KRABAH v. KRAKUE [1963] 2 GLR 122

DIVISION: IN THE SUPREME COURT

DATE: 24TH JUNE, 1963

BEFORE: OLLENNU, BLAY AND AKUFO-ADDO JJ.S.C.

 

CASES REFERRED TO

(1) Mills v. Addy (1958) 3 W.A.L.R. 357; Court of Appeal, 26th January, 1960, unreported

(2) Kwakye v. Tuba [1961] G.L.R. (Pt. II) 720

(3) Kwakye v. Tuba [1961] G.L.R. (Pt. II) 535

(4) Quarshie v. Aryeetey [1959] G.L.R. 60

(5) Nartey v. Nartey [1962] 1 G.L.R. 184

(6) Hammond v.U.A.C., Divisional Court, 13th July 1935, unreported

(7) Jones-Nelson v. Ocansey, West African Court of appeal, 11th March, 1950, unreported

(8) Serwah v. Kesse [1960] G.L.R. 227; Oll.C.L.L. 208, S.C.; (1959) Oll.C.L.L. 201

(9) Agyare v. Dotwa [1960] G.L.R. 253, S.C.

(10) Abossey Okai v. Ayikai (1946) 12 W.A.C.A. 31

(11) In re Eburahin; Ansah v. Ankrah (1958) 3 W.A.L.R. 317

NATURE OF PROCEEDINGS

APPEAL by the defendant from a judgment of the High Court, Sekondi, unreported, given in favour of the plaintiff (1) decreeing that the defendant should account to the plaintiff for rents collected by her from her mother’s self-acquired property in respect of which she died intestate and (2) restraining the defendant from interfering with the plaintiff’s right to the said property.

COUNSEL

Sampson Baidoo for the appellant.

Hayfron-Benjamin, Snr. for the respondent.

JUDGMENT OF OLLENNU J.S.C.

This is an appeal from a judgment of the High Court, Sekondi, given in favour of the plaintiff. The claim made by the plaintiff, respondent herein, in the High Court against the defendant, appellant herein, is for accounts of all rents collected from house No. 30/13, 7th Street, Sekondi, and for injunction restraining the defendant from interfering with the plaintiff’s right to the said house. The plaintiff brought the action in his capacity as head of and for and on behalf of his family known as the Krakue family. The defendant appealed from that judgment on the ground that she is not accountable to the plaintiff because by customary law the plaintiff is not the head and not even a member of the Krakue immediate family who are entitled to enjoy the property.

The house in dispute was the self-acquired property of one Jane Krakue; although she died testate as far as other properties are concerned, yet subject to a direction in her will that her sister should manage the property in dispute and apply the rents from one room in the said house for the education of a grandchild of hers, she died intestate as far as this particular property is concerned. In her said will she devised another building of hers to her two daughters, the defendant and one Mrs. Sabina Asmah. [p.125] of [1963] 2 GLR 122

The said Jane Krakue was survived by her mother Anna Krakue, a sister Nana Ewusiwah, two brothers, i.e., the plaintiff and another who has been living in Liberia continuously for over 46 years and is blind, her two daughters, Mrs. Sabina Asmah and the defendant, Anna Krabah, and other close relations. Her mother Anna Krakue was the head of the whole Krakue family. By customary law, her mother, the said Anna Krakue, was her real successor and the head of her immediate family, see Sarbah, Fanti Customary Laws (1897) page 87. That immediate family originating with her said mother, consisted, by customary law, of her mother Anna Krakue, her sister the said Nana Ewusiwah, her brothers, the plaintiff and the one in Liberia, and her two daughters Sabina and the defendant. By customary law the mother, as such head of the family, acting in conjunction with the principal members of both the wider and the immediate family, may appoint a successor to her said daughter. In the absence of the mother or any other head of the family, the successor so appointed would be regarded also as head of the immediate family. See Sarbah, Fanti Customary Laws (1897) pages 86-89 and Mills v. Addy.1 It is agreed by all that when Jane Krakue died, her mother Anna Krakue, the head of the family, together with the elders of the family appointed Nana Ewusiwah (her) i.e. Jane Krakue’s sister to succeed her. That appointment is in conformity with the customary law. Nana Ewusiwah also predeceased her mother Anna Krakue, whereupon Anna Krakue, again with the consent of the family appointed Nana Krumah, a uterine cousin of Jane Krakue, to succeed and manage the house. That appointment too, if proved to have been made, is in conformity with the customary law. The defendant alleged that the appointment of Nana Krumah did not receive the approval of Jane Krakue; but the evidence that Nana Krumah’s appointment was made by Jane Krakue herself acting in conjunction with the family as a whole so outweighs the defendant’s allegation, that it must be accepted as proved. Upon her appointment as successor to Jane Krakue, Nana Krumah lived in the house and managed it for about eight months. She thereafter became incapacitated through illness, and has never been able to carry out her duties as such successor ever since. Anna Krakue, the head of the family thereupon appointed the defendant and her sister Mrs. Sabina Asmah to be caretakers of the property. Anna Krakue the head of the family died in 1952 and the plaintiff was appointed to succeed her as the head of the family, Sabina Asmah also died in 1959 and the defendant continued as the sole caretaker, to manage the property; she has refused, when called upon, to account to the plaintiff, hence this action.

It was contended on behalf of the defendant that the plaintiff has no locus standi to claim accounts from the defendant because firstly that his position is that of head of a wider family known as Akona and not head of the Krakue family which is a branch of the said Akona family; and secondly that although upon the death of Jane Krakue intestate, the

[p.126] of [1963] 2 GLR 122 property vested in the family as a whole – the wider and the immediate or the inner together – enjoyment of the beneficial interest in it vested in the immediate family, the Krakue family, and not until the immediate family is extinct could it vest in the wider family, the Akona family.

The defendant admits that she has not been appointed successor to her mother, Jane Krakue, rather that she was appointed caretaker of the property in dispute by her grandmother Anna Krakue, the head of the family; she is therefore accountable to the head of the family whoever it may be for the time being. By customary law, where there is no head of the immediate family, and where there is no successor appointed to a deceased member of a family, or where there being a successor he is absent or incapable of acting, the proper person entitled to manage and control the property is the head of the wider family. Again where no head of a family has been formally appointed, or where there being one, he is absent or incapable of performing his duties, the oldest member of that family is automatically the head of that particular family, see Sarbah, Fanti Customary Laws, page 35 and Mills v. Addy (supra). The submission that the immediate beneficial interest in property left by an intestate vests in the immediate family, and not in the wider or entire family until the immediate family entitled thereto is extinct, is sound law, see Mills v. Addy (supra) and ruling in Kwakye v. Tuba2 Who then constitute the immediate family entitled to the present enjoyment of the beneficial interest in the estate of Jane Krakue? In Mills v. Addy3 judgment delivered by me in the Land Court, confirmed and adopted by the Court of Appeal, I referred to the answer which Mr. Edmund Bannerman gave to Hutchinson C.J. as follows: “A woman’s property acquired by herself descends to her children and their children; failing them to brothers or sisters according to age,” and commenting upon that answer I stated by way of obiter that: “The question presupposes that brothers and sisters have an interest in the self-acquired property of their deceased sister, and the purpose of the question is to ascertain whether that interest vests in the brothers and sisters for immediate enjoyment upon the death of the sister, or whether it is postponed to vest upon certain contingencies. And the answer in my opinion indicates that the immediate beneficial interest devolves upon and remains in her children and their children, but upon failure at any stage of such children and their children the beneficial interest vests in brothers and sisters.”

Although Mills v. Addy was a case of succession to a female member of a matrilineal family system the opinion so expressed was not directly in issue. The obiter expressed therein should therefore be considered along with the general principles of succession in a matrilineal family system, and especially in comparison with principles laid down in other decisions dealing specifically with succession to the estate of a deceased female

[p.127] of [1963] 2 GLR 122 member of a matrilineal family system, and I proceed to do so. In the first place it is a firmly established principle of customary law that in a matrilineal family system a mother is the real successor to any of her children – male or female – who predecease her and is the head of his or her immediate family: see Sarbah, Fanti Customary Laws (1897) at page 87 and Quarshie v. Aryeetey4 On the subject of succession to property of a deceased female in a matrilineal family system Rattray at pages 42-43 of his book Ashanti said,

“Coming now to the inheritance of property from a deceased female the heirs in order appear to be the following:

1. Deceased’s mother (who will often waive her right in favour of):

2. Deceased’s sisters (by seniority).

3. Deceased’s own daughters (by seniority).

4. Deceased’s sisters’ daughter.

5. Deceased’s granddaughter.

6. Deceased’s sister’s daughter’s daughter.

7. Deceased’s mother’s sister, who will probably give it to

8. Her own daughter.

9. Her own daughter’s daughter.”

It must be observed that Rattray confines the line of succession in this respect only to females because he gave a strictly literal interpretation to the Akan maxim: “Oba di oba adie na obarima di obarima adie” meaning a woman inherits from a woman and a man from a man,” see page 40. Sarbah on the other hand said that as a general rule a man is preferred to a woman in case of succession to a man, and vice versa, a woman is preferred to a man in case of a succession to a woman. The correct principle is that succession is a matter of decision by the family, they may, in their discretion, elect a man to succeed a woman, or a woman to succeed a man and the election will be quite lawful so long as the person elected comes within the class of persons out of which, by customary law the successor should be chosen. Of course such things like women’s frocks, ear-rings, pots and pans will go to women, while things like men’s suits, men’s hats, guns and the like will go to men; but that is a matter of distribution not a question of succession.

In the case of Nartey v. Nartey,5 the appointment of a woman, the defendant, in a patrilineal family, as successor to her deceased brother who died survived by a brother and a sister, was challenged by the plaintiffs, sons of the deceased, on the grounds, among other things, that by customary law a man is succeeded by a man and a woman by a woman. Upon the facts, the local court, where the case was first heard, held that the appointment of the defendant was validly made by the family, but thought that it would be better if the brother joined the sister as successors. On appeal, the High Court upheld the decision of the local court, that the

[p.128] of [1963] 2 GLR 122 appointment made by the family was in accordance with customary law, and said6:

“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.”

I would say that brothers and sisters of the deceased stand in the same category and therefore according to the order of succession given by Rattray, brothers and sisters of a deceased woman come second in the line of succession, i.e., immediately after the mother of the deceased, and immediately before the third in the line, namely, her children, i.e., her son and daughters, not her daughters only as Rattray says. The case of Hammond v. U.A.C.7 is worthy of consideration at this stage. The issue in that case was succession to self-acquired property of a deceased female, one Kreshie, who died survived by two daughters, Janet Plange and Momo. In the course of his judgment Deane C.J. stated the customary law as follows:

“Plange and Momo survived their mother and according to native law and custom the senior of them would be left in charge of any property acquired by her during her lifetime which would become on her death intestate family property of Kreshie. Strictly speaking the family of Kreshie as a whole meaning thereby not only two daughters but all her blood relations tracing through females from her mother would be interested in the property but the custom is for the head of the family in such circumstances to hand over the charge of the property to the senior descendant of the deceased whose self-acquired property it was.” This implies that it is considered reasonable in practice for the head of the family to hand over charge of the property to the senior descendant. That is to say, the right of the family to make the appointment is retained.

Then there is the case of Jones-Nelson v. Ocansey.8 In that case one Madam Bruce, mother of the plaintiff Mrs. Jones-Nelson, claimed the right to manage a certain property as family property which she alleged had descended from her mother. It was proved that the property in question was property of which one Akocho Korkoi, mother of the defendant Madam Tackie, and sister of the said Madam Bruce who was the original plaintiff, died during the pendency of the suit, and her daughter Jones-Nelson was substituted for her as plaintiff. It was held that since Madam Bruce, [p.129] of [1963] 2 GLR 122 the last sister of the second defendant’s mother had died, the second defendant Tackie as a child of the original owner, was entitled to manage and control the property, but that the position would have been different if her aunt Madam Bruce, the original plaintiff, had not died.

The principles which emerge from these references are that: (a) the immediate family of a deceased female consists of her mother who is her real successor, the originator and head of her said immediate family: see Sarbah, Fanti Customary Laws (1897) at page 87 and Quarshie v. Aryeetey,9 (b) that the immediate family of the deceased of which her surviving mother is the originator and head, consists of: the mother herself who originated the family, the mother’s children, i.e., brothers and sisters of the deceased, and children of the deceased female, Rattray Ashanti pages 42-43, Jones-Nelson v. Ocansey (supra), and (c) in the absence of the mother, brothers and sisters of the deceased, the children of the deceased female take full control of the estate and are the sole beneficiaries each for his or her life, issue of any female child stepping into the shoes of their deceased mother in the enjoyment of the estate. Applying the principles of law stated above to this case, I hold that even if the plaintiff was appointed just head of the wider family, and not head of the immediate family since Nana Krumah the duly appointed successor to Jane Krakue is unable to act by reason of her illness, the plaintiff as such head of the wider family is entitled to take such steps as are necessary to ensure proper control and management of the property to prevent any waste thereof to the prejudice of the other persons beneficially entitled thereto. Again on the question of membership of Jane Krakue’s immediate family, it should be pointed out that the plaintiff as uterine brother of the said Jane Krakue, is one of the principal members of the immediate family of the said Jane Krakue as described above. Therefore as, upon the evidence, the plaintiff is the oldest, physically and mentally fit member of that family, he is, in the absence of a formally appointed head, by customary law, the head of the immediate family, and is responsible to ensure proper control and administration of the property and is entitled to accounts from any member of the family placed in charge of the family property.

From the principles referred to I have come to the conclusion that so long as the mother, a uterine sister or brother of a deceased woman in a matrilineal family society is alive, she or he takes precedence over children of the deceased in the family hierarchy; the children of the deceased woman rank next to her sisters and brothers, and they, the children, share in the immediate beneficial interest in the estate, they are postponed in their right to full immediate control, management and enjoyment of the beneficial interest in their deceased mother’s property, until the last of their mother’s brothers and sisters die: see Jones-Nelson v. Ocansey (supra). It will be seen from the history of the case that until [p.130] of [1963] 2 GLR 122 the dispute which led to this action arose the succession to Jane Krakue and the management and control of this property of which she died intestate have conformed with the principles of law I have stated above. If Sabina Asmah had predeceased her mother Jane Krakue, her said mother Jane Krakue who originated that immediate family would have been her real successor and not her grandmother Anna Krakue. The learned judge therefore, in my view, properly directed himself on the law, when he held that the plaintiff has locus standi in his capacity as head of the Krakue family, to call upon the defendant for accounts of the rents and profits from the house in dispute.

With respect of the order made by the learned judge for an injunction, it was submitted on behalf of the defendant that that order is contrary to law, because the defendant as a member of the Krakue immediate family has a right to occupy the house, and that she together with her children and grandchildren were in such occupation when the order was made: therefore, the order which enjoined her, “her servants and agents not to enter the house in dispute” amounts to an order for ejectment of herself, her said children and grandchildren from the family house. For the plaintiff it was submitted that the right of a member of a family to occupy the family house is exercisable only in respect of such portion of the family house as the head of the family allots to him, and not over the whole house generally. It is the duty of the family, it was contended, to make allotments which are fair and reasonable having regard to the needs of others; and therefore if a member of the family, in opposition to the head and principal members of the family, took possession of the family house without allocation of it to him by the family, he rendered himself liable to ejectment; counsel supported his submission with passages from Sarbah, Fanti Customary Laws (2nd ed.) (1904) page 38. Counsel for the plaintiff further argued that since Jane Krakue devised one house to the defendant and Sabina, but only gave certain directions with respect to the property in question and did not make a devise of it, the only manifest intention of Jane Krakue to be inferred is, that the house in dispute should remain the property for the whole family, and that the defendant and her sister Sabina should only occupy that other house devised to them but not the one in dispute. I agree with the view that though a member of the family has an inherent right to occupy a portion of the family house, the portion he is to occupy must be allotted to him by the head of the family in consultation with his elders in order that other needy and deserving members should receive their fair share. I also agree with the submission that Jane Krakue having died intestate as far as the property in dispute is concerned, the property became family property. But I do not agree with the view that the circumstances showed that Jane intended that the defendant and Sabina should not occupy a portion of the house. Having become family property the house became subject to all the legal incidents of family property, one of which is that any member of the family in whom the beneficial interest immediately vests, is entitled to be allotted his fair

[p.131] of [1963] 2 GLR 122 portion without prejudice to the right of other members of the family to be allotted portions, or reasonable portion of it being let out to tenants for the maintenance and preservation of the property. I am of the opinion that since the defendant occupied a portion of the house during the lifetime of the former head of the family, Jane Krakue, and continued to do so without objection from the family until the circumstances which led to the suit arose, it must be presumed that the portion she originally occupied was allotted to her in accordance with customary law.

But apart altogether from the presumption I have referred to, the writ of summons shows that the injunction sought is for “restraining the defendant, her servants and agents from interfering in the plaintiff’s right to the said house.” The writ did not claim an order upon the “defendant, her servants and agents not to enter the house in dispute.” Therefore the learned judge erred in including those words in the order. The order for injunction is therefore only effective as to the management and control of the house including collection of rents.

I would therefore amend the order for injunction to read: “The defendant, her agents and servants are restrained from collecting rents from tenants of the house, or in any manner interfering with the plaintiff in the control and management of the house.”

Subject to the amendment I would dismiss the appeal.

JUDGMENT OF BLAY J.S.C.

I am in entire agreement with the judgment delivered by my brother Ollennu. And I would like to add that I find it difficult to accept the proposition that a man ceases to be a member of his deceased uterine sister’s immediate family because the sister died leaving children.

The customary law as I have always understood it, is that a person’s immediate family consists of his or her mother, his or her uterine sisters and their children and his or her uterine brothers; and if a woman, her children and grandchildren through her daughters. That where a woman dies intestate leaving property, that property vests in her mother as family property for the enjoyment primarily of herself and the children of the deceased and secondly for the enjoyment of other members of the deceased’s immediate family. That the mother of the deceased together with other members of the family appoints a successor to manage and administer the estate for the benefit of the persons entitled to enjoy the property as stated above. That in the absence of the mother of the deceased the senior male member of the family steps into her shoes and performs the function which would devolve upon the mother of the deceased. And where there is no senior male member of the family the senior female member takes the place of the mother. In my view the respondent Krakue had stepped into the shoes of the mother of the deceased and was therefore entitled to protect the property in the suit for the benefit of the other members of Jane Krakue’s family.

With this addition I concur in the judgment just delivered.

[p. 32] of [1963] 2 GLR 122

JUDGMENT OF AKUFO-ADDO J.S.C. (Dissenting)

I have made no little effort to persuade myself, or to be persuaded, to accept the reasoning and the conclusions embodied in the judgment which my brother Ollennu has read and in which my brother Blay has concurred, but I regret the effort has not been successful, and I must therefore express my dissent. The main question for determination in this appeal is whether the defendant, the surviving daughter of Jane Krakue, an Akan woman, is not entitled to the immediate enjoyment of the beneficial interest in her mother’s self-acquired property in respect of which she died intestate, and whether she is accountable to the plaintiff, the head of the wider Krakue family, in respect of rents collected by her from the said property which is house No. 30/13, 7th Street, Sekondi.

Although Jane Krakue left a will it is common ground that as far as the house (the subject-matter of the action in this appeal) is concerned she died intestate, and a consideration of the rights of the plaintiff and the defendant must necessarily be based on the law governing the devolution of the property of a woman in a matrilineal society dying intestate.

Jane Krakue had two daughters, Mrs. Sabina Asmah and the defendant, and was survived by them. She was also survived by two brothers (one of whom is the plaintiff), a sister Ewusiwah who became her successor, and her mother Anna Krakue. Sabina Asmah is dead, and it is not clear from the evidence whether she left any children. The defendant has children. When Ewusiwah died she was succeeded by Nana Krumah a maternal cousin of Jane Krakue, and Anna Krakue died in 1952. The plaintiff as head of the wider Krakue family claimed against the defendant (a) an account of all rents collected by the defendant from the house aforesaid, and an order for possession of the said house, and (b) an injunction to restrain the defendant from interfering in the plaintiff’s right to the said house. The judgment read by my brother Ollennu affirms the order of the court below upon the defendant to account for rents collected and varies the order of injunction granted by the court below from one “restraining the defendant from interfering in the plaintiff’s right to the said house” to one “restraining the defendant from collecting rents from tenants of the house, or in any manner interfering with the plaintiff in the control and management of the house.” I am unable, with respect, to accept these conclusions as being in accordance with the law governing intestate succession to an Akan woman’s property. In recent times no principle of the customary law has had so clear a judicial enunciation as the law relating to the succession to an intestate woman’s property, and this enunciation of the law is by no less a person than my brother Ollennu, when he was in the High Court, in the case of Mills v. Addy.10 It is remarkable to note that when the judgment in that case went on appeal to the Court of Appeal, that court gave it its unqualified blessing in the following words11: “This appeal is dismissed for the [p.133] of [1963] 2 GLR 122 reasons given in the full and able judgment of Ollennu J. which must be taken to be incorporated in the judgment of this court.”

Rarely does a judgment achieve such judicial consecration in an appellate tribunal, and I make no apology therefore for setting out in extenso the material portions of that judgment and in checking up, as it were, the circumstances of the case in this appeal against the principles contained therein. The learned judge in Mills v. Addy12 said,

“I shall now review the authorities on the subject. The question put by Hutchinson C.J. to which Mr. Edmund Bannerman gave the answer referred to by Mr. Enchill in Sarbah’s Fanti Customary Laws is as follows:

‘Does a woman’s property, acquired by her, descend in the same way (i.e., as man’s) or do her children inherit it before her brothers and sisters?’

The answer given is as follows:

‘A woman’s property acquired by herself descends to her children and their children; failing them to brothers or sisters according to age.’

The question presupposes that brothers and sisters have an interest in the self-acquired property of their deceased sister, and the purpose of the question is to ascertain whether that interest vests in the brothers and sisters for immediate enjoyment upon the death of the sister, or whether it is postponed to vest upon certain contigencies. And the answer in my opinion indicates that the immediate beneficial interest devolves upon and remains in her children and their children, but upon failure at any stage of such children and their children the beneficial interest vests in brothers and sisters.”

He went on to say:

“In the case of Nelson v. Ocansey and Tackie, West African Court of Appeal, 11th March, 1950, unreported, a woman died possessed of self-acquired property. She was survived by two sisters, a son and a daughter (who was the co-defendant). Both her children were of age at the date of her death. It was held that although by Ga custom her children inherited the property and were the persons immediately entitled to the beneficial interest in it, yet by native custom the sisters were her successors, and had some interest in the property and it was not until the death of the last of the sisters that her children could, by themselves, exercise over it the control which the successor or head of the family usually exercises over family property. In other words, while the sisters of the deceased lived, the eldest of the sisters and eventually the survivor of them was the head of the family and administered the property for the benefit of the children even though they were the inheritors of the deceased’s self-acquired property and were of age.

In the case of Acquaye v. Deedei and Crabbe (1957) 3 W.A.L.R. 132 applying the principle in Nelson v. Ocansey and Tackie, (supra) I held as follows:

‘By native custom a woman’s self-acquired property descends to her children upon her death intestate . . . Upon the death of the last surviving child, that property, by Accra custom, becomes the property of the maternal family of that woman: children of her sons are not members of that family and have no interest in the grandmother’s property.’

[p.134] of [1963] 2 GLR 122

Sarbah in his book on Fanti Customary Law (1896), at pp. 102 and 103, states the principle of succession as follows:

‘The owner of self-acquired real property dying intestate is not succeeded by his sons, they being outside the line of inheritance, but by his mother and her issue according to seniority. . . There are four kinds of successors, viz.: Real, Proper, Ordinary and Extraordinary. The Real successor of a person is his mother.

We call those persons Proper successors who are the uterine brothers and sisters of the deceased, and the issue of such sisters, but never can the pedigree be traced out in the line of the male.’ The paragraph cited from Sarbah relates to succession in areas where the family is the maternal family. Accra, as distinct from the rest of the Ga State, is one of those areas.

From consideration of the authorities cited above, and from the general principles of native custom regarding succession, I have come to the following conclusions on the native custom: every woman becomes the originator of a family. The family she so originates is a branch of her mother’s or grandmother’s family; that branch family remains forever part of the trunk of her mother’s and grandmother’s family. Whenever the branch ceases to grow, there is reversion or retracing of steps to the trunk family. When a person, male or female, dies intestate his or her self-acquired property becomes family property to be administered by the head of his family. The head of the family by custom entrusts that property, as distinct from ancestral property, to the ‘real’ or the ‘proper’ successor as the case may be. The question of who constitutes that family, and in the absence of the ‘real’ successor – the mother – the question of who are the ‘proper’ successors, are questions to be decided in each particular case upon well-defined principles of native custom. In the case of a woman, the proper successors in the family are her children, and her children’s children in the female line. The words ‘children’s children’ should be construed to mean children’s children who belong to the family and are by custom in the line of succession, therefore where the family is the maternal family, the phrase children’s children can only mean the ‘children of daughters.’ Upon failure of ‘proper’ successors, succession is taken a step higher up the tree to the trunk family of the real successor, i.e., mother of the original owner of the property, and where necessary a step higher still to the trunk family of the grandmother of the original owner.”

Applying the principles so lucidly set out to the facts in this appeal, we have the following state of affairs:

(1) Jane Krakue was the daughter of Anna Krakue who was the head of the Krakue family and whose successor as head of that family is the plaintiff.

(2) Jane Krakue was the originator of a branch of the Krakue family and that branch comprised herself, her two daughters Sabina and the defendant both of whom survived her and their children. The defendant has children but it is not clear from the evidence if Sabina who is now dead left any children. I presume she left some.

(3) Jane Krakue died intestate as far as the property in dispute is concerned, and was survived, in addition to her two daughters,

[p.135] of [1963] 2 GLR 122 by her mother Anna Krakue, her sister Ewusiwah and her two brothers one of whom is the plaintiff in this case.

(4) Upon her death intestate her property, namely, the house in dispute, descended to her children, the two daughters aforesaid, and their descendants through the female line who are entitled to the immediate enjoyment thereof and are the proper successors of Jane Krakue.

(5) Upon the death of the two daughters and upon the failure of their descendants through the female line, the property of the wider family, i.e., the family originated by Anna Krakue of which the plaintiff is the head.

(6) The present position is that one of Jane Krakue’s daughters (the defendant) is alive, her children are alive and presumably Sabina also has children living. Therefore the contingency which should transform the property into an ancestral property has not occurred and the interest of the wider or ancestral family in the property is still in reversion.

(7) When Jane Krakue died her sister Ewusiwah was appointed her successor and while she was alive it could be said on the authority of Jones-Nelson v. Ocansey, (supra) (subject to my comment on that case hereafter) cited in Mills v. Addy13 that the control and management of the property remained in her for the benefit of Jane Krakue’s two daughters. But Ewusiwah is dead and, therefore the defendant the surviving daughter of Jane Krakue is entitled to the control and management of the property.

(8) Nana Krumah a cousin of Ewusiwah and Jane Krakue was appointed successor of Ewusiwah upon her death. Such an appointment does not and cannot in law interfere with or affect the beneficial interest of the descendants of Jane Krakue in the property. This interest the descendants of Jane enjoy fully and not jointly with the wider family, and is subject only to the line originated by Jane Krakue becoming extinct.

(9) The “entrusting” of the property to Sabina and the defendant, the proper successors of Jane Krakue by Anna Krakue the real successor and the then head of the wider Krakue family, was a formality required by custom and merely served as a formal recognition of the beneficial interest of Sabina and the defendant in the property.

The analysis of the position in this appeal which I have attempted follows strictly the principles set out in Mills v. Addy (supra).

I think, with due respect, that there is some confusion about what the constituents of a deceased person’s immediate family are and the relation between such a family and the wider family in respect of property which

[p.136] of [1963] 2 GLR 122 devolves on the immediate family on intestacy; and I would like to refer to an illustration of the position set out in the judgment, again of my brother Ollennu, in Serwah v. Kesse14 affirmed by the Court of

Appeal15:

“. . . if Madam A dies leaving three daughters, B, C and D, and land ‘Black Acre’ her self-acquired property, her said three children constitute her immediate family and are the immediate beneficiaries of her estate ‘Black Acre’. One of those three children, e.g., B, is appointed the successor to the mother and takes charge of A’s self-acquired property for herself and her two sisters and their descendants – i.e., A’s immediate family. B then is successor to A, and ipso facto head of A’s immediate family. B, C and D may each have children and grandchildren, thus by the time the last of the three children of A dies, the direct descendants who would constitute the A family and together be entitled to A’s estate ‘Black Acre’ may be 21 or more; all these have equal interest in ‘Black Acre’ as property which has descended to all of them from their grandmother or ancestress A. At the same time those same 21 persons belong to 3 separate immediate smaller family groups, i.e., the B, C and D families, and are the immediate beneficiaries of the self-acquired properties left by their said mothers or grandmothers. The person who is appointed from among the immediate family to take charge and control of the property left by their immediate ancestor for and on behalf of, and to look after, all those entitled to the estate is referred to as successor to the immediate ancestor, while the one appointed from all the three groups to take charge and control of ‘Black Acre’, the self-acquired property of the remote ancestress Madam A, and to look after it for all the direct descendants of Madam A, i.e., all the three groups of families together, and look after all of them, is referred to as the head of the A family, i.e., the immediate families of B, C and D together.”

It should be noted that in a matrilineal society only a woman can originate a family, and therefore the immediate family of a man is always the family originated by his mother and that family comprises his mother, the man himself, his brothers and sisters, children of his sisters and their descendants through the female line.

One of the submissions advanced by counsel for the defendant was that the immediate beneficial interest in the property of an intestate vested in the immediate family and only in the wider family upon the immediate family becoming extinct. My brother Ollennu acknowledges the soundness of this principle of law but goes on to say that since Nana Krumah was appointed a successor of Jane Krakue by the wider family and the defendant and her sister were appointed caretakers by reason of Nana Krumah’s alleged illness the head of the wider family was entitled to call upon the defendant for accounts. In other words, it is the actions of a family that determine the law and not the law that determines the conduct of a family. But more about that presently. My brother Ollennu goes further to say that the plaintiff being a brother of Jane Krakue is one of the principal members of the Jane Krakue’s immediate family, and as the oldest member

[p.137] of [1963] 2 GLR 122 of that family he was entitled in the absence of a formally appointed head of that family (that is the immediate family) to bring this action for an account.

It must be said in the first place that Nana Krumah was appointed a successor of Ewusiwah and not of Jane Krakue, but even if she was so appointed such an appointment could not in law affect the beneficial interest of Jane Krakue’s immediate family in Jane Krakue’s self-acquired property, for the effect of that appointment was only to confer on Nana Krumah the right to the possession, control and management of any ancestral property that might have come into the hands of Ewusiwah through Jane Krakue or otherwise. What is more, Nana Krumah not being a sister of Ewusiwah cannot even on the authority of Jones-Nelson v. Ocansey (supra) have the control and management of Ewusiwah’s self-acquired property if Ewusiwah had any direct descendants surviving her, much less the control and management of Jane Krakue’s self-acquired property. Secondly, the immediate family of Jane Krakue by all the available authorities is the family originated by Jane Krakue, that is her children and other descendants. Jane Krakue’s brother the plaintiff does not trace his origin to Jane Krakue and cannot lawfully (not to say biologically) be a member of a family made up of the descendants of Jane Krakue, much less a principal member of it. And the same applies to Nana Krumah. In the absence of a formally appointed head of the Jane Krakue’s immediate family the defendant is the person (being the oldest member of that family) entitled to exercise the rights and privileges, and to assume the duties, of the head of that family. There is an obvious confusion between Anna Krakue’s immediate family (i.e., Anna Krakue’s children and descendants) of which both the plaintiff and the defendant are members and the plaintiff is undoubtedly a principal member, if not the head, and Jane Krakue’s immediate family which is a branch of Anna Krakue’s family and of which the plaintiff is certainly not a member.

The case of Jones-Nelson v. Ocansey16 elied on by my brother Ollennu to confer on the plaintiff rights in Jane Krakue’s estate does not mention brothers of an intestate woman, but assuming (an assumption which would mean a reversal of the usual rule of interpretation that the male includes the female) that the female includes the male and that therefore the reference to sisters in that case must be understood to include a reference to brothers, the interest which a sister or a brother has (if he has any) in the estate of her or his deceased sister is of course a personal interest limited to the duration of her or his life. Assuming further that the principle in Jones-Nelson v. Ocansey applies unqualifiedly to all matrilineal societies in Ghana, the plaintiff in this case has not brought this action as a brother of the deceased claiming a life interest for himself in her estate on that ground, nor has he brought the action on behalf of the immediate family of which he is said to be a principal member. He has [p.138] of [1963] 2 GLR 122 sued as the head of the wider family claiming a right and a benefit for that family, and an issue was joined in a straight battle between the wider or ancestral family (comprising apart from the plaintiff himself, children and grandchildren of Ewusiwah, Nana Krumah and her descendants and others) and the immediate family (the descendants of Jane Krakue).

This appeal cannot therefore be determined on an issue that was never joined between the parties in the court below, that is on the issue of the plaintiff’s entitlement to an interest in Jane Krakue’s estate by reason of Jane Krakue being his sister.

Moreover in so far as the principle in Jones-Nelson v. Ocansey (a Ga Mashie case) operates to postpone the vesting of the interest of the children of a deceased woman to after the life interests of the brothers and sisters of the deceased woman, that principle appears to me to be a variation of the general custom in matrilineal societies in Ghana and, like the position of six-cloth children in relation to their deceased father’s estate, must be taken to be peculiarly applicable to Ga Mashie.

The position as regards the general custom in the other matrilineal societies (i.e., the Akan) is stated clearly at page 84 of Sarbah’s Fanti Customary Laws (1897) and it says:

“Where a woman, having issue or descendants, possesses self-acquired property, her testamentary declarations as to the disposal of her property among her children and grandchildren is binding. When she fails to make such disposition her mother is her successor, then her children by seniority, failing whom, her sisters and brothers by seniority. So long as her children and their issue are alive, the right of the brothers, sisters, and sisters’ issue is subordinate to that of her own children.”

This is the principle of law referred to by van Lare J.S.C. in the judgment of the Supreme Court in Serwah v. Kesse17 read by him when he said,

“This decision is in accordance with the principle of our customary law that among the Akans the immediate beneficial interest in a woman’s self-acquired property descends to her children and their children – children’s children meaning the children of daughters only – see the judgment of Ollennu, J. in Mills v. Addy (3 W.A.L.R. 357.)”

That being the law among the Akan, the plaintiff as Jane Krakue’s brother, has no interest in the property of his deceased sister, while the defendant, a daughter of Jane Krakue and her children are alive, that is, even if he had sued in that capacity (which he did not).

It is said that the defendant on her own admission has not been appointed a “successor” of her mother and that she was appointed a “caretaker” of her mother’s property and for that reason she is accountable not, it should be noted, to Nana Krumah who is said to be the successor of Jane Krakue but to the wider family whose interest in the property in dispute is essentially in reversion.

[p.139] of [1963] 2 GLR 122

It is essential I think that the difference between the two concepts of succession and inheritance in customary law be clearly appreciated. Succession in English law connotes the right to inheritance. This is not always true of customary law and as Sarbah says: “There is no such thing as succession, in the proper English meaning, in a family owning ancestral property. (Sarbah’s Fanti Customary Laws (1897) page 85.) The right to be appointed the successor of a deceased person is not always coterminous with the right to inherit the self-acquired property of the deceased. The maxim in the Twi language, “Ebinom di ade, nanso wommfa ade” (literally meaning “some people succeed but do not inherit”), epitomises the position at customary law in all its pristine purity as well as in its present day applicability, at any rate as far as Akan matrilineal societies are concerned.

Succession generally speaking is a means of preserving and perpetuating family ties over as wide a field of family connections as possible, and although very often a successor is chosen from the group of members entitled to the immediate enjoyment of a deceased person’s property, there are as many cases in which a successor is chosen from outside that group, that is, from the wider field of family connections and usually from the same level or generation in the genealogical hierarchy as, or from a lower level than, the deceased person. A successor of the latter category is the type designated by Sarbah as an “ordinary successor” (see Agyare v. Dotwa).18 Such a successor is entitled to the control and management of any ancestral property that was in the possession of his or her predecessor, while the self-acquired property of the deceased descends to the immediate family of the deceased, that is, the proper successors. The distinction between the devolution of ancestral property in the hands of the deceased and that of the self-acquired property of the deceased is made clear in the following statement in Mills v. Addy19: “The head of the family by custom entrusts that property, [i.e. the self-acquired property of the deceased] as distinct from ancestral property, to the ‘real’ or the ‘proper’ successor as the case may be.” It is not for sheer literary effect that Sarbah categorised successors into four types, namely: real, proper, ordinary and extraordinary. The real successor of a deceased person is his or her mother and the proper successors of a deceased woman are her children and other descendants as stated so clearly in Mills v. Addy quoted above. These two classes of successor are the immediate inheritors of the property of the deceased person, for they are those who by law are entitled to the immediate enjoyment of the deceased’s property, and their interest in such property is not the creation of the family. The law confers upon them the right to such property, subject of course to the interest in reversion of the wider family. The “mother [i.e., of a deceased woman]” says Sarbah, “has only a limited interest [which he says in another place is not greater than a life-interest] in the estate of her daughters, for the right of children to succeed to their [p.140] of [1963] 2 GLR 122 mother is superior to that of their grandmother.” (Sarbah’s Fanti Customary Laws (1897) page 84.) Where the successor of the deceased is an ordinary successor it becomes necessary to appoint one member (usually the oldest) of the group of proper successors to have the charge, control and management of the property for himself or herself and the other members of the group, and the property is handed over to the person so appointed who then becomes the head of the immediate family. But the right of that group to the immediate enjoyment of the beneficial interest in the property does not derive from such appointment, and for that reason if the head of the wider family fails or refuses to make the formal hand-over or to make an appointment, the group (i.e., the immediate family) are entitled to take possession of the property by every lawful means and appoint their own head. To say therefore that the defendant, a daughter of Jane Krakue and a proper successor of her mother, has not been appointed a “successor” and therefore she is not entitled to the control and management of her deceased mother’s property, is to perpetuate unduly the state of apparent confusion which surrounds the use of the term successor.

It is further said that the defendant was appointed a caretaker of the property in dispute by the wider family of which her grandmother was the head and she is therefore accountable as such caretaker to the wider family. Here again there is some confusion of thought arising from misapplication of terminology. In this country every person who has the charge and control of communally-owned property is described as a “caretaker” for want of a better English equivalent word. The expression “caretaker” has been preferred to “trustee” perhaps because the latter expression connotes certain attributes in English law which are not present in a “caretaker”: see Abossey Okai v. Ayikai.20 It is in that sense that the head of a family or a stool occupant is spoken of as being the “caretaker” of the family property or the stool property in his possession. It is in the same sense that a person entitled to a life interest or any other determinable interest in communally-owned property is described as a “caretaker.” Such a “caretaker” is in all cases a limited owner either by himself or jointly with members of his class. This notion of “caretakership” does not import the relationship of principal and agent such as gives rise to liability to account.

The defendant and her sister are “caretakers” only because they and their class are not absolute owners of the property, their interest in the property being subject to the reversionary interest of the wider family upon the extinction of their class for whom they hold that interest, that class being the immediate family of their mother Jane Krakue. The exigencies of customary formalities, like the formality of “entrusting” property to those already entitled to it by law, do not alter the basic law of inheritance, nor do they operate to modify or limit the nature or extent of the interest which a family has in its inherited estate nor in anyway alter the incidents attached to such an interest.

[p.141] of [1963] 2 GLR 122

Again it is said that the head of the wider family is entitled to take action to prevent waste. Admittedly. But of what waste is the defendant being accused? She was sued because she would not account for rents received by her and an order was sought to prevent her from further collection of rents. The common law definition of waste is: “an act, or omission, by the tenant in possession, occasioning the destruction of, or injury to, ‘houses, gardens, woods, trees, or in lands, meadows, etc.’” (see Stroud’s Judicial Dictionary (3rd ed.), 1953, Vol. 4 page 3262), and I am not aware of any definition of waste in customary law which differs from this definition. A wider family by reason of its reversionary interest in property enjoyed by an immediate family is of course entitled to take steps to prevent any act by the immediate family or by any member thereof which threatens destruction of, or injury to, the property involved. What destruction or injury, it may be asked, does the defendant’s refusal to account for the rents received by her do, or threaten to do, to the property in question? To regard such a circumstance as amounting to waste is, with the greatest respect, to stretch human imagination beyond tolerable limit. By every known basic principle of law a person entitled to the immediate enjoyment of property is, among other things, entitled to the income accruing from such property. Rent of course is income, and the defendant and the other members of Jane Krakue’s immediate family are entitled exclusively to all the rents accruing from the property because they are entitled to the immediate enjoyment of the property, and if there is any question of liability at all on the part of the defendant to account, such a liability can only be to the members of the immediate family. To say that the defendant, for reasons assigned for the proposition, is accountable to the wider family for rents received by her is, to say the least, to reverse the processes regulating the established incidents of succession at customary law.

Again it has been said that Nana Krumah occupied part of the house in Anna Krakue’s lifetime without any objection from the family (meaning apparently the immediate family) and therefore the family (meaning the wider family) must have allotted that part to her. I am afraid I am unable to perceive upon what principle of law this conclusion is based or justified, nor what legal position is deducible from that conclusion. If the suggestion is that this circumstance is evidence of the wider family’s absolute control over the house, the short answer is that an assumption of such control is contrary to law and therefore wrongful. If on the other hand the suggestion is that the immediate family by not objecting to such occupation by Nana Krumah are precluded from questioning the wider family’s control over the property or Nana Krumah’s immediate interest in the property the suggestion is patently untenable. Apart altogether from the complete absence of any of the factors making for estoppel, Nana Krumah’s occupation is not uniquely referable to the wider family’s control of, or to Nana Krumah’s interest in, the property, for there may be many reasons – chief among which, that of sentiment-why the children of Jane Krakue would not object to Nana Krumah living in their house. After all it is said that she is the successor of their mother, and according to custom they

[p.142] of [1963] 2 GLR 122 would call her “mother.” What is more natural than that “children” would not object to their “mother” living in their house with them. At any rate the Ghanaian has not yet developed that stern and calculating individualism that would look an aged relation hard in the face and say nonchalantly, “Sorry, but there is no room for you in my house.”

A rather disturbing feature of the views expressed by my brother Ollennu in his judgment is his view of his own judgment in Mills v. Addy. It will be remembered that in the judgment in Mills v. Addy the learned judge gives an interpretation of the answer which Mr. Edmund Bannerman is recorded in Sarbah’s Fanti Customary Laws to have given to a question put to him by Hutchinson C.J. on the subject of the devolution of the property of a deceased woman dying intestate. That interpretation agrees unreservedly with the statement of the law which I have quoted above from Sarbah’s Fanti Customary Laws. My learned brother says that that interpretation was an obiter dictum for, although Mills v. Addy deals with succession to a woman’s property, it was not necessary for the determination of the issues involved in that case, and we should therefore look elsewhere for authorities which more specifically relate to the subject. I must confess that I find this view exceptionally frustrating, for the interpretation referred to is without the least doubt the central pivot round which every other dictum in Mills v. Addy revolves; and if it is obiter dictum then it follows that all the dicta which constitute the reasoning in that judgment are obiter. We have therefore in Mills v. Addy nothing to go by but the bare pronouncement of judgment in favour of the successful party without any valid reasons to commend it. This is reductio ad absurdum. I am loath, however, to impute to my learned brother an intention to desire such a result, and it is for that reason that I respectfully disagree with him.

In support of his preference for authorities other than Mills v. Addy my learned brother refers to the cases of Quarshie v. Aryeetey21 Kwakye v. Tuba22; Nartey v. Nartey23; Hammond v. Randolph24 and Jones-Nelson v. Ocansey25 and to Sarbah’s Fanti Customary Laws (1897) page 87; and Rattray’s Ashanti. In my view none of these authorities justifies the conclusions reached by my learned brother, and if only to demonstrate further my disagreement I would like to examine very briefly these authorities in the light of the higher degree of authoritativeness claimed for them.

With the exception of Hammond v. Randolph which ended up in the Privy Council with an affirmation of the judgment of the Divisional Court, and Nelson v. Ocansey which is a judgment of the West African Court of Appeal, the remaining three cases contain judgments of my learned brother Ollennu when he was in the High Court. As far as I am aware none of these three cases proceeded beyond the High Court, and in so far, therefore, as they propound any principles of law at variance with the law as stated [p.143] of [1963] 2 GLR 122 in Mills v. Addy or in Serwah v. Kesse they must of necessity be relegated to an inferior position in the hierarchy of judicial precedents. It does seem to me somewhat ironical that the merits of a judgment should be defended against a sustained onslaught on it by its own author, but I suppose in the various fields of human endeavour including presumably the field of judicial administration the category of ironies is never closed.

The case of Quarshie v. Aryeetey26 was a Ga-Mashie case in which the defendant claimed as against his mother that he was the rightful successor of his deceased brother. Ollennu J. as he then was, found in favour of the mother in the following terms:

“I had occasion to deal with the question of succession in a judgment I delivered on the 4th March, 1958, in a suit entitled Mills v. Addy (1958) 3 W.A.L.R. 357. In that judgment I considered all the available judicial decisions and commentaries on the subject, and in consequence I made certain pronouncements. I came to the conclusions

(1) that every woman who has children becomes the originator of a family, consisting of herself and her direct descendants,

(2) that in Accra and the Akan States the head of that family is that woman so long as she lives, and

(3) that she is also the proper [it should be ‘real’] successor to any of her children who may predecease her.

That judgment has not been appealed, and nothing has been urged to make me alter the conclusions I reached in the case as to the custom of succession. I am, therefore, bound to hold in the instant case that plaintiff is the head of her family, and at the same time is the successor to her son the late Robert Aryee Aryeetey.” Although this case relates to succession to a man’s estate, it is significant to note that the decision is founded on the general principles of the law stated in Mills v. Addy.

In Kwakye v. Tuba,27 Ollennu J. enunciated the law as follows:

(1) “. . . upon the death of a person intestate, although his self-acquired property becomes the property of the whole of his family, the immediate and extended together, the right to immediate enjoyment of the beneficial interest in it, and to the control of it, vests in the immediate or branch family, and the person appointed successor to the deceased is, in law, the head of that immediate or branch family. As such head he is the proper person to sue and be sued . . . “ (2) He also stated as between the head of a wider family and the successor of a deceased, the successor, who is also the head of the immediate family is the person to bring an action in respect of the property of the deceased.

As I understand the Akan customary law a successor who is not a member of the immediate family (that is of the class of proper successors) cannot be the head of that family which is always a closed biological unit. Such a successor is entitled only to the control of any ancestral property [p.144] of [1963] 2 GLR 122 that was in the hands of the deceased and not of the self-acquired property of the deceased. A family cannot by manipulating the appointment of a successor shift the legal basis of inheritance. To hold otherwise would be to treat customary law in the hands of a family as though it were clay in the hands of a potter to be kneaded into any required paste or moulded into any desired figure as the family’s predilections of the moment may prompt.

What is more germane to this appeal is the statement of the law concerning the respective rights of the heads of the wider and the immediate families vis-a-vis the property of the deceased person. I entirely agree that as between the head of a wider family and the head of an immediate family the latter is the rightful person to bring any action affecting the self-acquired property of the deceased. According to the principle stated in Kwakye v. Tuba, Nana Krumah who is said to be the successor of Jane Krakue would be the head of Jane Krakue’s family. It is a position which I do not accept, but as a logical follow-up of that position Nana Krumah would be the rightful person to bring the action on behalf of the immediate family. This action was brought neither by Nana Krumah nor on behalf of the immediate family. It is said that Nana Krumah is a sick woman, but can that fact really prevent her from instructing an action to be brought in her name as the head of the immediate family and deputing some member of the family (the plaintiff, for instance) to represent her in the proceedings? It is also said that the plaintiff being a principal member and the oldest member of Jane Krakue’s immediate family is, in the absence of a formally appointed head of the immediate family, the head of the immediate family. But, apart from the fact that the plaintiff is not a member of Jane Krakue’s immediate family, how could there be an absence of appointment when the successor of Jane Krakue (i.e., Nana Krumah) is, by the law propounded in Kwakye v. Tuba, automatically the head of Jane Krakue’s immediate family? And does not the acceptance of the position that no head of the immediate family has been formally appointed seriously detract from the force of the law enunciated in Kwakye v. Tuba when the view is also confidently expressed that Nana Krumah is the successor of Jane Krakue?

In any case the plaintiff, who is to be deemed to be the head of the immediate family in circumstances which even on the showing of Kwakye v. Tuba did not exist to warrant such a conclusion did not bring this action on behalf of the immediate family. It is a basic rule of procedure that in a claim for proprietary rights only the person entitled to such rights can bring an action in order that all benefits of that action should accrue to him. As it is, in this case the benefits of the action herein accrued entirely to the wider family on whose behalf the action was brought, thus not only is the immediate family of Jane Krakue deprived of its inheritance, but the position of future immediate families becomes even more confused and uncertain than it ever has been.

It cannot be disputed that in the administration of the law it is highly desirable that the criteria and principles of the law to be applied by our

[p.145] of [1963] 2 GLR 122 courts should have some measure of uniformity so that there will always be some degree of probability in the law known not only to the public but also to those who have to advise the public. If the law stated in Kwakye v. Tuba, namely, that a successor of any description is ipso facto the head of the immediate family, is a correct statement of the law, then the uniform application of principles requires that the plaintiff should fail in this appeal, for then Nana Krumah who is said to be the successor of Jane Krakue, and not the plaintiff, would be the head of Jane Krakue’s immediate family and the proper person to bring this action. If on the other hand, it is not a correct statement of the law, and in my respectful view it is not, then that case is of no relevance whatsoever. In either case, the end result does not favour the plaintiff’s case.

Nartey v. Nartey (supra) proceeds on an application of the well-known principle of customary law which says that no member of a family has an inalienable right to be appointed a successor, for the family has the right to pass over, so to speak, a person with an apparent right to be appointed in favour of some other person but only for good reasons and not capriciously. However, since family rights are always enjoyed in lineal groups the successor appointed, as I have already indicated, must come from the group entitled to the inheritance. Thus there is a limit on the exercise of the rights of the family in this respect. In so far as an appointment of a successor is made by the wider family which has the effect of giving the possession, control and management of the self-acquired property of the deceased, as distinct from any ancestral property that might have come into the hands of the deceased, to the successor so appointed, the family are absolutely restricted in their choice as to the class of proper successors (i.e., the immediate family). Assuming, therefore, as has been said, that Nana Krumah was appointed a successor of Jane Krakue to have the control and management of Jane Krakue’s self-acquired property and thus to have an immediate interest in that property the appointment was fundamentally bad in law, and, to that extent, void of effect. It is no answer to a challenge to the propriety of such an appointment to say that it was done by the family with all the accepted formalities of custom. See In re Eburahin; Ansah v. Ankrah,28 although I do not go so far with Adumua-Bossman J. (as he then was) as to say that the wider family cannot in any circumstances make an appointment, so long as it is made from among the class of proper successors (i.e., the immediate family).

This case is apparently being relied on to justify the appointment of Nana Krumah, a maternal cousin of Jane Krakue, as the successor of Jane Krakue, but the real issue in this appeal does not concern the appointment of an ordinary successor, as Nana Krumah would be if she were accepted as a successor, of Jane Krakue. The real issue relates to the rights of the daughter of a deceased Akan woman in her mother’s self-acquired property as against an immediate right in that property claimed by the wider family.

[p.146] of [1963] 2 GLR 122

The passage quoted from the judgment of Deane C.J. in Hammond v. Randolph is in essence a statement of the well-established principle of law that the property of a deceased woman dying intestate becomes the family property of both the wider family and the immediate family. The respective interests of these two families are however different, and customary law is juristically logical enough to recognize the distinction between an interest in possession which is the interest of the immediate family and an interest in reversion which is the interest of the wider family with all the legal incidents attached to these interests. There is therefore nothing in the statement of the law by Deane C.J. which gives it a greater degree of authoritativeness than Mills v. Addy. Indeed it supports the defendant’s case.

I have already referred to the case of Jones-Nelson v. Ocansey, and there remain the references in the two books of Sarbah and Rattray. The line of succession appearing at page 87 of Sarbah’s Fanti Customary Laws (1897) obviously relates to succession to the property of a deceased male. In this appeal we are dealing with the property of a deceased female, and I have already referred to the statement of the law on this subject in Sarbah.

As regards the reference in Rattray’s Ashanti it is probably enough to say that that book is not a legal treatise. Although Rattray was a lawyer (I believe he was called to the Bar by Gray’s Inn) he never practised the law nor did he ever engage himself in an active pursuit of the law. He was essentially a social anthropologist, and while his views on the origin and nature of Asante tribal societies and organizations (including his views on the origin and nature of primitive law) deserve to be regarded with the greatest respect his view on customary law cannot be preferred to those of Sarbah or to judicial enunciations. All the same, the line of succession referred to in Ashanti is no support for any view that has been expressed in favour of the plaintiff. Rattray gives the line of succession as the mother followed by the sisters and the daughters of the deceased woman. Jane Krakue has no mother and sisters living; the defendant is her surviving daughter; and instead of following Rattray from this point it is suggested that Rattray’s “sisters” means “brothers and sisters.” I am unconvinced by this suggestion and all that has been said to sustain it. There is no reason to suppose that Rattray, an anthropologist, did not appreciate the significance of the difference between “sisters” and “brothers” in the context in which he wrote, and in my view the reference in Ashanti unequivocally supports the defendant’s entitlement to the control and management of the property in dispute. If, however, the suggestion is correct, then I must needs take my stand on Sarbah and on judicial precedent and reject that statement of the law as wholly untenable. Finally I would like to call in my aid the statement of the law appearing at page 35 of Ollennu’s Law of Succession in Ghana. If there are any persons (apart from the defendant’s own children) who are in law entitled to feel aggrieved by, and to complain of, any misconduct or default on the part of the defendant vis-a-vis the property in dispute, the children of Sabina are such persons. I do not know that there are such persons in

[p.147] of [1963] 2 GLR 122 existence but, if there are, a claim by the wider family such as is before this court is not one that can in its effect advance their interest as members of their grandmother’s immediate family. The plaintiff did not even mention the existence of any such persons.

In my view the defendant’s counsel’s submission that the plaintiff has no locus standi such as would entitle him to bring this action is irrefutable, and in any case the plaintiff, for reasons that I have assigned, should not succeed. The defendant, in my view, is not accountable to the plaintiff as the head of the wider family or as the supposed head of the immediate family or as Jane Krakue’s brother for he is not the proper person in law, in whatever guise he is presented, to have the control and management of the property in dispute which by law is in the defendant, and for that reason he (the plaintiff) is also not entitled to an order of injunction against the defendant.

I would therefore allow the appeal and set aside the judgment appealed from. Consequently, I would dismiss the plaintiff’s action and enter judgment for the defendant with costs here and below.

DECISION

Appeal dismissed.

K. T.