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JUDGMENT
ESSILFIE-BONDZIE, JA.
This appeal is from the
decision of the High Court Koforidua, contained in the
judgment of Her Lordship Mrs. Justice Adinyira dated
15th October 1996. The plaintiffs issued a writ against
the defendants claiming as head of family and principal
members respectively of the Kwaku Daaku Asona family of
Abetifi declaration of title to parcels of land
described as lots 1-8 endorsed on the Writ of Summons,
recovery of possession of lots 1-8 endorsed on the writ,
perpetual injunction restraining the defendants, their
servants etc from entering or interfering with the
properties and an account of monies in rents etc from
21st October 1991 to date of judgment.
The undisputed fact in
this case is that all the plaintiffs and all the
defendants are members of the Daaku Asona family of
Kwaaman and Abetifi. The parties do not dispute the fact
that the Adonten Stool of Kwahu ie the then Abetifihene
created a Black Stool for the Daaku Asona Family. The
said substool created was called Gyasewa Stool of
Abetifi. It is also agreed that Opanin Daaku was the
second occupant of the Gyasewa Stool. Opanin Daaku was
succeeded as Gyasewahene by the 1st defendant (now
deceased), followed by the late Baffour Okyere Sampong
and presently by the 2nd defendant. It is not disputed
that all the properties forming the subject matter in
dispute with the exception of lot 3 were self–acquired
by Opanin Daaku before he became the Gyasewahene. Lot 3
a farm at Takyikrom was acquired by the 1st defendant
when he was the occupant of the Gyasewa Stool.
The evidence and
pleadings show that the 1st plaintiff brought the action
on behalf of himself as head of the Asona Family and on
behalf of the immediate members of the Daaku Asona
Family of Abetifi, Kwahu and Kwaaman Ashante. The
plaintiffs contended that the occupant of the Gyasewa
stool does not at the same time succeed to Opanin
Daaku’s self-acquired property. In other words they
claimed that the defendants cannot lay claim to the
properties in dispute since they were the self-acquired
property of Opanin Daaku.
In their defense, the
defendants challenged the capacity of the plaintiffs to
institute the action. Thus in paragraph 2 of the
statement of defense, they pleaded
“(2) Paragraph 1 of
the statement of claim is not admitted on the ground
that the 1st plaintiff is not the Head of the Asona
Family of Abetifi and Kwaaman. Consequently all the
plaintiffs lack the necessary capacity to institute this
action.”
It was also their case
that the elders allocated Opanin Kwaku Daaku’s
self-acquired properties to the Gyasewa stool when
Opanin Ampadu, 1st defendant, (now deceased) was
installed as Gyasewahene. In other words the defendants
claimed that they are rightfully in possession of all
the properties of Opanin Daaku, who was an
ex-Gyasewahene because according to custom the occupant
of the stool automatically succeeds to the property of
Opanin Daaku.
The learned trial judge
took evidence from both parties and after examining and
evaluating them decided in favour of the defendants. At
the tail end of her judgment, the trial judge said “so
on the totality of the evidence, am left in no doubt
that it is the custom for the occupant of the Gyasewa
Stool to succeed to the properties of the late Opanin
Daaku. There is therefore no basis for the plaintiffs
claim.”
In this appeal the
plaintiffs/appellants (who will hereafter be referred to
as plaintiffs) have filed a number of grounds but in my
view the relevant ones are the following:—
“(1) The learned trial
judge erred in law by holding that the occupant of the
Gyasewa stool of Abetifi is automatically the customary
successor of the past occupant of the stool, one Opanin
Kwaku Daaku contrary to the evidence.
(2) The learned trial
judge erred in law by holding, that Opanin Kwaku Daaku’s
personal properties although acquired before his
enstoolment on the Gyasewa Stool became Gyasewa Stool
properties.
(3) The learned trial
judge erred in law by failing to give a ruling whether
or not 1st plaintiff is the Head of Family of the Daaku
Asona Family of Abetifi although that was an issue for
trial.
(4) The learned judge
erred in law by holding that a Head of Family cannot sue
to recover family property.”
According to the 2nd
defendant, the spokesman for the defendants their claim
is that the occupant of the Gyasewa stool is
automatically customary successor to the late Opanin
Daaku and so all the self-acquired properties of Opanin
Daaku are vested in him on behalf of the stool and
family. He contended that it had been the custom among
the Asona Family of Abetifi that the occupant of the
Gyasewa stool acts at the same time as customary
successor to the late Opanin Daaku. It is plain from the
record that the alleged custom was not proved. The
defendants just went into the witness box and repeated
the averments in the statement of defense. I do not
think the evidence of DW1 and DW2 assisted them in any
way to prove the said custom. It must be emphasised
that the Gyasewa stool was created by the Adontenhene of
Abetifi. It is not an ancestral stool, which had
accumulated properties over the generations. In other
words it is not a stool to which definite properties
were attached on its creation. Opanin Daaku (deceased)
was the second occupant of the Gyasewa stool. He was
not the first and only occupant of the Gyasewa stool.
It is not refuted that all the properties subject-matter
in dispute were self-acquired before he became
Gyasewahene. There was no evidence that other occupants
of the stool allocated their self-acquired properties to
the Gyasewa stool. There was also no evidence that he
made a gift of his properties to the Gyasewa stool. How
then should his self-acquired property become stool
property which should vest in the occupant of the
Gyasewa stool. I hold that on the death intestate of
Opanin Daaku according to custom the properties in
dispute except lot 3 devolved on his family. But the
right to immediate enjoyment of the beneficial interest
in it and to the control of it vests in the immediate
family.
I hold that the
defendant’s assertion that an occupant of the Gyasewa
stool automatically becomes the customary successor of
Opanin Daaku is false and contrary to the Law of
succession in Ghana. According to custom the successor
is appointed at a meeting of the whole family presided
over by the Head of Family, otherwise called the wider
Family. The office is an elective one. One does not
assume it. It is my judgment that the learned trial
judge went wrong when she decided that it is the custom
for the occupant of the Gyasewa stool to succeed to the
properties of the late Opanin Daaku.
The next relevant
grounds of appeal are grounds 3 and 4 namely that is:—
(3) The learned trial
judge erred in law by failing to give a Ruling whether
or not 1st plaintiff is the head of Family of Abetifi
(4) The learned judge
erred in law by holding that a Head of family cannot sue
to recover family property.
It is pertinent to note
that the plaintiffs instituted the action as head of
Family and principal members respectively of the Kwaku
Daaku Asona Family of Abetifi. A look at the summons
for Direction in the record of proceedings reveals that
the first and 2nd issues which the parties agreed upon
for trial were
(1) Whether the 1st
plaintiff is the Head of the Daaku Asona Family of
Abetifi, Kwahu and Kwaaman Ashanti.
(2) Whether the
plaintiffs have the capacity to bring this action.
In paragraph 2 of their
statement of defense, the defendants denied the capacity
of the plaintiffs to institute the action. Paragraph 2
of the statement of defense reads:—
“(2) Paragraph 1 of the
statement of claim is not admitted on the ground that
the 1st plaintiff is not the Head of the Asona Family of
Abetifi and Kwaaman. Consequently all the plaintiffs
lack the necessary capacity to institute the action.”
Regarding this issue of
capacity the learned trial judge failed to consider and
to rule on it. Instead she said. “The defendants also
claimed that the 1st plaintiff has been removed as head
of family and that the plaintiffs lacked capacity to
issue this Writ. The issue as to whether or not the
plaintiff is the head of family is of no importance to
this case as the main issue as pointed above is who is
entitled to succeed to the properties of Opanin Daaku.”
It is from her judgment
that the learned trial judges found as a fact that the
1st plaintiff was the head of Family but that it was the
case of the defendants that he had been removed from
office. In giving evidence to support their claim that
the 1st plaintiff had been removed as head of family the
2nd defendant testified that when his predecessor Opanin
Okyere Sampong died, the 1st plaintiff came to the
chief's palace for permission to perform his funeral.
The elders of Abetifi fined him ¢25,000.00 before
allowing him to perform the funeral as head of family.
The fine was however paid by his son. After the funeral
of Opanin Okyere, according to the 2nd defendant they
lodged a complaint to PW1, the Werempohene of Abetifi
that the 1st plaintiff had been fined ¢25,000.00 at the
palace and that for 10 years he did not attend funeral.
The 2nd defendant went on to say that "PW1 declined
hearing the case so we took the complaint to the
Asonahene of Kwahu who is also the NKWATIAHENE. The 1st
plaintiff was found liable and fined two sheep, one for
the family, a bottle of Schnapps each for the family and
stool. The 1st plaintiff did not pay the fine so we
found him unsuitable to be the head of family and to
date he does not come to Abetifi. My brother Kwadwo Anim
succeeded Opanin Munukure Sampong 1st plaintiff as
abusuapanin".
The import of the above
evidence of the 2nd defendant is that the 1st plaintiff
has been removed as head of family of the Opanin Daaku
Family of Abetifi.
In Ollennu's principles
of Land Law in Ghana page 157 under the caption REMOVAL
OF THE HEAD OF FAMILY or Successor the learned author
stated.
“The head of family as
well as the successor may be removed from office, and
another appointed in his stead. The procedure for the
deposition or removal is exactly the same as that for
appointment: It is carried out by a council of the,
family convened specifically to deal with affairs of the
family generally or with complaints against the head or
about administration of the family property."
(The emphasis is mine)
In this case there is
no evidence that the Daaku Asona Family of Abetifi of
which the 1st plaintiff is the head ever convened a
meeting of all sections of the family specifically to
deal with the dismissal of the 1st plaintiff. There is
no evidence that before a meeting of the family charges
or complaints were laid against the head or his
administration. There is also no evidence that he was
tried and found guilty. In the light of the evidence
available in the record of proceedings, I hold that the
1st plaintiff has not been removed as Head of the Daaku
Asona Family of Abetifi in accordance with customary
procedure. Apart from the principle enunciated in
Ollennu's principles of land law quoted above, there is
also the Supreme Court decision in Abakah and others vs.
Ambradu (1963) 1 GLR p. 456-457. In holding one (1) the
Court dismissing the appeal held: “(1) The right of
removing the head of family from office is vested in the
principal members of the family and the act of the
majority would be binding upon the rest but where a head
is removed as in this case, without notice of the
meeting being given to all sectional heads the act of
the sectional heads, who were present cannot be binding
upon the rest and unless it is acquiesced in, it is
ineffective”
The above decision
re-enforces the finding that the removal of the 1st
plaintiff as Head of the Daaku Asona Family was of no
effect. Opanin Daaku (deceased) was the second occupant
of the Gyasewa stool and as said it is not refuted that
all the properties subject matter in dispute with the
exception of, lot 3 were self-acquired by Opanin Daaku
before he occupied the Gyasewa stool. It follows that
when Opanin Daaku died intestate in 1950 the said
properties become the property of the Daaku Asona Family
of Abetifi.
In KWAKYE VS. TUBA &
others (1961) GLR p. 536 at p. 538 Ollennu J (as he then
was) stated the Law of Succession in Ghana as follows “.
. . . . . . . .upon the death of a person intestate,
although his self-acquired property becomes the
property of the whole of his family the immediate and
extended together, the right of immediate enjoyment of
the beneficial interest in it and the control of it,
vests in the immediate or branch family and the person
appointed successor to the deceased is, in law, the head
of that immediate or branch family. As such head he is
the proper person to sue and be sued in respect of that
particular family property.”
The learned judge went
on to state "But where no successor has been appointed
to a deceased, the duty to litigate over, to take charge
of and preserve such family property devolves upon the
head of the next wider family." See also MILLS vrs.
ADDY (1958) 3 WAL R p. 357.
There is on record an
uncontroverted evidence of the 1st plaintiff that he was
the son of Afua Diyea (deceased) who was the niece of
Opanin Daaku. This piece of evidence was buttressed by
the Werempohene of Abetifi (PW1) and the 2nd defendant
himself under cross-examination. Under cross-examination
the 2nd defendant said as follows:—
“Q. It is not the 1st
defendant (deceased) who succeeded Opanin Daaku but not
Afua Diyea.
A. It is not true, as
a woman does not succeed a male.
Q. Afua Diyea was the
niece of Opanin Daaku.
A. Yes.
It is already
determined in this judgment that the late Opanin Daaku’s
self-acquired properties did not become stool properties
but family properties. It is also settled that at his
death in 1950, Opanin Daaku’s immediate family included
Afua Diyea (deceased) his niece and the 1st plaintiff
the son of Afua Diyea. Now under customary law a
deceased’s immediate family consists of all who were
descended matrilineally from the same womb as himself,
his surviving brothers (if any), his sisters (if any)
and the surviving children of his sisters dead or alive.
See ENNIN vs PRAH (1959) G.L.R. 44 at p. 45 per
Adumua-Bossman J (as he then was). This means that the
evidence of the Werepohene of Abetifi (Pw1) that when
Opanin Daaku died intestate the stool was occupied by
the 1st defendant but his self-acquired properties were
inherited by his niece Afua Diyea is more consistent
with custom. So that in the light of the available
authority, the 1st plaintiff the son of the Afua Diyea
an immediate member of Opanin Daaku’s Family has the
right to prior consideration by the family for
appointment as successor. This is so because with the
death of his mother Afua Diyea the 1st plaintiff
automatically became the living successor of the late
Opanin Daaku. Again the principle of Customary Law is
that as a general rule the Head of Family is the proper
person to institute suits to recover family lands. But
where family property is in danger of being lost a
member of family may sue. For as said, customary law did
not require a power of attorney. See KWAN vs NYIEN
(1959) G.L.R. 67.
In his own right as
Head of Family the 1st plaintiff can sue to recover the
deceased’s property which had become family property,
and so hold. Moreover as already observed Opanin Daaku
was succeeded by his niece Afua Diyea the mother of the
1st plaintiff. So that even if the 1st plaintiff, was
not the head of family, according to the principles in
Ennin vs. Prah (supra) and the Law enunciated in KWAN
vs. NYIEN (supra) (that where family property is in
danger of being lost . . . . . . . . . . . . . . . . . .
. . . . a member of family may sue) he had the
competence and capacity to take the action as he did.
The learned trial judge therefore went wrong when he
dismissed the plaintiffs claim on the ground as he said
" It is the one who has been appointed customary
successor who can maintain this action against the
defendants and not 1st plaintiff as head of Family”. I
am strengthened in this view because as already
maintained there is no evidence on record that at a
meeting of all the sections of the Daaku Asona Family of
Abetifi the 2nd defendant was ever appointed customary
successor when Opanin Daaku died intestate in 1950.
It is my judgment that
as head of the whole Daaku Asona Family and as a
principal member of the immediate family of Opanin
Daaku, the 1st plaintiff and the other principal members
of the family had the capacity to institute the action.
I would therefore set aside the judgment of the High
Court Koforidua and give judgment in favour of the
plaintiffs on their claims. This excludes the property
described as lot 3. The appeal is therefore allowed.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
AMONOO-MONNEY, J.A.:
I agree
J. S. AMONOO-MONNEY
JUSTICE OF APPEAL
OWUSU-ANSAH, J.A.:
I also agree
P. K. OWUSU-ANSAH
JUSTICE OF APPEAL.
COUNSEL
MR. K. ASIAMAH SAMPONG
FOR PLAINTIFFS/APPELLANTS
MR. J. E. YEBOAH FOR
THE DEFENDANTS/RESPONDENTS |
