KWAKYE v. TUBA AND OTHERS [1961] GLR 720

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 27TH NOVEMBER, 1961

BEFORE: OLLENNU, J.

CASES REFERRED TO

(1) Lartey v. Mensah & Dedei & Ors. (1958) 3 W.A.L.R. 410

(2) Okoe v. Ankrah [1961] G.L.R. 109

(3) Attipoe & Anor. v. Bishara Shoucair & Anor., Land Court, Accra, May 4, 1958, unreported.

(4) Makata v. Ahorli (1956) 1 W.A.L.R. 169

(5) Hervie v. Tamakloe (1958) 3 W.A.L.R. 343

(6) Akyeampong v. Marshall, Divisional Court, Accra, November 11, 1959, unreported.

NATURE OF PROCEEDINGS

ACTION by customary successor for declaration of title to a farm left by a deceased relative.

COUNSEL

N. Olaga for T.A. Totoe for the plaintiff.

K. Sakyi for Osei Bonsu for the defendants.

[p.722] of [1961] GLR 720

JUDGMENT OF OLLENNU J.

The plaintiff instituted this action in his capacity as successor according to customary law of one Kwasi Kuma of Asokore, New Juabeng, and claimed (1) declaration of title to a piece of land with farm thereon situate at Bukruwa in Kwahu, (2) injunction, and (3) account of the proceeds of the said farm. The defendants are children of one Kwasi Panin, deceased, who was elder brother to the said Kwasi Kumah. Both the said Kwasi Panin and the said Kwasi Kumah were Muslims. The plaintiff pleaded that after he had entered upon his office as successor aforesaid, he voluntarily entered into agreement with the defendants whereby he placed them in charge of the farm, and was to give them annually, one-third of the proceeds of the said farm, further, that the defendants adhered to the terms of the said agreement for two years, but repudiated the same at the beginning of the third year, i.e. the beginning of 1960-61 cocoa season, denied his title to the said farm, drove away his, the plaintiff’s caretaker from the land, and wrongfully occupied the same, and have continued in such occupation.

The defence is that the plaintiff is not successor to the said Kwasi Kumah, and further that by Muslim law, Kwasi Kumah having died without issue the defendants, children of his brother, succeeded to his estate. Kwasi Panin and Kwasi Kumah belong to the Asona clan or family of Asokore, New Juabeng. That clan or family has three groups: they are:- Adonten, Tuafo, and Akyeame groups; each group has a stool with an occupant and also has a head. Four witnesses gave evidence for the plaintiff each of them proved himself to be a truthful witness.

The first of these, Kwasi Boadi, is an old man over 90 years old, his sight has become defective, but his memory is clear, his thinking logical, and he showed sound knowledge of the customary law relating to succession; he was most impressive. The witnesses for the defence, in contrast to those of the plaintiff, proved themselves to be most unreliable. The last of the defence witnesses, Kojo Apaw, head of the Akyeame group of the family after he had told so many deliberate lies was compelled to admit that he had given evidence in a local court in connection with the succession to the same Kwasi

Kumah, that in the course of that evidence he had deposed that the whole family met and appointed the plaintiff successor to the said Kwasi Kumah, and that upon his said appointment the plaintiff paid an aseda of 24s. as fee to signify his acceptance. He said that that evidence he gave in the local court is true. In view of that admission of Opanin Kojo Apaw, head of the Akyeame branch of the Asona family, which admission corroborated the evidence of the plaintiff and his witnesses, which evidence I accept, I hold that the plaintiff was appointed successor to the said Kwasi Kumah and he took office immediately upon his said appointment. It was submitted by learned counsel for the defendants that the appointment of the plaintiff as successor to Kwasi Kumah is null and void on the following grounds:

(1) because by customary law only the members of the Akyeame group of the family should have carried out the appointment,

[p.723] of [1961] GLR 720 and the participation of the other two groups rendered it null and void;

(2) because by customary law Kwabena Kwarteng, as uterine brother of the deceased is the person who should have been appointed, he cannot be passed over even though he has not been seen for years and no one knows where he really is; and

(3) since Kwasi Kumah was a Muslim, Muslim law requires that only a uterine brother of his could succeed him.

On the first point, that is the constitution of meeting for the appointment of a successor, the evidence given of the custom by Opanin Boadi, the head of the Adonten group, and by virtue of his said office the head of the entire family, and the evidence led by the plaintiff and his other witnesses is in accordance with the custom as I know it. For the appointment of a successor, all the principal members of the branches of the family are entitled to attend the meeting, the meeting is presided over by the head of the whole family, sometimes even a chief or an elder in the town who is not a member of the family may be invited to preside. The only strict rule is that the successor should be chosen from the group who constitute the immediate family of the deceased, and it is only where no suitable candidate could be found in that group that a candidate may be chosen from another group, ie. from the wider family: see Lartey v. Mensah & Dedei & Ors.1(1) and Okoe v. Ankrah.2(2)

The submission that a uterine brother of the deceased is the sole person who could be appointed successor to Kwasi Kumah is contrary to all principles of the customary law of succession. The principle is that no person has a vested right to be appointed successor to anybody. The family may appoint any suitable person who comes within the group of persons from among whom a successor may be appointed. The principle is the same as that of the appointment of a head of the family. It is set out in the case of Attipoe & Anor v. Bishara Shoucair & Anor.3(3) that “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 the relatives”. And in Makata v. Ahorli & Ors.4(4) it is stated in the headnote that “(1) there are no rigid rules of intestate succession in Gold Coast native custom but the elders of a family, of which a deceased was a member may appoint a successor at their discretion, to stand in the shoes of the deceased with respect to the family property that had been in the possession of the deceased”. Further, in the headnotes to Hervie v. Tamakloe5(5) we find the following: “(1) the appointment of a person as head of a family is neither automatic nor does it devolve on any person as a matter of right. As with the appointment of a successor to a deceased person it is made by the elders of the family either formally and expressly or by implication, as where they accept and support acts

[p.724] of [1961] GLR 720 of headship performed by one not expressly elected as head. In selecting an appointee the elders are concerned primarily with choosing the person most fitted for the post; they therefore may gonoutside the natural line of descent if they think fit, i.e., in patrilineal areas a head may be selected from the maternal line if no suitable candidate is available in the male line; likewise annappointment can be made from the paternal line in a matrilineal area”. And now to the third submission that, because Kwasi Kumah was a Muslim, therefore succession to his estate must be governed by Islamic law. It must be made quite clear that succession in Ghana is not based upon a person’s religion. It is regulated by the customary law unless otherwise provided by statute: Akyeampong v. Marshall6(6). There are two statutes which vary customary law in that regard. These are section 48 of the Marriage Ordinance7(7), and, for Mohammedans, section 10 of the

Marriage of Mohammedans Ordinance8(8). The said section 10 of Cap. 129 reads as follows: – “On the death of a Mohammedan whose marriage has been duly registered under this Ordinance, the succession to his or her property shall be regulated by Mohammedan law”. That is to say, it is only a Muslim who married according to Mohammedan law, and had his said marriage registered under the Ordinance in the manner provided by the Ordinance whose succession shall be regulated by Mohammedan law. In the eyes of our law, a marriage by a Mohammedan according to Mohammedan law is at its very best a marriage by customary law and does not affect succession to his estate, unless the said marriage is registered under the Ordinance. Therefore if a Mohammedan died not having married, or if married not having had his said marriage registered under the Marriage of Mohammedans Ordinance, the only law which can regulate succession to his estate is his personal law, i.e. the customary law of the tribe to which he belonged. There is no evidence before the court to prove that Kwasi Kumah married in accordance with Mohammedan law, in the manner laid down by the Ordinance and if he did, that the said marriage was registered under the Ordinance. Therefore the succession to Kwasi Kumah’s estate is regulated by customary law. I hold therefore that the appointment of the plaintiff as successor to Kwasi Kumah is valid and that he, the plaintiff, is the proper person to have charge and control of all properties, real and personal, of which Kwasi Kumah died possessed.

The defendants have no interest whatsoever in their father Kwasi Panin’s estate except that they are entitled to maintenance, and, subject to good behaviour, to live in the family house; they have none whatsoever in the estate of their uncle Kwasi Kumah. It is only through the generosity of the plaintiff that they had some share in the proceeds of the farm in dispute. Now that they have repudiated the agreement upon which they became gratuitously entitled to a third share of the proceeds of the farm, and have denied the title of their benefactor, they have by their said conduct forfeited the generous grant which the plaintiff gratuitously made to them. [p.725] of [1961] GLR 720

There will be judgment for the plaintiff against the defendants jointly and severally for:

(1) declaration of his title as successor to Kwasi Kumah to the land with the farms thereon, the subject-matter of this suit;

(2) an order for injunction restraining the defendants and each of the defendants, their agents and servants from entering the said land and farms for any purposes whatsoever, or in any manner interfering with the plaintiff in his ownership, possession and occupation of the said land and farms; and

(3) an order upon the defendants to account to the plaintiff for all proceeds and mesne profits from the said land and farms since the beginning of 1960-61 cocoa season up to date, and to pay to the plaintiff the net balance due.

The registrar of this court is appointed to take the said accounts. The plaintiff will have his costs fixed at 75 guineas inclusive.

DECISION

Judgment for the plaintiff.