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HOME               REVIEW OF GHANA LAW 1980

 

THE CONCEPTION OF GA-MASHI PERSON [1980] VOL. XII RGL 158—165

 NII-APONSAH D. A.

 

BY bowing to the fetish of precedent to proclaim in In re Larbi (Decd.); Larbi v. Larbi1 that a Ga-Mashi person belongs to his maternal family the Court of Appeal per Archer J.A. (as he then was) after initiating a commendable analytical effort, unhappily missed the true social grouping of the Gas as is evidenced by the significance and effect of the kpodziemo custom of the Ga-Mashi peoples in particular and of the Ga-Adangme people in general. This short note is to correct only that faux pas and it is not concerned with the conclusion reached, which happily is unexceptionable.

A.A. Amartey, one of the leading exponents of Ga custom and culture, in his authoritative Ga language book Omanye Aba has recorded the following incontestable role of the kpodziemo custom in Ga sociology and culture which the courts are prone to ignore in many judgments where they have had occasion to make references to the social arrangements of the people of Ga-Mashi. He writes2:

“THE ROLE OF OUTDOORING OF A CHILD:

The child-naming ceremony is overridingly precious for the Ga and its role is very highly placed for several reasons:—

(a) It is carried out to welcome the infant as an addition to the family, in particular the paternal family, because they name him to signify that the child belongs to them."

(Writer's emphasis.)

Hence, the essence and raison d’etre of the kpodziemo or naming ritual of the Ga-Mashi no less than of other Ga and Adangme peoples are to proclaim formally the father, not necessarily the progenitor, who makes a claim upon the child as his own; who clothes it with the all-purpose character of a member of his family; and who gives it a status or rank there for all purposes including succession to a traditional-status office, right of support durante vita and inheritance to self-acquired property, i.e. personal, real or family property. Hence, the courts' simplistic denial of a Ga-Mashi child's membership of its family exposes lack of grasp of the significance of the kpodziemo or naming ritual among the Ga-Mashi.

Other research workers who have given serious thought to the central role of the outdooring or child-naming custom and the manner in which the same impinges upon and permeates the laws, customs, usages and other social organisations of the Ga people in general and the Ga-Mashi peoples in particular include Diana Gladys Azu and Marion Kilson. In Diana Azu's post-graduate work in African studies, later published under the title, The Ga Family and Social Change that Ga-born writer came out with the following finding3:

“Thus the kpodziemo (outdooring ceremony) introduces the child to the lineage, to which it belongs. It establishes the social fatherhood of a child and decides to which major lineage, and, for that matter, maximal lineage he will be affiliated. It is not always that one can equate a social father with a biological father. In Laboni, the two are sometimes different. The lover may run away, or may not be considered responsible enough to marry. His father or an elder brother could then step in, perform the kpodziemo and take the child as his own."

Marion Kilson, for her part, in her research work, African Urban Kinsmen: The Ga of Central Accra, advances further the note eloquently struck by Diana Azu when, with rare insight, she summed up the nerve fibre of Ga social organisation, identifying the custom not merely as "establishing the social fatherhood of a child and the major or maximal lineage to which it will be affiliated" but does even more: it "establishes the child's ethnic identity as a Ga and its membership of a particular kindred." She write4:

“The naming ceremony which is performed for all infants born either to a married Ga man, that is to a man who had made marriage payments for the mother of the child, whether the mother be Ga or non-Ga, or to an unmarried Ga woman establishes the child's ethnic identity as a Ga and its membership of a particular kindred."

If, as it is hereby submitted, the above extracts represent the correct expression of Gas social classification that commands general acceptance among the native Ga themselves, then it seems the courts have to revise their inadequately examined but wonted conclusion that the Ga-Mashi, who celebrate the kpodziemo custom with unmatched zest, belong, like most Akan, to matrilineal families, even though the raison d'etre of the Akan does not hold good in most Ga-Mashi cases.5 It should be appreciated that this conclusion does not hold good for even all the Akans, e.g. the Guans and Kyerepongs as well as the Adums of Kumasi are patrilineal. These exceptions should sound a serious note of warning of how pernicious or dangerous such indiscriminate or uncritical generalisations could be.

Like Ollennu, Dr. M. J. Field, the doyen among this band of dedicated social scientists and writers, looked at the pivotal significance of the naming custom from a more restrictive plane than Kilson did. Field for her part called it "the seal of respectable paternity" and adds6, "The child is now a member of the family and has assumed its name." In like vein, Ollennu describes it as7 “legal acknowledgement by the father of the paternity of the child," and further explains that "that ceremony identifies the child with the father and his paternal family, his Ntoro, and makes it his lawful child." With the benefit of inner knowledge the writer as a Ga would submit that the pervasive role in which Kilson sees the custom is the preferable one.

Yet whether looked at from a broad or a restrictive viewpoint, the above extracts should make it clear enough that if the courts are to make any start at all with appreciating the nuances of the cases that come before them from the Ga areas in general and Ga-Mashi in particular, then the overriding function of the kpooziemo custom in defining the family to which any Ga is affiliated cannot be obscured by mere citation of earlier dicta from such courts as had not reckoned with the controlling role of that particular custom.

The function to identify the child with both the father and the latter's paternal family as is emphasised by Ollennu in the foregoing extract, is what the courts often overlooked in the past and that omission is the fons et origo of the perverse theories allocating Ga-Mashi persons to social groups whose members are wont to refer maternal relations to their own paternal lineages as the true kin of those maternal kith: which indeed is what most Gas know to be the case. This situation is very much akin to a case of renvoi within one ethnic or polyethnic community.

After pondering for some considerable years over the sources of the courts thinking along certain lines that manifestly contradict actual social arrangements of the Ga-Mashi peoples, your writer is persuaded that it is the inadequate judicial appreciation of the unlimited extent to which all Ga concepts or practices revolve round this kpodziemo custom that led to all those fallacies hallowed with the grand name of the "law of Ga-Mashi."

Professor Allott in New Essays in African Law has denounced wide pronouncements in Ga succession cases as8 “wooden adherence to precedent" and that charge is timely and, with respect, ought to put the courts on notice on this matter in particular, as it has led to so much confusion among the Ga-Mashi especially.

It would be very educative indeed if the courts would demonstrate in an appropriate case the doctrinal, sociological, ethnographical, anthropological or historical basis for holding roundly as the Court of Appeal per Archer J.A. did in the case under review that9 law of Ga-Mashi truly is that when a Ga-Mashi person dies, his estate becomes family property and his maternal family constitute his family.” What, with respect, are the courts' bases aliunde for their formulation? Even looking at that formulation more closely it would seem to be rather wide in two significant respects only: it may have a rather restricted application in only Akan-oriented families resident or domiciled in Ga-Mashi and only where the element of intestacy is present; not in all cases, as Archer J.A. inadvertently suggests. It is very respectfully submitted that even the highest courts' old decisions if they are demonstrably opposed to the true Ga-Mashi culture, cannot be sufficient or satisfactory authorities in this respect.

With respect, what ought to be noted once and for all time and with some particularity is that the Ga-Mashi, and for that matter all Gas and Adangmes, are very sensitive and jealous about their paternal ties for which they cherish proud feelings. They therefore regard it as the greatest possible degradation to them to say, as the courts are wont to do, that they are gboi (strangers) to their fathers’ paternal families. They justifiably take an umbrage because that saying, which per se is a product of lack of grasp of true Ga culture, impliedly suggests to them that they are no more than ill-born or unfathered children.

But as already demonstrated elsewhere,10 in virtue of the implication of the naming or kpodziemo custom, no Ga child is regarded as bastard or unfathered, once its father or paternal grandfather or great grandfather or maternal uncle or grandfather has conferred a family name on it. The same kpodziemo custom makes the Ga-Mashi child like the Adangme child, an accretion to the membership of the family whose name it bears. Such membership alone does wholly carry with it the implication of a title to participate fully in the enjoyment of all the rights owned by the family concerned as group rights.

It would be greatly relieving if in appropriate cases, the courts’ better appreciation of the above implications of the kpodziemo custom, the pivot of the culture and personal law of a Ga, would be reflected in their judgments. In this connection, it is apposite and instructive to refer to Archer J.A.’s own strong and, with respect, more agreeable appreciation of the position in the earlier case, In re Kofi Antubam (Decd.); Quaico v. Fosu where he stated11:

“Without committing any heresy, I am also prepared to take the plunge and to assert that the proposition that children are not considered members of the father's family is contrary to all biological principles, alien to well-known doctrines of all accredited religions and opposed to common sense. The logic of the customary rule is that because children are not considered members of the father's family, therefore they are completely excluded from any share of or right to his property. As I have already argued if the basis for this exclusion does not make sense then the exclusion itself cannot stand."

And since Gas have no clans (abusua) to which they can be referred in any exercise aimed at locating their true kinship, their exclusion from their fathers' families whose names they bear "does not make sense (and) the exclusion . . . cannot stand." It should be noted that the Ga Weku (family) is not exactly equal to abusua of the Akan: the former is cognatic, the latter matriclanish or matrisectarian only.

Five leading cases tend to lend some direct or indirect support to the finding of the aforementioned field workers that the classification of Ga-Mashi children with their maternal families is not representative of the true social facts and understandings of the very people there.

The first is the Accra Water Works case.12 There, Crampton Smyly C.J. addressed his mind to the broader question. “To what Quarter does a Ga-Mashi person belong?” He came out with the finding, confirmed according to him by the evidence of the James Town and Sempe Mantsemei, that a Ga belonged to his father's quarter.

The meaning and composition of a Ga quarter gives a clue to the family to which a Ga-Mashi belongs. A Ga quarter is composed of a combination of patrilineages and it is only by being affiliated to a patrilineage that one could stake a claim to membership of a quarter. This is one index to the question to which family group is a Ga-Mashi person affiliated.

The second case of importance is Lutterodt v. Solomon in which Deane C.J. in referring to the facts of a judgment delivered by the Ga Native Court said13:

"On 30th December, 1930, the Tribunal delivered judgment declaring that as lawful issue of a lawful marriage according to native customary law plaintiffs were members of the family of the deceased . . . (to wit, their father.)"

The third leading Ga-Mashi case is Clerk v. Okai in which Coussey J. stated14:

“I think it is proper to observe that the property in question is the family property of M. G. Okai's family. The children alone do not compose that family; there is one family of which S. A. Brown is the head and of which the children are members.”

(Writer's emphasis.) It is interesting that it was the same learned judge who in Wellington v. Quartey Papafio15 had ruled other Ga-Mashi children as being outside the fold of their father's family. Again in Ankrah v. Odamtten, Acolatse J. held16:

“The house in question was the self-acquired property of George Aryee Odamtten, deceased, who died intestate . . . The defendants herein are some of the customary children of the deceased. It appeared from the evidence that they are, by the custom of their locality in the Ga division, members of their father's family and as such have indefeasible interests in the estate of the deceased with the head of the family….

(Writer's emphasis.)

It is noteworthy that the very senior Ga-Mashi lawyers engaged in the foregoing case, the late Mr. A. G. Heward-Mills and Nii Odoi Annan, expressed no dissent from that statement on children's membership of their deceased father's family and on the declaration of their "indefeasible interests."

In Addy v. Addy the customary children of one father became divided over the inheritance of their deceased father's property and one set joined to sue a brother who was alleged to have arrogated all their father's estate to himself. The court recalled that17:

“The Native Court found that both the land at Adabraka and the house at Atuopai were the family properties of both the plaintiffs and the defendant and that the defendant fails in his claim of absolute ownership in respect of the house and accordingly entered judgment for the plaintiffs and declare that both the land and the house . . . are family properties."

Particular note should be taken of the fact that the native court which was familiar with the tenets of Ga custom did not say that the deceased father's children did not belong to the family that owned the properties concerned but rather that it belonged to the family of them both: see also Riberio v. Mingle18 where the court declared in favour of the deceased father's children's right as against that of the original property owner's paternal nephew whose father had succeeded the property owner as a uterine brother (serho).

In the premises it is submitted that Prof. A. N. Allott was eminently justified in his finding contained in his editorial note to Aryeh v. Ankrah that19:

“The evidence (other than that contained in reported decisions) goes to show that in the majority of the quarters of Accra inheritance is predominantly patrilineal in character, and not matrilineal. The decisions of Ga Native Courts (as reported in the judgments of superior courts on appeal) tend to confirm this view of the customary law; cf., for example, the judgment of the Native Court B in the case Riberio v. Mingle and of the Native Court in the case of Vandepuye v. Botchway [1957] J.A.L. 42 and of the Ga Mantse's Tribunal in the case of Solomon v. Botchway ((1943) 9 W.A.C.A. 127).”

Needless to say, Prof. Allott no doubt arrived at the foregoing conclusion after the closest and most anxious consideration of all the galaxy of opposing decisions, and yet did not permit his mind to be befuddled by such rationes decidendi.

Thus, there is respectable authority in which even very senior Ga-Mashi native lawyers, heirs to their hybridised customs, concurred to the effect that a Ga-Mashi belongs to his patrilineage for the purpose of inheritance with indefeasible interests. Another determinant of kinship affiliation amongst all Gas is the six-cloth marriage, the issue of which is irrebutably presumed to belong to the father and his family as long as it lasts.

It has been the burden of this piece to demonstrate that any legal authority from the highest court or authority, conceived and projected without having reckoned with the cultural nuances of the Ga kpodziemo ritual must, with great respect, have been incurably misconceived and offensive to the tenets of the very mores which those legal authorities purported to have reflected but in fact failed to do.20

FOOTNOTES

* LL.B., Barrister and Solicitor of the Supreme Court of Ghana.

1. (1977) 2 G.L.R. 506 at p. 510, C.A.

2. Amartey, A. A., Omanye Aba, p. 22.

3. Azu, Diana Gladys, The Ga Family and Social Change (1974), p. 38.

4. Kilson, Marion, African Urban Kinsmen: The Ga of Central Accra (1974), p. 49.

5. See Nii-Aponsah, D. A., “Law and Social Reality: The Effect of Marriage and Paternity on Membership of Family among Ga-Mashi People” (1978) 10 R.G.L 32 at pp. 42—43. Most Akans are matrilineal because by virtue of their own custom, all children to whom that custom applies are deemed to belong to their mothers' clans (the abusua). That raison d’etre does not apply to the Gas of Ga-Mashi who have no clans to which either parents or their issue might be said to belong. Gas of Ga-Mashi usually belong to patrilineal families which aggregate to “Quarters.” The courts should please avoid confusion of the limited manner of uterine brothers/nephews’ succession with the mode of tracing kinship ties in Ga-Mashi. Significantly, the Akans have not got the equivalent of the kpodziemo, ritual.

6. Field, M. J., Religions and Medicine of the Ga People (1961), p. 173.

7. Ollennu, N. A., The Law of Testate and Intestate Succession in Ghana (1966), pp. 206—207.

8. Allot, A.N., New Essays in African Law, p. 129. For prior succession by Ga-Mashie uterine brothers/sisters, see Re Estates of Lomotey Nakpa (Decd.); Lomotey Obesi (Caveator) (1908) D.Ct., unreported—24 October  1908 referred to in Ollennu op.cit. p. 191; Sackey v. Okantah (1916) D. & F. Ct. ’11-’16, 88; Riberio v. Mingle D.C. (Land) 38-47 314 and Vanderpuye v. Golightly [1965] G.L.R. 453 at p. 455, S.C.

9.  [1977] 2 G.L.R. 506 at p. 510.

10. See note 5 above.

11. [1965] G.L.R. 138 at p. 145.

12. (1918) F.C. Feb., ’19, 64.

13. (1934) 2 W.A.C.A. 209.

14. D.C. (Land) '48-'51, 270 at p. 274.

15. (1952) 14 W.A C.A. 49.

16. D.C. (Land) '52-'55, 72 at p. 73.

17. D.C. (Land '52-'55, 17 at p. 18.

18. D.C. (Land)’ 38-’47, 314 at p. 315 where Coussey J. approved the Ga Mantse’s declaration of the children's rights in their father's property.

19. (1958) J.A.L. 26 at p. 27.

20. A gross instance is Captan v. Ankrah (1951) 13 W.A.C.A. 151 at p. 156 where Korsah J. (as he then was) strangely held that "children of three brothers cannot form one family; even children of the same father by two wives cannot in native law be members of one family for the purpose of inheritance or succession to property; because every child can only be a member of his mother's family"—the very opposite of the tenets of Ga-Mashi culture and social ideology: see also Prof. Allott's instructive analysis of the application of the pure Fante Law to Aryeh v. Ankrah: Ankrah v. Ankrah in 1958 J.A.L. at p. 27.

 

 
 

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