Right to Sue on Behalf of The Family: Settled Principles & Unsettling Surprises

Introduction

The principle was laid down long ago under customary law that in matters affecting family property, it is the head of the family who can sue and be sued.[1] During the colonial days, white judges who applied the customary law, propounded that despite the rule, an ordinary member of the family may be authorized by the family to sue on its behalf.[2]

Then after Independence, His Lordship Ollenu held in the celebrated case of Kwan v. Nyieni,[3] that in exceptional cases, members of the family may sue on behalf of the family. The case became the locus classicus of recognizing the right of family members to sue on behalf of the family.[4] Some judges believed that the rule was elastic,[5] capable of accommodating more exceptions;[6] hence, in Owusu v. Agyei,[7] His Lordship Francois JSC underscored:

“In my view, the categories of the application of the exceptions are yet to be exhausted.”

In 2004, the Supreme Court, when applying the exceptions established in Kwan v. Nyieni supra in the case of Re Ashalley Botwe Lands, Adjetey Agbosu & Ors. v. Kotey & Ors.[8] noted that the exceptions in the Kwan v. Nyieni are not intractable and may be expanded as and when it becomes necessary.

Some few months after the decision in Re Ashalley Botwe Lands, the High Court (Civil Procedure) Rules, 2004 (C.I. 47) was enacted and the principle empowering the head of family to sue and be sued on behalf of a family and its exceptions were codified under Order 4 rule 9. In the view of the Supreme Court, the principles on the power of the head of family to sue and be sued in respect of family properties and the exceptional circumstances for members to sue on behalf of the family are ‘well-settled.’[9]

Nonetheless, upon a critical review of the cases in which the principles have been applied, it may seem that they unravel startling surprises. Ranging from the meaning of head of family, the members who can sue on behalf of the family among others, the controversy that surrounds the principles are evident and it is in the light of that, that the writer takes his readers through an exploration of the principles on the subject fraught with disparate shades that seem to unsettle the ‘well-settled’ law.

Who is Head of Family With Capacity to Sue and Be Sued On Behalf Of The Family?

Decided cases and the statutory provision under Order 4 Rule 9 of C.I. 47 are unanimous that the head of family is the primary person to sue on behalf of the family. This should rarely be of a concern, but the complexities of customary law sometimes confound legal analysts. Customary law seems to have elevated another person above the substantive head of the family by bestowing on him the capacity to deal with family properties including, suing on behalf of the family.

In Kwakye v. Tuba and Others (Dawuda-Tuba – Applicant)[10] Ollenu J (as he then was) held as follows:

“… upon the death of a person intestate, although his self-acquired property becomes the property of the whole of his family, the immediate and extended together, the right to immediate enjoyment of the beneficial interest in it, and to the control of it, vests in the immediate or branch family, and the person appointed successor to the deceased is, in law, the head of that immediate or branch family.  As such head he is the proper person to sue and be sued in respect of that particular family property.”

The principle in the above decision has been applied in a plethora of cases, such as Otema v. Asante,[11] Dotwaah v. Afriyie[12] & Amissah-Abadoo v. Abadoo.[13] From all these authorities, two heads of family are recognized under customary law: the head of the wider family and the customary successor who acts for the immediate or branch family. This was accentuated in the case of Hansen & Anor. v. Ankrah & Anor.[14] as follows:

“It must also be borne in mind that the term “head of family” may be used correctly to describe either the head of the wider or the head of a branch family. Both are heads of family with capacity to sue and be sued in respect of family property”.

It may be recalled that prior to the enactment of the Intestate Succession Law, 1985 (PNDCL 111), the self-acquired property of a person who died intestate passed unto his family and a successor was appointed from his immediate family to take charge of these properties. While the properties of the deceased person were deemed to be family properties, the extended family in actual fact had no immediate enjoyment and control over them. The customary successor, who became ipso facto the head of family of the branch family dealt with the property for the branch or immediate family, until there had been a failure in succession or mismanagement on the part of the customary successor.[15]The head of the wider family, on the other hand, was in charge of family properties that had passed on to the family over generations.

In 1985 when PNDCL 111 significantly altered the law on intestacy in Ghana by giving the lion’s share of the deceased person’s estate to the spouse and children (the nuclear family), it was thought that the role of the customary successor would become defunct and practically obsolete, and in that regard, the provisions of Order 4 Rule 9 of C.I. 47 on the capacity given to the head to sue on behalf of the family would be narrowly construed to apply to only the head of the wider family, but that was never the case.

The Courts continue to recognize both the customary successor in respect of the self-acquired properties that devolve unto the family[16] and the head of the wider family as the heads of family who can sue and be sued on behalf of the family. It can therefore be affirmatively asserted, without any shred of doubt, that the provisions of Order 4 Rule 9 of C.I. 47 in respect of the recognition of the head of family as the person primarily vested with capacity to sue and be sued on behalf of the family could not, in the general view of judges, erode the power of the customary successor to sue in court above the substantive head of family in respect of the self-acquired properties of a deceased person which devolve unto the family.

While some judges do not permit the head of the wider family to sue in respect of the self-acquired property of the deceased held by the customary successor,[17] others receive them with open arms. In exceptional cases, however, the Court may entertain an action by the head of the wider family against the head of the branch family (customary successor) to protect the property from it being dissipated.[18]

 In 1996 in the case of Opanin Manukure Sampong & Ors. v. Opanin Kwaku Ampadu & Ors.,[19]when Her Ladyship Adinyira J. (as she then was) sitting at the Koforidua High Court had issues with the head of family who was suing over a family property supposedly dealt with by the customary successor, the Court of Appeal reversed the decision.

His Lordship Esilfie-Bondzie J.A. held thus:

“In his own right as Head of Family the 1^st plaintiff can sue to recover the deceased property which had become family property, and so hold… The learned trial judge went wrong when he dismissed the plaintiffs claim on the ground as he said, ‘It is the one who has been appointed customary successor who can maintain this action against the defendants and not 1^st plaintiff as head of family.”

Should the Head of Family be Formally Appointed by The Family?

It has been the belief of some judges that a person cannot become the head of family unless he has been formally elected by the family. For instance, in the case of Samuel Adumoah Okwei v. Ebenezer Kpakpo Ocquaye & 2 Ors.,[20] a customary successor was found by Her Ladyship Elizabeth Ankumah J. (Mrs) to be incapable of acting as the head of family because he had not been voted for into office by the family.

The learned judge decided thus:

“As customary successor he can step into the shoes of the deceased in most matters except the position of the head of family, since that position is elective.” (emphasis supplied).

Similarly, the Court of Appeal in the case of Opanin Manukure Sampong & Ors. v. Opanin Kwaku Ampadu & Ors. supra[21] held that

“The office (of customary successor) is an elective one. One does not assume it”.

Meanwhile, the Court had previously held in Edah v. Hussey,[22] that the appointment of the customary successor need not be formal and in Nyamekye v. Ansah supra, it was explicitly pronounced that under customary law, a successor when appointed becomes ipso facto the head of the immediate family, and that the head of family need not be formally appointed.

It is sufficient if the head of family is popularly acclaimed or acknowledged by the family. Where there is no formal appointment or acclamation, the eldest male member of the family becomes the head of family, failing him, the eldest female member is automatically the head of family.[23]

Thus, customary law recognizes any person whom the family permits to deal with the family property on its behalf or to exercise the functions of the head of family as the head of family, until the contrary is proved.[24] In Amah v. Kaifio,[25] it was held, inter alia, that although the plaintiff had not been formally appointed head of his family, since the evidence showed that he had the family’s authority to deal with the family property, he was, by implication, the head of family entitled to litigate the family’s title to the property.[26]

Generally, three modes of appointment of the head of family have been identified by the Court of Appeal[27] and they are:

(a) By formal election or appointment,

(b) By popular acknowledgment or acclamation

(c) In the absence of these, the eldest male failing which the eldest female.

 Can a Non-Member of a Family be Appointed as The Head of Family?

In the real scheme of things, it may seem odd for a third party/stranger to head a family, but relative flexibility in customary law makes that possible. In other words, the head of family may either be a member of the family or an outsider. In Affram & Ors. v. Didiye III; Twum II v. Didiye III (Consolidated),[28] the Court of Appeal[29] contended that if white persons can be appointed as chiefs for particular stools in some communities and towns in Ghana, then non-members of a family may also be appointed as the head of family.

The learned author, Yaw Oppong, in his well-researched book ‘Contemporary Trends in the Law of Immovable Property in Ghana’ at pages 520-521 opined that

“It is a well-known customary law that, where necessary, the family may authorise a non-member of the family to prosecute a case on behalf of the family”.

Relying on the above proposition, Her Ladyship Professor Mensa-Bonsu (Mrs) JSC held, inter alia, in the recent case of Kasseke Akoto Dugbartey Sappor & 2 Ors. (substituted by Atteh Sappor) v. Very Rev. Solomon Dugbatey Sappor (substituted by Ebenezer Tekpetey Akwettey Sappor) & Ors.,[30] when applying the Kwan v. Nyieni principle that there is no hard and fast rule which inhibits the head of family from being appointed outside the customary lineage of succession. In her thinking however, there must be some blood connection between the person so appointed as head of the family concerned. For instance, in Akan communities where succession is mainly matrilineal, a person from the patrilineal family may be appointed as the head of family. It must however be noted that such appointment is temporary. According to His Lordship Benin J.A. who delivered the decision of the Court in Affram & Ors. v. Didiye III; Twum II v. Didiye III (Consolidated) supra:

“In such cases the appointment is limited to the life of the appointee and cannot be enjoyed by his children as of right since it is not by a legal right which put him there in the first place”

Does the Kwan v. Nyieni Principle Apply to Suits Involving Stool Properties?

In Bukuruwa Stool v. Kumawu Stool[31] it may seem that His Lordship Ollenu sought to extend the exceptions in the Kwan v. Nyieni principle to suits involving stools when he decided thus:

“The principle of law as to who may sue and be sued on behalf of the family is set out clearly in Kwan v. Nyieni and Anor and applies mutatis mutandis to a stool …”

Some years later, His Lordship Roger J. re-echoed the legendary pioneer legal luminary, His Lordship Ollenu, in the case of Owusu & Ors. v. Gyamfi & Ors.,[32]  by extending the exceptions enunciated in the Kwan v. Nyieni supra, to suits involving stools. On appeal in Gyamfi & Another v. Owusu & Ors.,[33] the learned Justices reversed the trial High Court and held that the Kwan v. Nyieni exceptions apply to only suits involving families and cannot be extended to stool properties.

While Kwami Tetteh maintains that the rule in Kwan v. Nyieni has been extended to stools,[34] His Lordship Sir Dennis Adjei, JA[35] inspired by the Gyamfi v. Owusu decision supra, claims otherwise.

On his part, His Lordship Asiedu J.A. (as he then was) in Nana Yaw Owusu Adom v. Abusuapanin Samuel Boadi,[36] cited the Gyamfi v. Owusu supra as having clarified the law that the exceptions adumbrated in Kwan v. Nyieni cannot be extended to suits involving stools.

What appeared to have escaped their Lordships was that when Roger J. suffered a reversal in the Gyamfi v. Owusu case supra on appeal, he was eventually restored by the Supreme Court about ten years later in Owusu & Ors. v. Agyei & Ors.[37] At that forum, the Apex Court had little difficulty at all, upholding the virtues in the exceptions canvassed in the Kwan v. Nyieni and optimistically applied them to suits involving stools.

In justifying the reason why the Kwan v. Nyieni rule applies only to families and not stools, His Lordship Dennis Adjei stated[38]:

‘Apart from a chief, where the stool is not vacant, no other person can sue on behalf of the stool even where the stool property is in jeopardy or danger”.

He anchored his argument on the fact that a stool is a corporation sole with capacity to sue and be sued in its own name. It does not seem to me that the mere description of a stool as a corporate body should be a basis to resist the extension of the Kwan v. Nyieni rule to stools. Even in company law, where the company litigates in its own name, there is an avenue opened for the minority to access remedies from the courts, as clearly spelt out in the Rule in Foss v. Harbottle. In the wisdom of the Supreme Court in the case of P.S. Investment Limited v. Central Regional Development Corporation & Ors.[39] the rule in Foss v. Harbottle in Ghana finds direct expression in the Kwan v. Nyieni principle.

On the point made by the learned author that a stool sues in its own name, he ventilated that view in Togbe Samuel Kwasi Komfo v. Isaac Ayense & 3 Ors.[40] that because a stool is a corporate body with capacity to sue and be sued, it is only the chief or the regent, as appropriate, who can sue and be sued on behalf of the stool.

While it is agreed that a stool is a corporate sole and the occupant is the one who can sue and be sued; it is worth clarifying here that under customary law, there are other competent persons who can be appointed to represent the stool in legal proceedings in court.

In Ofori Atta II v. Boateng[41] it was held that:

“By native custom there is a class of persons who are natural representatives of a stool, apart from the occupant of the stool himself. The linguist is foremost among such natural representatives”.

The West African Court of Appeal in Ofuman Stool v. Nchiraa & Anor.,[42] identified the persons who can represent a stool under customary law as follows:

“[t]he class of persons who may be appointed by a stool for the purposes of litigation is strictly limited. It includes the linguist, elders and other office holders of the stool (who are its natural representatives) …”

Kwami Tetteh[43] enumerates such natural representatives of the stool as follows:

“The class of natural representatives thus comprises the linguist, elders, councillors, and other office holders, so recognized under the local custom … Once the representative is proved to be an officeholder, the authority to represent the stool would be presumed and written authorization may be dispensed with.”[44]

His Lordship Dennis Adjei JA further emphasized in Togbe Samuel Kwasi Komfo v. Isaac Ayense & 3 Ors supra that the power conferred on the chief to sue and be sued on behalf of the stool is:

“[A] customary right inherently vested in an occupant of a stool or skin … This right is not a statutory powerconferred on a chief by an Act of Parliament.” (emphasis is mine).

With all deference to His Lordship, the power of the occupant or regent to sue and be sued on behalf of a stool is now statutory and no longer customary. It is regulated by Order 4 Rule 9 (1) of C.I. 47 and provides as follows:

9. (1) The occupant of a stool or skin or, where the stool or skin is vacant, the regent or caretaker of that stool or skin may sue and be sued on behalf of or as representing the stool or skin”.

We may realize that it is the statutory provision supra that appears to have shut the door on the ‘natural representatives’ of the stool who were recognized under customary law as capable of representing the stool in Court.

Further, under the current statutory regime, actions brought on behalf of a stool or against a stool need not be in the name of the stool. It is sufficient if it is filed in the name of the occupant or regent on behalf of the stool and the form may not be substantially different from actions instituted on behalf of the family.

Be that as it may, their Lordships’ position generally that the exceptions contained in the Kwan v. Nyieni case do not extend to suits involving stools is not helplessly indefensible. Upon the enactment of C.I. 47, the exceptions enabling family members to sue, other than the head of family, has been assured under Order 4 Rule 9 (3). Since no exception in the rules exists in respect of actions involving stool properties, it could be argued, on the basis of the expressio unius est exclusio alterius rule, that the law maker intended to invest the right of members to sue only in respect of families and not stools.

In effect, while I share their Lordships’ position that the exceptions in Kwan v. Nyieni do not extend to suits involving stool properties, I rest my argument solely on Order 4 rule 9 of C.I. 47 and not on the authority of Gyamfi v. Owusu supra, urged on us, which appeared to have been thumped and dumped by the Supreme Court about three decades ago.[45] I must say that the proposition on the corporate nature of a stool, relative to the Kwan v. Nyieni rule must be understood within its specific context. The authority cited by the Court of Appeal to prop their position is Quarm v. Yankah II,[46] a 1930 authority, which has significantly lost touch with the realities and even its influence.

It must be pointed out, however, that under the Land Act, 2020 (Act 1036), the subjects of stools, have now been empowered to litigate in court in respect of stool properties by compelling the occupants to render account over the properties.[47]

 Are There Differences in The Principles Laid Down in Kwan V. Nyieni, In Re Ashalley Botwe And Order 4 Rule 9 of C.I. 47?

The legal fraternity seems to have struggled in coming to a common ground in respect of the relationship existing among the principles established in the Kwan v. Nyieni case supra, the Re Ashalley Botwe Land case and Order 4 Rule 9 of C.I 47.

In the view of Her Ladyship Mariama Owusu J.A. (as she then was) in the case of Afua Sarpong & Ors. v. Opanin Frimpong & Anor.,[48] the Re Ashalley Botwe decision was nothing more than a re-affirmation of the Kwan v. Nyieni principle.

His Lordship L.L. Mensah’s position in Opanin William Anu Quaye & 1 Or. V. Mrs. Mercy Gaisie & Anor.[49] is similar to that of Her Ladyship Owusu supra, except that his carries the clearest implication that it is the same rule in Kwan v. Nyieni which reflects in the Re Ashalley Botwe Land cases and C.I. 47.

Her Ladyship Sowah J.A. in Obaapanyin Adjoa Nyarkoa v. Kwabena Darko & 3 Ors.[50] however believes that the principle stated in the Re Ashalley Botwe Land Case was an expansion of the exceptions in Kwan v. Nyieni, while His Lordship Dennis Adjei J.A. in Gyakwaw v. Saah supra, rather subscribed to the expansion of the Kwan v. Nyieni exceptions in C.I. 47, an approach Her Ladyship Mensah-Homiah J.A. associates herself with in Abena Oforiwaa & 2 Ors. v. Op. Kofi Appiah.[51]

Other views on the relations in the exceptions under the three regimes are intriguing. In Gabriel Jonas Dowuona-Hammond & Anor. v. M & G Pharmaceuticals Ltd.,[52] one of the lawyers passionately argued that the Ashalley Botwe Land case did away with the Kwan v. Nyieni principle,  but the Court disagreed with him.

In the case of Michael Odai Lomotey & Anor. v. Kow Richardson & 2 Ors.[53] the trial court perceived that because Order 4 Rule 9 (11) says the head of family ‘may’ sue and be sued, it was not couched in mandatory terms and so allowed the co-defendant who was not the head of family to contest the suit. On appeal, His Lordship Tanko Amadu J.A. (as he then was) examined the capacity of the co-defendant with the standard set in the Kwan v. Nyieni.

In Opanin Kwasi Donkor v. Kofi Lamaya & 4 Ors,[54] His Lordship Anim J.A. by a bold sweep of the pen, rather held sententiously that the provisions on the rule in C.I. 47 amended Order 3 Rule 4 of the LN 140A. It may appear that the Court was in error when it created the impression that C.I. 47 amended the old rules, when in fact, it revoked it.[55]

I must confess that I would not have done justice to this sub-topic if I should fail to comment on the admirable judgment of the Court of Appeal in Sowatey v. Nkoom supra. In that case, the 2^nd Plaintiff, who sued was found not to be the head of family. He did not demonstrate that he was suing because the head of family was reluctant to sue to the detriment of the family. He did not also serve a copy of the writ on the head of family as required by Order 4 Rule 9 (4) of C.I. 47. When his capacity knocked him out, he sought refuge under the Re Ashalley Botwe principle, which in his view had opened the floodgate widely.

His Lordship Ofoe J.A. in his usual element rhetorically put forward the question: ‘In the face of the necessity rule as applied in the Ashalley Botwe case was the trial judge right in invoking Order 4 rule 9 and ignoring the Ashalley Botwe authority?

In answering the question, His Lordship noted:

“Under our current legislation, i.e. Order 4 Rule 9, particularly subrule (3), it would appear that the statement in Ashalley Botwe case that there was no need to establish that there was a head of family who was refusing to act can no more be the legal position. On a close reading of Order 4 rule 9 we come to the conclusion that this rule is a conscious attempt at codification of the situations mentioned in Kwan v. Nyieni. It is worth the emphasis that this rule goes further to demand emphatically that there should be a reluctant head of family who is refusing for whatever reason to act, as a condition for a non-head suing on behalf of the family. This is one of the areas where the current rules, Order 4 rule 9, departs from the Ashalley Botwe authority.”

On the authorization by the members of the family introduced in the Ashalley Botwe case, His Lordship Ofoe J.A. said:

“This rule does not also mention the need for authorization from members of the family as one of the grounds for a non-head suing as mentioned in Kwan v. Nyieni case. Significantly also, it categorically demands service of the writ of summons on the head of family, a step not known to Kwan v. Nyieni. Very significant again is the omission by the rule to provide for situations where there is no head of family either because one is yet to be appointed or there is dispute who the head of family is. It is our view that in any such situation where there is no head of family any member of family may go to court ignoring the conditions stated in the rules of court. We believe that it is to streamline the affairs of the family in dealing with family interest that the new High Court Rules C.I. 47 provided for Order 4 Rule 9.”

The learned Judge further explained that another reason why in Re Ashalley Botwe principle could not save the 2^nd Plaintiff was the fact that it was decided in May 2004 under the old High Court rules, LN140A before the enactment (C.I. 47) came into force in January 2005. The decision has since been applied in a number of cases.[56]

“The case of Nkoom v. Sowatey [2013-2015] 2 GLR 887, at page 916 provides the current position on the Kwan v. Nyieni case,” says Poku-Acheampong J.A. in the case of Edwin Kofi Fianke & Ors. v. Cephas Segborwotso Koku & Anor.[57]

Is Kwan v. Nyieni Still Good law?

There have been divergent opinions on whether the decision in Kwan v. Nyieni is still good law. In the case of Afua Serwaa v. Amma Mansah & Afua Pomaa,[58] the Court of Appeal unambiguously held that Kwan v. Nyieni is still good law.

Her Ladyship Domakyaareh (Mrs) J.A. in Obaapanin Nana Akua Pokua & Ors. v. Nana Sarfo & Ors.,[59] discussed the exceptions where a member of a family can sue in the light of Kwan v. Nyieni and not Order 4 rule 9 of C.I. 47.

While some judges maintain that Kwan v. Nyieni is still good law, others seem to turn a blind eye. In the case of Kasseke Akoto Dugbartey Sappor & 2 Ors. (substituted by Atteh Sappor) v. Very Rev. Solomon Dugbatey Sappor (substituted by Ebenezer Tekpetey Akwettey Sappor) & Ors,[60] the Court of Appeal, per Her Ladyship Ackah Yensu J.A. (as she then was), while not expressly disapproving Kwan v. Nyieni supra, decided that a valid writ issued on behalf of the family must, as of necessity, comply with the statutory provisions of Order 4 Rule 9 of C.I. 47, a requirement not designed by Kwan v. Nyieni. It could be deduced from her decision that if a plaintiff relies on Kwan v. Nyieni without complying with C.I. 47, his action may fail on capacity.

The Supreme Court in Nii Daniel Marley Nai v. Katamanso Stool & The Lands Commission[61] was emphatic that Kwan v. Nyieni proposition of the law has now been given statutory recognition by Order 4 Rule 9 of C.I. 47.

It is contended that upon the codification of the Kwan v. Nyieni principle and its exceptions in the Rules of Court in 2004, it is no longer necessary to apply the rule with the same lenses used in the prior cases.

In a demonstration of his characteristic brilliance, His Lordship Asiedu JSC in the case of Michael Odai Lomotey & Anor. v. Kwow Richardson & 3 Ors.,[62] ruminated his concerns with some apparent depth of feelings in these words:

‘Kwan v. Nyieni was decided on 26^th February, 1959. Since that date, the law on who qualifies to sue or be sued in respect of family property has been codified. Hence, it is the law as codified that governs a suit in respect of family property and not the decision in Kwan v. Nyieni. Some of the conditions in the codified law may reflect the decision in Kwan v. Nieni but that in itself does not mean that the present state of the law is that which was set out in Kwan v. Nyieni. Order 4 rule 9 sub-rules 2 to 7 of the High Court (Civil Procedure) Rules, 2004 C.I.  47 represents the present state of the law on this subject. Unlike the principle set out in Kwan v. Nyieni, where it becomes necessary for a member of family to sue, apparently, to protect family property, such family member is required under rule 9 (4) of Order 4 to serve a copy of the writ on the head of family in order that the head of family may take advantage of the provisions in rule 9 (5) to either apply to the court to object to the writ or be substituted as plaintiff or be joined to the plaintiff’.

The point made in the decision perfectly rhymes with the common law position on ‘embrace and confirmed’, and it seems therefore that when His Lordship doubted the continuous application of the Kwan v. Nyieni principle under the current statutory dispensation of Order 4 Rule 9 of C.I. 47 and stigmatized it as ‘questionable’, he was in respectable company.

The Doctrine of ‘Embrace and Confirmed’

The doctrine literally referred to as ‘embrace and confirmed’ is attributable to Lord Littledale J. when he decided in the case of Re Islington Market Bill[63] that an existing right later confirmed by a legislation becomes a statutory right and takes the place of the old right. In other words, the old right ceases to co-exist with the statutory right. After all, there cannot be two captains in the same ship.

This common law principle was applied in Ghana by the Court of Appeal in the case of Gyamfi & Anor. v. Owusu & Ors. supra as follows:

“A right thus confirmed becomes a statutory right. The lower becomes merged in the higher, that is to say, the statute. The provisions of article 164 (4) of the Constitution, 1969, clearly abrogated the previous customary law on the matter. Custom thus gives way and the statute law on the matter hold sway.”

 If His Lordship Asiedu JSC could boldly disavow the rule enunciated in Kwan v. Nyieni supra under the present statutory regime, then the common law principle just expoused deserves some commendation.

Conclusion

It has been established in this paper, quite profoundly, that the rule on the family members’ right to sue on behalf of the family in Ghana has undergone three major phases – Kwan v. Nyieni, In Re Ashalley Botwe Land Cases and Order 4 Rule 9 of C.I. 47. It is evident that the rule bristles with simplicity in construction but convoluted in application. Its diverse facets raise question marks on the verdict passed on it by the connoisseurs of our profession as ‘well-settled’.

It is mind-boggling that the legal fraternity appears not to have given the statutory provisions under Order 4 Rule 9 of C.I. 47 a free hand to operate but has often rehearsed the refrain in past decisions. Following two or three masters at a time confuses the followers and perhaps that explains why most of the decisions churned out by the Courts since 2004 seem to be characterized by unsettling surprises. There is some wisdom in the Ivorian proverb – Two flavours confuse the palate.

Order 4 Rule 9 of C.I. 47 is intended to streamline the affairs of the family, which in the past had sometimes been murky.[64] As the author of the Book of Hebrews states, ‘If there was nothing wrong with the old covenant, a new one would not have been sought’.[65] In the same vein, I venture to say, that if the exceptions enunciated in Kwan v. Nyieni were impeccable, the law maker would not have sought for the statutory provision to order the affairs of the family in court.

What then is the relevance of having a beautiful legislation at home but finding satisfaction in an ex-lover who is bent on becoming a side-chick? Since the ‘amorous relationship’ between the courts and Kwan v. Nyieni has survived three scores, the emotional attachment cannot be mere fantasy. However, it is appropriate that upon the arrival of the new mistress (Order 4 r. 9 of C.I. 47), the old exit the scene to allow the new to take her rightful place. Luke could not be wrong when he said: “No one puts new wine into old bottles; else the new wine will burst the bottle”[66].

Fare thee well, Kwan v. Nyieni! Fare thee well, In Re Ashalley Botwe. And to our adorable princess, we say, Hail to thee, Order 4 rule 9 of C.I. 47. May your reign last!

[1] See Inkumah v. Kankam (1881) Sar FCL 136, Wood v. Thompson (1909) Earn 15; Keelson v. Mensah (1957) W.A.L.R. 271 & Nmati v. Adetsia [1959] GLR 323

[2] See Koran v. Dokyi [1941] 7 W.A.C.A. 78. Coram: Kingdon, Petuides & Graham Paul CJ.J.

[3] [1959] GLR 59.

[4] See cases such as Fosua & Adu-Poku v. Dufie (Deceased) & Adu-Poku Mensah [2009] SCGLR 310; Nyamekye v. Ansah [1989-90] 2 GLR 152, Ameoda v. Pordier (Consolidated) [1962] 1 GLR 200,

[5] In Mariam Obeng Mintah v. Francis Ampenyin,Suit No. H1/79/08, dated 18^th November, 2020,  the Court of Appeal held that: “customary  law, it is established, is not static. It is elastic and adjusting with socio-economic changes”.

[6] See Otema v. Asante [1992] 2 GLR 105, per Lutterodt J.

[7] [1991] 2 GLR 493.

[8] [2003-2004] 1 SCGLR 420 at p. 423.

[9] See Andrews Narh Bi & 3 Ors. v. Asafoatse Kwetey Akorsorku [2023] DLSC 16083.

[10] [1961] 2 GLR 535 at p. 538. See Augustt v. Aryee [1961] GLR 584.

[11] [1992] 2 GLR 105.

[12] [1965] GLR 257.

[13] [1974] 1 GLR 110.

[14] [1980] GLR 668.

[15] See Dotwaah v. Afriyie [1965] GLR 257.

[16] See Gyakwaw & Ors. v. Saah [2013-2015] 1 GLR 652 and Sarpong v. Frimpong [2009] 5 M.L.R.G. 36 at p. 52

[17] Supra.

[18] See the case of Andrews v. Hayford [1982-83] GLR 214.

[19] Civil App. No. 48/98, 17^th February 1999, C.A.

[20] Suit No: FAL 272/13, dated 22^nd April, 2016, H.C. (unreported).

[21] Civil App. No. 48/98, 17^TH February 1999, C.A.

[22] [1989-90] 1 GLR 359.

[23] See Sarbah, Fanti Customary Laws (1897 edn.) at p. 3. See also Fosu v. Kramo [1965] GLR 629 and Addy v. Mills (1958) 2 W.A.L.R. 357.

[24] See Nyamekye v. Ansah [1989-90] 2 GLR 152.

[25] [1959] GLR 23.

[26] See also Mills v. Addy supra.

[27] See Nkoom v. Sowatey [2013-2015] 2 GLR 887.

[28] [1999-2000] 2 GLR 148, CA.

[29] Coram: Wood, Brobbey & Benin JJA.

[30] Civil App. No. J4/46/2020, dated 13^th January 2020, S.C. (unreported).

[31] [1962] 1 GLR 353.

[32] [1980] GLR 1.

[33] [1981] GLR 612.

[34] See page 142 of his Civil Procedure Book.

[35] Dennis Adjei: ‘Land Law, Practice & Conveyancing in Ghana” (3^rd edn.) at p. 62.

[36] [2021] DLCA 10845.

[37] [1991] 2 GLR 493.

[38] See page 62 of his book supra.

[39] Civil App. No. J4/40/2011, dated 18^th April, 2012, SC (unreported).

[40] Suit No. H1/09/2017, dated 15^TH November 2017, CA (unreported).

[41] [1957] W.A.L.R. 38 at p. 40.

[42] [1957]  2 W.A.L.R. 229.

[43] See Kwami Tetteh: Civil Procedure, A Practical Approach at p. 142.

[44] See also Burukuwaa Stool v. Kumawu Stool supra.

[45] See Owusu v. Agyei supra.

[46] [1930] 1 WACA 80 at p. 83 per Deane CJ.

[47] See section 13 (6) of Act 1036.

[48] [2008] DLCA 6221,

[49] [2019] DLCA 6367.

[50] [2017] DLCA 5280.

[51] Civil App. No. H1/09/2021, dated 10^th June 2020, C.A. (unreported).

[52] Civil App. No. H1/173/2015, dated 21^st January 2010, C.A. (unreported).

[53] Civil App. No. H1/123/2010, dated 3^rd April 2019, C.A. (unreported).

[54] Civil App. No. 14/2003, dated 26^th May, 2006, C.A. (unreported).

[55] See Order 82 Rule 6 of C.I. 47.

[56] See for instance Nana Nimako Amprako & Ors. v The Adumasa Stool of Ofoase; Civil App. NO. H1/01/2021, dated 28^th January 2021, C.A. (unreported) & Ama Serwaa & Anor. v. Nana Afranie Okese IV & Anor., Civil App. No. H1/58/2020, dated 26^th November, 2020, C.A. per Asiedu J.A.

[57] Suit No. H1/08/2019, dated 19^th December 2019, CA, (unreported).

[58] Civil App. No. H1/105/06, dated 2^nd April 2009, C.A. (unreported).

[59] Civil App. No. H1/17/2020, dated 28^th Jnauaary 2021, C.A. (unreported).

[60] H1/59/2014, dated 11^th April 2019, C.A. (Unreported).

[61] [2023] DLSC 16093.

[62] Civil Motion No. J7/21/2022, dated 17^th January 2024, S.CC. (unreported).

[63] (1835) 3 C1 and Fin. 513.

[64] As acknowledged by His Lordship Ofoe JA in Nkoom v. Sowatey supra.

[65] See Hebrews 8 v. 7.

[66] See Luke 5 v. 37.