Division: IN THE HIGH COURT (LANDS DIVISION), CAPE
COAST
Date: 31ST JANUARY, 1959
Before: ADUMUA-BOSSMAN J.
JUDGEMENT OF ADUMUA-BOSSMAN J.
(His lordship set out the history of the matter, and proceeded):—It is clear that the trial-Court proceeded upon a complete misconception as to the identity of the family to which the properties belonged, and which could deal with them.
The late Kofi Nkum’s properties could not devolve upon, and become vested in, the wider Twidan family of which he was a member in his life time. They devolved upon, and became vested in, his immediate family group. This consisted of all who were descended matrilineally from the same womb as himself-his surviving brothers (if any), his surviving sisters (if any), and the surviving children of his sisters, dead or alive (see the dictum of Deane C. J. in Larkai v. Amorkor & ors. (1 W.A.C.A. 323 at 330); and that of Strother- Stewart J. in Santeng per Ohimen v. Darkwa & anor. (6 W.A.C.A. 52 at 53)). In the proper and true conception of the native customary law of inheritance and/or succession, it is Kofi Nkum’s family (consisting of the matrilineal descendants of his mother, or, in the absence of any such, the matrilineal descendants of his mother’s mother) who are entitled to the beneficial use and enjoyment of the self-acquired properties left by him. It is they, therefore, who are entitled to control the disposition of such properties, not the Head and principal elders of the wider Twidan family of which all the parties are members.
Does the evidence establish that the disposition of the properties to the defendant was by the immediate family group? The answer is clearly in the affirmative. The sale is admitted to be by their
Head, the successor Kwaku Nkuma, in whom the title was vested. In Santeng per Ohimen v. Darkwa Strother-Stewart J. refers to Sarbah’s Fanti Customary Law (2nd Ed.) p. 83, as follows:—
“The owner of self-acquired property can in his life-time deal with it as he pleases. . . As soon as he dies, his successor is entitled to all the property he died possessed of . . . subject to the usual rules of inheritance.” The learned Judge goes on to point out, “He has many duties to perform. He has to pay the debts of the person to whom he succeeds, and to collect all assets. He would also be responsible for holding such of the property of the person to whom he succeeds as family property, if such was its nature.”
I turn to the question of the concurrence of members of the family in the sale. From the evidence available, it appears sufficiently clear that the transactions had the concurrence necessary or requisite according to native customary law. It appears that the general sale and purchase of the properties were discussed and agreed to at one
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time, though the actual transaction in respect of each piece of land (involving inspection, demarcation, payment of price, and execution of documents) was effected separately, and at different times.
The documents evidencing the three separate sales were put in as Exhibits ‘A’ & ‘A1’ for the 1st sale in 1941, Exhibits ‘A2’ & ‘A3’ for the 2nd sale in 1942, and Exhibits ‘A4’ & ‘A5’ for the sale in 1944. On the face of them these documents bear the signatures (by marks) of persons who, according to the evidence, are brothers or sisters or cousins of Kwaku Akuma, and therefore the nephews and nieces of the deceased. The evidence further establishes that one J.W. Tsibu (uncle both of the respondent and of Kwaku Akuma the successor, and therefore presumably brother to the deceased) had full knowledge of the sales, and signed some of the transfer documents. Tsibu (if a brother), together with the nephews and nieces, would be the persons who, in the contemplation of native customary law, properly constituted the family of the late Kofi Nkum, and who are beneficially entitled to his self-acquired property. The oral and documentary evidence sufficiently establishes that they concurred in the sales, which were, therefore, perfectly valid, even though one of them (the respondent) did not know of the sales, and did not concur, because he was away in the United Kingdom. A member of a family who goes abroad does not, and cannot, expect family life to come to a stand-still whilst he is away. The rest of the family carry on without him, until he comes back to take his full share in the life of the family.
The Head and principal members of the wider Twidan family had no interest whatever in the properties left by the deceased Kofi Nkum. Their concurrence was not in anyway necessary to alienation by the successor and/or Head of the deceased’s immediate family group, tracing from his mother. The judgment of the trial-Court was based on the views
(1) that the family entitled to the properties was the wider Twidan family group;
(2) that under no circumstances could a family property be disposed of by Kwaku Akuma, the admitted successor, and
(3) that the sale without the knowledge and concurrence of the overall Head (Kwesi Abbew) and the principal elders of the wider Twidan family, was invalid.
That judgment was palpably wrong, as contrary to established native customary law.
Tamakloe & 2 ors. v. Attipoe & 3 ors. (unreported; W.A.C.A., 22nd June, 1953; Civil Appeal No. 38/52) was a case under Anlo customary law, in which those beneficially interested in, or entitled
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to, the estate of the deceased person are accepted to be his children. Some of these claimed accounts from the Heads of the wider family in respect of their control of the property of the deceased for some time before transferring it to one of the children who was appointed successor. The heads appealed against an order to account. Coussey J. said:—
“I can see no difference in principle in their liability to account both by English Law and by the Customary Law, once it is appreciated that the 1st and 2nd Defendants have no beneficial interest in the estate of the deceased, and that their true function as the Heads of the larger family is advisory and protective, i.e. to watch the interests of the children, and if necessary to convene meetings in matters affecting the deceased’s estate. This is reflected in the fact that the successor is receiving the rents of the other properties of the deceased.”
But there is another aspect in which the judgment of the trial-Court offends against native customary law, as modified by the application of equitable rules administered by the Supreme Court. It is now well established law that a claim to set aside the sale of family property on the ground that it was without the consents required by customary law, must be made “timeously,” and “under circumstances in which, upon the rescinding of the bargain, the purchaser can be fully restored to the position in which he stood before the sale.” This rule was enunciated by the Full Court in Bayaidie v. Mensah (Sar. F.C.L. 150), and has since been applied in several later cases, notably Manko & ors. v. Bonso & ors. (3 W.A.C.A. 62). It is clear that a claim made in 1957 to set aside sales made in 1941, 1942 and 1944 can hardly be said to be a “timeous claim.” It would clearly be inequitable, and contrary to the rule in Bayaidie v. Mensah, to entertain and allow such a claim.
DECISION
For the foregoing reasons, I am satisfied that the appeal must be allowed. It is allowed accordingly, and the judgment of the trial-Court is set aside. In place thereof judgment is entered for the defendant, with costs of the appeal.
