EDAH vs. HUSSE [1989]DLCA584

Date	1989-05-12
Suit No.
Citation No.	[1989]DLCA584

OSEI-HWERE J.A

AMPIAH J.A

ESSIEM J.A.

PROFESSOR W. C. EKOW DANIELS FOR THE PLAINTIFFS.

N. N. HEWARD MILLS FOR THE DEFENDANTS.

[1989]DLCA584
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													<main id="main" class="content" style="min-height: 60rem" >EDAH <o:p></o:p>vs. <o:p></o:p>HUSSE <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1989-90] 1 GLR 359<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:
12 MAY 1989<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">

PROFESSOR W. C. EKOW DANIELS FOR THE PLAINTIFFS.<o:p></o:p>

N. N. HEWARD MILLS FOR THE DEFENDANTS.<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">

OSEI-HWERE, AMPIAH AND ESSIEM JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMPIAH J.A.<o:p></o:p>The plaintiff-respondent
in the action claimed to be the grandson of one Hussey and therefore a direct
descendant with a better right to succeed to Hussey’s properties. Accordingly
he sued the defendant-appellant who was said to be a descendant of a slave who was
adopted into the Hussey family, for:<o:p></o:p>“(1) A
declaration of title to all that piece or parcel of land situate at
Avoeme-Aflao and bounded on one side by land belonging to Akligo on another
side by a piece of land reported to belong to Adanbu Hussey and Pomeavor Hussey
on another side by pieces of land belonging to Lawrence Agbagba Hussey and
Gamade Hussey and on the last side by Lawrence Kudawu and Adorkor Muvlo. (2)
Recovery of possession. (3) ¢1,000 damages for trespass. (4) An order of
perpetual injunction.”<o:p></o:p><o:p>&nbsp;</o:p>The
defendant who admitted being the descendant of a slave who had been adopted
into the family, denied that the plaintiff had been appointed to succeed to the
property in dispute. He claimed that after the death of Agbagba, a son of
Hussey, he (the defendant) was appointed as head of the family and therefore
was vested with power to protect and control the ancestral property of the
Hussey family.<o:p></o:p><o:p>&nbsp;</o:p>It was
not very clear from the evidence which land the plaintiff was claiming he was
entitled to succeed to. It is agreed by the parties that Hussey gave portions
of the land he founded to each of his sons including Edah who was brought to
the family by Awagayibo. It is admitted by both parties that a portion of
Hussey’s land was undistributed and that it was this portion that was given to
van-Lare and subsequently retrieved from his daughter Wilhemina van-Lare; this
was the land which was referred to as the ancestral land and which property was
properly the subject matter in dispute. In the particular circumstances, I
would agree with the learned trial judge that the identity of the land in
dispute was not in issue. The main issue was the question of succession and the
learned trial judge posed the issue thus: “The main issue for determination is
whether the plaintiff or the defendant should succeed Hussey.”<o:p></o:p><o:p>&nbsp;</o:p>With
great respect to the learned trial judge I think the manner in which he posed
the issue for determination was bound to involve him in some confusion. The
issue was about succession but it was not “who should succeed Hussey”; it was
“who has been appointed to succeed to the said ancestral property of Hussey.”
It was therefore no wonder that the learned trial judge found not who had been
appointed to succeed but who had a better right to succeed. It is his
conclusion which has led to the defendant-appellant’s complaint that the
judgment was against the weight of the evidence.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence showed that the property in dispute, since it had not been allocated
to any particular person, was regarded as an ancestral property which had been
succeeded to by the various heads of the family; the allocated ones were
succeeded to by members of the particular line whose head was first allocated
the land. That was why the plaintiff succeeded to Agbanu’s land the defendant
to Edah’s, and the second plaintiff witness to Gamade’s; the lands which were
originally allocated to their fathers. The evidence further showed that when
Kukporti, Sodande Pomeavor and Agbagba succeeded as heads, they were all in
charge of this disputed land. That was why it became necessary for the
plaintiff to ask permission of Agbagba, the then head of family, to retrieve
the land from Wilhemina van-Lare. The plaintiff never paid anything to get the
land back. According to the defendant, Agbagba died in 1961. Consequently, in
whatever manner the plaintiff had the land back, the property remained an
ancestral property under the control of Agbagba. And the plaintiff would have
the same interest in the property as any other member of the family.<o:p></o:p><o:p>&nbsp;</o:p>