KUMA AND OTHERS vs. ASANTE [1992]DLCA4241

Date	1992-06-18
Suit No.
Citation No.	[1992]DLCA4241

AMUAH JA

ADJABENG JA

FORSTER JA

ALLOTEI MINGLE FOR THE APPELLANTS.

AWERE AWUKU FOR THE RESPONDENT.

[1992]DLCA4241
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													<main id="main" class="content" style="min-height: 60rem" >KUMA AND OTHERS<o:p></o:p>vs.<o:p></o:p>ASANTE<o:p></o:p>[COURT
OF APPEAL]<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">

[1993 - 4] 1 GBR 300 – 308&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
18 JUNE 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ALLOTEI
MINGLE 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">

AWERE
AWUKU FOR THE RESPONDENT.<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 1.0pt 0in">

AMUAH
JA, ADJABENG JA, FORSTER JA<o:p></o:p>

</div>FORSTER
JA. On 21st April 1987, the plaintiff-respondent (hereinafter referred to as
“the plaintiff”), Opanyin Kwame Asante, suing as the head of Salome Kwabena
family of the Aduana clan of Akropong Akwapim commenced an action at the
circuit court, Akropong Akwapim, against the defendants-appellants (hereinafter
called “the defendants”), all of Akropong Akwapim. By his writ the plaintiff
asked for:<o:p></o:p>&nbsp;“(1) Declaration that the late husband of the
1st defendant and father of the other defendants had no inheritable and or
transferable interest in the House No S90, Akropong Akwapim.<o:p></o:p>&nbsp;(2) Declaration that the death of Kwapong
Atiemo, the husband and father of the defendants, terminated any interest of
the defendants in House No S 90 , Akropong Akwapim.<o:p></o:p>(3) Injunction to restrain the
defendants and each of them from entering or having anything to do with House
No S90.<o:p></o:p>&nbsp;(4) ¢25,000 damages jointly and severally
against the defendants for false imprisonment.”<o:p></o:p>In
their statement of defence, the defendants counterclaimed for:<o:p></o:p>“(i) A declaration that house No S90
is family property belonging to the descendants of the late Joseph Atiemo and
not the plaintiff.<o:p></o:p>(ii) An injunction to restrain the
plaintiff from entering or having anything to do with house No S90 B, Akropong,
Akwapim.<o:p></o:p>&nbsp;(iii) ¢100,000 damages against the plaintiff
for nuisance and trespass.”<o:p></o:p>The
action was primarily between the customary family of the deceased, Kwapong
Atiemo, represented by the plaintiff, and the widow and children of Atiemo. The
gravamen of the case as set down in the summons for direction was :<o:p></o:p>“Whether House No. S90 was the
property of the plaintiff’s family or the property that was personally acquired
by late Atiemo and if so whether a valid customary gift was made in favour of
his children, nephews and nieces.”<o:p></o:p>During
the pendency of the action Opanyin Kwame Asante died and Rev Arko-Addo was
substituted as plaintiff.<o:p></o:p>For
the resolution of the conflicting claims by the parties, the trial court had to
be satisfied on the primary issue whether house No S90 was or was not the
property of the plaintiff’s family. The trial circuit judge was satisfied that
the said house was the property of plaintiff’s family and that the defendants
by their conduct had forfeited their right of occupation and were to be ejected
forthwith.<o:p></o:p>It
is against this judgment that the defendants appealed to this court.<o:p></o:p>Counsel
for the defendants contended before this court that the judgment could not be
sustained having regard to the evidence.<o:p></o:p>The
plaintiff’s case was that he was the head of family of Salome Kwabena Aduana
clan of Akropong and that the disputed house was built by Kwasi Yirenkyi on a
land he acquired from one Ama Obirebea. Kwasi Yirenkyi was the uncle of the
plaintiff’s mother. Upon the death of Yirenkyi in 1911, all his personally
acquired properties were inherited by Joseph Kwabena Atiemo. Atiemo had added
one room to the disputed house before his death intestate in 1951. The house
and other properties inherited by Joseph Kwabena Atiemo, being family property,
passed on to Kwasi Sabu, then to Kwame Asante and finally to the present
plaintiff. The plaintiff maintained that House No S90 was the property of the
Salome Kwabena family of Aduana clan of which he was the head. According to the
plaintiff, therefore, the estate acquired by Kwasi Yirenkyi, including the
disputed house passed on to successive successors of the family to the present
day. The plaintiff testified that Joseph Kwabena Atiemo, the father-in-law of
the 1st defendant who succeeded Kwasi Yirenkyi, never acquired any property of
his own. Kwabena Atiemo was a teacher who taught in schools in the Eastern and
Ashanti Regions. It was not disputed that the said Kwabena Atiemo died in 1951.<o:p></o:p>The
late Kwabena Atiemo had several children, Kwapong Atiemo, the husband of the
1st defendant being one of them. It was common cause that in 1951 when Joseph
Kwabena Atiemo died, his son Kwapong Atiemo was living outside Akropong and
that he married the 1st defendant in 1956. It was in 1960 that he retired from
his employment and came to live in the disputed house with his wife and
children and upon the permission of Kwame Asante, then head of family. This
was, in sum, the evidence of the plaintiff and his witness, PW2, Augustina
Abena Aninakwaah, a sister of the plaintiff, and who at the time of trial was
then aged 60 years.<o:p></o:p>The
plaintiff was 5 years old in 1911 and lived at Pratu near Tinkong. He however
came to live in the house in Akropong in 1914. He got to know from the family
that the house in dispute was built by Yirenkyi. He later became a minister of
the Presbyterian Church until his retirement in 1979 when he came to live
permanently in the house in dispute. The plaintiff’s source of evidence was
both traditional and personal knowledge. </main>