TRADITIONAL LAW AND PROCEDURE IN THE ROYAL COURT
In this Lecture we consider briefly the nature of traditional law among the Gá-Dangme and the role of the king in maintaining a system of law and order. In view of the customary nature of a large corpus of traditional law, some attention is paid to the dispute settlement process before heads of families and other traditional functionaries. Overall, a picture emerges of a well-organised legal structure in which both law-giving and sanctions play a vital role. We, however, leave entirely to one side the vast amount of customary case-law developed by the Ghanaian courts since colonisation in 1874. We believe that in this way the nature of Gá-Dangme customary law can be distilled from the actual practices of the people unpolluted by the various concepts which have crept into the official customary law of Ghana.
It is widely acknowledged that the principles laid down by Sarbah, particularly in his Fanti Customary Laws, have shaped the nature of Ghanaian customary law. At the same time it cannot be gainsaid that the principles of official customary law formulated by the courts, partly through reliance on Sarbah’s work, derive largely from cases involving a disproportionate number of Gá-Dangme. Uncritical reliance on the decisions reached in such cases would therefore have the effect of importing Sarbah’s notions into Gá-Dangme traditional law.
To appreciate the role of the monarch in the final formulation of law, it is important that we start our discussion by first considering the nature of customary law in traditional Gá-Dangme society and to consider the quarter as a community. In common with most other peoples, the existence of well-recognised rules of conducting affairs has been a feature of Gá-Dangme society. Many of these rules which had existed from time immemorial came to be recognised as the rules of traditional or customary law. They applied to all members of the group as well as to newcomers and others involved in business and other transactions with members of the group. Sarbah noted:
“Every new member of the family or village community at his birth, or admission by purchase…finds existing general usages which regulate his rights and obligations, and to which, under pressure of circumstances or the popular sanction, as already stated, he must submit. As the original community gets larger, as aforesaid, many of the rules formerly observed within a small circle of persons gradually acquire a wider operation, moulding and controlling the habits of the people within its sphere.”
The traditional law or blema kusum of the Gá-Dangme may have in the distant past developed in the manner described by Sarbah; however, it is overlain by the commands of Ayi Kushi which are in turn supplemented by the legislation mla of other monarchs. The commands of Ayi Kushi are nevertheless so generalised into the traditional law administered by the chief and agyinafoi (elders) that is only by careful study that one discovers that the notion of dzaleh or fairness, so pervasive in Gá-Dangme concept of law in fact constitutes a summary of Ayi Kushi’s laws.
Furthermore, a general distinction was made between binding rules and non-binding rules; corresponding roughly with rules intended to have legal effect and other rules having a merely moral consequence. Rules of morality (dzenba) provide a context in which household disputes are resolved, exerting all sorts of non-legal pressures on the disputants. On the other hand, public disputes are mainly settled through traditional law based largely on precedent.
Most of the binding rules arose from past disputes involving members of the quarter and were fairly well-defined. Common sense and notions of fairness were critical in the initial formulation of the rules of traditional law, but as they came to be applied as precedent by persons acting in a judicial capacity, they took on a legal character all of their own. The major rules of traditional Gá-Dangme law cover the areas of nationality, land, chattels, marriage, testamentary disposition, defamation and modes of enforcing payment of debts.
4.1 The law of persons
Since in ancient Gá-Dangme law applied principally to persons belonging to the Gá-Dangme nation particular rules were formulated to define who was a Gá-Dangme. A Gá-Dangme person was generally recognised as one who being born of Gá-Dangme parents, belonged to a particular weku or extended family. Ordinarily, it was easy from Gá-Dangme nomenclature to establish the address, antecedents and lineage of the individual. The Gá-Dangme name was coded in such a way that people familiar with the society could tell immediately the quarter and lineage from which an individual hailed as well as his rank in the immediate family.
Thus, an individual named Kotey is easily recognizable as a first born male hailing either from the Jorshi lineage of Asere in Gá Mashi or from Klan-naa (Hyena-side) in Labadi. Such an individual was clearly subject to Gá-dangme traditional law. Persons of part Gá-Dangme origin were also subject to traditional law, provided the subject-matter of the dispute has any connection with Gá-Dangme territory.
Foreigners were subject to Gá-Dangme traditional law where the dispute involved land or a serious crime. A civil dispute between foreign parties could be tried in a traditional provided the parties so agree. In the case of foreigners who had either been actually assimilated into Gá-Dangme society or were deemed to have become assimilated, jurisdiction lay with the traditional authorities, especially where the individual had severed all ties with his place of origin and his or her parents had lived and died on Gá-Dangme soil.
As we have observed, the individual is linked to the Gá-Dangme socio-political system through the weku; generally speaking, this consists of all persons descended in the direct male line through a common or hypothetical ancestor or ancestress. Individuals are accountable to the family elders, normally comprising respected members of the oldest living generation. In particular, the Weku Yitso or head of family exercises enormous moral pressure on other members of the family to conform to social rules and convention and to retain for the family and untarnished image. Erring members, if they cannot be brought to heel by their own parents and siblings, are frequently called before the head of family and counselled. In many ways the home of the head of family together with the ancestral home become the locus of the minimal lineage; family members often congregate on either home to discuss major family business, including festivals, rites de passage and to settle disputes.
The weku expands through the birth of new members; but occasionally an individual may decide to adopt a child unrelated to the family. As an adopted person becomes a full member of the extended family the adoption must be well-publicised to all members of the family. The consent of the elders and the head of family are necessary to make a traditional adoption valid. This is because the adoption may have consequences for succession to the property of the adoptive parents, with necessary disinheritance of other members of the family.
Partly because of the implications of adoption for succession, fostering is much more widely practiced among the Gá-Dangme; it involves the placing of a young relative or stranger in the home of the individual fosterer. The child resides in the new home and is brought up as a member of the family but has no rights of succession, and upon attaining the age of majority may rejoin his or her natural family.
On the other hand, an individual may in extreme circumstances severe ties with his or her own weku; the practice, known as tako mlifoo, is rare and is frowned upon. It is usually preceded by acrimony and ugly disagreements over family issues. Once an individual severes ties with his or her extended family in this way, he or she harbours no expectation of succession to the property of other members of the family; but he or she may insist upon the partitioning of any property to which he or she is entitled. Subsequently, the individual avoids the social gatherings of his or her ex-family, including weddings, funerals and suchlike.
When there is peace and harmony within the extended family, it functions as a social support system for the members. It provides a residence, a common pool of funds to underwrite funerals and other expenses, holds a common feast on festive occasions and in the head of family, supports and represents the individual during marriage, provides a venerable personage to act on behalf of the individual in grave social matters.
The adebo-shia, usually located in the ancestral quarter, provides a common residence for members of the weku although few choose to reside there. However, many feel a deep sentimental attachment to the adebo-shia and converge there on festive occasions when they catch up on the latest news in the old quarter and renew acquaintances with childhood friends. Thus, many members of the family happily contribute to carpentry and other repair works to the old family houses and are perenially concerned about the poorer kin who tend to occupy the family houses.
During funerals the family houses acquire special importance; the body is conveyed to the family house where it is laid in state overnight to be viewed friends and relatives who fill the family house with mourning and lamentation. The family house itself may be specially refurbished for the occasion, and all branches of the family congregate to the funeral both to observe funeral rites and to make a contribution towards expenses.
Family members may also contribute towards other expenses incurred by the extended family. Such expenses may range from the cost of festal food to lawyer’s fees. The expenses are carefully worked out and adult members of the family called upon to participate in the payment of the debt. The unemployed, the sick and the disabled may be exempted, but all other members are expected to contribute; contributions are sometimes even made for persons abroad.
The Weku Yitso or head of family embodies the virtues and qualities that the family seeks to portray to the outside world. Although many rules may in practice exist as to how the head of family is appointed, he or she is normally selected from the oldest generation by the popular acclamation of his or her peers and other important members of the family. Many heads of families are wealthy individuals with considerable influence in community affairs which they generally put to the advantage of the extended family. Thus individuals seeking apprenticeship, education, finance to start up business or general advice normally consult the head of family. In carrying out his or her duties the head of family is particularly concerned about the conduct of the family. Indeed, some believe that ensuring proper moral conduct of family members and conformity of the actions of members of the family to group-approved standards are the primary duties of the head of family.
The head of family steps in the shoes of a line of previous family patriarchs and leaders, and in overseeing family business seeks to uphold the standards and values followed by his or her predecessors. Making certain that family members live in harmony with each other is an important part of the duties of the head; he regularly consults with leading and influential members of sub-branches of the weku.
The head of family may sit in a quasi-judicial capacity over family disputes, but on the whole their duty is to conciliate in family disputes, and in the end to reconcile the parties. When the head of family hears a dispute he or she carefully calls all relevant witnesses and obtains their evidence; examines each party’s argument and evidence; and puts pertinent questions to clarify aspects of the case. When the head of family gives his verdict it is generally enforced, but an aggrieved party may take the case further to the quarter authorities.
The head of family also litigates the family title to land either directly or through a representative. When the head acts in this capacity he or she ususally levies a contribution on the members of the family. Since the head of family is normally the one who sues and can be sued on behalf of the family, he or she tends to keep possession of legal instruments and other important documents of the family, including wills, title-deeds and birth certificates.
In ancient times marriage was formalised with the approval and participation of the head of family. It normally linked the extended family to other extended families both within and without the quarter; it was therefore vital both for social cohesion and for bringing new members to the extended family through the process of kpodziemó or outdooring. Modern developments have reduced much of the head of family’s authority in matters of marriage; the parents of the prospective spouse have immediate authority over the marriage arrangements. The head of family may merely be informed of arrangements towards marriage in which other influential members of the family may play a far more important role. Among the Gá-Dangme, marriage is a union of a man and a woman to live as husband and wife within the rules of traditional law, including the potentially polygamous character of the marriage transaction.
To be valid traditional law marriage required the following:
- a) Status of the parties;
- b) The marriage should not breach any of the rules of consanguinity and affinity
- c) Consent of the parties
- d) Consent of the parents or persons in loco parentis (kplemó);
- e) Gifts or bridewealth (gblanii); and
To contract a valid marriage the parties should be of the appropriate age and status. Girls are usually considered ready for marriage once they complete their education or apprenticeship. In the olden days many girls married as soon as they attained the age of puberty, but the practice is now generally frowned upon. Men may marry once they complete their apprenticeship or have learnt a trade and are capable of independently generating their own income. However, many men choose to acquire some basic property before contracting a marriage.
A person is not permitted to marry a cognate or the cognate of a cognate’s spouse; thus the traditional rules of consanguinity and affinity were fairly restrictive. Family elders usually go to great lengths to investigate the background of the intending parties to ensure that the rules of exogamy are not breached. Shia-gbla (household marriage) or cross-cousin marriage, however, constitues an exception to the above. The effect of a shia-gbla is to perpetuate close relations between branches of the extended family and to keep property within the minimal lineage.
As individuals remain firmly within the structure of the extended family, the extended family often exercises enormous control over the young unmarried person. The parents of a young man frequently influence his choice of wife, sometimes even recommending a particular girl whose character and family are well-known to them. Should either or both parents be dead, or should they be incapable of properly acting on behalf of their son an influential uncle or prominent figure in the figure may take it upon himself to contract a marriage for the young man. Such an individual frequently continues to exercise some influence over the young couple, often advising them on matrimonial problems and counselling them on how to raise their children.
The agreement of the parties to marry is usually a straightforward matter, providing they are both of age and can support themselves financially. In that case, if a man wishes to take a girl as wife he initially requires her consent. If such consent is forthcoming, the man then approaches the girl’s family usually through a person or persons acting on his behalf. The family’s consent may be withheld for a number of reasons: they may feel themselves socially superior to the man and his family; that the man is incapable of supporting their daughter; or simply object to some factor in the man’s background. The man’s initial approach to the family of the girl is known as the shibimo; it the Ga-Dangme equivalent of the English banns. The shibimo advertises to relatives and the world that a woman has been promised to a particular man. The girl is discreetly advised to be less familiar with adults of the opposite sex. A payment known as weku daa or “family drink” is an importnant part of the shibimo.
Once the shibimo has been carried out, the man amy take a number of other steps to conclude the marriage. He first gets his family to present two sets of gifts to the woman’s family: the agbo-shimo (literally, “request to enter”) and ebaa-tsee (literally, “fig-leaf”) gifts. The agbo-shimo shifts simply puts the girl’s family on notice of the man’s intention of marrying her; and ebaa-tsee further puts potential suitors on notice of the fact that the girl has been promised to someone else. The girl advertises the ebaa-tsee to others by habitually appearing in public in adult attire and adorning herself jewels given by the man. The ebaa-tsee also involves the giving of shamóbo or symbolic presentation of cash to the parents to replace cloths soiled by the bride as a baby.
Once the above stages have been completed a date may be fixed for the ga-woo or engagement. The ga-woo represents a firm encroachment of English ideas on Ga-Dangme notions of marriage, the Bible, hymn book and gold ring being the principal gifts. The Bible indicates the man’s intention to convert the traditional marriage into a Christian marriage should his future circumstances allow. In the meantime, however, it remains a potentially polygamous traditional marriage; and the may man enter into further marital relationships with other women. In practice, the wife’s consent may be necessary for further marriages, although the traditional law does not strictly require it.
The ga-woo proper is an all-women’s affair; one set of women carry over gifts from the family house or residence of the man to the family house of the girl where they are met and entertained by another set of women. If the girl is a member of the Krobo sub-group of the Dangme, a small stool is included in the gifts. This symbolises the stabilising role of the wife in ensuring that the matrimonial home becomes the seat of the new family and a point to which the children may always return in later life.
Some prefer, after a preliminary approach to the girl’s family, to perform lavish ga-woo ceremonies incorporating each of the above steps. On the appointed occasion for the preliminary apporach two representatives act on behalf of the extended families. Most representatives are chosen for their wit, eloquence, traditional knowledge and stature. After an initial welcome the man’s representative apprises the girl’s family, who feign ignorance throughout, of the purpose of their visit. The man’s representative might start withthe words: “Our son was on his way to town when he saw a pretty flower [the girl] by your house; he was so impressed with its beauty that with your kind permission he would like to pick it.” The girl’s representatives usually might reply that they know of no such flower in the house. In their response the man’s family mention the girl by name and formally request her hand in marriage. Drinks would then be presented and dates arranged for other parts of the marriage ceremony.
Once the ga-woo has been successfully carried out in this way the women return home rejoicing and carrying sundry tokens of the happy occasion. Thereafter the couple may freely co-habit and consumate the marriage without undergoing a wedding or kpeemo. In the present age most-weddings are celebrated in church. In the past the traditional Gá-Dangme wedding was celebrated at the residence of the wulomo. The parties dressed in white, the national colour of the Gá-Dangme and were accompanied to the wulomo’s shrine by relatives and friends. The high priest administered the shibimo shiwo vows to them, blessed them and sprinkled water on them ritually. The shibimo vow consisted of a series of undertakings by the couple to strive continually for the success of the new relationship; to bring up their children righteously; to devote themselves daily to the intellectual and moral development of the children; and to jointly work hard and ceaselessly to make the children the proud possessors of a worthy heritage.
Barbot recorded an infant betrothal at Accra between a man of about 40 years and a girl aged seven or eight. On the day chosen for the wedding ceremony friends and relatives gathered at the home of the bride with much music and merriment. The bride was decorated with pieces of goldwork placed in her hair, and on her arms, neck and feet. A declaration was made to a priest; but the marriage was not consummated on account of the bride’s age. Barbot noted that the marriage was not consummated until the girl was old enough and had been accompanied to the marital home by a procession of her peers.
On the whole, two forms of traditional marriage are recognised among the Gá-Dangme: the boi-enyo “two-cloth” and boi-ekpaa “six-cloth” marriage. The “two-cloth” marriage invloves the procedure already described above. A man may wish to show his exceptional affection for his prospective bride and the esteem in which he holds her by contracting a “six-cloth” marriage. This usually involves the payment of expensive bride-wealth, and has effects on succession. According to Sarbah, upon intestacy the real and movable property of a party to a “six-cloth” marriage are inherited jointly by the children and members extended family; moreover such property cannot be disposed without the consent of the children. In the past the “six-cloth” marriage involved an actual gift of six Dutch wax prints; this is no longer necessary. Today a “six-cloth” marriage can be contracted simply by indicating the parties’ wish that the marriage is to have the legal consequence of a traditional “six-cloth” marriage, and by reflecting this in the bridewealth.
The above is generally the procedure for contracting marriage to a maiden, but there are exceptional situations. The first is the marriage of an elderly couple; frequently such persons have no desire to attract the publicity of a public event to themselves. There is therefore usually only a discreet exchange of gifts between the extended families.
However, where a woman co-habits with a man merely as a mistress or jolley she may not expect any special treatment by the man’s extended family. This has not stopped several women from openly parading themselves as the mistresses of particularly wealthy men, and probably hoping thereby to come into some property at a future date. If the mistress is sufficiently wily she may get the man to lavish expensive gifts and ornaments on her; gifts made to such women, being tokens of love, are not recoverable upon the termination of the relationship. A variation of the jolley theme is where a man takes a sweet-heart or lorbi and discreetly maintains her during the subsistence of his own marriage. The rights of the lorbi are the same as those of the jolley; however, gifts inter vivos to a jolley or lorbi is valid.
Another exception occurs where a girl is discovered to be with child prior to marriage. In that case the family makes careful enquiry of the girl. Once it has been established that a particular individual is responsible for the pregnancy, his family is approached. If they consult their son and thereafter accept responsibility, agbo-shimo and ebaa-tsee gifts amy be presented, entitling the man’s family to claim the child.
The Gá-Dangme do not demand expensive gifts as bridewealth. Two basic forms of marriage are contracted depending on the size of the gift: two-cloth marriage and six-cloth marriage. A two-cloth marriage results from a marriage transaction conducted in the normal way. A six-cloth marriage is a different affair; the man usually announces that he intends the marriage to be a six-cloth marriage and therefore offers thrice the bridewealth demanded in an ordinary marriage. The wife of a six-cloth marriage acquires special status; should the husband contract any further marriages she is considered the senior and privileged wife. The children of a six-cloth marriage tend to have special prerogatives in the enjoyment of the father’s property during his life-time.
To be valid, a traditional marriage should not breach any of the rules of consanguinity recognised by the people. Because of existing rules of exogamy, individuals may not marry a wide class of persons, including cousins, the siblings of step-sisters and brothers, uterine brothers and sisters and their children.
The traditional drink or nma-daa (corn-drink) together with imported schnapps or gin play an essential part in the marriage transaction; without it no traditional marriage can be said to have been properly conducted. Bottles of schnapps and gin accompany the emissaries who first apprise the girl’s family of the marriage proposal. Various items may be represented by sums of money and handed over to the girl’s family. in addition the man may present a special gift such as a sewing machine to his prospective wife. Nma-daa is used as a celebratory drink, drank particularly at the conclusion of each stage of the marriage transaction.
Once a marriage has been successfully concluded, the girl either goes to reside with the man or co-habits with him on appointed days. The later is normally the case where the man has other wives. The children of the marriage, although members of the extended family of the man, also play a role in the mother’s extended family. During their youth the children may reside with either parent, if both parents do not share a common residence. However, where the father owns property they may reside there, particularly during adolescence and while learning a trade.
During the subsistence of the marriage the husband remains the head of the household, and is under obligation to bring the children up accroding to the moral precepts of the Gá-Dangme. He must protect the family from physical danger; inculcate the values of the community in the children, particularly boys; instruct them and ensure their intellectual development; and secure their futures financially.
On the birth of each child he or she is formally afflicated to the father’s extended family through the kpodziemó or outdooring ceremony. On that occasion members of the child’s maternal and paternal families assemble in the courtyard of the parent’s house or the ancestral home. The purpose of the gathering is to formally introduce the child to the lineage and to the community. He or she is given a name derived from the father’s line. The Gá-Dangme maintain an alternate generation system of nomenclature; as a rule children are given the names of the grandfather and those of the granfather’s brothers and sisters. Also, a child may be given a day name or the name of an illustrious ancestor.
Other aspects of the kpodziemó ceremony are to bless the child and to offer prayers for his success in life and longevity. A man or woman of exemplary character is usually selected to perform the blessing ceremony for the child; children are often said to take after the personality and qualities of the individual who performs the ceremony.
As might be expected many marriages end in dissolution; as a result clear rules have over time been formulated to regulate divorce. We need not delve into the reasons why matrimonial bliss might suddenly turn to bitterness and acrimony. We need only state that occasional disagreement is natural to the marital condition. When, however, a couple’s problems persist and all attempts at solution fail, a divorce might be considered. In the meantime, however, all manner of individuals would have attempted to conciliate the parties. Where the parties are unable to reconcile their differences either of them amy approach a third party, usually a trusted relative or friend who would seek to the advice the couple on an informal basis. If matters do not improve, the parties’ parents might be approached; the grievances of each party is then considered and proposals for improvement put forward.
If the relationship continues to deteriorate a few other advisors might be considered; but ultimately the conclusion might be reached that the parties are incapable of continuing as marriage partners.
The above is generally the case where no clear-cut ground of divorce can be cited by either party. In a number of cases, however, one party might be aggrieved the specific conduct of the other and cites that as the ground of divorce. Grounds of divorce under this head include:
- a) Adultery;
- b) Desertion;
- c) Cruelty;
- d) The husband’s inability to maintain his wife and children; or the wife’s inability to maintain a proper home;
- e) Disobedience to the husband or to respected members of his family, and;
- f) Inability to carry out marital obligations.
husband’s adultery with an unmarried woman is usually no ground for divorce at the instance of the wife; this is because under traditional law a man may marry any number of women. However, a wife’s adultery is a ground for divorce. If the husband chooses to condone adulterous behaviour he may nevertheless demand adultery fee (ayifale) and/or dunsa from the paramour. The wife’s behaviour is reported to her family; and she may be required to slaughter a sheep in pacification of the husband. In the past, the sheep-skin was permanently placed at the foot of the marital bed to remind the wayward wife of the obligation to keep to the straight and narrow. Any issue of an adulterous union may be legitimately claimed by the husband, particularly upon payment of ayifale.
Desertion or abandonment of one’s wife and children is a ground for divorce under traditional law. It was the husband’s duty to feed and clothe his wife and children. When he ceases to undertake these responsibilities; and particularly when he stops visiting the wife and children, he is deemed to have deserted the wife who then becomes entitled to start divorce proceedings. Where the couple lived under the same roof desertion could commence with the expulsion of the wife whereupon she would return to her own family house with or without her children.
Cruelty takes many forms, ranging from denial of conjugal rights to wife-beating and husband-battering. Occasional acts and omissions perceived by one party to be cruel may be tolerated; however, where cruelty becomes a regular feature of the marriage the affected party may seek divorce.
A husband’s inability to maintain his wife and children or a wife’s inability to carry out domestic responsilities constitute another ground of divorce. Upon marriage, a husband is deemed to have assumed responsibility for providing for his wife and children. Where a man’s family is in the eyes of the world left destitute and in permanent need of the necessaries of life, the man is considered to have woefully failed to meet his responsibilities. In the same vein a wife is assumed to have acquired the skills and knowledge to fully the duties of housewifery and child-care; inability to demonstrate such skill and knowledge may entitle the husband to divorce.
Obedience to in-laws and influential members of the husband’s family are considered a sign of a wife’s good conduct. A wife who uses vituperative language and shows no respect for in-laws and respected family members is considered liable to influence the husband negatively; and soon gets into trouble with the husband’s extended family. It is further feared that such a wife might turn her children against the extended family; the extended family therefore readily supports a husband’s bid to divorce a wife on grounds of disobedience to family members. Husband’s who fail to take decisive action against such wife’s are regarded as hen-pecked, and frequently reminded of the aphorism: gbla taa eshweó weku or “a marriage may be dissolved but the extended family remains.”
A party to a marriage may be rendered incapable of carrying out his or her marital duties due to a variety of reasons. Impotence and sterility renders a spouse physically incapable of carrying out the expectations of a marriage and are grounds of divorce in traditional law. In the past other factors, such as witchcraft, especially when it was alleged to result in the continuous death of children, were considered as rendering a party psychologically incapable of carrying out the expectations of marriage.
Where a marriage is dissolved through no fault of the wife a man may not recover any of any gifts or expenses made or incurred when the marriage was contracted; on the other hand, a wife initiates a divorce, particularly in order to marry a lover she is liable to return the husband’s gifts and other expenses incurred in contracting the marriage. Once these have been returned to the husband’s family the marriage is formally considered to have ended, and either party may enter into a new contract of marriage to another person.
Although the King is not directly concerned with marriage and divorce, appeals from heads of families and quarter chiefs ultimately lies to the king’s tribunal. For that reason the royal tribunal has opportunity, from time to time, to re-state the traditional rules of marriage and divorce.
Traditional Marriage among the Krobo
The contract of marriage among the Krobo has a larger social dimension expressed in the aphorism Weku né kpam’saa edzaa kaa yo tsa weku (one has relatives all over the place because the women are the connecting link). Marriage is therefore as much an agreement between the respective extended families as between the parties.
Traditionally females may not be given in marriage to uncircumcised person; nor could a girl whose puberty rites had not been performed be given away in marriage by the parents. In addition to fairly extensive rules of exogamy, men were prohibited from marrying two girls of the same household or minimal lineage. Although parental consent was in the past decisive in the choice of a marriage partner, there is currently little evidence of parental influence on the choice of partner; occurring only in vestigial form in the case of infant betrothal. Such promises were frequently made before the birth of the child. The boy’s father approached her parents with an offer “to tie the loin string of the infant”. If the father of the infant-bride consented, he uttered the word wéé ibiyo and took a quantity of gifts from the boy’s father. The deal was sealed with a libation invoking the Supreme being or Mau and the household gods. Subsequently the boy’s family would occasionally send foodstuffs and other gifts for the girl, and sometimes assist his future father-in-law in carrying out his tasks. In the present age, however, childhood betrothal has become very rare.
Traditional marriage proper commenced with the agbosim (knocking the door) and he-si-dzem (introduction) ceremony. These formally introduces the prospective husband to his future-in-laws. His drinks may be politely accepted but an answer is seldom given on the same day. Hesi-dzem normally occurs after a girl is found to be with child; it is the formal introduction of a young man who has already started a love affair and his request for the formalisation of the relationship. Once either formality has been concluded, the yo-sibim ceremony may commence. In essence it the formal thanking of the bride’s parents for consenting to give their daughter away in marriage. Huber has suggested that in the old Yilo Krobo customary law the nyá-tshum’-haam’ (thanksgiving) “constituted the legality of the marriage and conferred paternity rights over any issue to the husband.” Further, in Manya Krobo the custom of fiaa or “breaking of the grass” is considered an essential marriage ritual. It appears, however, that in theory only a full dowry marriage or yo-kpeem conferred legal status. Whatever the case in the past, under current traditional law a marriage is deemed legal in so far as the parties have performed any of the above ceremonies and is or has actually lived with the other party as man and wife.
Huber documented cases in some villages where young marriageable people had formed societies to aid each other in preparing for the payments which accompany marriage. The yo-kpeem ceremony reaches its height with the formal handing over of the bride. Her father places her three times on the lap of an elder and the two exchange the words: ihá mo (“I give onto you”) and ihee (“I accept”) after one another. Alternatively the girl may simply be handed over to a representative of the groom. During the major marriage ceremonies the bride’s father often requests the groom not to drive the daughter away in case of her misconduct, but to bring her back to the parental home.
Divorce among the Krobo
When a man decides to dissolve his marriage he usually approaches his father in law or some person in loco parentis. He takes with him a bottle of schnapps and some witnesses, and informs the father-in-law of his decision. The father or his representatives may request some compensatory cash on behalf of the daughter. Once the cash is paid, the father-in-law or his representative pours libation, invoking the ancestral spirits to join with the living in witnessing the dissolution of the marriage; he concludes with the following form of words: “My son-in-law says he does not want to keep my daughter as his wife. He returns her to me. So I welcome her as a child.”
Where a wife instigates a divorce a different procedure is required. The two parties meet at the the residence of the wife’s family to go over the case. Initially thwe arbitrators attempt a settlement or resolution of differences. If this proves impossible the husband presents a bill of expenses incurred in regard to the wife. If the wife’s family are in agreement they hand over the cash; infrequently the money is discreetly paid by a new suitor who actually instigated the divorce. If the wife’s father died after the wedding his name was specially invoked in any prayers to mark the divorce. Under tradtional law where a woman unceremoniously deserts her husband, any issue with other men belong to the husband.
The universal division of property into immovable property or realty and movable property or chattels is recognised in the traditional law of the Gá-Dangme. Immovable property is subdivided into land and house; and a broad distinction is recognised between mere chattels and valuable chattels like chattels gold ornaments, kente cloth, tools of trade, and industrial plant.
Further, it should be appreciated that there is a distinction in traditional law between ancestral property and self-acquired property; the distinction applies to both realty and chattels. Thus a gold-ring maybe part of an ancestral heirloom which is retained by the family and used on ceremonial occasions. Property in things acquired by ancestors and bequeathed or devised to the family in common remains vested in the extended family and cannot be validly sold on by individual members of the family to third parties. On the other hand, self-aquisitions may be freely sold by the acquirer.
The concepts of ownership, possession, custody and control as well as waste and improvement to land and other property were well known in traditional notions of property. On the whole, ownership aros out of original acquisition or legitimate transfer by way of gift inter vivos, purchase, etc. Where by expending labour or through the exercise of superior mental powers or business skills an individual reduced a piece of previously unowned land into their possession, generated a product or developed an artistic motif, traditional law rules were developed to allow them to retain ownership of such land, product or motif.
Thus if Tettey, a stool-subject, regularly farmed on a piece of land, building a dwelling house on part of the land, and regularly defended his farm and home against intruders and trespassers, the traditional law recognised that he had acquired title to such land. Such title was both alienable and heritable. However, to support and confirm Tettey’s title against all comers he was required to formally approach the village leaders for a confirmation of his title. As a stool-subject he paid a token amount of money and presented an assortment of drinks to mark and publicise the occasion. The leaders ensured that Tettey’s land was carefully demarcated from the holdings of others; therefore, his neighbours might be called to witness the ceremony and to raise any objections they might have. Subsequently Tettey could call upon both his neighbours and the village leaders in disputes over his title to the land. Alternatively, Tettey could initially approach the leaders for an express grant before commencing to work the land.
If on the other hand, Tettey felled timber and made a canoe (ahima or lele) or oar out of the log by his own independent effort or by the assistance of paid individuals, the canoe or oar remained his. He acquired absolute title to it as he was responsible for its creation; he owed it of no one else. An individual could acquire a large number of things either directly in this way or by purchase, using money obtained through the sale of products created by himself. Therefore, the traditional production process was based entirely on the generation of things by individuals who acquired the original title. Things produced in this way could be sold on to several persons, but title could be established only through a chain of legitimate acquisitions from persons who had acquired the item in a direct line from persons the original creator and his buyers had dealt with.
This clear-cut picture is somewhat muddied by the communal character of the majority of tradtional production. Many things were produced by family or social groups instead of individuals. In that case, the product of the collective effort was shared out at the end of production process with each individual owning what was legitimately allocated to them. If the product was not divisible or was purposely created to be retained by the group, then members of the creating family or group acquired a collective title. If the product had an income-yielding capacity, like a canoe or house, then the concepts of improvement and waste with their consequential effects on quality, influenced the final value.
Although the product may be retained by someone else yet the original producer or acquirer might still own it if there had been no legitimate process of transfer of ownership. In that case, the acquirer was recognised by the traditional law as having ownership, but not custody and possession. If on the other hand, the product was temporarily in the hands of the acquirer’s apprentice then the acquirer was held to have both ownership and custody, but not possession. If, however, the product was transferred by way of sale, or consensually by way of gift the acquirer lost both ownership and custody as well as possession.
Intellectual property rights in artistic motifs and the like are best illustrated today in the work of coffin makers in Nungua to the East of Accra. Taking a central motif, say a cocoa-pod or canoe, from the life of the deceased traditional coffin makers designed a casket to reflect the life and vocation of the departed. The rights to such designs, as well as to the designs of gold-smiths, state umbrella-makers and similar artists, were vested in the originator.
Chattels or nibii were recognised as belonging to a separate class of property. However, the Gá-Dangme concept of chattels also recognised a distinction between crops, goods, stock-in-trade and general merchandise and other easily perishable or fungible items. Emblements or growing crops produced by the labour of the cultivator and harvested annually are considered as goods and therefore fall under the traditional law relating to chattels.
Generally speaking, only chattels of value are regarded by the Gá-Dangme as really constituting property: vehicles, capital equipment, gold and silver ornaments, furniture, cattle, household utensils, tools of trade, etc. Thus a wealthy individual or niatse may possess in addition to land and houses, mummy-trucks, cars, canoes, corn-mills, silverware, gold-chains, gold-earrings, gold bracelets, gold-rings, gold-pendants, crockery, household furniture, cattle, sheep, poultry, expensive clothing as well as other sundry items of property. In the present age such an individual may also own a company and have industrial plant, office equipment, a current account, deposit account, bills of lading, shares, bonds, debentures and stocks and may also have taken out a life assurance policy.
Although females may also own all the items of property listed above, there are certain things which are considered to be distinctively female property. Items associated with the kitchen and housewifery such as cooking utensils and sewing machines are presumed to belong to a wife. Also, expensive cloths, including damasks, velvets and Dutch wax prints, are generally associated with women. Traditionally, most female property was obtained with profits from market-trading. Trading therefore became a typical vocation of Gá-Dangme women; some travelled to the weekly inland markets to purchase bulk products for resale in the great urban markets such as Makola, London and Salaga markets; others made a more profitable business of achieving commercial success in the urban markets dealing in local goods and imported European produce.
Various market traders became fabulously wealthy, and in addition to erecting Italianate buildings around the city, became the mainstay of their extended families. In the bed-chamber of the successful female trader’s house would normally be a wardrobe or sideboard stocked with expensive clothes, jewels and other valuables; the sideboard, with its displays of lavender and other perfumes literally became the domestic symbol of a woman’s economic status. Less successful women tended to keep their personal property in trunks and boxes tucked away in the corner of the bed-chamber.
As in the case of land, personal movable acquisitions are distinguished from ancestral property. Personal acquisitions were accumulated through the personal effort or enterprise of the individual; they were entirely to be disposed by the acquirer as they choose. They may be sold, part-exchanged, pledged or given away without any interference by the extended family. Ancestral personal property, although they may be kept by an individual family member, remain the extended family’s. Movable ancestral property includes shika futru (gold dust), gold ornaments, and paraphenelia of office.
Problems often arise where an individual having custody of inherited family property mixed them with their own property and disposed of them at will. Even worse, ancestral property in the possession or custody of individuals may wrongly be regarded by their children as the personal property of the parents leading to ugly disagreements upon the demise of the possessor. In some families there is a tradition of periodically calling for an account of ancestral properties in the possession of individuals; this avoids unnecessary litigation and reinforces extended family solidarity.
As indicated, an individual may own domesticated animals; birds are also owned on an extensive scale: ducks, guinea-fowl, turkey, chicken, pigeons, etc. Although birds and animals may freely mix, and even stay for a lengthy periods, with other herds and flock ownership remains vested in the owner. Different rules appear to apply to wild animals; such creatures may be freely hunted over the open plains and forests.
The hunter owns the body of animals killed on unoccupied and uncultivated ground. Where a wild is caught in this way and kept in captivity for a considerable period, but escapes the original capturer retains his right to ownership provided the identity of the animal can be established. The right to kill burrowing animals, such as hares and rabbits vests in the owner of the land on which they are found. The owner is entitled to a half share of all animals killed or captured by his permission; he is equally entitled to a half share of fruits plucked from self-sown perrenial trees on his plot. The hindlegs of wild animals killed in the uncultivated fields and forests belong to the chief or headman of the area.
Owners of private creeks as well as traditional priests exercise similar rights to catches of fish. Rights to catches from creeks are best developed in the Ada area; there individuals are permitted to fish in private creeks for small quantities of fish on the understanding that the owner is entitled to a fifth of the total catch. The Nai Wulomo exercises a right to a quantity of all commercial fish landed on the beaches of Accra; fish given to the Nai Wulomo in this way is known as bele naa loo and the right to it is known as bele naa loo kómo. Finally, the Korle Wulomo has the prerogative of casting the first few nets when the fishing season commences in the Korle lagoon. It was suggested that the Sakumo Wulomo exercises a similar right over the Sakumo lagoon. The rights of the high priests extend to salt and other commercial produce. These rights of the high priests are vestiges of their former powers as leaders of the Gá-Dangme and owners of the land. However, individuals may freely trap fiddler crabs and land crabs, pick crustaceans and use cast-nets without the necessity of giving portions to the high priests.
During the herring and sardine season in August (Obué) owners of fishing canoes may occasionally let them to a crew of fishermen who give them a third of the catch. Each crew member brings his own oars (tabló) and stock of food; the crew may collectively own the fishing gear. Where they also borrow the fishing net and gear of the owner of the canoe, the owner becomes entitled to two-thirds of the total catch comprising mainly sardines (kankanma) and herring (mann). The above arrangement known as nimaa is similar to the English concept of bailment or renting of movable property. It extends to capital equipment and income yielding devices such as hunting rifles, seine nets (tsani), cornmills, sewing machines and mummy-trucks. In each case, the bailee is granted use of the property for a specified period, and is obliged to share his profits with the bailor.
Emblements and fungibles were usually measured by the basket or kenten, being being baskets of various sizes for measuring out fixed quantities; in the case of maize or corn, an olonka or measuring tin was used. The concept of kenten was frequently employed notionally. Thus certain profits-á-prendre inuring to the owner of land was often worked out in terms of an actual or notional basket. Therefore mushrooms, herbs, vegetables forming part of such profits may be measured in terms of notional baskets.
Land or shikpon is considered the most important form of property, being largely permanent and indestructible. As the shikpon of the Gá-Dangme was collectively acquired through original settlement and uninterrupted ownership, the ultimate title to all Gá-Dangme land is vested severally in the Three Kings upon the approval of whose predecessors in office the various quarters were allocated their portions of land. It is emphasised that the quarters did not acquire any land by separate effort from that of the mantso; traditional rules that tend to give the impression that some quarters own their territory separately from the overall mantso are based on notions of possession rather than original acquisition.
The notion of land in traditional Gá-Dangme law includes the earth itself, its features and all that grows, covers or is attached to it, such as plants, herbs, wells, pits, creeks, lakes, rivers and houses. Given the variety of landscapes in Gá-Dangme territory, there is often a striking contrast between different kinds of land. Thus the forest areas to the north (koo) and the intermediate plains (nná) are in stark contrast both to which other and to land along the sea coast or nsho-gonno).
Typical Ga-Dangme territory is covered by stunted vegetation and grassland scattered with mango, baobab, palm and cashew trees, and in the rural and semi-rural areas with occasional farm patches. Anthills, streams, rivers, and other physical features formed natural boundaries. In certain areas place-names are based on physical geographic features of the locality: Korle Gonno (Korle’s hill), Dzorwulu (Big Valley), Faase (Beyond the river), Tesano (On the rocks), Teshi (Beneath the rocks), etc. Traditionally, land was sold in parcels or kpaa measured in abasam or arm-lengths.
Following the decline of Ayawaso Gá settlements were concentrated along the sea coast, particularly near the European forts; the Dangme maintained settlements in several large inland towns as well as along the riverine areas of the Volta. The sale and development of Gá-Dangme lands have tended to follow particular trends and directions away from the earliest settlements.
Title to land could be acquired in any of the following ways:
- a) Original settlement;
- b) Accession;
- c) Conquest;
- d) Prescriptive acquisition; and
- e) Purchase from the original acquirers.
22.214.171.124 Original settlement
As we have observed, Gá-Dangme land was acquired by original settlement; this meant that unoccupied areas of the original acquisition could only be occupied by the various stools through the actual or implied consent of the monarch. Occupation of such land took two main forms: ancestral settlement and the founding of rural abodes by hunters, farmers and religious communities.
The ancestral settlements, as we have already noticed, occurred on the basis of actual residence on particular patches of land and identification with the quarter which owned the land. Full involvement in the activities of the quarter entailed allegiance to the stool, contribution to war effort and the development of relation, principally through marriage, with the main lineages.
The acquisition of rural and semi-rural land took a different form. The village or aklowa was the focus of settlement; they were usually founded by hunters and farmers. A hunting village normally started as a hunter’s lodge; a place where the hunter regularly set camp and gradually established as a half-way house between his hunting grounds and his family home in the ancestral quarter. He may cultivate particular medicinal herbs and vines, and plant trees to dress his wounds and sustain himself after long forays. If a hunter’s lodge was located on good ground with access to a stream and near enough to the main inland routes it usually developed into a village, attracting other individuals who gradually established a village community wth the founder as the chief.
However, physical propinquity to any of the above did not matter if the founder of the village or one of the leading residents developed a reputation as a great healer or a religious sage. In that case, people travelled from far and wide to seek treatment; the terminally-ill and those with recurring symptons as well as their relatives might never return. In addition, possessed persons might be brought from the traditional quarters for training as spirit mediums or woyei.
In other cases, the influential men of a quarter may purposely decide to establish a village on a particular spot to serve the food-growing needs of the quarter in times of famine. Such villages often also served as garrison outposts, keeping the quarter informed on the movement of enemy warriors. Yet other villages were founded by fishermen along the coast who used them as drop-in sites to mend their nets and tackle, replenish their stock and prepare for the next voyage.
Each village community attracted strangers who came to settle, to seek sanctuary and to the escape the tensions of the old quarter. As the population multiplied and agriculture took a firm root perennial trees appeared to patricular patches of land; these may be self-sown or the result of the labours of a particular individual or family. In addition, individuals would regularly cultivate particular patches of land or keep animals and poultry on it, they therefore continually kept an eye on the land to keep out intruders and other undesirable characters. Land, albeit never expressly granted to an individual or family, could be held in this way for several generations, becoming family or ancestral land. Once a family had firmly brought a piece of rural or semi-rural land under its control in this way, traditional notions allowed it to successfully litigate its interest in the land against third parties and to defend the suits of trespassers.
Lands acquired by families in this manner may be designated as initial acquisitions; they were acquired in the distant past; and their roots of title are generally shrouded in the mists of antiquity. Occasionally, however, litigators were able in the Ghanaian courts to trace their family antecedents into the period of the original founding of a village, and established initial acquisition. After the period of initial acquisitions clear rules had to be formulated to regulate transfer and other dealings in land. Further, rules were developed to regulate the killing of particular animals on the land as well as to spell out the community’s interest in treasure troves subsequently found on the land.
Accession normally occurs where alluvium is deposited on a river bank, gradually solidifies and becomes part of the land. Although the ultimate title to land would be vested in the stool to whose land the new land is attached, individuals whose lands abut on the new deposit may exercise rights of ownership, the old land being the principal object to which the new land or accessory is added. Accession of this type regularly occurred on the banks of the Volta near Ada; smaller types of accession occur on the Sakumo, Songor, and Korle lagoons as well as at the estuary of the Densu river.
Another method of acquiring title to land was by conquest. Traditionally, this occurred largely in respect to land on the Northern frontiers which had to be constantly defended against intruders, and occasionally to be re-taken from foreign intruders.
Acquisition by assmilation occurs where a people settle in a particular place and assimilate other people already in occupation of the land. This appears to have been the case in Gá-Dangme acquisition of lands along the littoral already occupied by the Les and Kpeshi.
Finally, Ollennu has suggested that the paramount title may also be acquired derivation, namely any form of alienation, including sale, gift or testamentary disposition. It appears that the original title could also be acquired by way of gift, especially for military service. This was certainly the case in regard to certain Accra lands given to Manche Ankrah upon the successful conclusion of the Awudome wars.
4.2.5 Interests in land
As has already been stated this account leaves the existing offcial customary law of Ghana entirely to one side in order to attempt a discovery of the true traditional law of the Gá-Dangme. In describing interests in land therefore we attempt to uncover, by reference to historical examples where necessary, a scheme of land tenure which best accords with the traditional practices of the Gá-Dangme. The first traditional concept to grasp is the notion of afaban (the erection of boundary or reduction into ownership). It suggests the establishment of undisputed ownership rights over a piece of property. In theory the largest afaban in traditional legal thought was the territorial limits of the Gaman or Gá nation itself; this was known as the man-afaban. Items of property, corporeal nad incorporeal, within the territorial limits of the Gá state belonged to the Gá Manche. Exceptions were made only for pieces of property which were considered to be of religious significance; it was for the religious hierarchy to decide ownership to such properties.
Distinct political and social units within the territorial limits of the Gá state could with the tacit or actual agreement of the Gá Manche establish their own afaban over specific portions of Gáman lands. Such afaban, by definition encompassed lands which came to be attached to the quarter or political unit in question, and were known by the name of the political unit owning them. Thus we have Asere shikpon, Sempe shikpon, etc. This did not extinguish the the rights of the Gá Manche, as the lands still remained within the Gáman afaban. The Gá Manche, through his subordinate chiefs, merely allowed his subjects the rights of occupation of Gá lands.
For instance, it was the Gá Manche Okaikoi who ceded land at Osu beach to the Danish representative Jost Kramer for the erection of the Christiansborg Castle. Yet the Osu were subsequently permitted to demarcate lands clearly belonging to the Gá Manche to their subjects for residential purposes. Again, it was the Gá Manche who gave land at North Kaneshie to Mantse Ankrah after the successful conclusion of the Awudome wars. The acquisiton of land rights by settlers at Jamestown and the giving of land by King Tackie Kome to Brazilian settlers at Adabraka are other examples proving the Gá Manche’s rights to all Gáman lands. Furthermore, the Gáman afaban had been extended northwards through the conquest of the Akwamu.
Aside from quarter shikpon there were also weku shikpon, owned more or less in the same way as quarter shikpon. …. With increased European activity on the Gold Coast land became commoditised and individuals started to acquire their own interests in land, frequently evidenced by European modes of conveyancing.
Pledges (ahoba) and adode were other forms of interests held in land.
Owing largely to their extensive farming activities the Krobo developed a sophisticated scheme of land ownership, particularly in relation to farmland; they considered farmland to be the most valuable form of property aside from the ancestral household. Several types of farmland were recognised: pum or uncleared forest; plocke or land which was once cultivated but had been allowed to revert to bush to recover its fertility; whem or newly-cleared land planted with cash crops interspersed with food crops; and nmonya or land with mature cash crops. Nmonya is usually considered to be an old man’s farm, and the occupier is frequently helped during the harvest by younger realtives from adjoining farms. The farmland was considered an integral part of the Krobo polity, each farm acquisition being an extension of the realm of the Krobob monarchs.
4.2.5. Transfer of interests in land
The holder of an interest in land may validly transfer such interest in any of the following ways.
If the owner holds the absolute title to the property and he or she is of age and sound mind then the transfer may be consensual and effected by private treaty. The parties to the transfer may enter into such agreement as they deem fit provided the terms do not affect the interest of any other party, and it is not detrimental to the interests of the traditional state.
If the holder holds only a qualified interest in the subject-matter of the transfer, only that interest may be transferred.
An individual has no power to transfer ancestral or family property; this can only be done by properly accredited persons acting on behalf of the family or group concerned.
It is always necessary, in a strictly traditional transfer, to publicise the transaction.
In order to avoid expensive litigation and the future loss of the transferee’s rights, it is always essential that the following be observed as part of a transfer.
- a) There must be witnesses to the transfer;
- b) There transfer must involve a clear change of ownership, with clear and appropriate words being used to express this fully;
- c) The subject matter of the transfer should be put into the custody or possession of the transferee; if neither or either of this is not possible, the heirs, successors and family of the transferor must be informed that a transfer of the property had been effected;
- d) If the transfer is effected by a stool the transferee must provide drinks to mark the occasion; and
- e) The transferee must completely perform his part of the bargain to make the transfer complete. If, for instance, he or she fails to pay the final instalment of the purchase price the transfer would not be regarded as complete, and the transferor would be at liberty to enter into a separate transaction to sell the same property.
Where ancestral or collective property had been partitioned, the holders of title to the individual parts may transfer such title to purchasers.
The actual land transfer ceremony performed on the plot to be transferred is known as shikpon yibaafo or zigba yibapom (Dangme). The parties meet on the land in the presence of witnesses from either side, particularly neighbours of the vendor. The parties kneel on their right knees and each passes a coin wrapped in dry palm leaf under their left knees. A drink is poured and the leaf is cut in two pieces by the parties, and the coins thrown to the ground; a sheep may then be slaughtered to complete the process. After that the land is deemed to have passed to the purchaser.
Just as detailed rules were formulated to regulate the acquisition and ownership of property as well as their transfer among the living so too rules were developed to regulate the post-mortem distribution of property. What follows, particularly in the section relating to the traditional law of intestate succession, is an attempt to describe the prevailing unofficial customary law of the Gá-Dangme rather than a detailed exposition of the case-law developed on the subject by the Ghanaian courts; for as has been demonstrated by a number of writers, the official position in regard to the customary law of succession amongst certain Gá-Dangme peoples often diverges significantly from reality. As individuals lived their lives largely within the context of the extended family, the notions underlying succession to property temded to favour the extended family. On the whole, property was presumed to devolve on the extended family unless clear rules had been developed to the contrary.
4.3.1 Testate succession
The Gá-Dangme recognised the rights of individuals to transmit their property to persons of their choice. This recognition arose from the recognition that apart from the natural love and affection for particular members of the testator’s family and circle of friends, the testator might want to make gifts to past benefactors, protéges, caretakers, carers, etc. Although this right of the testator was held to be generally subject to the wishes of the extended family, yet they were in practice usually allowed. Although an individual might declare his last wish and testament to members of his or her family at any moment, declarations regarding the testamentary disposition of property came to be normally made in grave moments of illness, crises, and prior to warfare.
For instance, before a tabilor or soldier departed to the war front he left directions regarding his property and family should he fail to return. Terminally ill people would also gather members of the family around the death-bed and issue directions as to the disposition of their worldly possessions. In either case, care was taken to ensure that key members of the family, including those who should have special expectations of inheritaing the testator as well as family elders were present. The declaration or message issued on the occasion is known as sheh; it involves words of advice to beneficiaries and the family generally as well as the actual distribution of particular pieces of property.
The state of mind or lucidity of the testator as well as surrounding circumstances are matters of paramount importance in establishing whether the declaration indeed amounts to a last will and testament. Where the testator was known to have been a drunkard (gaaley) or to have habitually suffered momentary loss of memory or was under the absolute control of the beneficiaries, there might be grounds for regarding the declaration as invalid. But weak intellect was no reason for setting a traditional will aside.
To be valid the following rules have to be observed during the making of a sheh:
- a) Properties involved should the self-acquisitions of the declarant;
- b) It should be clear that the declaration is the last will and testament of the declarant;
- c) Items of property must be specifically identified;
- d) Beneficiaries or their representatives should be present at the gathering;
- e) The spouse and adult children of the children or their representatives should witness the declaration; and
- f) The declaration should be witnessed by at least three credible witnesses, involving as far as possible members of the declarant’s paternal and maternal families;
As a result of the influence of Sarbah and the uncritical adoption of his views by the Ghanaian courts, the traditional Gá-Dangme nuncupative will is occasionally described as shamanshoo, a corruption of the Fanti Samansiw. However, as we have shown elsewhere, the possibility exists that the observation on which Sarbah relies for his assertion that the making of samansiw started among the Fanti might in fact made in Accra.
Ancestral property (including gboshi-nin) may not be the subject-matter of a sheh but self acquired chattels, land and gifts (nike-nin) may be freely devised or bequeathed to favoured individuals.
4.3.2 Intestate succession
If, as in the majority of cases, an individual died intestate their movable property were distributed among relatives in a well-defined manner; but landed property was inherited by the extended family as a corporation. In distributing the property of an intestate it is essential to ensure that ancestral properties are not mixed with personal property. For this reason, it was necessary for leading members of the family to be present at the distribution. Traditionally, the class of inheritors was determined by patrilineal principles; in recent times this has been complicated by a tendency for feamles to inherit females, and for males to inherit males.
Bentsi-Enchill summarizes the the patrilieal position in regard to intestate succession in the follwoing way. “A childless man’s immediate family is the group comprising his brothers and sisters and his parents.” He continues “When he begets children and his brothers and sisters beget their children and his sisters are married off, it is easy to see how his immediate family comes increasingly to be considered to be the group comprising the children. Thus under the patrilineal system of inheritance it is the children who are considered the true inheritors of the father. However, the deceased’s brothers, and less frequently sisters, may also be considered. If the deceased is survived by neither children nor brothers and sisters, succession devolves onto ever widening circles of relatives traced patrilineally through the grandfather, great-grandfather and so on.
In theory, it was the extended family which inherited the properties of the intestate; but in practice, the property devolved according to rules of seniority and consanguineous proximity to the deceased. Under this scheme, the property of a deceased male was traditionally inherited in the following order.
- a) Father;
- b) Brothers by seniority;
- c) Sons by seniority;
- d) Uncles;
- d) Cousins;
- e) Other members of the extended family.
The above scheme is today modified among many lineages by the insistence that sons inherit their father, with daughters and wives having a life-interest and, and the deceased’s brothers and other relatives sharing in the residue. It is instructive to note that where a single or few beneficiaries inherit property they are under a duty to care for any children of minority of the deceased; and although not necessarily involving adult children in the management of landed property and capital assets, to seek as far as possible obtain their consent, especially in regard to the disbursement of funds for the benefit of minors and other members of the family.
In determining seniority the normal rule was to draw a distinction between nii-mei (grandfathers), tse-mei (fathers and uncles) (tupenfoi) peers and (serbii) junior sibling. For instance, if Ayitey died intestate he was inherited by his father, to whom the grandparents normaaly pass their rights; but if the father predeceased him then his own brothers would constitute the inheriting group. Within this group, he would be succeeded by his most senior brother of the full blood. If the brother died before the property could be distributed, he was succeeded by the next brother and so forth until the brother’s group is exhausted. The next inheriting group would then be Ayitey’s sons in order of seniority. If he had no brothers and sons the uncles inherited, then cousins, then other members of the family.
The above arrangement is qualified in many instances. If the deceased had any female properties such as trinkets and wax prints they were inherited by his sisters and daughters. Also, in certain cases if the deceased was predeceased by his father and brothers of the full blood and had no sons, half-brothers may be considered before the uncles can take.
In the case of a female, she was inherited by her siblings of both sexes if the father passed over the succession. If a deceased intestate did not have a family he or she was inherited by the family with which they identified themselves. If no such family could be traced, the village or quarter to which he or she belonged took any land belonging to the intestate as bono vacantia; chattels were distributed to dependants, organisers of the funeral and neighbours in that order provided they are member of the tribe.
The realites of urban existence have imposed several modifications on the foregoing model. There is, for instance, a growing tendency to manipulate lineage and self-acquired property differently. Shares in income derived from lineage property increasingly revert to a common pool rather than be allocated to successors of the deceased. Being important occasions for social display and the re-affirmation of family solidarity, funeral costs can be astronomical. In the final analysis, contributions to funeral expenses tend to override the rights of individuals in the allocation of movable property, or even landed property, of an intestate. Under this scheme children tend to inherit the self-acquired property of the parents with the property being shared equally according to the number of children; the oldest children acting as administrators, and the extended family’s role becoming largly ceremonial. In the case of landed property there appears to be an underlying father-son, mother-daughter devolution of self-acquisitions.
The above was the general order in relation to succession to chattels and land. As regards succession to office different rules seemed to apply. Many offices, including mantse, mankralo,akwashongtse, shipi, asafoiatse, etc. were by direct selection from a class of eligible persons belonging to a particular lineage. As succession to these offices were usually rotated among a number of houses, the rule developed that a son may not succeed his father as mantse, mankralo, akwashongtse, shipi or asafoiatse. However, an individual may succeed their parent as weku yitso or okyeame. In case of okyeame it appears that the office is not attached to particular families; but depends on personal qualities. Thus an eloquent and wise son may succeed to the office upon the death of his father.
Gifts inter vivos are common among the Gá-Dangme. It is not unusual for a parent or grandparent to make a gift to, say, an exemplary daughter out of love and affection. However, not all gifts are held to be strictly regulated by the tradional law; only things of high value are considered as falling under the traditional law. The commonest traditional law gifts gifts are land, houses, and jewellery. The following were essential for a valid gift.
- a) Property in the proposed gift must be vested in the donor;
- b) The gift, especially where it forms part of a larger unit, should be clearly identified and/or demarcated;
- c) The donor should make clear that he or she is actually vesting ownership of the item or land in the donee;
- d) The transaction should be witnessed by credible individuals; and
- e) The donee must clearly accept the gift, the case of land by the exercise of rights of ownership;
A gift is invalid if it is subsequently proven that it was effected through fraud, duress, deceit, or while the donee was too ill, drunk, incapacitated or otherwise impaired from understanding the nature of the transaction. Furthermore, the donor may attach reasonable conditions to the gift during his or her lifetime; in such cases property passes only after the condition has been discharged.
It was not unusual for individuals and families, in times of need, to resort to loans. The loan may involve an article or money. An individual may contract a loan to finance a major project or to expand an enterprise. Merchants and traders frequently pre-finance their activities with loans advanced by members of family, benevolent societies or money-lenders. Loans are re-payable at rates of interest determined by the parties; but in fact most borrowers obtain loans on terms determined by the lender. On the whole, loans are obtained at a modest rate of interest usually payable upon payment of the principal. In general it was not necessary to provide collateral, although an individual of repute or substance may be asked to guarantee the loan.
Should the borrower default, the lender or his agent calls on the borrower to honour the agreeement; if such demands prove fruitless the lender may call on the guarantor to ensure payment; or in the final analysis seek recovery at the King’s court. A persistent debtor was usually declared a nyomotse or undeclared bankrupt, a condition from which the individual can only free his or herself and resume trading by finding a guarantor and slowly re-establishing creditworthiness.
Loans are to be distinguished from debts contracted in the course of trading. Trading debts attract no interest, except on the agreement of the parties. As debts are frequently contracted through unrecorded business transactions creditors often seek to publicise the debt and obtain an admission in the presence of witnesses; in the meantime they might consider withholding supplies of good or services.
The extended family is sometimes obliged to borrow money either for the purchase of land or to underwrite a funeral. In either case the loan is repayable by the adult members of the family jointly and severally. The debt is divided among the family branches which may in turn sub-divide it among the various units. Once the debt has been divided in this way it becomes the obligation of each individual to pay his or her part of the debt to avoid dishonour to the family. So onerous is the duty to share in the payment of family debts that individuals are known to pay on behalf of siblings abroad.
When an article is borrowed the borrower is under obligation to return it in a reasonable state. Therefore borrowers are under a duty to exercise diligence and care in regard to the article; if it is lost the borrower should make a suitable replacement. If the article is severely damaged it should be restored as far as possible to its former state; but minor damages are considered to be part of the depreciation and wear and tear normally expected of an article, and can never found an action.
4.6 Pledge or hypothecation
Pledging was another way of raising money in traditional society. A raise money an individual may deliver a prized possession to another as security for the money borrowed on condition that the item pledged would be returned upon the payment of the debt. This was the traditional pledge of ahoba which was widely practised as a way of raising money in pre-banking days. Many wealthy individuals made a part-time career of advancing money against the security of land or highly valued chattels. Title-deeds to land and houses, gold ornaments, fishing canoes, tools of trade were the most frequently pledged items.
To constitue a pledge the transaction, especially where it involves land, should be witnessed by a number of third parties including those who would otherwise inherit the pledgor. When writing was introduced to the Gold Coast it became common to reduce pledge transactions into writing; this ensured that it could be enforced without much dispute as to the exact terms of the transaction.
The pledgee is entitled to the use and hire of the property while thepledge remains unredeemed. A pledge may be redeemed at any time, provided reasonable notice was served. Thus, a farmer who pledged his farmland cannot insist on redemption just before the crop was ripe for harvest.
Defamation of character is one of the most frequent causes of action under traditional law. Accusations of witchcraft, adultery, and moral turpitude are considered as lowering the general esteem in which people are held or even imputing evil to them. Actions for slander are in effect actions to cleanse the blemish on the accused’s character caused by the malicious statements. To constitute slander the statement in question should have been stated publicly and maliciously. Wives may not use particular words of insult in public to suggest that the husband is worthless.
An action for slander can be avoided if the slanderer publicly recants his or her words and apologises. In certain quarters a slanderer may, upon recanting, be asked to undertake steps ritually to pacify the accused and cleanse the blemish.
4.8 Procedure in the King’s court
It is clear from the foregoing that Gá-Dangme society was regulated by a complex body of legal rules. Such rules had of course to be overseen by the traditional political authorities. Matters of marriage and succession were largely left in the hands of the various households and heads of family. The quarter chief, and ultimately, the King exercised appellate jurisdiction over the decisions of the family heads and the lower political authorities. The King’s appellate jurisdiction served to clarify and crystallise Gá-Dangme customary law, ensuring uniformity between the rules administered by the various towns and quarters. In other cases, especially serious matters, the King’s court exercised original jurisdiction.
To invoke the jurisdiction of the King’s court, a litigator or aggrieved person attended the King’s court and established that they either had a matter serious enough to be put before the court or stated that the matter was on appeal from a lower court. The defendant or respondent was summoned by the despatch of the standard of office of one of the King’s officials. During the trial much emphasis was put on direct evidence (okadi) and witnesses (odasefoi). The facts were carefully re-constructed; if the matter was considered a household conflict (shia-sane) in which the head of family had erred, then in the past, the King’s councillors discreetly advised him on how the matter should have been handled. On the other hand all man-sane or public matters fell into the jurisdiction of the King’s court. However, wulomei were allowed to adjudicate on aspects of man-sane, particularly where one or both of the parties had sworn in the name of a particular god.
Legislation was normally issued through public announcement preceded by the utterance of the words odododiodoo (literally, the crow of a cock); the form of words following the utterance of these words indicate that what is about to be published constitutes state legislation disregard for which would attract appropriate sanction. This was normally the case when legislation was promugated by a quarter or village chief. When the Gá Manche or a major chief issues legislation the usual channels of communication were either a forum of chiefs or by special emissary to lesser chiefs. The legislation was then published to the townfolk in the manner already described.
Although individuals may generally represent themselves in proceedings at the King’s court, they may be accompanied by henchmen or sapatei who often act as advocates, clarifying aspects of the case; and generally advising the litigator as to what steps to take. However, the sapatei have not yet developed into a professional class, representing applicants to the king’s court. A sapate may range from a head of family to an unrelated person skilled in traditional law and custom.
Once a verdict has been reached it is for the successful party to enforce the judgment. A fine, compensation order or even a reprimand are not unusual; but there is an emphasis on reconciliation of the parties and their respective families. Even a fine may be reduced if the losing party offers an apology and undertakes to be of good behaviour in the future. It is for the successful party to ensure the payment of comensation. The usual mode is to visit the judgement-debtor’s usual place of abode and to put such pressure on him or her as to ensure payment of the debt. The creditor often makes persistent public demands for payment at the debtor’s residence; he may also choose to make similar demands at the creditor’s trading stall or other business centre.
Creditors have been known to occasionally employ the services of a wong-tse (spirit medium) to compell debtors to pay up. If payment is not forthcoming the judgment-creditor may resort to the King’s court once more for an order compelling the losing party to pay up. In the past judgment-debtors ended up in the the King’s prison or kpa-bun (sin-hole). Toi-gboloi or those are held in contempt of the king’s court also ended up in the kpa-bun.
The head of family’s court reflects the King’s court in miniature. When a complaint is lodged, the head of family or a trusted representative undertakes an initial investigation, carefully fathering information from family and neighbourhood sources. In exercise of his discretonary powers within the family the head may, if he or she feels the culprit is patently in the wrong, quietly advise him or her to settle or make an apology. If on the other hand, it is felt that evidence needs to be taken, the head may empanel a committee of arbitrators with himself as chair. A date is appointed for the hearing, witnesses are called and the testimonies examined. At the conclusion of the hearing a verdict is delivered and the losing party asked to carry out the ruling of the committee.
N.A. Ollennu’s Principles of Customary Land Law in Ghana, London 1962; The Law of Testate and Intestate Succession in Ghana, London 1966; and N.A. Ollennu and G.R. Woodman’s Ollennu’s Principles of Customary Land Law in Ghana, Birmingham 1985 contain useful but incomplete accounts of the customary law of the Gá.
Ibid. p. 22.
Barbot 1732, pp. 502-503.
Ibid. p. 503.
See generally E.T.A. Abbey, Boi-Ekpaa Yoo, Accra 1968. Useful information can also be obtained from from D. Nii Aponsah, “Gá-Mashi Succession: Ascertaining the True Personal Law”, Review of Ghana Law, Vol. 6 (1974), pp. 116-121; and by the same author, “Law and Social Reality: The Effect of Marriage and Paternity on Membership of Family Among the Gá Mashi People”, Review of Ghana Law, Vol. 16 (1978), pp. 32-46.
Sarbah 1968, pp. 109-110.
Cf. A. Ffoulkes, “Fanti Marriage Customs”, Journal of the African Society, Vol. 7 (1908-1909), pp. 31-48 at 46.
Cf. J.B. Danquah, Cases in Akan Law and Customs, London 1928, pp. 123-128.
Field 1940, p. 41.
Huber 1993, pp. 96-97.
Ibid. p. 99.
Ibid. p. 100.
Ibid. p. 103.
Ibid. pp. 105-106.
Ibid. p. 116.
There appears to be a further distinction between a substantial house of concrete and mortar and shed-like structures or kpéténkpé. Flimsy structures are not generally held to indicate ownership of land; on the other hand, they may be erected by trespassers as a step toward disputing the owners title.
See generally T. Secretan, Going into Darkness: Fantastic Coffins from Africa, London 1995.
See K. Bentsi-Enchill, Ghana Land Law, London 1964, p. 81, esp. Note 67 referring to the case of Captan v. Ankrah (1951) 13 W.A.C.A. 35 in which title to the Awudome lands of Accra North was litigated by the descendants of Manche Ankrah.
See Appendix ….
Reindorf 1895, p. 275.
Manoukian, Akan and Gá-Dangme-Speaking Peoples, …. 19…, p. 106.
On this see in detail, N.A. Josiah-Aryeh, Family, Property and the State in Ghana: Chaning Customary Law in an Urban Setting, Unpublished University of London PhD thesis 1994, esp pp. 532-534.
Bentsi-Enchill 1963, p. 157.
It was at the end of the nineteenth century that “rude native gold work is done at Accra, which chiefly finds its outlet in the manufacture of the zodiac ring, which is worn by almost every one. Studs, brooches, watch chains and bracelets are also done fron copied patterns.” See Macdonald 1898, p. 206.
Cf. Sarbah 1968, p. 84.
The red cockerel is for this reason regarded as the symbol of the Gá-Dangme Okyeame who normally despatches the town-criers; the cockerel symbolises the word or supreme will of the polity.