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

⦁ Right to residence in family houses, but without power to determine which room you would
Other rights include

⦁ Funeral and other expenses to be payable by other members upon your death;
occupy;

⦁ Support for school or to start a business or trade;

⦁ Contribute towards the payment of family debts;

⦁ Contribute towards the payment of debts of individual 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

⦁ That the person seeking to set aside the transaction was the proper person to represent the
to avoid a transaction thus:

⦁ That the members of the family were wholly ignorant of the transaction;
family in a suit relating to family land;

⦁ That the family had not by any conduct subsequent to the date mentioned acquiesced in the

⦁ That the family had acted timeously and with due diligence, and
transaction;

⦁ 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

⦁ Where the family property is in danger of being lost to the family and it is shown that the
the head of family are allowed to sue in respect of family property.

head (either out of personal interest, or otherwise) will not make any move to save or

⦁ Where owing to a division in the family, the head and some of the principal members will
preserve it, or

⦁ Where the head and the principal members are deliberately disposing of family property in
not take any step, or

their personal interest, to the detriment of the family as a whole.

⦁ Where it is proved that such member has the authority of the other members of the family to
be entertained by the court:

⦁ Upon proof of necessity, provided that court is satisfied that the action is instituted to
sue, or

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,

⦁ Section 1 makes the head of family accountable to the family for family property.
(PNDCL 114). PNDCL 114 has three sections:

⦁ 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. Captain.
Call me battery saving mode cause I automatically get turned on when she hit 15 😊