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HAGAN v. KOTEY AND 3 OTHERS


  • New
  • 1961-10-23
  • HIGH COURT
  • GLR 594-599
  • Print

OLLENNU J.


Summary

Customary law?-Person entitled to sue in respect of family property?-Meaning of family property.

Headnotes

The first three defendants were children of Herbert Charles Kotey, deceased; the fourth defendant was his grandson. Salome Aku Allotey, successor to the said Herbert Charles Kotey, and head of his maternal family, instituted the present action in those two capacities for accounts of rents collected by the defendants from house No. D930/3 which was in the possession of Herbert Charles Kotey at the time of his death, an order for ejectment of the defendants and an injunction to restrain them from having anything to do with the house. During the pendency of the suit Salome Aku Allotey died. Hagan, the present plaintiff was, on his own application, substituted for her. It was contended by the defendants that Hagan had no locus standi because he was not properly appointed to succeed Salome Aku Allotey as members of the paternal family and the children of Herbert Charles Kotey (deceased) were not invited to the family meeting which appointed him.

Judgement

ACTION by representative of the maternal family of Herbert Charles Kotey, deceased, against the children of the said Herbert Charles Kotey in respect of a house in his possession before his death.

This suit was commenced by one Salome Aku Allotey. She sued in a dual capacity namely as successor and head of the family of the late Herbert Charles Kotey deceased. She, the said Salome Aku Allotey, died in April, 1961, while the case was pending and the present plaintiff was, upon his application, substituted for her by order of the court dated the 14th June, 1961. The claim is for accounts of rents collected by the defendants from premises known as house No. D930/3, an order for the ejectment of the defendants from the said house, and an injunction.

The first three defendants are children of the said Herbert Charles Kotey, and the fourth defendant is his grandson.

Although the writ and all pleadings filed on behalf of the plaintiff were filed by a solicitor, and the said solicitor did appear as counsel in the case on a number of occasions to take adjournment, he failed to turn up when the case came on for trial, although he was present in court on the 10th October, 1961 and agreed with the first and fourth defendants who appeared in person that day that the case be fixed for trial on the 16th October, 1961. The case remained on the list from that date up to the 19th October, 1961, when hearing commenced but he never turned up throughout the trial, and so the plaintiff had to conduct the case on his own.

Due apparently to the handicap of conducting his case himself, the plaintiff was not able in his evidence in chief to disclose the exact nature of his case. But by the close of the very lengthy and exhaustive cross-examination to which he was subjected he had painted a picture which vividly portrayed his case in a clear light as will be seen presently. That case is, that he is a member of the maternal family of which the late Herbert Charles Kotey was at one time the head; the said Herbert Charles Kotey as such head was succeeded by Salome Aku Allotey, the [p.596] original plaintiff; that the said family are the owners of the property in dispute entitled to immediate possession and control thereof, and to receive rents and mesne profits accruing therefrom; and that he has been appointed and authorised by the said family to prosecute this suit.

It was submitted by counsel for the defendants, properly in my view, that the substitution of the present plaintiff for the original plaintiff is not conclusive that the plaintiff is authorised to represent the family; counsel therefore submitted that the plaintiff must fail because he had failed to prove his capacity to sue.

The law on this point is, that where a plaintiff sues in a representative capacity and his right to sue is challenged, he cannot succeed unless he satisfies the court that he possesses that capacity; see Sokpui II Ors. v. Agbozo III Anor.1 and Chapman v. Ocloo Anor.2

The ground upon which counsel submitted that the plaintiff failed to prove his capacity to sue on behalf of the family is that his appointment was made exclusively by the maternal family of the late H. C. Kotey and the late Salome Aku Allotey without the head and members of the paternal family of the late H. C. Kotey, and the children of the said H. C. Kotey being invited to join in. Counsel cited the case of Carboo v. Carboo3, in support of his said argument. A more recent case on this point of the paternal and the maternal families joining to appoint a successor to a deceased person with respect to his self-acquired property is the case of Okoe v. Ankrah.4

If the evidence had remained just what it was at the close of plaintiff 's evidence in chief, there could have been some merit however small in this submission of learned counsel. But the strong evidence elicited in cross-examination from the plaintiff and his only witness made the submissions absolutely irrelevant. The evidence given by the plaintiff under cross-examination is as follows:

"No it is not customary that for the appointment of the head of our family Nii Amon Kotey should be present.

It is correct that for the appointment of Salome Aku Allotey as successor to H. C. Kotey, Nii Amon Kotei was present . . .?"

"Yes it is custom that for the appointment of a successor to a deceased, his paternal family should be invited even though succession is in the maternal line.

No we did not call the paternal family of Aku Allotey. They are from Sempe. We were not appointing successor to Aku Allotey's self-acquired property".

And the evidence given by P.W.1, daughter of the late Salome Aku Allotey under cross-examination is as follows:

"It is correct that we have never invited Mr. Robertson to any of our meetings held since my mother's death. The meetings we held were meetings of our maternal family of which Robertson was not a member. [p.597]

No we did not invite Nii Amon Kotey either, nor the children of H. C. Kotey. We did not invite any of these people because they do not belong to our family to join in appointing our head . . ."

"Yes it was at a meeting of the family that we appointed the plaintiff to continue the case . . . ?"

"In this case of succession we are talking of the property of whole family of which H. C. Kotey was in charge before his death."

It is clear from this evidence that the plaintiff does not claim successorship to any self-acquired property of late H. C. Kotey. His claim is that he is the duly appointed head of his maternal family authorised by the family to prosecute this suit on their behalf. The only persons entitled to take part in such appointment are the members of the said family, no stranger to the family has a right to be invited.

As far as that claim to representation which the plaintiff makes is concerned, the law is that as a general rule it is the head of the family who is entitled to sue on behalf of the family; but where there is no head of the family formally appointed, any member of the family authorised by the family to sue, or any person authorised to take care of family property, or any person recognised by popular acclamation as head of the family may sue in respect of family property; see Hervie v. Tamakloe Ors.5 and Amah v. Kaifio.6

The question therefore is: Has the plaintiff proved that he is a member of this family on behalf of which he is prosecuting this case, and has he proved that he has the authority of that family to sue? A very positive answer to that crucial question is to be found in the uncontradicted evidence given both by the plaintiff and by P.W. 1. The position of P.W.1 as a principal member of the family is beyond doubt, she being the daughter of the original plaintiff Salome Aku Allotey in whose shoes the present plaintiff stands.

The next question is: Has the plaintiff proved the property in dispute, house No. D930/3 Accra, to be ancestral property of his said family, as distinct from property which became family property only by reason of H. C. Kotey's death intestate?

On this point also, any doubt which might have been left in the mind of the court was satisfactorily cleared by the answers elicited by the cross-examination of the plaintiff and his only witness. The evidence in chief led by the plaintiff gave the impression that the house was the self-acquired property of late H. C. Kotey, which only became family property upon his death intestate. If that had been the case, the first three defendants and the mother of the fourth defendant could have some interest in it if proved to be children of a six-cloth marriage. But the cross-examination put a very different complexion on the matter. Here are a few of the answers got from cross-examination of the plaintiff:

"Yes the house was not built by H. C. Kotey. It was a house sold which was purchased by Kotey and his brother Kwao Badu jointly . . .?" [p.598]

"The money with which the house was purchased was compensation paid to the family for demolition of a house of our grandmother Amoah for the purpose of making a street.

Your suggestion that the house was purchased with their own money is not true. They bought it with family money and the two of them represented the family".

No evidence was led on behalf of the defendants to challenge this most important piece of evidence. In law, any property acquired with money contributed by members of a family or with proceeds of sale of some family property is itself family property: see Tsetsewa v. Acquah,7 Ansah v. Sackey8 and Nugent v. Nartey Anor.9

Even if the house was purchased by the two brothers Kwao Badu and H. C. Kotey with their own money, by customary law, in the absence of anything to the contrary, it acquired the character of family property during the life-time of the two brothers, and upon the death of Kwao Badu, it became full family property such that H. C. Kotey could not dispose of by alienation inter vivos or by testamentary disposition: see Mensah v. S.C.O.A. Anor.10

But there is yet another side of the picture brought out in evidence through cross-examination of P.W . 1. That evidence is as follows:

"Yes I know the late Kwao Badu. Yes he was succeeded by Anum otherwise known as H. C. Kotey his brother of the whole blood.

Yes I knew the late Dsani, he was succeeded successively by his brothers; upon the death of the last of his brothers H. C. Kotey succeeded him. The said Dsani was a brother of the whole blood of the late H. C. Kotey. Yes I knew the late Boye Kotey another brother of Dsani and H. C. Kotey. He predeceased Dsani and the other brothers, therefore they succeeded him, and H. C. Kotey succeeded Kwashie also".

By customary law the self-acquired property of a person who succeeds to the property of another member of the family becomes merged into family property and upon his death belongs to the whole family: Antu v. Buedu.11 Therefore since the defence themselves have made it plain that H.C. Kotey succeeded to and controlled the estate of many members of the family, it follows that any property he died possessed of, is property of the whole family not property of his separate estate. Thus even if the conveyance exhibit B could be looked upon as creating Kwao Badu and H. C. Kotey joint tenants by English law, which in my opinion is not the law applicable in a case like this, the house in dispute would be property of the whole family.

I hold therefore that the house in dispute is family property, a family which has been declared in the judgment of the local court exhibit C. to be the maternal family. The proper person to have charge and control [p.599] of it, and entitled to receive rents and mesne profits therefrom is the family or a person appointed by them, in this instance it is the plaintiff.

[His lordship then considered the merits of the plaintiffs claim against each defendant individually and gave judgment for the plaintiff against the third defendant for an injunction and ejectment; and against the fourth defendant for an injunction and accounts. The case against the first and second defendants was dismissed.]

Decision

<P>Judgment for the plaintiff against third and fourth defendants.</P>

Plaintiff / Appellant

G. Koranteng-Addow

Defendant / Respondent

G. R. McV. Francois

Referals

(1) Sokpui II v. Agbzo III & Anor. (1951) 13 W.A.C.A. 241

(2) Chapman v. Ocloo & Anor. (1958) 3 W.A.L.R. 84

(3) Carboo v. Carboo [1961] G.L.R. 83

(4) Okoe v. Ankrah [1961] G.L.R. 109

(5) Hervie v. Tamakloe & Ors. (1958) 3 W.A.L.R. 342

(6) Amah v. Kaifio [1959] G.L.R. 23

(7) Tsetsewa v. Acquah & Anor. (1941) 7 W.A.C.A. 216

(8) Ansah v. Sackey (1958) 3 W.A.L.R. 325

(9) Nugent v. Narteh & Anor. (1958) 3 W.A.L.R. 537

(10) Mensah v. S.C.O.A. & Anor. (1958) 3 W.A.L.R. 336

(11) Antu v. Buedu (1929) F.C. '26-'29, 474

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