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Customary law – Family property
– Capacity to sue
–
Family member may sue to recover
or preserve property believed to
be family property and thought
to be in danger.
Courts – Appellate – Findings of
fact by trial judge – Evidence
on record supporting findings –
Appellate court not to interfere
with findings.
The plaintiff instituted an
action in his capacity as a
member of the Aduana family
claiming a declaration of the
title of the family in the
disputed property, perpetual
injunction and also that the
sale of the property to the 2nd
defendant by the 1st
defendant, the head of
family in collusion with a
principal member, without the
consent of the family was null
and void. The defendants
resisted the claim, contending
that the property was
self-acquired by the said
principal member, since
deceased. The trial judge
accepted the contention of the
defendants and dismissed the
action. He observed that even
though two family members of the
plaintiff testified in support
of the plaintiff’s case, neither
testified positively that he was
authorised to institute the
action. Accordingly he found
that the plaintiff did not have
the requisite capacity to
institute the action. On the
plaintiff’s appeal to the Court
of Appeal,
Held:
The plaintiff’s action was
for nothing but the recovery and
preservation of what he believed
to be family property that he
thought the head and the
deceased principal member had
alienated. It was clear from the
testimony of the plaintiff and
the two witnesses that the two
persons had connived to sell the
property to the 2nd
defendant without the knowledge
of the family. In such situation
even though the plaintiff and
his said witnesses did not
specifically testify that the
family had authorised the
plaintiff to take the action,
the plaintiff’s action was
supported in law and the trial
judge erred in taking a rather
technical and limited view of
the evidence. Koran v Dokyi
(1941) 7 WACA 78, Armah v
Kaifio [1959] GLR 23,
Mahmudu v Zenuah (1934) 2
WACA 172, Kwan v Nyieni
[1959] GLR 67, CA followed.
(2) On the contention of the
appellant that the judgment was
against the weight of evidence,
it was trite learning that where
the trial judge’s findings of
fact were supported by the
evidence on the record, an
appellate court could not
disturb those findings. In the
result the contention could not
be sustained. Accordingly, the
judgment must stand and the
appeal be dismissed.
Cases referred to:
Armah v Kaifio
[1959] GLR 23.
Koran v Dokyi
(1941) 7 WACA 78.
Kwan v Nyieni
[1959] GLR 67, CA.
Mahmudu v Zenuah
(1934) 2 WACA 172.
APPEAL from the circuit court to
the Court of Appeal.
Kumi,
for Owusu, for the
appellant.
Oppong
for the 2nd
respondent.
ADJABENG JA.
On 29 July 1988, the Circuit
Court, Sunyani, dismissed the
plaintiff’s claim in this
matter. The plaintiff, being
dissatisfied with the court’s
decision, appealed to this
court. The plaintiff, who took
his action in a representative
capacity, claimed as follows:
“The plaintiff, as a member of
the Aduana family of Yamfo
claims against the defendants
jointly and severally for
himself and on behalf of the
Aduana Family of Yamfo:
(a) A declaration that House No
SNT 68 which is situated at
Sunyani, is the property of the
Aduana family of Yamfo;
(b) A declaration that Yaw Konto,
deceased and Kwabena Bonso, the
1st defendant herein, being
members of the said Aduana
family cannot sell or transfer
the said House No SNT 68,
Sunyani to the 2nd defendant
without the knowledge and
concurrence of the family and
that purported sale and transfer
made of the said property are
null and void and of no legal
effect.
(c) An order of perpetual
injunction.”
The plaintiff’s case is that the
house in dispute was built by a
deceased member of the family,
one Nana Kwasi Krah, and that on
his death, the house was
succeeded to by DW2 in this
case. The plaintiff contended
that in or about 1981 the said
DW2, Kwabena Bonso, the head of
the family, according to the
evidence, and one Yaw Konto, a
principal member, without the
consent, knowledge and
concurrence of the family sold
this house to the 2nd defendant.
He therefore took the action
against the defendants.
The defendants’ answer is that
the house in dispute was a
self-acquired property of Yaw
Konto and that Yaw Konto
(deceased) about four years
before his death validly sold
the same to the 2nd defendant.
It was also contended on behalf
of the defence that the
plaintiff, a junior member of
the family, could not establish
that he took the action for and
on behalf of the Aduana family
since none of his witnesses, two
of whom were family members,
gave evidence to that effect.
The trial judge found that the
disputed house was the
self-acquired property of Yaw
Konto (deceased) and that he
validly disposed of it during
his lifetime. The court also
held that the plaintiff had
failed to adduce evidence in
support of the representative
capacity in which he had sued.
The plaintiff-appellant’s
complaint in the appeal before
us is contained in ground (c) of
his grounds of appeal. The
ground states as follows:
“(c) There was sufficient
evidence on record that the
house in dispute was a family
property of the plaintiff and as
an undisputed member of the
family the plaintiff was right
in law in instituting the action
to save the house.”
In respect of this complaint,
the trial judge’s decision was
attacked on two grounds.
Firstly, it was argued that the
judge’s finding that the house
in dispute was the self-acquired
property of Yaw Konto, deceased
and not family property was
wrong. It was contended that the
finding was contrary to the
evidence adduced. It was also
contended that the judge was
wrong in basing this finding on
the evidence of DW2 in that the
evidence of DW2 was contradicted
by the statement of defence
filed on behalf of DW2 whose
name appeared as the 1st
defendant.
It must be stated here that DW2
(or 1st defendant) in his
evidence vehemently denied that
he had ever been served with the
plaintiff’s writ of summons and
statement of claim. He denied
therefore ever instructing any
solicitor to prepare and file on
his behalf the statement of
defence which counsel for the
plaintiff-appellant referred to
as contradicting the evidence of
DW2. Indeed, the solicitor who
had prepared and filed the
statement of defence was himself
called to give evidence and
after the trial judge had
considered his evidence and that
of DW2, the judge believed and
accepted the story of DW2 that
he never instructed the said
solicitor, PW5 to file any
statement of defence on his
behalf. I do not think that the
trial judge’s decision on this
issue can be questioned since
his findings thereon are amply
supported by the evidence before
him.
The other ground upon which the
trial judge’s decision has been
attacked concerns the capacity
of the plaintiff to institute
the action. The judge’s decision
is that the plaintiff failed to
prove positively that he had
been authorised by the family to
institute the action on behalf
of the family. The judge held
that even though two members of
the family had given evidence in
support of the plaintiff’s case,
yet because none of them said
positively that the plaintiff
had been authorised to institute
the action, it could not be said
that the plaintiff had proved
the representative capacity in
which he had brought the action.
It was argued on behalf of the
plaintiff that this finding is
wrong because the fact that two
members of the family gave
evidence in support of the
plaintiff meant, at least
impliedly, that they supported
the action even though they did
not say specifically that they
had authorised it. Reliance was
placed on Koran v Dokyi
(1941) 7 WACA 78 and Armah v
Kaifio [1959] GLR 23.
As was held in the famous case
of Kwan v Nyieni [1959]
GLR 67 at pages 68 and 69:
“(1) as a general rule the head
of a family, as representative
of the family, is the proper
person to institute a suit for
recovery of family land;
(2) to this general rule there
are exceptions in certain
special circumstances, such as:
(i) where family property is in
danger of being lost to the
family, and it is shown that the
head, either out of personal
interest or otherwise, will not
make a move to save or preserve
it; or
(ii) where, owing to a division
in the family, the head and some
of the principal members will
not take any steps; or
(iii) where the head and the
principal members are
deliberately disposing of the
family property in their
personal interest, to the
detriment of the family as a
whole.
In any such special
circumstances the Courts will
entertain an action by any
member of the family, either
upon proof that he has been
authorised by other members of
the family to sue, or upon proof
of necessity, provided that the
Court is satisfied that the
action is instituted in order to
preserve the family character of
the property.”
In coming to its decision,
quoted above, the Court of
Appeal relied on two decisions
of the West African Court of
Appeal which had dealt with the
exceptions to the general rule
as quoted above. These are
Mahmudu v Zenuah (1934) 2
WACA 172 and Koran v
Dokyi (1941) 7 WACA 78,
cited by the appellant’s counsel
in this appeal. Both cases
decided in effect that not only
the head of family could sue to
recover family property in all
cases.
In these two cases, a member and
principal member respectively
were held to have properly sued
on behalf of the family, even
though they were not the heads
of the family. Ollennu J,
relying on Koran v Dokyi,
supra also held in Armah
v Kaifio [1959] GLR 23 that:
“(1) though the plaintiff was
not head of his family, the
evidence was that he had the
family’s authority to take care
of the family property. From
this fact might be implied the
family’s authority to litigate
the family’s title to the family
property.”
Applying the principles
established in the decided
authorities referred to above to
the facts of the case before us,
I have no hesitation in saying
that the plaintiff-appellant was
perfectly entitled, on the
authorities, to take this
action. In other words, he had
the capacity to take the action
on behalf of his Aduana family.
His action, as clearly shown in
his writ of summons, the
statement of claim, and in the
evidence of himself and his
witnesses, was for nothing but
the recovery and preservation of
what he believed to be the
property of the family which he
thought the head and principal
member of the family had
alienated.
It is clear from the evidence of
the plaintiff and the two
members of the family who gave
evidence in support of his case
that their head of family,
Kwabena Bonso, and the principal
member, Yaw Konto, “connived to
sell the building to the 2nd
defendant and his junior brother
Osei Mensah without the
knowledge of the family”.
In such circumstances, it is my
view that even though the
plaintiff and his witnesses did
not specifically say in their
evidence that the family had
authorised the plaintiff to take
the action, the plaintiff’s
action is fully supported by the
exceptions pronounced by this
court in Kwan v Nyieni
which I have already fully
quoted in this judgment. In the
circumstances, I think that the
trial judge was wrong in taking
a rather technical and limited
view of the evidence in this
respect and in holding that the
plaintiff had failed to prove
his capacity to institute the
action.
Having dealt with the issue of
capacity, I now come back to the
issue of the weight of the
evidence adduced. The
plaintiff’s case, as I have said
is that the house in dispute is
family property and not the
self-acquired of Yaw Konto, now
deceased. Also, as has been
shown earlier in this judgment,
the head of the plaintiff’s
family gave evidence to show
that the house was not their
family property but the
self-acquired property of Yaw
Konto, a principal member of the
family.
The evidence is that the said
Yaw Konto disposed of this house
during his life time without any
challenge, and that he lived
therein for four years after
disposing of the property before
he died. The trial judge was
impressed by the evidence of the
head of family, Duada Kramo
alias Kwabena Bonso (DW2) and
believed it. He did not believe
the evidence of the plaintiff
and his witnesses that the house
in dispute was family property
and not the self-acquired
property of Yaw Konto.
It is trite learning that in a
situation like this, where the
trial judge’s findings of fact
are supported by the evidence on
the record, an appellate court
cannot disturb those findings.
In the result the contention of
the appellant’s counsel that the
judgment of the trial judge is
against the weight of the
evidence adduced at the trial
cannot be sustained.
Accordingly, the judgment must
stand and the appeal dismissed.
LAMPTEY JA.
I agree.
BROBBEY JA.
I also agree.
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner. |
