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AMOAKO v. JOSEPH LAGOS AND OTHERS


  • New
  • 1962-05-01
  • HIGH COURT
  • 1 GLR 317-321
  • Print

APALOO, J.


Summary

Customary law?-Family property?-Property succeeded to on death of member intestate. Customary law?-Money raised by successor personally to improve family farm in his possession?- Whether debt is family debt. Customary law?-Interest of successor in family property in his possession?- Whether legal estate.

Headnotes

Osei Nyantakyi raised a loan from Joseph Lagos, the first defendant herein. He was to repay it by the annual seasonal yield of a cocoa farm which had been in his possession for a considerable number of years and which he enjoyed as if it were his private property. On his failing to keep to the payment schedule, the first defendant was empowered by a document, exhibit 1, to take action to recover the balance due. Nyantakyi defaulted. The first defendant sued him and recovered judgment for G600 odd. He caused the farm to be attached under a writ of fi. fa. It was eventually sold at a public auction and bought by the third defendant for about G1,000. The plaintiff, head of the family of Nyantakyi, instituted these proceedings for a declaration of his family's title to the farm, a setting aside of the sale, recovery of possession and damages for trespass. It was contended for the defendants that even if the farm were family property, (a) as Nyantakyi raised the loan for purposes of farming and as the only farm in his possession was the farm in dispute he must be deemed to have raised the loan for the family; (b) that as successor he held the legal estate in the farm; the family's interest is merely equitable, and on the sale of the legal estate the family's equitable interest was overreached and became attached to the proceeds of sale. As the sale was in execution of a judgment, the only money in which the family has any interest is the excess of the sale-price over the judgment-debt and costs; (c) that in any case the third defendant is an innocent purchaser for value and is entitled to his purchase.

Judgement

ACTION by head of family for declaration of family?'s title to land sold in execution of judgment against member of family.

On the 21st December, 1960, the plaintiff in his capacity as head of the Aduana Awonyui family of Obomeng and Mpraeso caused to be issued against the first and second defendants a writ claiming declaration of title to a cocoa farm fully described in the writ, damages for trespass and other ancillary reliefs.

A great many of the facts in this case were not disputed. Sometime in 1954, the first defendant gave to a Mr. Osei Nyantakyi a loan of G200. As security for the said loan, Nyantakyi swore and produced to the first defendant an affidavit (exhibit 2) in which he claimed to be the original and bona fide owner in his own right of the farm in dispute. Osei Nyantakyi is a member of the family of which the plaintiff is the head . Again in December, 1956, the first defendant advanced to the self-same Nyantakyi G1,000. On this, there was a more formal document in which the latter undertook to repay this sum by proceeds of cocoa from the farm in dispute. That document (exhibit 1) states that in the event of Nyantakyi failing to honour his undertaking in exhibit 1 the creditor, that is the first defendant, was entitled to proceed against him by action and to levy execution on the said farm. The document then proceeds to state that the farm in dispute was mortgaged to the first defendant. But the document, exhibit 1, is not strictly a deed of mortgage in the ordinary acceptation of that term. It merely designates the property which the first defendant was entitled to sell in execution in the event of his recovering judgment against the said Nyantakyi.

It appears that Nyantakyi committed a breach of his obligations and the first defendant instituted an action against him in this court. On the 13th October, 1958, the action was compromised on certain terms which were recorded by the court (exhibit 3) and the action was accordingly withdrawn. The first defendant being a prudent man, sought and was granted liberty to bring fresh action. He did so early in 1959. On the 9th February, 1959, this court entered judgment in his favour for the sum of G829 12s. and 30 guineas costs. As would be expected, the first defendant proceeded to attach and advertise for sale the farm in dispute.

As I have said, the plaintiff's case is that the farm in dispute belongs to his family and was wrongly sold in satisfaction of the debt of a member of that family. In considering the facts on which the family's ownership is based, I bear in mind that claims of this sort are easily fabricated and are not easily demolished by the most astute cross-examination. The evidence shows that Nyantakyi has been in possession of this farm for a considerable number of years and seemed on the evidence to have pleased himself with the income from the farm. Those matters make it necessary for the plaintiff's evidence to be received in this case with the greatest circumspection. Nevertheless, I have come to the conclusion in this case that I must accept the claim of the plaintiff's family to the farm in dispute as established. James Amoako who is a presbyter and the head of the Aduana-Awonyui family testified that the farm in dispute was cultivated by his younger brother Kwasi Puni. The latter appeared to have died intestate and by the well-known canons of customary law, [p.319] the farm became family property. The family which Amoako heads appointed Nyantakyi to succeed the late Puni and he was accordingly given charge of the farm in dispute. Nyantakyi who hitherto lived at Mpraeso, then moved to Atwedie to execute his office as successor of his late uncle. This evidence was, in my opinion, convincingly supported by Emmanuel Wiafe who appears to be one of the principal members of the plaintiff's family and seemed to have been present at all meetings summoned by the plaintiff to discuss Puni's affairs. Amoako is 78, and as would be expected of a man of his age and standing (he is a presbyter), he gave his evidence honestly and well. I was similarly impressed with the evidence of Wiafe who is middle-aged and perhaps somewhat garrulous.

The evidence of the members of the plaintiff's family is supported by two independent witnesses both of whom struck me as truthful and reliable. The first of those witnesses is Nana Asiedu, the present Atwediehene. He testified that he was present when the late Atwediehene Kwame Mensah demarcated the forest for Puni and he saw him cultivate the farm. He himself owned a farm which is separated from Puni's by the farm of one Kwaku Kru. He said Nyantakyi succeeded his uncle Puni to the farm on the latter's death. This matter was completely clinched by Kwasi Buo, the erstwhile second defendant who was called on behalf of the defendants. He also said Puni in fact cultivated the farm but did not live to see the fruits of his labours. I have no hesitation therefore in coming to the conclusion that the farm in dispute belongs to the plaintiff's family.

Sometime before Nyantakyi's indebtedness came to the knowledge of the plaintiff's family, the former was removed from office as the successor of the late Puni. This was because the family belatedly woke up to the fact that Nyantakyi was spending the income from the farm for his own purposes and failed to honour his obligation of providing for the little ones in the family. The fact of his deposition as successor to the late Puni was customarily communicated to the Atwediehene, Nana Asiedu, who testified of it. This evidence impressed me as an exercise of ownership on the disputed farm by the plaintiff's family ante litem motam.

I am satisfied on the evidence that the sum of G1,000 which Nyantakyi raised from the first defendant was utilised by him for his own purposes and, in relation to his family , it is his own private debt. I cannot accept the suggestion that it must be assumed that that sum was spent in improving the farm in such circumstances as to make the debt a family debt. It seems to me almost certain that had Nyantakyi intended to raise this sum for improvement of the family farm, he would have obtained the consent of the family and would have insisted on the plaintiff and some principal members of the family joining him in giving the promissory note exhibit 1. I am unwilling to think of Nyantakyi as a man whose conduct in these matters is above board. I am satisfied that he made an affidavit (exhibit 2) in which he swore, clearly falsely, that the farm in dispute was his original property and that it was free from any family claim.

As I said, Nyantakyi was customarily removed from his position as successor before the plaintiff's family learnt of the first defendant's action against him. Although the date of his deposition was not given in evidence, it was given in paragraph 3 of the statement of claim as 22nd February, 1958. Whatever it was, I am satisfied Nyantakyi was stripped of his office before the 9th February, 1959, that being the date on which judgment was given against him. I clearly do not subscribe to the view [p.320 ] put up by counsel for the defendants that the deposition was merely staged. I am satisfied that at the time the family deposed him, it had not come to their knowledge that Nyantakyi either owed or that he had purported to mortgage the farm as security for a loan. Indeed, when the family first heard of Nyantakyi's indebtedness, they thought it was a ruse to get the family to reinstate him and give him back the farm. In those circumstances, there is no reason why the family would wish to stultify themselves by staging Nyantakyi's deposition and incur the further trouble and expense of sending to inform the Atwediehene of it.

Accordingly, on the 11th July, 1959, when the farm was sold, Nyantakyi was an ordinary member of the plaintiff's family. The farm was sold to satisfy what I already held to be his private debt. It follows therefore that such a sale was invalid in so far as it purports to divest the plaintiff?'s family of its title to the farm. The rule that family property cannot be sold under a writ of fi. fa. to satisfy the private debt of a member of the family is axiomatic. Among other cases the West African Court of Appeal gave its blessings to this rule of customary law in Koran v. Dokyi and Others.1

Mr. Adade has made a number of legal submissions and with these I now deal. Although expressing himself as diffident in the absence of authority on the point, counsel submitted that as successor, Nyantakyi had a legal estate in the farm and that this he could transmit and he did so transmit in this case to the third defendant who was a bona fide purchaser for value. He said the interest of the family was equitable and implied therefore that that interest was overreached in this case and commuted to money.

Mr. Asumadu-Sakyi thought that the proposition was so revolutionary that it would, if accepted, destroy the basic concept of family property. It is his view that the legal estate remains vested in the family. In view of my finding that Nyantakyi was stripped of his office long before the sale took place, it is unnecessary for me to decide this point. Had it been necessary for me to decide it, I would have aligned myself with the view of Mr. Asumadu-Sakyi.

Strange as it seems, there appears to be no direct authority on the matter and Mr. Justice Ollennu's invaluable handbook on Succession has not given any guidance on this point. The nearest reported authority that I have been able to lay hands on is Makata v. Ahorli2 in which the headnote, inter alia, reads: "The nature of the interest thus created for the successor by the elders of the family is limited, unless provision is made otherwise at the time by the elders, to an inalienable life interest?". I think it right to say that Mr. Adade argued this point with ability and complete candour and his submissions were superficially attractive but on the whole it was Mr. Asumadu-Sakyi's view on this point that commends itself to me.

Mr. Adade next contended that the family by their conduct led the public to believe that Nyantakyi was the sole owner of the farm and that they were estopped by conduct from averring the contrary. With respect, I see nothing at all that the plaintiff's family did to lend the slightest colour to this submission. Neither the first nor third defendants were [p.321] able to say that they relied on the conduct of the plaintiff's family to their detriment. Indeed, the first defendant was willing to lend as much as a G1,000 to Nyantakyi on the mere production by him of exhibit 1 without making the most cursory investigation of his title to the farm in question. The third defendant on his part was equally willing to risk G1,000 odd on a farm which he did not even know and was content to believe without more that it belonged to Nyantakyi. The truth of the matter, as it seems to me, is that the defendants merely gambled and lost. There is nothing that they can, with justice, lay at the door of the plaintiff's family.

Accordingly, in my judgment, the plaintiff succeeds in this action and is entitled to the reliefs which he claims. With regard to the damages claimed, this seems to be more than reasonable. The third defendant must have enjoyed the proceeds of this farm during the 1959?-60 and 1960?-61 cocoa seasons. He said he got 115 loads last season. If that is a fair seasonal average yield of the farm, the plaintiff's family must have suffered loss to the tune of G600 odd. In the circumstances, the plaintiff must have the G100 damages claimed.

In the result, I make the declaration sought in paragraph one of the writ. I award the plaintiff against the defendants jointly and severally G100 damages for trespass. I also grant, as prayed, an order of perpetual injunction restraining the third defendant, his servants or agents from entering upon or in any manner whatsoever interfering with the said farm. The defendants will pay jointly and severally the costs of this action which I assess at seventy guineas.

Decision

Judgment for the plaintiff.

Plaintiff / Appellant

E. K. Wiredu for Asumadu-Sekyi

Defendant / Respondent

N. Y. B. Adade

Referals

(1) Koran v. Dokyi and Others (1941) 7 W.A.C.A. 78

(2) Makata v. Ahorli and Others (1956) 1 W.A.L.R. 169

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