HIGH COURT, ACCRA
DATE: 20TH MARCH 1962
BEFORE: OLLENNU J.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the Ga-Dangbe-Shai Local Court at Prampram in which the plaintiff claimed recovery of possession of certain properties alleged to be the self-acquired property of his deceased father.
COUNSEL
G. Koranteng-Addow for the plaintiff-appellant.
K. Ohene-Ampofo for the defendant-respondent.
JUDGMENT OF OLLENNU J.
[His lordship narrated the facts as set out in the headnote and continued:] The local magistrate seemed to have some misgivings about the appointment of a woman, the defendant, to succeed to a deceased male, and also to take charge of family property when there are male members of the family; he therefore ordered that the defendant alone should not administer the estate, and appointed Joseph Akrong Nartey, P.W.3, brother of the deceased jointly with his sister, the defendant, as administrators of the estate real and personal, and directed them to distribute the properties subject-matter of the suit in a particular manner.
The evidence in support of each of the findings of fact made by the local magistrate is overwhelming, even upon the evidence led on behalf of the plaintiff.
The plaintiff and his brothers and sisters have no inherent right which entitles them to succeed to their father as of right even if their father left estate; succession is a matter of election or appointment by the family who by customary law inherit; and although the family often appoint a male person to succeed a male deceased and a female to succeed a female deceased, there is no rule of customary law that a male must always be appointed to succeed a male. The family are entitled to appoint any person male or female, who in their opinion is the most suitable person to succeed. The decision of the family in this case is that although the deceased was survived by a brother, P.W.3, the defendant, a woman, should succeed to her deceased brother who in fact left no individual estate. The family are within their rights by custom to make that decision. In fact the evidence proved the family to be right in their decision, because although the deceased left no estate, his successor, his sister, discharged the duties of that office faithfully, and looked after the plaintiff and other children of the deceased with the same sense of moral obligation as she would look after her own children, apprenticed the plaintiff with a master motor mechanic to learn a trade and paid the necessary apprenticeship fees, and sent some of the other children to school.
Again there is overwhelming evidence that it was the co-defendant together with her children, male and female, who entrusted the properties, subject-matter of the suit, to the care and management of the defendant. This, again, they are entitled to do, as owners of those properties, and no court has the right to question their said appointment.
It appears from his order that the magistrate thought that because Prampram is a patrilineal family society, the children of the defendant, a woman, are not entitled to any interest in the property in dispute for he said: “Here I rule that the defendant alone should not manage the estate because her sons must inherit their father.” In this the local magistrate erred grievously. Firstly, because he has no jurisdiction to appoint an administrator of the family property; secondly there was no claim before him for such an appointment, and thirdly, there is the unambiguous finding of the local court that the property is property of a woman the co-defendant, and her children male and female. He said: “That all the children of the co-defendant worked together for the acquisition of the
[p.186] of [1962] 1 GLR 184
properties in question, consequently they are common to all co-defendant’s children”. If Prampram had been a matrilineal family system area, all the children, male and female, would belong to one family, the maternal family, for purpose of owning property, and so whatever property they acquired by their joint effort would descend strictly in the matrilineal line.
Since in this case the co-defendant and her children belong to two distinct families for purposes of property owning, and since each of them has as much interest in the properties as the other, the property, upon the death of the last of the original owners, i.e., the co-defendant and her children male and female, would vest in all the children of the original owners, i.e. children of both the sons and the daughters of the co-defendant. This group of children of male and female original owners, would constitute a new family which is joint patrilineal and matrilineal.
Thus the local magistrate clearly misdirected himself in the remarks he made, implying that the children of the defendant cannot have any interest in the properties in dispute after the death of their mother, the defendant.
Upon the findings of fact made by the local court magistrate and upon the customary law involved in the case the only cause open to the local magistrate was to dismiss the claim of the plaintiff and enter judgment for the defendant and co-defendant. This he failed to do; instead of doing that simple thing, the local magistrate went on to make orders and give directions all of which are ultra vires his court.
Each of those orders and directions is declared null and void. The situation must be remedied, and this court must do the right thing which the local court should have done and make the proper order which the evidence and the law warrant. Accordingly the plaintiff’s claim is dismissed, and judgment entered thereon for the defendant and co-defendant; subject to that order the appeal is dismissed with costs fixed at 12 guineas inclusive.
DECISION
Appeal dismissed.
Judgment entered for defendant and co-defendant.
