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KWAKYE v. TUBA AND OTHERS (DAWUDA-TUBA-APPLICANT)


  • New
  • 1961-09-20
  • HIGH COURT
  • GLR 535-539
  • Print

OLLENNU, J.


Summary

Customary law?-Person entitled to sue and be sued in respect of family property?-Head of immediate or branch family distinguished from head of the wider or trunk family.

Headnotes

The plaintiff, "as the customary successor of the late Kwasi Kuma of Asokore, New Juaben" instituted the present action claiming a declaration of title to certain farms, the self-acquired property of the said Kwasi Kuma who died intestate, an injunction and an order for accounts. Dawuda-Tuba applied to be joined as co-plaintiff on the ground that as head of the wider family to which the late Kwasi Kuma belonged, he and not the plaintiff is the proper person to sue and be sued in respect of Kwasi Kuma's properties, which by virtue of his death intestate have become family property.

Judgement

RULING on an application by the head of the wider family of the deceased to be joined as co-plaintiff to an action commenced by the successor.

The plaintiff instituted this action in his capacity as successor to one Kwasi Kuma, late of Asokore, New Juaben, who died intestate in or about February, 1958. By his writ he claims a declaration of title to, injunction, and an account of proceeds from, certain land with cocoa farms thereon, the self-acquired property of the late Kwasi Kuma, which has become family property. [p.537]

The applicant who claims to be the head of the said family, seeks to be joined as co-plaintiff on the ground that as head of family, he is the proper person entitled in law to sue and be sued in respect of the said property which has become family property by reason of Kwasi Kuma's death intestate. There is nothing in the affidavit supporting his motion to show that he disputes the plaintiff?'s allegation that he is the duly appointed successor to the deceased. On the contrary, the inference to be drawn from his said affidavit is that he admits that the plaintiff is the successor to the deceased, but contends that he is the head of the big family of which the family of the late Kwasi Kuma is a branch family, and that as between the head of the big family and a person appointed successor to a deceased member of that family, it is the head of the big or wider family and not the successor, who in law is entitled to litigate over the property which was self-acquired property of the deceased and which becomes family property by reason of the original owner's death intestate.

In the affidavit he filed in opposition to the motion, the plaintiff denied that the applicant is the head of the family but said, however, that in any event, as successor he is the proper person entitled to litigate the title of Kwasi Kuma's family to the land, and to protect the family's interest in the property.

In these circumstances the motion is to be dealt with on the same principle as proceedings under Order 25, rules 2 and 31, where a point of law is taken, that even if the facts pleaded by a plaintiff are true, they do not in law, disclose a cause of action: see Apenteng v. B. W.A. Ltd.2

For the applicant it was submitted that as a general rule the head of the family is the proper person to sue and be sued in respect of family property, except in certain special circumstance; the case of Kwan v. Nyieni Anor.3 was cited in support of that proposition. Whilst that submission is sound law, learned counsel failed to appreciate that the term "head of family" and "successor" are terms which mean one and the same thing, and are interchangeable and that the only time that they are used together as having separate denotations is where it is necessary to distinguish the head of an immediate family of a deceased from the head of a wider family of which the immediate family of the deceased is a branch. It is a distinction without a difference. This distinction in the use of the terms is illustrated in the judgment of the Land Court, Accra, in the case of Serwah v. Kesse.4 The explanation is reproduced at pages 9 to 10 of Ollennu: Law of Succession in Ghana, and is as follows:

"If a woman Madam 'A?' dies leaving three daughters, ?'B?', ?'C?' and ?'D?', and land 'Black acre?', as her self-acquired property, her said three children constitute her immediate family and are the immediate beneficiaries of her estate 'Black acre.' One of those three children e.g. 'B' is appointed the successor to the mother and [p.538] takes charge of 'A's' self-acquired property for herself and her two sisters and their descendants?-i.e. 'A's' immediate "family. 'B' then is successor to ?'A?' and ipso facto head of ?'A?'s, immediate family. 'B', ?'C?' and 'D' may each have children and grand-children; thus by the time the last of the three children of 'A' dies, the direct descendants who would constitute the 'A' family and together be entitled to 'A's estate 'Black acre', may be 21 or more; all these have equal interest in 'Black acre' as property which has descended to all of them from their grandmother or ancestress 'A'. At the same time these same 21 persons belong to three separate immediate smaller family groups i.e. the 'B', 'C' and 'D' families, and are the immediate beneficiaries of the self-acquired properties left by their said mothers or grand-mothers. The person who is appointed from among the immediate family to take charge and control of the property left by their immediate ancestor for and on behalf of, and to look after all those entitled to the estate is referred to as successor to the immediate deceased ancestor, while the one appointed from among all the three groups to take charge and control of 'Black acre' the self-acquired property of the remote ancestress Madam 'A', and to look after it for all the direct descendants of Madam 'A' i.e. all the three groups of families together and look after all of them, is referred to as the head of the 'A' family, i.e. the immediate families of 'B', 'C' and 'D' together."

What that means is that, upon the death of a person intestate, although his self-acquired property becomes the property of the whole of his family, the immediate and extended together, the right to immediate enjoyment of the beneficial interest in it, and to the control of it, vests in the immediate or branch family, and the person appointed successor to the deceased is, in law, the head of that immediate or branch family. As such head he is the proper person to sue and be sued in respect of that particular family property. See also the case Mills v. Addy5 and Acquaye v. Deedei Anor.6

But where no successor has been appointed to a deceased, the duty to litigate over, to take charge of and preserve such family property devolves upon the head of the next wider family. Also, where a successor mismanages such family property, the head of the wider family, with the concurrence of the principal members of the whole family?-the trunk and branch as well?-can set in to preserve the property. The case of In re Eburahim, deceased; Ansah v. Ankrah7, is to the same effect namely that it is the successor, i.e. the head of the branch or immediate family and not the head of the wider or trunk family who is the proper person to deal with property of the branch family. But I must say with due deference to the learned judge who decided that case, Adumua-Bossman, J. (as he then was), that I do not share in the views expressed by him that the family in which the self-acquired property of a deceased vests upon his death intestate, is the immediate or branch family only to the exclusion of the wider family, and that it is the principal members of the branch family alone and not together with the wider family, who by custom, are entitled to appoint the successor. That opinion of the learned judge appears to me to be in conflict with a long line of cases decided by this [p. 539] and other high courts; e.g. Nunoo v. Cleland,8 Hammond etc. v. U.A.C. Ors.9, Ankrah v. Aryeh10 and Makata v. Ahorli,11 which lay down the principle that where there is a failure of the immediate family or where no suitable person can be found in the immediate family to be appointed successor, a suitable person from the wider family can be appointed to succeed, implying that the property vests in the entire family, but the right to immediate enjoyment of the beneficial interest in it vests in the immediate family for the time being.

I rule that as between the head of the wider family and the successor to a deceased, the successor, who is head of the immediate or branch family of the deceased, is the proper person entitled to manage and control the self-acquired property of which the person whom he succeeds died intestate, and not the head of the wider family of which the family or the said deceased is a branch.

In my opinion therefore, the applicant who claims to be the head of the wider family, but not the successor, i.e. not the head of Kwasi Kuma's branch family, has no locus standi in this suit, and is not entitled to be joined as a party. The application is therefore dismissed with costs in favour of the plaintiff opposer fixed at G5 14s.

Decision

<P>Application dismissed.</P>

Plaintiff / Appellant

E. N. Moore for the applicant. E. K. N. Olaga for the plaintiff-respondent.

Defendant / Respondent

Osei Bonsu for the defendant

Referals

(1)  Apenteng v. B. W.A. Ltd. [1961] G.L.R. 81

(2)  Kwan v. Nyieni & Anor. [1959] G.L.R. 67, C.A.

(3)  Serwah v. Kesse Oll.  C.L.L. 201; [1960] G.L.R. 227, S.C.

(4)  Mills v. Addy (1958) 3 W.A.L.R. 357

(5)  Acquaye v. Deedei & Anor. (1958) 3 W.A.L.R. 132

(6)  In re Eburahim, deceased; Ansah v. Ankrah (1958) 3 W.A.L.R. 317

(7)  Nunoo v. Cleland, Divisional Court, Accra, July 3, 1946, unreported

(8) Hammond v. U.A. C. Ltd. & Ors., Divisional Court, Accra, July 13, 1935, unreported; affirmed (1939) 5 W.A.C.A. 42, P.C.

(9)  Ankrah v. Aryeh; Ankrah v. Ankrah (1958) 3. W.A.L.R. 104, P.C.

(10) Makata v. Ahorli (1956) 1 W.A.L.R. 169, W.A.C.A.

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