|
Property - Recovery of
possession - Injunction -
Whether the
Asanawoma-Okrah-Ehuren Kona
family existed and owned
property in Mankessim - Whether
admission of documents without
objection did relieved judge of
his duty to evaluate the entire
evidence on record -
HEADNOTES
The reliefs the respondent
sought in his claim were eight
in all. The first two reliefs
were for a declaration that
House No. 2/ BLK 270 situate at
Bekyer Asoe Baamu Anafo,
Mankessim was family property
and an order directed at the 1st defendant
(deceased) to render accounts
and pay to respondent all rents
collected from tenants occupying
that house. The third relief was
for an order compelling all the
defendants to surrender to
plaintiff as head of the family,
the Post Office Savings book of
the late Ebusuapanyin Kweku
Ehuren. The fourth relief was
for an order compelling the 2nd defendant
(deceased) and the appellant
herein to account to plaintiff
and pay to him as head of the
family, all rents that the two
had collected from tenants
occupying House No. 2/BLK 133
also situate at Bekyer Asoe
Baamu, Mankessim, which was
family property. The fifth
relief was for an order for the
return of the family’s linguist
stick to the plaintiff. The
sixth relief was for an order
compelling the 2nd defendant
and the appellant herein to
account for all rents accruing
from the family’s lands at Porko
and Pima. The seventh and eighth
reliefs were ancillary reliefs
for injunction and recovery of
possession of all these
properties from the deceased
defendants and the appellant
herein. The second relief was
against the 1st defendant
only and it was personal to him
whilst reliefs 4 and 6 were
directed against the 2nd defendant
and the appellant herein. On the
death of the 2nd defendant,
the claims made against him
personally under reliefs 4 and 6
died with him. They were
claims in personam and do not
survive him. Since he was sued
jointly in respect of those
reliefs with the appellant, it
was for the appellant to answer
the charges. There was therefore
no need to substitute him as the
appellant lamented in his
written statement of case. The 1st defendant,
on the other hand, reconciled
with the respondent and
surrendered the documents in
respect of the House numbered
2/BLK 270 over which he was sued
and other family property under
his care, to the respondent.
The trial High Court granted
reliefs 1, 4, 6, 7 and 8 against
the appellant. The court
declared plaintiff’s family
owners of the two houses and the
farmlands described under
reliefs 1, 4 and 5 and ordered
the appellant to account to
respondent in respect of all
rents accruing from these
properties which he had
collected.
HELD :-
We have carefully
evaluated the evidence on record
vis-à-vis the arguments advanced
by both parties in their written
submissions, and it is our
candid view that the Court of
Appeal did not err when it
affirmed the decision of the
trial High Court in favour of
the respondent. The two lower
courts properly evaluated the
evidence on record before
concluding the way they did. The
appellant could not put up any
strong case to support his
contention that he was the head
of the family which he called
Kona family of Mankessim and
which the respondent called the
Asanawoma-Okrah-Ehuren Kona
family of Mankessim and
Abura-Dunkwa. He could not call
even a single member of his
family to support his claim
unlike the respondent who called
three witnesses whom the
appellant admitted belonged to
the family. From the facts, the
respondent’s case was more
probable than that of the
appellant. Having failed to
demonstrate to the satisfaction
of this Court that the evidence
on record did not support the
concurrent judgments of the two
lower courts, the appellant’s
appeal is bound to fail. We
accordingly dismiss same.
STATUTES REFERRED TO IN JUDGMENT
Evidence Decree, 1975
(NRCD 323) Sections 11(4) and 12
CASES REFERRED TO IN JUDGMENT
DJIN v MUSA BAAKO
[2007-2008] SCGL 686
KOGLEX LTD (No.2) v FIELD
[2000] SCGLR 175 @ 177,
ASUON v FAYA [1963] 2 GLR
77
AWULAE ATTIBRUKUSU III v
OPPONG KOFI [2011] 1 SCGLR 176 @
202-203,
ADWUBENG v DOMFEH
[1996-97] SCGLR 660 at p. 662}.
BOOK REFERRED TO IN JUDGMENT
The Modern Law of
Succession’ and h in their books
Kludze, A. K. P.
Customary Laws, SarbaFanti
DELIVERING THE LEADING JUDGMENT
APPAU, JSC:-
COUNSEL.
CHARLES AGBENU FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
KWEKU PAINTSIL FOR THE 3RD
DEFENDANT/RESPONDENT/APPELLANT
APPAU, JSC:-
This appeal commenced as a
representative action in the
then District Grade One Court,
Saltpond on the 9th
of November 1988. About four (4)
years later, precisely on the 23rd
of September 1992, it was
transferred to the High Court on
the orders of the District
Magistrate, the reason being
that the value of the properties
the subject-matter in dispute,
far exceeded the jurisdiction of
the District Court. The parties
filed pleadings in the District
Court, which practice was not a
strict requirement under the
District Court rules. Upon the
transfer of the action to the
High Court, the parties filed
new pleadings through
amendments, pursuant to orders
of the trial High Court. The
original plaintiff in the
action, Ebusuapanyin James Boye
Ferguson who in the original
action in the District Court
said he had sued as Acting Head
of the Asanawoma Okrah Kona
Family for himself and on-behalf
of the family, filed his Amended
Writ of Summons and Statement of
Claim in the High Court on 13th
May 1994. In the amended writ,
he described himself this time
as the Head of family not Acting
Head as was the case in the
original writ filed six (6)
years earlier. He again added
the name Ehuren to the
description of the family on
whose behalf he had sued.
Unfortunately, some few weeks
after the filing of his amended
writ and statement of claim,
plaintiff died. His younger
brother Joseph Ebenezer
Ferguson, who said he succeeded
him as Ebusuapanyin, applied
successfully to be substituted
in his place as plaintiff. He is
presently, the respondent in
this appeal and hereinafter
shall be referred to as such.
The defendants who were
sued jointly and severally were
three in all. They filed a joint
Amended Statement of Defence on
20th February 1995
through their lawyer Ato
Mills-Graves. They were; I. K.
Imbeah (1st
defendant), V. A. Armah (2nd
defendant) and Yaw Mensah (3rd
defendant). The 2nd
defendant died before hearing
commenced whilst the 1st
defendant, who withdrew from the
action after the testimony of
the respondent in the trial High
Court, also died a couple of
months thereafter. The only
defendant left and who fought
the case from the trial stage to
this stage was the 3rd
defendant Yaw Mensah. He is the
appellant herein and shall
hereinafter be referred to as
such. The deceased 1st
and 2nd defendants
shall maintain their titles
anytime there is the need to
refer to them in this judgment
since they were not substituted
and therefore not part of this
appeal.
Brief facts
The reliefs the respondent
sought in his claim were eight
in all. The first two reliefs
were for a declaration that
House No. 2/ BLK 270 situate at
Bekyer Asoe Baamu Anafo,
Mankessim was family property
and an order directed at the 1st
defendant (deceased) to render
accounts and pay to respondent
all rents collected from tenants
occupying that house. The third
relief was for an order
compelling all the defendants to
surrender to plaintiff as head
of the family, the Post Office
Savings book of the late
Ebusuapanyin Kweku Ehuren. The
fourth relief was for an order
compelling the 2nd
defendant (deceased) and the
appellant herein to account to
plaintiff and pay to him as head
of the family, all rents that
the two had collected from
tenants occupying House No.
2/BLK 133 also situate at Bekyer
Asoe Baamu, Mankessim, which was
family property. The fifth
relief was for an order for the
return of the family’s linguist
stick to the plaintiff. The
sixth relief was for an order
compelling the 2nd
defendant and the appellant
herein to account for all rents
accruing from the family’s lands
at Porko and Pima. The seventh
and eighth reliefs were
ancillary reliefs for injunction
and recovery of possession of
all these properties from the
deceased defendants and the
appellant herein.
The second relief was
against the 1st
defendant only and it was
personal to him whilst reliefs 4
and 6 were directed against the
2nd defendant and the
appellant herein. On the death
of the 2nd defendant,
the claims made against him
personally under reliefs 4 and 6
died with him. They were claims
in personam and do not survive
him. Since he was sued jointly
in respect of those reliefs with
the appellant, it was for the
appellant to answer the charges.
There was therefore no need to
substitute him as the appellant
lamented in his written
statement of case. The 1st
defendant, on the other hand,
reconciled with the respondent
and surrendered the documents in
respect of the House numbered
2/BLK 270 over which he was sued
and other family property under
his care, to the respondent.
From the appellant’s own
testimony, the 1st
defendant persuaded him in vain,
to reconcile with the
respondent. Having failed to
convince him to reconcile with
the respondent, the 1st
defendant decided not to have
anything to do with the trial.
He therefore withdrew from the
case before his death. {See
the testimony of appellant
during cross-examination at pp.
179 and 180 of the record of
appeal referred to infra}.
It is therefore the view of this
Court that having withdrawn from
the case before his death, the 1st
defendant ceased to be a party
in the action and there was no
need to substitute him contrary
to appellant’s contention in his
written statement of case.
The trial High Court
granted reliefs 1, 4, 6, 7 and 8
against the appellant. The court
declared plaintiff’s family
owners of the two houses and the
farmlands described under
reliefs 1, 4 and 5 and ordered
the appellant to account to
respondent in respect of all
rents accruing from these
properties which he had
collected. The court again
restrained him from interfering
in these properties and ordered
respondent to recover same from
the appellant. The trial High
Court however, refused to grant
reliefs 2, 3 and 5.
Not satisfied with this
decision, the appellant appealed
to the Court of Appeal on eight
grounds of appeal. Apart from
the eighth ground of appeal
which was in respect of the
costs awarded, which appellant
said was harsh and excessive,
the crux of the remaining seven
grounds was that the judgment of
the trial High Court was against
the weight of evidence adduced
at the trial as the trial court
failed to give due consideration
to the evidence of the
appellant. The appellant lost
the second time in the Court of
Appeal, which affirmed the
judgment of the trial High
Court. He has now come before us
on a second appeal. His grounds
of appeal, though two (2) as
stated in his notice of appeal
filed on 20/10/2015, boil down
to the same complaint. They are:
1. The Court of Appeal
did not adequately consider the
appellant’s case and 2.
The judgment was against the
weight of evidence adduced at
the trial. The first ground
is a sub-set of the second,
which is the general or omnibus
ground. If the Court of Appeal
did not adequately consider the
appellant’s case, what it
connotes is that the judgment of
the Court of Appeal was against
the weight of evidence adduced
at the trial. The two grounds
could therefore be determined
under the omnibus ground and the
appellant did just that in his
written statement of case filed
28/07/2017.
Appellant’s arguments in his
written statement of case filed
on 28/07/2017
The appellant referred the
Court to its own decision in
DJIN v MUSA BAAKO [2007-2008]
SCGL 686 on the duties
imposed on an appellant whose
appeal is founded on the omnibus
or general ground that the
judgment is against the weight
of evidence. According to the
appellant, he was required to
clearly and properly demonstrate
to the appellate court that
there were serious lapses in the
judgment to the extent that
certain pieces of evidence on
record were wrongly applied
against him and that if those
pieces of evidence had been
properly applied in his favour,
they could have changed the
verdict of the trial court in
his favour. He therefore set out
to demonstrate that the two
lower courts were wrong in their
concurrent findings for which he
was inviting us to interfere.
According to him, the two main
issues resolved by the two lower
courts were: i. whether
the name Asanawoma existed among
Fantis, and ii. Whether
the Asanawoma-Okrah-Ehuren Kona
family existed and owned
property in Mankessim. However,
in resolving these two issues,
the trial court and the Court of
Appeal wrongly relied heavily on
Exhibits ‘A’, ‘B’, ‘C’, ‘D’
and ‘E’, all of which
were attributed to the deceased
1st defendant I. K.
Imbeah, to find for the
respondent without evaluating
the entire evidence on record
before them.
He argued that both lower
courts appeared to have taken
the view that once the
documentary evidence purporting
to come from I. K. Imbeah were
tendered without objection, the
issue as to their credibility
was settled. His contention was
that the admission of those
documents without objection did
not mean that the trial judge
had been relieved of his duty to
evaluate the entire evidence on
record and to subject the
received evidence to critical
evaluation by reference to other
pieces of evidence on record. He
argued that events leading to
the execution of Exhibit ‘A’ for
instance, and the exchanges of
denials and counter denials in
respect of the authorship of
Exhibit ‘A’ when the matter
first went before the District
Magistrate Court should have put
the two lower courts on guard as
to the genuineness of Exhibit
‘A’ and the other exhibits.
Again, it was against public
policy for the trial court to
have received in evidence
Exhibit ‘A’ which was allegedly
authored by the late 1st
defendant at a time he had a
lawyer without the knowledge of
his lawyer and also at a time he
was not alive to speak to the
said document. Appellant charged
further that the respondent was
expected to lead conclusive
evidence in support of his
contention that there was in
existence, at all material
times, the
Asanawoma-Okrah-Ehuren Kona
family of Mankessim and
Abura-Dunkwa. However, apart
from Exhibits ‘A’, ‘B’, ‘C’, ‘D’
and ‘E’ and even Exhibit ‘2’,
respondent did not lead any
satisfactory evidence to
establish the existence of the
alleged Asanawoma-Okrah-Ehuren
Kona family different from the
original Kona family of
Mankessim. He gave an instance
of where all the parties agreed
that Ehuren who died in 1971,
was their Head of family and the
fact that he was described as
the head of the Kona family of
Mankessim but not head of
Asanawoma-Okrah-Ehuren Kona
family of Mankessim and
Abura-Dunkwa.
He submitted that since
the exhibits in contention; i.e.
A, B, C, D, E and F were created
after the litigation had
started, they could not
constitute evidence to establish
the existence of a family by
name Asanawoma-Okrah-Ehuren Kona
family before the commencement
of the action. He concluded by
saying that before the
commencement of the action in
1988, there existed only one
Kona family of Mankessim and
that though the respondent’s
faction which is at Abura-Dunkwa
used to be part of the family,
they severed their relationship
with the family when they failed
to secure the headship of the
family in 1979. They therefore
created the name Asanawoma
mainly to wrestle the ownership
of the disputed properties from
the appellant’s family.
Respondent’s arguments in his
statement of case filed on
17/11/2017
The respondent’s
arguments, on the other hand,
were that the appellant seemed
not to appreciate the concepts
of ‘Family’ as a unit and ‘Clan’
as an entity under customary
law. Quoting both Kludze, A. K.
P. and Sarbah in their books
‘The Modern Law of Succession’
and ‘Fanti Customary Laws’, the
respondent drew a distinction
between ‘Family’ as a unit and
‘Clan’ as an entity. According
to him, a Family is a primary
unit with its own head clothed
with legal personality and owns
property while a Clan is not a
corporate entity as such and
generally does not own property.
There could not therefore be a
family with the name ‘KONA
FAMILY’ simpliciter since ‘Kona’
is the title of a ‘Clan’ under
which falls several different
families. He contended that the
respondent’s claim that their
family was known as the
Asanawoma-Okrah-Ehuren Kona
family was more probable than
the appellant’s claim that the
name of the family was just Kona
family as the respondent’s
version was supported by the
totality of the evidence on
record. He concluded that the
two lower courts did not err in
relying on Exhibits A to F to
find for the respondent as the
said exhibits were not
challenged by the appellant
during the trial aside of the
collaborative content of the
testimony of appellant’s own
witness D.W.3. He prayed the
Court to dismiss the appeal as
the appellant could not
demonstrate that the two lower
courts were wrong in their
conclusions.
A brief account of the
testimonies of the Parties and
their witnesses in the trial
High Court
The respondent’s case in
the trial High Court was that
the family originated from one
Asanawoma of the Kona clan who
led them during their migration
from Techiman in the thirteenth
century to present day
Mankessim. When they settled at
Mankessim, they met the family
of the appellant which was also
of the Kona clan. They therefore
merged and became one family.
Later some of the family members
moved to settle at Abura-Dunkwa
thus creating a section of the
family there. The family
therefore has two branches; one
in Mankessim and the other in
Abura Dunkwa. He the respondent,
was the overall head of the two
branches of the family with
(P.W.1) Yaw Nkrumah as head of
the Mankessim branch and P.W. 3
Kobena Ankomah as the head of
the Abura-Dunkwa branch. He said
though the 2nd
defendant and the appellant
herein belonged to the family,
they broke away when the family
refused to appoint the 2nd
defendant (dec.) as the head of
family after Opanyin Anamoa’s
death. Again the appellant
belonged to a different lineage
of the family as the family
consists of different lineages
and that the properties in
dispute belonged to his lineage,
which is the Asanawoma-Okrah
-Ehuren lineage. He contended
further that the late 1st
defendant belonged to the
Asanawoma lineage that was why
he was made to take over the
caretakership of the properties
after Ebusuapanyin Ehuren’s
death. However, he joined him in
the action because he failed to
account to him in respect of
rents collected as directed by
him.
The appellant on the other
hand contended that the
respondent was only the head of
the Abura-Dunkwa branch of the
family and that he had nothing
to do with the Mankessim branch
which was headed by the late 2nd
defendant and after his death he
the appellant had become the new
head of family. He denied the
existence of any Asanawoma in
the family and said the family
was simply known as the Kona
family of Mankessim. According
to him, the ancestor of his Kona
family of Mankessim was one
Okomfo Bekyer who led them from
Techiman during the thirteenth
century migration. When they
settled at Mankessim, the
respondent’s faction, which is
also of the Kona Clan, joined
them and they became one family.
However, in 1979 when
Ebusuapanyin Ehuren died one of
the family members in Abura
Dunkwa called Tenkorang and the
original plaintiff J. B.
Ferguson contested the
Ebusuapanyin position and lost.
As a result of their failure to
secure the headship of the
family, the respondent and his
faction broke away from the main
family. The respondent therefore
had nothing to do with the
properties which belong to the
main Kona family of Mankessim of
which he was now the head.
Observations and Evaluation of
the testimonies of the parties
It is interesting to
observe that whilst both parties
admitted that they all belonged
to the same family until there
was an alleged separation in
either 1979 or 1988 as they
variously contended; each was
accusing the other of being the
breakaway faction. During the
trial, respondent called three
witnesses whom he said were all
his family members. The
appellant also described these
same witnesses as his brothers
and family members. They were:
P.W.1 Samuel Alfred Kontoh;
P.W.2 Yaw Nkrumah and P.W.3
Kobena Ankoma. Respondent
described Yaw Nkrumah as the
head of the Mankessim branch of
the family and Kobena Ankoma as
the one who succeeded Opanyin
Kwame Tenkorang as head of the
Abura-Dunkwa branch. All these
witnesses corroborated the
respondent’s testimony that
their ancestor was Asanawoma and
that the respondent was the
overall head of their family.
They all claimed that both
parties belonged to the same
family and that the differences
between them arose as a result
of the headship of the family
after the death of Ehuren and
Opanyin Anamoah.
The appellant also called
three witnesses. They were;
D.W.1 Aba Guraba, D.W.2 Kweku
Nyame ‘aka’ Kweku Seidu and
D.W.3 Nana Kwaanan III. None of
the witnesses the appellant
called during the trial; i.e.
D.W.1, 2 and 3 belonged to his
family as described. D.W.1 was a
daughter to the late
Ebusuapanyin Kweku Ehuren and
therefore not a member of his
father’s maternal family. She
told the trial court in her
evidence in-chief that the
appellant was the head of his
late father’s family but when
she was pestered with questions
during cross-examination by
respondent’s counsel, she
changed course and said she did
not know anything about the
parties’ family matters as she
was not a member of the family.
D.W.2 also said he hailed from
Anomabo and came to settle in
Mankessim as a tailor. Since his
family in Anomabo belonged to
the Kona Clan, he decided to
associate with the appellant’s
family which also belonged to
the Kona clan. He admitted that
he knew nothing about the
history of the family that owned
the disputed properties. D.W.3
on the other hand was the
Kyidomhene of Mankessim. He
admitted that all the parties in
the suit belonged to the same
family, which he called the
‘Ehuren-Kona family. According
to him, his Kyidom family also
belonged to the Kona Clan so it
is called ‘Kyidom-Kona family of
Mankessim. His contention was
that the family of the parties,
which is also of the Kona stock,
originally formed part of his
family but they broke away to
form a separate family. He
however did not tell the court
when this happened. Whilst he
initially said the name of the
parties’ family was the ‘Ehuren
Kona family and that there was
no name like Asanawoma in
Mankessim, he later recoiled and
admitted during
cross-examination that Asanawoma
was the ancestor of Ehuren. He
said he did not know the
respondent as the head of the
family but rather the head of
the family was the appellant Yaw
Mensah.
The undeniable fact is
that the appellant admitted
during the trial that P.W.1, 2
and 3 all belonged to his Kona
family of Mankessim likewise the
1st and 2nd
defendants (deceased). He
described P.W.1 and the 1st
and 2nd defendants
(deceased) as his elder
brothers. All these witnesses;
i.e. P.W. 1, 2 and 3, though
admitted this claim by the
appellant that they belonged to
the same family, denied his
contention that the late 2nd
defendant was the head of their
family and that he appellant
succeeded the said 2nd
defendant as the head of the
family. They were all in
concert that the respondent was
their head of family and that
the appellant was just an
ordinary member. They added that
what the appellant called Kona
family of Mankessim was the same
as the Asanawoma-Okrah-Ehuren
Kona family of Mankessim and
Abura Dunkwa. The appellant
could not call even a single
accredited member of his family
to support his case that he was
the head of his family. When the
two stories of the appellant and
the respondent are therefore
weighed on the legal scale, the
balance of probabilities as to
which of the two stories is more
probable, tilts in favour of the
respondent’s. That story carries
more weight than that of the
appellant because it is
supported by the testimony of
accomplished family members
acknowledged by both parties,
while the appellant’s remain
unsupported. The question is;
are there any reasonable grounds
that can support this Court’s
interference in the decision on
appeal before us, or has any of
the instances that justify our
interference in concurrent
judgments of this nature as
outlined in the decision of this
Court in KOGLEX LTD (No.2) v
FIELD [2000] SCGLR 175 @ 177,
been seriously urged on us by
the appellant?
Analysis and Findings
There is enough evidence
on record to dispel appellant’s
contention that Exhibits ‘A’,
‘B’, ‘C’, ‘D’ and ‘E’ were
introduced in evidence after the
death of the 1st
defendant so they constituted
evidence against a deceased
person. The record shows clearly
that Exhibits A – D, were
tendered in evidence during the
lifetime of the 1st
defendant (now deceased) and in
his presence. This was on the 1st
day of June 1999. The court
records for the day (1st
June 1999), which appear at page
84 of the record of appeal (RoA)
were as follows:
“Plaintiff – present;
2nd defendant –
absent (deceased);
1st and 3rd
defendants – present.
Same representation.
By Court: Time 10.45 am. Counsel
for the defendants has asked the
court to stand the case down to
11.30 am to enable him rush to
the hospital for medication. The
plaintiff’s counsel is at
liberty to go on to await the
attendance of the defence
counsel. The plaintiff also says
his counsel is at Court one.
By Court: Time is 11.24 am. Both
counsel are now in. The
plaintiff is reminded of his
former oath for further evidence
in-chief…”
It was on this day 1st
June 1999 that Exhibits ‘A’,
‘B’, ‘C’ and ‘D’ were tendered
in evidence. {See pages 85
and 86 of the RoA} - Both
the 1st defendant and
the appellant herein, who was
the 3rd defendant,
were present in court. The 1st
defendant did not challenge the
exhibits, particularly Exhibit
‘A’ which he personally
authored, neither did the
appellant. Their lawyer too did
not challenge any of the
documents throughout his
cross-examination of the
respondent. Before the documents
were tendered in evidence, the
defence lawyer Mr. Ato
Mills-Graves had earlier
threatened to withdraw his
representation for the 1st
defendant because of his
conduct. Counsel was not
specific on the conduct he was
complaining about but from the
records, it appeared it was in
respect of the authorship of
Exhibit ‘A’. {Please, refer
to page 83 of the RoA)
The appellant’s assertion
that the documents were tendered
in evidence after the death of
the 1st defendant and
for that matter he had no
opportunity to speak to them was
therefore not correct. Again,
the contention by the appellant
that the admission in evidence
of Exhibit ‘A’ was against
public policy because at the
time the author; i.e. 1st
defendant made it; he had a
lawyer but nevertheless failed
to consult his lawyer, was
untenable. The evidence on
record shows that Exhibit ‘A’,
which was an affidavit sworn to
by the late 1st
defendant I. K. Imbeah, was
sworn earlier on before a
Commissioner of Oaths on 20th
March 1989 before the appellant
and the late defendants
contracted counsel to file their
statement of defence and
counterclaim in the District
Court, Saltpond on 18th
April 1989. There is therefore
nothing on record to suggest
that at the time the 1st
defendant swore to the said
Exhibit ‘A’, he was represented
by counsel. It was only Exhibit
‘E’ which is the same as Exhibit
‘F’ that was tendered in
evidence by P.W.3 after the
death of the 1st
defendant. And even with regard
to this document, which was
authored by the late 1st
defendant, the appellant did not
challenge its authenticity. The
fact is that the appellant could
not have done so because he knew
of its existence. In his own
testimony appellant said he had
problems with the 1st
defendant over Exhibit ‘E’,
which means he knew the history
behind its authorship. This
exhibit was a letter dated 7th
April 1989 which the late 1st
defendant I. K. Imbeah,
addressed to the then Mfatsiman
District Council requesting them
to pay all rents due to the
Asanawoma-Okrah-Ehuren Kona
family of Mankessim and
Abura-Dunkwa in respect of a
family land at Mankessim into
the family’s bank account. The 1st
defendant served a copy of this
letter on the original plaintiff
J. B. Ferguson whom he described
as the Acting Head of family.
This was what transpired between
counsel for the respondent and
the appellant over Exhibit
‘E’ during cross-examination
at pages 179 and 180 of the
record of appeal (RoA):
“Q. I. K. Imbeah who you claimed
to be your brother, wrote to the
Mfantseman District Council
saying that he had settled all
differences between himself and
the elders of
Asanawoma-Okrah-Ehuren Kona
family of Mankessim and
Abura-Dunkwa.
A. My Lord, the reason why this
letter was written to the
District Council is that my
brother I. K. Imbeah called me
and wanted to persuade me to
drop this case and I refused.
Mr. Ferguson had approached him
for me to drop this case or to
send this case out of court but
I refused. Later he called me
again and informed me that he
had planned to give me money of
which I refused, so as a result,
my brother told me that if I am
not going to allow him or to
withdraw the case, he was going
to withdraw himself from the
case so I should pursue my case;
that is why he withdrew from the
case”.
As a result of the above
testimony from the appellant,
which was suggestive that the
appellant knew the 1st
defendant as the author of
Exhibit ‘E’, the respondent’s
counsel caused a copy of Exhibit
‘E’ to be tendered in
evidence again through him
without any objection as Exhibit
‘F’. In fact, the
totality of the evidence on
record suggests without doubt
that both parties belonged to
the same family notwithstanding
the different names each gave to
the family and this Court finds
this as a fact. All of them
admitted that their head of
family before this dispute was
the late Ebusuapanyin Kweku
Ehuren who died in November
1971. A funeral poster that was
printed to mark his final
funeral rights and which was
tendered in evidence and appears
at pages 12 and 13 of the record
of appeal (RoA) listed the names
of some of the parties as Chief
Mourners. The family was
described as Kona family of
Mankessim. The names started
with the 1st
defendant I. K. Imbeah
(deceased) whom all the parties
admitted was the Ebusuabaatan of
the family. Following in
numerical order were: the
original plaintiff Supi J. B.
Ferguson, the respondent herein
J. E. Ferguson, Opanin Anamoah
whom all the parties admitted
succeeded to the estate of
Ebusuapanyin Kweku Ehuren after
his death, Opanyin Kwame
Tenkorang who was described as
the Ebusuapanyin of the
Abura-Dunkwa branch of the
family, Opanyin Kweku Impraim,
etc. It must be remembered that
the appellant in his evidence,
mentioned Opanin Kwame Tenkorang
as one of those elders who came
from Abura-Dunkwa to contest the
Ebusuapanyin position when
Ebusuapanyin Kweku Ehuren died.
The appellant herein was not
listed as one of the chief
mourners in the said funeral
that was held in 1972 long
before the institution of this
action in 1988.
The undeniable fact is
that the dispute between the
parties arose after the death of
Opanyin Anamoah in 1988 when
there were competing claims as
to who to succeed him as Head of
family. The evidence on record
suggests that because of the
religious beliefs of Opanyin
Anamoah, the 1st
defendant who was the
Ebusuabaatan was appointed his
personal assistant to exercise
caretakership over all the
family properties. The original
plaintiff J. B. Ferguson was
then resident in Accra. Both
parties attested to that.
However, when Opanyin Anamoah
died, the 2nd
defendant claimed to have been
appointed his successor as the
Ebusuapanyin whilst the original
plaintiff also claimed to be the
Ebusuapanyin. The 2nd
defendant unilaterally took over
the caretakership of the family
properties and directed the
appellant herein to collect
rents accruing from the said
properties. That ignited the
institution of the present
action by the original plaintiff
who is respondent’s predecessor.
So clearly, notwithstanding the
fact that the respondent said
their ancestor who led their
migration from Techiman in the
thirteenth century was Asanawoma
whilst the appellant said he was
Okomfo Bekyer, the bridge point
is that they all belonged to the
same Ehuren-Kona family.
As the respondent rightly
contended in his written
statement of case, the word
‘Kona’ is the name of a Clan but
not that of a family as such. It
is the Fanti version of ‘Ekuona’
as known in Ashanti with the
buffalo/reindeer as its symbol.
Kludze, in his book Ewe Law of
Property, (2nd
Edition) published by SonLife
Press, was of the view that the
word ‘Clan’ was ambiguous and of
imprecise meaning. He stated at
page 168 of his book as follows:
- “Sometimes, the word is
used in Ewe to refer to a large
unit like the sub-division or
saa which comprises several
families. On the other hand, it
is generally understood in
Ghana, especially among the
Akan, to mean a totemistic and
dispersed group of persons
claiming descent from a common
mystical ancestress, such as the
‘Oyoko’ clan or ‘Bretuo’ clan”.
Sowah, J (as he then was),
defined the word ‘Clan’
in the case of ASUON v FAYA
[1963] 2 GLR 77 as follows:
- “It does appear that when
the word ‘family’ is used, it
does sometimes mean a family per
se and at other times, a clan.
It is therefore necessary in
this action to distinguish
clearly between the words clan
and family…A clan is an
exogamous division of a tribe,
all the clansmen or members of
which are held to be related to
one another and bound together
by the common tie or clanship.
This tie in Ashanti is, for all
ordinary purposes, belief in a
common descent from some
ancestress; reaching back still
further, it was belief in a
common descent from an
ancestress who was descended
from some animal. Whatever may
have been the origin of the clan
system, it is now found amongst
the Fanti tribes; within each
clan in any Fanti town or
village there can and often do
exist several families unrelated
directly by blood ties, but who
nevertheless, are members of a
clan” {Emphasis added}
Sarbah, in his Fanti
Customary Laws, 1904 at page 33,
defined ‘Family’ as
consisting of “all the
persons lineally descended
through females from a common
ancestress”. Bentsi-Enchill,
on the other hand, defined it;
“as a group of persons
lineally descended from a common
ancestor exclusively through
males (in communities called
patrilineal for this reason) or
exclusively through females
starting from the mother of such
ancestor (in communities called
matrilineal for this reason) and
within which group succession to
office and to property is based
on this relationship” – See
Bentsi-Enchill, K.; ‘Ghana Land
Law’, published by Sweet &
Maxwell, London, 1964, page 25.
Brobbey, JSC, made the
distinction between a clan and a
family clearer when in the case
of AWULAE ATTIBRUKUSU III v
OPPONG KOFI [2011] 1 SCGLR 176 @
202-203, he defined ‘family’
in the following words: - “By
‘family’ is meant members who
hail from the same family root.
‘Family’ in this context cannot
include members of the same Clan
like Oyoko or Aduana. To
illustrate this further, there
are Aduanas in various Regions
or places such as Ashanti in
Essumeja, Obo in Kwahu, Asante
Akim in Agogo. Their common bond
is that they are all described
as Aduana and use similar clan
symbol but are not related in
any other way. An Aduana from
Kwawu cannot claim to belong to
an Aduana family from Asante
Akim in any other way. An Aduana
from a different place cannot
claim land belonging to the
Aduana family in a place totally
different from his own Aduana
family”.
Based on these
definitions, it is undisputed
that the word ‘Clan’ and
‘Family’ are different in
context. The difference lies in
the fact that; with regard to
clan, aside the fact that
members trace their root from a
common ancestor, there is no
biological relationship between
them but in the case of the
‘family’, members are related by
blood. A family is therefore the
subset of a clan. There are
several Akan families that
belong to the Kona or Ekuona
clan. As D.W.2 contended in his
testimony, his family in Anomabo
belonged to the Kona clan so
when he came to settle at
Mankessim, he associated himself
with the appellant’s Kona
family. In such a situation he
did not belong to the Mankessim
Kona family by blood but by
association so he was emphatic
that he did not know the history
of the family he had associated
with. D.W.3 also, who is the
Kyidomhene of Mankessim said his
Kyidom family also belonged to
the Kona clan so the name of his
family is ‘Kyidom-Kona’ family.
He said all the parties belonged
to the same family which he
called the Ehuren-Kona family
but not Kona family simpliciter.
However during
cross-examination, he affirmed
the respondent’s position that
Ehuren’s ancestor was Asanawoma.
This confirms the 1st
defendant’s admission in
Exhibits ‘A’ and ‘E’
that the family is known as
Asanawoma-Okrah-Ehuren Kona
family as the respondent
contended and as supported by
P.W.1, 2 and 3. The addition of
Okrah and Ehuren, whom both
parties admitted were once heads
of the family, was just to lay
more emphasis to distinguish the
family from any other family
that is of the Kona stock. In
our view, when you say Kona
family, it is not explanatory
enough to identify the
particular Kona family one would
be talking about since from the
record, Mankessim alone has
several families which are of
the Kona clan. The testimony of
appellant’s own witness D.W.3
attests to this. To call the
parties’ family ‘Kona family’
simpliciter would therefore be a
misnomer as there are several
Kona or Ekuona families spread
out in several towns, districts
and even regions across the
country. Such families originate
from different common ancestors
whose names are normally used to
describe the families in
question. It is therefore not
surprising that the same family
appellants called Kona is what
the respondents call Asanawoma
after their ancestor. The
existence of the
Asanawoma-Okrah-Ehuren Kona
family all this while could not
therefore be disputed as the
evidence on record
overwhelmingly supports it.
Conclusion
The standard of proof in
civil cases, including land, is
one on the preponderance of
probabilities - {See sections 11
(4) and 12 of the Evidence Act,
1975 [NRCD 323] and the decision
of this Court in ADWUBENG v
DOMFEH [1996-97] SCGLR 660 at p.
662}. In the Adwubeng v
Domfe case (supra), this Court
held at holding (3) as follows:
“Sections 11(4) and 12 of the
Evidence Decree, 1975 (NRCD
323)… have clearly provided that
the standard of proof in all
civil actions was proof by
preponderance of probabilities –
no exceptions were made. In the
light of the provisions of the
Evidence Decree, 1975, cases
which had held that proof in
titles to land required proof
beyond reasonable doubt no
longer represented the present
state of the law…”
We have carefully
evaluated the evidence on record
vis-à-vis the arguments advanced
by both parties in their written
submissions, and it is our
candid view that the Court of
Appeal did not err when it
affirmed the decision of the
trial High Court in favour of
the respondent. The two lower
courts properly evaluated the
evidence on record before
concluding the way they did. The
appellant could not put up any
strong case to support his
contention that he was the head
of the family which he called
Kona family of Mankessim and
which the respondent called the
Asanawoma-Okrah-Ehuren Kona
family of Mankessim and
Abura-Dunkwa. He could not call
even a single member of his
family to support his claim
unlike the respondent who called
three witnesses whom the
appellant admitted belonged to
the family. From the facts, the
respondent’s case was more
probable than that of the
appellant. Having failed to
demonstrate to the satisfaction
of this Court that the evidence
on record did not support the
concurrent judgments of the two
lower courts, the appellant’s
appeal is bound to fail. We
accordingly dismiss same.
YAW APPAU
(JUSTICE OF THE SUPREME COURT)
V.J.M DOTSE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
CHARLES AGBENU FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
KWEKU PAINTSIL FOR THE 3RD
DEFENDANT/RESPONDENT/APPELLANT |
