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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