ADJEI v. ASANTEWAH AND ANOTHER [1961]DLHC524

Date	1961-10-31
Suit No.
Citation No.	[1961]DLHC524

OLLENNU J

K. A. SEKYI FOR THE PLAINTIFF-APPELLANT.

D. Y. OSEI FOR THE DEFENDANTS-RESPONDENTS.

[1961]DLHC524
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 629

DATE: 31ST OCTOBER, 1961.

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COUNSEL:&nbsp;&nbsp;

K.
A. SEKYI FOR THE PLAINTIFF-APPELLANT.

D.
Y. OSEI FOR THE DEFENDANTS-RESPONDENTS.

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OLLENNU, J.

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&nbsp;

This is an appeal from a judgment of the West Akim Abuakwa Local
Court, delivered on the 21st March, 1961. The appellant, plaintiff in the local
court, was the son of one Kwasi Abokyi, deceased. The said Kwasi Abokyi was
succeeded by one Kwaku Sikayena, now deceased. The first respondent is the
successor to the said Sikayena. The farm in dispute was cultivated by the
appellant’s said father Kwasi Abokyi.

The case put up by the appellant in the local court is that his
late father made a gift to him of a farm of which the farm in dispute is a
portion. Upon Kwaku Sikayena succeeding Abokyi, he litigated with him and
eventually deprived him, the appellant of the farm. Some time after the
litigation had terminated, the appellant became reconciled to the said Sikayena,
who as successor to the appellant’s father had by customary law come to be
regarded as his father. He pacified Sikayena with a sheep. Thereupon Sikayena
made a gift of the said farm to him, reserving to himself the right to retain
possession of this portion for a year, to apply the proceeds thereof to pay the
expenses he incurred on the litigation with the appellant. The gift was made in
the presence of the first respondent, and other principal members of the family
of the appellant’s late father, and the appellant presented Sikayena with a
bottle of Schnapps in accordance with custom signifying his acceptance of the
gift. Sikayena had a motor accident and died a fortnight after he had made the
gift. The first respondent succeeded him. On the expiration of the year the
appellant applied to the first respondent to release the farm to him, but she
refused to do so. Wherefore the appellant sued her.

The second respondent was made a co-defendant to the suit upon his
own application alleging that the family had transferred the successorship from
the first respondent to him. It appears that the second respondent’s allegation
that the family had transferred the successorship to him was a device he used
to get himself joined as a party to the suit to enable him to conduct the case
on behalf of the first respondent, for in his evidence he deposed that the
first respondent was the successor to Sikayena. Neither he nor any of the
witnesses called for the defence gave evidence that he has at any time been
substituted for the first respondent by the family as successor to Sikayena.

There is evidence led on behalf of the defence which corroborates
the evidence of the transaction between the appellant and Sikayena as given by
the appellant and his witnesses, which should warrant the local court accepting
it. Indeed the local court magistrate did not disbelieve it. But he dismissed
the appellant’s claim because he held that that gift “was unconstitutional
since the land in dispute was not late Opanin Kwaku Sikayena’s self-acquired
property”. Earlier in his said judgment the local court magistrate had observed
that the consent of one Opanin Kwame Asante, the head of the family of Sikayena
was not obtained, and that a gift made by a successor of part of the property
to which he has succeeded is ultra vires.

A gift or other form of alienation of family property is valid if
made by the head of the family with the consent of the principal members of the
family. When the alienation by customary law is made by the head of the family
in the presence of some of the principal members of the family and no objection
is raised by them the presumption is that the alienation is made with the
necessary customary consent, and therefore at its worst, it is only voidable,
not void. It can only be declared void at the instance of the family if it is
proved that in fact it was not made with the necessary consent and concurrence,
and even then, only if the family act timeously.

Now where the property is not ancestral property, but one which
became family property only by reason of the original owner dying intestate,
the person appointed successor to the original owner is the head of the
immediate family of the said deceased, the family being entitled to the
beneficial interest in the estate. As between the successor and the head of the
main family of which the immediate family of the deceased is a branch, it is
the successor, and not the head of the main family, who is entitled to deal
with the property to which he has succeeded: see Kwakye v. Tuba &amp; Ors.1(1)
and the cases therein cited. And the persons whose consent and concurrence are
requisite by customary law to make alienation by the successor valid are the
principal members of the immediate family not the head and principal members of
the wider family generally. It is only in very exceptional cases that the head
of the wider family can intervene.