GYASI vs. NTEM AND ANOTHER [1961]DLHC5391

Date	1961-10-16
Suit No.
Citation No.	[1961]DLHC5391

APALOO J.

S. A. WIREDU FOR THE PLAINTIFF-APPELLANT.

Y. B. AMOATIN FOR THE DEFENDANTS-RESPONDENTS.

[1961]DLHC5391
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">GYASI <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">NTEM AND ANOTHER<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[HIGH COURT, KUMASI]<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">

<p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">[1961] GLR 569&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;DATE:<span style="font-size:10.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0"> 16TH OCTOBER, 1961.<o:p></o:p>

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

S.
A. WIREDU FOR THE PLAINTIFF-APPELLANT.<o:p></o:p>

Y.
B. AMOATIN FOR THE DEFENDANTS-RESPONDENTS.<o:p></o:p>

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

APALOO, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
APALOO J.<o:p></o:p>This is an appeal from the judgment of the Amansie Local Court
delivered on the 23rd November, 1960. That judgment dismissed a claim by the
plaintiff for a declaration of title to a cocoa farm said to be lying at a
place called Nsiena.<o:p></o:p><o:p>&nbsp;</o:p>The facts of the case, to my mind, present no difficulty. It would
seem that the farm in dispute was originally cultivated by a man called Opanyin
Asare Kojo. He appears to have died intestate and by the canons of customary
law, it became family property. A man whose name was given as Bekoe succeeded
Asare Kojo and became possessed of the farm. Another member of the late Asare
Kojo’s family who in course of time succeeded Bekoe to this farm was a man
called Kewuo. According to the first defendant both Bekoe and Kewuo raised a
loan of £G800 from him. After they had paid £G100 the farm in dispute was
mortgaged to him to secure the repayment of the balance of £G700 due. The
mortgage deed was tendered in evidence and was the subject of considerable
criticism by counsel for the appellant. It was signed by Kewuo as mortgagor,
and by Yaa Dentah, another member of the family, as surety.<o:p></o:p><o:p>&nbsp;</o:p>It would seem that this debt was outstanding when both Bekoe and
Kewuo died. The first defendant said the plaintiff and members of his family
made part payment of the debt. I reckon this from the evidence to be £G110.
When the debt was reduced to £G590 the plaintiff and his family by themselves
raised a further sum of £G50 from the first defendant. This sum was added to
the original debt owed by their deceased predecessors, Bekoe and Kewuo, to make
the debt amount to £G640. The first defendant testified that he allowed the
plaintiff and his family to pluck the cocoa from the farm mortgaged to him but
they apparently used the proceeds for themselves and defaulted in paying the
debt. Accordingly he exercised the power of sale conferred on him by the
mortgage deed and sold the farm to the second defendant. The plaintiff
complained that the sale was collusive and irregular and claimed to have it set
aside, and the title of his family declared. The local court magistrate
decided, so I read his judgment, that the plaintiff and his family ratified the
mortgage transaction and adopted the debt, and proceeded to dismiss the
plaintiff’s claim.<o:p></o:p><o:p>&nbsp;</o:p>Against that judgment, the plaintiff appeals to this court on ten
grounds, two only of which were argued. The first ground of appeal was that the
“Judgment of the local court magistrate is wholly and entirely against the
weight of evidence”. I confess that try as I may, I could not completely follow
the argument that was urged in support of this ground. I understand it to be
something like this. That Kewuo falsely swore an affidavit in which he claimed
to be the owner of this farm. It was said that as the magistrate found that the
farm was originally cultivated by Asare Kojo, he ought to have held the
mortgage invalid. It was also said that the family did not know that Kewuo
mortgaged the Nsiena farm in addition to his own farms. In my opinion, whether
Asare originally owned the farm or not was not strictly of great importance.
What seems to me material is the fact that at sometime in the history of this
farm Kewuo on behalf of the family became possessed of it. Whether the farm was
mortgaged in the first instance with the knowledge of the family or not, there
was abundant evidence that after Kewuo’s death members of the family became
aware of this mortgage and by conduct clearly adopted it. The family clearly
cannot be allowed to approbate and reprobate in the same breath. Contrary to
the submission made by counsel on this ground, I am clearly of opinion that the
evidence in support of the judgment is more than overwhelming.<o:p></o:p><o:p>&nbsp;</o:p>