February 26, 2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal concerns land and a house at Plot AD 27, Adiembra, Nyinahin, originally held by Yaa Abaa and later by her daughter, Madam Adwoa Donkor. The appellant, claiming as Adwoa Donkor’s customary successor and relying on a deed of gift to himself and his brother, sued after the respondents—grandchildren of Adwoa Donkor’s former concubine, Opanin Yaw Brafi—attempted to rebuild in cement blocks after winds destroyed two wooden structures previously licensed on the plot. The District Court entered judgment for the appellant, but the High Court overturned it, granted the respondents’ counterclaim, and ordered possession with costs. On further appeal, the Court of Appeal held the appellant lacked capacity, rendering the District Court judgment a nullity. It nonetheless considered the counterclaim, applied customary law on building licences, rejected long possession as conferring title, found the respondents’ proof of title deficient, and set aside the High Court’s judgment.
JUDGMENT
DZAMEFE, JA
The plaintiff/appellant on 22nd July 2015 filed an application for civil writ of summons to issue at the District Magistrate Court, Nyinahin, Ashanti in his capacity as the customary successor to Mad. Adwoa Donkor (decd) against the respondent for title to ownership and recovery of possession to all that house, No. AD 27 Adiembrah near Nyinahin with a vacant plot thereon which was gifted to the plaintiff/appellant in a document dated 13th February 1988. This gift was before the Donors demise in October 1988 which the defendant/respondent is putting adverse claims to and thus preventing plaintiff/appellant from further developing the said property (House).
The plaintiff/appellant in his statement of claim aver that the subject matter of the case was originally acquired by his great grandmother, one Yaa Abaah, about seventy years ago. Whenthe grandmother died she was succeeded by her daughter Madam Adwoa Donkor. Adwoa Donkor during her lifetime made a Will on 13th February 1988 and gifted the said House No. AD27 Adiembra to him plaintiff/appellant and one Kwame Kune.
He averred that later in Adowa Donkor’s life, one Opanin Yaw Brafi who settled in Adiembra and became her lover was granted a portion of her land on which he built two single rooms. Adwoa Donkor and Opanin Brafi are both deceased and the defendants who are Opanin Brafi’s grandchildren now claim ownership of the said House No. AD 27 Adiembra.
The plaintiff/appellant contends that the property does not belong to the defendants.
The defendant/respondents in their statement of defence aver that their grandfather Opanin Yaw Brafi acquired the said land at Adiembra in its original state, a vacant land from Opanin Kwaku Dan, the then Odikro of Adiembra and developed it into a building plot and erected five single rooms thereon over 80 years ago. The defendants aver that their mother who was 71 years at time of filing their defence was born in the said house which was built long before she was born.
Defendant contend if there was any Will bequeathing H/No AD 27 Adiembra to plaintiff as they claim, then it is Mad Adwoa Donkor’s house which is on the land that is bequeathed to him but not defendants house. In effect the defendant/respondents denied all the averments of the plaintiff/appellant and counterclaimed for the following; -
1. Title to ownership and possession to all that building and vacant lands on plot No. AD 27 Adiembra, a property of their grandfather Opanin Yaw