ANTWI PANIN, MANSO-NKWANTAHENE v. KWASI AMOAKO
July 30, 1951
HIGH COURT
GHANA
CORAM
- WINDSOR-AUBREY, J
Areas of Law
- Property and Real Estate Law
- Family Law
- Civil Procedure
July 30, 1951
HIGH COURT
GHANA
CORAM
AI Generated Summary
On appeal from a trial court judgment, Tekpor’s descendants sought judicial partition and demarcation of what they claimed were two distinct family properties on opposite banks of the River Volta. They complained that the defendants crossed to the east bank and sold palm trees, creating continual friction, and argued that the trial court did not properly consider partition. The appellate court, per Windsor-Aubrey, J, focused the argument on whether partition was appropriate. The respondents contended partition is a matter for family consent and not obtainable by action. The judge found the trial court had rightly rejected the claim that the lands were separate family properties and that the plaintiff had not asked the family head for partition or shown unreasonable refusal. Without expert evidence on native custom, the court declined to decide broader questions about partition under custom and dismissed the appeal, awarding costs of 25 guineas.
Judgment:
Counsel for the appellants (plaintiffs in the trial Court) summarised his case by saying:-
"Our case is that the family (Tekpor's descendants) had two distinct properties-on east and west banks of the Volta: we complain defendant's people have been crossing the Volta to our side: selling palm trees, etc. The demarcation ought to be regularised. Defendants say they should continue to enjoy together: there is continous friction, etc."
Part of the wrst reads-" Plaintiffs' family therefore claims that succession to the two distinctive properties of the said two families be earmarked and demarcated between plaintiffs and defendants ..." (1) In so far as this means that the properties are separate properties of two families such a claim was negatived by the findings of the trial court and I do not consider that the findings can be challenged. (2) In so far as it is a claim that family land should be partitioned between plaintiffs and defendants that claim was rejected by the trial court. It is argued by appellants that the trial court did not apply its mind to this claim but I think the court realised that the claim was being made.
Argument in this court has been directed to the question of partition. Physically, of course, the properties are separated by the River Volta. The appellants maintain that the conduct of the defendants is such that partition is the only way to avoid continual friction. The respondents say that there can only be partition by consent of all parties and that it cannot be asked for or obtained by action: that it remains a matter for the family and the courts do not interfere in such matters. I think that the appeal must fail. I have been referred to three authorities.
(1) Solomon v. Botchway (1). This case deals with the position of children of six-cloth marriages. "Their interest or share (of rents) is a question to be decided at a family meeting. If satisfaction is not obtained at a family meeting the remedy is appeal to the Native Tribunal ".
(2) Ashong v. Solomon (2). Judgment given on 28th June, 1935 by Deane, C. J. "This court will not interfere in a purely domestic question to be handled by the family itself." This referred to a head of a family being asked to account.
(3) Nelson v. Nelson, U.A.C. Limited and Gold Coast Properties Company Limited (3). It was suggested that this case was authority for the proposition that family land could not be divided.
I do not consider that the brief reference to partition in S