FORIWAAH v. FORDWUO

EXTRACTS FROM JUDGEMENT:

Per Lassey J.A: The main reason why I feel bound to agree with the decision taken on the matter by the judge in the court below is that this kind of agreement to divide or share family property has very grave consequences for the members of the family and in that respect strict proof of the performance of the necessary custom required to give it validity ought be shown by the evidence of the parties in order to satisfy the court that all the various sections of the family fully appreciated the consequences of their action and gave it their blessing. An agreement to share or divide X’s cocoa farms involved severance of family ties between these two branches of the Boatemaa family. The result would be that after the performance of the necessary custom to share, members the A family would have nothing to do with each other’s estate, and they would not even attend the funeral of each other. There was no proof that any such custom or something to the effect was done, or that members of the two sections fully appreciated the consequences emanating from the purported division of the family property in this case. It is for these reasons that I concur in the opinion of the learned Chief Justice affirming the view taken on the matter by the court below that the agreement share was not proved conclusively to have been made. Nothing however prevents the two branches now if they are so minded to sever their family connections a take steps with the view to sharing their ancestral properties.”

Per Apaloo J.A: That Sarbah’s treatise [Fanti Customary Laws] is a monumental work and that it would continue to have an honoured place in our legal writing, is plain. It is equally true to say that although Sarbah was principally concerned with the customary law of the Fantis, his work is generally believed to reflect reasonably accurately, the Akan custom in general. But like all good works, it is not without its faults. Mr. Justice Ollennu and Dr.Aboagye …have found cause to criticize some of his pronouncements on the custom. In some other Akan areas, variations of the general custom have grown up which cannot be reconciled with Sarbah’s views of the custom. Unless the judge was certain that the customary rules of succession between the Fantis and Ashanti’s are wholly identical, it would seem to me wrong, to base a decision on this matter on Sarbah’s Fanti Customary Law. The statutory definition of customary law [in the Interpretation Act, 1960 (CA