SETH ASANTE vs. NANA YAW BOAKYEM, (SUB. BY ERIC O. BAIDOO) OPANIN KWAME ATIA [2002]DLCA6965

Date	2002-06-18
Suit No.	CA/NO. 173/2001
Citation No.	[2002]DLCA6965

OMARI-SASU JA (PRESIDING)

OWUSU-ANSAH JA

AMONOO-MONNEY JA

[2002]DLCA6965
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													<main id="main" class="content" style="min-height: 60rem" >SETH ASANTE<o:p></o:p>(PLAINTIFF-RESPONDENT)<o:p></o:p>vs.<o:p></o:p>NANA YAW BOAKYEM, (SUB. BY ERIC O. BAIDOO) OPANIN KWAME ATIA<o:p></o:p>(DEFENDANTS-APPELLANTS)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM: <o:p></o:p>OMARI-SASU
JA (PRESIDING), OWUSU-ANSAH JA, AMONOO-MONNEY JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>OMARI-SASU,
J.A:<o:p></o:p>The
Plaintiff-Respondent who will henceforth be referred to simply as the
Respondent sued the Defendants-Appellants who will henceforth be referred to as
the Appellants in the High Court, Koforidua which was presided over by Mrs.
Sophia Adinyira J. (as she then was) for <o:p></o:p>(a)
Declaration of title to land at Senchi in the Eastern Region of the Republic of
Ghana measuring about 70.91 acres<o:p></o:p>&nbsp;(b) ¢3million general damages for trespass and<o:p></o:p>&nbsp;(c) perpetual injunction to restrain the
Appellants from further entry onto the land in dispute. <o:p></o:p>At
the end of the trial the learned trial Judge on 25th June 1998 entered Judgment
for the Respondent and gave him title to the said land.<o:p></o:p>&nbsp;The Respondent was awarded damages for
trespass by the Appellants and the Appellants were restrained from further
entry onto the land. <o:p></o:p>They
appealed against the said judgment and grounds of Appeal and written
submissions have been filed on behalf of the litigants herein by their
respective Counsel. For the purpose of this judgment I shall deal with the
original ground alleging that the Judgment is against the weight of evidence
and the second ground which alleges that the case of the Defendants was not
adequately considered but before then I shall state the brief facts of the case
which are not mainly in dispute. <o:p></o:p>The
Respondent is son of one Kwame Amoaforo (deceased) who hailed from Jakiti in
Akwamu Traditional Area of the Eastern Region and he says his late father in
the year 1950 bought the land in dispute for £200 from one Isaac Mensavi
Dugbatey, an Ada-man who had lived at Senchi but had decided to go to his home
town for good. <o:p></o:p>The
sale was evidenced in writing in 1960 and was consented to by late Nana Kwafo
Akoto, the Omanhene of Akwamu Traditional Area and witnessed by two of his
elders. <o:p></o:p>The
late Kwame Amoaforo was succeeded by his nephew Kwaku Osei who is said to have
gifted the land in dispute to Respondent and his brothers and sisters. <o:p></o:p>The
Respondent had said in the court below that the Appellant had been engaging in
acts of harassment against the Respondent and had sold out portions of the
disputed land to others.<o:p></o:p>&nbsp;The 1st Appellant on his part claimed in the
court below that the property in dispute formed part of his stool property and
admitted entering upon it and granting portions to others including the 2nd
Defendant but he says he performed these acts in his capacity as Mankrado of
Senchi. <o:p></o:p>From
the processes filed the main contention of the Appellants is that the
Respondent had no capacity to sue and also he was not entitled to a declaration
of title and the other reliefs he claimed.<o:p></o:p>&nbsp;On capacity: Respondent’s case is that
the property was gifted to him, his brothers and sisters by the customary
successor of his late father called Osei Kwaku and they gave this Osei Kwaku
customary “aseda” in the shape of a live ram and drinks. <o:p></o:p>The
Appellants contend that even if late Amoaforo had bought the land (which is
denied) on his death intestate the land would become the property of Amoaforo’s
family at Jakiti and thus the customary successor had no right of his own to
gift the land to Respondent and his brothers and sisters, without the consent
of the head of Amoaforo’s family and his elders. In our case there was no such
consent thus the Respondent had no capacity to sue for declaration of title and
the other reliefs. <o:p></o:p>I
accept the contention by the Appellants on this issues as a correct statement
of the customary law concerning gifts inter vivos of land. The Donor must own
the property he intends to gift.<o:p></o:p>&nbsp;Since on the death intestate of late Mr.
Amoaforo his family had appointed his nephew Osei as customary successor, the
land in dispute if it belonged to late Amoaforo had become his family property.
The Head and principal members must have approved of the gift and the
Acceptance must have been followed by “Aseda” which should have been given to
the family publicly and not to Osei privately.<o:p></o:p>&nbsp;See: <o:p></o:p>