DIVISION: HIGH COURT, HO
DATE: 28 JANUARY 1965
BEFORE: SOWAH J.
NATURE OF PROCEEDINGS
ACTION by the plaintiff for a declaration that as the only child of her father she was entitled to succeed to his properties. COUNSEL
Ofosu Asante for the plaintiff. I. N. K. Wuaku for the defendant.
[p.14] of [1965] GLR 13
JUDGMENT OF SOWAH J.
The summons in this action was instituted in the Jasikan Local Court, but by an order of this court the suit was transferred for hearing and determination here. The main claim of the plaintiff is for “succession to and recovery from the defendant of all the personal properties of her said deceased father.” It turned out that by personal properties she meant all the self or individually acquired properties of her father. The plaintiff says that her father hailed from the Buem state and that succession to property in that state is patrilineal. Her father, Paul Kwasi Akrofi, died on 1 May 1959 and at the date of his death he was in possession of and the owner of three farms, one cement or block building and a house built of swish. On his death one Bonifacious Kwaku was appointed the supervisor of her father’s funeral. The duties of the supervisor were to be in charge of the funeral and the funeral obsequies, to collect donations and to pay any funeral debts that might arise. Bonifacious Kwaku was a cousin to the defendant and an uncle to the plaintiff. After settling the debts it was the duty of the supervisor to hand over to her the real properties of her father. The personal properties were distributed among members of her family. The plaintiff says that the defendant who is a younger brother of her father and the only male member of the immediate family prevented Bonifacious from performing his duties and took over the duties from Bonifacious. She stated further that the defendant has taken possession of her father’s properties but is not maintaining her or her mother and is not accounting to anyone. The plaintiff’s aunt Margaret gave evidence in her favour. She stated that since the death of her brother the defendant had unlawfully assumed dominion of the plaintiff’s father’s properties and was preventing the plaintiff from entering into her rightful inheritance. She stated further that the defendant even refused to pay the debts of her brother which he owed to the Cocoa Purchasing Corporation and she had to pay a portion of the debt. Thereafter she instituted an action against the defendant but the action was settled out of court by the chief of Jasikan. She said that the plaintiff being the only child of her father was entitled to succeed to her father’s estate. The plaintiff further called evidence to show that a woman in the absence of a male could succeed to her father’s properties. In answer to the plaintiff’s case the defendant did not deny that the plaintiff’s father’s estate consisted of three farms and two houses as alleged but stated that in the Buem area women do not succeed to their fathers’ estates. He admitted that if the plaintiff were a man [p.15] of [1965] GLR 13
there would have been no question of his not succeeding to the father’s estate but the plaintiff being a woman, he had been appointed by the family to succeed. He said the persons who appointed him were the head of the clan, the chief of Jasikan and a few of his elders. The head of the clan gave evidence in his support and maintained that he was one of the persons who appointed him. The defendant also called the paramount chief of the Buem state to give evidence as to custom. It seems to me proper to examine the evidence as to custom. It is agreed by all that succession is patrilineal in the Buem state and the plaintiff admits that wherever the children are of mixed sexes the male children are preferred to the female. Thus his own father had a brother and two sisters, one of the sisters, Margaret, was the eldest yet on the death of the plaintiff’s ‘grandfather, her father succeeded to her grandfather’s estate to the exclusion of Margaret. After the death of his father the defendant has taken over the estate. The plaintiff however maintains that in her case, to use an expression from Shakespeare, “I am all the daughters of my father’s house and all the brothers too,” and that she is entitled as of right to succeed there being no other child male or otherwise. Her aunt Margaret the full sister of the defendant supports her in this contention. She further called the chief of Antokor who gave evidence that where -there were no male children a female child was entitled to succeed. The plaintiff went further and called Frida Yaw Kuma who said that on the death of her father, she had an only sister Elizabeth and that their father’s real properties were divided and given to them. She gave examples of other women who had inherited their fathers. On the issue of customary inheritance peculiar to natives of Buem the defendant called the head of the clan. His evidence if I may say so, was far from satisfactory and very confusing. On the issue where a person leaves an only daughter which is the pertinent issue herein, he was obliged to confess that such an issue had never arisen before to his knowledge and frankly he did not know what happens in the circumstance. Kpantey is the head of his clan. In the face of this evidence the defendant was obliged to call further evidence in the person of Nana Eburam Akpandja III, the paramount chief of the Buem state. He was categorical in his version of the custom, namely, that a female never inherits or succeeds to her father and that where such a situation arose, the brother of the father would be chosen, failing a brother a relation would be chosen to succeed and to care for the females. The reason he gave was that all land in the Buem state belongs to the various families constituting the clans and the clans in turn constitute the large tribal units.
[p.16] of [1965] GLR 13
Therefore to allow a woman to succeed to real property might mean alienating the property from the family, since the woman might marry into another distinct family. The children of such a woman will not belong to their mother’s family and therefore if the children inherit their mother, the property will be lost to the original family. He was obliged to explain the case of Frida Yaw Kuma who succeeded to her father’s property, by saying that the real successor was Frida’s husband but out of generosity, her husband gave her a portion of the property; in any case Frida’s children were members of her father’s family. Frida however stated that the property was divided between her sister and herself and no explanation had been given why Frida’s sister should succeed even if the explanation given by the paramount chief in the case of Frida is reasonable. I consider also the reason given by the paramount chief why a woman cannot succeed to her father’s property unsound, because a successor does not acquire an absolute title which will pass to his or her issues. The successor’s title at its best is a determinable life interest, that is to say, if he died still possessed of family property, the same will go to the person appointed by the family. The danger envisaged by the paramount chief will not arise. Further in many states in Ghana, women do succeed to family properties but no one will say by reason of their succession and their possible marriage into other families the properties they inherit or succeed to stand in jeopardy of being lost to their families. Again the paramount chief was pressed as to a settlement of the case of Mamasie Ofei and his sister Felipina Adjei which he conducted, when he and the members of the arbitration had to divide the inheritance of a brother and a sister and to give the sister a share in her late father’s estate. It seems to me the explanation given by the paramount chief that they had to do so because the boy was squandering the estate and was not looking after the sister defeats his reasons why women do not inherit. For in giving the property or a share of it to Felipina, they were in effect alienating the said property from the family. A natural sequence would have been to have found some distant relation to succeed and look after Felipina. I am of the view that if there be such a custom and I do not so find, whereby a person is discriminated against solely upon the ground of sex that custom has out-lived its usefulness and is at present not in conformity with public policy. Our customs if they are to survive the test of time must change with the times. There is however another hurdle before the plaintiff, and that is the principle that a person to succeed to property must be appointed by the family at a meeting convened for that purpose. I am quite satisfied from the evidence that the defendant had taken possession
[p.17] of [1965] GLR 13
of the plaintiff’s father’s properties claiming as he does to be the head of the family. His claim is based on the fact that he is the only male member of the immediate family and also the only educated member. It is a principle of customary law that only the members of the family both immediate and larger, can appoint a successor. Kpantey, though head of the clan from his own showing, is not a member of their family. Kpantey in his confused evidence admitted that the devolution of property of families forming the clan is not his concern and that he only intervenes when there is a dispute. Kpantey though head of the clan does not know how much were the funeral expenses of the late Kwasi Akrofi, indeed apart from the defendant no member of the family knows how much was spent or received. From the evidence before me I am satisfied that: (a) The properties of Paul Kwasi Akrofi are in the hands of the defendant. (b) That the defendant took possession of the properties solely on the basis that he is the eldest male member of the family and the only educated member. (c) That there is no properly appointed head of the immediate family of Paul Kwasi Akrofi. (d) That there has been no meeting properly constituted at which either the plaintiff or the defendant has been appointed to succeed. (e) That the plaintiff is within the range of persons who are entitled to succeed to her father’s estate. In view of these findings I will dismiss the plaintiff’s claim for recovery of possession and for damages but will give a declaration that she is within the range of persons entitled to succeed to her late father’s estate. In my view a proper family meeting should be held to decide the matters above. I consider that this is a proper case in which the costs should come out of the estate. The plaintiff will have her counsel’s costs fixed at 100 guineas and the defendant will have his costs fixed at 75 guineas. DECISION
Judgment for the plaintiff.
K.T
