KINGDON, CJ., NIGERIA, PETIDES, CJ., GOLD COAST AND DOORLY, J.
In this case the plaintiffs-appellants caused to issued on the 7th May, 1940, a summons in the Highest Native Tribunal of Big Ada to the defendants in the following terms:-
“You are commanded to attend this Tribunal at Big “Ada on Monday the 24th day of June, 1940, at 8.30 o’clock “a.m. to answer a suit by Chief Sakpagu, Kuedoadji “Gakpetor and Kofi Djivor for themselves and as “representatives of Agomenu Adelakpui families of Wlite and “Moyi against you.
“The plaintiffs’ claim is that the Agomenu-Adelakpui “families are the owners of all that piece or parcel of land “commonly known and called ‘Gogenu land’ situates and “being in the Ada and Anlo (Awuna) States and bounded “as follows”- On the East by Worwoe River, Terve Town and “Agordoe Town, on the West by Boatri village and Fieve “Tribal lands, on the North by Wuta family land, on the “South by Gbenyigbenyi and Haho Creeks with all the “economic trees and creeks thereon namely:- (1) Aforhie “Creek (2) Srotor Creek (3) Srotorvia Creek (4) Lebetorwa “Creek (5) Likor Creek (6) Agortor Creek (7) Menyemidenu- “wome Creek (8) Yaduta Creek (9) Betorwu Creek (10) “Klanufoe Creek (11) Asiatavai Creek (12) Asiataga Creek “(13) Gagorme Creek (14) Agbotorwu Creek (15) Akpatorwu “Creek (16) Shitorwu Creek (17) Djorkplor Creek “(18) Kortale Creek (19) Datorwu Creek (20) Alatowu Creek “(21) Ekpatorwu Creek (22) Nyakpe or Deka Creek.
“11. £500 damages from the defendants jointly and “severally for trespass committed by the defendants by “entering upon occupation and use of the said piece of land “and fishing in the said creeks thereon and for interference “with the peaceful possession and occupation of the plaintiffs.
“111. An order of perpetual injunction restraining all “the defendants jointly and severally, their agents, servants “and labourers from interfering with the said piece of land “and the Creeks thereon.” Amended in Court on 23.5.41.
On the 16th September, 1940, the Court of the Provincial Commissioner, Eastern Province, stopped the case in the Tribunal and transferred it to the Divisional Court. In the Divisional Court pleadings were ordered and filed. The statement of Claim is as follows:-
“1. The plaintiffs are the heads and representatives of the “Agomenu Adelakpui families of Wlite and Moyi in the Awuna State in the Keta District.
“2. The plaintiffs are also the present successors according to “Native Customary Law of their ancestors Agomenu and Adelakpui “respectively.
“3. The plaintiffs derive title to and claim the land in dispute “more accurately described hereunder through their said ancestors “Agomenu and Adelakpui whose families they represent:
“4. The plaintiffs immediately descended from the defendants “in a case entitled ‘Ahiaku v. Djivoh., Asiegbe, Sakpaku and Dei, “in respect of and concerning the said land in dispute, decided in “favour of plaintiffs’ immediate ancestors that is to say defendants in “the case at the Provincial Commissioner’s Court, held at Keta, on or “about the 9th day of September, 1907.
“5. The judgment in said Case in paragraph 4 supra was confirmed “on appeal in favour of plaintiffs immediate ancestors.
“6. The first defendant herein is the son of the plaintiff Ahiaku “in the case referred to in paragraphs 4 and 5 supra, and the other “defendants are the agents and servants of the first defendant herein. “7. Without permission, leave or licence of the plaintiffs the “defendants have for some time been cultivating and cutting down “economic trees on the said land in dispute, and in various ways been “interfering with the agents or servants of the plaintiffs on the land “in dispute,
“8, Plaintiffs therefore claim for themselves and as representatives “of the Agomenu-Adelakpui families of Wlite and Moyi (1) a Declara- “tion of title or ownership of Gogenu Land, the land in dispute; “(2) £500 damages from the defendants jointly and severally for “trespass committed by the defendants by entering upon, occupying “and using the said land in dispute, and fishing in the creeks thereon “and for interfering with the peaceful possession and occupation of “the plaintiffs. and (3) an order for Perpetual Injunction restraining “all the defendants jointly and severally their agents, servants or “labourers from interfering with the said land in dispute and the creeks thereon. “9. The land in dispute is accurately described as: ‘All that “piece or parcel of land commonly known and called ‘Gogenu Land” “situates and being in the Ada and Anlo (Awuna) States and bounded “as follows.",: --On the East by Worwoe River Terve Town and “Agordoe Town; on the West by Boatri Village; on the North by “Wuta family land; on the South by Gbenyigbenyi and Haho Creeks “with all the economic trees and creeks thereon namely (1) Aforhia “Creeks (2) Strotor Creeks; etc”
*Page 79 and the defence as follows:- “1. The first defendant, Chief Lugu Ahiaku, is a native of Adutor “in the Agave District under the Paramountcy of Ada and is the, “head and representative of the Anyigbe Tribe of Agave in natural “succession to his father Kwasi Ahiaku of Adutor.
“2. The other defendants herein are also natives of Agave and are “agents, labourers and tenants of the first defendant living on the “land known as the ‘Gowenu Land’ the property of the Anyigbe “Tribe.
“3. The land the subject matter of this suit is situate lying and “being at Agave and formed boundary with the Avenos by the Tordjen “River and not in the Anlo (Awuna) State.
“4. The plaintiffs and defendants herein are privies and “successors respectively in a matter entitled ‘Ahiaku v. Djivoh and “Others, Divisional Court, 1906’.
“5. The defendants do not admit the allegations contained in “paragraphs 4, 5 and 7 of plaintiffs’ Statement of Claim.
“6. The defendants have been and are still in undisturbed “possession of the land now in dispute within the legal period of “prescription.
“7. Save as expressly admitted, all the allegations in the Statement of Claim are denied as fully as if the same were specifically set “out herein and traversed seriatim and say that the plaintiffs are not “entitled to any of the several reliefs claimed against the defendants” ,
At the outset of the hearing before Strother-Stewart, J., a number of documents were put in by consent. The first and most important of these is a Government Survey Map (Exhibit “A”) on which the land in dispute is said in the record to be marked with a blue line round it. This is not quite accurate. The blue line shows the whole land claimed by the plaintiffs-appellants. The Todje River runs through it from north to south dividing it into two parts, of which the western is by far the larger. There is no dispute about the eastern portion, that is admittedly the plaintiffs- appellants’ and their principal town or village named Moyi is situated in this portion in the north eastern area of the land claimed; nor is there any suggestion that the defendants- respondents have trespassed on land east of the Todje. The dispute is as to the whole land west of the Todje River enclosed by the blue line and it is a very large area. In addition the following documents were put in- By the plaintiffs: Certified copy of the proceedings of the Provincial Commissioner’s Court held at Keta, on or about the 9th September 1907, in the case of Ahiaku v. Djivoh, Asiagbe, Sakpaku and Dei. (Exhibit “B” ). Certified copy of proceedings in the case of Chief Sakpaku v. Dot Worwni Ndokutse Adzoko Sera Gla, heard on the 28th March, 1904, by the District Commissioner at Keta. (Exhibit “C “).
Certified copy of proceedings in the case of Kwashie Ahiaku v. Gicor, heard at Quittah on the 6th January, 1906, by the District commissioner. (Exhibit “D” ). By the defendants:-
Certified copy of a judgment of Division Court delivered at Ada on the 20th August, 1906, by His Honour Frans Smith, Acting Chief Justice, in the cases of Ahiaku v. Djivoh, and Ahiaku v. Ayigbey. (Exhibit “E”).
By the plaintiffs:- Certified copy Order setting aside judgment set out in Exhibit “E”, made by His Honour Sir W. Brandford Griffith, Chief Justice, at Accra, on the 4th February, 1907. (Exhibit “F”).
Certified copy of proceedings in Divisional Court at Keta, before His Honour Sir W. Brandford Griffith, Chief Justice, on the 5th and 9th November, 1908, on appeal from the judgment set out in Exhibit “B”. (Exhibit “G” ).
After an exhaustive haring the learned trial Judge gave judgment as follows after explaining the issues:-
“It was clear from the evidence that the great majority “of those living on the western side of the River Todji were “Aggravie men, and that they had lived there for many “generations, and that almost all, if not all, of the villages “there today, were founded by Aggravie men. They owned “no allegiance to plaintiffs, have consistently refused to pay “tools to plaintiff , or their, ancestors, and as far back as 1904 “were vigrous1y prosecuting the ancestors of plaintiffs, or “their people for trespass, if they came across the River Todji “on to their land Since the last case in 1907, up to 1940, “when a case came before the Magistrate’s Court at Keta, “which led to the institution of the present case,-plaintiffs “have made no active claim to the land on the west side of “the River Todji, or tried to enforce payment of tolls.
“There is little, if anything, to choose between the “traditional histories set up by plaintiffs and defendants. “Both sides claim descent from a common ancestor called “Awedali. He is said to have been an Aggravie man, and a “member of the Anyigba trobe, to which defendants belong. “This is also asserted by Agba, who gave evidence for “plaintiffs and appears to be a sort of Quisling working on “behalf of plaintiffs
“The cases between ancestors of both plaintiffs and “defendants which occurred between 1904 and 1907 are very “confusing so far as the localities in which the alleged “trespasses are alleged to have taken place are concerned. I “do not think they can be considered res judicata so far as “the present case is concerned. By no stretch of imagination “can it said that the land described in them covers any “thing like the amount of the land claimed in the present cases.