OKWAN AND OTHERS v. AMANKWA

On 14 November 1979, the plaintiff in this case sealed a writ in this court directed against the defendants herein indorsed as:

“(a) The plaintiff as Chief of Brako and of the Kona family of Brako claims against the defendants jointly and severally, an order for accounts of all moneys collected by the defendants from the sale of palm trees and from cocoa abusa tenants on Kona family lands in the Central Region which moneys the defendants have refused or neglected to account to the plaintiff after repeated demands.

(b) An order for perpetual injunction against the defendants, their servants or their agents from any further interference with the collection of moneys aforesaid.”

[p.419]

The plaintiff filed on the same day, his statement of claim, the relevant portions of which, were formulated in the following terms:

"(1) The plaintiff is the Chief of Brako near Breman-Asikuma in the Central Region and also the Akyempenhene of Breman-Asikuma Traditional Area.

(2) The plaintiff comes from the Kona Family of Brako and is the elected chief thereof.

(3) As the chief, the plaintiff is the custodian of all the family lands in the Central Region and particularly in the Breman-Asikuma Traditional Area.

(4) As the custodian of the said family lands, the plaintiff or through his agents is the person entitled to collect abusa dues from cocoa abusa tenants on the said family lands granted to the said tenants by the plaintiff personally and others by the predecessors of the plaintiff."

The defendants in their statement of defence admitted paragraphs (1) and (2) of the statement of claim but "vehemently denied" paragraphs (3) and (4); and in further answer to the averments therein contained, pleaded in paragraphs (3) and (4) of the statement of defence:

"(3) Further to the paragraphs denied, the defendants aver that, the first defendant, as head of the family to which the plaintiff belongs, is according to the custom prevailing in that area, and indeed all Akan society, the custodian of all the family lands in the Central Region and the Breman-Asikuma lands in particular.

(4) Thus the first defendant as the head and custodian of the family lands is entitled to collect all dues, be they abusa, abunu or otherwise accruing from the family lands for or on behalf of the family."

It would appear that at some stage of the proceedings, the court albeit differently constituted, ruled on the nature of the lands, the subject-matter of the suit, and although neither coun