FRANCES ANANE AGYEI vs. YAW OKYERE & 3 OTHERS [2016]DLHC8493

Date	2016-12-04
Suit No.	SUIT NO. E1/180/2005
Citation No.	[2016]DLHC8493

HIS LORDSHIP JUSTICE JACOB B. BOON

REV. FR. ADU AGYEMANG FOR THE PLAINTIFF

WILLIAM KUSI FOR THE DEFENDANTS.

[2016]DLHC8493
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													<main id="main" class="content" style="min-height: 60rem" >FRANCES ANANE AGYEI<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>YAW OKYERE &amp; 3 OTHERS<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. E1/180/2005&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;DATE:
4TH DECEMBER, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>REV.
FR. ADU AGYEMANG FOR THE PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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WILLIAM
KUSI FOR THE DEFENDANTS.&nbsp;&nbsp;&nbsp;&nbsp; <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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HIS LORDSHIP JUSTICE JACOB B. BOON<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="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>The instant suit was filed in
the Registry of this court on 2nd March, 2005, well over eleven years
ago. It suffered several adjournments over the years, a major reason being the
tendency of the defendants to change lawyers. In the course of the pendency of
the case, the court was informed the 2nd and 3rd
defendants had passed away. The 3rd defendant died at the tail end
of the hearing of the suit after she had cross-examined the plaintiff and his
witnesses. She did not however testify before her death. None of the deceased
defendants was substituted. It is also on record that the 1st
defendant was consistently absent. Consequently, he was not available to
testify when the opportunity was given the defendants to lead evidence in
support of their side of the case. For the most part of the pendency of the
suit, it was shouldered by the 4th defendant.<o:p></o:p>&nbsp;<o:p></o:p>The plaintiff described
himself as a farmer living at Adowa near Jacobu. His claim is in respect of a
parcel of land with a cocoa farm on it at a place called Kwaem, Adowa. It is
his case that the bare land was originally acquired by his granduncle, one
Kwame Owuo, also known as Kwame Obeng. It is further his case that the
defendants have unlawfully taken possession of the farm, are harvesting and
appropriating the proceeds for themselves; that the reason they gave for their
conduct being that the farm had been devised to them by their late father in
his will, but that the true position is that the property devised to them is
different from the disputed farm. He described the disputed property as sharing
boundaries with the properties of Opanin Kwasi Mensa, Opanin Kwadwo Dankwa,
Madam Yaa Akyiaa, Opanin Kwadwo Mensah, Opanin Nyamekye, Kwaku Anane and Obour.
He prayed for declaration of title to the property so described. He also asked
for the following reliefs: recovery of possession, damages for trespass, and
accounts for the proceeds of the farm from 29th August, 2002 till
the date of final judgment, as well as perpetual injunction against the
defendants.<o:p></o:p><o:p>&nbsp;</o:p>It is his &nbsp;case that his granduncle, Kwame Owuo, acquired
a large tract of land from the Bekwai stool and jointly cultivated it with his
nephew called Boakye Mensah. According to him, Kwame Owuo granted portions of
the land to three persons namely, Kwabena Nyamekye, Kwaku Anane and another
nephew known as Kwadwo Mensah, to cultivate for themselves; that Kwame Owuo
cultivated a portion of the farm for two seasons but passed away thereafter and
was customarily succeeded by his uterine brother called Kwabena Pomah. He
asserted that with the consent of the family, Kwabena Pomah divided the first
farm of Kwame Owuo into four and shared them among the two widows and two
sisters of Kwame Owuo, whilst a second &nbsp;cocoa farm was held for the family until it
withered around 1972. Plaintiff averred it was after the cocoa on the farm withered
that Kwabena Pomah and his brother, Boakye Mensah, who were his uncles
permitted him to cultivate the secondary forest for his personal use. He
asserted he did so for six seasons before he was taken ill, and upon
recovering, he cultivated four more cocoa farms. Meanwhile, according to him,
the farms which were cultivated by Kwabena Nyamekye and Kwaku Anane were
divided into three portions of which Kwabena Pomah kept a portion for himself;
that Kwabena Pomah then devised this farm in his will to the defendants. His
case therefore is that, this farm, devised to the defendants is different from
the disputed property to the knowledge of the defendants, yet they have taken
over six cocoa farms of his, yielding about sixty bags per annum, and have
harvested and appropriated the proceeds for the past three years prior to the
mounting of this action. At the hearing he emphasised that the defendants are
still in possession of these farms.<o:p></o:p><o:p>&nbsp;</o:p>