PRACTICE NOTE: BLEWUDZI AND OTHERS vs. DZOTSI AND OTHERS [1978]DLCA1170

Date	1978-05-18
Suit No.
Citation No.	[1978]DLCA1170

SOWAH JA

KINGSLEY-NYINAH JA

FRANCOIS J.A.

KUDJAWU FOR THE APPELLANTS.

E. D. KOM FOR THE RESPONDENTS.

[1978]DLCA1170
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													<main id="main" class="content" style="min-height: 60rem" >PRACTICE NOTE: BLEWUDZI AND OTHERS<o:p></o:p>&nbsp;vs. <o:p></o:p>DZOTSI AND OTHERS<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>&nbsp;[1979] GLR 173<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:
18 MAY 1978<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">

KUDJAWU FOR THE APPELLANTS.<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">

SOWAH, KINGSLEY-NYINAH AND FRANCOIS
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH J.A.<o:p></o:p>This is
yet another appeal from the Circuit Court, Ho, wherein the issue of
jurisdiction (or the lack of it) of the native tribunal which had tried cases
in respect of the same land now in dispute and had given judgments in 1912 and
1913 was raised by the court suo motu which then held that it had no
jurisdiction to hear them and the plaintiffs’ claim was dismissed both on facts
and law.<o:p></o:p><o:p>&nbsp;</o:p>It
appears from the evidence that the parties descended from a common ancestor
Tsirimega. The said ancestor had three children, Atsu, Etse and Doe. The
plaintiffs trace their line from Etse, while the defendants hail from the line
of Doe. Acolatse was the son of Doe and Ashiade the son of a cousin of
Acolatse. The traditional evidence given by the plaintiffs was that while
Acolatse and is nephew Ashiade were both engaged in retail business in
Togoland, a certain sum of money was deposited with Acolatse in the course of
his business by persons from the community in which he lived for the purchase
of gunpowder from the then Gold Coast. Acolatse failed to return to Togoland
and did not refund or return the deposit. Accordingly the prospective
purchasers, in reprisal, seized the goods (consisting of 8 bags of palm kernel)
of his nephew Ashiade. Ashiade returned home and remonstrated with his uncle
concerning his conduct and informed him of the fate which had befallen him. He
demanded compensation for the loss of his wares. His uncle was unable to make
good the loss but offered him a gift of the large piece of land which is now in
dispute. He accepted it and apparently took possession thereof. The root of
title of the plaintiffs is in the gift of Acolatse to Ashiade.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs, after this evidence contended that the parties had twice litigated
the issues now before the circuit court and that two decisions had been given
in their favour. The judgments were tendered and the plea of estoppel raised as
an issue.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>For the
defendants, the traditional evidence led was only slightly different. They
began their genealogical tree from Doe the brother of Etse from whom the
plaintiffs trace their ancestry. Doe was said to have had three children,
namely Gbeshi (female), Akorlor (male) and Acolatse (male) and the land in
dispute was said to have been founded by Akorlor and not Acolatse. By what
appears to be a strange coincidence, the evidence shows that Akorlor like his
brother Acolatse was childless and that on the death of Akorlor the property
descended to his nephew Dzotsi by his sister Gbeshi and it is through this
nephew that they have their root of title. In passing, it should be observed
that no reason was given why Acolatse should be superseded by his nephew in a
matter of succession in an area where succession to property is strictly
patrilineal.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants further contend that the judgments relied upon concern other pieces
of land and do not touch upon the present land in dispute.<o:p></o:p>Be that
as it may, the issue whether the property was a gift to Ashiade by Acolatse or
was originally owned by Doe and succeeded to by his son Akorlor had been
settled once and for all. In the judgment of the Native Tribunal of Fia Sri II,
Anloga, dated 31 December 1912, the court held:<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">“By the
foregoing facts and reasons the old adage which says: ‘One kindness deserves
another’ is necessarily applicable in this case. The tribunal found and
believed that the property in question was a gift of old Akolatse to his nephew
Ashiade the defendants’ father as in satisfaction of thank</main>