ADJEI v. ASANTEWAH AND ANOTHER [1961] GLR 629

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 31ST OCTOBER, 1961

BEFORE: OLLENNU, J.

CASES REFERRED TO

(1) Kwakye v. Tuba & Ors. [1961] G.L.R. (Pt. II) 535

(2) Yawoga v. Yawoga (1958) 3 W.A.L.R. 309

NATURE OF PROCEEDINGS

APPEAL from a judgment of the West Akim Abuakwa Local Court in a land cum succession suit.

COUNSEL

K. A. Sekyi for the plaintiff-appellant.

D. Y. Osei for the defendants-respondents.

JUDGMENT OF OLLENNU, J.

This is an appeal from a judgment of the West Akim Abuakwa Local Court, delivered on the 21st March, 1961. The appellant, plaintiff in the local court, was the son of one Kwasi Abokyi, deceased.

The said Kwasi Abokyi was succeeded by one Kwaku Sikayena, now deceased. The first respondent is the successor to the said Sikayena. The farm in dispute was cultivated by the appellant’s said father Kwasi Abokyi.

The case put up by the appellant in the local court is that his late father made a gift to him of a farm of which the farm in dispute is a portion. Upon Kwaku Sikayena succeeding Abokyi, he litigated with him and eventually deprived him, the appellant of the farm. Some time after the litigation had terminated, the appellant became reconciled to [p.631] of [1961] GLR 629 the said Sikayena, who as successor to the appellant’s father had by customary law come to be regarded as his father. He pacified Sikayena with a sheep. Thereupon Sikayena made a gift of the said farm to him, reserving to himself the right to retain possession of this portion for a year, to apply the proceeds thereof to pay the expenses he incurred on the litigation with the appellant. The gift was made in the presence of the first respondent, and other principal members of the family of the appellant’s late father, and the appellant presented Sikayena with a bottle of Schnapps in accordance with custom signifying his acceptance of the gift. Sikayena had a motor accident and died a fortnight after he had made the gift. The first respondent succeeded him. On the expiration of the year the appellant applied to the first respondent to release the farm to him, but she refused to do so. Wherefore the appellant sued her. The second respondent was made a co-defendant to the suit upon his own application alleging that the family had transferred the successorship from the first respondent to him. It appears that the second respondent’s allegation that the family had transferred the successorship to him was a device he used to get himself joined as a party to the suit to enable him to conduct the case on behalf of the first respondent, for in his evidence he deposed that the first respondent was the successor to Sikayena.

Neither he nor any of the witnesses called for the defence gave evidence that he has at any time been substituted for the first respondent by the family as successor to Sikayena. There is evidence led on behalf of the defence which corroborates the evidence of the transaction between the appellant and Sikayena as given by the appellant and his witnesses, which should warrantthe local court accepting it. Indeed the local court magistrate did not disbelieve it. But he dismissed the appellant’s claim because he held that that gift “was unconstitutional since the land in dispute was not late Opanin Kwaku Sikayena’s self-acquired property”. Earlier in his said judgment the local court magistrate had observed that the consent of one Opanin Kwame Asante, the head of the family of Sikayena was not obtained, and that a gift made by a successor of part of the property to which he has succeeded is ultra vires.

A gift or other form of alienation of family property is valid if made by the head of the family with the consent of the principal members of the family. When the alienation by customary law is made by the head of the family in the presence of some of the principal members of the family and no objection is raised by them the presumption is that the alienation is made with the necessary customary consent, and therefore at its worst, it is only voidable, not void. It can only be declared void at the instance of the family if it is proved that in fact it was not made with the necessary consent and concurrence, and even then, only if the family act timeously. Now where the property is not ancestral property, but one which became family property only by reason of the original owner dying intestate, the person appointed successor to the original owner is the

[p.632] of [1961] GLR 629 head of the immediate family of the said deceased, the family being entitled to the beneficial interest in the estate. As between the successor and the head of the main family of which the immediate family of the deceased is a branch, it is the successor, and not the head of the main family, who is entitled to deal with the property to which he has succeeded: see Kwakye v. Tuba & Ors.1(1) and the cases therein cited. And the persons whose consent and concurrence are requisite by customary law to make alienation by the successor valid are the principal members of the immediate family not the head and principal members of the wider family generally. It is only in very exceptional cases that the head of the wider family can intervene. Applying that principle to this case, the position is that the property in dispute was self-acquired property of Kwasi Abokyi, and Kwaku Sikayena, as such successor, and not Opanin Kwame Asante the head of the main family, is the proper person to deal with the property in dispute. Now the only members of the family whose consent and concurrence, it is alleged, were not obtained are the second respondent and Opanin Kwame Asante the head of the main family. But the second respondent is by customary law not a principal member of the family while his mother is still alive unless it could be shown that the family for some special reason have accorded him, that privilege: see Yawoga v. Yawoga2(2). There is no evidence which shows that the family have conferred the status of principal member upon him. Therefore the second respondent is not a person whose consent and concurrence is necessary by law for valid alienation of the property by Kwaku Sikayena the head of Kwasi Abokyi’s immediate family. The consent of the head of the main family is not absolutely necessary.

In the case of Opanin Kwame Asante, the head of the main family, there is oral evidence led by the second respondent and another witness that the gift was made in his absence. But that evidence is contradicted by the oral evidence of the said Opanin Kwame Asante himself. He was D.W.2, and the person who appointed Kwaku Sikayena successor to Kwasi Abokyi, and the first respondent successor to Kwaku Sikayena, and entrusted her with all the properties comprised in the estate which the first respondent should have charge and control of as such successor. If he did not know of the gift made by Kwaku Sikayena to the appellant one would expect him to say so in so many words. Moreover, if it is not within his knowledge that the farm in dispute had been given away to some one as a gift, one would have expected him to include it in the estate which he handed to the first respondent upon her appointment as successor to Kwaku Sikayena. But this witness never said that he was ignorant of the making of the gift; on the contrary, he said that he was present when reconciliation was effected between the appellant and Sikayena, and when the appellant pacified Sikayena with a sheep and a bottle of gin. As to properties he handed over to the first respondent upon appointing her successor to Kwaku Sikayena, the answer he gave [p.633] of [1961] GLR 629 to a question put to him by the defendant is as follows: “All the estate of late Kwasi Abokyi and late Kwaku Sikayena excluding the land in dispute was entrusted to the defendant customarily as customary successor.” The exclusion of the farm in dispute from the estate, entrusted to the first respondent, amounts to an admission by Opanin Kwame Asante, and the whole family that that farm had ceased to be family property by valid alieanation. The local court magistrate was wrong when he held that the gift was unconstitutional or invalid. The appellant fully discharged the onus upon him to prove his case by preponderance of evidence, and judgment should have been entered in his favour. In the circumstances the appeal is allowed, the judgment of the local court is set aside including the order as to costs, any costs paid to be refunded. For that judgment the following is substituted: There will be judgment for the plaintiff for (1) declaration of title to the land with the farm thereon as described in the writ of summons, and (2) an order for recovery of possession of the said farm.

The appellant will have his costs in this court fixed at 25 guineas inclusive, and his costs in the local court fixed at £G20.

DECISION

Appeal allowed.

Judgment for plaintiff.