MENSAH v. LARTEY [1963] 2 GLR 92

DIVISION: IN THE SUPREME COURT

DATE: 24TH JUNE, 1963

BEFORE: ADUMUA-BOSSMAN, BLAY AND AKUFO-ADDO JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the High Court, unreported, dismissing an application by the plaintiff for a declaration that the share of his uncle in a family property devolves on him on the death intestate of the uncle.

COUNSEL

G. Koranteng-Addow for the appellant.

Olaga for the respondent.

JUDGMENT OF AKUFO-ADDO J.S.C.

One Robert Tetteh a native of Osu (Christiansborg) had three wives who were natives of Osu, Labadi and Accra in Ga Mashie respectively. By all three wives he had children whose number does not [p.93] of [1963] 2 GLR 92 appear on the evidence. The said Robert Tetteh was the owner of a piece of land with a building thereon situate at Osu. In 1919 he conveyed this property by a deed to three of his children, namely, Edward Daniel Lartey (hereinafter called Edward), Jacob George Laud Lartey (hereinafter called Jacob) and Emmanuel Tetteh Lartey (hereinafter called Emmanuel) by way of absolute gift to be held by them in trust for themselves and their brothers and sisters. The three children aforesaid were respectively children of the three wives and each of them was the eldest of his mother’s children.

In 1921 the property was seized in execution of a judgment recovered by Messrs. Guinea Trading Association Limited against Jacob. Edward issued an interpleader summons to get the property released from attachment but he failed, and the property was sold and was purchased by one H. P. Swaniker. Edward subsequently negotiated with the said H. P. Swaniker for the sale of the property to him. Swaniker agreed to sell it for £240 and Edward paid £160 on account of the price. Edward died in July 1942 not having paid the full price of £240. Matilda Lartey (hereinafter called Matilda) a sister of the full blood of Edward became Edward’s successor and paid to Swaniker the balance of £80 due on the price of the property, and Swaniker thereupon by a deed of conveyance made on the 30th April, 1948, conveyed the said property to Matilda absolutely. A dispute which later arose among the children of the said Robert Tetteh concerning this property was submitted to arbitration. The arbitrators by their award declared the house “family property,” appointed Matilda to be the head of the said family and Jacob to be an assistant head. They also appointed Emmanuel (the defendant) an agent of Matilda “to collect the rents and to render correct account to her (i.e., Matilda) through her assistant.” When Edward died in 1942 letters of administration of his personal estate was granted to his two sisters Matilda Lartey and Grace Lartey both of the full blood. Grace predeceased Matilda who died in 1954. The plaintiff, a maternal nephew of Edward was after Matilda’s death granted letters of administration de bonis non in respect of Edward’s personal property, and he claimed to be the head of the family, and successor, of Edward and it was in that capacity that he brought this action. He claimed by his action a declaration that Edward was a co-owner of the property in question, an account of rents collected by the defendant and an order for the payment to him of one-third share (i.e., the share to which he claimed Edward was entitled) of the rents.

It should be noted that Edward and his brothers and sisters of the full blood, in addition to being members of their father’s family (Osu being a patrilineal community), are also members of their mother’s family since their mother came from Ga Mashie, a matrilineal community. Any self-acquired property of Edward or any property of which he was an absolute owner would therefore descend on intestacy in accordance with either the matrilineal law of succession or the patrilineal law of succession depending [p.94] of [1963] 2 GLR 92 on such circumstances as the situation of the property (if it is land) or where (whether in the patrilineal community of his father or in the matrilineal community of his mother) he made his home.

Before determining the issue of the devolution on intestacy of Edward’s interest in the property in question it is necessary to determine initially the nature of his interest in that property. The deed of gift was not tendered in evidence and while no evidence appears on record to indicate why it was not tendered the learned trial judge accepted secondary evidence of its contents, and his finding on the nature of the gift made by Robert Tetteh to his children appears to be the only basis on which this court can proceed. That finding was that Robert Tetteh conveyed the property to his children to be held by them as their “family” property. It is a finding that derives more from the arbitration award than from a consideration of the contents of the deed of gift. The arbitration award which declared the property “family” property reverted to its status quo ante the sale under execution as aforesaid, and the learned trial judge was therefore right in his finding that the children under the deed of gift were to hold the property as “family” property. The learned judge’s consideration of the issues involved in the case was therefore directed to a determination of what the constituents of the “family” were and the legal position that flowed from that determination regarding the devolution of the property upon the death intestate of the children or any one of them. The plaintiff’s counsel’s contention that the property was to be held by the three groups of children as tenants-in-common was rightly rejected in the court below, inasmuch as the plaintiff relied on the arbitration award as the basis of his claim, for as I hope to demonstrate presently if the property is family property then the principle of tenancy-in-common is not applicable to the determination of the interests of the children in the property.

The plaintiff’s claim was rejected by the trial judge who assigned the following reasons for so doing, namely, (1) that since Robert Tetteh was an Osu man and the property was situate at Osu and his children were of different mothers the inference to be drawn was that he intended the house to be family house for all his children; (2) that Edward belonging as he did to both the patrilineal family of his father and the matrilineal family of his mother made his home at Osu and he lived in the house in question. He must therefore be deemed to have elected his affairs in connection with the property in question to be regulated by the law of patrilineal succession; (3) that the gift to the children was not divisible such as the share of each would be inherited by their separate families, for if it were so, acknowledgement of the gift would have been made by the maternal relations of the children; (4) that since the children belonged to three separate matrilineal families the only family to which they could collectively belong was one that had reference to their patrilineal ancestry, that is they would be regarded as belonging to one family only as children of their father.

[p.95] of [1963] 2 GLR 92

The learned judge then went on, ex abundantia cautela, to state that if he was wrong in the reasons stated above he would consider the plaintiff’s right to call for an account in the light of the arbitration award. He then said that as the award provided that the defendant should account for the rents collected by him to Matilda through Jacob (i.e., Laud) Edward could not have had the right to call upon the defendant for an account, and that the defendant’s liability to account was only to Jacob who in turn was liable to Matilda. On the issue of accountability I find myself in respectful disagreement with the learned judge. The main point on that issue is whether Edward had such a share in the property as could descend on intestacy to his successor or his legal personal representative or such as he could dispose of by a testamentary disposition. If the answer is “Yes,” then the hierarchy of agencies created by the arbitration award would not in law prevent him from seeking an account from any one of the three persons composing that hierarchy, and from the point of view of procedural expediency his best course would indeed be to seek such an account from Emmanuel (i.e., the defendant) the person who actually collected the rents. To such a claim Emmanuel’s defence that he had accounted for the rents, and had paid them over, to Jacob or to Matilda would of course be a complete defence. In the absence of such a defence he would, in my view, in the circumstances be accountable to Edward. But, as I have indicated, the position depends entirely on the nature of Edward’s share in the property and although I agree with the learned judge’s conclusion that Edward had, or could have, no such share in the property as would devolve on intestacy upon his personal successor I am not wholly in agreement with his reasons which I think are somewhat restrictive in their application as general principles of customary law.

The law relating to a gift by a father to his children as I understand it operates to constitute the children into a “family” for the purpose of holding and enjoying the said property, if it is land (if the gift is of personalty the children share it out among themselves) irrespective of their several other family affiliations. The concept of family property imports the principles of non-divisibility of the said property except by the consent of the family, of the members of the family having joint interest in the property and of the appointment of a head of the family as “caretaker” of the property. Of family property there is, strictly speaking, no devolution on intestacy for the property remains in the family at all times. There is only a change of the head of the family made necessary by deposition or by death. The only difference between one family and another is in its composition.

The family of children constituted by a gift from their father is made up of the children, their children’s children and descendants irrespective of sex, for the general notion underlying the customary law in this regard is that a father by a gift to his children evinces a desire that his memory be perpetuated by his descendants. The law does not presume an intention on the part of a father making a gift to his children that the gift should

[p.96] of [1963] 2 GLR 92 ultimately find its way into the matrilineal family of the children (that is where the children belong to a matrilineal community), for if such were the intention of man he would make a gift to his wife (the mother of the children) and not to the children.

Where the question of devolution on intestacy arises as where there is an only child succession follows the pattern I have already described. Intestate succession in this respect is irrespective of the situs of the property, the domicile of the father-grantor, and the domicile of the child or children. Such matters can only have relevance to succession in the case of the self-acquired property of a child who has the double advantage of belonging to both the patrilineal family of his father and the matrilineal family of his mother.

The learned trial judge, it will be recalled, referred to the absence of acknowledgement by the matrilineal families of the children of the gift to them as a circumstance establishing the fact that the children could have no separate shares in the property that could be inherited by their respective families. I am unable to accept this view of the effect of such an acknowledgement. The acknowledgement by the matrilineal relations of a child of a gift to the child by his father does not in any way determine the nature and extent of the estate in the property granted to a child by his father who is the only person who determines such an estate. Such an acknowledgement does no more than provide evidence of the gift, and it is generally preferred to anything done by a member of the child’s patrilineal family on his behalf in relation to the gift for fear that in any possible future dispute between the child and his father’s family relative to the property the father’s family may conspire to deny the gift by denying that there was the requisite acknowledgement of the gift.

The principles that I have endeavoured to state apply as far as I am aware to both patrilineal and matrilineal societies in Ghana and they apply in all cases in which a man makes a gift to his children without any limitation as to the estate which the children are to have in the property, for in all such gifts as in all other gifts the maxims Cujus est dare ejus est disponere and Modus legem dat donationi are just as applicable to customary law gifts as they are to gifts at common law. Applying these principles therefore to the facts in this appeal the position appears to me to be much simpler than the learned trial judge conceived it to be. The position here is that Robert Tetteh made a gift of his house to all his children. There is no evidence that he set any limitation on the extent of the estate which the children were to have in the property. The children were therefore constituted into a family for the purpose of holding and enjoying the said property in perpetuity. The family so constituted comprises the children and their descendants male and female. All the children have a joint interest in the property and no child or any group of children has a distinct share such as he or they could have the power of testamentary disposition thereover or such as could be inherited by his successor or legal personal representative. Edward therefore had no such share in the property as can be inherited by the plaintiff as successor of Edward in his matrilineal family.

[p.97] of [1963] 2 GLR 92

While the plaintiff as such successor would be entitled in appropriate circumstances to inherit any self-acquired property that Edward might have died possessed of he cannot, even if Edward had had a distinct share in the property allotted to him, inherit that share which would descend to his children male and female by reason of the fact that it was a gift from his father. The one-third share in the property which the plaintiff claims to be the share to which Edward was entitled is based on a fallacious view of the nature of the gift to the children. The fallacy is that the gift was made to Edward, Jacob and Emmanuel as tenants-in-common in equal shares, and it is completely exposed by the proved facts on record. It is for the above reasons that in my view the judgment of the learned judge dismissing the plaintiff’s claim should be upheld. It follows therefore that the plaintiff’s appeal argued mainly on the ground that the learned judge was wrong in his view of the nature of the gift made by Robert Tetteh to his children cannot succeed.

I would therefore dismiss the appeal.

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

I agree.

JUDGMENT OF BLAY J.S.C.

I also agree.

DECISION

Appeal dismissed.

K.T.