ABONO vs. SUNKWA [1962]DLSC1305

Date	1962-03-12
Suit No.
Citation No.	[1962]DLSC1305

KORSAH C.J. JSC

VAN LARE JSC

ADUMUA-BOSSMAN J.S.C.

HAYFRON-BENJAMIN FOR THE APPELLANT.

J. D. REINDORF FOR THE RESPONDENT.

[1962]DLSC1305
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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">ABONO<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">SUNKWA<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;[SUPREME COURT]<o:p></o:p>[1962] 1 GLR 154<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"> 12TH MARCH, 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">

HAYFRON-BENJAMIN
FOR THE APPELLANT.<o:p></o:p>

J.
D. REINDORF FOR THE RESPONDENT.<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">

KORSAH C.J., VAN LARE AND
ADUMUA-BOSSMAN, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF VAN
LARE J.S.C.<o:p></o:p>It is common ground that the land in dispute is a cocoa farm which
was originally the property of one Kwasi Boateng who died a few years before
the institution of this suit in March, 1958. The defendant was the nephew and
is now the duly appointed successor of the late Kwasi Boateng and in that
capacity came to lay claim to this farm in the possession and occupation of the
plaintiff, a daughter of the late Kwasi Boateng. Apart from this farm at Kotosu
the late Kwasi Boateng owned other properties at other places, but this was the
only property which he owned at Kotosu. The case of the plaintiff is that her
late father during his life-time made a gift to her of this farm at Kotosu, and
that therefore the said farm ceased to be part of the estate which the defendant
inherited by reason of becoming the successor of her late father. It appears
that this action was brought because the defendant challenged the plaintiff’s
title and interest in this farm by interfering with her right to pluck the
farm, apparently on the assumption that the said farm belongs to the estate
which he inherited from his late uncle. That the action was instituted in
respect of the whole farm at Kotosu appears to be clear from the beginning and
the particulars of the boundaries of the farm as a whole were not put in issue.
What the plaintiff set out to establish and which she did successfully in my
view was that her late father made a gift inter vivos to her of his whole farm
at Kotosu. It became plain therefore that the disputed farm could not belong to
the estate which the defendant inherited after his uncle’s death. In the
cross-examination of the plaintiff and her witnesses the defendant never
suggested that he conceded to any gift by his late uncle of any portion of the
farm in dispute, but in stating his case, however, he asserted unexpectedly
that it was not the whole of the farm but only a portion which his late uncle
presented to the plaintiff. In his evidence the defendant agreed that he was
not present when the gift was made except that his late uncle had told him of
it. Though not present to witness what was in fact given to the plaintiff, the
defendant attempted to describe a portion of the farm which he alleged had been
given to the plaintiff. Before the trial court the defendant lamentably failed
to discharge the onus which shifted on him to establish with certainty the
exact portion which he conceded his late uncle gave to the plaintiff. The
inspection report of the trial court is that “even in the farm defendant was
not able to direct the portion of the farm presented to the plaintiff by his
predecessor. The right side of the farm as described by defendant that it was
given to plaintiff by his deceased uncle, there are no cocoa trees”. To put it
shortly the trial native court discredited the defendant’s assertion. It is not
surprising therefore that upon the evidence and especially in view of the
proceedings at the inspection, judgment was entered for the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>On appeal, however, to the Asantehene’s Native Appeal Court
another visit to the farm was made when the defendant apparently put up another
show this time as to what portion of the farm in his opinion his late uncle
presented to the plaintiff. Apart from the visit to the land and what the
defendant pointed out there was no other additional evidence. I am unable to
see any new discovery of evidence to enable the defendant to point out an area
which the donor himself never pointed out to him. Evidence is lacking to
corroborate the show which the defendant put up when the Asantehene’s Appeal
Court visited the land.<o:p></o:p><o:p>&nbsp;</o:p>The point which in my view has been successfully argued in this
appeal is that the Asantehene’s Appeal Court, which was faced with a finding of
fact based on the credibility of witnesses particularly that of the defendant’s
failure to satisfy the trial native court as to what portion of the farm he
alleged was given to the plaintiff by his predecessor in title, erred in giving
the defendant a second chance of reiterating his case and of contradicting the
evidence already given by him at the second inspection which was uncalled for
and for which the said Asantehene’s Appeal Court gave no reason.<o:p></o:p><o:p>&nbsp;</o:p>It is not a function of a Court of Appeal to disturb a finding
where credibility of witnesses had been in question. In this case there </main>