KPAKPLA v. KOFIKPOE [1966] GLR 442

Division: HIGH COURT, HO

Date: 7 MAY 1965

Before: JIAGGE J.

NATURE OF PROCEEDINGS

ACTION for a declaration of title to land, recovery of possession and perpetual injunction in relation to a parcel of land, in which the plaintiffs alleged that according to the custom in the area they [p.443] of [1966] GLR 442 were entitled as children to inherit the self-acquired property of their deceased mother. The facts are sufficiently stated in the judgment.

COUNSEL

Doku for the plaintiffs.

F. T. C. Amorin for the defendant.

JUDGMENT OF JIAGGE J.

The plaintiffs’ claim is for a declaration of title to land, recovery of possession, and perpetual injunction. The action was taken against seven defendants. In their statement of claim, the plaintiffs averred that they were sisters and that their mother Susanah Akosua Kodzo who died in 1963 purchased the land in dispute and made Togbe Deble, the first defendant, her caretaker of Lave, the land in dispute.

The fourth defendant filed a defence stating that the owner of the property in dispute was the late Susanah Akosua Kodzo and he the fourth defendant was neither her successor nor could he inherit the property and that he laid no claim to the said property.

The plaintiffs later withdrew their claim against the first six defendants leaving the seventh defendant, Felix Kofikpoe, as the only defendant. The defendant, Felix Kofikpoe, in his statement of defence averred that he was a nephew to the plaintiffs and that his mother was the plaintiffs’ eldest sister. The defendant averred that the land in dispute was called Kalanu land and that it was a gift made to his mother, the late Malewota Kumafe Kpakpla, by Susanah Akosua Kodzo. He averred that the late Susanah gave other landed properties to the plaintiffs.

It was common ground that exhibit A was the plan of the land in dispute and that the original owner of it was Susanah Akosua Kodzo who purchased it.

Asuwosi Kpakpla, the first plaintiff, told the court that her mother Susanah Akosua Kodzo died some three years ago and that her successor was Agbeve whom she described as her “mother’s father” and according to custom her successor. Later, under cross-examination she explained that Agbeve was her mother’s father’s successor and that he played the part of “father” at the funeral of her mother and that according to the Dodome-Tsikor custom her mother’s successor was her mother’s father failing that, his successor. Agbeve being the successor of her mother’s father succeeded her mother.

She told the court that six months after her mother’s death, Agbeve gave her and her sister Irene, their mother’s properties to inherit. She stated that the handing over was done in the presence of other elders of the family who were Togbe Deble (her mother’s caretaker and nephew) and one Nakpee. Other members of family

[p.444] of [1966] GLR 442 present were Alla Ogu, Irene Kpakpla, the second plaintiff, Yawo Kodzo, Akotonukui, Kofikpoe—the defendant, his sister Afua, Etuwosi and Yawa—all these members of the family were present when her mother’s properties were handed over to her and her sister Irene by Agbeve her mother’s successor. Agbeve gave evidence as the plaintiffs’ sixth witness and confirmed the allegation. The first plaintiff told the court that in her area children inherited their mother’s self-acquired property. On the death of the children, however, the property reverted to the family of their mother’s father and did not descend to the grandchildren. The line of defence adopted in cross-examination was that of lawful inheritance although this was not pleaded.

The first plaintiff confirmed under cross-examination that children were entitled to inherit their mother’s self-acquired property jointly and that on the death of the brothers and sisters the surviving child took the entire property. On the death of the surviving child the property reverted to the mother’s family, that is the mother’s father’s family.

According to the custom in the area grandchildren cannot inherit a grandmother as of right; but the children may at their discretion give a portion of their mother’s property to the grandchildren. Any child may farm on her mother’s self-acquired land but a grandchild cannot do so without permission. This statement of the customary law of Dodome-Tsikor was confirmed by the plaintiffs’ third witness Chief Kpakpatriku II, a very old man and the Paramount Chief of Dodome. He said:

“When a woman dies her father is her successor and is entitled to inherit her. If her father is not alive the man who represented the father at the funeral is her successor. The self-acquired property of the deceased belongs to her children.”

He went on to explain that where the deceased was in possession of property descending to her from her mother, the grandchildren were not entitled to inherit such property except where they belonged to their grandmother’s clan. Where the grandchildren belonged to another clan they could not inherit—the property must revert to the grandmother’s clan—to the close relations in the said clan. He went on to explain that every child belonged to his father’s clan.

The plaintiffs’ sixth witness Yawo Agbeve the successor of the plaintiffs’ mother speaking on the same issue said, “There are differences even in the same clan, the grandchildren will inherit their grandmother only if their father came not only from the same clan as their grandmother but also from the same ancestor.” Earlier on the same witness said:

[p.445] of [1966] GLR 442

“The grandchildren do not come in at all except where specific gifts have been made by the children of the deceased. Inheritance is according to clan, the grandchildren must go to their father’s clan.” If the father’s clan is the same as their grandmother’s they may still not inherit her unless they come not only from the same clan but also from the same ancestor. The plaintiffs’ sixth witness told the court that the late Susanah was from the Hordzo clan, the defendant from the Sedevi clan and his mother from the Adovivime clan. There was no satisfactory evidence to the contrary, and I am satisfied that the witnesses told the court the truth on the customary law of inheritance in the area.

The first plaintiff in her evidence stated that the defendant without her permission cut down palm-trees on the land and tapped palm wine. The defendant did not deny the allegation but held that the land was a gift inter vivos from his grandmother to his mother. He claimed that the gift was in secret and that it was his grandmother herself who told him of it. His father the defendant’s third witness Wedzeagbagba in connection with the custom in Dodome relating to gifts inter vivos said this:

“There are no special customs in Dodome in relation to gifts of real property inter vivos. It is not necessary to give thanks for the gift. It is true we have various customs in Dodome, but none in relation to gifts.” The first plaintiff however told the court that a valid gift of real property must be made according to Dodome custom in the presence of the father of the donor or his father’s successor. The children of the donor must also be present, she said, “This is done so that on the death of the donor his successor and those who inherit his properties do not interfere with the ownership and possession of the donee.” She claimed that for a valid gift of land it was necessary that Agbeve her mother’s “father,” all her mother’s children and Togbe Deble the caretaker of the land should be present. The chief or his representative should also be invited. The donee, his father and members of her father’s family should be present at the gathering at which the gift was announced and that there was never any such meeting.

Speaking on the custom of the area in relation to gifts of real property, the first plaintiff stated that at the gathering aforesaid the donor after declaring the gift must offer drinks to those present. Later the donee must make a thanksgiving offering with drinks, a ram, yam and cloth. On the same issue the plaintiffs’ sixth witness

[p.446] of [1966] GLR 442 told the court that after the declaration of the gift, the donor presented a pot of palm wine to the gathering. He said:

“Everyone has to drink of this wine as evidence that he was present when the gift was made. Libation is poured and then this first meeting is over. The person entitled to pour libation is the father of the donor or someone in his place.”

He went on to describe a second gathering at which the father of the donee makes a thanksgiving offering of drinks, a sheep, yam and cloth. He described how the sheep was slaughtered and everyone partook of a feast as evidence that he was present when the gift was accepted. I am satisfied that the witnesses told the truth about the custom in the area pertaining to a gift of real property inter vivos.

The defendant admitted that although the land in dispute was a gift inter vivos to his mother a number of people who were not his mother’s children farmed the land, grew cash crops on it and kept the proceeds themselves. He was given no part of the proceeds nor was any account ever rendered to him. He admitted further that his grandmother was alive when all the farms were made but that she raised no objection. His sister Afua the defendant’s fifth witness however made the position clear in her evidence-in-chief, she told the court that she asked her grandmother why she had allowed all those people to farm on the land since the land was purchased for her mother. She said:

“My grandmother told me not to annoy her that she had to buy the land because of acts done by my father to annoy her … that it was for that reason that she bought the land—that she did not want my mother to farm again on anybody’s land. She said also that she was the mother of us all and she wanted all her children to farm on the land.”

I am satisfied that Susanah Akosua Kodzo did not at any time make a gift of the land in dispute to the defendant’s mother. I give judgment for the plaintiffs and order perpetual injunction against the defendant, his agents and assigns, until he succeeds in obtaining permission from his aunts, the plaintiffs to farm the land.

Costs inclusive 75 guineas.

DECISION

Judgment for the plaintiffs.

K. T.