Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 6TH FEBRUARY, 1959.
Before: OLLENNU J.
JUDGMENT OF OLLENNU J
(His lordship stated the history of the case, and proceeded):—
During the course of his evidence-in-chief the defendant said, inter alia:
“The house was allotted by Government in 1942, and my brother Robert died in 1949. It was my late brother Robert Aryee Aryeetey to whom the house was allocated in 1942. But as I have already said, Robert said our younger brother Kwashie, who was occupying the house, should pay the rents or instalments on the house. During my brother’s lifetime all were paid in his name and all receipt for such payments were given in his name. My said brother Aryee was the owner of the house at the date of his death in 1949. After my brother’s death I got the Department of Housing to substitute my name for his as the owner.”
After that admission by the defendant, there is no necessity to go farther into the question of Robert
Aryee Aryeetey’s ownership.
[p.62] of [1959] GLR 60
Remains the question of native custom as to succession. The question is, who takes precedence in succession to the property of a deceased – his mother, or his brother? I asked Counsel for the defence to give me authority for his proposition that the brother is preferred to the mother. He confessed he could find none. I am not at all surprised that Counsel could not produce a single authority, for as far as I am aware, all the authorities are to the contrary. This house (the self-acquired property of Robert Aryee Aryeetey) became family property according to custom upon his death intestate, and it should be in the possession and control of the head of the family. The parties being Accra people, the family is the maternal family.
I had occasion to deal with the question of succession in a judgment I delivered on the 4th March, 1958, in a suit entitled Mills v. Addy (No. 123/1957). In that judgment I considered all the available judicial decisions and commentaries on the subject, and in consequence I made certain pronouncements. I came to the conclusions
(1) that every woman who has children becomes the originator of a family, consisting of herself and her direct descendants,
(2) that in Accra and the Akan States the head of that family is that woman so long as she lives, and
(3) that she is also the proper successor to any of her children who may predecease her.
That judgment has not been appealed, and nothing has been urged to make me alter the conclusions I
reached in the case as to the custom of succession. I am, therefore, bound to hold in the instant case that plaintiff is the head of her family, and at the same time is the successor to her son the late Robert Aryee Aryeetey.
In view of the admissions made by the defendant, and my finding as to the custom, there will be judgment for the plaintiff for a declaration:
(i) that House No. X224, West Korle Gonno Estate, is the property of plaintiff s family, the original owner having died intestate;
(ii) that plaintiff is the head of the family of, as well as the successor to, her son the late Robert Aryee Aryeetey, who was the original owner of the house;
(iii) that as such head of the family, and successor, she is the person entitled to possession and control of the said house, and
[p.63] of [1959] GLR 60
(iv) that the act of the defendant in having his name substituted for that of Robert Aryee Aryeetey, as successor to the latter was unjustified.
I order that the defendant take immediate steps to have his name removed from the books of the Department of Housing, and to have the name of the plaintiff substituted for his. I further order that defendant do forthwith surrender to the plaintiff all papers, documents, etc., relating to the house.
The plaintiff will have her costs, fixed at £31 18s. od.,including 25 guineas Counsel’s fee.
