SABBAH AND OTHERS v. WORBI AND OTHERS [1966] GLR 87

Division: HIGH COURT, ACCRA

Date: 25 JANUARY 1966

Before: HAYFRON-BENJAMIN J.

CASES REFERRED TO

(1) Medienhia v. Nyabi [1963] 1 G.L.R. 359, S.C.

(2) Re Youngs; Doggett v. Revett (1885) 30 Ch.D. 421; 53 L.T. 682; 33 W.R. 880, C.A.

(3) Kwan v. Nyieni [1959] G.L.R. 67, C.A. [p.88] of [1966] GLR 87

NATURE OF PROCEEDINGS

APPEAL from a decision of a local court relating to family property by persons other than the head of family. The facts are fully set out in the judgment.

COUNSEL

Dr. de Graft-Johnson for the appellants.

S. A. X. Tsegah for the respondents.

JUDGMENT OF HAYFRON–BENJAMIN J.

When this appeal finally came on for hearing Mr. Bossman for the respondents raised the preliminary point that there is no appeal before the court on the part of the third and fourth co-defendants because they have no appealable interest. The case was between two opposing families. According to customary law the head of the family is the proper person to sue and be sued on behalf of the family. And where he does so, the interest represented by him is exhaustive, and any other person who join the head of family can represent no other interest. If therefore the case is decided against the family, the head of the family is the proper person to appeal, and no other person can do so. He placed strong reliance on the case of Medienhia v. Nyabi.1

In this case the head of family was admittedly E. T. Sabbah, the first defendant. The third and fourth defendants applied during the trial before the local court to be made co-defendants because they were interested in the land in dispute and also on the further ground that their advice would be of help or assistance to the first defendant. Nowhere is any indication of any special interest in the land in dispute disclosed beyond the ordinary interest of members of the family in family land. The local court however made an order for joining them as co-defendants. Judgment was given against the defendants and the co-defendants and the first defendant who is the head of family did not appeal. The third and fourth defendants claim that being parties to the suit, they are entitled to appeal. The right of appeal is statutory and is contained in section 126 of the Courts Act, 1960.2 It provides:

“126. Any party aggrieved by a decision of a Local Court on an issue relating to land or an interest in land or a succession cause involving land may appeal to the High Court and thereafter to the Supreme Court.”

It is therefore essential to any appeal from a local court that it must be by a party who is aggrieved by the decision, and the point that arises is whether a person can be aggrieved by a decision in a case to which he should never have been a party. In other words,

[p.89] of [1966] GLR 87 whether where there is a head of family representing the family in litigation, any other member of the family can be made a party to the dispute in the same interest, and if not, whether such joinder, if wrongly made can confer on such party a right of appeal. The test it seems to me is whether the person appealing could in law be made a party to the suit: see Re Youngs; Doggett v. Revett.3 In Kwan v. Nyieni.4 Ollennu J. (as he then was) summarised the general rule of customary law thus5:

“(1) as a general rule the head of a family, as representative of the family, is the proper person to institute suits for the recovery of family land; (2) to this general rule there are exceptions in certain special circumstances, such as:

(i) where the family property is in danger of being lost to the family, and it is shown that the head (either out of personal interest, or otherwise) will not make a move to save or preserve it; or

(ii) where, owing to a division in the family, the head and some of the principal members will not take any step; or

(iii) where the head and the principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole.

In any such special circumstances, the Court will entertain an action by any member of the family, either upon proof that he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property.”

Nothing in this judgment can be read as derogating from the general principle of customary law that normally, the head and the principal members of the family are the best judges of what is best in the family interest. The head and the principal elders can compromise a dispute before it is brought to court, and I am of the opinion that they can do so at any stage of the proceedings, and such compromise will bind the family. They can abandon a claim or refuse to appeal against an adverse decision, and unless the ordinary member of the family can bring his case within the exceptions in Kwan v. Nyieni (supra), I hold that he is not entitled to pursue litigation which may saddle the family with unnecessary debt. I therefore dismiss the

[p.90] of [1966] GLR 87 appeal with costs of 250 guineas. The respondents will also have their costs in the court below.

DECISION

Appeal dismissed.

S. K. T.