OBAAPANIN ABENA MANU & 43 ORS vs. OPANIN KWAKU MENSAH & 4 ORS [2018]DLCA5277

Date	2018-02-27
Suit No.	SUIT NO. H3/58/2016
Citation No.	[2018]DLCA5277

ADUAMA OSEI J.A. (PRESIDING)

DZAMEFE J. A.

WELBOURNE (MRS) J. A.

DR. ERNEST OWUSU DAPAAH FOR DEFENDANTS/RESPONDENTS.

[2018]DLCA5277
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													<main id="main" class="content" style="min-height: 60rem" >OBAAPANIN ABENA MANU &amp; 43 ORS<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>OPANIN KWAKU MENSAH &amp; 4 ORS<o:p></o:p>(DEFENDANTS/RESPONDENT)<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;
padding:0in 0in 1.0pt 0in">

<span style="font-size:10.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:&quot;Times New Roman&quot;;
mso-fareast-theme-font:minor-fareast;mso-bidi-font-family:&quot;Times New Roman&quot;;
mso-ansi-language:EN-US">SUIT NO.
H3/58/2016<span style="font-size:10.0pt;line-height:115%;font-family:
&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:&quot;Times New Roman&quot;;mso-fareast-theme-font:
minor-fareast;mso-bidi-font-family:&quot;Times New Roman&quot;;mso-ansi-language:EN-US">&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 27TH FEBRUARY, 2018<o:p></o:p>

</div>COUNSEL:<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">

</div><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Times New Roman&quot;;mso-fareast-theme-font:minor-fareast;
mso-bidi-font-family:&quot;Times New Roman&quot;;mso-ansi-language:EN-US">CORAM: &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><span style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:
&quot;Times New Roman&quot;;mso-fareast-theme-font:minor-fareast;mso-bidi-font-family:
&quot;Times New Roman&quot;;mso-ansi-language:EN-US">ADUAMA OSEI J.A. (PRESIDING), DZAMEFE
J. A., WELBOURNE (MRS) J. A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNoSpacing" 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>WELBOURNE
JA<o:p></o:p><o:p>&nbsp;</o:p>The BackgroundThis is a story
of a very loving family of brothers who did a lot in common. The story is told
that they farmed together and acquired property together. These brothers, who I
will describe as “ancestors” in this appeal, were the late Yaw Bour, Yaw
Adusei, Kwadwo Adutwum, Amoako Atta Senior and Amoako Atta Junior.<o:p></o:p>The case of the Appellants is that the
1st Appellant is the surviving spouse of the Late Yaw Bour and the
other Appellants are the children of the Late Yaw Bour, Yaw Adusei, Kwadwo
Adutwum, Amoako Senior and Junior.<o:p></o:p>According to the Appellants their
deceased fathers jointly acquired four different lands at PEPOSO and KUKUBOSO
near Mpasatia, NTABAWU near Mankranso and ASUOKAW near Bibiani and cultivated
cocoa farms on the said lands. The Appellants stated that their fathers and
husbands jointly built a House at WADIE ADWUMAKASE for their family out of the
proceeds of the said cocoa farms. The Appellants further stated that the
deceased fathers subsequently jointly built House No. ME 32, Block 12, Manhyia
Extension in Kumasi for them and their mothers. The said house is the subject
matter of the instant action. The Appellants also contended that their deceased
fathers lived in the disputed house with their wives including the Appellant
and other Appellants during their lifetime until they died. The other wives are
also dead leaving the 1st Appellant. The 2nd – 6th
Appellants are at the moment living in their respective rooms in the house in
dispute, the other Appellants having consented to their staying there.<o:p></o:p>It is also the case of the Appellants
that the Late Amoako Atta Junior who was also one of the Appellants’ deceased
father and a husband became old and unemployed. He therefore pleaded with the Appellants
to be permitted to rent out the vacant rooms in the house to tenants to enable
him make a living which request was consented and granted to him by the Appellants.
The Late Amoako Atta Junior pursuant to the permission rented the vacant rooms
to the Respondents who some of the Nephews and Nieces of the Appellants’
deceased fathers and a husband and other tenants.<o:p></o:p>According to the Appellants the Respondents
are now claiming title to the house in dispute on grounds that it was their
uncles being the Appellants’ deceased father who gifted it to them but the Appellants
have vehemently resisted the Respondents’ claim. The Respondents have even
asked the 2nd – 6th Appellants to quit their respective
rooms for them to rent out the same to prospective tenants. The Appellants
further stated that the Respondents have evinced a clear intention to eject the
2nd – 6th Appellants from their respective rooms in the
house if not restrained by the courts. The rent advances of the Respondents
have expired and the Appellants need the rooms for their own use since some of
the Appellants are facing ejection by their respective landlords.<o:p></o:p>The Respondents resisted the claim of
the Appellants. According to the Respondents, the Appellants’ deceased husband
and fathers died on different dates. They stated that the deceased did
everything in common during their lifetime and agreed that whatever properties
they acquired become family property after their death. The Respondents also
contended that each and every Appellant and their mothers have a share of their
own rooms in the house in dispute as well as their own share of the cocoa farms
and that the 2nd – 6th Appellants are still occupying
their own rooms in the house without any disturbances and interruption. The Respondents
initially stated that the Appellants are Ashantis and are governed by the
matrilineal law of the</main>