IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA

CORAM: WOOD (MRS.) CJ, PRESIDING

ANSAH, J.S.C
YEBOAH, J.S.C
BONNIE, J.S.C
AKAMBA, J.S.C

CIVIL APPEAL
NO. J4/42/2013
26TH FEBRUARY, 2014

ADOMAKO ANANE PLAINTIFF

APPELLANT
RESPONDENT
VRS

1. NANA OWUSU AGYEMANG

(SUBSTITUTED BY NANA BANAHENE)

2. NANA YAW GUAKRO

(SUBSTITUTED BY NANA ASAMOAH OKYERE)

3. JERRY DEE AMOAH

4. AKWASI DONKOR
(SUBSTITUTED BY NANA KWAKU DWOMOH) DEFENDANTS
RESPONDENTS
5. ADDO ALIAJA APPELLANTS

6. AMMA KWAAH
(SUBSTITUTED BY NANA KWAKU DWOMOH)

7. KWABENA ANTOH
(SUBSTITUTED BY AKUA ODE)

8. AMMA NHYIRAA
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 JUDGMENT
WOOD (MRS.), CJ;

The oft quoted legal maxim “Justice delayed is justice denied”, coined by the
British politician, William Gladstone (1809-1898), is no mere cliché. The right to
fair trial in a timely manner is neither a courtesy nor a favour, but a fundamental
right. Protracted delays in the administration of justice, impact negatively not
only on those who access the courts, such as the victims of crime, accused persons
who are acquitted at the end of their trial, parties in civil proceedings and their
privies, lawyers who practice before the courts but indeed the entire justice system.
The judicial history of this relatively simple family related land matter, which was
commenced in the High Court Kumasi, as far back as the 4th of April 1974,
provides an insight into the harmful effects of systemic delays in the administration
of justice. Regrettably, it has taken forty long years, a whole generation, for this
case to finally find its way into this court; the court of last appeal. We hope court
business shall always be managed in ways that will not occasion a repeat of this
parody of justice.

BACKGROUND FACTS

The Plaintiff/ Appellant/ Respondent, (Respondent), a senior member of the

immediate Asona family of Asamankama-Offinso, acting on behalf of himself and
the family, took out a writ of summons against the Defendants /Respondents/
Appellants (Appellants) jointly and severally for declaration of title to certain
properties listed in a schedule attached to the statement of claim, recovery of
possession of those properties and an order of perpetual injunction. This appeal
relates to one of these properties, the house numbered 0.1. 92, Ashanti-New Town,
Kumasi. The original claim which was in relation to all those properties was
directed against only two named executors of one Osei Hwirie, deceased, the
person around whom this entire controversy revolves. But, by an order of Anterkyi
J, both writ and statement of claim were amended to include the 3rd to 8th
Appellants, who are beneficiaries of the will of Hwirie. Again, in the course of
time, the Respondent limited the claim to only the house numbered 01.92.

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The case presented by the parties in this legal battle is in reality so uncomplicated
that it is most unfortunate that it has taken so long for it to be brought to closure.
The Respondent’s case is that in 1921, Kwabena Amankwaa, deceased, the
maternal uncle of Hwirie, acquired plot No 0.192, from the Chief Commissioner of
Kumasi for a period of twenty –one years certain, and constructed a swish building
thereon. On his death intestate some six months to the expiry of the said lease in
1942, Hwirie in his capacity as customary successor inherited the property, as
family property. However, some four years later, in 1946, Hwirie acquired the self
same property, from the Asantehene, this time round, in his personal name, for a
period of ninety –nine years. He pulled down the swish building and constructed a
sandcrete building which he however later devised under his will, to the 3rd-8th
Appellants as beneficiaries. The Respondents, contending that the lease which
Hwirie as customary successor subsequently acquired in 1946, together with the
building thereon, constituted family property and not his self acquired property,
sued on behalf of the family in protection of its property.

Not surprisingly, the Appellants countered the claim. They maintained that the
family’s interest in the property was completely extinguished when the late
Amankwaa’s lease expired in 1942. They further contended that with the property
having lost its family character altogether, Hwirie, was legally entitled to and did
in fact take out the subsequent lease in his individual capacity, and was indeed
entitled to dispose of it in the manner that he did, namely, as his self acquired
property.

As is to be expected, the pleadings on both sides raised a number of pertinent

triable issues, as is borne out by both the summons for directions and additional
issues. It took a whole decade, after the commencement of the action, for judgment
to be pronounced by the High Court differently constituted. While the evidence
was received by Korsah J, who reserved judgment on 15th August 1980, the
decision, with the full reasons reserved, to be given at a later date, was delivered
by Okunnor J on the 21st of August 1986, nearly six years thereafter. But the
Respondent, who lost the action, would not wait for the promised reasons. Some
five days thereafter, aggrieved by the decision, he appealed to the Court of Appeal;
understandably, on the oft used omnibus ground that:

“The judgment is against the weight of the evidence.”

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For reasons not apparent on the face of the record, this judicial promise by
Okunnor J, that he would provide the reasons for dismissing the claim, never came
to be honoured.

Again, regrettably, it took another two decades for the Court of Appeal to set aside
Okunnor J’s decision, on the ground that when he took over the case from a
previous judge; he failed to formally adopt the proceedings before pronouncing the
decision complained of. The appellate court consequently ordered a de novo
hearing.

When the parties appeared before the new trial judge Debrah J for a fresh hearing
as ordered, the learned judge, relying on an agreement of the parties, decided to
dispose of the entire action by way of legal arguments only. He neither adopted the
proceedings nor took fresh evidence from the parties and their witnesses. He ruled:

“As things stand now, the court will take formal evidence in this matter. The
Plaintiff says he wants to go by relying on documentary evidence. The Court has
no option but to go by the way the parties have directed. On the defendants, they
must react to what counsel for the plaintiff is going to file and come back for a
date.

The filing must be within a week from 2 weeks. Counsel on the other side must
comply within 2 weeks.”

Thus, on the 16th of March 2010, the court gave judgment dismissing the
Respondent’s claim, in the words of the trial judge:

“as basically unexisting.”

The Respondent, who was aggrieved by the results, successfully appealed the
decision. It is the appeal against that decision of the Court of Appeal, which we
now proceed to hear and pronounce on.

We take issue with the trial judge on this stand, particularly, in relation to the
hapless statement that it had no option but to bow to the dictates of the parties to
dispose of the case by legal arguments only. Clearly, given the state of the
pleadings, the judge’s primary responsibility was to ensure that all the factual
issues were resolved on the basis of the evidence. As the trier of facts, he should

4
not have shirked that responsibility or sacrificed it on the altar of expediency or
convenience. Given this and the appellate court’s express orders, his duty was to
ensure that either the proceedings were adopted to provide the basis of the fresh
hearing; or failing which under the existing law; he ought to have taken evidence
afresh from the parties and their witnesses. To do neither was not the right step in
the circumstances. In this process, we doubt if he would have run into any
difficulties with the parties, particularly the Respondent. Was he not the one who
complained about this lacuna in the proceedings before Okunnor J? Was the failure
to formally adopt the proceedings not the ground on which he successfully got the
decision of Okunnor J completely nullified and a de novo hearing ordered?

Courts of law must follow the law. As a rule, courts are not expected to endorse
concessions, compromises or agreements by parties which are contrary to,
inconsistent with or not warranted by any rule of law or procedure. Thus, in any
proceedings, where the step taken by a party or parties violates any constitutional
or statutory provision or is not sanctioned by any substantive rule of law or
procedure, the court has a duty to reject it, notwithstanding the fact it was based on
the mutual agreement of the parties. A court should not, in the face of substantive
disputed facts, yield to parties’ invitation to resolve a case through legal arguments
only.

We find that the court failed in its primary duty entrusted to it by the appellate
court and the learned justices of the Court of Appeal must be commended for
finding a way to resolve the legal quagmire arising from the breach of duty by the
Debrah J court.

At the hearing of the appeal, the court decided nonetheless to take into account the
evidence on the record although they had no formal consent of the parties to do so.
It was through this process that court was enabled to determine the issues of fact
central to the claim. As we shall demonstrate shortly, the factual findings are
supported by the record and we affirm these findings, albeit via a different
reasoning process, which as we would demonstrate, would make a major inroad
into our jurisprudence on the nagging question of the adoption of proceedings. In
this regard, and for the purposes of clarity, we produce in extenso the appellate
court’s reasons for utilising the evidence on the record.

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The court observed:

“There is a preliminary issue that we deem important to consider in this appeal.

In the written submission of Counsel for the Defendant, he raised casually the issue
that since lawyers for the parties agreed not to go through the drudgery of retrial
but to determine the issue on legal arguments, what the trial judge in law could do
was to rely on the pleadings which span pages 1-74 of the record and not on the
proceedings which are from pages 75-174 of the record which were not adopted.

We have considered carefully the issue raised by counsel for the plaintiff. It is trite
law that litigation cannot go on in perpetuity. It must come to an end at some point.
And since an appeal is by way of rehearing we are enjoined to consider the entire
record of appeal which the parties obviously agreed to its content at the settlement
of record stage at the Court below. We cannot therefore shut our eyes to what is
before us.

Under Rule 32 (1) of the Court of Appeal Rules, 1997, C.I. 19 the Court is
empowered as follows:

“(1) The Court may, in respect of an appeal before it, give a judgment and
make an order that ought to have been made and to make a further or any
other order as the case may require including an order as to cost.”

The Supreme Court in recent years leans more towards judgments that go to the
merits or roots of a case instead of technicalities. Thus in HALLE AND SONS A.
S. VRS BANK OF GHANA & ANOR (2011) 34 G. M. J., the Supreme Court,
commented on the need to reject technicism as a judicial approach to case
resolution. On the principle of non-compliance with procedural technicality, the
Supreme Court in Holding (2) held thus:

“The words of Lord Denning MR. in HARKNESS VRS BELLS ASBESTOS &
ENGINEERING LIMITED (1967) 2 QB 729 at 736 CA”

“It can be asserted that it is not possible for an honest litigant in her
majesty’s High Court to be defeated by any mere technicality, any slip, and
any mistaken step in his litigation.” The same can also be said of our Courts

6
 in Ghana in view of our rule 79 of C.I. 16 rule 63 of C.I. 19 and Order 81 of
C.I. 47.”

We commend the learned justices of appeal for finding a way to define the legal
rights of the parties, deploying Rule 32 (1) of the Court of Appeal Rules, 1977, CI
19, for the purpose. They cannot altogether be blamed for employing this
procedure to address the issue facing them. At the date of the hearing of the appeal,
the decisional law, which on the principle of stare decisis they were bound to
follow was the legal principle enunciated in the case of Awudome (Tsito) Stool v
Peki Stool [2009] SCGLR 681; wherein we affirmed the proper legal procedure for
the adoption of proceedings in these terms:

“(1) The established rule was that when a case has been transferred from one High
Court to another, the parties had the option to adopt the proceedings or to have the
trial started de novo. That was the common law rule which had been adopted and
practiced for many years in the courts of Ghana. Boama v Okyere [1967] GLR 548
and Coleshill v Manchester Corporation [1928] 1 K 776 cited.”

We fully recognise that the learned justices had no option but to follow this
principle, hence their resort to Rule 31 (1) of C I 19 to resolve the difficulty which
confronted them. While we agree with the result reached via the invocation of that
rule, we nonetheless respectfully think the rule was wrongly applied in this instant
case, given that as it’s sub- title clearly states, the rule merely confers on the court
the power to deliver judgments and make appropriate orders thereto in relation to
appeals before the court, having regard, implicitly, to the evidence before the court.
By evidence is meant evidence which properly speaking, forms part of the relevant
record. And yet we know that the evidence received by Korsah J had not yet been
adopted as part of the record, while at the same time the Rule 31 (1) of C1 19 does
not make provision for adopting evidence received by a previous judge. But even if
the court’s approach can be justified, the state of the law as decided hereunder will
provide or serve as an additional legal buffer to the appellate court’s reasoning.

In this case then, we hereby proceed to employ a more radical and constitutionally
based approach to determine the rather nagging question of what the proper legal
procedure is for adopting proceedings before a previous judge. The resolution of
this question will then pave the way for the adoption of the evidence received by

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Korsah J, qualifying it to form part of the record (which Debrah J never adopted)
and which would then be used to resolve the critical issues of fact arising from the
pleadings. Since an appeal is by way of re-hearing, we will use this evidence, when
finally adopted at this re-hearing, for the purposes stated. The pronouncement on
this crucial issue will alter the course of our jurisprudence, in that it would provide
a more just and far lasting legal solution to the challenge which has faced our
courts in the past and created enormous difficulties for the smooth and speedy
administration of justice in our jurisdiction. We concede that the time is long
overdue for a volte-face from the age–old legal position of no agreement by all the
parties no adoption of evidence that the courts have unremittingly followed for
decades. At this re-hearing, we will not tie ourselves to the existing legal principle,
but liberate ourselves from its shackles.

The foundation of this principle which we have fastidiously held on to was laid in
the case of Boama v Okyere [1967] GLR 548, in which it was held that:

“Although the usual practice was to hear evidence afresh the court did have power
on the peculiar facts of the case so permitted, on grounds of convenience and
expense to order that the evidence in the first trial be adopted in the second trial by
consent of all parties.”

In this court, we were persuaded by this authority and the English case of Coleshill
v Manchester Corporation [1928] 1 K 776 to form our decision in the case of
Awudome (Tsito) Stool v Peki Stool (supra).

Our decision triggered the thought provoking editorial comments of the learned
author, Dr S.Y. Bimpong – Buta, who strongly advocated a departure from our
firmly held legal position.

This case provides us with the opportunity to utilise the jurisdiction conferred on
us by article 129 (3) of the 1992 Constitution to depart from our previous decision
which we find rather archaic, retrogressive and producing unjust results.

The article 129 (3) states:

“(3) The Supreme Court may, while treating its previous own previous decision as
normally binding, depart from a previous decision when it appears to it right to do

8
so and all other courts shall be bound to follow the decisions of the Supreme Court
on questions of law.”

We now give the reasons for our departure from the previous decision of this
court. In the administration of justice, transfers, ill health, death, resignations,
retirements, and other vicissitudes of life from which the judiciary is not spared
have, unavoidably necessitated the transfer of part heard cases from one court to
another differently constituted; that is from one judge to another. The first question
which arises in such cases is whether the new judge must adopt the evidence taken
by the previous judge and continue from where he or she left off or the case be
retried or heard de novo, namely that fresh evidence be received. Hitherto this
ground breaking decision; our courts have adopted proceedings, namely the
evidence, only where all the parties have given their unequivocal consent. But
more often than not, this consent has, without valid reasons, unreasonably been
withheld. Under such circumstances, judges have, in desperation thrown their
hands in the air and yielded to a de novo hearing, leading to needless delays.

The main policy reasoning behind this approach is the thinking that the new judge
can only serve justice if he or she saw and heard the witnesses to enable a close
monitoring or observation of their demeanour. And yet, speaking for this bench as
presently constituted, our judicial experience, cumulatively spanning a period of
over a century has taught us that hardly does the demeanour qua demeanour of
witnesses play a significant role when evaluating the credibility of witnesses.
Courts tend to rely on some more reliable criteria such as documentary evidence,
the testimony of disinterested witnesses, the implausibility or otherwise of
narrations given in court, to arrive at their findings and conclusions. As noted by
the learned author inter alia, (see the editorial comments in Awudome (Tsito) Stool
v Peki Stool (supra)) :

“The argument based on observation of the demeanour of parties and witnesses is

not always tenable, especially where that trial lasts for many weeks; months or
years as is common in the courts. The effluxion of time may cause memories to
fade, wane or totally forgotten and, in that event, there can be no legitimate
reliance on demeanour which cannot be recollected.

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…If the specific observation is not apparent on the face of the record, it may be
attacked as being speculative. If the observation is properly recorded and is
apparent in the proceedings, the second trial judge can make use of them as the
basis for commenting on or evaluating the credibility of parties and witnesses. In
that event, the reason for insisting on trial de novo will not be applicable.”

And as he further urged:

“On the other hand, arguments for trial de novo may be countered on the following
grounds: (i) the protracted trials and delay in the delivery of judgments; (ii) they
afford parties undue advantage to reconstruct their case and thus waste more time;
(iii) they encourage parties to seek to embellish or improve their case if they
believe that their performance or the performance of their witnesses did not go the
way they wanted; (iv) they can sometimes lead to denial of justice where the
witness or party is dead or otherwise unavailable and there is no other means of
haring the truth except to rely on what has already been reproduced by the court
under cross-examination in the previous proceedings; (v) there will be denial of
justice where vital exhibit is lost or otherwise unavailable but details of it are on
the record and could have been used to write the judgment if the previous
proceedings had been adopted; and (vi) in fact in the event of the last two reasons,
trials may have to be discontinued or cases abandoned or justice denied when,
indeed, adoption of the record would have saved the continuation of the trial and
the entire case.”

The argument against de novo hearing is so cogent and compelling that sound case
management policy reasoning alone constitute a sufficient basis for charting a new
legal path in our jurisprudence. We would, therefore state the law as follows. In
civil proceedings, the ultimate question of whether or not evidence already
adduced before a previous judge be adopted should not rest on the parties’ consent.
It should exclusively be at the discretion of the new judge who takes over the
partly heard case. Since this involves the exercise of a discretionary jurisdiction,
we will identify some of the factors that must be taken into account to arrive at this
decision. The judge’s broad and primary concern must be to ensure that the
adoption of the proceedings would not result in any miscarriage of justice. Specific
factors that would influence the decision would include the length of time that the
case has been on the court’s calendar, the stage at which a trial has reached, the

10
number of witnesses already called, the disputed issues, the nature of the evidence-
mostly narrative or documentary, weighty objections by either party, if any, to its
reliability, the availability of the witnesses who has already testified, the quality
and reliability of the record or transcript.

In this appeal, we have before us a reliable transcript of the proceedings, signed by

the judge who received the evidence. We have not the least evidence of the
slightest objection from any of the parties’ relative its reliability. To the contrary,
the Respondent’s lament at one time had been that the evidence was not adopted in
accordance with the law. Again, the availability and or memory of the only parties
and witnesses who may happen to be alive and who had earlier testified has not
been guaranteed, in respect of this forty year old case. On these bases, we will
adopt the proceedings and, at this re-hearing, use the evidence to resolve the
disputed facts which are central to this case.

GROUNDS OF APPEAL

Having settled this important question, our next duty is to examine the Appellants’
in the light of the impugned judgment. The Appellants appealed the decision on the
following grounds:

1“That the judgment is against the weight of evidence adduced.

2 That the learned Justices of Appeal either ignored or failed to consider clear
evidence on record especially the contents of Exhibit “A” which clearly
stated that Kwabena Amankwaa’s lease which commencing from 1st July,
1921 expired on 30th June, 1942 and thereafter Osei Hwidie (sic) was given
a lease in the form of a yearly tenancy by the Asantehene dated 26th June,
1946 and commencing from 1st February, 1946 until same was terminated
on 2nd September, 1953. Thereafter Osei Hwidie (sic) was given a lease
dated 22nd January, 1954 commencing 1st October, 1953 and expiring 31st
March, 2052.

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 3 The learned Justices of Appeal misdirected themselves when they held that
Osei Hwidie (sic) invoked the renewal clause in Kwabena Amankwaa’s
1921 lease to renew the expired lease in his name instead of applying for
his own lease thus stamping his resultant lease with family character when
there is clear and ample evidence on record that upon the expiring of
Kwabena Amankwaa’s in 1942, Osei Hwedie was given a yearly lease by
the Asantehene in 1946, which run from year to year until same was
terminated on 2nd September, 1953 and a fresh long lease was granted him
on 22nd January, 1954 for 98 years, 4 months commencing 1st October,
1953 and expiring 31st March, 2052.

4 The learned justices of Appeal erred in law when they refused to hold that
Kwabena Amankwaa (sic) is choosing to govern his transaction by English
law was bound by the dictates and terms of the English law of leases.”

What triggered these grounds of appeal and the long arguments in support thereof?
After reviewing the evidence on the record, their Lordships in the appellate court
ruled, inter alia:

“It is clear from letter number 645/1794 that there was an option to renew clause in
the Lease of Kwabena Amankwah (sic) which expired on 30th June 1942. The
Lands Department then gave him notice for the renewal of the lease. This is
confirmed by the fact that Osei Hwirie in his Affidavit of 31st December, 1942
“prayed that the lease be renewed in my name instead of Kwabena Amankwah
(sic) deceased.” [Emphasis ours].

Subsequently Osei Hwirie’s name was entered in the record, the lease having been
renewed for a further ninety-nine years. We are unable to go along with the
submission of Counsel for the Defendant in the instant case in view of the above
documentary evidence. This is because it is not in dispute that Osei Hwirie
succeeded Kwabena Amankwah as the customary successor and it is clear that
Osei Hwirie did not take a fresh lease. He rather exercised the option to renew
inherent in the lessee Kwabena Amankwa in the original lease and had the lease
renewed in his name. There is no evidence of a yearly tenancy as argued by
Counsel for the Defendant between the Asantehene and Osei Hwirie. The renewal
in the name of Osei Hwirie occurred as per letter dated 8th January 1943 barely six

12
months and eight days after the expiration of the initial term of the lease. So the
question is when could such yearly tenancies have been entered into and for which
years? It is also not in dispute that Kwabena Amankwah constructed a swish
building on the plot. The fact that Osei Hwirie after the renewal of lease pulled
down the swish building and constructed a sandcrete storey building does not
detract from the duty he was expected to perform as customary successor. Thus in
Kusi & Kusi vrs Bonsu [2010] SC GLR 60, in the majority decision of the
Supreme Court it was held in holding (7) that;

“The sound and well settled principle of customary law, intended to protect family
property from being converted into private property, would imply that even if
Asante had used his own personal resources, ingenuity and the best of his
negotiating skills in acquiring the property he did so on behalf of the family and
not for himself. The principle, which had been accepted and applied in a number of
cases was that if any member of a family used his or her own funds to recover
property lost to the family property would revert to its family character it would
not become the individual’s private property. On the principle, the disputed
property in the instant case could not be described as a self acquired property of
Asante the deceased head of family”.

It is these central findings and conclusions in this case that has led the Appellant
under grounds 1, 2, and 3, to criticize the judgment as being erroneous. Our
understanding of the Appellants’ long arguments built around English authorities is
that, since Amankwaa obtained his original lease under English common law,
English law governed his transaction, as a result of which Amankwaa’s interest
was effectively extinguished when the lease expired. The further argument is that
Hwirie was subsequently at liberty to legally obtain the subsequent lease in his
personal name. The argument ran thus:

“In the present case, Kwabena Amankwaa, the original family member who
acquired the land died in 1941and his lease expired in 1942. The interest of
Kwabena Amankwaa inherited by Osei Hwedie expired on 30th June, 1942and if
anything at all, the family’s interest and character in the land terminated with the
lease.

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Until 1st February, 1946 when the Asantehene gave Osei Hwidie (sic) a yearly
tenancy, the property did not belong to Kwabena Amankwaa or his family or even
to Osei Hwedie (sic). The interest Osei Hwedie (sic) acquired as a yearly tenant
was by a written conveyance conferring the status of a yearly tenant on him and the
Asantehene gave his lease in the capacity as a lessor who had re-entered and
repossessed the land upon the expiry of a lease.”

Respondent Counsel’s simple answer to the argument is that:

“The issue which is of paramount interest is whether or not OSEI HWIRIE, whose
name was initially only inserted into the records of the Lands Department because
he was the ‘INHERITOR’ of the estate of KWABENA AMANKWA, can now
claim that the property which he inherited as Customary Successor, has now
become his own BONA FIDE property because instead of the yearly tenancy
which he took upon the expiration of the initial lease, he has now taken a long
Lease.

To answer this question, the position of the Lessee at the time that he was being
granted the long Lease is most important.

OSEI HWIRIE, at the time of the long lease was Customary Successor of
KWABENA AMANKWA.

As Customary Successor, he was a fiduciary for the Family, for the law then was
that upon the death INTESTATE, of an AKAN MAN, his personal property
became family property. The period of Succession by OSEI HWIRIE, commenced
from the early 1940’s and the then firm legal position was that “In Customary Law,
as soon as a Successor is appointed to succeed a deceased member of a family, the
self-acquired property left by the deceased person vests in the said Customary
Successor who holds same for and on behalf of the family.” PLEASE see the case
of DOTWAAH VRS AFRIYIE: [1965] GLR at PAGE 257.

My Lords, if it is admitted that OSEI HWIRIE until his death, remained the
Customary Successor of the late KWABENA AMANKWA, then it is submitted
that it was his duty to take ALL legitimate steps to guard or protect for the family
the properties he was holding in trust for the family as a result of his being the
Customary Successor.

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It was his duty as Customary Successor to ENHANCE if need be, the said
properties.

And I submit that taking a long Lease in order to redevelop the property into a
more permanent Sandcrete Structure is an enhancement within the scope of his
duties as Customary Successor.”

As Defendant counsel rightly urged and was correctly answered by the appellate
court, the question is whether the lease subsequently acquired by Osei Hwirie
validly devolved on him in his personal capacity such that he can dispose of it in
the manner he did or did he acquire it in trust on behalf of the family?

We find the Appellants argument unsustainable. The fiduciary responsibilities

which devolve on a customary successor who holds property in trust for and on
behalf of the family at customary law, is not dependent on the mode by which that
property was originally acquired. The legal authorities which define the duties and
responsibilities of customary successors, as typified by such cases as In Re Kwao
v. Nortey [1884-86] GLR 144, do not draw a distinction between properties
acquired under the English common law and those acquired at customary law. At
customary law, property acquired by an individual which upon death devolves on
the individual’s family as family property does not lose its family character on the
sole basis that the mode of acquisition was not under customary law, but common
law. A customary successor is not entitled to handle with less care and trust
inherited family property, which property was originally acquired under customary
law. The rules on accountability, transparency, ameliorating the family property,
ensuring that it does not suffer waste apply with equal strictness to property
acquired by the original owner at customary law. Customary law, detests, frowns
upon and abhors dishonest or unjust gain, unjust enrichment, inequity, fraud, theft,
roguery, collusion and the like.

The findings and conclusions drawn and reasons assigned by their Lordships of the
court of appeal that Hwirie entered into the ninety- nine years on behalf of the
family and held same albeit, in his name in trust for the family is not only borne
out by the evidence, but so weighty that we are bereft of any legal basis for
reversing them. This case is clearly distinguishable from the old case of Santeng v
Darkwa 6 W.A.CA. 52. On Counsel’s own showing, the decision in that case

15
turned on its own peculiar facts, in which as he himself brought out, the family
property had been totally abandoned. Not so in this case, where as per the
Appellant’s own affidavit he used to apply for the renewal, he was taking the step
solely on account of his position as successor and inheritor, albeit in his own name.
When all the paragraphs of that affidavit are purposively read as a whole, which in
any event is the proper approach for the construction of documents, we come to no
other conclusion than that he acquired the lease for and on behalf of the family.
The paragraph (iii) of the said affidavit reveals clearly that the invitation for
renewal of the lease, on its expiry, was extended to Amankwaa, the original lessee
who unfortunately had passed. Obviously, Appellant’s duty then was to utilise that
information which he had obtained in the best interest of the family, not to advance
his personal interest. To hold otherwise is to undermine the law on fiduciary
relationships, while endorsing such negative acts as fraudulent breach of trust, bad
faith and the like. We find their Lordships thinking on this pertinent issue so apt
that we deem it expedient to reproduce same.

“ In our view, a customary successor so appointed by the family stands in a

fiduciary relationship with the family. It is his duty not only to take over the Estate
of the deceased but hold it in trust not only for himself as a beneficiary but the
family members entitled to a share of the Estate. His duty further entails the
protection of the family property and to enhance it if possible for the family. Thus
as the custodian of the family property in his hands it is incumbent on him at all
material times to act in good faith vis a vis the family and the family property.”

Under no circumstances should the customary successor set up an adverse interest

to that of the family.”

In the same vein, we find the appellate court’s findings and conclusions on the
issue of whether the Respondent had the capacity to sue, supportable on both the
facts and the law. As rightly found by the court, the Respondent’s case fell within
the exceptions created under Kwan and Nyieni & Anor [1959] 1GLR 67 CA which
principles have been dutifully followed in a number of decisions of this court
including the more recent case of Ashalley Botwe Lands, In re; Adjetey Agbosu v
Kotey;[2003-2004] SCGLR 420. The Respondent was faced with the case where
the head of family who ought to institute the action to preserve the subject family
properties was himself a beneficiary under the will of Hwirie with regard to the

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same properties. Definitely, at law Appellant has the legal right and capacity to sue
in protection of those family properties.

We are satisfied with the final result reached by the court of Appeal in this matter
and we fully endorse same. In the result, this appeal fails and the same is hereby
dismissed.

Finally, the Respondent is not entitled by way of cross appeal to a variation of the
costs awarded in the court below or additionally an order of accounts. The costs
awarded involved the exercise of discretionary power. It has not been proven that
this jurisdiction was wrongly exercised. Again, the Respondent’s prayer for the
order of accounts which was not included in the notice of Cross- Appeal, and was
put in only casually at the tail end of Counsel’s address and therefore appeared
more as a footnote than a well deserved order on the strength of the evidence, must
be declined. Incidentally, the order for accounts was not one of the reliefs endorsed
on the writ. It is therefore not surprising in the least that the case was not
additionally fought along this line. This explains why no evidence was led in
support of the same.

(SGD) G. T. WOOD (MRS)

CHIEF JUSTICE

(SGD) J. ANSAH

JUSTICE OF THE SUPREME COURT

(SGD) ANIN YEBOAH

JUSTICE OF THE SUPREME COURT

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 (SGD) P. BAFFOE BONNIE

JUSTICE OF THE SUPREME COURT

(SGD) J. B. AKAMBA

JUSTICE OF THE SUPREME COURT

COUNSEL

OBENG MANU JNR. ESQ FOR THE DEFENDANTS/ RESPONDENTS/

APPELLANTS.

EDWARD EGBLOGBE ANAGLATE FOR THE PLAINTIFF /APPELLANT/

RESPONDENT.

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