DOUDU vs. KWASI [1992]DLHC2008

Date	1992-11-16
Suit No.
Citation No.	[1992]DLHC2008

LARTEY J.

J. B. O. POBEE FOR THE PLAINTIFF.

K. POKU APPIAH FOR DEFENDANTS.

[1992]DLHC2008
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">DOUDU<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KWASI<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1992] 1 GLR 109<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: 16 NOVEMBER 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J. B. O. POBEE FOR THE PLAINTIFF.<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">

K. POKU APPIAH FOR DEFENDANTS.
<o:p></o:p>

</div>JUDGMENT OF LARTEY J.<o:p></o:p>The plaintiff’s claim on the writ of summons as indorsed and
sealed on 5 February 1986 is against the defendants jointly and severally for a
declaration that his family are owners of all that cocoa and kola nut farm and
building situate at Twendaso, which land was described as bounded by the
properties of Opanin Kwabena Komoo, Kwasi Wiafe, Afia Adusah, Kojo Asubonteng,
Kwabena Attakorah, Kwame Fosu and the Odeh stream.<o:p></o:p>The plaintiff is the customary successor of I B Asamoah (deceased)
and claims to bring this action for himself and other members of the family of
the said I B Asamoah. The first and second defendants are the executors
appointed under the last will of the said I B Asamoah. By the said will the
testator purported to devise to his children, the third defendant and his
brothers and sisters, the said cocoa and kola nut farm at Twendaso and a
building at Pokukrom on Offinso stool land. It was the plaintiff’s story that
sometime ago one Kwasi Ketewa said to be the maternal uncle of the plaintiff, in
right of a native, acquired a parcel of virgin forest land at Twendaso. Kwasi
Ketewa died before cultivating the whole area and was succeeded by his brother
Kwabena Nyankyera who completed the cultivation and extended the farm and was
said to have built the cottage at Pokukrom. It was also pleaded that whilst
Kwabena Nyankyera was in possession of the farm the plaintiff’s family
including the late I B Asamoah refused to permit Nyankyera to make a gift of
portions of the farm to his wives on the ground that the said farm was family
property.<o:p></o:p>It was further pleaded that I B Asamoah had been an employee of
the Ministry of Health until 1972 when he retired and came to live in Kumasi
and in about 1977, on a plea of Asamoah, Kwabena Nyankyera allowed him to enjoy
the proceeds of the Twendaso farm. Upon the death of Nyankyera in about 1980, I
B Asamoah was appointed customary successor to Nyankyera whereupon family
properties including the disputed farm and cottage became vested in the said I
B Asamoah. It is the plaintiff’s case that I B Asamoah is estopped by his
conduct from denying the family character of the disputed properties. It is
finally his case that the purported devise of the Twendaso farm and the cottage
is ineffectual.<o:p></o:p>The defendants denied all material averments contained in the
amended statement of claim. Their version was that it was the late I B Asamoah
who acquired the land on which the cocoa farm is situated and on account of his
employment in the Ministry of Health Asamoah appointed the late Kwasi Ketewa
and the late Kwabena Nyankyera to be caretakers of the cocoa farm. It was
further their averment that it was the late Asamoah who paid all expenses in
respect of the cultivation of the farm; he also, according to them, fed and
clothed the two caretakers who received remuneration both in cash and in kind
from the late I B Asamoah. In respect of the cottage, they averred that it was
built by Asamoah. They admitted that Kwabena Nyankyera attempted to give a
portion of the cocoa farm to his wives, but it was I B Asamoah who objected to
Nyankyera’s intention in his own and individual right, the said farm being his
individual property. It was their case that after his retirement as a sanitary
inspector the late Asamoah asked Nyankyera to hand over the cocoa farm to him,
but as Nyankyera was reluctant a complaint was lodged with Opanin Arhin who
after going into the matter ruled that Asamoah was entitled to take over the
farm as his self-acquired property, whereupon Nyankyera handed over the farm
and the cottage to the late I B Asamoah.<o:p></o:p>The starting point in this judgment relates to the acquisition of
the Twendaso farm, the subject matter of the litigation, and on this point the
plaintiff led evidence to the effect that on his return from his sojourn Kwasi Ketewa
had told him of his (Ketewa’s) acquisition of a piece of land at Twendaso. The
most elaborate account of the acquisition of the land by Ketewa was given by
Kwadwo Asubonteng, the second plaintiff witness, and to a lesser extent the
third plaintiff witness. The second plaintiff witness claimed he was the first
to go on to the Twendaso land because he discovered the virgin forest. On this,
he was not seriously challenged. He mentioned Kwasi Ketewa and Nyankyera, among
others, who also cultivated farms at Twendaso and with whose farms he shared
common boundaries. The third plaintiff witness for his part, specifically
mentioned Nyankyera as a boundary owner. It was not disputed that after the
death of Kwasi Ketewa his properties devolved on his brother Nyankyera as
successor. It was the case of the plaintiff that Ketewa cultivated the land for
three seasons before he died and after his death, Nyankyera extended it, which
extension he later sold without planting anything thereon.<o:p></o:p>On this issue of the acquisition of the land, evidence was led for
the defendants through the second defendant, the first defendant and the first
defendant witness. The second defendant’s account on this point was to the
effect that I B Asamoah came to Kotoke where he asked Ketewa to look for a
piece of land for him for the cultivation of cocoa. Then Kwas</main>