ABENYEWA AND ANOTHER vs. MARFO AND OTHERS [1972]DLHC2180

Date	1972-04-28
Suit No.
Citation No.	[1972]DLHC2180

TAYLOR J.

OSEI KWAKU FOR THE APPELLANTS.

K. A. T. AMANKWAH FOR THE RESPONDENTS.

[1972]DLHC2180
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													<main id="main" class="content" style="min-height: 60rem" >ABENYEWA AND ANOTHER <o:p></o:p>vs. <o:p></o:p>MARFO AND OTHERS<o:p></o:p>&nbsp;[HIGH COURT, KUMASI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1972] 2 GLR 153<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
28 APRIL 1972.<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">

OSEI KWAKU FOR THE APPELLANTS.<o:p></o:p>

K. A. T. AMANKWAH FOR THE RESPONDENTS.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>The
plaintiffs-respondents hereinafter called the plaintiffs, all minors, sued the
defendants-appellants hereinafter called the defendants per their mother and
next friend Akosua Akyirem at the District Court, Mampong. Their claim endorsed
on their application for the writ of summons is formulated as follows:<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">“The
plaintiffs’ claim is for a share of cocoa farm left behind by the late Kwadwo
Pensan (the father of the plaintiffs) for his whole children, of which the
first and second defendants have refused to give to the plaintiffs their due
share. The farm in question is lying, situate and being at Oponso in the Wassaw
Traditional Area commonly known and called Bobkrom valued about N¢300.00.”<o:p></o:p><o:p>&nbsp;</o:p>The first
defendant is the head of family and the second defendant is the son of the said
deceased.<o:p></o:p>The
plaintiffs by their next friend, their mother, led evidence touching the facts
grounding their claim. The relevant portion of her evidence is as follows:<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">“I know Dora
Marfo, Afua Sarpong and Francis Antwi. They are my children. My husband was
called Kwadwo Pensan who is now deceased. When Pensan married me he took me to
the bush where I made a farm with him. It was a cocoa farm. After making the
farm Kwadwo Pensan divorced me and the children went back to their father
Pensan. Pensan told me that he had divided the farm into two and that he had
given half of the farm to all his children who are the issues of his three
wives including myself. Dora Marfo the first plaintiff was in Kumasi at the
time and Pensan called her and put the matter before her. The second defendant
who is also the son of Pensan told Dora Marfo to go back to Kumasi and return
on holidays so that he could take her to the farm to show her the cocoa farm.
Dora Marfo was unable to meet the second defendant when her father Pensan died.
Later the first defendant and the second defendant told me that Pensan gave
half of the cocoa farm to the children of his two wives, viz: Afua Eto and Afua
Dabre excluding my children. I could not understand this so I reported the
matter to Kyekyewere Odikro. The odikro and his elders met the first defendant
and the second defendant including myself, but the first defendant and the
second defendant refused to allow the odikro to go into the matter and said I
should take the case to anywhere I liked. The farm in question is lying at
Oponso in the Wassaw Traditional Area commonly known as Bobkrom. The value of
the farm is about N¢300.00. My children Dora Marfo, Afua Sarpong and Francis
Antwi are entitled to half portion of the farm together with the children of
the other two wives. I took action against the first defendant and second
defendant to claim a share of the cocoa farm for my three children.”<o:p></o:p><o:p>&nbsp;</o:p>Under
cross-examination by the first defendant she said inter alia, “it is correct
that Pensan did not inform you when he gave the farm to the children of the
three wives.” She further admitted as follows when cross-examined by the second
defendant, “Pensan did not inform the members of the family about the gift
before he died.”<o:p></o:p><o:p>&nbsp;</o:p>The
evidence of the next friend touching the intention of the deceased to make
provision for the plaintiffs, his children, found corroboration in the evidence
of a witness for the plaint</main>