NANA ASARE BAAH II v. NANA AGYEIWAA KOREE II

JUDGMENT

GAEWU JSC:-

My lords, this is an appeal by the Plaintiff/appellant/appellant, (hereinafter referred to as the Plaintiff) against the judgment of the Court of Appeal, Accra dated 5th November 2020 affirming the judgment of the trial High Court in favour of the Defendant/Respondent/Respondent (hereinafter referred to as the Defendant).The Plaintiff’s claim against the defendant before the High Court is that:

a) An order compelling the Defendant to comply with the custom and tradition as contained in the provisions in the memorandum of agreement dated the 15th day of December 1901 between Chief Kofi Kontoh, who was the predecessor of the Defendant of the one part and Kofi Barn and Abinah Eyimma who were the predecessors of the Plaintiff of the other part, whereby the proceeds from the Akokoaso Stool Land are shared between the Plaintiff’s family and the Defendant.

b) An order compelling the Defendant to render account of proceeds from the Akokoaso Stool land from the date he became custodian of such land to the date of the commencement of this action, and a consequential order compelling the Defendant to pay 1/3 share of the total proceeds to the Plaintiff.

c) Perpetual injunction restraining the Defendant from withholding from the Plaintiff 1/3 share of the proceeds from Akokoaso Stool land as contained in the agreement of 15th December 1901.

d) Interests on all amounts assessed as being due to the Plaintiff from the Defendant based on claims a) and b) above.

The Plaintiff pleaded in paragraph 5 of his statement of claim that by custom, proceeds from the stool land was shared between the Plaintiff and defendant stool family in the ratio of 1:2. This averment was never at all denied by the defendant in the statement of defence.

Exhibit B is the 1901 dispute settlement between the ancestors of the parties, and it speaks to a settled custom of sharing of properties from the stool land. It does not make specific mention of any ratio. However, it makes specific mention of a tradition/custom by which proceeds are shared.

Exhibit B is an agreement made between Chief Kofi Kontoh of Akokoaso of one part and Kofi Barn and Abena Ayimah of the other party all of Akokoaso. Exhibit B was made for the parties thereto and for and on behalf of “other respective heirs, successors or family in title”.

Exhibit B was made in respect of the three concessions or mining land of the families situate at Sebeh, Yoboe and