|
Practice and
Procedure- Civil Procedure -
Adoption of proceedings -
Jurisprudence - 1992
Constitution - Article 129 (3)
- Customary Successor -
Inherited property - Expiration
of the initial lease - Fiduciary
relationships - whether the
lease subsequently acquired by
Osei Hwirie validly devolved on
him in his personal capacity -
Whether or not he did acquire it
in trust on behalf of the family
HEADNOTES
The
Plaintiff/ Appellant/
Respondent, (Respondent), a
senior member of the immediate
Asona family of
Asamankama-Offinso, acting on
behalf of himself and the
family, took out a writ of
summons against the Defendants
/Respondents/ Appellants
(Appellants) jointly and
severally for declaration of
title to certain properties
listed in a schedule attached to
the statement of claim, recovery
of possession of those
properties and an order of
perpetual injunction. This
appeal relates to one of these
properties, the house numbered
0.1. 92, Ashanti-New Town,
Kumasi. The original claim which
was in relation to all those
properties was directed against
only two named executors of one
Osei Hwirie, deceased, the
person around whom this entire
controversy revolves. But, by an
order of Anterkyi J, both writ
and statement of claim were
amended to include the 3rd
to 8th Appellants,
who are beneficiaries of the
will of Hwirie. Again, in the
course of time, the Respondent
limited the claim to only the
house numbered 01.92. The case
presented by the parties in this
legal battle is in reality so
uncomplicated that it is most
unfortunate that it has taken so
long for it to be brought to
closure. The Respondent’s case
is that in 1921, Kwabena
Amankwaa, deceased, the maternal
uncle of Hwirie, acquired plot
No 0.192, from the Chief
Commissioner of Kumasi for a
period of twenty –one years
certain, and constructed a swish
building thereon. On his death
intestate some six months to the
expiry of the said lease in
1942, Hwirie in his capacity as
customary successor inherited
the property, as family
property. However, some four
years later, in 1946, Hwirie
acquired the self same property,
from the Asantehene, this time
round, in his personal name, for
a period of ninety –nine years.
He pulled down the swish
building and constructed a
sandcrete building which he
however later devised under his
will, to the 3rd-8th
Appellants as beneficiaries. The
Respondents, contending that the
lease which Hwirie as customary
successor subsequently acquired
in 1946, together with the
building thereon, constituted
family property and not his self
acquired property, sued on
behalf of the family in
protection of its property. Not
surprisingly, the Appellants
countered the claim. They
maintained that the family’s
interest in the property was
completely extinguished when the
late Amankwaa’s lease expired in
1942. They further contended
that with the property having
lost its family character
altogether, Hwirie, was legally
entitled to and did in fact take
out the subsequent lease in his
individual capacity, and was
indeed entitled to dispose of it
in the manner that he did,
namely, as his self acquired
property.
.HELD
In our view,
a customary successor so
appointed by the family stands
in a fiduciary relationship with
the family. It is his duty not
only to take over the Estate of
the deceased but hold it in
trust not only for himself as a
beneficiary but the family
members entitled to a share of
the Estate. His duty further
entails the protection of the
family property and to enhance
it if possible for the family.
Thus as the custodian of the
family property in his hands it
is incumbent on him at all
material times to act in good
faith vis a vis the family and
the family property.” Under no
circumstances should the
customary successor set up an
adverse interest to that of the
family We are satisfied with the
final result reached by the
court of Appeal in this matter
and we fully endorse same. In
the result, this appeal fails
and the same is hereby
dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Court of
Appeal Rules, 1997, C.I. 19
1992
Constitution
CASES
REFERRED TO IN JUDGMENT
HALLE AND
SONS A. S. VRS BANK OF GHANA &
ANOR (2011) 34 G. M. J.
HARKNESS VRS
BELLS ASBESTOS & ENGINEERING
LIMITED (1967) 2 QB 729 at 736
CA
DOTWAAH VRS
AFRIYIE: [1965] GLR
Awudome
(Tsito) Stool v Peki Stool
[2009] SCGLR 681;
Boama v
Okyere [1967] GLR 548
Coleshill v
Manchester Corporation [1928] 1
K 776
Kusi & Kusi
vrs Bonsu [2010] SC GLR 60
Re Kwao v.
Nortey [1884-86] GLR 144
Santeng v
Darkwa 6 W.A.CA. 52.
Kwan and
Nyieni & Anor [1959] 1GLR 67 CA
Ashalley
Botwe Lands, In re; Adjetey
Agbosu v Kotey;[2003-2004] SCGLR
420.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
WOOD (MRS.),
CJ
COUNSEL
OBENG MANU
JNR. ESQ FOR THE DEFENDANTS/
RESPONDENTS/ APPELLANTS.
EDWARD
EGBLOGBE ANAGLATE FOR THE
PLAINTIFF /APPELLANT/
RESPONDENT.
----------------------------------------------------------------------------------------------------------------
JUDGMENT
----------------------------------------------------------------------------------------------------------------
WOOD (MRS.),
CJ;
The oft
quoted legal maxim “Justice
delayed is justice denied”,
coined by the British
politician, William Gladstone
(1809-1898), is no mere cliché.
The right to fair trial in a
timely manner is neither a
courtesy nor a favour, but a
fundamental right. Protracted
delays in the administration of
justice, impact negatively not
only on those who access the
courts, such as the victims of
crime, accused persons who are
acquitted at the end of their
trial, parties in civil
proceedings and their privies,
lawyers who practice before the
courts but indeed the entire
justice system. The judicial
history of this relatively
simple family related land
matter, which was commenced in
the High Court Kumasi, as far
back as the 4th of
April 1974, provides an insight
into the harmful effects of
systemic delays in the
administration of justice.
Regrettably, it has taken forty
long years, a whole generation,
for this case to finally find
its way into this court; the
court of last appeal. We hope
court business shall always be
managed in ways that will not
occasion a repeat of this parody
of justice.
BACKGROUND
FACTS
The
Plaintiff/ Appellant/
Respondent, (Respondent), a
senior member of the immediate
Asona family of
Asamankama-Offinso, acting on
behalf of himself and the
family, took out a writ of
summons against the Defendants
/Respondents/ Appellants
(Appellants) jointly and
severally for declaration of
title to certain properties
listed in a schedule attached to
the statement of claim, recovery
of possession of those
properties and an order of
perpetual injunction. This
appeal relates to one of these
properties, the house numbered
0.1. 92, Ashanti-New Town,
Kumasi. The original claim which
was in relation to all those
properties was directed against
only two named executors of one
Osei Hwirie, deceased, the
person around whom this entire
controversy revolves. But, by an
order of Anterkyi J, both writ
and statement of claim were
amended to include the 3rd
to 8th Appellants,
who are beneficiaries of the
will of Hwirie. Again, in the
course of time, the Respondent
limited the claim to only the
house numbered 01.92.
The case
presented by the parties in this
legal battle is in reality so
uncomplicated that it is most
unfortunate that it has taken so
long for it to be brought to
closure. The Respondent’s case
is that in 1921, Kwabena
Amankwaa, deceased, the maternal
uncle of Hwirie, acquired plot
No 0.192, from the Chief
Commissioner of Kumasi for a
period of twenty –one years
certain, and constructed a swish
building thereon. On his death
intestate some six months to the
expiry of the said lease in
1942, Hwirie in his capacity as
customary successor inherited
the property, as family
property. However, some four
years later, in 1946, Hwirie
acquired the self same property,
from the Asantehene, this time
round, in his personal name, for
a period of ninety –nine years.
He pulled down the swish
building and constructed a
sandcrete building which he
however later devised under his
will, to the 3rd-8th
Appellants as beneficiaries. The
Respondents, contending that the
lease which Hwirie as customary
successor subsequently acquired
in 1946, together with the
building thereon, constituted
family property and not his self
acquired property, sued on
behalf of the family in
protection of its property.
Not
surprisingly, the Appellants
countered the claim. They
maintained that the family’s
interest in the property was
completely extinguished when the
late Amankwaa’s lease expired in
1942. They further contended
that with the property having
lost its family character
altogether, Hwirie, was legally
entitled to and did in fact take
out the subsequent lease in his
individual capacity, and was
indeed entitled to dispose of it
in the manner that he did,
namely, as his self acquired
property.
As is to be
expected, the pleadings on both
sides raised a number of
pertinent triable issues, as is
borne out by both the summons
for directions and additional
issues. It took a whole decade,
after the commencement of the
action, for judgment to be
pronounced by the High Court
differently constituted. While
the evidence was received by
Korsah J, who reserved judgment
on 15th August 1980,
the decision, with the full
reasons reserved, to be given at
a later date, was delivered by
Okunnor J on the 21st
of August 1986, nearly six years
thereafter. But the Respondent,
who lost the action, would not
wait for the promised reasons.
Some five days thereafter,
aggrieved by the decision, he
appealed to the Court of Appeal;
understandably, on the oft used
omnibus ground that:
“The
judgment is against the weight
of the evidence.”
For reasons
not apparent on the face of the
record, this judicial promise by
Okunnor J, that he would provide
the reasons for dismissing the
claim, never came to be
honoured.
Again,
regrettably, it took another two
decades for the Court of Appeal
to set aside Okunnor J’s
decision, on the ground that
when he took over the case from
a previous judge; he failed to
formally adopt the proceedings
before pronouncing the decision
complained of. The appellate
court consequently ordered a de
novo hearing.
When the
parties appeared before the new
trial judge Debrah J for a fresh
hearing as ordered, the learned
judge, relying on an agreement
of the parties, decided to
dispose of the entire action by
way of legal arguments only. He
neither adopted the proceedings
nor took fresh evidence from the
parties and their witnesses. He
ruled:
“As things
stand now, the court will take
formal evidence in this matter.
The Plaintiff says he wants to
go by relying on documentary
evidence. The Court has no
option but to go by the way the
parties have directed. On the
defendants, they must react to
what counsel for the plaintiff
is going to file and come back
for a date.
The filing
must be within a week from 2
weeks. Counsel on the other side
must comply within 2 weeks.”
Thus, on the
16th of March 2010,
the court gave judgment
dismissing the Respondent’s
claim, in the words of the trial
judge:
“as
basically unexisting.”
The
Respondent, who was aggrieved by
the results, successfully
appealed the decision. It is the
appeal against that decision of
the Court of Appeal, which we
now proceed to hear and
pronounce on.
We take
issue with the trial judge on
this stand, particularly, in
relation to the hapless
statement that it had no option
but to bow to the dictates of
the parties to dispose of the
case by legal arguments only.
Clearly, given the state of the
pleadings, the judge’s primary
responsibility was to ensure
that all the factual issues were
resolved on the basis of the
evidence. As the trier of facts,
he should not have shirked that
responsibility or sacrificed it
on the altar of expediency or
convenience. Given this and the
appellate court’s express
orders, his duty was to ensure
that either the proceedings were
adopted to provide the basis of
the fresh hearing; or failing
which under the existing law; he
ought to have taken evidence
afresh from the parties and
their witnesses. To do neither
was not the right step in the
circumstances. In this process,
we doubt if he would have run
into any difficulties with the
parties, particularly the
Respondent. Was he not the one
who complained about this lacuna
in the proceedings before
Okunnor J? Was the failure to
formally adopt the proceedings
not the ground on which he
successfully got the decision of
Okunnor J completely nullified
and a de novo hearing ordered?
Courts of
law must follow the law. As a
rule, courts are not expected to
endorse concessions, compromises
or agreements by parties which
are contrary to, inconsistent
with or not warranted by any
rule of law or procedure. Thus,
in any proceedings, where the
step taken by a party or parties
violates any constitutional or
statutory provision or is not
sanctioned by any substantive
rule of law or procedure, the
court has a duty to reject it,
notwithstanding the fact it was
based on the mutual agreement of
the parties. A court should not,
in the face of substantive
disputed facts, yield to
parties’ invitation to resolve a
case through legal arguments
only.
We find that
the court failed in its primary
duty entrusted to it by the
appellate court and the learned
justices of the Court of Appeal
must be commended for finding a
way to resolve the legal
quagmire arising from the breach
of duty by the Debrah J court.
At the
hearing of the appeal, the court
decided nonetheless to take into
account the evidence on the
record although they had no
formal consent of the parties to
do so. It was through this
process that court was enabled
to determine the issues of fact
central to the claim. As we
shall demonstrate shortly, the
factual findings are supported
by the record and we affirm
these findings, albeit via a
different reasoning process,
which as we would demonstrate,
would make a major inroad into
our jurisprudence on the nagging
question of the adoption of
proceedings. In this regard, and
for the purposes of clarity, we
produce in extenso the appellate
court’s reasons for utilising
the evidence on the record.
The court
observed:
“There is a
preliminary issue that we deem
important to consider in this
appeal.
In the
written submission of Counsel
for the Defendant, he raised
casually the issue that since
lawyers for the parties agreed
not to go through the drudgery
of retrial but to determine the
issue on legal arguments, what
the trial judge in law could do
was to rely on the pleadings
which span pages 1-74 of the
record and not on the
proceedings which are from pages
75-174 of the record which were
not adopted.
We have
considered carefully the issue
raised by counsel for the
plaintiff. It is trite law that
litigation cannot go on in
perpetuity. It must come to an
end at some point. And since an
appeal is by way of rehearing we
are enjoined to consider the
entire record of appeal which
the parties obviously agreed to
its content at the settlement of
record stage at the Court below.
We cannot therefore shut our
eyes to what is before us.
Under Rule 32
(1) of the Court of Appeal
Rules, 1997, C.I. 19 the Court
is empowered as follows:
“(1) The
Court may, in respect of an
appeal before it, give a
judgment and make an order that
ought to have been made and to
make a further or any other
order as the case may require
including an order as to cost.”
The Supreme
Court in recent years leans more
towards judgments that go to the
merits or roots of a case
instead of technicalities. Thus
in HALLE AND SONS A. S. VRS BANK
OF GHANA & ANOR (2011) 34 G. M.
J., the Supreme Court, commented
on the need to reject technicism
as a judicial approach to case
resolution. On the principle of
non-compliance with procedural
technicality, the Supreme Court
in Holding (2) held thus:
“The words of
Lord Denning MR. in HARKNESS VRS
BELLS ASBESTOS & ENGINEERING
LIMITED (1967) 2 QB 729 at 736
CA”
“It can be
asserted that it is not possible
for an honest litigant in her
majesty’s High Court to be
defeated by any mere
technicality, any slip, and any
mistaken step in his
litigation.” The same can also
be said of our Courts in Ghana
in view of our rule 79 of C.I.
16 rule 63 of C.I. 19 and Order
81 of C.I. 47.”
We commend
the learned justices of appeal
for finding a way to define the
legal rights of the parties,
deploying Rule 32 (1) of the
Court of Appeal Rules, 1977, CI
19, for the purpose. They cannot
altogether be blamed for
employing this procedure to
address the issue facing them.
At the date of the hearing of
the appeal, the decisional law,
which on the principle of stare
decisis they were bound to
follow was the legal principle
enunciated in the case of
Awudome (Tsito) Stool v Peki
Stool [2009] SCGLR 681; wherein
we affirmed the proper legal
procedure for the adoption of
proceedings in these terms:
“(1) The
established rule was that when a
case has been transferred from
one High Court to another, the
parties had the option to adopt
the proceedings or to have the
trial started de novo. That was
the common law rule which had
been adopted and practiced for
many years in the courts of
Ghana. Boama v Okyere [1967] GLR
548 and Coleshill v Manchester
Corporation [1928] 1 K 776
cited.”
We fully
recognise that the learned
justices had no option but to
follow this principle, hence
their resort to Rule 31 (1) of C
I 19 to resolve the difficulty
which confronted them. While we
agree with the result reached
via the invocation of that rule,
we nonetheless respectfully
think the rule was wrongly
applied in this instant case,
given that as it’s sub- title
clearly states, the rule merely
confers on the court the power
to deliver judgments and make
appropriate orders thereto in
relation to appeals before the
court, having regard,
implicitly, to the evidence
before the court. By evidence is
meant evidence which properly
speaking, forms part of the
relevant record. And yet we know
that the evidence received by
Korsah J had not yet been
adopted as part of the record,
while at the same time the Rule
31 (1) of C1 19 does not make
provision for adopting evidence
received by a previous judge.
But even if the court’s approach
can be justified, the state of
the law as decided hereunder
will provide or serve as an
additional legal buffer to the
appellate court’s reasoning.
In this case
then, we hereby proceed to
employ a more radical and
constitutionally based approach
to determine the rather nagging
question of what the proper
legal procedure is for adopting
proceedings before a previous
judge. The resolution of this
question will then pave the way
for the adoption of the evidence
received by Korsah J, qualifying
it to form part of the record
(which Debrah J never adopted)
and which would then be used to
resolve the critical issues of
fact arising from the pleadings.
Since an appeal is by way of
re-hearing, we will use this
evidence, when finally adopted
at this re-hearing, for the
purposes stated. The
pronouncement on this crucial
issue will alter the course of
our jurisprudence, in that it
would provide a more just and
far lasting legal solution to
the challenge which has faced
our courts in the past and
created enormous difficulties
for the smooth and speedy
administration of justice in our
jurisdiction. We concede that
the time is long overdue for a
volte-face from the age–old
legal position of no agreement
by all the parties no adoption
of evidence that the courts have
unremittingly followed for
decades. At this re-hearing, we
will not tie ourselves to the
existing legal principle, but
liberate ourselves from its
shackles.
The
foundation of this principle
which we have fastidiously held
on to was laid in the case of
Boama v Okyere [1967] GLR 548,
in which it was held that:
“Although the
usual practice was to hear
evidence afresh the court did
have power on the peculiar facts
of the case so permitted, on
grounds of convenience and
expense to order that the
evidence in the first trial be
adopted in the second trial by
consent of all parties.”
In this
court, we were persuaded by this
authority and the English case
of Coleshill v Manchester
Corporation [1928] 1 K 776 to
form our decision in the case of
Awudome (Tsito) Stool v Peki
Stool (supra).
Our decision
triggered the thought provoking
editorial comments of the
learned author, Dr S.Y. Bimpong
– Buta, who strongly advocated a
departure from our firmly held
legal position.
This case
provides us with the opportunity
to utilise the jurisdiction
conferred on us by article 129
(3) of the 1992 Constitution to
depart from our previous
decision which we find rather
archaic, retrogressive and
producing unjust results.
The article
129 (3) states:
“(3) The
Supreme Court may, while
treating its previous own
previous decision as normally
binding, depart from a previous
decision when it appears to it
right to do so and all other
courts shall be bound to follow
the decisions of the Supreme
Court on questions of law.”
We now give
the reasons for our departure
from the previous decision of
this court. In the
administration of justice,
transfers, ill health, death,
resignations, retirements, and
other vicissitudes of life from
which the judiciary is not
spared have, unavoidably
necessitated the transfer of
part heard cases from one court
to another differently
constituted; that is from one
judge to another. The first
question which arises in such
cases is whether the new judge
must adopt the evidence taken by
the previous judge and continue
from where he or she left off or
the case be retried or heard de
novo, namely that fresh evidence
be received. Hitherto this
ground breaking decision; our
courts have adopted proceedings,
namely the evidence, only where
all the parties have given their
unequivocal consent. But more
often than not, this consent
has, without valid reasons,
unreasonably been withheld.
Under such circumstances, judges
have, in desperation thrown
their hands in the air and
yielded to a de novo hearing,
leading to needless delays.
The main
policy reasoning behind this
approach is the thinking that
the new judge can only serve
justice if he or she saw and
heard the witnesses to enable a
close monitoring or observation
of their demeanour. And yet,
speaking for this bench as
presently constituted, our
judicial experience,
cumulatively spanning a period
of over a century has taught us
that hardly does the demeanour
qua demeanour of witnesses play
a significant role when
evaluating the credibility of
witnesses. Courts tend to rely
on some more reliable criteria
such as documentary evidence,
the testimony of disinterested
witnesses, the implausibility or
otherwise of narrations given in
court, to arrive at their
findings and conclusions. As
noted by the learned author
inter alia, (see the editorial
comments in Awudome (Tsito)
Stool v Peki Stool (supra)) :
“The
argument based on observation of
the demeanour of parties and
witnesses is not always tenable,
especially where that trial
lasts for many weeks; months or
years as is common in the
courts. The effluxion of time
may cause memories to fade, wane
or totally forgotten and, in
that event, there can be no
legitimate reliance on demeanour
which cannot be recollected.
…If the
specific observation is not
apparent on the face of the
record, it may be attacked as
being speculative. If the
observation is properly recorded
and is apparent in the
proceedings, the second trial
judge can make use of them as
the basis for commenting on or
evaluating the credibility of
parties and witnesses. In that
event, the reason for insisting
on trial de novo will not be
applicable.”
And as he
further urged:
“On the other
hand, arguments for trial de
novo may be countered on the
following grounds: (i) the
protracted trials and delay in
the delivery of judgments; (ii)
they afford parties undue
advantage to reconstruct their
case and thus waste more time;
(iii) they encourage parties to
seek to embellish or improve
their case if they believe that
their performance or the
performance of their witnesses
did not go the way they wanted;
(iv) they can sometimes lead to
denial of justice where the
witness or party is dead or
otherwise unavailable and there
is no other means of haring the
truth except to rely on what has
already been reproduced by the
court under cross-examination in
the previous proceedings; (v)
there will be denial of justice
where vital exhibit is lost or
otherwise unavailable but
details of it are on the record
and could have been used to
write the judgment if the
previous proceedings had been
adopted; and (vi) in fact in the
event of the last two reasons,
trials may have to be
discontinued or cases abandoned
or justice denied when, indeed,
adoption of the record would
have saved the continuation of
the trial and the entire case.”
The argument
against de novo hearing is so
cogent and compelling that sound
case management policy reasoning
alone constitute a sufficient
basis for charting a new legal
path in our jurisprudence. We
would, therefore state the law
as follows. In civil
proceedings, the ultimate
question of whether or not
evidence already adduced before
a previous judge be adopted
should not rest on the parties’
consent. It should exclusively
be at the discretion of the new
judge who takes over the partly
heard case. Since this involves
the exercise of a discretionary
jurisdiction, we will identify
some of the factors that must be
taken into account to arrive at
this decision. The judge’s broad
and primary concern must be to
ensure that the adoption of the
proceedings would not result in
any miscarriage of justice.
Specific factors that would
influence the decision would
include the length of time that
the case has been on the court’s
calendar, the stage at which a
trial has reached, the number of
witnesses already called, the
disputed issues, the nature of
the evidence- mostly narrative
or documentary, weighty
objections by either party, if
any, to its reliability, the
availability of the witnesses
who has already testified, the
quality and reliability of the
record or transcript.
In this
appeal, we have before us a
reliable transcript of the
proceedings, signed by the judge
who received the evidence. We
have not the least evidence of
the slightest objection from any
of the parties’ relative its
reliability. To the contrary,
the Respondent’s lament at one
time had been that the evidence
was not adopted in accordance
with the law. Again, the
availability and or memory of
the only parties and witnesses
who may happen to be alive and
who had earlier testified has
not been guaranteed, in respect
of this forty year old case. On
these bases, we will adopt the
proceedings and, at this
re-hearing, use the evidence to
resolve the disputed facts which
are central to this case.
GROUNDS OF
APPEAL
Having
settled this important question,
our next duty is to examine the
Appellants’ in the light of the
impugned judgment. The
Appellants appealed the decision
on the following grounds:
1“That the
judgment is against the weight
of evidence adduced.
2
That
the learned Justices of Appeal
either ignored or failed to
consider clear evidence on
record especially the contents
of Exhibit “A” which clearly
stated that Kwabena Amankwaa’s
lease which commencing from 1st
July, 1921 expired on 30th
June, 1942 and thereafter Osei
Hwidie (sic) was given a lease
in the form of a yearly tenancy
by the Asantehene dated 26th
June, 1946 and commencing from 1st
February, 1946 until same was
terminated on 2nd
September, 1953. Thereafter Osei
Hwidie (sic) was given a lease
dated 22nd January,
1954 commencing 1st
October, 1953 and expiring 31st
March, 2052.
3
The
learned Justices of Appeal
misdirected themselves when they
held that Osei Hwidie (sic)
invoked the renewal clause in
Kwabena Amankwaa’s 1921 lease to
renew the expired lease in his
name instead of applying for his
own lease thus stamping his
resultant lease with family
character when there is clear
and ample evidence on record
that upon the expiring of
Kwabena Amankwaa’s in 1942, Osei
Hwedie was given a yearly lease
by the Asantehene in 1946, which
run from year to year until same
was terminated on 2nd
September, 1953 and a fresh long
lease was granted him on 22nd
January, 1954 for 98 years, 4
months commencing 1st
October, 1953 and expiring 31st
March, 2052.
4
The
learned justices of Appeal erred
in law when they refused to hold
that Kwabena Amankwaa (sic) is
choosing to govern his
transaction by English law was
bound by the dictates and terms
of the English law of leases.”
What
triggered these grounds of
appeal and the long arguments in
support thereof? After reviewing
the evidence on the record,
their Lordships in the appellate
court ruled, inter alia:
“It is clear
from letter number 645/1794 that
there was an option to renew
clause in the Lease of Kwabena
Amankwah (sic) which expired on
30th June 1942. The
Lands Department then gave him
notice for the renewal of the
lease. This is confirmed by the
fact that Osei Hwirie in his
Affidavit of 31st
December, 1942 “prayed that the
lease be renewed in my name
instead of Kwabena Amankwah
(sic) deceased.” [Emphasis
ours].
Subsequently
Osei Hwirie’s name was entered
in the record, the lease having
been renewed for a further
ninety-nine years. We are unable
to go along with the submission
of Counsel for the Defendant in
the instant case in view of the
above documentary evidence. This
is because it is not in dispute
that Osei Hwirie succeeded
Kwabena Amankwah as the
customary successor and it is
clear that Osei Hwirie did not
take a fresh lease. He rather
exercised the option to renew
inherent in the lessee Kwabena
Amankwa in the original lease
and had the lease renewed in his
name. There is no evidence of a
yearly tenancy as argued by
Counsel for the Defendant
between the Asantehene and Osei
Hwirie. The renewal in the name
of Osei Hwirie occurred as per
letter dated 8th
January 1943 barely six months
and eight days after the
expiration of the initial term
of the lease. So the question is
when could such yearly tenancies
have been entered into and for
which years? It is also not in
dispute that Kwabena Amankwah
constructed a swish building on
the plot. The fact that Osei
Hwirie after the renewal of
lease pulled down the swish
building and constructed a
sandcrete storey building does
not detract from the duty he was
expected to perform as customary
successor. Thus in Kusi & Kusi
vrs Bonsu [2010] SC GLR 60, in
the majority decision of the
Supreme Court it was held in
holding (7) that;
“The sound
and well settled principle of
customary law, intended to
protect family property from
being converted into private
property, would imply that even
if Asante had used his own
personal resources, ingenuity
and the best of his negotiating
skills in acquiring the property
he did so on behalf of the
family and not for himself. The
principle, which had been
accepted and applied in a number
of cases was that if any member
of a family used his or her own
funds to recover property lost
to the family property would
revert to its family character
it would not become the
individual’s private property.
On the principle, the disputed
property in the instant case
could not be described as a self
acquired property of Asante the
deceased head of family”.
It is these
central findings and conclusions
in this case that has led the
Appellant under grounds 1, 2,
and 3, to criticize the judgment
as being erroneous. Our
understanding of the Appellants’
long arguments built around
English authorities is that,
since Amankwaa obtained his
original lease under English
common law, English law governed
his transaction, as a result of
which Amankwaa’s interest was
effectively extinguished when
the lease expired. The further
argument is that Hwirie was
subsequently at liberty to
legally obtain the subsequent
lease in his personal name. The
argument ran thus:
“In the
present case, Kwabena Amankwaa,
the original family member who
acquired the land died in
1941and his lease expired in
1942. The interest of Kwabena
Amankwaa inherited by Osei
Hwedie expired on 30th
June, 1942and if anything at
all, the family’s interest and
character in the land terminated
with the lease.
Until 1st
February, 1946 when the
Asantehene gave Osei Hwidie
(sic) a yearly tenancy, the
property did not belong to
Kwabena Amankwaa or his family
or even to Osei Hwedie (sic).
The interest Osei Hwedie (sic)
acquired as a yearly tenant was
by a written conveyance
conferring the status of a
yearly tenant on him and the
Asantehene gave his lease in the
capacity as a lessor who had
re-entered and repossessed the
land upon the expiry of a
lease.”
Respondent
Counsel’s simple answer to the
argument is that:
“The issue
which is of paramount interest
is whether or not OSEI HWIRIE,
whose name was initially only
inserted into the records of the
Lands Department because he was
the ‘INHERITOR’ of the estate of
KWABENA AMANKWA, can now claim
that the property which he
inherited as Customary
Successor, has now become his
own BONA FIDE property because
instead of the yearly tenancy
which he took upon the
expiration of the initial lease,
he has now taken a long Lease.
To answer
this question, the position of
the Lessee at the time that he
was being granted the long Lease
is most important.
OSEI HWIRIE,
at the time of the long lease
was Customary Successor of
KWABENA AMANKWA.
As Customary
Successor, he was a fiduciary
for the Family, for the law then
was that upon the death
INTESTATE, of an AKAN MAN, his
personal property became family
property. The period of
Succession by OSEI HWIRIE,
commenced from the early 1940’s
and the then firm legal position
was that “In Customary Law, as
soon as a Successor is appointed
to succeed a deceased member of
a family, the self-acquired
property left by the deceased
person vests in the said
Customary Successor who holds
same for and on behalf of the
family.” PLEASE see the case of
DOTWAAH VRS AFRIYIE:
[1965] GLR at PAGE 257.
My Lords, if
it is admitted that OSEI HWIRIE
until his death, remained the
Customary Successor of the late
KWABENA AMANKWA, then it is
submitted that it was his duty
to take ALL legitimate steps to
guard or protect for the family
the properties he was holding in
trust for the family as a result
of his being the Customary
Successor.
It was his
duty as Customary Successor to
ENHANCE if need be, the said
properties.
And I submit
that taking a long Lease in
order to redevelop the property
into a more permanent Sandcrete
Structure is an enhancement
within the scope of his duties
as Customary Successor.”
As Defendant
counsel rightly urged and was
correctly answered by the
appellate court, the question is
whether the lease subsequently
acquired by Osei Hwirie validly
devolved on him in his personal
capacity such that he can
dispose of it in the manner he
did or did he acquire it in
trust on behalf of the family?
We find the
Appellants argument
unsustainable. The fiduciary
responsibilities which devolve
on a customary successor who
holds property in trust for and
on behalf of the family at
customary law, is not dependent
on the mode by which that
property was originally
acquired. The legal authorities
which define the duties and
responsibilities of customary
successors, as typified by such
cases as In Re Kwao v. Nortey
[1884-86] GLR 144, do not draw a
distinction between properties
acquired under the English
common law and those acquired at
customary law. At customary law,
property acquired by an
individual which upon death
devolves on the individual’s
family as family property does
not lose its family character on
the sole basis that the mode of
acquisition was not under
customary law, but common law. A
customary successor is not
entitled to handle with less
care and trust inherited family
property, which property was
originally acquired under
customary law. The rules on
accountability, transparency,
ameliorating the family
property, ensuring that it does
not suffer waste apply with
equal strictness to property
acquired by the original owner
at customary law. Customary law,
detests, frowns upon and abhors
dishonest or unjust gain, unjust
enrichment, inequity, fraud,
theft, roguery, collusion and
the like.
The findings
and conclusions drawn and
reasons assigned by their
Lordships of the court of appeal
that Hwirie entered into the
ninety- nine years on behalf of
the family and held same albeit,
in his name in trust for the
family is not only borne out by
the evidence, but so weighty
that we are bereft of any legal
basis for reversing them. This
case is clearly distinguishable
from the old case of Santeng v
Darkwa 6 W.A.CA. 52. On
Counsel’s own showing, the
decision in that case turned on
its own peculiar facts, in which
as he himself brought out, the
family property had been totally
abandoned. Not so in this case,
where as per the Appellant’s own
affidavit he used to apply for
the renewal, he was taking the
step solely on account of his
position as successor and
inheritor, albeit in his own
name. When all the paragraphs of
that affidavit are purposively
read as a whole, which in any
event is the proper approach for
the construction of documents,
we come to no other conclusion
than that he acquired the lease
for and on behalf of the family.
The paragraph (iii) of the said
affidavit reveals clearly that
the invitation for renewal of
the lease, on its expiry, was
extended to Amankwaa, the
original lessee who
unfortunately had passed.
Obviously, Appellant’s duty then
was to utilise that information
which he had obtained in the
best interest of the family, not
to advance his personal
interest. To hold otherwise is
to undermine the law on
fiduciary relationships, while
endorsing such negative acts as
fraudulent breach of trust, bad
faith and the like. We find
their Lordships thinking on this
pertinent issue so apt that we
deem it expedient to reproduce
same.
“ In our
view, a customary successor so
appointed by the family stands
in a fiduciary relationship with
the family. It is his duty not
only to take over the Estate of
the deceased but hold it in
trust not only for himself as a
beneficiary but the family
members entitled to a share of
the Estate. His duty further
entails the protection of the
family property and to enhance
it if possible for the family.
Thus as the custodian of the
family property in his hands it
is incumbent on him at all
material times to act in good
faith vis a vis the family and
the family property.”
Under no
circumstances should the
customary successor set up an
adverse interest to that of the
family.”
In the same
vein, we find the appellate
court’s findings and conclusions
on the issue of whether the
Respondent had the capacity to
sue, supportable on both the
facts and the law. As rightly
found by the court, the
Respondent’s case fell within
the exceptions created under
Kwan and Nyieni & Anor [1959]
1GLR 67 CA which principles have
been dutifully followed in a
number of decisions of this
court including the more recent
case of Ashalley Botwe Lands, In
re; Adjetey Agbosu v Kotey;[2003-2004]
SCGLR 420. The Respondent was
faced with the case where the
head of family who ought to
institute the action to preserve
the subject family properties
was himself a beneficiary under
the will of Hwirie with regard
to the
same
properties. Definitely, at law
Appellant has the legal right
and capacity to sue in
protection of those family
properties.
We are
satisfied with the final result
reached by the court of Appeal
in this matter and we fully
endorse same. In the result,
this appeal fails and the same
is hereby dismissed.
Finally, the
Respondent is not entitled by
way of cross appeal to a
variation of the costs awarded
in the court below or
additionally an order of
accounts. The costs awarded
involved the exercise of
discretionary power. It has not
been proven that this
jurisdiction was wrongly
exercised. Again, the
Respondent’s prayer for the
order of accounts which was not
included in the notice of Cross-
Appeal, and was put in only
casually at the tail end of
Counsel’s address and therefore
appeared more as a footnote than
a well deserved order on the
strength of the evidence, must
be declined. Incidentally, the
order for accounts was not one
of the reliefs endorsed on the
writ. It is therefore not
surprising in the least that the
case was not additionally fought
along this line. This explains
why no evidence was led in
support of the same.
.
(SGD) G. T. WOOD
(MRS)
CHIEF
JUSTICE
(SGD) J.
ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE
SUPREME COURT
(SGD) J. B.
AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
OBENG MANU
JNR. ESQ FOR THE DEFENDANTS/
RESPONDENTS/ APPELLANTS.
EDWARD
EGBLOGBE ANAGLATE FOR THE
PLAINTIFF /APPELLANT/
RESPONDENT.
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