1999
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal judgment, authored by Justice A. Essilfie‑Bondzie, arises from an appeal against the High Court at Koforidua (Mrs. Justice Adinyira, 15 October 1996). Members of the Kwaku Daaku Asona family of Abetifi—led by the first plaintiff as head of family—sued fellow family members over parcels of land (lots 1–8), contending that the Gyasewa Stool’s occupant does not automatically succeed to the self‑acquired properties of the late Opanin Kwaku Daaku. The defendants asserted a family custom vesting those assets in the stool’s occupant. The Court of Appeal held that the alleged custom was not proved; the Gyasewa Stool was a sub‑stool created by the Adonten Stool of Kwahu, not an ancestral stool with attached properties; and Daaku’s self‑acquired property (except lot 3) devolved to his family on intestacy. The court further found no valid removal of the first plaintiff as head of family, confirmed his capacity (and that of principal members) to sue, set aside the High Court’s dismissal, and entered judgment for the plaintiffs, excluding lot 3.
JUDGMENT
ESSILFIE-BONDZIE, JA.
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.
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.
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.
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
“(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.”
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