OFORI v. DANSO AND ANOTHER [1968] GLR 20

DIVISION: HIGH COURT, CAPE COAST

DATE: 11 JANUARY 1968

BEFORE: ARCHER J.

NATURE OF PROCEEDINGS

ACTION for a declaration that (a) the plaintiff was the proper person to succeed his deceased uncle and (b) the appointment of the second defendant as successor was contrary to custom. The facts are fully set out in the judgment.

COUNSEL

A. H. Sackeyfio for the plaintiff.

I. G. Carson for the defendants.

[p.22] of [1968] GLR 20

JUDGMENT OF ARCHER J.

The plaintiff seeks “a declaration that he is the proper person to succeed to the estate of his late uncle Kweku Fih, after the death of his cousin, Kobina Yeboah who first succeeded to the estate, after the death of the said uncle Kweku Fih.” The plaintiff further seeks another “declaration that the alleged appointment of the second defendant to succeed to the said estate of the said late Kweku Fih is contrary to native customary law.” The plaintiff gave evidence and called three witnesses. Both the first and second defendants also gave evidence and called three witnesses. In his address, Mr. Carson, learned counsel for the defendants, raised two points of law attacking the writ of summons and a pleading in the statement of claim. Although such matters could have been raised at a very early stage of the proceedings, they were never raised until at the commencement of the addresses. Nevertheless I decided to listen to those points and I wish to dispose of them now before embarking upon a proper consideration of the law and evidence in this suit. The first point was that the writ of summons and the statement of claim are defective because although the first defendant, Opanyin Kwesi Danso, is described as head of the Yoko family of Odoben, yet it is not stated that he is being sued for and on behalf of that family. Learned counsel referred to Order 16, r. 8 (b) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which provides:

“The head of a family in accordance with custom, and the occupant of a Stool (or where the Stool is vacant, the Regent or Caretaker of such Stool) may sue and be sued on behalf of or as representing such Family or Stool.”

Learned counsel’s reason for his submission was that any judgment entered against the first defendant would not be binding on the family in the absence of the use of the words “on behalf of or as representing such family.” I have tried in vain to find an adjective to clarify this submission as I consider the word “academic” even not too appropriate. I think the description in the title of the suit that the first defendant is the head of the Yoko family of Odoben indicates that he is being sued in that capacity and not in his individual capacity. Since the Yoko family consists of numerous persons, Order 16, r. 8 (b) enables the plaintiff to single out the first defendant and sue him. The family members are aware that the first defendant has been sued as such in a dispute between the plaintiff and the family as a whole. On this point therefore I rule that there is no substance in the submission and if there is no substance in it then it cannot even be academic. It is vaporous argument which becomes evanescent before a capful of wind. [p.23] of [1968] GLR 20

The second point raised is that paragraph (5) of the statement of claim is a statement of customary law which should not have been pleaded. If this paragraph was a prolix pleading then the defendants by their statement of defence (para. (5)) should not have pleaded in denial of this statement of customary rule as propounded in Sarbah’s Fanti Customary Laws (2nd ed.) (1904) but should have ignored it as prolix. In reply to this submission, Mr. Sackeyfio, learned counsel for the plaintiff, relied on Order 19, r. 31 which provides that: “In all cases in which the party pleading relies upon a native law or custom, the native law or custom relied upon shall be stated in the pleading with sufficient particulars to show the nature and effect of the native law or custom in question and the geographical area and the tribe or tribes to which it relates.”

It is obvious therefore that customary law replied on by a party must be pleaded. I have considered paragraph 65 (1) of the Courts Decree, 1966 (N.L.C.D. 84), which provides that, “Any question as to the existence or content of a rule of customary law is a question of law for the Court and not a question of fact.” But although Order 19, r. 4 requires only material facts to be pleaded, it seems that Order 19, r. 31 has not been repealed because paragraph 88 (2) of the Courts Decree, 1966, provides that: “Until provision is otherwise made under paragraph 86 of this Decree, the Rules in force in the High Court immediately before the commencement of this Decree shall, with the necessary modifications, apply in the High Court referred to in this Decree.”

The Supreme [High] Court (Civil Procedure) Rules, 1954, are still in force by virtue of this transitional and saving paragraph and as there is no indication that Order 19, r. 31 has been repealed or revoked by the Rules Committee, I think the plaintiff is not only revoked by the Rule Committee, I think the plaintiff is not only entitled to plead paragraph (5) of his statement of claim but he is under a mandatory obligation to plead it. In any case Rule 6 of paragraph 64 (1) of the Courts Decree, 1966, provides that: “Subject to the foregoing rules, an issue should be determined according to the common law unless the plaintiff is subject to any system of customary law and claims to have the issue determined according to that system, when it should be so determined.”

This Rule 6 therefore makes the preservation and observance of Order 19, r. 31 imperative. I therefore rule that the second point raised by learned counsel for the defendants is rather contrary to

[p.24] of [1968] GLR 20 established law and paragraph (5) of the statement of claim cannot therefore be impeached as unnecessary.

I am now free to deal with the plaintiff’s claim. The facts are simple and interesting. There is a certain family known as the Yoko family of Odoben of which the plaintiff and the two defendants are members. The first defendant is the acknowledged head of that family and that has not been disputed by the plaintiff. This family can trace their lineage to one common ancestress known as Abena Esamoa who begat three daughters, namely, Abena Esiyaa, Yaa Odobenmaa and Afua Mbiriwa. The eldest of these three sisters Abena Esiyaa begat three daughters and one son, namely, Akua Adai, Kweku Fih the son, Adjua Abrewa and Abena Nkrumah. Akua Adai had two daughters, namely, Efua Korantemaa and Akosua Donkor, and two sons Yaw Baffoe and Kobina Baidoo. Adjua Abrewa also had two sons, namely, Kobina Yeboah and Kwesi Amoako the present second defendant, and three daughters whose names I need not mention to avoid confusion. Abena Nkrumah had two sons, namely, Kofi Mintah and S. K. Ofori, the present plaintiff, and a daughter Adjua Peboa. Kweku Fih also had children one of them being Kobina Danso who gave evidence for the plaintiff as his third witness. There is evidence that when Kweku Fih died, the sons of the eldest sister Akua Adai were by-passed and the eldest son of the younger sister Adjua Abrewa was appointed successor to the properties of Kweku Fih. The successor was Kobina Yeboah. On his death, the second defendant Kwesi Amoako who is a younger brother of Kobina Yeboah was appointed successor and was declared successor to both the properties of Kweku Fih and Kobina Yeboah. There is no doubt, and I wish to remark at this stage, that on the death of Kweku Fih, his property became family property to which Kobina Yeboah was appointed successor. Kobina Yeboah also in his lifetime had self-acquired property which on his death also became family property. The plaintiff’s complaint therefore is that the second defendant is only entitled as successor to the self-acquired property of Kobina Yeboah, his deceased elder brother and not to the property left by Kweku Fih and that, as Kobina Yeboah, a nephew in one branch of the family, has enjoyed Kweku Fih’s property, it is proper that another nephew from another branch of the family, that is a son of another sister of Kweku Fih should be appointed successor. The plaintiff’s main contention is that the head of family and the elders have not allowed the succession to rotate among the branch families created by the three sisters of Kweku Fih. The plaintiff therefore relied on a passage in Sarbah’s Fanti Customary Laws (3rd ed.) at pp. 104-105 which was pleaded as paragraph (5) of the statement of claim as follows: [p.25] of [1968] GLR 20

“Where the nephews are capable to look after the property, they take by turns: e.g. if the three sisters had three sons each, after the death or deposition for misconduct of the eldest son of the eldest sister, one of the sons of the second sister will be entitled to succeed to the uncle’s property, and on his death the eldest son of the youngest sister will be next entitled, and one branch will not be exhausted before those of the other branch come in.” If this principle of customary law as enunciated by Sarbah has the blessing of modern court decisions, then I think the contention of the plaintiff would appear to be impregnable. The plaintiff relies on Sarbah’s opinion and maintains in his evidence that after the announcement of the appointment of the second defendant as successor, he protested and drew the attention of the head of family to the contention that he was eligible to succeed to the properties of Kweku Fih on the death of Kobina Yeboah. Before I consider whether or not Sarbah’s statement represents the law, I wish to observe that in no part of his evidence did the plaintiff challenge the constitutionality of the family meeting which appointed the second defendant as successor. If that is the case, then my task is very easy. Has the wrong person been appointed and if so, can the court interfere? I think I can best answer that question by taking the issues agreed upon by the parties for the trial. I shall take the fourth issue first, that is, “Whether Kweku Fih had any maternal brothers in addition to the three maternal sisters?” The evidence adduced by both parties indicates that Kweku Fih had only three maternal sisters and I find that Kweku Fih had no maternal brothers. The next issue is, “Whether the line in which Kofi Mintah is succeeding Kweku Botwe is the same line the succession to which is being litigated?” The evidence adduced by both parties indicate that Kofi Mintah, the elder brother of the plaintiff, is successor to Kweku Botwe in a different line. Kweku Botwe is the son of Yaa Odobenmaa, a maternal aunt of Kweku Fih and his sister, Abena Nkrumah, who is the mother of Kofi Mintah and S. K. Ofori, the plaintiff. Abena Nkrumah was therefore the niece of Yaa Odobenmaa, the mother of Kweku Botwe. Kweku Botwe and Abena Nkrumah (the mother of Kofi Mintah and S. K. Ofori, the plaintiff) were therefore first cousins. There is evidence that Kweku Yedu and Kweku Botwe, the children of Yaa Odobenmaa had no maternal sister and so on the death of Kweku Yedu, Kweku Botwe succeeded him and on the latter’s death, in the absence of any maternal sister, Kofi Mintah was appointed to succeed Kweku Botwe. In the plaintiff’s own evidence in cross-examination, “Botwe [p.26] of [1968] GLR 20 and Yedu had no sisters and any member of the family had a right to succeed.” I find therefore that the line of succession in which Kofi Mintah is at present successor is different from the line of succession which is now the subject-matter of this dispute.

The remaining first three issues set down for trial can be dealt with in one exercise which will dispose of this case. They are:

(a) Whether where nephews are capable of looking after the property, they take by turns in matters of succession; if so

(b) then who is the proper person to succeed as between plaintiff and the second defendant on the death of Kobina Yeboah;

(c) whether the appointment of the second defendant as successor amounts to an arbitrary or capricious passing over of the plaintiff.

I shall deal with these issues by endeavouring to find out whether Sarbah’s proposition relied on by the plaintiff is a rigid rule of customary law of succession among the Fantes. The only textbook with a proposition which is nearly similar to that of Sarbah is Dr. Bentsi-Enchill’s Ghana Land Law at p.166 where he states as follows:

“Similarly in matrilineages, the preference—almost the rule— is to select the successor from among the nephews; considering the children of each sister in turn, according to the seniority of each sister, though the earlier rule seems to have been to consider uterine brothers of the deceased (in order of seniority) first before having recourse to nephews.”

But I note that Dr. Bentsi-Enchill at p.165 of his book cited a passage by Field, Social Organization of the

Ga People at p. 46 as follows:

“All succession is a question of election by relatives not of inherent right. There are certain very usual customs, . . . but there are no rigid rules. Custom is, of course tending to harden into rigid rules of succession, and is being assisted to do so by lawyers who from time to time claim for their clients inherent rights. Native procedure has, however, only one rigid rule, namely, that the election of the successor shall be constitutionally carried out at a proper meeting of kinsmen.” I have also consulted Mr. Justice Ollennu’s book, The Law of Testate and Intestate Succession in Ghana (1966) and it appears that the learned author at p. 85 quotes the same Field, Social Organization of the Ga People, p. 43 as follows:

“There are no rigid laws of inheritance as a European understands codified law. There are only certain very usual practices which the elders are at liberty to modify in any way they deem

[p.27] of [1968] GLR 20 fit. They do not administer law, they administer what seems to them justice and wisdom.”

And then at p. 86, Ollennu again quotes Field, Akim-Kotoku, p.113, as follows:

“There are only usual lines to follow in electing inheritors and successors. The elders elect the successor according to their idea of wisdom and justice. Nobody’s position in a family tree gives him an inherent right to succeed or inherit.”

Fortunately, Ollennu has cited several cases to support this proposition and I only wish to quote some of these cases. First of all there is the judgment of Okoe v. Ankrah [1961] G.L.R. 109 delivered at the High Court, Accra on 23 February 1961 by Ollennu J. (as he then was) in which he referred to various authorities relating to the proposition of customary law that succession is by appointment and not as of right: see the judgment of Coussey J. (as he then was) in Attipoe v. Shoucaire (1948) D.C. (Land) ‘48-’51, 17. The cases of Makata v. Ahorli (1956) 1 W.A.L.R. 169, W.A.C.A., Khoury v. Tamakloe (1950) D.C. (Land) ‘48-’51, 201 and Akumanyi v. Peprah (1956) 2 W.A.L.R. 112 constitute an array of convincing and binding authorities which dwarf the magnificence and vintage of Sarbah’s proposition. The only authority relied on by the plaintiff is that of Poh v. Konamba (1957) 3 W.A.L.R. 74 where Adumua-Bossman J. (as he then was) held that the right given to the family to elect or approve a person entitled to succeed cannot be exercised capriciously and contrary to customary law. By paragraphs (8), (9) and (10) of the statement of claim, the plaintiff averred that his challenge to the second defendant’s appointment was not investigated as there was no evidence that the plaintiff is an unfit person although it is the rule that he, the plaintiff, should not be passed over arbitrarily or capriciously as was done in this case. It is therefore the duty of the plaintiff to prove that the first defendant and the other elders of the family acted capriciously and arbitrarily. The plaintiff and his three witnesses testified that when the plaintiff complained, the head of family, that is the second defendant, replied that he had taken the decision and the plaintiff could take him where he liked. Both defendants and their witnesses who were present at the meeting have denied that the plaintiff complained at the meeting. The plaintiff’s first witness, Yaw Adwidaa, appeared to me to be a junior member of the family as he is a grand-nephew of Kweku Fih. His second witness, [p.28] of [1968] GLR 20

Timothy Kojo Ghansah, also testified that the parties were his uncles and although he attended the meeting he did not go into consultation with the elders and he did not know what happened there. He also gives the impression that he is a junior member of the family. His third witness, Kobina Danso, is a son of Kweku Fih who according to custom is not entitled to succeed to his father. There appears to have been misunderstanding in the past between this witness and the second defendant and I doubt whether this witness in view of the allegations he made against the second defendant can testify favourably to the benefit of the second defendant. Kobina Danso does not belong to the Yoko family and his presence at the meeting was of no consequence. No senior member of the family gave evidence for the plaintiff. The plaintiff’s first witness Adwidaa testified that when the plaintiff protested and the second defendant replied that the plaintiff could take out a summons, the plaintiff, this witness Adwidaa and others at the meeting got up and walked out. The plaintiff’s second witness Ghansah also stated that after this dialogue, there was a quarrel and as they saw that there would be trouble they left the place. The plaintiff’s third witness Kobina Danso was also confirmatory that when the first defendant said he would not give the properties of Kweku Fih to the plaintiff, the latter walked out. The impression which I have gathered from the evidence of the plaintiff and his three witness is that the plaintiff became petulant and resorted to a walk-out in conformity with the latest techniques in twentieth century diplomacy. But the question one would ask is whether walk-outs have solved the problems of anybody. There is no evidence that the plaintiff insisted that he should be given a hearing after the first defendant’s retort. The evidence shows that the plaintiff is one of the nephews of Kweku Fih. Kobina Baidoo is a senior nephew, yet the family by-passed him and appointed the second defendant to succeed to Kobina Yeboah. The plaintiff has been sincere enough to emphasise that he is not after the properties of Kobina Yeboah. His main interest lies in the properties left by Kweku Fih. I am however satisfied on the evidence that in this particular Yoko family a successor succeeds not only to the self-acquired properties of the deceased but also to family property to which the deceased was successor. This is illustrated, from the evidence adduced, by the case of Kofi Mintah, the plaintiff’s senior brother, who succeeded not only to the properties of Kweku Botwe but also to properties Kweku Botwe had inherited from his deceased elder brother Kweku Yedu. There is also the example of the estate of [p.29] of [1968] GLR 20

Kofi Thompson another member of the family. On his death, his brother Yaw Nyarko was appointed successor and on the latter’s death Kwame Panyin succeeded to the properties left by Yaw Nyarko and Kofi Thompson. In my view, the plaintiff has failed to establish that there is a peculiar custom in the Yoko family which enables the nephews to succeed by rotation. In any case Sarbah’s proposition has misled the plaintiff and in the absence of any evidence that he has been unjustly and capriciously treated, this court is incompetent to disturb the decision of the family. The plaintiff is only one of the many eligible nephews of Kweku Fih and the family as a whole are at liberty to select one of the eligibles to succeed. That is what the customary law in matrilineages stipulates. There is no doubt that when the second defendant was appointed the family took into consideration the fact that Kweku Fih had recommended Kobina Yeboah to succeed him because the second defendant was young at the time although he would have preferred him. Kobina Yeboah had also expressed a wish that his younger brother the second defendant should succeed him. I have failed to find any customary rule which provides that the family shall not take into consideration the wishes of the deceased. There is rather the practice that the family does at times take into consideration the wishes of the intestate although the family is not bound to do so. But once the family unanimously has exercised its power to appoint, there cannot be any appeal against the decision of the family in the absence of unjust and capricious conduct on the part of the family. Even in such cases, the court will be very loath to interfere. For the above reasons, the two declarations sought by the plaintiff cannot be granted and the plaintiff’s action is therefore dismissed. Costs of N¢210 to the defendants.

DECISION

Judgment for the defendants.

S. K. T.