HIGH COURT, HO
DATE: 8TH JUNE, 1962
BEFORE: PREMPEH, J.
CASE REFERRED TO
Lartey v. Mensah and Dedei (1958) 3 W.A.L.R. 410
COUNSEL
Awoonor-Williams for the first claimant.
W. Ofori-Atta for the second claimant.
JUDGMENT OF PREMPEH J.
In these proceedings under the Public Lands (Leasehold) Ordinance1(1) there are two claimants, each one of them claiming to be entitled to compensation from the government for an area of land at Keta acquired for prison warders’ quarters. It is not disputed that the area of land acquired was the property of the Katahena family.
By his statement of claim the first claimant claimed that he was appointed head of the Katahena family at a family meeting held on the 5th September, 1961, and that he is the proper person to whom compensation should be paid. He maintained that the second claimant is not a member of the Katahena family and that he is not the head of that family.
By his statement of claim the second claimant also maintained that he was appointed head of the Katahena family on the 16th February, 1958, as the successor to one Rev. Harold Nicholas Kwawu, and that he is the present head of that family. He denied that the first claimant is head of that family.
In paragraph 3 of his statement of claim the second claimant averred as follows: “The issues whether the said Rev. Kwawu was removed and the second claimant appointed in accordance with native custom were raised as the issues in suit No. 44/58 before the Anlo Native Court “A” in 1958 and the judgment of the said court which was confirmed by the magistrate’s court and the circuit court, declared both the removal and the appointment to have been properly done in strict accordance with native custom and were therefore valid.”
The issue that I have to determine is: which of the two claimants is the head of the Katahena family and properly entitled to receive compensation from the government?
The evidence of the first claimant is that the second claimant is not a member of the Katahena family, but that he had made himself a head of part of that family, and for that reason a family meeting was called on the 20th August, 1961, with a view to removing him, but that meeting proved unsuccessful; a second one, on the 4th September, 1961, also proved abortive. But that on the 5th September, 1961, the family did hold a meeting at which the second claimant was declared removed from his position as head of the family and at which he, the first claimant, was appointed head of the Katahena family. He deposed that the second claimant was invited to all the three meetings, that he attended the first two and failed to attend the third one of the 5th September, 1961. This was denied by the second claimant.
The first claimant called two witnesses. The first one is a letter — writer who took down the minutes of the meetings and who tendered in evidence marked exhibit A the book which contains notes taken down by
[p.451] of [1962] 1 GLR 449
him at those meetings. The other one is a member of the family in whose house, according to him, the third meeting was secretly held by a section of the family.
From the evidence adduced, the following points arise for consideration:
(a) were the three family meetings properly convened, if so by whom;
(b) were notices sent out to all the principal members of the family eligible to participate in family meetings, showing the purpose of the meetings; and was the meeting held on the 5th September, 1961, properly representative of the Katahena family; and
(c) was the second claimant invited to those meetings and was he given an opportunity to know and answer any charges preferred against him.
As to point (a), the first claimant admits that the proper person to convene a family meeting should be the head of family and if convened otherwise than by the head, that meeting was not properly constituted. He says also that if a family head was asked to convene a meeting and he refused to do so, members of the family could convene one, but there is no evidence before me that the second claimant was at any time asked to convene a family meeting.
As to who convened those three meetings, the evidence of the second witness for the first claimant who claims that he convened all the three meetings is in direct conflict with that of the first claimant who stated that it was he who called all those meetings. It was held in the case of Lartey v. Mensah and Dedei that: “The appointment of head of a family should be made by all the principal elders of the family at a family meeting. When it is intended to make an appointment, a notice convening a family meeting and stating the intention to appoint at such meeting should be given to all those entitled to attend and participate in the appointment. Failure to give such notice renders invalid any appointment made at a meeting from which any elders entitled to participate in the appointment are absent unless such absent elders subsequently ratify the appointment thus made.”2(2)
As to the second and third issues raised in this case, although the first claimant testified that in respect of the first and second meetings written notices were issued to the members, yet not a single one of such notices was produced to show for what purpose the said meetings were called. There is no record in exhibit A showing the purpose for which the meeting was called. In fact according to the evidence of first claimant’s first witness, the first meeting was called off because objection was taken to the fact that there was no agenda for the meeting. Now it has been agreed by both claimants that the Katahena family is a very large one, and as can be seen in exhibit 5 the members of family who on the 16th February, 1958, signed the resolution appointing the second claimant as head of family numbered 86.
The notes in exhibit A show that 42 family members were invited out of their total number, but only 27 attended; and it is admitted that none of the supporters of the second claimant was among the list of the 42 members invited.
[p.452] of [1962] 1 GLR 449
Both the first claimant and his second witness stressed the fact that there were two factions in the family, one faction supports the second claimant, and the other faction to which they belong supports the Rev. Harold Kwawu, whom the second claimant succeeded, and that the supporters of second claimant were not invited to those meetings. The evidence of the second witness for the first claimant is noteworthy in that it went on to say that the third meeting was held in secrecy.
In the face of evidence by the first claimant and his witness that owing to dissension among them only a section of the family was invited to the meetings, and that the other section was not invited, it is quite clear in my view that the meeting was not properly constituted by all those members who are entitled to participate in the removal of a head and the appointment of another one in his stead, and that the purported appointment of the first claimant as head of the Katahena family is null and void and of no effect.
On the evidence also I am satisfied that the second claimant was not himself invited to any of these meetings. That is borne out by the notes in exhibit A which state nothing about invitation to him among the list of the 42 members. The only reference made of him in that regard is that he went to the second meeting with policemen.
As to the third meeting, although the first claimant stated that the second claimant was invited, the second witness for first claimant stated categorically that the second claimant was not invited to the third meeting.
Now the evidence of the second claimant has been straightforward. On the 16th February, 1958, he was appointed head of the Katahena family in place of Rev. Harold N. Kwawu by a resolution signed at a family meeting by 86 principal members of the family. The resolution is marked exhibit 5. The validity of that appointment became the subject of a court action, and by its judgment dated the 16th October, 1958 marked as exhibit 2, the Anlo Native Court declared the said appointment as customarily valid. The Rev. Kwawu who was a party to that case appealed from that judgment to the Magistrate’s Court, Keta and then to the Circuit Court, Ho, sitting at Keta, but in both those courts the appeals were dismissed. The judgments of those courts are marked exhibits 3 and 4 respectively. His case is that he has not since been requested to call any family meeting for his removal, nor has he been invited to any such meeting convened by the elders; nor has he received any notification of his alleged removal.
On this evidence, I hold that it has been firmly established by the second claimant that he has since the 16th February, 1958, been appointed head of the Katahena family of Keta and that he is still the head of that family. I find that the first claimant has failed to prove that the Katahena family has since removed the second claimant, and appointed him, the first claimant, as such family head.
Accordingly, I hold that as head of the Katahena family, the second claimant is entitled to the compensation for the land acquired. The first claimant will pay the second claimant’s costs which I assess at 80 guineas inclusive of 60 guineas counsel’s brief fee.
DECISION
Judgment for second claimant.
