IN RE KOFI ANTUBAM (DECD.); QUAICO v. FOSU AND ANOTHER [1965] GLR 138

DIVISION: HIGH COURT, ACCRA

DATE: 11 MARCH 1965

BEFORE: ARCHER J.

CASES REFERRED TO

(1) Vanderpuye v. Botchway (1951) 13 W.A.C.A. 164.

(2) Quartey v. Martey [1959] G.L.R. 377.

(3) Amarfio v. Ayorkor (1954) 14 W.A.C.A. 554. NATURE OF PROCEEDINGS

ACTION for the determination of the interests of the widows, children and family in the self-acquired property of a person who died intestate.

COUNSEL

E. N. Moore for the plaintiff.

A. Tagoe for Olaga for the defendants.

JUDGMENT OF ARCHER J.

The plaintiff has caused this originating summons in this suit to issue to determine the following questions:

(a) Whether the defendants and their children have an interest in the estate of the said Kofi Antubam, deceased.

(b) If the defendants and their children have any interest in the estate of the deceased what is the nature or extent of such interest.

(c) Whether the family of the deceased have any interest in the estate of the deceased and if so what is the nature and extent of such interest.

[p.141] of [1965] GLR 138

The plaintiff claims to be the head of family of the deceased who died intestate and the defendants claim to be the widows with children having been married to the deceased according to customary law. The first defendant is the mother of six children by the deceased and the second defendant is the mother of three children by the deceased. For the purpose of determining the questions, the court was of opinion that filing of affidavits by the parties was unsuitable and in order to throw light on the custom the court decided to take oral evidence if necessary if the parties were prepared to do so. The plaintiff brought the

Acting Omanhene of the Wassaw Amanfi Traditional Area to give evidence as to customary succession to the estate of a male person who died intestate and leaves a widow, or widows with children. Section 67(1) of the Courts Act, 19601 provides that any question as to the existence or content of a rule of customary law is a question of law for the court and not a question of fact. After considering the submissions made by both learned counsel and consulting such reported cases and appropriate text books, I entertained no doubt as to the existence of customary law regulating intestate succession in a matrilineal system such as among the Akans. I did not therefore think it necessary to hold the inquiry laid down by subsection (3) of section 67 of the Courts Act, 1960, or to request the appropriate house of chiefs or traditional council to state its opinion.

As the questions posed for determination are questions of law, I proposed to deal with the first question:

Whether the defendants and their children have an interest in the estate of the deceased who was an Akan.

It was submitted by learned counsel for the plaintiff that the widows, and the children have no interest whatsoever in the estate of the deceased whose estate must devolve according to the matrilineal system of succession. On the death of the deceased the estate vests in the head of family until a successor is appointed by the family. The estate then vests in the successor who has to maintain the children whether or not there is sufficient estate to maintain them. The children are also entitled to live in the father’s house so long as they behave themselves. The successor assumes the role of a father and if he does not look after the children, the children may complain only to the family who may replace the successor. Finally that the family become entitled to the estate absolutely.

Learned counsel for the defendants submitted that according to Akan custom, children cannot succeed their deceased father as

[p.142] of [1965] GLR 138 successors but they have a life interest in the immovable property of the deceased father where the immovable is self-acquired and as such they are entitled to the income from the immovable property. It was further submitted that until the wives were released by the successor, the latter was under an obligation to maintain them. Learned counsel further argued that if there was no sufficient estate the successor was under no obligation to maintain the widows and the children. If the deceased left personalty, some of the personalty is usually given to the children and as such the children can claim some of the personalty from the head of family or the successor. Learned counsel referred to certain passages at pp.105 and 112 of Sarbah’s Fanti Customary Laws (2nd ed.). There are no decided cases relating to succession in the Wassaw Fiase Traditional Area, although learned counsel for the plaintiff cited the case of Vanderpuye v. Botchway,2 a decision which relates to matrilineal succession amongst the Gas. That case seems to establish that according to Ga customary law the members of a family are traced through the maternal ancestor, and the family is a unit for the purpose of ownership. All members have a joint interest which is indivisible. The interests of the children of an owner of self-acquired property amounts to a right of support out of the estate, but this right does not operate to set aside the ordinary rule of customary law that descent is through the female line. This case refers to a six-cloth marriage which enables children to inherit their father’s property in conjunction with the successor or family. I consider this case peculiar to the Gas and not of much assistance in ascertaining matrilineal succession among the Akans who, to the best of my knowledge, have no six-cloth (or ten-cloth) marriages.

I shall therefore seek guidance from Sarbah’s Fanti Customary Laws (2nd ed.). At p.50, we read: “On the death of the husband, his widows him 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 house, subject to good behaviour.”

It is stated at pp. 100-102 that:

“The whole family, consisting of males and females, constitutes a sort of corporation; some of the members being … persons entitled to a portion of the property on partition (cutting Ekar), and others who are dependants, and are entitled to reside in the dwelling-house for life, such as sons and daughters, subject to good conduct and not disputing right of the family…

[p.143] of [1965] GLR 138

The owner of self-acquired real property dying intestate, is not succeeded by his sons, they being outside the line of inheritance, but by his mother and her issue according to seniority.”

Then at p. 105, Sarbah goes on to draw a distinction:

“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 any one 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 a residence.” Then finally at p.274 of Sarbah’s book there are two paragraphs written by Mr. Justice Smith included in a report published by the then Gold Coast Government:

“10. Descent is traced through females. Property acquired by a man descends to his mother, then to his brothers and sisters by age. Failing this, to uncles and aunts, then to the eldest children of the eldest aunt, and so on. As males are preferred, a woman generally waives her right in favour of the next male successor, who is placed, with the consent of the family, on the stool, if any such exists, or otherwise takes charge of the property. The heir is superseded for just cause, such as drunkenness, extravagance, imbecility & c.

11. The son, in the Fanti country, does not inherit his father’s property, but his father may nominate him his heir, and may by gift, verbal or otherwise, give to him his acquired property. Children are not considered members of the father’s family, as far as having any right to his property. They belong to the mother’s family, and inherit from the mother’s side. Failing all blood relatives, the domestics of the house succeed by age … males being also preferred to females.”

The writer of this report at p. 274 of Sarbah’s book makes it quite clear that different customs appear to obtain in different districts and that such knowledge as the writer possessed was derived from cases heard in the courts, when native experts were called to expound the law, and even then the experts did not always agree.

[p.144] of [1965] GLR 138

However he was satisfied that on the main points there appeared to be a certain consensus of opinion, in the direction of which the decision of the courts had generally proceeded.

It seems to me therefore that one can rely safely on Sarbah and the early decided cases cited by him and also on this report by the then Gold Coast Government which related to the Colony now known as

Southern Ghana.

Since these pronouncements were made in the last quarter of the last century, customary law in Ghana has progressed and developed in accordance with the tempo of social, commercial and industrial progress. So far as land tenure is concerned, farming rights have been converted into building and residential rights, customs which appear to be repugnant to natural justice, equity and good conscience have been gradually extinguished by judicial decisions. The then legislature played a less effective role in these spontaneous developments engineered by public opinion. The courts have embraced these developments without adhering strictly to the original customary rigid rules. I have been reminded by learned counsel for the plaintiff that only Parliament can change the law and that it is not the function of the courts to make new law. Lord Denning in the preface to his book, The Changing Law, at p. vii, has stated that:

“The truth is that the law is often uncertain and it is continually being changed, or perhaps I should say developed, by the judges. In theory the Judges do not make law. They only expound it. But as no one knows what the law is until the Judges expound it, it follows that they make it.”

Ghana is a developing state with remarkable social and economic transformations which render some of our customary rules antediluvian. If the customary law is to retain its place as the greatest adjunct to statutory law and the common law, it cannot remain stagnant whilst other aspects of the law are in constant motion. I may be accused of what Junius said of Lord Mansfield that “instead of those certain and positive rules by which the judgments of a Court of law should invariably be determined, you have fondly introduced your own unsettled notions of equity and substantial justice.” But it is my determination to deliver my judgment in the true spirit of the Ghana Constitution.

Article 42 (4) of the Constitution provides:

“The Supreme Court shall in principle be bound to follow its own previous decisions on questions of law, and the High Court shall be bound to follow previous decisions of the Supreme

[p.145] of [1965] GLR 138

Court on such questions, but neither court shall be otherwise bound to follow the previous decisions of any court on questions of law.”

This article appears to be my constitutional licence to submit if necessary customary law to judicial malleability. My conviction is that decisions of the Privy Council, the former West African Court of

Appeal and the former Court of Appeal are no longer binding by the iron nexus of binding judicial precedent. Nevertheless the decisions of these courts have to be treated with the greatest respect.

Before I consider the available decided cases if any at all, I propose to stress that certain concepts, notions and conditions which prevailed when Sarbah wrote his book no longer prevail. For instance, the successor has to maintain the children as if they were his born children and also to marry the widows of the deceased. In other words the successor inherits the children and the widows as if they were inheritable chattels. Today women have attained a status equal to men with the right to decide for themselves their suitors or consorts in marriage and even to struggle to maintain their infant children during widowhood.

Again, widows surviving and their children by the deceased were entitled to reside in any house built by the deceased because of the rather limited accommodation available in those days when every one believed in sharing a small room or verandah in a family house. Accommodation was therefore of paramount necessity, hence the emphasis on right to residence. In modern Ghana the trend is to move away from family house into more commodious modern houses with hygienic amenities. It should therefore be proper for any widow or child who is offered accommodation in a family house to opt to live there or to live elsewhere and to sub-let his accommodation and receive the income accruing from his allocation.

Without committing any heresy, I am also prepared to take the plunge and to assert that the proposition that children are not considered members of the father’s family is contrary to all biological principles, alien to well-known doctrines of all accredited religions and opposed to common sense. The logic of the customary rule is that because children are not considered members of the father’s family, therefore they are completely excluded from any share of or right to his property. As I have already argued if the basis for this exclusion does not make sense then the exclusion itself cannot stand.

[p.146] of [1965] GLR 138

Having gone through this process of demolition of outdated concepts, I shall revert to Sarbah. I have already referred to his statement at p. 50 of his Fanti Customary Laws which describes the right of the widows surviving and their children by the deceased as one to reside in the house built by him, and the children and their issue have a life interest in such a house, subject to good behaviour. If one reads this statement carefully, one finds that Sarbah uses the words “life interest” in such a house, subject to good behaviour. This proviso in my view converts the life interest into a determinable interest on one condition. And by the word “interest” I take it to mean that Sarbah had in mind an interest enforceable at law. After all Sarbah was an eminent lawyer and jurist and must have chosen his words very carefully as he was writing a legal textbook. This means that if the widow chooses to remain a widow for the rest of her life, she is entitled to live in the husband’s house during the period of widowhood. The same interest applies to the children and their issue. Since they have an interest by residence, they may be at liberty to reside elsewhere and to insist that any income accruing from portions of the house allotted to them should be paid to them as life tenants entitled to that income. The widows and the children have to be maintained by the head of family or the successor if one has been appointed. Maintenance does not mean eating from the same bowl of food, but adequate monetary allowance payable to the widow. In Quartey v. Martey,3 it was held inter alia that by customary law a widow is not entitled to a share in her husband’s estate upon the death of the husband intestate. Her right is maintenance and support from the family. The judgment also went further to suggest that the widow may maintain an action for her maintenance and support against the head of the husband’s family or against the successor.

In the case of Vanderpuye v. Botchway,4 the court held that:

(1) In the case of intestacy the self-acquired property of the deceased vests immediately on his death in the family as family property.

(2) The native customary law is that only the children of a Ga six-cloth marriage are entitled under Ga custom to a share of the self-acquired property of their deceased father.

(3) That the share has been termed an interest but it amounts only to a support out of the estate.

[p.147] of [1965] GLR 138

(4) The exact share or interest which the child gets is not laid down. It depends upon the decision of the head of the family assisted by other members of the family. If he thinks he has been unjustly treated, a child has the right to say so.

(5) The members of a family are traced through the maternal ancestor and the family is the unit for the purpose of ownership of property. All the members have a joint interest in the family property which is indivisible.

(6) Being indivisible, there can be no apportionment in the sense of the alienation of a particular part of the estate to the children which would have the effect of severing the family property unless the parties agree to that course.

Vanderpuye v. Botchway was followed in Amarfio v. Ayorkor5 These decisions relate not only to Ga customary law but also expound the indivisibility, the inalienability of portions and the non-severance of family property in a matrilineal system without the agreement of the parties. In this age when land or other property should be easily alienable and transferable for the promotion of commerce and industry, is it proper to adhere to such notions of inalienability and non-severance of family properties? I think not.

There are no recent reported decisions on Akan customary law as such and I have therefore decided to revert to Sarbah whose work has been quoted in all courts in this country incessantly in support of propositions of customary law. Since Sarbah himself uses the words “life interest” I am prepared to hold that interest means an interest in the deceased husband’s estate.

My answer to the question for determination will be as follows:

(1) That the defendants and their children have an interest in the estate of the said Kofi Antubam.

(2) (a)The defendants as widows have a right of residence during widowhood in any house built on land self-acquired by the deceased or to dwell on any land acquired by the deceased.

(b) The children and their issue also have a right to occupy as residence any house built on land self-acquired by the deceased during the lifetime subject to good behaviour.

(c) The interest of the widows and the children is equivalent to a determinable life tenancy which entitles them to a share of the income accruing from the houses in which they are entitled to reside.

[p.148] of [1965] GLR 138 (d) The widows and children are entitled to be maintained by the head of family or successor by the payment of adequate allowance to the widows during their widowhood and also to the children until they are capable of maintaining themselves. These payments may be periodical or amount to annuities.

(3) By Akan customary law, the self-acquired property of the deceased has become family property on his death intestate and the maternal family have become the successors to the estate subject to the life interest of the deceased’s children and the occupational rights of the widows during their widowhood in the house built by the deceased on self-acquired land.

(4) Since it seems that the widows and the children have an interest not only in the immovable property but have to be maintained as of right from the whole estate, they are akin to beneficiaries who derive some advantage or benefit from the whole estate. Their interest and rights to maintenance are subject to the life interest of each member of the maternal family in the whole estate vested in the successor. If that is the case, their interests are inextricably mixed up in the indivisible estate and accordingly they are entitled to shares in the estate if ultimately the whole estate is converted into money or partitioned. The widows and children do not inherit but they claim interests from the inheritors, that is the maternal family through the head of family or the successor.

The costs of each party shall be paid out of the estate by the administrator-general. Seventy-five guineas costs to each party.

DECISION

Judgment for the defendants.

K. T.