Quashie Vrs Boahemaa ( GLR 727, CA.) [1985] GHACA 1 (25 July 1985);

ADOPTION - Customary adoption - Essential requirements - Unborn children - Primary facts all pointing to adoption - Trial judge rejecting evidence on ground that adoption generally relating to persons in being - Appellate court to hold "unborn children" adopted - Rationale for adoption   Quashie v Boahema   [1987-88] 1 GLR 727, CA.

QUASHIE AND OTHERS v. BOAHEMA AND ANOTHER [1987-88] 1 GLR 727-739

COURT OF APPEAL, ACCRA

25 JULY 1985

APALOO C.J., MENSA BOISON AND ABBAN JJ.A.

Practice and procedure—Pleadings—Customary adoption—Plaintiffs basing their claim to succeed their mother K on their status as daughters and not on adoption of K and the other "pre-marital" children—Plea obliquely raising issue of K's succession—Defendants founding counterclaim on denial of K's adoption—Summons for directions providing for determining "any other issue raised on the pleadings"—Cross-examination by defence counsel drawing answers material to adoption—Whether trial judge erred in determining issue—Evidence Decree, 1975 (N.R.C.D. 323) s. 6.

Adoption—Customary adoption—Essential requirements—Unborn children—Primary facts all pointing to adoption—Trial judge rejecting evidence on ground that adoption generally relating to persons in being—Appellate court holding "unborn children" adopted—Rationale for adoption.

Evidence—Traditional evidence—Evaluation of—Customary adoption—Consent of family of adoptor—Plaintiff’s alleging adoption of their mother (K) by B. on his marriage to N (K's mother) in 1898—Defendants denying B’s family consented to adoption—Evidence that B renaming K after him—Effect—S, successor to B as head of family, ensuring succession to properties of B and N's son as he would those of members of B’s family appointing K. to inherit her half-brothers' properties—Whether appointment acknowledgment by B’s family that K adopted by B

HEADNOTES

N, a woman from a patrilineal family at Obosomase, had three daughters, including K, with a man from Obosomase but they never got married.  In 1898 B, a man from a matrilineal family in Koforidua, married N and took her with her three children to Koforidua.  Subsequently, B and N gave birth to four sons; M, O, D and Q In their lifetime the sons amassed considerable wealth.  On B's death his nephew S was appointed his customary successor and thus became head of B's family.  S ensured that on the death of any of B's sons the oldest among the surviving brothers inherited him.  On the death of Q, the last brother, S appointed K, his half-sister, to inherit the properties.  On the death of K in 1978 the defendants, members of B's family, purported to appoint the first defendant, a son of Q, to succeed to the property.  The plaintiffs, daughters of K, claiming that they were entitled as of right to inherit their mother brought action against the defendants for, inter alia, a declaration that the appointment of the first defendant who was not a member of their family was null and void.  The case for the plaintiffs was that on the marriage of B to N in 1898, B at the invitation of the then head of N's family adopted all the three "pre-marital" children of N. and also all the prospective children to be born to him and N and made them members of his family.  The defendants on the other hand contended that only the prospective children of the marriage were adopted.  And thus on the death of Q, B's line became extinct and their (the sons') property devolved on B's family.  They [p.728] further claimed that S allowed K to succeed to the property only because she pleaded that she was destitute.  Although they claimed that K accounted to S they led no evidence to establish that.  The second defendants witness however corroborated the plaintiffs' claim that B had adopted both the pre-marital children of N and also their prospective children.  The trial judge gave judgment for the plaintiffs on the ground, inter alia, that since adoption could only be in relation to persons in being only the "pre-marital" children of N were adopted by B. In their appeal against the decision, the defendants contended, inter alia, that the trial judge by accepting the evidence of the second defendant witness as corroborative of the adoption, had substituted a fresh case for the plaintiffs who did not lead any direct evidence on the adoption issue.  They further contended that there was no proof that B's family consented to the adoption of the pre-marital children of N and that consent was a necessary condition for the adoption to be effective.

Held, dismissing the appeal:

(1) it was right to concede that the plaintiffs never pleaded the adoption of N's "pre-marital" children as the basis of their claim; they rather founded their right to inherit K and her predecessors primarily by their status as daughters.  But by that stand the plaintiffs obliquely raised the issue of K's succession to the properties left by Q. Additionally, the defendants based their counterclaim on the case that the pre-marital children of N were never adopted.  All that put the matter of the adoption or not of the three “stepchildren” in issue.  That was especially so as the summons for directions made an issue of "any other issues raised in the pleadings." Furthermore, even without that omnibus issue, the record showed that it was the never ending cross-examination by the defence counsel that drew answers material to the adoption of the "stepchildren." The trial judge was mindful of his duty in considering such type of evidence, otherwise let in without objection or drawn out from a party in cross-examination by reminding himself of the provisions of the Evidence Decree, 1975 (N.R.C.D. 323) with particular reference to section 6 thereof.  That was evidence which properly became part of the plaintiffs' case.  Dam v. Addo [1962] 2 G.L.R. 200, S.C., cited.

(2) In relying on his experience that the known a cases of adoption generally related to persons in being, the trial judge fell in error.  He was obliged to hearken to the evidence before him.  For undue adherence to concepts as used in other legal systems might be misleading when dealing with concepts of customary law.  A finding of fact was, as a rule, the province of a trial judge, but as the trial judge had erred in principle, and since the primary facts all pointed to but one way, it would be held that on the evidence there was customary adoption as well of the "unborn children" by B.

Per Mensa Boison J.A.: There was, I think good reason and common sense for the head of Yaa Nkrumah’s family to have "bestowed" the prospective children of the marriage upon Kofi Boahene.  Obosomase was a community of patrilineal succession.  By marrying into the matrilineal community of Koforidua, Yaa Nkrumah was, prima facie, denying her prospective children of any future importance, either at Koforidua or at Obosomase.  The wisdom of experience might have dictated to Odei Kwatia, the head of Nkrumah's family, to strike a bargain, while Boahene was infatuated with his new-found love.  It was thus done to avoid a perilous and insecure future for her prospective children of the marriage.

(3) It was conceded that the plaintiffs gave no direct evidence that B's family consented to the adoption of the "stepchildren" of N. The consent of the family, if any, must therefore be discovered from all the circumstances of the [p.729] case, including events subsequent to the occurrence alleged, from the records.  There was uncontested evidence that the oldest of the stepdaughters was renamed by B after himself at the very inception of their coming to Koforidua. If B was merely desirous of perpetuating his name, there was no reason why he could not wait till he had issues of his own with N. There could be no other explanation for the renaming of the stepdaughter, but for the reason that the lot were then his own.  Besides, it was inconceivable that the renaming ceremony was not a family affair, with the foreknowledge and consent of the family.  For names of family personages such as B's were not lightly traduced.  Furthermore, the uncontradicted evidence was that under S as head of family, the usage was that on the death of a son of B, the next in line of the surviving brothers was appointed successor.  There was thus evidence to support the trial judge's finding that the succession of K to the properties on Q's death, was by appointment as successor in conformity with that usage and that the succession of K was as of right.  S's appointment was conduct ante litem K's succession and was thus a recognition and acknowledgment by S and the family of the status of K as a sister of the half-blood to Q. It was also a recognition of her status as an adopted daughter of B. Adjeibi-Kojo v. Bonsie (1957) 3 W.A.L.R. 257, P.C.; Ntsin VII v. Dougan [1960] G.L.R. 26 and Tanor v. Akosua Koko [1974] 1 G.L.R. 451, C.A., cited.

CASES REFERRED TO

(1) Dam v. Addo [1962] 2 G.L.R. 200, S.C.

(2) Ntsin VII v. Dougan [1960] G.L.R. 26

(3) Adjeibi-Kojo v. Bonsie (1957) 3 W.A.L.R. 257, P.C.

(4) Tanor v. Akosua Koko [1974] 1 G.L.R. 451, C.A.

NATURE OF PROCEEDINGS

APPEAL against the decision of the High Court, Koforidua giving judgment for the plaintiffs in an action to declare null and void the appointment of a son of the plaintiffs' uncle as customary successor to inherit the properties of the plaintiffs' deceased mother and her predecessors. The facts are sufficiently set out in the judgment of Mensa Boison J.A.

COUNSEL

S. K. Akoto for the appellants.

W. A. N. Adumua-Bossman for the respondents.

JUDGMENT OF MENSA BOISON J.A.

Mensa Boison J.A. delivered the first judgment at the invitation of Apaloo C.J.  This appeal arises from the decision of the High Court, Koforidua dated 10 August 1984 in a dispute as to who was entitled, under customary law to succeed to the estate of one Ama Korantema.  There is some limited area of agreement on the facts as stated in the pleadings and as emerged from the evidence of the parties, but the facts in controversy are sharp and crucial.  The two plaintiffs, who sued in a representative capacity, are the daughters of Ama Korantema, who lived in Koforidua and whose death in August 1978 gave cause for this litigation.

[p.730]

About the year 1898, one Kofi Boahene of Koforidua married from Obosomase in Akwapim, a woman called Yaa Nkrumah.  She was then already a mother of three children (five according to the plaintiffs).  Importance attaches here only to the fact that Yaa  Nkrumah was accompanied to her marital home at Koforidua by these children of hers; among whom was Ama Korantema, aforesaid.

Besides one daughter, Yaa Nkrumah was to have four male children by Kofi Boahene.  It is agreed that at some stage of their marriage Kofi Boahene converted their customary marriage into one under the Marriage Ordinance.  Together with her "pre-marital" children and those by Kofi Boahene, Yaa Nkrumah was to make Koforidua her permanent home.  Her daughter by Kofi Boahene appears to have died early in life; otherwise her children, particularly Ama Korantema and the four sons by Boahene, grew to ripe ages and survived the couple.  The sons of Boahene by Yaa Nkrumah were these; Kwabena Mensah, Kwabena Osei, Isaac J. Darko and D. B. Quarshie.

On the death of Kofi Boahene his nephew, Yaw Sarfo, was appointed successor and thus became the head of the Boahene family.  Now it was the case of the defendants that at Kofi Boahene's marriage at Obosomase, the head of Yaa Nkrumah's family declared that he had bestowed any children to be born of the marriage for ever to Kofi Boahene, and so will belong to Kofi Boahene's maternal family.  Boahene was said to have accepted this condition of the marriage, and signified same with due customary performance. The plaintiffs do not deny the fact of adoption in respect of the prospective children. What they insist on, is that the adoption was in respect of children already begotten by Yaa Nkrumah as well.

Now in their lifetime, the four sons of Boahene must have been men of industry and husbandry, as measured by their worldly possessions.  An affidavit deposed to by the original first defendant, Kweku Boahene, in the course of this action, disclosed that between the brothers they left six houses in New Koforidua and two farms in the area.  There was nothing to show that these were not substantial properties by Ghanaian standards.  Acting, no doubt, on the premise that the Boahene sons had been assimilated into Boahene's family, Yaw Sarfo, as head of family, saw to it that on the death of a Boahene son, the eldest among the surviving brothers was appointed successor to such deceased.

It is the case of the defendants that when D. B. Quarshie, as the last surviving of the brothers, died their lineage was thereby extinct, and, Yaw Sarfo appointed himself as successor to the properties of the Boahene sons last held by D. B. Quarshie.  However, on supplication from Ama Korantema and her sister Afua Boakyewaa, both daughters [p.731] of Yaa Nkrumah, that they were old and without means of maintenance, Yaw Sarfo handed over the properties of the Boahene sons to them to manage and provide for their living; but accounting to him Yaw Sarfo.

The plaintiffs deny this version.  Their case is that on the death of D. B. Quarshie, the last of the brothers, Ama Korantema as a sister of the half-blood maternally, was appointed successor and inherited the properties in her own right.  In particular, it was denied that she did account to Yaw Sarfo.

It seems her sister Afua Boakyewaa must have predeceased Ama Korantema, who remained in charge of the properties until her death in August 1978, as before mentioned.  It was then that in September 1978, the second and fourth defendants purported to appoint the first defendant as successor to Ama Korantema and to the said properties.  It is the version of the defence that in actual fact the fourth defendant was the one appointed successor at the family meeting.  But he nominated the first defendant, a son of D. B. Quarshie, to deputise for him.

The plaintiffs, as daughters of Ama Korantema, would have none of it all the same.  They could not understand why a son of their uncle and therefore a stranger to their family, should be appointed successor to their deceased mother. They thought the conduct of the defendants was presumptuous. They registered their resentment in immediately instituting this action and prayed the court for (i) a declaration that the appointment of the first defendant as customary successor to inherit the family properties of the late Ama Korantema and her predecessors was contrary to custom and therefore null and void; and (ii) damages of ¢10,000 against the second, third and fourth defendants severally and jointly for usurping their family rights of such appointment.

To this claim, the defendants resisted in a 36 paragraph defence in addition to their counterclaim for:

"(a) declaration that the properties of the late D. B. Quarshie (and his brothers) are properties over which the family of the late Kofi Boahene is the rightful authority to appoint a successor;

(b) an order of perpetual injunction restraining the plaintiffs, etc from interfering with the said properties; and

(c) an order for account of profits and rents . . .”

For the contest, the issues the court was called upon to resolve were settled in the summons for directions.  What seem to be material are:

"(a) Whether or not the plaintiffs' mother, Ama Korantema, succeeded her late brothers, namely Kwabena Mensah and others.

[p.732]

(b) Whether or not Ama Korantema was entitled to succeed to the estate of her said deceased brothers.

(c)  Whether or not Yaw Sarfo appointed himself successor to D. B. Quarshie.

(d) Whether or not the purported appointment of the first defendant by the second, third and fourth defendants as successor to the plaintiff’s deceased uncles and Ama Korantema is contrary to Akan custom . . .

(e)  Any other issues raised on the pleadings."

The learned judge decided the principal issue on the claim in favour of the plaintiffs, and so declared the appointment of Kweku Boahene, the first defendant, as null and void.  But the court by holding that Kofi Boahene's family were the rightful authority to appoint a successor to the aforesaid properties, subject to the reservation as to the class of appointees, by inference dismissed the relief for damages against the three latter defendants.  Similarly the court refused to accede to the plea for an order of perpetual injunction against the plaintiffs.

The defendants by counsel have impeached the judgment of the trial court on a number of grounds, including additional ones for which leave to argue was granted.  As may be expected the matters in controversy have turned out to be crucial for the decision of the trial court.  The first attack taken by counsel was on the finding that the adoption was in respect of Yaa Nkrumah's "pre-marital" children.  It is said that as the plaintiffs neither pleaded nor made the point an issue, the court was in error in so finding in the plaintiffs' favour.  It was indeed contended that in so holding, the trial court substituted by itself a fresh case which the plaintiffs had not put forward.

It is right to concede that the plaintiffs never pleaded the adoption of Yaa Nkrumah's then existing children in their statement of claim.  For there, the plaintiffs founded their right to inherit Ama Korantema and her predecessors primarily by their status as daughters.  For whether by the matrilineal system as operates in Koforidua, or under the patrilineal succession as obtains at Obosomase, I think a deceased mother's property is succeeded to by her children, although in a proper case a nominal successor may be appointed to abide their majority.  But by that stand the plaintiffs obliquely raised the issue of Ama Korantema's succession to the properties left by D. B. Quarshie.  For as I see it the defendants' based their counterclaim plump on the case that the "pre-marital" children of Yaa Nkrumah were not adopted.  The operative parts of the statement of defence are borne out by their paragraph (13), namely: "This adoption of the children to be born of the marriage however, did not extend to the three step-children mentioned in paragraph (9) above."

[p.733]

To which averment the plaintiffs by their reply, paragraph (6), put the-defendants to proof, namely, "the plaintiffs make no admission to paragraphs (10), (11), (12) and (13) of the defence and put the defendants to strict proof of their averments herein." All this to my mind put the matter of the adoption or not of the "'three step-children" in issue.  This is especially so as paragraph (g) of the summons for directions made issue of "Any other issues raised in the pleadings." Even without that omnibus issue, the record shows that it was the never ending cross-examination by the defence counsel that drew answers material to the adoption of the "stepchildren." In the record of appeal there appears the following dialogue while the second plaintiff was being cross-examined:

"Q At the time Kofi Boahene was bringing Yaa Nkrumah to Koforidua, the head of Yaa Nkrumah's family told Boahene that any children born out of the marriage should be bestowed to Boahene's family at Koforidua?

A  The head of family said so but not only that, he asked Boahene to adopt the other children whom Nkrumah had had and so they were brought with them to Koforidua and were adopted and Boahene named the eldest child Akua Boahemaa.  When I say the eldest child I mean Ama Korantema's eldest child."

The learned judge was mindful of his duty in considering such type of evidence otherwise let in without objection, or drawn out from a party in cross-examination, by reminding himself of the provisions of the Evidence Decree, 1975 (N.R.C.D. 323) with particular reference to section 6. Now I think the defendants do the trial court injustice to complain on this aspect of the judgment.  For in my judgment, it was evidence which properly became part of the plaintiffs' case.

Counsel had a more direct missile of attack on the merits.  This was the combined effect of the original ground (4) and additional ground (2).  The gist of these was that the learned judge wrongly relied on the evidence of the second defendant witness in establishing adoption of the ‘stepchildren" as proof of the plaintiffs' case, when in fact the plaintiffs' evidence was that both the "stepchildren" and the "unborn children" were adopted.  Reference to the evidence of the second plaintiff under cross-examination as quoted above shows her assertion that both the "unborn" and "the living" children of Yaa Nkrumah were adopted.

What the second defendant' witness also said, material to this contention, was as follows:

[p.734]

“When Papa Boahene came for the wife the children indicated coming with the mother and left with her.  Thereafter the family informed Papa Boahene that if you take an animal it includes its tail and other parts thereof, and so it was arranged that proper care was taken of them and so a little custom was performed towards that, and he took them away . . . Those he brought to Koforidua were those on whom custom was performed."

That was a witness of the defence.  She was not treated as a hostile witness and so counsel cannot impeach her evidence. Indeed, he has not attempted to do so.  All he says is that the judge in accepting that evidence and holding to that effect has substituted a fresh case for the plaintiff; relying on Dam v. Addo [1962] 2 G.L.R. 200, S.C.  The case is well-known and I need not enter upon a discourse of it.  It is only necessary for me to point to further evidence on record to show that the second defendant witness did not limit herself to the adoption of the living children only but to those children yet to be born.  The second defendant witness continued: "but those he had later were his and there was no dispute whatsoever about them.  The five children were entirely for him."

This piece of evidence by the second defendant witness agrees with the very pivot of the defendants' counterclaim.  But the second criticism was that if the second defendant witness indeed testified to the "stepchildren" as well as "those to be born" being the subject of adoption, then it was wrong for the learned judge to have picked only the evidence relating to the adoption of the "stepchildren" as the case for the plaintiff.

I think there is substance in this contention.  There was no particular reason given by the learned judge which warranted his rejecting the other half of the evidence of the second defendant witness.  The second plaintiff in her evidence under cross-examination, as already quoted, agreed that the prospective children were likewise "adopted." That was the defence's case, but, to the exclusion of the stepchildren who were also adopted; that should be strong corroboration for the plaintiff.  Indeed, it relieved the judge from investigating the truth any further.  In relying on his experience that the known cases of adoption generally related to persons in being, I respectfully think the learned judge fell into error.  He was obliged to hearken to the evidence before him.  Undue adherence to concepts as used in other legal systems, may be misleading when dealing with concepts of customary law.

There was, I think, good reason and common sense for the head of Yaa Nkrumah's family to have "bestowed" the prospective children of the marriage upon Kofi Boahene.  Obosomase was a community of [p.735] patrilineal succession.  By marrying into the matrilineal community of Koforidua, Yaa Nkrumah was, prima facie, denying her prospective children of any future inheritance, either at Koforidua or Obosomase.  The wisdom of experience might have dictated to Odoi Kwatia, the head of Nkrumah's family, to strike a bargain while Boahene was infatuated with his new-found love.  It was thus done to avoid a perilous and insecure future for her prospective children of the marriage.

A finding of fact is, as a rule, the province of a trial judge.  But as I respectfully take the view that the learned judge erred in principle, and since the primary facts all pointed but one way, I would hold that on the evidence there was customary adoption as well of the "unborn children" by Boahene.

This assumes that we read the evidence of the second defendant witness alright.  For what counsel submitted next was that the evidence of the second defendant witness which so enamoured the learned judge was all misinterpreted.  What counsel says is that a careful reading of the evidence of the second defendant witness really meant that the stepchildren were just permitted to accompany their mother away and be fed from the table of the stepfather.  But that in my judgment does not explain why Boahene according to the second defendant witness had to go to the extent of providing money, drinks and a sheep "for a little custom to be performed." Further, against the background that the former "husband" of Yaa Nkrumah did not care for the children and “so the children had no family (i.e. patrilineal) at Obosomase to go to", I cannot but share the learned judge's finding that Boahene on the invitation of Odoi Kwatia demonstrated his willingness and at Obosomase did customarily adopt the stepchildren as well.

Counsel next submitted that in spite of the evidence of the second defendant witness, the plaintiff failed to prove the consent of the father of those "stepchildren" to have them adopted.  The background of the original home of the stepchildren at Obosomase, as given by the second defendant witness, is a necessary consideration in dealing with this submission.  According to her:

“she (Yaa Nkrumah) had had issue with someone prior to her marriage to Boahene . . . The three children in their lifetime were in their mother's family at Obosomase.  There was no proper marriage and so they were not well looked after.  The father (i.e. of the children) hails from Obosomase . . . When they came to Obosomase, they belonged to their father's family; but because their father did not care for them they had no family."

That in my view was as much as to say that the father did not own them as his children.  One can safely say that Odoi Kwatia, as the head [p.736] of Yaa Nkrumah's family, had for all practical purposes assumed parental control, apart from what their wayward mother could contribute for their upkeep.

This sort of situation is not unknown in many families in this country, whether patrilineal or matrilineal.  In such cases there would be for all practical purposes no "father" from whom such consent may be forthcoming or withheld.  It is reasonable then to look to the person in loco parentis to the children.  That was provided in the person of Odoi Kwatia as inferred from the evidence.  I find this to be the submission with the least merit.

Yet another ground of counsel's attack on the adoption, was that there was no evidence that Boahene’s family assented to their adoption and in fact accepted them.  Counsel pointed out that it was not sufficient for Boahene only to manifest his intention to adopt the stepchildren. The plaintiffs must establish that the family of Boahene consented to their adoption into the family. It may be noticed that including the second defendant witness, who gave her age as 80 years, the evidence pertaining to the adoption of the stepchildren fall within what has come to be accepted by the courts as traditional evidence.  Like all unwritten records, tradition has been said to be meteor-like.  Its brilliance is but momentary, and the accuracy of its dim recollection is often be set with controversy.  The phenomena has found expression in the case of Ntsin VII v. Dougan [1960] G.L.R. 26 (as per the headnote) that:

"where opposing parties base their respective claims on conflicting traditional histories, each party advancing his history in good faith, superior probability as between the histories must be arrived at by reference to relevant facts in recent years' as established by evidence."

See also Adjeibi-Kojo v. Bonsie (1957) 3 W.A.L.R. 257, P.C.

On this aspect of the case, I concede that the second plaintiff gave no direct evidence.  As it happens that Boahene's family are now arraigned against the "stepchildren" the motive to suppress the facts is natural.  The consent of the family, if any, must therefore be discovered from all the circumstances of the case, including events subsequent to the occurrence alleged.  There is uncontested evidence that the oldest of the stepdaughters was renamed by Kofi Boahene as "Akua Boahema"; that is after himself at the very inception of their coming to Koforidua.  That name must have remained with her, and it is not without significance that the first plaintiff, the eldest daughter also of Ama Korantema, prosecutes this action by that name.  It is part of the defence that Boahene informed his family of the would-be children of his stranger-wife having been "bestowed" to him.  The family gave its [p.737] assent.  If Boahene was merely desirous of perpetuating his name why could he not wait till he had issue of his own with Yaa Nkrumah?  Could there be any explanation for renaming his stepdaughter, but for the reason that the lot were now his own?  Further it is inconceivable that the remaining ceremony was not a family affair, with the foreknowledge and assent of the family.  After all names of family personages, such as Boahene's are not lightly traduced.

There was an affidavit from the defence which sought to say that building a separate house for these stepdaughters was evidence that Boahene did not regard them as his children by adoption.  No period was given as to when the house was built.  It could be explained on various grounds.  From all accounts Kofi Boahene must have been a man of considerable means.  To him it might well have been for the convenience of the accommodation of his entire family. By the sequence of events the three stepdaughters were older than his children by Yaa Nkrumah. Quite apart from such a house being an ultimate provision for Yaa Nkrumah herself in the future, as a widow, it would for the present give the three stepdaughters independent residence as they grew up and begot children. I am unable to see that the building of that house was inextricably referable to the interpretation that the three stepchildren were not adopted.

Lastly, the uncontroverted evidence was that under Yaw Sarfo as head of family, the usage was that on the death of a Boahene son, the next in line of the surviving brothers was appointed successor. The learned judge found that the succession of Ama Korantema to the properties, on D. B. Quarshie's death, was by appointment as successor in conformity with that usage.  By his finding, the learned judge held that the succession of Ama Korantema was as of right.  And I think there was evidence for that finding. Yaw Sarfo's appointment of Ama Korantema as successor was conduct ante litem.  In my judgment her succession was a recognition and acknowledgement by Yaw Sarfo and the family of the status of Ama Korantema as a sister of the half-blood to D. B. Quarshie.  It was also a recognition of her status as an adopted daughter of Boahene.  The evidence was that Yaw Sarfo died two years after the properties had been given to the charge of Ama Korantema.  There is no evidence that she rendered any account to Yaw Sarfo during that period, as the defence now say she was expected to do. There is no evidence either of such accounting being rendered to Sarfo's successor.  The truth is that it was after Ama Korantema's death that a plan by the family to gain control over the properties of the sons of Boahene must have been conceived.

Singly by themselves, the various acts and events by which I find the consent of the family established, might be of no striking impact. The cumulative effect appeals to me as very weighty.  The conclusion [p.738] on the status of Ama Korantema, must dispel the contention that the family of Boahene did not assent to the adoption.

The case of Tanor v. Akosua Koko [1974] 1 G.L.R. 451, C.A., where the law on the subject was most exhaustively reviewed, may be said to be the leading case of recent times.  In its judgment read by Apaloo J.A. (as he then was) the former Court of Appeal at 463 stated succinctly the essentials of a customary adoption thus:

"Customary adoptions in Ghana are infrequent if not rare, and it is impossible to say with certainty what formalities have been served in the past.  But common sense would demand that before a stranger is adopted, the families concerned should know about it. Whether a cow a goat or fowl is slaughtered is a secondary matter.  Again the giving of a family name may be desirable but not essential.

It seems to me that, notwithstanding the rites to be performed in any particular community in order to constitute a valid customary adoption, the intention to adopt must not only be clearly demonstrated, but the adopters must also do so with the consent of their family and in the sight of others."

From this statement of law I am of opinion that the conclusion of the trial judge can be supported.

Lastly, counsel pressed upon us that references by the second defendant witness as being the customary successor of Ama Korantema and her assertion that the plaintiffs were members of the family at Obosomase, were contrary to the finding of the court on the adoption. According to the second defendant witness Ama Korantema and her sisters were not owned by their vagabond father and so had no family. It is difficult to see how they could belong to his family.  In any case, the token of being appointed customary successor need not derogate from the legal concept of customary adoption.  It is like the conversion of a heathen to Christianity.  It will hardly stop him from pouring libation to the spirits of his ancestors.

The incidence of customary adoption was not in issue at the trial.  But a mistaken view of it, cannot in my opinion detract from its force and effect.

As  a last straw, counsel called attention to the pleadings that Boahene had later celebrated an Ordinance marriage with Yaa Nkrumah.  And that under the law that affects the distribution of the self-acquired properties of the sons of Boahene.  The evidence is not clear in what year D. B. Quarshie died.  However, the successorship of Ama Korantema has intervened up to August 1978.

[p.739]

Not only is there not enough material before us; but one is reminded that this is a succession suit.  It is for the above reasons that I should dismiss the appeal.

JUDGMENT OF APALOO C. J.

I concur and have nothing more to add.

JUDGMENT OF ABBAN J. A.

I also concur.

DECISION

Appeal dismissed.

L. K. A.