SIAW v. SORLOR [1960] GLR 77

DIVISION: IN THE HIGH COURT (LANDS DIVISION), ACCRA

DATE: 6TH APRIL, 1960

BEFORE: OLLENNU J.

NATURE OF PROCEEDINGS

APPEAL from a decision of the South Akim Abuakwa Local Court “A” on August 27, 1959 in favour of the plaintiff. The nature of the claim is set out in the headnote.

COUNSEL

Plaintiff in person.

Koranteng Addow for defendant. JUDGMENT OF OLLENNU J.

(His lordship referred to the facts and continued).

After hearing the oral evidence and inspecting the land, the native court delivered judgment as follows:—

“This court, after summing up the evidence of both parties together with their witnesses found out that the evidence of the plaintiff customarily weighs much. According to the evidence of [p.78] of [1960] GLR 77 defendant’s own witnesses and that of the plaintiff it has been made plain to this court that no matter whether one of the deceased wives has a heavy number of issues, the properties be shared according to Shai custom equally according to the number of wives but never upon the number of children of the deceased in whole. “The court never believes in the evidence of the defendant on the point that the farms have been shared equally, each to measure of two ropes. Defendant found liable. Judgment entered in favour of the plaintiff. Plaintiff allowed costs to be taxed. We order parties’ stepfather, Amotee Kofi to share the land to them equally according to Shai custom of inheritance.” It is interesting to note that the native court evaded making a definite finding as to whether or not the late Tetteh Sumie apportioned the farms among the children of his late brother. By accepting the custom as stated by the plaintiff they, by inference, found that Tetteh Sumie apportioned the farms among the children, but, and again by inference, they held that the apportioning was not in conformity with Shai custom.

It is quite clear from that judgment that the native court failed to direct themselves on an important principle of customary law, namely that customary law does that which is reasonable and that in matters of inheritance, and as far as partitioning or sharing of property of a deceased person is concerned, the appointment of a successor is a matter entirely in the discretion of the family, a discretion which is exercised upon well defined principles, and further that an apportionment of any property left by a deceased person among members of a family is also within the discretion of the family, general principle to the contrary notwithstanding.

On the question as to whether there has been a sharing or an apportionment of the farms between the children of the late Siaw Ngua, there is overwhelming evidence on both sides. The plaintiff agrees that there was such an apportionment and so does the defendant. The only difference between the two parties is the issue as to whether the apportionment made by the successor Tetteh Sumie was only for the temporary occupation by the children of Siaw Ngua to account to him for the proceeds, to enable him, the successor, to pay debts of the deceased, or whether it was an apportionment made for occupation and enjoyment of it by the children. The native court completely failed to direct themselves on this important aspect of the case. The question is: if the apportionment was made solely for the purpose of raising money to pay debts of the deceased, the occupants will continue to account to the successor even after the debts have been paid. Why then is it that for a quarter of a century or so, the division should remain the same without the successor for the time being, or the family, calling upon the parties to surrender their portions to him or them for re-apportionment to be made? No reason whatsoever can be found on the record to support the bare assertion of the plaintiff that the apportionment was only a temporary arrangement. If the native court had directed their attention to this important issue in the case, they would [p.79] of [1960] GLR 77 have had to direct themselves further that the onus of establishing that the partitioning was only a temporary measure was upon the plaintiff who was asserting it and they would have then gone further to consider whether the plaintiff discharged that onus.

The native court having failed to direct themselves on the important issues, it is for me sitting as a Court of Appeal and having before me all the facts necessary for the determination of those issues, to consider them and to come to a decision on them. Having carefully examined the evidence on the record and the submission made by learned counsel for the parties, I have come to the conclusion that the plaintiff failed completely to prove his version of the purpose of division of the farms made by Sumie. The plaintiff failed to prove that the person who succeeded Tetteh Sumie, or the head of the father’s family, has at any time challenged the right of the children to occupy the portions of their deceased father’s farm as was allotted to them by the late Tetteh Sumie. On the contrary the acquiescence of the parties and of the head and principal members of the family, over so many years, in each child of the deceased occupying that portion of the farm allotted to him by Tetteh Sumie, is strong circumstantial evidence which establishes that the partitioning of the farms among the children of Siaw Ngua was not a temporary measure but rather a sharing of the farm among the children in accordance with customary law. I must here say that the sharing of the farm in such a way does not change the character of any portion occupied by any of the children from that of family property into that of individual self-acquired property, unless it can be shown that the family intended such partitioning to confer upon each such child individual ownership in the portion so allotted to him.

Again as I said earlier on, the native court overlooked the fact that the family who succeeded to the property of a deceased are entitled to exercise a discretion and not bound to follow a rigid rule. I say this because in their judgment they have laid emphasis on the fact that according to Shai custom, the sharing of property left by a deceased male person would be in accordance with the number of wives by whom he had children, not according to the number of his children left, so that an only child of a mother will have a portion equal to that of ten children having one mother. Although that may be the general custom, that is sharing per stirpes according to mothers, there is a discretion in the family to share per capita if in their opinion the sharing according to the number of mothers will work hardship, or would be against natural justice and good conscience. That principle is fully illustrated in this case. If the family had thought that the partitioning of the farm made by Tetteh Sumie, with their consent did not comply with their wishes or is repugnant to their customary law, it is difficult to see why they have sat by for a whole quarter of a century and not challenged it. On this point it must be noted that Kofi Awartey otherwise known as Ameto Kofi is the present head of the family and the fact that he is directed by the judgment of the native court to go and carry out the sharing of the farm according to Shai custom supports the case of the defendant. [p.80] of [1960] GLR 77

He was the first witness for the defendant, and deposed that the property had been shared among the children of Siaw Ngua in accordance with Shai custom. Having failed to direct themselves properly the native court delivered a judgment which is definitely wrong both on the facts and on the customary law applicable. That judgment, therefore, cannot stand.

For these reasons I allow the appeal, set aside the judgment of the native court including their order as to costs. For their judgment I substitute the following: The plaintiff’s claim is dismissed and judgment entered for the defendant.

DECISION

Appeal allowed.