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AKOTO-BAMFO (MRS), JSC:-
On the 15th of June
2017, the Court of appeal
dismissed an appeal filed by the
defendant/appellant/appellant
herein against the decision of
the High Court entered in favour
of the plaintiffs / respondents
/ respondents. The High Court
granted all the reliefs prayed
for by the
plaintiff/respondent/respondent.
In dismissing the appeal, the
Court of Appeal delivered itself
thus:
“From the foregoing, the trial
Judge properly evaluated the
evidence on record and came to
the right conclusion. Ground (a)
also fails and it is hereby
dismissed.
The entire appeal lacks merit
and it is accordingly dismissed.
The judgment of the High Court
together with the consequential
orders are hereby affirmed.”
The appellants registered their
protest against the decision by
launching an attack against same
premised on these grounds:
GROUNDS OF APPEAL
a.
The judgment is against
the weight of evidence
b.
The Court of Appeal erred
when it held that after the
sharing of Nii Annan Nkpa’s land
amongst the 3 branches of his
family, the share that went to
the Respondent and her brother
should so be held as tenants in
common.
c.
The Court of Appeal erred
when it upheld the position of
the trial court that upon the
sharing of the land amongst the
3 various branches and or units
of Nii Annan Nkpa family it
ceased to be an ancestral family
land and for that matter same
can be divisible among
individuals.
d.
The Court of Appeal erred
when they upheld the decision of
the trial court that the other
two branches of the family had
divided the lands amongst
individuals a fact that was not
proven and supported by the
evidence of the court.
e.
The Court of Appeal erred
when it failed to appreciate the
difference between headship in
patrilineal societies and
inheritance in patrilineal
system of inheritance.
f.
The Court of Appeal erred
in not properly considering the
case of the Defence and thereby
upheld the judgment of the trial
court ordering the division of
the land between only 2 members
of Kweikuma Mensah branch
g.
The Court of Appeal erred
when it failed to appreciate the
incidence of personal property
against family property.
h.
The Court of Appeal erred
when it treated the share of
land to the Kwei Kuma Mensah
branch of the family as a gift
to Kwei Kuma Mensah, and for
that matter as his personal
property to be held by his
children as tenants in common.
Hereafter the parties shall
simply be referred to as the
plaintiff and the defendants.
The plaintiff and the defendants
are the daughter and
grandchildren respectively of
Kwei Kumah Mensah, whose
grandfather was Annang Onukpa
who could be described as the
patriarch of the Annang family.
He was of the Ga Adangbe
descent. He must have been a man
of considerable means, for in
his lifetime, he acquired a
large tract of land measuring
about 377.93 acres at Saasabi,
near Oyibi on the Dodowa road.
Upon his death, his children
jointly administered the land
until with the passage of time
they all joined their ancestors.
The 3rd generation of
the family, that is the
grandchildren of the Annang
Nukpa, took a decision to
partition the land among
themselves; each of them namely
Armah Kofi, Alokoto Commey and
Kwei Kuma Mensah was to be
allotted about 119 acres of the
land. Kwei Kuma Mensah died
before the partitioning, so his
portion was given to his son,
Robert Mensah, the brother of
the plaintiff for their benefit.
It was upon the demise of Robert
Mensah that the events
culminating into the appeal
arose; for the plaintiff alleged
that when her brother died, his
children (the defendants) took
control of the land, managed
same and disposed of portions
thereof without reference to her
under the pretext that their
system of inheritance being
patrilineal, her female status
denied her the right to partake
in decisions and management of
the property acquired by males.
When the plaintiff’s appeal to
traditional authorities failed
to yield any fruits, she
commenced an action before the
High Court, claiming, inter
alia, for an order that the
119.3 acres of land being her
father's (Kwei Kumah Mensah)
portion be shared equally
between her and her late
brother’s (Robert Mensah)
children.
She further prayed for an
account of the dispositions made
by them.
After a full trial, the learned
Judge of the High Court, decreed
inter alia that the land be
shared into 2 equal parts
between the plaintiff and the
defendants. She further declared
the plaintiff as the proper
person to take control of her
father’s (Kwei Kumah Mensah)
land after the death of her
elder brother and further
ordered the defendants to render
an account of the lands sold by
them.
The defendants’ invitation to
the Court of Appeal to set aside
the findings and conclusions
made by the trial court was
declined, for the Court of
Appeal rather affirmed the
decision and the consequential
orders made by the High Court.
Undaunted, the defendants
appealed to this court. They
hinged their attack on the
grounds set out ante.
The thrust of their arguments
under grounds (b) (c) (d) (e)
(f) and (g) could be summarized
as follows:
1.
That the Court of Appeal
committed an error when it found
without any evidence on record
that the 2 other families i.e.
the Kofi Armah and the Commey
Alokoto families shared their
respective portions among their
siblings.
2.
That the Court of Appeal
erred when it affirmed the
decision of the High Court that
upon the partitioning of the
land in 2007, the land lost its
ancestral family character.
3.
That the Court of Appeal
erred in affirming the decision
of the High Court decreeing a
partitioning of the land between
the parties one of whom was a
woman under a patrilineal system
of inheritance, thereby
destroying the family character
of the land and treating the
land as though it was the
individually acquired property
of Kwei Kuma Mensah to be
distributed under the Intestate
Succession Law, PNDC Act 111.
Before considering the issues
raised, it is pertinent to note
that even though the defendants
indicated that they would file
additional issues, no such
issues were indeed filed.
Secondly, even though their
first ground of attack was that
the judgment was against the
weight of the evidence adduced,
no arguments were proffered
under that ground.
Having regard, however, to the
fact that an appeal is by way of
rehearing; it is incumbent on
this Court, to, nonetheless,
examine, the whole record,
analyse the pieces of evidence
on record and to satisfy itself
that the conclusions reached are
amply supported by the evidence.
The High Court found and rightly
so affirmed, in our view, by the
Court of Appeal that when the
sharing was done in 2007, each
of the heads of the 3 units, was
directed to share the land among
their siblings and that indeed
the 2 units i.e. the Kofi Armah
and the Commey Alokoto families
proceeded to share their
respective portions among their
siblings.
PW1, Annang Amarh who supervised
the partitioning was emphatic;
and this is what transpired
“Q: I am putting it to you
that apart from the Nii Annang
Nukpa being divided among the 3
heads nothing was shared among
individuals in the family.
A: I have said that there
is precedent Tetteyfio Armah
their children have shared their
portion of the land Annan Armah
has done same the Alokoto family
has also done same so nothing
stops Kweikumah family from
sharing theirs”
Therefore contrary to the
assertions of the learned
counsel, there was ample
evidence that the 2 other units
shared the land among their
siblings.
These, undoubtedly, are findings
of fact by the trial court and
concurred by the appellate
court.
The principle governing appeals
against concurrent findings of
fact has been settled in a
plethora of cases, that is the,
Achoro v Akanfela
line of cases 1996-97 SCGLR 209.
In Obrasiwa II v Out
1996-97 Page 618 at 624, the
Court held;
“ In an appeal against findings
of facts to a second appellate
court, like this court, where
the lower appellate court had
concurred in the findings of the
trial court, especially in a
dispute, the subject-matter of
which is peculiarly within the
bosom of the two lower courts or
tribunals, this court will not
interfere with the concurrent
findings of the lower courts
unless it is established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, is
apparent in the way in which the
lower tribunals dealt with the
facts.”
We are satisfied that the
findings of fact being
challenged by the appellants are
amply supported by the evidence
on record and do not therefore
feel able to disturb same.
Learned counsel for the
defendants contended that the
land maintained its ancestral
family character at all times,
notwithstanding the partitioning
of 2007 and therefore both the
trial court and the court of
appeal erred in the orders made
that the parties should hold the
land as tenants in common after
the sharing.
It is not in dispute that Annang
Nukpa acquired the land and that
upon his demise, his children
jointly held the land as family
land.
When Annang Nukpa’s
grandchildren took the decision
to share the land and proceeded
to do same, the issue is whether
the land still maintained its
family character.
The partitioning of family
property is permissible under
customary law, where it is
advantageous to the whole family
and where the property itself is
capable of being shared, the
paramount consideration being
the convenience of the parties
to the sharing.
Upon sharing, it is obvious that
there is a change in the nature
of the ownership; that is from
communal ownership to individual
control or ownership.
Okaikor
v Okyere 1956 1 WALR 275
Adablah
v Kisseh 1972 1 GLR 43
Therefore contrary to the
assertions of learned counsel
for the defendants, we are in
agreement with the trial judge
that upon the sharing, the land
lost its communal character with
its incidence of communal
ownership and control to that of
individual control and
management.
The attack mounted against the
decision on this ground
accordingly fails and grounds
(b) (c) (d) (e) (f) and (g) are
dismissed.
Ground h: The Court of Appeal
erred when it treated the share
of land to the Kwei Kuma Mensah
branch of the family as a gift
to Kwei Kuma Mensah, and for
that matter as his personal
property to be held by his
children as tenants in common.
Did the court err in decreeing
that the partitioned land be
held by the parties as tenants
in common as held both by the
trial court and the Court of
Appeal?
The thrust of Counsel’s argument
was that under the patrilineal
system of inheritance, the
plaintiff, a female, only has a
life interest and therefore
cannot hold the property as
tenant in common.
The relief sought by the
plaintiff was for a share of the
land that went to her and the
brother after the partitioning
of the Nii Annang Nukpa’s land
among the three branches of the
family in 2007.
The present state of the Law in
Ghana is that where a grant of
land is made to two or more
persons, it is presumed to be
made to them as tenants in
common in equal shares unless a
contrary intention is expressed
in the grant.
The Nii Annang Nukpa family
clearly intended that each
branch shared the portion
granted to them among their
respective siblings.
Accordingly after the sharing of
Nii Annang Nukpa’s land among
the three branches of his
family, the portion that went to
the respondent and her brother
was to be held by them as
tenants in common.
Expatiating on the nature of a
tenancy in common, B.J. da Rocha
and C.H.K. Lodoh in their Book,
“Ghana Land Law and
Conveyancing”, at page
267, paragraph 2, stated,
“Unlike joint tenants, tenants
in common hold the property in
undivided shares i.e. each
tenant in common has a distinct
share in the property which has
not yet been divided among the
co-tenants…”
The learned text writers further
continued;
“A tenancy in common
may be determined by:
a.
Partition
b.
Sale; and
c.
The acquisition by one tenant,
whether by grant or operation
of law, of the shares vested in
his co-tenants”.
We are therefore in agreement
with the Court of Appeal on
their conclusions on the issues.
In the circumstances we dismiss
the appeal under this ground.
From the foregoing, we are
satisfied that the appeal lacks
merit and is therefore
dismissed.
We accordingly affirm the
decision and orders of the Court
of Appeal.
V. AKOTO-BAMFO (MRS.)
(JUSTICE OF THE SUPREME COURT)
ADINYIRA (MRS), JSC:-
I agree with the conclusion and
reasoning of my sister
Akoto-Bamfo, JSC.
S. O. A. ADINYIRA (MRS.)
(JUSTICE OF THE SUPREME COURT)
BENIN, JSC:-
I agree with the conclusion and
reasoning of my sister
Akoto-Bamfo, JSC.
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the conclusion and
reasoning of my sister
Akoto-Bamfo, JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the conclusion and
reasoning of my sister
Akoto-Bamfo, JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
PAUL K. OPOKU FOR THE
DEFENDANTS/APPELLANTS/APPELLANTS.
AWUDU BABANAWO FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
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