ATOMO vs. TEKPETEY [1979]DLHC1039

Date	1979-10-26
Suit No.
Citation No.	[1979]DLHC1039

APATU-PLANGE J.

A. L. DJABATEY FOR THE PLAINTIFF.

GEORGE DARKO FOR THE DEFENDANT.

[1979]DLHC1039
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													<main id="main" class="content" style="min-height: 60rem" >ATOMO <o:p></o:p>vs. <o:p></o:p>TEKPETEY<o:p></o:p>[HIGH COURT, KOFORIDUA]<o:p></o:p>&nbsp;[1980] GLR 738<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
26 OCTOBER 1979<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

A. L. DJABATEY FOR THE PLAINTIFF.<o:p></o:p>

GEORGE DARKO FOR THE DEFENDANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APATU-PLANGE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APATU-PLANGE J.<o:p></o:p>In this
case the plaintiff’s claim against the defendant as indorsed on her writ of
summons is for:<o:p></o:p>(a) Account
from the defendant as caretaker of the properties of the late Atomo Lawor of
Osuwem from the date of his death up to the date of judgment;<o:p></o:p>(b) Recovery
of the amount found due for the purpose of being shared between the plaintiff
and her sisters, the customary beneficiaries of the late Atomo’s properties; an
order upon the defendant to deliver unto the plaintiff and her sisters the
properties of the late Atomo Lawor held by him and in his care; and<o:p></o:p>(d) An
order of perpetual injunction against the defendant restraining him from
further interference with the properties so handed over to the plaintiff and
her sisters.”<o:p></o:p><o:p>&nbsp;</o:p>The
defendant resisted the claim by contending that the plaintiff cannot in
accordance with Osuwem custom be described as a daughter of the late Atomo
Lawor and that at the time of the death of late Atomo Lawor, he, the defendant,
being the paternal nephew was the only relative of the late Atomo Lawor capable
of inheriting him and that he, the defendant, was accordingly entrusted with
the properties of the late Atomo Lawor by the head of family by name Kpong Teye
as successor.<o:p></o:p><o:p>&nbsp;</o:p>[His
lordship here recounted the facts as summarised in the headnote and continued:]
It is the case of the defendant that even if the plaintiff was born after the
death of the fetish priest Chechedua, since her mother was married to Chechedua
as a wayokwe, the plaintiff is still by custom regarded as the child of the fetish
priest and not the child of her natural father, Atomo Lawor. This claim by the
defendant is said to be one of the customs among the Osudokus and the second
defendant witness in her evidence in support of this claim conflicted herself.
In her evidence-in-chief this was what she said:<o:p></o:p><o:p>&nbsp;</o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“I know
what is a wayokwe for I married Chechedua as wayokwe. The plaintiff’s mother
was also wayokwe. I had children with Chechedua. Since Chechedua’s death, I had
married again and had children. They are two in all and they belong to
Chechedua because his money is behind me. This means that when I married
Chechedua, the custom performed was such that when I bring forth without him,
the children are still his. The custom performed when I married Chechedua is
the same custom performed for all those who married as wayokwe.”<o:p></o:p><o:p>&nbsp;</o:p>Then
under cross-examination this was what the very witness said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“I know a
woman called Nagadi for she also married Chechedua. After Chechedua’s death
Nagadi married one Kwadzo Akpasu given to her by the family. The said Akpasu is
dead and his properties were shared among his children. I know Nanyo, she too
married Chechedua. She was given later to Obroni Auginbor. She had no children.
I knew Komleko, for she was married also to my husband. She was given to
Awotei, but she refused and so got married to Awya. I admit that Grace Atomo,
the plaintiff’s mother, in like so was married to Awya but she refused him and
she went to marry Atomo.”<o:p></o:p>