PLANGE v. PLANGE [1968] GLR 185

DIVISION: HIGH COURT, ACCRA

DATE: 23 FEBRUARY 1968

BEFORE: OLLENNU J.A.

NATURE OF PROCEEDINGS

ACTION by the plaintiff claiming entitlement to administer the estate of her deceased husband. The facts are fully set out in the judgment of Ollennu J.A. sitting as an additional judge of the High Court.

COUNSEL

I. Amoo-Lamptey for the plaintiff.

J. E. Quashie-Idun for the defendants.

JUDGMENT OF OLLENNU J.A.

The plaintiff was married to the late Kojo Plange, deceased, under the provisions of the Marriage Ordinance, Cap. 127 (1951 Rev.); her husband died on 16 May 1964 – intestate, whereupon she applied to the court for letters of administration to administer his estate.

The first defendant, a brother of the whole blood to the deceased, entered a caveat to the plaintiff’s application and filed affidavit of his interest. As the parties could not agree on the person to whom letters of administration should be granted, the plaintiff, in conformity with an order of the court made pursuant to Order 60, r. 21 (2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), instituted this action. The co-defendant, a sister to the deceased, was joined upon her own application. In paragraphs (3) and (4) of her statement of claim the plaintiff pleaded as follows:

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“(3) Prior to the said marriage the plaintiff and the defendant’s brother had adopted a girl called Alice and the deceased in all official documents treated the said Alice as his daughter.

(4) By virtue of the said adoption and other declarations of the deceased; the defendant together with other members of the family are estopped from denying that the said Alice was the adopted and lawful daughter of the deceased.”

The plaintiff’s case therefore is, that the said Alice must be deemed to be an issue of the marriage, and that by virtue of section 48 of the Marriage Ordinance, Cap. 127 (1951 Rev.), as judicially interpreted, (see Coleman v. Shang [1959] G.L.R. 390, C.A. affirmed by the Privy Council in [1961] G.L.R. 145) she and the said Alice have the major interest in the estate of her deceased husband, and she is therefore the proper person to be granted letters of administration to administer the estate. The plaintiff further pleaded that the only real property left by the deceased is house No. D539/3, Derby Avenue, Accra. She did not however ask for a declaration that that house was the only property in the estate.

The defendant denied that allegation of adoption and pleaded in paragraphs (2) and (3) of his statement of defence that:

“(2) The defendant denies the allegation contained in paragraph (3) of the statement of claim and in further answer thereto avers that the said Alice, who was a niece of the plaintiff and in her care and control, was neither adopted by Bart Kojo Plange deceased nor did the said Bart Kojo Plange treat her as a daughter in official documents.

(3) The defendant will at the hearing of this action contend that adoption cannot be implied as alleged in paragraph (4) of the plaintiff’s statement of claim.”

And in paragraphs (4) and (5) he denied that the deceased was seised of only one piece of real property at the time of his death; and pleaded that house No. C165/1 Adabraka, Accra, is part of the estate. The defendant further pleaded that house No. 539/3 afore-mentioned does not form part of the estate of his deceased brother, because it is family property. In terms of summons for directions filed by the plaintiff the court set down the following issues for trial, namely:

(1) The determination of what properties belong to the deceased and plaintiff separately or jointly.

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(2) Whether the deceased and the plaintiff adopted Alice as their daughter or not.

(3) The proper person who is entitled to the grant of letters of administration.

At the trial I made the parties confine their attention to the second and third issues filed, on the grounds that the first issue raises ownership and possession of land, while there is no claim or counterclaim to ownership or possession. The question of title can therefore be more conveniently and properly adjudicated upon in another suit. Attention was naturally concentrated on the second issue, i.e. whether the deceased and the plaintiff adopted the girl Alice. The Adoption Act, 1962 (Act 104), s. 12 (1)-(3) provide for devolution of property of an adopter or an adopted person upon intestacy. They are as follows:

“12. (1) Where, at any time after the making of an adoption order, the adopter or the adopted person or any other person dies intestate in respect of any property of which he might have disposed of by will, that property shall devolve in all respects as if the adopted person were the child of the adopter born in lawful marriage and were not the child of any other person.

(2) If at the date of an adoption order—

(a) the adopter (or either of the adopters) is a married man or woman subject to customary law within the meaning of section 48 of the Marriage Ordinance (Cap. 127), and

(b) the marriage was contracted under that Ordinance or is of any other kind described in that section, that section shall apply on any intestacy of the adopter or the adopted person as if the adopted person were the issues of such a marriage.

(3) If at any time after the date of an adoption order made on a joint application the adopters contract a marriage with each other under the Marriage Ordinance or under any other enactment relating to marriage the said section 48 shall apply on any intestacy on the death after that time of either adopter or of the adopted person as if the adopted person were the issues of such a marriage.” These provisions of the Act apply only to adoption effected by an order of the court in the exercise of jurisdiction under Act 104. But the plaintiff does not rely upon an adoption order.

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Again an adoption validly effected in conformity with the principles of customary law of a tribe or family, for example of a foundling, makes the adopted child a member of the family of the adopter and puts him in the same position as a child born to him or her. Therefore a child adopted by a couple who afterwards inter-married under the Marriage Ordinance, Cap. 127 (1951 Rev.), will be covered by section 49(1) and (2) of the Ordinance, which provide that: “49. (1) Any child born before the intermarriage of his parents under this Ordinance and not procreated in adultery shall on such intermarriage be deemed the lawful issue of a marriage under this Ordinance, and shall be entitled to the same rights and privileges and his property shall in case of his intestacy be subject to the same incidents as though his parents had been at the date of his birth married under this Ordinance.

(2) Adultery shall not be held to include the intercourse of a man married by native customary law with an unmarried woman.”

One of the intentions of the Adoption Act, 1962 (Act 104), as is gathered from the memorandum on this Act is “to put adoption in this country on a statutory basis,” that is from that date. Therefore adoption made prior to the effective date of the Act, need not be in conformity with the provisions of the Act before it should be recognised by the courts. But it must be satisfactorily proved to have been performed with all the customary rites, formalities and ceremonies before the court can give effect to it. A Ghanaian is born into two families, his father’s family and his mother’s family, the child and the parents are each the property of the family and will remain so until his or her death, and upon death intestate his or her estate will vest in the one family or the other depending upon the custom of the tribe. Adoption purports to effect a transplantation of a person from each of the two natural families into which he is born, into two other families, thereby depriving the one group of families of their rights, interests and obligation in the person adopted, and conferring those rights and interests, and imposing those obligations and privileges upon the other group of families. Therefore where a person already belongs to a family there is no necessity for a member of the family to adopt him. The member of the family has a right and obligation to look after him without any forms and ceremonies.

Adoption under customary law is analoguos to alienation of family property, or severance of family ties, a very rare custom

[p.190] of [1968] GLR 185 known by different names in different tribes, e.g. in Akan it is known as cutting ekar or kahirie, among the Ga it is known as tako mlifoo and among the Ewe as taku mama. As to severance of family ties: see Amoabimaa v. Badu (1956) 1 W.A.L.R. 227, W.A.C.A.; Okaikor v. Opare (1956) 1 W.A.L.R. 275 and Fynn v. Kumi (1957) 2 W.A.L.R. 289. On the principle that one single member of a family is incompetent on his own,i.e. without the consent and concurrence of the head and principal members of the family to make valid alienation of family property, on the same principle, one parent who, after all is himself a species of property of his family, is incompetent to alienate his child, another of the family properties. Therefore a valid adoption under customary law is such a serious operation that it can only be performed by the head of the family with the consent and concurrence of the principal members of the family, and at a joint meeting of the two transacting families; and must be celebrated with certain formalities, rites and customary performance, including the ceremony of naming the child, giving it a family name. The particular rites and ceremonies may differ from tribe to tribe, but in each one the fundamental concept of uprooting from one family and transplanting into a new family must be symbolically demonstrated. Proof of adoption as indicated above is the onus which the plaintiff took upon herself by the institution of this action. In an attempt to discharge that onus, the plaintiff led evidence of a decision she and her husband took to adopt the child when she was four years old and how they sought the consent of the child’s father, and how eventually, a meeting was held in their house one Sunday morning, between herself, her husband and Mr. Robinson, the father of the child, and of her witness Madam Akrobetu and how at that meeting the child was handed over to her husband, drinks were produced, and libation poured by the witness Madam Akrobetu. The evidence of the plaintiff as to this ceremony does not tally with that of her witness Madam Akrobetu but that is immaterial because neither her evidence nor that of her witness proved any single one of the essentials of a valid adoption. At its very best the effect of the evidence given for the plaintiff in this regard is that some personal arrangement was entered into between the father of the girl on the one hand the plaintiff and her husband on the other whereby the plaintiff and her husband undertook to look after the child as their foster child. In this connection the following facts admitted by the plaintiff are most significant. Mr. Robinson, the father of the child, was a

[p.191] of [1968] GLR 185 uterine brother to the plaintiff; he had been out of employment and so had not been able to look after the child since her birth, and the plaintiff and her husband the deceased have been caring for the child as by custom any member of the family may do.

Looking after the child of a relation is part of the custom of Ghana. You can find instances of it in nearly every Ghanaian home; for want of single appropriate word, a child being so looked after by a relation, is generally referred to as a child of the relation who looked after him. It is only where need arises, that descriptive words are added to the word child to distinguish a child born to a person himself from a foster child. Again we have only the word of the plaintiff and the girl Alice, that the girl is known as Plange, receipt exhibit A for school fees merely give her name as Alice without a surname. But acceptance of the evidence that the girl is popularly referred to as Alice Plange does not prove adoption since a foster child may by reputation be properly referred to as a child of the foster parents. The plaintiff has therefore failed to prove that there is issue of the marriage under the Ordinance, Cap. 127 (1951 Rev.). Therefore her only interest in the estate extends only to one-third. The remaining two-thirds would go to the family whom the defendants represent. Without the consent of the family the court cannot grant letters of administration in respect of the estate exclusively to the plaintiff. As between the plaintiff and the defendants the latter have proved a better entitlement to grant of letters of administration; but they have not applied for or counterclaimed for an order for grant of letters of administration to them. If they want it, they have to apply in the usual way.

Having failed to discharge the onus upon her, the plaintiff’s claim should be dismissed; it is accordingly dismissed, and judgment entered thereon for the defendants with costs fixed at N¢150 to be paid out of the estate.

DECISION

Action dismissed.

S.K.T.