IN RE AGYEMANG (DECD.); ADDAE v. FOSUAH [1968] GLR 519

DIVISION: HIGH COURT, KUMASI

DATE: 30 MAY 1968

BEFORE: ANNAN J.

NATURE OF PROCEEDINGS

APPLICATION for grant of letters of administration. The facts are stated in the judgment of the court.

COUNSEL

Darko for the plaintiff-applicant.

Agyepong for the defendant-respondent.

JUDGMENT OF ANNAN J.

The plaintiff-applicant is the eldest child of Ama Agyemang, the deceased and the granddaughter of the defendant-caveatrix Yaa Fosuah. Ama Agyemang was the daughter of the defendant. Sometime after the death of Ama Agyemang, her daughter, the plaintiff, applied to this court for letters of administration to administer the estate of her mother who died intestate. She filed an affidavit in support of her motion in which she said that she was the customary successor of the deceased and that she was appointed by the unanimous consent of the family. She did not file any affidavit by the head of family to support her statement that she was the person appointed by the family as customary successor. After notices had been filed, the defendant entered a caveat and in her affidavit of interest she stated that after the death of Ama Agyemang, the principal members of her family met and appointed her as the lawful successor to the estate of the deceased. Subsequently an order was made and the applicant filed a statement of claim (without issuing a writ) in terms of the order of the court, and the defendant filed a defence. The single issue which was set down for trial was:

“Whether or not the applicant-plaintiff is better entitled to the letters of administration than the caveatrix the defendant.”

The evidence adduced in support of the plaintiff’s claim is that of her father and her nineteen-year-old brother. The plaintiff is a young

[p.521] of [1968] GLR 519 woman who gave her age as twenty years (her father put her age at 22 years). She has two children and is the eldest of the eight children of her mother. She said she was appointed customary successor to her mother by the family in the presence of and with the concurrence of the defendant and their head of family Opanin Kwasi Mensah at a family meeting at Kunsu Wiawso, the hometown of the deceased. According to the plaintiff her appointment was by the whole family at Kunso Wiawso and she gave the name of the principal members who were present, apart from the defendant and the head of family, as her uncle Kojo, Adu Atwanema, Kwame Nuamah and her grand-mother, Abena Tiah, sister of the defendant. This appointment took place on the fortieth day and the family, including the defendant, told her to cook in her mother’s kitchen and look after her brothers and sisters, and take good care of her mother’s personal effects. According to the plaintiff some time after her appointment she was told by her father that her mother had money in the bank. She informed her family about this and when she told them that she would swear to an affidavit to withdraw the money they disagreed and asked her to share the money with them. She said it was the defendant who first objected to her taking out the money. The plaintiff maintained that the family did not know of the bank account at the time of her appointment and that she was given that piece of information by her father after her appointment. Her father had the bank account book. The plaintiff then gave evidence to show that none of the members of her mother’s family had taken any interest in the children of the deceased either in her life time or after her death, and that she had been looking after the children since the death. She categorically denied that the defendant had been appointed successor to the deceased and in her own words: “If the defendant says that she was appointed successor and not I then it is a lie she says. She was not appointed successor.”

The father of the plaintiff, Acheampong, supported the evidence of his daughter as to her appointment and as to the family’s lack of interest in the welfare of the children. He confirmed that all the children lived with the plaintiff and that she alone cared for them without any support from the family. He said he was present at the family meeting when the plaintiff was appointed successor and gave the names of the principal members present as Opanin Kwasi Mensah, head of family, Kwasi Nuamah, Adu Twenewah, Yaa Tiah, Abena Ateah and the defendant. He said she produced the customary aseda for her appointment. He however put the date of the appointment at the eighth day – a week after the death, whereas the plaintiff herself had put the date at the fortieth day. The deceased [p.522] of [1968] GLR 519 died on 4 April 1966 (see the plaintiff’s oath for administrator not with will annexed sworn by her on 12 May 1966 and filed to support her original ex parte application for the grant of letters of administration to her, filed on 13 May 1966).

The brother of the plaintiff, Kojo Aworoh also supported her evidence as to her appointment and the family’s lack of interest in the welfare of the deceased’s children. The plaintiff did not call any principal member of her mother’s family to give evidence on her behalf and the only evidence to support her’s is that of her father Acheampong and her nineteen year old brother Aworoh.

The defendant gave evidence and called Kwasi Mensah who was said by the plaintiff to be the head of family and Abena Tiah, sister of the mother of the defendant. Although there was some dispute between the plaintiff and the defendant as to whether or not Kwasi Mensah is the head of the entire wider family, it is common ground that he is at any rate the head of the immediate family of the deceased, and the head of the Kunsu Wiawso branch of the family. The defendant’s case that she had been appointed successor was confirmed by Kwasi Mensah and Abena Tiah and they denied the evidence of the plaintiff, her father and brother that the family of the deceased had appointed the plaintiff successor. The defendant has two other daughters living and grandchildren through them. Abena Tiah also has two older sisters living who she says are too old and so she has been called to represent the female section of the family. She gave a vivid account of the nomination and appointment of the defendant on the eighth day. On the evidence of the plaintiff as a whole, the matters of fact which have to be considered are firstly whether the plaintiff or the defendant was appointed successor and whether the defendant in particular and the deceased’s family generally have failed to discharge their customary law obligation to care for the children of Ama Agyemang and then to decide the central issue whether the plaintiff or the defendant is better entitled to a grant of letters of administration.

Taking first the issue of appointment, the most significant feature of the plaintiff’s case is the total absence of any evidence from any principal member of her mother’s family, the family to which she belongs, to lend support to her claim. Her brother, a boy of nineteen, was the only member of the family to support her. The plaintiff however explains this absence on the basis that the family turned against her after her appointment when they were informed of the money in the bank, and because they wanted a share of the money. Be that as it may, the fact stands that as of now her claim to a grant does not have the blessing of her mother’s immediate family and is [p.523] of [1968] GLR 519 opposed by them. It is also clear she claims as against the mother of the deceased and the person who appears on the unchallenged evidence to be the nominee of the immediate family of the deceased. The deceased was an Ashanti and so is the plaintiff.

In my consideration of the case of the plaintiff I have given attention to the discrepancy in that case, as to the date of appointment of the plaintiff. She put that date at the fortieth day whereas her father put the date at the eighth day. The preponderance of the evidence before me however does not support the date claimed by the plaintiff. Indeed the deceased died on 4 April 1966, and the ex parte application was filed about 43 days later, and these documents do not support the plaintiff’s contention that she was appointed on the fortieth day or indeed what she had said under cross-examination, that she made that application six months after the death. I find it rather puzzling that there should be this discrepancy as between the plaintiff and her father, and I consider it material to the issue of appointment, and it will have to be given due weight in assessing the credibility of the plaintiff. Again it seems to me that the plaintiff must have been about eighteen to twenty years old in 1966 – her age in court was given as twenty or 22 years – and it is not disputed that her mother had eight children, six of whom were younger than seventeen years in 1966. The deceased was a cloth seller and judging by the money in her bank N¢660.00. and the number of cloths set down in the plaintiff’s declaration, must have been fairly well off. There is admitted evidence that at her death her husband, the father of the plaintiff, was indebted to her to the tune of N¢400.00 and there were other debts owed to the estate. The plaintiff herself has two children, one of whom was born during the pendency of this suit (so I was informed by both counsel). I think it is legitimate to consider whether the family would have been likely to appoint such a youthful member as successor to the estate with the immediate responsibility of taking charge of all seven children in addition to her own young ones. Then there is the fact that the mother of the deceased was and still is alive. The question is was the plaintiff appointed successor? On the evidence before me the preponderance of probability is against the plaintiff and in favour of the defendant. I have considered the probabilities of the case and the conclusion I have come to is that I must find for the defendant on the issue of appointment. That conclusion is fully supported by the impression made on me by the various persons who have given evidence before me. I found the plaintiff unwilling to admit facts that may be in favour of the defendant and I detected in her demeanour, a hard determination to paint [p.524] of [1968] GLR 519 her grandmother as a callous, uncaring, grasping freak devoid of any maternal feelings whatsoever towards her own brood. My own impression of the defendant does not show her in any such bad light and I have not found any reason to doubt her good faith. I accept the defendant, the defendant’s first witness and the defendant’s second witness as truthful witnesses and I accept their evidence. I find therefore that the immediate family of the deceased appointed the defendant as her successor on the eighth day and that it was with the full consent and approval of the wider family. I find further that the plaintiff was never at any time appointed successor. As regards the issue of lack of interest by the defendant and the immediate family in the welfare of the children, I reject the evidence of the plaintiff and her father and brother and accept the evidence of the defendant. I do not find it realistic to give any credence to the evidence of the plaintiff and her witnesses on this issue. The plaintiff showed herself hostile to her grandmother and in any case I am strongly inclined to accept the point made by counsel for the defendant that she was under the influence of her father in respect of this application. Her father gave me the impression that he was not honest in his answers and I thought he was evasive in his answers under cross-examination. He is indebted in a fairly substantial sum to the estate and then there is the very significant matter given in evidence by the plaintiff herself that her father did not reveal to the family that he had a bank book of the deceased with him. The family met on the eighth day and the plaintiff ‘s father told them of the debts owed to the estate. Yet he never thought it necessary to disclose the bank balance to them or to hand over the book spoken of by the plaintiff. I find it difficult not to come to the conclusion that the father of the plaintiff intended to keep this fact from the family. The brother of the plaintiff would have me believe that the defendant never bothered after his welfare but then he had to admit in cross-examination that about the death of his mother the defendant had sent him money when he was at Techiman. Again the family had apprenticed him to a fitter in Kumasi and paid the necessary fees after the death. It was the defendant and Opanin Adom, an elder member of the family and said by the defendant to be the overall head of family who took him to the fitter, and paid a fee of £G4 on his behalf. The defendant said she paid the sum of £G4, and I have no reason to doubt what she said. There is no dispute that she was present at the fitter’s workshop at 2 p.m. when the boy was presented to the fitter. She said she gave the money and the youth is in no position to contradict her evidence. Neither the plaintiff nor her father had anything to do with this apprenticeship, and the boy admitted that when he was in Kumasi he had his meals with the [p.525] of [1968] GLR 519 defendant. Then there is evidence that the defendant now has in her care the youngest child of the deceased. In my judgment, the case that the defendant and the family have not shown any interest in the children has not been made out and I reject that contention. I find that the defendant has been willing to fulfil her customary duties in respect of the children and has done what she could to look after them.

I will now look at the legal considerations relevant to the determination of the central issue of who is better entitled to the grant. I have considered a number of relevant judicial decisions which I will now set down in detail, among them Mills v. Addy (1958) 3 W.A.L.R. 357 considered exhaustively, even if not with unanimity, in the later case of Krabah v. Krakue [1963] 2 G.L.R. 122, S.C. dated 24 June 1963. I have also considered In re Essuman (Decd.); Essuman v. Teschmaker [1967] G.L.R. 359, C.A. dated 22 May 1967; Asamoah v. Ofori alias Renner [1961] G.L.R. 269; Coleman v. Shang [1959] G.L.R. 390, C.A. and Carboo v. Carboo [1961] G.L.R. 83. I have also considered the cases cited and views expressed in Ollennu on The Law of Testate and Intestate Succession in Ghana at pp. 153-170 and at pp. 169-170 appears this summary by the learned author of the customary law: “We would therefore summarise the customary law of succession to a woman in a matrilineal society as follows: As in the case of a man, property of a deceased woman becomes family property upon her death intestate, her mother being the real successor, with this difference, that in addition to her brothers and sisters her children have an immediate beneficial interest in the property being members of her immediate family. Where she is predeceased by the mother her surviving sisters and brothers in turn become the successors jointly with her children, her children having together with their uncles and aunts immediate beneficial interest in the property. Upon the death of the last sister or brother the children enjoy it for their lives.” In Krabah v. Krakue [1963] 2 G.L.R. 122, S.C. Olennu J.5.C. in his majority decision (Akuffo-Addo J.S.C. (as he then was) dissenting) cast doubt on his own decision in Mills v. Addy (supra) and restated the principle at p. 127 as follows:

“In the first place it is a firmly established principle of customary law that in a matrilineal family system a mother is the real successor to any of her children—male or female who predecease her and is the head of his or her immediate family,”

[p.526] of [1968] GLR 519 and then at p.129 he said:

“in the absence of the mother, brothers and sisters of the deceased, the children of the deceased female take full control of then estate and are the sole beneficiaries each for his or her life, issue of any female child stepping into the shoes of their deceased mother in the enjoyment of the estate.”

And at the same page, he said:

“From the principles referred to I have come to the conclusion that so long as he mother. a uterine sister or brother of a deceased woman in a matrilineal family society is alive, she or he takes precedence over children of the deceased in the family hierarchy; the children of the deceased woman rank next to her sisters and brothers, and they, the children, share in the immediate beneficial interest in the estate, they are postponed in their right to full immediate control, management and enjoyment of the beneficial interest in their deceased mother’s property, until the last of their mother’s brothers and sisters die.”

Blay J.S.C. put the matter thus at p. 131:

“where a woman dies intestate leaving property, that property vests in her mother as family property for the enjoyment primarily of herself and the children of the deceased and secondly for the enjoyment of other members of the deceased’s immediate family.

That the mother of the deceased together with other members of the family appoints a successor to manage and administer the estate for the benefit of the persons entitled to enjoy the property as stated above.”

Again in Asamoah v Ofori alias Renner (supra) at p. 271 Ollennu J. had this to say.

“In this country they [letters of administration] are usually granted to the successor appointed by the family. … It is also a custom common to both the matrilineal and patrilineal family systems, that children of the deceased are entitled to a share in the distribution of the personalty . . . the share of the personalty or the specific chattels to be given to children are in the discretion of the family.”

Upon a consideration of these authorities I have come to the conclusion that the customary law of succession applicable to the case before me is as set out in these authorities and on that basis

[p.527] of [1968] GLR 519

I have not found it necessary to accede to the request of counsel for the plaintiff to exercise my powers under paragraph 65 of the Courts Decree, 1966 (N.L.C.D. 84), to institute an inquiry as to what the Ashanti customary law is. In my view that law is in substance the same as the law set out in Krabah V. Krakue (supra) and at pp.169-170 of chapter 23 of Ollennu on The Law of Testate and Intestate Succession in Ghana.

I have had to consider the law as to succession because it is admitted that the court in granting letters of administration takes into consideration the rights of the customary successor or the interest of the family of the intestate: see In re Essuman (Decd.); Essuman v. Teschmaker [1967] G.L.R. 359 per Azu Crabbe J.A. at pp. 363-364, C.A.:

“It is a well-settled principle that the right to the administration of the property of an intestate follows the right to the property; or shortly stated, the grant ought to follow the interest. In general practice a party having a direct interest is preferred to a person having only a derivative interest . . . The court has a wide discretion in making the grant of letters of administration, . . . The function of the court when considering an application for a grant of letters of administration is to look to the benefit of the estate and to that of the beneficiaries of the estate . . . Letters of administration are usually granted to the party who is shown to have the largest interest, unless there is some ground of objection or some reason for preferring another . . . In this country, the exercise of the court’s discretion takes into account the rights of the customary successor of the intestate, the interest of the deceased’s family.” I find that the plaintiff and her brothers and sisters and the defendant all have a community of interest in the estate of the deceased. I am satisfied – and in this respect I have the open assurance of the defendant—that the children will in fact be the persons who will in the main have the greater part of the immediate beneficial enjoyment of the estate. There are eight of them including young ones and the eldest son clearly needs to be put in some useful trade now. It is apparent that there is a fair measure of hostility engendered as a result of their rather unusual suit which has pitted a granddaughter against a grandmother. I find that the circumstances of the case are unusual and call for a careful exercise of the discretion that I now have to exercise. After an anxious and careful deliberation I have come to the conclusion that the interests of the estate and of the immediate beneficiaries would be best served by a grant jointly to [p.528] of [1968] GLR 519 the granddaughter and the grandmother, and I find support from the decision in Coleman v. Shang (supra) where van Lare Ag. C.J. put the case at p. 410 thus expressing the view of the Court of Appeal: “we think that in the interests of the estate, and of all the beneficiaries concerned, letters should be granted to her jointly with the plaintiff to administer the estate.” I am of the same view in the present case and I accordingly declare that a joint grant should be made to the plaintiff and the defendant to administer the estate of Ama Agyemang. With regard to the question of costs they will be borne by the estate.

DECISION

Letters of administration jointly granted to both plaintiff and defendant.

G. K. G.