ASSEH Vs . ANTO [1961]DLSC661

Date	1961-02-20
Suit No.
Citation No.	[1961]DLSC661

KORSAH JSC

C. J. JSC

VAN LARE JSC

SARKODEE-ADOO JSC

E. AKUFO-ADDO FOR THE APPELLANT

DR. DANQUAH FOR THE RESPONDENT.

[1961]DLSC661
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&nbsp;[SUPREME COURT]

[1961] GLR 103

DATE: 20TH FEBRUARY, 1961.

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COUNSEL:&nbsp;&nbsp;

E.
AKUFO-ADDO FOR THE APPELLANT.

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KORSAH, C. J., VAN LARE AND
SARKODEE-ADOO, JJ.S.C.

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&nbsp;

This is an appeal, by special leave, from the judgment of the Land
Court which confirmed the judgment of the Ajumako Native Court “B” of Odoben in
a suit wherein the plaintiff’s claim was:

(1) for declaration of title to two cocoa farms situate at Bremaku
on the Odoben Stool land, (2) an account of proceeds thereof; and (3) perpetual
injunction.

The plaintiff’s case is that the two cocoa farms were cultivated
by his relative Opanyin Yena who during his lifetime parted with the farms as
gifts to the plaintiff’s predecessor Kweku Apreku; that Apreku took possession
of the farms, reaped and enjoyed the proceeds thereof during the lifetime of
Opanyin Yena; that Kweku Apreku survived Opanyin Yena, and continued to reap
and enjoy the proceeds of the said farms until Apreku died; that he, plaintiff,
as the successor of Apreku is therefore entitled to the said cocoa farms.

(a) that the two cocoa farms were cultivated by Opanyin Yena, (b)
that Opanyin Yena parted with them to Kweku Apreku, (c) that Apreku survived
Opanyin Yena, and continued to reap and enjoy the proceeds of the said cocoa
farms until he died, and (d) that the plaintiff is the successor of Apreku. But
the defendant contends that the said gift was limited to the life of the said
Kweku Apreku, the plaintiff’s predecessor, consequently, the said farms
reverted to one Mr. Assimah as successor of the late Opanyin Yena by virtue of
the instrument which was tendered in evidence at the trial, marked exhibit A,
probate of which was granted on the 23rd September, 19601(1), as the last will
and testament of Kweku Opanyin Yena.

In the judgment delivered by the native trial court on the 13th
December, 1956, it will be observed that after discussing the evidence with
meticulous care, it was held:

“the court is satisfied that the two cocoa farms were given to
Apreku by way of gift forever by late Opanyin Yena during his lifetime which
means that Apreku, his heirs, executors, administrators, successors etc. are entitled
to make use of this gift forever. And that is the reason why Apreku made use of
this gift till he died. Also the Court is satisfied that Opanyin Yena
cultivated about eleven cocoa farms more or less and out of these eleven only
two were given to Apreku. Following the evidence adduced by plaintiff and his
witnesses the court believe the evidence of the foregoing on the part of
plaintiff and his witnesses in all respect. Also the court is of opinion that
defendant’s pretentious claim of ownership of the two only cocoa farms given to
Apreku by way of gift is against natural justice.”

On appeal to the Land Court, Ollennu J., in dismissing the appeal
said: “The native court reviewed the evidence led by both sides with meticulous
care, and accepted the plaintiff’s case. Their findings are amply supported by
the evidence before them”.

Counsel for the appellant introduced four new grounds of appeal.
[His lordship read the grounds which are set out in the headnote and
continued:] It will be seen that these grounds introduce issues which were not
canvassed either at the trial or on the appeal before the Land Court. We,
however, allowed counsel to argue them because of the allegations which counsel
contended might reasonably affect the legal status of Opanyin Yena with the
consequential effect upon his estate.

By the first ground, it is contended that Opanyin Yena was
originally a slave of the Abokyi family of Akim Swedru, but had become a member
of the Barfo family of Odoben because he voluntarily elected to stay with the
latter family at Odoben and cultivated the farms on the land belonging to that
family. This argument overlooks the fact that assuming Opanyin Yena to have
been originally a slave of the Abokyi family, he became a free person by virtue
of the Slaves Emancipation Ordinance2(2), and under the proviso to section 2
thereof which reads: