NYAMEYIE VRS. FIRIKYI II (A1/02/2024) [2025] GHADC 28 (9 January 2025)

IN THE DISTRICT COURT, NEW EDUBIASE HELD ON THURSDAY 9TH JANUARY, 2025 BEFORE HER WORSHIP ANASTACIA Y. A. KARIMU ESQ. SUIT NO: A1/02/2024 AFIA NYAMEYIE (ACTING FOR HERSELF AND FOR AND ON BEHALF OF THE PLAINTIFF ASONA FAMILY OF NEW EDUBIASE) PER LAWFUL ATTORNEY SETH AMOAKO VRS. NANA FOSU ODURO FIRIKYI II @ JOSEPH KWASI ANANE DEFENDANT JUDGMENT 1. This is a judgment concerning land. 2. By a writ dated 29th September, 2023 Kwabena Osei, the acting head of family of the Asona family of Old and New Edubiase caused his attorney Seth Amoako to issue the instant writ against Kwasi Fosu for the following reliefs: a. Declaration of title and recovery of possession from the defendant a parcel of land situate and lying at a place commonly called Atwima Menaso on New Edubiase stool lands which share boundaries with the properties whose owners are not known to the plaintiff and the defendant is claiming ownership, Page 1 of 9 b. An order for perpetual injunction restraining the defendant herein, his agents, assigns, privies, workmen, servants, customary successors and all those who claim through the defendant from interfering with the plaintiff’s Asona family quiet enjoyment of the disputed plot of land, and c. Cost 3. At the first hearing of the suit, the defendant informed the court that his name is not Kwasi Fosu but Nana Oduro Firikyi II. He informed the court that his given name is Joseph Kwasi Anane while Nana Oduro Firikyi II is his stool name, which name he has been using for the past thirty years. This court differently constituted, ordered the plaintiff to amend the title of the suit to reflect the defendant’s stool and given names as follows, Nana Fosu Oduro Firikyi II @Joseph Kwasi Anane. On 16th October, 2023 the plaintiff, pursuant to the order of the court amended the defendant’s name. On 28th December, 2023 the court was informed of the demise of the plaintiff. The suit was consequently adjourned for the Asona family to substitute him. On 19th March, 2024 deceased Kwabena Osei was substituted by Afia Nyameyie who gave a power of attorney to Seth Amoako to represent her and the Asona family in this suit. 4. In his statement of defence filed on 12th December, 2023 the defendant denied the assertions of then plaintiff Kwabena Osei that he was the acting head of the Asona family and that he the defendant is not a member of the Asona family. He stated that he is a member and the head of the Asona family of both Old and New Edubiase. He is the chief of the Asona Dabe family, also known as the Dabehene of Old and New Edubiase. He admitted that the land in dispute is for the Ason family but added that it now belongs to him as the Dabehene. The land, he stated shares boundaries with Mr. Apraku, Mohammed Lafia, and wofa Yaw. The land Page 2 of 9 he contends, was allocated to him by the Plot Allocation Committee because he is the head of the Asona family and the Dabehene. Therefore, his occupation and development of the land does not constitute trespass no stealing. He counterclaimed for declaration of title and recovery of possession, an order for perpetual injunction, and cost. 5. Pursuant to leave of this court granted on 19th August, 2024 the defendant filed an amended statement of defence and counter claim. In the said statement, the defendant averred that he is the head of the Asona family of both Old and New Eubiase as well as the chief of the Dabe stool. He has been the Dabehene for over thirty years. The Asona family land was demarcated into plots by the Plot Allocation Committee of New Edubiase Traditional Council. After the demarcation, the plot the subject matter of this suit and others were entrusted to him by Obaapanin Abena Gyapomaa. When he informed the elders of the Asona family that he would like to take the disputed plot for his personal use, they consented. Consequently, he began construction on the land by laying the foundation. The late Kwabena Osei went onto the land and caused damage to the foundation. The cost of the damage is GH¢12,480.00. He therefore counterclaimed for recovery of possession of the land, payment of GH¢12,480.00, and costs. The plaintiff did not amend her statement of claim. 6. The case of the plaintiff is that the land in dispute is part of the Asona Family farmlands situate and lying at Atwima Menaso on the New Edubiase stool lands. The current boundary owners of the disputed property are not known to her since the real ancestral owners are dead. A few years ago, the chief and elders of New Edubiase stool demarcated the Asona family farmlands into plots and allocated several acres to the Asona Family of New Edubiase. The disputed property forms Page 3 of 9 part of the lands given to the Asona family. The defendant who is not a member of the Asona family has trespassed unto the land claiming to be the 'Dabehene' of the New Edubiase stool. This conduct of the defendant is tantamount to stealing. Consequently, the family reported the case to the New Edubiase Police Station for criminal investigations to be conducted alongside this civil action. Since the defendant is not a member of the Asona family of Old and New Edubiase his name was not included among the chief mourners who arranged and performed the final funeral rite of the late Abusuapanin Kwabena Osei. The defendant never asked the Asona family why his name was not included in the funeral poster of the deceased plaintiff. The defendant has trespassed unto the disputed plots of land claiming ownership of same without any genuine documents covering the land. He tendered in evidence the following exhibits: a. Exhibit A – the power of attorney dated 15th March, 2024 b. Exhibit B – the funeral poster of the late Nana Adu Brempong Kagya II c. Exhibit B1 – the obituary of the late Nana Ama Nyarko II d. Exhibit B2 – the funeral invitation for the late Kwabena Osei Owusu 7. The plaintiff did not call any other witness. 8. The case of the defendant is that he is the chief of the Asona Dabe Family of both Old and New Edubiase. The plaintiff is a member of the aforesaid family. He has been the Chief of the Asona Dabe Family for thirty-two years now and has attended many ceremonies within the family and on behalf of the family. The land in question is known as plot number 89 and is situate at New Edubiase. The land is part of the Asona Dabe Family of Old and New Edubiase farmland which was demarcated into building plots in the year 2014 under his headship. In the same year, he was instructed by the late Obaapanin Abena Gyapomaa of the Asona Page 4 of 9 Dabe Family to inform the plot Allocation Committee of New Edubiase to allot the family's farmland at Atwima Menaso into building plots. The Plot Allocation Committee of New Edubiase Divisional Council then engaged a surveyor to demarcate the aforesaid farmland into building plots. The demarcation of the said farmland yielded 28 plots. The aforesaid building plots were then apportioned as follows: The Surveyor was given two plots, the New Edubiase Divisional Council thirteen plots, and the Asona Dabe Family thirteen plots. The Asona Dabe family took possession of the thirteen plots allotted to the family. He acquired plot 89 through succession inheritance with the consent of the elders of the Asona Dabe Family. He has been in possession of the aforesaid plot since 2014. He was issued with an Allocation sheet and site plan in 2017. He began construction on the land, but the late Kwabena Osei illegally caused damage to it. By then he has spent GH¢12,480.00 on the project. Plot 89 was sold by his elder brother the late Kwaku Prah to one Iddrisu Barik in 2017 when he had started developing the land. He and his brother were summoned to court by Iddrisu Barik. His late brother was ordered to refund the amount he received from Iddrisu Barik while he was ordered to pay for the sand wind on the land. He tendered in evidence the following into evidence: a. Exhibit 1 and 1A- the funeral invitation of the later Obaapanin Adwoa Kwayie b. Exhibit 1B – a picture of some members of the Asona Dabe family c. Exhibit 1C - the funeral poster of the late opanin Kwaku Prah d. Exhibit 1D – the funeral poster of the late John Kwabena Kuru Asante e. Exhibit 1E – the funeral poster of the late Charles Birikorang f. Exhibit 2 – the allocation paper from the Plot Allocation Committee, Edubiase Stool land g. Exhibit 2A – the site plan of plot 89 Page 5 of 9 h. Exhibit 3 and 3A – two pictures of plot 89 9. The defendant called one witness, Nana Bonsu Appiah Asare who testified on oath that he is the chief of Dwebiaso of New Edubiase and the chairman of the Plot Allocation Committee. The land the subject matter of this suit is located at Atwema Menaso on New Edubiase stool lands. The plot in dispute is part of the Asona Dabe Family farm land of New Edubiase. The defendant is the Chief of the Asona Dabe family. On the instruction of the late Obaapanin Abena the defendant in 2014 approached the plot allocation committee to assist them to allot Asona Dabe Family farmland on the stretch of the road from New Edubiase to Obronikrom into building plots. The committee engaged a surveyor to work on the layout of the aforesaid farmland. After the allotment of the farmland by the surveyor they had 28 plots. Out of this, two were given to the surveyor, thirteen to Nananom and thirteen to the Asona Dabe Family. The defendant being the chief of Asona Dabe family chose plot 89 for his personal use with the consent of the opinion leaders of the Asona Dabe family. The land was subsequently registered in his name in 2017. The late Kwaku Prah, the older brother of the defendant sold the plot in dispute to Iddrisu Barik while the defendant was in the process of developing same. The said Iddrisu Barik then summoned both the defendant and the late Kwaku Prah before this Honourable court differently constituted. The suit was referred to him, the Kontihene and Nana Oyokohene for an out of court settlement. After the mediation the defendant's late brother was asked to find another plot for Iddris Barik and the defendant was to pay for the sand wind by Iddrisu Barik unto the disputed plot. The outcome of the mediation by Nananom was referred to the court. The court ordered the defendants to pay GH¢6,000.00 to Iddrisu Barik, which order they complied with. The plot in dispute is the bona fide property of the defendant. He tendered in evidence an order for an out of court Page 6 of 9 settlement from this court dated 18th August, 2017 which was admitted as Exhibit 4. 10. The issue for determination is whether or not the defendant is a member of the Asona Dabe family or the Agona family. 11. From the evidence on record, it is abundantly clear that the basis of the plaintiff’s claim for declaration of title and recovery of possession of land from the defendant is that the defendant is not an Asona but an Agona. This was vehemently denied by the defendant who contended that he has a right to the use of the land because he is the head of the Asona Dabe family, the Dabehene of Old and New Edubiase, and he was rightly enstooled as a chief after due diligence by the paramount chief and elders of Old and New Edubiase. The defendant admits that plot 89 forms part of the thirteen plots allocated to the Asona Dabe family by the plot allocation committee. He however claims right use of the plot because of his standing as the head and the Dabehene of the Asona family. Therefore, title to plot 89 is not in issue. Where averments are not denied, no issue is joined, and there is no obligation on either party to lead evidence on it: Fori v. Ayirebi [1965] GLR 627, SC. 12. The question of whether the defendant is a member of the Asona Dabe family or the Agona family is ordinarily a question which this court is empowered to determine. However, in this case the plaintiff’s reliefs cannot be granted by the court without considering the issue as to whether or not the is Asona or an Agona. This determination would affect the standing of the defendant as a chief. Thus, the issue falls within the definition of section 117(1)(a) of the Courts Act, 1993 (Act 459) and section76 of the Chieftaincy Act, 2008 (Act 759), and makes it a cause or matter Page 7 of 9 affecting chieftaincy. Implied in the issue before this court is the question of whether the defendant hails from the appropriate family and lineage and has been validly nominated, elected or selected and enstooled as a chief in accordance with the relevant customary law and usage of Old and New Edubiase. What this means therefore is that this court lacks jurisdiction to entertain it. The only bodies with original jurisdiction to determine all questions concerning a cause or matter affecting chieftaincy are the traditional councils of each region. In this case, it is the traditional council of Old and New Edubiase that should determine the issues between the parties herein. 13. Whether an issue is a cause or matter affecting chieftaincy would depend on the facts of the case. The litmus test for determining whether an issue is a cause or matter affecting chieftaincy is whether the issue comes within the definition provided by the section 117(1) of the Courts Act, 1993 (Act 459) or section 76 of the Chieftaincy Act, 2008 (Act 759): Nana Bronin Abankro V v. Solomon Ntiamoah & Others [2017] DLCA 5564. Section 117(1) of Act 459 which is reproduced verbatim in section 76 of Act 759, provides that “(1) In this Act, unless the context otherwise requires, “cause or matter affecting chieftaincy” means a cause, matter, question or dispute relating to (a) the nomination, election, selection, installation or deposition of a person as a Chief or the claim of a person to be nominated, elected, selected, installed as a Chief, or (b) the destoolment or abdication of a Chief, or (c) the right of a person to take part in the nomination, election, selection, appointment or installation of a person as a Chief or in the deposition of a Chief, or Page 8 of 9 (d) the recovery or delivery of stool property in connection with the nomination, election, appointment, installation, deposition or abdication, of a Chief or (e) the constitutional relations under customary law between Chiefs” 14. In the case of The Republic v. High Court, Koforidua, ex-parte Bediako II [1997] DLSC 3623, the apex court held that “in order to constitute a matter one affecting chieftaincy, it must, in my view, be on the determination of which, unless overturned on appeal, would settle once and for all a chieftaincy matter or dispute.” 15. This court was informed on 12th November, 2024 that the plaintiff family had reported this very matter to the Paramount Chief of New Edubiase and a committee has been set up to investigate the matter. Thus, the matter has been put before the body clothed with jurisdiction to hear it. The suit is accordingly struck out for lack of jurisdiction. 16. There will be no order as to cost. ANASTACIA Y. A. KARIMU ESQ. [MAGISTRATE] Page 9 of 9