AMOAKO vs. JOSEPH LAGOS AND OTHERS [1962]DLHC1347

Date	1962-05-01
Suit No.
Citation No.	[1962]DLHC1347

APALOO J.

E. K. WIREDU FOR ASUMADU-SEKYI FOR THE PLAINTIFF.

N. Y. B. ADADE FOR THE DEFENDANTS.

[1962]DLHC1347
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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">AMOAKO<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">&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:#00B0F0">JOSEPH LAGOS 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, KUMASI]<o:p></o:p>[1962] 1 GLR 317<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"> 1ST MAY, 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">

E.
K. WIREDU FOR ASUMADU-SEKYI FOR THE PLAINTIFF.<o:p></o:p>

N.
Y. B. ADADE 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF
APALOO J.<o:p></o:p>On the 21st December, 1960, the plaintiff in his capacity as head
of the Aduana Awonyui family of Obomeng and Mpraeso caused to be issued against
the first and second defendants a writ claiming declaration of title to a cocoa
farm fully described in the writ, damages for trespass and other ancillary
reliefs.<o:p></o:p><o:p>&nbsp;</o:p>A great many of the facts in this case were not disputed. Sometime
in 1954, the first defendant gave to a Mr. Osei Nyantakyi a loan of £G200. As
security for the said loan, Nyantakyi swore and produced to the first defendant
an affidavit (exhibit 2) in which he claimed to be the original and bona fide
owner in his own right of the farm in dispute. Osei Nyantakyi is a member of
the family of which the plaintiff is the head. Again in December, 1956, the
first defendant advanced to the self-same Nyantakyi £G1,000. On this, there was
a more formal document in which the latter undertook to repay this sum by
proceeds of cocoa from the farm in dispute. That document (exhibit 1) states
that in the event of Nyantakyi failing to honour his undertaking in exhibit 1
the creditor, that is the first defendant, was entitled to proceed against him
by action and to levy execution on the said farm. The document then proceeds to
state that the farm in dispute was mortgaged to the first defendant. But the
document, exhibit 1, is not strictly a deed of mortgage in the ordinary
acceptation of that term. It merely designates the property which the first
defendant was entitled to sell in execution in the event of his recovering
judgment against the said Nyantakyi.<o:p></o:p><o:p>&nbsp;</o:p>It appears that Nyantakyi committed a breach of his obligations
and the first defendant instituted an action against him in this court. On the
13th October, 1958, the action was compromised on certain terms which were
recorded by the court (exhibit 3) and the action was accordingly withdrawn. The
first defendant being a prudent man, sought and was granted liberty to bring
fresh action. He did so early in 1959. On the 9th February, 1959, this court
entered judgment in his favour for the sum of £G829 12s. and 30 guineas costs.
As would be expected, the first defendant proceeded to attach and advertise for
sale the farm in dispute.<o:p></o:p><o:p>&nbsp;</o:p>As I have said, the plaintiff’s case is that the farm in dispute
belongs to his family and was wrongly sold in satisfaction of the debt of a
member of that family. In considering the facts on which the family’s ownership
is based, I bear in mind that claims of this sort are easily fabricated and are
not easily demolished by the most astute cross-examination. The evidence shows
that Nyantakyi has been in possession of this farm for a considerable number of
years and seemed on the evidence to have pleased himself with the income from
the farm. Those matters make it necessary for the plaintiff’s evidence to be
received in this case with the greatest circumspection. Nevertheless, I have
come to the conclusion in this case that I must accept the claim of the
plaintiff’s family to the farm in dispute as established. James Amoako who is a
presbyter and the head of the Aduana-Awonyui family testified that the farm in
dispute was cultivated by his younger brother Kwasi Puni. The latter appeared
to have died intestate and by the well-known canons of customary law, the farm
became family property. The family which Amoako heads appointed Nyantakyi to
succeed the late Puni and he was accordingly given charge of the farm in
dispute. Nyantakyi who hitherto lived at Mpraeso, then moved to Atwedie to
execute his office as successor of his late uncle. This evidence was, in my
opinion, convincingly supported by Emmanuel Wiafe who appears to be one of the
principal members of the plaintiff’s family and seemed to have been present at
all meetings summoned by the plaintiff to discuss Puni’s affairs. Amoako is 78,
and as would be expected of a man of his age and standing (he is a presbyter),
he gave his evidence honestly and well. I was similarly impressed with the
evidence of Wiafe who is middle-aged and perhaps somewhat garrulous.<o:p></o:p><o:p>&nbsp;</o:p>