SARPONG vs. YENTUMI & ANOR [1959]DLHC2058

Date	1959-06-01
Suit No.
Citation No.	[1959]DLHC2058

OLLENNU J.

DR. J. B. DANQUAH FOR DEFENDANTS (APPELLANTS).

MOORE FOR PLAINTIFF (RESPONDENT).

[1959]DLHC2058
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													<main id="main" class="content" style="min-height: 60rem" >SARPONG <o:p></o:p>vs. <o:p></o:p>YENTUMI &amp; ANOR<o:p></o:p>&nbsp;[HIGH COURT (LANDS DIVISION), ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1959] GLR 250<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
1ST JUNE, 1959.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DR. J. B.
DANQUAH FOR DEFENDANTS (APPELLANTS).<o:p></o:p>

MOORE FOR PLAINTIFF
(RESPONDENT).<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.<o:p></o:p>(His
lordship referred to the pleadings, and proceeded:-)<o:p></o:p>The most
important point which learned counsel for the defendant has made is that on the
face of the writ of summons itself, and upon the whole evidence, the claim is
one for succession, not one relating to ownership, possession and occupation of
land.<o:p></o:p><o:p>&nbsp;</o:p>The law,
as I understand it, is this: where two persons claim to be entitled to land by
right of succession to one and the same person, that suit is one of succession.
The real issue the Court would have to decide is which of the two contesting
parties is the successor to the deceased. The declaration that the successor is
entitled to possession and occupation of the land is merely consequential as a
right vested in the successor, it is not an issue in the case. But where two
persons claim land, one as successor to one person (e.g. his ancestor Mr. A),
and the other as successor to another person (e.g. his ancestor Mr B), that
claim, though based upon succession, is not a case of succession, It is a claim
for declaration of the title of either the ancestor Mr. A, or of the ancestor
Mr. B, and the plaintiff can only succeed if he is able to prove the title of
his ancestor (Vanderpuije v. Botchway ([1956] A.C. 105), and the judgments of
the West African Court of Appeal there cited).<o:p></o:p><o:p>&nbsp;</o:p>Upon that
principle, and in order to ascertain whether the claim is one of succession or
of title of land, I shall now examine the evidence led by the parties.
According to the plaintiff, the virgin forest was originally cultivated by his
ancestor, one Dentah;. upon the death of Dentah one Afua succeeded to the farm;
upon Afua’s death Kwame Antwi succeeded; and he (the plaintiff) has succeeded
to Kwame Antwi. He says that when Afua succeeded to the farm she invited one
Gyeiwah (mother of the 1st defendant and grandmother of the 2nd defendant), who
belonged to the same clan as herself, to come and live with her at Asokere, and
thereupon placed her in charge of the farm now in dispute as caretaker, but
never made a gift of the farm to Gyeiwah in accordance with native custom. When
Antwi succeeded to the farm he permitted Afua Sarpong (successor, according to
native custom, to her mother Gyeiwah) to remain in possession of the farm. When
Antwi was ill however, he sent for the 2nd defendant, who had succeeded his
mother Afua Sarpong and was in possession of the farm, and informed him that he
was going to dispose of this farm to which he (Antwi) had succeeded, in order
to raise money for his medical treatment, and the 2nd defendant agreed to it.<o:p></o:p><o:p>&nbsp;</o:p>The case
of the defendants, on the other hand, is that Gyeiwah was the one who
originally cultivated the virgin forest, that she was succeeded by Afua Sarpong
and that the 1st defendant is the present successor to Afua Sarpong.<o:p></o:p><o:p>&nbsp;</o:p>It is
clear, therefore, that although each of the parties bases his claim upon a
right of succession, what the plaintiff is really saying is that the farm is
his because it was acquired by his ancestor Dentah; the contention of the
defendants, on the other hand, is that the farm belongs to the 2nd defendant,
because it was acquired by his ancestress Gyeiwah. Upon the principle I have
stated this canno</main>