HIGH COURT (LANDS DIVISION), ACCRA
DATE: 1ST JUNE, 1959.
BEFORE: OLLENNU J.
CASES REFERRED TO
(1) Sukpui II & ors. v. Agbozo III & ors. (13 W.A.C.A. 241);
(2) Chapman v. Coloo & anor. (unreported, judgment in Land Appeal No. 114/1956, delivered the
10th August, 1951);
(3) Vanderpuije v. Botchway,[1956] A.C. 105)
COUNSEL
Dr. J. B. Danquah for defendants (appellants).
Moore for plaintiff (respondent).
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] of [1959] GLR 250
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 (Antwi) had succeeded, in order to raise money for his medical treatment, and the 2nd defendant agreed to it.
The case of the defendants, on the other hand, is that Gyeiwah was the one who originally cultivated the virgin forest, that she was succeeded by Afua Sarpong and that the 1st defendant is the present successor to Afua Sarpong.
It is clear, therefore, that although each of the parties bases his claim upon a right of succession, what the plaintiff is really saying is that the farm is his because it was acquired by his ancestor Dentah;
[p.252] of [1959] GLR 250
the contention of the defendants, on the other hand, is that the farm belongs to the 2nd defendant, because it was acquired by his ancestress Gyeiwah. Upon the principle I have stated this cannot be a claim to right of succession, it is clearly a case of right to ownership, possession and occupation of land. I hold therefore that this Court has jurisdiction to entertain the appeal.
As to counsel’s submission on capacity, where a person sues in a certain capacity, and leads evidence-in-chief in support of that capacity, and his evidence in that behalf is not in any way challenged, it must be presumed that his right to sue in that capacity is admitted by the defendant. It is only where a person’s right to sue in a representative capacity is challenged that he cannot succeed, unless he is able to prove that he is authorised or entitled to sue in that capacity (Sukpui II & ors. v. Agbozo III & ors. (13 W.A.C.A. 241); also the judgment of this Court delivered on the 10th August, 1951 in Chapman v. Coloo and anor. (Land Appeal No. 114/1956)).
In this case, although the plaintiff alleged in his writ of summons that he is successor to Opanin Kwame Antwi, and led evidence in proof of that, there was no cross-examination upon that evidence.
Nor was evidence called by the defence to contradict the plaintiff’s evidence proving his right to sue as successor. The presumption, therefore, is that his right to sue was not denied; it is too late now to dispute that right.
DECISION
And now as to questions of fact…
