HAJIA SAKINA vs. KWAKU YEBOAH AND OTHERS [2011]DLCA3159

Date	2011-02-25
Suit No.	H1/01/2011
Citation No.	[2011]DLCA3159

MARIAMA OWUSU J.A. [PRESIDING]

F.G. KORBIEH J.A.

I.C. DANQUAH J.A.

NANA OBIRI BOAHEN ESQ COUNSEL FOR PLAINTIFF/RESPONDENT

YAW WIREDU-PEPRAH ESQ COUNSEL FOR DEFENDANTS/APPELLANTS

[2011]DLCA3159
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													<main id="main" class="content" style="min-height: 60rem" >HAJIA SAKINA<o:p></o:p>vs.<o:p></o:p>KWAKU YEBOAH AND OTHERS<o:p></o:p>[COURT
OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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H1/01/2011&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 25-2-2011.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NANA
OBIRI BOAHEN ESQ, COUNSEL FOR PLAINTIFF/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p>MARIAMA
OWUSU J.A. [PRESIDING], F.G. KORBIEH J.A., I.C. DANQUAH J.A.<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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</div>MARIAMA OWUSU J.A<o:p></o:p>The plaintiff/respondent
who would be referred to in this appeal as the respondent in her amended writ
of summons claims the following reliefs for herself and on behalf of the
Adonten Family of Nsoatre;<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Declaration
of title, recovery and possession of all that piece and parcel of farmland with
cocoa trees cultivated thereon; lying, situate and being at Domeabra near
Anyimakrom on the Ayimakrom stool land and which said land shares common
boundary with the farms of Yaw Abina [Abena Sima, deceased], Kwasi Effah and
the late Kwasi Mensah [deceased].<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An
order of perpetual injunction, restraining the defendants, their agents,
servants, assigns, privies from dealing and interfering with the farmland
described in relief [1] supra.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An
order of accounts.<o:p></o:p>In
her 9 paragraph statement of claim, the plaintiff avers that the late Op Kwasi
Mensah was her uncle who took over the properties of the late Kofi Badu. The
plaintiff says the properties of the late Kofi Badu included one uncompleted
house at Nsoatre, a cocoa farm and a big farm land situate and lying at
Anyimakrom near Domeabra on Sefwi stool land. It is the plaintiff’s case that
during the life time of the late Kofi Badu he gifted part of the land described
in her writ of summons to Kwasi Mensah which the latter cultivated into a cocoa
farm but upon the demise of Kwasi Mensah it was discovered from a will he made
that he has given his own farm plus the farms of the late Kofi Badu to his
[Kwasi Mensah’s] children. Plaintiff continues that, the land gifted to the
late Kwasi Mensah shares common boundary with the farms of Opanin Donkor, Kofi
Kyereme, Abena Asumah and Kofi Badu. It is plaintiff’s case that, the farm and
farm land and the house at Nsoatre are family properties of the late Kofi Badu
and Kwasi Mensah did not have testamentary capacity over them. She concluded
that, she was compelled to institute this action because the head of family was
very old and weak and the other principal members of the family were reluctant
to take action thereby putting the family property in jeopardy of being lost to
the family.<o:p></o:p>In
their amended statement of Defence and counterclaim, the defendants and
co-defendant who are the children and the executor of the Will of the late
Kwasi Mensah denied plaintiff’s claim. In particular, they challenged the
plaintiff’s capacity to institute this action.&nbsp;
They continue that, one Yaw Nsiah succeeded Kofi Badu and Kofi Badu’s
properties were taken over by Kofi Dubi and that Kwasi Mensah never took any
property of the Late Kofi Badu deceased. The defendants further aver that
originally the late Kofi Badu had land which shared a common boundary with the
land of Kwasi Mensah deceased. However in 1976, Kwasi Fah weeded Kofi Badu’s
land and came to share boundary with the land of the late Kwasi Mensah
[deceased] and in the process took over all the land of Kofi Badu originally in
the area. This made Kwasi Mensah protest vehemently on seeing the trespass
committed by Kwasi Fah on Kofi Badu’s land and subsequently lodged a complaint
at the police station at Adabokrom. Kwasi Fah was arrested. At the police
station Kwasi Fah told the police that the Sefwi Chiefs had lawfully sold the
said land to him and that the land is for him Kwasi Mensah denied this
allegation and was asked by the police at Adabokrom to bring Kofi Badu which he
Kwasi Mensah did. In the presence of the police and Kofi Badu, the chiefs of
Sefwi maintained that, they had validly sold the land to Kwasi Fah since he
failed to cultivate it. Kofi Badu was then advised by the police to sue the
chiefs and Kwasi Fah if he felt that the land was still his but Kofi Badu
failed to sue. At one time the defendants maintain, one Yaw Abina negligently
burnt part of Kwasi Mensah’s farm and he rendered an apology to Kwasi Mensah.
The defendants concluded that the land in dispute belongs to the late Kwasi Mensah
who exercised acts of ownership over same during his life time as the latter
bought his land at Ayimakrom from the chief of Adabokrom, Sefwi for which a
receipt was given to him. The co-defendant says the children of the late Kwasi
Mensah assisted the deceased in making the farms with his wife Madam Yaa and
that the deceased Kwasi Mensah had testamentary capacity over the disputed farm
as same is his self acquired property.<o:p></o:p>See
paragraphs 2-13 of the amended statement of defence filed on the 13-2-2002.<o:p></o:p>