HIGH COURT, SUNYANI
DATE: 26TH MARCH, 1962
BEFORE: BRUCE-LYLE, J.
NATURE OF PROCEEDING
APPEAL from a judgment of a local court.
COUNSEL
Ansah Twum for the defendant-appellant.
W.K. Ackun for the plaintiff-respondent.
JUDGMENT OF BRUCE-LYLE J.
In this case the plaintiff’s claim was for a declaration by the court that she was entitled to a share of the eleven farms cultivated by her husband and to which the defendant had succeeded, and also for the court to share the farms.
In Akan custom the plaintiff was not entitled to a share of her late husband’s property only on the ground that she assisted in the cultivation of the farms. The position is different where assistance by a wife had been substantial and of a financial nature. In this case if the defendant had not agreed that he was prepared to give the plaintiff a share of the farms I am of the opinion that the plaintiff would have found it difficult to succeed.
The trial court upon the “plea of liable” by the defendant gave judgment for the plaintiff and then went on to share the farms between the plaintiff and the defendant. There is nothing on record to show that the defendant agreed to this method of sharing the cocoa farms. In the absence of any evidence to support the sharing of the cocoa farms I find that the trial court erred in law in sharing the cocoa farms. According to the custom of the parties the successor has an absolute discretion to give to the plaintiff the share which he thought was reasonable, however little, and the trial court should have ordered the defendant to exercise that absolute discretion in giving to the plaintiff what he the defendant thought fit and proper.
For the above reasons I am of the opinion that this appeal should succeed. The appeal is therefore allowed, and that part of the judgment of the trial court which decrees certain farms to belong to the plaintiff is hereby set aside for Costs the defendant-appellant fixed at £G7 15s. including counsel’s fee of £G6 6s.
DECISION
Appeal allowed to the extent indicated.
