NARTEY AND OTHERS v. KOSHI AND ANOTHER [1961] GLR 728

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 27TH NOVEMBER, 1961

BEFORE: OLLENNU J.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the Dangbe Shai Local Court, Division II in a succession suit.

COUNSEL

E. N. Moore for the plaintiffs-appellants.

G. Koranteng-Addow for the defendants-respondents.

JUDGMENT OF OLLENNU J.

This an appeal from judgment of the Dangbe Shai Local Court, Division II, delivered on the 3rd May, 1961. Counsel for the defendants-respondents said of that judgment that it is indefensible, and that is what it really is.

The appellants are some of the children of late David Kwabla Nartey, deceased. The first respondent is a widow of the said David K. Nartey by marriage under customary law, and the second respondent is also a child of the said David K. Nartey by the first respondent. This [p.730] of [1961] GLR 728 action was instituted because the respondents have taken possession of the properties comprised in the estate, claiming that they are the successors to the said David Kwabla Nartey.

The local court having heard the evidence proceeded to make findings some of which are irrelevant to the matters in issue; to make pronouncements for which there is no legal authority; and to make orders which are ultra vires the local court. For example, the local court held that the appellants are illegitimate children of their father. That pronouncement is wrong both in fact and in law. By the law of this land, the only child of a man who is illegitimate is the child who was procreated in adultery, i.e. the child that a man, married under the Marriage Ordinance,1(1) has during the subsistence of the marriage, with a woman who is not the wife married to him under that Ordinance, or a child that a man has with a woman married to another person under the Marriage Ordinance while that marriage of the woman with the other man continues. Now there is no evidence in this case that the late David Kwabla Nartey married under the Marriage Ordinance; he only married under customary law.

Therefore all his other children are of the same legal status as the second respondent, his child by the first respondent.

Again the local court magistrate made an order appointing certain persons as administrators of the estate, and gave directions as to the manner in which they should do their work, he then proceeded to distribute the estate, and made an order that a debt owed by the deceased to the estate of his brother should be paid by instalments and in a certain manner. Now the jurisdiction of a local court is limited to that given it by the Courts Act, 1960.2(2) It does not include the appointment of an administrator of the estate of the deceased. Again the law provides that where an estate is indebted, the debt must be paid before distribution of the estate can take place, in any event since the personal representatives of the brother to whose estate the estate of David is indebted are not parties to this suit, the local court is not entitled to make an order to fetter them in their claim against the estate of David Kwabla Nartey.3(3) Prampram, as a Ga-Adangbe state, is a patrilineal family society for the purposes of succession; children belonging to their paternal family, and therefore children in Prampram are entitled to succeed to their father’s estate. That does not mean that they succeed as of right and can take and distribute the estate without it being given to them by the family or distributed among them by the family. What that means is that they come within the class of persons entitled to share in the distribution of the estate, and from among whom a successor can be appointed by the family. The evidence shows that upon the death of David, the family in compliance with customary law, gave the first respondent in marriage to P.W. 1 George Nene Nartey, and the said P.W. 1 gave the customary drink in acceptance of first respondent as his wife. By customary law [p.731] of [1961] GLR 728 therefore, P.W. 1 automatically stood in the shoes of David vis-a-vis the first respondent and it is to him that the first respondent should refer all questions respecting her maintenance, accommodation and other things as her husband.

As pointed out earlier this action had to be brought because the respondents have all the estate of the deceased in their possession, and when they were called upon to surrender the same to the family for administration and distribution, they refused to do so on the grounds, (1) that the deceased had made a nuncupative will or distributed his estate during his life-time, and (2) that children of the deceased other than those by the first respondent are not entitled to share in the estate. The respondents failed in their attempts to prove the making of nuncupative will (samansiw) as required by customary law, and they also failed to prove a valid distribution of the estate or gift of portions of it made by the deceased inter vivos. Upon the evidence the local court found as a fact that the “defendants assumed an arbitrary right on the estate”. That is the most important point which the plaintiff sought to prove in this suit. Having found that the plaintiffs have succeeded in establishing that the defendants were wrongfully inter-meddling with the estate, the local court should have dealt with the claim on its merits, and not have taken upon itself jurisdiction which does not belong to it. There is abundant evidence that the plaintiffs are entitled to inherit their father’s properties, that is to say, that they come within the class of persons who have immediate beneficial interest in the estate and are entitled to receive a share in it after payment of debts owed by the estate and all other expenses which by law are payable out of the estate. Again although by custom the head of the family is normally the person who should have instituted an action against the respondent in respect of the estate, yet as the local court itself found, the head and principal members of the family have been most indifferent in the matter. For example, the family called upon the first respondent to surrender the keys and all the properties to them for administration, but she refused to do so. Thereafter they convened two meetings and invited the first respondent to those meetings by letters. As regards the first meeting, the first respondent wrote exhibit A to say that she could not come because her daughter the second respondent was away, and as regards a second meeting she refused to attend because she said the deceased had been buried by her and her daughter the second respondent, (exhibit B). The implication of that letter exhibit B is that the respondents have succeeded to the estate as of right and are not answerable to the family or to anyone. Unfortunately the family kept quiet on that affront and allowed the respondents to have their own way. On that issue the local court magistrate made the following findings which are fully supported by the evidence. He said: “the defendant assumed an arbitrary right on the estate of the late David Kwabla Nartey because of the neutrality of the family heads; that they did not make themselves open hence this action” [p.732] of [1961] GLR 728

The law on the point as to who is entitled to sue in respect of family property is summarised in the headnotes to Kwan v. Nyieni & Anor. as follows:

(1) as a general rule the head of a family, as representative of the family, is the proper person to institute a suit for recovery of family land;

(2) to this general rule there are exceptions in certain special circumstances, such as:

(i) where family property is in danger of being lost to the family, and it is shown that the head, either out of personal interest or otherwise, will not make a move to save or preserve it; or

(ii) where, owing to a division in the family, the head and some of the principal members will not take any steps; or

(iii) where the head and the principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole.

In any such special circumstances the Courts will entertain an action by any member of the family, either upon proof that he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property”.

In the face of that principle of law, the local court was wrong in holding that the appellants whom it had held to be entitled to enjoy their father’s estate “acted prematurely by taking action while their heads of family are there”. The heads of the family would not do anything; perhaps the insults and abuses from the first respondent and her daughter, the second respondent, frightened them so much that they neglected their duty. In those circumstances the plaintiffs were entitled in law to institute the action.

It will be seen from the foregoing that the local court made definite findings of fact upon which it could have given judgment on each of the issues raised before it which were within its competency. In those circumstances the duty of this court as a court of appeal is to set aside the wrong pronouncements of law made by the local court, declare null and void the orders it made without jurisdiction and to give judgment on the merits of the case as is warranted by the evidence on the record, and the findings of fact made by the local court. The main facts found by the local court, expressly and impliedly are that David Kwabla Nartey, late of Prampram, died intestate, not married under the provisions of the Marriage Ordinance; by custom his children are members of his immediate paternal family and are entitled by law to share in his estate; the first respondent a widow of the deceased by marriage under customary law and her daughter the second respondent have wrongfully assumed control over the estate, and are doing what they like with it; the estate is indebted to the estate of a brother of the said David Kwabla Nartey; the heads of the family who should sue the respondents have become inactive with the result that the respondents would be wasting the property to the detriment of the family including the plaintiffs. [p.733] of [1961] GLR 728

Upon those facts and circumstances I hold that the plaintiffs, beneficiaries of the estate, acted within their rights to sue, and are entitled to judgment on their claim. The appeal is allowed, the judgment given and orders made by the local court are set aside including the order as to costs; any costs paid to be refunded. The following judgment is substituted for the judgment of the local court: there will against the defendant and co-defendant for: (a) a declaration that they and all the other children of the late David Kwabla Nartey are by Ga-Adangbe custom members of the immediate paternal fily of their said father and are beneficiaries of their said father’s estate;

(b) an order upon the defendant and co-defendant to account to the plaintiffs for all proceeds and mesne profits accruing from the various properties real and personal comprised in the estate, and for payment to the plaintiffs of the credit balance for the purposes of proper administration of the estate. The appellants will have their costs in this court fixed at 35 guineas inclusive, and their costs in the local costs fixed at G10.

DECISION

Appeal allowed.