MR. GYAMFI AND 3 OTHERS vs. KONADU AMEYAW AND 3 OTHERS [2004]DLCA6528

Date	2004-01-28
Suit No.	CIVIL APPEAL NO.65/2002
Citation No.	[2004]DLCA6528

ADINYIRA (MRS) J.A. (PRESIDING)

ASIAMAH J.A

ANIM J.A

[2004]DLCA6528
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													<main id="main" class="content" style="min-height: 60rem" >MR. GYAMFI
AND 3 OTHERS<o:p></o:p>(PLAINTIFFS/
RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>KONADU
AMEYAW AND 3 OTHERS<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;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO.65/2002&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; &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:
28TH JANUARY 2004<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ADINYIRA, (MRS) J.A.
(PRESIDING) ASIAMAH, J.A AND ANIM, J.A<o:p></o:p>

</div>ASIAMAH,
J.A.<o:p></o:p>The
1st, 2nd and 3rd Appellants are the children of the testator, Akwasi Addae of
Sepase, Ashanti begat by Akua Addae, the 4th Appellant. The Late Akwasi Addae
was an industrious farmer. He acquired some forest land on the Adansihene Stool
Land at a place named as "Kwadwofobehunu" and cultivated it into
farms and later apportioned separate portions of this farm land in his Will
among his two wives, Akua Addae and Abena Dede and the children of Akua Addae
who are the joint appellants in this action. This testamentary disposition has
been stipulated in the Will tendered in evidence at the trial circuit court and
marked Exhibit B. <o:p></o:p>The
Will was executed on 22nd April 1979. It was on account of the disagreement
resulting from the distribution of the devise made in Exhibit B by the 1st
Plaintiff/Respondent who was an Executor to the Will and a maternal family
member of the testator that the Plaintiffs/Respondents Instituted an action at
the circuit court Kumasi for the interpretation of the Will and to ascertain
the specific locus devised to the testator's three children, the first three
Defendant/Appellants. <o:p></o:p>In
the course of the trial the court ordered a plan of the entire land of the
testator at "Kwadwofobehunu" to be made and this was done. <o:p></o:p>The
plan was tendered and marked Exhibit A. On Exhibit A is shown the area which is
in dispute between the Plaintiffs/Respondents, the maternal family members of the
testator on one side and the Defendant/Appellants the children and wife of the
testator on the other side. And for ease of reference the entire disputed land
is shown by the names of the two people whom the testator in his lifetime
engaged to develop it into cocoa farms. The two people are Kwadwo Ghana (PW3)
and Atia; the former was cultivating the portion given him by the testator on
"abunu" basis to be ultimately shared rateably between the testator
and Kwadwo Ghana, whilst the latter was a mere farm-hand to the testator. <o:p></o:p>By
the time Kwadwo Ghana started developing his portion of the land into a cocoa
farm in December 1978 Atia's cocoa farm had long started bearing pods and the
testator was enjoying the proceeds therefrom. The evidence of Yaw Sarpong (PW1)
and Opanin Nkrumah (PW2) testify to this fact. Both PW1 and PW2 have their
allotted portions of the testator's land contingent to the disputed farms. One
significant feature of Yaw Sarpong's farm is that it adjoins at two disparate
loci the farms designated on Exhibit A as Atia's farm and Kwadwo Ghana's farm
but there is no discernible boundary feature between Atia's farm and Kwadwo
Ghana's. The acreage of Atia's farm and that of Kwadwo Ghana's has been stated
on Exhibit A as 4.61 and 11.13 respectively. <o:p></o:p>The
issue that had to be resolved at the trial court was whether or not the devise
the testator made in favour of his three children, the first three
appellant-children in this suit encompassed both Atia's farm and Kwadwo
Ghana's. The lower court decided that it was only Atia's farm which was devised
to the appellant children. In the Will (Exhibit B) this is how the testator
stated his devise to the appellant-children: <o:p></o:p>“I give my one cocoa farm to my
children by my wife Akua Addae, namely, Kunadu Ameyaw alias Addae, Kwadwo
Amankwa and Kwaku Opoku. This farm is on Adansihene’s Stool Land and is
commonly called Kwadwofobehunu. It is in the Adansi District." <o:p></o:p>It
is bounded by the farms of one Mr. Nkrumah and Yaw Sarpong” <o:p></o:p>Yaw
Sarpong mentioned here is PW1 and he is the son of the testator by another wife
and half brother to the appellant children. Yaw Sarpong's farm is contiguous to
both Atia's farm and Kwadwo Ghana's farm which two farms belong to the testator
and form one continuous stretch of land. The testator ostensibly did not
mention the names of Atia and Kwadwo Ghana because the former was the
testator's farm labourer and therefore did not own the farm he was cultivating
neither did he have any interest legal or equitable in any portion of the farm,
and the latter because as to him, Kwadwo Ghana, the contract was executory as
he had not yet accomplished his undertaking to develop the whole land into a
cocoa farm even though he had already plunged into the cocoa cultivation process.
In the Akan farming Community once a person commences developing a piece of
land into a cocoa farm he straight away refers to his enterprise as his cocoa
farm. <o:p></o:p>The
testator was an Ashanti from Sepase and so an Akan farmer. The testator, an
industrious farmer and a benevolent father and husband was alive to his social
and paternal obligation and duty as </main>