OKOMFO AFUAH vs. SARBAH [1973]DLHC10262

Date	1973-12-20
Suit No.	1 GLR 147-160
Citation No.	[1973]DLHC10262

ABBAN J.

J.C .ARMAH FOR THE PLAINTIFF.

W. A. N. ADUMUA-BOSSMAN FOR THE DEFENDANT.

[1973]DLHC10262
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													<main id="main" class="content" style="min-height: 60rem" >OKOMFO AFUAH<o:p></o:p>vs.<o:p></o:p>SARBAH<o:p></o:p>[HIGH
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;">

1 GLR 147-160&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;DATE:&nbsp; 20TH DECEMBER, 1973<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J.C .ARMAH FOR THE PLAINTIFF.<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;">

W. A. N.
ADUMUA-BOSSMAN FOR THE DEFENDANT.<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;">

</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;">

</div>&nbsp;ABBAN
J.<o:p></o:p>&nbsp;The plaintiff in this action is claiming a
declaration of title to a piece of land situate and lying at a place commonly
known and called Odumtia.&nbsp; The said land
is near Amasaman on the Accra — Nsawam road, and it comprises an area of about
180 acres.&nbsp; The plaintiff is also
claiming perpetual injunction.<o:p></o:p>&nbsp;I must remark that the evidence given by the
plaintiff in support of her claim was quite simple and straightforward, but she
was subjected to a lengthy cross-examination on matters most of which were
irrelevant.&nbsp; The plaintiff's case is that
her father, called Quaye Mensah, was the first to occupy the land in
dispute.&nbsp; The father cultivated the land
and founded a village thereon.&nbsp; The
father named the village and the surrounding lands after an odum tree which the
father found on the land; and that is why the village is called Odumtia.&nbsp; The said odum tree is still standing on the
land.&nbsp; During the father's lifetime, the
father believed this odum tree was a fetish, and so the father worshipped
it.&nbsp; When the plaintiff grew up she
became a fetish priestess for this odum tree.<o:p></o:p>&nbsp;The plaintiff's father was an Asere man from
Abola quarter and her father's father, also an Asere man, came from the same
Abola quarter.&nbsp; The plaintiff herself is
an Asere woman, and she was born in this Odumtia village where she lived all
her life.&nbsp; She was about 100 years old at
the time she gave her evidence in this case.<o:p></o:p>&nbsp;The plaintiff's father died in or about
1923.&nbsp; The plaintiff said the father was
not survived by brothers and sisters.&nbsp;
Her father's father also had no brothers.&nbsp; When the plaintiff grew up she did not see
any sisters [p.150] of her said grandfather.&nbsp;
On the death of the plaintiff's father a relative of her father, called
Nii Adu Comey, succeeded the father according to custom and the plaintiff
having buried the father, the properties of the father, including the land in
dispute, were handed over to the plaintiff.&nbsp;
She also claimed that apart from being made successor to those
properties, she was also made head of Quaye Mensah's family.&nbsp; She contended that since she succeeded to the
land in dispute, she has been in absolute possession thereof.&nbsp; But the defendant and his people have
recently been interfering with her quiet enjoyment and have been doing certain
things which are tantamount to disputing her title to the land.<o:p></o:p>&nbsp;The plaintiff died after she had given her
evidence but before the defendant closed his case; and the plaintiff's son, one
Arday Armah, was substituted for the plaintiff without opposition from the
defendant.&nbsp; This Arday Armah gave
evidence as the plaintiff's first witness.&nbsp;
He said his mother was the sole owner of this land and the mother used
to send him (the plaintiff's first witness) to collect tolls from those to whom
his mother had granted portions of the land for farming purposes.&nbsp; A man, called Kojo Abew (the plaintiff's
second witness) who is about 66 years old, used to accompany the plaintiff's
son (the plaintiff's first witness) to collect the said tolls.&nbsp; Kojo Abew's father and the father of the
plaintiff were first cousins.&nbsp; Kojo Abew
was born and bred in this Odumtia village.&nbsp;
He grew up to see the plaintiff's father, Quaye Mensah, in full control
and possession of the Odumtia land.&nbsp; A
village, known as Kojo Ashong, is near Odumtia land.&nbsp; The chief of this village, Nii Kojo Ashong
(the plaintiff's third witness) was called to give evidence.&nbsp; His evidence substantially supported the
claim of the plaintiff.<o:p></o:p>&nbsp;The defendant did not give evidence himself.&nbsp; One Nii Tetteh Atafuah testified on his
behalf.&nbsp; Before dealing with the evidence
of the defendant's witnesses, I should point out that the defence was pleaded
in detail in paragraphs (4), (5), (6) and (7) of the statement of defence,
filed on 10 December 1964.&nbsp; Those
paragraphs are very crucial and I will therefore set them out in extenso:<o:p></o:p>&nbsp;"(4) In further answer to paragraph (2)
of the statement of claim, the defendant will contend that the Odumtia land
which is part of a long stretch of land formerly occupied and settled by the
Akwamus became part of Asere stool lands after the Akwamus were defeated and
driven from the land and that it was the said stool which granted a
usufructuary interest or possessory title in the said land to the great Captain
Nii Arday Sarbah, the founder of the Arday family, and a great war lord or
captain under the Asere stool in recognition of his services in the Akwamu
wars.<o:p></o:p>&nbsp;(5) The defendant will further contend that
the Asere stool appointed the great Captain Nii Arday Sarbah, custodian of a
large stretch of land from Amasaman to the Densu River and that Captain Nii
Arday Sarbah personally occupied and [p.151] settled on the Ardayman and
Odumtia lands, and from there supervised and acted as watchdog ov</main>