ADJEI VRS ELIZABETH AND ANOTHER (A1/14/2023) [2024] GHACC 249 (25 July 2024)

IN THE CIRCUIT COURT HELD AT KUMAWU – ASHANTI ON THURSDAY 25TH JULY, 2024 BEFORE HIS HONOUR JONATHAN ODARTEY CIRCUIT COURT JUDGE SUIT NO: A1/14/2023 BETWEEN: KWABENA ADJEI PLAINTIFF KUMAWU - ASHANTI VRS 1. ADJEI ELIZABETH DEFENDANTS 2. KWAME SARKODIE ALL OF KUMAWU-ASHANTI JUDGMENT The plaintiff instituted the present action against the defendants on 18/05/2023 before this court claiming from the defendants jointly and severally Declaration of title to ownership and possession of all that piece of parcel of family cocoa farm lying and being at a place commonly known and called ‘Dwaaho’ on Wonoo stool lands bounded by the properties of (1) Opanin Mahama, (2) Mmranteehene, (3) Opanin Afrimu which the defendants are falsely claiming ownership and possession. The defendants responded through their statement of defence denying all the averments in the statement of claim of the plaintiff and informing the court that the said disputed farm was originally cultivated by their uncle named Ankra Kuma who subsequently gave the farmlands to one Mahama Kadri, Agya Afrimu and also Agya Antwi who cultivated on the cocoa farm on Abubu basis. The defendant further informed the court that before the death of Ankra Kuma, he gifted the cocoa farm to Page 1 of 8 the 1st Defendant and her children and that the plaintiff is not the family head of the family. The matter was subsequently referred to the court connected alternative dispute resolution mechanism which also failed. The court then set down the following issues for trial. 1. Whether or not the Plaintiff is the head of Yaw Tabi family of Kumawu Ashanti which the 1st Plaintiff is a member? 2. Whether or not the late Ankra Kuma gifted the disputed land to the defendants? 3. Whether or not the disputed farm is a family property of personal property of the Defendants? 4. Whether or not the late Ankra Kuma had the right to gift a family property to only the 1st Defendant and was there aseda in return? 5. Whether or not the Plaintiff succeeded the late Ankra Kuma? The court will now take the above five issues one after the other and deal with them accordingly. To start with, I will put the first and the fifth issues side by side and address them together. This is premised on the fact that the two issues set down for trial are related and the answer to fifth issue will undisputedly lead to the answer for the first issue. In other words the first and the fifth issues go hand in hand. The issues are Whether or not the Plaintiff is the head of Yaw Tabi family of Kumawu Ashanti which the 1st Plaintiff is a member? Whether or not the Plaintiff succeeded the late Ankra Kuma? In addressing the above issues in the settlement of this dispute before this court, parties per their own submissions on record inform the court and made it clear that the said late Ankra Kuma was their family head, however the bone of contention was that of his successor. It is Page 2 of 8 important to first of all establish that the plaintiff is the elder brother of the 1st defendant whilst the 2nd defendant is the husband of the 1st defendant. During the trial the plaintiff called three witnesses in addition to the evidence he gave. All these three witnesses were siblings of both the plaintiff and the 1st defendant. From the evidence of record all these three witness included the plaintiff inform the court that the 1st defendant is their younger sister who has been managing the said disputed land which is a family property. This assertion by the witness was not denied by the defendants. The matter then had to be determined whether indeed the plaintiff succeeded the said Ankra Kuma to institute the action for the claim of the disputed land for the entire family’s benefit. The Plaintiff however was unable to convince the court with his evidence on how he succeeded the said late Ankrah Kuma. Under section11(1) of the Evidence Decree now Act, (N. R. C. D.) 323 of 1975, “for the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. 11 (4) states that: “In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence”. The plaintiff in this instant case has not been able to discharge the burden of proof and for that reason the court finds his evidence less weighty. This then meant that the evidence on record for the plaintiff in establishing Whether or not the Plaintiff is the head of Yaw Tabi family of Kumawu Ashanti which the 1st Plaintiff is a member cannot be sustained? Again the other issue of whether or not the Plaintiff succeeded the late Ankra Kuma could not be admitted by this court. It was however established that the plaintiff and the 1st Defendant are all part of the Yaw Tabi family which owns the disputed land. It is once again worthy to note that the three witness called by the plaintiff and the 1st defendant all never disputed that the plaintiff is their elder brother in other words Page 3 of 8 they are siblings. The court then had to avert its mind to some precedents to help resolve the matter since the disputed land has been admitted by parties to be a family land. It must now be noted that there is a principle which has been in existence from time immemorial under customary law that in matters affecting family property, it is the head of the family who can sue and be sued. In the celebrated case of Kwan vrs Nyieni His Lordship Ollenu held that in exceptional cases, members of the family may sue on behalf of the family. This celebrated case subsequently became the locus classicus of recognizing the right of family members to sue on behalf of the family. Somewhere In 2004, the Supreme Court, when applying the exceptions established in Kwan v. Nyieni supra emphasized this again in the case of in Re Ashalley Botwe Lands, Adjetey Agbosu & Ors. v. Kotey & Ors. This case was to the effect that the exceptions in the Kwan v. Nyieni are not inflexible. High Court (Civil Procedure) Rules, 2004 (C.I. 47) also fortified the head of family to sue and be sued on behalf of a family and its exceptions have been codified under Order 4 rule 9. In the case of Kwakye v. Tuba and Others (Dawuda-Tuba – Applicant) Ollenu J (as he then was) held as follows: “… upon the death of a person intestate, although his self-acquired property becomes the property of the whole of his family, the immediate and extended together, the right to immediate enjoyment of the beneficial interest in it, and to the control of it, vests in the immediate or branch family, and the person appointed successor to the deceased is, in law, the head of that immediate or branch family. As such head he is the proper person to sue and be sued in respect of that particular family property.” There are several cases which is in agreement with this principle. Cases including Otema v. Asante, Dotwaah v. Afriyie & Amissah-Abadoo v. Abadoo. All these cases are to the effect that two heads of family are recognized under customary law: the Page 4 of 8 head of the wider family and the customary successor who acts for the immediate or branch family. This was stressed in the case of Hansen & Anor. v. Ankrah & Anor. Which stated that and I quote, “It must also be borne in mind that the term “head of family” may be used correctly to describe either the head of the wider or the head of a branch family. Both are heads of family with capacity to sue and be sued in respect of family property”. To conclude the plaintiff can bring an action for and on behalf of the family to ensure that family property is protected for the benefit of all the family members. The court will now deal with the third and the fourth issues together. These issues as stated above for determination were as follows. Whether or not the late Ankra Kuma gifted the disputed land to the defendants? And whether or not the late Ankra Kuma had the right to gift a family property to only the 1st Defendant and was there aseda in return? One of the octopus tentacles of law is the Land law which can be perceived under the English common law and the customary law. While land tenure is the system if landholding in a particular society, family land is land vested on family as a corporate entity where an individual member of such family cannot claim separate ownership. To swiftly nip the fulcrum of this in the bud, this court shall briefly be addressing the legal effect of the gifting of family land by the head of the family as a private property. There are Plethora of cases which have clear cut given the definition of family but in order to end all definitions of what a Family actually is, recourse needs be made to the Nigerian case pf SOGBESAN v. ADEBIYI (1941) 16 NLR 26 where the court defines family as a group of persons bound by blood who are entitled to inherit jointly, the property of a deceased founder of a family, either in accordance with customary rules of succession or under a will which creates a family. In this connection, family land is land taxed on the family as a joint property which though, may be under the supervision of the family head (patriarch or matriarch), no individual member of the Page 5 of 8 family has a separate claim of ownership to any part or whole of it." It is established in the instant case that the disputed farm is a family land which has been cultivated by the great grandfathers of the plaintiff and the 1st defendant. This therefore means that the said disputed land is a family property. Let’s now look at the law with regards to customary law gift. The essentials of a customary law gift have been extensively discussed in the case of Ibrahim Gyamfi & Anor v Cecelia Boahene and Anor Suit No OCC/156/15, decided on 1st December, 2015, per Angelina Mensah-Homiah J (as she then was). The court in its judgment relied on the case of Barko v Mustapha (1964) GLR 78, where the Supreme Court, laid down the ingredients of a customary gift. The court noted that for a customary gift to be given effect in law, the following ingredients must be present: (i) publicity; (ii) acceptance; and (iii) the donee must be placed in possession. More recently in the case of Nathaniel Baddoo and 3 Others v. Mrs. Mercy Ampofo and 2 others SUIT NO.OCC/95/14 · FEB. 24, 2016, the court relying on the case of KYEI and ANOR V. AFRIYIE (1992) 1 GLR 257 per Lartey J observed: "The essentials of a valid gift in customary law were publicity, acceptance and placing the donee in possession. The way to give publicity to a gift of land was to make the gift in the presence of witnesses. The acceptance should be evidenced by the presentation of "drink" or some small amount of money to the donor, part of which was served to the witnesses. “from the evidence on record defendants have not been able to prove that there was aseda or publicity when the said gift was execyuted even though there’s enough evidence that the defendants are in possession of the said gift as required by the third ingredients in the above position of the law. I will quickly point out that the said land is a family land which is arguably true as it has been agreed by parties. It is succinctly concluded by this court that the defendants cannot claim ownership of the disputed land as a gift. Per the above deduction of the facts and the law the court will effortlessly determine the last issues which is Whether or not the disputed farm is a family property of Page 6 of 8 personal property of the Defendants? From the surfeit demonstration of the law in this judgment it is conclusive that the disputed farm is not the personal property of the defendants. Conversely the defendants have been in possession of the disputed land and have put effort and strength in cultivating managing and maintaining the disputed farm which has not been challenged by the plaintiff. It will therefore not be fair for the disputed farm to taking from the defendants. It must also be noted that during the trial of this matter an application was brought before this court for the preservation of the proceeds of the disputed farm. This court ordered that the said proceeds be deposited with the court until the final determination of this suit. The said proceeds was deposited as it was ordered by this court. In conclusion, per the evidence on record, the disputed farm which is lying and being at a place commonly known Dwaaho is the property of Yaw Taby family. The 1st Defendant being part of the Yaw Tabi family and a brother to the plaintiff, it is ordered by this court that the 1st defendant can farm on the land as usufruct holder because it’s a family land. However proceeds from the disputed farmland should be divided into three with one third given to the family, whilst the remaining two thirds is retained by the defendants. Her portion of the proceeds of the other farms lands should also be given to the 1st Defendant by the family when it is shared. The proceeds from the disputed farm which was deposited in the court should be divided into four, one fourth for the family and the three fourth for the defendants. SGD H/H JONATHAN ODARTEY ESQ. CIRCUIT COURT JUDGE KUMAWU - ASHANTI Page 7 of 8 Page 8 of 8