CHAPTER XII FANTI CUSTOMARY LAW1 I. PERSONS (a) THE FAMILY A Fanti family consists of all the persons lineally descended through females from a common ancestress, provided, that neither they nor those through whom they claim to be the descendants of the common ancestress had severed their connection with that root by (i.) Cutting Ekar, also called Kahire, (ii.) Adoption, (iii.) Partition, or (iv.) Commendation. (i.) Cutting Ekar is a particular mode of disowning any one's blood relation. When a man desires to disown a blood relative, he brings him before the elders of his town or village, and in their presence, as well as in the presence of the other members of his family, an ekar is cut in twain, and saying clearly, "We are now divided," he takes one-half and the disowned the other half. As soon as this ceremony is completed, the two persons have no more share or portion in the property of each other. Where a man is disowned, it affects him alone; but in the case of a woman, her issue is included, for the saying is, the children follow the mother's condition. > In Welbeck v. Brown, February 4, 1884, per Chief Robertson: "The cutting of the custom or ekar is a thing of the past in Cape Coast, as a sign of disownment. It was abolished by Governor Maclean." (ii.) Adoption is practised by persons who have no next of kin to succeed to their property. The person adopted is usually of the 1 [Reprinted from "Fanti Customary Laws: A Brief Introduction to the Principles of the Native Laws and Customs of the Fanti and Akan Districts of the Gold Coast, with a Report of some Cases thereon Decided in the Law Courts," by JOHN M. SARBAH. William Clowes & Sons, Limited, London, 1904. This selection, apart from its systematic arrange ment of the matters treated, is interesting in showing clearly the effect of contact of primitive custom with modern legal ideas.] same clan as the person adopting, but if of a different clan, he assumes the name given him and becomes a member of his clan. To make adoption valid, it must be done publicly, and the person who wishes to adopt must not only get the consent of the family and parents whose child is about to be adopted, but he must clearly state before witnesses his desire and intention. A person cannot adopt another outside his tribe. On account of the custom of descent, which is traced through the female line, it is more usual to adopt females in preference to males. (iii.) Partition is of rare occurrence, where persons live in the same town or locality. It takes place frequently where two branches of one family, living in separate localities, agree to relinquish to the other, all claim to whatever family property that other has in its possession. E.g. The family of Anan is divided into two branches, one residing in the family house at Chama, and the other branch living on the family land at Siwdu. As soon as the two branches agree to give up all claim to the property in each other's possession and retain what each has, none of the members of the Chama branch is considered member of the Siwdu family. The successors to each property will be selected from each branch. If one branch get into family difficulties, and the members thereof decide to sell their possessions, the other branch cannot stop such sale. But if at any time the right person to succeed to one branch of the family be a minor, then the headman or senior member of the other branch is, by his position, guardian. On failure of the legal successors, the two branches merge, and the existing line succeeds to both. Partition does not cause an absolute severance from one's family. In fact it is usual for the headman of one branch to preside at the ceremony by himself or deputy, whenever a successor is about to be installed as headman of the other branch. (iv.) Commendation. When a person is anxious to enter another man's family, so that he may share in the protection and privileges which the members thereof enjoy, he goes before the head of that family, and formally transfers himself and all his worldly possessions into the safe keeping of his new protector. Such is the ordinary commendation. This must not be confounded with that voluntary fellowship of a person in the retinue of some influential neighbour, or with that species of service whereby a man with his family, in town or village, voluntarily accepts a sum of money from an influential king or chief, in order to be counted among his subjects. The head of a family and the whole family can (and in days gone by did so) commend themselves to rich, powerful, or influential neighbours. In former times, where, through straitened circumstances at home, or through a crushing family debt or calamity, a member of the family was sold or pawned, he ceased to be a member of his family; but whenever he was reclaimed, he regained all his rights, privileges, and position in the family. But when a person through misconduct was expelled from the family,' or was sold and got rid of by the family after due deliberation, he ceased to be a member of the family, even if his master gave him his freedom. The members of the family are termed Ebusuafu. The normal condition of a Fanti family being joint, the law throws the burden. of proving that a person has ceased to be joint, or that a person has ceased to be a member thereof, on the person asserting it There is no limit to the number of persons of whom a family may consist, or to the remoteness of their descent from the common stock, and consequently to the distance of their relationship from each other. But the Fanti coparcenary, properly so called, constitutes a much larger body. When we speak of a joint family as constituting a coparcenary, we refer, not to the entire number of persons who can trace descent from a common female person, and among whom no cutting of the ekar has ever taken place; we include only those persons who, by virtue of relationship, have the right to enjoy and hold the joint property, to restrain the acts of each other in respect of it, and to burden it with their debts. Outside this body there is a fringe of persons who possess inferior rights, such as that of residence in the case of children, of maintenance in the case of domestics, or who may under certain contingencies hope to enter into the coparcenary. The ordinary incidents of a family are (i.) Common clan; (ii.) A common penin; (iii.) Common liability to pay debts; (iv.) Common funeral rites; (v.) Common residence; 1 Derx, Governor of the Dutch possessions, in an official communication to Geo. Maclean, the Judicial Assessor, on November 30, 1846, writes: "The 9 ackies alluded to as subsequently borrowed from Effoom by the father of the above-mentioned boy, Quashie Kin, which person, through making of much debts, was publicly abandoned by the family, and according to the black laws the debts are thereby null and void" as against the family of the debtor. In the native courts, and with the experienced Judges of the Supreme Court, these several incidents are most carefully looked into in deciding contending claims, and for any light which may be thrown upon the matter, the opinion of the neighbourhood, and the statements of domestics and friends and servants, are received in evidence. Amonoo v. Ampima.1 (i. Common clan: members of the family belong to the same clan, and to this rule there is no exception whatever.) The slave becomes a member of his master's clan. The children of a freeborn woman belong to their mother's clan and not to that of the father: e.g. a man of the Nsonna clan whose father is an Annona clansman is not at all entitled to any Annona property, for he is not a member of his father's family. Nor can a man be a member of two clans. (ii.) A common penin (elder), also called Egya, father. The senior or other male member of a family who has control of the family, and is its representative, is called the penin, or egya. Such person must of necessity be a member of the same clan; he may be a freeborn person of the heritable class (Dihi) known as the head of the family, managing and directing its affairs; or he may be the person who first brought wealth into the family; or increased its importance by buying slaves or receiving several persons by way of commendation; or who, by some act or deed, had increased the family possessions. The penin has control over all the members of the family and the issue of such members. Where the founder of the family is deceased, then the senior male member in the line of descent is, in the absence of any direction to the contrary, the penin. As such, he is the natural guardian of every member within the family. He alone can sue and be sued,2 as the representative of the family, respecting claims on the family possessions, and he is as much the guardian and representative for all purposes of property as the Roman father - Paterfamilias. The members of the family are bound to obey the lawful commands of the penin; he arranges the rooms in the family residence to be allotted to each,3 and what portions of the family lands each is to cultivate or possess. Rooms and lands so allotted continue in the possession of such persons and their successors until the penin rearranges them. When a member takes upon himself to take possession of the 11 Fanti Law Reports 214. 2 Mensa v. Krakue, 2 F. L. R. 86; 3 Barnes v. Mayan, 1 F. L. R. 180; Asraidu v. Dadzie, 1 F. L. R. 174. family property or a part thereof without the permission of the penin, he can be removed at any time, and another person placed in his stead. So also, a member of the family making any additions to the family residence or property cannot have an exclusive right thereto as against the family, unless at the time of making the addition the penin reserved to him the exclusive or special enjoyment of the addition or improvement. The penin is usually one whose fitness had been recommended by the immediate predecessor, and who had been confirmed in his position by all, or by the majority of, the principal members of the family. The principal members of the family have the right to pass over any person so recommended, and to elect another member of the family instead. Where the penin suffers from mental incapacity, or enters upon a course of conduct which, unchecked, may end in the ruin of the family, or persistently disregards the interests of the family, he can be removed without notice by a majority of the other members of the family, and a new person substituted for him. In the absence of the penin, the eldest male member of the family acts as penin, for the long absence or incapacity of the penin must not prejudice the interests of the family. Like other members of the family, the penin has but a life interest in the immoveable property of the family. (iii.) Common liability to pay debts. Not only does the Customary Law render the person or persons who defray the burial expenses of any person primâ facie liable and responsible for the debts of the deceased, but, as Bosman states, the members of a family and the head thereof are jointly and severally responsible for any family liability. If a member of a family contract debt which benefits the family, or commit a wrong for which he is liable to pay damages or give satisfaction, the other members of his family are bound to pay, or such member must be given up by the family to the person making the claim. If the family do not wish to be held responsible for the future acts of a certain member, there must be a public notice of their decision to that effect, and such person must be expelled from the family, thereby severing his connection with them. A person is liable for the debts and the consequences of the torts of his slaves and the members of his family under his control. While a husband is living with his wife, or is providing for and maintaining her, he is not liable for her contracts, debts, or liabilities, except for any medical ex |