as a member of his family. Under cross-examination he reluctantly admitted that plaintiff was a member of his family. The trial magistrate erred in finding that plaintiff lacked capacity to sue defendant.

Indeed the defendant testified that one Kobina Boafo at Inchaban was the head of all eleven divisions of the family. The parties had not invited the trial magistrate to pronounce on the issue of headship of the family of eleven divisions.  I will not make a finding on that issue. The undisputed evidence showed that the plaintiff was a member of the Ebirashaen Ebiradze Stool Family of Essipon. The evidence established and proved the capacity of plaintiff to sue the defendant. The findings by the trial magistrate were plainly wrong. The appellate High Court Judge did not advert, to all evidence on record and came to the wrong conclusion. He casually looked at the evidence and held as follows:—

“The co-defendant stated in his evidence.....that he is head of family of Ebirashaen Ebiradze Family. In my opinion as head of family he has power to prosecute claims in respect of family lands.”

Elsewhere in this judgment I have drawn attention to unchallenged evidence to show that the appellate judge’s finding cannot be supported. He was wrong in holding that co-defendant was head of family.

I find that the appellate judge erred in law in affirming the finding that the co-defendant was the head of family.

Another serious issue of law apparent on the face of the record was the award of damages against the plaintiff. The trial magistrate wrote as follows:

“I find as a fact that the plaintiff without authority has alienated part of the Ebirashaen Ebiradze Family land to strangers. That act of plaintiff amounts to trespass.  I award the co-defendant ¢200,000.00 damages for trespass....”

As pointed out elsewhere in this judgment the co-defendant did not seek that relief, namely, damages for trespass. In any case, the co-defendant did not prove by evidence any trespass committed by the plaintiff in respect of the disputed land.

I am amazed that the High Court Judge did not advert to this serious error of law committed by the trial magistrate. In my view, the fact that this serious error of law was not raised by counsel for plaintiff in his notice of appeal does not excuse nor explain away the award of damages which cannot be supported in law. I find the trial magistrate erred in law in awarding the co-defendant damages for trespass against the plaintiff.

It is for all the reasons given above that I allow the appeal. I set aside the judgment of the High Court, Sekondi dated 20th April, 1993. I set aside the judgment and orders as to damages and costs made by the District Court Grade 1, Sekondi. The damages and costs if paid, should be refunded forthwith. I enter judgment for the plaintiff as per the writ of summons.

G. L. LAMPTEY

JUSTICE OF APPEAL

FORSTER, J.A.

I agree.

A. A. FORSTER

JUSTICE OF APPEAL

GBADEGBE, J.A.

On the 12th day of August, 1991, the District Magistrate Grade 1 Court holden at Sekondi, entered judgment in the action herein in favour of the Co-defendant. The Plaintiff being aggrieved and dissatisfied with the said delivery appealed to the High Court, Sekondi seeking to have the judgment set aside on the following grounds:

(1) The Learned Trial Magistrate erred in holding that the plaintiff had no capacity to institute the action.

(4) The Learned Trial Magistrate erred in giving judgment for the co-defendant when he had not counter-claimed for any relief at all.

The said appeal proceeded to a hearing after which the Court dismissed the same and affirmed the decision of the trial court. The plaintiff (appellant) again being dissatisfied with the determination of the said appeal lodged a petition of appeal to this Court on the following grounds:

(1) The Learned Trial Court Judge erred in dismissing the appeal when it had been clearly demonstrated from the record that:

(a) The Learned Trial Magistrate's judgment was against the weight of evidence and

(b) The Learned Trial Magistrate was wrong to have given judgment for the co-defendant on a non-existent counter-claim.

So formulated, the second ground arises in my view purely a point of law, whiles the first one turns upon consideration of mixed questions of fact and law. I shall in the delivery deal first with that which is purely legal namely:

“The Learned Trial Magistrate was wrong to have given judgment for the co-defendant on a non-existent counter-claim.”

Whiles counsel for the appellant contended in his statement filed under the rules of this court that in as much as the co-defendant had not entered a counter-claim in the action in compliance with the rules of the trial court, there was no counter-claim in respect of which a judgment could be based in his favour, the co-defendant (Respondent) by his solicitor contended that the judgment on a counter-claim which was filed by the Defendant was proper.

Dealing with the said point there is no doubt from the record of proceedings that the co-defendant never set up a counter-claim as provided for under the rules of the trial court in particular, order 18, rr.3 and 4.  It being so, in my opinion there was on the part of the co-defendant a breach of the rules which was of a fundamental nature which could not have been waived either by the other parties to the action or by the court. The effect of this is that there was no counter-claim before the court by the co-defendant which could legitimately have been the basis of a decision in his favour. The co-defendant in my opinion had not taken the required step which could have the effect of constituting an effective counter-claim in his favour and as such there was none which could have been acted upon by the Court. I wish to note that based on the admitted facts it would appear that the court suo motu set up a counter-claim on his behalf without notice to the other side.  I think so viewed it is quite clear that the consideration by the court of such a claim was wrong. (See (1) Micah vrs: Bruce (1971) 1 GLR.153). It being so I think that Learned Counsel for the appellant was right in his submission that the learned trial magistrate acted on a non-existent counter-claim, the effect of which is that the ground of appeal numbered as (2) which touches the said counter-claim succeeds. Accordingly, the judgment purported to have been entered in favour of the co-defendant on the alleged counter-claim is hereby set aside.

I also wish to say as regards the said counter-claim that since the co-defendant from the evidence claimed through the same root as the Appellant, i.e. on behalf of the Ebirashaen Ebiradze Family of Essipon, if indeed he had set up a counter-claim in compliance with the provisions of the trial court the court would not have allowed it on the ground that it did not raise competent claim against the plaintiff. I doubt if a person who claims the same reliefs and in the same right as another can set up a claim in the nature of counter-claim against that other person. On this point I wish to refer to the case of Turner vrs: Hedeford Gas. Co. (1878) 3 Ex D. 145 particularly the judgment of Cleasby B at 146 when he observed as follows:

“This case has been fully argued and we have arrived at the conclusion that this counter-claim ought not to stand in its present form.

The ground on which we act is that a counter-claim must seek a relief against the plaintiff either separately or jointly with some other person. That has been decided and the very nature of a counter-claim requires it”.

I now turn to the first ground of appeal which was expressed in the following words:

“The Learned Trial Magistrate’s judgment was against the weight of the evidence.”

I think that this ground seeks to impeach the finding of the High Court which affirmed that of the trial Court on the question of as between the plaintiff and the co-defendant who had the requisite capacity to mount an action on behalf of the Ebirashaen Ebiradze Family. In my opinion, having regard to the overwhelming evidence on the record that the land belonged to the said family,  I think that as between the two of them, he who is found to have the requisite capacity either as head of the family or by way of authorisation is entitled to sue out an action. I have attended to the submissions filed by counsel in compliance with the rules of this court and after a careful consideration of the admitted evidence contained in the record of proceedings, I have come to the view that the appellant had the requisite capacity. Whiles his evidence to having been authorised by the family was acknowledged and supported by the evidence of other members of the family including in particular, PW.3, the co-defendant’s assertion was bare and considering also the fact that the challenge to the capacity which the appellant asserted was that he was not a member of the family and that P.W.3 was also not the head the said challenge was the end of the day, unsupported by the evidence. I think that the appellant has been able to discharge the burden on him. Again, assuming that the appellant was unable to prove that he was authorised by the family, I am of the view that the acts of the Defendant were in their nature such that the appellant as a member of the family which owned the land was obliged in the communal interest to take steps to have the said interest protected. The result is that I am of the view that the finding of the trial court as affirmed by the High Court on the issue of capacity was wrong and accordingly it is desirable that this court intervenes to set aside the said finding and substitute the place thereof that in taking out the action herein the appellant had the requisite capacity on behalf, of the Ebiraghaen Ebiradze Family of Essipon. This being so, if the defendant’s contention of res judicata based on Exhibit 1, a judgment in a previous action does not affect the ownership of the said family, then in my view, the appellant is entitled to the relief which he seeks by the writ of summons. I have examined the said judgment as well as the other processes founded on the writ which is alleged to have resulted in the same, and I am of the view that apart from being unable to prove that the identity of the land in contention in the present action is the same as that previously contested in Exhibit 1, the defendant was unable to prove mutuality which is the ground on which a person may take advantage of a previous judgment. On this point, I wish to refer to the learned authors of Halsbury Laws of England, vol. 16, 4th Edition. paragraph 1550 at 1046 as follows:

“The question of who may take advantage of an estoppel is in general governed by the rule that estoppels ought to be mutual. The only persons who can take advantage of an estoppel by record are those who had the decision been the other way would have been bound by it, that is to say, in case of a judgment inter parties or in persona, the parties and their privies. It is not enough that the person against whom the estoppel is set up was a party or privy to the judgment relied on each party to the later proceeding must have been party or privy to the earlier one. It follows that the only people who can take advantage of an estoppel are those who claim to defend in the later proceeding in the earlier action.” (See Ansah Addo vrs: Addo and Ansah Addo (1972) 2 GLR.400 (CA.))

I have examined the record carefully and I am of the view that the Defendant was unable to discharge the burden which lay on her in her assertion of estoppel by a previous judgment i.e. res judicata and that the mere fact that P.W.3 is a member of the appellant’s family is not enough to ground a finding of estoppel as the trial magistrate did find. I think that a perusal of the record would reveal that P.W.3 who was the 3rd Defendant in that case fought the case as property which belonged to his deceased father, and as such he did not defend the action in the same right as the appellant in the instant action. I think that merely making a finding of estoppel on the basis that a person was a party in a previous suit without showing that the said person and the one in the present action either sued or defended in the same right is too simplistic and or a narrow view of the rule of estoppel by judgment. I therefore find that there was no privity between the appellant and P.W.3 the third defendant in exhibit ‘1’ and accordingly the finding to that effect being wrong is hereby set aside.

Further, in my opinion since the Defendant in her own evidence admitted that the land actually belonged to the appellant’s family which made a gift to her of a portion, I think that her failure to prove quite clearly the area carved out for her was fatal to her claim. It is quite clear that the land continued to belong to the said family as indeed the record as found by the learned trial magistrate revealed. Having earlier on found that the appellant had the requisite capacity to institute the action on behalf of the Ebirashaen Ebiraze Family, I think that he is entitled to the declaration which he seeks in respect of the lands described in the indorsement to the writ. I am also of the view that having being adjuged the owners of the said lands, the family is entitled to an order of restraint directed against the defendants of a permanent nature in view of her acts which were done purposely to challenge the family's claim to the lands. Accordingly, the Defendant is perpetually restrained from interferring with the quiet enjoyment of the Plaintiff's family, i.e. the Ebonkessim and Abankan lands which are particularly described in the writ of summons herein.

I now turn to the issue of trespass. In my thinking the acts of the plaintiff in alienating portions of the land and plucking coconut therefrom are acts of interference rooted in trespass which have occasioned loss to the family. Such a loss in my opinion is one which may be the basis of an award in damages which having regard to the evidence I allow at ¢500,000.00 which I consider fair and reasonable. The appellant would therefore have by way of damages for trespass ¢500,000.00 against the defendant. The result is that the judgment of the trial court as affirmed by the High Court, Sekondi, is hereby set aside and in place thereof judgment is entered in favour of the appellant on the reliefs which appear in the indorsement to the writ of summons.

N. S. GBADEGBE

JUSTICE OF APPEAL

COUNSEL

Bedza Lumor for the Plaintiff/Appellant

Dr. Tackie-Otoo for the Co-defendant/Respondent.