BADU AND ANOTHER vs. KRA [1991]DLCA2218

Date	1991-05-09
Suit No.
Citation No.	[1991]DLCA2218

LAMPTEY JA

ESSIEM JA

OFORI-BOATENG JA

ADU-AMANKWAH FOR THE APPELLANTS.

AHENKORAH FOR THE RESPONDENT.

[1991]DLCA2218
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													<main id="main" class="content" style="min-height: 60rem" >BADU
AND ANOTHER<o:p></o:p>vs.<o:p></o:p>KRA<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 1
GLR 563<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">

</div>COUNSEL:<o:p></o:p>ADU-AMANKWAH
FOR THE APPELLANTS.<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 RESPONDENT. <o:p></o:p>

LAMPTEY,
ESSIEM AND OFORI-BOATENG JJA<o:p></o:p>

</div>JUDGMENT
OF ESSIEM JA.<o:p></o:p>The only
point in controversy between the parties in this litigation is the ownership of
house No. NT 78, Akim Oda. It was the case of the plaintiff that the said house
was the self-acquired property of his late father while the defendant and
co-defendant contended that the plaintiff’s father acquired that property from
proceeds of certain family properties he had inherited during his lifetime and
therefore the property was family property.<o:p></o:p>The
plaintiff’s father, Kwaku Abeh, made a will and bequeathed this particular
property to the plaintiff and his brothers and sisters, ie the children of the
late Kwaku Abeh. The defendant and co-defendant are nephews of the late Kwaku
Abeh who died on 20 September 1985.<o:p></o:p>The
plaintiff admits that the co-defendant, Kwaku Boadi also known as Kwaku Dauda,
was his father’s customary successor. During the funeral celebrations of the
plaintiff’s father, a lawyer came to Ofoase where the funeral was being
celebrated to read the will of the deceased but members of the deceased’s
family protested against the reading of the will. It appears the children took
the matter to the Ofoase “ahenfie.” The deceased’s family members were invited
to the “ahenfie” and again the will could not be read because, as the plaintiff
put it under cross-examination, “the members of the family were annoyed and so
we dispersed and the lawyer left.”<o:p></o:p>The
evidence shows that the will was subsequently read at the High Court, Koforidua
and the plaintiff later obtained letters of administration with the will
annexed. However, before then the defendant had been collecting rents from the
property and the plaintiff instituted this action against him for a declaration
of title and an order for accounts. The co-defendant applied and joined because
he, as customary successor of the late Kwaku Abeh, authorised the defendant to
collect the rents and also claimed that the property was family property. There
is clear and undisputed evidence on the record that the late Kwaku Abeh enjoyed
the property in dispute as his own during his lifetime. The implication of the
appellants’ case is that whenever a person inherits property as a customary
successor any subsequent property he acquires becomes family property. I cannot
accept this, in the face of decided cases, as the correct customary law
position. Even if the proposition is part of the customary law, but I doubt it,
then where there is evidence that the person through his own hardwork and
industry could acquire the new property, the family will have to lead
satisfactory evidence to establish its claim to the property.<o:p></o:p>In the
instant case, the deceased, from the evidence, was a farmer, transport owner
and a trader. The plaintiff’s evidence is clear that it was the deceased who
acquired the land from the Omanhene of Oda. Both the plaintiff and the first
plaintiff witness are agreed that it was the deceased who put up that building
on the plot and that they helped in the work. The first plaintiff witness, the
widow, gave a detailed account of the trading, transport and farming activities
of the deceased. She also offered evidence of other properties the deceased
acquired and also evidence that the deceased improved upon an uncle’s house.
This evidence supported the plaintiff’s evidence and the defence did not
dispute it.<o:p></o:p>The
family’s claim is that the deceased was able to engage in the transport and
trading business because of the proceeds he obtained from the farms he had
inherited. They admit the properties the deceased acquired but they contend
that the properties were all acquired from the proceeds of the farms; they
argue that since the deceased obtained money for his trading from revenue
earned from the farms he inherited, the properties were family properties.<o:p></o:p>After
reviewing the evidence, the trial circuit court found that Kwaku Abeh acquired
his properties from his own funds. The court upheld the plaintiff’s claim and
gave him judgment accordingly, except in respect of one chamber and a hall
which the defendant is occupying.<o:p></o:p>It is
well to state that there is always a presumption that a judgment pronounced is
correct until it is shown that it is not. Thus a person who appeals and
challenges the correctness of a judgment has the burden to demonstrate from the
record that the judgment in question was wrongly decided either on the facts or
on the law or both.<o:p></o:p>I am also
of the opinion that the decision in Boateng alias Be</main>