GYAMBIBY v. GYAMBIBY

JUDGMENT OF AKIWUMI, J.S.C.,

Akiwumi J.S.C. delivered the judgment of the court. This is an appeal from the judgment of the Land Court, Accra, presided over by Ollennu, J. Judgment was given on the 13th May, 1959, confirming the judgment of the trial native court. There were eight grounds of appeal. Learned counsel for appellant laid great emphasis on the fifth ground, which I think goes to the very root of the case.

In this case the plaintiff claims:

(1) declaration of title, and

(2) possession of the landed properties contained in the writ of summons from the defendant who in turn counterclaimed the identical properties from the plaintiff.

The facts briefly are the plaintiff’s father died when the plaintiff and his brothers and sisters were minors and the defendant who was the brother of plaintiff’s father was according to native custom appointed successor to his brother’s estate as trustee for the deceased’s children while they were minors. The defendant as such successor took possession of the estate and managed it for his brother’s children. On the plaintiff attaining maturity, he on behalf of himself and his brothers and sisters, claimed the properties comprised in this case from the defendant alleging that they formed part of his father’s estate.

The suit was instituted in the Akan Native Court “B” at Asato. The native court after hearing the parties and their witnesses gave judgment for the defendant in these words:

“There was no evidence to support the plaintiff’s case which could warrant him to claim also the farms in dispute. The court therefore give judgment to the defendant to all of his counter-claim with costs to be taxed against the plaintiff.”

After the judgment the court made certain consequential orders. From this judgment the plaintiff appealed to the Buem Krachi Native Appeal Court of Jasikan. Leave to appeal was granted and the hearing date was fixed for the 15th July, 1957. The defendant was duly served with the notice and grounds of appeal, and hearing date of the appeal was served on the defendant on the 13th July, 1957.

On the 15th July, 1957, the appellant attended court but the defendant was absent. The court started to hear the appeal. The record of proceedings from the lower court, the grounds of appeal of appellant were read and interpreted to the court. At this stage the defendant appeared before the court and asked for adjournment to enable him to reply to the grounds of appeal filed by the plaintiff. Upon this app