HIGH COURT, ACCRA
DATE: 9TH APRIL, 1962
BEFORE: JIAGGE, J.
NATURE OF PROCEEDINGS
ACTION for recovery of family properties and for accounts.
COUNSEL
Y. Asare for G. Koranteng-Addow for the plaintiff.
Defendants in person.
JUDGMENT OF JIAGGE J.
The plaintiff’s claim against the first defendant is for recovery of possession of the Osu Tetteh family lands at Kokomlemle and houses Nos. C.876/4, C.813/4, C.730/4 which according to the plaintiff are properties of the Osu Tetteh family. The plaintiff claimed perpetual injunction against the first defendant restraining him from dealing or interfering with the Osu Tetteh family properties. The plaintiff further claims against the first and second defendants a declaration of title to house No. C.674/4 which according to plaintiff was built for the second defendant by the first defendant with the proceeds from the sale of Osu Tetteh family lands.
The plaintiff and the defendants are the descendants of Osu Tetteh and the plaintiff has taken this action in his capacity as the accredited head of the Osu Tetteh family. The plaintiff claimed he was appointed head of the family at a meeting of the principal members of the family on the 24th May, 1961. He tendered exhibit A as evidence of this appointment and also of his power of attorney to prosecute this case on behalf of the family. Eleven names appear on exhibit A which reads: “We the signatories hereunder acting for ourselves and as the accredited elders of the Osu Tetteh family of Accra, now sitting at a meeting convened for the purpose of appointing one of the members of the family to officiate and carry out the duties and functions of head of family of the Osu Tetteh family of Accra following the sudden death of our accredited head of family the late Nii Alfred Quaye Ofori in the afternoon of the 23rd day of May, 1961, have after serious consideration resolved and do hereby resolve that D. S. Ofori our attorney during the illness of the said late head Nii Alfred Quaye Ofori, be and is hereby appointed acting head of Osu Tetteh family of Accra with full authority to prosecute and defend any law suit in which the family is already involved or shall become involved, and also to act for and on behalf of the family in all manner of things. In witness whereof we have hereunto set our signatures and marks dated at Accra the 24th day of May, 1961.” Under this are seven thumb-prints against names which form signatures.
[p.257] of [1962] 1 GLR 255
The first defendant raised objections to this document exhibit A on the ground that: “the people who made the appointment were not the proper people”. It was pointed out to the first defendant by the plaintiff that the people who appointed the first defendant in exhibit I were the very same people who appointed the plaintiff except that some of those who appointed the first defendant were dead at the time of the appointment of plaintiff and that all the people who signed exhibit A were accredited elders of the Osu Tetteh family. The first defendant claimed that Osu Tetteh the originator of the family had five wives and the children of each of the wives formed a branch of the Osu Tetteh family and unless the elders of each of these five branches approved of the appointment, the plaintiff could not be head of family. The first defendant claimed that neither he nor his mother, the second defendant were invited to the meeting at which the appointment was made.
In reply to this plaintiff pointed out that when the late Ofori was being appointed head of family, the first and second defendants were invited. The second defendant said she could not attend the meeting but that she would abide by whatever decision was taken. The first defendant said he was not prepared to meet with fools and refused to attend the meeting. After the appointment of the late Ofori as head of family neither the first defendant nor the second defendant would have anything to do with the family. The first and second defendants were therefore not invited when the plaintiff was appointed.
Madam Maku Dowuona was the seventh witness called by the first defendant and she said: “I was present when the plaintiff was appointed head of the Osu Tetteh family after the death of the late Ofori … I gave my full support to the election of plaintiff as head of family. I am one of the principal members of the Osu Tetteh family”. Earlier on she had said: “It is true that Osu Tetteh had five wives, the children forming five different branches of the family”.
Under cross-examination she said that Oyo Quartey, Mr. Welbeck and herself were principal members of three of the five branches of the Osu Tetteh family. That they all took part in the appointment of plaintiff as head of family. She said also that the plaintiff came from still another branch of the family. According to the defendant’s seventh witness four branches of the Osu Tetteh family took part in the appointment of the plaintiff as head of family. The second defendant is a principal member of the fifth branch of the family; according to this witness: “The second defendant arrived after the plaintiff had been installed as head of family. To my knowledge the second defendant
raised no objection to the appointment of the plaintiff as head of family”. It would seem, therefore, that the only person who objected to the appointment of the plaintiff as acting head of family was the first defendant. I am satisfied that the plaintiff is the acting head of family and was properly appointed. The plaintiff is also the right person to take action in this case.
It is common ground that the first defendant Wilkinson Sai Annan was appointed acting head of family and given power to prosecute on behalf of the family all those who trespassed on the family properties. He was appointed after the death of Madam Kwaley Tetteh who was head of the family in 1948 and had started litigation about family lands on behalf of the family. The first defendant was appointed after her death and substituted for her.
[p.258] of [1962] 1 GLR 255
The first defendant prosecuted on behalf of the family and obtained judgments in favour of the family.
The first defendant in his evidence about the series of court cases he had to deal with on behalf of the family said: “The burden was carried by Lamptey, myself and plaintiff. We were the only ones who came to the meetings”. Earlier on he said: “Everyone was afraid he would be asked to contribute money towards the litigation”.
The plaintiff claimed that the family gave the first defendant £G200, for since he took up the prosecution on behalf of the family he was no longer able to do his work as a tailor and the £G200 was for his maintenance. The first defendant did not deny receiving the £G200. After the various litigation, the first defendant received from the family the customary thanksgiving gift of one sheep, one bottle of whisky, one bottle schnapps, six bottles beer, three bottles lemonade, one piece (twelve yards) of cloth and cash £G5 5s.
The first defendant admitted receiving the gift. The plaintiff claimed that the first defendant offered to render to the family an account of his stewardship. He, however, rendered no account but went on selling family properties and making use of the money. The family therefore appointed the late Ofori as head of family to take over from the first defendant. The first defendant took an action against the late Ofori claiming that he was not properly appointed. This matter was withdrawn from court and settled by P.W.3, Nii Noi Dowuona II, Paramount Chief of Osu. It was held that the late Ofori was properly appointed head of family. The first defendant was asked to render accounts to the family.
He brought his accounts to the meeting with Nii Noi Dowuona and his counsellors, but was unable to explain the items. The first defendant asked that the family should go with him to the family house and he would explain the accounts there. This was agreed upon and the parties left. The first defendant, however, refused after that to render accounts to the family but went on disposing of family property. The family therefore instituted this action against him.
The first defendant admitted selling family lands to a total value of about £G10,000. He claimed that in view of the judgment of Jackson J. the Korlewebi as overlords could not sell Osu Tetteh family land over and above heads of his family. He therefore came to an agreement on behalf of his family with the Korlewebi whereby he paid one-third of the purchase price of any family land sold to Korlewebi. Plange D.W.4 admitted receiving some £G2,000 to £G3,000 from the first defendant on behalf of the Korle priest.
The first defendant claimed that he spent the two-thirds of the £G10,000 on litigation and as pension for himself and his family. The first defendant while acting for the family, took action against certain people who built on the Osu Tetteh family land and judgment was awarded in his favour. The first defendant collected rent from these houses but again failed to render account to the family.
The plaintiff claimed that judgment was given in favour of the Osu Tetteh family against P.O. Ankrah, J. C. Manu and Ansah Sasraku. These judgments were tendered as exhibit E1 and E2. These three people built houses on Osu Tetteh family land. The houses became family property after the judgments and the first defendant, it was alleged, collected the rent.
[p.259] of [1962] 1 GLR 255
The plaintiff alleged further that the first defendant built a house for his mother the second defendant on family land; that the value of the house was between £G2,000 and £G3,000. The plaintiff stated that the first defendant was a tailor by profession but that since 1950, he had not worked for a living and that the money he spent on building the house for the second defendant was part of the proceeds of the family land he had sold after the judgment. The family therefore claimed the house.
The first defendant in his evidence in chief said: “I took possession of Ankrah’s house when the judgment exhibit E was given. There were European tenants in the main house. The boys’ quarters were not occupied.” About Mann’s house the first defendant said: “I called a family meeting in 1956 and asked to be permitted to complete the building Mann started on our family land which came to us by virtue of exhibit E, for my own use. I was granted this permission. I prepared a building permit in the name of my children on the land and buildings that came to us when Mann lost his case.” He tendered these plans as exhibit 4 and continued: “It is now house No. C.730/4 and is one of the houses now being claimed by plaintiff”. The first defendant said later that he was living in house No. C.730/4. About the house the first defendant built for the second defendant, the first defendant said: “My brother gave me £G1,500 to build a house for my mother on the family land granted to her.
Later he gave me another £G1,000. My mother was present when he gave me the second amount of £G1,000. I spent the £G2,500 in building the house No. C.674/4 for my mother. This is also being claimed by the family.” The first defendant said further: “I have never at any time refused to account to the family for my stewardship.” In answer to a question, the first defendant said: “I have no proper record of all the plots of land I sold from our family land. I collected a total of about £G10,000 from people who bought family land. I paid one-third of the £G10,000 to the Korlewebi. I paid a total of £G3,333 6s. 8d. to Mr. Plange for the Korlewebi. The rest of the £G10,000 I spent on litigation.”
Under cross-examination, the first defendant said: “It is true that I said I used the rent from these buildings as my pension and gratuity and for maintaining my ten children. The family should have discussed gratuity and pension for me and they did not. I used the rent at that time for that. That was in relation to house C.876/4. Imoru’s house is C.813/4. Yes, this yields rent £G15 a month but the tenant was in arrears . . . I took an action against the tenant for arrears of rent about £G200.”
Under cross-examination the first defendant admitted that his brother gave him the money in 1948, long before he became acting head of family. He admitted that the money was to build for his brother a house at Adabraka and that he had not built that house. He claimed his brother gave him another £G700 in 1956 for the same purpose. It was suggested to the first defendant that because he failed to build his brother a house at Adabraka and squandered the money he and his brother ceased to be friends. The first defendant denied this allegation. He, however, admitted earlier on that this brother of his was living in
[p.260] of [1962] 1 GLR 255
an old corrugated iron sheet shed on part of the family land. The first defendant admitted also that the shed was made by his late wife for her maidservant.
It is hard to believe that this brother who provided the money for the second defendant’s house should on his retirement live in an old corrugated iron sheet shed built by the first defendant’s late wife for her maidservant. Both the first defendant and the second defendant, brother and mother respectively of the man who lives in the shed have good buildings to live in. The first defendant under cross-examination promised to call this brother in question to give evidence on his behalf, The first defendant called ten witnesses, took six adjournments since the defence was opened, and yet the brother in question was not even subpoenaed to give evidence.
The ninth witness called by the first defendant in answer to a question said: “I cannot tell why the first defendant’s only brother is living in a shed and not in the house of either the first defendant or second defendant. I have never heard that the first defendant’s brother ever built a house. He owns no building and that is why he lives in a shed.” The second defendant under cross-examination said: “There are six rooms in the house No. C.674/4. My son Torgbor lives in a corrugated iron sheet shed.
He lives in the shed because when he came to Accra, his father’s house had been leased out. I do not know who let his father’s house.” She said Torgbor was living in a shed to be near his brother, the first defendant, and that Torgbor was ill. She admitted: “The first defendant lives in a cement block house and not a shed.”
I have considered the evidence on house No. C.674/4 carefully and I am satisfied that it was not built with money provided by Torgbor. I am satisfied that house No. C.674/4 was built by the first defendant with part of the proceeds from the sale of family property. The first defendant admitted he did not work for his living since he took up the conduct of the Kokomlemle cases.
In relation to house No. C.730/4, the house in which the first defendant now lives, the evidence that he completed the building started by Mann with the permission of the family for the use of the first defendant himself and his children was not denied. The family therefore cannot now claim house No. C.730/4, and I hold that the first defendant should keep possession of this house. After careful consideration of the evidence as a whole I am satisfied that houses No. C.876/4, C.813/4 and C.674/4 are all properties of the Osu Tetteh family of Accra and I give judgment to the plaintiff for the recovery of possession of these three houses. The first defendant is to file an account of all the monies that came to his hands through the sale of family lands and the rent collected from the houses C.876/4 and C.813/4. The first defendant is to file his account on or before the 7th May, 1962. The receiver and manager is discharged as from the 30th April, 1962. I award costs of 200 guineas.
DECISION
Judgment for the plaintiff.
