QUAGRAINE v. EDU [1966] GLR 406

Division: HIGH COURT, CAPE COAST

Date: 31 MAY 1966

Before: ARCHER J.

CASES REFERRED TO

(1) Arthur v. Ayensu (1957) 2 W.A.L.R. 357.

(2) In re Eburahim (Decd.); Ansah v. Ankrah (1958) 3 W.A.L.R. 317.

(3) Ennin v. Prah [1959] G.L.R. 44.

(4) Larkai v. Amorkor (1933) 1 W.A.C.A. 323.

(5) Amarfio v. Ayorkor (1954) 14 W.A. C.A. 554.

(6) Vanderpuye v. Botchway (1951) 13 W.A.C.A. 164.

(7) Tamakloe v. Attipoe, West African Court of Appeal, 22 June 1953, unreported.

(8) Hammond v. Randolph (1936) 5 W.A.C.A. 42, P.C.

(9) Ankrah v. Ankrah (1957) 3 W.A.L.R. 104, P.C.

(10) Makata v. Ahorli (1956) 1 W.A.L.R. 169, W.A.C.A.

(11) Serwah v. Kesse [1960] G.L.R. 227, S.C.

(12) Yerenchi v. Akuffo (1905) 1 Ren. 362.

(13) Welbeck v. M. Captan Ltd. and Hammond (1956) 2 W.A.L.R. 47.

[p.408] of [1966] GLR 406

(14) In re de Graft-Johnson (Decd.); de Graft-Johnson v. de Graft-Johnson, Divisional Court, Cape Coast, 15 April 1930, unreported.

(15) Ambah v. Libra (1927) F.C. ‘26-’29, 241.

(16) Ankrah v. Allotey (1943) Oll.C.L.L. 167.

(17) Mould v. Agoli (1871) Sar.F.C.L. 202.

(18) Botchway v. Solomon, Divisional Court, Accra, 7 December 1935, unreported.

(19) Sappor v. Amartey (1913) 2 Ren. 787.

NATURE OF PROCEEDINGS ACTION by the plaintiff, the successor to his brother’s estate, against the defendant as head of the wider family for damages for trespass and perpetual injunction restraining the defendants, his agents or servants from having anything to do whatsoever with the estate. The facts are fully set out in the judgment.

COUNSEL

Hayfron-Benjamin for the plaintiff.

Essilfie-Bondzie for the defendant.

JUDGMENT OF ARCHER J.

The plaintiff as the customary successor of the late James Brodie Apprey, claims from the defendant £G500 damages for trespass committed by the defendant who posted notices on seven houses forming part of the property the plaintiff succeeded to on Apprey’s death. The form of notice attached to the writ of summons reads:

“The public are hereby informed that as from the date hereof no payment of rents in respect of the estates of James Brodie Apprey and Joseph Edward Biney, deceased, may be made to Mr. Kobina Abaka Quagraine, his agents or servants.

The said Kobina Abaka Quagraine has been removed as successor to late James Brodie Apprey, Cape Coast, and whoever overlooks this notice [warning] does so at his or her own risks.

Ebusua Panyin Kow Edu, Head of Deshina Family of Anyanmaim, for himself and on behalf of all families. Dated 17th August, 1964.”

The plaintiff also claims a perpetual injunction restraining the defendant, his agents or servants or both from having anything whatsoever to do with the lands with the houses thereon described in the writ. The facts of the case are straightforward. One Joseph Edward Biney, a wealthy man on his death appointed one James Brodie Apprey his sole heir and administrator. Accordingly, on a [p.409] of [1966] GLR 406 true construction of the will in exhibit C, Apprey became the beneficial devisee of certain real properties in addition to other properties bequeathed to him by Biney. Apprey therefore enjoyed these properties absolutely in his own right. Apprey, however, died intestate and in accordance with Fante customary law, the estate of Apprey became family property. It is not in dispute that the present plaintiff was appointed customary successor to Apprey and he has, since the death of Apprey, been controlling these properties. In November 1964, the defendant claiming to be the head of the Deshina family of Anyanmaim posted notices warning the entire world against paying any rents to the plaintiff in respect of the properties left by Apprey on the ground that the plaintiff had been removed as customary successor to Apprey. The plaintiff maintains that he is still the customary successor and has not been removed by his head of family and denies further that he comes from Anyanmaim. In his evidence, the plaintiff stated that after the death of his senior and uterine brother, Apprey, on 17 November 1951 and after the funeral rites in January 1952, his mother conferred with the head of family, one Kwesi Wiah, and appointed him successor to his brother Apprey and thereupon he became the head of his brother’s immediate family of the Deshina family of Gura-Anamoa, Saltpond and Anomabo. The mother of the plaintiff was one Aba Tomo who had five sons all of whom, including James Brodie Apprey, are dead except the plaintiff and his other brother Kofi Tawiah also known as King Brodie Quarshie. The plaintiff rightly maintains that according to Fante customary law, the immediate family of James Brodie Apprey are his mother, his brothers and sisters, if any. Moreover the head of his wider family is now Kobina Dodu who is the head of the Gura-Anamoa, Saltpond and Anomabo Deshina family. According to the plaintiff, the defendant is not a member of his immediate family and does not come from the Gura-Anamoa, Saltpond, and Anomabo Deshina family but the defendant comes from Anyanmaim and he does not share any funeral debts with the plaintiff ‘s immediate or wider family.

The court also heard the evidence of Kobina Dodu, whom the plaintiff claims to be the head of his wider family. Kobina Dodu was emphatic that he had never seen the defendant at their family and funeral meetings and that he did not know him. Next, the Omanhene of Anomabo also confirmed that to his knowledge, the plaintiff comes from the Deshina family of Anomabo and GuraAnamoa. But the most interesting and fascinating piece of evidence which the court heard was that of James Brodie King Quarshie also known as Kofi Tawiah. This witness, a brother of the plaintiff and a son of Aba Tomo, admitted in cross-examination that he was once

[p.410] of [1966] GLR 406

Omanhene of Anyanmaim under the stool name of Nana Ampadu Kwame II. He agreed that his mother Aba Tomo was queenmother of Anyanmaim during his reign. This witness said his family came from the Deshina family of Anomabo and that the head of his family was Kobina Dodu. Furthermore, he knew the defendant at Anyanmaim but he was not the head of his family. I shall quote now extensively from this witnesses’s evidence in cross-examination. This is what he said:

“When I was Omanhene, I was known as Nana Ampadu Kwame II. I fought for the post with money. When I was on the stool, Kwasi Wiah was my head of family.

Q. You were enstooled by the head of the Anyanmaim stool family?

A. No.

Q. The stool at Anyanmaim belongs to the Deshina family at Anyanmaim?

A. That stool at Anyamnaim belongs to any member of a Deshina family in Ghana.

Q. When the late Biney died, you and the head of the Deshina family performed the funeral custom? A. I did not perform the funeral custom with the head of the Deshina family.

Q. The defendant is the head of the Deshina family at Anyanmaim?

A. I do not know.”

Then in answer to the following question:

“Q. Was your mother queenmother of Anyamnaim?

A. It is usual that when you become Omanhene, your mother automatically becomes queenmother. On my abdication, my mother was replaced as queenmother.”

At the instance of the court, this witness made the following revelation:

“My brother-in-law called Erskine at Anyanmaim at the time informed me that they wanted a young man on the stool. He said he would show me the way to pass through. He asked me to give him £Gl2 to see the elders as I was also a member of a Deshina family for them to pass me through. I gave him the £G12 and he passed through the necessary channels. They came and escorted me and I was installed Omanhene.” I consider this piece of evidence most unconvincing and I think it rather supports the defendant’s story. Ghanaians cherish their stools and do not allow strangers to occupy stools. Unlike the [p.411] of [1966] GLR 406

English who in times past invited Germans to be their monarchs, Ghanaians always restrict occupants of stools to persons who are members of the stool family. There was also the evidence of Kwesi Wangara, the linguist of the Deshina family of Anomabo to the effect that the defendant came from Anyanmaim and he was not a member of the Anomabo Deshina family.

The story of the defendant must now be considered. He testified that the plaintiff and his brother Kofi Tawiah were his uncles and that the plaintiff and J. B. Apprey came from the Deshina family of Anyanmaim which is a stool family. When J. B. Apprey died, he was succeeded by the plaintiff after he had been appointed successor by one Yaw Nkrumah as then head of the Deshina family of Anyanmaim and Nana Edu, the Omanhene of Anyanmaim who still occupies the stool. He confirmed that the plaintiff’s brother, Kofi Tawiah, was once Omanhene of Anyanmaim and that it was Kwesi Afful the then head of the family who made him omanhene. The plaintiff ‘s mother, Aba Tomo, was also queenmother because she came from Anyanmaim. The defendant maintains that he is now the head of the Deshina family of Anyamnaim. He said further that about two years ago, the family met after he had complained about the plaintiff to one Chief Tandoh of Cape Coast. The complaint was that the plaintiff had taken action against members of the family who were residing in the family house. He was demanding rent and had threatened to eject them if they failed to pay, although previously these members of family were not paying rent. Moreover, the plaintiff had sold some family lands without informing him, the defendant. The plaintiff did not account to him and when he questioned him why he was demanding rent, the plaintiff abused him. The defendant therefore sent one Nkrumah to tell the plaintiff that a complaint against him had been lodged with one Chief Tandoh and that the family would meet in a month’s time to discuss the matter. When the family met, the plaintiff refused to come down from upstairs in the same house. The case was gone into, and the charges found proved, libation was poured and the plaintiff was customarily destooled and he was informed immediately afterwards. Those who attended the meeting were the defendant, Nyame Ayeh, the head of the Cape Coast branch and Chief Tandoh. The women’s section of the family resident in the house were also present. The defendant brought Kweku Nkrumah, head of the Agona branch of the Deshina family and Nana Edu III, Omanhene of Anyanmaim to testify that he was the head of the Deshina family of Anyanmaim.

I have weighed the evidence adduced by the plaintiff against the evidence by the defendant and I am inclined to think that there are

[p.412] of [1966] GLR 406 several branches of the Deshina family at Anyanmaim, Gura-Anamoa, Saltpond, Anomabo and Agona and that the fact that Kofi Tawia once occupied the stool at Anyanmaim and that his mother was also queenmother are strong pieces of evidence to establish that the plaintiff’s mother Aba Tomo must have been related to or connected very closely with the stool family at Anyanmaim. The plaintiff’s version was that he was appointed successor by Kwesi Wiah after consultation with his mother Aba Tomo. The defendant’s contention was that the plaintiff was appointed by one Yaw Nkrumah who was then head of the Deshina family at Anyanmaim. This contention was confirmed by Nana Edu III who was not cross-examined on this point. There is also another aspect of the matter which compels me to hold that the defendant must be head of the wider family. It is not in dispute that in 1962 certain properties forming part of the estate left by Apprey were attached after the plaintiff had become successor to these properties. It was the defendant who was instructed by the plaintiff to interplead to release these properties. The plaintiff did not send for Kobina Dodu, the head of the family of the Gura-Anamoa, Saltpond and Anomabo Deshina family.

In further cross-examination, the plaintiff gave these answers:

Q. In 1960, the houses you have mentioned were attached by Fynhout of Sekondi to satisfy a debt? A. That is so. Q. These houses were family properties. Is that so ?

A. They were not family properties I succeeded to.

Q. Were they the properties of J. B. Apprey, deceased.?

A. Yes.

Q. Were there interpleader proceedings?

A. I do not know. Somebody might have interpleaded. I was sick at Saltpond. I instructed Kwa Edu to swear an affidavit that the houses belonged to the immediate family. The case was withdrawn from the court. I instructed the defendant to see my solicitor, Mr. Benjamin.”

Then in answer to questions by the court, the plaintiff explained thus :

“My mother comes from Anomabo. My grandmother comes from Anomabo. I come from Anomabo. The defendant cannot be the head of my family. The defendant came to see me at Saltpond about another case when the properties attached came to my knowledge and I asked him to go to Cape Coast to see my lawyer about the interpleader proceedings. The defendant may be a blood-relative of mine, but he is not a member of my family.”

[p.413] of [1966] GLR 406

Then Kobina Dodu, the head of the Gura-Anamoa, Saltpond and Anomabo Deshina family in cross-examination had this to say:

“Q. Did you hear in 1960 that some family properties were going to be attached?

A. I do not know.

Q. How long have you been head of family?

A. I have been head of family for about four years.

Q. Can you tell how long ago your predecessor Kwesi Wiah died ?

A. About six years ago.”

What fascinates me in this part of the evidence is why the plaintiff did not call his head of family of Deshina Gura-Anamoa, Saltpond and Anomabo who was only a few miles away from Saltpond and who appointed him to succeed to these properties to claim these properties as family properties when they were attached? Was Kwa Edu, the defendant, the proper person to see Mr. Hayfron-Benjamin to interplead to release these properties? Without relying on what Kwa Edu deposed to in the affidavit in the interpleader proceedings, exhibit 2, because the plaintiff did not make these statements and without relying on what the plaintiff said in exhibit 1 because the proceedings in that exhibit 1 are clearly inadmissible in a court of law, although an inconsistent statement may be used to destroy the credibility of the plaintiff, my own conviction is that the defendant was at the time the head of the wider Deshina family and the plaintiff had to call him to intervene to save these properties.

It is so strange that Kwesi Wangara, the linguist of the Deshina family of Gura-Anamoa, Saltpond and Anomabo who said that he had been linguist for 30 years has never known that in 1962 these properties were attached and although it was an important matter which should have been brought to his notice, the plaintiff never told him.

In cross-examination, the plaintiff said that at the time of the death of Apprey, Kwesi Wiah was the head of family of Gura-Anamoa, Saltpond and that he the plaintiff performed the funeral custom. I do not think this is probable because the plaintiff was not head of family at the time of Apprey’s death. The impression I have formed therefore is that there is a very large family known as the Deshina family. It has branches because members of this family settled in various townships. As such, there are branches known as the Agona branch, the Gura-Anamoa branch, the Saltpond branch, the Anomabo branch and the Anyanmaim branch. But it seems to me that the head of the Anyanmaim branch is recognised as the over-all head of the composite Deshina family. In other words,

[p.414] of [1966] GLR 406 there are wider families yet within a still wider family of which the defendant is head. I therefore hold that the defendant is the head of the very wider family known as the Deshina family.

The next question I have to consider is whether the defendant can control, interfere with or intervene in the plaintiff’s administration of the estate of J. B. Apprey as customary successor. Sarbah in his book, Fanti Customary Laws (2nd ed.) at pp. 101-102 has the following to say, “The owner of self-acquired real property dying intestate, is not succeeded by his sons, they being outside the line of inheritance, but by his mother and her issue according to seniority.”

Does this principle mean that this immediate family is the only group entitled to possession and enjoyment of the property left? It seems there are now two schools of thought. Adumua-Bossman J., as he then was, in Arthur v. Ayensu1 held that although the self-acquired property of a deceased intestate passes, by virtue of the intestacy, to the family of which the deceased was a member, the family, for this purpose, is not the wider family group to which the deceased belonged, but the immediate family of the deceased, i.e. all those persons claiming descent from the mother of the deceased or, failing such persons, all those claiming descent from the maternal grandmother of the deceased. In the case of In re Eburahim (Decd.); Ansah v. Ankrah2 the same learned judge said:

“Too often when mention is made of the family of a person, attention is focused on the wider family to which he belonged rather than his own immediate or small family, i.e., the group of persons entitled by custom to inherit from him. In our particular case, as the deceased and the parties are, according to the evidence before the court, of the Fanti tribal group, one of the groups whose system of inheritance or succession is matrilineal, the group of persons entitled by custom to the beneficial enjoyment of his estate consists of all the persons emanating or tracing from the same womb as the deceased, and in the absence of any such persons, then those emanating from the same womb from which the mother of the deceased emanated, and so on.”

Then in a similar case, that is, Ennin v. Prah3 Adumua-Bossman J., as be then was, said: “The late Kofi Nkum’s properties could not devolve upon, and become vested in, the wider Twidan family of which he

[p.415] of [1966] GLR 406 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 … 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.”

The learned judge appears in all the above cases to have relied on a dictum by Deane C.J. in Larkai v. Amorkor.4

“Ahuru it is true was called Ahuru Larkai and it seems was a member of the Larkai family, but individually owned property of his would, on his death intestate, became the family property, not of the Larkai family, but of his own family . . . The plaintiff… is the present holder of the Larkai family stool, but he would not . . . be a member of Ahuru’s family so as to become the head of his family and as such entitled to the family property of Ahuru so as to sue for it in this Court.” On this view, it would seem that the defendant in the present suit cannot interfere with the administration of Apprey’s estate by the plaintiff as customary successor. Nevertheless, there is the other school of thought. In Amarfio v. Ayorkor,5 Coussey J.A. (Foster – Sutton P. and Abbott J., concurring) was of the opinion that although the appellant sought to establish that the larger family had no interest in the property until the immediate family was exhausted and therefore the head of the wider family had no right to interfere with the management of the property, yet the head of the wider family had a duty to protect the property against the appellant however galling it may appear to the appellant that his father’s property had fallen to the family. Coussey J. A. referred to the case of Vanderpuye v. Botchway6 and repeated that7:

“(1) In the case of intestacy the self-acquired property of the deceased vests immediately on his death in the family as family property …

(5) The members of a family are traced through the maternal ancestor, and the family is the unit for the purpose of ownership of property. All the members have a joint interest in the family property which is indivisible.”

[p.416] of [1966] GLR 406

Amarfio v. Ayorkor is a decision of the West African Court of Appeal whereas the other judgments delivered by Adumua-Bossman J. are decisions of a single judge in the High Court. All the same it seems to me that the forcefulness and weight of Amarfio v. Ayorkor stand unimpaired notwithstanding what Coussey J. himself said in Tamakloe v. Attipoe.88 In that case, those beneficially interested in or entitled to, the estate of a deceased person, under Anlo custom, were accepted to be the deceased’s children. Some of these beneficiaries 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 beneficiaries who was appointed successor. The heads of the wider family 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 first and second defendants have no beneficial interest in the estate of the deceased, and that their true function as the head 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.” However, Amarfio v. Ayorkor has the support of the case of Hammond v. Randolph Ankrah v. Ankrah,9 both of which are Privy Council decisions, and also Makata v. Ahorli.10 It appears also that in Serwah v. Kesse,11 the Supreme Court agreed with the principle that a duly appointed successor becomes head of the immediate family and he is entitled to the immediate beneficial interest in the property left by the deceased.

On the strength of the decisions supporting the latter school of thought, it seems to me that the estate of J. B. Apprey is family property and that both the immediate family headed by the plaintiff as successor and the wider family headed by the defendant are interested in the estate. But according to customary usage, the immediate enjoyment and possession of the estate is vested in the immediate family, the interests of the wider family being postponed.

It is settled law that where a successor mismanages such family property, the head of the wider family, with the concurrence of the

[p.417] of [1966] GLR 406 principal members of the whole family are entitled to step in and preserve the property on the ground that all members have a joint interest in the family property which is indivisible. The plaintiff’s case is that he has not been removed as customary successor by his head of family of Gura-Anamoa, Saltpond and Anomabo. But as I have already said, I have found that the defendant is the head of the wider family. The defendant testified that the plaintiff was mismanaging the family properties and demanding rents from members of the family. The plaintiff was never cross-examined in the witness-box as to the properties he had mismanaged or disposed of. The plaintiff denied that he was summoned before any meeting. He did not remember that Kweku Nkrumah came to summon him. He remembered, however, that he received a letter signed by the defendant and others that he had been removed. The defendant, Kweku Nkrumah and Mr. Yorke were the only persons who testified that such a meeting was convened and as the plaintiff refused to attend, the charges were investigated and the plaintiff was removed. Kweku Nkrumah, the defendant’s first witness, who is the head of the Deshina family at Agona and who stated that he was sent by the defendant to inform the principal members of the family stated in cross-examination as follows: “Q. Do you know Kobina Dodu?

A. Yes. I know him. He is head of the Deshina family who succeeded Kwesi Wiah.

Q. Do you know Kwesi Wangara?

A. I know Kwesi Wangara. He is the linguist of the Deshina family at Anomabo. Kobina Dodu is the head of Gura-Anamoa and Anomabo. Kwesi Wangara is the linguist. Kwesi Wangara had travelled when the meeting was called but Kobina Dodu could not attend because his wife died on that day.” Then Mr. Yorke alias Nyarku the defendant’s third witness, stated in examination-in-chief: “The members of the family from Anyanmaim (about ten) attended the meeting. The Cape Coast section also attended and Agona. About 30 members of the Cape Coast branch attended. About six senior members of the family attended the meeting. Nyame Ayeh was the head of the Cape Coast branch. Nkrumah and his elders came from Agona. No other branches of the family attended the meeting.”

The question I have asked is whether this family meeting was fully representative? 1 did not have the benefit of the testimony of

[p.418] of [1966] GLR 406

Chief Tandoh of Cape Coast and I was not told whether he was alive or dead. No members from the Gura-Anamoa, Saltpond and Anomabo branches were present yet the meeting proceeded although the head of those three branches of the family, Kobina Dodu, was bereaved that day. Was it reasonable to proceed with the meeting at all? The plaintiff’s brother was in the witness-box and it was never suggested to him that he was informed of this meeting although, as a uterine brother and a member of the plaintiff’s immediate family, he was interested in the beneficial enjoyment of the estate. Griffith C.J. in Yerenchi v. Akuffo said that, “native custom generally consist of the performance of the reasonable in the special circumstances of the case.”12 In the present case, it was alleged that Kweku Nkrumah was sent to call the plaintiff who refused to come. Assuming that is true, was it reasonable to proceed with the meeting forthwith? In Welbeck v. M. Captan Ltd. and Hammond,13 it was held that although the absence of principal members from a family meeting may render nugatory decisions taken at such a meeting, yet this will not be so if the members concerned have been invited to the meeting but for reasons of their own have not attended. Secondly, where a member of a family seeks to avoid a decision taken at a family meeting on the grounds that the meeting was not representative or that indispensable principals were not in attendance, the burden of proof is upon him to establish the non-representative character of the meeting or that the attendance of absent members was essential to the validity of the proceedings. There is no doubt that the domestic household of Biney belonged to the family of Biney on his death. By his will tendered as exhibit D, Biney declared as follows:

“(5) It is so my wish, and I emphatically direct that my said administrator makes it his abiding business to embrance in love all my blood relatives at Tuakwa, Anyanmaim, Anomabo and Girancuma—always treating them well—giving them all helping hand when required —protecting them, and accommodating those who may at any time visit the town from their villages in the same manner as I had been doing myself.

(6) I also desire, and it is my ardent wish, that my said administrator endeavours, by all possible means to unite together all my household men and maid-servants in my own residential house and in my other out-houses in perfect peace — seeking all times their interest and well-being [p.419] of [1966] GLR 406 protecting them from trouble—supporting and maintaining them, and treating or regarding them all as one indivisible family.”

The impression I gathered from the evidence for the defendant was that Nyame Ayeh was the head of all these members in the domestic household including Mr. Yorke. There is no doubt that the will of Biney did not impose any legal obligations on Apprey so far as the domestic household is concerned. The members of the domestic household belonged to the family of Biney and they and their descendants of female members are entitled to be appointed successors to deceased members of Biney’s family in preference to children of male members of the family of Biney. See In re de Graft-Johnson (Decd.); de Graft-Johnson v. de Graft-Johnson14 and Ambah v. Libra.15 The domestic household of Biney do not belong to the immediate family of Apprey because Apprey did express such a wish. It would appear that this household of Biney formed the majority of those who attended the meeting convened to remove the plaintiff as customary successor. I find therefore that the meeting was not fully representative of all the branches of the Deshina family. Moreover, there is no evidence that any member of the plaintiff’s immediate family were invited to be present. The whole dispute arose in my opinion, because the plaintiff was demanding rents from the domestic household of Biney and in fact, it was Mr. Yorke who in answer to questions by the court revealed what properties had been sold and what gold bangles had been sold when in fact the domestic household had no interest. None of the alleged ten members who came from Anyanmaim came to court to testify. The family branches at Gura-Anamoa, Saltpond and Anomabo were also not present when it was obvious that Aba Tomo must have near blood relations there. It is also settled law that where one branch of the family is in dispute with another branch, the law will not permit one branch or faction alone by themselves to appoint a head for the whole family or to remove the head of the whole family. Such an appointment can only be made by the united family and so the two factions must be reconciled before a head can be validly elected: see Ankrah v. Allotey.16 This principle also applies to the removal of a head or a successor. A council of the whole family must meet specifically to deal with the complaints concerning the administration of the family property:

[p.420] of [1966] GLR 406 see Mould v. Agoli17 and also Botchway v. Solomon.18 In the latter case, Yates J. said: “The family meeting was convened four times, and the defendant (Solomon) refused to attend; he was further summoned before the James Town Manche and refused to attend — in fact the defendant had denied the family — and I therefore hold that he was properly removed, . . .”

My view is that in order to clothe customary usage with sanctity and respect, it is incumbent on those who perform these rites to ensure that custom is not performed haphazardly, recklessly and hurriedly. In the present suit, it is alleged that a meeting was convened in the plaintiff’s house and he refused to come down from his apartment upstairs. Immediately afterwards, charges were read in his absence and he was deposed. In my opinion, the family could have taken further steps, the principal elders could have gone upstairs to see him in view of the fact that he was blind. The estate is not a small one, and the family could have approached prominent personalities to assist in the matter seeing that there was disagreement between the plaintiff and Biney’s domestic household. No complaint was made to the branch families of Gura-Anamoa, Saltpond, and Anomabo that a meeting had been convened and the plaintiff had refused to attend. No representations were made either to the Omanhene of Anyanmaim or the Omanhene of Anomabo with regard to the plaintiff’s refusal.

I am aware, of course, that in such gatherings, tempers are bound to soar high and some elders tend to behave indiscreetly but it is important that sanity should prevail — the elders should do what is reasonable in the circumstances. And in this respect, I wish to quote what Barrett Lennard J. said in Sappor v. Amartey19:

“Now it seems to me that the majority of a family can depose a head whom they dislike, and that under ordinary circumstance no Court ought to interfere with this domestic discipline. Assuming however, that the head of a family can carry a majority of it with him, and his intentions are entirely selfish and unjust, I have no doubt whatever that, upon a proper writ being drawn and a proper case made, a Court of justice can afford relief.”

I have weighed the cumulative effects of one group of severally inconclusive items against the cumulative effects of another group

[p.421] of [1966] GLR 406 of severally inconclusive items and I have decided to make the following findings out of the exercise:

(1) That the plaintiff is still customary successor of the late J. B. Apprey as the family meeting which attempted to remove the plaintiff was not valid at customary law in view of the fact that the meeting was not fully representative of the whole wider family.

(2) That the late Apprey’s immediate family, now headed by this plaintiff, i.e. his mother, uterine brothers and sisters and the issue of such sisters are entitled to the immediate beneficial enjoyment of the estate.

(3) That the wider family now headed by the defendant have no right whatsoever to the immediate beneficial enjoyment of this estate as their rights have been postponed until Apprey’s immediate family should be extinct. The wider family have only a spes successionis.

(4) That as the defendant as head of the wider Deshina family has a duty to preserve the family property, he did not commit any trespass when he posted the notices on the houses because he bona fide believed that he had the right to do so.

(5) That the defendant as head of the wider family has to watch the interest of not only the immediate family but also the wider family and it would be contrary to customary law to grant a perpetual injunction restraining him forever from protecting these properties. The plaintiff is in full control of these properties as head of the immediate family and a perpetual injunction if granted would be in vain since the whole family with the defendant as head can for good cause shown remove the plaintiff from office.

Finally, I may remark that although the plaintiff is educated, he is blind and none of the defendants witnesses alleged that he was incapable of discharging his duties on account of his loss of sight. It is therefore my hope that the plaintiff and the defendant representing the wider family will be reconciled and a satisfactory solution found in order to carry out the hope and desire of the late Biney with regard to his domestic household now resident in the same house as the plaintiff.

Ten guineas costs to the defendant.

DECISION

Action dismissed. S. K. T.