pg 216
Appeal Court, 24th Dec.,
1941.
Family
Property-Houses built largely at
expense of one of the
brothers-Slight contribution
from other Members of family .
Properties in name of the three
brothers jointly--Can surving
brother make valid testamentary
disposition thereof
Applicability of English law or
Fanti customary law.
[Here one of three brothers was
employed by a commercial firm in
French Ivory Coast. He remitwd
money and materials to his
other' brothers who supervised
the building wherein the members
of the fall helped in labour and
materials. The house was
occupied b~' members the family
later the three brothers built
another house again with
assistance of the family. From
the profits of .these venture's
four of properties were
purchased. The properties stood
in the joint names of three
brothers. All three brothers are
now deceased and plaintiff as
II of her family claims the
properties as family property.
The defend contended that·
Joseph the .last survivor of the
joint holding could ma~ valid
disposition of these properties,
and this contention was upheld
by Provincial Commissioner's
Court.]
Held: The evidence adduced on
behalf of defendants was not
sufficiente to rebut the strong
presumption in favour of family
property which is rule among
Fanti-speaking people. Native
law and custom must go, the
case.
Appeal allowed.
Cases quoted:-
'George Hagan and others v.
Araba Tanuah:
5 W'AC.A.C
35.
Fawcett v. Odmntten,
Full Court Reports 1926/29 p. :
K. A. Korsah
for Appellant.
D. M. Abadoo
(with him Dr. J. W. de Graft
Johnson) Respondents.
The following joint judgment was
delivered:-
KINGDON, C. J., NIGERIA,
PETRIDES, C. J., GOLD COAST AND
BANNERMAN,. J.
This is an appeal from the
Provincial Commissioner's Court,
Cape Coast, dated 10th March,
1941, whereby the Deputy
Provincial Commissioner of the
Central Province gave judgment
in favour of defendants
and
On the 21st September, 1940, the
plaintiff, Araba Tsetsewa, who
deseribes herself as head of her
family, filed a writ ill the J.
Provincial Commissioner's Court,
Cape Coast, for a declaration of
title in respect of six separate
properties situate at Cape Coast
In the Central Province of the
Gold Coast Colony. Araba
Tsetsewa brought this action on
behalf of herself and all other
members of her family. It is
common ground that all the
parties in this case are Fantis
and although the
defendants-respondents do not
admit that Araba Tsetsewa is the
head of her family, it is clear
from the proceedings before the
Provincial Commissioner's Court
that she is the recognized head
of her family.
In his Will, Joseph mentions her
as his cousin and the head of
the family. In her evidence she
states that she is head of the
family duly appointed as such by
all the members of the family
after the death of Joseph. In
this case no male member of the
Acquah family has come forward
to represent the interest of the
family, and the Courts of this
country have always recognized
the right of the leading female
member of the family to sue and
be sued in respect of family
property in the absence of any
male head. One case only may be
mentioned in this connexion. In
the case of
George Hagan and others v. Araba
Tanuah,
which came before this Court and
which subsequently went before
the Privy Council, the leading
female member represented the
family. We are satisfied that
Araba Tsetsewa is the present
head of the family and she can
represent the family in this
case.
The plaintiff's case is that the
six properties enumerated in her
writ of summons form part of the
property of her family, of which
the three brothers, namely,
Charles Winslow Acquah, John
Mensah Acquah and Joseph Dobson
Acquah in turn preceded her as
head. Araba Tsetsewa claims (and
this is not disputed by the
respondents) that her mother and
the mother of Charles Winslow
Acquah, John Mensah Acquah and
Joseph Dobson Acquah were
sisters. (Hereafter the three
brothers will be referred to as
Charles, John and Joseph).
Charles and Joseph were literate
and John was illiterate.
Charles who was the eldest of
the three brothers was employed
by Messrs F.
& A. Swanzy, TJimited as Factor
and afterwards a;:
Agent from 187 4 and was
stationed at various places on'
the Frenell Ivory Coast. About
the year 1888, Charles
instructed one Ellis
pg 2178f
Cape Coast to engage workmen in
order to build a house for him
(Charles) at Cape Coast. The
house was completed and it is
now known as the northern wing
of Alepe House.
In 1890 Charles returned to Cape
Coast on leave; he was
dissatisfied with the building
because it contained only three
bedrooms and did not provide
sufficient accommodation for
himself, wife and children, and
members of the family. Charles
gave instructions to his
brothers John and Joseph to
purchase adjacent land in order
that the building might be
extended. Charles returned to
the Ivory Coast during the same
year and remitted money and
shipped building materials to
Cape Coast for the construction
of two more wings.
From 1890 up to 1914 John and
Joseph acted as the agents for
Charles at Cape Coast and they
supervised the building of the
two wings of Alepe House. The
members of the family helped
towards the building of the two
wings and made contributions in
material. After the completion
of the building several members
of the family lived in Alepe
House and they have continued to
live there up to the present.
About the year 1900 the three
brothers built another house at
Cape Coast known as Acquah
Hotel. This house was built with
the assistance of the members of
the family: they carried stones
sand, swish, water, timber and
other building materials.
With regard to the other four
properties the plaintiff
contends that they are family
property in as much as they were
purchased out of the profits
from the joint venture of Alepe
House and Acquah's Hotel. In
other words Tsetsewa contends
that inasmuch as all the three
brothers have died she, as the
head of the family, is entitled
to claim those properties on
behalf of herself and the other
members of the family in view of
the fact that they are family
properties.
The case for the defendants is
that all the properties
mentioned in the plaintiff's
writ of summons belonged to
Charles, John and Joseph as
joint owners and that no member
of the family helped or
contributed anything towards the
buildings or towards the
purchase of the lands. They
(defendants) further contend
that it was not the intention of
the three brothers that the
members of their family should
have any interest in the
properties. They however admit
in paragraph 6 of their
statement of defence that
certain members of the family
lived in Alepe House" by the
leave, licence and courtesy of
the three brothers ".
The substantial questions before
this Court are:
(a)
Are the properties family
properties?
(b)
Whether Joseph, as the last
surviving brother, could make
valid testamentary dispositions
of the properties P
(c)
Whether English law or whether
Fanti customary la", governs the
determination of the case?
pg 219
Before we deal with these
questions it is necessary to
state
~ba that Charles, throughout his
life, showed deep interest not
only in' Tsetsewa the welfare of
his brothers John and Joseph but
also in all the other members of
his family. In the various
letters written by Charles from
the Ivory Coast to his brothers
in Cape Coast it is clear that
he treated the family with
kindness and generosity, and was
always anxious to identify the
interest of the family with the
properties which he, John and
Joseph acquired. Charles did all
he could to make his family
happy and prosperous and he made
substantial contributions
towards the purchase of all the
properties in question.
Before the court of the
Provincial Commissioner there
was evidence to show that the
family have definite interest in
Alepe House and Acquah's Hotel,
and it makes no difference that
the lands on which these houses
were built were jointly bought
by the three brothers. It is
significant that in his Will,
Joseph does not dispose of any
of the real properties involved
in this action. All he has done
is to apportion the rents
accruing from the properties to
v.arious persons, including the
plaintiff and other members of
the family. This suggests that
Joseph knew that the properties
were family properties or at
least that the family have some
interest in them and he could
not dispose of them without
recognizing that interest.
At pages
79-81 of Redwar's comments on
the" Gold Coast Ordinances, the
learned Author says:-
"According to Native Law there
is a presumption in favour of
all land being jointly held by a
family or other " community,
which presumption may, however,
be rebutted ., by evidence that
it has been acquired by an
individual " through his own
personal exertions in trade or
otherwise,
" without' any assistance
from the community of whom he is
" a member, or by gift to
the individual apart from the
rest " of the, community.
Absolute and exclusive ownership
of land ". by one individual is
still comparatively rare,'
although " individual property
will probably increase as time
goes on, " and European notions
get a firmer hold of educated
natives. " Joint family or stool
property is still, however, the
rule, and individual
-property the exception,
as 'M.r Sar'bahsays in his "work
on 'Fanti customary law' .
Nevertheless, as
individual properly does in fact
exist, it is desirable to "
consider the position of the
individual owner. It is clear
"that although the land of a
native may be individual "
property, he is
absolute owner
of it, and has not an
estate
" in fee simple, inasmuch 'as no
land owned by natives .is held,
" in strictness, by Tenurlt, as
in England. Of course, If he be
"married under the provisions of
the Marriage Ordinance. "1884,
the change of legal status
brought about by such " marriage
affects his positions as regards
the devolution of his
pg 220
property upon his death,
a matter which has been
considered "in a previous
article. It is also clear. that
he has an " unfettered right to
dispose of his individual
property, either " du'ring his
lifetime, or by Will. The native
law, however, " while
recognizing individual property,
does not regard it with " favour,
and upon the individual owner's
death
intestate,
it is held that the property
then becomes impressed with the.
" character of J oint Family
Property, and devolves upon his
"heir by Native Custom as the'
head of the Family "community.
Where, however, the individual
owner dies " leaving a Will, the
heir by native custom is bound
by the " dispositions of the
Will, and the recipients of the
testator'8 " bounty can enforce
their rights even in the Native
Tribunals, " the Native Law on
this point being now fully
established/'
The defendants' main contention
is that Charles, John and
Joseph jointly acquired all the
properties in dispute, so that
the properties were all the
joint properties of the three
and upon the death of Charles,
the properties became- the joint
property of John and Joseph, and
upon the death of John, the
properties became solely vested
in Joseph as the last surviving
brother and he could dispose of
them by his Will. In support of
this contention the case of
Fawcett v. Odamtten,
reported at pages 339-343 of
Full Court Reports, 1926·29 was
cited. We have examined this
report and we are of opinion
that the principles enunciated
in that. case do not apply in
the present case for these
reasons. In that case, the six
.purchasers were not brothers,'
and the question whether they
wert! bound by Fanti customary
law was not mentioned. In the
present case, Charles, John and
Joseph were brothers and the
Fanti law and custom applicable
to joint acquisition of property
by more than one member of the
family is undoubted, namely that
such property becomes family
property.
Sarbah at pages
88 and 89 of his" Fanti
customary laws (2nd Edition)
thus defines "Family ~ property"
and "Self-acquired property " :-
• " Family property
is any movable or immovable
thing
" acquired-
" (i) By the joint labour of the
members of a family. " One of
the most common instances of
this is the building of " a
house by the members of a
family; or
" (ii) By the contributions from
two or more members of
" one's family ..
. "Property is designated
self-acquired or private,_ where
it "is acquired by a person by
means of his own personal
"exertions, without any
unremunerated help or assistance
" from any member of his family;
or without any advance or "
contribution from the ancestral
or family possessions of his "
family".
