KYEI AND OTHERS vs. AFRIYIE [1992]DLHC2038

Date	1992-12-14
Suit No.
Citation No.	[1992]DLHC2038

LARTEY J.

J. K. D. POBEE FOR THE PLAINTIFFS.

S. K. K. SOTOMEY FOR THE DEFENDANT.

[1992]DLHC2038
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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">KYEI AND OTHERS<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">AFRIYIE<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1992] 1 GLR 257<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: 14
DECEMBER 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J. K. D. POBEE FOR THE PLAINTIFFS.<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">

S. K. K. SOTOMEY FOR THE DEFENDANT. <o:p></o:p>

</div>JUDGMENT OF LARTEY J.<o:p></o:p>On 3 November 1981 the plaintiffs caused a writ of summons to
issue against the defendant wherein the claim was for the following reliefs:<o:p></o:p><p class="MsoNormalCxSpMiddle" style="margin-left:.5in;mso-add-space:auto;
text-align:justify;text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;
border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a)&nbsp;&nbsp;&nbsp; “An order that the defendant
shall repay to the first plaintiff the expenses, or such portion thereof,
incurred by the first plaintiff in respect of maintenance and education of the
second, third, fourth and fifth plaintiffs, infant children of Isaac Akohene
Asamoah from July 1977 till the date of judgment. <o:p></o:p><p class="MsoNormalCxSpMiddle" style="margin-top:0in;margin-right:0in;margin-bottom:
5.0pt;margin-left:.5in;mso-add-space:auto;text-align:justify;text-indent:-.25in;
mso-pagination:none;mso-list:l0 level1 lfo1;border:none;mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;
mso-border-shadow:yes">(b)&nbsp;&nbsp;&nbsp;
An order that the defendant shall maintain and educate the second,
third, fourth and fifth plaintiffs till their majority or attainment of full
age.”<o:p></o:p>On 30 June 1988 the claim was amended by adding an additional or
alternative claim as follows: “a declaration that the plaintiffs are entitled
to ownership and possession of plot No. 215A, Kwadaso Estate by virtue of the
Intestate Succession Law, 1985 (P.N.D.C.L. 111).”<o:p></o:p>The facts which were averred in support of the claim were that the
first plaintiff is the widow of one Isaac Akohene Asamoah (deceased) by whom
she had four children, who as at the date of filing the writ of summons were
all minors. The first plaintiff brought the action for herself and on behalf of
the children. According to the plaintiffs, during their lifetime Asamoah and
his brother Gyimah (both deceased), carried on business together, kept a joint
banking account and they acquired plot No. 0/18, Block 6, Odumasi, Kumasi and
plot No. 6, Block N, Asokwa, New Amakom Extension, Kumasi. In addition the late
Asamoah acquired plot No. 215A, Kwadaso Estate, Kumasi whilst the late Gyimah
acquired plot No. 215B, Kwadaso Estate, Kumasi. Asamoah died first and upon his
death all the properties together with the stock-in-trade devolved upon Gyimah,
and as customary successor he assisted the first plaintiff in the care of the
children of his deceased brother.<o:p></o:p>When Gyimah also died in 1977 the defendant was appointed his
customary successor and in that capacity she took possession of all the
properties of both Asamoah and Gyimah. However, according to the plaintiffs,
the defendant has refused and/or neglected, to care for, educate and maintain
the four children of Asamoah. And as the first plaintiff puts it, she has
spent, as at the time of filing the statement of claim, the sum of ¢90,830 in
discharging an obligation which the defendant refused or neglected to perform.
It was the contention of the plaintiffs that the defendant was bound by law to
care for, educate and maintain the second, third, fourth and fifth plaintiffs.
As shown earlier on, the statement of claim was later amended by claiming in
addition or in the alternative a declaration that the plaintiffs are entitled
to ownership and possession of plot No. 215A, Kwadaso Estate by virtue of
P.N.D.C.L. 111.<o:p></o:p>The defendant admitted that the first plaintiff had four children
with Asamoah but denied that the first plaintiff is the widow of the deceased,
saying that although she was the wife of the deceased she divorced him in the
course of his terminal illness and entered into concubinage with a member of
the Seventh Day Adventist Church whom she subsequently married and had three
children with. It was part of the defendant’s case that as a result of what her
sister, Akyaa Amanpene, did for Asamoah before he died, he (Asamoah) made a
customary gift of the estate house, plot No. 215A, to Akyaa Amanpene who paid customary
“aseda.” She denied that plot No. O/18 Block 6, Odumasi, Kumasi was acquired by
her late two brothers, claiming that it was rather acquired by her mother Adwoa
Pokuaa whom the defendant succeeded. According to her, she and her sister
Amanpene together with their mother assisted their said deceased younger
brothers by contributing their earnings towards the acquisition of the three
houses, but they allowed the properties to be acquired in the name of their
brothers alone because they were men. The defendant averred further that plot
No. O/18, Block 6, Odumasi devolved upon her as successor of Adwoa Pokuaa who
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