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KOJO OKU
V.
AKOSUAH EDUYAAH
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
10TH DAY OF DECEMBER, 1951
2PLR/1951/39 (WACA)
OTHER CITATION(S)
2PLR/1951/39 (WACA)
(1951) XIII WACA PP. 334-335
LEX (1951) – XIII WACA 334-335
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.
KORSAB, J.
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BETWEEN:
KOJO OKU alias B. C. BAIDOO OF AYAN SUNKWA — Defendant, Judgment, Debtor, (Opposer) Appellant
AND
AKOSUAH EDUYAAH SUCCESSOR OF OWUSUAH (deceased) OF AYAN SUNKWA — Plaintiff, Judgment Creditor (Opposer) Respondent
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ORIGINATING COURT(S)
Appeal from Order of Land Court, Central Judicial Division, W.A.C.A. CIV. APP. 126/49
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REPRESENTATION
C. F. Hayfron-Benjamin — for the Respondent
K. Adumua-Bossman — for the Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Trespass – Where court finds insufficient evidence to justify a finding that the defendant was responsible for the trespass, and where to grant the relief sought would probably result in an interference with the rights of parties not before the Court – Proper procedure for court to take
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION:- Motion for Writ of Restitution of Possession – Circumstances in which this procedure is applicable
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CASE SUMMARY
The appellant was the defendant.
The plaintiff moved the Land Court for “Restitution of Possession” of the land as against the defendant. The Land Court granted the plaintiff’s motion being satisfied that the farmers claiming under the defendant were rejected and returned to the land.
The issue on the appeal was whether there was sufficient evidence to justify this procedure and whether the defendant was properly made a party.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. There was insufficient evidence to justify a finding that the defendant was responsible for the trespass, and to grant the relief sought would probably result in an interference with the rights of parties not before the Court.
2. The proper procedure was to take proceedings for trespass against the persons alleged to be the actual offenders.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
In June, 1943, the plaintiff-respondent took proceedings in the Court of the Commissioner, Cape Coast, which resulted in his obtaining a Writ of Possession in respect of the land with which we are concerned on this appeal.
From his own affidavit, at page 16 of the record, it would appear that prior to the proceedings which resulted in this appeal, the plaintiff remained in peaceful and undisputed possession of the land for a period of years.
In the Court below the plaintiff alleged that members of the defendant’s family, at the latter’s instigation, had trespassed upon the land, but no satisfactory evidence was tendered in support of the allegation that the defendant was responsible for such trespass.
The plaintiff’s motion asked for an order of “Restitution of Possession” of the land as against the defendant.
In his judgment the learned trial Judge stated, “I am satisfied that the farmers claiming under Oku were ejected and returned to this land,” and although he appears to have been doubtful about what he referred to as “an archaic procedure” he directed the issue of a Writ of Restitution of Possession.
In my opinion there was insufficient evidence to justify a finding that the defendant was responsible for the trespass complained of. That being so, I am of the opinion that the defendant should not have been made a party to the proceedings. To grant the relief prayed for, in these circumstances, would probably result in an interference with the rights of parties who are not before the Court.
Moreover, a writ of restitution of possession is not, in my view, the proper remedy to seek in a case such as this. It seems to me that it would have been more satisfactory if proceedings for trespass had been taken against those persons alleged to be the actual offenders.
We have been referred to Mather on Sheriff and Execution Law, in support of the proposition that restitution of possession is the correct remedy to seek in a case such as this, but it would appear from that learned author that the procedure is only adopted in England in cases where a party has lost property by a judgment and the judgment is afterwards reversed, and in cases where a plaintiff has been put in possession by the Sheriff and the defendant forcibly or by stratagem resumes possession of the property.
For the reasons I have already stated, I am of the opinion that the order of the Court below should be set aside and that this appeal should be allowed with costs fixed at £35 4s. 6d. Any costs paid by the defendant to the plaintiff in respect of the proceedings in the Court below to be refunded.
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COUSSEY, J.
I concur.
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KORSAH, J.
I concur.
Appeal allowed.
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