MADAM AFUA NSIAH vs. KOFI KYENKYENHENE & ORS [2008]DLSC2461

Date	2008-02-27
Suit No.	CA. NO. J4/26/2006
Citation No.	[2008]DLSC2461

(MRS) WOOD CJ (PRESIDING)

BROBBEY JSC

ANSAH JSC

ANINAWAH JSC

ASIAMAH JSC.

[2008]DLSC2461
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													<main id="main" class="content" style="min-height: 60rem" >MADAM AFUA NSIAH<o:p></o:p>vs.<o:p></o:p>KOFI KYENKYENHENE &amp; ORS<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CA.
NO. J4/26/2006<o:p></o:p>DATE:
27TH FEBRUARY 2008.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="text-align:justify;line-height:115%;border:none;
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</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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(MRS)
WOOD CJ (PRESIDING), BROBBEY JSC, ANSAH JSC, ANINAWAH JSC, ASIAMAH JSC.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>ANINAKWAH,
JSC:-<o:p></o:p>This
is an appeal against the&nbsp; judgment of the
Court of&nbsp; Appeal reversing&nbsp; the judgment&nbsp;
of the High Court, Kumasi delivered on the 11th day of&nbsp; December,&nbsp;
2002, which granted all the reliefs’ sought by the plaintiff and
dismissed the defendants’ counter claim.<o:p></o:p>Aggrieved
by the High Court decision, the appellant (hereafter referred to as the
defendant), successfully appealed against the judgment of the High Court and
had it reversed.<o:p></o:p>The
plaintiff&nbsp; who claimed to be the Head of
her family&nbsp; sued on behalf&nbsp; of her maternal family of&nbsp; Ampabame, Kumasi-Ashanti, against the
defendants claiming:-<o:p></o:p>“(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Declaration that House No. AM.9,
Ampabame, Kumasi, devised by late Opanin Kwabena Asante in his last Will dated
18th September,&nbsp; 1986, is the property of&nbsp; the family.<o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order of recovery of possession of
the said house.<o:p></o:p>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Perpetual Injunction to restrain the
defendants”.<o:p></o:p>&nbsp;In her Statement of Claim, the Plaintiff avers
that she is the head of her maternal family and that she brought the action on
behalf of her said maternal family. She alleges that Defendants are the
children of the late Kwabena Asante alias Kwabena Dan, her granduncle. That
late Kwabena Asante was one of the four children of her great grand mother the
late Ateakosuaa, and that her family lived at Old Ampabame in Kumasi.<o:p></o:p>&nbsp;It is her case that the Old Ampabame Township
was relocated from its old site to its present site, to give way to the Owabi
head-works. The then Gold Coast Government paid a compensation of £30 to each
household for each house lost as a result of the re-location. Unspecified sums
of money were also paid as compensation for each farm lost. Plaintiff&nbsp; alleges further that the late Kwabena&nbsp; Asante&nbsp;
received the compensation paid for their family house at Ampabame, as
well as the&nbsp; unspecified sums of money
paid for the&nbsp; cocoa farm of the late Kojo
Mosi the then deceased brother of&nbsp;
Kwabena&nbsp; Asante. That it was those
sums of money received by Kwabena Asante as compensation for the family house
and Kojo Mosi’s farm that Kwabena Asante applied to the building of the
disputed house.<o:p></o:p>&nbsp;The defendants denied the plaintiff’s capacity
and her claim that the house in dispute is her maternal family property.<o:p></o:p>&nbsp;For their part it is their case that no
compensation was paid to any household for any house lost and that Kwabena
Asante did not receive any compensation on behalf of the plaintiff’s family,
which he could have applied to the building of the disputed house.<o:p></o:p>&nbsp;According to defendants, the plot on which the
house stands was acquired for £5 from Asafo Akowuah, the overlord of the
Ampabame Kojo Krom Stool.<o:p></o:p>&nbsp;That the house was put up solely from the
resources of PW1, (the wife of Kwabena Asante) and Asante himself. The disputed
house, therefore, is the self-acquired property of the deceased testator.<o:p></o:p>&nbsp;At the trial Plaintiff called two witnesses,
both of whom gave evidence before plaintiff gave her evidence.<o:p></o:p>&nbsp;Her first witness PW1 Akosua Yentumi gave
evidence which clearly exposed plaintiff; firstly as to her claim to be the
Head of her maternal family and secondly as to how the house in dispute was
acquired. In her evidence PW1 stated thus:<o:p></o:p>“I am Akosua Yentumi, I live at
Ampabame near Kumasi and is (sic) a farmer. Roughly I am over 100 years now. I
know the plaintiff&nbsp; herein who is my&nbsp; grand daughter. I also know the three
defendants&nbsp; herein. I remember the
late&nbsp; Yaa Ateakosuaa. She was my mother.
Apart from me the&nbsp; late Yaa Ateakosuaa
did not have other child. I know one Afua Nyarko, DW1. She is my
sister-in-law&nbsp; as she was married to my
brother, Kwabena Dan alias Kwabena Asante. I know the house in dispute, House
No. AM.9 Ampabame Kumasi. This house was&nbsp;
built by&nbsp; my mother, Yaa
Ateakosuaa now&nbsp; deceased. Therefore,
that&nbsp; house&nbsp; belongs to me. Prior to my mother building or
acquiring&nbsp; this house, she was staying at
the Old town of Ampabame. However, the Colonial Government asked my mother to
vacate the old town. She was given&nbsp;
compensation&nbsp; of thirty pounds
which she&nbsp; used to put up this building.
My mother&nbsp; acquired this land from one
Kwabena Mensah who was then the chief of Ampabame. My mother applied the £30
thirty pounds&nbsp; compensation and added
some money to same to put up the&nbsp; house
in dispute. Some proceeds from the&nbsp; cocoa
farm of my mother’s brother&nbsp; one Mosi now
deceased was also used to put up the disputed house”.<o:p></o:p>&nbsp;In addition to PW1 was PW2 – Kwame Owusu
Ansah. PW2, a non memb</main>