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AKOSUA KORAN
V.
BAFOUR KOFI DOKYI AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
29TH DAY OF MAY, 1941
2PLR/1941/15 (WACA)
OTHER CITATION(S)
2PLR/1941/15 (WACA)
(1941) VII WACA PP. 78 – 80
LEX (1941) – VII WACA PP. 78 – 80
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
AKOSUA KORAN, FOR AND ON BEHALF OF HERSELF AND ALL OTHER THE EKUONA FAMILY OF KUKURANTUMI – Plaintiff-Respondent
AND
BAFOUR KOFI DOKYI,
EMMANUEL MOSES ASARE
AND ODIKRO KWABENA AGYEI – Defendants – Appellants
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REPRESENTATION
Ofei Awere with Akuffo Addo — for Defendants-Appellants
J. B. Danquah — for Plaintiff-Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Family property sold under writ of Fi.Fa. for private debt — Appeal from judgment of Provincial Commissioner’s Court upholding judgment of the Tribunal of the Paramount Chief of Akyem Abakwa that property sold incorrectly for private debt — Competency to bring suit — Where family property involved, whether only Head of family only entitled to take action — Whether an interested party and member of the family, though not necessarily Head of family can be empowered verbally by family to sue
FAMILY LAW — FAMILY PROPERTY:- Right of members of family regarding family property — Whether family members can satisfy private debt through attachment of family property — Whether family member has competency to challenge sale of family property in representative capacity
CUSTOMARY LAW — FAMILY LAND:- Right of family members over the protection of family land — Competency to bring suit — Extent of
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION — REPRESENTATIVE CAPACITY:- Right of member of a family to challenge sale of family property — Oral authority to sue — Competency of
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
Plaintiff could properly bring action and appeal dismissed.
Case cited:-
Alfa Mahmudu v. Zenuah (2 W.A.C.A. 175)
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
This is an appeal from the judgment of the Provincial Commissioner’s Court, Eastern Province, which upheld the judgment of the Tribunal of the Paramount Chief of Akyem Abuakwa. The claim of the plaintiff-respondent was for-
(1) a declaration that certain lands with the house, etc. thereon were the properties of the Ekuona Family of Kukurantumi and that the said properties were not liable to be sold for the private and individual of Jacob Reynolds Danso;
(2) for recovery of possession of the said lands;
(3) for accounts to be taken of all moneys realised by the defendants from the said lands during the period of their wrongful possession and occupation; and
(4) for payment to the plaintiff of whatever amount should be found due upon such accounts.
The Tribunal, in the course of what the Court below rightly described as a ”well-reasoned judgment”, found certain material facts which may be shortly set out:
“The debt for which the property sold was not a debt incurred by or on behalf of the family;
The people with whom the debt contracted were not even known to the Ekuona Family. So, the debt was Danso’s personal affair, pure and simple.”
Having found these facts the native Tribunal, in its judgment, proceeded as follows:-
“Consequently we hold that, according to the native customary law, the properties in question were not liable to be sold for the purpose for which it was done.”
The Tribunal then went out to consider the suggestion made for the defence that the plaintiff had acquiesced in the sales in question and that the plaintiff had allowed time to lapse. The conclusions of the Tribunal on these points were that they disbelieved and rejected the evidence brought by the defendants as to acquiescence holding that there had been “consistent efforts on the part of the plaintiff to recover the properties.”
The Tribunal further expressed themselves as “satisfied that the fact that the properties sold were not self-acquired properties of … the debtor Danso was so well known at Kukurantumi that the step taken by the first defendant could not but be an act of one in more advantageous circumstances taking advantage of the weak, which our sense of justice and fairness will not tolerate.”
Upon these findings the Tribunal declared ”that the properties claimed are the properties of the Ekuona Family and were not liable to be old for debt due by Danso personally.” Their judgment concludes with the words ”The plaintiff for herself and on behalf of her family do recover the properties for and on behalf of herself and the said Ekuona Family without any further liability on the part of the defendants.”
That judgment was upheld on appeal by the Provincial Commissioner’s Court and the appellants have appealed to this Court from the judgment of the Provincial Commissioner’s Court.
The grounds of appeal before this Court do not attack a single one of the findings of fact by the Tribunal. Nor do they attack the finding in law of the Tribunal that –
”according to the Native Customary Law the properties in question were not liable to be sold for the purpose for which it was done.”
This Court must therefore accept the findings of fact and law of the Tribunal in considering the appeal.
The appellants’ case before this Court, shortly put, is that the plaintiff is not the Head of the Family and that where, as admittedly here, family property has been wrongly sold under a Writ of Fi. Fa. issued in execution of a judgment against an individual member of the family for his own personal debt and the purchasers have entered into possession and occupation of the family property no member of the family except the Head of the Family may take action in Court against the purchasers claiming a declaration that the property and not liable to be sold for the debt in question and for recovery of possession for and on behalf of the family.
It has recognized by the Courts of the Gold Coast that, as a general rule, only the Head of Family can sue as representative of the family for the recovery of the family land. This Court recognized the existence of such a general rule in its judgment in the case of Alfa Mahmudu v. Zenuah (2 W.A.C.A. at page 175).
In the present case, however, Yaw Mante, Linguist to the Adontenhene of Akyem Abuakwa, in reply to the question put to him by the second defendant.
“In case any property belonging to the family is lost, is the plaintiff the proper person to claim it for the family?”
said
“Plaintiff has the right to dispute for it.”
Also Opanin Kwasi Asaku, a former occupant of the Ekoona Stool, whose evidence was taken on commission, deposed that each member of our family has legitimate right to dispute for the properties in dispute.”
The Tribunal after stating that it was satisfied that the plaintiff, an elderly woman of the family had a direct material interest in the properties belonging to that line of the family, held that according to native custom plaintiff could properly bring the action. Although the Tribunal did not base its judgment on it, the Tribunal had before it the plaintiff’s uncontradicted statement that she was verbally empowered by the occupant of the Ekoona Stool to represent the family and bring this action.
Major Goaling, Acting Deputy Commissioner, Eastern Province, in the course of his judgment on appeal, said that he accepted the custom as laid down in the judgment of the Tribunal that the plaintiff had the right to sue and went on to say “It seems to me that no one is better qualified to define Akim Abuakwa native custom than the Omanhene and his Councillors.”
We agree with that observation.
We are satisfied that we are not justified in holding that the Tribunal was wrong, on the evidence before it, in holding as it did “that Akosua Korang can, according to the native custom, properly bring the action now before us.”
Other grounds of appeal in this case related to alleged irregularities of procedure but we can find no substance in any of these grounds.
The appeal is dismissed with costs which we assess at £21 19s 0d.
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