ATTA PANYIN AND ANOTHER vs. ASANI II [1961]DLHC671

Date	1961-06-09
Suit No.
Citation No.	[1961]DLHC671

ADUMUA-BOSSMAN J

E. AKUFO-ADDO FOR THE PLAINTIFF AND CO-PLAINTIFF

C.F. HAYFRON-BENJAMIN FOR THE DEFENDANT.

[1961]DLHC671
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&nbsp;[HIGH COURT, CAPE COAST]

[1961] GLR 305

DATE: 9TH JUNE, 1961.

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COUNSEL:&nbsp;&nbsp;

E.
AKUFO-ADDO FOR THE PLAINTIFF AND CO-PLAINTIFF

C.F.
HAYFRON-BENJAMIN FOR THE DEFENDANT.

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ADUMUA-BOSSMAN J.

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&nbsp;

The respondent who was the plaintiff in the local court, sued in
is capacity as head of the family of his father the late Frederick George
Augustt, and claimed a declaration of title to the land in dispute and damages
for trespass.

The late Frederick George Augustt was a member of the Osu Mon
family, otherwise known as the Richter family. The present head of that family
is L. L. Richter, P.W.3. The Augustt family is therefore a branch of the
Richter family.

The facts briefly stated are as follows: the land in dispute was
granted by the Richter family many years ago to the late Frederick George
Augustt. Augustt built a storey house on it and lived there up to 1922 when he
died. Upon his death a dispute arose between his maternal cousin, one Easmon,
and his, the deceased’s children represented by the respondent and a brother of
his, as to who was entitled to succeed him and to administer his estate.
Judgment was given in favour of Easmon in that administration suit. As a result
of that suit the plaintiff and the other children of his father left the house.
The buildings so erected by Frederick George Augustt remained in existence
until 1950 when part of it was demolished, the portion which remained was
demolished in 1951; but for some years before then, the house was not
inhabited, because of some superstitious reasons; it was said that anyone who
lived there fell ill.

In 1945 while the buildings were still in existence on the land,
the then head of the Richter family granted the land to the appellant who was the
defendant in the local court. The appellant commenced building operations on it
in 1960; he continued his operations in spite of warning from the respondent’s
solicitors, whereupon the respondent instituted the action against him.

At the trial in the local court, one S. H. Hammond who had been
permitted by the local court to represent the plaintiff, gave evidence in the
first person as if it was the plaintiff himself who was speaking. In this he
was resuscitating a practice which used to obtain in the old native tribunals
and native courts but which had to stop because of the strong condemnation it
received in the Divisional Court, the West African Court of Appeal and its
successor the Court of Appeal. It must again be condemned now that it is trying
to rear its head again. That evidence is hearsay evidence, the facts the
witness deposed to are not of his own knowledge, but something which the
plaintiff or some other person must have told him; therefore if the evidence he
gave amounted to perjury he could not be dealt with for contempt of court,
because he was not swearing to it from his own knowledge. His evidence is
therefore inadmissible and must be completely ruled out of consideration in
this appeal as if that evidence had not been given. Therefore if the admissible
evidence left on the record failed to reach the standard required for a
plaintiff to discharge the onus which rests upon him, the appeal should
succeed. But fortunately enough there is sufficient admissible evidence on
record which proved his case.

It was contended on behalf of the appellant that the respondent is
not the proper person to sue, because in the administrative suit of 1925,
Michelin, J. had ruled that Easmon, the nearest surviving uterine relation of
the respondent’s father was the proper person to succeed the late Frederick
George Augustt, and not the respondent and his brother. This submission is
erroneous on two grounds; firstly Easmon died some time ago, and the evidence
that the respondent is the present head of his late father’s family was not
refuted; secondly Michelin, J. based his said judgment upon views expressed by
Mr. Edmund Bannerman as to the custom of succession in Accra (Ga Mashie), as
given at pages 109-112 of Sarbah’s Fanti Customary Laws, (2nd. ed.) and custom as
set out in the judgment of Smyly, C.J., in the case of Sackey v. Okantah1(1) in
an Accra (Ga Mashie) case. He stated that he had to do so because no evidence
was led as to such custom of succession. The position has been clarified since
then, and it is clear now that apart from Accra town (Ga Mashie), the whole of
the Ga Adamgbe tribes of which Osu is one, are patrilineal family societies for
purposes of succession. The plaintiff can therefore be the present successor
and head of his said father’s family.

Next it was submitted that the head of the main family, ie. the
Richter family, is the proper person to litigate over the late Frederick’s
property, he, Frederick having died intestate, and the property having thereby
become family property. This submission is misconceived. The law is that as
between the successor to a deceased, who is head of the immediate family of the
decea</main>