KWADWO MIREKU AND TWENEBOAH KODUAH vs. YAW MIREKU [2011]DLCA3613

Date	2011-02-03
Suit No.	SUIT NO. H1/184/2008
Citation No.	[2011]DLCA3613

A ASARE-KORANG JA [PRESIDING]

FRANCIS G KOBIEH JA

DENNIS D ADJEI JA

MR. JOSEPH PAA KWESI APPEATSE FOR PLAINTIFFS/RESPONDENTS

MR. JOSEPH AMOWEE DAWSON FOR DEFENDANT/APPELLANT

[2011]DLCA3613
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													<main id="main" class="content" style="min-height: 60rem" >KWADWO MIREKU AND
TWENEBOAH KODUAH<o:p></o:p>vs.<o:p></o:p>YAW MIREKU<o:p></o:p>&nbsp;[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. H1/184/2008&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;DATE: 3RD
FEBRUARY, 2011<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR. JOSEPH PAA KWESI
APPEATSE FOR PLAINTIFFS/RESPONDENTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR.
JOSEPH AMOWEE DAWSON FOR DEFENDANT/APPELLANT<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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A
ASARE-KORANG JA [PRESIDING], FRANCIS G KOBIEH JA AND DENNIS D ADJEI JA&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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JUDGMENT<o:p></o:p>

</div>DENNIS
D ADJEI JA<o:p></o:p>The
Plaintiffs/Respondents/Appellants (hereinafter called the Plaintiffs) got
locked up with the Defendant/Appellant/Respondent (hereinafter called the
Defendant) at the Community Tribunal, Dunkwa-on-Offin in a dispute relating to
ownership of a cocoa farm situate at a place commonly known as “WONAWU A WONTE”
on Diaso stool land and some rooms in a house at Diaso.&nbsp; The Plaintiffs brought this action for
themselves and on behalf of their brothers and sisters, that is, the children
of the late Kwame Efa.<o:p></o:p>The Community Tribunal,
Dunkwa-on-Offin gave judgment to the effect that the properties endorsed on the
Plaintiffs writ of summons were the self acquired properties of the late father
of the Plaintiffs who died intestate in 1984 and ordered his properties to be
distributed in accordance with Intestate law prevailing in Ghana as at 1984.&nbsp; The Defendant who is a nephew and customary
successor to the late Kwame Efa became aggrieved with the judgment of the
Community Tribunal and therefore appealed to the High Court Cape Coast on 29th
March 2006 for the reversal of the judgment.&nbsp;
The High Court Cape Coast reversed the judgment of the Community
Tribunal Dunkwa-on-Offin and entered judgment for the Defendant.&nbsp; On 13th April 2006 the Plaintiffs
appealed against the judgment of the High Court Cape Coast to this court. The
Plaintiffs case was that their late father in his lifetime gifted substantial
part of his properties to his children and the remaining to his matrilineal
family. The properties the Plaintiffs late father gifted to his children include
the 7 acre cocoa farm at a place known as Wonawu a Wonte on Diaso stool
land.&nbsp; The Plaintiffs took possession of
the cocoa farm and at a point in time gave it to the Defendant to harvest and
use the proceeds to repair their house.&nbsp;
The Defendant did not repair the house and as a result of that the
Plaintiffs recovered possession of same and gave the farm to a caretaker to
manage it on their behalf.&nbsp; <o:p></o:p>According to the
Plaintiffs the Defendant forcibly took over the farm from the caretaker and all
efforts to settle the matter amicably failed.&nbsp;
The Plaintiffs further stated that the Defendants fell some trees in the
farm which caused damage to the cocoa farm.&nbsp;
The Defendant’s case was that the land in dispute was gifted to his
family by his late uncle Kwame Efa.&nbsp; The
Plaintiffs father’s matrilineal family was in possession of the cocoa farm for
18 years before the death of Kwame Efa and it was not one of the properties the
late Kwame Efa gifted to his children.&nbsp; Both
parties are claiming title through the late Kwame Efa by virtue of the gift
made by him.<o:p></o:p>The interesting thing about
the trial court was that the four (4) member panel who heard the matter gave
judgment contrary to the reliefs endorsed on the Plaintiffs writ of
summons.&nbsp; The Plaintiffs were asserting
title to the properties by way of gift from their late father but the trial
court held that their late father died intestate and went ahead to distribute
the properties without first satisfying itself that it is the duty of the
appropriate persons to apply for letters of Administration of the deceased and
thereafter distribute his estate in accordance with the intestacy laws in Ghana
before the coming into force of intestate succession law PNDC Act 111.&nbsp; The High Court judge equally erred when he
set aside the judgment of the Community Tribunal and entered judgment for the
Defendant who had neither filed a counterclaim nor adduced evidence to show
that ownership to the disputed cocoa farm was vested in him.&nbsp; The wrong evaluation of the evidence on
record would be discussed in due course.&nbsp;
There are few legal issues which needs to be addressed and they are;<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;Whether or not the Plaintiffs failed to prove
their case on the preponderance of probabilities.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether
or not a panel of four could hear the matter and what is its legal implication
and; <o:p></o:p>