ANDREWS vs. HAYFORD [1982]DLCA2087

Date	1982-11-25
Suit No.
Citation No.	[1982]DLCA2087

ARCHER J.S.C

MENSA BOISON JA

ABBAN J.A.

E. M. AMPONSAH-DADZIE FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT

[1982]DLCA2087
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													<main id="main" class="content" style="min-height: 60rem" >ANDREWS <o:p></o:p>vs. <o:p></o:p>HAYFORD <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] GLR 214<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:
25 NOVEMBER
1982<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">

E. M. AMPONSAH-DADZIE FOR THE APPELLANT. <o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT<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">

ARCHER J.S.C., MENSA BOISON AND ABBAN
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>The land
in dispute is situated at Tantri Road, Cape Coast. It formed part of a larger
area bought by one Kwamina Prah (deceased). Kwamina Prah built a house on a
portion of the said land. It is the undeveloped portion which has been the subject-matter
of the present dispute. The learned trial circuit judge, Cape Coast, in a
considered judgment found that Kwamina Prah died intestate and was survived by
only two uterine brothers - Kojo Ackun and Kweku Dwenin. The late Kwamina Prah
left no mother and no sister or maternal nephews or nieces. As a matter of fact
it was found that on the death of Prah only these two uterine brothers, Ackun
and Dwenin constituted members of Prah’s immediate Twidan family.<o:p></o:p><o:p>&nbsp;</o:p>Kojo
Ackun who was the senior of the two brothers was appointed Prah’s customary
successor and he took charge and control of the house and the land in dispute.
During his lifetime, Kojo Ackun as a successor and with the consent and
concurrence of his only brother, Dwenin, sold the disputed land to the
respondent. The sale took place in 1952 and was reduced into writing. A
properly prepared indenture was executed by all concerned and registered in the
Deeds Registry as No. 1153/1952. It was tendered at the trial as exhibit A. It
should be observed that sometime after the sale Dwenin died. That is, Dwenin
predeceased Kojo Ackun. It is also significant to note that nobody from the
wider Twidan family objected to the sale.<o:p></o:p><o:p>&nbsp;</o:p>Years
after the death of Kojo Ackun and nineteen years after the said sale, the
appellant who was a distant and remote relative of the late Kwamina Prah, Ackun
and Dwenin, disputed the respondent’s right to the land, contending that the
sale to the respondent by the late Kojo Ackun was null and void on the ground
that Ackun sold the land without the consent of the wider Twidan family of Cape
Coast. The respondent therefore sued the appellant, among other things for a
declaration of title. The learned trial circuit judge granted the respondent
the relief she sought.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant being dissatisfied with the judgment appealed to this court. Several
grounds of appeal were filed. But learned counsel for the appellant argued only
one of them, namely the learned trial judge erred in law by holding that the
immediate family could dispose of the family property without reference to and
obtaining the consent of the wider Twidan family of Cape Coast. Counsel
contended that on the death intestate of Prah who originally acquired the land,
the land became family property and that without the concurrence of the members
of the wider Twidan family of Cape Coast the members of Prah’s immediate family
alone could not sell the land. Counsel cited Kwakye v. Tuba [1961] G.L.R. 535
and Quargraine v. Edu [1966] G.L.R. 406.<o:p></o:p><o:p>&nbsp;</o:p>We did
not hesitate to point out to learned counsel that there was no basis for this
argument in view of the positive findings made by the learned trial judge which
findings are fully supported by the evidence. The learned judge specifically
found that two members of the wider family were aware of the sale and that one
of those two, called Smith, was at that time the only important member of the
wider family who could be consulted and that the said Smith, in fact, consented
to the sale. I will here quote the relevant portions of the judgment:<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
defendant (the appellant) was not present at the time of the sale. Williams,
the second plaintiff witness who was present testified that Smith and Darko -
both members of the wider family consented to the sale. This evidence was not
challenged.”<o:p></o:p><o:p>&nbsp;</o:p>After
further review of the evidence, the learned judg</main>