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JELR 83995 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]



Coussey, J.A. Since this appeal was commenced the plaintiff co-defendant have died. There have been substituted for them, by consent, Emma Ayorkor for the original plaintiff and Emelia Ayiku Amarfio in place of the original co-defendant.

The original parties are hereinafter referred to as plaintiff, defendant and co-defendant. The parties are Gas and the issues, which relate to headship and inheritance, are to be determined by such evidence as the record affords and by decided cases on Ga customary law.

The learned trial Judge in the and Court, Accra, having put certain points for determination answered them follows:-

(a) That the plaintiff was the properly constituted head of the Adaku- Mansah family.

(b) That the defendant was entitled to appoint and had appointed the co-defendant head of what was termed Ayiku’s family, and that he was accordingly head of that family.

(c) That the property in dispute was Ayiku's self-acquired property.

(d) That the defendant is a child of Ayiku by a Ga six-cloth marriage.

(e) That upon the death of Ayiku the property in dispute became and now is, the family property of the Adaku-Mansah family.

(f) That the defendant, as the child of a six-cloth marriage, had the right, according to Ga customary law, to reside in his father's Ayiku's house being given such accommodation therein as is reasonable.

(g) That apart from that right he has no interest in the property,

(h) That the defendant had no right whatsoever to demand rents from tenants in the house nor to demolish a wooden structure.

This wooden structure had been erected by Babie Annan, an inmate of the house and daughter of Ayiku's full sister Amarley, and therefore a member of the family, with the permission of the plaintiff. The defendant and co-defendant appeal against these findings and their grounds of appeal may be conveniently set out as follows:-

(a) The Court having found that the property was the self-acquired property f Ayiku and having further found that the co-defendant was the head of the Ayiku family as distinct from the wider Adaku-Mansah family, should have declared the property to be the property of the Ayiku family.

(b) The Court was wrong in declaring that the property in question was the property of the wider Adaku-Mansah family.

(c) The Court was wrong in the view it expressed of the interest of the defendant, a child of a six-cloth marriage, in his deceased father's estate.

The facts are that the house in question was the self-acquired property of Ayiku alias James Amah Fio. Ayiku died in 1914. His uterine brother Amartei predeceased him. Ayiku was member of a family of which his mother's the brother Akotey was the undoubted head during his lifetime. The plaintiff elected to succeed Akotey as head of the family about 1941. A few years before 1941, the defendant left his mother's house and was given accommodation, consisting of one room, in the house in question. In June, 1950, the defendant wrote on behalf of himself and the children of Ayiku claiming that the documents and plan of the house be handed over to them and he warned tenants not to pay rents to the plaintiff's representative, claiming that he was entitled to such rents. As a further act of alleged ownership the defendant demolished Babie Annan's structure on the property ill October, 1950.

The plaintiff instituted his action against the defendant on the 18th October, in the Ga Native Court “ B2” . It was transferred to the Land Court where on the application of the defendant on the 16th September, 1952, the defendant was joined. The defendant says the children of Ayiku were being rived of their rights and they therefore on 1st April, 1952, appointed the co-defendant head of their immediate family, the Ayiku family, to look after their rights.

Mr. Akufo Addo, for the appellant, sought to establish, that the larger family, i.e. the Adaku-Mansah family had no interest in the property until the immediate family of Ayiku was exhausted and, therefore, the plaintiff had no right to interfere with the management of the property or to maintain the action.

Taking the first part of this proposition, the first inquiry must be, to what family did Ayiku belong during his lifetime. The answer is that he belonged to his mother's family. There is in this connection a saying that no woman stands alone, for behind her stands a united family bound by the tie of blood. Ayiku's mother’s family was admittedly the Adaku-Mansah family. That family persists so long as the direct female descendants last, but it is immediately lost ill the children of any male.

The Adaku-Mansah family did not cease to exist upon the death of Ayiku. It continued with Akotey, the maternal brother of Ayiku's mother Koshie, as its head. Upon Ayiku's death, his self-acquired property fell to this family united by the tie of blood traceable, as the evidence shows, through the female descendants of Adaku Mansah, the maternal grandmother of Koshie. It is unnecessary in this appeal to decide what the respective interests of the descendants are. It is sufficient to say that each member of the family now has an interest in that property and its occupation is governed according to the necessities of the various members and the limits of the property. The head, who is the administrator of the family property and the arbitrator of internal disputes, would decide in conjunction with other principal members of the family who should occupy the property.

To deal with the second part of Mr. AkufoAddo’s proposition, it is clear what the so-called Ayiku family of which the co-defendant was appointed head comprises.

The defendant said in evidence:-

“I know the children are not part of their father's family but such children, if deprived of their rights, may appoint a head of family to look ,after them. We appointed the co-defendant for that purpose.”

Considering that Larteley Ashong, the maternal niece of Ayiku, and Babie Annan, the daughter of Densuah, another maternal niece, both of whom are living in the house and who testify that they took part in the election of the plaintiff, Ocquaye, as head of the family, in 1941, I am of opinion that the finding of the learned judge that the co-defendant is head of the Ayiku family must be qualified to mean a head appointed by the children of the late Ayiku for the purpose of supporting the defendants' claim in the suit to some title in the property. In my view therefore, the plaintiff was the one and only head entitled to manage and control the property self-acquired by Ayiku, but which upon his 7; death had become family property and that the action was properly brought by him to ward off the defendants' claims. Those claims are not only that the defendant has a right to live in the house in dispute, which is not denied if accommodation is available; not on that he has a right of support out of the “property, a right which with qualification is laid down by decided cases, but that he has a right of title in the property vested in him to the extent that he may claim to collect and appropriate rents from tenants and to demand the allocation to himself of a specific portion of the property involving the partition thereof so that he may be satisfied of his right of support and even a right to demolish buildings. The answers to these claims and;. indeed, to the other contentions of the defendant are contained, I think, in the six definitive conclusions of this , Court stated in Mary Vanderpuye and Others v. Mary Akua Botchway (1), which are set out hereunder:-

“(1) In the case of intestacy the self-acquired property of the deceased vests immediately on his death in the family as family property.

“(2) The native customary law is that only the children of a Ga six-cloth marriage are entitled under Ga custom to a share of the self-acquired property of their deceased father.

“(3) That share has been termed an interest but it amounts only to a right of support out of the estate.

“(4) The exact share or interest which the child gets is not laid down. It depends upon the decision of the head of the family assisted by other members of the family. If he thinks he has been unjustly treated, a child has the right to say so.

“(5) The members of a family are traced through the maternal ancestor, and the family is the unit for the purpose of ownership of property. All the members have a joint interest in the family property which is indivisible.

“(6) Being indivisible, there can be no apportionment in the sense of the alienation of a particular part of the estate to the children which would have the effect of severing the family property unless the parties agree to that course”.

The defendant admits that he is not a member of his father's uterine family. The contention that he is entitled to demand the allocation and vesting in him a specific portion of his father's self-acquired property involves a power to alienate it. Such vesting and alienation outside the limits of the family group Ayiku would be contrary to every concept of the customary law, the object of which is to safeguard family property so that members of the family born and born may not be reduced to poverty.

Towards the end of his argument, Mr. Akufo Addo conceded that the defendant exceeded his rights as a son of Ayiku as against the Ayiku family but that was justified in protecting the property as against the head of the Adaku Mansah family. The answer is that as far as the property is concerned and the evidence can be accepted, there are not two distinct families with two distinct heads. The plaintiff, Ocquaye, as has been held already, had a right and a duty protect the property against the defendant however galling it may appear to defendant that his father's property had fallen to the family.

I would dismiss the appeal with costs.

Foster-Sutton, P. I concur. Abbott, J. I concur.

Appeal dismissed.

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