AGYENIM BOATENG vs. AKWASI OFORI AND AKOSUA YEBOAH [2010]DLSC2572

Date	2010-05-05
Suit No.	CIVIL APPEAL NO. J4/9/2007
Citation No.	[2010]DLSC2572

ATUGUBA JSC (PRESIDING)

DATE-BAH (DR) JSC

ANSAH JSC

ARYEETEY JSC

GBADEGBE JSC

ISAAC KWABENA ANTWI FOR THE PLAINTIFF/RESPONDENT/APPELLANT

SIR DENNIS ADJEI FOR THE DEFENDANTS/APPELLANTS/RESPONDENTS

[2010]DLSC2572
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													<main id="main" class="content" style="min-height: 60rem" >AGYENIM BOATENG<o:p></o:p>vs.<o:p></o:p>AKWASI OFORI AND AKOSUA YEBOAH<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J4/9/2007&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 5TH MAY, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>ISAAC KWABENA ANTWI FOR THE PLAINTIFF/RESPONDENT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SIR DENNIS ADJEI FOR THE
DEFENDANTS/APPELLANTS/RESPONDENTS<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;
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ATUGUBA JSC (PRESIDING), DATE-BAH (DR) JSC, ANSAH JSC,
ARYEETEY JSC, GBADEGBE &nbsp;JSC&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; <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;
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<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:10.0pt;
mso-add-space:auto;text-align:center;line-height:150%;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>ARYEETEY, JSC:-&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;<o:p></o:p>In this judgment we would refer to the
plaintiff/respondent/appellant as the plaintiff and the
defendants/appellants/respondents as the defendants. By his writ of summons the
plaintiff, who brings this action for himself and on behalf of his branch
family originated by his grand-mother Akua Anokyewaa claimed for the following
reliefs: 1. A declaration that H/NO. KO
47, Kumasi is the property of the entire Akua Anokyewaa family of Mpatuam. 2.
An order of perpetual injunction restraining the defendants and all who may
claim under them from interfering in any way or manner with the plaintiff’s
possession and control of H/NO. KO 47, Kumasi in his capacity of Head of Akua
Anokyewaa family of Mpatuam. In line with his pleading and the evidence
adduced on his behalf a brief background to his claim is as follows: His grand-mother,
Akua Anokyewaa had four sons and three daughters. All of them are deceased. The
sons were Kwame Akoh, Kwasi Nsiah, Kwame Amuzu and Kwasi Teppa. The daughters
were Amma Biyaa, Akosua Ampoma and Akua Konneh. The plaintiff is the son of
Akua Konneh and the defendants are great-grand-son and grand-daughter
respectively of Amma Biyaa. <o:p></o:p><o:p>&nbsp;</o:p>It is the position of the plaintiff that his late four
uncles acquired real and personal properties all of which on their respective
deaths intestate devolved absolutely on their immediate Akua Anokyewaa
family.&nbsp; In 1934 or thereabout his late
uncle Kwasi Teppa, in exercise of power of sale reposed in him as
mortgagee-judgment-creditor purchased for himself and his brothers H/NO. KO 47,
Kumasi but in the name of Kwasi Wono the most senior nephew. In 1943, also in
exercise of a similar power of sale as mortgagee, his late uncle Amuzu purchased
for himself and his brothers three cocoa farms and a compound house all at
Biamusu but in the respective names of Yaw Krah, son of Akosua Addae, siser of
Akua Anokyewaa, plaintiff herein and Kwasi Wono. In their life time his late
uncles exercised absolute and unlimited rights of ownership over all properties
they purchased in the names of their nephews as nominal purchasers who had
nothing whatsoever to do with the said properties. Following the purchase of
H/NO. KO 47, Kumasi his late four uncles removed
from Zongo, Kumasi to live in that house. Not until his appointment as customary successor and
as head of Akua Anokyewaa family following the death of his last surviving
uncle Kwame Amuzu, Kwasi Wono continued to live at Mpatuam and had nothing
whatsoever to do with the said H/NO. KO 47. It is the contention of the
plaintiff that Kwasi Wono, a member of Amma Biyaa’s branch family, being a man
of straw, died leaving no self-acquired property to his family. Following the
practice by the Akua Anokyewaa’s family of appointing the most senior member of
that family as their family head, Yaw Donkor, also of Amma Biyaa’s branch of
the family&nbsp; was appointed as successor to
Kwesi Wono. <o:p></o:p>When Yaw Donkor occupied the seat as head of the wider
Akua Anokyewaa’s family, in an application for Letters of Administration to
administer the estate of Kwesi Wono separately from the properties of the wider
family of Akua Anokyewaa, he listed H/NO. KO 47, Kumasi in the inventory
thereof. The plaintiff registered his objection through a caveat since that
house did not form part of Kwesi Wono’s estate. Later the result of customary
arbitration confirmed that H/NO. KO 47 did not form part of the estate of Kwasi
Wono. When Yaw Donkor died the defendants objected to the plaintiff’s
appointment as customary successor and head of Akua Anokyewaa’s family.
Eventually the plaintiff was appointed head of Akua Anokyewaa’s family and the
first defendant was appointed successor to Yaw Donkor. &nbsp;After his appointment the first defendant
applied for Letters of Administration in respect of the estate of Yaw Donkor
and in attempt to vest H/NO. KO 47 in Amma Biyaa branch of the family, included
the said house in the inventory thereof. The plaintiff entered a caveat and the
result is the present suit, principally to determine the ownership of H/NO. KO 47,
Kumasi. The trial court gave judgment in favour of the plaintiff. The
conclusion of that judgment which is at page 99 of the record of appeal is
reproduced below as follows:<o:p></o:p>