The Family and Management of Family Property

The Family
 A family is a group of people lineally descended from a
common ancestor.
 In Ghana, we have two main types of families - Matrilineal
and Patrilineal families.
 For discussions on matrilineal families see
 Dotwaah v. Afriyie at page 265 per Ollennu JSC – Akan
family.
 Tagoe v. Idun – Ga Mashie family.
 For discussions on patrilineal families, see Kludze’s Ewe
Law of Property.
 The family is also a corporate entity that can own property
and that can sue and be sued.
Acquisition
 Refer to the acquisition of the paramount and the
usufructuary interests. Other forms of acquisition are
as follows:
 Self-acquired property of member dying intestate
becomes family property.
 In re Atta (Decd)
 Hausa v. Hausa
 Per Kludze, this principle is inapplicable in Ewe law.
This is because it is individuals who succeed to
property and not families.
Acquisition
 A house which a person builds with his private
resources on family land becomes family property.
 Improvements on family land become family property.
The family member only has a life interest in such
properties.
 Owoo v. Owoo (1945) 11 WACA 81
 Ansah v. Sackey (1958) 3 WALR 325
 Amissah-Abadoo v. Abadoo
 Biney v. Biney
 Contra – Santeng v. Darkwa
Acquisition
 Per Kludze, in Ewe law, a house built on
family land as well as a farm cultivated on
family land are the self-acquired properties
of the builder and the farmer respectively
but the land itself remains family land.
Improvements on family land do not
become family property.
Acquisition
 Property acquired with family assistance
becomes family property.
 Where two or more members of a family put
their resources together to acquire property,
that property becomes family property.
 Mensah v. SCOA
 Tsetsewah v. Acquah (1941) 7 WACA 216
Acquisition
 The assistance of the family must however
be substantial.
 Larbi v. Cato [1959] GLR 35
 Per Kludze, assistance given to an individual
by some members of his family or the family
itself, however substantial, cannot in Ewe
law brand the property acquired with such
assistance as family property.
Acquisition
 Where a member of a family redeems mortgaged
or pledged property, or uses his resources to
defend family property, the property still remains
family property and does not become the self-
acquired property of the member.
 Manukure v. Aniapam
 Ansah v. Sackey (1958) 3 WALR 325
 Amissah-Abaidoo v. Abaidoo
 Kusi & Kusi v. Bonsu [2010] SCGLR 60
Acquisition
 According to Justice Kludze, the same
position exists under Ewe customary law.
 Ahoklui v. Ahoklui
 What happens when family property which
has been sold to a third party is bought by a
member of the family? Does it become
family property?
Management
 HOF has a vested right under
customary law to administer, control
and manage family properties
 Banahene v. Adinkra
 The HOF is the chief administrator of
family property - Kludze
Alienation
 The Head of family acting with the consent and
concurrence of principal members of family can
validly alienate title to family property.
 Hausa v. Hausa
 Kwan v. Nyieni
 Dotwaah v. Afriyie
 Dzefi v. Ablorkor VI[1999-2000] 1 GLR 10
 Fianko v. Aggrey
Alienation
 Any single individual not being the head of the family
is incompetent to alienate title to family property. Any
such purported alienation is void.
 Alienation by other members of family without the
consent of HOF is void ab initio.
 Dotwaah v. Afriyie
 Where the elders alone without the consent of the
HOF purport to alienate family property, that
alienation is void ab initio.
 Agbloe v. Sappor (1947) 12 WACA 187
Alienation
 According to Kludze, on the strength of the
authorities, where the HOF acts with the
consent and concurrence of only a minority
of the principal members of the family, the
alienation is void.
 Basil v. Honger
 Owiredu v. Moshie
 Quarm v. Yankah
 Kwan v. Nyieni
Alienation
 Ollennu however asserts that such
alienations are voidable and they can be
avoided if the family acts timeously.
 Dotwaah v. Afriyie
 Alienation by HOF alone but purporting to
have been made by the HOF and the
principal members is voidable and can be
set aside by the family timeously.
Litigation
 The HOF is the proper person to sue and be sued
in respect of family lands.
 Hausa v. Hausa
 Kwan v. Nyieni
 Dotwaah v. Afriyie
 Tagoe v. Idun
 Dzefi v. Ablorkor VI [1999-2000] 1 GLR 10
 In re Ashalley Botwe Lands; Agbosu v. Kotey
 In re Neequaye (Decd)
Litigation
 Some exceptions were however laid down in Kwan
v. Nyieni as follows:
 Where family property is in danger of being lost to the
family, and it is shown that the head, either out of
personal interest or otherwise, will not make a move to
save or preserve it; or
 Where, owing to a division in the family, the head and
some of the principal members will not take any steps; or
 Where the head and the principal members are
deliberately disposing of the family property in their
personal interest, to the detriment of the family as a
whole; or
 Upon proof of necessity.
Litigation
 These exceptions were affirmed by the Supreme Court in In
re Ashaley Botwe Lands. The court noted as follows:
 “The general rule recognized in Kwan v. Nyieni, namely, that
the head of family was the proper person to sue and be sued
in respect of family property was not inflexible. There are
situations or special circumstances or exceptions in which
ordinary members of the family could in their own right sue
to protect the family property, without having to prove that
there was a head of family who was refusing to take action
to preserve family property. The special or exceptional
circumstances include situations where: (a) a member of
the family had been authorized by members of the
family to sue; or (b) upon proof of necessity to sue.”
Litigation
 Wood JSC noted as follows:
 “Given that society and, indeed, customary law is
dynamic and not static, the Court of Appeal in
Kwan v. Nyieni had left the matter open for
possible expansion of those special circumstances
when the need arose. Therefore, the question
whether any particular case falls within the stated
exceptions rather than the rule, or even an
exception not identified in Kwan v. Nyieni, is
dependent on the particular facts of the given case.”
Accountability
 Head of family used not to be accountable
in court by the writ of a member or a
principal elder.
 HOF was however accountable to the family
at a family meeting for his stewardship.
 The removal from office was a more
efficacious deterrent than merely issuing a
writ.
 Hansen v. Ankrah
Accountability
 Head of family is not a trustee. Further his
powers as regards family property are similar
to those of a chief as enunciated in Abude v.
Onano.
 See also Hansen v. Ankrah
 Kludze asserts that the head of family has
always been accountable and this so-called
customary law position is however judicial
customary law.
Accountability
 The Head of Family (Accountability) Law, 1985 (PNDCL
114) has however changed the position and made HOF
accountable. Section 1 states as follows:
 “Section 1—Head of Family to be Accountable.
 (1) Notwithstanding any law to the contrary any Head of
family or any person who is in possession or control of, or has
in his custody, any family property shall be accountable for
such property to the family to which the property belongs.
 (2) Every Head of family or any person who is in possession or
control of, or has in his custody, any family property shall
cause to be taken and filed an inventory of all such family
property.”
 Section 2 gives an aggrieved member the power to go to
court to demand an accounting from the HOF.
Appointment and Removal
 The HOF is appointed by the principal
members of the family at a meeting of the
family specifically convened for that
purpose.
 Abakah v. Ambradu
 All principal members of the family must be
invited to the meeting but the decision of
the majority of the principal members is
binding on the family.
Appointment and Removal
 The meeting can be convened by:
 Most senior members of the family;
 Two or more elders or principal members of the
family;
 Any respectable member of the community; or
 An elder or chief of the quarter or town upon the
request of the members of the family.
 Banahene v. Adinkra
 Afram v. Didiye III; Twum v. Didiye
Appointment and Removal
A neutral person of standing in the
community can be called upon to
chair a family meeting.
Banahene v. Adinkra
Appointment and Removal
 The HOF can also be deposed by the principal
members of the family at a family meeting. All
principal members must be invited to such a
meeting but the decision of the majority is
binding on the family.
 The HOF must also be given notice of the
charges against him and be given an
opportunity to defend himself as failure to do
so may invalidate any decisions taken to depose
him.
Appointment and Removal
 Abakah v. Ambradu @ 462
 “According to custom the head of a family is appointed by
the principal members of the family. They are also
cloaked with authority to depose him, but the deposition
will be invalid unless a complaint is lodged against him
and he is summoned to answer it. The complaint must
show what offences the head of family has committed
against the family in order to afford him an opportunity
to meet them. If the complaint is proved he may be
removed by a majority of the principal members of
the family present at the meeting.
Appointment and Removal
 Abakah v. Ambradu @ 462 (Continued)
But where the head of family who is summoned by the
principal members of the family to attend a family
meeting to answer the complaint against him fails to
attend the hearing, and does not give good reason for
his absence, he may be removed. It is of great
importance also that all the principal members
of the family should be invited to the meeting
because any decision taken is by the majority of
the principal members attending the meeting.”
Appointment and Removal
 The burden of alleging and proving specific
grounds of invalidity of either the appointment or
removal of a HOF at a family meeting rested with
the family member seeking to avoid the decision
reached at the meeting.
 Welbeck v. Captan
 Allotey v. Quarcoo
 The Courts will only interfere with the family’s
decision only when there had been a complete or
substantial miscarriage of justice.
Appointment and Removal
 Allotey v. Quarcoo
 “(3) Both the common law and customary law had for
centuries reposed jurisdiction to pronounce on the merits of
the decision of a family to depose its head at a fully
representative meeting and after due notice of the meeting
and charges given beforehand, in the families themselves.
The courts had only a limited supervisory jurisdiction and
would interfere with the family's decision only when there
had been a complete or substantial denial of justice; it was
not the infringement of any fundamental principle or rule of
natural justice or the breach of every procedural step that
would suffice to invoke the court's jurisdiction.”
Appointment and Removal
 Kludze asserts that under Ewe customary law, the
HOF is not appointed. It is an automatic right that
falls on the oldest male member of the senior
generation.
 Contra –
 Hervie v. Tamakloe
 Anfoega
 Principal members however have the right to by-
pass the oldest male for good reason.
Appointment and Removal
 He asserts that because they are not appointed,
they are also not removable. They hold the
position for life. It is however not the case in all
Ewe chiefdoms such as:
 Anfoega
 Taviefe – removable in theory.
 Peki and Kpedze
 Families take decisions by consensus. No voting is
required.
 What is your take?