HIGH COURT, ACCRA
DATE: 22ND JANUARY, 1962
BEFORE: OLLENNU J.
CASES REFERRED TO
(1) Ankrah v. Aryeh (1957) 3 W.A.L.R. 104, P.C.
(2) Yawoga v. Yawoga (1958) 3 W.A.L.R. 309
(3) Mills v. Addy (1958) 3 W.A.L.R. 357
NATURE OF PROCEEDINGS
Claim by plaintiffs for a declaration that they are joint owners with the defendants of certain family property.
COUNSEL
A.W. Acquaah for the plaintiffs.
C.C. Lokko for the first five defendants.
S.M. Codjoe for the sixth defendant.
[p.17] of [1962] 1 GLR 15
JUDGMENT OF OLLENNU J.
The plaintiffs are nephews to the first five defendants, the first, second and fourth plaintiffs being sons of their deceased paternal brothers, and the third plaintiff, a son of a paternal sister of the first five defendants. The claim made by the first, second and fourth plaintiffs was made on behalf of themselves and all the other children of their deceased fathers: the late John Sackey Quarcoopome, Macdonald Sackey Quarcoopome, and Henry Mensah Quarcoopome; and that made by the third plaintiff was on behalf of himself and of all the other children of his mother, the late Mary Aryealey.
The land with buildings thereon, the subject-matter of the suit, known as House No. D680/2, Salaga Market Street, Accra, was the individual self-acquired property of one John Quarcoopome, deceased, grandfather of the plaintiffs, and father of the first five defendants. The said John Quarcoopome died on the 12th October, 1916, leaving a will dated the 8th March, 1910, probate of which, exhibit A in this suit, was granted on the 20th May, 1921, to James Tetteh Quainor, one of the executors named therein. By that will the said John Quarcoopome devised the property in dispute as follows: – “I bequeath devise and give unto my children John Sackey alias Saki Nukpa, Macdonald Sackey alias Saki Annan, Emmanuel Sackey alias Kofi Saki, Daniel Sackey, alias Otublohum Saki, Henry Sackey alias Mensah, Joseph Afrah alias Afrah, Nathaniel Okoe alias Okoe, Amos Kwao alias Kwao, Abla Yawa, Ayeley, Manan Afua Adjua and Afuafio alias Ajoe for life and as tenants in common my house situate at Ussher Town Accra consisting of eleven rooms and two shops or stores.
I declare that rents for the larger of the two shops or stores should be collected by John Sackey alias Saki Nukpa and Macdonald Sackey alias Saki Annan for their own use and benefit exclusively.”
Since the main devise of the whole property to all the children was for the life of each of them, the proper construction of the clause in favour of John Sackey and Macdonald to collect the rents of the larger of the two stores for their exclusive use, is that they were to enjoy that exclusive right for their joint lives.
In law, the will took effect upon the death of the testator: it follows that upon the death of the testator the property vested only in those of his children who survived him, and those children took as tenants in common holding in equal shares, each for his or her life.
The evidence in the case shows that nine of the devisees named in the will survived the testator, their father, and that four of those nine, parents of the plaintiffs, have since died. Therefore the life interest which each of such child had, died with him or her, and the shares which each such child had fell into residue.
The will made no disposal of the residuary estate, with the consequence that the share which each child enjoyed during his or her life, descended upon his or her death as upon the intestacy of the testator John Quarcoopome, the original owner. Such shares cannot pass under the will of any of the life tenants, and cannot pass to the successor of any of them upon intestacy.
It follows that even if the plaintiffs are successors to their deceased parents, as they claimed to be, they cannot merely by being such successors have any right, title or interest in the property in dispute, the right, title or interest of those through whom they claim having died with them.
[p.18] of [1962] 1 GLR 15
That being the position, the claim of the plaintiffs for a declaration that as successors to their aforesaid parents they are joint owners with the first five defendants of the premises in dispute, has no legal foundation.
The legal position of the property at the date of the writ is that five-ninths of it is vested in the first five defendants in equal shares, each for his or her life, and the remaining four-ninths is vested in those who by customary law would be entitled to it upon the intestacy of John Quarcoopome, the original owner, namely his family. The question then is, who constitute that family?
Evidence was led for the plaintiffs that their grandfather, the said John Quarcoopome, was a Nigerian who settled in Accra, therefore by customary law he became a Ga Mashie (Accra) man. Consequently the personal law which should regulate succession to his estate is the custom of succession appertaining to Ga Mashie, which is a matrilineal family society. It is not clear upon the evidence whether or not the mother of the said John Quarcoopome was a Ga Mashie woman, and no evidence has been led to show that he John or any of his parents identified himself with any family in Accra; they might well have, judging from the names of their children as set out in the will of John Quarcoopome. The uncontradicted evidence is that John Quarcoopome had no maternal relations in Accra. That being the case, his family for purposes of succession would be constituted by his children
and their descendants: Ankrah v. Aryeh.1(1)
(1) In that family of John, the defendants as children of the said John Quarcoopome, and therefore the closest in consanguinity to the originator of the family, are principal members of the family, and by operation of law the eldest child of each of the deceased children of John, or the duly appointed successor to each deceased child, would also be a principal member of the family: Yawoga v. Yawoga.2(2)
(2) Again by customary law, in the absence of a formally appointed head of the family, the oldest male member of the family, and failing male, the oldest female member, is automatically the head of the family: Mills v. Addy.3(3)
(3) It follows that the first five defendants are, without doubt, principal members of the family of their deceased father, the late John Quarcoopome, and the oldest male among them is the head of that family or else all the defendants would together be joint heads. As descendants of the said John Quarcoopome all the grandchildren of John Quarcoopome are members of that family and their parents having died, the plaintiffs as well as the eldest male child or duly appointed successor to all other deceased children of the said John Quarcoopome including those who predeceased him, would also be principal members of the family standing in the shoes of their
respective fathers or mothers, but their appointment or recognition as such should have the consent and concurrence of the first five defendants.
Again by customary law, the head of the main family, acting together with the principal members thereof, are the proper persons to deal with family property, they act also for the branch families except with respect to property of the branch over which they together with the principal members of the branch have appointed a successor.
[p.19] of [1962] 1 GLR 15
Now the property in dispute is in a rather peculiar position; four-ninths of it is vested in the family of John, five-ninths of it vested in the defendants in equal shares, each for his or her life with remainder to the family of John. The defendants are each entitled without let or hindrance to do what he or she likes with his or her life interest in the property, but in such a way as not to destroy or render the remainder valueless. At the same time they are the proper and most important persons to hold, and deal with, and administer the four-ninths’ share now vested in the family, and the family’s interest in the remainder in the five-ninths for the benefit of themselves, the plaintiffs and of all members of the family yet unborn. Upon the death of the last of the defendants, the whole property would fully vest in the family which would then consist of all grandchildren and other direct descendants of the said John Quarcoopome, including the children of the first five defendants.
Now the interest which members of a family have in family property is not that of joint interest or the interest of tenants in common as known to English law. It is a communal interest, a right to the enjoyment of an undivided share, a right to occupation of a portion of the property and to user thereof, such that if the property is being dealt with by some members of the family in a manner prejudicial to the whole family or to posterity, others can intervene and save it for the benefit of all. Thus the claim by the plaintiffs that as members of the family they are joint owners with the defendants is misconceived.
The position clearly is this: the plaintiffs cannot question the right of the defendants in their dealings with their life interest in the five-ninths’ share of the property. They however, have a right to watch the communal interest which they together with the defendants and other descendants of John now have in the four-ninths’ share of the estate and the future communal interest which all descendants of the late John, including children of the defendants, have in the whole of the property, so that so long as a dealing with the property makes provision for all concerned, it will be good, otherwise not.
Now a demise of property is not alienable which destroys the property for the remainder-man, but so long as the future interests are protected it would be alright.
At this point it is necessary to look at exhibit D the lease or proposed lease between the first five defendants and the sixth defendant company. That document shows that the defendants are aware of the rights of the family as successors to John to the four-ninths’ part of the estate; and to the whole property in the future; but in spite of that awareness they have had the deed drawn up in a way which does not appear to protect the said interests now or in the future. The document makes it appear that the first five defendants are tenants in common of the whole property, it also recites that they, the first five defendants as representatives of the family of John Quarcoopome are trustees of the estate of the late John Quarcoopome; but the document does not show that it is made with the customary consent and concurrence, and it does not show either in what respects the first five defendants are trustees.
The defendants have not led any evidence and so the court has not had the opportunity of knowing any explanations they might have. Counsel for the two sets of defendants each submitted, when the plaintiffs sought to tender exhibit D that there was no concluded lease and that the
[p.20] of [1962] 1 GLR 15
said document only represents terms discussed but not a concluded lease. Thus although the plaintiffs have not brought the proper action, they have at least shown that no effective demise can be made of the four-ninths’ portion of the property in the manner proposed by the defendants.
In the result the plaintiffs’ claim is dismissed.
DECISION
Claim dismissed.
