Omane v. Poku [1973] 1 G.L.R.

295; [1973] 2 GLR 66

Tags Briefed Case

Course Ghana Legal System & Method Private International Law

In Omane, the deceased, a national of Cote d'Ivoire, moved to Ghana

and lived in Ghana for over sixty years. He never visited Cote d'Ivoire
again. He adopted a Ghanaian name, married two Ghanaians, acquired
Facts
immovable property and died intestate in Ghana. It was held that his
domicile was to be determined by the law of Ghana, and, under it, he had
acquired a domicile of choice in Ghana at the time of his death.

Last
edited @November 19, 2023 10:30 PM
time

Law
Domicile
Topics

Principle Whether a person is domiciled in Ghana is determined by the lex fori.

OMANE V POKU

The deceased was born in Ivory Coast. To avoid being conscripted into the world
war he was brought to Ghana. He lived in Ghana till he died intestate. He owned
two cocoa farms and married two women under customary law. The plf was
appointed successor of his estate by the landlord while the def claimed the farms
were gifted to him in the presence of witnesses to repay a kindness. The issue was
whether Boakye was subject to the customary law of Ghana and if so which?
Held- Boakye can accurately be said to have become an Ashanti. He came into the
country as a child, lived in Ashanti for 70 years, married in Ashanti, adopted an
Ashanti name and acquired property and died in Ashanti never once visiting his

Omane v. Poku [1973] 1 G.L.R. 295; [1973] 2 GLR 66 1

 home in Ivory Coast. Therefore his properties ought to devolve on his matrilineal
family.

Structured Brief

FACTS:
Kofi Boakye, an Ivorian national who had lived in Ghana for over 60 years died
interstate leaving properties including two cocoa farms. The plaintiff Opanin
Kwaku Omane also an Ivorian national alleged that he was related to the late
Kofi Boakye and that during the lifetime of the late Kofi Boakye, both of them
became part of the family of the Bretuo clan at Kona in Ashanti. He claimed he
was elected by the said family as successor to the deceased.

PROCEDURE:
The plaintiff instituted a proceeding against the defendant Barima Kwasi Poku
for a declaration of title to the two farms which the defendant alleged were
gifted to him by the deceased shortly before his death, and for which he gave
aseda in the presence of witnesses. The defendant also counterclaimed for a
declaration of title to the farms. In the course of the proceedings, Kwabena
Akuto a son of the deceased joined as co-defendant without objection from
either side. He counterclaimed that as the deceased was an Ivorian and was
subject to the patrilineal law of succession, he (Kwabena Akuto.) was entitled to
the possession and control of the property of B. for and on behalf of the family.

ISSUES:

1. Whether or not before the death of Kofi Boakye he gifted the farms in
dispute to the defendant.

2. Whether or not after the death of Kofi Boakye the plaintiff was appointed
customary successor.

3. Whether or not as a result of this alleged gift the defendant went into
possession of the farms before the death of Kofi Boakye.

HOLDINGS:
Plaintiff’s action dismissed. Second defendant’s counterclaim failed. First
defendant succeeds on counterclaim

Omane v. Poku [1973] 1 G.L.R. 295; [1973] 2 GLR 66 2

 1. The plaintiff was not qualified to be appointed successor of the late Kofi
Boakye

2. The deceased before his death gifted the two farms to the defendant.

3. The defendant was not in possession of the farms before the death of the
deceased.

REASONS:
The plaintiff had failed to discharge the burden of proof on the issues of his
relationship with the deceased as well as that of membership of himself and the
deceased in the family of the head of the Kona Bretuo clan. That family
therefore had no right to appoint a successor to the estate of the deceased and
as such the plaintiff was not qualified for such an appointment.
The fact that the defendant received and accepted the gift and gave an aseda
for them in the presence of witnesses was enough to constitute a valid
customary gift inter vivos.
The defendant did not say that he went to the farms himself and the evidence of
the witness called upon was not reliable.

COMMENTS:
The judgment was in the right direction. The Judge’s knowledge of Ghanaian
customary land law was brought to play in the case. The use of the different
interpretations of acceptance by Sarbah, Ollenu and Bentsi-Enchill enriched the
judge’s discussion on what acceptance meant under Ghanaian customary law.

Omane v. Poku [1973] 1 G.L.R. 295; [1973] 2 GLR 66 3