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Heyman v. Attipoe
(1957) 3 WALR 86.
High Court, Eastern Judicial Division, Land Court (Ollennu, J.)
6 September, 1957

Cases referred to :

(1) Abude and Others v. Onano and Others (1946) 12 W.A.C.A. 102.

APPEAL from a decision of Anlo Native Court ``A'' on July 23, 1956, in favour of the defendant in an action for a declaration of title to land, for an order of possession and for an account.

The plaintiff and the defendant are both direct descendants of a comman ancestress, one Adanshigbo. the defendant is the grandson of Nyanya, oone of Adanshigbo's five children by her first husband, Chief Sokpui I; the plaintiff is a grandson of Hudzengor, one of Adanshigbo's two children by her second husband Kumorshie. It is common ground between the parties that the land in dispute belonged originally to Cheif Sokpui I, and that he made a gift of it to his wife Adanshigbo. But while the plaintiff claims taht Adanshigbo died intestate possessed of the said land, adn taht it has, by native custom, now become faimly property to be enjoyed in common by all the direct descendandts of Adanshigbo, the defendant contends that Adanshigbo disposed of the land during her lifetime to her daughter Nyanya alone, that Nyanya died intestate and possessed of if and that it has therefore become teh sole property of the direct de3scendeants of Nyanya, hsi grandmother, to hte exclusion of all other direct descendants of Adanshigbo.

The first finding of the Native corut contradicts the case put up by either party, which is that Chief Sokpui I made an absolute givt of the lland to Adanshigbo, such that Adanshigbo could deal with it in any way she liked. That decision, therefore, is not suppored by the evidence and so cannot stand.

The second finding amounts to a decision that Adanshigbo died possessed of the land. As already poitned out, that in fact is the only issue the Native Corut was called upon to determine. This finding is in favour of the plaintiff. Therefore the proeprt and indeed the only judgment which the Native Corut should have given is one for a declaration in favour of the plaintiff that the property is family property for all direct descendandts of Adanshigbo, including the plaintiff and defendant. But instead of giving judgment for the plaintiff the Native court built up a case for the defendant which was quite different from the oen he set up and tried to prove by the evidence he led. That new case is that Adanshigbo's only interes in the land was that of farming rights, which by native custom died with her, and thereupon the property descended by Anlo custom to her children by Chief Sokpui the donor exclusively.

Mr. Apaloo, learned counsel for the defendant, has propertly conceded that that decisoin cannot be defendend. A court is not entitled to make a case for any party. Its simple duty is to adjudicate upon the issues which are raised befor eit, adn any others that are incidental to those issues. The Native Court therefore erred in taking it upon themselves to make a new case for the defendant, and in entering judgment in his favour on that case.

Now in addition to his claim for a declaration that the land is the property of all the direct descendants of Adanshigbo, the plaintiff also claimed recovery of possession and accounts. Mr. Akufo-Addo, leanred counsel for the paintiff, conceded that the claim for an accoung against the defendant, the head of the family, is no maintanable according to native custom. As to teh claim for recovery of possession, he says that he would not presss for an order in that behalf: that was as far as he could go.

By native custom a member of a family cannot sue the head of the famly for accounts. The authorities are many on that point; one of them is Abude and Others v. Onano and Others (1). The plaintiff's claim for account must therefore fajil.

Again, by native custom the head of the family is the proper person to have charge of and control the family land for and on behalf of the family. A member of the family cannot maintain an action against him for recovery of general family land in the possession of the head. The only instance in which he can maintain an action for recovery of possession agasint teh head is when the head wrongfully takes possession of a portion of the family land which the individual member or a branch fo the famly has reduceed, by on of the customary methods, into his possession, i.e., land over which the individual member or branch of the family has established a usufructuary title.

There is no evidence on the record that the area in dispute has ever been in the exclusive possession of the plaintiff, or of his small branch of the family, as their separate estate. In teh circumstances the claim for recovery of possession must also fail.

Thus, of the three claims the plaintiff made, only the principal one, namely, the one for a declaration that the land in dispute is property of the fmaily of all direct descendants of Adanshibgo, can succeed. For the reasons stated above I allow the appeal, set aside the jdugment of the Anlo Native Court ``A'' including the order as to costs, and substitute thereofre the following:

``There will be judgment for the plaintiff against the defendant for a declaration that the land in dispute si the property of the Adanshigbo family, consisting of all direct descendants of the said Adanshigbo, including the plaintiff and tlal those he represent, and the defendant and all descendants of Nyanya.''

The plaintiff's claim for recovelry of possession and for account are dismissed.

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Josh DuBois 2004-12-01