FOSU vs. KRAMO [1965]DLHC1804

Date	1965-11-11
Suit No.
Citation No.	[1965]DLHC1804

HAYFORD-BENJAMIN J.

KOFI ACQUAAH FOR THE PLAINTIFF.

OWUSU-ANSAH FOR THE DEFENDANT.

[1965]DLHC1804
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													<main id="main" class="content" style="min-height: 60rem" >FOSU <o:p></o:p>vs. <o:p></o:p>KRAMO <o:p></o:p>[HIGH COURT, SUNYANI]<o:p></o:p>[1965] GLR 629<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
11 NOVEMBER 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KOFI ACQUAAH FOR THE PLAINTIFF.<o:p></o:p>

OWUSU-ANSAH 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 windowtext 1.5pt;
padding:0in 0in 0in 0in">

HAYFORD-BENJAMIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF HAYFRON-BENJAMIN J.<o:p></o:p>The
plaintiff by his writ of summons dated 29 July 1964 claims as against the
defendant a declaration of title to one cocoa farm lying and being at a place
commonly called Adwoano on Dwumo stool land and bounded on all sides by the
properties of Kwame Dapaah, Akua Krah, Kofi Peprah and the Adwoa stream. He
also claims an order for perpetual injunction and damages for trespass. There
is no dispute as to the identity of the farm.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s case as appearing on his pleadings is shortly, that on 8 July 1964,
he purchased the farm the subject-matter in dispute, at a public auction
conducted at Dwumo. This sale was effected under a power of sale contained in a
mortgage deed executed between two brothers and a sister of the defendant as
mortgagors and one Kwasi Kwakye, a licensed moneylender as mortgagee. The
mother of the defendant signed the deed as a witness. After the purchase, the
plaintiff says he entered into possession of the said farm, but the defendant
and other men committed trespass on the farm on 28 and 29 July 1964 by forcibly
entering the said farm and plucking and carrying away ripe cocoa pods.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant denies the allegation of trespass and contends that the farm was
cultivated by one Kwame Poku deceased, his elder brother as his self-acquired
property. After the death of this Kwame Poku the farm became, in accordance
with custom, family property. He, the defendant, was elected the customary
successor of Kwame Poku and also became head of the immediate family
originating of course from the mother of Poku and the defendant, Yaa Fremaa.
The defendant denies that any of his relatives have ever obtained a loan from
Kwasi Kwakye, and contends that there could therefore be no mortgage deed
executed in respect of the farm. He further contends that in any event, the
farm being family property, individual members of the family have no right to
dispose of it or offer it as security without the consent and concurrence of
the other members of the family. He however admits that his elder brother Kofi
Attim obtained a loan of £G1,000 on the security of this farm from one Barnie
who is now deceased, and who has been succeeded customarily by one Kojo Kyei.
Of this loan, £G268 6s. 8d. was paid by Attim leaving a balance of £G731 13s.
4d. for which Kojo Kyei obtained a default judgment in the High Court in
Sunyani. Kyei purported to go into execution by attaching the said farm under a
writ of fi. fa. The defendant promptly filed an interpleader summons No. 17/64,
and at the hearing Kyei through his solicitor admitted the claim by the
defendant and the farm was accordingly released from attachment. He contended
therefore that the plaintiff is estopped from disputing his title. He bases his
plea of estoppel on two further grounds, namely:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) That
the plaintiff and Kwasi Kwakye (whom he has sued on his counterclaim) are
claiming through Kojo Kyei (successor of the late Kwame Barnie) who has already
admitted in the interpleader suit the defendant’s title to the farm.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) That
Kwasi Kwakye has admitted at diverse places and in a statement to the police
that he has never given any money to the said Attim the mortgagor-debtor.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant further contends that the actual sale was fraudulent because the
plaintiff and Kwasi Kwakye are in effect attempting to claim payment of the
alleged loan twice over from Attim. He also alleges that the conduct of the
auction sale was irregular. The sale he finally states is wrongful since the
farm belongs to the family and not to Kofi Attim personally. He therefore
counterclaims against the plaintiff and Kwasi Kwakye for:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) Nullification
and setting aside of the purported sale of the disputed cocoa farm;<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) Declaration
of title to the said farm; and<</main>