Property -
Deed of Gift - Matrilineal
system of Inheritance –
intestate succession - Vesting
Assent - Sale Agreement –
Whether or not the purported
sale of the said house to the
defendant is null and void. -
Whether or not the right to
dispose of the self-acquired
property of a woman, subject to
the matrilineal system of
inheritance who has died
intestate
HEADNOTES
By
a Deed of Gift,the James Town
Stool conveyed a parcel of Land
to the late Madam Regina Naa
Oyoe Mills. She subsequently
built two twin houses on the
said land being a native of
James Town, Ga Mashi practiced
the matrilineal system of
inheritance. She died intestate.
After her death her two
surviving children Madam Harriet
Thompson and Rgina Aku Sackey
took out Letters of
Administration to administer the
estate of their late mother.,
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 and in her
quest to occupy and take
possession of the property, the
defendant had opposition from
the Plaintiff and her children
as a result of which she caused
her Solicitors to write to the
defendant. Notwithstanding
Notice of the said letter, the
defendant went ahead to execute
the sale Agreement, It is
against this background that the
Plaintiff caused her solicitors
to sue out a writ of summons in
the High Court, the trial High
Court granted the reliefs
claimed by the Plaintiff, and
same were affirmed by the Court
of Appeal
HELD
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
STATUTES
REFERRED TO IN JUDGMENT
Courts
Act, 1971 (Act 372),
Wills Act,
1971 (Act 360)
CASES
REFERRED TO IN JUDGMENT
Doudu
v. Kwasi (1992) 1 GLR 109.
Atta v
Amissah, (1970) CC 73.
Busumafie v
Hydecooper (1946) DC (Land)
’38-’47, 245;
Kwakye v
Tuba [1961] GLR 535
Arthur v
Ayensu (1957) 2 WALR 357.
Andrews v
Hayford [1982-83] 1GLR 214, CA.
Nyamekye v
Ansah (1989-90) 2 GLR 152 C.A
Amponsah v
Budu (1989-90) 2 GLR 291 S.C.
Fianko v
Aggrey (2007-2008) SCGLR 1135.
BOOKS
REFERRED TO IN JUDGMENT
Modern
Law of Succession in Ghana, A.
K. P. Kludze
Fanti
customary law, Sarbah,
DELIVERING
THE LEADING JUDGMENT
ATUGUBA
J.S.C.
COUNSEL
EDWARD
BRIKU-BOADU ESQ. WITH HIM DR.
SAMUEL ADESI FOR THE
DEFENDANT /APPELLANT/APPELLANT.
GEORGE
HEWARD-MILLS ESQ. FOR THE
PLAINTIFF/RESPONDENT/
RESPONDENT.
______________________________________________________________________________________
JUDGMENT
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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