KWAKYE vs. TUBA AND OTHERS [1961]DLHC5515

Date	1961-11-27
Suit No.
Citation No.	[1961]DLHC5515

OLLENNU J.

N. OLAGA FOR T.A. TOTOE FOR THE PLAINTIFF

K. SAKYI FOR OSEI BONSU FOR THE DEFENDANTS.

[1961]DLHC5515
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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">KWAKYE<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">&nbsp;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">TUBA AND OTHERS<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, ACCRA]<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 720&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"> 27TH NOVEMBER, 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">

N.
OLAGA FOR T.A. TOTOE FOR THE PLAINTIFF.<o:p></o:p>

K.
SAKYI FOR OSEI BONSU FOR THE DEFENDANTS.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF
OLLENNU J.<o:p></o:p>The plaintiff instituted this action in his capacity as successor
according to customary law of one Kwasi Kuma of Asokore, New Juabeng, and
claimed (1) declaration of title to a piece of land with farm thereon situate
at Bukruwa in Kwahu, (2) injunction, and (3) account of the proceeds of the
said farm. The defendants are children of one Kwasi Panin, deceased, who was
elder brother to the said Kwasi Kumah. Both the said Kwasi Panin and the said
Kwasi Kumah were Muslims.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff pleaded that after he had entered upon his office as
successor aforesaid, he voluntarily entered into agreement with the defendants
whereby he placed them in charge of the farm, and was to give them annually,
one-third of the proceeds of the said farm, further, that the defendants
adhered to the terms of the said agreement for two years, but repudiated the
same at the beginning of the third year, i.e. the beginning of 1960-61 cocoa
season, denied his title to the said farm, drove away his, the plaintiff’s
caretaker from the land, and wrongfully occupied the same, and have continued
in such occupation.<o:p></o:p><o:p>&nbsp;</o:p>The defence is that the plaintiff is not successor to the said
Kwasi Kumah, and further that by Muslim law, Kwasi Kumah having died without
issue the defendants, children of his brother, succeeded to his estate.<o:p></o:p>Kwasi Panin and Kwasi Kumah belong to the Asona clan or family of
Asokore, New Juabeng. That clan or family has three groups: they are:- Adonten,
Tuafo, and Akyeame groups; each group has a stool with an occupant and also has
a head.<o:p></o:p>Four witnesses gave evidence for the plaintiff each of them proved
himself to be a truthful witness. The first of these, Kwasi Boadi, is an old
man over 90 years old, his sight has become defective, but his memory is clear,
his thinking logical, and he showed sound knowledge of the customary law
relating to succession; he was most impressive. The witnesses for the defence,
in contrast to those of the plaintiff, proved themselves to be most unreliable.
The last of the defence witnesses, Kojo Apaw, head of the Akyeame group of the
family after he had told so many deliberate lies was compelled to admit that he
had given evidence in a local court in connection with the succession to the
same Kwasi Kumah, that in the course of that evidence he had deposed that the
whole family met and appointed the plaintiff successor to the said Kwasi Kumah,
and that upon his said appointment the plaintiff paid an aseda of 24s. as fee
to signify his acceptance. He said that that evidence he gave in the local
court is true. In view of that admission of Opanin Kojo Apaw, head of the
Akyeame branch of the Asona family, which admission corroborated the evidence
of the plaintiff and his witnesses, which evidence I accept, I hold that the
plaintiff was appointed successor to the said Kwasi Kumah and he took office
immediately upon his said appointment.<o:p></o:p><o:p>&nbsp;</o:p>It was submitted by learned counsel for the defendants that the
appointment of the plaintiff as successor to Kwasi Kumah is null and void on
the following grounds:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1) Because by
customary law only the members of the Akyeame group of the family should have
carried out the appointment, and the participation of the other two groups
rendered it null and void;<o:p></o:p>