EB. KWEKU EDUAFO NANA ASSAN VII vs. NANA ACUAH [2008]DLHC7407

Date	2008-06-09
Suit No.	CONS. LS 7 & 8/94
Citation No.	[2008]DLHC7407

ALHAJI M.A. MUSTAPHA J.

MR. PETER ABABIO FOR PLAINTIFF

MR. B. B. ODRO FOR DEFENDANT

[2008]DLHC7407
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >EB. KWEKU EDUAFO NANA ASSAN VII<o:p></o:p>vs.<o:p></o:p>NANA ACUAH<o:p></o:p>[HIGH COURT, CAPE COAST]&nbsp;<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">

</div>COUNSEL:<o:p></o:p>MR.
PETER ABABIO FOR 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">

MR. B. B. ODRO FOR DEFENDANT <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">

ALHAJI M.A. MUSTAPHA, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>The
plaintiff herein issued two separate writs against the defendant. In suit No.
7/94, the plaintiff sued for a declaration of title to all that piece or parcel
of land called “Pompomo, which said piece or parcel of land is bounded by the
properties of nana Akwa, Nana Ampong and Ekumfi Swedru. In suit No. 8/94, the
plaintiff sued for a declaration of title to all that piece or parcel of land
situate at Akwakrom and commonly called “Anomakyia land”, which is bounded by
the property of Nana Kojo Essoun, the property of Nana Akwa, the defendant
herein, the property of Nana Kwame Sekyi also known as Pappy, the property of
Nana Adoko, the property of Nana Kojo Apprey, the property of Akua Nyamekye and
the property of Kojo Apprey. <o:p></o:p>In
both cases, the defendant denied the plaintiff’s claim and also counterclaimed
for both suits. <o:p></o:p>In
the case of ODAMETEY V. CLOCUH (1989-90) GLRD, the Supreme Court held that— <o:p></o:p>“the present position was that if the
plaintiff in a trial suit failed to discharge the onus on him and thus
completely failed to make a case for the claim for which he sought relief, then
he could not rely on the weakness in the defendant’s case to ask for relief. If
however, he made a case which would entitle him to relief if the defendant
offered no evidence, then if the case offered by the defendant when he did give
evidence disclosed any weakness which tended to support the plaintiff’s claim,
then in such a situation the plaintiff was entitled to rely on the weakness of
the defendant’s case to strengthen his case”. <o:p></o:p>The
background to this case is that whereas there is no denying the fact that the
plaintiff happens to be the descendant of the original chief of Akwakrom. They
are contending that the land belongs to them as of right; whilst the defendant
is contending that they are children of a male member of the family and were
placed on the land as caretakers. <o:p></o:p>It
is the plaintiff’s case that whilst Nana Acquah I was breaking the virgin
forest of a particular portion of land, they as children after helping him also
went elsewhere to break a portion of the land. That is their contention and it
is in respect of what they claim to have broken the forest that they are asking
for a declaration of title. <o:p></o:p>In
the case of AKYEA-DJAMSON V. DUAGBOR (1989-90) GLRD 25 the Supreme Court held
that— <o:p></o:p>“The entities which owned land
allodially in Ghana were Stools, Families or individuals. They were the
original owners of land under the indigenous law and their title was founded on
or could be traced to immemorial and long continued enjoyment under a claim of
right originating from first settlement, cession or acquisition by conquest.
Accordingly, every individual land owner under customary law must be able to
trace his title to one of those entities”. <o:p></o:p>In
the statement of claims accompanying both suits, the plaintiff averred that the
virgin forest of the land was broken by plaintiff’s great ancestors, nana
Assan, Kwa Wi and Kwa Asante, who were brothers and who together with their
sister Obaapanyin Asanoba, their mother Esi Kuraba and their father Nana Acquah
I, migrated from Tekyiman in the 14th century and subsequently settled at the
present Akwakrom. The plaintiff’s ancestor’s father founded Akwakrom and was
the first chief. The plaintiffs contended that their great ancestors, namely,
Nana Assan, Kwa Wi and Kwa Asante were adults when they arrived from Techiman
with their father Nana Acquah I, chief of Akwakrom, their mother and sister
from Tekyiman; and even though they assisted their father on his farm they also
made their own farms. They further contended that their great ancestors
combined farming with hunting expeditions and explored and physically occupied
the lands in dispute. They further contended that the virgin forest which their
ancestors broke is distinct from their father Nana Acquah’s land and that the
lands in dispute has since the death of their great ancestors been succeeded to
in turns by their matrimonial lineage to the present generation. <o:p></o:p>The
defendant in both statements of defence contended that the members of the
plaintiff’s said family happen to be ‘Mbabanyin’ and therefore the defendant’s
ancestors placed the plaintiff’s family with the arrangement that plaintiff’s
family render accounts to the defendant’s family in respect of their
stewardship which arrangement plaintiff’s family had been complying with until
recently. <o:p></o:p>The
plaintiff’s Attorney repeated the averments contained in the statement of claim
but did not lead any evidence to corroborate those assertions. The Attorney
said he was giving evidence on behalf of Ebusuapanyin Kweku Eduafo who is the
head of the Odomna</main>