OKWAN AND OTHERS vs. AMANKWA II [1981]DLCA2284

Date	1981-01-30
Suit No.
Citation No.	[1981]DLCA2284

APALOO C.J. JSC

CRABBE J.S.C.

WIREDU J.A.

MERCER FOR THE APPELLANTS.

AGADZI FOR THE RESPONDENT.

[1981]DLCA2284
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													<main id="main" class="content" style="min-height: 60rem" >OKWAN
AND OTHERS<o:p></o:p>vs.<o:p></o:p>AMANKWA
II<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 1
GLR 123<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 30 JANUARY 1981<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MERCER
FOR THE APPELLANTS.<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">

AGADZI
FOR THE RESPONDENT. <o:p></o:p>

APALOO
C.J., CRABBE J.S.C. AND WIREDU J.A. <o:p></o:p>

</div>JUDGMENT
OF EDWARD WIREDU J.A.<o:p></o:p>The
parties to this appeal will for purposes of convenience be referred to in this
judgement as the plaintiff, the first, second and third defendants respectively
in the manner in which they have been described on the writ of summons or
simply as defendants where the context so requires. The appeal is from a ruling
of Okunnor J. sitting at the High Court, Cape Coast dated 1 April 1980 in which
he dismissed an objection taken against the plaintiff’s capacity to maintain an
action for accounts and rents in respect of his family stool lands.<o:p></o:p>The facts
of this case which are devoid of any complexity may be briefly stated as
follows. The parties to this suit are all members of the same family, namely
the Kona family of Barko near Breman-Asikuma in the Central Region. The plaintiff
is the odikro of Barko village. On the writ of summons issued on or about 18
November 1979, he is described as “the chief of Barko and of the Kona family of
Barko”. The first defendant is the head of the said family whilst the second
and the third defendants are on the pleadings described as members of the
family.<o:p></o:p>The facts
before the court show that this family owns lands in the Ajumako Traditional
Area on portions of which are abusa farm tenants. The facts further show that
these tenant farmers obtained their grants from the family and that members of
this family are the exclusive beneficiaries of rents collected from the tenants
including the felling of palm trees on the lands.<o:p></o:p>According
to the plaintiff it had been the established practice in the family for the
occupant of the family stool to take charge and manage the said family lands
and that all rents accruing from the tenant farmers are collected on his
authority and later distributed in accordance with established practice in the
family.<o:p></o:p>The defendants
deny the plaintiff’s claim to be the custodian of the family lands. The first
defendant contends that as the head of the family he is by custom the custodian
of all the family lands. The defendants in their statement of defence do not
deny (a) that the lands in question are the private family lands of members of
the Barko Kona family, (b) that members of the family are the exclusive
beneficiaries of rents collected from stranger farm tenants working on portions
of the family land granted them on abusa basis and (c) the proportions in which
rents collected from tenant farmers working on the lands are shared as pleaded
by the plaintiff. The only area of difference between the parties as to the
sharing of rents is who takes and keeps the share of the family stool.<o:p></o:p>The
events which seem to have sparked off the plaintiff’s action are pleaded in
paragraphs (11)-(18) of the statement of claim as follows:<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">“(11) By
custom every year the proceeds from the cocoa abusa tenants are shared into
three as follows: one-third to the plaintiff, one-third to the stool which is
also kept by the plaintiff for custom and stool expenses and one-third to the
family for sharing among members of the family. <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">(12) The
plaintiff is still the odikro of Barko. He has not been destooled. <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">(13) A
little over a month ago the first defendant without authority from the
plaintiff caused a gong-gong to be beaten to the effect that all the dues from
palm trees on the land and the cocoa abusa dues should be collected by the
second and the third defendants and paid to the first defendant. <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">(14)
Since then the second and the third defendants have prevented the cocoa abusa
tenants from paying the dues thereof to the plaintiff and have been collecting
the moneys aforesaid without accounting to the plaintiff. They have also
collected dues on palm trees. <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">