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it was not a land case, but the defendant cross-examine he plaintiffs' witnesses throughout and led evidence to establish that the family Stool was found by Ampia Koko of the defendant's house, that the Ampia Koko house had broken away from the other three houses of the Yego family taking the Stool and lands away with it, and that the title to all the land in issue is now in the defendant’s Ampia Koko house as owners and not in the wider Yego family. At page 31 of the Record the defendant testifies that the lands being claimed were acquired by Ampia Koko. Two plans of land ere put in evidence. The Native Court held, incidentally, in decreeing delivery up of the lands and other properties claimed, that the defendant had been removed from the Headship of the Yego family. The main issue of fact , however, substantially raised in the suit and decided, is the ownership 0 he lands. That was the real matter directly in controversy in the case. my opinion the removal of the defendant was only ancillary to the main se, and was necessarily averred and proved by the plaintiffs as a proposition to show their right to claim possession of the lands and other property. Equally, the allegation of a joint family was incidental to the jus tertii set up b the defendant although he was not sued as representing the Ampia Koko family.
The learned Judge of the Land Court therefore erred in declining jurisdiction and in remitting the appeal to the Magistrate’s Court.
I would, therefore, allow this appeal with costs at £60 18s. 0d. and order that the appeal from the Native Court be heard and determined by the Land Court, Cape coast.
Foster-Sutton, P. I concur. Hearne, J.A. I concur.
Appeal allowed; case remitted to the Land Court.