BARIMAH vs. ANIMAH [2001-2002] 2 GLR 609

CASES REFERRED TO:

(1) Baompong v Aboagye [1981] GLR 927, SC.

(2) Huago v Djangmah II [1997-98] 1 GLR 300, SC; sub non In re Ningo Paramount Stool; Huago v Djangmah II [1998-99] SCGLR 255.

(3) Krakue v Krabah, Supreme Court, Accra, 24 June 1963, unreported.

APPEAL by the plaintiff-appellant-customary successor from the judgment of the trial High Court dismissing his action against the defendant-respondent-administratrix of the estate of the deceased for, inter alia, a declaration that he was the customary successor of the deceased, on the ground that by consenting to the grant of letters of administration to the administratrix he had renounced his rights as the successor in favour of the administratrix. The facts are sufficiently set out in the judgment of Afreh JA.

S K Koduah for the plaintiff-appellant.

Ntim Boateng for the defendant-respondent.

Afreh JA. This is another example of how members of a family of a successful person, who while alive has acquired some property, dissipate their resources and perhaps those of the estate of the deceased in a protracted litigation over succession to him and the distribution of his property.

Kwaku Owusu died intestate on 6 February 1972 leaving behind properties including farms, house No OI 161, Kumasi, and house No ME 130, also in Kumasi. He also had three sisters, two of whom survived him. At the fortieth day rites, members of his family met to choose his successor and to distribute his property. They chose Ofosuhene, a son of the second sister, Afua Achaamaa, as his successor. They also gave him house No OI 161 a one-story house or dantia which Kwaku Owusu used to occupy, as custom demanded. They gave house No ME 130 to the most senior sister, Akua Kru, and her children, and farms at Ntotoroso in the Brong-Ahafo Region to the youngest sister Afua Kimah. A son of Akua Kru, Kofi Darkwa,

[p.612] of [2001-2002] 2 GLR 609 protested against the appointment of Ofosuhene as Kwaku Owusu’s successor and the allocation of house No OI 161 to him since according to him, Akua Kru, as the most senior sister, should have been appointed successor because until the generation of brothers and sisters was exhausted, a nephew or niece cannot be appointed. He took his case to the Agonahene, a relative, who called a meeting of the family to resolve the dispute. The Agonahene confirmed the dispositions made by the family at the fortieth day funeral rites but Kofi Darkwa rejected that settlement.

As the customary successor to Kwaku Owusu, Ofosuhene applied for letters of administration in respect of Kwaku Owusu’s property. Akua Kru caveated. At the hearing, after discussions between the parties or their counsel, Ofosuhene agreed that Akua Kru should take the letters. On obtaining the letters, Akua Kru reversed the decisions of the family: she allocated house No OI 161, Kumasi to herself and house No ME 130 to Ofosuhene but left the allocation to Akua Kumah intact. She claimed that Ofosuhene had renounced his right as Kwaku Owusu’s successor in her favour. The new disposition led to this action by Ofosuhene.

The trial judge on 6 April 1995 gave judgment in favour of the defendant and gave his reasons on 29 June 1995. It is against this judgment that the instant appeal was brought. The appeal raises three main issues for consideration:

(a) whether the learned trial judge was right in holding that the plaintiff (Ofosuhene) renounced his right or position as the customary successor of the late Kwaku Owusu in favour of Akua Kru by the consent order of the court;

(b) whether the trial judge’s holding that the family acted wrongly by “passing over” Akua Kru in the appointment of the successor of the late Kwaku Owusu is right and supported by the evidence; and

(c) whether Akua Kru’s claim as the successor of Kwaku Owusu is lawful.

In this judgment, because of several deaths and substitutions, I have used the names of the original protagonists—Akua Kru and Ofosuhene, instead of the plaintiff-appellant and the defendant- [p.613] of [2001-2002] 2 GLR 609 respondent.

On the death of Kwaku Owusu his property devolved upon the family as a corporate entity, and became family property. As the family, a body corporate, could not itself manage the family property it had to choose a human being to manage it. There is no doubt that at the fortieth day rites the family duly appointed Ofosuhene as Kwaku Owusu’s customary successor. The right to manage Kwaku Owusu’s estate became vested in him. He became entitled to apply for letters of administration in his own name if he chose to. He could do that alone or in conjunction with others or he could allow or ask another member or other members of the family to take the letters of administration in their names.

In this case, the appellant’s aunt or maame panin caveated when Ofosuhene applied for the letters. Since the two of them had interests in the estate they could have taken the letters jointly. But it seems from exhibit 2 that in the face of an uncompromising attitude of his aunt, the respondent, Ofosuhene, agreed that she alone should take the letters. In view of the interpretations put on exhibit 2 it is necessary to quote the relevant parts in full. (Mr D M Adusei was counsel for the appellant and the late Justice K A Agyepong, then in private practice, was counsel for the respondent):

“Mr Adusei: The matter is now settled. The parties have agreed that the letters of administration be granted to the defendant-applicant.

Mr Agyepong: That is the agreement of the parties. The defendant has agreed to it. In the circumstances, I withdraw the application for attachment for contempt.

Mr Adusei: With the agreement we have cause to apply for the order of injunction and appointment of receiver and manager to be discharged.

By court: By consent it is ordered that the defendant is entitled to grant of letters of administration to the estate herein. It is further ordered that the order of injunction dated 12 March 1973 be discharged and is hereby discharged. The receiver and manager, subject to accounting to the parties, is accordingly discharged.

(Sgd) S M Boison Judge”

[p.614] of [2001-2002] 2 GLR 609

In the view of the learned trial judge, “. . . by Ofosuhene giving up his claim in favour of Akua Kru, and consenting that the letters of administration be granted to Akua Kru as the successor to Kwaku Owusu, he is deemed to have renounced his rights as the successor to Kwaku Owusu. Ofosuhene cannot therefore be entitled to a declaration that he is the customary successor to the late Kwaku Owusu.”

It is clear from this view that the learned judge thought because the appellant agreed that the letters of administration be given to the respondent he ipso facto gave up or renounced his right and position of customary successor of Kwaku Owusu to Akua Kru. With respect, there is no evidence that Ofosuhene ever renounced his rights as Kwaku Owusu’s customary successor. All that he agreed to was that Akua Kru alone could take the letters of administration. The position of administrator and customary successor are not necessarily the same or fused.

An administrator need not be the customary successor and vice versa, though normally the customary successor is the sole administrator or one of the administrators. An administrator is a person appointed by the court to manage the property of another, in this case, the property of the deceased. A customary successor does more than an administrator appointed by the court. He steps into the shoes of the deceased in many respects, eg he becomes the “father” of the children of the deceased which a court-appointed administrator is not or need not to be. An administrator’s appointment ends when he has completed the administration by distributing the property in accordance with the law. The appointment of a customary successor is for life, unless or until he renounces his appointment in accordance with customary law, is removed or dies. An administrator basically accounts to the court; the customary successor accounts to the family which appointed him. An administrator can only be removed by the court; a customary successor is normally only removable by the family but may in certain circumstances be removed by the court.

This brings me to the question whether Ofosuhene renounced his

[p.615] of [2001-2002] 2 GLR 609 rights as customary successor; or if he did or purported to do so, whether the renunciation was valid. The position of a customary successor is analogous to that of a chief; he is appointed by and is accountable to the people who appointed him. Apart from a court order only they can remove him. And if he wants to abdicate his position it is to them that he should communicate his intention and it is they only who can accept his renunciation. So in my opinion the essential characteristics of abdication by a chief should apply mutatis mutandis to renunciation or abdication by a customary successor.

These essential characteristics of an abdication were laid down by the Supreme Court in the case of Boampong v Aboagye [1981] GLR 927, SC. See also in In re Ningo Paramount Stool Huago v Djangmah II [1998-99] SGGLR 255. Applying the conditions of a valid customary abdication laid down in holding one of that judgment to renunciation of the position of a customary successor the sine qua non conditions of a customary renunciation or abdication of a customary successor in the Akan customary law are: (i) voluntary renunciation of the position or right of a customary successor; (ii) its acceptance by the elders and members of the family which appointed him customary successor; (iii) performance of the requisite rites and formalities; and (iv) publicity of the renunciation; apart from these conditions, the renouncing or abdicating customary successor may have to render accounts to the family.

So the renunciation of position or right of a customary successor is not something that can be done on the spur of the moment as allegedly happened in this case. Even if Ofosuhene intended or purported to renounce his rights or position of customary successor it was not valid because the requisite conditions were not satisfied.

Even assuming that he validly renounced his right as customary successor, his successor or replacement should have been appointed by the family. There is no evidence that they appointed any replacement or Akua Kru as the new customary successor. There is even no indication the family would have appointed Akua Kru as Ofosuhene’s replacement as customary successor of Kwaku Owusu. I, therefore, do not agree with the learned trial judge that:

“Ofosuhene’s renunciation of his post in favour of Akua Kru was

[p.616] of [2001-2002] 2 GLR 609 an internal agreement within the deceased’s immediate family who were in law the owners of Kwaku Owusu’s intestate property, to which agreement Boison (J) merely gave his blessing, by the said consent order.”

There is no evidence that the family internally agreed to Ofosuhene’s alleged renunciation in favour of Akua Kru.

The learned trial judge seemed to have concluded that Akua Kru became the customary successor to Kwaku Kru because she was described as “customary successor” in the letters of administration which were granted to her. This must have been based on the averments in her affidavit in support of her application for the letters. There is no evidence that Ofosuhene saw or approved any such averment. I do not think that Ofosuhene was estopped from denying that Akua Kru was the duly appointed customary successor to Kwaku Owusu.

In my opinion, Ofusuhene never validly renounced his position or right as customary successor and the grant of letters of administration to Akua Kru did not ipso facto make her customary successor to Kwaku Owusu. Even if Ofosuhene validly renounced his position the family never appointed Akua Kru or any other person as customary successor to Kwaku Owusu. She was only an administratrix appointed by the court but that did not make her Kwaku Owusu’s customary successor.

As an administratrix appointed by the court her function was to manage the property or estate of Kwaku Owusu subject to any dispositions made by the family. The appointment did not give her power to distribute the property as she wished or to reverse and set aside decisions of the family as to how Kwaku Owusu’s property should be shared. The allocation of house No OI 161, Kumasi to herself and house No ME 130 to Ofosuhene, and other dispositions made by her without the approval of the family or contrary to the previous decisions of the family, was invalid and of no effect. The appellant therefore succeeds on the first ground.

The learned judge also held that the family was wrong when they passed over Akua Kru and appointed Ofosuhene as the customary successor of Kwaku Owusu. His reason was that Akua Kru was the

[p.617] of [2001-2002] 2 GLR 609 most senior member of Kwaku Owusu’s immediate family. She was not even consulted and it did not appear that any reason was given for passing her over in favour of Ofosuhene. Akua Kru being the most senior member of Kwaku Owusu’s family had, according to the learned judge, at least a right to be consulted on the appointment of Kwaku Owusu’s successor. She had an apparent right, the learned judge thought, to succeed her brother Kwaku Owusu or to nominate her son to succeed to his brother since by Akan custom she was the most senior of the female children of their mother Abena Frimpoma.

This view of the law seems contrary to the basic principle stated in the case the learned judge himself cited in support of his judgment, Krakue v Krabah, Supreme Court, Accra, 24 June 1963, unreported viz: “no member of a family has an inalienable right to be appointed a successor, for the family has a right to pass over, so to speak, a person with an apparent right to be appointed in favour of some other person but only for good reason and not capriciously.”

It would appear from the words of the learned judge that he thought Akua Kru had rights of an heir, apparent or presumptive. Our customary law does not have any institution of heir apparent, that is a person who will be heir of his ancestor if the ancestor died immediately; or heir or heir at law, the person who under common law or statutory rules in England before 1925 inherited the real property of his intestate ancestor; or of heir presumptive, a person who would be an heir if the ancestor died immediately, eg a daughter, but who is liable to be displaced by the birth of a nearer heir such as a son. Under our law every person within the immediate family of a deceased is a potential customary successor, that is he or she can be considered and appointed customary successor.

The saying that “nuanom nsai a wofaase nii ade”, is not an inflexible rule of law as may appear from Ollennu’s book, The Law of Testate and Intestate Succession in Ghana, p 98 where it is translated that “when one’s brothers and sisters are not exhausted, the sister’s child does not inherit.” The saying only means in choosing a customary successor the first group to consider is the generation of brothers and

[p.618] of [2001-2002] 2 GLR 609 sisters of the deceased. But ultimately it is for the family to decide who should be the customary successor. They are entitled to pass over the generation of brothers and sisters if they think a nephew or niece or (even a member from a younger generation) would be a better choice. So often are brothers and sisters passed over that a popular name for matrilineal inheritance is wofa adedie.

The family may pass over the group of brothers and sisters because they are too old or are all in poor health or because of their character or reputation or even education. For instance, they may choose a nephew or niece because of his education or his position if they think because of the nature of the estate or the business the deceased ran, a person of the nephew’s education will be more competent to manage the estate.

There is also the gender facter. There is another Akan saying that: “Barima wu a barima na ddi n’adee, Obaa wu a obaa na di n’adee”; When a male dies a male member of the family should succeed him, and when a female dies a female member should succeed her. Again, this is not an inflexible legal rule; it is only a factor to consider.

All this shows that there are several factors a family may consider in choosing a customary successor: seniority, age, health, business acumen, leadership qualities, relationship with other members of the matrilineal family and even with the children of the deceased and other children of the family, youth, education, reputation, position in society, existing or previous positions in the family held by the eligible candidates, etc. The factors a family may take into account in choosing a customary successor may vary from case to case. So long as the family’s decision is not capricious it should be respected and accepted as binding.

In the case before us the decision of the family was not capricious. They passed over the sisters of the deceased possibly because of their advanced age, sex or health. But they considered the nephews of the deceased. They chose Ofosuhene, a son of the second sister, because a son of the first sister, Akua Kru, had at his request been made odikro of the village of Nsutam. It seems Ofosuhene was older than the son of Akua Kru who raised the objection. In my opinion, considering all the relevant factors, the decision of the family was not capricious.

[p.619] of [2001-2002] 2 GLR 609

There is no evidence that Akua Kru was not consulted before Ofosuhene was appointed successor, certainly her children were at the meeting, participated in the decision-making and apparently partook of the drinks. If, as I have said, the family did not capriciously decide to choose Ofosuhene, then whether or not she wanted a son of hers as the successor cannot vitiate the appointment of Ofosuhene.

In my opinion, this whole dispute was sparked off by the desire and preference of Akua Kru and her children, especially Daniel Darkwa, for house No OI 161. I believe if the family had given them that house they would not have complained about the choice of Ofosuhene as customary successor. I do not think their complaint was legally sound. They should not have been given judgment.

The appeal should be allowed.

Gbadegbe JA. I agree.

Owusu-Ansah JA. I also agree.

Appeal allowed.

J N N O