JUDGMENT OF OLLENNU J.
(His lordship referred to the pleadings, and proceeded:-)
The most important point which learned counsel for the defendant has made is that on the face of the writ of summons itself, and upon the whole evidence, the claim is one for succession, not one relating to ownership, possession and occupation of land.
[p.251]
The law, as I understand it, is this: where two persons claim to be entitled to land by right of succession to one and the same person, that suit is one of succession. The real issue the Court would have to decide is which of the two contesting parties is the successor to the deceased. The declaration that the successor is entitled to possession and occupation of the land is merely consequential as a right vested in the successor, it is not an issue in the case. But where two persons claim land, one as successor to one person (e.g. his ancestor Mr. A), and the other as successor to another person (e.g. his ancestor Mr B), that claim, though based upon succession, is not a case of succession, It is a claim for declaration of the title of either the ancestor Mr. A, or of the ancestor Mr. B, and the plaintiff can only succeed if he is able to prove the title of his ancestor (Vanderpuije v. Botchway ([1956] A.C. 105), and the judgments of the West African Court of Appeal there cited).
Upon that principle, and in order to ascertain whether the claim is one of succession or of title of land, I shall now examine the evidence led by the parties. According to the plaintiff, the virgin forest was originally cultivated by his ancestor, one Dentah;. upon the death of Dentah one Afua succeeded to the farm; upon Afua's death Kwame Antwi succeeded; and he (the plaintiff) has succeeded to Kwame Antwi. He says that when Afua succeeded to the farm she invited one Gyeiwah (mother of the 1st defendant and grandmother of the 2nd defendant), who belonged to the same clan as herself, to come and live with her at Asokere, and thereupon placed her in charge of the farm now in dispute as caretaker, but never made a gift of the farm to Gyeiwah in accordance with native custom. When Antwi succeeded to the farm he permitted Afua Sarpong (successor, according to native custom, to her mother Gyeiwah) to remain in possession of the farm. When Antwi was ill however, he sent for the 2nd defendant, who had succeeded his mother Afua Sarpong and was in possession of the farm, and informed him that he was going to dispose of this farm to which he (A
