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ATUGUBA J.S.C.
Facts of the Case
The facts of this case are
fairly well stated in the
Plaintiff/Respondent/Respondent’s
Statement of case dated 2/1/2014
as follows:
“By a Deed of Gift dated the 8th
day of June, 1959 the James Town
Stool conveyed a parcel of Land
to the late Madam Regina Naa
Oyoe Mills [Deceased]. She
subsequently built two twin
houses on the said land which
became known as H/No. A 303/7,
the subject matter of this
instant suit.
Madam Regina Naa Oyoe Mills,
being a native of James Town, Ga
Mashi practiced the
matrilineal system of
inheritance. She died
intestate on the 21st
day of August, 1973.
After her death her two
surviving children Madam Harriet
Thompson and Rgina Aku Sackey
took out Letters of
Administration from the Circuit
Court, Accra on the 14th
day of May, 1991 to administer
the estate of their late
mother. On the 6th
day of August, 1991, they
executed a vesting Assent and
vested the disputed property
unto themselves.
They, subsequently empowered by
the Vesting Assent put up the
property for sale and same
was sold to the
Defendant/Appellant/Appellant.
In her quest to occupy and take
possession of the property, the
defendant had opposition from
the
Plaintiff/Respondent/Respondent
and her children as a result of
which she caused her Solicitors
to write to the defendant on the
1st day of October,
1991. Notwithstanding Notice of
the said letter, the
defendant/Appellant/Appellant
went ahead to execute the sale
Agreement dated 31st
October, 1991. It is against
this background that the
Plaintiff/Respondent/Respondent
caused her solicitors to sue out
a writ of summons in the High
Court as follows “The
Plaintiff’s claim as a member of
the maternal family of Regina
Naa Oyoe Mills for and on behalf
of the Regina Naa Oyoe Mills
maternal family is for
a.
A declaration that the alleged
or purported sale of House No. A
303/7 situate at Old Dansoman,
Accra by Madam Harriet Thompson
and Madam Regina Aku Sackey to
the defendant is null and void.
b.
An order setting aside the said
sale.”
It must be pointed out that the
trial High Court granted the
reliefs claimed by the
Plaintiff, and same were
affirmed by the Court of Appeal.
It must also be stressed that
the Plaintiff
/Respondent/Respondent is the
daughter of Regina Aku
Sackey(deceased) one of the two
sisters who sold the property to
the
Defendant/Appellant/appellant.
The right to dispose of the
self-acquired property of a
woman, subject to the
matrilineal system of
inheritance who has died
intestate
The right to succeed to and
dispose of the property of a
deceased person under a
matrilineal system of intestate
succession started off on
controversial generalisations as
shown by the early writers on
customary intestate succession,
such as Sarbah, Danquah,
Bentsi-Enchilland Ollennu.
These have been extensively
reviewed by the eminent late
Professor Justice A. K. P.
Kludze in his monumental work,
Modern Law of Succession in
Ghana, in chapter 10 thereof.
However over the years the
courts have clearly established
the principle that in a
matrilineal system of
inheritance the self-acquired
property of a deceased intestate
is inherited by his immediate
family and that family has the
right to dispose of the same.
The matter has been exhaustively
dealt with in the illuminating
judgment of Lartey J (as he then
was) in Doudu v. Kwasi
(1992) 1 GLR 109. The facts of
that case are as stated in the
headnote as follows:
“By his will, one A devised a
cocoa and kola nut farm and a
building to his children.
Subsequently, the plaintiff, his
successor, brought an action on
behalf of their family against
the defendants, A’s executors
and his children, for a
declaration that those
properties were family
properties. The evidence
established that the properties
had originally been acquired by
an ancestor of and had devolved
on A by inheritance. Counsel
for the plaintiff contended that
although by virtue of the Courts
Act, 1971 (Act 372), s 49, r (2)
and (3) the validity of the
devise was to be determined by
customary law principles, since
the will was in English form, it
was governed by English law and
therefore since A had no title
to the properties his purported
devise was by virtue of section
1 (1) of the Wills Act, 1971
(Act 360) ineffectual. The
court found on the evidence that
the properties were owned by A’s
immediate family of which he was
the last survivor and that the
customary successor belonged to
A’s wider family.” (e.s)
Upon these facts Lartey J (as he
then was) expounded the
applicable law at pp. 116-117 as
follows:
“Even though the properties
in dispute have been proved to
be family properties, the
defendants have raised a very
important point of law. They
contend that since I B Asamoah
was the only survivor of his
immediate family he had the
right to dispose of the
properties in dispute by his
will in favour of his children
to the exclusion of his wider
family even if they were
properties inherited by him.
In their argument, both sides
sought to rely heavily on
Atta v Amissah, Court of
Appeal, 4 May 1970; digested in
(1970) CC 73. That case states
the customary law principle in
relation to the self-acquired
property of an intestate and the
right of beneficial enjoyment of
property which vests solely in
the immediate family. The court
held in that case as follows:
“It is settled customary law
that upon the death of a person
intestate, although his
self-acquired property becomes
the property of the whole
family, the immediate and the
wider family together-the right
to the immediate or beneficial
enjoyment in it and to the
control use and present
possession of it vests in the
immediate or branch family
alone. If the property is held
by tenants, the right to the
landlord’s benefits vests also
in the immediate family alone.
It is the immediate family,
and not the extended family,
which has the power to alienate
the property by virtue of its
possession of the right to the
beneficial enjoyment of the
property. Those members of the
extended family who do not
belong to the immediate family
are excluded from enjoyment of
the property until the
extinction of the immediate
family.”
It is clear from the foregoing
that where a person dies
intestate, his self-acquired
property becomes that of the
family as a whole; the immediate
and the wider family. But the
immediate enjoyment of the
property together with its
control, use and possession
vests solely in the immediate or
branch family alone, not the
extended or wider family. Other
authorities cited by both sides
in support of this proposition
included the following:
Busumafie v Hydecooper
(1946) DC (Land) ’38-’47, 245;
Kwakye v Tuba [1961] GLR
535 and Arthur v Ayensu
(1957) 2 WALR 357.
I was also referred to the
recent case of Andrews v
Hayford [1982-83] 1GLR 214,
CA. That case deals with the
power or right of alienation of
the self-acquired property of a
person who dies intestate and
whose property is being enjoyed
by members of the immediate
family of the deceased. In the
Andrews case (supra), Prah who
had two other brothers bought a
piece of land and built a house
on a portion of the land.
On his death intestate he was
survived by his only two uterine
brothers who constituted the
only members of the deceased’s
immediate family. In 1952 the
two surviving brothers sold the
undeveloped portion of the
land. The question arose
whether the two surviving
brothers could validly sell the
self-acquired property of Prah
without the consent of the head
and members of the wider family.
In the course of the judgment
Abban JA (as he then was)
observed at 219-220 as follows:
“In the present case, the
surviving members of the
immediate family were two
males. If the immediate family
with the right to beneficial
enjoyment had power of
disposition even where that
family consisted of only one
female as it was clear in the
Busumafie case (supra), then
I do not see any good reason why
the two surviving members of the
immediate family of Prah . . .
could not in their lifetime
dispose of the said property
without reference to the head
and members of the wider family.
In the circumstances of this
case, I hold that the two
uterine brothers, who happened
to be the only surviving members
of the immediate family of Prah,
had the sole control and
enjoyment of the self-acquired
property of Prah and they could
validly sell the disputed land
during their lifetime without
the concurrence and consent of
the head and members of the
wider Twidam family of Cape
Coast.”
This legal position has been
substantially followed in
Nyamekye v Ansah (1989-90) 2
GLR 152 C.A and Amponsah v
Budu (1989-90) 2 GLR 291
S.C. at 293 and in the recent
decision of this court in
Fianko v Aggrey (2007-2008)
SCGLR 1135.
In this case the only surviving
members of the immediate family
of the deceased intestate
original owner of the disputed
property competently conveyed it
to the
defendant/appellant/appellant.
The respondent and the other
members of the wider family on
whose behalf she sues have only,
realistically, a spes
successionis to that
property, which by reason of its
sale to the appellant, cannot be
attained.
Consequently we allow the appeal
and set aside the judgments of
the Court of Appeal and the High
Court and dismiss the
plaintiff/respondent/respondent’s
action.
(SGD) W.
A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD)
J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
N. S. GBADEGBE
JUSTICE OF THE SUPREME
COURT
(SGD) J.
B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
EDWARD BRIKU-BOADU ESQ. WITH HIM
DR. SAMUEL ADESI FOR THE
DEFENDANT /APPELLANT/APPELLANT.
GEORGE HEWARD-MILLS ESQ. FOR
THE PLAINTIFF/RESPONDENT/
RESPONDENT.
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