AKOSUA DUFIE VRS.pdf - Judicial Training Institute

satisfied that the action is instituted in order to preserve the
family character of the property.”
The grounds of appeal quoted above sum up much of the dispute in this appeal.
There is no paucity or dearth of authority on this point. Nyamekye v Ansah
[1989-90] 2GLR 152 CA considered who qualifies to be head of family and made
it clear at page 162 of the report, that when a successor is appointed by the
family he/she automatically becomes the head of family; he can also be
appointed by popular acclamation or by virtue of the fact that he/she is the
oldest member of the family. Again, any person who the family permits to deal
with family property for and on behalf of the family, or to exercise the functions
of a head of family, is deemed to be the head of family until the contrary is
proved: see Mills v Addy (1958) 3 WALR 357, and also Sarbah’s Fanti Customary
Laws (1897 ed).
In Nyame v Ansah (supra), the Court of Appeal held further that:
“As a general rule, the head of family as representative of the family is the
proper person to institute suits for the recovery of family land: see Kwan v Nyieni
[1959] GLR 67 at 72, CA. And where the authority of a person to sue in
representative capacity is challenged, the onus is on him to [prove] that he has
been duly authorized. He cannot succeed on the merits without first satisfying
the court on that important preliminary issue.
The plaintiffs/appellants sued as the “customary successor of the late
Kwaku Poku for themselves and on behalf of the family of the late
Kwaku Poku” for reliefs itemized above. They sought declarations that the
properties were for the family, pleaded facts and led evidence in support. In
those circumstances the exception in the proviso to the principle in Kwan v
Nyieni (supra), does apply as respondents acted to claim and protect the family
character of the properties in dispute.
At the application for directions the parties settled, inter alia, the following issues
for trial:
“3 Whether or not the purchase price of the Beer Bar and provisions
Shop was given to the late Kwaku Poku to put up house on Plot 11,
Block 24, New Amakom, for the family.
5 Whether or not the house in dispute is family property.
8 Whether H/No. Plot 11, Block 24, New Amakom extension is family
property.
9 Whether or not the Abompe and Siiso cocoa farms are family
properties.
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