PLANGE v. PLANGE [1977] 1 GLR 312-323
COURT OF APPEAL, ACCRA
21 JULY 1976
SOWAH, ANIN AND FRANCOIS JJ.A.
Adoption—Customary adoption—Essential requirements—Consent of child's parents
and expression of adopter's intention before witnesses—Consent to be objectively
inferred from express words or conduct of child's parents—Legal effect of customary
adoption.
HEADNOTES
The plaintiff and her deceased husband were first married under customary law and
later under the Marriage Ordinance, Cap. 127 (1951 Rev.). The marriage was not
blessed with any children. The couple therefore decided to adopt the plaintiff's infant
niece, A., then aged four. The consent of A.'s natural father to the proposed adoption
was duly obtained. After the couple had collected A. from her mother at Keta, a
ceremony of adoption was performed in the presence of A.'s natural father, the plaintiff's
aunt and the plaintiff and the deceased husband. After the pouring of libation, A. was
renamed after the deceased husband and A.'s natural father handed her to the
deceased husband. After being adopted, A. stayed with the plaintiff and her husband
until the husband sent her to a boarding school. The husband was solely responsible
for paying the school fees of A. who grew up to know the deceased husband and the
plaintiff as her father and mother respectively.
On the death intestate of the husband, the plaintiff applied in the High Court for a
declaration that, she and the deceased husband, had validly adopted A. under
customary law as their daughter and that under the Marriage Ordinance, Cap. 127 she
and A. had a major interest in the estate and she was therefore the proper person to be
granted letters of administration to administer the estate. The defendant, the brother of
the deceased husband, and the co-defendant, the sister, caveated. The defendant
denied knowledge of A.'s adoption by his deceased brother but he admitted having
"seen" A. with his brother for fifteen years or more. There was also evidence that, some
years after the adoption, the deceased in a reply to a question by his sister, the codefendant, said that A. was his daughter and that he had adopted her. In his judgment
(High Court, Accra, 23 February 1968, unreported; digested in (1968) C.C. 88) the trial
judge held that on the facts, there had not been a valid customary adoption of A.
because, inter alia, a valid customary adoption could only be performed "by the head of
the family with the consent and concurrence of the principal members of the family and
at a joint meeting of the two transacting families." He therefore held that A. was not an
issue of the marriage under the Ordinance and that the plaintiff had only a one-third
interest in the estate. On appeal by the plaintiff,
Held, allowing the appeal:
(1) the essential requirements for a valid customary adoption, were the expression of
the adopter's intention to adopt the infant before witnesses and the consent of the
child's natural parents and family to the proposed adoption - such consent to be
objectively [p.313] ascertained or inferred from either their express words or conduct.
Consequently, the consent of the adopter's own family and the previous joint meeting of
the families of the child and the adopter were unnecessary. On the facts of the case,
there was a valid customary adoption of A. and the trial judge had erred in holding
otherwise. Tanor v. Akosua Koko [1974] 1 G.L.R. 451, C.A. followed.
(2) The legal effect of customary adoption was (a) the adopted child acquired the status
of a child of the marriage and enjoyed the same bundle of rights (including rights of
inheritance), duties, privileges and obligations as the natural child and (b) the rights and
liabilities of the natural parents of the adoptee became permanently extinguished and
devolved on the adopting parents.
Decision of Ollennu J.A. (sitting as an additional judge of the High Court) in Plange v.
Plange, High Court, Accra, 23 February 1968, unreported; digested in (1968) C.C. 88
reversed.
CASES REFERRED TO
(1) Tanor v. Koko Akosua [1974] 1 G.L.R. 451, C.A.
(2) Coleman v. Shang [1961] G.L.R. 145; [1961] A.C. 481; [1961] 2 W.L.R. 562; [1961]
2 All E.R. 406; 105 S.J. 253, P.C.; affirming [1959] G.L.R. 390, C.A.
NATURE OF PROCEEDINGS
APPEAL against a decision of Ollennu J.A. (sitting as an additional judge of the High
Court, Accra) wherein he held, inter alia, that the plaintiff 's infant niece had not been
adopted in accordance with customary law and did not therefore qualify as an issue of
the plaintiff's marriage under the Marriage Ordinance, Cap. 127 (1951 Rev.). The facts
are sufficiently stated in the judgment of Anin J.A.
COUNSEL
J. K. Agyemang for the appellant.
Lokko for the respondents.
JUDGMENT BY ANIN J. A.
Bart Kojo Plange died intestate on 16 May 1964 at Accra, leaving behind a widow (the
plaintiff-appellant herein) whom he married firstly under customary law in 1949 and
subsequently under the Marriage Ordinance, Cap. 127 (1951 Rev.), on 4 December
1954. Upon his death, the plaintiff applied to the court below for letters of administration
to administer his estate. The defendant, a brother of the whole blood to the deceased,
entered a caveat to the plaintiff's application and filed his affidavit of interest. As the
parties could not agree on the proper person to whom letters of administration should
be granted, the plaintiff, pursuant to the court's order made under Order 60, r. 21 (2) of
the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), instituted this action. The codefendant (a full sister of the deceased) was later joined upon her own application.
In her statement of claim, the plaintiff disclosed that prior to their wedding in 1954 she
and her husband adopted a girl called Alice and the [p.314] deceased treated her in all
official documents as his daughter. She further pleaded that "by virtue of the said
adoption and other declaration of the deceased, the defendant together with other
members of the family are estopped from denying that the said Alice was the adopted
and lawful daughter of the deceased." The plaintiff's case was simply that since there
was a valid adoption under the customary law of Alice, she and Alice have the major
interest in her late husband's estate; and she is the proper person to be granted letters
of administration to administer the estate.
The defendant denied the allegation of adoption and maintained that Alice is the niece
of the plaintiff and remained in her care and control; that she was neither adopted by
Bart Kojo Plange (deceased) nor treated by him as his daughter in official documents.
There was also a disagreement between the parties in their pleadings about the various
properties which Bart Kojo Plange died possessed of; but the question what properties
belonged to the deceased and the plaintiff separately or jointly was expressly excluded
by the trial judge from trial on the ground that it raised title and possession of land,
which had not been claimed.
The only issues for trial were therefore (a) whether or not Alice was adopted by the
deceased and the plaintiff as their daughter; and (b) who was the proper person entitled
to the grant of letters of administration? Consequently, whether a portion of the estate of
the deceased was ancestral family property or not, was not an issue before either the
trial court or this court.
In evidence, the plaintiff disclosed that as her marriage with the late Bart Kojo Plange
was not blessed with any issue, she and her husband decided to adopt her infant niece,
a girl of four, called Mary Anthonell Robinson. They duly obtained the girl's natural
father's consent to the proposed adoption and collected the girl from her mother at
Keta. The ceremony of adoption was performed in Accra. Those present included the
girl's natural father, a Mr. Robinson, Mrs. Akrobetu (the plaintiff's aunt), her late
husband and herself. After the pouring of libation, the child was renamed Alice Aku
Plange; and her natural father handed her to the plaintiff's husband, who in turn handed
her to the plaintiff. After being adopted, Alice stayed with the couple until the husband
sent her to the Ola Convent at Asikuma. He was solely responsible for paying her
school fees throughout her stay at the convent. The plaintiff further stated that the
defendants knew all along that Alice had been adopted by her and her husband; but
they raised no protest. They were therefore now estopped by their conduct from
challenging Alice's adoption. To illustrate her point, she gave a graphic description of
an incident in 1963 when the co-defendant paid them a visit. On seeing a box bearing
the inscription "Alice Bart Plange," the co-defendant asked her late brother to whom the
box belonged. To her question, the plaintiff's late husband replied: "My daughter Alice; I
have adopted her."
The plaintiff's witness, Mrs. Flora Akrobetu, generally confirmed her account of the
adoption ceremony of Alice. When first she was asked if she [p.315] approved of their
proposal to adopt Alice, she had replied: "My niece I like it." She revealed further that
she once accompanied the couple as they took Alice to the convent at Asikuma.
Alice herself gave evidence and she was not challenged by cross-examination. Giving
her full name as "Alice Bart Plange," she stated as follows: "I am a student in Ola
Training College and I live at Accra. I know the plaintiff. I know her as my mother. I
grew up to know her as my mother and the late Kojo Bart Plange as my father. It was
my said father who sent me to Asikuma Convent. Up to today I stay with Mrs. Plange,
the plaintiff."
The defendant's evidence was as brief as Alice's. On the adoption issue, he stated: "I
know Alice, witness for the plaintiff. She is the niece to the plaintiff. Her father was a
half-brother to the plaintiff. I do not know anything about the adoption which the plaintiff
alleges." Under cross-examination, he denied any knowledge of his late brother's
alleged adoption of Alice; or of her surname being Bart-Plange. However, he admitted
having "seen" Alice with his brother for "fifteen years or more." For her part, the codefendant offered no evidence.
In his judgment delivered on 23 February 1968, unreported, digested in (1968) C.C. 88
the learned judge (Ollennu J.A. sitting as an additional judge of the High Court, Accra)
held, inter alia that:
"Adoption under customary law is analogous to alienation of family property, or
severance of family ties, a very rare custom known by different names in different tribes,
e.g., in Akan it is known as cutting ekar or kahirie among the Ga it is known as tako
mlifoo, and among the Ewe as taku mama. As to severance of family ties see
Amoabimaa v. Badu (1956) 1 W.A.L.R. 227, W.A.C.A., Okaikor v. Opare (1956) 1
W.A.L.R. 275 and Fynn v. Kuma (1957) 2 W.A.L.R. 289.
On the principle that one single member of a family is incompetent on his own, i.e.
without the consent and concurrence of the head and principal members of the family to
make valid alienation of family property, on the same principle, one parent who, after all
is himself a species of property of his family, is incompetent to alineate his child,
another of the family properties.
Therefore a valid adoption under customary law is such a serious operation that it can
only be performed by the head of the family with the consent and concurrence of the
principal members of the family, and at a joint meeting of the two transacting families;
and must be celebrated with certain formalities, rites and customary performance,
including the ceremony of naming the child, giving it a family name. The particular rites
and ceremonies may differ from tribe to tribe, but in each one the fundamental concept
of uprooting from one family and transplanting into a new family must be symbolically
demonstrated."
Earlier on in his judgment he said:
[p.316]
"Adoption purports to effect a transplantation of a person from each of the two natural
families into which he is born, into two other families, thereby depriving the one group of
families of their rights, interests and obligation in the person adopted, and conferring
those rights and interests, and imposing those obligations and privileges upon the other
group of families. Therefore where a person already belongs to a family there is no
necessity for a member of the family to adopt him. The member of the family has a right
and obligation to look after him without any forms and ceremonies."
Turning to the facts of the case, the learned judge observed that "the child was the
niece of the plaintiff. She and her late husband had been caring for her as a foster-child
as by custom any member of the family may do for a child. Such an act cannot give rise
to adoption." He further held that the plaintiff failed to prove an adoption complying with
his above-stated conditions. There was therefore no issue of the marriage under the
Marriage Ordinance, Cap 127, s. 48, and the plaintiff's interest in the deceased's estate
was limited to one-third.
In this appeal learned counsel for the plaintiff argued two grounds together: (a) that the
learned judge erred in holding that the plaintiff failed to prove that the child was adopted
according to custom; and (b) that there was sufficient evidence led to show that the
child, even if stated to be related to the plaintiff, was in fact adopted and cared for or
maintained by the deceased as his "daughter" and assisted by the plaintiff. He first
submitted that Ollennu J.A.'s formulation of the customary law of adoption was, with
respect, erroneous, or at any rate too strict and not justified by any known authority. He
invited us to hold on the evidence that a valid customary adoption was proved; and he
relied heavily on this court's recent decision in Tanor v. Akosua Koko [1974] 1 G.L.R.
451, C.A. In that case, the plaintiff, a Krobo, claimed to have been adopted by one
Dobre, an Akan from Akim Abuakwa, and assimilated into his family. Upon the demise
in turn of Dobre, his two nephews and niece, the plaintiff claimed to be entitled to
succeed to Dobre's niece, since she was the last surviving relation in the maternal line.
On the other hand, the defendants asserted that the plaintiff was only a divorced wife of
Dobre; and that being a total stranger to the late Dobre and to his deceased niece, she
had no claim to her inheritance. The learned trial judge found as a fact that the plaintiff
was customarily adopted into the family of Dobre, and that by virtue of her adoption, she
was entitled to succeed to Dobre's niece. In affirming the learned trial judge's findings
and dismissing the defendants' appeal, this court examined the customary law of
adoption; in particular, the formulation of the law by Ollennu J.A. sitting in the court
below as an additional judge in the instant case of Plange v. Plange.
Apaloo J.A. (with whose leading judgment Lassey J.A. concurred) held - doubting the
correctness of Ollennu J.A.'s statement of the law in the instant case - that the essential
requirements for the adoption of an infant into a family in accordance with customary
law were the consent [p.317] of the child's parents and family and the expression of the
adopter's intention to adopt the infant before witnesses. There was evidence on record
that Dobre obtained the consent of the plaintiff's parents and family to adopt her, and
that he clearly stated his desire and intention to adopt her before witnesses.
While treating the learned trial judge's formulation of the customary law with great
deference, Apaloo J.A., nevertheless, held that the essential requirements for
customary adoption enuciated by Ollennu J.A. as set out above were too stringent and
not supported by any authority. The analogy drawn between customary adoption and
the entirely different concepts of severance of family ties and alienation of property was
untenable; and the three cases cited by him were distinguishable, since they dealt with
neither adoption nor the disownment of a member of a family but rather with the
partitioning of joint family property between branches of the family after severance.
Nothing was said in those cases about the requisite customary formalities for adoption
nor about severance being identical with adoption.
With respect, I entirely concur with Apaloo J.A.'s observation in Tanor v. Akosua Koko
about the fundamental differences in the objectives and goals of adoption on the one
hand and of severance or alienation of family property on the other. As he remarked at
p. 460:
"In cutting ekar [i.e. in severance] the intention is to disinherit or disown a member who
has already been born into a family ... [whereas the] adoption of an infant may be made
by a family on grounds of pure humanity, as in the adoption into the family of a foundling
(see Poh v. Konamba (1957) 3 W.A.L.R. 74) or it may be made to meet a felt family
need as the purchase of female slaves to avoid a failure of lineal descendants. Any
insistence on rigid formalities will be self-defeating."
I would respectfully add that the facts of the instant case provide another example of a
felt need that may prompt a married couple to adopt a child. As the plaintiff explained in
her evidence: "we had no issue of the marriage and my husband said we should adopt
a child."
It is a notorious fact that before the recent introduction of family planning into the
country, our traditional society placed a great premium on procreation and large family
units. Childless marriages were often regarded as a taboo or else frowned upon; and
barren spouses were often pressurised by relations and the in-laws to dissolve their
childless marriages and try their luck in new marriages or concubinage. Hence the
understandable yearning of a childless couple to adopt a child and thereby save their
marriage from possible collapse. One should not, of course, discount the intrinsic
pleasure and satisfaction derived by the adopting couple from adoption and from the
companionship of an adopted child.
The occasions must indeed be infrequent when one finds oneself differing from Ollennu
J.A., an acknowledged expert in customary law [p.318] in his pronouncements on
customary law. And it is with the greatest deference and respect that I dissent from his
four conditions sine qua non of a customary adoption (reproduced supra). My reasons
are as follows. Firstly, like the majority of this court in Tanor v. Akosua Koko I am not
persuaded by Ollennu J.A.'s argument that customary adoption is analogous to
severance of family ties or alienation of family property. The one is conceptually and
fundamentally different from the other two; and they are diametrically opposed in the
objectives, goals, and legal effect. Secondly, the cases cited by him have no bearing on
adoption. Thirdly, his conditions - in particular the third condition - refer almost
exclusively to the ceremonial aspect of adoption and overlook the essential
requirements going to the validity of the act of adoption. It is true there is an implied
reference in his second condition (supra) to the need for the consent and concurrence
of the head and principal members of the family or the natural parents, but even that
condition is, with respect, obscured by the description of the natural parent as a
"species of property." Surely as a legal persona, the natural parent has legal rights
(including a right to give away his child in adoption), duties, privileges and obligations
towards his child; and it is unrealistic in the context of adoption to regard him either as a
"species of property" or else as being "incompetent to alienate his child, another of the
family properties."
With respect, I agree entirely with this court's prescription in Tanor v. Akosua Koko of
only two essential requirements for a valid customary adoption, viz., the expression of
the adopter's intention to adopt the infant before witnesses; and the consent of the
child's natural parents and family to the proposed adoption. It is unfortunate that these
eminently reasonable prerequisites going to the validity of the act of customary adoption
were glossed over by Ollennu J.A. Instead, he concentrated on the consent of the
heads of the two transacting families given at a joint meeting. Speaking for myself, I do
not regard the consent of the adopter's own family as vital for a valid customary
adoption, though it is obviously desirable for the adopter to aquaint his own family
members with news of any adoption made by him. In this case, the adopting parents
were adults, i.e. sui juris; and I do not see the need for the consent of their own families
to an act of adoption which was clearly within their legal competence and impinged on
their matrimonial relations.
With regard to formalities, however, I entirely concur, with Ollennu J.A.'s observation in
his third condition (supra) that: "The particular rites and ceremonies may differ from tribe
to tribe." To the same effect was the second holding of this court in Tanor v. Akosua
Koko (supra) (as stated in the headnote at p. 452):
"It was possible that in Akim Abuakwa, in addition to the said essential requirements
stated above, adoption was evidenced by the slaughtering of a sheep, the consumption
of liquor, the pouring of libation and the placing of the adopted child on a 'family ladder.'
But these were unessential frills and an adoption otherwise valid could not be
invalidated by failure to perform these frills."
[p.319]
Ollennu J.A.'s insistence upon a joint meeting of the two transacting families as a sine
qua non, is in my respectful view, unnecessary and unduly formalistic. Provided the
consent of the child's natural parents and family is obtained - and in my view this can be
objectively ascertained or inferred from either their express words or conduct, I for one,
would not insist upon a prior joint meeting of the families of the child and the adopters
as a condition precedent for a valid customary adoption. I have been unable to discover
any justification for this extra requirement in either customary law or on ground of
policy. On the contrary, to insist on the consent and concurrence of two or more
families is to impose an onerous and, in my respectful view, an unreasonable fetter on
the freedom of action of the adult adopting couple in the adjustment of their matrimonial
relations. The insistence upon this extra consent of the family of the adopter might most
probably frustrate his freely expressed intention and deeply felt intimate need to adopt a
child in order to save his childless marriage.
As to the legal effect of customary adoption, it is clear that, whether it takes place in a
matrilineal or patrilineal community, the legal consequences are the same: Firstly, the
adopted child acquires the status of a child of the marriage, and enjoys the same bundle
of rights (including rights of inheritance), duties, privileges and obligations as the natural
child. Secondly, by virtue of the accomplished act of adoption, the rights, duties,
obligations and liabilities of the natural parents of the adoptee become permanently
extinguished and devolve on the adopting parents.
To sum up, while there may be local variation in the formalities or actual ceremony of
customary adoption, the essential requirements and legal effect are the same in both
matrilineal and patrilineal communities; the consent of the natural parents and family of
the infant adoptee and the expression of the adopter's intention to adopt the infant
before witnesses, being the two crucial prerequisites. I recognise the fact that these
conditions were laid down in Sarbah's Fanti Customary Laws (3rd ed.), p. 34 and
followed by this court in the Tanor v. Akosua Koko - both of them having particular
reference to Akan custom. However, it has not been demonstrated that these essential
requirements do not hold good under the Ga customary law. I would therefore apply
them to the facts of the case; and hold that there was unchallenged evidence of the first
essential condition, namely, the public declaration of the adopter's intention to adopt the
infant before witnesses. The plaintiff testified about the adoption ceremony before the
girl's natural father Mr. Robinson, Mrs. Akrobetu, herself and her late husband, when
the latter announced to the gathering his intention to adopt the child of four since he and
the plaintiff had no issue of their own after three years of marriage. Her evidence on
this vital issue was corroborated by Mrs. Akrobetu, who quoted the exact words of the
plaintiff's late husband, viz. - "This is the girl I want to adopt, and Mr. Robinson [i.e., the
natural father] likes it."
With respect to the consent of the family of the adopted child, it must be remembered
that the child originally hailed from a patrilineal family.
[p.320]
Therefore it is the consent of the father's line which is the relevant consent for our
purpose. That her father himself freely consented to her adoption and even participated
in it, stood unchallenged on the record and there was no rebutting evidence of
opposition from any member of Alice's father's family to her adoption. Indeed the
plaintiff stated in evidence that nobody had ever claimed the child as his. I would hold
the child's father's consent as crucial in this case.
For reasons already stated, I do not regard the consent of the adopter's family as vital. I
am fortified in this view by the decision of this court in Tanor's case. Even if I am wrong
and it can be shown that under Ga customary law the consent of the adopter's own
family is indispensable for a valid customary adoption, I would, nevertheless, hold on
the facts of this case that at least one leading member of that family, namely, the codefendant, knew about the accomplished act of adoption at first hand from her brother
(the adopter) and acquiesced in it. It would be inequitable and unconscionable to allow
her to impugn the adoption after her brother's death. I infer the co-defendant's
acquiescence from the plaintiff's unrebutted story about her sister-in-law's visit to the
matrimonial home in 1963, a year before her husband's death, when she was informed
by her brother that the box labelled "Alice Bart Plange," belonged to "my daughter Alice,
I have adopted her." Even though the co-defendant sought and received confirmation
from the plaintiff, nevertheless, she kept quiet about the matter. In the court below, the
co-defendant neither cross-examined the plaintiff on this episode nor gave evidence.
She must, in my view, be deemed to have admitted the truth of the 1963 episode; and it
is reasonable to infer from this episode her acquiescence in her brother's accomplished
act of adoption of Alice Plange. It is true that the defendant himself denied any
knowledge of the alleged adoption in evidence. However, under cross-examination, he
admitted having "seen Alice with his brother for the past fifteen years." I would of course
not deduce his acquiescence in Alice's adoption from this equivocal piece of evidence.
Suffice it to say that a leading member of the adopter's own family, like the codefendant, a sister of the whole blood, acquiesced in Alice's adoption during the
adopter's lifetime, even though I would not elevate the consent of the adopter's family
into an indispensable condition for the validity of customary adoption.
In his fourth condition (supra) Ollennu J.A. stated that "where a person already belongs
to a family there is no necessity for a member of the family to adopt him." (The
emphasis is mine.) Presumably the learned judge was driven to this conclusion by his
categorisation of adoption as being analogous to the severance of family ties or the
alienation of family property; in particular, by his view that adoption involves "the
uprooting of a person from one family and his transplantation into a new family." For my
part, I cannot see any objection on grounds of either customary law or equity or even
logic to an adult member of one family adopting an infant belonging to another family,
provided the necessary consents of the child's natural parents and family are obtained
and there is clear [p.321] evidence of a public declaration of the adopter's intention to
adopt before witnesses.
Where, as in this case, the intending adopter's own marriage is childless and the natural
father consents to his infant child being adopted by his brother-in-law and maternal halfsister, and the natural mother is also a consenting party, I personally can see no
possible bar in customary law to such an adoption, which is also acquiesced in by the
natural family of the adoptee. Besides, the question whether or not there is a necessity
for adoption in a particular case, deserves, in my respectful opinion, to be considered
primarily from the view-point of the intending adopter and not from the angle of the
adopter's family; for it is, after all, the adopter who takes the initiative to adopt in
response to a felt need. The adopter being sui juris, is legally responsible for his own
actions; while the adoptee on account of its infancy and legal disabilities is under the
control and dominion of its natural parents and those like the members of its family who
stand in loco parentis to the infant adoptee.
With regard to the learned judge's conclusion that the evidence adduced by the plaintiff
merely established the fact that Alice was a foster child of the plaintiff and her late
husband, I would remark that the case was fought on the basis of adoption vel non with the plaintiff affirming and the defendants denying the fact of Alice's adoption. The
defendant himself merely denied knowledge of the alleged adoption; his defence was
not that Alice was the foster child of his late brother. The co-defendant elected not to
give evidence and therefore did not subject herself to cross-examination, even though
the plaintiff in evidence had alleged that she was distinctly informed by her brother in
1963 about his adoption of Alice.
Again, one should not ignore the telling effect of the unchallenged evidence of the
adoptee herself. She gave her full name as "Alice Bart Plange" and stated solemnly in
evidence that she knew the plaintiff as her mother; and that she grew to know her as
her mother and the late Kojo Bart Plange as her father. It is also significant that she
dropped her natal name of Mary Anthonell Robinson and was renamed Alice Aku Bart
Plange on being adopted. Exhibit A, her school fees receipt dated 16 January 1962,
confirms the fact that her official Christian name in 1962, ten years after the alleged
adoption, was "Alice" and not her natal name of "Mary." I hold that exhibit A is some
corroborative evidence tending to support the plaintiff's case that the girl was renamed
"Alice" on her being adopted.
In my considered view, the ceremony of adoption as recounted in evidence by the
plaintiff and her witness (Mrs. Akrobetu) sounds reasonable. It followed the general
customary pattern of invoking the blessing of the ancestral spirits on the solemn act
about to be performed through the pouring of libation. The handing over of the child by
its natural father to the adopters through its family representative (Mrs. Akrobetu) was at
once symbolical of the natural father's renunciation of his parental [p.322]
responsibilities for the child and of the vesting of same in the adopter; while the
renaming of the child with adopter's patronymic name put the final seal on a valid act of
adoption.
I would therefore conclude that Alice Bart Plange was in fact adopted in 1952 under the
customary law; and that she was an adopted issue of the lawful marriage of the plaintiff
with the deceased Kojo Bart Plange. I would further hold that the plaintiff, as the lawful
widow of the deceased, is entitled to one-third share of his estate; and that Alice Bart
Plange being the adopted child of the couple married under the Marriage Ordinance,
Cap 127, is the lawful issue of the said marriage under section 49 of Cap. 127. By
virtue, of section 48 of the same Ordinance, as judicially interpreted in Coleman v.
Shang [1959] G.L.R. 390, C.A. and [1961] G.L.R. 145, P.C. the plaintiff and Alice
Plange are entitled to two-third share of the estate of Kojo Bart Plange (deceased).
Acting under section 79 of the Administration of Estates Act, 1961 (Act 63), I would hold
that the plaintiff, as widow, and the defendant, as customary successor, are jointly
entitled to the grant of letters of administration in respect of the estate of Kojo Bart
Plange (deceased). In the event, I would allow the appeal.
JUDGMENT OF SOWAH J. A.
Post mid-twentieth century Ghanaian society is still essentially rural and the urban cities
aside, the ordinary rustic still thinks in terms of the family as the hub of socio-economic
life.
A birth in the family is broadcast to all members of the family and amongst the Gas a
special ceremony is performed in the naming of the child, at which almost all the
important members of the family are expected to be present. The adult life of a member
is not altogether free from control of the elders of the family; if the member is a woman,
she cannot marry without prior consent of her family even though she might be of age.
The destitute is the responsibility of the family; there being no state or old age pensions
or social security benefits. Upon the death of a member, even a rich member, the
family bears the funeral expenses. It is therefore natural to expect that the principal
members of the family ought to be made aware when an unnatural addition is being
made to the membership of the family.
The issue here is what are the essentials of a valid adoption at customary law? Are
they so formalised as to make any variation in the act of adoption invalid?
It has been said that native custom consists in what is reasonable in the particular
circumstances of the case. The test therefore as to whether the essentials of a
particular custom are reasonable or not must be carried out within the context of rural
society. In this case, would the average rural dweller consider it a reasonable
requirement that the family should at least be informed when a new member, albeit a
juvenile, is being introduced into the family who would acquire all the rights, privileges
and obligations inherent in the membership of the family? The answer would be in the
affirmative. In a wealthy family, upon adoption, the adoptee may succeed to family
property; he may even at majority, with permission [p.323] of the head and consent of
the principal members of the family, acquire usufructuary rights over family property.
In my view it seems reasonable for our ancestors in the olden days to insist that a
stranger or a juvenile who is being introduced, assimilated and made a member of the
family should be so made with the consent of the head and principal members of the
family. But time changes and the society of the nineteenth century is different and a far
cry from the present day society. Individual ownership of property, as it is known now,
was unheard of. Be that as it may, I think our customs must consciously be imbued with
vitality to accommodate the changing times, for strict adherence to old customs which
were useful 100 years ago, will only atrophy them.
It seems to me sufficient under modern conditions, if the family of the adopter was made
aware of the intention to adopt and did not raise objection. The family could of course
refuse its consent so as to make the new member ineligible to succeed to family
property; notwithstanding its refusal however, the adopter ought to be able to carry his
intention into effect. Indeed the adopter can now do so under the Adoption Act, 1962
(Act 104), without obtaining the consent of his own family. The parents of the juvenile
adoptee must give their prior consent in a positive manner in order to make valid the
adoption of their child.
I have had considerable doubt as to whether the family of Plange knew of the adoption
or whether there was sufficient evidence of such knowledge; however, upon reflection,
and in the interest of the child, I will fall in with the views of my brother Anin. For the
child's evidence was positive that she knew of no other parents than the deceased and
his wife as her father and mother; they have nurtured and educated her all her life and
had even given her a new name.
Perhaps if this were an action for succession to family property, one might demand a
much higher standard of proof. Accordingly I will cast my vote for allowing the appeal.
JUDGMENT OF FRANCOIS J.A.
I also agree.
DECISION
Appeal allowed.
S. Y. B.-B.