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AGYARE v. DOTWA


  • appeal
  • 1960-12-23
  • SUPREME COURT
  • GLR 253-256
  • Print

KORSAH, C.J. GRANVILLE SHARP AND AKIWUMI, JJ.S.C.


Summary

Administration?-Application for grant of letters of administration?-Caveat?-Appointment of successor?-Customary law?-Reference to native court?-Courts Ordinance Cap. 4, s. 89.

Headnotes

The plaintiff applied in the High Court, Kumasi for a grant of letters of administration as the ?"nephew?" and duly appointed successor to the deceased Kwame Agyin. A caveat was entered by the defendant who claims to be a "brother" of the deceased and head of the family. The issue as to whether plaintiff or defendant was the proper person under customary law to administer the estate was referred to the native court under section 89 of the Courts Ordinance, Cap. 4. The native court reported that the defendant as head of [p.254] the family was entitled to succeed but did not make a finding on the claim by the plaintiff that he had been appointed successor. The trial judge, however, held on the evidence adduced in the native court that the plaintiff had been appointed successor by the family and gave judgment in his favour. The defendant appealed.

Judgement

APPEAL from a decision of the High Court, Kumasi on October 29, 1959 in favour of the plaintiff in an action for a grant of letters of administration.

JUDGMENT OF KORSAH C.J.

Korsah C.J. delivered the judgment of the court. This is an appeal from the judgment of Murphy, J. in a suit, in which the plaintiff who claims to be the nephew and successor of Kwame Agyin, deceased, applied for letters of administration to administer the estate of Kwame Agyin. The defendant who claims to be the head of the family to which the plaintiff belongs, and of which the deceased was a member, entered a caveat. The three main grounds upon which the caveat is based are:

(a) That he, defendant, being the head of the family and the plaintiff a member thereof, the plaintiff could not be appointed a successor to the deceased while the defendant is alive.

(b) That in fact plaintiff had been appointed by the said family to be only caretaker of the deceased estate, and not successor to Kwame Agyin.

(c) That he is a brother of the deceased while plaintiff is a nephew, that a nephew cannot succeed while a brother of the deceased is alive.

Both parties attached genealogical trees of the family to affidavits filed in support of their respective claims, and these exhibits have materially assisted the court in assessing the value of the evidence and the shades of interpretation of the English words "brother" and "nephew" as used by the parties both in their affidavits and in the course of the proceedings. [p.255]

It is observed from the genealogical trees which agree in material particulars that both plaintiff and defendant have a common ancestress Adjoa Beh who apparently had four daughters and a son or sons, but for all practical purposes the descendants of the sons are not regarded as members of the family because, the parties being Ashantis the matrilineal system is the method by which membership of a family is traced. By this method, descendants of Adjoa Beh are divided into four lines of descent from each of the four daughters. Plaintiff is of the second line, defendant is of the third line and the deceased is of the fourth line. It will therefore be seen that the expression "nephew" and "brother" used by the parties have not the ordinary meaning in English but they are used in the sense in which members of the same family belonging to different lines of descent, may call themselves brothers, sisters or nephews in a local sense.

Sarbah's Fanti Customary Laws (2nd ed.) p. 102 contains a list of persons in the line of succession and goes on to state:

"There are therefore four kinds of successors, viz. Real, Proper, Ordinary and Extraordinary.

The Real successor of a person is his mother.

We call those persons Proper successors who are the uterine brothers and sisters of the deceased, and the issue of such sisters; but never can the pedigree be traced out in the line of the male.

"Ordinary successors are such persons as are descended from the maternal grandmother."

From the above quotation it will be seen that both plaintiff and defendant are in the category of ordinary successors; consequently the principle that uterine brothers and sisters would take before nephews does not apply in this case since neither plaintiff nor defendant is in the category of a proper successor.

There is, however, evidence on record which is not disputed, that it has been the practice of the members of this family on the death of any of them to meet and appoint a person in the category of ordinary successor where deceased had no uterine brother or sister.

Furthermore, the defendant's contention that because he is the head of the general family or clan, therefore he is the person entitled to succeed to the estate of any member of that family so long as he is alive, is a novel proposition contrary to native customary law. In Akumanyi v. Peprah (W. A. L. R. 112) it was held, inter alia,

?"(ii) In any event the right to succeed is not an absolute right. The power of appointment vests in the family, who can pass over a person with a prior right to succeed if they are satisfied in the family interest that it would be desirable to do so?".

At the trial the learned judge referred certain questions on native custom to the native court, but was obliged to reject their report on grounds which he has fully discussed in his judgment and with which I agree. Defendant has appealed to this court and counsel on his behalf has urged that when the learned judge found that the native court had not reported fully on the questions submitted to it, he should either have [p.256] referred it back to the native court, or conducted his own enquiry by taking evidence, and not have based his judgment on the record of proceedings in the native court. I disagree with such an interpretation of the relevant clause in section 89 under which the reference was made:

"Upon such reference being made, the question shall as soon as possible be enquired of, tried, and determined accordingly by such Native Court; and the Native Court shall thereupon report its decision on such question to the Court which referred the same. No appeal shall lie from such a decision; but it shall be competent to such Court in whole or in part to adopt or reject such decision, or to deal therewith in such manner as justice and the circumstances of the case shall appear to it to require, and to give such judgment and make such orders as to it shall seem lawful and just; and the Court shall also have the same powers with respect to such reports and decisions of the Native Court as it has with respect to the proceedings and report in writing of a reference".

In my view the learned judge was justified in the conclusion he reached when he said:

"I therefore do not find the decision of the native court of any great assistance, but on perusal of the evidence which was taken by it, I consider that there was a strong preponderance of evidence in favour of the plaintiff's assertion that he was appointed successor by members of the family".

For these reasons this appeal is dismissed with costs to the respondent fixed at G36.

Decision

Appeal  dimissed.

Plaintiff / Appellant

Akufo-Addo

Defendant / Respondent

Prempeh

Referals

Akumanyi v. Peprah 2 W.A.L.R. 112.

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