OPANIN MANUKURE SAMPONG AND OTHERS vs. OPANIN KWAKU AMPADU AND OTHERS [1999]DLCA6556

Date	1999-02-17
Suit No.	CIVIL APPEAL NO. 48/98.
Citation No.	[1999]DLCA6556

ESSILFIE-BONDZIE JA. (PRESIDING)

AMONOO-MONNEY JA

OWUSU-ANSAH JA

MR. K. ASIAMAH SAMPONG FOR PLAINTIFFS/APPELLANTS

MR. J. E. YEBOAH FOR THE DEFENDANTS/RESPONDENTS

[1999]DLCA6556
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >OPANIN MANUKURE SAMPONG AND OTHERS<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>OPANIN KWAKU AMPADU AND OTHERS<o:p></o:p>(DEFENDANTSLRESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. 48/98.&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
17TH FEBRUARY, 1999.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

COUNSEL: <o:p></o:p>

MR.
K. ASIAMAH SAMPONG FOR PLAINTIFFS/APPELLANTS<o:p></o:p>

&nbsp;MR. J. E. YEBOAH FOR THE
DEFENDANTS/RESPONDENTS<o:p></o:p>

</div>CORAM:<o:p></o:p>ESSILFIE-BONDZIE JA. (PRESIDING), AMONOO-MONNEY JA,
OWUSU-ANSAH JA.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ESSILFIE-BONDZIE,
JA.<o:p></o:p>&nbsp;This appeal is from the decision of the High
Court Koforidua, contained in the judgment of Her Lordship Mrs. Justice
Adinyira dated 15th October 1996. The plaintiffs issued a writ against the
defendants claiming as head of family and principal members respectively of the
Kwaku Daaku Asona family of Abetifi declaration of title to parcels of land
described as lots 1-8 endorsed on the Writ of Summons, recovery of possession
of lots 1-8 endorsed on the writ, perpetual injunction restraining the
defendants, their servants etc from entering or interfering with the properties
and an account of monies in rents etc from 21st October 1991 to date of
judgment. <o:p></o:p>The undisputed fact in
this case is that all the plaintiffs and all the defendants are members of the
Daaku Asona family of Kwaaman and Abetifi. The parties do not dispute the fact
that the Adonten Stool of Kwahu ie the then Abetifihene created a Black Stool
for the Daaku Asona Family. The said substool created was called Gyasewa Stool
of Abetifi. It is also agreed that Opanin Daaku was the second occupant of the
Gyasewa Stool. Opanin Daaku was succeeded as Gyasewahene by the 1st defendant
(now deceased), followed by the late Baffour Okyere Sampong and presently by
the 2nd defendant. It is not disputed that all the properties forming the
subject matter in dispute with the exception of lot 3 were self–acquired by
Opanin Daaku before he became the Gyasewahene. Lot 3 a farm at Takyikrom was
acquired by the 1st defendant when he was the occupant of the Gyasewa Stool.<o:p></o:p>&nbsp;The evidence and pleadings show that the 1st
plaintiff brought the action on behalf of himself as head of the Asona Family
and on behalf of the immediate members of the Daaku Asona Family of Abetifi,
Kwahu and Kwaaman Ashante. The plaintiffs contended that the occupant of the
Gyasewa stool does not at the same time succeed to Opanin Daaku’s self-acquired
property. In other words they claimed that the defendants cannot lay claim to
the properties in dispute since they were the self-acquired property of Opanin
Daaku.<o:p></o:p>&nbsp;In their defense, the defendants challenged
the capacity of the plaintiffs to institute the action. Thus in paragraph 2 of
the statement of defense, they pleaded<o:p></o:p>&nbsp;“(2) Paragraph 1 of the statement of claim is
not admitted on the ground that the 1st plaintiff is not the Head of the Asona
Family of Abetifi and Kwaaman. Consequently all the plaintiffs lack the
necessary capacity to institute this action.”<o:p></o:p>&nbsp;It was also their case that the elders
allocated Opanin Kwaku Daaku’s self-acquired properties to the Gyasewa stool
when Opanin Ampadu, 1st defendant, (now deceased) was installed as Gyasewahene.
In other words the defendants claimed that they are rightfully in possession of
all the properties of Opanin Daaku, who was an ex-Gyasewahene because according
to custom the occupant of the stool automatically succeeds to the property of
Opanin Daaku. <o:p></o:p>The learned trial judge
took evidence from both parties and after examining and evaluating them decided
in favour of the defendants. At the tail end of her judgment, the trial judge
said “so on the totality of the evidence, am left in no doubt that it is the
custom for the occupant of the Gyasewa Stool to succeed to the properties of
the late Opanin Daaku. There is therefore no basis for the plaintiffs claim.”<o:p></o:p>&nbsp;In this appeal the plaintiffs/appellants (who
will hereafter be referred to as plaintiffs) have filed a number of grounds but
in my view the relevant ones are the following:—<o:p></o:p>&nbsp;“(1) The learned trial judge erred in law by
holding that the occupant of the Gyasewa stool of Abetifi is automatically the
customary successor of the past occupant of the stool, one Opanin Kwaku Daaku
contrary to the evidence.<o:p></o:p>&nbsp;(2) The learned trial judge erred in law by
holding, that Opanin Kwaku Daaku’s personal properties although acquired before
his enstoolment on the Gyasewa Stool became Gyasewa Stool properties.<o:p></o:p>&nbsp;(3) The learned trial judge erred in law by
failing to give a ruling whether or not 1st plaintiff is the Head of Family of
the Daaku Asona Family of Abetifi although that was an issue for trial.<o:p></o:p>&nbsp;(4) The learned judge erred in law by holding
that a Head of Family cannot sue to recover family property.”<o:p></o:p>&nbsp;According to the 2nd defendant, the spokesman
for the defendants their claim is that the occupant of the Gyasewa stool is
automatically customary successor to the late Opanin Daaku and so all the
self-acquired properties of Opanin Daaku are vested in him on behalf of the
stool and family. He contended that it had been the custom among the Asona
Family of Abetifi that the occupant of the Gyasewa stool acts at the same time
as customary successor to the late Opanin Daaku. It is plain from the record
that the alleged custom was not proved. The defendants just went into the
witness box and repeated the averments in the statement of defense. I do not
think the evidence of DW1 and DW2 assisted them in any way to prove the said
custom. It must be emphasised that the Gyasewa stool was created by the
Adontenhene of Abetifi. It is not an ancestral stool, which had accumulated
proper</main>