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  • appeal
  • 1962-04-04
  • 1 GLR 222-225
  • Print



Family property?-Persons entitled to sue in respect of family properly.Customary law?-Disinheriting a successor.


The defendants, all youngmen in the family, fearing on reasonable grounds that the plaintiff was jeopardizing family property, a cocoa farm, in his possession wrote a letter to him saying that they had taken the property back from him and that he should not set foot in that farm again. The plaintiff sued them to assert his title.


APPEAL from a judgment of the Amansie Local Court, Bekwai, in an action for recovery of possession of land.

This is an appeal from the judgment of the Amansie Local Court, Bekwai, dated the 31st May, 1961. The facts are straightforward. When the late Kofi Karma died some four or so years ago the family met and appointed the first defendant his successor and gave him five out of the deceased?'s six farms. At the same family meeting the plaintiff was also given one of the deceased's farms called Number One. This was not an outright gift to the plaintiff. The farm was given to him, at the best, for his life-time. According to the plaintiff he was given the farm in order that he might pour libation on the stool he was occupying and to buy drink for festivals. The defendants, however, contend that the plaintiff was given the farm with the condition that he would remove from Awisa to stay at Subriso, and also look after the rest of the family with the proceeds of the farm. Both the first defendant and the plaintiff stamped their gift with G4 7s. as custom demanded. A few years later it was found that the plaintiff had mortgaged the farm given to him. The youngmen in the family complained to the then Akwamuhene, who looked into the matter, found the plaintiff "guilty" and warned him. Not very long after this the defendants alleged that the plaintiff again mortgaged, or attempted to mortgage, the said farm. When they heard of it they wrote a letter (put in evidence) to the plaintiff informing him that because of his conduct the said farm had been taken from him and that he was not to enter same again. A copy of this letter was sent to the ex-Akwamuhene. The plaintiff therefore brought this action claiming:

?"1. That the plaintiff is the head of the defendants' family.

2. That the late Kofi Karma was a brother to the plaintiff, and the defendants are all members of the plaintiff 's family.

3. That the said Kofi Karma died about four years ago and left behind him six cocoa farms for the family.

4. That the plaintiff being the head of the family was given one of the cocoa farms by the family with the unanimous agreement of all the defendants, and five remaining farms were also given to the first defendant to use the proceeds for the maintenance of the whole family.

5. That the one cocoa farm to the plaintiff was given on the condition that the plaintiff should use the proceeds to buy drinks for libation for all festivals.


The plaintiff therefore claims from the defendants jointly an severally to assign reason or reasons why the defendants have deprived the plaintiff from the ownership of one cocoa farm situate lying and being on the land commonly known and called ?'Number One?' on the Assechere stool land bounded by the properties of Kojo Fordjuor, Abena Buabin and Kwaku Addae, being the estate of Kofi Karma which was inherited by the plaintiff. The plaintiff also claims for the title and ownership of the cocoa farm . . .?"

The first point that the local court should have resolved was the nature of the gift to the plaintiff. There is no doubt that the local court found that the gift was made at a family meeting and that it was stamped with drink and that it was valid. But the point of the defendants was that it was a gift subject to a condition, namely the condition that the plaintiff was to use the proceeds of the cocoa farm in settling disputes in the family, and in looking after the family, and also that he would remove from Awisa to live at Subriso. If it found that there was a condition attached to the gift the court should then consider whether that condition had been broken by the plaintiff. But this omission on the part of the trial court is not fatal, for the defendants purported to remove the plaintiff from the farm for a different reason ?- that the farm was in danger of being lost to the family.

The next point for consideration is the first additional ground of appeal that: "The local court magistrate misdirected himself on customary law by holding in effect that members of a family can make a valid gift of family property to anyone whether he is a member of the family or not." This is a startling proposition of customary law, namely that a family cannot make a gift of family property to an outsider. No authority has been cited in support of it, and I am sure that none exists.

In his next ground counsel relied on the principle of native custom enunciated by these courts that any member of the family is entitled to take action to save family property which is in danger of being lost to the family, if the head of family is either unwilling or has made it impossible for himself to do so. He, therefore, contended that upon this principle the defendants were entitled to take away the farm from the plaintiff who was in the process of wasting the family property. I agree with the principle, but not with its application to the facts of this case as given in evidence. I rather agree with the proposition of native custom relied upon by the local court.

In answer to the question put by the court the Akwamuhene, the head of the family of both plaintiff and defendants, said as follows:

"Question by the court: As head of the family, I was not consulted by the youngmen (defendants) before the document was prepared. By custom they have no right to alter any decision made by the whole family without my knowledge or the consent of the family. According to Ashanti custom the notice given to the plaintiff is not valid. They should first of all have lodged a complaint before me to be gone into by the whole family and even then he should have been removed from the stool.

In my view when the conduct of the plaintiff with regard to the property was found to be irresponsible the defendants should have lodged a formal protest to the head of family demanding that the plaintiff be called to a properly convened and constituted family meeting. At this meeting the family could remove him from the stool and/or take the farm from him. In my view the letter of removal is both improper and of no effect according to native custom. I agree with the local court that:

?"Finally the court is convinced that the notice of restraint given to the plaintiff by four defendants to forbid him from entering the farm called No. 1 is invalid, null and void, and not in accordance with Ashanti custom, as it had not the backing of the whole family.

In its final order the local court entered judgment for the plaintiff for the right of possession and ownership of the cocoa farm No. 1. It is true the plaintiff claimed title and ownership of the farm. But from [p.225] the evidence it is clear that the interest granted by the family to the plaintiff was a possessory title only: possession and use of the farm. It was not an outright gift. The judgment of the trial court will therefore be amended to give effect to this.

I find that the judgment of the local court is sound both on the facts and as to the customary law and I will not disturb it. I will accordingly dismiss the appeal with costs assessed at 30 guineas.


Plaintiff / Appellant

D. S. Effah for T. A. Totoe for the defendants-appellants.

Defendant / Respondent

N.Y.B. Adade for K.A. T. Amankwa for the plaintiff-respondent.


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