ASSEH v. ANTO

JUDGMENT OF KORSAH C.J.

This is an appeal, by special leave, from the judgment of the Land Court which confirmed the judgment of the Ajumako Native Court “B” of Odoben in a suit wherein the plaintiff’s claim was: (1) for declaration of title to two cocoa farms situate at Bremaku on the Odoben Stool land, (2) an account of proceeds thereof; and (3) perpetual injunction.

The plaintiff's case is that the two cocoa farms were cultivated by his relative Opanyin Yena who during his lifetime parted with the farms as gifts to the plaintiff’s predecessor Kweku Apreku; that Apreku took possession of the farms, reaped and enjoyed the proceeds thereof during the lifetime of Opanyin Yena; that Kweku Apreku survived Opanyin Yena, and continued to reap and enjoy the proceeds of the said farms until Apreku died; that he, plaintiff, as the successor of Apreku is therefore entitled to the said cocoa farms.

The defendant does not dispute the following facts: (a) that the two cocoa farms were cultivated by Opanyin Yena, (b) that Opanyin Yena [p.105] parted with them to Kweku Apreku, (c) that Apreku survived Opanyin Yena, and continued to reap and enjoy the proceeds of the said cocoa farms until he died, and (d) that the plaintiff is the successor of Apreku. But the defendant contends that the said gift was limited to the life of the said Kweku Apreku, the plaintiff's predecessor, consequently, the said farms reverted to one Mr. Assimah as successor of the late Opanyin Yena by virtue of the instrument which was tendered in evidence at the trial, marked exhibit A, probate of which was granted on the 23rd September, 19601, as the last will and testament of Kweku Opanyin Yena.

In the judgment delivered by the native trial court on the 13th December, 1956, it will be observed that after discussing the evidence with meticulous care, it was held:

"the court is satisfied that the two cocoa farms were given to Apreku by way of gift forever by late Opanyin Yena during his lifetime which means that Apreku, his heirs, executors, administrators, successors etc. are entitled to make use of this gift forever. And that is the reason why Apreku made use of this gift till he died. Also the Court is satisfied that Opanyin Yena cultivated about eleven cocoa farms more or less and out of these eleven only two were given to Apreku. Following the evidence adduced by plaintiff and his witnesses the court believe the evidence of the foregoing on the part of plaintiff and his witnesses in all r