BANAHENE v. ADINKRA AND OTHERS

JUDGMENT OF ANIN J.A.

This is the second appeal in a succession suit originally heard and determined in favour of the plaintiff-appellant herein (called in this judgment simply the plaintiff) by the district magistrate grade II sitting in the Akim Oda District Court Grade II on 24 May 1972. The defendants-respondents herein (referred to in this judgment simply as the defendants) were successful in their appeal before the Cape Coast High Court, which reversed the trial magistrate's decision and dismissed the plaintiff's claim. It is from this judgment of the Cape Coast High court dated 30 July 1973 that the plaintiff has now appealed to this court.

The plaintiff, suing as customary successor to the late Kwadwo Asante of Ayirebi, claimed against the defendants jointly and severally an order of declaration of title to, and recovery of possession of, three specified farms alleged to be the properties of his late uncle Kwadwo Asante whom he had succeeded. Even though the parties were represented by learned counsel at the trial court, the action was heard in a summary way and no pleadings were ordered.

It was common ground between the parties that the three disputed farms were ancestral family properties inherited by the late Kwadwo Asante from deceased ancestors upon his appointment as successor and head of the Bretuo family, to which both parties belonged. The main controversy was whether or not the plaintiff had been duly appointed customary successor to the late Kwadwo Asante who died on 23 December 1971.

At the hearing of the case before the district magistrate, the plaintiff was represented by his uncle Nsonowah, who had been authorised by his absent nephew under a power of attorney to testify for and on his behalf. In his evidence, Kofi Nsonowah disclosed that after Asante's death, his [p.349] family met and elected as his successor the plaintiff, who duly accepted the appointment by rendering customary thanks with the sum of ¢9.60 and a full bottle of schnapps. Among the principal members of the Bretuo family who participated in the election meeting were Asare Duodu, the plaintiff’s first witness, Asaboro, Kofi Berkoe and Kwadwo Kwenin, the defendants' first witness; while the Gyasehene Nana Kwabena Antwi, the plaintiff's second witness of the Aduana clan, presided over the election meeting.

The defendants denied that Banahene was appointed successor to the late Asante. According to their spokesman, Yaw Adinkra the first defendant, who gave eviden