18 May Accountability Of Family Heads In Ghana: A Doctrinal And Statutory Analysis
Introduction
The institution of the family head occupies a fundamental position within Ghanaian customary law and the administration of family property. Traditionally, the family head, commonly referred to as the Abusuapanyin in Akan communities, serves not merely as a ceremonial leader, but as a custodian and fiduciary entrusted with the control, management, and preservation of family property for the collective benefit of the family.[1] This fiduciary role imposes a corresponding duty of accountability, requiring the family head to act in good faith, transparently, and in the best interests of the family members whose property he administers.
Although the obligation of accountability existed under customary law long before statutory intervention,[2] the enactment of the Head of Family (Accountability) Act, 1985 (PNDCL 114) (“the Act”) seeks to formalize and strengthen the mechanisms through which family heads may be called upon to account for their stewardship. Particularly, the Act provides family members with the legal right to demand accounts from a family head in respect of family property under his control.[3]
This article examines the accountability of family heads in Ghana from both doctrinal and statutory perspectives. It explores the customary law position that existed prior to the enactment of the statute, analyses the provisions and purpose of the Act, and considers the judicial interpretation of accountability by the courts. Through this analysis, the article demonstrates that the law on accountability is ultimately aimed at ensuring transparency, responsible management, and the protection of family property within Ghana’s customary legal framework.
The Pre-Statutory Position Under Customary Law
Before the enactment of the Act, the accountability of family heads was governed entirely by customary law principles. These principles were well established and consistently applied by the courts.
In his opinion in Hansen v Ankrah,[4] Justice Apaloo traced the development of the concept of accountability of family heads to the writings of John Mensah Sarbah,[5] who explained the established customary law position on the matter as follows;
“If the family, therefore, find the head of the family misappropriating the family possessions and squandering them, the only remedy is to remove him and appoint another instead; and although no junior member can claim an account from the head of family, or call for an appropriation to himself of any special portion of the family state, or income therefrom arising, yet the Customary Law says they who are born and they who are still in the womb require means of support, wherefore the family lands and possessions must not be wasted or squandered.”
In explaining the passage from John Mensah Sarbah, Justice Apaloo observed that the statement clearly recognized the distinction within the family structure between senior and junior members. According to him, the senior or principal members ordinarily act together with the family head in matters concerning the management and alienation of family property. However, under Sarbah’s understanding of Fanti customary law, junior members of the family were not entitled to bring an action against the family head for accounts.
The immunity rule, as espoused by Sarbah, gradually received judicial recognition through cases like Pappoe v Kweku[6] and Abude v Onano[7], with the courts accepting the view that a family head could not ordinarily be sued for accountability during their tenure.
This principle was, however, not universally accepted as representing the true customary law throughout Ghana. The rule was increasingly criticized by judges, academics, and legal writers, particularly because it appeared to shield family heads from scrutiny despite their fiduciary position.
A major challenge to the immunity rule emerged in Solomon and Vanderpuye v Botchway[8]. In that case, Bannerman J strongly criticized the principle in the following words;[9]
“I should like to mention that it was Sarbah, in his books, who propounded the principle that a member of the family cannot claim an account from the head of the family. This is an Akan custom and not a Ga custom. With the utmost respect to the learned author, I hold that this principle is contrary to equity and natural justice, and it is not unknown that some unscrupulous and callous heads of families have mercilessly exploited this so-called custom to the detriment of individual members of the family. This is common knowledge.”
Bannerman J argued that the immunity rule was based mainly on Akan customary law and should not automatically apply to other customary systems, such as Ga customary law. He further considered the rule unjust because it allowed some family heads to misuse family property without accountability.
Despite the criticisms, the courts continued for some time to apply Sarbah’s position. For instance, in the case of Heyman v Attipoe,[10] Ollenu J stated that under native custom, a member of a family could not sue the head of family for accounts.[11] Significantly, this case arose in an Ewe area, even though the principle itself originated from Sarbah’s exposition of Fanti customary law. This extension of the doctrine to other customary jurisdictions further attracted criticism.
Indeed, legal scholarship on Ewe customary law directly contradicted the immunity rule. Justice Prof. A. K. P. Kludze, in his work, explained that under Ewe customary law, a family head was accountable for family property under his management and could be compelled through legal proceedings to account where necessary.[12] According to him, accountability formed part of the ordinary obligations of a family head and was enforceable by members of the family.[13]
Prof. Kludze’s position received judicial support in Tamakloe v Attipoe.[14] In that case, family members successfully sued the head of family and a successor for accounts relating to family property. The West African Court of Appeal rejected the argument that junior members lacked the right to demand accountability. Coussey JA held that family heads occupied a fiduciary position and were therefore accountable in much the same way as trustees under English law. The case established two important principles: first, that a family head is a fiduciary; and second, that a family head is not immune from a suit for accounts.
The courts became increasingly uncomfortable with the immunity rule, and in later judicial discussions, particularly in Hansen v Ankrah,[15] the Supreme Court subjected the Sarbah position to detailed scrutiny. The Court questioned the policy justification for protecting a fiduciary from accountability and emphasized that a family head should not be permitted to use his position as a shield against scrutiny for possible mismanagement of family property.
The Supreme Court further noted that the law must adapt to changing social conditions. It observed that insulating family heads from accountability encouraged abuse of fiduciary obligations and undermined justice.
The majority decision in Hansen v Ankrah[16] indicated that the alleged immunity rule recognized by the courts was limited in scope. According to the Court, the rule only protected an incumbent head of family from an action for accounts brought by a family member where the head had not first been removed from office. The immunity, therefore, did not extend to other actions relating to accounts or proceedings instituted for the protection and preservation of family property.
The Statutory Intervention: The Head of Family (Accountability) Act, 1985 (PNDCL 114)
The decision in Hansen v Ankrah[17] prompted the then Provisional National Defence Council (PNDC) to promulgate the Act.[18] These provisions have been made applicable to the Land Act with necessary modifications.[19]
The Act was promulgated to provide a formal legal framework for accountability of family heads, clarify their scope of duties, and establish a judicial enforcement mechanism to ensure accountability.
Section 2 of the Act is the cornerstone of the Act. It grants any member of a family the right to apply to a court to compel a family head (or former family head) to render accounts of family property under his control, and income derived from such property.
It provides as follows;
“2. Application to Court for Order to Account
- Where a head of family fails or refuses to render account or file an inventory of the family property, a member of the family to which that property belongs who has or claims to have a beneficial interest in the property, may apply by motion to a Court for an order compelling the head of family to render account or file an inventory of the family property to the family.
- An application under subsection (1) shall not be entertained by the Court unless the Court is satisfied that the applicant had taken steps to settle the matter within the family and that the attempts had failed.”
The law generally recognizes that the head of a family enjoys some protection from immediately being called to court to account before the Court. However, under customary law in Ghana, the head of family remains accountable to the family, including both living members and ancestors.
If the head of family refuses to account to the family, a family member can go to court for an order compelling him to do so. The court will only step in if it is shown that the family has made attempts to resolve the issue internally without success. In those circumstances, the court may order the head of family to provide an account.
Judicial Interpretation of “Accountability”
The concept of accountability, particularly in relation to the management of family property under customary law, has been clarified through judicial decisions. The Court has played an important role in explaining what is meant by a head of family being “accountable,” ensuring that the term is not narrowly or mistakenly understood.
The leading authority on this issue is the case of Afua Sarpong v. Opanin Frimpong,[20] where the Court provided important guidance on the scope of accountability. Piesare JA explained Accountability in the following terms;[21]
“Accountability envisaged under this law is only a reiteration of the position under customary law. It does not simply mean checking monies that have accrued into the pocket of the successor, and how such monies have been used. It rather relates to the successor’s overall stewardship, control, and management of the family property in his possession.”
Essentially, Accountability under the Act goes beyond simply requesting that the head of family (or successor) show how much money he has received and how he has spent it. That would be too basic an approach. Instead, the court is emphasizing a much broader responsibility, where the head of family is expected to account for the way he has generally managed all family property under his control. This includes how he has handled, preserved, used, and protected the property as a whole.
Building on this principle, the Supreme Court in the case of Agyemang (Substituted by Nana Banahene) and Others v Anane,[22] has further clarified the fiduciary nature of the head of family’s role. The Court reaffirmed the principle that a customary successor or head of family must not, under any circumstance, set up an interest that is averse to that of the family. The Court further held that any breach of this fiduciary duty entitles a beneficiary family member to bring an action against the head of family, who is regarded as holding the family property in trust for the benefit of all members.
Conclusion
The law on Accountability of family heads in Ghana has evolved from a restrictive customary rule, which largely shielded heads of family from being sued for accounts, to a modern position that recognizes their fiduciary responsibility. The Court has further clarified that Accountability is not just about financial reporting or accounting but extends to the overall management and stewardship of family property.
In essence, the current legal position treats the head of family as a fiduciary or trustee who must manage family property in the best interests of all members and can be held legally accountable for any breach of that duty.
Author:
Ernest Kofi Boateng
Legal Associate
[1]Yaw D Oppong, Contemporary Trends in the Law of Immovable Property in Ghana (2nd edn, Black Mask Ltd 2019) 684 para 29
[2] John M. Sarbah, Fanti Customary Laws, (3rd edn), 90
[3] Head of Family (Accountability) Act, 1985 (PNDCL 114), Section 2
[4] [1987-88] 1 GLR 639-726
[5] First Ghanaian to qualify as a barrister and called to the English Bar at Lincoln’s Inn on 4th September 1887
[6] (1924) F.C. ’23-’25, 158
[7] (1946) 12 WACA 102
[8] (1943) 9 W.A.C.A. 127
[9] ibid
[10] (1957) 3 W.A.L.R. 86
[11] ibid at 88
[12] Kludze, Ewe Law of Property, (2nd edn, Kludze Publications) 91
[13] ibid
[14] West African Court of Appeal, Judgment delivered on 22nd June 1952 (unreported)
[15] supra (n. 4)
[16] ibid
[17] ibid
[18] supra (n1), 688
[19] Land Act, 2020 (Act 1036), Section 13(5)
[20] (2008) JELR 66632 (CA)
[21] ibid
[22] [2013-2015] 1 GLR 131