BANAHENE vs. ADINKRA AND OTHERS [1976]DLCA366

Date	1976-02-24
Suit No.
Citation No.	[1976]DLCA366

APALOO J.A

ANIN J.A

FRANCOIS J.A.

AMPIAH FOR THE APPELLANT.

KESSON FOR THE RESPONDENTS.

[1976]DLCA366
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >BANAHENE <o:p></o:p>vs. <o:p></o:p>ADINKRA AND OTHERS<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 1 GLR 346<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:
24 FEBRUARY 1976.<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">

AMPIAH FOR THE APPELLANT.<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">

APALOO, ANIN AND FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.A.<o:p></o:p>This is
the second appeal in a succession suit originally heard and determined in
favour of the plaintiff-appellant herein (called in this judgment simply the
plaintiff) by the district magistrate grade II sitting in the Akim Oda District
Court Grade II on 24 May 1972. The defendants-respondents herein (referred to
in this judgment simply as the defendants) were successful in their appeal
before the Cape Coast High Court, which reversed the trial magistrate’s
decision and dismissed the plaintiff’s claim. It is from this judgment of the
Cape Coast High court dated 30 July 1973 that the plaintiff has now appealed to
this court.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff, suing as customary successor to the late Kwadwo Asante of Ayirebi,
claimed against the defendants jointly and severally an order of declaration of
title to, and recovery of possession of, three specified farms alleged to be
the properties of his late uncle Kwadwo Asante whom he had succeeded. Even
though the parties were represented by learned counsel at the trial court, the
action was heard in a summary way and no pleadings were ordered.<o:p></o:p><o:p>&nbsp;</o:p>It was
common ground between the parties that the three disputed farms were ancestral
family properties inherited by the late Kwadwo Asante from deceased ancestors
upon his appointment as successor and head of the Bretuo family, to which both
parties belonged. The main controversy was whether or not the plaintiff had
been duly appointed customary successor to the late Kwadwo Asante who died on
23<o:p></o:p>

December
1971.<o:p></o:p>At the
hearing of the case before the district magistrate, the plaintiff was
represented by his uncle Nsonowah, who had been authorised by his absent nephew
under a power of attorney to testify for and on his behalf. In his evidence,
Kofi Nsonowah disclosed that after Asante’s death, his family met and elected
as his successor the plaintiff, who duly accepted the appointment by rendering
customary thanks with the sum of ¢9.60 and a full bottle of schnapps. Among the
principal members of the Bretuo family who participated in the election meeting
were Asare Duodu, the plaintiff’s first witness, Asaboro, Kofi Berkoe and
Kwadwo Kwenin, the defendants’ first witness; while the Gyasehene Nana Kwabena
Antwi, the plaintiff’s second witness of the Aduana clan, presided over the
election meeting.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants denied that Banahene was appointed successor to the late Asante.
According to their spokesman, Yaw Adinkra the first defendant, who gave
evidence for himself and on behalf of the other defendants, “I do not know the
one who succeeded Asante. It is not correct that Banahene succeeded to the
property. I am now in charge of the whole property left by Asante.” He
explained that the disputed farms were ancestral family properties which were
inherited by Asante (deceased) from seven ancestors upon his appointment as
successor and head of family about ten years before his death. He further
revealed that in the lifetime of Asante, he and the other defendants “were
working on the lands in question.”<o:p></o:p><o:p>&nbsp;</o:p>How the
defendants entered into “possession” of the disputed farms, and the quality of
their “possession,” were thus explained by their witness Kwadwo Kwenin, the
defendants’ first witness. The defendants used to live in Koforidua; and they
were invite</main>