TANOR AND ANOTHER vs. AKOSUA KOKO [1974]DLHC10261

Date	1974-05-06
Suit No.	[1 G L R 451 – 464]
Citation No.	[1974]DLHC10261

APALOO J.A

LASSEY J.A

ARCHER J.A.

W. E. A. OFORI-ATTA FOR THE APPELLANTS.

K. DUA-SAKYI FOR THE RESPONDENT.

[1974]DLHC10261
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													<main id="main" class="content" style="min-height: 60rem" >TANOR AND
ANOTHER<o:p></o:p>vs.<o:p></o:p>AKOSUA KOKO<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL:<o:p></o:p>W. E. A. OFORI-ATTA FOR THE APPELLANTS.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

K. DUA-SAKYI FOR THE
RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

APALOO J.A, LASSEY
J.A, ARCHER J.A.<o:p></o:p>

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;<o:p></o:p>APALOO
J.A.<o:p></o:p>&nbsp;This appeal raises some interesting questions
about the true requirements of adoption of a child in customary law.&nbsp; Although there is some controversy between
the parties on the facts, there is also between them, a large area of
agreement.<o:p></o:p>&nbsp;The plaintiff (i.e. the respondent) who
should be in her mid-fifties, originally hailed from a town called Ogome in the
Yilo Krobo District of the Eastern Region.&nbsp;
She was born of Krobo parents.&nbsp;
Late in 1933, just about the time that she reached puberty, she had an
affair with a man from her home district.&nbsp;
She found herself pregnant.&nbsp; There
was and still is in Krobo custom, an inflexible rule which ordains that a female
who reaches puberty, should undergo a customary rite called "dipo"
before taking seed.&nbsp; A female who got
pregnant before undergoing this ceremony, incurred severe customary sanctions.&nbsp; She was not only to be socially ostracized,
but she was liable to be banished from home and disowned by her parents.&nbsp; At the time the plaintiff found herself with
child, she had not undergone this ceremony.&nbsp;
She was finished!&nbsp; As she knew the
consequences to herself of her own lapse, she was always in hiding.<o:p></o:p>&nbsp;About March 1934, a redeemer came to
her.&nbsp; It was in the person of a man from
Akrofufu in Akim Abuakwa called Dobre.&nbsp;
The latter seemed to have been of fairly advanced age.&nbsp; He was married to five women.&nbsp; His family, in a matrilineal sense, consisted
of himself his three nephews and an only niece.&nbsp;
Dobre saw the plaintiff's parents, and after reaching some understanding
with them, took the plaintiff away with him to his home in Akrofufu.&nbsp; She has remained in that house ever since and
has survived Dobre and all his maternal relations.&nbsp; So much is not in dispute.<o:p></o:p>&nbsp;The plaintiff says, Dobre's object in taking
her away was to adopt her into his family.&nbsp;
This was because his only niece Abena Asase, though married, was
childless and was unlikely, by reason of her age, to bear children. Dobre,
according to the plaintiff, did so adopt her in accordance with custom and she
became wholly assimilated into his family.&nbsp;
The defendants who are the appellants, are a paternal grand-nephew and son
respectively of Dobre and are, in the contemplation of Akan customary law,
strangers to his family.&nbsp; They say,
Dobre's object in bringing the plaintiff from her home was to marry her.&nbsp; They say he did so marry her but the marriage
failed after two years.&nbsp; Thereafter, the
plaintiff led, what the defendants described as a "concubinage life."
They deny that Dobre adopted her or at all events, did so in accordance with
Akim Abuakwa custom.<o:p></o:p>&nbsp;&nbsp;Dobre died on a date which it is not possible
to fix with precision on the evidence. He was succeeded by his nephew Broni.
When the latter died, Boadi, yet another nephew of Dobre, succeeded.&nbsp; He was in turn succeeded by Dobre's only
niece Abena Asase.&nbsp; The latter died on 22
December 1968, without issue.&nbsp; It is
succession to her that brought the present dispute, and hence the materiality
of the issue of adoption.&nbsp; If as the
plaintiff claimed, she was adopted by Dobre and assimilated into his family,
she was, on Asase's death entitled to succeed to her being the only eligible
relation in the maternal line.&nbsp; If as the
defendants asserted, she was only a divorced wife of Dobre then being a total
stranger to Dobre and hence to Asase, she had no claim to her inheritance.&nbsp; The defendants concede as indeed they cannot
dispute, that being paternal relations of Dobre and Asase, they are not
ordinarily entitled to succeed either of them. But they say, in the absence of
maternal relations, they as blood relations are entitled to succeed Asase or,
at any rate, as against the plaintiff to take possession of her property.<o:p></o:p>&nbsp;As I said, Abena Asase died just before
Christmas 1968. In January 1969, the plaintiff claiming to be her rightful
successor, applied to the High Court for letters of administration to
administer her estate. She was said to have died possessed of nine cocoa farms,
a storey building and other species of movable property.&nbsp; The defendants entered a caveat and disputed
the plaintiff's right to administer the estate.&nbsp;
Both sides having failed to agree on the person to whom grant should be
made, the court ordered the issue of writ.&nbsp;
The plaintiff did so and the issues which she invited the court to
determine, were formulated in the summons for directions as follows:<o:p></o:p>&nbsp;(a) Whether the plaintiff was customarily
adopted into the family of the late Kofi Dobre of Akrofufu.<o:p></o:p>&nbsp;