ASANTE VRS ACHEAMPONG (C11/7/22) [2024] GHACC 71 (25 January 2024)

IN THE CIRCUIT COURT MPRAESO, EASTERN REGION, BEFORE HER HONOUR MRS ADWOA AKYAAMAA OFOSU, CIRCUIT COURT JUDGE ON THURSDAY, THE 25TH OF JANUARY, 2024 __________________________________________________________________ C11/7/22 KWABENA ASANTE - PLAINTIFF V 1. OPANIN KWAME ACHEAMPONG 2. OPANIN KWAME AGYIN - DEFENDANTS 3. MRS BEATRICE OSEI 4. ABREFA BUSIA ……………………………………………………………………………………………………… ………………………. TIME: 9:16 PARTIES: PRESENT LAMBERT ASOBAYIRE ESQ PRESENT HOLDING BRIEF FOR PHIDELIS OSEI DUAH ESQ FOR THE PLAINTIFF JOSEPH KWAKU GYIMAH FOR THE DEFENDANTS ABSENT P a g e 1 | 19 JUDGMENT This is an action involving family members belonging to the Oyoko Clan of Obomeng Kwahu. In this action, the plaintiff says he is a cocoa farmer and lives at Abepotia near Nkawkaw and the defendants are cocoa farmers and traders who live at Nkawkaw. The plaintiff avers that he is the customary successor of his late uncle Opanyin Kwabena Ofori who was a member of the Oyoko clan of Obomeng. That he was appointed as customary successor on 9th April, 2018 following the final funeral rites of his said late uncle at a meeting of all family members including the defendants herein. The plaintiff further says that he has held this position for close to four years without any objection from any quarters. He avers that he took charge of some cocoa farms belonging to his late uncle measuring approximately 5 acres at Odumase and 3 acres at both Abepotia and Pankese. It is the case of the plaintiff that on the 20th day of October, 2021, he had dried some cocoa beans and out of nowhere came the 4th defendant who claimed he had been appointed the customary successor seized the dry cocoa beans from him and later went to sell same. The plaintiff says that upon investigations, he discovered that the action of the 4th defendant was instigated by the 1st to 3rd defendants who claim to have surreptitiously appointed the 4th defendant as customary successor without any recourse to plaintiff. The plaintiff says that the action of the defendants flies in the face of tradition and custom because the dry cocoa beans that was seized was part of the properties entrusted under his care. P a g e 2 | 19 The plaintiff concludes that the appointment of the 4th defendant as customary successor by the other defendants is illegal and therefore null and void and of no effect. He therefore claims the following reliefs against the defendants: a. A declaration that the plaintiff is the customary successor of the late Opanyin Kwabena Ofori b. A declaration that the 4th defendant is not the customary successor of the late Opanyin Kwabena Ofori and therefore his appointment as such is null and void and of no effect c. An order of perpetual injunction on the defendants either by themselves, agents, assigns, workmen etc from interfering with the plaintiff’s work as customary successor or doing any act which is likely to prevent the plaintiff from carrying out his work pending the final determination of the suit d. And any further order (s) as the honourable court may deem fit Personal service of the writ and statement of claim on the defendants failed and so on application by the plaintiff an order for substituted service was made on the 3rd of February, 2022. The defendants were thus duly served by substituted service but they failed to enter appearance. After the time limited for appearance elapsed, the plaintiff applied for judgment in default of Appearance which was granted by this court differently on the 30th day of March, 2022. The court subsequently ordered for the plaintiff to file his witness statements and serve hearing notice and the court notes on the defendants by substituted service. On the return date which was the 13th of May, 2022, all the defendants were present and upon a prayer to the court, the interlocutory judgment entered in favour of the plaintiff was set aside. The defendants subsequently entered appearance on the 24th of May, 2022 and filed a statement of defence and counter claim on the 31st of May, 2022. P a g e 3 | 19 The defendants deny the claim of the plaintiff and aver that the 3rd defendant lodged a complaint against the plaintiff about two years ago to the late Opanin Kwaku Sarfo, then the head of the Oyoko clan of Obomeng to the effect that the plaintiff was not performing his duty as customary successor as custom demands therefore he should be removed and be replaced by another member of the family. Opanin Kwaku Sarfo invited the 2nd defendant and they both met the plaintiff and advised him to desist from the complaints received from the 3rd defendant. Two weeks after the said meeting, Opanin Sarfo invited the 2nd defendant and gave him ₵100.00 for helping him deal with the complaint made by the 3rd defendant. The defendants further say that after the death of Opanin Kwaku Sarfo, the 1st defendant was appointed as the head of the Oyoko clan of Obomeng by the principal members of the family in 2020. That about six months ago, the 3rd and 4th defendants lodged another complaint against the plaintiff to the 1st defendant that the plaintiff had sold two plots of the cocoa farm which belongs to the Oyoko clan without the consent of the defendants. The 1st defendant thus invited the plaintiff and informed him about the complaint he had received from the 3rd and 4th defendants. The 1st defendant made a call and informed the plaintiff on phone to come and explain the complaint levelled against him. The plaintiff told the 1st defendant that he could not come unless in a month’s time. The 1st defendant says that he obliged the plaintiff but the plaintiff failed to come. The 1st defendant obliged the plaintiff another two weeks but he failed to come. He again gave the plaintiff two weeks but the plaintiff failed to turn up. The defendants say upon the plaintiff’s failure to come, the 1st defendant called a family meeting and all the principal members met at Nkawkaw where it was resolved that the plaintiff should be removed as customary successor with immediate effect and replace him with the 4th defendant. Customs were performed by all the principal members including the head of the Oyoko clan of Obomeng and the 4th defendant was introduced P a g e 4 | 19 to all the care takers of all the cocoa farms in the village. The defendants say they recognize the 4th defendant as the customary successor but not the plaintiff. The defendants finally say that the plaintiff has no ultimate authority over the family properties anymore since he has been removed as custom demands and so he is not entitled to the reliefs endorsed on his writ of summons and pray the court for same to be dismissed with punitive costs. The defendants counterclaimed as follows: a) The defendant repeat all averments contained in paragraph 1 to 26 of the statement of defence and counterclaim for punitive costs against the plaintiff b) Plaintiff should render unqualified apology to the 1st defendant as head of family of Oyoko Clan of Obomeng c) Any further order or orders that the court may deem fit The plaintiff filed a reply and defence to the counterclaim and joined issues with the defendants. The plaintiff avers that the matter that went before Opanin Kwaku Sarfo was in respect the unlawful entry by the 3rd defendant into a store the plaintiff had inherited from the late Kwabena Ofori. That the late Kwaku sarfo formed a panel to mediate the matter and the panel included the 1st and 2nd defendants. The 2nd defendant later accompanied plaintiff to apologise to the 3rd defendant for the conduct the 4th defendant who went to the store to drive the 3rd defendant away from the store. The plaintiff further says that he has neither been invited by the 1st defendant nor has he been given notice of any meeting seeking to remove him as the customary successor and that their unilateral decision to remove him as customary successor is in breach of custom and tradition and against his right to be heard. P a g e 5 | 19 At the application for direction stage, the following issues as set out in the plaintiff’s application for directions were set down for trial as the defendants did not file any additional issues: 1. Whether or not the plaintiff was validly removed as customary successor to Opanin Kwabena Ofori. 2. Whether or not the appointment of the 4th defendant as the customary successor is null and void. Following an order of the court the parties file their witness statements. They called a witness each. PW1 was Nana Baffour Osei Akoto and DW1 was Kwadwo Boateng. As in every civil suit the burden of proof and persuasion lies on the party who asserts the affirmative of his case. Thus the plaintiff who is making a claim against the defendant is required under section 11 (1) of the Evidence Act 1975 (NRCD 323) to lead sufficient evidence in proof of his case to compel a ruling in his favour. The standard of proof required to discharge this burden is proof on the “preponderance of the probabilities” by virtue of section 12(1) of the Evidence Act supra. “Preponderance of Probabilities” according to section 12 (2) of the Act means: “...that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence” Under section 11(4) of the Act the burden of producing evidence is discharged when a party produces “...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” Thus, the plaintiff who brought the defendants to court bears the burden to prove his claim on a balance of probabilities. Where, as in the instant case, the defendants P a g e 6 | 19 counterclaimed, they also have the burden to prove the counterclaim on a preponderance of probabilities. “Preponderance of probabilities” is defined under section 12(2) of the Evidence Act, 1975(NRCD 323) as: “that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence." In the case of Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 holding (5), the Supreme Court held that: “... In assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is derserving of favourable verdict.” ISSUE 1 Whether or not the plaintiff was validly removed as customary successor to Opanin Kwabena Ofori It is uncontroverted that that on the 9th of April, 2018, the plaintiff was appointed as the customary successor of his late uncle Opanin Kwabena Ofori. According to the plaintiff, following his appointment and acceptance, he gave a bottle of schnapps and cash of GH₵150.00 as ‘aseda’ to cement his appointment. He further testified that at the meeting he was entrusted with his children and all the family properties including farmlands which were in the hands of Opanin Kwabena Ofori held in trust for the family and that he has held this position for five years without any objection from any quarters. P a g e 7 | 19 The plaintiff testified that on the 20th of October, 2021, he had dried some cocoa beans harvested from the farms and sent same to a cocoa purchasing clerk for sale. The 4th defendant went to the purchasing clerk, seized the cocoa beans and sold same on the basis that he, the plaintiff had been deposed as the customary successor and same was confirmed to him by the 3rd defendant. It is the case of the plaintiff therefore that the appointment of the 4th defendant as the customary successor by the other defendants is illegal and therefore null and void and of no effect. In the case of Ababio v Akwasi IV [1994-95] GBR 774 the court reiterated the nature of the burden on a party required to prove an issue asserted in his pleadings as follows: “The general principle of law is that it is the duty of a plaintiff to prove his case as he must prove what he alleges. In other words it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; If not he loses on that particular issue”. Here, the plaintiff asserts that he was appointed the customary successor of his late uncle Kwabena Ofori on the 9th of April, 2018. This fact was admitted by the defendants and therefore the plaintiff was not required to lead any further evidence to establish same. See: Takoradi Flour Mills v. Samir Faris [2005-2006] SC GLR 882. The defendants however assert that the plaintiff has been removed as a customary successor and replaced with the 4th defendant. This was vehemently denied by the plaintiff. The position of the law as enunciated in the case of ZABRAMA V SEGBEDZI [1991] 2 GLR 221 at 224 per Kpegah J.A. (as he then was) is that; P a g e 8 | 19 “....a person who makes an averment or assertion which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden, unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”. Having established that it is the plaintiff who was appointed the customary successor of his late uncle, the burden shifted unto the defendants to show that the plaintiff has been validly removed as a customary successor. The 1st defendant who is the head of family of the Oyoko clan of Obomeng testified for himself and on behalf of the other defendants. He testified that about two years ago, the 3rd defendant lodged a complaint against the plaintiff to the then head of family Opanin Kwaku Sarfo about the management of the family properties under the plaintiff’s care and same was resolved in the presence of the 2nd defendant and the plaintiff was advised to do the right thing. Subsequently the said head of family died and he (1st defendant) was appointed the head of family. The 3rd and 4th defendants made another complaint to him that the plaintiff had misappropriated the family property under his care by selling two plots of cocoa farm without the consent of the family. According to the 1st defendant upon receipt of the complaint, he called the plaintiff on phone and informed him about the complaint and invited him to come and answer to the complaint but the plaintiff failed to come. The plaintiff was given two more opportunities to come but he failed to honour the invitation and defend himself. Being fed up with the plaintiff’s behaviour, he called a meeting and all the principal members met at the family house where it was resolved that the plaintiff be removed and replaced by the 4th defendant. That upon his removal, customs were performed and the 4th defendant was P a g e 9 | 19 introduced to all the care takers of the cocoa farms plaintiff had been put in charge of as customary successor. To be able to determine the issue, whether or not the plaintiff was validly removed as a customary successor, it is important to examine the requirements of customary procedure for the appointment and removal of a family head or a successor in the light of the evidence adduced by both parties to see whether the defendant’s contention is made out. In Quarcoo v Allotey [1980] GLR 788 at 702 703 Wiredu J (as he then was) stated the requirements for the removal of a head of family or a successor as follows: (a) a meeting of the family must be convened; (b) the purpose of the meeting must be spelt out, (i.e. to consider complaints brought against the head or successor (c) 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; (d) decision must be taken by vote by the majority of the invited principal members present (that was always done in conference by consultation); (e) the proceedings must not violate any fundamental principle of the administration of justice; and (f) it was also desirable that the charges must be set forth in advance before the meeting day if they were in written form. Where the head was first informed of the charges on the day of the meeting an adjournment should be acceded to at his request in order to afford him a reasonable opportunity to answer the charges. P a g e 10 | 19 See also: Lartey v. Mensah (1958) WALR 410 In Re Estate of Kwabena Appianin (Decd); Frimpong v. Anane 1965 GLR Abaka & Others v. Ambradu [1963] 1 GLR 456 Ebusuapanyin Ampomah Kubrah v John Antwi & 7 Ors; suit number E12/73/2017 dated 5th June, 2023 In the instant case, the contention of the plaintiff is that he was not invited to any meeting and that it was after his purported removal that the 3rd defendant informed him about it. He denied vehemently under cross examination that he received any invitation to attend a meeting regarding a complaint by the 3rd defendant. In Abaka & Others v. Ambradu [1963] 1 GLR 456, a case which bothered on the removal of a head of family but which is relevant because the procedure is the same for the removal of a customary successor, the court observed that: “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”. [The emphasis is mine] During cross examination of the 1st defendant, it was suggested to him that, there was no formal invitation to the plaintiff because if there was, it was not in the place of the 1st P a g e 11 | 19 defendant as the head of family to have called the plaintiff on phone for such purposes or even personally gone to the plaintiff’s house as he alleged. The 1st defendant tacitly conceded to this as can be gleaned from the following excerpts of cross examination by counsel for the plaintiff: Q: You know that for the larger family to be properly constituted the invitation to the members ought to be formal in line with custom and not through the use of phone calls is that not so? A: When the complaint was made to me, I went to his house where he lived but he had moved from there so I got his number and called him. Q: But you agree with me that if it were formal, it would not take the head of family to go personally and be looking for a family member. A: I did not do that with a bad intent. If I did that then I did not do well. Q: There is a linguist in your family is that not so? A: Yes Q: Is he the same as Kwame Wiafe? A: No my Lord. Q: What is his name? A: Kofi Adofo. Q: I suggest to you that the name you just mentioned is your personal linguist but for purposes of constituting the other gates, there is a linguist is that not so A: That is so P a g e 12 | 19 The responses of the 1st defendant shows that he knows that to constitute a meeting for the purpose of determining a complaint against the customary successor which might subsequently lead to his removal, a formal invitation has to be made to him. The formal invitation in my view shall be made through the family linguist in the form of a written letter as was done in the Quarcoo case supra or otherwise, indicating clearly the date of the meeting and the charges against the customary successor and not merely by the head of family calling him on phone or going personally to the customary successor’s house to invite him. It is therefore not surprising that DW1 disagreed when it was suggested to him that those were the modes by which the Abusuapanin invited the plaintiff to the said meeting. I must also be quick to add that DW1 appeared not to be a credible witness as it was clear that he was only in court to do the bidding of the defendants. He ended up contradicting himself in many ways during cross examination. Here is an excerpt of what transpired during cross examination of DW1: Q: In paragraph 5 of your witness statement you said “plaintiff was invited to a meeting where I was present to answer a complaint. Plaintiff attended the meeting and he was cautioned to mend his ways”. Is that a statement of fact? A: I did not say that. We invited him three times but he did not come. Q: Are you suggesting to the court that you have not participated in any meeting of any sort upon the complaint made to which the plaintiff duly attended A: Yes, there has not been any such meeting. Q: How was the plaintiff invited to the meeting? A: We asked the Abusuapanin to invite him. P a g e 13 | 19 Q: Are you aware that the Abusuapanin made a phone call to him and personally went to his home in an attempt to call him to the meeting A: I don’t know Q: I am suggesting to you that those were the modes by which the Abusuapanin made the attempt to invite the plaintiff to the meeting A: I disagree The settled law is that a witness whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn is not worthy of credit and his evidence cannot be regarded as being of any importance in the light of his contradictory statement unless he is able to give reasonable explanation. (See: Gyabaah v the Republic [1984-86] 2 GLR 461) Furthermore, in the case of In Elizabeth Asare v Kwabena Ebow [2013] 57 GMJ 152 (holding 1(b), the law was stated that: “Whenever the testimony of a party on a crucial issue was in conflict with the testimony of his own witness on that issue, it is not open to the trial court to gloss over the conflict and make a specific finding on that issue in favour of the party whose case contained the conflicting evidence on the issue”. The court is therefore unable to place any weight on DW1’s evidence based on the inconsistencies in his statements. From the evidence therefore, I make a finding of fact that the plaintiff was not given any formal invitation detailing the charges against him and offering him the opportunity to appear at a meeting to answer the charges. It is also worth noting that before this court, there is no evidence of the alleged sale of cocoa farms by the plaintiff. When the 1st P a g e 14 | 19 defendant being the head of family who presided over the meeting to depose the plaintiff as customary successor was cross examined on the alleged sale of cocoa farms by the plaintiff, he made a poor show of himself. The following transpired: Q: Are you aware that in your witness statement, you stated clearly in paragraph 8 that a complaint was made to the then head of family Opanin Kwaku Sarfo by the same 3rd defendant Beatrice Osei against the customary successor on issues of the management of the property A: Yes I have stated so Q: So if every complaint would lead to the removal of a customary successor per Akan custom, the head of family then would have removed the plaintiff as customary successor A: The complaint was different. In this case, he has sold a property and embezzled the proceeds Q: Kindly name the individuals or people that he sold the two plots to A: I don’t know their names but I went to inspect the sold property Q: You went there with Beatrice the 3rd defendant or with who? A: No, with one of my brothers Q: But you know the individual or people that he sold the land to is that not so A: I don’t know them Clearly, it can be inferred from the responses of the 1st defendant from the above excerpts of cross examination that whatever allegations were made by the 3rd and 4th defendants against the plaintiff were not investigated but that is not even the issue here. The issue is that even if the allegations made by the 3rd and 4th defendants were true, the plaintiff ought to have been afforded the opportunity by way of a formal invitation to appear before a well constituted panel for the purposes of hearing his side and making a P a g e 15 | 19 determination. It however appears from the evidence that the defendants did not deem this procedure of giving the plaintiff a hearing as important as can be gleaned from the following cross examination of the 1st defendant. Q: But at least you agree with me that the rule of Natural Justice will require that the customary successor be told in certain terms in advance the charges levelled against him and that those charges will result in his removal if he fails to appear to defend himself A: I disagree In the Quarcoo case supra, the learned judge held that: “it was incompetent for the courts to arrogate to themselves decisions which customary law and the common law had for centuries reposed in the families themselves. But it was also recognised that such meetings as were initiated to remove a head of family or a successor embarked on quasi- judicial duties. It was therefore the duty of the courts to examine the procedural aspects of such meetings where the validity of the proceedings were put in issue to determine that no fundamental principle of the administration of justice was violated, especially the rules of natural justice”. From the evidence, I find that the defendants herein did not follow the laid down procedure in deposing the plaintiff/customary successor and thus breached an important part of the procedure being the rules of natural justice which is fundamental in any proceedings involving the accusation of a person of any wrong doing. It is a settled principle of Natural Justice that no man shall be condemned unless he has been given prior notice of the allegation against him and a fair opportunity to be heard (See: Halsburys Laws of England, 5th edition). So fundamental is this principle that under the 1992 Constitution of the Republic of Ghana, article 19 which provides for the fair trial of an accused person embodies the principles of natural justice. On this subject of natural P a g e 16 | 19 justice, Kpegah JSC could not have put it better when he held in Awuni v West African Examination Council [2003-2004] 2SCGLR 823 2 at Page 514 thus: “I personally assert that the phrase to act fairly and reasonably inevitably implies a responsibility to uphold the common laws maxim of audi alteram partem, which is a significant part of our jurisprudence and is implicit in our constitution article 23. I am unable to see how a person could be said to have acted fairly and reasonably if he did not provide notice to or an opportunity for a hearing to a third party who was entitled to such notice or an opportunity for a hearing before making a decision that would negatively affect that third party’s rights” See Also: Republic v High Court, Accra Exparte Salloum (Senyo Coker interested party) [2011] 1SCGLR 574 L’Air Liquide Ghana Ltd v. Anin & Others [1991] 1 GLR 460 Counsel for the plaintiff relied on the Awuni case supra and submitted that it is manifestly clear that the defendants did not apply the natural law principles in removing the customary successor. The customary successor was not officially informed of the charges leveled against him and he was not also given adequate notice to appear and defend those charges. He submitted that the defendants acted with manifest bias and circumvented or side stepped Akan custom to remove the customary successor. In view of the evidence adduced and the authorities cited, I cannot agree more with counsel for the plaintiff’s submission that the plaintiff/customary successor herein was not validly removed as he was not informed of the charge against him and not given adequate notice to defend himself. I so hold. P a g e 17 | 19 ISSUE2 Whether or not the appointment of the 4th Defendant as the customary successor is null and void Having established that the laid down customary procedure in the removal of a customary successor was not followed by the defendants in removing the plaintiff as customary successor and thus making his removal invalid, it follows that the 4th defendant was not validly appointed . I thus hold that the appointment of the 4th defendant as customary successor was a nullity and of no effect. The 4th defendant is therefore not the customary successor to the late Kwabena Ofori. CONCLUSION On the entirety of the evidence adduced, I hold that the plaintiff is entitled to his reliefs. The defendants’ counterclaim has no merits and so same is accordingly dismissed. Consequently I enter judgment in favour of the plaintiff as follows: 1. I hereby declare that the plaintiff is the customary successor of the late Opanin Kwabena Ofori. 2. I further declare that the appointment of the 4th defendant as the customary successor of the late Kwabena Ofori is a nullity. 3. The defendants herein, their agents, assigns, workmen etc are hereby restrained from interfering with the plaintiff’s work as a customary successor or doing any P a g e 18 | 19 act which is likely to prevent him from carrying out his work as a customary successor 4. Costs of GH₵8,000.00 is awarded in favour of the plaintiff. H/H ADWOA AKYAAMAA OFOSU (MRS) CIRCUIT COURT JUDGE P a g e 19 | 19