YAA ASIBUO-SUCCESSOR TO LATE AKUA AFRIYIE FOR AND ON BEHALF OF AFUA KUNADU v. KWAME KYEREME AND OTHERS
1950
HIGH COURT
GHANA
CORAM
- Quashie-Idun, J
Areas of Law
- Property and Real Estate Law
- Contract Law
- Civil Procedure
1950
HIGH COURT
GHANA
CORAM
AI Generated Summary
This case concerns a cocoa farm and associated property inherited under matrilineal native custom by the plaintiff-appellant and her relative, Afua Kunadu. After initial litigation in the Native Court of Akropong was settled out of court, the parties appointed Kweku Atuahene as caretaker, with terms requiring the appellant and the third defendant to satisfy family debts and mandating equal enjoyment of proceeds. When the appellant’s daughter incurred a debt of £15, Atuahene refused to pay, insisting he had been enstooled to enjoy the property rather than liquidate debts. The Kumasi Division Native Court “C” found the property belonged to the appellant and granted declaration of title and recovery of possession. On appeal, Asantehene’s Court A2 affirmed ownership but held no breach. Justice Quashie-Idun disagreed, finding breach based on evidence, noting the farm was already cultivated by the original owner, and holding the appellant was entitled to terminate the caretaking appointment, restore the trial court’s judgment, and recover possession, with costs assessed at 20 guineas.
Judgment :
The brief facts of the case are that the plaintiff-appellant and Afua Kunadu became the owners by succession of the property in dispute. They agreed that the respondent, Kweku Atuahene, should become the caretaker of the property and to render accounts of the proceeds to the owners.
The Respondent refused to render account and Kunadu sued him in the Native Court of Akropong. The case was, however, not gone into but parties were allowed to have the same settled outside the court. The terms of settlement were (a) that if any of the relatives contracted a debt it should be the joint responsibility of the third defendant and the appellant to see it satisfied (b) that any money received out of the proceeds should be enjoyed equally by the parties.
The appellant's daughter contracted a debt of £15. The respondent refused to pay the money and stated that he was " enstooled to enjoy the property but not to liquidate debts". The appellant therefore requested the members of the family to remove the respondent out of office as caretaker and upon failure of the members to do so this action was instituted against two of the members of the family and the respondent. The respondent Atuahene's case was that he came by the property as a gift from Kunadu.
The Kumasi Division Native Court "C" carefully went into the matter and found, as a fact that the property in dispute belonged to the appellant and that it was out of sheer feeling of mercy that she agreed to allow the respondent to act as caretaker of the land. They therefore gave judgment for the plaintiff whose claim was for declaration of title and recovery of possession against the second defendant and the present respondent. The second defendant did not appeal but the present respondent appealed to the Asantehene's Court A2. That court confirmed the finding of fact by the trial Native Court that the property belonged to the appellant. It however, decided that on the evidence it was not proved that the respondent, Atuahene, had committed any breach of the terms of his appointment as caretaker. On this point I am not in agreement with the views expressed by the Native Court. There was evidence given
by the appellant that although the respondent, Atuahene, had agreed to pay the debts of the members of the family and had in fact obtained a loan for the payment of a debt incurred by a member, he had refused to pay the borrower and had alleged that he was not appointed to pay debts.
In my view the facts of