AKROFI vs. OTENGE AND ANOTHER. [1989]DLSC518

Date	1989-05-16
Suit No.
Citation No.	[1989]DLSC518

SOWAH C.J.

ADADE JSC

FRANCOIS JSC

OSEI-HWERE JA

AMPIAH JA

E. D. KOM FOR THE PLAINTIFF-APPELLANT.

W. A. N. ADUMUA-BOSSMAN FOR THE DEFENDANTS-RESPONDENTS.

[1989]DLSC518
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													<main id="main" class="content" style="min-height: 60rem" >AKROFI <o:p></o:p>vs. <o:p></o:p>OTENGE AND ANOTHER. <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1989-90]2 GLR 244<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:
16 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">

E. D. KOM FOR THE PLAINTIFF-APPELLANT.<o:p></o:p>

W. A. N. ADUMUA-BOSSMAN FOR THE
DEFENDANTS-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">

SOWAH C.J., ADADE AND FRANCOIS
J.J.S.C., OSEI-HWERE AND AMPIAH J.J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADADE J.S.C.<o:p></o:p>This case
commenced in the High Court, Koforidua where the plaintiff, describing himself
as head of family, sued to set aside the sale of a farm by public auction in
execution of a judgment obtained against one Lawrence Mark Gyewu alias Yaw
Gyewu in his private personal capacity. The said Gyewu is a member of the
plaintiff’s family. The plaintiff says that the farm did not belong to Gyewu
personally, and therefore could not be sold to satisfy his personal debts.
Accordingly, he sought a declaration of the family’s title to the farm;
recovery of possession; an order for accounts from the date of the sale till
the date of judgment; perpetual injunction; and lastly, an order to set aside
the sale.<o:p></o:p><o:p>&nbsp;</o:p>The trial
High Court judge found for the plaintiff on declaration of title, recovery of
possession and perpetual injunction. But he dismissed the claim for accounts,
and refused to set aside the sale. On appeal, the Court of Appeal, by a
majority of two to one, came to the conclusion that on the evidence the probabilities
are that the farm was not family property. The court therefore reversed the
High Court, and dismissed the plaintiff’s claim. From that decision the
plaintiff had come to this court on further appeal.<o:p></o:p><o:p>&nbsp;</o:p>It is
clear that the main issue for determination is whether the farm is family
property, or was the private property of Gyewu, the judgment debtor. In this
court the plaintiff has filed five grounds of appeal, but these are adequately
covered by the first two grounds only, namely:<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">“(1) The
Court of Appeal erred in holding that the plaintiff-respondent did not
discharge the onus of proof. (2) The Court of Appeal erred in law in holding
that the plaintiff-respondent had no capacity to sue as head of family.”<o:p></o:p><o:p>&nbsp;</o:p>To take
the second issue first. The plaintiff sued “for himself and on behalf of the
Okanta family of Larteh, Akwapim.” In paragraph (1) of the statement of claim
the plaintiff averred as follows: “(1) The plaintiff is the head of the Okanta
family of Larteh-Akwapim and brings this action for himself and on behalf of
the said family.” To this the defendant pleaded: “(1) The defendant is not in a
position to admit or deny paragraph (1) of the statement of claim.” In other
words, the defendant has no information or evidence one way or the other; he is
not in a position to say whether the plaintiff is the head of family or not.
The summons for directions set capacity down as the first issue – “whether or
not the plaintiff is the head of family of the Okanta family of
Larteh-Akwapim.”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s capacity having been put in issue, it was clearly his
responsibility to prove it. Did he do this? He mounted the witness-box and on
oath asserted:<o:p></o:p>“The
first head of family of the Okanta family was Tete Opeko Okanta, my
grandfather. The present head of family of the Okanta family is myself....Yaw
Gyewu is no more the head of family even though he is still alive. He was
enstooled as the Benkumhene of Akwapim and automatically I became the head of
family.”<o:p></o:p><o:p>&nbsp;</o:p>As to
this the defence did no more than put to him in cross-examination that he is
not the head of family, to which he gave the positive reply: “I am.” He was
supported in th</main>