Customary law  – Family – Head of, – Slave  – Slave assimilated in a family eligible for appointment as family head – Slaves Emancipation Ordinance (Cap 108) – Slave Dealing Abolition Ordinance (Cap 109).

Practice and procedure – Capacity to sue – Family land – Only customary successor or head of family duly appointed may litigate on family property.

Practice and procedure – Writ – Indorsement - Representative capacity – Plaintiff failing to endorse representative capacity in writ of summons or pleading – Plaintiff precluded from leading evidence on capacity.

Deeds and documents – Authentication – Power of attorney – Notarisation - Foreign power of attorney for use in Ghana – Power to be authenticated by notary public.

Deeds and documents – Revocation – Power of attorney – Donee of power of attorney instituting action as such after death of appointors – Whether action competent – Circumstances in which power of attorney revoked.

Practice and procedure  – Appeal – Grounds of appeal – “Judgment against the weight of the argument” – Ground inelegant and vague – Court may amend ground in order to determine real issue in controversy – Supreme Court Rules 1970 (CI 13) rule 6(5).

Chieftaincy – Chief – Enstoolment ‑ Slave – Whether slave or descendant eligible for enstoolment – Slaves Emancipation Ordinance (Cap 108) – Slave Dealing Abolition Ordinance (Cap 109).

The plaintiff instituted an action against the defendant in the High Court in respect of the disputed property for declaration of title, recovery of possession, damages for trespass and perpetual injunction. The property was the self-acquired property of Hussey, the plaintiff’s grandfather, which he leased to Van-Lare in his lifetime. The plaintiff instituted the action upon two powers of attorney, one executed in Ghana by the plaintiff’s siblings in Ghana and the other by siblings in the Republic of Togo. He claimed as successor to the disputed property because he, had, on the authority of Agbagba, the family head, retrieved it from Van-Lare’s daughter who sought to dispose of it upon the death of her father.

The defendant on the other hand claimed that he was appointed head of family in succession to Agbagba. He admitted that his father was a slave of Awagayibo, Hussey’s mother but claimed that he had been adopted into the Hussey family, had become a member fully qualified to be appointed the family head.

The trial judge held that the defendant’s father, a slave, belonged to Awagayibo, the owner’s family, and was unqualified for appointment as the head of Hussey’s family. On appeal, the Court of Appeal, by its decision reported in [1989-90] 1 GLR 359 reversed the decision of the High Court. Their Lordships held that the plaintiff failed to establish his appointment as a successor or head of the family at any recognised family meeting; the defendant had been adopted into Hussey’s family and became a full member and eligible to be appointed as the Hussey family head; the plaintiff could not claim to have been appointed as family head at the time when Agbagba, the incumbent family head, was alive; since the plaintiff sought Agbagba’s permission to retrieve the land from Van-Lare, the plaintiff remained in possession in the same right as other members of the family.

The plaintiff appealed to the Supreme Court but counsel for the defendant raised the preliminary point that the sole ground of appeal, that “the judgment was against the weight of argument”, was incompetent and ought to be struck out and the entire appeal dismissed.

Held: (1) the judgment of the Court of Appeal would be upheld. It could not be said on the evidence that because defendant’s father was a slave, he was not a member of the Hussey’s patrilineal family. In a matter like this, the facts must be allowed to speak for themselves. The fact that the Hussey family appointed the defendant as family head was more than enough proof that the plaintiff’s father was regarded as a child of Awagayibo and her husband and therefore belonged to Hussey’s patrilineal family. A descendant of a slave was eligible to succeed to family headship.

(2) By the legal effect of the Slaves Emancipation Ordinance (Cap 108) and the Slave Dealing Abolition Ordinance (Cap 109), no cause of action or defence could be based on the status of a person as a slave. The issue of slavery was therefore irrelevant and ought not to have been introduced in the matter.

Per Hayfron-Benjamin JSC: Hereditary chieftaincy is in a class by itself. The candidate must satisfy the qualification of lineage and ancestry - essential qualifications, which the descendants of slaves do not possess with respect to royalty. It is perhaps the one disability, which disqualifies the descendants of slaves in our communities. There may be wisdom in this persisting disability but I make no comment thereon.

(3) per Bamford-Addo JSC: Only a successor or head of family could sue and be sued in respect of family property. The position of customary successor or head of family was by appointment at a family meeting, not as of right. The appointee became the head of family or successor and administered the ancestral properties on behalf of the family. Agbagba, on whose authority the plaintiff retrieved the property, was the proper person to administer it on behalf of the whole family. The plaintiff failed to prove his capacity as successor or head of family. The powers of attorney held by the plaintiff could not make him the successor to the ancestral land, nor the fact that he was instrumental in retrieving it. Welbeck v Captan Ltd and Hammond (1957) 2 WALR 47, Hervie v Tamakloe (1958) 3 WALR 342, Makata v Ahorli (1956) 1 WALR 169, Asseh v Anto [1961] GLR 103, Nelson v Nelson (1932) 1 WACA 215, Quartey v Quartey [1963] 1 GLR 58 referrred to.

(4) per Hayfron-Benjamin JSC: The appellant had omitted to disclose his representative capacity in the endorsement of his claim and pleading and thus failed to comply with the rules. Ordinarily he could not be permitted to lead evidence of his representative capacity. Since he did not seek leave to amend even on appeal, he would be deemed to have sued only as a successor to Hussey. Ghana Muslims Representative Council v Salifu [1975] 2 GLR 246, CA referred to.

(5) per Hayfron-Benjamin JSC: A power of attorney was a formal document by which one person, usually called the principal or donor, divest to another, usually called the attorney or donee, authority to represent him or act in his stead on certain purposes spelt out in the document. If such a power was for use abroad it ought to be authenticated by a notary public. A power of attorney might be terminated as provided therein or upon the completion of its object or by death. The power of attorney made by the plaintiff’s siblings in the Republic of Togo required notarial authentication for its efficacy for use in Ghana. Besides, at the institution of the action by the plaintiff in the court below, his donors had died and the powers had lost their force and effect; no action could have been commenced thereon neither could the appellant claim to be a successor by virtue of those powers of attorney.

(6) per Hayfron-Benjamin JSC: The appellant’s sole ground of appeal, that “the judgment was not supported by the weight of the argument” was inelegantly composed. The proper form of the ground was that “the judgment is against the weight of the evidence.” A search through the law reports would reveal that over the years, judges and counsel have stated this general ground in various forms but invariably it was “against the weight of the evidence.” Thus the ground that judgment was “against the weight of the argument” was vague. Counsel’s preliminary objection would however not be upheld because Supreme Court Rules 1970 (CI 13) rule 6(5) merely provided that a ground of appeal that offended against the rule might be struck out by the court on its own motion or on an application by the respondent. Although the appellant obtained the leave of the Supreme Court to amend the ground, he sought to do so in his statement of case and fell foul of rule 13(10) of CI 13. The court had jurisdiction to amend the ground and to make any order necessary for determining the real issues in controversy before it; not to do so would be visiting the sins of counsel on his client.

Cases referred to:

Youhana v Abboud [1973] 1 GLR 258.

Asseh v Anto  [1961] GLR 103.

Chapman v Ocloo  (1957) 2 WALR 84.

Hervie v Tamakloe (1958) 3 WALR 342.

Ghana Muslim Representative Council v Salifu [1975] 2 GLR 246

Kanjarga (Deceased) In re, Kanjarga v Denteh (1958) 3 WALR 251.

Makata v Ahorli (1956) 1 WALR 169.

Nelson v Nelson (1932) 1 WACA 215.

Quartey v Quartey [1963] 1 GLR 58, SC.

Welbeck v Captan Ltd and Hammond  (1957) 2 WALR 47.

APPEAL against the judgment of the Court of Appeal, to the Supreme Court.

F K Korley for the appellant.

S Kwami Tetteh for the respondent.

AMUA-SEKYI JSC. This is an appeal against the judgment of the Court of Appeal, reversing a decision of the High Court in favour of the plaintiff who claimed to be the successor of one Agbagba as head of the Hussey family of Aflao. The basis of the claim was that the plaintiff was the holder of a power of attorney made by Agbagba in his life-time appointing the plaintiff head of family and of a second power of attorney by some members of the family authorising him to look after the family properties. The defendant resisted the claim by evidence that at a family meeting at which the plaintiff was present, the defendant has been appointed head of family in succession to Agbagba. The trial judge found for the plaintiff on the ground that the father of the defendant, and, therefore, the defendant himself, belonged to the family of Awagayibo, mother of Hussey, who had purchased him.

I do not see how in the face of evidence from the plaintiff, his witness and the witness for the defendant that the father of the defendant was the elder brother of Hussey, it can be said that because he was purchased he was not a member of the Hussey patrilineal family. In a matter like this, the facts must be allowed to speak for themselves. The family met to choose a successor from among them. The fact that they chose the defendant is more than enough proof, that his father was regarded as a child of Awagayibo and her husband Dogbenu and, therefore, belonging to the same patrilineal family as themselves. The issue of slavery was irrelevant and ought not to have been introduced. I would dismiss the appeal.

WUAKU JSC. I think this appeal should be dismissed. The appeal is simply a question of fact, and where no question arises as to truthfulness but as to the proper inferences or deductions to be drawn from truthful evidence then the appellate court is in the same position as the trial court to draw its own inferences and come to its own conclusions. The trial judge undoubtedly was wrong in the conclusion reached by him. The Court of Appeal was therefore entitled to draw its own conclusion and was right in reversing the judgment of the High Court. I would also affirm the judgment of the Court of Appeal and dismiss the appeal with costs.

WIREDU JSC. I am also of the view that there is no merit in this appeal and I agree that it should be dismissed.

BAMFORD-ADDO JSC. The plaintiff-appellant sued the defendant-respondent in 1987 at the High Court, Ho for

(a) declaration of tile of land,

(b) recovery of possession,

(c) ¢1,000 damages for trespass and

(d) an order of perpetual injunction in respect of the land in dispute situated at Avoeme-Futa, Aflao.

The land in dispute forms part of the properties of Hussey (deceased), which he acquired in his life time. Before Hussey’s death he distributed parts of his land to his sons including plaintiff’s father Adanbu and others, except the land in dispute which he leased to one Van-Lare. Plaintiff inherited his father’s land on his death, which did not include the disputed land, and on Van-Lares’ death his land passed to his daughter Wilhemina Van-Lare. According to the plaintiff when in 1955 he heard that Wilhemina wanted to sell the said land he asked permission from Agbagba, who was then the head of family, to retrieve the land. As this land had not been previously distributed by Hussey (deceased) it became ancestral property upon retrieval. Plaintiff claimed that he succeeded to this land in 1955 even though at that time the head of family was Agbagba. Apart from a power of attorney exhibit A dated 14 May 1971 which he claimed was given to him by two of his relatives who lived in Lome, to the effect that he should “take charge and look after all our late father’s landed properties and some other immovable properties” he did not prove that he had been duly appointed head of Hussey family by a council of family members.

The defendant contested the plaintiff’s claim and himself claimed to be the duly appointed head of Hussey Family to succeed Agbagba on the latter’s death in 1961 and led evidence in support of this contention. The plaintiff then argued that the defendant being a descendant of a slave brought into Hussey family, could not succeed to family property. The defendant admitted that he was a descendant of his slave father Edah, but claimed that he had been integrated into the Hussey family, had become a member of that family and was qualified to be appointed the head of family to succeed Agbagba who died in 1961. See In re Kanjarga (Deceased) Kanjarga v Denteh (1958) 3 WALR 251 which is authority that a descendant of a slave can succeed to family headship.

The High Court found for the plaintiff and defendant appealed to the Court of Appeal which court reversed the High Court decision. The plaintiff-appellant now appeals to this court on the ground that the judgment was not supported by the evidence.

In the statement of appellant’s case he raised a number of issues namely:

(a) That he was successor to Hussey’s properties, being head of Hussey family.

(b) That he was appointed to administer Hussey’s properties in 1955 by a power of attorney (exhibit A) by two of his relatives to administer their properties for them in Ghana even though this was dated 1971.

The question to be considered is whether the plaintiff succeeded to Hussey’s property, the subject matter of dispute. The disputed land was leased to Van-Lare, and did not form part of Hussey land distributed to his children. When it was retrieved in 1955 by his permission, Agbagba was the proper person to administer the land on behalf of the whole family. The appellant relies on the power of attorney, exhibit A, dated 1971, to support his claim but that cannot make the appellant a successor to the ancestral land, nor the fact that he was instrumental in recovering the land. To support his claim as the head of family to succeed Agbagba, the appellant should have led evidence to show that he was appointed by the whole family as head of Hussey family; then only can he succeed to family property. In fact he admitted that in 1955 Agbagba was the proper head of family.

A customary successor or head of family is one appointed by a council of members of the whole family at a family meeting. The law is that family headship and succession, is by appointment not as of right, and that the council which appoints includes maternal and paternal members of families of the deceased. Any appointment made at such meeting would be valid and the appointee becomes the head of family, succeeds ancestral property and administer same on behalf of the whole family.

In the case of Welbeck v Captan Ltd and Hammond (1957) 2 WALR 47 the plaintiff claimed to have been appointed the caretaker and administrator of property of his family and sought to recover the rents for certain family properties that were leased to the 1st defendant. The 2nd defendant claimed to be appointed head of family and therefore entitled to administer the property. It was held on the facts that the family members who at the final meeting appointed the 2nd defendant as head of family were representative of both branches of the family and the appointment was valid and that where a person sought to challenge a decision by the family, the burden of proof lay on him to establish that the proper procedure was not followed.

In this case appellant merely denied that the defendant had been properly appointed head of family but did not adduce any sufficient evidence to support this assertion and failed to discharge the burden of proof which lay on him.

Also, the method of appointment as a head of family and persons eligible for appointment is stated in the case of Hervie v Tamakloe (1958) 3 WALR 342 where it was held that:

“the appointment of a person as head of family is neither automatic nor does it devolve in any person as a matter of right¼. It is made by elders of the family either formally and expressly or by implication.”

See also Makata v Ahorli (1956) 1 WALR 169 and Asseh v Anto [1961] GLR 103 on this same point.

In my opinion the appellant failed to prove that he was the head of Hussey family and a successor to the disputed ancestral property, consequently he had no capacity to sue the respondent in this case. The principle is that only a successor or head of family can sue and be sued in respect of family property.

In Nelson v Nelson (1932) 1 WACA 215 some children of the deceased brought an action for an account against a brother of theirs who had been appointed by the deceased on his death-bed to look after the interests of his estate. Held, “an action for an account lay against him as he was not the head of a family, as that term is understood in native customary law, but a caretaker for his brothers and sister.” Applying the principle in this case, the plaintiff at best, can only be a caretaker of his relatives’ share of properties given them by Hussey (deceased) by virtue of exhibit A and not as head of the whole family as understood in customary law. See also Quartey v Quartey [1963] 1 GLR 58 which says that except in very limited circumstances it is only the head of family who may sue and be sued in respect of family property.

Since the disputed land did not form part of Hussey’s land distributed to the appellant’s father, which he inherited, he is not the only beneficial owner; his interest should be as any member of the Hussey family. He is also not the head of family and so does not succeed to the ancestral land in dispute, and has therefore no capacity to sue the defendant for the reliefs sought. For these reasons the appeal must be dismissed.

HAYFRON-BENJAMIN JSC. This appeal is of a very limited compass. The evidence on both sides was short and it was agreed that the land in dispute was the area or piece of land given to Van-Lare by the ancestor of both parties. I have had the advantage of reading the lucid analysis of the evidence in the opinion contributed by my learned and respected sister Bamford-Addo JSC and it is therefore not necessary for me to repeat the same. It will, however, suffice to observe that the action culminating in the present appeal was commenced on 15 February 1978. This date is important for evaluating the efficacy or otherwise of the two powers of attorney by which the appellant ultimately sought to rest his entitlement to bring the action.

The appellant before us was the plaintiff in the High Court and the respondent was the defendant. In this judgment they will be referred to as appellant and respondent respectively. By his summons for directions filed on 22 March 1978 the appellant raised a number of issues for trial among which was Issue 3 which was “whether or not the plaintiff is the rightful successor to the land founded by Hussey.” It does not appear from the record that this summons for directions was ever taken. However, the record shows that the learned High Court judge began recording the evidence in the case on 16 May 1978. It may therefore be surely assumed that the issues were agreed upon on 17 April 1973, the motion dated on the summons for directions. This procedural defect is not now of any importance since by consenting to lead evidence the parties had waived any procedural objections that could have been taken.

The importance of this Issue 3 however, was that it raised a preliminary hurdle as to the capacity of the appellant which he had to surmount before the merits of his case could be considered. By raising that issue the appellant was clearly asserting that he was suing in a representative capacity, namely as successor to Hussey. The appellant therefore had to fulfill certain pre-requisites if he was to gain the right to be heard on the merits of his case.

First the appellant endorsed his writ of summons with a claim simpliciter as if in his own right without disclosing any representative capacity. Next there was no definite statement as to his representative capacity in his pleading. In Ghana Muslim Representative Council v Salifu [1975] 2 GLR 246 at 248 it was held, inter alia, that:

“In a representative action it was necessary, both in the writ and in all subsequent pleadings, to state clearly that the parties were suing or were being sued in their representative capacity, on behalf of the members of a defined class. The representative capacity should also be stated in the title of both the writ and statement  of claim  and  not  merely  in  the  indorsement  of  the

writ on the body of the pleading.

 

 

I think the word “on” appearing in the passage may be attributable to the printers devil and it should read “or.” Thus the appellant failed to comply with the rules and ordinarily he could not be permitted to lead evidence of his representative capacity. However, the same holding continues that “where it appeared in the trial in a representative action that the plaintiff had failed to state the representative capacity of the parties, as in the instant case, the court would give leave even at this late stage to amend either the writ or subsequent pleading by adding a statement that the plaintiff was suing on behalf of himself and all others of the defined class and the capacity in which the plaintiffs sued and the defendants were sued.”

It is obvious that the learned High Court judge failed to appreciate these procedural irregularities and proceeded on the premise that “the main issue for determination is whether the plaintiff or the defendant should succeed Hussey.” In my view if the appellant could on the evidence maintain his claim then it would be in the capacity as successor to Hussey. In fact the learned High Court judge found that the appellant had established “his claim to succession than the defendant.” Whatever the merits of this finding it is clear that the learned judge considered the appellant to be the successor to Hussey. I will therefore, relying on the authority of Ghana Muslim Representative Council v Salifu supra and even though the appellant has up to this stage not sought any leave therefor amend his representative capacity to accord with the evidence on record. The appellant will therefore be deemed to be suing in his capacity as successor to Hussey.

The appellant’s claim that he was the successor to Hussey was denied by the respondent in paragraphs 6, 7 and 8 of his statement of defence. This challenge raised the matter of capacity adverted to in Issue 3 of the summons for directions. The appellant’s capacity having thus been challenged, the burden lay on his to prove that he (appellant) possessed that capacity.

In Youhana v Abboud [1973] 1 GLR 258 Abban J applied the dictum of Ollenu J in Chapman v Ocloo (1957) 2 WALR 84 at p 85, a decision which was cited with approval by the Supreme Court in Quartey v Quartey [1963] 1 GLR 58, SC, which said “when the authority of a person to sue in a representative capacity is challenged the onus is upon him to prove that he has been duly authorised. He cannot succeed on the merits without first satisfying the court on this important preliminary point.” Abban J concluded that: “If the plaintiff is not able to prove the capacity in which she has instituted the action, [then despite the above finding] the action cannot succeed.”

I have referred to these authorities in order to demonstrate the inflexibility of the principle therein enunciated and the necessity that plaintiffs suing in a representative capacity should overcome this preliminary hurdle before the case can be heard on its merits. In the instant appeal it is evident from the judgment of the High Court that this preliminary point was not considered. As I have said the learned High Court judge considered that “the main issue for determination is whether the plaintiff or defendant should succeed Hussey.”

The judgment of the High Court was given in favour of the appellant. The respondent appealed therefrom. Their Lordships of the Court of Appeal, in a well reasoned judgment, reversed the judgment of the High Court. Their Lordships found that:

“(a) The land given to Van-Lare and which had become ancestral property was “properly the subject matter in dispute.” The identity of the land was not in dispute;

(b) The main issue for determination was not “whether the plaintiff or defendant should succeed Hussey” but rather “who has been appointed to succeed to the said ancestral property of Hussey;”

(c) There was a distinction between the Van-Lare’s property which had become ancestral property and had been succeeded to by various heads of the family and the allocated lands which were succeeded to by “members of the particular line whose head was first allocated the land;”

(d) In the instant case the plaintiff, the defendant and PW2 each succeeded to the lands allocated to their fathers;

(e) The plaintiff could not establish that he had been appointed a successor or head of the family by the family “at any recognised family meeting;”

(f) The respondent on his own admission was the son of a slave, his father had on the appellant’s evidence been “adopted into the family” and the respondent was therefore a full member of the Hussey family and could be appointed head of the Hussey family;

(g) There was no irregularity in the appointment of the respondent as the head of family;

(h) “In 1955 Agbagba was still the successor and head of the Hussey family; he died in 1961.” The appellant could therefore not claim to have been appointed as head of family at a time when Agbagba was still alive;

(i) The appellant sought permission from Agbagba and Pomeavor to retrieve the Van-Lare lands and he was therefore on the land in the same right as other members of the family;

(j) On the appellant’s own admission there had never been any litigation concerning the Van-Lare lands. The litigation which appellant claimed he had conducted were in respect of other Hussey lands;

(k) In exhibit D the land described in the writ of summons is different from the land now in dispute, that is the Van-Lare lands;

(l) The finding by the learned judge that the appellant had exercised acts over the land in dispute and therefore could be presumed the successor or head was not supported by the evidence.”

On the basis of the above-mentioned findings Their Lordships allowed the appeal.

The appellant feeling aggrieved and dissatisfied by the judgment of the Court of Appeal and in the exercise of his undoubted right so to do has appealed to this court. His sole ground of appeal is that “the judgment was not supported by the weight of the argument.” Learned counsel for the respondent immediately takes issue with the appellant on this “ground” and contends, and in my view quite rightly, that that ground is “as novel as it is incompetent.” Counsel relies on the Supreme Court Rules, 1970 (CI 13) and in particular rule 6(5). Counsel further contends that this is an objection in limine and he therefore submits that “this court ought to discountenance the entire appeal for want of compliance with the mandatory provisions of CI 13.”

Learned counsel is not altogether right that the entire appeal be discountenanced for want of compliance with the mandatory provisions of CI 13. There is in my respectful opinion nothing mandatory about rule 6(5) of CI 13 as I am persuaded that this court has jurisdiction to amend the grounds of appeal and to make any order necessary for determining the real issues in controversy before it. The rule only provides that such a ground of appeal as offends against it “may be struck out by the court on its own motion or on an application by the respondent.” In this case the ground has been inelegantly composed or it merely demonstrates the inexperience of counsel with respect to the appeal procedures. The proper form of the ground is that “the judgment is against the weight of the evidence.” A search through the law reports will reveal that over the years judges and counsel have stated this general ground in various forms but invariably it is “against the weight of the evidence.” Thus a ground that judgment is “against the weight of the argument” is vague. The appellant sought to remedy this debacle in which he found himself in his reply to the respondent’s statement of case by stating the correct ground of appeal. In this respect he erred once again. The appellant had in fact sought the leave of this court to amend his ground of appeal and the court has so granted it. As it happened, the appellant’s counsel rather sought thereafter to amend the ground in his statement of case in which also he fell foul of rule 13(10) of CI 13. In spite of this litany of errors, I will amend that general ground of appeal to accord with the form contained in the appellant’s reply to the respondent’s statement of case. Not to do so will be visiting the sins of counsel on his client. The preliminary objection therefore fails.

The appellant’s counsel in his statement of case stated that “the land was the self-acquired property of appellant‘s great-grandfather, Hussey.” This fact is not in dispute. The plaintiff was, according to him ”appointed to administer the properties of Hussey and he said he had been successor since 1955. He said he was appointed by Agbagba, Afenyeku, and Delashie the children of Hussey. Exhibits A and C were tendered to establish this fact.” It seems to me that the pith of the appellant’s case is contained in the above-quoted passage from his statement of case. The land in dispute is without doubt ancestral property. The appellant claims to have been successor since 1955 and that his succession is principally dependent on exhibits A and C which appellant contends “were tendered to establish this fact.”

In his principal ground of objection the respondent in references to the want of capacity in the appellant alluded to the positions which the appellant has adopted in proof of his capacity as successor to maintain the action. For the sake of brevity I quote from the respondent’s statement of case leaving out the references to the specific pages of the record. Thus the statement says “the appellant’s claim to capacity oscillated from actual appointment as successor... to a capacity as successor or trustee... to authority given him by the children of Hussey ... then to appointment by power of attorney by Hussey’s children which made the plaintiff ‘trustee’.”

It is clear that Their Lordships in the Court of Appeal dealt with these postures assumed by the appellant in proof of his capacity and found that the appellant was not and had not been appointed customary successor to Hussey. I am in complete agreement with the findings of the Court of Appeal.

However, from the passage in the appellant’s statement of case referred to in this opinion, the appellant thought he derived his authority from the two powers of attorney, which he tendered. In the Court of Appeal Their Lordships said “they [that is appellant and his witnesses] depended on an alleged appointment by Agbagba in a power of attorney (exhibit A) and a further power of attorney by Afanyehu Hussey and Delashie Hussey, daughters of Hussey.” The judgment of the Court of Appeal did not consider the efficacy of the two powers of attorney. As I have said, the date of the commencement of this action, 15 February 1978, is important if the efficacy of the powers of attorney under which the appellant sought to maintain the action could be properly appraised.

A power of attorney is a formal document by which one person, usually called the principal or donor, divest to another, usually called the attorney or donee, with authority to represent him or act in his stead or for certain purposes spelt out in the document. If such a power is to be used abroad then it must be authenticated by a notary public. Since a power of attorney contains a personal charge by the donor to the donee concerning the management of the donor’s affairs, it may be terminated either by the method provided in the document or upon the completion of the purpose for which the power was given or by death.

In the instant appeal there are two powers of attorney. Exhibit A was executed on 14 November 1971, by Afanyehu Hussey and Delashie Hussey in favour or Mr Alfred Kudjo Adanbu Hussey (the present appellant). This power was given to the appellant about seven years before the present action was commenced.

The other power of attorney, exhibit C, dated 1 December 1954 was executed by Laurence Hussey and three brothers in favour of Alfred Hussey, (he appellant). Exhibit A was executed in the Republic of Togo and required notarial authentication for its efficacy and use in this country. But this and other defects in these two powers do not account so much when they are considered in the light of the evidence of the appellant himself. Said the appellant, then the plaintiff in his evidence-in-chief;

“I was appointed by my uncle called Agbagba, my aunt Afanyehu and Delashie to succeed Hussey. These are the three principal members of the Hussey family. They are the direct children of Hussey. They are all dead.”

According to the appellant Agbagba died in 1961. The appellant’s witness, his cousin, Alayi Hussey was emphatic when after mentioning the names of the four sons of Hussey, he stated that “none of these names I have mentioned are alive.” The only conclusion that can be drawn from the evidence of the appellant and his witness is that at the time of instituting the action in 1978, all the appellant’s aunts and uncles were dead. If they therefore gave the appellant powers of attorney, the powers had lost their force and effect and no action could be commenced on the basis of these documents. The appellant could not be a successor by virtue of those powers of attorney. It is in my view preposterous for learned counsel to contend that in accordance with our custom, whether matrilineal or patrilineal, a person could be appointed successor upon the authority of a power of attorney.

The fact that the power of attorney, exhibit C, made the appellant caretaker of his uncles’ portions of the Hussey estate has persuaded my learned and respected sister Bamford-Addo JSC to consider the appellant’s position as a caretaker. Of course, it is trite learning that at customary law a caretaker’s interest in land is co-extensive with that of his over-lord and the caretaker may therefore represent the overlord in his own right. Relying therefore on Nelson v Nelson (1932) 1 WACA 215 my learned and respected sister considers that the appellant could be a caretaker of the share of properties “given to the appellant’s aunts and uncles.” I agree with her. Nelson v Nelson makes a clear distinction between a caretaker and a head of family or successor. The land forming part of the lands given to Hussey’s children, appellant’s caretakership, even if this was so, could not extend to cover the ancestral land recovered from Van-Lare.

As in this court, so also before the Court of Appeal, the only ground urged on behalf of the parties is that the judgment is against the weight of evidence. This general ground raises issues of mixed law and fact. The appellate court is thereby enabled to deal with all matters of law and fact arising and appearing on the record. One such contention of the appellant was that the respondent having admitted that he was of slave origin he was therefore not entitled to succeed to the ancestral properties of the Hussey family. The appellant thought that custom did not allow former or ex-slaves to succeed to any property, let alone ancestral property.

I am satisfied that the Court of Appeal fully dealt with this contention of the appellant and demonstrated fully that since 5 November 1874 by the Slaves Emancipation Ordinance (Cap 108) and the Slave Dealing Abolition Ordinance (Cap 109), no cause of action or defence can be based on the status of a person as a slave.

In his statement of case the appellant made a snide reference to the respondent as having “admitted being the descendant of a slave”, apparently to re-enforce his argument that the respondent could not have been appointed successor to Hussey with respect to the ancestral lands. He was wrong and Their Lordships in the Court of Appeal found that the respondent had been appointed successor as such. I agree with this finding. I also agree with the reference to the observations of that eminent Nigerian jurist of international fame, Dr T O Elias from his learned treatise entitled “The Nature of African Customary Law” (1st edition) made by Their Lordships of the Court of Appeal in their judgment now appealed from. I agree with Dr Elias that slavery has been abolished “by means of several Abolition of Slavery Ordinances and Proclamations” and that “it was not unusual for slaves or their descendants to become chiefs in communities with a non-hereditary chieftaincy system.” Hereditary chieftaincy is in a class by itself. The candidate must satisfy the qualification of lineage and ancestry - essential qualifications which the descendants of slaves do not possess with respect to royalty. It is perhaps the one disability which remains against the descendants of slaves in our communities. There may be wisdom in this persisting disability but I make no comment thereon.

In the result the appeal fails and it is accordingly dismissed.

Appeal dismissed.

S Kwami Tetteh, Legal Practitioner