INTRODUCTION
[1] I wish to state from the beginning that different views have been expressed by text writers, decided cases and statutes as to the meaning of a family, its membership, its principal members and the mode of becoming a head of family.
[2] The Black’s Law Dictionary, 9th Edition, defines ‘family’ as:
(i) “A group of persons connected by blood, by affinity, or by law, especially within two or three generations.
(ii) A group consisting of parents and their children.
(iii) A group of persons who live together and have a shared commitment to a domestic relationship.”
DEFINITION BY TEXT WRITERS AND AUTHORITIES
[3] J.B. Danquah wrote in the ‘Ashanti Pioneer’ on 2nd September 1961 as follows
“In the mind of the Akan, the concept of abusua (family) is closely related to mogya or bogya which by its root means animate fire; the ordinary Akan word for blood”.
[4] A.S. Rattray in ‘Ashanti Law and Constitution’ (Oxford University Press, London, 1929) stated on page 63 as follows:
“In Ghana, the family is recognised as a legal entity, a corporate personality, comprising members who are related to one another genealogically, or held together by the common blood”.
[5] Sarbah in his book, ‘Fanti National Constitution’ 2nd edition, on page 4 wrote about the Fanti family system that
“Every aboriginal inhabitant of this country is a member of some clan, the relationship to which is traced through the mother”.
[6] Family may also denote a group of persons who reckon their blood relationship with one another on the basis that they are either lineally (matrilineal) descended from a common ancestress in the female line such as the Akan who are settled in the southern part of Ghana; or a group of persons who are (patrilineal) lineally descended from a common ancestor in the male line such as the Ewe of the Volta Region or the Talensi of the Upper Region of Ghana. See: R. S. Rattray: ‘The Tribes of Ashanti Hinterland’ (Volume II, Clarendon Press, Oxford, 1932; reprinted in 1969)
[7] Sarbah in his book, ‘Fanti Customary Law’ at page 33 stated that
“A Fanti family consists of all persons descended through females from a common ancestress, provided, that neither they nor those through whom they claim to be the descendants of the common ancestress had severed their connection with that root by –
(i) Cutting Ekar, also called Kashire,
(ii) Adoption,
(iii) Partition, or
(iv) Commendation.”
[8] Bentsi-Enchill stated in his book, ‘Ghana Land Law’ (Sweet and Maxwell, London 1964) on page 25 as follows:
“The family is the group of persons lineally descended from a common ancestor exclusively through males (in communities called patrilineal for this reason) or exclusively through females starting from the mother of such ancestress (in communities called matrilineal for this reason), and within which group succession to office and to property is based on this relationship”.
[9] According to Ollennu in his book, ‘Principles of Customary Land Law in Ghana’, on page 140,
“Family consists of the entire lineal descendants of a common ancestor for purposes of ownership of property or for purposes of social life”.
[10] Kludze stated in his book, ‘Modern Law of Succession in Ghana’, Forris Publication, 1988 on page 244 as follows:
“The family may be defined as that unit of persons, both male and female, who in the contemplation of the law, are lineally descended from a common ancestor, generally but not exclusively through males in a patrilineal community, and generally but not exclusively through females in a matrilineal community, and which group is identifiable as a legal entity by the conferment and imposition thereon of certain rights, privileges and obligations including the determination of citizenship or political allegiance to a stool or skin and succession to rights in property and hereditary offices exclusively belonging to or vested in the unit”.
[11] Woodman stated in his book ‘Customary Land Law in the Ghanaian Courts’, Ghana Universities Press, 1996, on page 218 as follows:
“The term family is normally used for groups of individuals whose precise kinship relationships to each other are known, in that they can identify all the persons through whom they trace their relationships. But in some cases, the term is used of wider groups, the members of which are known to be related, but whose precise relationships have been forgotten”. He also stated in the same book that “In Akan law, a family is a matrilineage; that is the group of persons, male and female, descended in the direct female line from a common ancestress”.
[12] Kwame Gyan in his authoritative book ‘Customary Land Management, Vol.2, Revised Edition’ (Legal Point Professional Publishers Ltd.) 2023, at page 348 explains family as follows:
“Whereas the term family could be used to refer to husband, wife and children on one hand, it could refer to a collective body of persons who live in one house under one head or management on the other. While this expression may also refer to a group of blood-relatives or all the relations who descend from a common ancestor or ancestress as the case may be, or who spring from a common root, a family in the context of customary land law, generally refers to groups of persons or individuals whose precise kinship relationship to each other are known; in the sense that they can identify the persons through whom they trace their relationships. In this context members of a family do not necessarily have to be related by blood.”
[13] In the case of Oppong and Others v Attibrukusu III [2011] 1 SCGLR 176 it was held that:
“By ‘family’ is meant members who hail from the same family root. ‘Family’ in this context cannot include members of the same clan like Oyoko or Aduana. To illustrate this further, there are Aduanas in various Regions or places such as Ashanti in Essumeja, Obo in Kwawu, Asante Akim in Agogo. Their common bond is that they are all described as Aduana and use a similar clan symbol but are not related in any other way. An Aduana from Kwawu cannot claim to belong to an Aduana family from Asante Akim in any other way. An Aduana from a different place cannot claim land belonging to the Aduana family in a place totally different from his own Aduana family”.
[14] In the case of Okwan and Others v Amankwa [1981] GLR 417, OkunnorJ said:
“Family which is only a private blood group---".
[15] In Dotwaah v Afriyie [1965] GLR 257 Ollennu JSC discussed the set-up of a matrilineal family (an Akan family) in the following terms:
“Now an Akan family for the purpose of ownership of property called the Abusua, are all persons lineally descended in the direct female line from a common known ancestress: see Amarfio v. Ayorkor (1954) 14 WACA 554). Thus, Rattray says (in his book Ashanti Law and Constitution), p. 35 that ‘The Ashanti word for clan is abusua, and this word is synonymous with mogya (blood). There is a well-known proverb which runs Abusua baako mogya bako, ‘one clan one blood’. Sarbah maintains that same principle that the abusua or ebusua and the clan signify the same group”.
[16] Kwasi Anokye Gyimah in his book ‘A Concise Guide to the study of Ghana Land Law printed by Linchpin Multimedia, 2023 at page 99 stated that
“A family is a group of people who are lineally descended from a common ancestor.”
[17] In Bromley’s Family Law, 9th edition (Butterworths, London, 1998) at page 1, the authors stated that the “word family is one which it is difficult, if not impossible to define”.
[18] Section 281 of the Land Act, 2020 (Act 1036) defines a family as
“a group of persons who trace their ancestry from a common lineage and who, at customary law, are recognized as a landowning group.”
[19] Notwithstanding the varied decisions, opinions and views as to the meaning of family in our legal jurisprudence, my view is that the definition of family in Act 1036 should be preferred. This is because Act 1036 is a statute which overrides decided cases and opinions of text writers. Act 1036, being a statute, is also considered as a primary source of law whereas decisions of courts and opinions of text writers are considered as secondary sources of law.
[20] It is trite law that a decision of a court or an opinion of a text writer against or in conflict with a statute is considered per incuriam and not binding. A per incuriam decision is a decision given in oversight of some relevant statutory provision. See: Adjei v The Republic [1977] 1 GLR 156
Fosuhene v Akore II and Others [1992-1993] 1 GBR 181 SC
Ampaabeng and Others v Edwey IX and Others [1991] 1 GLR 169 CA
Nye v Nye [1967] GLR 76 CA (Full Bench)
[21] A per incuriam decision therefore arises when an established legal position or a provision in a statute is ignored by a court in arriving at its decision.
See: Quarcoopome v Sanyo Electric Trading Company Ltd. & Another [2009] SCGLR 213
[22] Consequently, even a Supreme Court or an opinion of an author which is contrary to a provision of a statute like Act 1036 would not be a binding precedent or opinion.
See: Republic (No.2) v National House of Chiefs, Ex Parte Akrofa Krukoko II (Enimil IV–Interested Party) [2010] SCGLR 134
Young v Bristol Aeroplane Company Limited [1944] 2 ALL ER 293 CA
[23] Under the hierarchy of our laws under Article 11 of the 1992 Constitution, Act 1036 falls under Article 11(1)(c), whereas all the decided cases and opinions of text writers fall under Article 11(1)(e).
[24] In the case of Edusei v Diners Club Suisse S.A [1982-1983] GLR 809, the Court of Appeal held at page 814 as follows “-- where there are competing calls on a court, as to which authority to comply with, obeisance is due to statute rather than the decision of a higher court however exalted” In other words, where a statute conflicts with case law, the provision in the statute prevails. See also, Baah v Attorney-General [2012] 49 GMJ 57 CA
The Republic v Sunny Anwamini (alias) Sunny Eyindah @Apostle Chigeru @ Samuel Addossi and 4 Others, Suit No. H2/25/2024, Dated 19th December 2024, CA
WHO ARE THE MEMBERS OF A FAMILY?
[25] In Tagoe v Idun [1987-88] 1 GLR 583, Wuaku JA (as he then was), when faced with an issue of succession emanating from Ga Mashie, held as follows:
“On the admitted facts that (E.O. Tagoe) belonged to the area called or known as Accra or Ga Mashie, his family at death was that of his mother… In Accra town, the family for the purposes of succession means the maternal family. The children of male members do not form part of the family.…Accra or Ga Mashie custom has attained the status of law and requires no proof that successorship is matrilineal”.
[26] Kludze in his book ‘Ewe Law ofProperty’, stated that the Ewes are patrilineal in nature. He notes on the set-up of the patrilineal family as follows:
“The word dzotinu is a derivative from dzoti, and it is the designation of what is the Ewe ‘family’. The dzotinu or family originates from a remote male ancestor whose name the unit usually bears, though this need not necessarily be so”.
[27] In Kasseke Akoto Duggbartey Sappor and 2 Others v Very Rev. Solomon Dugbatey Sappor and 4 Others [2021] 171 GMJ 33, the Supreme Court held that:
“It bears restatement that in Ghana, membership of a family is usually determined by unilineal descent. Generally speaking, the family is either matrilineal or patrilineal. As the acknowledged authority on customary law Mr. Justice N.A. Ollennu points out in his book ‘The law of Testate and Intestate Succession in Ghana’: Sweet and Maxwell, Accra Waterville Publishing House. 1966, at page 75. The immediate paternal family of a deceased male or female consists of his or her father, the father’s brothers and sisters and all who are paternally from the same father as himself or herself, i.e., his or her paternal brothers (if any), his or her paternal sisters (if any), in the case of a man, his own children and paternal grandchildren, and in either case, surviving children of all his or her paternal brothers, dead or alive, save that so long as their fathers’ lived, such children of brothers would not normally be regarded as principal members of the family”…Therefore the paternal family consists of a unit of all people, male and female, all of whom are descendants in the direct male line from a common male ancestor, however remote that ancestor may be. There is also ample authority to indicate what constitutes the traditional ‘family’ in Ghana. According to N.A. Ollennu in his Principles of Customary Land Law in Ghana, under Customary Law in Ghana, “the family consists of the entire lineal descendants of a common ancestor either for purposes of ownership of property or for purposes of social life. The family may be of three kinds: it may be matrilineal; it may be patrilineal depending upon the tribe and it may be joint patrilineal and matrilineal.”
APPOINTMENT OF HEAD OF FAMILY
[28] Woodman (op. cit.) on pages 243 and 245 stated: “A head of family is the person appointed by a family to administer family property. The head of family is appointed by the principal members”.
[29] In his book, ‘The Property Law of Ghana’, 2nd Edition 2015, N.A. Josiah-Aryeh stated on page 126 that,
“The head of family occupies office through three main means:
(i) by election or appointment;
(ii) by popular acclamation, and
(iii) In the absence of i or ii above, the oldest male member; and failing him, the oldest female member”.
[30] Ollennu (op.cit.) on page 145 stated:
“A person may become head of the family in one of three ways, namely,
(i) by formal election or appointment; or
(ii) by popular acknowledgment or acclamation; and
(iii) In the absence of appointment or acclamation, the eldest male member of the family; failing him, the eldest female member of the family is automatically the head of the family”.
[31] The authorities have thus recognized three ways by which one becomes the head of family. They are:
(i) by formal election or appointment; or
(ii) by popular acknowledgment or acclamation.
(iii) In the absence of these, the eldest male; failing which the eldest female would become the head of family.
WHO CAN APPOINT THE HEAD OF FAMILY?
[32] In Abakah and Others v Ambradu [1963] 1GLR 456 SC, the Court noted as follows:
“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”.
[33] There is a view that it is the principal members of the family who appoint the head. It is however not clear whether they must be unanimous, or whether a majority decision will be binding. There appears to be no conclusive authority on that issue, and the position may depend on the customary practice of each family which in most cases can only be ascertained through oral evidence.
[34] The head of family in most cases is appointed by the principal members of the family at a meeting of the family specifically convened for that purpose. All principal members of the family must be invited to the meeting but the decision of the majority of the principal members present at the meeting is binding on the family. The meeting for the appointment of the head of family can be convened by any of the following persons or categories of persons:
(i) Most senior members of the family;
(ii) Two or more elders or principal members of the family;
(iii) Any respectable member of the community; or
(iv) An elder or chief of the quarter or town upon the request of the members of the family.
(v) A neutral person of standing in the community can be called upon to chair a family meeting for such purpose.
[35] In the case of Banahene v Adinkra and Others [1976] 1 GLR 346 CA, it was held as follows:
“A meeting for the appointment of the head of family could be convened by the most senior member of the family, male or female, by two or more elders or principal members of the family, or even by 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, and in this connection it was not only reasonable but also prudent and desirable in cases of internal dissension in the family for such a meeting convened for the purpose of electing a successor to be chaired by a neutral person of standing in the local community who was acceptable to all sides. His wisdom, tact and experience might have been in great demand at such a meeting, and in the event of later litigation about what transpired at the meeting, his independent evidence should prove invaluable.”
[36] In the caseof Re Katahena and Dzuali [1962] 1 GLR 449 it was held that
"The appointment of head of a family should be made by all the principal elders of the family at a family meeting. When it is intended to make an appointment, a notice convening a family meeting and stating the intention to appoint at such meeting should be given to all those entitled to attend and participate in the appointment. Failure to give such notice renders invalid any appointment made at a meeting from which elders entitled to participate in the appointment are absent unless such absent elders subsequently ratify the appointment thus made.”
Compliance with this procedure is ascertained by oral evidence if an issue arises on it.
[37] The authorities have also held, that the appointment of a person as head of a family is not automatic nor does it devolve on any person as a matter of right. It is made by the elders of the family either formally and expressly or by implication, as where they accept and support acts of headship performed by one not expressly elected as head. In selecting a person as head of family, the elders are concerned primarily with choosing the person most fitted for the post. They may therefore go outside the natural line of descent if they think fit, i.e., in patrilineal areas, a head of family may be selected from the maternal line if no suitable candidate is available in the male line. On the other hand, an appointment can be made from the paternal line in a matrilineal area. And this can only be ascertained by a court through oral evidence and not affidavit evidence. See: Edah v Hussey [1989-90] 1 GLR 359 CA
[38] Under customary law, either a man or a woman can be appointed or selected or acclaimed as head of family provided the customary formalities are followed.
[39] The requirements of the customary procedure for the appointment and removal of a head of family or a successor have been settled by legal authorities as follows:
(i) A meeting of the family must be convened.
(ii) The purpose of the meeting must be spelt out, (i.e. to consider complaints brought against the head or successor.
(iii) All principal members of the family entitled to be invited must be so invited. Such principal members were those recognised by the family as qualified to take part in the appointment of a successor or head.
(iv) The decision must be taken by vote by the majority of the invited principal members present.
(v) The proceedings must not violate any fundamental principle of the administration of justice. See: Quarcoo v Allotey [1980] GLR 788
[40] In Adams Addy & Adu Akwaanor v Solomon Mintah Ackaah [2021] 172 GMJ 363 it was held by the Supreme Court as follows:
“The succession to family headship being by appointment or election, much emphasis ought to be given to the factual circumstances of the appointment or election of a person such as the nature of the appointment or election and the recognition of the appointment or election by the family itself. This being a civil suit, the trial Judge was to examine the evidence offered by each party and determine which of the parties’ claims was more probable. It is to be noted that the appointment of a person as head of a family is neither automatic nor does it devolve on any person as a matter of right. The appointment is made by the elders of the family either formally and expressly or by necessary implication, such as where a family accepts and supports acts of headship performed by a member who is not expressly elected as head of the family. See the cases of Hervi v Tamakloe [1958] 3 WALR 342, Nyamekye v Ansah [1989-90] 2 GLR 152, Mills v Addy (1958) 3 WALR 357, Amah v Kaifio [1959] GLR 23, In Re Estate of Kwabena Appianin (Decd.); Frimpong v Anane [1965] GLR 354, Lartey v Mensah (1958) 3 WALR 410 and Abakah v Ambradu [1963] 1 GLR 456, SC.’’ As held by the apex court, such determination can only be done by oral evidence.
[41] In an appointment of a family head at a family meeting, the members look for the person who in their discretion is best suited for the post. The only rigid rule is that the appointment must be made by a council of the family: See Ollennu, Principles of Customary Land Law in Ghana (1962) (1st ed.) at 146; and also, the cases of Makata v Ahorli (1956) 1 WALR 169, WACA and Adjei v Appiagyei (1958) 3 WALR 401.
[42] In the case of In Re Estate of Kwabena Appianin (Decd.); Frimpong v Anane (supra), the Court decided that in matters such as the appointment and removal of a head of family which are of vital importance to a family, all the principal members of the family are entitled to a hearing, and an opportunity should be given to all of them so that those of them who wish to be heard can exercise their right. This means that notice of the proposed meeting and the gist of the purpose of the meeting should be given to all the principal members.
[43] The law is settled that no one had the inherent right to be appointed successor or head of his family. The appointment is made by the family at a meeting where they would look for the person who, in their discretion was best suited for the post. However, a successor or head of family did not need to be appointed formally; the appointment could be made by popular acclamation or acknowledgment, and in the absence of appointment by acclamation the eldest male member and failing him, the eldest female member was automatically the head. Accordingly, any person whom the family permitted to deal with the family property for and on behalf of the family or to exercise the functions of the head of the family was in law deemed to be the head of family until the contrary was proved. See Edah v Hussey (supra)
[44] I wish to state without being repetitive, that whether a person is a head of family or a principal member of a family can only be gathered from the totality of the oral evidence led in a case, and proof of such capacity is on the preponderance of the probabilities. In my opinion, it is mostly impossible for one to prove his membership of a family, being a principal member of a family and/ or being head of family unless oral evidence is led where the parties have joined issues on these matters.
PROOF OF BEING THE HEAD OF FAMILY
[45] It been held that whether or not a person is a head of family should be gathered from the totality of the oral evidence and not affidavit evidence. The proof of such capacity is on the preponderance of the probabilities. A combination of factors and pieces of evidence, regardless of the source of the evidence, even if it comes from strangers, is capable of discharging the burden of proof on a party establishing his capacity as a member or head of family. See: Nkoom v Sowatey [2013-2015] 2 GLR 887 CA
[46] The resolution of the issue as to whether a person is a member of a family, head of family, or a principal member of a particular family is a question of fact or mixed law and fact based on the customs and traditions of a particular community or family. The applicable custom may differ from one family to another, from one community to another, or even from one tribe to another.
[47] Proof of being a member of a family, principal member, or head of family is established by evidence based on the customs and the traditions of the family. Such custom may differ from one family to another. This position is supported by Article 11 of the 1992 Constitution.
Article 11(1) (2) and (3) provides:
11) The laws of Ghana shall comprise-
(a) this Constitution;
(b) enactments made by or under the authority of the Parliament established by this Constitution;
(c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution.
(d) the existing law; and
(e) the common law.
(2) The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature.
(3) For the purposes of this article, "customary law" means the rules of law, which by custom are applicable to particular communities in Ghana”.
[48] It can be observed that it is not possible to give any precise definition of family even for the restricted purpose of using it in land law. Therefore, the precise membership of a family, whether as the head or as a principal member can only be determined by oral evidence in relation to a particular right in a particular land.
[49] Under customary law, no person had the right to appoint his successor before his death. The person appointed as the head of family has the vested right to administer, control and manage the property of the family unless any member could establish the invalidity of such an appointment. See Edah v Hussey (supra)
WHO CAN SUE ON BEHALF OF A FAMILY?
[50] Order 4, rule 9 (2) of CI 47 provides: “The head of a family in accordance with customary law may sue and be sued on behalf of or as representing the family”.
[51] In the Kasseke Akoto Dugbartey case (supra), the apex court held that
“Capacity to sue on behalf of a family has been well litigated. From cases such as Kwan v. Nyieni [1959] G.L.R. 67, (CA) to, In re Ashalley Botwe Lands; Adjetey Agbosu v. Kotey and Ors [2003-2004] SCGLR 420, the law is replete with authorities on who may sue on behalf of a family. On this occasion however, the issue pertains to a non-member. It is acknowledged in cases such as Affram v Didiye III [1999-2000] 2 GLR 148 that it is possible for a “non-member” of a family to be appointed as head of family. As Benin JA (as he then was) points out at pp157-158 of the report, it is not denied that plaintiff is a maternal grandson … so that being a patrilineal family, he is not entitled as of right to enjoy its wealth, let alone be its head. But it must be pointed out that having a legal right to enjoy a right or occupy a position in a family is entirely different and must be distinguished from the situation where those who have the right have surrendered same to a third party, albeit temporarily. It is not uncommon in this country for communities and towns, etc., to appoint even white men who are total strangers to occupy particular stools for their lifetime only. …[i]t all is that it is for the true owners of a stool, family property, etc., to appoint a competent person to occupy or oversee same. And nobody can begrudge any family from appointing a child of one of its true members to be its head. In my view, there is no hard and fast rule that inhibits any family from appointing the head of family from the paternal or maternal side only as the case may be. Any competent, trustworthy and helpful person related to the family by blood may be appointed by the family”.
[52] In a book entitled ‘Contemporary Trends in the Law of Immovable Property in Ghana’, Black Mask Ltd., Accra, 2019 the learned author Yaw D. Oppong stated at pages 520-521, relying on Ameoda v Pordier (Consolidated) [1962] 1 GLR 200 that
“It is a well-known customary law that, where necessary, the family may authorize a non-member of the family to prosecute a case on behalf of the family”.
[53] Membership of the family also imposes certain obligations and duties on members. Among these are the duty to defend and protect the family's property as well as property belonging to other members of the family.
[54] I am therefore of the opinion that a trial judge should not conclude a case on affidavit evidence where an issue concerning the capacity of a head of family arises in a case, the party claiming to be head of family should not be non-suited. A trial judge should allow such a party to amend his capacity to enable the merits of the case to be determined, once the person is a member of the family of which he claims to be the head. After all, an ordinary member of a family can even sue to protect family property on grounds of necessity. See: Order 4, rule 9(3) of C.I. 47
In re Ashalley Botwe Lands; Adjetey Agbosu v Kotey and Others [2003-2004] SCGLR 420
[55] In the case of Robertson v Nii Akramah II and Others (Consolidated) [1973] 1 GLR 445 CA, it was held as follows: “If a plaintiff sued in the wrong capacity, but some other capacity was disclosed which would have enabled him to maintain the suit, he should not be non-suited but the court should allow all amendments necessary for the purpose of settling the real controversy between the parties. In the instant suit, the evidence indicated that the plaintiff’s family was at the same time a stool family, and although the way in which it sued suggested that it sought the relief on behalf of the stool, both the pleadings and evidence in that case showed that the action was intended for the benefit of the family, and the Asere stool regarded it as such and the whole case was fought on that basis”.
CONCLUSION
[56] It is my view that any time an issue as to what a family is, who the members are, who the head is, who can sue on behalf of a particular family, becomes an issue in litigation, an adjudicator must hasten slowly to come to a conclusion because of the complexity of the issue. The adjudicator must resort to the taking of oral evidence to resolve it since it is mostly a question of mixed law and fact where the parties have joined issue. The concept of family is so important in our legal jurisprudence, just as the river Nile is important to Egyptians.