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FORDWOUR AND OTHERS v. NIMO AND OTHERS


  • New
  • 1962-05-01
  • HIGH COURT
  • 1 GLR 305-311
  • Print

DJABANOR J.


Summary

Family law?-Customary adoption?-Whether a person was adopted by and became a member of a family.Customary law?-Succession?-Children entitled to succeed in the absence of any other known relatives ?-Common sense and natural justice.Customary law?-Arbitration?-Defendants ordered to give, in their discretion, some of properties not ascertained by arbitrator?-Whether award final and binding.

Headnotes

Joseph Nyame, also known as Abesua Nyame, was a northerner, from the northern part of Ghana. He travelled south to Ashanti and lived with Kojo Fordjour, a predecessor of the defendants. The plaintiffs are the children of Nyame. On Nyame's death the defendants took over his properties ?- houses, farms, etc. ?- contending that Nyame became an adopted and a free member of their family, and that they are the persons to succeed to his properties which have become family property. The plaintiffs on the other hand, alleged that he was and remained a slave, and that having died without leaving any known relatives alive, they, the children are entitled to succeed him. The evidence proved that late Nyame married one Kutuwaa, a cousin to the defendants; that at one time when a mortgagee threatened to sell Nyame's house to pay off a mortgage debt of G600, the defendants and members of their family did not assist him in anyway to save his property. The plaintiffs paid G100, and a benefactor, one Osei Kojo paid the remaining G500; but that Nyame attended funerals of the defendants' family and assisted in paying funeral debts. The plaintiffs also contended that before the matter came to court there had been an arbitration before [p.306] the district commissioner, Teppa, at which the defendants had been ordered, by the award, to hand over all the properties to the plaintiffs as the rightful successors. The defendants alleged that the arbitrator ordered that only some of the properties should be given to the plaintiffs. The court found the latter version proved.

Judgement

ACTION by children for declaration that they are the successors to their deceased father, and for recovery of his properties.

This is a case in which the five plaintiffs the children of late Joseph Nyame, also known as Abesua Nyame, are claiming from the defendants (the first defendant claiming to be the successor of the said Abesua Nyame), several properties including cocoa farms and houses, and damages for trespass. Their ground for so claiming are that their late father died possessed of these properties in his own right, i.e. they were self-acquired, and he had no relatives, being, as they pleaded, a servant or slave whose family was made up of himself, his wives and children only. Another basis of their claim was that at an arbitration before Mr. Duncan Williams, district commissioner for the district in which they lived, the defendants agreed to surrender the whole of these properties to the plaintiffs. Needless to say this action was brought because the defendants had not given up the properties to the plaintiffs.

The defendants, however, contended that the late Abesua Nyame was in the defendants' family before any of them (i.e. the defendants) was born, and that the said Nyame was, and had always been known to be a free member of their family and not a slave. Even if he was a slave he had been adopted into their family. Their family therefore was entitled to [p.307] succeed to the estate of the late Nyame. The defendants also denied that there was an arbitration. What happened, they said, was only an attempt at a settlement, which failed.

I will first deal with the question whether or not the late Nyame was a slave or a free member, that is adopted member, of the defendants' family. In the main the defendants and their witnesses were loath to regard the late Nyame as a slave. But there is no doubt that he was not originally a member of the defendants' family. I am satisfied that the defendants were not in any way the late Nyame's blood relations. I think he must have come to settle in Abesua in his early youth, but the real story as to when he came and in what capacity he was brought is shrouded in uncertainty. Mr. Osei Kojo whose evidence impressed me considerably himself had the story second hand. He was told. I will therefore content myself with the examination of the evidence to see how far Nyame could be said to have opted to join the defendants' family, and if so whether he was so accepted.

The most important point relied upon by the plaintiffs for asserting that their father never opted to join the defendants' family is the marriage between the late Nyame and Kutuwaa. Kutuwaa is the sister to the present Abesua chief, and cousin to the defendants. The plaintiffs are saying that if their father considered himself as a member of the defendants' family he would not have married Kutuwaa also in the same family. The defendants answer to that is that a person could marry his cousin, and that in any case Kutuwaa and the late Nyame not being blood relatives they were permitted to marry by native custom. And yet although the first and third defendants are cousins to the second defendant they admitted that they could not possibly marry her in accordance with native custom. Neither could either the first or third defendant be permitted by custom to marry Kutuwaa. My understanding of the native custom pertaining to this is that once they became related and became members of one family they could not possibly be permitted to marry each other. There was evidence, which I believed, that a proper marriage by native custom with all the rites and incidents took place between the late Nyame and Kutuwaa. To confirm my view of the native custom I put the following proposition to the chief of Abesua, a brother to Kutuwaa:

Q. If I am your son and you marry another woman who already has a daughter by a previous marriage, can I marry that your new wife's daughter?

The answer was an emphatic "No". Then I asked, what if the woman left you and went awaywith her daughter? The answer was still "No"; and the explanation given was that once the woman and her daughter had called my father "father" and lived with him and me as members of the same family, I cannot marry the daughter. I think I must hold in favour of the plaintiffs that if late Nyame had opted to join the family of the defendants he would not have been allowed to marry a daughter from the same family.

Another point relied upon by the plaintiffs is that when the late Nyame fell into debt of G600 the so-called relatives did not assist him to pay and that it was only his own children, the plaintiffs, particularly the fourth plaintiff, who assisted to pay the debt. The plaintiffs contend that if it was a family debt, as the defendants contend, the family house would have been used as security for the loan, and that the whole family would have paid. It was the defendants contention that the whole family, [p.308] or rather Osei Kojo, who paid the debt, or at least G500 of it, the plaintiffs paying G100. I find here too that I must accept the evidence of the plaintiffs in preference to that of the defendants. In the first place I was very impressed with the evidence of the moneylender. I think he was very truthful. According to him it was the daughter who came with the late Nyame and the Abesuahene to pay him back the loan of G600. By that time he had attached the house of the late Nyame under the power of sale in the mortgage deed. When the money was paid to him, he said the late Nyame told him that but for his daughter he could not have redeemed the house. This he said in the presence of the Abesuahene. Again, in their pleadings it was alleged by the defendants that their family paid G300 and that the member of the family who paid was Osei Kojo. Osei Kojo admitted that he is not a member of the defendants' family, and furthermore he said he paid G500 as a help to Nyame in consideration of Nyame's past kindness to him. I do not believe that the debt was a family debt, and I do not believe that defendants' family paid anything at all. I believe that it was a personal debt and that it was for this reason that Nyame secured it with his own house. I further believe that the family did not contribute or assist Nyame to pay the debt, but rather only his children did. If they considered him as a member of their family they would have so assisted him. Again, if it was a family debt the children of late Nyame who are not members of his family (if they were Akans, as is being advocated by the defendants) should not have paid the G100 they are alleged to have paid.

A third point in favour of the plaintiffs too is the fact that it is admitted that late Nyame was not originally a Ghanaian. The bulk of the evidence, which I believe, fixes his nationality as either from the Ivory Coast or Upper Volta. He had tribal marks on both cheeks which were not Ghanaian tribal marks. If he is not proved to be an Ashanti by adoption then I would, without proof of the law of inheritance or succession in the Ivory Coast or Upper Volta, hold that from the circumstances of their life the children would be naturally the persons entitled to succeed their father. In this connection I will now examine the evidence by which the defendants are seeking to prove that late Nyame was adopted as a member of their family.

It is part of the defendants' case that the late Nyame was brought into their family when he was a child, and that he was brought up by the female members of the family; that from that time onwards the said Nyame had been regarded as a member of their family, and that nobody regarded him as a slave. Most of the witnesses, even the older ones like Adjoa Kontri, admitted that when they grew up the late Nyame was already in their family, and that they could not testify as to facts about the origin and upbringing of Nyame within their own knowledge. All they knew about Nyame's early youth had been told to them. Adjoa Kontri even went as far as to say that she was called by her uncle, the late Kojo Fordjuor (the man who brought Nyame to Abesua) and told about Nyame, and told also to regard Nyame not as a slave but as his own son. It struck me as a very strange way to behave if what she said happened is true, for if when she grew up, as she said, everybody regarded Nyame as one of the family, there would not be the necessity to call her and tell her to regard him as one of the family. I became suspicious of this witness and this piece of evidence. Then later when she denied that [p.309] the marriage between late Nyame and Kutuwaa had the blessing of the elders of the family, a marriage which lasted for at least fifteen years, I felt that she could not be believed.

It is further suggested by the defendants that late Kojo Fordjuor regarded Nyame as his son, that he brought him to Abesua when he became chief and bought a farm for him as an advancement in life. That Nyame lived with late Kojo Fordjuor for a long time I think is beyond doubt. He may have been a slave, or only a foundling. He certainly did well for himself and died a respectable and responsible (not to say wealthy) man. The evidence as to how he acquired his first farm is conflicting. According to the defendants the farm was bought for him by Fordjuor and that it was from the proceeds of his farm that Nyame was able to make more acquisitions of property. The children, plaintiffs, also allege that their father made the farm Kofabedi himself. Again the evidence in this regard is conflicting. Neither the plaintiffs nor the defendants are able to depose to facts about the acquisition of this Kofabedi farm from their own knowledge. I must test this evidence by subsequent acts. It has been admitted by all parties and their witnesses that while he was alive the late Nyame did not render account of the proceeds of this or any of his other farms to the family of late Kojo Fordjuor. This is clear evidence that the farms did not have the character of family property. I would therefore incline to the story of the plaintiffs that the farms were self-acquired, and furthermore that late Nyame and his children developed them to their present standard. There is this further point. In my view to give a person, be he a servant or foundling, landed property does not point to the only conclusion that you have adopted him into your family. It may also mean that you have given him that land in order to keep himself and his future apart and separate from you. I do not think that merely to give a piece of land to a servant without more will necessarily mean the adoption of that one into your family.

Another very important point raised was that the late Nyame took part in all the defendant family's funeral celebrations and shared funeral debts with them, and that unless he considered himself a member of their family he would not have so acted. The plaintiffs answer to this is that since late Nyame married a woman from the defendants' family it was his duty by custom to pay funeral debts in that family. My view of the native custom supports this contention. I think that it was because of Kutuwaa that the late Nyame had to pay his share of funeral expenses of the defendants' family.

A last argument put in by the defendants was that the late Fordjuor gave Kutuwaa in marriage to the late Nyame in order to cement this family tie, and keep Nyame in the family so that their children too may remain in the family. That is very ingenius, but it was not the case of the defendants from the beginning. At first the defence, as could be gathered through cross-examination of the plaintiffs, was that this marriage was not recognised. But what defeats this argument is this: if it was the intention to give Nyame a wife within the family why did they not do so when Nyame first wanted to marry? I reject that theory as untrue.

While Nyame was alive he lived alone in the cottage with his wife and children, and developed his cocoa farms with their help only. It has not been seriously contended, apart from the suggestion that the first [p.310] farm was bought for Nyame by late Fordjuor, that other members of the defendants' family assisted Nyame in any way to acquire or develop these properties. It is only when he died leaving no known relatives according to Ashanti custom that the defendants are now seeking to take advantage of their close relationship or rather attachment with him and claim that their uncle adopted Nyame into the family. When he died Nyame left in cash the sum of G1,500 in his room, which was handed over to the chief. It must be this wealth that has started this litigation. Everybody now wants to succeed to his properties. When he was alive Nyame was, on occasions when the stool fell vacant, the wealthiest, the oldest, and the most respected member (according to defendants) of their family. But nobody suggested making him the chief. It may be that his tribal marks militated against him. He came from Sirem. From all the circumstances I am satisfied that the late Nyame did not consider that his attachment with the family of the defendants meant that he had opted to join them nor that he had been adopted into that family. The evidence to the contrary adduced by the defendants has not satisfied me that Nyame was adopted into their family.

There is also some talk of an arbitration. The plaintiffs claimed that when they were after their father's properties they sought the intervention of the district commissioner for Teppa, Mr. Duncan-Williams, on their behalf, and that the district commissioner called both parties to this suit and settled the matter when the defendants promised to give all their father's properties to the plaintiffs. The plaintiffs pleaded therefore that the defendants are estopped from now resiling. The defendants denied that there was a valid arbitration, and so that point came for determination, and evidence was led on it. Halfway through the evidence however, it became clear that the defendants do admit that there was a binding arbitration and an award, but contended that the award was that only some of the properties of their father was to be given to them. The plaintiffs claimed that all the properties were promised and that that was, in effect, the award. The question therefore is, what was awarded all the properties or only some? The district commissioner's evidence concerning the arbitration is as follows:

"After his death the first plaintiff and his sisters brought before me a letter of complaint alleging that one Kofi Nimo and family were trying to deprive them of their late father's properties. Their father was the late Joseph Nyame. I issued a summons inviting plaintiffs and Kofi Nimo and family together with the Abesuahene, and the local court magistrate, Mr. Osei and the C.P.P. Chairman to my office at Teppa. After issuing the summons I saw Osei Kojo, the local magistrate. He came and interviewed me in my rest house. Osei Kojo came and told me that late Abesua Nyame had helped him personally and that he wanted me to assist him by appointing one of Osei Kojo's brothers to look after the properties of the late Nyame and look after the children. I told him to come to the meeting. On the scheduled date all those invited attended except Osei Kojo. During the hearing I read the letter of complaint of the plaintiffs to the gathering. After this the first defendant told me that he is acting as successor to late Nyame and that he had been empowered to do so by his family. Kofi Nimo then asked the family to express their views. All the members of the family were willing to hand over the properties to the children of late Nyame, the plaintiff, , because, as they said, the children had nowhere to go to as their mother was dead and their father too had died. I told them to go and hand over the properties to the children and live peacefully with them and that they should report to me when they had handed over. They went away. After a few weeks, later Nyame?'s children came back and reported that Kofi Nimo and his family met them and showed them a little portion of one farm belonging to their late father and told them to take that, and they refused, and so came to repent to me?". [p.311] Under cross-examination this is what he said:

Q. I put it to you that what was agreed upon at your office was that the defendants agreed to give some not all of the properties of Nyame to the plaintiffs.

A. No, it was agreed that they give all the properties to the plaintiffs.

When they wanted the district commissioner to intercede on their behalf the plaintiffs incorporated their request in a letter. This is exhibit 1. In it they only asked for some of their father's farms. The chief of Abesua giving evidence on this point also admitted that the plaintiffs first approached him to intercede with Kofi Nimo on their behalf so that he might give them some of their father's farms. All the defendants who gave evidence on this also claimed that only some of the farms were promised to the plaintiffs. Backed by the exhibit 1 I am inclined to believe that at the arbitration only part of the property was asked for and promised. From the evidence it seems to me that the award was not final because the identity of the farm to be given to the plaintiffs was not then certain. For that reason therefore I would hold that the alleged arbitration was not final and that no proper award was made.

There now remain two points canvassed by the defendants in support of their plea that the late Nyame was adopted into the family. The defendants alleged that Nyame, when he was alive, was appointed the head of the defendants' family. The evidence on this was so very contradictory and unsatisfactory that I do not accept it as true. I told the first defendant when he was giving evidence that I did not believe him at all. It was also suggested that the late Nyame succeeded to the late Kojo Kuma, Osei Kojo's father. This was denied by the chief of Abesua. He said that when it was suggested that the late Nyame should succeed Kojo Kuma he refused and said he was not a relative of Kojo Kuma, and that Kojo Addai rather should be given the succession. Kojo Addai therefore succeeded.

In the final result I am satisfied from the evidence that late Nyame was not an Ashanti but came from Sirem (North of Ghana or Upper Volta). I am satisfied further that when he came to Abesua he became attached to the late Kojo Fordjuor. I use "attached" in the purely social sense, not in the sense of any relationship. I am furthermore satisfied that he removed from Abesua and lived in a cottage by himself with his wife and children until about seven or nine years ago when in his old age he came to live in Abesua itself. I do not believe that he opted to join the family of the defendants, or that he was adopted as a member of the said family. The late Abesua Nyame died without leaving any known blood relative except his own children, the plaintiffs. I think it is equitable and in accordance with good sense and natural justice that in the particular circumstances of the case the plaintiffs should succeed to their father's property.

I give judgment for the plaintiffs for a declaration that they are to succeed to their father's properties as set out in their claim. The defendants are to give them possession forthwith. The plaintiffs will have their costs assessed at 65 guineas.

Decision


Plaintiff / Appellant

Appiah-Menka

Defendant / Respondent

I. R. Aboagye

Referals

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