OWUSU ALIAS KAYEYA vs. NYAMEKYE [1999-2000] 1 GLR 500

CASES REFERRED TO

(1) Holmes v Birmingham Transit Co, 270 Ala 215.

(2) Beng v Poku [1965] GLR 167, SC.

(3) Agyeman (Dua) (Decd), In re; Sarpong v Agyeman [1962] 2 GLR 138.

(4) Akrofi v Akrofi [1965] GLR 13.

(5) Quarshie v Aryeetey [1959] GLR 60.

(6) Okoe v Ankrah [1961] GLR 109.

(7) United States v Jacobs, 306 US 363 ( ).

(8) Omane v Poku [1972] 1 GLR 295.

NATURE OF PROCEEDINGS

ACTION by the plaintiff, an Akan, for, inter alia, a declaration that he was the only surviving member of the maternal family of the deceased intestate, and for an order to the family to appoint him the customary successor to the deceased. The facts are sufficiently set out in the judgment.

COUNSEL

Peprah Nyantakyi for the plaintiff.

Richard Asamoah for the defendant.

JUDGMENT OF QUAYE J.

The facts in this case are that the plaintiff is blind in both eyes. He claims to be the last surviving member of his maternal family. The said family was originated from the plaintiff’s ancestress by name Afia Biraso. The said ancestress, according to the

[p.502] of [1999-2000] 1 GLR 500 version proferred by the plaintiff, gave birth to two children, a male and a female. The name of the male ancestor of the plaintiff was Opanin Kwaku Kodua, and that of the female was Abena Serwaa. Abena Serwaa had an issue, Ama Bio, an only child. The record did not indicate that Afia Biraso had any sister. Up to that stage therefore, the family comprised only Afia Biraso, Kwaku Kodua, Abena Serwaa and Ama Bio. Under Akan customary law, any children born to Kwaku Kodua did not belong to the family for the purposes of succession since the Akan society was matrilineal. Thus the children of a male member would belong to the family of their mother. Ama Bio had three issues comprising two male children and one female child. They were Kwaku Manu, Akwasi Kobi, who was also variously called E K Adu or Akwasi Charlie, and their sister was Akosua Serwaa alias Ntontia. By keeping faith with custom, any child born to either of Akosua Serwaa’s brothers would not belong to the family to which their fathers belonged. No account was given about children of Kwaku Manu, if he had any. However, none of the ten or more children of Akwasi Kobi by custom belonged to the family under review. Akosua Serwaa alias Nkontia had two children, a male and a female. The female child was Akua Tiwaa. She died early and childless. Her brother was Kwasi Owusu also known as Kayeya, the herein plaintiff.

The evidence shows that Opanin Kwaku Koduah cultivated three farms. Two of the three farms were at Subinano and Kwakyeabo both on Techiman stool land. The other farm was at Mmowire, the hometown of Afia Biraso and all her descendants in the matrilineal. In addition to the farms, Opanin Kwaku Kodua built house No MM 60A at Mbrom, Kumasi. When he died in 1950, the family appointed his nephew, Akwasi Kobi to succeed him. The customary law position is that when a person dies intestate, his estate becomes family property. It is in furtherance of this principle that the family is clothed with jurisdiction to appoint a member of the family to inherit him in trust for the whole family. The fact that Akwasi Kobi was appointed to and, indeed, succeeded his uncle Kwaku Kodua was not disputed.

It is contended by the plaintiff that all the members of his matrilineal family had died, leaving him as the only survivor. His own mother, Akosua Serwaa predeceased his grandmother Ama Bio. When Ama Bio died subsequently, Akwasi Kobi succeeded

[p.503] of [1999-2000] 1 GLR 500 her because there was no other candidate in the female line. Akwasi Kobi died on 14 November 1989. Although Akwasi Kobi was survived by his children, they are not members of their father’s maternal family. By this calculation therefore, the plaintiff is the only surviving member of that family. He contends therefore that his succession to the family estate is without contest.

The claim of the plaintiff notwithstanding, the defendant, at the 40th day funeral obsequies of Akwasi Kobi, declared publicly to the members of the extended family that the deceased had nominated him, the defendant, to customarily succeed him. This declaration was displeasing to the plaintiff and he registered his displeasure by walking away in protest after he had challenged the said claim to succession by the defendant. After that, the plaintiff sought the intervention of the Mmowirehene and the Mmowirehemaa for the vindication of his rights to the succession. It is the plaintiff’s case that he is the only surviving direct maternal nephew of Akwasi Kobi, and also that the defendant is not a relative of Opanin Kwaku Kodua nor a family member of Opanin Akwasi Kobi.

It is a fact that the defendant joined issues with the plaintiff, more specifically in respect to the claim that the plaintiff is the only survivor of Opanin Kwaku Kodua and Akwasi Kobi. In paragraphs (4) and (5) of the statement of defence which was filed on 1 March 1993 the defendant categorically denied the assertion of the plaintiff. He stated that:

“(4) Paragraphs (5) and (6) of the statement of claim are denied.

(5) In answer to the plaintiff’s said paragraphs (5) and (6) the defendant avers that he is also a grandnephew of the late Opanin Kwaku Kodua and Emmanuel Akwasi Adu of Mmowire.”

Further to the averments contained in his pleadings, the defendant gave evidence under oath and claimed that the plaintiff is his brother. His reference to the family tree was that the family originated from Madam Amoakoaa who gave birth to Kwaku Kodua and three sisters namely, Abena Serwaa, Abena Kwabena and Abena Pomaa. Of the three sisters of Kwaku Kodua, Abena Serwaa had an only child by name Ama Bio. The daughter Ama Bio in turn had three

[p.504] of [1999-2000] 1 GLR 500 children by name Kwaku Manu, Emmanuel Kwasi Adu alias Akwasi Kobi, alias Charlie and the plaintiff’s mother Ntontia, who in turn gave birth to Akua Tiwaa and the plaintiff. On the other side, Abena Pomaa’s children were Kwame Donkor and Eno Kwawu. The children of Eno Kwawu were Kwadwo Bonsu, Akosua Addae, Yaw Manu and Kwabena Amoako. The other sister of Kwaku Kodua, Abena Kwabena had only one child in the person of Akosu Waayiwa. The said Waayiwa gave birth to Kodwo Kobi and Adwoa Pokuaa, the mother of the defendant, as well as Kwaku Sraha, Kwaku Aboagye and Yaw Kobi. It is upon such seemingly solid foundation that the defendant’s claim to succession is sought to be justified.

It is strange, therefore, that contrary to the defendant’s own pleadings and personally sworn oral evidence in court, counsel for the defendant in his written address to this court, submitted that the defendant did not deny the plaintiff’s story. The stand taken by counsel is, however, understandable in the face of the corroboration of the plaintiff’s version by the defendant’s witness, Eno Kwawu. Her evidence appeared truthful. She honestly stated that all those originators named by the defendant, additional to the persons named by the plaintiff, as his direct ancestors were actually bought or brought from another place into the family. By reason of this fact, they had no direct blood relationship with the plaintiff. This fact completely shatters the defendant’s claim into smithereens. I will hold as a fact, therefore, that the defendant is not a blood relation of the plaintiff. The plaintiff and the defendant do not belong to the same immediate family. I hold further that the plaintiff belongs to the family of Afia Biraso, through Abena Serwaa, Ama Bio and Akosua Serwaa. Other members of that family were Kwaku Kodua, Akwasi Kobi and Akua Tiwaa. Upon the strength of the overwhelming evidence that all the members of the said family are dead except the plaintiff, I hold that the plaintiff is the only survivor of his immediate maternal family.

I will at this stage register the unfortunate fact that the defendant has not exhibited conduct consonant with a truthful person. With regard to the estate of Kwaku Kodua, the defendant does not attend on equal footing with the plaintiff as to which of them should succeed. The defendant is not a trustworthy person. In paragraph (6) of his statement of defence, he stated an outright lie to the effect that Akwasi Kobi personally pleaded with the family to appoint the

[p.505] of [1999-2000] 1 GLR 500 defendant to succeed him upon the death of Akwasi Kobi. It was furthermore averred that the family agreed to the request. This fact, if it was true, was very carefully and cleverly avoided throughout the evidence of the defendant. As it lacks evidential support, I dismiss it.

In his evidence, the defendant sought support for his claim from the last will and testament of Akwasi Kobi, wherein the defendant was named sole executor. The fact that the testator appointed the defendant his executor is not disputed. The testator had capacity to appoint his executor. The testator who seeks to dispose of his self-acquired property by testamentary disposition does not require the consent of anybody, and this includes his closest relatives or family members, in choosing who would be his executor. He, however, lacks capacity to appoint his customary successor. The latter power of appointment is the sole prerogative of the family of a deceased person. The position of an executor is not the same as that of a customary successor. An executor of a will has a limited function. His mandate is limited to interpreting and applying the clear provisions of the will as directed in the body of the will. Where a specific devise of property has not been made in his favour, he takes none. His main duty is to distribute the estate according to the wishes of the testator. To this extent, the executor is not an administrator of the estate unless such a wish was expressly stated in the enabling document, the will. After the estate has been distributed and vested in the named beneficiaries, the executor becomes functus officio vis-à-vis the estate. He has fulfilled the purpose for which he was appointed executor: see Holmes v Birmingham Transit Co, 270 Ala 215.

The position at customary 1aw is quite different. The family has the prerogative of appointing a customary successor. The appointment of the defendant as the executor of Akwasi Kobi’s will should not be confused with, or interpreted as indicating that Akwasi Kobi was appointing, or suggesting the defendant for appointment as his customary successor. While under very normal circumstances only members of the direct, or that failing, the extended family are eligible for appointment as customary successor by the family, a testator can appoint anyone, even a total stranger to the family as his executor. The list is not exhaustive. He may choose from his wife, his child, his church, a friend, or enemy, his employer, or employee, a teacher, the Administrator-General, and in fact any one at all of his like. In

[p.506] of [1999-2000] 1 GLR 500

Beng v Poku [1965] GLR 167, SC the Supreme Court held, inter alia, as stated in the headnote that:

“(4) Though a person cannot appoint his own successor, he may, however, suggest or recommend some member of the family for appointment, and the family usually treats his recommendation or suggestion with due respect though they are not bound by it.”

Again the position of the family and its prerogative vis-à-vis the appointment of a customary successor was underscored by Apaloo J (as he then was) in Re Dua Agyeman (Decd); Sarpong v Agyeman [1962] 2 GLR 138 where he held as stated in the headnote that:

“(1) as the deceased died intestate his property, by the well known canons of customary law became family property. The sovereign right of appointing a successor rests with the family, for, after all, the property belongs to them and they are best suited to decide which member of the family should be trusted with it. . . “

In the instant case, the evidence is at variance with the defendant’s contention that Akwasi Kobi suggested or recommended him to the family for appointment as his successor. But even if that were so, the family were not bound, as they still reserved the right to determine and appoint a member who was trustworthy to take charge of the family property.

The exercise of the family’s prerogative of appointment of a customary successor is not devoid of the known basic principles. It must be in accordance with fairness or equity. I cannot pretend to be able to enumerate the strait-jacket considerations. Suffice it to mention only a few that come by handy. The person appointed must be a member of the family. By this is meant that he must first and foremost belong to the inner core or the immediate family of the deceased. This means that a member of the immediate family cannot ordinarily be by-passed, except for very strong reasons. In the case of Re Dua Agyeman (supra) a member of the core family was sought to be side-stepped for appointment because he was illiterate. The court held that literacy is not a sine qua non, and that a more appropriate yardstick for assessing and determining the suitability

[p.507] of [1999-2000] 1 GLR 500 for appointment were honesty and integrity. The same principle appeared in Akrofi v Akrofi [1965] GLR 13 where Sowah J (as he then was) held that a custom which discriminates against a person solely on the basis of sex has outlived its usefulness. In the case before me, the evidence largely favours the status of the plaintiff. He is the only person in his family; therefore the succession to the family property devolves on him. The defendant is not a member of Akwasi Kobi’s immediate family and consequently not entitled to succeed him. He is not at all in the reckoning and by the stretch of the same reasoning, not qualified to contest the succession with the plaintiff. Since the plaintiff is the sole survivor, he cannot be by-passed for any reason, except by his own consent.

The principle at customary law is that a family in matrilineal societies is originated by a woman, and such family consists of herself and her direct descendants: see Quarshe v Aryeetey [1959] GLR 60. The family in the instant case was originated by Afia Biraso. The evidence shows that the defendant is not a direct descendant of Afia Biraso, but the plaintiff is. Furthermore, the allegation of bad conduct made against the plaintiff by the defendant was not proved. I accordingly dismiss it. I cannot, however, similarly dismiss the fact that the defendant was convicted and imprisoned for stealing. Between the two therefore, the plaintiff should stand in the eyes of the family as the more trustworthy.

Before I end on this issue, I wish to comment on the statement in Okoe v Ankrah [1961] GLR 109 that succession is a question of election by relatives and that no one has an inherent right to succeed. That statement, with the greatest respect, seems to me to be at large. It is too general, and I think it ought to be distinguished. I should think that the statement in question should be limited in its application, so that, as in this case where the maternal line would have failed but for the existence in life of one member, then barring other considerations, the sole surviving member of the immediate matrilineal family should automatically succeed. The equitable principle of survivorship applies. It is that principle whereby the surviving co-owner or joint owner of property takes the entire interest in the property after the death of the other co-owners. It applies where a person becomes entitled to property by reason of his having survived another person who has an interest in it: see United States v Jacobs, 306 US 363 (0000). The principle is not

[p.508] of [1999-2000] 1 GLR 500 dissimilar from the customary law position. Thus any rights of the defendant or any member of the group of persons, including their descendants, who were “brought” into the family by means other than direct procreation of a female member of the plaintiff’s direct maternal family, would have to be suspended or deferred until the members of the direct family had all died. This is the situation commonly referred to as failure of the maternal family. In so far as a member of the direct maternal family was alive, it is my view of the customary law that, no outsider would take.

In this case, it was submitted on behalf of the defendant that his family had been assimilated into the maternal family of the plaintiff; hence the family was right in appointing the defendant to succeed the plaintiff’s direct uncle. This contention does not raise any surprise at all. All those who met and purportedly appointed the defendant, belonged to the peripheral group, and not to the core maternal family of the deceased Akwasi Kobi to which the plaintiff alone belongs. It was therefore very simple for them to find reason to side-step the plaintiff. It is my respectful view that the plaintiff ought to be allowed his right of inheritance and, considering that he is blind in both eyes, the defendant or for that matter, anyone from his group could be appointed to sit on the plaintiff’s lap to manage the estate. To deny or deprive the plaintiff totally of his right to succession would amount to begging the fact that he is the only rightful person to succeed to the family property. Following the principle that Annan JA applied in Omane v Poku [1972] 1 GLR 295, I hold that where, as in this case, the defendant failed to discharge the burden of proof on the question of his relationship with Akwasi Kobi as well as the issue of his membership of the immediate family of Akwasi Kobi, then the family had no right to appoint him as successor to Akwasi Kobi, as the defendant was not qualified for such appointment.

I hereby enter judgment for the plaintiff in terms of the reliefs sought and further to that, I order the family to duly appoint him successor to Akwasi Kobi for the reasons given in this judgment. The claim by the defendant to the succession is subject to the extinction of the plaintiff’s immediate family; hence that is deferred to the right of the plaintiff who has a superior claim thereto.

DECISION

Judgment for the plaintiff.

LSNA