GOLO III v. DOH AND OTHERS [1966] GLR 447

Division: HIGH COURT, HO

Date: 12 NOVEMBER 1965

Before: JIAGGE J.

NATURE OF PROCEEDINGS

ACTION for damages for trespass to land and an order for perpetual injunction, the determination of which involved a question of inheritance in the Kpeve area of the Volta Region.

COUNSEL

Doku for the plaintiff.

S. Okudjeto for the defendants.

JUDGMENT OF JIAGGE J.

The plaintiff as head of the Fia Komla family claimed £G80 damages for trespass and an order for perpetual injunction restraining the defendants from further actions of trespass: [The main issue for the determination of the court involved the law of inheritance in the Kpeve area of the Volta Region. Her ladyship reviewed the evidence in the case and continued:] The plaintiff led expert evidence on the custom of inheritance and succession in the Kpeve area. The defendants did not seriously contest the evidence on custom. The plaintiff’s fifth witness was the stool father of Kpeve and had been stool father for the past twenty years. He told the court that he was well acquainted with the inheritance laws of Kpeve. Inheritance in his area he said was patrilineal in relation to both real and personal properties.

[p.448] of [1966] GLR 447

Children, sons and daughters inherit their fathers as of right but the daughters have only a life interest in the property descending to them from their father. He said, “On the death of a daughter her father’s property reverts to her father’s family. A daughter cannot therefore make any absolute disposition of property inherited from her father.”

Under cross-examination the witness explained further that:

“A daughter who succeeds to her father’s property succeeds only for her lifetime. A gift made by a father to his daughter during his lifetime can be disposed of absolutely by the daughter, if the property was self-acquired by the father. Such a gift inter vivos can always be disposed of absolutely. The self-acquired properties of a woman belong to her children, men and women alike. These self-acquired properties become family property in the hands of the children of the deceased and they cannot dispose of them absolutely.” He went on to say that on the death of a woman her family appoints one of her children to look after all her properties for herself and all her brothers and sisters—the properties are not shared. On the death of one of the children leaving issues the issues will step into their mother’s place and enjoy the portion that was to go to their mother. He said:

“The grandchildren of a woman may inherit property descending from their grandmother provided that property was self-acquired by the said grandmother … However any property coming into the hands of the maternal ancestor which descended to her from the paternal line will revert to the paternal family.” If an only child, a daughter, inherits her father’s property she has only a life interest, on her death the property reverts to her father’s family. Her children will not inherit such property as of right. But where a self-acquired property descends to the daughter from her mother, the daughter’s children may inherit. Only the issues of sons may inherit their grandfather’s property.

The plaintiff’s claim was that the Dzongo Nyowui land was founded by the Fia Komla family and came through Tefe to his daughter Adjoa Wole who according to custom had only a life interest and that the Fia Komla family was the reversionary owner. On the death of Adjoa Wole, the plaintiff—as head of the Fia Komla family took possession of the land.

The first defendant had this to say on the evidence of the expert witness:

[p.449] of [1966] GLR 447

“It is true that he (the plaintiff’s fifth witness) gave evidence on customary law of inheritance. It is correct that he said that whenever a woman inherited property belonging to her father, on her death the property reverted to the father’s family. Yes that is a true statement of our inheritance laws.” I find that the evidence of the expert witness is a true statement of the Kpeve law of inheritance. The defendants’ sixth witness told the court that he came from the Ladzedome family and that the first defendant’s father was his father’s brother. This witness under cross-examination said, “I told the court that the Dzongo Nyowui land was from Tokloe Yawo to his daughter Ameblee. It is true that after the death of Ameblee the property should have reverted to the family of her father.”

He was asked the following question, “How was it that the property descended to Ameblee’s daughter Adjoa Wole instead of going back to Ameblee’s father’s family?” The witness was in real difficulties and looked miserable as the question was repeated several times—he could not answer. To another question the witness said:

“It is correct that a child belongs to the father’s clan. Adjoa Wole and her mother Ameblee were from different clans. It is true that the property coming to Adjoa Wole had left Ameblee’s clan. It is correct that when the property came to Adjoa Wole, it left the Ladzedome clan for the Dzamasu clan.” It was suggested to the witness said that no member of the Ladzedome family planted cocoa except the first defendant’s father because they could not do so without the express permission of the plaintiff’s family and that only the first defendant’s father had such permission. The witness firmly denied the suggestion but said:

“Apart from the first defendant’s father it is true no member of my family has any cocoa farm on the land in dispute . . . It is true that none of my predecessors ever questioned the plaintiff’s right to the land, that is because he did not trespass during their lifetime.”

In answer to another question the witness said, “No one who has a life interest only in landed property is permitted to plant cash crops unless with the permission of the reversionary owner.” The defendant’s eighth witness under cross-examination on the same issue said, “It is against custom to plant cash crops like cocoa on land belonging to a clan different from your own without specific permission of that clan.” The defendant’s ninth witness claimed that his uncle Krankani Kodo had made a farm on the land in dispute. The defendant’s sixth witness told the court that Krankani Kodzo [p.450] of [1966] GLR 447 and Basare Mama both had cocoa farms on the land. He said, “It is correct these two are not members of my family. The plaintiff’s brother has a cocoa farm on the land and the plaintiff’s second witness has a cocoa farm. It is not true that the plaintiff gave them all permission.” The defendant’s ninth witness told the court that he was Krankani Kodzo’s successor. He said, “It is true that after my father’s death my mother Kudza took me to the plaintiff for his permission for me to continue to hold the cocoa farm.” The witness told the court earlier under cross-examination that the plaintiff asked him to leave the farm and he had to do so that very day.

I am satisfied that in the Kpeve area, where the possessory title is only a life interest the holder cannot plant cash crops on the land without the express permission of the reversionary owner. I am satisfied also that inheritance is patrilineal and that children male and female inherit their fathers and that the daughters have only a life interest in the property descending to them from their father. On the death of a daughter such property would revert to her father’s family and her children have no right to inherit.

I am satisfied that on the death of Adjoa Wole the Dzongo Nyowui land which descended to her from her father reverted to her father’s family, to the plaintiff as head of family. I am satisfied that the plaintiff is the owner of the land in dispute. The defendants did not deny cutting down the palm trees. They claimed they did so as of right, that the land belonged to the Ladzedome family and that as members of the said family they had the right to make use of the land.

I find that the defendants committed the trespass complained of. I give judgment to the plaintiff and award £G80 damages against the defendants jointly and severally. The application for an order for perpetual injunction is granted restraining the defendants, their servants and agents from committing further acts of trespass on the land.

Costs assessed at 100 guineas inclusive or 252 cedis. DECISION Judgment for the plaintiff.

Application for injunction granted.