IN RE ACKOM-MENSAH (DECD.); ACKOM-MENSAH vs. ABOSOMPEM AND ANOTHER [1973] 2 GLR 18

CASES REFERRED TO

(1) Avnet v. Avnet 204 Misc. 760, 124 N.Y.S. 2d 517 (Mun. Ct. of N.Y.C. 1953).

(2) In the Estate of Thomas (Decd.) (Practice Note) [1956] 1 W.L.R. 1516; 100 S.J. 929; [1956] 3 All E.R. 897n.

(3) Barnes v. Mayan (1871) Sar.F.C.L. 180.

(4) Swapim v. Ackuwa (1888) Sar. F.C.L. 191.

(5) Cole v. Cole (1898) 1 N.L.R. 15.

(6) Savage v. Macfoy (1909) 1 Ren. 504.

[p.21] of [1973] 2 GLR 18

NATURE OF PROCEEDINGS

APPLICATION by way of an originating summons for the declaration of the rights of a widow and children under Cap. 127,s.48. The facts are fully set out in the ruling.

COUNSEL

Nimo for the plaintiff.

Ampiah for the defendants.

JUDGMENT OF HAYFRON-BENJAMIN J.

It was an American judge, Chimera J., who said in Avnet v. Avnet 204 Misc. 760, 124 N.Y.S. 2d 517 (Mun. Ct. of N.Y.C. 1953) quoted by Joseph Goldstein and Jay Katz in The Family and the Law (New York, 1965), p.566 that:

“Ever since man came to abandon the normadic life, settled in communities and divided the land so that each had his own property, he began to select his women and from that day to this, marriage in some form or other has become an honoured institution bringing with it myriad questions, moral and legal.

One would think that, after so many centuries of marital experience, all of the rights of the parties to a marriage would have been determined by some judicial tribunal and that at least the question who is entitled to possession of the household furniture and effects will have been settled by now, so clearly that many of the popular misconceptions of the day will have been avoided.”

In Ghana with the proliferation of marriage systems and multiplicity and variety of tribal laws the confusion with respect to these rights is worse confounded. There is nothing to prevent a Ghanaian citizen ordinarily subject to customary law in his personal and property relations,embracing the Mohammedan religion and marrying another person in the registry under the Marriage Ordinance, Cap. 127 (1951 Rev.). In such a situation the question may well arise whether the rights, duties and obligations set out in the said Ordinance especially those relating to succession and the devolution of property on the death intestate of one spouse are meant to be exhaustive, or whether customary or religious obligations and rights not in conflict with these provisions can still subsist and be enforced.

In this case however we are fortunate that we are concerned with the rights arising under only two systems. The late Mr. Ackom-Mensah, though subject to customary law, was a devout Christian and one who feared God. His was a Christian marriage under the Ordinance, and the said marriage was blessed with six children. He died in the Lord on 20 April 1972 at the Korle Bu Teaching Hospital of the University of Ghana, Legon, and was survived by his wife and the said six infant children. Both Ackom-Mensah and his widow are Fantes from Komenda, a coastal village. In days not long past, Komenda was exclusively a fishing village, but the establishment of a sugar refinery by an organisation of which the deceased later became head, has diversified the economic activities of these villagers considerably. It is enough to note that there are now several sugar cane plantations and farms in the

[p.22] of [1973] 2 GLR 18 vicinity of the village, giving varied employment to persons whose parents were dedicated fishermen.

The deceased it would seem was of very humble birth like many equally distinguished Ghanaians. His undoubted ability, hard work and integrity enabled him to rise to the top of his profession. He lectured in accountancy at the University of Ghana, and at the time of his death was the Chief Executive of the Ghana Industrial Holding Corporation, a massive industrial and financial complex. Of his massive knowledge, there can be no doubt. He published learned articles and books on company law, accountancy and allied subjects. The widow is also very well educated.

The members of the deceased’s extended family are however less fortunate. They, especially the women among them, are largely illiterate. The sister of the deceased who is the customary successor and also the first defendant herein is a complete illiterate. The second defendant, the head of the deceased’s family, seems to be equally illiterate. As is usual in this type of case the mother of the deceased, who according to customary law is the founder of the family and the real successor to the deceased, and whose grandchildren are likely to suffer as a result of unnecessary litigation, is pushed into the background or off the scene altogether, and some relatives, usually uneducated or semi-educated persons, come forward to fan the flames of envy, greed and suspicion and to instigate the family to press claims (usually unfounded) to the harassment of the bereaved and already distressed widow and her children. The mother is pushed off the scene because usually and normally, she knows her own grandchildren; each of them would have been placed on her knees at birth or at the naming ceremony; one may be named after her. They may have spent their holidays with her, and she would be fond of them. The proverbial disharmony between the husband and the wife’s mother does not usually exist between the wife and the husband’s mother. Even where it exists, it does not usually drive the mother to wish hardship on her grandchildren. The fertile field for the instigation of envy is among the sisters, brothers, cousins and other relations of the deceased husband, especially where they have been less successful in life. These seem to regard the wife of the deceased as the source of all their woes. If only the deceased had not contracted the marriage under the Ordinance, he would have spent his money on them, and their lot would probably have been better than it turned out to be. In the lifetime of their relative, they cannot vent their spleen on his wife. The opportunity comes when he dies. The poor widow and her children are subjected to a vulgar and humiliating abuse; they are made to pay unreasonable and unjustifiable funeral dues, to incur other liabilities in respect of the funeral which can find no foundation in customary law; and after the funeral are harassed and driven to desperation by unnecessary litigation. Shakespeare’s Hamlet might well have included funeral custom in Ghana among those slings and arrows of outrageous fortune that help to make death itself a consumption devoutly to be wished.

[p.23] of [1973] 2 GLR 18

In this case the dramatis personae are all present: there are the illiterate relatives of a considerably successful man; there are the widow and the infant children under the Ordinance; the instigator is identified as one J.E. Annan an educated relative of the deceased, who is an education officer at Dunkwa-on-Offin, and who according to the widow has conspired with the members of the extended family. The stage is also set. The deceased died intestate leaving some properties which have been listed in the inventory of the administratrix. Every step she takes in the administration of the estate is being watched with hawk-like eyes. The most unfavourable construction is placed on every act or imagined omission. Where properties which the family thinks belong to the estate of the deceased does not appear in the inventory, the non-disclosure is taken as proof of bad faith. Refusal on whatever grounds to perform any “so-called custom” is taken as disrespect and as an affront to the family. In the circumstances, and hopefully to put an end to this constant harassment, the widow as administratrix has applied to the forum from where she obtained her authority as administratrix for guidance by way of originating summons. Before answering these questions it is proper to consider the position of the applicant as an administratrix.

The plaintiff in her affidavit accompanying the originating summons makes the point that the members of the family are clearly obstructing her in the performance of her duties as an administratrix. She states:

“(5). That since the letters of administration were granted to me, and I intended getting in the estate, the customary family of my late husband at Komenda have repeatedly obstructed my efforts to get in the said estate.

(6) That immediately after the death of my husband one J.E. Annan of Komenda, who is an education officer now stationed at Dunkwa-on-Offin and who is a distant relative of my late husband conspired with the Abusuafo and managed to seize and retain the keys to the locked doors of our matrimonial home (No.7/5, Komenda) from the caretaker, and thus refused me entry. It was through the intervention of the Komenda police that the keys were returned to me.

(7) That on or about 23 September 1972, I went down to Komenda to the said matrimonial home intending to sort out the property therein, but the defendants and some members of my late husband’s family prevented me from doing so.

(8) That on or about 28 October 1972, a meeting between the defendants and me, including counsel on both sides, was held in Accra. It was decided among other things that the defendants and the rest of their family should not obstruct my entering the matrimonial home.

(9) That on or about 5 November 1972, I went again to Komenda and attempted to gain entry into the said house, but the defendants led by the said J.E. Annan again obstructed my entry into the

[p.24] of [1973] 2 GLR 18 matrimonial home. They demanded that unless I performed certain customary rites they would not allow me even to enter the matrimonial home. There were threats and intimidations and I was forced to leave Komenda without entering the said house.

(10) That all these obstructions over the said house led to a near riot in Komenda and presently the house is under police guard under the instructions of the Central Regional Commissioner.”

The defendants deny these acts of obstruction and it is not necessary to take evidence on the issue. The plain duty of the applicant is to bring in the estate to be administered. In the performance of this duty she is an officer of the court. She can be compelled by the court to exhibit an inventory on the application of any person having an interest or even the appearance of an interest: see In the Estate of Thomas (Decd.) [1956] 1 W.L.R. 1516. If the administratrix has, as here, already filed an inventory, the court will entertain an objection to it. The person taking the objection files the objection verified by affidavit setting out the other properties belonging to the estate, which have not been exhibited, and or stating those which ought not to have been set out as they do not belong to the estate. If the administratrix by her answers to these objections admits that the assets or some of the assets originally set out in the inventory do not belong to the estate, the court may order the inventory to be amended accordingly. The English rule is however that the court will not permit witnesses to be examined in order to falsify the inventories, in other words, where the answers to the objections do not admit further assets or do not admit that assets already exhibited on the inventory do not belong to the estate, the court will not hear witnesses to establish these assets. The reason for this rule is that the requirement of the law is that the administrator must swear to the assets, and the court cannot compel the administrator to swear to something which she has twice denied, and which she does not admit.

In Ghana it is conceivable that where the letters of administration have been granted to the family or customary successor of the deceased the tendency would be to omit property on the ground that the said property was family property in the hands of the deceased. The court ought therefore to be vigilant to prevent these malpractices by visiting on the defaulting family heavy and substantial costs, where the widow and the children are compelled in such circumstances to bring separate proceedings to establish such assets. Moreover, such practice would deprive the revenue of the required estate duty.

On the other hand a grant to the widow or child of a deceased whose estate is governed by section 48 of the Marriage Ordinance, Cap.127 (1951 Rev.), would not create the same facilities for evasion. The widow and the children would be more interested in exhibiting a full inventory of all properties, as their share is dependent on their establishing that the properties are part of the estate of the deceased. Failure to establish this may well mean that the property, especially the real property, becomes part of the estate which by customary law cannot be affected by

[p.25] of [1973] 2 GLR 18 testamentary disposition, i.e. that it is either family or stool property in the hands of the deceased. It is however possible for the widow to set up joint ownership in some assets to keep them off the inventory. This is so because survivorship is recognised between joint tenants or joint owners of goods and chattels in possession or in right, and also of land and real property. Such a practice is likely to occur mostly in respect of the matrimonial home and furniture and other household articles.

In the present case, the administratrix, the widow of the deceased under the Marriage Ordinance has not exhibited the matrimonial home in the inventory. The courses open to the family are:

(a) If they are satisfied that the house was the self-acquired property of the deceased, built with his own resources without any contribution in cash or kind from the wife, then they are free to file objections by way of motion asking for the amendment of the inventory and an insertion therein of the said matrimonial home, if the administratrix admits that it was so built or acquired.

(b) If they are satisfied that the house was self-acquired in terms of (a) above, but yet the administratrix does not admit it, then they are free to bring an action for a declaration that it forms part of the estate of the deceased, and ought to be administered and distributed as part of the estate.

(c) If they are satisfied that the house was family property even in the lifetime of the deceased, e.g. having been part of the estate of a deceased member of the family which the deceased inherited under customary law, then to bring an action for a declaration that it is family property.

I am not sure whether a claim for recovery of possession can or ought to succeed in view of the rights of residence of the children: see Barnes v. Mayan (1871) Sar F.C.L. 180 and Swapim v. Ackuwa (1888) Sar. F.C.L. 191.

In this case the family have not adopted any of these courses: they have taken the law into their own hands. They must count themselves lucky that the administratrix has not applied for more drastic remedies. She has contented herself by asking for the determination of the following questions:

“Whether upon the true construction of section 48 of the Marriage Ordinance, Cap. 127 (1951 Rev.):

(1) The beneficial interests thereby conferred only vest in the beneficiaries therein mentioned upon any condition precedent that the respective beneficiaries have carried out customary funeral rites in respect of the intestate therein mentioned.

(2) The beneficial interests of the Ordinance family of the intestate (comprising the surviving spouse and children of the Ordinance marriage) on the one hand and of the native customary family of an intestate of matrilineal status on the other hand are concurrent

[p.26] of [1973] 2 GLR 18 and extend to every part of the estate of the intestate.

(3). If the answer to question (2) is in the affirmative, the Ordinance family of the intestate (defined as aforesaid) has any, and if so what preferential right to retain the matrimonial home of the intestate and the furniture and household goods and equipment thereof as against the customary family of the intestate.

(4) Apart from the matrimonial home, any other part of the intestate’s estate is subject to a preferential right of retainer by the Ordinance family of the intestate, and the limits of such preferential right (if any).”

I shall consider these questions seriatim.

The courts in Ghana have generally not followed the famous Nigerian cases of Cole v. Cole (1898) 1 N.L.R. 15 and Savage v. Macfoy (1909) 1 Ren. 504. In the first case Brandford Griffith J. ( as he then was) said at p. 22 that “a Christian marriage clothes the parties to such marriage and their offspring with a status unknown to native law.” Admittedly there are statutory provisions, e.g. sections 42 and 44 of the Marriage Ordinance which expressly debar the enjoyment of certain customary rights or powers by persons married under the Ordinance. The question that arises however is whether persons married under the Ordinance may be impliedly debarred from enjoying rights or from having obligations imposed on them, on the ground that such obligations are incompatible with the nature and obligations of monogamous marriage. In Ghana there is nothing to stop an ardent Christian from marrying according to customary law, and conversely, there is nothing to stop a pagan from contracting marriage under the Ordinance even though such a ceremony is not likely to take place in church. Christianity is not part of the law of Ghana and customary law is not now based on paganism or heathenism. Sarbah in his Fanti Customary Laws (3rd ed.), p. 15 at the turn of the century qualified this statement that, “As a general rule, the right or property of a Fanti is in no way forfeited, diminished, impaired, or affected by change of religious opinions,” by the further statement that:

“But where the persons entitled to the immediate succession of an ancestral property do not acquiesce in, and the dependants raise an objection to, a change of religious opinion or belief, an absolute bar is thus raised to succession to stool property. Where a person, head of the family, changes his religious belief and becomes a Christian, he thereby becomes liable to be removed.”

In those days it seems that a person converted to Christianity was likely to view certain customary ceremonies as pagan and refuse to perform them. Such persons were removed before they had the opportunity to create trouble by refusing to perform the necessary ceremonies. In these more permissive days, there are many Christians who do not see anything incompatible between the sacrament and the pouring of customary libations or the ceremonial slaughter of cattle or sheep. They stay

[p.27] of [1973] 2 GLR 18 on their stools and perform their customary functions. They are liable however to be removed if they neglect their duties without justifiable excuse, and Christian objections are not considered sufficient excuse. It is not necessary here to consider whether or not with the formulation and declaration of the fundamental rights of the Ghanaian, a conscientious objection to the performance of such ritual would amount to sufficient excuse.

The position therefore is that a successor who refuses to perform the customary rites necessarily required of a successor renders himself liable to be removed, except he can establish sufficient cause or excuse. It is not any fanciful rite that is required to be performed on pain of removal; the customary rite must be so essential that its non-performance would be incompatible with the office of successor. A sober realisation of and a due acknowledgement of the debt we owe to our ancestors for what they have left us and a conscientious determination and effort to protect and advance the interest of their dependants who constitute the family of which the successor is the representative are more essential and necessary in law than the pouring of libation, the slaughter of sheep and cattle and the other frivolous outward manifestations of levity. In the simpler societies of earlier times, the pouring of libation, etc. were evidence of the acknowledgement of the presence of our ancestors. Such acknowledgment can now be established by other means; and in any proceedings for removal of a successor mere proof of refusal to pour libation should not be enough; there should be proof that the successor does not acknowledge any debt to the ancestors of the family.

In the present case the applicant is in a more powerful position. She does not owe her appointment as an administratrix to customary law. She is an officer of the court, and she is a beneficiary by provisions of statute. Under customary law a wife is expected to perform certain ceremonies at the funeral of her husband. Non-performance by a widow under customary law might be bar to re-marriage, or carry other sanctions. No sanctions are available where the marriage is under the Ordinance. The widow under the Ordinance may be expected to but is not compellable to perform the customary ceremonies; apart from those such as funeral contribution which can be recovered as a debt by action. The answer to the first question is therefore in the negative.

The second question is not clear. Section 48 of the Ordinance makes it quite clear that the whole estate is to be held on a statutory trust for sale and two-thirds thereof devolves in accordance with the English Statute of Distribution, 1670 (22 & 23 Cha. 2, c.10), and one-third according to customary law. Where the beneficiaries elect not to convert the estate, the personal representatives, subject to the rights of preference that will be discussed hereunder, have a wide discretion as to which portion to appropriate to the two-thirds share. The answer to the second question is therefore in the affirmative.

[p.28] of [1973] 2 GLR 18

In this case, the matrimonial home has not been admitted as forming part of the estate of the deceased. It may well have been the joint property of the deceased and his widow or the deceased might have built it as a gift for his children. The family have admitted that it was not family property in the deceased’s lifetime. The third question therefore does not strictly arise. But if it is assumed that the matrimonial home belonged exclusively to the deceased as the defendants seem to say, the answer to the third question would be in the affirmative. Even under customary law, the children of the deceased are entitled to live in their father’s house during good behaviour. I do not see how the Ordinance can be said to have deprived them of this right. The widow and children take two-thirds of the estate, and if the one-third which devolves in accordance with customary law includes the matrimonial home, the children’s right to reside therein can be enforced. It seems to me therefore that the widow and the children are preferentially entitled to keep the matrimonial home as part of their share of the estate. Instances may be where the only assets in the estate comprise the matrimonial home. In such cases, the interest of the family is largely illusory. The widow and the children would be entitled to the legal estate in two-thirds of the house, and the children would be entitled to stay in the whole house. It would be almost impossible for the family to establish bad behaviour in the circumstances. The answer to the third question will therefore be in the affirmative.

There are certain items of property such as the father’s guns, tools of trade etc. which even under customary law belong to the children exclusively. These go to the children and do not form part of the two-thirds share. The answer to the fourth question must also be in the affirmative.

This application would have been unnecessary if the defendants had shown the slightest respect or regard for the position of the applicant as an administratrix. In the circumstances they shall bear the costs of this application which I assess at ¢300.00.

DECISION

Declaration accordingly.

S. O.