YOGUO AND ANOTHER vs. AGYEKUM AND OTHERS [1966]DLSC10244

Date	1966-06-13
Suit No.	G B R 482 – 520
Citation No.	[1966]DLSC10244

SARKODEE-ADOO C.J.

OLLENNU J.S.C

LASSEY J.S.C.

E.K. WIREDU FOR THE APPELLANTS.

APPIAH-MENKA FOR THE RESPONDENTS.

[1966]DLSC10244
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													<main id="main" class="content" style="min-height: 60rem" >YOGUO AND
ANOTHER<o:p></o:p>vs.<o:p></o:p>AGYEKUM AND OTHERS<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL:<o:p></o:p>E.K. WIREDU FOR THE APPELLANTS.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

APPIAH-MENKA FOR THE
RESPONDENTS.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SARKODEE-ADOO C.J.,
OLLENNU J.S.C, LASSEY J.S.C.<o:p></o:p>

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;OLLENNU
J. S. C<o:p></o:p>&nbsp;By their writ of summons filed in the High
Court, Kumasi, the respondents (hereinafter referred to as the plaintiffs),
claimed a declaration of title to a house situate at Yonso near Jamasi in
Ashanti.&nbsp; Although the title of the suit
leaves the impression that the appellants (hereinafter referred to as the
defendants) were sued in their individual capacity, yet the pleadings and the
whole of the proceedings make it quite clear that they were sued and they
defended the suit in their capacity as representatives of a family to which the
father of the plaintiffs, one Kwaku Agyekum, and his elder brother Kwadjo
Agyekum, both deceased, belonged.<o:p></o:p>&nbsp;There is no dispute as to the identity of the
property, the subject-matter of the suit; identical descriptions of it are
given by the plaintiffs in their writ of summons and by the defendants in their
statement of defence and counterclaim.&nbsp;
The plaintiffs pleaded that the house was built by their father as his
self-acquired property and that their father, by a gift inter vivos made in
1955 in accordance with customary law, transferred the ownership of it to
them.&nbsp; The defendants on the other hand
pleaded that it was built by the two brothers, Kwadjo Agyekum and Kwaku
Agyekum, and that the same is family property.<o:p></o:p>&nbsp;The issues thus joined between the parties
which unmistakably appear on the pleadings and upon the evidence as stated by
the trial judge at the beginning of his judgment:<o:p></o:p>&nbsp;“Call for the determination of three main
questions, namely, first:&nbsp; Was the house
in dispute built solely by Kwaku Agyekum or was it the joint effort of Kwadjo
and Kwaku Agyekum?&nbsp; Secondly, was a valid
customary gift of this house made to the plaintiffs?&nbsp; And thirdly, was the house built on family
land or on land which the late Kwaku Agyekum himself acquired from the Yonso
stool.”<o:p></o:p>&nbsp;&nbsp;The trial judge resolved each of the three
issues in favour of the plaintiffs.&nbsp;
Against that judgment, the defendants appealed on the following six
grounds:<o:p></o:p>&nbsp;“(1) The plaintiffs on whom the onus of
proving that a perfect customary gift of the house in dispute was made to them
in the presence of the elders of Yonso state and elders of the donor's family failed
to discharge that onus inasmuch as none of the persons alleged to have been
present was called to corroborate the plaintiffs' story.<o:p></o:p>&nbsp;(2) The plaintiffs on whom the onus of
proving that the house in dispute was the self-acquired building of their late
father on his self-acquired land failed to discharge that onus and that the
finding of the trial judge on this issue is perverse having regard to the
evidence led in support thereof.<o:p></o:p>&nbsp;(3) That the learned judge erred in law when
he accepted the evidence of the plaintiff’s witness that the house was built by
Kwaku Agyekum but rejected the evidence of the same witness who in the same
breath deposed that no gift was in fact made especially as this piece of
evidence corroborates the defence story that no gift was in fact made.<o:p></o:p>&nbsp;(4) The learned judge erred in law by relying
on speculations and presumptions not supported by the evidence.<o:p></o:p>&nbsp;(5) The learned judge failed to appreciate
the full significance of the evidence led by the defence and though there is no
direct evidence that the house was the result of the joint effort of late
Kwadjo and Kwaku Agyekum on family land there is abundance of evidence on
record to which if the trial judge had fully directed his mind he would have
come to the conclusion that at least the house was built on family land.<o:p></o:p>&nbsp;(6) The judgment of the trial court cannot be
supported having regard to the evidence on record."<o:p></o:p>&nbsp;</span</main>