ANOBIL VRS NYAME (E12/68/2022) [2024] GHAHC 78 (22 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON WEDNESDAY THE 22ND DAY OF MAY, 2024 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE. SUIT NO.: E12/68/2022 ABUSUAPANYIN KOBINA ANOBIL - PLAINTIFF (SUING AS THE HEAD OF THE ADUANA-ABIRADZE FAMILY OF TWIFO HEMANG) VRS ANTHONY KWAME NYAME - DEFENDANT JUDGMENT This action has been instituted by the Plaintiff against the Defendant for the following reliefs: a. A declaration that the Plaintiff is the substantive head of the Aduana-Abiradze family of Twifo Hemang not having been removed by any customary process; b. A declaration that the purported installation of the Defendant as the successor of the Plaintiff when the Plaintiff has not been removed as head of the family is void and inconsequential; c. An order of perpetual injunction restraining the Defendant herein, his agents, assigns, privies, workmen and all those claiming through him from usurping the Plaintiff’s position as Head of the Aduana-Abiradze Family of Twifo Hemang d. Costs e. An order of grant of any other relief that this Honourable Court may deem fit to grant in the circumstances. 1 The facts of this case are straightforward. The Plaintiff’s case is that he has been the Head of family for seventeen (17) years having been installed in 2005. During this period, he commenced an action against the Omanhen of Twifo Traditional Area, Nana Amoah Sasraku IV for his decision to prevent the Plaintiff’s family from burying their deceased relatives for the reason that two of the Plaintiff’s family members had sat with the Omanhen’s adversary during one of the sittings of the Judicial Committee of the Regional House of Chiefs. Further to this, the Plaintiff successfully obtained an order of injunction against the Omanhen and this paved way for the burial of the dead relatives. The Omanhen became aggrieved by the turn of events and started instigating the removal of the Plaintiff as Head of family although, according to the Plaintiff, the Omanhen is not a member of the family. Out of fear for the Omanhen, some members of the Plaintiff’s family petitioned the Acting President of the Traditional Council by a letter containing some untrue allegations. A copy of the said letter titled “Aduana Benkum Family’s Grievance with Abusuapanyin Anobil” was given to the Plaintiff. Upon receipt of the said letter, the Plaintiff caused his lawyer to respond to the allegations contained therein thus, denying all the allegations levelled against him. According to the Plaintiff, he was never invited and has never been invited by even a single member of the family to answer any charges at any forum concerning his position as Head of family. The Plaintiff says that on 23rd May, 2022 he was at home when he had information that the Defendant herein has been appointed to succeed the Plaintiff as Head of family which implied that the Plaintiff has been purportedly removed as Head of family. The Defendant was presented to the said Omanhen. The Plaintiff is therefore, by this action, contending his removal as Head of family. The Plaintiff states that no family meeting was held for his removal and appointment of his successor to his notice. The Plaintiff maintains that he has not been given any opportunity at any family meeting to answer any allegations whatsoever which could culminate into his removal. 2 The Defendant, on the other hand, actively denies the claims of the Plaintiff. The case of the Defendant is that, on 16th May, 2022, the Aduana-Abiradze family, unable to take the actions and inactions of the Plaintiff any longer, unanimously agreed at a meeting that the Defendant be appointed as the Head of family in the stead of the Plaintiff. The Aduana-Abiradze family advised the Plaintiff not to involve the family in the dispute between Nana Amoah Sasraku IV and the Abakumhene of Twifo Hemang Traditional Area which was pending before the Central Regional House of Chiefs but the Plaintiff did not heed to the family’s advice thus involving the family in the said dispute. The Defendant states that, the Aduana-Abiradze Benkum family has a mind of its own and that the family has a right to remove a family head and appoint a new one by following due process. The Defendant further states that the Plaintiff, though answerable to the family, has failed, refused and/or neglected to answer to the family on a number of occasions when he was given the opportunity to do so. This compelled the family to notify the Acting President of the Twifoman of the grievances of the family and the subsequent removal of the Plaintiff. According to the Defendant, the Plaintiff has been invited on a number of occasions to answer to charges levelled against him and that on one such occasion, the Plaintiff warned two members of the family sent by the Benkumhene to invite him to a family meeting at the family house that no family member, including the Benkumhene, should ever step foot in his house and that he will not attend any meeting in the family house again. This notwithstanding, the Plaintiff was once invited by the Pastor of the Church of Pentecost, Twifo Hemang, to help resolve the issue between the family and the Plaintiff. At the said meeting, the Plaintiff agreed to rescind his decision not to attend family meetings and programmes, albeit Plaintiff failed to honour his word. The Defendant, on the basis of the above also counterclaimed for the following reliefs: a. A declaration that the Plaintiff has been removed as the family head of the Aduana-Abiradze Benkum family of Twifo Hemang. 3 b. A declaration that the installation of the Defendant as the new family head of the Aduana-Abiradze Benkum family of Twifo Hemang is lawful, c. An order of perpetual injunction restraining the Plaintiff, his agents, assigns, privies, workmen and all those claiming through him from usurping the Defendant’s position as the Head of the Aduana-Abiradze Benkum family of Twifo Hemang, d. Cost. e. Any other reliefs that this Honourable Court deems fit. Directions in the case was taken on the 16th day of November, 2022 and the issues set out in the Application for Directions filed on 28th November, 2022 were adopted as issues for trial. The issues for determination are as follows: a. Whether or not the Plaintiff has been duly removed as Abusuapanyin of Aduana-Abiradze family of Twifo Hemang; and b. Whether or not the Defendant has been appointed as Abusuapanyin of Aduana-Abiradze family of Twifo Hemang in the stead of the Plaintiff; As a general rule, the standard of proof in civil cases in Ghana is proof by a preponderance of the probabilities. The Courts have held time without number that unless a statute prescribes or determines who bears of the onus of proof, the person who alleges bears such onus. He must adduce cogent evidence, the totality of which is capable of satisfying a court of the probability of the existence of the fact he alleges or asserts. See sections 12(2) & 17 of the Evidence Act, 1975 (N.R.C.D. 323); ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728. Applying the above law on the burden of proof to this instant case, the burden clearly lies on the Plaintiff to establish the facts he alleges, that is, he was not given a hearing prior to his removal from office. The law is that, the burden of proving specific grounds of invalidity of either the appointment or removal of a family head at a family meeting rests with the member seeking to avoid a decision reached at the family meeting. 4 See WELBECK V. M. CAPTAN LTD. (1956) 2 WALR 47. Clearly, a family in the removal of its Head of family embarks on a quasi-judicial duty and thus has a duty to act fairly, reasonably and within the remits of the law. Therefore, where concerns are raised as to the propriety of the process removing the head of family, such as a breach of the audi alteram partem rule, the court is justified to interfere and set aside the removal of the Head of family as a nullity. According to Sarbah, in his Fanti National Constitution (1906 ed.) page 42, the right of removing a ruler belongs to the people immediately connected with the stool; in the case of the head of a family the right is in the senior members, and the act of the majority in binding on the rest. The Supreme Court, relying on the above, held in the case of ABAKAH & OTHERS V AMBRADU (1963) 1 GLR 146 that the right of removing a head of family from office was vested in the principal members of family. For a removal or appointment of a person as head of family, I take inspiration from the case of QUARCOO V ALLOTEY [1978] GLR 788. The court set out the procedure for the removal or appointment of a person as head of family as follows: a. A meeting of the family must be convened; b. The purpose of the meeting must be spelt out; i.e. to consider complaints brought against the head or successor; and c. All principal members of the family entitled to be invited must be so invited. The Court further held that the proceedings must not violate any fundamental principle of the administration of justice. In this instant case, the Plaintiff’s only challenge to his removal is the breach of the audi alteram partem rule. The Plaintiff claims he was not invited to any meeting to answer question for any wrong doing thus his removal was wrongful. 5 In the witness statement of the Plaintiff filed on 6th January, 2023 he stated, inter alia, that as Ebusuapanyin of the family, there has been no meeting which he has not attended save about seven years ago when he was sick and for that reason, could not attend any family meeting. It can be gleaned from the Plaintiff’s testimony that the genesis of the misunderstanding between himself and the family was when one Kofi Kese and Kwasi Afful went to witness the case between the Omanhen and the Abokomahen at the Regional House of Chiefs for which the Plaintiff denied any knowledge of such event and the subsequent order of injunction obtained against the Omanhen on 1st April, 2022 (EXHIBIT A). Subsequent to the order of injunction restraining the Omanhen from interfering with or doing anything to prevent the burial of two members of the Plaintiff’s family, one Nana Afesa and some family elders came to the Plaintiff to persuade him to go and plead with the Omanhen so that the funeral could be celebrated but the Plaintiff refused on the basis of the order. This, however, did not stop Nana Afesa and some family members from going to the house of the Omanhen to plead for forgiveness. After making announcement about the pending funeral, Nana Afesa and his nephew delivered a message from the Omanhen to the Plaintiff that the latter should never announce himself nor hold himself as the Ebusuapanyin. From the Plaintiff’s testimony, the Omanhen further instructed the family to remove him as Ebusuapanyin. To this end, he was prevented from taking part of the said funeral of the members of his family and neither was his name mentioned anywhere as the Ebusuapanyin. See EXHIBIT C. Subsequently, the Plaintiff heard that a new Ebusuapanyin had been installed for the family. The above testimony was corroborated by the Plaintiff’s witness, Kofi Kesse (P.W.1). P.W.1 added that there was no family meeting which was held to remove the Plaintiff 6 as Ebusuapanyin. He reiterated the fact that the Plaintiff was never invited to any family meeting to answer charges of any wrong doing. He stated in his Witness Statement that Nana Afesa and some elders of the family seek to remove the Plaintiff because of Omanhen has clearly indicated that he does not want the Plaintiff as Head of family. The Defendant, on the other hand testified that against the advice of the family, the Plaintiff involved the family in a pending suit between the Omanhen and the Abakumahene in the Central Regional House of Chiefs. The family took exception to this and advised the Plaintiff not to involve the family in the matter. The Plaintiff subsequently appeared offended by the advice and indicated that he will no longer visit and/or attend family meetings or programs anymore. The Family on a number of occasions invited the Plaintiff to rescind his decision but to no avail. Further, the Plaintiff refused to perform ceremonial functions like pouring of libation on occasions such as Akwasidae. The Defendant stated in his Witness Statement that the Plaintiff on 8th May, 2022 warned one Kofi Aidoo (a member of the family sent by the Benkumhene at the instance of the family to invite the Plaintiff to a family meeting at the family house) that no member of the family should ever step foot in his house and also that he is not going to attend any meeting in the family house again. From the testimony of the Defendant, the actions and inactions of the Plaintiff caused the family to invite the Plaintiff to another meeting to answer for his behaviour but the Plaintiff never showed up at the meeting. Unable to take the actions and inactions of the Plaintiff anymore, the family at a meeting then agreed to remove the Plaintiff as Head of the family and thus wrote to inform the Acting President of Twifo Hemang Traditional Council on 10th May, 2022. Subsequently, on 16th May, 2022 the family at a meeting unanimously agreed that the Defendant be appointed as the Head of the family in the stead of the Plaintiff. 7 The Defendant’s testimony above is also corroborated by the testimony of his witness, Nana Afesa III (D.W.1). He stated in his Witness Statement that the removal of the Plaintiff was as a result of his failure in performing his duties as the family head, including but not limited to calling and/or attending family meetings. The family afforded the Plaintiff opportunity to answer for his behaviour as same was injurious to the family but he refused to attend such meeting. Although, the testimony of the Defendant regarding the Plaintiff’s failure to attend meetings stood uncontroverted during cross-examination, a major deficiency in the evidence of the Defendant and his witnesses is that, their testimonies do not cogently establish that the Plaintiff had notice of the meeting held on the 16th May, 2022, the day the Plaintiff was removed as head of family. Even though the Defendant sought to create the impression that the Plaintiff had been invited to several meetings for him to answer to his behaviour which he refused, the evidence before this Court establishes otherwise. From the Witness Statement of the Defendant, meetings held prior to 16th May, 2022 were held primarily to dissuade the Plaintiff from refusing to attend meetings and not to consider any charges for removal against the Plaintiff. Further, in respect of the meeting conveyed, notice of which was given to the Plaintiff through Kofi Aidoo (P.W.2), the invitation was for the Plaintiff to attend a family meeting. For the sake of emphasis, I shall reproduce paragraph 15 of the Defendant’s Witness Statement as follows: 15. On the 8th day of May 2022, the Plaintiff warned a family member, Kofi Aidoo, who was sent by the Benkumhene at the instance of the family to invite Plaintiff to a family meeting at the family house that no family member including the Benkumhene should ever step a foot in his house and that he will not attend any meeting in the family house again. The Defendant may want to seek solace in paragraph 16 of his Witness Statement wherein he stated that the Plaintiff was invited to another meeting to answer for his behaviour but he never showed up. Granted that indeed, the Plaintiff was invited to 8 answer for his behaviour and yet, failed to avail himself at the meeting referred to in paragraph 16 of the Defendant’s Witness Statement, the Defendant is silent as to whether or not the charges against the Plaintiff for his removal were considered by the principal members of the family present at the said meeting in the absence of the Plaintiff. What is, however, clear is that it was not until 16th May, 2022 that the Plaintiff was finally removed as head of family at a family meeting. The question that lingers on my mind is what prevented the family from notifying the Plaintiff of the substantive meeting of 16th May, 2022 which led to his deposition? What has been made abundantly clear to this Court is that the family, unable to take the actions and inactions of the Plaintiff anymore, at a family meeting agreed to remove him as head of family. Reference is made to paragraph 17 of the Defendant’s Witness Statement. The Plaintiff was not invited nor had any knowledge of this meeting. Clearly, the Plaintiff cannot be held to have disabled himself from being heard prior to his removal as head of family on 16th May, 2022 thus invoking an exception to the audi alteram partem rule. The Learned Jurist, Brobbey JSC, in his book, PRACTICE AND PROCEDURE IN THE TRIAL COURTS AND TRIBUNALS OF GHANA (2ND EDN.) p.280 stated that: “A party who fails to appear in court after due service on him is taken to have deliberately failed to take advantage of the opportunity to be heard. The audi alteram partem rule cannot be said to have been breached in such a situation” The import of the above statement is that, a person can only be said to have waived his right to be heard only when he has been notified or served with notice of proceedings yet spurns it. See also ANKUMAH V CITY INVESTMENT CO. LTD [2007-2008] 2 SCGLR 1064. 9 Therefore, after the meeting alluded to in paragraph 16 of the Defendant was, in a sense, adjourned (as there is no evidence indicating business was conducted for that day) nothing stopped the family from notifying the Plaintiff of their decision to remove him in the subsequent meeting held on the 16th May, 2022. On this account, I hold that the Plaintiff was not duly removed as Abusuapanyin of Aduana-Abiradze family of Twifo Hemang. In respect of the appointment of the Defendant as the successor of the Plaintiff, the law is settled that the procedure for the deposition or removal of a head of family is exactly the same as that for appointment. According to Ollenu’s principles of Land Law in Ghana pg. 157 under Removal of the Head of Family, the distinguished jurist stated that: “The head of family as well as the successor may be removed from office, and another appointed in his stead. The procedure for the deposition or removal is exactly the same as that for appointment: It is carried out by a council of the family convened specifically to deal with affairs of the family generally or with complaints against the head or about administration of the family property.” The above actively demonstrates that, the appointment of the head of family must be made at a family meeting conveyed for that purpose. In the case of BENNARD MENSAH DZADEY, JONATHAN KOFI DZADEY AND APOSTLE ALEXANDER ADDO (DECD) V JONES WILLIAM KWAKU GBEVOADI (CIVIL APPEAL NO.: H1/23/2014) DATED 27TH APRIL, 2016, the Court of Appeal, relying on the case of EDAH V HUSSEY (1989-90) 1 GLR 359, held that the normal practice in the appointment is made at “any recognised family meeting.” The Court of Appeal then proceeded to reproduce the relevant holding in EDAH V HUSSEY supra in relation to appointment of a head of family as follows: “The appointment was made by the family at a meeting where they would look for the person who in their discretion was best suited for the post. But a successor or 10 head of family did not need to be appointed formally; the appointment could be made by popular acclamation or acknowledgment, and in the absence of appointment by acclamation the oldest male member and failing him, the eldest female member. Accordingly, any person whom the family permitted to deal with the family property for and on behalf of the family or to exercise functions of the head of the family was in law deemed to be the head of family until the contrary is proved.” It is noteworthy that, in the appointment of a head of family, the headship must first be vacant. See ABAKAH & OTHERS V AMBRADU supra. From the evidence, it is clear that the Defendant was appointed as the head of the Aduana-Abiradze Benkum family on the same day the Plaintiff was purportedly removed from the said position. However, since the Plaintiff's removal has been held to be contrary to the audi alteram partem rule and is thus a nullity, no valid proceedings, including the appointment of a new family head, can be based on that removal. As the saying goes, 'you cannot build something on nothing and expect it to stand'; it will inevitably collapse. On this basis, the Plaintiff's action succeeds, and judgment is accordingly entered in favor of the Plaintiff in respect to all of their reliefs. The Court makes no order as to costs. (SGD) BERNARD BENTIL, J. [HIGH COURT JUDGE] COUNSEL DANIEL ARTHUR ESQ. FOR THE PLAINTIFF. EMMANUEL KWASI KUMAH ESQ. FOR THE DEFENDANT. 11