Division: IN THE HIGH COURT, ACCRA
Date: 17TH NOVEMBER, 1959
Before: OLLENNU J.
JUDGMENT OF OLLENNU J.
(His lordship referred to the pleadings, and continued:—)
The evidence led by the plaintiff as to her marriage with the late H.A. Martey was not cross-examined
upon, and there is evidence led by the defendants which shows that the late H. A. Martey lived with
the plaintiff for over 25 years as man and wife, and that the family of the deceased acknowledge the
plaintiff as a wife of the deceased, married under the provisions of customary law.
There are various forms of valid marriage under customary law. The indispensable elements in all of
them are the request of the man to live with the woman as man and wife, and consent thereto by the family of the woman (Asumah v. Khair (p.353 of this volume), where the various forms of customary marriage in Ghana are discussed). On the evidence before me I hold that the plaintiff was the lawful wife of the deceased, married according to customary law.
I turn now to the question of assistance which the plaintiff alleged she gave to her late husband who, she said, was out of employment and a man of straw, deserted by his first wife at the date when she
[p.380] of [1959] GLR 377
got married to him. All the assistance which she said she gave her husband was an allowance of £5 a month, later increased to £10 a month; and her use of his U.A.C. Credit Customer’s Passbook to trade on his behalf. When asked how her husband who “was out of employment” could build a house valued at £6,000 on the allowance which she said she was giving him, she replied “It is only God Who can tell”. She admitted, of course, that the husband was in charge of a cocoa farm at Pramkese left by his deceased father, and that he could have built the house from the proceeds of that farm. In that case the house would be family property, because by customary law any property acquired with the proceeds of family property is itself family property, and is not the self-acquired property of the member of the family so acquiring it.
Again, by customary law it is a domestic responsibility of a man’s wife and children to assist him in the carrying out of the duties of his station in life, e.g. farming or business. The proceeds of this joint effort of a man and his wife and/or children, and any property which the man acquires with such proceeds, are by customary law the individual property of the man. It is not the joint property of the man and the wife and/or the children. The right of the wife and the children is a right to maintenance and support from the husband and father.
Applying that principle, in the case of Okwabi v. Adonu (2 W.A.L.R 268), the West African Court of Appeal, confirming a judgment of the Land Court, held that it is a common feature of family life that a son will work with and for his father, and that therefore, in the absence of strong evidence to the contrary, no presumption will be raised that the property, obtained by the joint efforts of father and son and held by the father, is held by the father in trust for the son absolutely. On the same principle I must hold that, in the absence of strong evidence to the contrary, any property a man acquires with the assistance or joint effort of his wife, is the individual property of the husband, and not joint property of the husband and the wife. There is no evidence in this case which can raise a presumption that the properties acquired by the late H. A. Martey were the joint property of himself and his wife.
Counsel for the plaintiff submitted that, upon a man’s death intestate, his widow, married according to customary law, is entitled in distribution to a one-third share of his self-acquired property, real and personal. This, he said, is the customary law. He led no evidence of such a custom, and was unable to refer the Court to any judicial decision in support of it. In my opinion, this submission is wholly untenable.
[p.381] of [1959] GLR 377
The customary law is, that upon a man’s death intestate, his self-acquired property becomes family property, vested in his family, which will be the paternal family or the maternal family, depending upon the tribe to which the deceased belonged. Except in very rare circumstances a wife is not a member of that family. No member of the family has the inherent right to succeed the deceased; succession is a matter of appointment, or election, by the head and principal members of the family.
Nor has any member of the family an inherent right to a fixed share of the deceased’s property in such a case. Therefore, even where the wife happens to be a member of her husband’s family she will not be entitled to an ascertainable share of the property. The personal property is distributed among the children and other members of the family, the children getting the major share. But the real property, and certain classes of personal property, are not distributed or partitioned; they remain intact, and neither the successor nor any one member of the family can dispose of such property without the consent and concurrence of the head and principal members of the family.
By customary law the right of a widow is the right to maintenance and support by the family of her deceased husband. Her maintenance and support remain the responsibility of the head of the family until a certain stage of the funeral, when the family by custom appoints a member of the family to be her new husband. From then on, that customary husband becomes responsible for the widow. He may not in fact live with her as man and wife, but she is his wife de jure, and he is responsible to maintain her according to his own standard in life, as he would maintain a wife married by himself originally. The widow may opt not to accept the customary husband, in which case the family’s responsibility for her support and maintenance ceases; or the family may opt to give her a send-off, in which case, too, their responsibility would cease. In either case, special custom must be performed to effect the determination of the marriage of the woman into her late husband’s family.
It follows that the only claim open to a widow of a marriage according to customary law is a claim for maintenance and support. This is based upon the principle that when the husband married the woman into his family, he undertook responsibility for her maintenance and support; which responsibility together with the enjoyment of his self-acquired property (if any), falls to the lot of his family. The widow can maintain an action for her support against the head of the family, against the successor to her husband (if one has
[p.382] of [1959] GLR 377
been appointed according to custom), or against the customary husband. I hold, therefore, that the plaintiff,s claim to a one-third share of the estate of her late husband is misconceived.
Finally, I come to the claim of the plaintiff for £91/-/6d, which she alleged to be the balance of an amount she spent on the funeral of her late husband. She gave evidence that she undertook the expenditure upon the authority of one Martey Obaamla, her only witness in this case. Among the items of expenditure given by her are: Coffin, mourning-cloth for the three widows of the deceased, Bus hired for the funeral. On this issue the defendants denied the authority of the said Martey Obaamla to bind the family. They admitted, however, that the family paid the plaintiff for the coffin. I cannot see how the family would accept responsibility for that expenditure if it was incurred without their authority. As to the cloth supplied to the widows, the 1st defendant said that it was not the family who supplied the widows with the said cloth, but rather that the customary husbands who had been given to the widows and had become responsible for them by customary law, each supplied his widow-wife with the requisite cloth.
In contrast to that, the 2nd defendant, daughter of the deceased by his first wife, corroborated the evidence of the plaintiff that it was the family who supplied each of the three widows with the mourning cloth. I reject the evidence of the 1st defendant, and I accept that of the plaintiff and the 2nd defendant. I have no doubt in my mind that these cloths were purchased by the plaintiff upon the request of Martey Obaamla, and that Martey Obaamla had the authority of the family when he requested the plaintiff to incur that expenditure, and that explains why the family supplied those cloths to the widows.
As to the other items of expenditure also, I have no doubt that Martey Obaamla had the authority of the family to request the plaintiff to undertake these, but with the exception of the hire of the Bus, the plaintiff has not led sufficient evidence as to the accuracy of the other items of expenditure. This is particularly so, because when Martey Obaamla came to the witness – box he was not asked a word about any request he made to the plaintiff in respect of those items.
The funeral expenses of a deceased person are by customary law the responsibility of his family. The proper person to be sued in respect of funeral expenses is the head of the family, or the successor appointed by the family to take charge and control of the family property. Upon the plaintiff s own evidence the defendants are not the heads of the family; moreover, there is no evidence that any of
[p.383] of [1959] GLR 377
them has been appointed successor to the deceased. The plaintiff has therefore sued the wrong persons for those expenses, and her claim must for that reason also fail.
DECISION
The plaintiff s claim is dismissed. In the circumstances of this case I make no order as to costs.
