Family headship in Ghana case law.

Obviously this version cannot be correct, because although Kwabena Appianin may by samansiw dispose of his self-acquired property in the way he likes, he cannot make an appointment of a head of the family to bind the family, and cannot so dispose of the property of the family.

IN RE ESTATE OF KWABENA APPIANIN (DECD.); FRIMPONG v. ANANE [1965] GLR 354 [1965] SLR (SC) 28 · Supreme Court · 1965 · OLLENNU JSC

The many decisions of our courts which state that when a man dies intestate his property becomes family property can be understood to mean at least this, that title to such property vests automatically in the class of entitled persons commonly called the family, though the group of persons covered by this term obviously varies according to whether we are dealing with a patrilineal or matrilineal community. If this class of persons is identified, as is the case in this action, then it obviously is “entitled” to institute an action for a declaration of its title to the property where this is disputed. A head of family or successor is patently only a representative or agent of the class of entitled persons. Where the class is numerous, convenience, custom, tradition and court practice dictate that a head of family or successor should normally act on behalf of the class of entitled persons. But this requirement, as the authorities show, is necessarily subject to important exceptions. And one obvious exception is where all or nearly all the members of the class of entitled persons present themselves before the court as plaintiffs claiming a declaration of the title of all the members to the property. This is all the more obvious when, as in the present case, the defendants admit and even plead that the two eldest members of the deceased owner’s family are among the plaintiffs.

MAHAMA HAUSA AND OTHERS v. BAAKO HAUSA AND ANOTHER [1972] 2 GLR 469 [1972] SLR (CA) 26 · Court of Appeal · 1972 · BENTSI-ENCHILL JSC

The conclusions we have come to, upon careful consideration of the judgments in the two cases to which we have referred, and other judicial decisions on the native custom in this regard, are as follows: (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

KWAN v. NYIENI & ANOR. [1959] GLR 67 [1959] SLR (CA) 10 · Court of Appeal · 1959 · VAN LARE AG CJ

(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.

KWAN v. NYIENI & ANOR. [1959] GLR 67 [1959] SLR (CA) 10 · Court of Appeal · 1959 · VAN LARE AG CJ

Applying these principles to this case, we are of the opinion that the learned Judge of the Land Court misdirected himself on the native customary law in holding that the appellant was not competent to sue on behalf of the family. It was manifestly clear that the action was instituted solely to preserve the family character of the property; further, there was evidence on record that the appellant, though not head, was authorised by the family to institute the action.

KWAN v. NYIENI & ANOR. [1959] GLR 67 [1959] SLR (CA) 10 · Court of Appeal · 1959 · VAN LARE AG CJ