AMA KISSIWAA AND KWAME ASARE vs. KWASI ODURO BOTWE [2018]DLCA4535

Date	2018-07-24
Suit No.	SUIT NO: H1/10/2018
Citation No.	[2018]DLCA4535

K. A. ACQUAYE JA (PRESIDING)

S. K. GYAN JA

M. M. AGYEMANG (MRS.) JA

MR. J. K. BOAKYE MENSAH FOR PLAINTIFFS / APPELLANTS

MR. KING HUSSIEN IBN ALHASSAN FOR DEFENDANT / RESPONDENT

[2018]DLCA4535
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													<main id="main" class="content" style="min-height: 60rem" >AMA KISSIWAA AND KWAME
ASARE<o:p></o:p>(PLAINTIFFS / APPELLANTS)<o:p></o:p>vs.<o:p></o:p>KWASI ODURO BOTWE<o:p></o:p>(DEFENDANT / RESPONDENT)<o:p></o:p>[COURT
OF APPEAL (CIVIL DIVISION), KOFORIDUA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO: H1/10/2018&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 24TH JULY, 2018<o:p></o:p>

MR.
KING HUSSIEN IBN ALHASSAN FOR DEFENDANT / RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>AGYEMANG JA:<o:p></o:p>In
this appeal against the judgment of the High Court, Nkawkaw, in the Eastern
Region of Ghana, delivered on the 27th day of April 2017, the
plaintiffs/appellants&nbsp; (referred to
hereafter as the plaintiffs), seek the setting aside of the judgment entered
for the defendant respondent (referred to hereafter as the defendant). <o:p></o:p>The
antecedents of the instant appeal are as follows:<o:p></o:p>The
plaintiffs, children of Opanin Kofi Kora Asare, late of Akim Akakom, in the
Atiwa District of Ghana, brought suit against the defendant, the grandnephew of
the deceased gentleman at the court below, seeking the following: a declaration
that the farm and farm lands of the late Kofi Kora Asare given to the plaintiff
and her siblings, and cultivated at their expense, was the property of the
plaintiff and her siblings, special and general damages, and a perpetual
injunction restraining the defendant and his privies from entering onto, and
dealing with the lands in dispute.<o:p></o:p>It
was the case of the plaintiff that the estate of her deceased father who died
in 1994, included four farms situate at places, known and called: Sraha,
Afiafiso, Camp, and Tumfa road which he acquired in their virgin form. <o:p></o:p>The
plaintiff pleaded in her statement of claim, that in 1995, after the
celebration of the one-year anniversary of his death, these self-acquired
properties of their late father were divided into two, one half was given to
his family, and the other half, to the plaintiffs. Later, the plaintiff pleaded
in her Reply to the Statement of Defence, that the land was shared in the
following manner: the farms at Camp and Tumfa Road were given to the plaintiff
and her siblings, and the other two farms: Sraha and Afiafiso were divided,
each one into two, and shared between the said children of the deceased
patriarch, and his customary successor. <o:p></o:p>It
was the plaintiffs’ evidence that following the ceremony at which their
father’s customary successor Madam Afua Nkrumah, gave to them a portion of
their father’s self-acquired farms, the plaintiffs went onto the land and
planted cocoa and food crops, and that they used the lands thus for a period of
time. Regarding the said period, while at first, the first plaintiff testified
that they had farmed the land for thirty years, she later amended it to sixteen
years. <o:p></o:p>It
was the plaintiffs’ evidence that it was after this period of sixteen years on
the lands, that the defendant, newly retired from his work as a soldier,
returned from Accra to the village and laid claim to the farms as well as to
the house occupied by the plaintiff which had allegedly been the self-acquired
property of her father Kofi Kora Asare. <o:p></o:p>The
plaintiffs who made no claim regarding a certain house described as No A11,
Akakom, in their Statement of Claim, filed a Reply in which they pleaded facts
to claim title to that house which they alleged was the self-acquired property
of their late father Kofi Kora Asare. In this regard, the first plaintiff,
giving evidence for herself and her siblings testified that although No A11,
Akakom, was the self-acquired property of their father Kofi Kora Asare, the
defendant had thrown her out of it.&nbsp; <o:p></o:p>The
defendant denied that the said farms or House No. A11 Akakom, were the self-acquired
property of the late deceased father of the plaintiffs. The defendant, a
grandnephew of the plaintiffs’ father, pleaded that upon the death of Kofi Kora
Asare, his successor, Afua Nkrumah, gave out the self-acquired properties of
Kofi Kora Asare to the plaintiffs, his children. These properties he described
as farms at Camp and Mirehuaso. <o:p></o:p>Of
the three other farms (apart from Camp), that the plaintiff claimed in the
instant suit: Tumfa Road, Afifieso, and Sraha, the defendant alleged that they
were not the self-acquired properties of Kofi Kora Asare, but were the
defendant’s family’s properties. In his explanation, the defendant alleged that
the said properties had come to the late Kofi Kora Asare, as customary
successor of his siblings Kwabena Korah Asare, and Adiyiah as well as three
members of his wider family: Nana Kissiwa, Nana Kwadwo Asare, and Nana Kwame
Dapaah. The defendant alleged that as such customary successor, Kofi Korah
Asare the father of the plaintiffs, was in possession of family properties
which he cultivated with his wife and children. He alleged that it was for this
reason that upon his death, his customary successor Afua Nkrumah decided to
distribute the properties belonging to her predecessors, to their children: the
children of Kofi Korah Asare, the children of Kwabena Korah Asare, and the
children of Adiyiah. He stated that this was done in 1995, during the
celebration of the first anniversary of the death of Kofi Kora Asare the father
of the plaintiffs. It was the defendant’s evidence that Afua Nkrumah the
customary successor of Kofi Korah Asare, distributed the estate thus: the farms
at Camp and Mirehuaso, were given to the children of Kofi Kora Asare, while the
children of Kwabena Asare and Adiyi</main>