plaintiffs claim was that his grandfather by name Nyamkyume Atiar was the first person to found and settle on a vast portion of land, which included the land in dispute. After the death of his grandfather the land in dispute devolved on his brother by name Kpeakaa Taku-Nyaga. The boundaries of the land were given in evidence by the plaintiff who testified as PW I. The Northern boundary of the said land was said to be on Orasoho pond. The defendants on the other hand were said to have hailed from Mba-Ayongo, with their grandfather named Obande. However, after the death of their grandfather, the father of the defendants migrated and came to Kpeakaa, who had taken over from the plaintiffs grandfather as Head of Family. The defendants father then asked Kpeakaa to give them somewhere to settle. That one obliged by showing them an area over the Northern boundary of the Orasoho pond or river. The Orasoho pond or river was said to be the boundary between the area given to the defendants father, and the area retained by the plaintiff and his ancestors. The defendants were strictly warned not to cross the Orasoho river. That in unction was observed as long as their father was alive. However after their father died, the defendants began to cultivate across the Orasoho pond to the area occupied by the plaintiff not only did defendants cultivate yam on the land, sometime in 1992, the second defendant started moulding blocks to build house on the plaintiffs side of the land. All efforts to make defendants refrain from encroaching on plaintiffs land failed, hence this action was instituted first by the present plaintiffs father. But when that one began to be seriously ill, his son, the present plaintiff was brought to substitute him and continue with the action.

In their defence the two defendants testified and denied the allegations made against them. The 1st defendant said he was staying on his own land which he inherited from his father by name Tiza. He said as at the time his father settled on the land, it was a vast forest and there was no other person on the land. When Tiza died the land devolved on Bamuum, the father of 2nd defendant, who also farmed on the land. After the death of Bamuum the land devolved on Toosu Tiza. 1st defendant said he was a first blood brother of Yoosu in that he was his immediate younger brother. Among the things which their ancestor Tiza did on the land was that he established a primary school on the land named after him. He also established a Catholic School as well as a Clinic.

As at the time the defendants settled on the land the plaintiffs father was at Tse-Iortya, at Mba-asom in Ygbaam, a kindred in Sherer District which was a distance of about four miles from wheofe the defendants lived at Tizas compound. It was much later that the plaintiffs crossed over Kafe stream to the Defendants own side and settled near to them. The plaintiffs did not seek permission from anybody before they settled where they did. They settled there on their own. The defendants said nothing to the plaintiffs because the area on which they settled was not their own.

The trial Area Court entered judgment in favour of the appellant. Respondents dissatisfied appealed to the Customary Court of Appeal which, at the end of the day, came out with a split decision with the majority allowing the appeal, setting aside the judgment of the trial court and ordering a re-trial, while the minority found for the appellant and dismissed the appeal outright without awarding cost.

Appellant dissatisfied with the majority decision appealed to the Court of Appeal.