HIGH COURT, CAPE COAST
Date: 20 FEBRUARY 1975
EDWARD WIREDU J
CASES REFERRED TO
(1) Fynn v. Koom, High Court, Cape Coast, 20 February 1960, unreported.
(2) Dotwaah v. Afriyie [1965] G.L.R. 257, S.C.
(3) Akrong v. Bulley [1965] G.L.R. 469, S.C.
(4) Nelson v. Nelson (1932) 1 W.A.C.A. 215.
(5) Amoabimaa v. Okyir (Consolidated) [1965] G.L.R. 59, S.C.
NATURE OF PROCEEDINGS
RULING on the liability to account of a head of family at customary law. The facts are fully stated in the ruling.
COUNSEL
T. D. Brodie-Mends for the plaintiff.
J. B. Short for the defendant.
JUDGMENT OF EDWARD WIREDU J.
This action by which the plaintiff claims an account from the defendant raises for consideration the scope and extent of the customary law notion of a family head’s immunity to account in respect of family property in his possession. The events which have provoked the present action between the parties herein may be briefly stated as follows:
On 26 August 1971 one Chief Ankai of Cape Coast died intestate and the defendant claiming to be his head of family took out letters of administration to administer his estate. Some time after the defendant had taken out the letters of administration, the plaintiff, a maternal nephew of the deceased, was customarily appointed his successor. His present complaint against the defendant as contained in paragraphs (8)—(9) of his statement of claim reads as follows:
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“(8) The defendant herein has since his appointment as administrator of the estate of the plaintiff’s late uncle, collected various sums of money from the estate of the said Chief Ankai including the sum of ¢1,000.00 being compensation paid to the defendant by the government in respect of late Chief Ankai’s building which was demolished by the government; ¢1,975.35 being house rents paid to the defendant by the Ghana Police Service in respect of house No. F48/1, Commercial Street, Cape Coast belonging to the late Chief Ankai and let out to the Ghana Police Service; fiscal cash ¢460.00 discovered from the late Chief Ankai’s belongings by the family and which sum, together with the other belongings, were given to the defendant as administrator; Standard Bank (Ghana) Ltd. passbook containing a huge amount; Barclays Bank (Ghana) Ltd. passbook containing ¢1,000.00; 300 (three hundred) pieces of cloth; 31 kente cloths; six (6) velvets; seven (7) silk; 24 pieces of towel; fourteen trunk boxes; six portmanteaux and chest of drawers and three houses No. N3/16, Beulah Lane, Cape Coast, No. F111/2, Aboom Wells Road, Cape Coast, and No. F48/1, Commercial Street, Cape Coast.
(9) Since the plaintiff’s appointment in or about 1973 as customary successor to the late Chief Kwesi Ankai, he has called upon the defendant as the administrator of the estate of the late Chief Ankai on several occasions to render accounts to the plaintiff but the defendant has refused and still refuses to render the accounts without any reasonable excuse.”
He therefore on 12 February 1974 issued out of this court a writ of summons for:
“An account to the plaintiff, of all debts or liabilities (if any) and all assets of Chief Kwesi Ankai, late of Cape Coast (deceased) whose letters of administration were granted to the defendant on 5 July 1972, but account of which the defendant has not rendered and refuses to render to the plaintiff herein since the plaintiff’s appointment as the customary successor with the knowledge of the defendant.”
In his defence the defendant pleaded that he is the head of the late Chief Ankai’s family and was therefore not accountable to the plaintiff. He therefore contended that it was incompetent for the plaintiff to have sued him for accounts. It must be mentioned here that the defendant’s claim to be the head of the late Chief Ankai’s family was denied by the plaintiff and this therefore became a triable issue of the case.
On the summons for direction coming on for hearing learned counsel for the parties by consent agreed to set down for legal argument the extent to which a head of family could under customary law claim immunity to account in respect of family property in his possession. This was done without prejudice to the plaintiff’s stand as against the defendant’s claim.
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In support of his contention Mr. Short for the defendant referred to the oath sworn to by the defendant in support of his application for letters of administration and argued that in that oath the defendant undertook to render accounts only when lawfully called upon to do so.
Continuing learned counsel contended that the present action by the plaintiff calling on the defendant to account to him could not be lawful because the defendant as head of the deceased’s family was clothed with immunity by customary law. For authority learned counsel referred to Sarbah’s Fanti Customary Laws (3rd ed.), p: 90 and Fynn v. Koom, High Court, Cape Coast, 20 February 1960, unreported. He therefore submitted that the present action by the plaintiff was misconceived and should be dismissed.
For the plaintiff it was submitted that there existed some situations under which a head of family may under customary law be liable to account in respect of family property in his possession and that the present action by the plaintiff was one of such circumstances under which a head of family could not successfully clothe himself with immunity as is recognised by customary law.
Developing his arguments further, Mr. Brodie-Mends for the plaintiff submitted that the plaintiff as the undisputed customary successor of the late Chief Ankai on his appointment became the head of Chief Ankai’s immediate family which was entitled to immediate use, possession, enjoyment and control of whatever property the deceased was possessed of at the time of his death. Learned counsel contended that whilst the customary law recognised the head of the wider family’s control over the deceased’s property in the absence of a duly appointed customary successor, this control ceased with subsequent appointment of a successor who became clothed with the image of the deceased and therefore the proper person to whom the deceased’s self-acquired property ought to be handed over. Counsel contended that the position of the defendant vis-a-vis the properties of the deceased was that of a caretaker and in that sense was accountable to the plaintiff who was the proper person to take the custody lawfully. Counsel did not say so in so many words but I understood him to say that the immunity of the head of family to accountability as recognised by custom should be limited to such properties which go with that status and over which the head loses control, possession and use on his disposition and not other properties which have come to his possession temporarily because a customary successor had not been duly appointed to take charge of the deceased’s property. For authority learned counsel referred to Ollennu’s Law of Testate and Intestate Succession in Ghana, Dr. Danquah on Akan Laws and Customs, Dotwaah v. Afriyie [1965] G.L.R. 257, S.C. and Akrong v. Bulley [1965] G.L.R. 469, S.C.
Sarbah in his invaluable Fanti Customary Laws (3rd ed.), p. 90 referred to by learned counsel for the defendant has stated the basic customary concept of the head of family’s immunity to accountability as follows:
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“If the family . . . find the head of the family misappropriating the family possessions and squandering them, the only remedy is to remove him and appoint another instead; . . . no junior member can claim on account from the head of the family, or call for an appropriation to himself of any special portion of the family estate, or income therefrom arising. . .”
Writing on the same concept in the Fynn case (supra) referred to by learned counsel for the defendant, Adumua-Bossman J. (as he then was) had this to say:
“This latter proposition that the head of the family cannot be called to render accounts by junior members of the family has received so much judicial recognition as to be quite common learning now.”
In Nelson v. Nelson (1932) 1 W.A.C.A. 215 at p. 216, Sarbah’s view as expressed above was quoted and was approved by the court which also drew a distinction between the position of a head of family as such and that of a person not being in the line of succession for the headship of a family had been appointed purely to the fiduciary position of caretaker for himself and others and held such a person accountable.
There is also an authority for the proposition that it was only when the head of family had been removed from office and replaced by another head that the latter could maintain an action for an account of the former head’s administration.
On this concept of immunity to accountability of the head of family to junior members of the family in respect of family properties in his hands, there appears to be a common area of agreement amongst both text writers and the case law on the subject. What appears not to be certain is the nature and identity of such family property which is covered by the immunity.
There are certain properties which belong to the wider family which are attached permanently to the position of headships of the family which properties are always held and controlled by the heads and pass on to their successors as such. There are also circumstances under which the head may by operation of law come into possession of a family property temporarily. One of such situations is where no successor had been appointed to succeed a member of family dying intestate. Under such a situation the self-acquired property of the deceased member of the family vests in the head of family or someone temporarily appointed to take charge of the property until an appointment is made. A clear distinction must be made between the two. In the latter case the position of the head in relation to the self-acquired property of the deceased is no better than any member temporarily appointed to take charge pending the appointment of a substantive successor. The rational underlying the above is that the person in temporary control of the property, be he a head or a junior member or even a stranger, loses control to the successor on the latter’s appointment and becomes liable to account to the substantive successor because his duties cease with the appointment of the latter. It
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is significant to note here that whilst the person who takes temporary control of the deceased’s self-acquired property if he be head of family loses control over such property, he does not lose control of properties originally under his control and attached to the post of headship. He loses control of such properties only on his disposition as such head. The head’s immunity to accountability therefore is customarily limited to properties attached to the post of headship and not self-acquired properties of a deceased member dying intestate which by operation of law, comes under the head’s control where no customary successor to the deceased has been duly appointed to take charge of them.
I think this is the true scope and extent of the head’s immunity. For were it otherwise, it would make nonsense of the now accepted and recognised status of the successor as the head of the immediate family of the deceased and therefore entitled to immediate use, enjoyment and control of the deceased’s property. For it would mean that the head could dissipate the deceased’s property under his control, and whilst recognising the successor’s right to take over from him when appointed will refuse to do so and claim immunity. This will be unreasonable and therefore not customary.
I therefore share the view of learned counsel for the plaintiff that vis-a-vis the self-acquired property of the late Chief Ankai the defendant in this action was in a position of a caretaker liable to account to the plaintiff. For that is the only way to put reason to the concept of the plaintiff’s right to manage and control the deceased’s self acquired property. He being the head of the immediate family of the deceased, his relationship with the defendant as far as the self-acquired property of the deceased is concerned is not that of a junior member.
I am fortified in my view that the defendant is accountable to the plaintiff by the observation of the Supreme Court in Amoabimaa v. Okyir (Consolidated) [1965] G.L.R. 59 at p. 65, S.C. which reads:
“There are three eventualities in which a family would, under customary law, be entitled to take charge and control of self-acquired property of a member of the family—a person’s self-acquired property includes a portion of family land which he has reduced into his exclusive possession; those three eventualities are (a) where the member of the family dies intestate, (b) where the member of the family becomes incapable by reason of disease of the mind, incarceration or from some other cause, of controlling or managing his own affairs, or to appoint an agent or trustee to administer the same on his behalf and (c) where the owner himself voluntarily entrusts the same to the family, e.g. where he is going abroad. In the first eventuality, i.e. upon death intestate, ownership of the property vests in the family, and the person appointed by the family to administer the same is liable to account to the family.”
The family in this context means the immediate family who are entitled to alienate the properties without the consent of members of the wider family. In my ruling therefore the objection taken by the
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defendant is hereby overruled. He is ordered to file accounts in respect of the administration of the estate of the late Chief Ankai on or before 20 March 1975. The plaintiff to falsify or surcharge such accounts filed within two weeks on being served with the same.
DECISION
Objection overruled.
Defendant to file accounts within one month.
S. E. K.
