Ankrah and Another vrs Baidoo (H1/19/2008) [2008] GHACA 2 (05 June 2008);

Flynote: 

-IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL  -  A C C R A

 

 

CORAM:  -  ABBAN [MRS] J.A. [PRESIDING]

                     YAW APPAU, J.A.

                     OFOE, J.A.

 

H1/19/2008

5TH JUNE, 2008

 

(1)  NANA KOFI ANKRAH        ]     …   PLAINTIFFS/RESPONDENTS

(2)  OPANYIN KOFI ANSAH     ]

 

            V E R S U S

 

(1)  MOSES BAIDOO                  ]     …   DEFENDANT/APPELLANT

           -------------------------------------------------------------

                            J  U  D  G  M  E  N  T

           -------------------------------------------------------------

 

ABBAN [MRS] J.A. :-  This is an appeal from the judgment of the High Court, Sekondi dated the 10th day of June 2007.  The judgment went against the Defendant (hereinafter referred to as the Appellant) and being dissatisfied he has appealed against same to this court.

            The facts of this case are that on the 17th August 2004, the Plaintiffs (hereinafter referred to as the Respondents) issued a writ of summons against the Appellant in which they claimed the following (3) three reliefs:

            i.  Account of monies had and received in respect of House No. 23-24/5

                Collins, Avenue, Takoradi by way of rent since the year 2001.

          ii.   Perpetual injunction restraining the Defendant, his agents, assigns

                and persons claiming through him from dealing with House No.

                23-24/5 Collins Avenue, Takoradi in a manner inconsistent with the

                Corporate interest of the Sekyi Akona Obratu Ebiradze Family.

        iii.   An order restraining the Defendant from usurping the powers and

               functions of the 1st Plaintiff as the Ebusuapanyin of the Sekyi Akona

               Obratu Ebiradze Family

            In the accompanying statement of claim, the Respondents averred inter alia that

“the 1st Respondent is the overall Ebusuapanyin of the Sekyi Ekona                    Obratu Ebiradze Family of Sekondi, Kwesimintsim, Takoradi and Asakae and bring this action on behalf of the said family.”

2.  The 2nd Respondent is a principal member of the above-mentioned family.

3.  The appellant is a  member of the said family and operates a store in House

     No. 23-24/5 Collins Avenue, Takoradi.

4.  House No. 23-24/5 Collins Avenue, Takoradi was the self-acquired property

     of one H.B.D. Arthur (deceased) who was a member of the Sekyi Akona

     Obratu Ebiradze Family.

5.  The said H.B.D. Arthur (deceased) died intestate on the 12th March 1959

     and thus by law the House No. 23/24/5 Collins Avenue, Takoradi became

     the property of the Sekyi Akona Obratu Ebiradze Family.

6.  Subsequently the said house was managed by one Nana Kojo Panyin

     (deceased) as Ebusuapanyin for and on behalf of the said family until

     his death sometime in 1985.

7.  Following the death of Nana Kojo Panyin, Nana Kojo Fynn who

     Succeeded him as Ebusuapanyin similarly managed the house for and on

     behalf of the family until his death on 12th November, 2001.

            8.  However in recent months, the Defendant has without the consent and/or

                 authority of the said family rented out portions of the house and has taken

                 hefty rent advances to the detriment of the family.

Wherefore the Plaintiffs claim as per their writ of summons.

            The Appellant denied paragraphs 1, and 2 of the Statement of Claim.  He rather admitted paragraphs 3, 4 and 5 but added that the property rather goes to the Whindo faction of the said family to which H.B.D. Arthur (deceased0 belonged.  He denied paragraph 6 of the statement of claim and stated that on the death of H.B.D. Arthur, the deceased was succeeded by a woman called Komfo Nketsia, a member of the Whindo branch of the family who then appointed Nana Kojo Panyin (deceased) of the Sekondi-Takoradi faction of the family to act as a care-taker of the House No. 23-24/5 Collins Avenue, Takoradi and to account to one Kweku Mannhyem, a nephew of Komfo Nketsiah.  He also denied that Nana Kojo Fynn ever managed the house for and on behalf

of the family even though Kojo Fynn succeeded Nana Kojo Panyin.

            On the death of Nana Kojo Panyin, the house was managed by one Theresah Baidoo who was resident at Takoradi and who accounted to Kweku Mannhyem because the latter was resident at Whindo.  Due to old age, Madam Theresah Baidoo authorized the Appellant to manage the said house as her lawful attorney.

            At the close of pleadings, the issues set down for hearing were:

            i.  Whether or not the Plaintiffs are entitled to their claims.

           ii.  Whether or not the Plaintiffs have capacity to bring this action.

          iii.  Whether or not a single member as opposed to the corporate family can

                appoint a caretaker.

          iv.  Any other issues arising from the pleadings.

No additional issues were filed, and thus only the above-stated issues were set down for trial.

            We find that the learned trial judge in his judgment took the issues seriatim and made findings on each of them by applying the law in accordance with the principles in Quaye v. Mariamu [1961] GLR 93.

            The Appellant in his statement of defence has admitted that it was one Theresa Baidoo who :authorized him to manage House No. 23-24/5 Collins Avenue” as her lawful attorney.

            Sadly, however, no power of attorney was tendered by the Appellant to substantiate this averment.

            From the evidence on record, the learned trial judge made the following findings of fact and I think that these findings cannot be faulted:-

            1.  All the parties belong to one large family namely Sekyi Akona Obratu

                 Ebiradze Family.

            2.  There are seven divisions within the family i.e. Takoradi, Sekondi, New

                  Takoradi Whindo, Mpatado, Anagye and Asakae.

            3.   That on the death intestate of H.B.D. Arthur, his House No. 23-24/5 Collins

                   Avenue, Takoradi, became family property.

            4.  H.B.D. Arthur and the Defendant belong to the Whindo branch of the

                 family.

            5.  That a member of one division or branch can customarily succeed another

                  member in another division in his personal capacity.

            The only issues in contention which needed to be resolved therefore was as set down in the summons for directions stated supra i.e.

            a.  Whether or not Plaintiffs are entitled to their claims.

            b.  Whether or not the Plaintiffs have the capacity to bring this action.

            c.  Whether or not a single member as opposed to the corporate family can

                 appoint a caretaker.

            d.  Any other issues arising from the pleadings.

            The learned trial judge dealt with these issues serially and came to the following conclusions to which I wholly agree:-

(1)  quoting Professor Kwamena Bentsi-Enchill J.S.C. in his book titled Ghana

       Land Law at p. 154 where it is stated that the “burial and funeral rites following

       the death of a person are the concern of the whole extended family, but it is

       the primary concern of the particular sublineage of the deceased ……………

       ………………………….the head of the appropriate extended family acts as a sort of

      Administrator “ad colligendum bona defunci” who supervises the gathering and

      proper custody and preservation of the goods of the deceased until a successor is

      appointed, duly authorized to administer them.”

            In view of the above-stated Fanti customary law principle, the learned trial judge found and gave judgment to the Plaintiffs to the extent that customary law permits them to “act as administrators” ad colligendum bona defuncti” and to preserve and maintain the dignity of the position of overall head of family and supervise whosoever the immediate family would elect as such successor.

            Save that in agreeing with the learned trial judge as to the role of the overall head of family as stated by Bentsi-Enchill, I would have taken into consideration certain subtle variations in this customary practice with regard to the various Akan groups.  Throughout the evidence on record it is apparent that the accepted practice of the Ahantas is that the overall head of family manages the family property for the benefit of the whole – no one questioned this practice and I therefore take it that it is the norm and not the exception.

            With regard to the Plaintiff’s capacity in bringing this action, Exhibits 6 and 7 which the learned trial judge took into consideration as being evidence of the status of the Plaintiffs/Respondents in the hierarchy of the family, clearly publicized that the 1st Respondent was the overall head of the Sekyi Akona Obratu Ebiradze Family.

            Furthermore the Appellant never exhibited any document to prove the pendency of the suit contesting the overall headship of the family.

S. 11 of the Evidence Decree 1975, (N.R.C.D. 323) states thus:

            (1)  For the purposes of this Decree, the burden of producing evidence means 

                   the obligation of a party to introduce sufficient evidence to avoid a

                   ruling against him on the issue.

            (4)  In other circumstance the burden of proof requires a party to produce

                   sufficient evidence so that on all the evidence a reasonable mind could

                   conclude that the existence of the fact was more probable than its

                   non-existence.”

            In view of the foregoing, and in the absence of any writ of summons or other legal process to show that there was any suit pending anywhere or in any court contesting the headship of family, the learned trial judge was right in not accepting the mere oral evidence of the Appellant that one Potose was claiming headship of family against the 1st Respondent.  Neither had Potose deemed it fit to join this suit.

            We also agree with the learned trial judge that no single individual member of family can appoint a caretaker to manage family property.  In accordance with customary law it is the senior members of the deceased’s family i.e. the elders of the wider family functioning primarily as a body that sets its seal of approval on the choice made by the immediate family.”

            The Appellant failed and was unable to produce the power of attorney by which Theresa Baidoo appointed him caretaker.  P.W. 4’s evidence shows clearly that Appellant never had any power of attorney  from Theresa Baidoo as he claims since no power of attorney was ever prepared.

Any way, this power of attorney would have expired on the death of Theresa Baidoo; as correctly concluded by the learned trial judge.

            On the whole, we are of the opinion that there is sufficient evidence on record to

support the findings of the learned trial judge and he was right in the conclusions he came to.

            This appeal therefore fails and it is hereby dismissed.  We confirm the judgment of the learned trial judge and uphold the orders flowing therefrom.

 

 

 

 

                                                                                                H. ABBAN [MRS]

                                                                                             JUSTICE OF APPEAL

 

 

 

 

I agree.                                                                                   YAW APPAU

                                                                                          JUSTICE OF APPEAL

 

 

 

 

I also agree.                                                                            V.D. OFOE

                                                                                          JUSTICE OF APPEAL

 

 

 

 

COUNSEL:  MR. KWAKU SAM AMOAH FOR THE DEFENDANT/

                      APPELLANT.

 

                      MR. EBOW QUASHIE FOR THE PLAINTIFFS/RESPONDENTS.

 

 

 

 

 

 

~eb~