YIRENKYI vs. SAKYI [1989]DLCA2329

Date	1989-10-25
Suit No.
Citation No.	[1989]DLCA2329

OSEI-HWERE JSC

AMPIAH JA

ESSIEM JJA

NARH FOR THE DEFENDANT-APPELLANT.

AHENKORAH FOR THE PLAINTIFF-RESPONDENT.

[1989]DLCA2329
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													<main id="main" class="content" style="min-height: 60rem" >YIRENKYI<o:p></o:p>vs.<o:p></o:p>SAKYI<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 1
GLR 217<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 25 OCTOBER 1989<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NARH FOR
THE DEFENDANT-APPELLANT.<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">

AHENKORAH
FOR THE PLAINTIFF-RESPONDENT. <o:p></o:p>

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

</div>JUDGMENT
OF OSEI-HWERE JSC<o:p></o:p>The
result of this appeal, in one aspect, is pivoted on the personal customary law
of Kwaku Bekoe, deceased. The said Kwaku Bekoe was the father of the defendant
and the maternal cousin, once removed, of both Opanin Kwaku Mabre, the deceased
plaintiff, and his substitute, Kwabena Twum Sakyi. Sakyi is a younger brother
of the full blood to Mabre. The maternal family of Bekoe, Mabre and Sakyi has
its seat at Akropong-Akwapim and goes by the name of Amoakare. The farm that
launched the dispute between the parties is situate at Abesim, near Suhum on
Akyem-Abuakwa stool land. It was commonly agreed that the forest land was
originally reduced under cultivation by Bekoe.<o:p></o:p>An
important point of divergence between the disputants was as to the original
acquisition of the Abesim land. As pleaded in paragraph 4 of the plaintiffs
statement of claim, the Abesim land (on which the farm was cultivated) was
purchased by the maternal uncle of Bekoe called Kofi Amoah who “gave it as a
gift to the children of his late sister Ampeaa to cultivate for themselves as
family property.” Ampeaa was the mother of Bekoe. It was further pleaded by the
plaintiff that Bekoe, as the son of Ampeaa, came to cultivate the said land
into a cocoa farm on behalf of himself and his brothers and sisters. The
defendant resisted the source of the original acquisition of the land by Kofi
Amoah as pleaded and maintained, by way of defence, that his father originally
acquired the forest land by purchase and cultivated it as his personal
property.<o:p></o:p>It was
further averred in the statement of claim that on the death of Bekoe, the farm
came to other members of the family by right of succession until it eventually
came to the late Kwasi Patape who on his death was succeeded by the plaintiff
(Mabre) who thus became the owner of the property. According to the plaintiff,
he appointed the defendant caretaker to supervise the “abusa” tenants on the
land and collect on his behalf the “abusa” proceeds. The defendant, as averred,
duly accounted to him for the first year of his caretakership (that is, during
the 1980-81 cocoa season) but refused to account to him for the 1981-82 cocoa
season. This gave the plaintiff cause to sue for accounts and injunction to
restrain the defendant from interfering with the farm.<o:p></o:p>The broad
stand taken by the defendant in opposition to the plaintiff was that on the
death of his father his younger brother Kofi, Yirenkyi succeeded to the farm on
behalf of Bekoes children. After the death of Yirenkyi, his maternal cousin
called Gyadu tried to take over the farm but he was ousted by Akosua Manubea,
the defendants father’s uterine sister who was the real successor to Kofi
Yirenkyi. When, after the death of Manubea, the farm came into the hands of
Patape(another maternal cousin of his father) the defendant resisted him all
through up to his death. It was for this reason and also for the stand Akosua
Manubea had previously taken against Gyadu that when the plaintiff came to
succeed Patape he openly disowned his family’s title to the farm and admitted
that it belonged to the defendants father and that the defendant should
therefore take over what rightfully is for him and the other descendants of his
father.<o:p></o:p>The basis
for the defendants claim to the farm is that he and his late father are Krobos
and that succession among the Krobos is patrilineal. Accordingly, as the
plaintiff belongs to the Amoakare family of Akropong-Akwapim (whose customary
system of succession is matrilineal), it is asserted that he has no right
whatsoever to the self-acquired property of Kwaku Bekoe. Wherefore the
defendant counterclaimed for a declaration of title and for perpetual
injunction against the plaintiff and the Amoakare family.<o:p></o:p>We gather
from the evidence at the trial that Kofi Amoah had four sisters, namely Ampeaa,
Amma Apesiwaa, Abenaa Otuwaa and Ansong; and a brother called Kwaku Badu. The
children of Ampeaa were Kwaku Bekoe, Kofi Yirenkyi, Kwapong and Akosua Manubea;
the children of Otuwaa were Gyadu, Patape, Yaw Opare, Ampomaa and Abena Fosuaa;
Mabre and Kwabena Twum Sakyi and Takyiwaa were the children of Apesiwaa; and
Kofi Apenteng was a child of Ansong. Although it was not disputed that Kofi
Amoah made separate gifts of virgin lands he bought to each of his sisters,
namely Apesiwaa, Otuwaa and Ansong together with their children, yet the
plaintiff’s evidence on the nature of the gift so far as Ampeaa and her
children were concerned was equivocal.<o:p></o:p>As
pleaded in the statement of claim, already noted, Kofi Amoah made a gift of the
Abesim land to the children of Ampeaa. In his evidence on oath he said in one
breath that Kofi Amoah bought the land for his sister Ampeaa and her children
and in another breath that he bought the land for Ampeaa’s children. The
evidence of the second plaintiff witness, Oheneba Bekoe Akuffo, who is also the
head of the wider Amoakare family, still confused the issue when he said that
when Kofi Amoah bought the land at Abesime he gave the land to the defendant’s
father Kwaku Bekoe as a gift.<o:p></o:p>