LAMPTEY AND ANOTHER v. NEEQUAYE AND OTHERS [1968] GLR 257

DIVISION: HIGH COURT, ACCRA

DATE: 19 MARCH 1968

BEFORE: CAMPBELL J.

NATURE OF PROCEEDINGS

ACTION by the plaintiffs against the defendants for a declaration of title, accounts, damages for trespass, ejectment and perpetual injunction. The facts are fully set out in the judgment.

COUNSEL

J. K. Tawiah for Nii Odoi Annan for the plaintiffs.

Defendants absent and unrepresented.

JUDGMENT OF CAMPBELL J.

The plaintiffs and the defendants are by Ga-Mashie customary law of intestate succession all members of the immediate family of Madam Amorkor Abbey, deceased, being respectively her children and uterine grandchildren through one Madam Koshie Lamptey deceased, a sister of the plaintiffs. On the evidence, apart from one Kotchou Neequaye, a younger sister of the defendants, there are no other persons who rank in the class of her immediate family. The present head of Madam Amorkor’s wider family is one Tei Nortey who is a patrilineal cousin of the aforesaid Madam Amorkor.

The present dispute arises out of a house, No. 405 Kaneshie Estate, Accra, which the plaintiffs assert is the self-acquired property of their mother. They therefore claim a declaration to that effect also that they are entitled as against the defendants to succeed and inherit the said property, that they are entitled to the control and management of the house, to an account of rents and profits accruing therefrom from June 1962, the date of death of Madam Koshie Lamptey, to date of judgment; in addition they claim damages for trespass against the defendants, an order of ejectment against them and perpetual injunction restraining them from interfering with the premises. The house in question was a rental unit allocated to Madam Amorkor in or about 1939 of which she died possessed on 26 July 1950. Subsequent to her death Madam Koshie Lamptey, her eldest daughter, exercised control and management and had her name substituted for Madam Amorkor in 1953 in order to exercise an option to acquire a permanent four bedroomed dwelling-house the construction of which was then contemplated by the Department of Housing in substitution for the temporary building then existing on the site. The permanent building was constructed somewhere between 1 November 1953 and April 1954 during which period vacant possession of the premises was delivered up to the Department of Housing; the keys of the reconstructed premises were handed over [p.260] of [1968] GLR 257 on completion to Madam Koshie Lamptey on or about 6 May 1954. Subsequently in January 1956, in conformity with the conditions for the exercise by her of the option to acquire this permanent building, she executed a lease tendered in evidence as exhibit E wherein she undertook to pay off £G740 being the freehold purchase price of the premises in equal monthly instalments of £G3 18s. per month over 30 years and in fact down to the date of her death had paid off a little over £G150 of the purchase price in addition to the pure rent element contained in the monthly payments.

These facts are not readily apparent from the oral evidence given in court, but become clear from a perusal of the Housing Corporation file relating to this house which was tendered in evidence as exhibit B.

The defendants in evidence admit that the property in dispute belonged to their grand- mother; in their defence filed to the plaintiffs’ claim in 1963 they had asserted that the property was the self-acquired property of their mother, Madam Koshie Lamptey, no doubt relying on exhibit E, however, during an adjournment of the case for settlement in 1964 they had delivered over all documents in relation to the house to the second plaintiff and he on his own evidence, had been in receipt of the rents from two rooms and a store of the premises from 1964, the second, third and fourth defendants being in occupation of two rooms and a kitchen. There can be no doubt on the evidence that the property in question is the self-acquired property of Madam Amorkor and that despite its reconstruction on the initiative of Madam Koshie Lamptey, her defraying of the instalments thereon, the execution of the lease in her name in January 1956, the aforesaid property throughout, retained its original character of self-acquired property of her mother. This is so because once it is shown that Madam Koshie Lamptey exercised control and management of the original rental unit as caretaker or de facto head of Madam Amorkor’s immediate family of which she is herself a member, the strong presumption which arises is that improvements made on the premises by her are for and on behalf of the immediate family in whom both the title and the beneficial interest vests eo instanti with the death of Madam Amorkor. The defendants most likely were advised of this fact, consequent on which the documents including exhibit E were handed over to the second plaintiff in or about 1964. This having been done, it is difficult to understand why this internecine family dispute should have been continued in court involving the odious spectacle of the plaintiffs as uncles litigating with nephews and nieces for nothing less than a declaration of their right, if such they have, of ejecting the defendants from the partial

[p.261] of [1968] GLR 257 occupation by them of family property and for restraining them from interfering with the premises.

The defendants having admitted that the property was family property and having pursuant to that, handed over the document to the second plaintiff from as early as 1964, I think it is an abuse of the process of the court to have litigated this particular issue. This court will therefore merely declare formally that the property in question is the self-acquired property of Madam Amorkor and that having regard to the admission by conduct of the defendants in 1964, the plaintiff would, notwithstanding this declaration, not have been awarded any costs arising from this issue.

The plaintiffs have claimed an account from the defendants, damages for trespass, order of ejectment, order of perpetual injunction restraining them from interfering with the premises, in addition to two further declarations, namely, that by Ga customary law they are entitled as against the defendants to succeed and inherit the property and to control and manage the same.

Dealing with the claim for an account, and without considering whether as a matter of customary law the plaintiffs would in the present circumstances be entitled to an account, I find on the evidence that the plaintiffs have not established a case for rendition of account to them. The second plaintiff who alone gave evidence and who appears to be the moving force behind these proceedings admits that down to 17 June 1962 the property was being controlled and managed by Madam Koshie Lamptey deceased. He claims an account of rents and profits from this date to the date of judgment against the defendants in the teeth of the following evidence given by him at different stages of the proceedings which I quote: “I know one Odum Kofie, he lived in the house No. 405 from the date it was acquired until the present, he still lives there, the house was rented to him by my mother, he pays rent for the house, he occupies two rooms and pays a total of N¢8 per month, there are four rooms and a store comprised in the premises apart from lavatory and kitchen. The other rooms are occupied by the second and third defendants, the store is rented to a woman whose name I do not know, the second and third defendants do not pay any rent, the woman occupying the store pays rent. Odum Kofie and the woman occupying the store pay rent to me. They commenced paying rent to me since after the death of my sister Koshie Lamptey which event occurred on 17 June 1962.” [p.262] of [1968] GLR 257

Later in his evidence he said:

“When My sister Koshie Lamptey died Kotchou Neequaye, a younger sister of the defendants, from the same mother, took over control of the house, I did not appoint her to look after the house nor did the first plaintiff ever appoint her to look over the house. I do not know who appointed Kotchou Neequaye to look after the house.”

It is clear from this evidence that either the second plaintiff received the rents from these two tenants direct from 17 June 1962, or he received the same through Kotchou Nee- quaye, the self-appointed caretaker. In fact his evidence is to the effect that even before Madam Koshie Lamptey died, Kotchou Neequaye was the rent collector though during the lifetime of Madam Koshie Lamptey, he (the witness) said, he did not know to whom Kotchou Neequaye accounted.

The second defendant admits in his evidence that between 1962, 1963 and 1964 Kotchou Neequaye collected the rents from the tenants and he even paid his own rent to Kotchou Neequaye.

I can in this state of the evidence only conclude that in so far the second plaintiff did not himself directly collect rents from two tenants between 1962, 1963 and 1964, the said rents were collected by Kotchou Neequaye, and the fact that he did not join her as a co-defendant can only mean that she paid over these rent to him. His evidence on a subsequent date that between 1962 an 1964 the second, third and fourth defendants were collecting rents must be considered an afterthought and false at that, designed to nail these defendants with a vengeance while leaving Kotchou Neequaye free from liability to account, even though she was in control of the property between 1962 to 1964. To crown the manifestation of bad faith in the second plaintiff in bringing these proceedings, he has proceeded with the action against Dee Neequaye, even though on his evidence it was she who handed over the document including exhibit E to him, and she has never resided on the premises since 1962, nor is there any evidence that she directly or indirectly collected rents therefrom or exercised control over the property. On this issue of rendition of account, I dismiss the plaintiff’s claim as being without substance, he has himself been collecting the rents from 1964 and between 1962–64 he has not on the evidence established that the second, third or fourth defendants have collect and utilised any rents and profits from the premises unless his claim for accounts derives from the occupation of the two rooms and a [p.263] of [1968] GLR 257 kitchen in the premises by the second, third and fourth defendants for which the plaintiffs allege that they pay no rent. This particular aspect will be dealt with hereafter.

The plaintiffs claim a declaration that they as the surviving children of their mother are entitled as against the defendants to succeed and inherit the self-acquired property of Madam Amorkor. Doubtless they are members of the immediate family of Madam Amorkor but the principle of customary law developed through the cases and finding recent expression in Krabah v. Krakue [1963] 2 G.L.R. 122, S.C. does not support the plaintiffs’ claim to exclusive right to succeed and inherit; they, equally with the defendants and Kotchou Neequaye together, are the successors to Madam Amorkor in the absence of a mother, sisters and brothers of the deceased, and though together their right to the full control, management and enjoyment of the deceased’s estate would during the life of a mother, brothers and sisters of the deceased, be postponed pending the dropping of the last of the lives of the said persons, once there is no survivor among these persons, the children including uterine grandchildren enjoy pari passu immediate right in full to control, manage and enjoy the said deceased’s estate. Ollennu J.S.C. (as he then was) delivering the majority judgment of the court in this case had this to say at p. 129 that: “in the absence of the mother, brothers and sisters of the deceased, the children of the deceased female take full control of the 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.”

It is abundantly clear from this enunciation of principle that whatever may be the merit or otherwise of the doctrine of postponement between one class of successors vis-á-vis another class as for example between a surviving mother as against brothers and sisters of the deceased, or the former as against children and uterine grandchildren, the aforesaid doctrine of postponement finds no place as between a member vis-á-vis another member of the same class of successors. The plaintiffs therefore being members of the same class of successors as the defendants have no prior claim to succeed on to the control, management and enjoyment of the estate of the deceased as against the defendants. Their claim as the exclusive successors and inheritors of Madam Amorkor therefore fails and is dismissed. Following closely on the plaintiffs’ claim as exclusive successors, is the claim of right to control and manage the estate of their mother; doubtless they are eligible for selection as successors to Madam

[p.264] of [1968] GLR 257

Amorkor’s family but eligibility is not the same as an inherent right; the rule of customary law evolved through the cases and stated very clearly in Ollennu’s The Law of Testate and Intestate Succession in Ghana at p. 87 is as follows and I quote:

“We would state the general principle of right to succeed as follows: No person can succeed as of right; upon the death of a person intestate, his family. i.e., the family to which he belonged for purposes of succession, meet, and appoint his or her successor, the other family being in attendance. The appointment is made from a group of people nearest in relationship to the deceased, i.e., the immediate family, according to the family group to which he belonged, i.e., paternal or maternal. Preference is generally given to the eldest in that group, but he can be passed over if in the opinion of that family he has not got the necessary qualities expected in an administrator who in effect is pater famillias.” This principle, as stated, shows that for the second plaintiff to succeed in his claim of right to control and manage Madam Amorkor’s estate he must establish by evidence that he has been lawfully selected as successor of this deceased’s immediate family, failing which, the head of Madam Amorkor’s immediate family would be Tei Nortey who on the evidence is the existing head of her wider family and only he would be entitled to control and manage the deceased’s estate for and on behalf of the persons beneficially entitled thereto: see Ghamson v. Wobill (1947) 12 W.A.C.A. 181. Ollennu J.A. in his book referred to above says at p. 87: “In the absence of a special appointment of a successor, the head of the family of the deceased, is by customary law, the successor to the deceased.” The second plaintiff said in evidence that as the eldest child of Madam Amorkor he took possession of her belongings including the documents relating to the house in question. He communicated this fact to one Tei Nortey the head of Madam Amorkor’s family who confirmed that he should look after his deceased mother’s estate. He said further that because he was working and residing at Sekondi he asked the defendants’ mother, Madam Koshie Lamptey, to control the estate as caretaker during his sojourn in Sekondi. From this evidence he would like the court to draw the inference that he is the lawful successor to the estate of Madam Amorkor with the right as successor to control the property and determine which members of the immediate family of the deceased, if any, should occupy the house and in what proportion. The defendants not having [p.265] of [1968] GLR 257 received the second plaintiff’s consent to occupy the rooms which they presently occupy would be trespassers liable to ejectment on this thesis and could be enjoined not to interfere with the premises in perpetuity.

The rule of customary law does not provide for the unilateral appointment by the head of family of a successor to an intestate’s estate, and this is so even where the head of family is the deceased’s mother; a fortiori the head of family could not lawfully acquiesce or confirm unilaterally the self-appointment by a person of himself as successor. The second plaintiff has not shown that there was any family convocation at which he was selected as successor. Tei Nortey who is alive has not been called as a witness to testify on the second plaintiff’s averment that he Tei Nortey confirmed the appointment of the second plaintiff even assuming that such unilateral confirmation could have validated the alleged self-appointment. I hold on the evidence that the second plaintiff was at no time appointed successor to Madam Amorkor and is not therefore entitled to control and manage the estate. The only person presently entitled to control the said estate is Tei Nortey by virtue of his headship of Madam Amorkor’s wider family. The only person entitled to call for an account of rents and profits of the estate, to determine who may or may not occupy the premises in what proportion, and whose consent is requisite to occupy the said premises is the existing head of family by virtue of his right as successor pending the special appointment of a successor to Madam Amorkor. In the absence of evidence that the estate is in jeopardy or is being dissipated with the head of family merely standing by and refusing to act, or that he is biased in favour of the defendants against the plaintiffs necessitating the latter bringing this action in defence of the property or for an order of the court declaring no more than their right to a fair share in the enjoyment thereof, I must hold that the plaintiffs not having on the pleadings or on the evidence established that the suit was brought in the name of and on behalf of the head of Madam Amorkor’s family or with his authority and consent have no locus standi in this court and on this ground alone ought to be non suited. I have already found that the declaration sought by the plaintiffs that the property in question was Madam Amorkor’s self-acquired and individual property had ceased to be an issue in this litigation from 1964 and ought not to have been pursued. I have equally found that the plaintiffs are not entitled exclusively to succeed and inherit the estate in question, that they are not on the facts in evidence entitled to an account from the defendants even if in law they were persons who would otherwise be entitled to call for an [p.266] of [1968] GLR 257 account, that further as a matter of customary law they were not the persons entitled to call for an account, or in the absence of appointment as successor, to control and manage the property as an inherent right flowing from their being children of Madam Amorkor. On the other reliefs claimed, namely, damages for trespass, ejectment and perpetual injunction the plaintiffs in my opinion must necessarily fail in any case, even if I am wrong in holding that they have no locus standi in this court.

The evidence shows that the defendants occupied the rooms and kitchen with the consent of Madam Koshie Lamptey who was put in control of the property by the plaintiffs and without any objection from Tei Nortey the head of family, they have been occupying the said premises without objection from the plaintiffs from 1960 even though the plaintiffs were in Accra at the time when Madam Koshie Lamptey put them in occupation. Two rooms and a store are in the possession of the plaintiffs who are collecting the rents therefrom; no objection appears to have been raised to the defendants’ occupation of the premises until after the death of Madam Koshie Lamptey and the only objection has been from the plaintiffs, leading to the present litigation but not from Tei Nortey the head of the family. This court must therefore presume that the portions of the premises occupied by the defendants were properly allotted to them in accordance with customary law and being members of the immediate family of Madam Amorkor they are entitled to remain in occupation and enjoyment of their allotted portion of what is now family property. The claim of the plaintiffs for damages for trespass, for an order of ejectment and perpetual injunction restraining the defendants from interfering with the said premises is therefore not well founded in customary law and is accordingly dismissed. In the circumstances the plaintiffs’ claim in respect of all the issues which were still open for adjudication by this court are dismissed. The defendants will have the costs of this action assessed at ¢105.00 against the plaintiffs jointly and severally.

DECISION

Action dismissed.

S. K. T.