MADAM AFUA NSIAH v. KOFI KYENKYENHENE & ORS

ANINAKWAH, JSC:-

This is an appeal against the judgment of the Court of Appeal reversing the judgment of the High Court, Kumasi delivered on the 11th day of December, 2002, which granted all the reliefs’ sought by the plaintiff and dismissed the defendants’ counter claim.

Aggrieved by the High Court decision, the appellant (hereafter referred to as the defendant), successfully appealed against the judgment of the High Court and had it reversed.

The plaintiff who claimed to be the Head of her family sued on behalf of her maternal family of Ampabame, Kumasi-Ashanti, against the defendants claiming:-

“(a) Declaration that House No. AM.9, Ampabame, Kumasi, devised by late Opanin Kwabena Asante in his last Will dated 18th September, 1986, is the property of the family.

An order of recovery of possession of the said house.

Perpetual Injunction to restrain the defendants”.

In her Statement of Claim, the Plaintiff avers that she is the head of her maternal family and that she brought the action on behalf of her said maternal family. She alleges that Defendants are the children of the late Kwabena Asante alias Kwabena Dan, her granduncle. That late Kwabena Asante was one of the four children of her great grand mother the late Ateakosuaa, and that her family lived at Old Ampabame in Kumasi.

It is her case that the Old Ampabame Township was relocated from its old site to its present site, to give way to the Owabi head-works. The then Gold Coast Government paid a compensation of £30 to each household for each house lost as a result of the re-location. Unspecified sums of money were also paid as compensation for each farm lost. Plaintiff alleges further that the late Kwabena Asante received the compensation paid for their family house at Ampabame, as well as the unspecified sums of money paid for the cocoa farm of the late Kojo Mosi the then deceased brother of Kwabena Asante. That it was those sums of money received by Kwabena Asante as compensation for the family house and Kojo Mosi’s farm that Kwabena Asante applied to the building of the disputed house.

The defendants denied the plaintiff’s capacity and her claim that the house in dispute is her maternal family property.

For their part it is their case that no compensation was paid to any household for any house lost and that Kwabena Asante did not receive any compensation on behalf of the plaintiff’s family, which he could have applied to the building of the disputed house.

According to defendants, the