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OKOE v. ANKRAH


  • New
  • 1961-02-23
  • HIGH COURT
  • GLR 109-124
  • Print

OLLENNU J.


Summary

Customary law?-Succession?-Meaning of "family" for the purposes of succession?-Persons entitled to appoint successor.

Headnotes

The plaintiff, a maternal cousin of Emmanuel Ankrah, deceased, sued the defendant as "head and lawful representative of the late Emmanuel Ankrah", claiming an account of rents collected by defendant from house No. C1/1, Kwame Nkrumah Avenue, Accra, which was a self-acquired property of the said late Emmanuel Ankrah, deceased. The plaintiff pleaded that he was duly appointed successor and head of family at a meeting of the family held expressly for that purpose on June 19, 1960. The defendant who upon the authority of the family had been collecting the rents prior to the appointment, had refused to account to him.The defendant, a son of the late Emmanuel Ankrah, denied that the plaintiff had been properly and customarily appointed successor and head of family, because, he contended the persons who purported to make the said appointment [p.110] were not entitled by customary law to make it and further the plaintiff was not a member of the family of the deceased for the purposes of succession and therefore he could not be appointed to succeed him.

Judgement

ACTION by plaintiff as successor to, and head of the family of Emmanuel Ankrah (deceased) for an account of rents collected by defendant from House No. C1/1, Kwame Nkrumah Avenue, Accra. Defendant disputed the appointment of plaintiff as successor.

In this case the plaintiff claims account of rents collected by the defendant from House No. C1/1, Kwame Nkrumah Avenue, Accra, which was the self-acquired property of the late Emmanuel Ankrah, deceased. He claims in a representative capacity as successor to, and head of the family of, the said Emmanuel Ankrah, deceased. He pleaded that he was duly appointed to the office of successor and head of family at a meeting of the family duly held on June 19, 1960, convened for that purpose, and that defendant who, upon authority of the family, had been collecting the rents from the premises prior to the said appointment has refused to account to him, the plaintiff. [p.112]

The defendant, a son of the said Emmanuel Ankrah, denied the appointment of the plaintiff as successor to, and head of the family of, Emmanuel Ankrah, pleaded that the said appointment is null and void because the persons who made it were not entitled by customary law to make it, and further that the plaintiff is not a member of the family of the deceased and could not therefore be appointed to succeed the deceased.

The main issue joined between the parties is whether or not the appointment of the plaintiff as successor to late Emmanuel Ankrah and head of his family is valid. In addition to this there are a number of collateral issues which have been raised on the pleadings and on the evidence. It is necessary that these must be resolved first to enable the court to make its finding upon the facts, and then apply the relevant customary law to determine the main issue.

Among the number of collateral issues is the relationship, if any, which existed between the plaintiff and late Emmanuel Ankrah, hereinafter called Emmanuel. On the part of the plaintiff there is overwhelming evidence from witnesses whose truthfulness emerged naturally, and who impressed me as persons who knew exactly what they were talking about, that Adede, abbreviated into Ardey, maternal grandmother of Emmanuel, was a sister to a woman called Amla; that those two sisters had a brother called Aboagye; that the said Amla begat Sabah who was the father of the plaintiff; that Kwartsoe the mother of Emmanuel was a daughter of the said Adede; therefore Kwartsoe and Sabah were maternal cousins, and therefore, in the eyes of customary law, Emmanuel was a nephew to Sabah, entitled to succeed to Sabah upon Sabah's death intestate. On the part of the defendant all the evidence produced on this point is an expression of ignorance as to whether or not the plaintiff is a relation of Emmanuel. I accept the evidence of the plaintiff and his witnesses on this point, and I go further to say that I also accept the evidence led on behalf of the plaintiff that upon Sabah's death intestate, Emmanuel, as his nephew and some other relations succeeded to his estate, and that Emmanuel had a share in the proceeds of the sale of Sabah's real properties at Sekondi.

Another collateral issue is whether the late Emmanuel was a member of the Ankrah family paternally. There is positive evidence on the part of the plaintiff that he was a direct descendant of Kwaku Nyame and therefore a member of the Ankrah family paternally. This is one of the points on which the defendant betrayed himself as a thoroughly dishonest person: he swore in evidence-in-chief that his great-grandfather, Ansah, was not an Ankrah by birth, that he was a stranger from Mowure who came to Accra to fish, lived, and died here, and identified himself with the Ankrah family, and so when he had a son, the said son was given an Ankrah family name, Okantah, by adoption. That is Okantah, the ancestor whose name the defendant bears. When he found himself cornered under cross-examination he eventually changed his story and deposed as follows:-

"Yes it is correct that my grandfather Okantah is a direct defendant of Kwaku Nyame his grandfather, and so my grandfather was not named by adoption."

He was re-examined after the short break, and this is what he then said on the same issue. [p.113]

"No I never said in cross-examination that my grandfather Okantah was direct descendant of Kwaku Nyame."

"No Kwaku Nyame was not my father's grandfather".

A witness of this type who would run down his ancestry, with a view to gain an end, admit the truth about his ancestry in one breath, and in another breath deny it, when it appears there is something to gain by denying it, is a person who has no pride in his ancestry, and certainly has no regard for the solemn sanctions of an oath. It is not surprising that he wrote such nasty letters about his father, the person whose property he now wants to enjoy.

I accept the evidence that Emmanuel was a descendant in the direct male line of Kwaku Nyame, and that the Ankrah family is his paternal family, and the paternal family of all his children including the defendant. But even if Ansah was a stranger who settled in Accra and identified himself with the Ankrah family, as alleged by the defendant, he and his descendants are by customary law, members of the Ankrah family; see Sarbah: Fanti Customary Laws (1897), p.38 where the learned author said: "the stranger belongs to the family of the person with whom he lodges, to whom he came, or who is his landlord". See also the following cases where it was held that the law which regulates succession to a deceased stranger who settles in a place is the customary law of the tribe with which he identified himself: Lutterodt v. Amarfio1, Yeboah v. Bonko2 Nasu v. Basel Missions3 and Millers v. Hein4

Now when Kwarmah, P.W.5., gave evidence, among other things, that she paid 'the cost of the coffin which was presented on behalf of all the children of Emmanuel for the burial of their father, she was cross-examined vigorously to the effect that each of the children had, since the funeral, paid to her his or her share of the cost thereof, which of course she denied. When the defendant and his brother D.W.1 got into the witness-box they told quite a different story which must have taken learned counsel for the defence himself by surprise as can be seen from the following questions put by him, counsel for the defence, to D.W.1, and the witness' reply thereto when he was re-called the next day at the request of counsel.

?"Q. What did you mean when you told the court yesterday in cross-examination that you never at anytime before coming to court yesterday, told counsel for the defendant i.e. me, Dr. Danquah, that the defendant gave G10 to P.W.5 for her to use as advance for the purchase of the coffin, that in fact P.W.5 did not pay the said G10 or any money to the carpenter who made the coffin and that of the defendant had to pay direct to the carpenter G25 which is the full cost of the coffin? What did you mean by saying that you never told me that story before coming to court? Did you tell the court that you never told me and that it was in the witness-box that you for the first time said it to my hearing'?"

A. Yes I did tell the court yesterday that I never told you Dr. Danquah that story at anytime, and that it was in the witness-box that I for the first time in my life told that story in your hearing. Yesterday when he asked me I don't understand it that was why I said so". [p.114]

It goes without saying that I must accept the evidence of P.W.5 Kwarmah Ankrah as true and reject that of D.W.1 as untrue.

Another important collateral issue is whether Mark Ankrah was controlling the house for sometime before the death of Emmanuel, and continued to do so thereafter, and whether during that period the defendant merely collected the rents from tenants and paid the same to Mark Ankrah who disbursed it. [His lordship reviewed the evidence in this regard and continued: - I find it proved that for a few years before the death of Emmanuel, Mr. Mark Ankrah was the person in charge of the management of the house, that upon his authority the defendant collected the rents and paid the same monthly to Mr. Mark Ankrah, who disbursed the same. I also find that upon Emmanuel's death, the family appointed Mr. Mark Ankrah and authorised him to manage the house, and that the defendant continued to collect and pay the rents to Mr. Mark Ankrah upon Mr. Mark Ankrah's authority. I further find that when Mr. Mark Ankrah gave up the post, Ansah, P.W.3, was appointed in his place.

Until the defence began, the case had proceeded, including cross-examination, on the lines that the funeral of Emmanuel was performed by the Ankrah family in the Ankrah family house P. B., and presided over by Nii Ardey Ankrah or Chief Ardey Ankrah, the acknowledged head of the whole of the Ankrah family, and the general funeral expenses paid by the family, the children providing the coffin and burial clothes, and that all this had been done in conformity with custom.

From the moment the defence opened the story changed completely. According to the defence the whole of the expenses of the funeral were paid exclusively by the defendant and the other children of Emmanuel.

[After reviewing the evidence, his lordship continued:?- I find as a fact that the funeral of Emmanuel was performed by the Ankrah family at P. B., the Ankrah paternal family house, and that it was in accordance with custom; that the funeral rites both for the burial and for the memorial service were presided over by Nii Ardey Ankrah, the head of the Ankrah family, ie. Emmanuel's paternal family as custom demands, and that the children performed only the part which custom lays down as the responsibility of children, that is, they provided the coffin and the burial clothes for the burial of their father. According to customary law children bear exclusively the cost of the coffin and the burial clothes of their father, and in rare cases of their mother, that is, when their father and all the father's paternal brothers, and paternal cousins predeceased the mother; by custom a person's dead body is laid out in state in his paternal family house, and his funeral is presided over by the head of his paternal family assisted by the head of the maternal family; the general funeral expenses are borne by the family; the family are entitled to allot a share of the general expenses to the children if funeral donations received are not enough. But each individual member of the family is personally responsible to pay for any drinks etc., which he requires to serve his personal friends. For the custom as to the respective responsibilities of the family and the children in the funeral, see Sarbah, Fanti Customary Laws (2nd ed.), p.40. The next important matter is whether the defendant and his half [p.115] sister D.W.2, Elizabeth Kwarmah Ankrah, were invited to the meetings of the 17th, 18th and 19th June, 1960, which appointed the plaintiff. Having seen and heard P.W.4, Emmanuel Adjabeng Ankrah otherwise known as Nii Adjabeng, I was highly impressed with his evidence as truthful. I reject the evidence of the defendant and of his sister D.W.2. I find as a fact that the defendant and D.W.2. were invited to the three meetings, but they refused to attend, and I also find upon the evidence that on previous occasions Nii Ardey Ankrah and other members of the Ankrah family went to the house in dispute to hold a meeting and to distribute the rooms therein to all the children of Emmanuel, but the defendant and D.W.2. treated the elders with contempt on each such occasion, and left the house.

Now whether or not Otinkorang Ankrah, P.W.6, carried out repairs done to the house as a result of the earthquake or not, is immaterial as far as the issues before the court are concerned. But the introduction of that apparently irrelevant matter has had the effect of further demonstrating how dangerous it will be to accept the evidence of the defendant.

I must say that with the exception of the old man D.W.5, whose evidence I shall be dealing with presently, the defendant and his witnesses showed themselves to be so untruthful that it will be a travesty of justice to rely on any evidence any of them gave on any controversial matter.

The old man D.W 5, however, struck me as a truthful witness who made honest mistakes. Like D.W.2. and D.W.3, he had sat in court throughout the major part of the proceedings and heard nearly the whole evidence in the case; he was called to give evidence of custom and of the nature of the marriage between the late Emmanuel and his, the witness' sister, Angmorkai, mother of the defendant. The evidence as to the marriage was sprung upon the plaintiff at the last moment as a surprise. Now apart from the evidence as to presentation of an engagement fee of ; G4 odd, all the evidence the witness gave as to the nature of the marriage, turned out in re-examination and in answers to questions by the court, to be not of his own knowledge, but what other people had told him, and opinion he formed. I am unable to hold upon that evidence that the marriage between Emmanuel and Angmorkai, the mother of the defendant was a Ga six-cloth marriage; not that it matters very much how the children were begotten.

As to the evidence of custom given by D.W.5, it is fair to say that a good deal of what he stated as custom relating to succession, is, from my own knowledge of the customary law, a fairly accurate statement of the customary law.

Now at this stage I shall state very briefly the facts which are not in dispute together with those I have found proved, then discuss the law on the point, and finally apply the law to the facts to come to my decision.

Emmanuel died on the 26th April, 1952; he was laid in state at P. B., his paternal family house and his funeral was performed by his paternal [p.116] family, his children providing the coffin; he was survived on his paternal side by Nii Ardey Ankrah head of his paternal family which family includes Robert Ansah Ankrah, P.W.3, his paternal half brother. Mark Ankrah, a paternal cousin and a friend, and children of his brother Enoch; and by his twelve children whom he had by six wives; six of these children, including the defendant, being of one mother. On his maternal side he was survived by the plaintiff, son of his maternal uncle Ataa Sabah, by P.W.1, Abotchie Tetteh, son of his maternal grand-uncle Aboagye, one Mary Odarkor Sackeyfio, who lives in the house of his (Emmanuel's) maternal family situate off Horse Road, and Gilbert E. Allotey, son of Botchway, the sister of Okantah. For some few years before Emmanuel's death, Mark Ankrah was in charge of his house No. C1/1, Kwame Nkrumah Avenue, Accra. The defendant collected the rents and paid the same to Mark Ankrah. On his death, Mark Ankrah continued to be in charge of the property upon the authority of the family, and the defendant continued to collect the rents for Mark Ankrah with the authority of the family. Mark Ankrah relinquished his post in or about 1954 and P.W. 3, Robert Ansah Ankrah was appointed in his place. At the date he relinquished his post Mark Ankrah rendered accounts at a meeting of the family presided over by Nii Ardey Ankrah, and the net balance of the rents he had collected was shared among members of the family including the children. Ansah did not have much success with the defendant in the matter of the control of the house. The defendant who lives in the house has arrogated to himself powers of control over the house. He and his half sister D.W.2. have refused to recognise the authority of his father's family, paternal or maternal. The two of them frustrated attempts made by the family to share the rooms in the house among all the children of Emmanuel. In June, 1960, Nii Ardey Ankrah the head of the paternal family summoned a meeting of the paternal family, the maternal family and the children of Emmanuel to appoint a successor to Emmanuel and head of his immediate family. The defendant had notice of each of the meetings but refused to attend, and so did his half sister D.W.2. The remaining four groups of the children were represented - three groups attended in person, and one group by the mother. The last of the three meetings was held on June 19, 1960. Thereat, the plaintiff was unanimously appointed successor to, and head of the family of, Emmanuel. The appointment was brought to the notice of the defendant by letter written to him by the family solicitor. The defendant by his solicitor wrote to dispute the appointment. The family have since let the premises to an oil company.

And now to the law. It is a well established principle of our customary law, that upon a person's death intestate his self-acquired property, real and personal, vest in his family as family property; Captan v. Ankrah,5 Amarfio v. Ayorkor6. The family which inherits may be the maternal family, or the paternal family, depending upon the tribe to which the deceased belonged, and in exceptional cases the joint maternal and paternal family. In Accra town, as distinct from the Ga-Adangme [p.117] area, the family which succeeds in normal circumstances is the maternal family. There are several judgments on the point, the most celebrated ones are--Larkai v. Amorkor,7 Vanderpuije v. Botchway,8 (which is still good law, in spite of the fact that it was set aside on technical grounds by the judgment of the Privy Council9), Amarfio v. Ayorkor,10 and Aki Mills v. Francis Addy.11 The maternal family consists of all descendants in the direct female line of a common ancestress, however remote the relationship. See Sarbah's Fanti Customary Laws (2nd ed.) p.33, Amarfio v. Ayorkor,12 Arthur v. Ayensu13, Nana Juaben Serwah v. Nana Akyea Kesse,14 and Aki Mills v. Francis Addy,15 already referred to above.

The family whether maternal or paternal consists of a number of concentric circles the innermost of which is called the immediate family; upon the failure of any one in an inner circle to succeed, resort is had to an outer and yet outer circle called the wider or extended family; see Aki Mills v. Francis Addy16 cited above.

Upon entire failure of the maternal family other principles are applied. The idea of the entire failure of the maternal family is absolutely inconceivable to the Akan mind, because of their clan system. There are five main clans, namely: (1) Ekona, (2) Asona, (3) Ntwa, (4) Twidam and (5) Aduana. Members of a clan are regarded as descended in the direct female line from a common remote ancestress, e.g. "Eko" is the common remote ancestress of all Ekonafo, i.e. members of the Ekona clan throughout Ghana and even beyond, and "Aso" the common remote ancestress of all Asonafo, i.e. members of the Asona clan. The outer ring of the concentric circles constituting the family or clan embraces the whole country. Consequently there are members of each of the clans in each Akan state. Therefore upon failure to find an Ekona man or Asona man in one town to succeed to a deceased Ekona or Asona man, you move to another town, even to another state if need be, to get Ekona people or Asona people to constitute the family of a deceased, to succeed him. Thus if an Asona man of Kibi dies, and no Asonafo could be found in Kibi town, resort may be had to Begoro in the same Akim Abuakwa state, or even to Mpraeso in Kwahu, or to Kumasi in Ashanti, or to Cape Coast in Fanti, to find a successor to the deceased. There have been many instances of that. But for practical purposes upon that remote possibility of the family failing, the succession passes to the "clan or tribal relative".17 In that event the family for purposes of succession consists of all direct descendants of male members of the maternal family, i.e. children of persons to whom the [p.118] deceased could have succeeded if they had predeceased him, The family which succeeds in that case is constituted as follows:-

(1) children of the deceased, and their descendants,

(2) children of his uterine brother and their descendants,

(3) children of his uterine uncles and their descendants, and

(4) children of his uterine grand-uncles and their descendants.

This custom was discussed by the Privy Council in another Ankrah family case, but the decision in the case did not turn upon that point; that is the case of Ayeh and Anor. v. Ankrah and Anor.18

Some attempts have been made in Accra to formulate something more definite, to say that in such remote possibility of the maternal family completely failing, children constitute the family: see, for example, Sarah Ribeiro v. Elizabeth Mingle,19 Vanderpuije v. Botchway,20 Sackeyfio v. Ayichoe Tagoe,21 and the cases therein cited. A careful examination of each of these cases reveals however, that the tribunal and the native courts were making desperate attempts to change the custom of succession in Accra from matrilineal to a half-way house between matrilineal and patrilineal families. Thus in each of those cases it was held that the maternal family was limited to a person, his mother, his uterine brothers and sisters, his uterine nephew and nieces and his uterine aunt. That narrowing down of the maternal family contradicts the definition or denotation of the "Accra maternal family" as laid down by higher authorities like the West African Court of Appeal and of the Court of Appeal; see Amarfio v. Ayorkor,22 and Aki Mills v. Francis Addy23 cited above and the cases there cited.

Again the case of Captan v. Ankrah,24 is sometimes cited in support of the proposition that according to Accra custom children succeed to their father's estate where there are no uterine brothers and sisters, uncles, aunts and nephews. But Captan v. Ankrah did not make any such decision; what it decided is that where land is granted to the holder of a stool for services in war and the said holder had brothers but not sisters, since the land is property attached to the stool as part of the property of the stool, it descends, as the stool itself, i.e. to the paternal family which consists of all descendants of the father of the original three brothers namely-descendants of Mantse Ankrah, Nii Ayi and Nii Okantah. That decision is on the same principles as Larkai v. Amorkor.25 Therefore Captan v. Ankrah is not authority for saying that in Accra children succeed when the immediate or narrow maternal family of their father fails. [p.119]

The most recent case on the point is Sackeyfio v. Elizabeth Lamptey,26 where Smith J., upheld a judgment of the Accra Municipal Court in the following terms:

"I am satisfied on the authorities cited to me that according to Ga custom the children of a six-cloth marriage succeed to the entire estate of the deceased in the absence of any uterine relative of the deceased".

With respect to the learned judge, I do not subscribe to that view, firstly because he based his decision on the erroneous opinion of the Ga Native Court referred to in Sackeyfio v. Ayichoe Tagoe,27 as to who constitute the maternal family; and secondly because even if the authorities cited to him correctly stated the custom, which in my opinion they did not, those authorities say that in that case children generally succeed, they did not limit it to children of a six-cloth marriage. The only justification the learned judge had for limiting his declaration to children of a six-cloth marriage is that the claim was made on behalf of children of a six-cloth marriage and of no other. A declaration of the sort, if correct, must be in respect of children as understood in customary law, that is all children however born, whose paternity is proved or who were acknowledged by the deceased during his life-time as his children. In my opinion the principle applicable to succession in Accra upon failure of the maternal family is exactly the same as that which applies in any other matrilineal system, e.g. among the Akans, that is that in such eventuality children come within the group of persons, who constitute the family for purposes of succession, but they alone do not succeed.

Another well established principle of our customary law of succession is that succession is not as of right, that is, no person has an inherent right to succeed; succession is by appointment. That custom is vividly illustrated by the case of Chief Quarcoo Attipoe Anor. v. Bishara Shoucair T. Kpodo Tamakloe28 The second defendant in that case, the eldest son of E. Nelson Tamakloe, had obtained a declaration of the Anlo Paramount Tribunal against his younger brother that as the eldest child, he was the successor to his deceased father. Armed with that declaration he obtained letters of administration from the Divisional Court to administer his father's estate, and, without the paternal and maternal relatives of the deceased, in collaboration with some of his younger brothers and sisters he leased his father's building in Accra to the first defendant and another person, in his capacity as successor to his father. The two plaintiffs who were respectively the heads of the maternal and paternal family of the deceased sued the lessee and the son, the second defendant, contending that the second defendant had not been appointed successor in accordance with customary law, and consequently had no right to deal with the property of his late father. It was held that the declaration of the native tribunal in favour of the second defendant amounted to nothing more than a declaration that, he, the second defendant, as the eldest son of his late father was among the class or group of persons who could be appointed to succeed to his late [p.120] father, and that a tribunal or court cannot appoint a successor; it can only do one of two things: (1) decide whether a particular person belongs to the class of persons from amongst whom a successor could be appointed, and (2) whether an appointment of a person as successor is valid by customary law. The judgment in that case decided definitely that the relatives, and they alone, are the persons entitled to elect and appoint a successor. In the course of his judgment in that case Coussey, J., as he then was, said:

"The circumstances of this case strengthen my view that although the Native Tribunal had declared the 2nd defendant's right, it is still necessary for the family at a duly constituted meeting, to examine with the 2nd defendant, the terms as to liability and assets and the other obligations upon which he would enter upon the office of successor and thereupon to entrust the properties to him to discharge the office."

He continued:

"In native custom all succession is a question of election by relatives, not of inherent right; the only rigid rule is that the election shall be constitutionally carried out at a proper meeting of the relatives".

The same principle of the customary law was laid down in the case of Makata v. Ahorli Ors29. That was a case from Agave, Ada area where succession is patrilineal; yet the meeting of relatives appointed a sister's son to succeed his uncle, while a brother of the whole blood and children of the deceased were there. In the headnote to that case, holding (i), we have: "there are no rigid rules of intestate succession in Gold Coast [Ghana] native custom but the elders ... may appoint a successor at their discretion, to stand in the shoes of the deceased," and at p. 173 of the report there appears the following passage:

"I have stated earlier that there is no rigid law of inheritance in Native custom. If the family decided, as the evidence indicates they did, in justice to the plaintiff who had helped the deceased and probably worked the farms with him, that a more distant relative was more deserving and should inherit from him, there is nothing strange or improper about that - it was within the decision of the family council, of which, on the evidence, the deceased's brother, Siameh Boshua, was a member?".

On this point see also Sarbah's Fanti Customary Laws (1897) pp. 85-86, Fred Khoury Majid Khoury v. Tamakloe30 and Akumanyi v. Peprah31

But who by customary law should constitute the council of relatives in order to make the appointment of a successor or head of the family of a deceased valid? The answer is to be found in the answer given by the witness on custom called for the defence, D.W.5, the old man, George Atakora Mensah, in answer to the court as follows:

"Since no person is born by a man alone or by a woman alone, if a person dies and his successor is to be appointed, either in the maternal family or in the paternal family, Ga custom requires that the two groups of families must meet, i.e. the father's family and the mother's family together, to appoint a successor to the deceased".

[p.121]

And in answer to counsel for the defendant the witness said:

"If the property should descend on the mother's side, when the two families meet, they must appoint the successor from the mother's family".

The statement of this witness of the custom as to the constitution of the council of relatives for the appointment of a successor, is, in my opinion, a correct statement of the customary law in that behalf. The body entitled by customary law to appoint the successor is a joint council of the maternal and paternal families of the deceased. On this point see also the statement of the custom by the Paramount Tribunal of the Anlo State in a report they made to the Divisional Court under section 89 of the Courts Ordinance, Cap. 4, now repealed.

Now the rules regulating the procedure for a meeting for the appointment of a successor are the same as those which govern a meeting for the appointment of a head of family. The joint meeting may be summoned by the head of one of the families or by an independent person, e.g. a chief, and presided over by the person who convenes it. Once all principal persons have been given notice of the meeting an appointment made is valid notwithstanding the absence of any or some of the principal members: see Welbeck v. Captain Hammond32, Botchway v. Vanderpuije,33 cited in Vanderpuije v. Botchway,34 and Fred K. Tamakloe v. Chief Attipoe, Chief Tamakloe and 2 ors.35

Yates, J. in delivering the judgment of the Divisional Court, in Botchway v. Solomon36 stated inter alia:

"The family meeting was convened four times, and the Defendant (Solomon) refused to attend; he was further summoned before the James Town Mantse and refused to attend -in fact the Defendant had denied the family - and I therefore hold he was properly removed; and I hold further that the Plaintiff (Botchway) was properly installed as caretaker and elected head of the family".

The West African Court of Appeal in endorsing the views of Yates, J. stated in the case of Vanderpuije ors. v. Botchway37 as follows:

"A section of a family must not be suffered to obstruct the conduct of affairs in this manner, We have referred earlier in this judgment to the finding of Yates J., that the election of a head of family was not invalid, although the deposed head had refused to attend the meeting. Native custom consists in the performance of the reasonable in the particular circumstances of the case - per Brandford Griffith, C. J., in Yirenchie v. Akuffo, Renner's Reps., 362 at 367".38,

In the course of their judgment of the 23rd June, 1953, in the case of Tamakloe ors. v. Chief Attipoe, Chief Tamakloe 2 Ors.39, the West African Court of Appeal said: [p.122]

?"It was further found, however, that the meeting of the 14th June, 1948, was convened in accordance with customary practice, ?..... F. Kpodo Tamakloe who was originally the 1st plaintiff in this suit, but who abandoned his claim before the hearing, was duly invited but signified by letter that he would not attend ?.... The learned trial Judge rightly, in my opinion, held, that in these circumstances the plaintiffs should be deemed to be bound by the decisions arrived at the meeting. The principal decisions were, as found by the learned Judge, that the fourth defendant E.W. K. Tamakloe should be the successor ?...?"

Applying the principles of the customary law discussed to the facts of this case I have come to the following conclusions: Upon the death intestate of Emmanuel, an Accra man, his property became vested in his family. As no descendant of his remotest known ancestress could be found in the direct female line, his family for the purposes of succession to his estate, consist of his own children, children of his brother Enoch, the plaintiff, son of his uterine uncle Sabah, whom he, Emmanuel, succeeded, P.W.3 son of Aboagye who was uterine grand-uncle to Emmanuel, Gilbert E. Allotey, son of Botchway, the sister of Okantah as admitted by the defendant, and Mary Odarkor Sackeyfio the present occupant of Emmanuel?'s mother?'s maternal family house.

The only body competent to appoint a successor to him is the joint council of his paternal family headed by Nii Ardey Ankrah and of the maternal family, the members of whom, under the particular circumstances of this case, as by customary laws must be the descendants of male members of the maternal family which had become extinct.

Of the various groups interests in the matter, notice of the meetings was given to each one, the only group who, it seems clear, did not receive notice of the meetings is Enoch?'s children. In that case the only persons who may challenge the validity of the appointment are Enoch's children who together would have one vote. They have not challenged it; they have not intervened in these proceedings; the defendant has not elected to bring them in. In fact it does appear from the evidence that when Enoch died, for reasons not disclosed, his body was not laid in state in his paternal family house, P B., or failing that, in his maternal family house, which according to the defendant is situated off Horse Road; rather his body was laid in his mother's paternal family house, Faase. All these facts, if not satisfactorily explained, amount in customary law to a denial of the two principal groups, i.e. the paternal and the maternal families of Emmanuel and the said Enoch. In those circumstances the council of the two families would be justified in ignoring them. In any event if they had come forward to object to the appointment made by the joint families, the onus would have been upon them to prove that they have continuously maintained their position with the two families and therefore have a right to cast their one vote, and that the appointment made without them is invalid; see Welbeck v. Captan Hammond40. That would be a very high onus upon Enoch's children in the circumstances of this case.

Again according to custom Emmanuel?'s group of the family consists of six sections, i.e. according to the number of wives by whom Emmanuel had those twelve children, i.e., per stirpes by their mothers, and not per [p.123] capita themselves; and since four out of the six groups were present at and took part in the proceedings, the minority, i.e. the remaining two groups will not be permitted by customary law to frustrate the efforts of the families to put administration of the estate upon a proper basis; that minority must be deemed to have acquiesced in the decision of the meeting by their refusal to attend, Vanderpuije v. Botchway41. I hold therefore that the meeting of the 19th June, 1960, was duly constituted in accordance with customary law.

A meeting so duly and lawfully constituted is entitled to appoint any person who is suitable in their opinion to succeed Emmanuel, they are entitled to appoint even a remote relation in preference to closer relations - Makata v. Ahorli ors.42

I hold that the appointment of the plaintiff as successor to Emmanuel was constitutionally carried out and is valid. The plaintiff is therefore the only person authorised by customary law to have charge and control of the family property comprised in the estate of Emmanuel including house No. C1/1, Kwame Nkrumah Avenue, Accra, and is the only person who, acting with the consent and concurrence of the principal members of the family, is competent to grant any estate or interest in the said property, and is the only person entitled to receive the rents and profits from the said house.

The defendant denies that it is with the authority of the family that he has been in control of the house collecting the rents thereof. He maintains that he was appointed successor to his father by his brothers and sisters at a meeting of the children of Emmanuel, and it is upon the authority of that appointment that he has been collecting the rents ever since his father died. In this he has been ill-advised. By customary law, children, either in the matrilineal family system or in the patrilineal system, are not entitled by themselves alone or-even in conjunction with certain members of the family to ignore the joint council of the families and to appoint a successor to their deceased father; such an appointment is null and void ab initio. This is particularly so in Accra and in all matrilineal family group systems where children do not belong to their father's mother's family; see Cobblah v. J. Duncan Bannerman43, also Baddoo v. Baddoo44. And as to the patrilineal family system, see Dora Affi Ors. v. Ellias Ayisi ors45. and Chief Attipoe anor. v. Tamakloe ors.46, referred to above.

Children of a deceased person are entitled to support and to training from their father's estates, they are entitled to share in the distribution of the personalty, and at the discretion of the head and principal members of the family, the family may apportion the real property to them to enjoy the [p.124] beneficial interest thereof, but that depends entirely upon the discretion of the family and the conduct of the children towards the head and members of the family, but even such share of the real estate given to a child, unless it is made by way of gift with the customary formalities, retains its character as family property whilst in the hands of the child: see Siaw v. Sorlor.47. It appears in this case, that but for the greed of the defendant and his half sister, D.W.3, which made them obstruct the family, the family who have been well disposed, would have shared the rooms in the house amongst all the six groups of children long before now, and each group would have had its fair share and would have been contented. But no, only the two groups would have the whole property to themselves, i.e. only the children of the defendant's mother and children of the mother of D.W.2 and D.W.3, to the exclusion of the family and the other four groups of their father's children; and although not the eldest child nor the eldest son either, the defendant must be the person vested with full powers over the estate, powers which by customary law, only the family can give.

From his conduct, the defendant would have been a trespasser and liable to pay damages in addition to mesne profits had I not accepted the case for the plaintiff that it was upon the authority of the family given originally through Mr. Mark Ankrah, P.W.2, and later through Ansah Ankrah, P.W.3, that he began to collect the rents since the father's death.

And since the evidence shows that he paid the rents collected to Mark Ansah Ankrah up to sometime in 1954, the defendant's liability to account commences from 1954.

There will therefore be judgment for the plaintiff against the defendant for account of rents and profits accruing from the building, house No. C1/1 Kwame Nkrumah Avenue, Accra, as from January, 1954, less the sum of G6 already paid to Ansah Ankrah, and payment of what may be found due to the plaintiff

Decision

<P>The plaintiff will have his costs fixed at 100 guineas inclusive.</P> <P>Judgment for plai

Plaintiff / Appellant

S. M. Codjoe

Defendant / Respondent

Dr. J. B. Danquah

Referals

(1) Lutterodt v. Amarfio (1915) D. & F. '11 - '16, 78.

(2) Yeboah v. Bonko (1956) 2 W.A.L.R. 107.

(3) Nasu v. Basel Mission (1915) D. & F. 11 16, 86.

(4) Millers v. Hein (1912) D. & F. '11-'16, 15.

(5) Captan v. Ankrah (1951) 13 W.A.C.A. 151.

(6) Amarfio v. Ayorkor (1954) 14 W.A.C.A. 554.

(7) Larkai v. Amorkor (1933) 1 W.A.C.A. 323.

(8) Vanderpuije v. Botchway (1951) 13 W.A.C.A. 164.

(9) Vanderpuije v. Botchway [1956] A.C. 501.

(10) Aki Mills v. Addy, Land Court, Accra, March 4, 1958 unreported; Court of Appeal, January 26, 1960 unreported.

(11) Arthur v. Ayensu (1957) 2 W.A.L.R. 357.

(12) Serwah v. Kesse, Land Court, Accra, April 10, 1959, reported at Oll.  C.L.L. 201; [1960] G.L.R. 227, S.C.

(13) Ayeh v. Ankrah, Privy Council, October 2, 1957, unreported,

(14) Ribeiro v. Mingle, Ga Mantse's Tribunal, July 4, 1944, unreported.

(15) Vanderpuije v. Botchway, Ga Native Court "B", November 25. 1947, unreported.

(16) Sackeyfio v. Ayichoe Tagoe, (1945) 11 W.A.C.A. 73.

(17) Sackeyfio v. Lamptey, Divisional Court, Accra, June 16, 1959, unreported.

(18) Attipoe v. Shoucair, Land Court, Accra, May 4, 1948, unreported.

(19) Makata v. Ahorli (1956) 1 W.A.L.R. 169.

(20) Khoury v. Tamakloe, Land Court, Accra, January 4, 1950, unreported.

(21) Akumanyi v. Peprah (1956) 2 W.A.L.R. 112.

(22) Welbeck v. Captan and Hammond (1956) 2 W.A.L.R. 47.

(23) Botchway v. Vanderpuije, Divisional Court, Accra, December 7, 1935, unreported.

(24) Tamakloe v. Attipoe, Land Court, Accra, November 7, 1951 unreported.

(25) Botchway v. Solomon, Divisional Court, Accra, December 7, 1935 unreported.

(26) Tamakloe v. Attipoe, West African Court of Appeal June, 22, 1953, unreported.

(27) Cobblah v. Duncan Bannerman, Land Court, Accra, November 29, 1958, unreported.

(28) Baddoo v. Baddoo, Land Court, Accra, December 2, 1958, unreported.

(29) Affi v. Ayisi, Divisional Court, Accra, April 5, 1943, unreported.

(30) Siaw v. Sorlor [1960] G.L.R. 77.

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