OKWAN AND OTHERS v. AMANKWA II

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 [p.126] 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.

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.

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.

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.

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