DIVISION: IN THE SUPREME COURT
DATE: 20TH MAY, 1963
BEFORE: VAN LARE, MILLS-ODOI AND AKUFO-ADDO JJ.S.C.
CASE REFERRED TO
Lartey v. Mensah (1958) 3 W.A.L.R. 410.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court, Sekondi, dismissing the plaintiffs’ action for an injunction
against the defendant and the delivery to them of certain family documents in the defendant’s possession.
The facts as set out in the headnote are taken from the judgment of Mills-Odoi J.S.C.
COUNSEL
R. J. Hayfron-Benjamin, Snr. for the appellants.
Dr. J. B. Danquah for the respondent.
JUDGMENT OF MILLS-ODOI J.S.C.
[His lordship recited the facts and continued:] It is in pursuance of the alleged removal of the defendant
from office as head of family and of his refusal to deliver to the family the properties under his control
that this action was brought by the first plaintiff in his capacity as head of family and the other plaintiffs
as elders of the said family claiming against the defendant an order for:
“(i) Perpetual injunction restraining the defendant, his servants or agents from collecting any further rents
from tenants living in houses Nos. 39/12, 40/12, 34/13, Sixth Street, Sekondi, or interfering in any
way with the management and control of the houses specified and any other property or the Ewan
Kweku Anona family. (ii) Delivery to first plaintiff, the newly elected head of the said family, of the following:
(a) All documents of title in respect of the said three houses together with the building plans of
same and in particular the agreement of lease executed between the family and U.A.C. Ltd., in
respect of house No. 39/12, Sixth Street, Sekondi. (b) The bank book and all books of account belonging to the family.”
[p.458] of [1963] 1 GLR 456
In his statement of defence the defendant contended that “he is still the recognised head of the family . . .
and that none of the alleged customary charges . . . have been or could be proved against him.”
The main point therefore that fell for determination in the trial was whether the defendant who was the
head of Ewan Kweku Anona family had been removed from office at a family meeting held on the 16th
July, 1961, properly constituted for that purpose. The learned trial judge dismissed the plaintiffs’ claim on
the ground, inter alia, that the family meeting which was held on the 16th July, 1961, purporting to
depose the defendant as head of the family was not properly constituted in accordance with custom. He
followed the principle in the case of Lartey v. Mensah1 and gave judgment for the defendant. It is from
that judgment that the plaintiffs have appealed to this court.
The main ground of appeal argued by learned counsel for the appellants in this court is that:
“The passage of the judgment quoted from Lartey v. Mensah 3 W.A.L.R. 410 deals with notices convening a
family meeting for the purpose of appointing or electing a new head of family. That principle of customary
law will not necessarily apply to all cases where a head of family is to be deposed for misconduct and gross
mismanagement.” In support of his contention, learned counsel for the appellants, Mr. Hayfron-Benjamin, referred to
Sarbah’s Fanti Customary Laws (1st ed.), p. 35, and urged vehemently that a head of family could be
removed from office in his absence on the ground of misconduct without first serving on him a notice.
Learned counsel for the appellants maintained during the course of his argument that the family meeting
which was held on the 16th July, 1961, was properly constituted in that all the principal members were
present when the defendant was removed from office and that the finding of the learned trial judge that
four elders of the family were not notified and therefore did not attend the meeting was erroneous. He
further maintained that the defendant was not, as he had alleged, at a funeral at Enno on the 16th July,
1961, when he was removed from office and therefore his absence from the family meeting constituted
grave disrespect towards the family. Dealing first with learned counsel’s submission that the meeting held on the 16th July, 1961, was
properly constituted and therefore the learned trial judge’s finding that four elders of the family were
absent at that meeting because they were not notified, I would refer to the principle of customary law
enunciated by Sarbah in his Fanti National Constitution (1906 ed.), p. 42:
“The right of removing a ruler belongs to the people immediately connected with the stool; in the case of the
head of a family the right is in the senior members, and the act of the majority is binding on the rest.”
[p.459] of [1963] 1 GLR 456
Applying this principle to the instant case, the right of removing the defendant from office was vested in
the principal heads of the family and the act of the majority would be binding on the rest. The crucial
matter for consideration therefore is whether the meeting of the 16th July, 1961, was attended by all or by
a majority of the principal heads. It is clear from the evidence of the defendant that the family meeting which was held on the 9th July,
1961, was not properly constituted according to custom i.e., that the meeting was not representative and
that some principal members, whose presence was indispensable, were absent. His evidence challenging
the constitution of that meeting reads as follows: “On the 9th July, 1961, I attended the meeting with my friend Mr. Dadzie and I found that the majority of the sectional heads of the family from the villages did not attend. It was the sectional heads of the family who
appointed and installed me as head of the family. There are eight sectional heads of the family and only three of them attended the meeting on the 9th July, 1961. It is the duty of the sectional heads of the family who are
to investigate charges against a member of the family including the head of the family. When I saw only
three sectional heads of the family had attended the meeting on the 9th July, 1961, I asked where were the
other five sectional heads of the family and the second plaintiff said that they did not attend. As a result I told
them that they should adjourn the meeting so that all the sectional heads could attend.”
The three sectional heads recognised by the defendant as being present at the meeting on the 9th July,
1961, were the first, second and third plaintiffs. He did not acknowledge the fourth and fifth plaintiffs as
sectional heads. He regarded them as members of the family. The remaining five principal members of the
family were Ekra Kwamina of Enno, Kwesi Mensah of Sekondi, Gyame Kakraba of Mpintsin, Kwabena
Wu of Ketan and Kwesi Nworokow of Nkroful. Apart from Kwesi Nworokow all these sectional heads
gave evidence in the court below on behalf of the defendant and testified that they were not summoned to
attend any family meeting either on the 9th July, 1961, or on the 16th July, 1961, and that in fact they
never attended any meeting on these dates. At the trial their status as sectional heads was not called in
question by the plaintiffs. Ntaah Esson, an independent witness called by the plaintiffs to substantiate their claim, gave evidence
admitting that Ekra Kwamina was not present at the family meetings on both occasions. He stated, inter
alia, as follows: “Ekra Kwamina is the elder of our family living at Enno. Ekra Kwamina never came with me to the family
meeting on the 9th July, 1961. Ekra Kwamina did not attend the family meeting . . . because he sent me to
represent him at the meeting . . . On the 16th July, 1961, Ekra Kwamina sent me to represent him at the
family meeting and I attended. Ekra Kwamina said they were sharing a family debt for the funeral expenses
of Ekua at Enno so he could not attend.”
[p.460] of [1963] 1 GLR 456
It became apparent from the evidence of Ekra Kwamina that he did not ask the plaintiffs’ witness, Ntaah
Esson, to represent him at any family meeting, neither was he (Ekra Kwamina) aware of any family
meeting either on the 9th July, 1961, or on the 16th July, 1961. At the trial court he deposed that:
“I know Ntaah Esson who lives at Enno. I did not know of any family meeting to be held on the 9th July,
1961. I was busy with the funeral. I saw Ntaah Esson on the 9th July, 1961. He was with us throughout the
whole day at the funeral. I did not send Ntaah Esson anywhere. I never instructed Ntaah Esson to represent
me at any meeting on the 9th July, 1961, or on the 16th July, 1961.
Still convinced that the meeting on 16th July, 1961, was not property constituted, and in order to be more
certain of his conviction, the defendant summoned a family meeting shortly after his alleged deposition
and four of the sectional heads who attended that meeting, viz., Ekra Kwamina (sectional head of Enno),
Kwasi Mensah (sectional head for Sofokrom), Gyame Kakraba (sectional head for Mpintsin) and
Kwabena Wu (sectional head for Ketan) told him that they were not summoned to attend any family
meeting on the 16th July, 1961, and in fact they were not present at that meeting. It is not surprising
therefore that the learned trial judge held that “Ekra Kwamina, Kwasi Mensah, Kwame Tonto and
Kwabena Wu . . . are elders of the family and they were not notified of meeting on the 9th and 16th July,
1961,” which finding is amply supported by evidence. I am of the opinion that in the instant case the defendant was removed from office without notice of the meeting to all the sectional heads of the Ewan Kweku Anona family. The act of the sectional heads who
were present at the meeting on the 16th July, 1961, cannot therefore be binding on the rest; and unless it
was acquiesced in by the rest, it is ineffective. Learned counsel for the appellants has urged vehemently and forcefully before this court that the defendant was not at Enno village on the 16th July, 1961, for the funeral ceremony of Ekua, a deceased member of the family, and that his absence at the meeting on the 16th July, 1961, constituted grave disrespect for the other sectional heads of the family who were entitled to remove him in his absence. In support of this submission, Mr. Hayfron-Benjamin referred to Sarbah’s Fanti Customary Laws (1st ed.), p. 35, which reads as follows:
“Where the penin [father or head of family] suffers from any mental incapacity, or enters upon a course of
conduct which, unchecked, may end in the ruin of the family, or persistently disregards the interests of the
family, he can be removed without notice by a majority of the other members of the family, and a new
person substituted for him. Before considering the forcefulness of learned counsel’s argument on this matter, one crucial and
pertinent question is: Was the defendant
[p.461] of [1963] 1 GLR 456
bound to be at Enno at all for the funeral of Ekua? The answer to this question is given by Sarbah in his
Fanti Customary Laws at p. 36:
“On the decease of a member, all persons who are members of the family take part in making the funeral
custom and contribute in defraying its expenses, for which they are primarily liable . . . It is usual for the
local senior member of the clan, with the head of the family of the deceased, to preside over the funeral
custom, to receive the expression of condolence from sympathising neighbours, and to accept funeral
donations.”
It would seem that the two principal members of the family who were required by custom to be present at
Ekua’s funeral were the head of the family and the local senior member of the clan, i.e., the defendant and
Ekra Kwamina respectively. That the defendant was bound by custom to be present at Enno on the 16th
July, 1961, and to participate in the celebration of Ekua’s funeral was also borne out by the evidence of
Nana Bray VIII, the second plaintiff, who under cross-examination by learned counsel for the defendant
at the trial deposed as follows:
“On the 16th July, 1961 [meaning the 9th July, 1961] Ekua of Enno, a member of the family died before the
meeting was held on 16th July, 1961, at 9 a.m. and all the members of the family knew of her death before
the meeting on the 16th July, 1961. Ekua died about three weeks prior to the 16th July, 1961, and the final
funeral celebrations were to take place on the 16th July, 1961, at about 2 p.m. at Enno. Enno is about six
miles from Sekondi . . . The head of the family [who was then the defendant] had to be present at Enno on
the 16th July, 1961.”
It is in conformity with the observance of custom that the defendant by virtue of his position as head of
family had to attend the funeral at Enno on the 16th July, 1961, and the fact that he was actually present
at Enno on this date came out clearly from his evidence at the trial which stood unchallenged. It reads:
“On the 16th July, 1961, I did not attend the meeting because I as head of the family had to attend the final
funeral ceremony when the members of the family were to share the funeral debt. I left for Enno at 5.30 a.m.
None of the plaintiffs attended the funeral ceremony. The funeral ceremony finished at 5 p.m. and I returned
to my house in Sekondi.”
The defendant’s absence at the family meeting on the 16th July, 1961, therefore was not without
justification. Turning now to Mr. Hayfron-Benjamin’s submission that a head of family could be removed, on certain
grounds, in his absence and without notice, it would seem that such a removal would be invalid and
ineffective unless it was made by a majority of the family and on notice not only to all the principal
members but also to the head of the family who would be affected thereby.
The head of family occupies a very important position in the family. He has control over the family properties and over all the members of the family and the issue of such members. He is vested with
authority to manage and direct the affairs of the family. As such, he is the natural
[p.462] of [1963] 1 GLR 456
guardian of every member within the family. His position vis-a-vis a ruler is analogous to that of the pater
familias in Roman law—see Sarbah’s Fanti Customary Laws (1st ed.), pp. 34-35. It will be out of tune
therefore to accept the proposition that a person of such standing in the family could be removed from
office without notice. I am of the opinion that such a view will be contrary to natural justice, equity and
good conscience. According to custom the head of a family is appointed by the principal members of the family. They are
also cloaked with authority to depose him, but the deposition will be invalid unless a complaint is lodged
against him and he is summoned to answer it . The complaint must show what offences the head of family
has committed against the family in order to afford him an opportunity to meet them. If the complaint is
proved he may be removed by a majority of the principal members of the family present at the meeting.
But where the head of family who is summoned by the principal members of the family to attend a family
meeting to answer the complaint against him fails to attend the hearing, and does not give good reason for
his absence, he may be removed. It is of great importance also that all the principal members of the family
should be invited to the meeting because any decision taken is by the majority of the principal members
attending the meeting. In the instant case, and as Dr. Danquah, learned counsel for the defendant, rightly submitted in reply, the
defendant who failed to attend the family meeting at the 16th July, 1961, gave a good reason for his
absence, viz., that at that crucial moment he was at Enno, a village about six miles from the meeting place
at Sekondi, performing an important family function, which he was bound to do by virtue of his position
as head of family. Even if the explanation which the defendant gave for his absence at the family meeting
at the 16th July, 1961, was found to be unsatisfactory, which was not so in this case, I have already
expressed my opinion that that family meeting was not properly constituted, and was therefore invalid.
As already stated, the main ground of appeal argued by learned counsel for the plaintiffs in this court is
that the case of Lartey v. Mensah2 upon which the learned trial judge based his judgment deals only with
notice convening a family meeting for the appointment of a head of a family; the procedure, Mr.
Hayfron-Benjamin then submitted, is different when a head of family is to be deposed. It therefore
becomes necessary at this stage to set out in detail that part of the judgment which has been made the
subject of criticism. It reads thus3: “According to native custom the head of a family is appointed at a meeting of all the accredited elders of the family summoned for that purpose. The meeting at which an appointment is to be made should be convened
for that purpose and notice of it should be given to all members of the family
[p.463] of [1963] 1 GLR 456 entitled, by custom, to participate in the appointment. If then some elders stay away from the meeting, those who do attend can make an appointment in the absence of the former. Where notice given to the members of
the family shows that some particular business is to be transacted at a meeting, for example the settlement of
disputes, and a head is appointed at that particular meeting, that appointment of a head is null and void, prior
notice of the appointment not having been given to all concerned. A member of the family may not be
interested in the settlement of disputes between other members of the family but he has by custom an
inherent right to a say in the appointment of the head; and it is unjust that some only of the members of the
family should appoint the head when others have not had an opportunity of being heard on the matter.” After the learned trial judge had held that the witnesses for the defendant were elders of the family and that they were not summoned to attend the meetings on the 9th and 16th July, 1961, he went on to apply the law enunciated by Ollennu J. (as he then was) in Lartey v. Mensah (supra) to the instant case as follows: “Moreover the meeting was summoned for the 9th July, 1961, and adjourned to the 16th July, 1961, but there
is no evidence that notices were sent out informing the members of the family that the main purpose of the
meeting was to depose the defendant as head of the family. Furthermore the letter, exhibit A [meaning
exhibit E], did not inform the defendant that the purpose of the meeting was to depose him as head of the
family. The main purpose of the meeting according to exhibit E was for the defendant to answer the charges
levelled against him. It was only if the charges were proved against the defendant that he could properly be
removed as head of the family.”
The learned trial judge fell into grave error when he held that exhibit E should have stated that the main
purpose of the meeting which the defendant and the members of the family were summoned to attend on
the 9th July, 1961, (which was adjourned to the 16th July, 1961) was to depose the defendant as head of
family, for, as he himself stated in the latter part of his judgment, “it was only if the charges were proved
against the defendant that he could properly be removed from office as head of family.”
Learned counsel for the appellant submitted, and rightly so in my view, that it is not necessary to state in
the notice that the meeting is being convened for the purpose of deposing the head of family, because
nobody would know whether the head would be removed until the charges preferred against him were
proved. It is worthy of note that Lartey v. Mensah (supra) applies only to cases where the head of family
is to be appointed. In the case of the appointment of head of family, the headship must as a matter of
course first become vacant to the knowledge of the family. The appointment is then made at a meeting of
the council of the family, consisting of such of the elders or principal members as accept the invitation to
the meeting. However, if notice of the meeting was given to all the principal members who are entitled to
be invited to it, an appointment made at the meeting would be valid and effective notwithstanding the
absence of some of the principal members from the meeting.
[p.464] of [1963] 1 GLR 456
The judgment of the learned trial judge was based on wrong application of the law in Lartey v. Mensah
(supra) which cannot be supported. But a court of appeal is entitled to uphold a judgment, if proper
grounds exist on the record to justify the judgment, even though it cannot be supported for the reasons
given by the court which gave it. I have already stated that the meeting which was convened by the family
on the 16th July, 1961, and which purported to depose the defendant was not properly constituted in
accordance with custom in that notice of the meeting was not given to all the principal members of the
family. The decision taken at that meeting alleging that the defendant had been deposed as head of the
Ewan Kweku Anona family is therefore rendered nugatory.
For these reasons, I would dismiss the appeal.
JUDGMENT OF VAN LARE J.S.C.
I agree.
JUDGEMENT OF AKUFO-ADDO J.S.C.
I also agree.
DECISION
Appeal dismissed.
J.D.
