AFRIYIE vs. DOTWAAH AND ANOTHER [1962]DLHC1332

Date	1962-06-11
Suit No.
Citation No.	[1962]DLHC1332

APALOO J.

T. A. TOTOE FOR THE PLAINTIFF.

E. K. WIREDU FOR THE DEFENDANT.

[1962]DLHC1332
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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:#00B0F0">AFRIYIE <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:#00B0F0">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:#00B0F0">DOTWAAH 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>[1962] 1 GLR 458<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

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"> 11 TH JUNE, 1962.<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">

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

E.
K. WIREDU FOR THE DEFENDANT.<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 2.0pt 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF
APALOO J.<o:p></o:p>In this action, the plaintiff claims against the defendants a
declaration of the title of her family to a cocoa farm said to be situated at a
place called Patwire on Amoako stool land, and other incidental reliefs which
for present purposes it is unnecessary to set out.<o:p></o:p><o:p>&nbsp;</o:p>It is common ground that the farm in dispute was the self-acquired
property of a man by name Kwaku Addo. The latter died intestate in or about
1947, and by the well-known canons of customary law, the farm became family
property. The evidence shows that the defendant has for many years been in
possession or had some form of control over the farm. The capacity in which he
did this is the subject-matter of fierce controversy. I find it established
that on the 10th August, 1960, the first defendant conveyed this farm to the
second defendant by way of legal mortgage to secure the repayment of the sum of
£G325 advanced to the former by the latter. The plaintiff seems to have got
wind of the negotiations for the loan and the offer of this farm by way of
security. She got into touch with the Amoakohene and informed him of this. The
latter sent for the second defendant and warned him about the plaintiff’s
claim. This meeting must have taken place in August, 1960, but as to the actual
date, the evidence is far from precise. This verbal warning was followed by a
formal solicitors’ letter dated the 6th September, 1960, and written by the
plaintiff’s solicitors to the second defendant and copied to the first
defendant and other members of his family (exhibit A). As is only to be
expected, the second defendant did not himself reply to the plaintiff’s
solicitors’ letter. He handed it to the first defendant. The latter replied it
in October. The writ followed in November, 1960.<o:p></o:p>As the original ownership of the farm in dispute was agreed to be
in the late Kwaku Addo who, as I said, died intestate, the persons entitled to
the beneficial enjoyment of this farm today are the members of his immediate
family. The plaintiff says she and her family are such members. If they are,
there can be no doubt that they are entitled to complain and are within their
rights to avoid the mortgage. The first defendant says the plaintiff and her
family are no blood relations of the late Kwaku Addo and are not entitled to
complain. He says he and his family are such relations and what is done with
Addo’s properties is not the plaintiff’s affair.<o:p></o:p><o:p>&nbsp;</o:p>Naturally enough, each party led evidence to show his or her
relationship with Addo on grounds of consanguinity. Accordingly, I have been
treated in this case to a rather uninteresting and almost boring account of
each party’s pedigree. As is usual, it is wholly traditional and suffers from
the perennial infirmity of traditional evidence with its concomitant liability
to distortion. On the purely genealogical aspect of this case, there is the
evidence of the plaintiff supported substantially by the present Amoakohene
Nana Osei-Du, and the first defendant’s evidence is also corroborated by Akua
Pokua. I preserve a recollection of the impression these various witnesses made
on me, but I do not think it would be right to conclude this issue on the
uncertain and somewhat fallible guide of demeanour alone. What I tried to do is
to test the rival family trees with proved or admitted facts in this case to
see which is more likely to be correct.<o:p></o:p><o:p>&nbsp;</o:p>In this wise, it seems to me crucial to decide who succeeded Addo
on his death. It seems to me plain that such a person would be a close blood
relation of his. Again this is one of the hotly contested issues of this case.
The plaintiff and her witnesses say Addo was succeeded by his sister Pramang.
The first defendant says he succeeded to the late Addo and he was also
supported by witnesses called by him. In so far as it is necessary to credit
one rather than the other set of witnesses, I clearly prefer the evidence of
the witnesses called by the plaintiff. Nana Osei-Du is an elderly and
respectable witness who for a time, reigned contemporaneously with Pramang, the
latter being, until her death, the occupant of the female stool of Am</main>