AMOYAW vs. AMOYAW AND ANOTHER [1999-2000] 2 GLR 124

CASES REFERRED TO

(1) Budu v Amponsah [1989-90] 1 GLR 150, CA.

(2) Amponsah v Budu [1989-90] 2 GLR 291, SC.

(3) Addo v Manko [1976] 2 GLR 454, CA.

(4) Dan v Addo [1962] 2 GLR 200, SC.

(5) Ansah v Sackey (1958) 3 WALR 325.

(6) Osei Yaw v Domfeh [1965] GLR 418, SC.

(7) Yerenchi v Akuffo (1905) 1 Ren 362.

(8) Fokuo v Mprah, Written Judgments, January-December, 1967, 291.

(9) Amoabimaa v Okyir [1965] GLR 59, SC.

(10) Nunekpeku v Ametepe [1961] GLR 301.

(11) Manu v Ainoo [1976] 1 GLR 457.

APPEAL from the decision of High Court, Accra, inter alia, granting the plaintiffs, members of a patrilineal Guan family, an order for ejectment of the defendant, a family member, from [p.128] of [1999-2000] 2 GLR 124 property forming part of estate of his deceased grandfather. The facts are sufficiently set out in the judgment of Benin J A.

Somuah-Asamoah for Opoku Adjaye for the appellant.

Owusu Ansah for the respondent.

Ansah JA. Delivered the first judgment at the invitation of Baddoo JA. The plaintiff-respondents (hereinafter referred to as the plaintiffs) claimed as administrators of the estate of the late A W Amoyaw Snr the following reliefs against the defendant-appellant (hereinafter referred to as the defendant):

“(a) Damages for trespass and for causing damage to property administered by the plaintiffs.

(b) An order restraining the defendant from interfering with plaintiffs’ administration of the estate of the deceased.

(c) An order restraining the defendant from continuing to effect structural changes to the said property.

(d) An order to compel the defendant to remove sandcrete structure and development undertaken on the said property.

(e) An order for ejectment.

(f) An order for perpetual injunction restraining the defendant, his agents, privies, workmen, assigns all and singular from continuing to occupy the said property and interfering with plaintiffs administration thereof.”

The plaintiffs’ evidence in support of their claims was that the late Alexander William Amoyaw Snr had Alexander William Amoyaw Jnr as one of his children. Alexander William Amoyaw Jnr had the defendant as one of his children. Alexander Amoyaw Snr died possessed of the following immovable properties: “(i) House No A/45, Aseseeso; (ii) house No C31/3, Farrar Avenue/Sobukwe Road and (iii) land with cocoa farm, 9.97 acres, at Abepasua, Maase in the Eastern Region.

The property in dispute is house No 31/3, Farrar Avenue/Sobukwe Road, Accra. Upon the death of Amoyaw Snr, the plaintiffs alleged, they obtained letters to administer his estate in 1981. The plaintiffs claimed that Amoyaw Snr hailed from Aseseeso where succession is patrilineal and the custom in that system is that the children (that is plaintiffs and their brothers and sisters) begotten by Amoyaw Snr are the beneficiaries of his estate.

[p.129] of [1999-2000] 2 GLR 124

When Amoyaw Jnr, their paternal brother, died the defendant, his brothers, sisters and mother obtained permission from the head of family to stay in the house in dispute for the purpose of performing the funeral. However the defendant continued to stay in the house thereafter and in fact later claimed having inherited it from his late father, Amoyaw Jnr. The defendant later carried out extension works on the house by adding store rooms to it and letting them out to tenants.

On the other hand the defendant, whilst admitting that the original owner of the house was Amoyaw Snr, asserted that he gifted it to his father, Amoyaw Jnr. The reason given for the gift was that Amoyaw Snr took a loan from one Hossein, and Amoyaw Jnr redeemed the house in consequence of which the house was gifted to him. The defendant denied any relationship between the plaintiffs and Amoyaw Snr. In fact he claimed that the plaintiffs were not the children of Amoyaw Snr.

The learned trial judge found on the evidence that the plaintiffs were the children of Amoyaw Snr; that on his death the plaintiffs and Amoyaw Jnr, the father of the defendant, their brothers and sisters, ie all the children of Amoyaw Snr, obtained letters to administer his estate and entered judgment for the plaintiffs for all the reliefs they claimed as well ¢50,000 damages for trespass by the defendant.

The defendant, dissatisfied with the judgment, brought the present appeal against same seeking a reversal thereof in his favor. The grounds of appeal were that: (a) The judgment is against the weight of evidence; and (b) the learned trial judge erred in granting the reliefs sought. Learned counsel for the defendant argued only the second ground of appeal which he modified to this extent that the trial judge erred in granting some of the reliefs which he itemised as follows:

“(a) Damages for trespass and for causing damage to property administered by the plaintiffs.

(d) An order to compel the defendant to remove sandcrete structure and development undertaken on the said property.

(e) An order for ejectment.

(f) An order for perpetual injunction restraining the defendant, his agents, privies, workmen assigns and all and

[p.130] of [1999-2000] 2 GLR 124 singular from continuing to occupy the said property and interfering with plaintiffs administration thereof.”

The inference is clear then that the defendant has no qualms with the orders made by the trial judge that the defendant be restrained from interfering with the plaintiffs’ administration of the estate of the deceased and from continuing to effect structural changes to the deceased’s said property.

It is also clear from the written submissions of the defendant that the general ground in ground (a) of the appeal has been abandoned. Where an appellant does not dispute that the judgment is against the weight of evidence he concedes thereby that the evidence supported the judgment of the court so far as the material facts found by the court were concerned. That being so, there can be no question in this suit that the trial judge’s findings that the property in question was the self-acquired property of Amoyaw Snr and remained so even at the time of his death was faultless. In the result, this appeal will centre on ground (b). It will determine how valid the other orders made were. I shall have to go back a bit and look at the customary law background of the facts in this suit as to do so will help determine the issues raised in this appeal.

It was not disputed that Amoyaw Snr was from Aseseeso Akuapem, a Guan community where the system of inheritance is patrilineal. The devolution of a self-acquired property of a person dying intestate, according to Guan custom, was determined in Budu v Amponsah [1989-90] 1 GLR 150, CA. It was held unanimously in that case that the self-acquired property of the deceased therein, a member of the patrilineal Guan community, became by operation of law the property of the family to which he belonged on his death intestate. With regard to who constituted that family, the court held that all the children of the deceased, that is both male and female, were members of his family who were entitled to the beneficial enjoyment of the deceased’s self acquired property. It was when the case above-mentioned went on further appeal to the Supreme Court, reported sub nom as Amponsah v Budu [1989-90] 2 GLR 291, SC, that a person’s immediate family was explained per Amua-Sekyi JSC at 293 thus:

“In a patrilineal family, a person’s immediate family consists of his father, his brothers and sisters being the children of his father, and the children of his brothers; his wider family consists of his immediate family and the immediate families

[p.131] of [1999-2000] 2 GLR 124 of all those who trace their ancestry through males from the common male ancestor.”

Aikins JSC also said at 298 that:

“As was rightly held in Addo v Manko [1976] 2 GLR 454, CA, in patrilineal societies the self-acquired property of a male person who dies intestate devolves not on the whole patrilineal family but on his immediate family, both as to title and as to rights of beneficial enjoyment. Generally, but not as a rule of rigidity, the group which is normally regarded as being beneficially entitled to such property is the group which is most proximate, ie his children. In the patrilineal community those who belong to a man’s family are his children (male and female), his paternal brothers and sisters, children of his paternal brothers, his paternal grandfather and the descendants of the paternal uncles in the direct male line.”

The facts in issue in Addo v Manko [1976] 2 GLR 454, CA may differ from the present suit; for in that case the issue was the right of succession to the self-acquired property of an intestate male member of a patrilineal family. In that case the claim was on behalf of the children of the deceased male on the basis that they were exclusively entitled to the immediate beneficial enjoyment of their father’s self-acquired properties. The Court of Appeal, per Annan JA, held that in a patrilineal community, like among the Guans, a man’s children would inherit immediately to the exclusion of the family of his father into which he was born. Whilst Aikins JSC agreed with Amponsah v Budu (supra) that in the Guan area children can inherit the self-acquired property of their father on his death intestate, he doubted if it could be said with any confidence that this enjoyment was to the exclusion of the other members of the family, especially in the absence of any specific evidence in favour of that principle. The position then is that the enjoyment of the property to the exclusion of the other members of the family is still in doubt. What can be said with some confidence is that in a patrilineal community the self-acquired property of a male deceased devolves on his immediate family, the most proximate being his children. It is not to be doubted that grandchildren belong to the family of the deceased, they being children in the direct line of males and that

[p.132] of [1999-2000] 2 GLR 124 is more so where such grandchildren are descendants of the children in the direct male line. That is, tracing through males from a common male ancestor. Now in the instant case, that the defendant traced his descent through a male line is demonstrated by the uncontroverted evidence that he was a child of Amoyaw Jnr, a son of Amoyaw Snr.

In this appeal, counsel for the defendant submitted that “. . .having made these findings of fact which were supported by the evidence, the court erred by failing to consider the status of the defendant, whether or not he is a family member.” He went on to say that if the court had done that it would have been found that the defendant just like his brothers and sisters are the grandchildren of Amoyaw Snr and therefore members of his family through his son Amoyaw Jnr. The result would have been that the defendant and his brothers and sisters are entitled to the beneficial enjoyment of the self-acquired property of Amoyaw Snr and also that no action for trespass could be brought against him successfully; and all the reliefs in the action could also not be granted against him.

It would not appear that this argument is sound. In the first place, as is well-known, judgment in a case is given upon the issues joined between the parties, the evidence led, the facts found and the law applicable. If issues are not joined, and no evidence led to solve them, any judgment given in those circumstances is not valid. In this suit the issues agreed upon at the summons for directions were as follows:

“(a) Whether or not the plaintiffs are the administrators of the estate of the late Amoyaw in particular reference to house No C 31/3, Farrar Avenue, Accra.

(b) Whether or not the defendant in spite of the plaintiffs having been granted letters of administration granted tenancies to various persons.

(c) Whether or not the said property was mortgaged to Hussein or IDC.

(d) Whether or not the mortgage was paid off from the rents collected by defendant’s father.

(e) Whether or not, the defendant’s father was to redeem the property and treat as his own self-acquired property.

(f) Whether or not the defendant was warned to put a stop to the structural charges he was making.”

[p.133] of [1999-2000] 2 GLR 124

The additional issues were:

“(a) Whether or not the defendant’s father made gift of the disputed property to the defendant, (b) Whether or not pursuant to the said alleged gift of the house to the defendant, the defendant gave “aseda” thereof.”

It is discernible from the issues agreed upon at the summons for directions that the parties did not make whether or not the defendant was a grandson and, for that reason a member of the family of Amoyaw Snr who was entitled to the beneficial enjoyment of his self-acquired property on his death intestate an issue. The same, did not, arise from the pleadings either. The defendant simply claimed ownership of the house in dispute for the reason that his grandfather gifted it to his father from whom he inherited it. Having not claimed a beneficial enjoyment as a grandson in the family of Amoyaw Snr, at least in the alternative, and no issue having been joined on it, no evidence was also led to prove same and it was not open to the trial judge to have considered these matters let alone giving that kind of judgment which the defendant thought he should have done. In these circumstances it would appear from Dam v Addo [1962] 2 GLR 200, SC that the court could not on its own substitute a case for the defendant.

However, Order 20 r 5 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) amply covers the point raised by counsel for the appellant. That rule reads:

“5 Every statement of claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and it shall not be necessary to ask for general or other relief, which may always be given, as the Court or a Judge may think just, to the same extent as if it had been asked for. And the same rule shall apply to any counterclaim made, or relief claimed by the defendant, in his defence.”

Under this rule, a plaintiff is required to claim a relief to which he is entitled. Nevertheless the court has the power to grant any relief that it thinks appropriate to the facts, provided they were proved by evidence or by law. The same applies to a defendant.

It is for this reason that even though the defendant did not claim he was entitled to beneficial enjoyment of the disputed property as

[p.134] of [1999-2000] 2 GLR 124 a grandson of Amoyaw Snr, I incline to the view that on the proven fact that he was a direct grandson in the male line and therefore a member of Amoyaw Snr family, the trial judge should have considered on the facts found by him, whether or not in the alternative to the claim of title by the defendant he had any rights under customary law vis-a vis the house in dispute, a family property.

It was a plain fact that the defendant had constructed a two-room outhouse in the compound of the house at the cost of ¢245,000 which he described as being substantial, which may be an apt description in those days when the outhouse was built. The customary law position is that:

“A member of a family does not acquire any special rights in or powers over buildings which he erects on family land as an extension to existing family house or buildings. Such an extension-is from the date of its erection part of the family property under the control of the family.”

See Ansah v Sackey (1958) 3 WALR 325 at 330 and also Osei Yaw v Domfeh [1965] GLR 418, SC where the same point was made (as per holding (2) in the headnote) that: “An improvement or an extension made to a family property by a person in his capacity as a successor does not take away the family stamp on the property.” I believe the scope of persons in this context can be widened to include any member of the family.

The defendant on the evidence and authorities on Guan custom, notably Addo v Manko (supra) and Amponsah v Budu (supra), is a member of Amoyaw Snr’s family. He was therefore a person interested in the property though not with an immediate right to any beneficial enjoyment thereof. Whatever right he might have must be postponed until when those entitled to an immediate enjoyment, that is the children of Amoyaw Senior, are no more. I believe it to be true of Guan custom that where a man was survived by several children such as in this case, until all of them die, his grandchildren or any of them do not inherit him. No evidence to the contrary was led at the trial; nor was any authority cited by learned counsel to buttress his point. What can be said is that whilst any of the deceased’s children is alive, the grandchildren have a possessory right in the house, subject of course to good behaviour. That right is therefore limited and is for life.

[p.135] of [1999-2000] 2 GLR 124

If the defendant has this right in the house in dispute by virtue of the fact that he is a member of the wider family of Amoyaw Senior, then in Guan customary law, he is entitled to occupy part of the family property without being declared a trespasser. If the learned trial judge had adverted his mind more properly to the status of the defendants in the family of Amoyaw Snr, he would have found that he belonged to it and more importantly that he has a limited right to occupy it. The defendant on the evidence added extra rooms to the building but that did not in the eyes of the customary law affect or rub off the family character from it. It still remained a family property and the defendant could not be a trespasser on it. In so far as the learned trial judge held otherwise and also in consequence thereof awarded ¢50,000 damages for the plaintiffs, he in my respectful opinion erred and that part of the judgment must be and is hereby set aside.

The defendant was in the judgment of the trial court to be ejected from the house in dispute. The defendant felt aggrieved by this decision. The plaintiffs took an opposite view and sought indeed to support it on the grounds that first, the defendant challenged the ownership of the property in dispute and secondly, as a grandchild of Amoyaw Snr, he could not claim it whilst some children of Amoyaw Snr are alive. The issue is was the trial judge right in granting the relief that the defendant be ejected from the house?

It must be stated that whereas Ansah v Sackey (supra) decided, inter alia, that a member of a family does not acquire any special rights or power over buildings which he erects on family land or extensions to an existing family house or buildings, Kwamena Bentsi-Enchill wrote in his Ghana Land Law (1964) at p 120 that:

“It is acknowledged, however, that the family member who improves or makes an addition to family land ‘acquires a right to the prior enjoyment of the improvement or addition so made, . . . which is not liable to be sold for a stool or family debt so long as other property is available’.”

He drew support for this proposition from Sarbah’s Fanti Customary Laws (1897) at pp 59 and 60. It must however be acknowledged that Sarbah was writing, as the title of book suggested, on the custom peculiar to the Fantis and not necessarily generally. Bentsi-Enchill apparently did recognise that generally such a family member had some enjoyment of the improvement so [p.136] of [1999-2000] 2 GLR 124 made by him. If this is accepted as being reasonable, then it accords with customary law, which after all said and done consists of what is reasonable in also a particular context: see Yerenchi v Akuffo (1905) 1 Ren 362 and also Fokuo v Mprah; Written Judgments, January-December 1967, 291.

Again if it was admitted that such a family member has some right to enjoy what he added to the family property at least in his lifetime, then it becomes difficult to agree that he should be ejected from the same house. This of course also raises another issue as to what constitutes the circumstances under which a family member may be ejected from a family property.

The first point to notice is that ejection of a family member from family property, or forfeiture as known in customary law, is not automatic. In other words, it does not follow that whenever and for whatever cause may be shown to exist then a family member will at all cost be ejected from the family house or property. There are authorities covering this point, specifying the acts and circumstances by and under which forfeiture may be incurred and exercised in customary law and more importantly the steps to be taken in effecting same. In Amoabimaa v Okyir (Consolidated) [1965] GLR 59 at 64, it was said per Ollennu JSC that:

“As to forfeiture by a subject or member of family of his determinable title to stool or family land upon his denial of allegiance or loyalty to the stool or family, it must be pointed out that forfeiture is not automatic upon any such misconduct. It is the extreme punishment which may, in the discretion of the elders, be inflicted upon the subject or the member of family after due inquiry in which the person accused of the misconduct is given opportunity of being heard; even where the misconduct is proved the elders might well feel that a much lesser penalty may suit the case.”

Again in Nunekpeku v Ametepe [1961] 1 GLR 301, the salient point raised on appeal being what should have been done before a member was ejected from a portion of a family land in his occupation. It was held that as an alternative remedy, the respondents therein could have called a meeting of the whole family, and if the entire family or the principal members thereof had resolved that he should be ejected from or dispossessed of the portion of family land he himself occupied, and if he still

[p.137] of [1999-2000] 2 GLR 124 remained on the land then and in that case he could be termed a trespasser and the family per the respondents could then properly bring an action in a court to enforce the decision of the family and obtain an order of ejectment or for possession.

Lastly, the admonition by Francois JA (as he then was) in Manu v Ainoo [1976] 1 GLR 457 at 464, CA to the effect that forfeiture in customary law must be sparingly exercised is relevant at all times. It must be reserved for the member of the family who was given an opportunity to make amends but remained recalcitrant. This is further strengthened by the fact that even under the common law, forfeiture does not appear to be automatic. It is conditioned upon the right to notice and secondly the right to apply for relief. Under our statute law, section 29(1) and 30(1) of the Conveyancing Decree, 1973 (NRCD 175) clarifies the point being made here. There is no evidence on the record that the learned trial judge paid any regard to the procedure outlined above.

It cannot be overemphasised that in suits involving family members disputing over family properties, the principles of customary law should be evoked that the courts should do well to keep the family intact more than driving a wedge between the members. In this suit in particular the defendant is a nephew to the plaintiffs. In Guan custom the plaintiffs are “fathers” to the defendant; he should be given a chance to make amends. He should be warned and the drastic sanction of ejection from the family property imposed upon him in the event of he paying no regard to the warning but maintaining that the house was gifted to his father. In so far as the trial judge did not appear to have given any consideration to the customary law aspect of the matter, and more importantly that the defendant should have been shown to have been given a warning and that the family as a whole sat to decide on his ejection, he in my view took the stand that ejection followed the event automatically; this stance ran diametrically opposite to the known principles of customary law and must be discouraged.

I express similar opinion on the trial judge’s order to perpetually restrain “that defendant, his agents, privies workmen, assigns all and singular from continuing to occupy the said property . . .” However I cannot say the same of the granting of the order to restrain the defendant from interfering with the plaintiffs’ administration of the estate of the deceased for the simple reason

[p.138] of [1999-2000] 2 GLR 124 that the defendant, per his counsel, made it abundantly plain that he does not wish to appeal against that order.

In view of what has been said to the effect that the additions made to existing family property does not change the family character of the property and that by operation of the customary law the defendant has a possessory right in his grandfather’s property as a family member, it would be unreasonable to hold that the defendant should be ordered to remove the sandcrete structure and developments undertaken on the said property. The interest of the family would better be served if these structures and developments were made to remain on the property. After all these add more value to the property, than its former status. That order granting that relief will and is hereby set aside.

It is all too clear that the defendant behaved in the manner he did by, inter alia, denying the family’s ownership of the property and without the family’s consent putting up those additional rooms due to the fact that his father made him believe that the house was gifted to him by his (defendant’s) grandfather. Believing honestly that that was so, which belief was fortified by the fact that he and his parents and other brothers and sisters also lived in the house, he treated the house as his father’s property and carried out extension works on it. Now the family’s claim of ownership has been vindicated. It is apparent from the defendant’s changed stand vis-à-vis the house, deducible from his decision not to challenge the crucial finding of fact that the house is for the estate of Amoyaw Snr and for that matter a family property, that he acknowledges the family’s title to the house. When a person exhibits these qualities before, during or even after a trial, the customary law attitude is to do what is reasonable under the changed circumstance. At this stage, it is known that concessions are made and the once deviant member of the family is restored to at least some rights in the family.

It is in the spirit of making concessions that, whilst affirming he judgment declaring that the house was the self acquired property of Amoyaw Snr and that the plaintiffs are to administer it, this court still feels inclined to vary the judgment in the manner indicated already, to wit that reliefs (a), (d), (e) and f) be set aside. After all rule 32 of the Court of Appeal Rules, 1997 (CI 19) (as amended) provides that:

[p.139] of [1999-2000] 2 GLR 124

“(1) The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs.

(2) These powers of the Court may be exercised notwithstanding that the appellant may have asked that part only of a decision be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although the respondents or parties may not have appealed from or complained of the decision.”

Applying these rules, an order will be made that the two rooms built by the defendant be shared equally for the family and the defendant. Also the defendant should hold on to his share for life. This sharing is subject to the defendant surrendering the one room to the family within 30 days from today, the date of judgment.

In the result, the judgment of the court below is affirmed subject to the variations in the orders made above. The appeal is therefore allowed in part and reliefs (a), (d), (e) and (f) set aside.

Baddoo JA. I agree.

Gbadegbe JA. I also agree.

Appeal allowed in part.

SA