Division: IN THE HIGH COURT (LANDS DIVISION), CAPE COAST
Date: 28TH FEBRUARY, 1959.
Before: ADUMUA-BOSSMAN J.
JUDGMENT OF ADUMUA-BOSSMAN J.
(His lordship set out the respective cases of the parties, and proceeded):—
The question of the jurisdiction of this Court to entertain the appeal arises firstly for consideration.
The Writ of Summons, on the face of it, appears to be a clear claim to the estate of a deceased person.
But the real issue would appear to be whether the plot of land on which the storey-building was
erected—
(a) was his self-acquired plot, so as to make the building, together with the plot on which it was erected, the self-acquired property of the deceased; or
(b) was the family-property of his wife’s family, of which land he was only allowed the use to erect a building for himself and his
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wife and children, so that both plot and building were the property of himself together with his wife and children – a kind of family property in fact. In that event, the appellants contend, it could not devolve as his self-acquired property.
Lord Cohen, delivering the judgment of the Privy Council in Vanderpuye & ors. v. Botchway (2 W.A.L.R. 16 at p. 21), said: “In order to determine into which category a particular suit falls, the Court must apply the test of what is the real issue between the parties, and not look only at the wording of the plaint.”
The analogy to the instant case is the usual type of suit concerning property held in his life-time by a deceased native, where it is claimed on the one hand that he held the property in a fiduciary capacity as Head of Family, and contended on the other hand that he held it in his personal capacity as his self-acquired property. In those cases the issue has always been held to be an “Ownership” or “Land” issue, not a “Succession” issue, because the real dispute is as to the original ownership of the land whilst the deceased held it, but not how or upon whom it should devolve.
Such were the cases of:—
(a) Larkai v. Amorkor & ors. (1 W.A.C.A. 323) in which the appellant claimed that property which had been in undisturbed possession of one Otua for a period of about 25 years, was property which had devolved as family property upon her, and which she had, held and controlled all the time in a fiduciary capacity as Head of the family. The respondents (her children) claimed that it was her self-acquired property, and that she held it in her personal or individual capacity; and
(b) Solomon v. Allotey & ors., (unreported decision of W.A.C.A,, dated 13th May, 1941, in Civil Appeal No. 1/41). There the appellant claimed that a number of properties, which had been held and controlled for a long period by her brother William Adjabeng Solomon, and which he had devised by his Will to some of the respondents as Executors and Trustees, were properties which he held and controlled as family properties, and therefore could not dispose of by his Will. The Executors, on the other hand, contended that they were his self-acquired properties. The judgment of the Ga Manche’s Tribunal, adverse to the appellant, had gone on appeal to the former Provincial Commissioner’s Court (which then heard appeals as to ownership of land), and thence to the
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West African Court the of Appeal. In the last-named court point was conceded that the appeal was properly before the Court as a suit relating to ownership of land, even though the question in dispute turned out to be in fact the headship of the family. The Court said:
“In this appeal there is only one point. We are asked to reverse the finding of fact by the Native Tribunal in regard to the headship of the Nee Adjabeng Ankrah Family of Accra.”
I am satisfied, therefore, that this appeal is properly before this Court. Both Counsel have expressed the same view, and neither has challenged the Court’s jurisdiction to entertain the appeal, or asked that the appeal be remitted to the Magistrate’s Court constituted by the Government Agent, for hearing in that Court.
As to the merits of the appeal, the appellants say that their claim is based on a rule of customary law which is set forth as follows in Sarbah’s Fanti Customary Law (2 nd Edition), under the chapter dealing with Tenure, at page 71:
“Grants of land for building purposes are generally made by members of a family to a junior member at the time of marriage. Thus a man takes in marriage a woman. The members of her family give or point out to the husband a plot of land to build on; and the only object of this is that the man may have somewhere to reside, and any issue of the union. The rule of descent with regard to any erections on such lands is somewhat similar to what is known in English law as tenancy in tail special. The grant is invariably made to a man and his issues not heirs say, on Essie his wife (and issues) begotten or to be begotten. Whatever is erected on such land goes to Essie and her children by him. For all practical purposes the man has only a life interest which he forfeits by wrongfully and improperly terminating the marriage. The man’s heir or successor has no title or interest in such premises, nor can he himself sell or mortgage them.”
In my view, however, the issue of fact whether the land was the self-acquired property of the late James F. Doomson, or property of his wife’s family of which he was merely allowed the use to build and provide accommodation for himself and his wife and children, was properly decided against the appellants.
(His lordship reviewed the evidence, and concluded) :-
There is, therefore, no substance in the grounds advanced that the judgment of the trial-Court was against the weight of evidence, and contrary to Native Customary Law. The appeal is accordingly dismissed, with costs assessed at £28 3s. 6d., including Council’s costs of ten guineas.
