HIGH COURT, CAPE COAST
Date: 12 NOVEMBER 1973
EDWARD WIREDU J
CASES REFERRED TO
| (1) | Amissah-Abadoo v. Abadoo [1973] 1 G.L.R. 490. |
| (2) | Chapman v. Ocloo (1957) 3 W.A.L.R. 84. |
| (3) | Ababio IV v. Quartey (1914) P. C. ‘74-’28, 40. |
| (4) | Quarshie v. Aryeetey [1959] G.L.R. 60. |
| (5) | Atta v. Amissah, Court of Appeal, 4 May 1970, unreported;digested in (1970) C.C. 73. |
| (6) | Larbi v. Cato [1959] G.L.R. 35. |
| (7) | Owoo v. Owoo (1945) 11 W.A.C.A. 81. |
| (8) | Beyeden v. Bekoe (1952) D.C. (Land) ‘52-’55, 38. |
| (9) | Ansah v. Sackey (1958) 3 W.A.L.R. 325. |
| (10) | Mensah v. Lartey [1963] 2 G.L.R. 92, S.C. |
| (11) | Adu v. Sarkodee Adoo, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C. 59 |
| (12) | Amoabimaa v. Okyir [1965] G.L.R. 59, S.C. |
| (13) | Krabah v. Krakue [1963]2 G.L.R. 122, S.C. |
| (14) | Santeng v. Darkwa (1940) 6 W.A.C.A. 52. |
| (15) | Asseh v. Anto [1961] G.L.R. 103, S.C. |
| (16) | Boham v. Marshall (1892) Sar.F.C.L. 193. |
| (17) | Bede v. Sakyiama (1914) D.C.A.L. 201. |
| (18) | Halmond v. Daniel (1871) Sar.F.C.L. 182. |
| (19) | Swapim v. Ackuwa (1888) Sar.F.C.L. 191. |
| (20) | Inkrabeah v. Acquakoah (1887) Sar.F.L.R. 50. |
| (21) | Kwakye v. Tuba [1961] G.L.R. (Pt.II) 535. |
| (22) | Ankrah v. Ankrah (1957) 3 W.A.L.R. 104, P.C. |
| (23) | Quarcoopome v. Quarcoopome [1962] 1 G.L.R. 15. |
NATURE OF PROCEEDINGS
ACTION by the plaintiff, customary successor and head of the immediate family of A., the deceased, for inter alia, a declaration of title to a house built by A. on family land, wherein the defendant, the widow of A. also counterclaimed that the house was the self-acquired property of A. The facts are fully set out in the judgment.
COUNSEL
J. B. Short for the plaintiff.
Dr. W. C. Ekow Daniels for the defendant.
JUDGMENT OF EDWARD WIREDU J
The plaintiff in this action is the younger brother, customary successor and the head of the immediate family of the late lawyer Abadoo of Cape Coast and the defendant is his lawful widow. The controversy between them is about the ownership of house No. G8/2, Tantri Lane, Cape Coast, and a plot of land situate at Kotokuraba also in Cape Coast.
The declaration sought by the plaintiff in his capacity as the head of the late Abadoo’s family reads as follows:
“A declaration that house No. G8/2, Tantri Lane, Cape Coast, as well as a plot of land at Kotokuraba Road, Cape Coast. are the property of the plaintiff’s family and not the private property of the late barrister D. Myles Abadoo.”
The defendant for her part by her counterclaim claims a declaration:
“(a) That house No. G8/2, Tantri Lane, Cape Coast, as well as the plot at Kotokuraba Road, Cape Coast, were acquired by the individual effort and individual means of the late barrister Abadoo and as such [are] the self-acquired property of the late barrister Abadoo, his heirs and successors and not the property of the plaintiff’s family.
(b) That the defendant and her children of the marriage between her and the late barrister Abadoo are entitled to remain in the said house No. G8/2, Tantri Lane, Cape Coast.”
It is not in dispute that during the lifetime of the late lawyer Abadoo he lived in the disputed house exclusively with the defendant and their children. The events which seemed to have provoked the institution of the plaintiff s action are that by an instrument dated 19 December 1964 and described as the last will and testament of lawyer Abadoo, which instrument was by consent admitted in this proceeding as exhibit 1 the two disputed properties were devised as follows:
“(a) I devise my house No. G8/2 situate at Tantri Lane, Cape Coast, which was built solely by me during the lifetime of the parents in 1929-1930, without any assistance financially or otherwise from any member of the family upon the earnest request of the parents in order to prevent the erosion of the land on the western side of Ebenezer Hill house No. G9/2 due to rainfall to my dear wife Chrissie Millie Abadoo and my three sons, namely, Josiah Myles Abadoo, Daniel Myles Abadoo, Junior, and John David Ekum Abadoo all of Cape Coast together with all the furniture, pictures, bedsteads and things therein, to hold, possess and enjoy the same absolutely as tenants in common. Also to my said wife and her children, I devise my house No. E30/2 situate at Elmina Road, Cape Coast, for their absolute use and to hold, possess and enjoy the same as tenants in common . . .
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(i) I devise my land situate at Kotokuraba Road, Cape Coast, measuring 50 feet by 100 feet long sold by nephews, the Holdbrooks, to establish a cornmill business at Amanful and re-bought by me through the late Sam Bentil, a licensed auctioneer, Cape Coast, to my second son Daniel Myles Abadoo, Junior, to erect with his own money a modern building or house thereon for his own use as soon as would be possible for him to do so.”
The plaintiff s statement of claim shows that on the death of lawyer Abadoo his private apartments in the disputed house were closed by the family apparently in accordance with customary law practice. This action by the family appeared to have caused some concern to the defendant and her son Daniel who apparently are devisees of these properties under exhibit 1.
Paragraphs (10)-(13) of the plaintiff s statement of claim which set out in detail what seemed to have sparked off the present action read as follows:
“(10) On or about 31 December 1972, the defendant and her son Daniel Abadoo informed the plaintiff and other members of his family that if by 10 a.m. that morning they had not surrendered the keys of lawyer Abadoo’s private apartments (which apartments according to custom were to remain closed for a year after the death of lawyer Abadoo) the plaintiff and his family would be taken to the Regional Commissioner, there to face the consequences.”
(11) When this threat was ignored the defendant’s son forcibly broke open the closed apartments and ransacked the rooms:Daniel Abadoo explained his conduct by saying that the house had been bequeathed to his mother and her children and that he was the sole executor of his father’s will.
(12) The plaintiff’s mother Sarah Abadoo bought a plot of land at Kotokuraba Road, Cape Coast, adjoining late Winful’s house,for plaintiff’s brother-in-law one Holdbrook then in Nigeria. After his death the land was given to plaintiff’s sister Mrs. Holdbrook. After her death her children mortgaged the land to raise funds for erecting a cornmill. Later lawyer Abadoo redeemed the land on the understanding that the children would repay him. In the event lawyer Abadoo died without the children being able to refund the sum of 0180.00 involved.
(13) This land the aforesaid Daniel Abadoo, defendant’s son now claims has been bequeathed to him under the so-called will of his father: Wherefore the plaintiff claims as per his writ of summons.”
These averments are however denied in the statement of defence.
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When the plaintiff’s writ was served on the defendant, she entered an appearance under protest and later filed an application to have the plaintiff’s writ set aside and his action dismissed as disclosing no reasonable cause of action against her. This application was filed the very day that the plaintiff’s statement of claim was filed. The application was opposed and was later dismissed (in my earlier ruling reported in [1973] 1 G.L.R 490), principally on the ground that it was brought prematurely. The defendant however did not leave that point to rest there and by paragraphs (16) and (17) of her statement of defence summarised the same point as follows:
“(16) The defendant says that the action against her is misconceived and in law not maintainable against her but rather against the executor or the appropriate person. Hence the action ought to be dismissed.”
“(17) The defendant says that the plaintiff is not entitled to any declaration either in respect of house No. G8/2, Tantri Lane or the plot on which the said house stands.”
The averments raised by the above paragraphs from the arguments submitted, were directed against the plaintiff s claim in respect of the Kotokuraba land. It was contended first on behalf of the defendant that on the plaintiff s own pleadings he had failed to show the capacity that would entitle him to maintain his action in respect of that property and secondly that on the facts before the court the defendant was not the proper person to be sued in respect of that property since the plaintiff has not shown any connection between that property and the defendant. In reply learned counsel for the plaintiff who did not appear to have had an answer to the defendant’s contention, submitted that in declaratory actions the locus standi of the plaintiff was not relevant and that so long as the defendant had deemed it fit to join issue with the plaintiff on the subject-matter of the claim there arose a triable issue which called for determination by the court.
I have no hesitation in rejecting the contention of learned counsel for the plaintiff. The law as I have always understood it, imposes a duty on a plaintiff for a declaration of title who maintains his action in a particular capacity to show by evidence brought by him or on his behalf that he is entitled to the declaration sought in that capacity: see the case of Chapman v. Ocloo (1957) 3 W.A.L.R. 84. The plaintiff in such a situation can succeed only if he were able to establish his capacity to sue in respect of the property in respect of which he is seeking the declaration or he must be able to establish by evidence a capacity which would have entitled him to sue in respect of that property, in which latter case he may be granted leave to amend his original capacity: see the case of Ababio IV v. Quartey (1914) P.C. ‘74-’28, 40. The granting of the amendment even though discretionary will be acceded to because it has the advantage of avoiding relitigating the same case between the same parties thereby avoiding the multiplicity of suits. The only occasion that a plaintiff will be relieved of the duty of establishing his capacity will be where his capacity has not been put into issue.
Even though the plaintiff on the undisputed evidence is the head of the Abadoo family the question here is the relationship between the said family and the Kotokuraba land. A short history of the land as pleaded in paragraph (12) of the statement of claim above shows that original title to the disputed plot was in one Holdbrook, a brother-in-law of the plaintiff. This property on the death of Mr. Holdbrook passed on to his widow Mrs. Holdbrook, a sister of the plaintiff. It is not clear from the facts before me how Mrs. Holdbrook came by the plot but one thing certain is that her name implied a woman married under the Marriage Ordinance, Cap. 127 (1951 Rev.), and as such she could not have inherited the said property from her husband by herself on his death intestate, nor could she have had possession under a gift inter vivos except perhaps on condition that the said gift was to take effect after the death of her husband. The most obvious circumstance under which Mrs. Holdbrook could have come to own the said plot by herself is more probably by a devise to her under the will of her late husband in which case the property would have, without any limitations on her interest, be held by her as her self-acquired property. From Mrs. Holdbrook the said property according to the plaintiff s pleadings passed to her children. This of course could have been by will to them or on her dying intestate pass to them as her natural inheritors. The facts further show that the children of Mrs. Holdbrook alienated themselves of possession of the plot (according to the plaintiff by way of mortgage, but by sale according to the defendant). The plaintiff s pleadings further show that the plot then finally found its way into the hands of the late lawyer Abadoo by redeeming the same for an amount of 0180 under the understanding as he puts it “that the children will repay him.” The plaintiff s counsel therefore founded himself on Ollennu’s Customary Land Law in Ghana at p. 44 and argued that the land was redeemed as family property. This fact Abadoo himself in exhibit 1 claims to have bought the said land which accordingly to him was sold outright by the Holdbrook children. Whatever are the true facts about how the property came into the hands of lawyer Abadoo the bald fact is that Abadoo on the evidence before me has not been proved to have died intestate and therefore the plaintiff cannot claim title to the said plot through him as his customary successor and the head of his immediate family. The disputed plot as the facts before me show became the property of the Holdbrook family originated by Mrs. Holdbrook through her husband and therefore the family was entitled to immediate possession and control of it: see Quarshie v. Aryeetey [1959] G.L.R. 60 at p. 61. The Holdbrook children constituted the family entitled to alienate the said property after the death of their mother when it came into their possession without reference to the wider Abadoo family of which the Holdbrooks form a branch: see Atta V. Amissah, Court of Appeal, 4 May 1970, unreported; digested in (1970) C.C. 73. It follows therefore that the Holdbrook children who are entitled
[p.118] of [1974] GLR 110
to the immediate use, possession and control of the plot of land at Kotokuraba are the proper persons entitled to sue in respect of that plot and not the plaintiff who is the head of the wider Abadoo family. It is further not clear from the pleadings why the defendant was sued in respect of this plot of land. The facts show that the said piece of land was devised under exhibit 1 to one Daniel Myles Abadoo, a son of the defendant by the late lawyer Abadoo who is sui jure. Nothing has been disclosed to show the defendant’s connection with that piece of land, neither have her dealings nor interference with it been disclosed. No action has been brought against the devisee who is under no disability and who by paragraph (13) of the statement of claim (supra) claims the plot as his under exhibit 1. In my view, on the facts before me the plaintiff s action against the defendant in respect of the Kotokuraba land has been wrongly instituted. In my judgment therefore the plaintiff s action in relation to the piece of land at Kotokuraba fails as against the defendant both for want of capacity and on the ground also that it is improper and is hereby dismissed. The counterclaim by the defendant in respect of this plot is also hereby dismissed she having produced no evidence to substantiate her claim.
This brings me now to the most controversial aspect of the case, namely, the disputed house No. G8/2, Tantri Lane, Cape Coast. Even though the pleadings on this aspect of the dispute are very elaborate, not enough evidence was produced to enable me to settle most of the matters upon which issues were joined between the parties. The little evidence which was produced at the trial makes me wonder where solicitors who drafted the pleadings in this case obtained their materials from. The parties to this suit who were the only witnesses to testify at the trial appear not to have much personal knowledge about the history of the disputed house. The defendant did in her evidence state that she had nothing more to say about the building than what her husband had stated in exhibit 1. Of course one can understand her stand as she had not then officially been admitted into the Abadoo family when the building was under construction. The plaintiff also did not have much to say about this and although he testified that the idea of constructing a building on the land was mooted at a family meeting, his answers to questions in cross-examination revealed that he was not personally present at that meeting and therefore did not know actually what took place. Apart from what is contained in exhibit 1 about the disputed house there is no other preferable evidence on record about how the disputed house came to be constructed. I have therefore resolved to go by the contents of exhibit 1 as the nearest approach to the true facts about the history of the disputed house. There are however two main matters about which the facts appear not to be in hot dispute between the parties. The first is about the funds and materials provided for the construction of the building. The overwhelming facts show that the funds and all materials provided for the construction of the disputed house were solely from lawyer
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Abadoo. In other words the disputed house was built by lawyer Abadoo out of his own private means. Even though the plaintiff pleaded in paragraph (8) of his statement of claim that:
“House No. G8/2, Tantri Lane, Cape Coast, was as a result built on the family land principally from funds provided by lawyer Abadoo but with contributions from other members of the family in particular from lawyer Abadoo’s mother who in addition actually supervised the building in the absence of lawyer Abadoo,”
the evidence produced by him satisfies me that the nature of the contributions allegedly offered by lawyer Abadoo’s mother and his sister (i.e. supervising the construction in his absence and rendering him other services such as cooking for him) were not the nature of contributions within the meaning of the phrase “substantial contribution” as enunciated in Larbi v. Cato [1959] G.L.R. 35 as to even taint the disputed house with family character. The evidence shows that lawyer Abadoo was a bachelor at the time of construction of the disputed house and that he and his other brothers and sisters were staying with their parents in house No. C9/2 just opposite the disputed house so that the nature of services rendered him by his mother and sister as stated above do not go beyond what he would ordinarily have enjoyed from them under those circumstances. I hold in my judgment therefore that house No. G8/2, Tantri Lane built by the late lawyer Abadoo out of his private resources did not become family property within the meaning of “substantial contribution” as enunciated in the Larbi case (supra) merely because of the casual supervision by his mother in his absence nor did the cooking services rendered by his sister satisfy the “substantial” requirement.
The other matter about which there did not seem to have been much controversy is the land on which the disputed house stands. The evidences shows that this land was a portion of land with a building thereon conveyed as a gift by lawyer Abadoo’s father to his wife (the mother of lawyer Abadoo) and the children of their marriage. The gift was by a deed dated 28 August 1891 and was admitted by consent as exhibit A. By the said deed the donor conveyed his interest therein to his wife,children, their “heirs and assigns.”
The main contention of the plaintiff as submitted by his counsel was that by the said deed the donees took the land and held it jointly as indivisible family property. The family in this sense according to learned counsel for the plaintiff was constituted by the wife (i.e. the mother of the plaintiff) and the children of her marriage with the donor and their “heirs and assigns.” Counsel further submitted that the limitation as to use and the right of inheritance as enjoined on the donees by the directions of the donor as contained in exhibit A showed beyond doubt that the gift was to find its way ultimately into the matrilineal family of the Abadoos. Founding himself on the cases of Owoo v. Owoo (1945) 11 W.A.C.A. 81, Beyeden v. Bekoe (1952) D.C. (Land) ‘52-’55, 38 and Ansah v. Sackey (1958) 3 W.A.L.R. 325 learned counsel contended that lawyer Abadoo had only a life interest in the house he built on the joint family property. He argued that his dealings in respect of the disputed house could not go
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beyond his life interest and therefore he could not alienate beyond that interest. Counsel further argued that the family on the evidence was in effective occupation of the area on which the house was built. Present at the site according to counsel was a well in use and a play ground for the family. Counsel submitted that the site was in active use by the family. He contended that the request to Abadoo to put up a building on the land was to check erosion and thereby to protect the family land. Learned counsel also referred to the case of Mensah v. Lartey [1963] 2 G.L.R.92, S.C. and submitted that since Abadoo’s father had gifted the said piece of land without any limitation as to what estate each of the donees was to have in the property, such property was to be considered as their joint family property.
For the defendant it was submitted that on the proper interpretation of exhibit A the land on which the disputed house stands was conveyed to the plaintiff s mother and her children by way of gift so that the property became their absolute property which they could assign or alienate. Founding himself on the Lartey case (supra) counsel submitted that the family contemplated under exhibit A were the donees, their children and their children’s descendants and not family in the accepted customary law sense as argued by counsel for the plaintiff. Counsel argued that where on the face of a document property is given to be enjoyed in perpetuity then any condition which limits that enjoyment was a mere surplusage. It was therefore contended on behalf of the defendant that the words used in exhibit A by the donor were contrary to the customary law view taken by the plaintiff s counsel. It was next submitted on behalf of the defendant that granted that the land on which the disputed house stood was held to be family land, the family’s interest was limited to the land itself as distinct from the house which stood on it. For authority learned counsel cited the case of Adu v. Sarkodee Addo, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C. 59. Counsel further contended that on the authority of Amoabimaa v. Okyir [1965] G.L.R. 59, S.C. in the absence of any proved fact that the family was in occupation of the site where the late lawyer Abadoo had built, the disputed house became his self-acquired property which he could dispose of or alienate by will. Learned counsel finally argued that should the court find on the evidence that the disputed house was put up on a site which was in use by the family then notwithstanding the fact that the property became family property in which the late Abadoo had an interest limited to his life, the defendant as his widow and her children have a right of occupation under customary law.
It is clear from the submissions of learned counsel that there is no divided view on what interest the donees took under exhibit A. Both counsel agree that on the true construction of exhibit A, the donees held the gift as indivisible family property in which until disposed of by consent of the members they all have a joint interest with none of them having an alienable interest. The only area of disagreement amongst them is
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their respective views about who constitute the family in the sense used in exhibit A. Whilst learned counsel for the plaintiff favours a construction in favour of the matrilineal line, counsel for the defendant favours a construction in favour of the children and descendants of the donor. The construction of exhibit A (the deed of gift) has not been an easy task. The document itself has been drafted in English form and follows the strict pattern of pre-1881 conveyancing law practice. The difficulty about its construction has been brought by the introduction of native customary practice and usages into its main body and the employment of some words unknown to customary law. The donor however directed that the property was to be held as family property in the operative part of exhibit A. The relevant portion of exhibit A reads as follows:
“THIS INDENTURE made the 28th day of August one thousand eight hundred and ninety one between Daniel Myles Abadoo of Cape Coast in the Gold Coast Colony on the West Coast of Africa trader hereinafter called the donor of the one part Sarah his wife and Josina Daniel Myles Kezia Yarkoon and Joseph Amissah the children of the aforesaid donor by his said wife Sarah who with her said children are hereinafter called the donees of the other part witnesseth that the said donor as well for and in consideration of the natural love and affection which he hath and beareth unto each of the said donees as also for the better maintenance support livelihood and preferment of each of them the said donor hath given granted aliened delivered and confirmed and by these presents doth give grant alien deliver and confirm unto the said Sarah his wife and his children by the said wife to wit Josina Daniel Myles Keziah Yarkoon and Joseph Amissah and such other children which he the said donor may have by his said wife Sarah their heirs and assigns all that piece or parcel of land situated close to Commercial Road in Cape Coast aforesaid as the same is more particularly delineated and described in the plan drawn hereon together with the messuage or dwelling house thereon erected and with the rights easements and appurtenances to the said premises or any part thereof by reputation thereto belonging or therewith or heretofore held or enjoyed and all estate and interest of the said donor therein to have and hold the said piece or parcel of land hereditaments and all other the premises herein before expressed to be hereby granted and confirmed or mentioned and intended so to be with their and every of their appurtenances unto and to the use of the said donees their heirs and assigns forever in strict accordance with the native law and custom relating to the enjoyment of and the succession to family property which native law and custom shall regulate the rights of each of the donees in the hereditaments and premises hereby granted or expressed so to be.”
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The phrase “heirs and assigns” are words of limitation and I have no doubt that they were used in that sense in exhibit A. They are really matters of real property law with no conveyancing virtue. The addition of the word “assign” to the “heirs” was also used merely as a declaratory power of alienation in the donees which they would have had anyway without it. The significance of the words of limitation is that in pre-1881 deeds, in order to convey the fee simple (inheritable freehold estate) the use of such words were necessary: see Williams on Real Property, p. 121. What I have been able to make out of the addition of these words of limitation in exhibit A is that the deed operates to convey by way of absolute gift to the donees and their heirs as purchasers the whole interest of the donor in the property the subject of the gift. In the case of Mensah v. Lartey [1963] 2 G.L.R. 92, S.C. (referred to by learned counsel for the plaintiff) where a father by a deed of gift conveyed as family property a piece of land with building thereon by way of absolute gift to three of his eldest sons all of different mothers to be held by them in trust for themselves and their brothers and sisters, it was held (as stated in the headnote at p. 92):
“that in both patrilineal and matrilineal societies in Ghana where a man makes a gift of property to his children without any limitation as to the estate which the children are to have in the property, such property is considered as family property. The children constitute the family for the purpose of holding and enjoying the said property in perpetuity. The concept of family property imports the principles of non-divisibility of the said property except by the consent of the family, of the members of the family having joint interest in the property and of the appointment of the head of family as the caretaker’ of the property. Of family property there is, strictly speaking, no devolution on intestacy for the property remains in the family at all times. A therefore did not have any alienable interest in the property which could be inherited by the plaintiff’
Akufo-Addo J.S.C. (as he then was) in his judgment said, pp. 95-96 that:
“The family of children constituted by a gift from their father is made up of the children, their children’s children and descendants irrespective of sex, for the general notion underlying the customary law in this regard is that a father by a gift to his children evinces a desire that his memory be perpetuated by his descendants. The law does not presume an intention on the part of a father making a gift to his children that the gift should ultimately find its way into the matrilineal family of the children (that is where the children belong to a matrilineal community), for if such were the intention of man he would make a gift to his wife (the mother of the children) and not to the children.”
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In his book on The Law of Testate and Intestate Succession in Ghana, Ollennu at p. 179 notes:
“Another instance of mixed paternal and maternal succession occurs, where a man of a maternal system who has his own farms or houses, to the knowledge of his family makes a gift of a house or farm to his wife and children for their use without making a formal gift of it to the wife exclusively . . . Such property cannot be claimed by the wife’s family because it did not belong to her either by gift or by any other means of original individual acquisition.”
In the present case the donee family is constituted by the mother and her children by her marriage with the donor and their heirs. They are to hold the property “forever in strict accordance with native law and custom relating to the enjoyment and of succession to family property which native law and custom shall regulate the rights of each of the donees.” The question here is, is this limitation as to use as directed by the donor in accordance with the general notion underlying the customary law as stated above? I have no doubt in my mind that the limitation as to use and enjoyment of the gift as directed by the donor in exhibit A is in accord with the general notion underlying the customary law as enunciated in the Lartey case (supra). The inclusion of the mother in this case makes no difference because in matters of succession to property children are the proper inheritors of their mother: see Sarbah, Fanti Customary Laws (1897, 1st ed.) at p. 256 and the dissenting judgment of Akufo-Addo J.S.C. in Krabah v. Krakue [1963] 2 G.L.R. 122 at p. 138, S.C. And according to Ollennu in his book (supra) the property cannot be claimed by the wife’s family because it did not belong to her exclusively. So that in the final analysis the property will find its way into the hands of the children. In my judgment therefore the land on which the disputed house stands is the property of the plaintiff s family constituted by his mother and the children of her marriage with the donor, their children’s children and their descendants of which family the plaintiff is the head.
Even if the above construction which I accept to represent the donor’s intention as expressed in exhibit A is wrong and the donor under exhibit A intended the property to be enjoyed in such a way that it found its way ultimately into the matrilineal family of the Abadoos as was contended by learned counsel for the plaintiff, a construction which I very much doubt, the one significant thing about the property is that in either way it will be held as joint indivisible family property in the enjoyment and use of which the late lawyer Abadoo was one of the beneficiaries and in the use and enjoyment of which none of the beneficiaries has an alienable interest.
This brings me to the question as to the interest which lawyer Abadoo had in the house he built on this land. In the case of Amoabimaa v. Okyir [1965] G.L.R. 59, S.C. Ollennu J.S.C. in his judgment at pp.63-64
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had this to say about the interest a family member acquires in respect of family property he reduces into his occupation:
“The law as to title of a subject of a stool or member of a family to stool or family land in his occupation is that by his occupation, he acquires a determinable or usufructuary title to the portion he so occupies; that title is a burden on the absolute title of the stool or family; it vests in the subject or the member of family an exclusive right to possession; it is the most perfect estate that an individual can have in land, a freehold interest of inheritance. That title prevails against the whole world even against the stool, community or family in which the absolute title may be vested. In some respects that possessory title vis a vis the absolute estate is comparable to the possessory title of a tenant for a term of years under the common law vis a vis the reversion of the landlord which possession, while it subsists, is good against the whole world including the landlord: see North Western Railway Company v. Buckmaster ((1874) 10 Q.B. 70 at p. 76); but it is superior to the possessory title of the tenant, in that while the title of the tenant is limited to a definite term of years or a term that is definable: see Sevenoaks, Maidstone and Tunbridge Ry. Co. v. London Chatham and Dover Ry. Co., ((1879) 11 Ch.D. 625 pp. 635-636), that of the subject or member of family is in the nature of an inheritable freehold estate which continues indefinitely so long as the subject acknowledges his loyalty to the stool or family. Therefore a hostile or an unfriendly entry by a stool upon a portion of stool land in the possession or occupation of a subject or by a family upon land in the possession or occupation of a member of the family is against all principles of customary law. Such an entry is an undue and arbitrary interference by the stool or family with the title and possession of the subject or member, it is discountenanced by customary law; in, short, it is unlawful.” Later in the course of the judgment his lordship had this to say at p. 65, “a person’s self-acquired property includes a portion of family land which he has reduced into his exclusive possession.”
In an earlier case of Ansah v. Sackey (1958) 3 W.A.L.R. 325 it was decided by Ollennu J. (as he then was) as stated in the headnote at p. 326 that:
“the interest retained by a family member in buildings erected by him, using his own private resources, on family land otherwise unbuilt upon is an interest limited to his own life. Although the life interest itself is fully alienable (e.g., it can be given as security for a loan) it is not open to the life tenant, unless he acts with the consent and concurrence of the head and principal members of the family, to alienate any greater interest or estate. On the death of the life tenant the interest in the property vests in the family and any disposition by the life tenant purporting to have any other effect is ineffective.”
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The customary law position of the interest retained by a family member in buildings erected by him using his own private resources on family land appears to have been widely generalised in the Sackey case (supra) and so is the position with regard to a person’s self-acquired property enunciated in the Amoabimaa case (supra). Ollennu himself acknowledges this when in his invaluable book Customary Land Law in Ghana after reviewing the various decided cases on the point (among which were the Sackey case (supra) the Owoo case (supra) and Santeng v. Darkwa (1940) 6 W.A.C.A. 52 he had this to say at p. 42: “It is submitted, however, that the correct statement of custom is that if a member of the family is granted a portion of the general family land, i.e., a site which has not previously been granted to another individual member of the family, or a site which another individual member has not previously effectively occupied,the house which he builds on such a site, by his independent effort and his own individual means, becomes his self-acquired property,which he may alienate inter vivos or by testamentary disposition. But a building which the individual member of a family is permitted to erect on family land in use by the family, e.g., a site on which family structure of any sort exists, is property in which the individual member who builds has a life interest only; it is to be used and treated in every respect as his individual property, except that he cannot create an interest in it which may subsist after his life.”
One matter of some significance about the above proposition of the law as stated by Ollennu which should not be allowed to pass without comment is the qualifying phrase “a site on which family structure of any sort exists.” The above quotation, it is submitted with respect, needs some qualification in the light of what the learned author himself observed on the Santeng case (supra) as to the state of condition of the “structure.” It is submitted therefore that for the structure to be taken into consideration in determining the character of the property there must be some evidence as to the nature of its state of condition, for where the structure is already ruined or has been allowed to waste it will be inequitable to conclude that its mere existence is enough to satisfy the requirement as to the “family’s occupation.”
The facts before me in this case however show that the family was in effective occupation of the site on which the late lawyer Abadoo built. The plaintiff s evidence which I accept shows there was in existence a well, and ground prepared for outdoor games which was in use by members of the family and that one of the primary reasons why lawyer Abadoo was requested by his parents to put up the disputed house was to protect the land by checking the threat of erosion. Under those circumstances where the structures had to give way for the construction of the disputed house, lawyer Abadoo who put up the house on that site could not dispose of the house beyond his life. He had only a life interest in the building he put up. He did not therefore in the absence of established evidence that a gift of that site was made to him,
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have any alienable interest in the building which he could dispose of by will. This finding concludes the case against the defendant in so far as the first leg of her counterclaim is concerned.
The next interesting submission by learned counsel for the defendant which deserves consideration is the submission based on the maxim quicquid plantatur solo, solo cedit which according to learned counsel should be held not to apply to the facts of this case since by exhibit 1 the donor directed the donee’s interest in the property to be regulated by native law and custom. The argument of learned counsel as I understood him was that since lawyer Abadoo was not the owner of the land on which he built, but put up the building with leave and licence of the members of the donee family then on the authorities as they stand now, the non-application of the maxim in respect of lands held under customary law should avail the claim by the defendant. There is no doubt that this submission is ingenious and in fact it was one of those principles of the customary law which had engaged my mind since arguments in this case commenced but I doubt whether on the already firmly established customary law relating to the rights retained by members of family in respect of family land which they reduce into occupation, it will be safe to extend the non-application of the maxim to cover such situations without creating an unwarranted innovation into this well-established principle. The present state of the law in this regard is what is stated in the case of Adu v. Sarkodee Addo, Court of Appeal, 31 March 1969, unreported; digested in (1969) C.C. 59. This case confirmed with some variation the principle enunciated in Asseh v. Anto [1961] G.L.R. 103, S.C. the leading case on the non-applicability of the above maxim to lands held under customary law. The state of the present law on the matter is that, where the consent of the owner of the land has not been sought and given and where no plea of acquiescence avails against the owner of the land the maxim is clearly applicable: see Sarkodee Adoo’s case (supra). In other words a trespasser who is warned off but persists in constructing a building on land he does not own, will have to lose the building he erects. It is significant to note that the main distinguishing features about all the cases referred to in the Anto case (supra) in which the maxim had been held not to be applicable were cases where consent or licence was given and more important, persons to whom the consent and licence were given were all strangers to the land on which they built or cultivated. It is of further significance to note that in all those cases the rationale underlying the decisions seems to stem from the inequitable situation which would be created if the land owners were permitted to claim the property on their land which was put up by strangers with their full knowledge and consent. It is submitted therefore that in order to exclude the application of the maxim in respect of land held under customary law it must be established that:
(a) the owner of the land either consented or granted leave and licence or in the alternative, he had acquiesced in the construction of the building so that it will be inequitable to permit him to claim what is on the land and which he did not build, and
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(b) that the persons who erected the building or cultivated the farm must be strangers to the land on which they built or farmed.
It is submitted further that there should be no extension of the non-applicability of the maxim to cover cases like the present one where the person constructing the building is himself a member of the family owning the land. Quite apart from the fact that the customary law covering such cases is firmly well-established, it is in consonance with equity, because whilst he lives he is permitted to do whatever he likes with the building he erects without reference to the other members of the family save that he is incapable of disposing of an interest beyond his life. In my judgment therefore on the facts of the present case the defendant cannot avail herself of the non-applicability of the maxim quicquid plantatur solo, solo cedit.
The last and perhaps the most effective and persuasive submission made on behalf of the defendant in respect of the disputed house was the submission relating to her right to occupy the disputed house with her children as the widow of lawyer Abadoo. This submission was resisted by Mr. Short who contended that only the children’s right of occupation in their father’s house was recognised under customary law. For authority he cited the case of Boham v. Marshall (1892) Sar.F.C.L. 193. We shall now examine the position of a husband’s responsibility to provide means or support, accommodation, etc. for his wife and see where this responsibility ends in order to ascertain what the true position is under customary law.
Ollennu in his book on The Law of Testate and Intestate Succession in Ghana discusses this topic from pp. 223-229. Under the heading “Widow of the deceased,” the learned author reviews exhaustively what some text-writers (notably Sarbah, Danquah, Rattray and Field) say and writes as follows at p. 225:
“So great is the importance which customary law attaches to a man’s liability to maintain his wife, that his failure to maintain her is one of the very few grounds upon which a wife may obtain divorce against her husband by customary law. The liability of the husband to maintain and provide accommodation for his wife devolves upon his family or successor, a responsibility which can only determine upon death of the wife or upon the determination of the marriage in a lawful manner.”
He concludes as follows at pp. 227-229:
“To conclude this part of the subject of the right of the widow to maintenance by the successor of her late husband, and particularly out of the late husband’s estate, we would refer to the judgment of the Akim Abuakwa Paramount Tribunal in Bede v. Sakyiama ((1914) D.C.A.L. 201, 202.). The plaintiff in that case claimed against the defendant, successor to her late husband, allotment to her of 1\3 share of the estate of her late husband to which the defendant had succeeded. The deceased and both parties
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to the suit were christians (Presbyterians). The plaintiff was an old woman and there was no question that she could re-marry and she had no intention of taking formal divorce of her late husband’s family, and it was unfair and against good conscience in such a state of affairs that the successor should divorce her formally and give her a send-off. At the same time, as a christian, the defendant felt he could not keep the woman as a formal wife and be responsible for her. The Native Tribunal held that in the peculiar circumstances of the case, natural justice required that the successor should, in lieu of permanent maintenance, give to the widow a share of her late husband’s estate, and fixed that share at one-third. In the course of their judgment the Tribunal said: Considering the matter from the point of view of the Customary Law, it has been suggested by the Defendant that a widow is not entitled to succeed to a husband’s property, at the same time, according to the Native Custom, the successor of the deceased husband will be bound to look after or maintain during her lifetime the widow who is very old and unlikely to marry again. The fact that the Defendant is a Christian and not allowed to keep this woman as wife justifies the Tribunal in ordering that some provisions be made for maintaining the Plaintiff.
The Tribunal therefore decides that the cocoa plantation of Bosomtwe, deceased, not excluding Nananko farm, should be divided into three the Plaintiff to have one-third portion and the Defendant two-thirds. Further, Defendant to pay £5 to the Plaintiff for having been driven away from her deceased husband’s house.’
From this decision of the Tribunal we deduce that in suitable cases, the Court can, in lieu of an order for permanent maintenance for wife and children of a deceased, direct that a specific share of the estate up to about one-third, be given to the widow or children. The parties may also agree to such an allocation and their agreement will be given effect to at law. The decision in effect also shows that the right of a widow to reside in her late husband’s house is enforceable at law.”
The Bede case (1914) D.C.A.L. 201 referred to by Ollennu even though decided by the Akim Abuakwa Paramount Tribunal was based on a principle of Akan customary law. It is clear from the authorities that the customary law does not only recognise the rights of the children but also of the widow to live in her deceased husband’s house. I have examined also the case cited by learned counsel for the plaintiff and nowhere in that decision is the view held by counsel supported. After examining the views of some of the text-writers and some decided cases on the matter Ollennu unfortunately summed up the customary law rights of a widow of a deceased and her children as follows in his book (supra) at p. 226:
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“Summing up, we would say that in both the matrilineal and patrilineal systems, the widow or widows are entitled to support from the family and to live in their deceased husband’s house during widowhood. On the death of the husband, his widows surviving and their children by him are entitled to reside in any house built by him, and the children and their issue have a life interest in such a house, subject to good behaviour.”
This view according to him expresses the modern accepted customary practice at least amongst the Akan speaking tribes throughout the country. It also appears to be the view echoed by most lawyers and the courts have, on some occasions, lent some support to it. It is apparent however that the law as enunciated above appears to be confined to the self-acquired buildings of deceased persons properly so described;in other words, a house built by the deceased on his own acquired land. It does not cover cases where a house is put up by a deceased on family land under circumstances where, having regard to the then existing nature of the land, the deceased had only a life interest in the building and cases where the deceased himself had no building but stayed with his wife and children in a family house. It is also doubtful whether the phrase “subject to good behaviour” tacked on as a limitation to the right of the widow and the children to reside in the deceased’s self-acquired house represents the true position of the law. Sarbah at p. 105 of his book Fanti Customary Laws (3rd ed.), stated the customary law as follows:
“When a person such as A dies, having his own acquired property, moveable and immovable, he is not succeeded by his sons, free-born or domestic, whose only right is that of a life interest in the dwelling-house built by their father, the deceased, on a land not family property. For if the house be built on family land, the children have only right of occupation during good conduct. If anyone living in the house of his father deny the right of the proper successor, or commit waste or injure the house, or encumber or sell it, he thereby forfeits his life interest. Such person must make the necessary repairs, and may quit if the successor requires it for himself as residence.”(The emphasis is mine.)
In Halmond v. Daniel (1871) Sar.F.C.L. 182 at pp. 182-183 the law was stated thus:
“The custom is that if a man had a father either by country marriage or otherwise, and the father lived in the house with wife and child, and he died, all the deceased’s property, except the house, goes to his family. The father’s gun and sword and house go to the son, and the saying is, ‘The father dies and leaves his house to the son. ’ The family take the property, but do not turn away the child. The son lives in the house with the family of his father, supposing they had nowhere to live, and the son does not
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turn them away. If it is a family house, the head occupies as head yet he does not turn away the son from the house, except the son, after he has grown up, finds himself competent to build and leaves for the purpose of doing so. But he would not under any circumstances be turned out by the head of the family. The family would not be turned out for the son’s accommodation; if they had nowhere else to live, they would live in the house. Where there is room enough for all (son and family), the head of the family arranges the rooms to be allotted to each. My answer of the descent of house to the son applies in case it has been built by the father; the family would be allowed to live in it if they had nowhere else to go. If they had, they would leave the father’s house to the son. Son could not sell the house except with consent of the family.”
(The emphasis is mine.) It is clear from the above passages from Sarbah on whom Ollennu relied for most of his materials that the correct statement of the law of the Akans is that children at least and their mothers (i.e. the widows and their children) have a possessory life interest in their father’s self-acquired buildings and that this possessory interest is only subject to the family’s title to the house but takes precedence over it, so that the family cannot sell the house above their heads. So also does the customary law recognise the eldest sons’ claim to the instruments of trade, swords and guns of their fathers. It appears that personal household goods including furniture go to the children: see Bentsi-Enchill on Ghana Land Law (1964 ed.) at p. 169. This view of the law is more in accord with equity than the view held that widows and children have no interest in their deceased husband’s and father’s estate respectively and that the ideas of the customary law as expressed in Swapim v. Ackuwa (1888) Sar.F.C.L. 191, whereby the prerogative of the family to do whatever they liked with the deceased’s house to the extent of even throwing the widow and her children out in so far as the self-acquired house of the deceased is concerned have never been good customary law and that if they ever existed then those ideas belong to a different age and have no place in this second half of the twentieth century: see the case of In Krabeah v. Acquakoah (1887) Sar.F.L.R. 50. The only limitation on the widow’s right to reside in the self-acquired house of her deceased husband is “during widowhood” so that if she remarries then she loses her right of occupation. It follows also that the decision in Kwakye v. Tuba [1961] G.L.R. (Pt. II) 535 that children in matrilineal societies have no interest whatever in their father’s estate except that they are entitled to maintenance and “subject to good behaviour to live in their father’s self-acquired property” is too much of a generalisation and needs to be qualified. Here a distinction must be made between a family house in which the father lived with his wife and children and the father’s own self-acquired house in which he stayed exclusively with his wife and children as is common these days.
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In the former case (i.e. where the deceased lived in a family house with his wife and children) the widow and her children on the authorities have no well-recognised interest save a right of occupation. Thus in Swapim v. Ackuwa (supra) it was held by Smith J. at pp. 192-193 that the successor:
“could ask the children to go out on any occasion for any reasonable grounds, and where the interest of the family is at stake, or their right is disputed, or even merely to secure and promote the interests of the family.
The right of the successor as stated above is the limitation on the right of the widow and her children to reside in such family house after the death of the father. This limitation is what is summed up under the phrase “subject to good behaviour.” This phrase it is submitted can be tacked appropriately to only a house originally family property and not the self-acquired house of the deceased. In the latter case (i.e. where the house is designated self-acquired of the deceased) the customary law recognises the prior possessory life interest in the use and enjoyment,i.e. occupation of the children and the widow’s right of occupation during widowhood. The decision in Bede v. Sakyiama (supra) shows also that the right of a widow to reside in her deceased husband’s house is enforceable at law. The injustices and hardships caused to children and widows by tacking on the phrase “subject to good behaviour” as a limitation to their rights to reside in houses which their deceased fathers and husbands respectively die possessed of, irrespective of how they came by such property, have been ignored indiscriminately in the past to the detriment of the children and widows. The conduct of the family flowing from this neglect must be frowned upon as behaviour not countenanced by customary law and calls for an urgent need for a more realistic and practical re-appraisal of this aspect of the customary law in view of the fast social changes in the country caused partly by the high rate of inter tribal marriages and partly by the development of a money economy which has provided other modes of acquiring wealth;and I am of the view that in appropriate circumstances the decision in Bede v. Sakyiama (supra) which calls for a share of the estate for widows will be given the blessing of a binding authority by the superior courts. This prior right of occupation of children and widows extends to situations like the instant case where the deceased built on family land under circumstances where having regard to the existing nature of the land his interest was limited to his life but in which house he stayed exclusively with his wife and children: see also Ankrah v. Ankrah (1957) 3 W.A.L.R.104, P.C. and Quarcoopome v. Quarcoopome [1962] 1 G.L.R. 15. These cases decide the rights of children to succeed in certain circumstances.
The possessory interest of children in respect of the deceased’s self-acquired house does not however mean that they should deny the family access to the house where it is possible to accommodate those without rooms to stay in, but any undue interference against their possessory interest should be reasonably resisted. It is of some regret that some of
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the text-writers writing in the second half of the twentieth century failed to give any serious consideration to the law as expressed in the Halmond and Bede cases (supra). This would have gone a long way to assist in settling the confusion always created by the family in asserting their claim to the deceased’s property to the extent of driving the children and widows out of the deceased’s house, thereby wrongly publicising the fate of issues born out of customary marriage. In the instant case I have already held that the children of the defendant have an interest in the land conveyed by exhibit A. It follows therefore that they also have, quite apart from their customary law right of life occupation, an automatic interest in the building put up by their deceased father on that land. The defendant even though a widow of the late lawyer Abadoo by marriage under the Ordinance is a person subject to the customary law just as her husband. Her marriage with the late lawyer Abadoo was preceded by an engagement which has all the attributes of a customary marriage (i.e. consent of the parties and their parents). She is in short the widow of the deceased in the eyes of the customary law. She was the person called upon to perform the customary rites of a widow during the funeral of the late lawyer Abadoo. She is therefore entitled under the customary law to a life occupation subject to her remaining such a widow for the rest of her life.
There will therefore be judgment for the plaintiff in his capacity as the most senior member of the donees of the plot of land conveyed by exhibit A, a declaration that the disputed house is the property of the family donee as defined in this judgment. He therefore succeeds on his claim in respect of house No. G.8/2 as if he has brought his action in that capacity. Leave is therefore granted him to have his original capacity amended accordingly: see Ababio IV v. Quartey (1914) P.C. ‘74-’28, 40. His action in respect of the Kotokuraba land having been brought against the wrong person and the plaintiff having also shown a want of capacity to sue in respect of that plot will be dismissed. The first leg of the defendant’s counterclaim for a declaration that the disputed house and the Kotokuraba land are the self-acquired properties of lawyer Abadoo in the sense claimed by her is also hereby dismissed. Judgment is entered in her favour on the second leg of her counterclaim for a declaration that she as the widow of lawyer Abadoo is entitled to occupy the said house with her children for life in terms as stated above: see Bede and Halmond cases (supra).
Judgment for the plaintiff as head of donee family entitled to house. Plaintiff s claim for redeemed land dismissed.
DECISION
Defendant’s counterclaim upheld in part
S.Y.B.SB.
