Painstil Vrs Badua [2022] GHAHC 33 (27 October 2022)

IN THE HIGH COURT HELD IN CAPE COAST ON THURSDAY, THE 27TH DAY OF OCTOBER, 2022, BEFORE HER LADYSHIP MALIKE AWO WOANYAH DEY (HIGH COURT JUDGE) SUIT NO: E12/9/2021 BRIGHT SAM PAINSTIL (suing as ----------------- PLAINTIFF A member of the Asokwa Twidan Family of Abura Dunkwa) VS. ADJOA BADUA --------------------- DEFENDANT PLAINTIFF PRESENT DEFENDANT PRESENT DANIEL ARTHUR FOR THE PLAINTIFF PHILIP YOUNG FOR DEFENDANT JUDGMENT It is in pursuance of the alleged removal of the defendant herein as the head of the Asokwa Twidan Royal family of Abura Dunkwa and her refusal to desist from carrying herself out as the head of family that the plaintiff herein also a member of that family issued out a writ of summons and statement of claim from the registry of this Court claiming the following reliefs; a) A declaration that the defendant is not the head of the Asokwa Twidan Royal family of Abura Dunkwa, having been customarily removed by the family. b) An order restraining the defendant from holding herself out or allowing herself to be held out as the head of the family c) An order of award of costs incidental to the institution of the present action d) Any other relief(s) this honourable Court may deem fit to grant in the circumstances. Per the attached statement of claim, the plaintiff averred that he had brought the action in his capacity as a principal member of the Asokwa Twidan family of Abura Dunkwa with the consent of the principal members of the family. The defendant was not formally and customarily appointed and installed as the head of family, for some time, the defendant carried herself out as such to the knowledge of the family though they protested. He further averred that the defendant conducted herself unsatisfactorily as the head of family. Thus, at a family meeting on 3rd April 2020, she was served with some charges signed by the principal members of the family. The family had requested her to respond. However, the respondent failed to respond and having waited for her response to no avail, the family extended several invitations to her to appear for a family meeting to consider the charges against her. She failed to honour the said invitations. He went on to state that on 5th June 2020, the family held a meeting to hear the defendant's response, and though she appeared at that meeting, she failed to respond to the charges. Thus the family passed a resolution to remove her and, in furtherance of that, informed her of her removal. She was not pleased with the decision; thus, she left the meeting. However, in accordance with customary law, libation was poured to complete the process of her removal as the head of family, albeit in her absence. The plaintiff complains that though the defendant has been removed as the head of family, she continues to carry herself out as such. He states that unless the Court intervenes to restrain her, he averred, she will not cease to carry out herself as the head of family. In her amended statement of defence, the defendant denied that the plaintiff was a principal member of the family because he is a grandchild to her in terms of generational relationship in the family and is nowhere near the status of a principal member. She averred that she is the undisputed head of the family and is recognised by the principal members of her family and also the Oman of Abura Dunkwa. She stated that she was duly nominated and installed by the prominent and principal members of the family and outdoored to the "Oman" after the performance of the necessary customary rights and has acted as such since that date. She averred further that the plaintiff and his faction had filed this suit because of a chieftaincy dispute pertaining to the selection of a candidate to be installed as chief of Abura Dunkwa. According to her, the plaintiff and his faction of the family are aggrieved by his non-selection as a candidate. She stated that pursuant to the selection of one Kweku Asamoah as a candidate and his subsequent installation as chief, the plaintiff’s sister and their faction had mounted a chieftaincy action against her and the said chief before the Abura Traditional council, which matter is still pending. She averred further that the plaintiff and his faction have been using various untruthful allegations against her and parading in the town that they had removed her when no such thing occurred. She denied that she was served personally or through any medium or any letter with charges. She stated further that due to the chieftaincy dispute, the plaintiff and his faction of the family have refused to sit with the defendant and other family members, let alone attend any family meeting organised by the defendant and principal members of the family. Significantly, she averred that she did not receive any oral or documentary notice or request from the plaintiff or any of the principal members of the family requesting a meeting with the stated agenda of her removal as the head of family. She also stated that one Adwoa Akyere, Adwoa Assanba and Efua Nyamoawa informed her at her shop that she and her siblings were needed at the chief's palace and when she asked for the reason, they refused to tell her. According to her, later, she went to the palace in the company of the principal members, and immediately she got there, Afua Nyamoawa and her siblings stood up and handed over a letter in a sealed envelope to her and stated that they did not want her as the head of family anymore. Later, she heard that plaintiff had posted posters depicting her removal. In his reply to the statement of defence, the plaintiff averred that the defendant had refused to accept all letters notifying her of the meeting. Therefore, the family instructed one Adjoa Kakraba alias Ataa Maame and Araba Assanba to inform her orally. He averred further that the defendant responded that she would not honour the invitation in the absence of the chief she had purportedly installed. He also stated that the defendant rejected the letter sent to her through Ama Adubaawa, and she had no option but to return it. Later the defendant sent one Yaaya to inform the family that she would meet them at the Ahoba festival, and in return, the family also tasked the said messenger to inform the defendant that her removal charges would be considered on the said date. At the close of pleadings, the Court adopted the following issues for trial. a) Whether or not the defendant has been customarily removed as the head of the Asokwa Twidan family of Abura Dunkwa. b) Whether or not the defendant is still the recognised subsisting head of family of the Asokwa Twidan Royal family of Abura Dunkwa c) Whether or not the plaintiff is entitled to his claim as endorsed on the writ of summons Before I discuss the evidence viz a viz the issues set down, it is pertinent to map out what was required by law concerning the burden on the plaintiff. It is communis opinio amongst the legal fraternity that he who alleges must prove. Thus since the plaintiff has prayed for a declaration that the defendant is not the head of family, he bears the burden of proof on the issues raised, and the standard of proof in such actions is proof on the balance of probabilities. Section 11 of the Evidence Act 1975 NRCD 323 reads; the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. In other words, a party needs to produce enough evidence once all the evidence is before the Court; a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. The learned author and jurist S. A. BROBBEY explained the principle relating to the duty to produce evidence on page 31 of his book "Essentials of the Ghana Law of Evidence" in the following terms; "This literally means "the proof lies upon him who affirms not on he who denies since by the nature of things he who denies a fact cannot produce proof." Where the plaintiff makes a positive assertion at the start of the trial, he bears the legal burden. At the same time, he bears the evidential burden to adduce evidence at the start of the trial" In the case of FAIBI V STATE HOTELS LTD [1968] GLR 471, it was held thus; "Onus lay upon the party who would lose if no evidence was led in the case, and where some evidence has been led, it lay on the party who would lose if no further evidence was led. On how to discharge the burden of proof, the Supreme Court, in the case of Ackah v Pergah LTD and others [2010] SCGLR 728 at 736, held that "It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied, and it includes the testimonies of the party and material witnesses admissible hearsay, documentary, and things(often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the Court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and 2 and 11(1) and (4) of the Evidence Act, 1975 NRCD 323. " Further, it must be borne in mind that, generally, the defendant bears no burden of proof, particularly where there is no counterclaim. See also T. K Serbeh & CO [2005-2006] Ltd. V. Mensah 360 per Date-Bah JSC It should be noted that I have read the closing address filed by counsel for the defendant, and it has assisted the Court in reaching its conclusion in this judgment. The plaintiff testified and called four witnesses, PW1 Obaapanyin Adjoa Akyere, PW2 Obaapanyin Araba Assanba, PW3 Ama Adu Baanwah and PW4 Grace Brew Paintsil. On the other hand, the defendant also testified through her Lawful Attorney, Thomas Nkrumah, and called two other witnesses, DW1 Kwamena Ofor alias Musa, DW2 Ebusuabaatan Kwabena Enyim. They did not call Adwoa Apanwa alias Nkweba though she filed her witness statement. From the evidence led before the Court, certain facts are not in dispute. These are; 1. The plaintiff and the defendant belong to the Asokwa Twidan family of Abura Dunkwa. 2. The said family has four gates: Ogyanua gate, Kwantsema gate, Abena Kumah gate and Abena Nkrumah gate. 3. The plaintiff belongs to the Adjoa Kwantsema gate, whilst most of his witnesses belong to the Ogyanua gate. 4. The defendant belongs to the Abena Nkrumah gate whilst her witnesses belong to the Abena Kumah gate. 5. The family is divided with the Kwansema gate and the Ogyanua gate on one side and the Abena Nkrumah and the Abena Kumah gate on one side. According to the plaintiff, though the defendant imposed herself on the family at a time when their previous head of family was alive, contrary to their customary rules, they had accepted her based on the advice of the Traditional Council. This conclusion is supported by the plaintiff's evidence in paragraphs 20 to 23 of his witness statement, where he testified thus; 20. As a result of her conduct, several issues of misunderstanding arose, and one such matter went before the Central Regional House of Chiefs. 21. In the course of determining that matter, the issue about her headship came up, and the Regional House of Chiefs advised that we allow her to be Ebusuapanyin if she was capable of being Ebusuapanyin. 22. The family complied with the advice of the Regional House of Chiefs and allowed her to be the Ebusuapanyin. 23. Thereafter, the defendant managed the affairs of the family at her own will without the involvement of the members or principal members of the family. Thus, when this case came to the Court, the issue of whether the plaintiff had been appointed or nominated and installed as head of family by the Asokwa Twidan Royal family became moot. In any case, since the plaintiff has alleged that the defendant had been removed, it stands to reason that she was occupying the position of head of family. Nevertheless, it is the plaintiff’s case that the defendant had been removed per the customary rules and practices of the people of Abura Dunkwa, who are Fante and, therefore, Akan. Thus she is no longer their head of family. That complaint is the gravamen of the entire case. Has the plaintiff led evidence to show that the defendant had been removed as the head of family per the traditions and customs of the people of Abura Dunkwa? Simply put, did the defendant's removal follow the procedures laid down under Akan or Fanti custom? Per the plaintiff's Exhibit A, it is beyond dispute that certain written charges were formulated against the defendant pursuant to what the plaintiff referred to in paragraph 23 of his witness statement as “the defendant managed the affairs of the family at her own will without the involvement of the members or principal members of the family.” The plaintiff’s evidence was corroborated by PW1, PW2, and PW3, who are also principal members of the family belonging to the Ogyanua gate, different from the Kwansema gate to which the plaintiff belongs. They all confirmed that when the charges were drafted, they invited the defendant to a meeting at which the charges were handed over to her, whereupon she prayed for two weeks to enable her respond. According to the witnesses, the defendant did not get back to them after the two weeks had lapsed. Thus some principal members of the family wrote a letter inviting her to a meeting at which the charges against her were to be considered, but she refused to receive the said letter, wherefore it was returned. Thereafter, the defendant herself said that she would meet them at the family house on 5th June for the Ahoba festival. On the said date, the defendant said her chief was still not around, and when they asked her to respond to the charges, she did not. There a decision was taken for her removal. When the decision was conveyed to her, she angrily left the palace. Thereafter, libation was poured, which signified her removal. The narration given by the plaintiff and his witnesses is quite different from that of the defendant and her witnesses, but one point of convergence is that the defendant and her witnesses told the Court that the defendant was given an envelope when they, together with the principal members of their gate met at the chief's palace which is also established as their family house. The defendant and her witnesses, however, testified that at the time they were testifying in Court, they could not tell what was in the said envelope. That evidence cannot be the truth because, per their evidence, the defendant is illiterate and cannot read and write, thus could not understand the content of the document. That testimony runs through the evidence of the defendant's witnesses and shows that they were aware that the envelope contained writings that the plaintiff could not understand. In that case, I shall liken the said document to a process in Court that has been served on an illiterate defendant whom the plaintiff knows cannot read and write. Reasonably, the plaintiff should not explain the same to the defendant. However, the defendant ought to seek the interpretation of the document and know its content, as the illiteracy of the said defendant cannot be an excuse for sleeping on the document and doing nothing about it. That is especially so where there is evidence that the charges were not considered at that meeting. Based on the evidence led before the Court, I find as a fact that the defendant was served with the charges in the presence of the principal members of the various gates of the family, and once there is evidence that the charges were not considered on that day, it matters not whether she is illiterate or not. On that day, had the meeting gone ahead to consider the charges without reading it out to her, then the illiteracy of the defendant would have played out but not when the charges were not considered and the family dispersed. I also find that though a meeting was called and the defendant was served with the charges in the presence of principal members of the family, the meeting did not consider the charges against her. Thus this Court would take it that the meeting was called to serve her with the charges. At this point, the pertinent questions that ought to be determined are a) Whether there was any notice of any meeting to the majority of the principal members of all the four gates at which the charges were to be considered b) Whether the said meeting took place and c) If the meeting took place, whether the majority of the principal members from all four (4) gates of the family were present. The evidence on the record shows that the plaintiff, per his exhibit B, together with others, wrote a letter to the defendant for her to report at the Osam Kwesi Palace to answer the charges given to her earlier, but according to the plaintiff himself, the defendant refused to receive the said letter. There is no evidence on the record that though the defendant refused to receive the letter, it was circulated amongst the principal members of the four gates. It is also clear to the Court from the evidence led that the charges and letter were signed by members of the Kwansema gate, of which the plaintiff is a member and the Ogyanua gate. At page 8 of the record of proceedings, the plaintiff admitted that fact as follows; Q: In paragraph 36, you spoke about the family sent a message to the defendant- who sent the message? A: The female principal members of the family. Q: Those alleged five principal members were from your gate, not so? A: Not all of them come from my gate. Q: So that alleged message was never sent to the principal members of the Abena Nkrumah and Abena Kumah gate? A: That is so because we were expecting the response from the defendant we could not inform the Abena Nkrumah or Abena gate because we did not know when she would give her response. In fact this was confirmed by PW1 when at page 23 she told the Court thus; Q: You will agree with me that those who preferred the charges do not constitute all the principal elders of the four gates of the family? A: I agree but if they were not part then that means they are in support of the defendant’s conduct. Q: I am suggesting to you that when you were preferring the said charges, you did not notify the principal elders of the other two gates. A: That is so. The other gates when they are conducting their affairs or taking decisions they do not consult us thus we also did not consult them. The answers by the plaintiff and Pw1 clearly established that the charges served on the defendant were formulated by several principal members of the Kwansema and Ogyanua gates without recourse to the other two gates, including the one that the defendant belongs to. In the case of Abakah and others v Ambradu1963 GLR …. Mills Odoi JSC stated as follows; … I would refer to the principle of customary law enunciated by Sarbah in his Fanti National Constitution1906 ed. page 42 “The right of removing a ruler belongs to the people immediately connected with the stool; in the case of the head of a family the right is in the senior members and the act of the majority is binding on the rest." Applying the stated principle to the instant case, the right to remove the defendant from office was vested in the principal heads of the family, and the act of the majority would be binding on the rest. Therefore, the crucial matter for consideration is whether the meeting of the 16th July, 1961 was attended by all or the majority of the principal heads. In that same case, the Court stated as follows; I am of the opinion that in the instant case, the defendant was removed from office without notice of the meeting to all the sectional heads of the Ekwan Kweku Anona family. Thus the act of the sectional heads who were present at the meeting on 16th July 1961, cannot therefore be binding on the rest and unless it was acquiesced in by the rest, it is ineffective. Also, in the case of IN RE Estate of Kwabena Appainin (Decd) Frimpong vs Anane [1965] GLR 354-363 cited by counsel for the defendant, the Supreme Court stated thus; The principle of customary law which emerges from the cases cited and several others is, that in matters such as appointment and removal of a head of family which are of vital importance to a family, all principal members of the family are entitled to a hearing, and opportunity should be given to all of them so that those of them who wish to be heard can exercise their right. This means that notice of the proposed meeting and the gist of the purpose of the meeting should be given to all the principal members. If after such notice having been given, any principal member fails to attend, the members present may transact the business as announced for the meeting or any other business which may competently be transacted within the terms of the object published, and the business so transacted will be binding on the whole family, those who absented themselves cannot be heard to challenge it. Another case in view is Allotey v Quarcoo [1981] GLR 208 where the Court of Appeal stated thus; 3) Both the common law and customary law had for centuries reposed jurisdiction to pronounce on the merits of the decision of a family to depose its head at a fully representative meeting and after due notice of the meeting and charges given beforehand, in the families themselves. The courts had only a limited supervisory jurisdiction and would interfere with the family's decision only when there had been a complete or substantial denial of justice; it was not the infringement of any fundamental principle or rule of natural justice or the breach of every procedural step that would suffice to invoke the Court's jurisdiction. In the instant case, although the learned trial judge had recognised the Court's lack of jurisdiction, he erred in including the "propriety of the alleged deposition" in the issues for determination. He also stated the limited supervisory role of the courts in family elections and depositions, a shade too broadly when he insisted upon the non-violation of any fundamental principle of the administration of justice especially the rules of natural justice. Thus I agree with counsel for the defendant that certain elements must be established by the plaintiff in order to discharge the burden imposed on him and these are; a) There must be proof of notice of the meeting to all the principal members of the family. b) The purpose of the meeting, i.e. consideration of the charges against the head of family, must accompany the notice to the principal members of the family. c) The charges against the head of family must be stated at the said meeting, and must be given the opportunity at the said meeting to respond to the charges. d) The decision to remove the head of family must be taken by the majority of the principal members present for a binding effect on the entire family. e) Where the head of family refuses to turn up majority of the principal members of the family present could decide to remove the head of family. In all these, there must be proof that not only was the head of family informed about the purpose of the meeting, but the principal members must also be informed about the agenda for the meeting. Thus where only the head of family was informed, and she appeared at the meeting with some principal members of her gate who were not given notice, I do not think that would suffice as sufficient notice to them. This is because it does not behove the head of family intended to be removed to inform the principal members of the meeting and the stated agenda, but it behoves those members who intend to remove her. In this case, it is the finding of the Court that though there was a gathering at which the defendant was served with the charges in the presence of some principal members of the family present, the meeting did not consider the charges. It is also the opinion of the Court that it behoved on the plaintiff to show that thereafter, when they intended to consider the charges against the defendant at the Ahoba festival, they served notice of the consideration of the charges not only on the head of family to be removed in this case the defendant but on all the principal members of the family comprising of all the four gates. There is no evidence of the said notice to the principal members of the Abena Kumah and Abena Nkrumah gates. This is because the family seems to be divided. However, that cannot form the basis of notifying the defendant only without notifying the principal members of her gate. Even though the family is divided with two gates on the side of the plaintiff and the other two on the side of the defendant, had the principal members of the other gates been notified about the consideration of the charges at the Ahoba festival, and they refused to attend, it this court would have reached a different conclusion altogether. In view of the fact that no notice was given to the principal members of the other gates with the purpose being a consideration of the charges against the defendant at the Ahoba festival, any removal that was done at the Ahoba festival by the plaintiff and the principal members of Adwoa Kwansema gate and Ogyanua gate cannot be declared as an act by a majority of the principal members of the family for this Court to declare it as a valid removal of the defendant. It ought to be noted that this Court has no jurisdiction to determine the charges levelled against the defendant, but the Court has the power to determine whether the right procedure was adopted in a bid to remove the defendant. See the Allottey case already cited supra in which the Court stated; In any event, it is within the domestic jurisdiction of the family to decide on what they regard as good grounds for deposing their head of family and unless there is clear proof of substantial departure from the tenets of natural justice, the courts will not interfere. There must be a substantial denial of natural justice before the Court will strike the family decision down. That said, when the defendant informed the plaintiff and his people that she would meet them at the Ahoba festival, it behoved those wanting to remove her to inform the rest of the family, especially the principal members of the Abena Nkrumah and Abena Kumah gate about the course they intended to take but that evidence is conspicuously missing. What is clear to the Court is that, as stated by PW1, when the defendant's gate was conducting its affairs, they did not inform them. Thus they also did not inform the principal members of the defendant's gate. The evidence of PW1 under cross-examination that they did not inform them corroborates the evidence of the defendant's witnesses that they were not notified of the consideration of the charges and possible removal of the defendant at the Ahoba festival. Thus the evidence of the plaintiff on this issue cannot be preferred over the evidence of the defendant. Considering the analysis on the facts and the evidence, and on the totality of the evidence, this Court holds that the procedures for removing a head of family under Akan custom were not properly followed or adopted in removing the defendant. Therefore, this Court holds that the removal of the defendant is not valid per Akan customary law. On the second issue, with brevity, having held that the removal of the defendant was contrary to law, this court hereby holds that the defendant is still the subsisting head of family of the Asokwa Twidan Royal family of Abura Dunkwa. Consequently, the plaintiff’s reliefs endorsed on the writ of summons cannot be granted by this court in view of the decision given. His reliefs endorsed on the writ of summons and repeated in his statement of claim are all hereby dismissed. Costs of MALIKE AWO WOANYAH DEY JUSTICE OF THE HIGH COURT CAPE COAST 16