Family stool-·Headship of
family-Family
property-Succession- Long
continued possession-Individual
o1.2lnership-Ga customary
law.
A dispute arose concerning a
plot of land at Accra, and all
the parties concerned and those
through whom they claimed title
were of Ga nationality.
In 1872 the then Gbese Manche
gave the land in dispute to one
]., and it became his own
individual property.
In 1889 J. gave the land to his
brother A., who thus became the
individual owner of it. As such
owner he could have disposed of
it during his life time, but no
evidence was adduced to show
that he had done so. A. died
intestate in or about 1905, and
first his sister L. entered into
possession of the land and then,
on her death which occurred
shortly afterwards his sister O.
entered into possession and
remained in possession until her
death in 1932. During that
period of quite 25 years she
appears to have built on the
land, received all rents
accruing from it paid all rates,
and generally to have behaved as
the owner. By her will O.
purported to devise the land to
her daughters, the first three
defendants, who took possession
thereof on her death. The
plaintiff, alleging himself to
be the head of the L. family-a
family to which with A. and O.
had belonged, brought an action
against the first three
defendants claiming the land as
the property of the L. family.
(The fourth defendant-a
mortgagee-was added during the
hearing in the Court below and
was not concerned in the
appeal). At the trial the first
three defendants sought to show
that A. had given the land in
dispute to their mother O.
during his life time. The Court
below arrived at the following
conclusions ;-
L That as the plaintiff was
admittedly sitting on the L.
family Stool he must be the
proper person to bring this
action on their behalf, though
no family meeting had been held
to appoint a family head.
2. That all the facts of the
case were consistent with A.
having given the land in dispute
to O.
3. That even if A. had not given
the land in dispute to O. her
undisputed occupation thereof
for a period of 25 years had
ripened into full ownership.
On these findings the Court
below gave judgment for the
defendants.
Held, on appeal, that succession
to a family stool, which
descends through males, is quite
different to succession to
family property, which descends
through females; hence the
plaintiff, being a son of A.
could not have succeeded to the
land in dispute and was not the
proper person to bring the
action. In this connection it
was pointed out, by Deane C.].,
that the land in dispute could
only be the property of A.'s
family, not of the wider L.
family.
Held, also, however, that O.
must have succeeded to the land
in dispute as the then head of
A.'s family and as trustee for
all the members thereof in
accordance with Ga customary
law, and that her long continued
and undisturbed possession was
therefore quite consistent with
her rights and duties as such
head of A.:s family: in those
circumstances her possession
could not ripen into ownership.
Thus, as neither the plaintiff
nor anyone of the first three
defendants had been able to
establish any title to the land
in dispute, the judgment of the
Court below was carried by
non-suiting the plaintiff and
the parties were left to pay
their own costs of the appeal
and the original hearing.
K Quartey Papafio and K A
Bossman for Plaintiff -
Appellant
A Sawyerr
and
A.
G.
Heward-Mills
for the Defendants Respondents.
The following judgments were
delivered :--
MICHELIN, J.
This is an appeal by the
plaintiff from the judgment of
Barton, Acting J. dated the 14th
of August, 1933, in which he
held that the property in
dispute was not the property of
the Larkai family and gave
judgment in favour of the
defendants with costs.
Upon the appeal coming on for
hearing before this Court,
Counsel for the appellant
informed the Court that in so
far as the respondent J. Kitson
Mills was concerned, the
appellant had discontinued the
appeal from the judgment of the
Court below and the respondent
had been notified accordingly.
The appeal was argued therefore
only in regard to the other
three respondents.
Seven grounds of appeal were
originally filed, which appear
at page 234 of the record; the
following additional grounds
were however subsequently added
with the leave of the Court :-
(8) The learned Judge was wrong
in holding that there was no
proof that the property was
family property.
(9) That there was no evidence
to support the finding of the
learned Judge that Ahuru gave
Otua the property in dispute.
(10) The learned Judge was wrong
in holding that undisputed
possession by Otua ripened into
full ownership of the land.
(11) The judgment is contrary to
native law and custom which
presumes all property to be
family property until the
contrary is proved.
In
arguing the appeal Counsel for
the plaintiff restricted his
arguments entirely to grounds
(1) and (8). Ground (1) reads as
follows :-
" (1) Whether the defendants did
not fail to prove a grant from
Ahuru to their mother, which was
their case."
Arguing these grounds he
referred the Court to the writ
of summons:. dated the 4th of
April, 1933, which appears at
page 1 of the record of appeal.
in which the particulars of
claim are stated as follows
:.,..-
"The plaintiff as head of the
Larkai family of Manhia claims
against the defendants jointly
and severally a declaration that
all that piece or parcel of land
with the buildings thereon
situate lying and being at the
junction of Horse Road, Zion
Street, Ussher Town, Accra, and
bounded on one side by Zion
Street, on one side by Horse
Road, on one side by properties
belonging to Adjumaku, Ahele,
Mensah and Kwamang, and on one
side by property belonging to
Amarley Richardson is family
property of the Larkai family.
The plaintiff further claims
recovery of possession of the
said land with the buildings
thereon from the defendants, and
also
mesne
profits for the use and
occupation by the defendants of
the said land with the buildings
thereon from the 31st day of
July, 1932, till possession is
delivered to the plaintiff. "
The writ of summons was
originally instituted as against
the first three defendants only,
the fourth defendant, the holder
of a deed of mortgage dated the
13th of July, 1931, executed by
the late Alice Larkai
alias
Otua, the mother of the other
defendants, in his favour,
having been subsequently joined
by the Court as a co-defendant
on the 31st of May, 1933.
He next referred to the opening
statements of Counsel on each
side which appear at page 15 of
the record.
He next referred to a document
which appears at page 270 of the
record and which reads as
folJows :-
•• Know all the witnesses by
these presents that I, ColIe
Jarfro of Accra Fisherman Larkai
Street Ussher Town, do hereby
granted given all the properties
known as the property of I the
said Co lIe J arfro, was given
unto the hand of my Dearest Own
Brother Ahuru of Ussher Town
Accra Fisherman who have taken
good care of me during all my
sickness, who have feeding me
with anything desired all the
time, and I the said ColIe
JarfrQ n<4W given the full power
unto the said Ahuru to claim my
things known as the property of
me to hold free from the
interference and control of the
families, and by these presents
hath freely given to the said
Ahuru and also my four sons
namely Larty Quarshie, Larteyhye,
Larteh-Quaro and Dearnyanbiyer,
etc. to take good care of them
to feed them, to clothed them,
and to attend them during any
sickness or trouble whatever.
" Witness my hand and seal this
12th day of September, in the
year of our Lord one thousand
eight hundred and eighty-nine,
1889.
" Witnesses
" JAMES GEORGE AYETEY."
and to a judgment of Hutchinson,
C.]. in the case of
Ahuru v. Larkai Mensah
which appears at page 261 of the
record, in which the plaintiff
sought to establish his titJe to
certain land at Ussher Town
Accra. This judgment reads as
follows :-
" I find that the document ].E.M.I.
was written at the time when
Ahum and his witnesses say it
was written and that it is
Jarfro's deed; That Jarfro
understood the effect of it, and
intended by it to make an
immediate gift of all his
property to Ahum, revocable in
his life-time, but to be
irrevocable if he should die of
the illness under which he was
then suffering without having
revoked it.
" I find also that the property
in question in the first action
is family property which Jarfro
could not alienate. Both actions
must therefore be dismissed. I
give no costs in either action."
He admitted that the land now in
dispute was one of the
properties of the late Jarfro
referred to in the document
dated the 12th September, 1889.
Assuming, however, that Ahum
acquired the property as his
individual property, he
contended that on his death it
became family property, and upon
Ahum's death, it also became
family property. In order for
the defendants to succeed,
therefore, it would be necessary
to prove a grant inter vivos
from Ahum to Otua, which he
submitted they had entirely
failed to do.
Mr. Sawyerr on behalf of the
respondents contended that the
case put forward in the Court
below was different to the case
now put forward.
In the Court below the plaintiff
claimed the property by reason
of his succession to the family
stool. I t was not then claimed
that he succeeded to the family
property of the late Ahum.
As regards the ownership of Otua,
he submitted that she was in
possession of the property
claimed during the lifetime of
Ahum from the year 1907 up to
the time of her death in 1932.
The evidence showed that she
built on this property, drew the
rents derived from it, paid the
rates, and exercised other
rights of ownership.
The learned Judge after
reviewing at length all the
evidence before him, stated as
follows :-
" I am satisfied that all the
facts in this case are
consistent with Ahum having
given Otua the property in
dispute, but that even if he did
not give it to her her
undisputed occupation over a
period of at least 25 years
ripened into full ownership of
the land on which she had
established a home."
In my opinion the learned Judge
drew wrong inferences from the
facts proved before him.
It appears to me clear from the
evidence in the Court below that
the property now claimed was
originally the individual
property of the late .Tarfro,
having been given to him in the
year 1872 by the then Gbese
Mantse. During his lifetime he
executed the document, which was
admitted in evidence as Exhibit"
D." I agree with Hutchinson, C.J.
that in executing this document,
he intended to make an immediate
gift of all his property to Ahum.
Although in this document he
also ask Ahum to take care of
his children and to feed and
clothe them, this reque9t in no
way vested any interest in this
property in his children.
The property now claimed in the
present action, being therefore
the individual property of Ahum,
he could have disposed of it
during his lifetime if he had so
desired. There was no evidence
whatever, however, in the Court
below, that he did so dispose of
it. On the contrary it appears
abundantly clear that on his
death intestate it became family
property. It is not disputed
that on his death he was
succeeded by his sister Larteley,
and then by his sister Otua, who
up to the time of her death,
managed the property
He admitted that the land now in
dispute was one of the
properties of the late Jarfro
referred to in the document
dated the 12th September, 1889.
Assuming, however, that Ahum
acquired the property as his
individual property, he
contended that on his death it
became family property, and upon
Ahum's death, it also became
family property. In order for
the defendants to succeed,
therefore, it would be necessary
to prove a grant inter vivos
from Ahum to Otua, which he
submitted they had entirely
failed to do.
Mr. Sawyerr on behalf of the
respondents contended that the
case put forward in the Court
below was different to the case
now put forward.
In the Court below the plaintiff
claimed the property by reason
of his succession to the family
stool. I t was not then claimed
that he succeeded to the family
property of the late Ahum.
As regards the ownership of Otua,
he submitted that she was in
possession of the property
claimed during the lifetime of
Ahum from the year 1907 up to
the time of her death in 1932.
The evidence showed that she
built on this property, drew the
rents derived from it, paid the
rates, and exercised other
rights of ownership.
The learned Judge after
reviewing at length all the
evidence before him, stated as
follows :-
" I am satisfied that all the
facts in this case are
consistent with Ahum having
given Otua the property in
dispute, but that even if he did
not give it to her her
undisputed occupation over a
period of at least 25 years
ripened into full ownership of
the land on which she had
established a home."
In my opinion the learned Judge
drew wrong inferences from the
facts proved before him.
It appears to me clear from the
evidence in the Court below that
the property now claimed was
originally the individual
property of the late .Tadro,
having been given to him in the
year 1872 by the then Gbese
Mantse. During his lifetime he
executed the document, which was
admitted in evidence as Exhibit"
D." I agree with Hutchinson, c.J.
that in executing this document,
he intended to make an immediate
gift of all his property to Ahum.
Although in this document he
also ask" Ahum to take care of
his children and to feed and
clothe them, this reque9t in no
way vested any interest in this
property inhis children.
The property now claimed in the
present action, being therefore
the individual property of Ahum,
he could have disposed of it
during his lifetime if he had so
desired. There was no evidence
whatever, however, in the Court
below, that he did so dispose of
it. On the contrary it appears
abundantly clear that on his
death intestate it became family
property. It is not disputed
that on his death he was
succeeded by his sister Larteley,
and then by his <;ister Otua,
who up to the time of her death,
managed the property
as head of the family of the
late Ahuru. The fact that she
was in long possession of this
property and received rents and
paid rat£s were facts consistent
with her position as head of the
fami!y, and t.he two deeds
admitted in evidence as
exhibits" 8 " and" H " in my
opinion completely negative allY
suggestion of a gift
inter vivos
having been made to her by Ahuru.
I am satisfied, therefore, that
on the death of Ahuru intestate,
the property claimed in the writ
of summons and which during the
lifetime of Ahuru was his
individual property became
family property. Otua who
succeeded him as head of his
family had no authority whatever
to dispose of this property by
her will, and on her death such
property would vest in the
person who, in accordance with
native customary law, was the
proper successor to the family
property of the late Ahuru as a
trustee on behalf of the family.
(See
Sarbah's Fanti Customary Law at
page 255 par. 9), and the
judgment of Smyly, c.J. in the
case of
Pappoe v. Wingrove, Div. Ct.
1921-1925 at page 23).
In the course of his judgment
the learned trial Judge stated
as follows :~
" With regard to the contention
that the plaintiff is not the
proper person to bring this
action, it has not been
suggested that anyone else is
the head of the family, and
although I am satisfied that
since the plaintiff was
enstooled there was no meeting
of the family to appoint a
family head, in view of the fact
that the stool is a family stool
and the plaintiff is on that
stool I am of opinion that he is
entitled to bring this claim."
The' learned Judge in arriving
at this conclusion evidently
confused the principles of
succession of family property,
with the principles of
succession to a family stool.
Although as stated in Sarbah's
Fanti Customary Law at page 256
the family stool frequently
descends to the son, it is clear
from the various decisions of
the Supreme Court of this Colony
that in Accra, according to Ga
Custom, descent to family
property is traced through
females, and that the son does
not succeed as head of the
family.
(See Sackey v. Okantah Div. and
F.C. Judgments
1919, 88,
Botchey v. Vanderpuye, Div. Ct.
1921-25, 8, and the report of
Mr. Justice Smith, which appears
in Sarbah's Fanti Customary Law
at page 256).
It is clear from the evidence
that although the plaintiff now
sits on the Larkai family stool
since the death of Otua, her
successor in accordance with
native customary law to the
family property of the late
Ahuru deceased, has not yet been
elected or approved by the
family.
The learned Judge was wrong,
therefore, in holding that
because the plaintiff sat on the
family stool he was entitled to
institute the present action.
The facts in the case of
Ababio v. Quartey, P.e.
1874-1928, 40, to which we were
referred, may be distinguished
from the facts in the present
case, and in
my opinion this Court would not
be justified
in granting such an amendment of
the writ of summons as would
justify the plaintiff in his
having instituted the present
action, it being a matter still
in dispute as to who is now the
proper successor in accordance
with native customary law to the
family property of the late
Ahuru deceased, moreover there
is another dispute as to whether
the family property of Ahmu is
also the family property of the
Larkai family .•
In my opinion upon the evidence
before him the learned Judge
should have nonsuited the
plaintiff instead of entering
judgment for the defendants. In
view, however, of the fact that
the first three defendants
completely failed to prove that
their mother Otua, from whom
they derived their title, had
any interest in the property
claimed which was capable of
being disposed of by will, such
nonsuit should have been without
costs.
The appeal must therefore be
dismissed, but the judgment of
the Court below must be varied
by substituting a judgment of
nonsuit, without costs, for the
judgment in favour of the first
three defendants with costs.
This decision will, of course,
not prevent anyone hereafter
duly elected to be head of the
family of the late Ahuru
deceased from instituting a
fresh action, if so desired, to
recover possession of the
property now claimed.
As regards the costs in this
Court, each side will pay its
own costs.
DEANE, (,J. THE GOLD COAST
COLONY.
This is an appeal from the
decision of Barton, Acting J. in
favour of the defendants. The
action was brought by the
plaintiff in his capacity as
head of the Larkai family for a
declaration that a plot of land
at the junction of Horse Road
and Zion Street, Accra, was the
family property of the Larkai
family and for possession.
The facts which gave rise to the
dispute were that the property
in question had been devised
under the will of one Otua to
the defendants other than Kitson-Mills
who are her daughters (KitsonMills
being a mortgagee), and the suit
was brought to establish that
the land was family property of
the Larkai family and never
belonged to Otua so as to enable
her to dispose of it by will.
It appears that the land in
question was originally given to
one Jarfro and that in the suit
of
Ahuru v. Mensah,
heard in this Court, it was held
by Hutchinson, C.J. that it was
Jarfro's own individual property
and was by him given under a
document dated 12th September,
1889 to his brother Ahuru.
The root of title therefore is
in Ahuru to whom also the land
was given in his individual
capacity, but with a request by
Jarfro that he should care for
his four sons mentioned in the
document, and the real issue
between the parties in this case
was whether the land on the
death of Ahuru, who died
intestate, became family
property or whether during his
lifetime it had been given by
Ahuru to Otua as her il1dividual
property which she could dispose
of by will.
Now the presumption of law on
the Gold Coast is that property
held by an individual becomes
family property on his death
intestate, and that presumption
can only be displaced by
satisfactory evidence. that
during his lifetime he parted
with the property by giving it
to another. In this case
the learned Judge found that the
property had been given by Ahuru
during his lifetime to Otua his
sister, but Deane, C.]. in my
opinion there is no evidence to
support such a finding. There is
no documentary evidence of such
a gift so as to constitute a
gift by English Law, and we have
therefore to enquire whether
there is any evidence of a gift
by native customary law. Here
also there is an entire absence
of such evidence. Native law
requires to establish such a
gift a public affirmation by the
donor of the gift in the
presence of the other members of
his family, and an
acknowledgment by the donee of
the gift by the slaughter of a
sheep or by thanking the donor
with a hottle of rum : here
nothing of the kind is alleged.
The learned Judge's finding,
therefore, that the land was
given to Otua cannot be
sustained.
The learned Judge went on to
find that, even if the gift was
not satisfactorily established,"
the undisp'rted possession of
the property by Otua over a
period of at least 25 years
ripened into full ownership of
the land on which she
established a home."
Once it is conceded, however, as
I have shown it must be, that
here is no proof of a gift by
Ahuru to Otua d11ring
his lifetime it follows that on
his death intestate the property
became the property of his
family, and the possession of
the property by Otua even for 25
years and her receipt of the
rents and profits from it over
that term cannot be held in the
words of the learned Judge to "
have ripened into full ownership
of the land on which she had
established her home," since her
possession was as head of the
family of Ahuru she being his
eldest serviving sister after
the death of Larteley who
succeeded to Ahuru on his death.
As head of the family she would
have the right to live on the
property and to receive the
rents and profits without
accounting to any of the junior
members of the family, and it is
clear that by so doing she could
not acquire any proprietorial
rights for herself and as
against her family.
The documents " 8" and " H "
which are in evidence prove also
conclusively that this land was
family and was well recognised
to be such by Otua. The
explanation of " H " as being an
attempt by Otua to defraud
creditors does not appear to me
either adequate or probable: it
seems rather to be an attempt by
Otua, who may have been affected
by doubts whether the rights of
Jarfro's children under the
document of 12th September, 1889
might not affect her position as
head of the family
vis-a-vis
this land, to obtain an
affirmation from these same
children that the land was
entirely family property and
that they had no individual
rights in it. To my mind it is
clear that this land on the
death of Ahuru passed to his
eldest surviving sister Larteley,
and on her death to Otua as the
successor, and that the land is
the family land of Ahuru.
Now the plaintiff has claimed
this land as being the head of
the Larkai family. Ahuru it is
true was called Ahuru Larkai and
it seems was a member of the
Larkai family, but individually
owned property of his would, on
his death intestate, became the
family property, not of the
Larkai family, but of his own
family. Family property descends
according to the custom of the
Gas through females, a stool
which is a dignity descends
through males. The plaintiff as
a son of J arfro is the present
holder of the Larkai family
stool, but he would not thereby
necessarily become the head of
the family entitled to hold the
Larkai family property, and
certainly he would not be a
member of Ahuru's family so as
to become the head of his family
and as such entitled to the
family property of Ahuru so as
to sue for it in this Court.
All the evidence given in
respect of him that he is head
of the family must be taken as
referring to the Larkai family
and not to the family of Ahuru,
and although Ahuru's family is
probably a sub-branch of the
Larkai family, it is clear that
the Larkai family has a much
wider ambit and includes a far
larger number of individuals
than Ahuru's family could ever
do.
In my opinion, therefore, it is
certain that the plaintiff
cannot succeed in this case as
the head of the Larkai family
since the Larkai family as such
have no interest in this land
which is not their family
property but the property of the
family of Ahuru. The finding of
the learned Judge that the
plaintiff could sue as head of
the Larkai family thus turns out
to be quite irrelevant, and Mr.
Sawyerr was in fact conceding
nothing when he stated in answer
to the Court at the opening of
the appeal that he did not
contest it, since the property
does not belong to the Larkai
family.
The real contest between the
parties, however, as it
developed during the course of
the case and as I pointed out at
the beginning, was whether this
land was family land or the
private property of Otua. The
learned trial Judge found it was
the private property of Otua,
and therefore gave judgment for
the defendants.
As he also found that plaintiff
had the right to sue as head of
the Larkai family, the inference
is clear to my mind that had he
decided against the land being
the individual property of Otua
he would have given judgment for
the plaintiff. In this also he
would in my opinion have been
wrong since the Larkai family is
not Ahuru's family, and it is to
Ahuru's family that the land
belongs.
Both parties to this litigation
therefore have failed to
establish any title to this
property, but it ~s an undoubted
fact, as appears from the
evidence of Hammond who belongs
to the family of Ahuru, that an
attempt was made after the death
of Otua to appoint a successor
who should take charge of this
property as family property and
that this attempt was frustrated
by the defendants who claimed
that it was their mother's
individual property which she
could dispose of by will. That
being the case it is clear that
simply to dismiss this appeal
would operate to confirm the
possession of the defendants to
this land.