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TAGOE
V.
RANDOLPH
THE WEST AFRICAN COURT OF APPEAL
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT XXXXXX, GOLD COAST
XXXXXXXXXXXXX
2PLR/1955/XX (WACA)
OTHER CITATION(S)
2PLR/1955/XX (WACA)
(1955) XIV WACA PP. 665 – 668
LEX (1955) — XIV WACA PP. 665 – 668
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
HEARNE, J.A.
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BETWEEN
TAGOE
AND
RANDOLPH
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ORIGINATING COURT(S)
1. LAND COURT (JACKSON, J.)
2. NATIVE COURT 3 OF LABADI, GA STATE
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Self-acquired property of a person under Ga Customary Law — Rights of succession of biological children of deceased owner thereto vis a vis other members of his extended family — Whether deemed self-acquired property considered Family property upon demise of owner
FAMILY LAW:- Nuclear and extended family systems — Biological children of a deceased person under Ga Customary Law — Right to succession of property of deceased parent — How properly treated
ESTATE ADMINISTRATION AND PLANNING:- Succession to and use of self-acquired property of a deceased person under Ga Customary Law — Role of Head of extended family of deceased person thereat — Whether supersedes claims of biological children of deceased owner — Relevant considerations
CUSTOMARY LAW: Ga Customary law of succession to self-acquired property of a deceased person — Interest of biological children of deceased person vis a vis those of other members of the extended family — Role of Family Head — Implications for question of locus standi to bring suit thereon
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION — LOCUS STANDI:- Locus standi to sue pursuant toan issue turning around a customary law point — Where cause of action deemed non-existent—Proper order for court to make
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CASE SUMMARY
The two plaintiffs, who were respectively the sons of two brothers, claimed for themselves and on behalf of the other children of the two brothers named, a declaration that the house in dispute was the joint property of their two fathers and that it devolved upon them on the death of their fathers. The cause of action stated was that the first defendant had, without authority and contrary to native custom, granted a chamber and hall with verandah in the said house to the second defendant to reside in; that the second defendant had been collecting rents of the house without the authority of the plaintiffs who therefore claimed recovery of possession and an injunction and damages for trespass and unlawful occupation.
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DECISION(S) APPEALED AGAINST
The Native Court entered judgment for the plaintiffs, in the following terms, inter alia:-
“The Court having carefully gone into this matter on its merits comes to conclusion that since defendants were unable to satisfy the Court with any substantive facts regarding the acquisition of the land the Court finds that the submission put forward by them is quite futile and frail; the plaintiffs have satisfied the Court with their evidence supported by documents.”
On appeal to the Land Court, the decision was set aside on the grounds that the judgment expressed a complete negation of Ga customary law, and if permitted to stand, would tend to encourage fictitious and collusive actions designed to defeat the title and interest of the blood members of the family of which the father of the second defendant was one. The Land Court further held that, (1) with certain exceptions which did not arise in the case, that the one and only person who may maintain an action to establish rights in family property is the head of the family; (2) it is against Ga customary law that self-acquired property, upon the death of the owner or owners devolves by descent to their children; and that (3) upon the death of the owner, his property became family property in which all members have a joint and indivisible interest with the interest of the direct children of an owner of self-acquired property amounting to a right of support out of the estate.
From this judgment the plaintiffs have appealed to this Court on several grounds, but they may be summarised under these two headings:-
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ISSUE(S) FOR DETERMINATION OF APPEAL
(1) Whether the Native Court was right under Ga customary law, as to this particular property, descent was through males and that it had become the joint property of the plaintiffs for the benefit of their immediate families;
(2) Whether the Land Court erroneously ignored (i) a judgment of the Gbese Tribunal dated 23rd September, 1920, and (ii) an arbitration award between the parties dated 28th July, 1943.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal):-
1. It is beyond doubt that this is family property.
2. From the evidence of the following family tree, the house was family property in which the parent of 2nd Defendant had a direct interest. As the learned Judge observed in the judgment now appealed from, “however individuals may have contracted with others out of the native law, it cannot destroy the rights of other persons having hereditable interest in the estate to ask for a declaration as to their rights”.
3. The declaration that the house in dispute primarily belonged to the plaintiffs is contrary to the Ga customary law. In the absence of any proof of a gift inter vivos, the suit should have been struck out as showing no cause of action.
4. Self-acquired property does not on death descend to the children of the owner. The plaintiffs, as children, had no locus standi to sue. No special incident of tenure was alleged or proved to warrant the departure from the Ga customary law of inheritance which the Native Court purported by its judgment to give effect to. The Land Court was therefore right in setting aside the judgment of the Native Court.
5. It must not be interpreted that the judgment appealed from upholds any right or interest of the second defendant-respondent in the property. A son of a member of the family, has no rights and he could only continue in occupation with the approval of the head of family who, in consultation with other members of the family, allocates rooms in the house in question.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
This suit originated in the Native Court 3 of Labadi in the Ga State, although the property in dispute is situate at Horse Road in the Gbese quarter of Ga or Accra. The two plaintiffs, who are respectively the sons of two brothers, Aryee and Arna Sliki, both deceased, claimed for themselves and on behalf of the other children of the two brothers named, a declaration that the house in dispute was the joint property of Aryee and Arna Sliki and that it devolved upon the plaintiffs on the death of their fathers.
The cause of action stated is that the first defendant had, without authority and contrary to native custom, granted a chamber and hall with verandah in the said house to the second defendant to reside in; that the second defendant had been collecting rents of the house without the authority of the plaintiffs who therefore claimed recovery of possession and an injunction and damages for trespass and unlawful occupation.
After commenting on the oral and documentary evidence the Native Court entered judgment for the plaintiffs, now appellants, in the following terms:-
“The Court having carefully gone into this matter on its merits comes to conclusion that since defendants were unable to satisfy the Court with any substantive facts regarding the acquisition of the land the Court finds that the submission put forward by them is quite futile and frail; the plaintiffs have satisfied the Court with their evidence supported by documents.”
From this judgment the defendants, now respondents, appealed to the Land Court (Jackson, J.) which on the 24th September, 1952, allowed the appeal and set aside the judgment of the Native Court on the grounds that the judgment expressed a complete negation of Ga customary law, and if permitted to stand, would tend to encourage fictitious and collusive actions designed to defeat the title and interest of the blood members of the family traced through Chicher Djanfiwa and of which the late A. A. Randolph (father of the second defendant) was one.
The Land Court held that, with certain exceptions which did not arise in this case, there is one person only who may maintain an action to establish rights in family property and that is the head of the family. It is against Ga customary law, the Court held, that self-acquired property, upon the death of the owner or owners devolves by descent to their children. Upon the death of the owner, this property became family property in which all members have a joint and indivisible interest. The interest of the children of an owner of self-acquired property amounts to a right of support out of the estate.
From this judgment the plaintiffs have appealed to this Court on several grounds, but they may be summarised under these two headings:-
(1) that an experienced Native Court which understood Ga customary law had held that, as to this particular property, descent was through males and that it had become the joint property of the plaintiffs for the benefit of their immediate families;
(2) that the Judge of the Land Court erroneously ignored (i) a judgment of the Gbese Tribunal dated 23rd September, 1920, and (ii) an arbitration award between the parties dated 28th July, 1943.
Dealing with the documentary evidence, the plaintiffs-appellants have contended that the land was purchased by their late fathers Aryee and Arna Sliki who gave the property to the plaintiffs, their children, as property over which they now have sole control and that it is not family property.
In my opinion it is beyond doubt that this is family property. The finding of the Ga Mantse’s Tribunal of 5th May, 1928, in Amelia Korkor Tagoe and Others v. Kordua Nye Ayikailey and Others, exhibit “D”, is that Teiko Abonua acquired the land for his wife Chicher Djanfiwa’s children Arna Sliki and Aryee.
From the evidence the following tree appears to show the family:-
Teiko Abonua = Chicher Djanfiwa
Aryee Tagoe Armah Sliki = Amelia Tagoe Amane Afua (f)
First pltff.
Ayitey alias
S. H. Tagoe Second pltff. Lucy Tagoe Akoshia Wallace A. A. Randolph
J. E. Tagoe Matilda Bruce
Bruce
Second deft.
Sonny Randolph
Assuming that Aryee Tagoe and Armah Sliki had a joint interest in the property, upon their deaths inheritance is through the uterine descendants of Amane Afua, the daughter of Chicher Djanfiwa. With this fact in mind the position of A. A. Randolph becomes apparent.
The judgment of the Gbese Mantse Tribunal dated 23rd September, 1920, upon which the plaintiffs-appellants rely, went on appeal to the Provincial Commissioner’s Court: exhibit “F”.
In the Court last named, after mutual admissions on the part of the first plaintiff Ayitey and A. A. Randolph, it is recorded that “the Court finds that the land in dispute is the equal divided property of plaintiff and defendant A. A. Randolph”. The expression “equal divided property” is, in my opinion, an error on the part of a Provincial Commissioner who was not versed in the law and who was unaided at the time by learned counsel. With respect, he was endeavouring to express that it was family property. It was in fact family property in which A. A. Randolph had a direct interest. As the learned Judge observed in the judgment now appealed from, “however individuals may have contracted with others out of the native law, it cannot destroy the rights of other persons having hereditable interest in the estate to ask for a declaration as to their rights”.
The declaration in the award of 28th July, 1943, exhibit “C”, to the effect that the house in dispute primarily belonged to the plaintiffs, the children of Aryee and Armah Sliki, is obviously contrary to the Ga customary law. The object of the award appears to me to be directed to ensure that rents and profits of the property” which in the ordinary course should have been enjoyed jointly by all the principal members of the family”, should be used to pay family outgoings and debts instead of being utilised by A. A. Randolph for his sole benefit. It is a relief to find that in 1944 when the plaintiffs sued A. A. Randolph in the Gbese Tribunal, also exhibit “D”, they did not sue on this award and that the judgment of the Tribunal makes abundantly clear the family character of the property.
When pressed before us to reveal the head of the family learned counsel for the plaintiffs-appellants suggested that the two plaintiffs were heads of their families and that the children held the property by virtue of the alleged gift made during their fathers’ life time. The children, claimants in Brandford Nettey v. The Gold Coast Independent Press and Akai Kofi Neuey, claimant, 3 W.A.C.A. 101, were in the same dilemma. It is an untenable position.
The plaintiffs’ claim in itself demonstrates that there was no gift inter vivos for they ask for a declaration that upon the death of Aryee and Armah Sliki the property has devolved upon them. In my opinion the suit should have been struck out as showing no cause of action. Self-acquired property does not on death descend to the children of the owner. The plaintiffs, as children, had no locus standi to sue. No special incident of tenure was alleged or proved to warrant the departure from the Ga customary law of inheritance which the Native Court purported by its judgment to give effect to. A declaration of title in their favour would have been, as the learned Judge in effect held on appeal, an instrument in the plaintiffs’ hands to castigate and defeat the family of Chicher Djanfiwa. The Land Court was therefore right in setting aside the judgment of the Native Court.
It must not be interpreted that the judgment appealed from upholds any right or interest of the second defendant-respondent in the property. He appears to have stayed with his father A. A. Randolph and to have continued to occupy the chamber and hall after his death. A son of a member of the family, he has no rights and he could only continue in occupation with the approval of the head of Chicher Djanfiwa’s family who, in consultation with other members of the family, allocates rooms in the house in question. I would therefore dismiss the appeal. The defendants-respondents are entitled to their costs as they follow the event in this case.
Order: Appeal dismissed with costs fixed at £18 4s. 0d.
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FOSTER-SUTTON, P.
I concur.
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HEARNE, J. A.
I concur.
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Appeal dismissed.
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