DIVISION: IN THE HIGH COURT, ACCRA
DATE: 3RD FEBRUARY, 1961
BEFORE: OLLENNU, J.
CASES REFERRED TO
(1) Attipoe & Anor, v. Shoucair & Anor. High Court, Accra, May 4, 1948, unreported.
(2) Makata v. Ahorli (1956) 1 W.A.L.R. 169.
(3) Mensah v. Mensah Div. Ct., Accra, March 28, 1947, unreported.
(4) In the estate of Payne (1916) 115 L.T. 935.
(5) Holdbrook v. Atta (1882) D. & F. ‘11-’16, 78; (1882) Sar. F.C.L. 211.
(6) Affi & Ors. v. Ayisi & Ors. Div. Ct. Accra, April 5, 1943, unreported.
(7) Khoury & Ors. v. Tamakloe, Land Ct., Accra, January 4, 1950, unreported.
(8) Coleman v. Shang [1959] G.L.R. 390, C.A.
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NATURE OF PROCEEDINGS
CONTESTED APPLICATION for the grant of letters of administration in respect of the estate of Alfred Jonas Carboo, deceased.CONTESTED APPLICATION for the grant of letters of administration in respect of the estate of Alfred Jonas Carboo, deceased.
COUNSEL
I. Amoo-Lamptey for the plaintiff.
G. R. McV. Francois for the defendant.
JUDGMENT OF OLLENNU, J. [After narrating the facts his lordship continued :] It was submitted on behalf of the defendant thatnupon a Ningo man’s death intestate his children inherit, and his property automatically vests in his children as upon a devise; and that it is only when all the children are minors that some relative may be appointed to take charge of the property. I must say at once that this submission is a
misconception, and is against all the fundamental principles of our customary law of succession.
The most elementary principle of our customary law of succession is that upon a man’s death intestate, his self-acquired property, real and personal, vests automatically in his family. That family may be the patrilineal family, or the matrilineal family depending upon the tribe to which the deceased belonged. In this case, therefore, upon the death of Alfred Jonas Carboo, all his self-acquired property vested in his family.
The next general principle of our customary law of succession is, that succession is not as of right, a successor must be appointed by the family who inherit the property; see the case of Attipoe & Anor. v. Shoucair & Anor.1(1) where Coussey, J. as he then was, stated the law as follows:-
“In native custom all succession is a question of election by relatives not of inherent right; the only rigid rule is that the election shall be constitutionally carried out at a proper meeting of relatives.”
Also in the case of Makata v. Ahorli & Ors.2(2) the West African Court of Appeal said:
“. . . there is no codified or rigid law of inheritance anywhere in the Gold Coast although it is spoken of as the Native customary law. The elders, on due consideration where circumstances so warrant, may
depart from the usual practice and often do so . . .
“I have stated earlier that there is no rigid law of inheritance in Native custom. If the family decided, as the evidence indicates they did, in justice to the plaintiff who had helped the deceased and probably worked the farms with him, that a more distant relative was more deserving and should inherit from him, there is nothing strange or improper about that – it was within the decision of the family council, of which, on the evidence, the deceased’s brother, Siameh Boshua, was a member.3(3)
The estates with which these two cases were concerned were estates of persons who belonged to the patrilineal family system; there is a host of authorities which lay down the same principle with respect to both the patrilineal and the matrilineal systems.
I accept the evidence elicited by cross-examination from P.W. 2, Susana Carboo, sister of the whole blood of the deceased, that when Jonas Carboo, father of Alfred Jonas Carboo died, he was succeeded by his next brother Kofi Doe, and that upon Kofi Doe’s death, Carboo Tetteh, the last brother of Jonas and Kofi Doe succeeded; and that it is now that
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all “our three fathers” (three fathers, meaning their father and his two brothers) are dead, that Otubua
Carboo, elderst son of Jonas, and paternal half-brother of the deceased in this case and of the plaintiff, has taken charge of the properties of their late father and of his brothers. That evidence and the evidence of custom given by D.W.1., Siaotse Amanor II, called by the defendant as an expert witness on custom, satisfy me that Ningo custom of succession is the same as obtains among all the Ga-Adangbe and Ewe peoples (excepting Accra town).
I am also satisfied from the evidence that the most important principal members of the family of the deceased are the plaintiff and his two sisters of the whole blood, next come their paternal half-brothers and then the children of the deceased.
Now it would appear that none of the two groups which purported to appoint either the plaintiff or the
defendant is a full meeting of all the principal component parts of the family competent by customary law to appoint a successor. But the group which met and appointed the plaintiff is more authoritative than that which appointed the defendant. Again as the appointment is only for the purpose of taking out letters to administer the estate, and not a final appointment of a successor, it will be sufficient if grant is made to the person who has better legal support, if, all things considered, he should prove to be suitable to administer the estate.
It was submitted by counsel for the defence that the plaintiff is disqualified from administering the
estate because (1) he was not on good terms with the deceased, and (2) he is a creditor of the estate.
Counsel cited the case of Mensah v. Mensah,4(4) and the Estate of Paine,5(5) in support. There is no
evidence before the court that the plaintiff is a creditor having a claim against the estate of his deceased brother, as was the case of Mensah v. Mensah, and the Estate of Paine. The evidence rather shows that he assisted his brother in his business as a contractor, and therefore he should be able to carry on that business now that the brother is dead. As to the allegation that the plaintiff was not on
good terms with his deceased brother I would say first of all that I consider it most fortunate that the school boy and the young lady teacher should have been brought to make fun of themselves in court.
The young boy – D.W. 2 – had to admit that the plaintiff used to go out with the deceased on the business of the deceased; in the same breath he would have the court believe that when the plaintiff so accompanied the deceased to the work, he the plaintiff did not work. How he could know this when he remains at home going to school, while his father and the plaintiff were up-country on the contract business has not been explained. The allegation appears to me as one made up for purpose of this suit. D.W. 3 the lady teacher said she never saw the plaintiff with her father, the deceased, at any time
during her father’s life-time. She would have the court believe that the father told her all sorts of uncomplimentary
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things about a brother of his called “Soverign.” How that evidence of the girl can be reconciled with the hard facts that the plaintiff always went with deceased in the performance of the duties of the deceased, is difficult to tell. There are, too, two ways in which her evidence can be looked at; one is that she never used to go anywhere near her father during the father’s life-time, for if she went she
would have seen the plaintiff going about with her father in the performance of the father’s contracts;
the other alternative is that she lied deliberately to the court; neither of the two alternatives shows her in favourable light. I reject the evidence that the plaintiff was not on good terms with his late brother.
On the contrary I accept the evidence of the plaintiff that he worked together with his late brother and
that he is the only person who can carry on the work now that the brother is dead and gone. That
being so, the cases cited by counsel are irrelevant to the issue before the court.
The evidence of D.W. 3, mother of the defendant is also irrelevant. The marriage of this woman with the deceased cannot affect the status of her children. In Ghana, except for the purposes of succession to two-thirds of a person’s estate under the Marriage Ordinance,6(6) every child of a man, however born, is his child, unless the child’s paternity was not proved, or unless during his life-time the man
did not recognise that child as his child: see Holdbrook v. Atta,7(7) Affi & Ors. v. Ayisi & Ors.8(8) Khoury & Ors. v. Tamakloe,9(9) and also Coleman v. Shang.10(10)
In the eyes of the customary law, Alfred Jonas Carboo though dead physically, still exists in his surviving brother of the whole blood, the plaintiff; therefore the plaintiff is at the present moment the father of the children of Alfred Jonas Carboo. Therefore all things being equal, as between the plaintiff and the defendant, customary law would prefer the plaintiff to the defendant in the matter of administration of the estate.
In view of the plaintiff’s relationship to the deceased, being the sole surviving brother of the whole blood of the deceased, and being by customary law the present father of the defendant, and in view also of the support he has from the other two most important members of the family, i.e. the two sisters of the whole blood of the deceased, and the maternal family of the deceased, and also in view of the fact that he is the person who knows about and can carry on the business of the deceased
effectively for the benefit of all the beneficiaries including the defendant and all the children of the deceased, I consider that he, the plaintiff is the proper person, in the circumstances of this case, entitled to a grant of letters to administer the estate of his deceased brother, the late Alfred Jonas
Carboo.
There will therefore be judgment for the plaintiff for grant of letters of administration in respect of the
estate of his late brother Alfred Jonas Carboo deceased.
DECISION
Judgment for plaintiff.
