AGYENIM BOATENG vs. AKWASI OFORI & ANOR. [2010]DLSC6136

Date	2010-05-05
Suit No.	CIVIL APPEAL NO. J4/9/2007
Citation No.	[2010]DLSC6136

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]DLSC6136
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													<main id="main" class="content" style="min-height: 60rem" >AGYENIM BOATENG<o:p></o:p>[PLAINTIFF/RESPONDENT/APPELLANT]<o:p></o:p>vs.<o:p></o:p>AKWASI OFORI &amp; ANOR.<o:p></o:p>[DEFENDANTS/APPELLANTS/RESPONDENTS]<o:p></o:p>[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.&nbsp; 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; &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: 5TH MAY, 2010<o:p></o:p>

SIR
DENNIS ADJEI FOR THE DEFENDANTS/APPELLANTS/RESPONDENTS<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>ATUGUBA JSC (PRESIDING),
DATE-BAH (DR) JSC, ANSAH JSC, ARYEETEY JSC, GBADEGBE JSC <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="text-align:center;border:none;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ARYEETEY,
JSC <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.&nbsp; 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.&nbsp; 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.&nbsp; All of them are deceased.&nbsp; The sons were Kwame Akoh, Kwasi Nsiah, Kwame
Amuzu and Kwasi Teppa.&nbsp; 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>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.&nbsp; 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.&nbsp; 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.&nbsp; 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.&nbsp; 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.&nbsp; 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.&nbsp; The
plaintiff registered his objection through a caveat since that house did not
form part of Kwesi Wono’s estate.&nbsp; Later
the result of customary arbitration confirmed that H/NO. KO 47 did not form
part of the estate of Kwasi Wono.&nbsp; When
Yaw Donkor died the defendants objected to the plaintiff’s appointment as
customary successor and head of Akua Anokyewaa’s family.&nbsp; 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.&nbsp; The plaintiff entered a caveat and the result
is the present suit, principally to determine the ownership of H/NO. KO 47,
Kumasi.&nbsp; The trial court gave judgment in
favour of the plaintiff.&nbsp; The conclusion
of that judgment which is at page 99 of the record of appeal is reproduced
below as follows: <o:p></o:p>“There is also evidence that both
members of the Obiyaa and Kune branches of Anokyewaa family live in the
disputed house.&nbsp; So that the plaintiff
has successfully rebutted the presumption that Kwasi Wono is the legal as well
as the beneficial owner.&nbsp; On the issue of
advancement, my reaction is that it does not arise in uncle — nephew
relationship.&nbsp; It stands with those in
locus parentis to the child for example father and child.&nbsp; Secondly where it exists, it is rebuttable.
From the evidence on record, Teppa, his wife and children were living in the
disputed house as well as other family members.&nbsp;
Therefore Teppa did not intend to gift KO 47, Kumasi to Kwesi Wono.&nbsp; From the foregoing therefore, I find that
Kwesi Wono was only a nominal purchaser of KO 47, Kumasi.&nbsp; The real owner was Kwesi Teppa. That being
the case, the defendants cannot say that the property is the self acquired
property of Wono and that they as the immediate family should succeed. Kwasi
Teppa and Amuzu were the children of Anokyewaa and they died intestate.&nbsp; Therefore I make a finding to that effect.”&nbsp; (The emphasis is mine.) <o:p></o:p>The defendants appealed
and filed two grounds of appeal namely: (a) The judgment is against the weight
of the evidence, (b) The judgment is wrong in law.&nbsp; The written submissions of counsel for both
parties for obvious reasons dwelt mainly on the finding by the trial court that
Kwasi Wono was nominal purchaser of the house in dispute.&nbsp; At page 145 of the record of appeal the
majority judgment of the Court of Appeal reads as follows: <o:p></o:p>