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ADINYIRA (MRS), JSC:-
This appeal is in respect of the
Plaintiffs/Appellants/Appellants
[Appellants] in original suit
no. AL 105/2007 which was
consolidated with suit no P
96/2007 and in respect of the
same property, Essie Lodge/Cedar
House otherwise known as House
No. F 889/2 Cantonments Road,
Accra, or Koala Shopping Centre.
The property was the self
acquired property of one Robert
Wuta- Ofei who died intestate in
1970. He was survived by his
wife Barbara Wuta Ofei and four
children, Roberta, Vida, Percy
and the 1st
Respondent. The Plaintiffs in
both suits at the High Court are
the grandchildren of Robert and
Barbara Wuta Ofei claiming the
property as beneficiaries of the
estate of their mother Roberta
Wuta- Ofei.
The reliefs sought in both cases
are identical, that is, the
setting aside of the sale of the
said property by the 1st
Respondent to the 2nd
Respondent, who was the sitting
tenant for decades, on the basis
that they were not consulted
before the sale as they also had
an interest in same, and an
order of perpetual injunction
retraining the Respondents from
dealing with the property.
The 1st Respondent
claimed the right to sell the
property as the head of family,
administrator of the estate and
the only surviving child of the
parents.
The Court of Appeal affirmed the
decision of the High Court that
upon the death intestate of
Wuta–Ofei, a Ga from Osu,
succession to his self acquired
property became family property
and by Osu customary law which
is patrilineal it is his
children who inherited him. The
Court held further that all the
four children of Wuta Ofei
inherited the property, but the
female children had only life
interest in the estate. The
Court further held that the 1st
Respondent being the head of
family is clothed with authority
to deal with the property.
At the trial the Appellants
elected not to lead evidence and
they relied on the evidence of
Robert Odamtten, the Plaintiff
in suit no P96/2007 and we would
therefore, where appropriate,
refer to his evidence, in
determining the appeal.
The grounds of appeal filed are:
1.
That the judgment is against the
weight of evidence.
2.
That the Court of Appeal erred
in holding that despite the
interstate Succession Law (PNDCL
111) by the customary law of Gas
(Osu), female children of a
deceased original owner of
property, who inherit the
property cannot pass on their
interest to their children
(grand children of the deceased)
thus the property reverts to the
family of the deceased original
owner.
3.
Additional ground of Appeal may
be filed upon receipt of a
certified true copy of the
proceedings.
No additional ground of appeal
was however filed.
Ground 1
Judgment is against the weight
of evidence
Counsel canvassed 2 main issues
under this head, namely,
estoppel and facts not
considered by the Court of
Appeal.
Before the Court of Appeal the
main issues that arose for
determination were; the interest
of a female child in the
intestate estate of her father
under Osu Customary law and the
Appellants’ capacity to initiate
this action.
The Court of Appeal in
determining these issues held
that:
“As rightly noted by both
Counsels for the appellant and
respondents, the self-acquired
property of Robert Wuta-Offei
became family property upon his
death intestate. Robert
Wuta-Offei is a Ga man from
Osu. So the question is who are
members of his family for
purposes of inheritance? By the
Customary Law of the people of
Osu, inheritance is
patrilineal. So in the instant
case, the children of Robert
Wuta-Offei succeeded to his
self-acquired property. The
appellant is a son of a daughter
of Robert Wuta-Offei and is
claiming through her [sic]
mother. Being patrilineal
system of inheritance, the
interest of the appellant’s
mother in the disputed property
was limited to the interest she
held jointly with her brothers
and sisters for life. Thus being
a grandchild in a patrilineal
area, he is not a principal
member of the deceased’s family
whose consent is needed before
the disputed property could be
alienated. See the case of
YAWOGA VS YAWOGA & ANOR. 3
[WALR] 309, 310, holding
(ii) thereof, where Ollenu J.
[as he then was] held that:
“Rank within a patrilineal
family is determined by relative
proximity in consanguinity to
the founder of the family. The
principal members of the family
of a deceased person are all
those surviving members of the
class which is closest in
consanguinity to the deceased,
but so that on the death of a
member of this class his rank as
a principal member devolves upon
his eldest child. Thus, a
grandchild of a deceased person
is not, in patrilineal areas, a
principal member of the
deceased’s family [our
emphasis] unless he occupied
this position in place of his
deceased parent or unless he has
been accorded the position of a
principal by reason of his
achievements or services to the
family.”
On the issue of Estoppel
Martin Kpebu, Counsel for the
appellants submits that this
finding by the Court of Appeal
was not borne out of the
evidence, as there was
“unchallenged evidence accepted
by both parties that all the
parties to the suit had joint
ownership even after the death
of Robert(sic) Odamtten in
1997.” He argues that the 1st
and 2nd Respondents
had signed Exhibit C, a tenancy
agreement, letting out the
property to the 2nd
respondent; and based on the
fact that the parties have
shared revenue from the property
for all these years; he urged us
to hold that the 1st
and 2nd Respondents
are caught by estoppel by
conduct, estoppel by deed and
estoppel by rem judicata.
Counsel for the Appellants
submits further that the Court
of Appeal failed to consider the
fact that the 1st
Respondent unsuccessfully sought
the consent of Robert Odamtten
to sell the property and also
the fact that Lawyer Addo Atuah
was instructed to give USD
39,035.09 of part of the
proceeds of the sale to him to
be shared with his siblings;
which facts Counsel submits were
unequivocal recognition of the
Appellants’ interest in the
property.
Mr. Addo Atuah, Counsel for the
1st respondent,
responds that the contents of
Exhibit C cannot change the
customary position in respect of
this matter and cannot override
the legal status of the 1st
respondent, firstly, as the sole
surviving son and beneficiary of
his father’s estate, secondly,
as the head of family of the
Wuta Ofei family and thirdly,
his capacity to dispose of the
property without the consent and
approval of his nephew and
nieces i.e. the Appellants.
Contrary to the submissions by
Counsel for the Appellants, we
are of the opinion that the
Court of Appeal stated the true
position of customary law and
practice of the devolution of
property in a patrilineal system
not only in Osu, but
predominantly in other parts of
Ga, Ewe and Guan communities;
which position is backed by
judicial precedents and learned
pronouncements on patrilineal
form of inheritance by Justice
Ollenu in his book Testate
and Intestate Succession in
Ghana ; and Professor
Justice Kludze in his
books, Modern Law of
Succession in Ghana, 2015
Edition and Ewe Law of
Property.
On the issue of Exhibit C
Exhibit C was a tenancy
agreement between the 1st
respondent and the
representatives of the
Appellants and a daughter of
Percy Wuta Ofei, all as the
lessors on one hand and the 2nd
Respondent as the lessee on the
other hand.
Counsel for the Appellants
submits that prior to Exhibit C;
the property had long been
leased to Kwatson Impex Ltd, a
company close to the 2nd
Respondent. As such the 2nd
Respondent had always known that
it was a family property.
Besides the 2nd
Respondent was a party to
Exhibit C and was thus caught by
estoppel by conduct and deed.
The antecedent of Exhibit C was
that Roberta Wuta Ofei purported
to devise the entire property in
her will to her children and the
1st Appellant issued
a writ to challenge the devise.
In a bid to settle the dispute
in relation to the property a
committee was formed to manage
the property. There was evidence
that the revenue from the estate
was shared equally between the
lessors.
However we don’t think this
arrangement changed the family
nature of the property and the
law applicable to the management
of family property which under
customary law is by the head of
family, which in this case was
the 1st Respondent
and who happened to be the sole
beneficiary survivor of Wuta
Ofei as well. Furthermore the
sharing of the proceeds of the
sale with the Appellants was in
keeping with the family’s
arrangement in the sharing of
revenue from the property and
also showed the goodwill and
benevolence of the 1st
Respondent towards his nephews
and nieces. We therefore hold
that, the Respondents are not
caught by estoppel by conduct
and deed, Exhibit C
notwithstanding.
On the issue of 1st
Respondent’s capacity to sell
the property
Counsel for the Appellants
submits that as co-owners of the
said property, the 1st
Respondent lacked capacity to
sell the house without their
knowledge and consent.
We do not find any merit in the
claim by the Appellants that the
sale was without their knowledge
and consent as there was ample
evidence to show that the
Appellants led by Robert
Odamtten wanted to sell the
property to the 2nd
Respondent who had been the
sitting tenants for decades
behind 1st
Respondent’s back. The 1st
Respondent wrote Exhibit 5, to
the 2nd Respondent
complaining of his dealings with
his nephews and nieces in the
negotiations for the sale house
without him. The 1st
Respondent then went for letters
of administration in respect of
his late father’s estate; which
in our opinion was unnecessary,
and sold the property to the 2nd
Respondent.
In any event Robert Odamtten
admitted in evidence that he
agreed to the sale and also that
he took various sums of monies
from the 2nd
Respondent in order to persuade
his siblings to agree to the
sale. Exhibits 1, 2, 3, and 4
are letters and a receipt by
Robert Odamtten to the 2nd
Respondent on his demands for
monies and promises to convince
the Appellants. In Exhibit 4,
Robert Odamtten wrote he
consents to the sale provided
the price was right. During
cross-examination, he said he
was not complaining about the
price, except the way the sale
took place. Rosalyn Naa Adobea
Jopper (DW1) a daughter of Percy
Wuta Ofei also said she
consented to the sale.
From the foregoing we hold that
the sale of the said property by
the 1st Respondent to
the 2nd Respondent to
be valid. Accordingly the appeal
on this ground fails.
Ground 2
That the Court of Appeal erred
in holding that despite the
interstate Succession Law (PNDCL
111) by the customary law of Gas
(Osu), female children of a
deceased original owner of
property, who inherit the
property cannot pass on their
interest to their children
(grand children of the deceased)
thus the property reverts to the
family of the deceased original
owner
Counsel for the Appellants
pitches his argument on the
decisive date of the devolution
of Wuta Ofei’s property from the
dates that Roberta and Vida Ofei
respectively died at a time
PNDCL 111 had already come into
force.
The flaw in Counsel’s argument
is that PNDCL 111 is not
retrospective and did not affect
an estate that had already been
distributed according to the
personal law of succession of
the intestate. In this case, the
property was the self acquired
property of Robert Wuta -Ofei
who died intestate in 1970 and
his wife Barbara Wuta- Ofei
obtained letters of
administration and administered
the estate before she died in
1976. The 1st
Respondent and his siblings
including the mother of the
Appellants were the
beneficiaries of the said
estate. The patrilineal system
of inheritance prior to PNDCL
111 traces the line of
succession through the male line
and property even if inherited
by a female reverts to the
paternal family after her death.
The rational is that children
born to a woman inherit
properties belonging to their
father and it is through their
father’s line that they can lay
claims to such properties.
Counsel submits further that “it
would be the height of
discrimination if the alleged
restriction on a female
inheriting her father’s property
has only a life interest in same
existed as a rule of customary
law. Article 17 of the
Constitution (1992) prohibits
discrimination as such that
customary law, if any, ought to
be struck down…”
On the facts of the case the
Appellants as grandchildren were
not discriminated against as
they continued to have a share
of the revenue from the property
proportionately with the 1st
Respondent and DW1. The appeal
fails on this ground.
Comment
PNDCL 111 introduced a unified
system of intestate succession
in Ghana, irrespective of the
fact that the deceased came from
a matrilineal or a patrilineal
family, or was married under the
Marriage Ordinance, Cap 127, or
under the Marriage of
Mohammedans Ordinance, Cap 129.
The issue of constitutionality,
posed by Counsel may not be
relevant in post PNDCL 111 in
respect of one house left by an
intestate whereby under the
provisions of section 4(a) a
female child shares one house
left by a deceased father with
the her mother and male siblings
equally as tenants in common
under section 4 (a) irrespective
of the personal law of the
intestate. As such a female
child‘s interest in her father’s
house is indefeasible which she
can alienate inter vivos, or by
will or devolve unto her
children upon her death
intestate.
However, PNDCL 111 did not
totally eliminate the
application of customary law, as
the respective customary law
continues to be relevant because
of sections 5 (1) (d), 6 (c), 7
and 8 of the law which specified
fractions of the residue of the
estate to be distributed
according to customary law as
specified in section 10. In such
a situation a sole surviving
female child in a patrilineal
system of inheritance would take
the proportion to devolve
according to customary law as we
have held in Suit No.
J4/36/2017 entitled Togbe
Akpoma I v Mrs. Gladys Mawuli
Mensah dated 12 December 2018,
unreported.
In the appropriate case this
Court has to revisit the
customary law and practice
that restricts to a life
interest, a female child’s
inheritance of her father’s
property, in patrilineal system
of inheritance, in the context
of Article 17 of the
Constitution and section
10 of
PNDCL 111
and in view of the definition
put on the word ‘estate’ in
section 18 of PNDCL 111.
Section 18 defines ‘estate’ as:
“[T]he self acquired property
which the intestate was legally
competent to dispose of during
the lifetime of the intestate
and in respect of which the
interest of the intestate has
not been terminated by or on
death” [Emphasis supplied]
The highlighted part of the
definition suggests an
intestate’s interest in a
property may terminate by
or on death.
CONCLUSION
The appeal fails in its entirety
and is accordingly dismissed.
The judgment of the Court of
Appeal is hereby affirmed.
S. O. A. ADINYIRA (MRS.)
(JUSTICE OF THE SUPREME COURT)
AKOTO-BAMFO (MRS.), JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
V. AKOTO-BAMFO (MRS.)
(JUSTICE OF THE SUPREME COURT)
BENIN, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the conclusion and
reasoning of my sister Adinyira,
JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
MARTIN KPEBU WITH HIM MERCY
DE-GRAFT SAVAGEE FOR THE 1ST
PLAINTIFFS/APPELLANTS/APPELLANTS.
ADDO-ATUAH WITH HIM OSUMAN
MOHADIN FOR THE 2ND
DEFENDANT/RESPONDENT/RESPONDENT.
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