IN RE ESTATE OF KWABENA APPIANIN (DECD.); FRIMPONG v. ANANE [1965] GLR 354

DIVISION: SUPREME COURT

DATE: 17 MAY 1965

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

CASES REFERRED TO

(1) Abakah v. Ambradu [1963] 1 G.L.R. 456, S.C.

(2) Lartey v. Mensah (1958) 3 W.A.L.R. 410.

(3) Yerenchi v. Akuffo (1905) 1 Ren. 366.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Djabanor J. in the High Court, Kumasi, granting letters of administration to the plaintiff. The facts as summarised in the headnote are taken from the judgment of the Supreme Court delivered by Ollennu J.S.C. COUNSEL

Owusu for the appellant.

Osei-Bonsu for the respondent.

[p.355] of [1965] GLR 354

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Djabanor J. granting letters of administration to the plaintiff, the respondent herein, in respect of the estate of one

Kwabena Appianin, deceased. Both parties, i.e. the plaintiff and the defendant are uterine grand-nephews of the deceased Kwabena Appianin; the plaintiff is the older of the two.

At the time of his death, Kwabena Appianin was the head of his family and was possessed of property some of which he had inherited from deceased members of the family. A few weeks before his death,

Kwabena Appianin convened a meeting of the family and to it he invited some elders of the Konongo town who are not members of the family. According to the plaintiff, Kwabena Appianin at that meeting directed, among other things, that the defendant should succeed him, both as to property as well as to the office of headship of the family. Such direction is, of course, not binding upon the family. The family can treat those wishes with respect, but are not bound by them; they would be within their rights under customary law to reject them, and to make their own appointment or appointments. The defendant’s version of the proceedings of the said meeting is that Kwabena Appianin made a gift of all the properties to him and appointed him the head of the family with effect from his, Kwabena Appianin’s, death.

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. However, the defendant himself, though not his witnesses, confirmed the evidence given by the plaintiff and his two witnesses, that a meeting of the family was held after the death of Kwabena Appianin, and that the defendant was thereat appointed successor to Kwabena Appianin and also head of the family, and that he, thereupon, gave the necessary customary drinks in acceptance of the two offices. The defendant therefore held those offices by virtue of the appointment by the family, and not by right of gift from or appointment by Kwabena

Appianin.

It is the plaintiff’s case that the defendant was formally deposed in accordance with customary law by the family on 23 October 1960, at a family meeting convened to consider complaints which the family had against him; and that upon the defendant’s deposition, he, the plaintiff, was appointed successor to

Kwabena Appianin in the place of the defendant, and he made the application for the letters of administration upon the strength of his said appointment.

The complaints which the plaintiff says the family have against the defendant are:

[p.356] of [1965] GLR 354

(1) That the defendant persistently flouted the express wishes of the old man regarding the administration of his estate i.e. his desire for the widow and children and John and Kofi Donkor to remain in the house. They were ejected by the defendant.

(2) The defendant flouted the suggestion of the family with regard to the succession to Kofi Donkor’s estate, after he had died as a result of the defendant’s unwillingness to provide for Kofi Donkor’s health needs.

(3) That the defendant neglected to improve the family house. (He rather used the proceeds from the deceased’s estate to build his own.)

(4) Waste of funds. He bought himself a car and did not look after the members of the family.

There is no question that if these complaints are well founded they would warrant the deposition of the defendant by the family. The defendant denied that he had been deposed, and contended that no meeting of the family had taken place at which he could be deposed.

The main issue joined between the parties therefore is whether the defendant had been deposed, that is, whether a family meeting for the deposition was held in accordance with custom. The trial judge resolved this issue in favour of the plaintiff. That decision of the High Court has been attacked in this court on five grounds argued together, the gist of which is as follows: Since there is a sharp conflict between the parties as to whether or not a meeting was held, the trial court should have made specific findings upon the following:

(a) whether all members of the family were given notice of the meeting, and particularly whether the defendant and his mother were invited;

(b) if all members of the family were invited to the meeting, Whether they were given the agenda for the meeting.

Counsel submitted that if all principal members of the family are not given notice of the meeting, and also that if the agenda for the meeting did not state that the object of the meeting is the deposition of the defendant, the deposition would, in either case, be invalid. Counsel relied upon Abakah v. Ambradu1 and

Lartey v. Mensah2 a High Court judgment cited with approval in Abakah v. Ambradu, supra.

In the case of Lartey v. Mensah, a family meeting was convened by the head to settle differences between some members of the family and the members were notified of the meeting and the purpose of it;

[p.357] of [1965] GLR 354 some of the principal members stayed away from the meeting. In the course of the meeting the head resigned his office on the grounds that some members had been disrespectful to him during the proceedings.

The High Court, holding in those circumstances that the appointment was void, said inter alia3:

“According to native custom the head of a family is appointed at a meeting of all the accredited elders of the family summoned for that purpose. The meeting at which an appointment is to be made should be convened for that purpose and notice of it should be given to all members of the family entitled, by custom, to participate in the appointment. If then some elders stay away from the meeting, those who do attend can make an appointment in the absence of the former. Where notice given to the members of the family shows that some particular business is to be transacted at a meeting, for example the settlement of disputes, and a head is appointed at that particular meeting, that appointment of a head is null and void, prior notice of the appointment not having been given to all concerned. A member of the family may not be interested in the settlement of disputes between other members of the family but he has by custom an inherent right to a say in the appointment of the head; and it is unjust that some only of the members of the family should appoint the head when others have not had an opportunity of being heard on the matter.”

And in Abakah v. Ambradu, this court held the removal of a head of family and the appointment of another in his place to be void, because notice of the meeting was not given to the head who was to be deposed, and the majority of the principal members. In the course of the judgment in the case the court said4: “According to custom the head of a family is appointed by the principal members of the family. They are also cloaked with authority to depose him, but the deposition will be invalid unless a complaint is lodged against him and he is summoned to answer it. The complaint must show what offences the head of family has committed against the family in order to afford him an opportunity to meet them. If the complaint is proved he may be removed by a majority of the principal members of the family present at the meeting.

But where the head of family who is summoned by the principal members of the family to attend a family meeting to

[p.358] of [1965] GLR 354 answer the complaint against him fails to attend the hearing, and does not give good reason for his absence, he may be removed. It is of great importance also that all the principal members of the family should be invited to the meeting because any decision taken is by the majority of the principal members attending the meeting . . . In the case of the appointment of head of family, the headship must as a matter of course first become vacant to the knowledge of the family. The appointment is then made at a meeting of the council of the family, consisting of such of the elders or principal members as accept the invitation to the meeting.

However, if notice of the meeting was given to all the principal members who are entitled to be invited to it, an appointment made at the meeting would be valid and effective notwithstanding the absence of some of the principal members from the meeting.”

The principle of customary law which emerges from the cases cited and several others is, that in matters such as appointment and removal of a head of family which are of vital importance to a family, all principal members of the family are entitled to a hearing, and opportunity should be given to all of them so that those of them who wish to be heard can exercise their right. This means that notice of the proposed meeting and the gist of the purpose of the meeting should be given to all the principal members. If after such notice having been given, any principal member fails to attend, the members present may transact the business as announced for the meeting or any other business which may competently be transacted within the terms of the object published, and the business so transacted will be binding on the whole family, those who absented themselves cannot be heard to challenge it. Thus if members are informed that the meeting is being convened to inquire into the conduct of the head, or into the manner of his administration of the family properties, it is implied that if complaints made against the head are substantiated at the meeting, the natural resulting step is his deposition, followed by the appointment of another head to take his place. Customary law, said Griffith Ag.C.J. in Yerenchi v. Akuffo,5 consists in doing what is reasonable. It will be most unreasonable, indeed unjust, to pass notice round that a meeting is being convened specifically to depose a head when no investigations have been held into any charges or allegations made against him. To do so is to prejudge the issue, condemning a man before you have heard him. Similarly if the head of the family dies, and a meeting of the family is convened.

[p.359] of [1965] GLR 354 after the burial or the funeral to discuss the affairs of the family, there is a reasonable inference that a new head of the family may be appointed at that meeting. Notices of family meeting are not generally given in writing, and it will be unreasonable and undesirable, even impossible, for the messengers sent to announce the meeting to state the purpose of the meeting in any detail. Thus it is within the competency of a family meeting to take any decision or action which properly flows from the general object advertised. We have now to apply these principles to this case.

The first issue in this appeal is whether all the principal members of the family were invited to the meeting. It is true that the plaintiff and his two witnesses did not state the specific number of persons who constitute the elders of the family, and did not specifically state the names of each and every member of the family who was invited. But each of them stated emphatically that all members of the family were notified of the meeting. The line of cross-examination which was pursued by counsel for the defendant is most important on this issue. There was no allegation that any member of the family who should have been invited to the meeting was not invited and therefore the meeting and the proceedings thereof were a nullity. Significantly enough, what was rather alleged, and that persistently in the cross-examination of the plaintiff and each of his two witnesses, is that outsiders should have been invited to the meeting, but none was invited. The impression created by the line of cross-examination is that failure so to invite outsiders to the meeting vitiates the proceedings of the meeting.

Thus we find the plaintiff saying under cross-examination:

“Present at the defendant’s deposition were the following strangers: Apontua, one teacher Boateng, and another elderly man whose name I have forgotten. Okyeame Atta was not called. He is the bosom friend of the defendant. Because of this case he has taken my wife, with whom I have six children, from me. The

Konongohene was not in Konongo at the time-but my father the Krontihene was informed and when he was coming – just then defendant left away saying that we may take action against him. All the elders of the family were present and deposed the defendant.”

Again, it appears that with the exception of probably the first two questions, the whole of the cross-examination of the first witness for the plaintiff, Kwame Adade, was devoted to this question of absence of certain strangers from the meeting. The whole of the evidence of that witness excluding the first three lines is as follows:

[p.360] of [1965] GLR 354

“At the meeting held two years ago to depose the defendant the charges were that he was not managing the family well and was not interested in any matter that arose in the house. We are not attached to the Konongo stool family so we need not call the Konongo linguist or chief-we can manage our affairs without calling them. In any case the Konongohene was in Accra. We however called the Krontihene. The kyeame was called only to listen but we usually don’t call them when we are settling our family matters. We went with the rum to inform the Krontihene that we had deposed the defendant. We called the Krontihene to listen but scarcely had we finished deposing the defendant, did he get up and go away. So it was the rum with which we appointed the plaintiff that we went and reported to the Krontihene. It is not true that there was disagreement at the deposition and so we did not depose him. We actually deposed him. The plaintiff was properly enstooled.”

And the major part of the cross-examination of the second witness for the plaintiff appears to have been devoted to that subject. Here are a few extracts:

“Apart from members of the family Okyeame Atta and Kwaku Mosi also attended the meeting with

Appianin. Kyeame Atta was not representing the Konongohene. He was called in by Appianin himself because our elders had been friends of the elders of Konongo for a long time. We ourselves are not from

Konongo . . .

At the meeting of two years ago two strangers joined the family members who attended. We informed the

Krontihene to come and assist in settling our family matter. He was not able to come when the defendant got up and went away. The Krontihene is my father. We did not sit to hear the case to a finish when the defendant went away. We therefore destooled him. We told him the charges and asked him to call in his mother but he said he does not share any property with us so if we liked we might sue him.”

Still pursuing that line the first witness for the defendant, Okyeame Kodjo Atta, was called, specifically to say that he was invited to the meeting of the family held shortly before the death of Appianin, but he said that, “After Appianin’s death I did not attend any other meeting.” To be consistent with that piece of evidence he went on to deny facts which the defendant himself relies upon, namely, (1) the fact that at the meeting convened by Appianin, Appianin suggested that the defendant should be his successor, and the family agreed, and (2) the fact that after Appianin’s death the [p.361] of [1965] GLR 354 family formally appointed him, the defendant, successor to Appianin and he, the defendant gave aseda

(drink) in acceptance. Thus the first witness for the defendant, the said Okyeame Kodjo Atta, said under cross-examination:

“It is not true that at that meeting what Appianin said was that he would prefer that the defendant should succeed him when he died, and the family agreed. I did not hear anything said about who should succeed

Appianin at that meeting. I did not hear that after Appianin’s death the family met and appointed the defendant: as Appianin’s successor.”

Meaning that if there was such a meeting he should have been invited to it.

Still on the question of whether a meeting was held for the deposition of the defendant, counsel urged with his usual forcefulness, that if there was such a meeting the second witness for the defendant, Yaw

Kru, who is a member of the family, should have been invited to it, but that witness deposed that he had not heard of any such meeting, therefore either the meeting in’ question did not take place or if it did,

Yaw Kru was not invited to it, and therefore the deposition made thereat is void. But how can a court take that witness seriously who, like Okyeame Kodjo Atta, contradicts the defendant by saying:

“After his (Appianin’s) death we have had no other meeting. … It is not true that late Appianin said he would like Frimpong to succeed him and that everything be handed over to him. He said he had gifted everything to

Frimpong. After the death of Appianin the family has not met to confirm the defendant’s appointment as successor. We agreed before Appianin’s death and we have been recognising defendant as successor.”

Okyeame Kodjo Atta’s expression of ignorance of a meeting of the family after Appianin’s death, for a formal appointment or recognition of the defendant as successor to Appianin is pardonable because he is not a member of the family and need not know all that happens in the family. But the statement of Yaw

Kru, a member of the family, that the family has never met to confirm the defendant’s appointment, a fact which the defendant himself admits both in his pleadings and in his evidence, is a serious matter. In his statement of claim the plaintiff pleaded that, “When Kwabena Appianin died some six years ago, one

Kojo Frimpong, son of the defendant, was appointed successor at family meeting presided over by the family head, Kwame Adade.” In reply to that averment the defendant in paragraph (3) of his statement of defence pleaded inter alia, “Paragraph (3) in so far as

[p.362] of [1965] GLR 354 the defendant, Kwadwo Frimpong, was made a successor is admitted but the other averments contained therein are denied.” And in his evidence-in-chief he said:

“About five and a half years ago my late grandfather sent for me from Tarkwa. There was a meeting to which he called the Konongohene and the whole of our family. The Konongohene was represented by his kyeame-Atta. Nana told the meeting that he was old and that he wished me-the youngest of the grandsons-to take the whole of his properties and estates. . . . When he gave me these properties I paid an amount of ten pounds and two bottles of schnapps as the aseda. All members of the family agreed to the gift. He also said I should be his successor after his death. Nobody objected to this. About four months after this he died. After the funeral celebrations I gave the family another bottle of schnapps in confirmation of what the deceased had told us. They accepted this aseda. I was therefore installed as successor to the late Appianin, and that automatically made me the head of the family, because he was the head of family.”

The denial by Yaw Kru of these facts, admitted by the defendant both in his pleadings and in his evidence, proves one or other of two alternative facts, namely: either (1) that Yaw Kru is a self-confessed liar whose word should not be trusted, or, what is more important, (2) that his presence at a meeting for the appointment of a successor to Appianin as head of the family is not necessary. In either case, his evidence that he has not heard of any meeting of the family for the deposition of the defendant is rendered useless.

That leaves the question of whether or not the defendant was present at the meeting. On this question there is the testimony of the plaintiff and each of his two witnesses that the defendant was present, but left soon after his deposition; and as against that there is the denial by the defendant on oath that he was present. All the circumstances tend to support the version of the plaintiff and his witnesses and are against that of the defendant. In any event it is a question of oath against oath, and the trial judge in the exercise of his rights preferred that of the plaintiff and his witnesses to that of the defendant.

It is true that it would have been more satisfactory if detailed evidence had been given with regard to the meeting of 23 October 1960, but having regard to the implications in the line of cross-examination and the way customary meetings of a family are summoned, and the general informal proceedings thereat, it will be asking too much to insist upon a strict formal compliance with the

[p.363] of [1965] GLR 354 letter of the law as regards process for the holding of family meeting for the appointment and deposition of the successor, the head of family or the holder of any other office in the family for that matter. As learned counsel for the defendant rightly pointed out, the only issue in the appeal is whether the trial judge was right in his finding that a family meeting was properly held as to make the deposition of the defendant valid. It is evident from what we have said so far, that the learned judge was right in his findings on that issue. The appeal must therefore be dismissed, and it is accordingly dismissed with costs fixed at £G48 15s.

DECISION

Appeal dismissed.

S.K.D.B.