GOLIGHTLY AND OTHERS v. VANDERPUYE

JUDGMENT OF OLLENNU J.

The plaintiffs are the children of one Odartey Golightly, deceased. The first two by marriage under customary law and the other six by two marriages under the Marriage Ordinance1. The said Odartey died intestate on the 22nd February, 1927, and was survived by his second wife by marriage under the Ordinance, his said children and his younger brother Kojo Golightly.

By an indenture of lease dated the 9th May, 1945, Kojo Golightly demised to one Charles Annan Vanderpuye, now deceased, the piece of land now in dispute. The defendant is the head of the family of the said Charles Annan Vanderpuye.

The claim of the plaintiffs is for a declaration that the said land was the self-acquired property of their late father, that the demise of the same to the said C.A. Vanderpuye is null and void and conferred no interest [p.718] in the said land upon the said C.A. Vanderpuye on the grounds that the demise was made without their knowledge and consent. They also claim an order for recovery of possession of the said premises.

The defence is that the land demised by the deed was not the self- acquired property of the said Odartey but was the property of his maternal family purchased with proceeds from the sale of family property, and held by him in a representative capacity as head of his said family. The defence further pleaded that in any event the plaintiffs are estopped by their acquiescence from claiming title to and recovery of possession of the land.

The first issue is, did the property belong to Odartey Golightly? On that issue the plaintiffs led evidence that the land was the self-acquired property of their father the said Odartey. Very feeble attempts were made by the defendant to show that it was family property purchased with proceeds from sale of a family house which was situate at Sempe, Accra. The said attempts failed miserably. Two witnesses were called by the defendant in that regard. The first of them is D.W. 1, nephew of Odartey and Kojo. The sum total of his evidence on that point is that his evidence that Odartey purchased the land with family money is only a conjecture on his part, it is not based upon any facts. His last answer to counsel for the defendant in re-examination is that: "Odartey was head of the family, and he was the one who shared the proceeds of the sale of the Sempe house to the various relations, so I took it for granted that he must have kept the share which he should have distributed to himself, Kojo an