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  • appeal
  • 1960-02-26
  • GLR 23-25
  • Print



Land?-Family property?-Matrilineal devolution?-Relative outside matrilineal family occupies by grace of family.


Nana Esson had (among others) two children, Essie Dokua and a boy called Dutton. Dutton's daughter married John Sarbah, from whom she acquired [p.24] House No. 14/2. Beulah Road, Cape Coast, which in course of time descended to Araba Esson as the then head of the family of Mrs. John Sarbah. One of the descendants of Essie Dokua (sister of Dutton) in the direct female line was a Christian Gyaki, and Araba Esson allowed him to occupy a room in the house as care-taker but he occupied without permission three further rooms and his conduct was unsatisfactory in other respects. Araba Esson therefore instituted proceedings against him in the Cape Coast Municipal Court for a declaration of her title to the premises. On the 9th December, 1957 the court gave judgment for the plaintiff on her claim. Although no order of ejectment had been made, the plaintiff subsequently applied for and obtained a writ of possession to eject the defendant. On appeal, the magistrate who heard the (interlocutory) appeal set aside the writ of possession on the authority of Bonsu v. Kataboa 14 W.A.C.A. 281.The defendant refused to quit the premises, and his conduct remaining unsatisfactory, the plaintiff took further proceedings against him for possession. On his own application the defendant's younger maternal brother was joined as co-defendant to contest the plaintiff's claim, and the question which was raised for determination was whether in spite of the declaration of title in favour of the plaintiff, the defendants had such interest in the premises as to entitle them to a right of residence therein. The trial court found for the plaintiff and made an order for possession.The unsuccessful defendants appealed to the Land Court.


APPEAL from a decision of the Cape Coast Municipal Court in favour of the plaintiff in an action for possession.

(His lordship referred to the facts and continued). The matter first came before me on January 12, 1960. In my own experience much depends (in matters such as this) on the relationship of the alleged offending member to the head of the family, and on the question what interest (if any) his relationship to the original owner of the property has conferred on him. I therefore decided to resort to the power given to the Appeal Court under section 50 of the Native Courts Ordinance, to hear further evidence, in order to afford to the defendants the opportunity of establishing to my satisfaction the exact relationship which they claimed to have with the original owner of the premises in question, and the interest which (as they claimed) had been conferred on them by native customary law in virtue of that relationship.

The defendants availed themselves of the opportunity, and the senior gave evidence purporting to show how he was connected with Mrs. Gwira, the head of the family who gave him occupation of a room in the premises, and the head of family after whom came the plaintiff's elder sister called [p.25] Egyiriba, and then the plaintiff. His evidence as to relationship was that his mother was Effua Kurentsiwa. Her maternal grandmother (Essie Dokua ) had a maternal brother called Dutton. The latter by his marriage had a daughter, who in turn married John Sarbah, from whom Dutton's daughter acquired the premises in dispute. They passed to her children (Mrs. Gwira and others) on her death intestate in respect of those premises. It is clear, therefore, that the defendants could not possibly have any interest in property acquired by or belonging to Dutton's children, for, in the view of customary law, the properties of Dutton's children would go to their mother's side, not to their father Dutton's side, with which the defendants claim to be connected. As observed by Sarbah in his Fanti Customary Law's (2nd ed.) p.100:

"The first important rule which one has to learn and ever bear in mind when dealing with matters of succession is that the right of inheritance is only through the female, and pedigree is traced through the female line and that only."

That proposition was approved by the Privy Council in Hammond v. Randolph and another (5 W.A.C.A. 42). And Sarbah says further, at p. 101:

?"The owner of self-acquired real property dying intestate, is not succeeded by his sons, they being outside the line of inheritance, but by his mother and her issue according to seniority."

It follows that if Mrs. Gwira, while not shutting her eyes to the paternal relationship, took the first defendant into the premises in dispute, it was distinctly as an act of grace, but not by reason of any heritable interest or right which the customary law had conferred on the defendant in virtue of his relationship.

The trial court did not take evidence of the exact relationship, but decided the case on the assumption that first defendant was within the heritable class, and that he had misconducted himself towards the head of the family. But from the evidence as to relationship adduced in this court it does not appear to be necessary to consider the case in a light so favourable to the first defendant. His claim to residence in the premises in dispute, from his own evidence, appears quite untenable in the contemplation of customary law, and therefore the order for ejectment was rightly made against him.


<P>The appeal is accordingly dismissed with costs.</P>

Plaintiff / Appellant


Defendant / Respondent

Amoah (with him Blay)


Hammond v. Randolph 5 W.A.C.A. 42.

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