Division: IN THE SUPREME COURT
Date: 27 JANUARY 1964
Before: SARKODEE-ADOO, OLLENNU AND BLAY JJSC
JUDGMENT OF BLAY JSC
Blay JSC delivered the judgment of the court. This is an appeal from the judgment of the Land Court, Cape Coast, presided over by S. A. Attoh, Esquire, Commissioner of Assize and Civil Pleas, as he then was, whereby he dismissed the plaintiff’s claim to have set aside the sale of a piece of land to the fourth defendant by the first defendant.
The plaintiff, now appellant, claimed that he is the head of the heritable blood of chief Kweku Arhin I, Twidan family of Cape Coast. He alleges that the piece of land sold by the first defendant (now respondent) to the fourth defendant, was the self-acquired property of late chief Kweku Arhin I and that as the said chief died intestate the land became the family property of the heritable blood members of his family. The said land had been sold by the first appellant to the fourth defendant (now second appellant) without the knowledge and consent of the plaintiff or any of the immediate heritable blood members of chief Kweku Arhin I, by a deed of conveyance dated 27 October 1956. Wherefor the appellant claimed that the contract of sale be set aside on the ground that the said contract of sale was null and void by customary law. This claim by the appellant was resisted by the respondents on the following main grounds:
(1) That the appellant is not the head of the heritable blood of chief Kweku Arhin I; further that the said chief Kweku Arhin I had no family at Cape Coast except his relations born and domiciled at Cape Coast.
(2) That the first respondent being the occupant of the family stool of chief Kweku Arhin I is also the head of the Cape Coast section of the family.
(3) That all the members of the family of late chief Kweku Arhin I owe allegiance to the occupant of the principal stool at Mumford.
(4) That chief Kweku Arhin I having died intestate whatever property he acquired while on the stool and not earmarked as private property, became stool property after his death, and came directly under the control of his successors on the stool.
(5) That the first respondent being the occupant of the family stool at Cape Coast, had the right with the consent of the principal members of the family, to sell the land to meet family commitments.
(6) That the sale of the land was in accordance with the requirement of customary law and therefore not liable to be set aside.
On the hearing of the summons for directions, the following issues were agreed upon:
(1) Whether the plaintiff (appellant) is the present head of the heritable blood of chief Kweku Arhin I Twidan Family of Cape Coast.
(2) Whether the said contract of sale was entered into by the defendants (respondents) with the consent of the immediate blood of chief Kweku Arhin I, or not.
(3) Whether the said contract of sale is null and void according to native custom and law.
The facts of the case as appear on the record of proceedings may briefly be summarised as follows: One Kwamina Awortwi, a native of Mumford or Dwemoh who subsequently migrated to Cape Coast, became so influential that he was created chief by the then Omanhene of Cape Coast, Nana Kweku Atta. When Awortwi died members of his family at Mumford or Dwemoh, performed the customary funeral rites and elected Kweku Arhin as successor. Kweku Arhin became known as chief Kweku Arhin I of Cape Coast and continued to live there with his sisters, one of whom was the mother of the appellant. Arhin I, it appears became a very important chief at Cape Coast and acquired considerable wealth before his death. On the death of Arhin I again the family at Mumford or Dwemoh and the family group at Cape Coast elected one Gordon as successor on the stool at Cape Coast, who became known as Arhin II. On the death of Arhin II, the present first respondent was appointed successor, again in the usual manner at Mumford or Dwemoh, but it appears without the consent of the appellant and the Cape Coast group led by one Kobina Pobee his brother who gave evidence in this case as the appellant’s first witness. On the showing of this witness he and the Cape Coast group started litigation with the first respondent immediately after his enstoolment and it became necessary for the head of the main family at Mumford or Dwemoh, to proceed to Cape Coast to intervene. This witness admitted he took possession of the keys and all title deeds of properties owned by Arhin I during the illness of Arhin II and after the death of Arhin II, he also took possession of all the moveable properties in the house and has refused to hand them over to the first appellant despite a court order on him to do so. These properties consisted of four gold chains, five gold finger rings, three gold bangles, one gold trinket box, one buta bead chain, two-and-a-half bags of silver coins, two bags of gold sovereigns and one pot of gold dust, ten bags of currency notes and five bags of assorted coins.
This Cape Coast group of the family also purported to have destooled the first respondent without consulting the main family at Mumford or Dwemoh and even went so far as to say that they have severed all connections or cut ekar with the main family. All the witnesses called at the trial by the appellant were members of the Cape Coast group of the family and they all claimed that they had not been consulted by the respondent before the sale of the land which they claimed to be the self-acquired property of chief Arhin I.
The first respondent on the other hand gave evidence substantially in support of the averments contained in his statement of defence. He maintained that he did not feel obliged to consult the appellant and his Cape Coast group because they had refused to co-operate with him and had gone to the extent of disowning him as the rightful occupant of the family stool at Cape Coast. He also called the head and the linguist of the main family at Mumford and Dwemoh to confirm that the sale of the land was with the consent and concurrence of the family.
The learned commissioner after a careful examination of the evidence before the court and on the authority of Sarbah and decided cases, made the following findings:
“(a) That the plaintiff is not the head of chief Arhin I Twidan family of Cape Coast.
(b) The said late Arhin I Twidan family of Cape Coast is a subordinate stool family of the Mumford or Dwemoh stool.
(c) That the stool occupied by late Arhin I at Cape Coast was and is a family stool.
(d) That on death intestate of Arhin I his self-acquired property became ancestral or family stool property as opposed to ordinary family property and vested in the occupant of the stool.
(e) That the first defendant is the present occupant of the Twidan family stool of Cape Coast and the head of that family.
(f) That the Cape Coast branch being subordinate to Mumford stool owes allegiance to the Mumford stool.
(g) That the conveyance, exhibit A, was properly executed by first defendant and the senior members of the Mumford branch according to native customary law.
(h) The executing parties are the proper persons to execute the conveyance, exhibit A, according to native customary law being all Ena-Mba.
The claim of the plaintiff is therefore dismissed and judgment is entered for first and fourth defendants with costs assessed as follows: Counsel for first defendant 75 guineas. Counsel for fourth defendant 50 guineas. Other costs to be taxed including the trial before the Municipal Court, Cape Coast.” The appellant being dissatisfied with the above findings of the learned commissioner has appealed to this court on the following grounds:
“(1) Because the learned judge1[sic] of the land court was wrong in holding that the first
defendant-respondent herein is the occupant of the stool created by Awortwi of Mumford in Cape Coast and therefore entitled to alienate the same.
(2) Because the judgment is against the weight of evidence.
(3) Because it is only members of Arhin I’s family who are entitled by native customary law and usage to alienate the property in dispute; and consequently exhibit A is invalid and is liable to be set aside.
(4) Because the learned judge2[sic] of the Land Court, Cape Coast was wrong in holding that the stool of Mumford possesses a community of interests with the stool created by Awortwi at Cape Coast.
(5) Because the learned judge3[sic] of the Land Court was wrong in holding that the properties of the junior stool created by Awortwi are necessarily vested in the first defendant-respondent as the occupant of the major or over-all family stool of Mumford. (6) Because the findings of fact of the learned judge4[sic] of the Land Court, Cape Coast cannot be supported in law and further cannot be supported having regard to the evidence.”
Before this court counsel for the appellant was forced to admit that on the evidence it cannot be disputed that the land, the subject-matter of the suit, became family stool property on the death of Arhin I. He, however, contended that the land having been acquired originally by Arhin I, the same should descend to the immediate blood members of the family and not to the occupant of the family stool. He relied in support of his contention on the case of Arthur v. Ayensu,5 but, as was pointed out to counsel, the case of Arthur v. Ayensu even if correctly decided at all, is no authority for his contention. That case, as the learned trial commissioner rightly pointed out in his judgment, dealt with succession to a person’s individual or private property on his death intestate. It had no bearing on succession o stool property. In any case the decision in Arthur v. Ayensu, (supra) which is a divisional court case, does not seem to have been accepted by the Court of Appeal in the subsequent case of Isaac Ennin v. Kwaku Prah6; where the court allowed the appeal from a judgment based on the principle enunciated in Arthur v. Ayensu.
It seems to me that if this so-called doctrine of the immediate family, as enunciated in the case of Arthur v. Ayensu and in the divisional court judgment of Isaac Ennin v. Kwaku Prah,7 which evidently influenced the appellant to institute these proceedings, is allowed to be extended unchecked, the whole of our family system would be in jeopardy. It would mean that, as in the present case, where it is admitted that the stool and all that is attached to it were acquired by Awortwi and more so by Arhin I, by whose name the stool is known, only Arhin’s brothers, and sisters and their descendants could succeed to the stool and the properties attached to it, to the exclusion of the descendants of Arhin’s or Awortwi’s maternal cousins of the same grandmother, otherwise known as Ena-Mba. That clearly is not the customary law as I have always understood it. I therefore find no substance in these grounds of appeal argued on behalf of the appellant.
Learned counsel next argued that in any case the respondent should have obtained the consent and concurrence of the members of the family resident in Cape Coast since the property to be sold was situated in Cape Coast and the respondent purported to act as head of the Cape Coast branch of the family, and that since it is admitted that the members of the Cape Coast branch of the family were not consulted and did not therefore concur in the execution of the deed of conveyance to the second respondent, the said deed of conveyance is null and void. I concede that there would have been some force in this argument if normal relationship had existed between the appellant and his group on the one hand and the first respondent on the other.
However, having regard to the attitude of the appellant and his group towards the first respondent and the position he occupies, I entirely agree with the learned commissioner that the first respondent was justified in not consulting or securing the consent of the Cape Coast group of the family before the execution of the conveyance to the second respondent. See Allotey v. Abrahams.8
I entirely agree with the learned commissioner that the deed of conveyance was properly executed by the first respondent with the consent and concurrence of the head and the principal members of the Mumford branch of the family. In the result, I would dismiss the appeal as of no substance and award costs to the respondents.
DECISION
Appeal dismissed.
N.A.Y.
