HIGH COURT, ACCRA
DATE:12TH NOVEMBER, 1962
BEFORE: APALOO, J.
CASES REFERRED TO
(1) Re Eburahim, deceased; Ansah v. Ankrah (1958) 3 W.A.L.R.317
(2) Ennin v. Prah [1959] G.L.R. 44
(3) Akyaa v. Amanfo, C.A., Cyclostyled Judgments. January-June, 1958, unreported.
NATURE OF PROCEEDINGS
CONTESTED APPLICATION for grant of letters of administration to administer the estate of the late Nana Kwaku Dua Agyeman. The facts are fully set out in the judgment of Apaloo, J.
COUNSEL
G. Davey for Amankwa for the plaintiff.
D. S. Effah for the defendant.
JUDGMENT OF APALOO J.
In this administration suit, the plaintiff claims that she is as against the defendant, entitled to grant of letters of administration in respect of the estate of the late Nana Kwaku Dua Agyeman. The late Nana Kwaku Dua Agyeman died intestate at Kumasi on the 30th March, 1961. The plaintiff is his sister of the full blood and was born immediately after him. The defendant is an uterine brother only of the deceased and was the ninth child after him. The parties hail from Ashanti Mampong where the deceased at one time occupied the Mampong paramount stool. The evidence shows that the deceased lived the best part of his life at Kumasi and was undoubtedly a man of means. He died possessed of substantial property both real and personal. Although illiterate, he was also a moneylender and it was said he was at the time of his death owed moneys by several persons.
The plaintiff claims that she has been appointed by her family to succeed to the deceased, and that in such capacity she is entitled to letters of administration to administer his estate. The plaintiff says that her appointment met with the approval of the Mamponghene, the occupant of the stool to which both parties are subject. The defendant traverses this and for his part claims that he in fact was the person appointed such successor and says that in any event he is a more suitable person to obtain the grant.
At a later stage in this judgment, I will refer to the grounds on which the defendant claims to be better suited than the plaintiff to administer the estate of the deceased and the opinion I formed on those grounds.
[p.140] of [1962] 2 GLR 138
On the issues which are joined, it is, in my opinion, of crucial importance to determine which of the parties was validly appointed successor to the deceased. As the deceased died intestate, his property became, by the well-known canons of customary law, family property. It is established by the authorities that the sovereign right of appointing a successor rests with the family. After all the property belongs to the family and they are best suited to decide which member of the family should be trusted with it. The court respects this sovereign right of the family and, as was held in Re Eburahim, deceased; Ansah v. Ankrah1(1) will in normal circumstances grant letters of administration to the person who has by custom been appointed by the family as the successor of the deceased.
I myself should feel strongly inclined to grant letters of administration to the party I find to have been duly appointed in this case, unless I am satisfied that good grounds exist which make it unwise or imprudent for me to do so.
In customary law, “family” is used in two senses. In its generally accepted connotation it includes almost all a person’s relations however remotely connected and it is sometimes loosely used to include members of the same clan. In its more restricted sense, it means such persons as are beneficially entitled to the enjoyment of an intestate’s self-acquired property. This distinction has been preserved by the use of the coined words “wider” and “immediate” family. In the case of Ennin v. Prah2(2) “immediate family” has been defined in relation to a matrilineal family. It was said to consist of all who are descended matrilineally from the same womb as the deceased, namely his surviving brothers (if any), surviving sisters and the surviving children of his sister dead or alive. I do not know that Ennin v. Prah has ever been questioned and I take it as my stand. That case also decides
that it is the immediate family so defined who are entitled to appoint a successor to the deceased. In this wise, it is analogous to English law where beneficiaries if they are sui juris may themselves appoint a trustee to administer trust property or terminate the trust just as they please.
The individuals who constitute the immediate family of the deceased and who are entitled to make a valid appointment of a successor to the late Nana Kwaku Dua Agyeman are the parties themselves, their two sisters Nana Ama Agyeman and Adwoa Mansah, the five children of the plaintiff and the only daughter of Adwoa Mansah. The evidence satisfies me that not long after the death of the deceased, this family met to consider, among other things, ways of finding money to finance the funeral of the deceased and also to appoint a successor. The date of that meeting was given as the 9th June, 1961. The only members of the immediate family who were not present at the meeting were Nana Ama Agyeman, Adwoa Mansah’s daughter by name Abena Sika and of course the defendant.
Nana Ama Agyeman is now decrepit. It was said she was consulted before the meeting and she gave her blessing to the appointment of the plaintiff as the successor of the deceased. It is not clear why the defendant did not attend this meeting. Although there is no direct evidence that he was invited to that meeting, the probabilities are that he was. There is no reason why he would be left out. All the persons who assembled in house K.O.53 must have been invited there. In any case, the defendant has never made an issue of the fact that he was not invited to the meeting at which it was said the plaintiff was appointed successor. I find positively that Adwoa Mansah was present
[p.141] of [1962] 2 GLR 138
at that meeting. She herself said she was invited to house K.O.53 on the day the plaintiff was alleged to have been appointed successor but she denies being present at the meeting which appointed her. I reject that as false. Her daughter Sika was not present. It is not clear to me why she was not. In any case she was not bound to attend the meeting but she must, like her mother, have been invited. I think it is reasonable to assume that the family acted regularly and in accordance with custom. Sika in any case has not appeared in these proceedings or disputed the constitutionality of the meeting of the 9th June. Other persons belonging to the wider family of the deceased were also present at this meeting. I find that at this meeting, the plaintiff was unanimously appointed successor of the deceased and she gave aseda in the manner required of her by custom. Subsequently, the question as to who was the customary successor came before the Mamponghene. I accept the evidence of Nana Kwasi Attakora, the Akwamuhene and Nana Ababio the Apaahene, that the Mamponghene expressed the opinion that the plaintiff was validly appointed successor to the late Nana Kwaku Dua Agyeman and should be given charge of the deceased’s properties. I reject as untrue the defendant’s contrary account of what took place before the Mamponghene.
I find that the Krontihene of Mampong convened a meeting at Mampong on the 19th June, 1961, for the express purpose of appointing the defendant as successor to the deceased. Apart from the defendant, the only member of the deceased’s immediate family who was present at that meeting was the plaintiff’s sister Adwoa Mansah. It was said an Abena Sika was also present and she may presumably be the daughter of Adwoa Mansah. The defendant said Adwoa Mansah also represented the plaintiff’s elder sister Nana Ama Agyeman. I do not believe that Nana Ama Agyeman authorised Adwoa Mansah to represent her at that meeting. On the contrary, I find that she had expressly approved the plaintiff’s appointment which took place ten days previously. Apart from these persons,
there were a host of persons whose connection with the plaintiff’s family is far from clear. There were also present many occupants of various stools. The defendant testified that these elders appointed him successor on the ground that as he was a man, he should succeed his brother. Agyeman Kussie said that that body was incompetent to do what it purported to do. I entirely agree. Almost all the persons who met were strangers to the plaintiff’s immediate family and have not the slightest semblance of right to take unto themselves what was, after all, the plaintiff’s family business. In my opinion, the Mampong meeting of the 19th June, 1961, and what it purported to have done was no more than a pious farce.
It would seem that since the deceased was a male, the defendant was, according to custom, to be preferred to the plaintiff in succession to him. This view of the customary position was stated by Ollennu, J. (as he then was) sitting as a judge of the Court of Appeal in Akyaa v. Amanfo3(3) as follows: “By Akan custom males are preferred to females in succession to property of a deceased male, and therefore unless it is proved that there are no male members of the family entitled to succeed or the brothers of the deceased are proved to be disqualified the succession would devolve upon a brother . . .”
[p.142] of [1962] 2 GLR 138
This dictum, as counsel for the defendant fairly and properly pointed out, was merely obiter and was not necessary for the decision in which it was made, but it is one of great weight and I for one am prepared to accept it as an authoritative pronouncement of the customary law. But in my judgment, in two important matters, I am satisfied that the defendant has convicted himself of want of ability to be trusted with family property. I am satisfied that in 1936, he secured Nana Kofi Boateng with house O.T.A.8 Block 2. This was family property which was registered in his name. I accept the evidence of the Kuntanasihene that he arranged for this only with the defendant to whom he paid a private commission of £G100. I reject as false the defendant’s account that the transaction was carried out with the knowledge of his late brother. That property, as is not disputed, was lost to the family. I, of course, accept Mr. Victor Owusu’s evidence that the deceased was concerned in instructing him in the action which the defendant brought to recover damages from Nana Kofi Boateng. That does not show that the transaction was with the late Nana Kwaku Dua’s prior knowledge. He must have helped the defendant to litigate in order to retrieve some monetary compensation for the family. I find it established that about one week after the burial of the late Nana Kwaku Dua Agyeman, when all the rest of the family were presumably still in grief at Mampong, the defendant alone returned to Kumasi 0for the professed purpose of formally announcing the death to various sub-chiefs of Kumasi. I am satisfied he surreptitiously entered the chamber of the deceased and took and carried away all his gold ornaments. I feel no doubt he had a covetous eye on these properties. He has refused all requests to return them to the plaintiff and now claims to have lodged them at the bank in a safe deposit. I reject his account of how he came to be possessed of these gold ornaments. I think that on this aspect of the case he was singularly untruthful.
The evidence of Agyeman Kussie shows that these matters at least were in the mind of the family when they preferred the plaintiff as successor to the deceased. I reach the conclusion, therefore, that the plaintiff was validly appointed as successor to the deceased and that in preferring her to the defendant, the family has not transgressed customary law. Accordingly, as I said I should for my part be willing to grant letters of administration to the plaintiff unless good reasons compel me to the contrary.
Mr. Effah for the defendant has made in his address a very admirable review of those matters which, in his submission, make the defendant more suitable than the plaintiff for the grant of letters of administration. He argues that the nature of the job which the administrator has to do in this case calls for a man of some training and education and points out that the plaintiff is handicapped in this respect by her admitted illiteracy. That job, says counsel, consists of collecting of rents, paying of outgoings and other taxes and the general maintenance of the houses forming the estate. I accept the argument that literacy would have been an asset in carrying out this task but it is by no means a sine qua non. Honesty and integrity are better and I am satisfied the plaintiff has these. There must be in this country many successors who are unfortunate enough to be unlettered but who are good administrators nevertheless.
It was also said that the plaintiff is about 80 or just above it and is much too old for a job which requires some physical exertion. It is said the defendant is around 66 and is physically abler than the plaintiff. If
[p.143] of [1962] 2 GLR 138
the plaintiff is an octogenarian, she is an active one indeed. She certainly looks two decades younger than her age and does not appear any less physically fit than the defendant.
Counsel next argued that customary law prefers males to succeed to males. I have already dealt with that aspect of the matter. I am satisfied for the reason I have already given that in this particular case, the plaintiff is preferable to the defendant.
It was finally submitted that the defendant has had a long and distinguished public career and his long experience particularly fitted him for the work of an administrator. But I concur positively in the contrary submission of Mr. Amankwa that such experience as the defendant undoubtedly has in no way qualified him better than the plaintiff to be trusted with family property. The way in which he shifted from one job to another does add up to a suspicion that he was a sort of a rolling stone which could not have gathered much moss. Although I appreciate the force of Mr. Effah’s fair and full argument, I am bound to reach the conclusion in this case that the plaintiff is the person entitled to administer the estate of the late Nana Kwaku Dua Agyeman and I so declare.
In my opinion, the defendant is clearly an executor de son tort. He has without authority meddled with the estate and has off his own bat lodged a substantial quantity of the deceased’s gold ornaments in the bank. I order that the defendant do recover these properties from the bank in the presence of the plaintiff or her duly authorised representative and deliver them to the plaintiff not later than the 20th November next.
The plaintiff for her part shall not be issued with the letters of administration which I have held her entitled to unless and until she files in this court a fresh inventory giving a true account of all the properties of the deceased including not only the debts due to the deceased but the gold ornaments which she will by virtue of this judgment recover from the defendant. The defendant is ordered to pay the costs of this action assessed at 75 guineas.
DECISION
Order accordingly.
