HANSEN vs. ANKRAH [1985]DLSC745

Date	1985-03-21
Suit No.
Citation No.	[1985]DLSC745

APALOO C.J.

SOWAH JSC

TAYLOR J.S.C.

FRANCOIS JA

MENSA BOISON J.A.

TSATSU TSIKATA FOR THE APPELLANTS.

S. A. X. TSEGAH FOR THE RESPONDENTS.

[1985]DLSC745
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													<main id="main" class="content" style="min-height: 60rem" >HANSEN <o:p></o:p>vs. <o:p></o:p>ANKRAH <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1987-88] 1 GLR 639<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE
21 MARCH 1985<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

TSATSU TSIKATA FOR THE APPELLANTS. <o:p></o:p>

S. A. X. TSEGAH FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APALOO C.J., SOWAH, TAYLOR JJ.S.C.,
FRANCOIS AND MENSA BOISON JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>The
parties to this appeal are all members of the Mantse Ankrah family of Accra.
That family seems to be possessed of substantial landed property. Sometime ago,
the government acquired a portion of that land compulsorily and compensation
fell to be paid therefor. The immediate cause of this litigation is that the
sum of ¢160,547.40 was paid to the first respondent as part of the compensation
money and this sum was received by the latter in his capacity as head of the
family.<o:p></o:p><o:p>&nbsp;</o:p>By a
standing family arrangement, this money should have been paid into a designated
bank account to the credit of the family. Apparently, to keep a check on the
disbursement of this money, the family mandated four persons to draw cheques on
that account. They are the parties to the suit which culminated in this second
appeal. It is now clear from the evidence that the first respondent did not pay
that sum into the family account but paid it into his own personal account. It
is obvious that the check which the family devised for the disbursement of that
sum would be negated by this course and it seems the main object of this action
was to prevent it. The appellants before us also complained that the head of
family in abuse of his fiduciary duty towards the family, made some
unauthorised expenditures out of this account. So they sought to hold him to
the fiduciary duty of accounting for these moneys.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The
appellants also felt that the sum of ¢160,000 odd was in danger of being
misspent by the first respondent. Accordingly, they applied to the judge,
Amua-Sekyi J., before the hearing of the substantive suit to make an order
preserving it from misuse. They invited the judge to order that that sum be
paid into the designated family account. After an in-depth examination of the
customary law on the subject, the learned judge thought this was a deserving
plea and he made the order sought.<o:p></o:p><o:p>&nbsp;</o:p>The
respondents appealed against the order to the Court of Appeal. Their main
complaint to that court was that the appellants were not, as a matter of
customary law, entitled to the remedy of accounts. There were, on the
pleadings, disputed issues of fact but as there was no hearing of the
substantive suit on the merits, the learned judge did not resolve the factual
conflict. Like the trial court, the appellate court also examined the customary
law in some depth. In the end, they reached the conclusion that the
respondent’s objection to the legal propriety of the relief sought, namely
accounts, was valid and that the action failed in limine. It would be necessary
to examine the reasons given for the contradictory opinions expressed by the
High Court and the Court of Appeal on the legal competence of the claim for
accounts.<o:p></o:p><o:p>&nbsp;</o:p>But
before examining the customary law position, it is necessary to look at the
internal structure of the Mantse Ankrah family. It is common ground that the
family has three branches, each with its own head and were described in the
proceedings as the Ankrah, Ayi and Okanta branches. Sitting on top of all these
three, is the overall head of the composite family. He is the first respondent.
The second respondent is the head of the Okanta branch.<o:p></o:p><o:p>&nbsp;</o:p>The
course which this suit took and the way in which the parties ranged for battle,
suggests that there is a serious dissension in the family. The appellants
before us, are the heads of the Ankrah and the Ayi branches. The mandate given
to the bank was that the first respondent and any one of the three heads of the
branch families could validly operate the family account. So that account can
be legitimately operated and moneys required for family purposes withdrawn
under the signatures of the two respondents alone. But the reason proffered b</main>