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QUARSHIE v. ARYEETEY


  • New
  • 1959-02-06
  • HIGH COURT
  • GLR 60-63
  • Print

OLLENNU J.


Summary

Deceased's estate?-Mother's right of succession in Accra and the Akan States?-Mother's right to headship of family in Accra and the Akan States.

Headnotes

Barnuah Quarshie was mother both of Robert Tetteh Aryeetey and of Robert Aryee Aryeetey (deceased). She claimed against Robert Tetteh Aryeetey a declaration(a) that House No. X.224, West Korle Gonno Estate, was the self-acquired property of her deceased son, the said Robert Aryee Aryeetey;(b) that the house was now family property, Robert Aryee Aryeetey having died intestate, and(c) that she was the head of her deceased son's family, and was therefore the person entitled to possession and control of the said house.The house in question was one of the Government Estate buildings erected immediately after the earthquake of 1939.The defence filed to the plaintiff's claim was as follows:?-(1) although the house in dispute was allocated by Government to the late Robert Aryee Aryeetey, the latter died before he could pay the initial amount which Government called for. The defendant paid the said amount, and he thereby became the sole owner of the property;(2) according to native custom, Robert Aryee Aryeetey's successor was his brother the defendant, not his mother the plaintiff.[p.61]During the course of the cross-examination of the plaintiff, Counsel for the defendant made certain suggestions to the plaintiff which showed that the first defence to the action, that Robert Aryee Aryeetey did not die possessed of the house as owner, was not the real defence. At that stage the learned judge ruled that in view of those suggestions, and of what Counsel had said, the onus was upon the defendant to satisfy the Court(a) that the property in the house was not vested in Robert Aryee Aryeetey at the date of his death, and(b) that by native custom of succession the defendant, and not his mother, was the successor to the said Robert Aryee Aryeetey.The defendant thereupon gave evidence.(Land Suit No. 166/58, Accra.)

Judgement

(His lordship stated the history of the case, and proceeded):?-

During the course of his evidence-in-chief the defendant said, inter alia:

"The house was allotted by Government in 1942, and my brother Robert died in 1949. It was my late brother Robert Aryee Aryeetey to whom the house was allocated in 1942. But as I have already said, Robert said our younger brother Kwashie, who was occupying the house, should pay the rents or instalments on the house. During my brother's lifetime all were paid in his name and all receipt for such payments were given in his name. My said brother Aryee was the owner of the house at the date of his death in 1949. After my brother's death I got the Department of Housing to substitute my name for his as the owner."

After that admission by the defendant, there is no necessity to go farther into the question of Robert Aryee Aryeetey's ownership. [p.62]

Remains the question of native custom as to succession. The question is, who takes precedence in succession to the property of a deceased - his mother, or his brother? I asked Counsel for the defence to give me authority for his proposition that the brother is preferred to the mother. He confessed he could find none. I am not at all surprised that Counsel could not produce a single authority, for as far as I am aware, all the authorities are to the contrary. This house (the self-acquired property of Robert Aryee Aryeetey) became family property according to custom upon his death intestate, and it should be in the possession and control of the head of the family. The parties being Accra people, the family is the maternal family.

I had occasion to deal with the question of succession in a judgment I delivered on the 4th March, 1958, in a suit entitled Mills v. Addy (No. 123/1957). In that judgment I considered all the available judicial decisions and commentaries on the subject, and in consequence I made certain pronouncements. I came to the conclusions

(1) that every woman who has children becomes the originator of a family, consisting of herself and her direct descendants,

(2) that in Accra and the Akan States the head of that family is that woman so long as she lives, and

(3) that she is also the proper successor to any of her children who may predecease her.

That judgment has not been appealed, and nothing has been urged to make me alter the conclusions I reached in the case as to the custom of succession. I am, therefore, bound to hold in the instant case that plaintiff is the head of her family, and at the same time is the successor to her son the late Robert Aryee Aryeetey.

In view of the admissions made by the defendant, and my finding as to the custom, there will be judgment for the plaintiff for a declaration:

(i) that House No. X224, West Korle Gonno Estate, is the property of plaintiff's family, the original owner having died intestate;

(ii) that plaintiff is the head of the family of, as well as the successor to, her son the late Robert Aryee Aryeetey, who was the original owner of the house;

(iii) that as such head of the family, and successor, she is the person entitled to possession and control of the said house, and [p.63]

(iv) that the act of the defendant in having his name substituted for that of Robert Aryee Aryeetey, as successor to the latter was unjustified.

I order that the defendant take immediate steps to have his name removed from the books of the Department of Housing, and to have the name of the plaintiff substituted for his. I further order that defendant do forthwith surrender to the plaintiff all papers, documents, etc., relating to the house.

Decision

<P>The plaintiff will have her costs, fixed at £31 18s. od.,including 25 guineas Counsel's fee.</P>&nbsp;

Plaintiff / Appellant

Amoo Lamptey

Defendant / Respondent

Okai

Referals

Mills v. Addy (unreported; judgment by Ollennu J. on 4th March, 1958; Suit No. 123/1957).

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