YEBOAH AND OTHERS vs. KWAKYE [1986]DLCA814

Date	1986-06-05
Suit No.
Citation No.	[1986]DLCA814

ABBAN JA

OSEI-HWERE JA

AMPIAH JA

OFOSU-ASANTE FOR THE APPELLANTS.

OPOKU-BOATENG (WITH HIM KWAKU BOATENG) FOR THE RESPONDENTS.

[1986]DLCA814
																																						<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" >YEBOAH AND OTHERS <o:p></o:p>vs. <o:p></o:p>KWAKYE <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 370<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 5
JUNE 1986<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">

OFOSU-ASANTE FOR THE APPELLANTS. <o:p></o:p>

OPOKU-BOATENG (WITH HIM KWAKU BOATENG) 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">

ABBAN, OSEI-HWERE AND AMPIAH JJA<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>Osei-Hwere
J.A. delivered the judgment of the court. The properties in dispute may
conveniently be lined up in two groups. In one group is the plot of land at
Nsukwao, Koforidua which is partly developed into swish and cement-block buildings.
In the other are the three cocoa farms at Suhien Aboye, a sugar-cane farm a
Nsukwao, Koforidua Old Estate Road and a foodcrops farm near the cemetery,
Koforidua. The cement-blocks building comprise one storey structure ( the main
buildings and two outbuildings commonly called “boys quarters.” Because all
these building stand in close proximity, they have been registered at the
Koforidua Municipal Council as one unit with the registration number T 29. The
registered owner is given as Afua Pokua /J Y Donkor.<o:p></o:p><o:p>&nbsp;</o:p>Afua
Pokua (now deceased) was the mother of J Y Donkor, described as Yaw Donkor at
the trial. Afua Pokua had two sisters and two brothers, namely Abenaa Mframa,
Amma Tanoa, Kwame Adjabeng and Tuffour. It does appear Amma Tanoa predeceased
Afua Pokua. On the death of Afua Pokua her sister Abenaa Mframa was by-passed
as her successor because she had voluntarily disclaimed her ties with her
matrilineal family. Consequently her only surviving child, Yaw Donkor, was
appointed successor. On the death of Yaw Donkor his family appointed Kwaku
Kwakye, the son of Abenaa Mframa (the plaintiff herein) to succeed. The
plaintiff mounted this action now on appeal against the defendants because Yaw
Donkor, by his will, purported to dispose of the disputed properties to his
wife and children.<o:p></o:p>The
plaintiff made the following averments in paragraph (3) of his statement of
claim:<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">“(3) The
house situated at Nsukwao, Koforidua and known as house No. T 29, the farms
more particularly described in the writ of summons and the undeveloped plot
were originally built, cultivated and acquired by Madam Afua Pokua.”<o:p></o:p>In answer
to the above, the first to fourth defendants (who contested the suit pleaded in
paragraph (3) of their defence that the plot on which house No. T 29, was built
was bought by Yaw Donkor consisting of three mudrooms. The plaintiff challenged
this in his reply by the following:<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">“(3) The
plaintiff says that the house was built by Madam Afua Pokua and roofed by
Kwabena Anane the head of family. Okomfo Kwadwo father of Afua Pokua gifted the
land on which house No. T. 29 stands to Afua Pokua.”<o:p></o:p>These
averments by the plaintiff admit, in short, that Afua Pokua built house No T 29
and cultivated the farms and also that the plot on which she built was gifted
to her by her father. Having made these admissions, which stood unamended,
there was no room for the plaintiff and his witnesses to depart from these
admissions and the court, indeed, ought not to accept a case contrary to and
inconsistent with that which the party has pleaded. The authorities referred to
by the trial judge are in point namely: Dam v. Addo [1962] 2 GLR 200, SC and
Allotey v. Quarcoo [1981] GLR 208, C.A.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s admission that Afua Pokua built the houses and cultivated the farms
did not preclude him from explaining how she came to these acquisitions. The
admission did no more than to state the factual truth that she was the
instrument that brought them about. It was far from admitting that the block
houses and the farms were her “self-acquired” properties in the legal
connotation familiar to us all, ie they were not acquired as family properties.
It was the case for the plaintiff that Afua Pokua succeeded to other family
properties, notably those of her mother Kyaama (wrongly spelt in the record)
and of her brothers Adjabeng and Tuffour. One of these family farms was hewn
down during the cocoa rehabilitation and out of the compensation paid she put
up the main building of the block-house. Yaw Donkor was put in charge of this
building, and as the eldest male of the plaintiff’s family his name was
permitted to be used on the plans. The family subsequently authorized Yaw
Donkor to take out a bank loan to complete the boys’ quarters. Afua Pokua could
not pay up the bank loan before she died. The loan was still outstanding when
Yaw Donkor succeeded </main>