Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ on line 101 KWAN v. NYIENI & ANOR | GhanaLegal - Resources for the legal brains


  • appeal
  • 1959-02-26
  • GLR 67-74
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Family land?-Proper person to institute suit for recovery?-Three exceptions to general rule?-Nullity of conveyance, mortgage or lease by head of family and another without knowledge of principal members.


Kojo Kwan and Osei Kojo were members of the same family, whose head was the said Osei Kojo. Sometime between the years 1953 and 1954 the members of this family purported to remove Osei Kojo from the headship, on the ground that he was squandering the family property. Osei Kojo caused an arbitration to be held on the matter of his removal, and the arbitrators decided that his removal was not in order. Notwithstanding this decision the family, still not satisfied, appointed Kojo Kwan as another head.The family?'s real property consisted of six cocoa farms. In April, 1953, the said Osei Kojo (then still head of the family), together with one female member of the family, mortgaged four of the six farms to Kwesi Nyieni. This fact came to the knowledge of Kojo Kwan?'s family in January, 1954, upon Nyieni?'s advertising the said four farms for sale in exercise of a power of sale under the mortgage.Thereupon Kojo Kwan, purporting to act as head of the family, instituted an action in the Kumasi West District Court ?"B,?" Goaso, against Osei Kojo and Nyieni, claiming:(a) a declaration that the said four farms were property of his family;(b) a declaration that the mortgage of the said farms by Osei Kojo was without the knowledge and consent of the family;(c) an order for recovery of possession of the said farms; and(d) an order for interim injunction.In a judgment delivered in that suit the Court made the following findings of fact:(a) that the award of the arbitrators with respect to the headship of the family was binding on the family, and therefore Osei Kojo was still the head of the family; and, further, that the appointment of Kojo Kwan as head of the family was not in order; [p.68](b) that the farms in dispute were family property; and(c) that the mortgage thereof was without the knowledge of the principal members of the family.The Court, however, entered judgment for Nyieni for the recovery of the sum of 900 for which the farms were mortgaged to him. It was also ordered that(a) the said 900 due to Nyieni should be paid by Yaw Donkor, the family?'s caretaker of the farms, and that such payment should be made by him out of proceeds of the farms for the 1953/54 cocoa season, the balance to be paid during the 1954/55 cocoa season; and(b) the farms in dispute should not be sold.From this decision Kojo Kwan appealed to the Asantehene?'s Court ?"A2,?" specifically against the order for the payment of the 900 to Nyieni out of the family property. His appeal was dismissed. In expressing their opinion on the case, the members of the Asantehene?'s ?"A2?" Court said, in effect, that if they had been trying the case at first instance they might on one point have come to a conclusion different from that to which the trial-Court came, namely, they might have come to the conclusion that the mortgage by Osei Kojo and another to Nyieni was with the knowledge of the family. However, they merely dismissed Kwan?'s appeal without in any way varying or modifying the findings of fact made by the trial-Court. Nyieni did not appeal against those findings of fact.Notwithstanding the decision of the Kumasi West District Court ?"B?" and the result of the appeal, Nyieni sold the farms in dispute to Kwaku Duah on the 6th March, 1954, that is to say only three days after the judgment, because, as he alleged, the debt of 900 had not been paid as ordered by the trial-Court. To challenge this sale Kwan instituted proceedings (which were transferred to the Land Court, Kumasi) against Nyieni and Duah, claiming:(a) a declaration that the farms were still the property of his family;(b) an order to set aside the sale of the farms, and(c) the value of 700 loads of cocoa collected from the said farms during the 1953/55 cocoa seasons, and, in the alternative, damages for trespass.Kwan?'s action was dismissed by Benson J. mainly on the grounds:(1) that Kwan was not head of the family, nor a person authorised by the family to sue;(2) that the mortgage by Osei Kojo to Nyieni was valid in spite of the finding by the West District Court ?"B?" that the mortgaged property was family property, and their finding that the mortgage was without the knowledge and consent of the family;(3) that the finding of the West District Court ?"B?" that the property was a family property was conditional upon the family?'s paying Osei Kojo?'s debt of 900, and failure to pay such debt made the property an individual property of Osei Kojo, and liable to be sold under the mortgage.Kwan appealed to the Court of Appeal (Civ. App. No. 52/58). That Court allowed the appeal. Final leave to appeal to the Privy Council was given on the 9th May, 1959.


Van Lare, Ag. C.J. delivered the judgment of the Court.

This is a judgment of the Court in the preparation of which we all have participated. The appeal is from a judgment of Benson J. delivered on the 12th January, 1956 in the Land Court, Kumasi, in a suit which had been instituted in Kumasi West District Court ?"B?", Goaso, and which was transferred to the said Land Court by Order dated the 12th July, 1955 made by the Land Judge, Kumasi.

(His lordship stated the facts, and proceeded):?-

In our opinion a most significant inference to be drawn from the order of the Kumasi West District Court ?"B?" is that Yaw Donkor, the caretaker of the family, should retain possession of the farms. It can also be inferred from that order, read together with the second order, that a declaration that the farms were not liable to be sold was clearly meant, though not specifically made. The reasons given by the Court for their order that the debt of 900 should be paid out of the proceeds of the farms show that the Court was doing justice in accordance with native custom, without interfering with the strict legal rights of the family in their property.

We are unable to agree, however, with any of the reasons advanced in the judgment of the learned Judge. Counsel for the respondents, supporting the judgment, submitted that the declaration of native custom (that the appellant, not being the head of the family, is not competent to sue in respect of family property) is a correct statement of the custom. He argued that the only exception to that well established custom is in the case of interpleader suits where, under the Rules of Court, any member of the family who claims to be in possession, active or constructive, of family property which has been attached in execution of a decree of the Court, can resort to the Courts for the removal of the attachment.

Firstly, however, the Kumasi West District Court ?"B?", who are presumed to know the native custom, made the declaration prayed for by the appellant in the former suit, although it found in very clear terms that the appellant was not the head of the family. The inference is that, though not the head of the family, the appellant as a member of the family is entitled, in the special circumstances of the case, to sue on behalf of the family. As already pointed out, that judgment of the trial District Court ?"B?" was not varied by the superior native court, which is a higher authority on the native customary law than the District Court ?"B?". In this connection we wish to repeat the opinion we expressed in the judgment delivered on 2nd February, 1959 in Civil Appeal No.47/58 (Anane v. Mensah) as follows:

?"Native customary law is peculiarly within the knowledge of the native courts, and the opinion of a superior native court on native [p.71] custom must be preferred to the opinion of an inferior native court, unless it is either contrary to a decision of the Supreme of the Privy Council on the point or ?'is repugnant to natural justice, equity and good conscience?' (sec. 87, cap. 4).?"

Again, in their judgment the District Court ?"B?" found that it was after the arbitration award (setting aside the deposition of Osei Kojo from the headship) that the family met, and appointed the appellant as an additional head. Thus, although the appellant?'s appointment was declared ineffective at the arbitration, the findings of the Court in that former case show that he went to Court upon the authority of the principal members of the family.

In the case of Mahmudu v. Zenuah (2 W.A.C.A. 172), family property was attached for sale in execution of a decree obtained against the head of the family in his personal capacity. A member of the family other than the head interpleaded, and lost. Aiken J., sitting on appeal from a judgment of the Police Magistrate (now District Magistrate) who was the Court of first instance, referred the following point of law to the West African Court of Appeal for their opinion:

?"Is the rule of native customary law to the effect that only the head of family can sue on its behalf not contrary to justice, equity and good conscience in a case like this, and therefore not applicable thereto??"

Graham Paul J., as he then was, delivering judgment in the West African Court of Appeal, stated:

?"It is to my mind clear that such a native customary law is ?'repugnant to justice, equity or good conscience,?' and that it is, therefore, under section 19 of the Supreme Court Ordinance, not a rule of native customary law which the Supreme Court have the right to observe and enforce the observance of.?"

(Section 19 of the Supreme Court Ordinance is now section 87 (1) of the Courts Ordinance). Graham Paul J. concluded by saying that that did not mean that the general principle of native custom that only the head of the family could sue to recover family land was no longer the native custom. With these views Kingdon C.J. (Nigeria), and Yates Ag. C.J. (Gold Coast), concurred.

There is also the case of Koran v. Dokyi ors. (7 W.A.C.A. 78). In that case, family property was sold in execution of a decree against one Danso, a member of the Ekuona Family of Akyem Abuakwa, in respect of his personal debt. The plaintiff therein, one of the principal members of Ekuona Family, but not the head, sued the judgment-creditor, the auctioneer and the purchasers in the then [p.72] Tribunal of the Paramount Chief of Akyem Abuakwa, and claimed precisely the same reliefs as the appellant claims in this suit. The Tribunal after making findings of fact similar to those found by the Kumasi West District Court ?"B?" referred to, declared that ?"the properties claimed are the properties of the Ekuona Family, and were not liable to be sold for the debt due from Danso personally.?" They also held that according to native custom the plaintiff was empowered to bring the action. They concluded with an order in these words: ?"That the plaintiff, for herself and on behalf of her family, do recover the said properties, for and on behalf of herself and the said Ekuona Family, without any further liability on the part of the defendants.?"

That judgment was upheld on appeal by the then Court of the Provincial Commissioner, who among other things stated that he accepted the custom as laid down by the Tribunal, and said ?"It seems to me that no one is better qualified to define Akyem Abuakwa native custom than the Omanhene and his Councillors.?"

Upon further appeal to the West African Court of Appeal, the sole ground argued was that although ?"family property had been wrongly sold under a writ of Fi.Fa. issued in execution of a judgment against an individual member of the family for his own personal debt, and the purchasers have entered into possession and occupation of the family property, no member of the family except the head of the family may take action in Court against the purchasers to claim a declaration that the property in question is family property and not liable to be sold for the debt in question, and for recovery of possession for and on behalf of the family.?" The West African Court of Appeal agreed with the observations made by the Court of the Provincial Commissioner as to the native custom, and dismissed the appeal.

The conclusions we have come to, upon careful consideration of the judgments in the two cases to which we have referred, and other judicial decisions on the native custom in this regard, are as follows:

(1) as a general rule the head of a family, as representative of the family, is the proper person to institute suits for the recovery of family land;

(2) to this general rule there are exceptions in certain special circumstances, such as:

(i) where the family property is in danger of being lost to the family, and it is shown that the head (either out of personal interest, or otherwise) will not make a move to save or preserve it; or [p.73]

(ii) where, owing to a division in the family, the head and some of the principal members will not take any step; or

(iii) where the head and the principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole.

In any such special circumstances, the Court will entertain an action by any member of the family, either upon proof that he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property.

Applying these principles to this case, we are of the opinion that the learned Judge of the Land Court misdirected himself on the native customary law in holding that the appellant was not competent to sue on behalf of the family. It was manifestly clear that the action was instituted solely to preserve the family character of the property; further, there was evidence on record that the appellant, though not head, was authorised by the family to institute the action. We would go further, and say that the learned Judge erred in challenging the competency of the appellant to bring the action, when the native courts (which are the repositories of native custom) had not challenged the appellant?'s right to do so, even though they found him not to be the head.

We now come to the other pronouncements of law made by the learned Judge of the Land Court in stating that the mortgage was of full force and effect, despite the findings of fact made by the Kumasi West Native Court ?"B?". In our opinion the principle of law is that a deed of conveyance, mortgage or lease of family land which is on the face of it executed by the head and another member, upon proof timeously made that its execution was without the knowledge and consent of all the principal members of the family, is null and void. Two direct cases on this point are: Agbloe II ors. v. Sappor anor. (12 W.A.C.A. 187) and Bassil anor. v. Houger (14 W.A.C.A. 569). As the learned Land Judge himself stated in his judgment: ?"The issues before the Native Court were, inter alia, to decide whether the property belonged to the family, and whether Osei Kojo had the right to mortgage the property.?" The decisions of the Native Court on these two important issues were:

(a) the land was family property; and

(b) Osei Kojo had no right to mortgage it, and his mortgage of it to the 1st respondent was without the knowledge of the family. [p.74]

The legal effect of those findings is that the mortgage was null and void, and of no effect. That being so, the 1st respondent (the mortgage-vendor) acquired no right over the family property under his mortgage, and his sale thereof was wrongful; and the 2nd respondent, the purchaser from the mortgagee, in the result acquired no right, title or interest in the said farms entitling him to enter thereon. The interference by the respondents with the family?'s possession is therefore trespass. In our view the appellant fully established his case, and should have had judgment entered in his favour upon his claim.

For these reasons we allow the appeal, set aside the judgment of the Land Court, Kumasi, including the order as to costs; any costs paid to be refunded. We enter judgment for the appellant against the respondents for:

(a) a declaration that the four cocoa farms, the subject-matter of the suit, are property of the appellant?'s family;

(b) a declaration that the sale of those farms by the 1st respondent to the 2nd respondent had no legal effect, and passed no property in the said farms to the 2nd respondent. The appellant is therefore entitled to a recovery of possession for and on behalf of the members of his family, and to damages up to the date of this judgment.

As to damages, the appellant?'s evidence, both in-chief and under cross-examination, was that the four cocoa farms in dispute yielded 700 loads of cocoa per annum, and that the standard price was 72/-. He gave details as to how the figure 700 was arrived at. Neither of the two respondents said anything in his evidence on this subject; but, in answer to the Court, 2nd respondent stated that he realised 250 loads of cocoa from the four farms for the first season; he did not go farther.

As it is extremely difficult, in view of the paucity of evidence on the point, we think it is safer to accept the lesser of the two figures for assessing damages. Accepting 250 loads for the season 1954/55, up to the date of this judgment the total number of loads of cocoa harvested from the farms in question would be 250 x 4, that is to say 1,000 loads. Allowing the usual one-third for labour and other incidental expenses, we have 6662/3 loads. If we take judicial notice of the standard purchasing-price of cocoa during the period 1954/1958 seasons, which was 72/- per load, the amount realised by the 2nd respondent on behalf of the appellant?'s family would be 72/- x 6662/3 (=2,400), and we award such amount as damages accordingly.


<P>The appeal having been allowed, the appellant will have his costs in this Court, fixed at £61 10s. 0d.; and his costs in the Court below, to be taxed.</P>

Plaintiff / Appellant


Defendant / Respondent

Benjamin with him Reindorf


(1) Anane v. Mensah (p. 50 of this volume);

(2) Mahmudu v. Zenuah and anor. (2 W.A.C.A. 172)

(3) Koran, etc. v. Dokyi and 2 ors. (7 W.A.C.A. 78);

(4) Agbloe II & ors. v. Sappor & anor. (12 W.A.C.A. 187);

(5) Bassil & anor. v. Houger, etc. (14 W.A.C.A. 569)

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