DOTWAAH AND ANOTHER v. AFRIYIE [1965] GLR 257

DIVISION: SUPREME COURT

DATE: 12 APRIL 1965

BEFORE: MILLS-ODOI, OLLENNU AND BRUCE-LYLE JJ.S.C.

CASES REFERRED TO

(1) Kwan v. Nyieni [1959] G.L.R. 67, C.A. (2) Johnson v. Lawson (1824) 2 Bing. 86; 130 E.R. 237. (3) Poh v. Konamba (1957) 3 W.A.L.R. 74. (4) Bura v. Ampima (1891) Sar.F.C.L. 214. (5) Amarfio v. Ayorkor (1954) 14 W.A.C.A. 554.

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NATURE OF PROCEEDINGS

APPEAL from a judgment of Apaloo J. (as he then was) in the High Court, Kumasi, in which he gave judgment for the plaintiff. The facts are fully stated in the judgment of Ollennu J.S.C.

COUNSEL

Victor Owusu (with him R. Aboagye) for the appellants. D. S. Effah for the respondent.

JUDGMENT OF OLLENNU J.S.C.

This is an appeal from a judgment of Apaloo J., as he then was, delivered in the High Court, Kumasi. The first appellant, the first defendant in the court below, had mortgaged the cocoa farm, the subject-matter of the suit, to the second appellant, the second defendant in the court below, and the claim of the respondent, the plaintiff in the suit, is for: (a) a declaration that the farm in dispute is family property, (b) a declaration that the mortgage of the farm is void and of no effect, (c) an order for recovery of possession, and (d) an order upon the second defendant to account for the proceeds of the farm from the date of his entry into possession of the farm to the date of judgment. The parties are agreed that the farm in dispute was the self-acquired property of one Kwaku Addo who died in or about 1947 intestate and is, therefore, by customary law the property of his family, which is a matrilineal family, Kwaku Addo being an Akan. It is also agreed that there are no descendants of Kwaku Addo’s maternal grandmother living; by custom, therefore, the immediate family for purposes of succession in such a case would be all descendants in the direct female line of the next known ancestress of Kwaku Addo, and the wider family would be all descendants in the direct female line of the remotest known ancestress of Kwaku Addo. It is also not in dispute that the plaintiff and those she represents were not consulted in the granting of the mortgage by the first defendant to the second defendant; and also that when the negotiations for the mortgage came to her knowledge, the plaintiff vehemently protested against it and warned the second defendant against concluding the transaction, but he treated her warning with contempt. Upon these undisputed facts, the legal position would be as follows: (i) if the plaintiff and those on behalf of whom she sued are proved to be the only persons who constitute the immediate family of Kwaku Addo, the mortgage is void ab initio.

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(ii) if the plaintiff and those on behalf of whom she sued, together with the first defendant and others who concurred in the mortgage are shown to form the immediate family, but that the plaintiff is the successor to Addo in accordance with customary law, then the mortgage without her, the successor’s (plaintiff’s) consent, is again void ab initio, and (iii) if the plaintiff and those on behalf of whom, she sued, together with the first defendant and those who joined with him to grant the mortgage are shown to be the principal members of Addo’s immediate family, but that the first defendant is the successor to Addo, then the mortgage so granted is voidable only, and may be set aside at the instance of the plaintiff and the others if they act timeously. The late Addo, the plaintiff, the first defendant and the majority of the witnesses for the parties all belong to one clan, the Agona clan; the clan has three main wings, these are at Amoako, Tetrem, and Boaman; these towns or villages are within a short distance of each other. There are sections of the clan in other places. The clan has a male stool and a female stool at Amoako; it has a stool also at Boaman, and the occupant thereof is the head of the clan at Boaman. The plaintiff is the present occupant of the Agona female stool at Amoako; she succeeded one Pramang a sister of the whole-blood of the deceased Kwaku Addo. Her first witness is the occupant of the male stool at Amoako, and her second witness is the Nifahene of Amoako, and is also the occupant of the clan stool at Tetrem and the head of the Tetrem wing of the clan. Another matter not in dispute is that the first defendant is of the Boaman branch of the clan, and came to live with Addo at Amoako some time ago after Addo had, upon an appeal from his, the first defendant’s family, paid some debts which he had incurred. The plaintiff pleaded that Addo was succeeded by his (Addo’s) sister Pramang, and that she, the plaintiff, succeeded Addo upon Pramang’s death; she pleaded further that she and those on whose behalf she sued constitute the immediate family of Addo, without whose consent and concurrence, no valid transaction with Addo’s property can be effected. The first defendant denied that the plaintiff and those whom she represents are members of Addo’s family. He pleaded also that he is the successor to Addo, duly appointed by the family. The main issues joined upon these averments are: (i) whether the plaintiff and those whom she represents are members of Addo’s immediate family, (ii) whether the plaintiff is by customary law, the duly appointed successor to Addo, and

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(iii) whether the second defendant is accountable to the plaintiff. In a well-reasoned judgment delivered by him, the learned trial judge resolved each of the first two issues in favour of the plaintiff; on the third issue he held that the second defendant was not accountable to the plaintiff but that the first defendant rather is liable to account and ordered him to do so even though there is no claim against him for accounts. Before us it was submitted for the defendants that the trial judge erred in entertaining the claim of the plaintiff because the plaintiff had not sued either as head of the family or as successor to Addo; that by customary law only the head of the family can sue in respect of family property, that the plaintiff is not proved to be the head of the family, and that the case does not come within the exception laid down in Kwan v. Nyieni.1 It is true that the plaintiff did not describe herself in the title of the suit as successor to Addo, but she made it quite plain in her statement of claim as well as in her evidence that she was litigating the family’s title to the farm in her right as the successor to Addo. By customary law, as soon as a successor is appointed to a deceased member of a family the self-acquired property left by the deceased vests in the successor for and on behalf of the family, therefore the responsibility to litigate the family’s title to such property passed from the head of the family to the successor. The plea of the plaintiff that she is the present successor to Addo is a disclosure that she has a locus standi, the proof of which lies upon her, and the court is bound upon that plea to entertain the suit to enable the plaintiff to establish that status if she could. Next it was contended on behalf of the defendants that the trial court was wrong in accepting the pedigree of the plaintiff in preference to that of the first defendant, and that it should have rejected the tradition given by the plaintiff because (a) the plaintiff’s first witness, the Amoakohene, who supported the plaintiff’s tradition, though a member of the Agona clan as was Addo, yet is not a member of Addo’s family for the purpose of succession, and is therefore not competent to give evidence of tradition of the family, and (b) the evidence of tradition given by the plaintiff’s third witness, Agyare, the head of the family, should have been rejected because he had, in a previous suit between him and the first defendant, pleaded facts and sworn to an affidavit the contents of which contradict the tradition he deposed to at the trial of the present suit. In support of the first point raised, counsel submitted that in law only a blood relation is entitled to give evidence of the tradition

[p.262] of [1965] GLR 257 of a family, and that a stranger however intimate he may be with the family as friend of a member of the family or as a servant of the family of long standing, is not competent to give evidence of the tradition of the family, and that evidence of tradition given by any such person is inadmissible as being hearsay. In support of this submission counsel cited the English case of Johnson v. Lawson,2 a judgment of the Court of Common Pleas, and the High Court case of Poh v. Konamba.3 Of course none of these judgments is binding upon the court, they only have persuasive force. I shall now examine each of them and other available materials on the subject to come to my conclusions on the submissions in this regard. In Johnson v. Lawson (supra) the question was whether evidence of tradition in respect of one John Lidgbird was admissible; that evidence consisted of declarations made by two deceased persons, one of them a lady whom the said John Lidgbird was once on the point of marrying, and who had been on the most intimate terms both with the said John Lidgbird and his son Henry both deceased, and the other a housekeeper, a servant who had been housekeeper for Henry Lidgbird for 24 years. The Court of Common Pleas held that the particular evidence was inadmissible. In the course of their judgment their Lordships stated the principle as follows4: “As a general rule, hearsay is not admissible evidence, but to this general rule pedigree-causes form an exception from the very nature of the case. Facts must be spoken of which took place many years before the trial, and of these, traditional evidence is often the only evidence which can be obtained; but evidence of that kind must be subject to limitation, otherwise it would be a source of great uncertainty, and the limitation hitherto pursued, namely, the confining such evidence to the declarations of relations of the family affords a rule at once certain and intelligible. If the admissibility of such evidence were not so restrained, we should, on every occasion, before the testimony could be admitted, have to enter upon a long enquiry as to the degree of intimacy or confidence that subsisted between the party and the deceased declarant.” Redwar, dealing with this principle as it applies in Ghana in his Comments on Gold Coast Ordinances, pp. 86-87, referred to his judgment in Bura v. Ampima5 and said: [p.263] of [1965] GLR 257

“In cases relating to pedigree, inheritance, boundaries of the land, &c. hearsay evidence or evidence of common reputation is admissible, and it was held in Bura and Amonoo v. Ampima (coram Hayes Redwar, J. at Cape Coast Castle, September 28th, 1891), that a much greater latitude is permissible in these matters than is allowed by English law, because of the absence of written memorials in a country where everything, the Native Law itself included, depends on oral tradition. Besides evidence as to declarations of deceased members of a family, hearsay statements of Linguists and of other persons with presumable knowledge of the matters in dispute, were admitted. The Judge said: ‘Even according to English Law, evidence of common reputation is admitted to prove rights affecting a large number of persons, and, therefore, in the nature of public rights; also of customs of manors and boroughs. Now, the right of succession to the Stools of Abonu is one which must necessarily affect the people of Abonu, and on this ground, also, it seems to me that hearsay evidence is admissible.’ . . . Evidence of reputation is also admissible in support of a right of common in a manor. (See Pritchard v. Powell, 10 Q.B. 589.) In England, where, the question at issue is one in which all the inhabitants of a manor are interested, hearsay evidence of what any deceased inhabitant or tenant of the manor said ‘ante litem motam,’ is admissible, such deceased person having presumably a knowledge of the subject. As an example of this kind of evidence at the Gold Coast, it may be said that hearsay evidence that a particular person performed the funeral custom, raises the presumption that such person was the Head of a particular Family, and the Heir of a former Head of the Family. Hearsay evidence that this custom has been performed on the land in dispute, and that the dead of a particular Family have been buried in it, is similarly receivable as evidence of the ownership of the land.” We deduce from the above cited cases and comments, that for evidence of tradition to be admissible the witness who deposes to it must be a person who has a right to be told, and a duty to know the tradition or the history, and none other, however intimate and close that other may be to the deceased member of the family who might have related the tradition to him. Following this principle Adumua-Bossman J. (as he then was) stated in Poh v. Konamba (supra) cited by counsel for the defendants, that6:

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“traditional evidence’ ¼ is generally receivable only from the members of the same family or clan, to whom it is reasonably to be expected that the former elders and members of the same family or clan would impart such information as the history and traditions of the family or clan.” Counsel however submitted that members of one clan may belong to different family groups for purposes of succession to property as distinguished from succession to a stool, and may therefore not be connected in blood and affinity as to be entitled to be told the tradition of the one family or the other. That raises the important question: what is a clan? Rattray in his Ashanti Law and Constitution, p. 63, defines a clan as follows: “ ‘A clan is an exogamous division of a tribe, all the clansmen or members of which are held to be related to one another and bound together by the common tie of clanship.’ This tie in Ashanti is, for all ordinary purposes, belief in a common descent from some ancestress; reaching back still further, it was belief in a common descent from an ancestress who was descended from some animal.” And at pp. 69-70 the learned author said: “The main characteristics of the clan system in Ashanti appear, then to be: (1) All persons bearing a common clan name, resident however widely apart, are held to be related by blood. In consequence, they are considered to stand to each other in a prohibited degree of relationship with regard to marriage, and to be bound together by a sentimental tie of brotherhood. (2) The heads of the various household groups exercise complete control only over these members of their clan who are directly related by a blood-tie that is practically, not theoretically capable of demonstration, as being traceable to a common female ancestress who founded that particular family group; in other words, their authority extends only to the nearer kinsmen. (3) Clan descent alone confers the right (a) to inherit property; (b) to perform the sacra for ancestral spirits; (c) to succeed to certain offices; (d) to be buried in a particular cemetery; (e) to unite in the performance of certain funeral rites. (4) The clan tie cannot be lost or broken save by expulsion from the clan. (5) By a legal fiction, clan relationship might sometimes be acquired otherwise than by birth.”

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What this means is that all members of an Akan clan are regarded as descended in the direct female line from a common very remote ancestress, e.g. Asonafo, i.e. members of the Asona clan are blood descendants from the very remote ancestress Aso, Ekonafo are blood descendants from Eko and Agonafo blood descendants from the very remote ancestress Ago. Now an Akan family, for the purpose of ownership of property called the Abusua, are all persons lineally descended in the direct female line from a common known ancestress: see Amarfio v. Ayorkor7 Thus Rattray says in Ashanti, p. 35 that “The Ashanti word for clan is abusua, and this word is synonymous with mogya (blood). There is a well-known proverb which runs Abusua bako mogya bako, ‘one clan one blood.’ “ Sarbah maintains the same principle that the abusua or ebusua and the clan signify the same group. The clan or abusua has many concentric families variously called the immediate or the nearest, the remote or extended family reckoning from any particular individual member of the clan. Now the general principle of succession under customary law is that a person’s self-acquired property vests in his family, i.e. the whole family, the abusua, upon his death intestate; but the right to immediate enjoyment of the beneficial interest in it is limited to the members of the immediate family. For the appointment of a successor to a deceased member of the abusua, persons nearest in relationship to the deceased, i.e. members of his immediate family come in for first consideration and take priority over members of the more remote group or family; but where there are no persons in the family circles closest or nearest in blood relationship to the deceased, any suitable person from the outer or wider circle, the extended family, has a right to be considered. Now the immediate family of an Akan person, male or female, consists of his or her mother, the mother’s brothers and sisters, the children of female descendants of his mother; in short, a person’s immediate maternal family consists of the descendants of his or her maternal grandmother in the direct female line; the next family nearest to him will be the descendant’s of the maternal great-grand-mother in the direct female line, so that if the descendants of the grandmother are extinct, the immediate family will be the descendants of the great-grand-aunts, the next will be the descendants of the great-great-grandmother and so on until the widest possible circle of relations is encompassed, which often means the clan. Hence it is that to the Akans the idea of complete failure of the matrilineal family for purposes of succession is inconceivable, for if no member

[p.266] of [1965] GLR 257 of the abusua can be found in any particular town, a near clansman may be traced to the next town, district or state as the case may be. It follows that any member of a clan has a right to be told that tradition of any section of the clan among whom he may happen to live, because he must know when or where he comes in for purposes of succession. Now Nana Osei-Du is the occupant of the Agona clan stool of Amoako, and for that matter is the head of the Agona clan at Amoako; as such he has the responsibility of presiding over meetings for settlement of affairs of the clan and the sections thereof, which matters include succession to deceased members of any particular branch or section. Obviously it is due to a person in his position to be told the tradition of any branch of the abusua including the late Addo’s abusua. Therefore Nana Osei-Du is a competent witness to give evidence as to the tradition of Addo’s family which he learned from the late Nana Pramang, the former occupant of the Agona female stool, and from other elders of the family. Next is the submission that the trial judge should not have attached any weight to the evidence as to pedigree given by the plaintiff’s witness Agyare, because his evidence in that regard contradicts pleadings he filed in a previous suit and an affidavit previously sworn to by him. The general principle governing such a case is that if a witness has sworn to, said, or written the contrary of that which he swears in a case being then tried, his evidence should not have much weight with the court unless his reason for doing so is satisfactorily accounted for or the trial judge has good reason for preferring the evidence he gives before the court to what he had previously declared. In this case the learned judge of the High Court did direct himself on these matters; and having done so, he felt confident that he could in justice exercise his discretion properly by accepting the evidence which Agyare gave before him; he stated; “I certainly prefer to rely on what has been sworn and tested on oath to what is merely embodied in pleadings. Experience shows that there are at times considerable divergences between pleadings and sworn testimony. Accordingly, as I have said, I am compelled to reach the conclusion in this case that the plaintiff and her family are members of the immediate family of the late Kwaku Addo.” In my opinion the learned judge is right in his decision. I must add that there are other very cogent reasons apart from those given by him which warrant his so doing.

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I have taken the trouble to give full consideration to the question of the admissibility of the traditional evidence, and done so because of the importance which counsel for the defendants attached to it in their submissions. But it must be said in fairness to the learned judge that he based his decision upon direct evidence in one respect and upon very strong evidence of accomplished facts on the other. On the issues as to who was originally appointed successor to Addo, there is the evidence admitted by all that at the time of Addo’s death Pramang, his sister of the full-blood, was the sole descendant of his grandmother Yaa Dua who survived him. There is no evidence of any bad character which by customary law should disqualify her from appointment to succeed her brother Addo, or which gives the first defendant, a distant relation in the clan, a right to be preferred to Pramang. That being the case, no one could possibly contest her right to succeed Addo. In those circumstances the oral evidence given by a responsible eye-witness that Pramang was the successor appointed to Addo, and that after she had succeeded she made the first defendant her caretaker, is a logical consequence of Pramang’s legal position, and should be accepted. The determination of the issue whether in the present circumstances of Addo’s family, the plaintiff and the descendants of her grandmother constitute the immediate family of Addo and Pramang was greatly facilitated by two significant admissions made by the first defendant and his sister Akua Pokuaa, his fourth witness. Akua Pokuaa admitted that upon Pramang’s death the plaintiff was appointed to succeed her in the office of queenmother, and in addition she was also appointed to succeed to her self-acquired properties. The legal inference from that evidence is that the plaintiff belongs to the immediate family of the late Pramang; and since Pramang is a sister of the whole-blood of Addo, it follows that the plaintiff belongs to the immediate family of Addo too. Another important matter is the evidence of the ancestry of all predecessors of the plaintiff on the queen-mother stool; a list of these as known from the tradition of the stool, as given by the plaintiff was called out to the first defendant; this list included the plaintiff ‘s mother and her grandmother, Addo’s sister Pramang, her mother and her grandmother; all these are shown to have descended from two sisters, Yaa Dua, Addo’s grandmother, and Brago, the plaintiff’s great-grandmother who were said to be children of Adjobi, the ancestress through whom the plaintiff claims relationship with Addo. The first defendant said that it is not correct that only descendants of Adjobi occupied the female stool of Amoako. But when asked by counsel for the plaintiff whether the name of any other occupant had been omitted from the list read out to him, the first defendant

[p.268] of [1965] GLR 257 replied, “I cannot mention any other occupant of the female stool you [counsel] omitted.” If none has been omitted, then the list must be accepted as correct. The logical inference from those facts is that the plaintiff’s mother was a near relation to Pramang’s mother whom she succeeded on the queenmother stool. Consequently the plaintiff herself must be a near relation to Pramang whom she succeeded on the queen mother stool, and also to Addo, the full brother of Pramang. From what has been said so far, it is made crystal clear that the learned judge’s decision on the first two issues is very sound both upon the facts and upon the law applicable to the case; his decision therefore should not be disturbed. The law regulating dealings with family property is well-settled, and is as follows: The head of the family or the successor is an indispensable person in the alienation of family land; and alienation of family property made by the head of the family or a successor purporting to be with the consent and concurrence of the principal members of the family is voidable at the instance of the family if they act timeously; but a conveyance made by any other member without the indispensable person, the head of the family or the successor as the case may be, is void ab initio and confers no interest or title in the land on the purchaser or mortgagee. The mortgage in this case was granted by the first defendant, and the second defendant took it in spite of opposition by the plaintiff the successor; that being so, the transaction is void and of no effect. The learned judge is therefore right in so declaring it. The order for accounts made against the first defendant is in a different category. The learned judge was right in dismissing the claim for accounts against the second defendant, but there are no legal grounds which justify an order for accounts against the first defendant against whom there is no claim for accounts. Counsel for the plaintiff did not seek to support the order, and agreed that it should be deleted from the judgment. For the reasons given above I will amend the judgment of the court below by deleting from it the following paragraph: “I order that the first defendant do account to the plaintiff on or before 30 September next, for the proceeds realised or which would reasonably have been realised by him from the farm in dispute from January 1955 to the date of this judgment. The first defendant shall pay to the plaintiff the sums found due to her upon the taking of such account save and except such sums as were expended by the first defendant in making sandcrete blocks or otherwise on the late Addo’s house. Liberty

[p.269] of [1965] GLR 257 is hereby reserved to the plaintiff to surcharge and falsify such accounts. “ Subject to this, I would dismiss the appeal.

JUDGMENT OF MILLS-ODOI J.S.C.

I agree.

JUDGMENT OF BRUCE-LYLE J.S.C.

I also agree.

DECISION

Appeal dismissed. Order for accounts against first defendant reversed.

S.K.D.-B.