MANU v. KUMA [1963] 1 GLR 464

DIVISION: IN THE SUPREME COURT

DATE: 27TH MAY, 1963

BEFORE: VAN LARE, OLLENNU AND AKUFO-ADDO JJ.S.C.

CASES REFERRED TO

(1) Amarfio v. Ayorkor (1954) 14 W.A.C.A. 554

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

(3) Adjei v. Ripley (1956) 1 W.A.L.R. 62

NATURE OF PROCEEDINGS

APPEAL from a judgment of Mr. Commissioner Dwira delivered in the High Court, Kumasi, on the 16th June, 1960. dismissing the plaintiff’s claim for £G2,500 being money expended by her on the education and maintenance of her children by Kofi Du, deceased, to whose estate the defendant had succeeded. The facts are sufficiently set out in the judgment of the Supreme Court.

COUNSEL

V. Owusu for the appellant.

D. S. Effah for the respondent

[p.466] of [1963] 1 GLR 464

JUDGMENT OF VAN LARE J.S.C.

Van Lare J.S.C. delivered the judgment of the court. This is an appeal from a judgment of D. E. Gwira, Esquire, Commissioner of Assize and Civil Pleas (as he then was) delivered on the 16th June, 1960, in the High Court, Kumasi, dismissing the plaintiff’s claim for an amount of £G2,500 alleged to have been spent by her covering a period of ten years for the maintenance and education of four of her five children by her late husband one, Kofi Du, to whom the defendant, Kwabena Kuma, respondent before us, is a successor appointed by customary law. The late Kofi Du was a storekeeper for the United Africa Company Ltd., and served as an evangelist to the Presbyterian Church at Kukuom where he died intestate on the 1st January, 1939, and he was possessed of substantial properties including eight cocoa farms and two houses, all of which estate devolved upon the defendant as his successor.

Although the plaintiff’s husband died in 1939 the action was not instituted until June 1958, and the claim is in respect of the immediately preceding ten years, i.e. 1947-1957. This was because prior to the year

1947 there was litigation over the estate of the deceased between the parties, during which time the plaintiff was in possession of three of the cocoa farms to which she laid claim, but she lost them all to the defendant as a result of the litigation ending in 1947 when the defendant inherited all the properties of the deceased. He has since failed to look after the children of the person whom he succeeded. The cost of maintenance and education of the children was borne by their mother, the plaintiff, who brought this action against the defendant, successor to the properties of the deceased father of the children, relying particularly upon an order made by the court of the Chief Commissioner, Ashanti, based upon an arbitration award, and confirmed by the West African Court of Appeal, in a suit between the parties in the Ahafo Native Court, whereby the defendant became responsible to look after the children of his predecessor, the late Kofi Du, and generally upon a successor’s liability under customary law. The plaintiff filed a statement of particulars of the expenses of her claim.

The defendant does not deny that there was an arbitration award against him but contends that such an award did not create a binding and enforceable obligation on him to maintain and educate his predecessor’s children who belong to their mother’s family in a matrilineal society. According to him the arbitrators’ award was only advisory and that under customary law there is no legal obligation on a successor to educate the children of the deceased up to elementary, secondary or other standard as the plaintiff’s claim implies; further he contends that the children are the responsibility of the plaintiff’s family on the death of their father and his obligation as a successor is moral rather than legal, and that the arbitrators being conversant with the customary law “advised” him to attend to the children and set no financial limits to the care he could give them. The defendant also contends that the plaintiff has no locus standi to bring the action.

[p.467] of [1963] 1 GLR 464

The main points for decision in this appeal are whether by customary law there is a legal obligation upon a successor to maintain and educate the children of a deceased whom he succeeds, and also whether the plaintiff, as the children’s mother, is entitled to bring this action.

Both counsel for the plaintiff and the defendant agree that the law is well settled as to a successor’s responsibility to maintain the children of the person whom he succeeds. But counsel for the defendant, however, has submitted that in a matrilineal society the entitlement of the children is at its best the same as the interest which children of a Ga six-cloth marriage in Accra have in their deceased father’s estate, and which, as enunciated in Amarfio v. Ayorkor,1 amounts only to a right of support out of the estate. He further submitted that the exact share or interest which the child gets is not laid down; that it depends upon the decision of the head of the family assisted by the other members of the family and that if he thinks he has been unjustly treated, a child has the right to say so. It has been submitted on behalf of the defendant upon such basis that the amount which the successor should spend on the maintenance and education of the children is at the sole discretion of the successor.

There is, however, a dearth of authority of the superior courts on this aspect of the customary law. This is so for two reasons: firstly, the cases against successors for maintenance of children of deceased persons have usually involved small sums of money and such cases are dealt with in the inferior courts and do not generally proceed to the superior courts; secondly, in the generality of cases instituted in the High Court by children against their fathers’ successors, the children claim either that they are by customary law successors of their deceased fathers, or that they are by custom entitled to specific share in their deceased fathers’ estate (to which only six-cloth children in Ga-Mashie as distinct from children in any other matrilineal society in Ghana are by law entitled). See for example Vanderpuye v. Botchway2 and Amarfio v. Ayorkor3. The same is the position in respect of claims by widows under customary law against the successors of their deceased husbands. There are, however, a few High Court decisions on the point both as to widows and children, but in the main they relate to a patrilineal family society. We are, therefore, faced with the task of laying down the principles applicable in a matrilineal society, and to be able to discharge this duty we have had to resort to the available materials on the point. There is no doubt that by customary law a successor stands in the shoes of his predecessor and assumes liability for his legal responsibilities within at least the means of the estate inherited by him. It is also settled law common to all tribes throughout Ghana that a man is responsible for [p.468] of [1963] 1 GLR 464 the maintenance and training of his children. All the text-book writers Sarbah, Rattray, Danquah and Field are agreed on this principle of the customary law which was rightly applied by the Divisional Court in Adjei v. Ripley.4

What then is the extent of the father’s responsibility to maintain and train his child, which responsibility devolves upon his successor? Rattray in his Ashanti Law and Constitution, at page 11, discussing the question under the sub-heading Training the Children, says:

“It is difficult to find any trace of systematic training of children. There were not any schools in the modern sense in olden times, but almost every hour of the daily life young children were undergoing unconscious instruction, mostly perhaps by a process of imitation of their elders. The bringing up of a boy seems naturally to have fallen on the father, and to have begun very early in life.”

Field in her book, Social Organisation of the Ga People, also lays emphasis on the principle that the practical training of the boy is carried out by the father and that of the girl by the mother, but that both the wife and the child are the responsibility of the man, and that upon a man’s death, that responsibility attaches to his successor.

In his book the Tribes of the Ashanti Hinterland, Vol. 1 at pp. 162-171 in which he discussed customs of the various tribes of the Upper and Northern Regions, Rattray states the same principles and points out that the practical training of the girl is carried on by the mother while that of boy is carried on by the father. He is emphatic, however, that the wife and the child are both the entire responsibility of the man. He talks of the man owning the wife and child, not in the sense of slaves, but in the sense of being under his care and protection; that ownership, he says, devolves upon a man’s successor; see Vol. 1 at pp. 266-267, where he talks of a man’s wife and children as the first of the seven categories of property which a Nankanse man may own, and which devolve upon his successor.

From the above we are confirmed in the view that a man’s responsibility to support and maintain his child involves giving the child such maintenance, training and education as should make him a useful member of the society and community in which he lives. The customary law is a progressive system. Its basic principles are so elastic in their application as make them capable of application to any stage of the cultural, social and economic progress of the nation and tribes. At a stage of development when agriculture and craftsmanship in their various forms were the thing of the time for men, and rudimentary house-craft was the prime concern of women, the father’s responsibility which his successor assumed would extend to such training as would fit the child for that society.

[p.469] of [1963] 1 GLR 464

Danquah, in his book Akan Laws and Customs, rightly expounds the progressiveness of the customary law in this regard when writing about the paternal responsibility of the father to fit the child for society. He says, at p. 192:

“To-day things have changed, or perhaps I should say are changing-which is worse. Paternal responsibility is no more a simple question of the upkeep of a child. It also involves an active improvement in a child’s condition-the care and proper training of the child on lines required by modern social and economic exigencies.”

We consider that the responsibility of a successor to maintain and train the child of his predecessor is a legal one, and the right enuring there from to the child is different in its nature from a right to succeed to or have a share in the estate of his deceased father. We quote the principles as stated by one of us, Ollennu J.S.C. in his book, The Law of Succession in Ghana, at p. 19 as follows:

“While young, the children, are entitled to maintenance. It is the duty of the father or the father’s family to maintain the children, to exercise disciplinary authority over them, to find work for them, such as put them to a trade or profession, to marry for them and to find them a place in society e.g. in the army groups. The father does this because they are his children. The idea that among the Akan children have no claim on their fathers is misleading. What they do not possess is right to inherit the property….” We say therefore that a successor under customary law is under an enforceable obligation not only to maintain but also to educate the children of his predecessor to the extent of the property of the deceased which has come to his possession and his dealings therewith. We are satisfied that in this case the defendant came into possession of such an estate from his predecessor as could over conveniently maintain and educate his predecessor’s children up to the middle school. We find that he is bound in law to carry out this obligation which he has failed to do over the years, and this having been done on his behalf by the plaintiff, he should be made to contribute accordingly.

We now turn to the question whether the plaintiff has locus standi to bring the action. The ground upon which her right to sue is challenged is that the claim should have been made by the children or such of them as are of age and not by her, the mother. A mother is, in the absence of the father or the father’s successor, the natural guardian of her infant child, and is entitled to sue on their behalf for their maintenance or for any other relief. Therefore the defendant, successor to the father, having neglected the children the proper person to sue is the mother, the plaintiff. Furthermore, the claim is for expenses incurred by the plaintiff in discharging a legal obligation to the children which the defendant had neglected to discharge; the plaintiff is therefore an agent of necessity of the defendant and is entitled at common law to be reimbursed as to the amount she was obliged to expend on her children. But quite apart from the common law, the customary law recognises the right of a mother to claim from her husband or his successor expenses she may be put to for maintenance and [p.470] of [1963] 1 GLR 464 medical expenses for herself or child by him. “While a husband is living with his wife or is providing for and maintaining her, he is not liable for her contracts, debts, or liabilities, except for maintenance and any medical expenses she may be put to for herself or child by him”-see Sarbah, Fanti Customary Laws (1st ed.) at pages 35-36. We hold, therefore, that the plaintiff is properly before the court. The learned trial commissioner made no findings on any of the issues of law raised; he dismissed the plaintiff’s claim on the ground that she “has not adduced any direct evidence showing specific sums spent by her as shown in her particulars of claim.” It is true that the plaintiff has led no evidence whatsoever in support of the particulars of expenditure as filed and the learned trial commissioner was on that basis unable to award any amount which has not been proved before him as the claim was for a specific sum representing expenses alleged to have been incurred by her. Mere filing of particulars of expenditure does not constitute proof; particulars are allegations of fact which ought to be proved by evidence. But although the learned commissioner was right in principle yet in view of the nature of the claim being one for maintenance and education of children of the defendant’s predecessor and in view also of the uncontroverted fact that the plaintiff has maintained and educated the children, which duty the defendant should have performed, the trial court should have considered a reasonable award as contribution by the defendant in the discharge of that duty. We also point out that in actions for maintenance of children it may not be necessary to claim a specific sum of money, as the courts do award a reasonable amount either for the past or future maintenance according to the means of the person liable. In considering the amount which the defendant ought to be made to contribute in this case a few preliminary observations, some of which have already been hinted at, must be made. Firstly, the deceased Kofi Du was an educated man, a storekeeper and an evangelist. Of him the defendant said in cross-examination, “My brother was a Christian and an educated man, and he would have liked to see his children educated.” Secondly, the said Kofi Du left a large estate, out of which the defendant who did no work during the lifetime of the deceased is now deriving substantial income and is educating four of his own children and three children of his sister, the second defence witness, by an illiterate husband. The stage of social and economic development of the country requires that children of a person of the social, economic, religious and cultural standing of the said Kofi Du should have, at least, full elementary education, that is, up to the end of middle school.

The claim is made after all the four children had left school, six years after one of them had been employed, three years after one of the girls had been married and two years after the youngest one had left school. There is no doubt that the action has been long delayed and earlier steps should have been taken to compel the defendant to contribute towards the maintenance and education of these children. The plaintiff was content to wait until she appeared to have completed the work before coming to court. [p.471] of [1963] 1 GLR 464

Delays under customary law do not operate to deny justice as customary law does not set any limitation as to time within which actions may be brought; but we think that actions of this nature should be brought without undue delay as it would not only relieve the incumbent but also remind the person liable of his responsibility. Maintenance of children is a continuing liability and the sooner any accrued liability is settled the better for all concerned. Delay for ten years as in this case is clearly unreasonable and so is the claim of £G2,500 particulars of which have not been established. However as we have said the plaintiff is entitled to a reasonable contribution from the defendant over the years for the maintenance and education of the children of the defendant’s predecessor; we have to fix what we consider reasonable in the circumstances. Having regard to the cost of living and of educating a child up to the middle school we are of opinion that the sum of one thousand Ghana pounds (£G1,000) would not be an unreasonable sum to award as a contribution by the defendant to the plaintiff in this case.

We accordingly allow the appeal. The judgment of the court below is set aside. We enter judgment for the plaintiff in the sum of one thousand pounds.

DECISION

Appeal allowed.

Judgment for the plaintiff.

J. D.