The meaning of the word family necessarily depends on the field of law in which the word is used; the purpose intended to be accomplished by its use, and the facts and circumstances of each case.
First, family could be used to refer to husband, wife and children. Second, family could also refer to a collective body of persons who live in one house under one head or management. Third, family could 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. Fifth, family may be used interchangeably with household.
In the context of customary land law, a family 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. However, that in certain cases the word family is used to describe wider groups which are known to be related but whose precise relationships have been forgotten.
FAMILY LAND
The definition of stool land in Article 295(1) of the 1992 Constitution does not include family land. There are arguments on both sides of the divide about whether stool land should cover lands held by families. Refer to implications of Article 267(5) on prohibiting the grant of freeholds in stool land.
The logical implication of Articles 267(5) and 295(1) could be that you could make grants of freehold in family lands. Reason being that family lands are subject to a different regime from stool lands.
INCIDENTS OF MEMBERSHIP OF THE FAMILY
This refers to the bundle of rights and responsibilities that accompany an individual’s membership of a family. In other words what rights does a member have in relation to land held by the family?
Generally speaking where the family holds the allodial title, the members’ rights are similar to the interest of a subject in stool lands. Refer back to the case of Oblee v. Armah, supra cited. Member acquires the customary freehold upon his occupation and use. The member may exercise the rights of possession against the head of family. HEYMAN v ATTIPOE. Such rights are exercisable even against other members of the family. NUNEKPEKU v AMETEPE. Such rights could also be exercised against non-members of the family or strangers. BOTWE v ODURO
Other rights include
⦁ Right to residence in family houses, but without power to determine which room you would occupy;
⦁ Funeral and other expenses to be payable by other members upon your death;
⦁ Support for school or to start a business or trade;
Obligations of members include:
⦁ Contribute towards the payment of family debts;
⦁ Contribute towards the payment of debts of individual members;
⦁ Payment of funeral and burial expenses of deceased members; and
⦁ Assistance to needy members.
ACQUISITION OF FAMILY PROPERTY
Two issues arise here. First, which acquisitions inure to the benefit of the family member performing the acts of acquisition and which inure to the benefit of their family. Second, where property inures to the benefit of the family how do you determine the scope of the entitled class in the family?
The general rule is that property acquired with family resources, e.g. income from existing family property (or where family property is sold and proceeds used to acquire other property) such property is family property. Where property is acquired by the joint efforts of members of the family, there arises a rebuttable presumption in favour of family property. Generally speaking upon the death of one of the acquiring members, the surviving contributors only retain a life interest and the property becomes a full-fledged family property upon the death of the other contributor(s). TSETSEWA v ACQUAH
Where a member acquires property with a small contribution from the family the property does not assume the character of family property.
CUDJOE v KWATCHEY
The deceased out of his own efforts built the disputed house on his family land, which he occupied with the defendant, his surviving wife and their children. His mother supervised the construction of the house and his sister rendered him other services such as cooking. They were married under ordinance. He made a will where he devised the said property to the defendant and the children. On his death, the plaintiff, his customary successor brought an action on behalf of the family for a declaration of title to the house on contention that the property was that of the family. HELD: the court held that the nature of the contributions offered by the deceased mother and sister did not constitute substantial contribution as to even taint the house with family character. However, the deceased only had a life interest with no inalienable interest which he could dispose off by will because the land was on family property.
The fact that a family member benefited from financial support of the family towards their education does not make property subsequently acquired by them in the future family property.
LARBI v CATO
The deceased built the disputed house on a self-acquired land. After his death, the plaintiff, a brother of the deceased claimed that the property was family property because it was built with the financial assistance of various members of the family. They also contended that the deceased was educated with the assistance of family funds and as such, all his earnings were all family property. HELD: the court held that the customary law of Ghana does not impose members of the family who have received a professional education with the support of the family an obligation of repayment. The family members who make contributions to the building are entitled to share in the enjoyment of the building but this must be on a basis that the builder by accepting support from the family recognizes that he is building the house for the family.
Where one member of the family acquires land with his own resources and other members provides the funds to build on the land the house becomes family property. BOAFO v STAUDT
Where a member builds a house on family land the land remains family land and the house becomes family property with the member only retaining a life interest. Indeed upon his death the widows and children of the man have only a right of occupation subject, of course to good behaviour. AMISSAH-ABADOO v ABADOO
Where a member makes an extension to existing family farm or improves same, the essential character of the farm remains family property. NKONNUA v ANAAFI
Where a member extends or improves existing family building such improvement does not change the character of the building which remains family property. KUMAH v ASANTE
Where family property is lost through sale or other attachment and a member repurchase or redeem the property, it becomes family property unless members of the family were specifically informed at the time of the repurchase or redemption, that the property would not resume its former position as family property. NWONAMA v ASIEDU
Where social obligations require some individuals to assist another person, when such assistance is given any property acquired is the individual property of the person so assisted. Indeed under the customary law where a child assisted his father or guardian to acquire property, he did not become a joint owner. YOGUO v AGYEKUM
ALIENATION OF FAMILY PROPERTY
As a general rule or at least best practice, a family meeting should be convened to secure the necessary consents required for a valid alienation of family land. AWORTCHOE v ESHUN
The main issue is who must participate in and consent to an alienation of family land in order to validate the transaction? Woodman identifies different categories of transactions. For example Head joined by (a) all the principal members; (b) a majority of the principal members; and (c) a minority of the principal members. He also mentions situations in which the Head does not participate in the transaction or where the Head alone makes a disposition of family land.
The general rule was stated by Ollennu J, as he then was in the case of Allotey v. Abrahams. There have been situations where the alienation was by the head of family acting alone.
The rule was stated in the case of Beyaidee v. Mensah. The plaintiff brought an action to recover a piece of land in Odumase from the defendant. The plaintiff claimed to have acquired the land from the defendant’s family head, & had remained in possession until some months before the action was brought. The defendant alleged that the family head had made the purported grant without the concurrence of family members.
HOLDING: the court held that, although concurrence of family members ought to be given for there to be a valid sale of family land, the sale is not itself void but voidable. The family can therefore assert their rights timeously, restoring the purchaser to the position he was in before the sale. This is obviously not the case, since here the purchaser has possessed an undisputed ownership for a series of years, has cultivated and improved the land, and has established a home upon it.
Manko v. Bonso.
The plaintiff sued defendant for ejectment and ownership of a piece of land with a two-storey building, as they contended that the land was for their family. A member sold it to the defendant without the concurrence of the family. HELD: the court held that where a sale of family land is effected without the concurrence of the members of the family, the sale is not void but voidable and is capable of being opened up at the instance of the family, provided they act timeously and also, the purchaser can be restored to the position in which he stood before the sale.
The Court of Appeal clarified the rule stated in Beyaidee v. Mensah in the case of Adjei v. Appiagyei. The Court of Appeal outlined the conditions to be satisfied by the family seeking to avoid a transaction thus:
⦁ That the person seeking to set aside the transaction was the proper person to represent the family in a suit relating to family land;
⦁ That the members of the family were wholly ignorant of the transaction;
⦁ That the family had not by any conduct subsequent to the date mentioned acquiesced in the transaction;
⦁ That the family had acted timeously and with due diligence, and
⦁ The defendant could on a declaration by the court avoiding the transaction be put in the same situation that he stood before the transaction.
The burden of establishing the above facts is on the person seeking to set aside the sale.
ATTA v AIDOO
The plaintiffs, who representing the family of one Kofi Attim sued for the cancellation of the deed by which lands belonging to the family had been mortgaged. The plaintiffs contended that the said mortgage was done without the consent and concurrence of the family. HELD: A sale by the head of family without the assent and concurrence of the rest of the family is not void. It is voidable at the instance of the family, but the court will not avoid the sale if it not satisfied that the family has acted timeously and with due diligence and that the party affected by the avoidance of the sale can be restored to the position in which he stood before the sale took place
Where the head does not participate in the transaction such alienation is void ab initio. See the case of: Agbloe v. Sappor
LITIGATION IN RESPECT OF FAMILY PROPERTY
The general rule is that it is the head of family who may sue or be sued in respect of family land.
KWAN V. NYIENI
FACTS: The family members purported to remove Osei Kojo as family head on grounds that he was squandering family property. It was held at an arbitration that his removal was not in order, but the family went ahead to appoint the plaintiff as a head. Osei Kojo subsequently mortgaged cocoa farms which were family property to the defendant. The plaintiff purporting to act as family head brought an action to the effect that the farms were family property & the mortgage was without the knowledge & consent of the family. The courts held that the award of the arbitrators was binding on the family & Osei Kojo was still family head. They also held that the farms were family property mortgaged without the consent of the family. They however gave judgment for the defendant for the recovery of the sum for which the farms were mortgaged to him, payable by the family’s caretaker. The defendant, in default of payment, sold the farms & the plaintiff sued for a declaration that the farms were still family property & an order to set aside the sale. His action was dismissed mainly on grounds that he was not the family head nor authorised by the family to sue. The plaintiff appealed.
HOLDING: as a general rule the family head is the proper person to sue for recovery of family land- to this general rule there are exceptions in certain special circumstances, such as:
(i) 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.
(ii) Where, owing to a division in the family, the head and some of the principal members will not take any steps.
(iii) 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.
In any such special circumstances the Courts will entertain an action by any member of the family, either upon proof that he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property.
Where the head of family sues on behalf of the family, the face of the Writ must show that he is suing in representative capacity.
Where the capacity of the person suing in representative capacity on behalf of the family is challenged, the burden of proof lies on the person suing to show that indeed he has the power to sue as representing the family. NYAMEKYE v ANSAH
Where the person suing leads evidence to show that he is the head of family, the burden shift to the person denying such status to show that someone else was indeed the head of family. AKROFI v OTENGE. On the other hand where a person sued as a representative of a family denies being a lawful representative of the family to be sued, the burden of proof lies on the plaintiff to show that indeed the person sued is capable of being sued on behalf of the family.
KWAN v NYIENI provides three exceptions to the general rule in which persons other than the head of family are allowed to sue in respect of family property.
⦁ Where the 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 any 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 step, or
⦁ Where the head and the principal members are deliberately disposing of family property in their personal interest, to the detriment of the family as a whole.
Where such special circumstances are established an action by any member of the family will be entertained by the court:
⦁ Where it is proved that such member has the authority of the other members of the family to sue, or
⦁ Upon proof of necessity, provided that court is satisfied that the action is instituted to preserve the family character of the property.
Where head of family sues in representative capacity, he is held personally liable for the payment of costs awarded against him. DAATSIN v AMISSAH
HEAD OF FAMILY
⦁ Appointment/Election
The head of family is appointed by the principal members of the family. WELBECK v CAPTAN. The appointment of the head of family must be made by all the principal members of the family. LARTEY v MENSAH. The meeting at which the appointment is done mush be convened specifically and solely for the purpose of appointing the head and notice to that effect should be sent to all the principal members.
LARTEY v MENSAH
Where some principal members absent themselves after having been duly notified, those present can duly appoint the head of family and such appointment shall be binding on the absentees. Where some of the principal members are not duly notified, upon proof of such failure of notification, they may move to set aside the decision taken at the meeting. LARTEY v MENSAH
Where there is a division in the family, one faction cannot appoint a head for the whole family. Ankrah v. Allotey. Strangers (non-members) could be invited to the meeting as observers and possibly participate in the deliberations, however, they cannot take part in the decision to appoint the head of family.
Banahene v. Adinkrah
The plaintiff was elected successor to the deceased & family head at a meeting presided over by the Gyaasehene. The defendants who were appointed caretakers of the deceased’s farm disputed the validity of the plaintiff’s appointment as successor & refused to hand over the farms to him. The plaintiff sued for a declaration of title to & recovery of the property. An issue arising for determination was whether the Gyaasehene invited by the family to preside over the meeting at which the plaintiff was elected as successor was a meddlesome interloper. HELD: strangers (persons not members of the family) could be invited to a family meeting were the head is to be appointed, but that, such a stranger will not vote in the meeting; he may only facilitate the meeting.
The appointment of a person as the head of family is neither automatic nor does it devolve on any person as a matter of right or entitlement.
Hervi v. Tamakloe
The plaintiff sued as head of family for an injunction to restrain the defendant from entering certain creeks belonging to the Avu family. The defendant denied that the plaintiff was the head of the family and that he belonged to the male line since they were patrilineal. The defendant claimed to be part of the family and as such, can enter the creeks as of right. HELD: 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. In selecting an appointee the elders are concerned primarily with choosing the person most fitted for the post: they therefore may go outside the natural line of descent if they think fit, i.e., in patrilineal areas a head may be selected from the maternal line if no suitable candidate is available in the male line; likewise an appointment can be made from the paternal line in a matrilineal area
ACCOUNTABILITY OF HEAD OF FAMILY
The general rule was stated in Fynn v Gardiner that, Members of the family cannot call upon the head of family for and account their remedy is to depose him and appoint another person in his stead. This position was reaffirmed in ABUDE v ONANO and
HANSEN v ANKRAH.
The appellants were heads of two branches of the family, & the respondents were the overall head family head & the head of one other branch. The appellants brought an action against the respondents for account of money received as compensation for the compulsory acquisition of their family land. The respondents raised a preliminary objection on grounds that they were not accountable to the appellants at customary law. HELD: The customary rule that a head of family, who symbolised the hopes and aspirations of the family which constituted the core of Ghanaian society, was not accountable in court to the writ of a member of the family, whether a principal or otherwise, while he still held the status of a head was reasonable and justifiable because the head should have the capacity to handle the routine orders and disorders of the family. The head of family was however accountable to the family at a family meeting for his stewardship. Consequently a member of family who considered that an incumbent head of family was incompetent, irresponsible or frivolous in the handling of family matters or was dissipating family funds could ventilate his grievance against the head at a family meeting
This decision led to the enactment of the Head of Family (Accountability) Law, 1985, (PNDCL 114). PNDCL 114 has three sections:
⦁ Section 1 makes the head of family accountable to the family for family property.
⦁ Section 2 requires the head to prepare an inventory of family property in his custody.
⦁ Section 3 empowers members with beneficial interest in property to bring an action after certain preliminary procedural requirements have been satisfied.
REMOVAL OF THE HEAD OF FAMILY
Decision to remove the head of family must be taken at a family meeting. All the principal members must be invited to attend the meeting. Quagraine v. Edu. Abaka v. Ambradu
The head could be removed by a decision of a majority of the principal members. Abaka v. Ambradu
The head of family must be served with the notice to attend the meeting (but purpose of the meeting should not be stated in the notice), and where the head fails to attend without good reason, the meeting may proceed and he could be removed absentia. Abaka v. Ambradu
The courts will not interfere with the merits of the family’s decision to remove a head unless it is proved that there was substantial departure from the tenets of natural justice. Allotey v. Quarcoo
The burden of proving specific grounds of invalidity of either the appointment or removal of the head of family lies with the particular member seeking to avoid the decision of the family. Walbeck v. Captan.