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MARY VANDERPUYE AND OTHERS
V.
MARY AKUA BOTCHWAY
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
8TH DAY OF MARCH, 1951
2PLR/1951/51 (WACA)
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OTHER CITATION(S)
2PLR/1951/51 (WACA)
(1951) XIII WACA PP. 164-169
LEX (1951) – XIII WACA 164-169
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
LEWEY, J.A.
COUSSEY, J.
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ORIGINATING COURT(S)
Appeal from the Land Court. W.A.C.A. No. 105/48
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REPRESENTATION
K. A. Bossman — for the Respondent
J. Quist-Therson — for the Appellant
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BETWEEN:
1. MARY VANDERPUYE,
2. ANNA VANDERPUYE,
3. PETER JACOB VANDERPUYE,
4. JACOB NEE VANDERPUYE,
5. JOHN VANDERPUYE,
6. ISAAC VANDERPUYE,
7. EMILY VANDERPUYE,
8. BETTY VANDERPUYE,
9. MARIA VANDERPUYE,
10. JACOB VANDERPUYE,
11. HELEN VANDERPUYE,
12. DINA VANDERPUYE,
13. ABRAHAM VANDERPUYE,
14. JUANA VANDERPUYE,
15. JERSEY NA OYOE VANDER-PUYE,
16. JACOB NEE VANDERPUYE
17. RICHARD VANDERPUYE,
BEING CHILDREN OF THE LATE JACOB VANDERPUYE (deceased) OF ACCRA – Plaintiffs-Respondents-Appellants
AND
MARY AKUA BOTCHWAY (substituted) HEAD OF THE FAMILY OF THE LATE JACOB VANDERPUYE (deceased) –Defendant-Appellant-Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Succession to family properly according to Ga custom – Rights of maternal family and of children of a six cloth marriage – Descent of property through female line – Children of six cloth marriage – Whether entitled to limited interest in estate.
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CASE SUMMARY
Jacob Vanderpuye died intestate in 1918 possessed of self-acquired property which became family property on his death. He left children of a six cloth marriage, and a nephew, the son of a sister. In 1922 the Court declared that the said nephew, E. A. Solomon, was the heir and successor, subject to the general rights of the family according to Ga native law and custom, but that the deceased’s children had some interest in the estate.
Solomon mismanaged the estate and claimed that he was the sole beneficiary. After further litigation, the family in 1934 removed E. A. Solomon and appointed J. D. K. Botchway, also a member of the maternal family, to be head of the family. This appointment was contested but upheld by the Court.
Later, P. R. Vanderpuye, the eldest son and others, sued J. K. D. Botchway for a declaration that they were entitled to a share of the rents and profits of the real property of the deceased.
On appeal to this Court the case was remitted to the Divisional Court, which found that the children named in the judgment were children by six cloth marriage and as such respectively entitled to shares in the deceased estate.
The suit from which appeal is brought originated in the Ga Native Court where the children claimed a declaration of their shares and an account of all rents and profits. The defendant led evidence to establish that he had called a family meeting which the Plaintiffs, the children, had refused to attend, and had allotted the children one-third of the estate.
The Native Court held, that a head of a family, who is not a brother or nephew of the deceased, does not inherit the self-acquired property. As the defendant was only a cousin of the deceased the native court held that the defendant had no beneficial interest in the property and awarded the children the whole estate.
The defendant appealed to the Land Court, which varied the judgment of the native court and substituted a declaration that the plaintiffs were entitled to one-third of the property and an account of, and payments of, one-third of the rents and profits.
From that decision the plaintiffs appealed to this Court claiming the whole property. The issues before this Court were what shares the defendants and the plaintiffs were respectively entitled to.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (varying the Judgment and dismissing the Appeal) that:
1. According to Ga native customary law the members of a family are traced through the maternal ancestor, and the family is a unit for the purpose of ownership. All members have a joint interest which is indivisible.
2. The interests of the children of an owner of self-acquired property amounts to a right of support out of the estate, but this right does not operate to set-aside the ordinary rule of customary law that descent is through the female line.
3. The Land Court was right in setting aside the judgment of the native court, but it was unnecessary for the Land Court to remit the case to the native court to effect a division of one-third of the property, as the allotment made by the defendant, prior to the native court case, of one-third of the property to the children was properly made and was a fair one.
Cases referred to:
(1) J. D. K. Botchway v. E. A. Solomon. Supreme Court, 7th December, 1935.
(2) Botchway & Others v. P. R. Vanderpuye. Supreme Court, 19th June, 1922.
(3) E. A. Solomon v. P.R. Vanderpuye. Supreme Court, 9th February, 1934.
(4) E. A. Solomon and P. R. Vanderpuye v.J. D. K. Botchway, 9 W.A.C.A.127.
(5) Cole v. Okine and Cole.
(6) Lutterodt v. Solomon, 2 W.A.C.A., p. 209.
(7) Sackeyfio v. Tagoe.
(8) Okantah v. Sackey. Div. &. Full Court Judgments, 1911-1916, p. 88.
(9) Sarah Ribeiro v. Elizabeth Mingle. Paramount Chief’s Court, Ga State, 4th July, 1944.
(10) Boifio v. Ankrah.
(11) Okai v. Brown.
(12) Yerencnie v. Akuffo, Renner’s Reps., 362 at 367.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J.
This appeal relates to family property concerning which constant litigation since 1918 has unfortunately crippled what might otherwise have been a large Estate.
The genealogy of the family and the litigation up to 1935 are set out in the judgment of Yates, Ag. C.J., in the suit of J. D. K. Botchway v. E. A. Solomon (1) which forms part of the appeal record.
Jacob Vanderpuye died intestate in the year 1918 possessed of self-acquired real property which became family property on his death. The personal estate has been administered and there is now no controversy about it. The real estate was at first managed by P. R. Vanderpuye, a son of the deceased, on the authority of the maternal family, but in 1922 in Botchway &. Others v. P.R. Vanderpuye (2), the Court declared that E. A. Solomon, the son of the deceased’s sister, the deceased having no brother alive when he died, was the heir and successor subject to the general rights of the family according to Ga native law and custom, but that the deceased’s children had some interest in the estate. In that suit the defendant P. R. Vanderpuye claimed, unsuccessfully, to be the heir, successor or inheritor of the deceased under the same customary law.
In his judgment in Botchway & Others v. Vanderpuye (2) supra Smyly, C.J., adopted the following passage from page 256 of Sarbah’s Fanti Customary Law:-
“The son in the Fanti country, does not inherit his father’s property but his father may nominate him his heir and may by gift, verbal or otherwise give to him his acquired property. Children are not considered members of the father’s family as far as having any right to his property. They belong to the mother’s family and inherit from the mother’s side. In the Eastern Province, the same rule of succession prevails with the difference that in some parts, that is Accra and east of it, children of a legal marriage, that is marriage according to native law said to be known as six cloth marriage, sometimes inherit the property of their father in conjunction with the heir and the property cannot be disposed of without the CODS(.nt of the children.”
In course of time the nephew Solomon apparently mismanaged the property and claimed that he was the sole beneficiary. In 1934 the Court (Aitken, J.) in E. A. Solomon v. P.R. Vanderpuye (3) held that Solomon had failed to establish that no one else but himself had an interest in the estate. There followed an action against Solomon by Kai Ashong, mother of J. D. K. Botchway and the senior member of the Jacob Vanderpuye maternal family, in which she established that she had an interest in the property of the deceased. The Court (Deane, C.J.) declared, however, following a well-known principle of customary law, that only the family as a whole could call Solomon to account or could remove him from his position as overseer of the property. In the result, the family removed Solomon and made the defendant J. D. K. Botchway head of the family Botchway’s appointment as head of the family was tested in the suit of J. D. K. Botchway v. E. A. Solomon (1), 7th December, 1935 already referred to.
The following passage in Yates, J.’s, judgment is relevant:-
“The family meeting was convened four times and the defendant (Solomon) refused to attend; he was further summoned before the James Town Manche and refused to attend – in fact, the defendant had denied the family – and I therefore hold he was properly removed and I hold further that the plaintiff (Botchway) was properly installed as caretaker and elected head of the family.”
Next E. A. Solomon, the nephew, and P. R. Vanderpuye, the eldest son, for themselves and as representing the Wofase, the children and other members of the family of Jacob Vanderpuye sued J. D. K. Botchway as head of the family for a declaration that they were entitled to a share of the rents and profits of the real property of the deceased. The action went on appeal to the Court of Appeal (4), which held following the decision of the Divisional Court in Cole v. Okine and Cole (5), which is fully set out in the judgment, that subject to their establishing that they were children of a Ga six cloth marriage, the children of the deceased were entitled under Ga custom to a share of the self- acquired property of their father. The statement of the Ga Mantse’s Tribunal as to the custom, which was accepted by the Appeal Court, and which it is necessary to set out fully, is as follows:-
“Ga native custom does not lay down the exact share or interest which the son gets but such share depends upon the decision of the head of the family assisted by the other members of the family. If the deceased left a house his children are entitled to live in the house during good behaviour.”
The case was remitted to the Divisional Court when M’Carthy, J ., declared (the defendant Botchway not resisting) that the children named in the judgment were children of the deceased by six cloth marriage and as such respectively entitled to shares in the deceased’s estate which now consists of what in English law is known as real property.
The suit from which the present appeal is brought originated in a claim in the Ga Native Court, setting out that by the judgment of M’Carthy, J., the children had been declared entitled in accordance with Ga customary law to a share of the estate of which the defendant, as head of the family, had been in exclusive possession since 1935, without admitting them to a share in the rents and profits.
They alleged that, although requested by them, the defendant had declined to declare their share, and claimed-
(a) a declaration of their share (Gbena) and the appropriation to them of such of the estate as represents the share to which they are entitled according to Ga native customary law; and
(b) an account of all rents and profits of the estate since 1935 and payment to the plaintiffs of their share thereof.
In support of this claim the plaintiffs maintained that after the death of Solomon, the deceased’s nephew, they the children were entitled to inherit all the seven properties comprising the estate. The defendant led evidence to establish that he had called the plaintiffs to family meetings, but as they refused to attend, he had allotted the children one-third of the estate; further, that the plaintiffs had failed to attend a meeting before the Asere Manche to be informed of the share allotted to them, so he had no alternative but to communicate to them the details of the allotment by letter addressed by his solicitor to their solicitor.
The Native Court held (in our opinion wrongly) that the mere appointment of a head of family does not constitute succession to a deceased’s self-acquired property and that a head of family, who is not a brother or nephew of the deceased does not inherit the deceased’s self-acquired property. In the present case, the Native Court held that the defendant, being only a cousin of the deceased, had no right as head of the family per se to succeed to the self-acquired property of the deceased while the children are alive, and that he was head only for the purpose of managing the estate for the children in particular and the family in general. The Court then found that the defendant had handled the estate recklessly and .for his own ends to the detriment of the children, and they held that in the peculiar circumstances of the family, namely that there was no brother or nephew of the deceased alive, the interest of the children extended to the whole estate, and gave judgment accordingly, adding that the children were entitled to all the rents and profits as would be shown by the defendant’s account.
The defendant appealed to the Land Court (A. C. Smith, J.), which varied this judgment, apparently on the authority of Lutterodt v. Solomon (6), and Sackeyfio v. Tagoe (7), which will be referred to later. Smith, J. substituted a declaration that the plaintiffs are entitled as their share to one-third of the property of their late father and to an account and payment of one-third of the rents and profits from December, 1935, to December, 1946, and he remitted the case to the Native Court to give effect to this declaration.
For the plaintiffs-appellants this Court has been referred to certain decisions as supporting the proposition that by Ga native law where a man dies intestate without a maternal brother or sister or nephew, the children inherit the whole property. The first is Okantah v. Sackey (8), which was a straight issue between son and nephew to a grant of letters of administration of the self-acquired property of the deceased. In that case, the son invited the Court to hold that the Ga law of succession unlike that of the Fantis and Twis, is in the male line and that children inherit self-acquired property, to the exclusion of the maternal line. Smyly, C.J., having reviewed the authorities held that they did not support the contention that children inherit to the exclusion of the female line. The farthest, he observed, that Mr. Edmund Bannerman was prepared to go in his oft-cited opinion on the point was that in the case of a six cloth marriage the children had a joint inheritance with the heir in the real estate and the farthest Mr. Justice Francis Smith’s opinion (set out in Sarbah’s Fanti Customary Law) went was that sometimes the children have a joint interest with the heir. The passage in the judgment in Sackey v. Okantah on which the plaintiffs rely is the statement of Smyly, C.J., that “the whole weight of the evidence goes to show that by Ga customary law, whether the property is sell-acquired or not, the brother succeeds first, then it descends to the nephew, failing which the children.” It is argued from this that on the death of Solomon, the only nephew, the property goes by succession to the children of the original owner and that the rights of the family are extinguished entirely.
In our view the observation of Smyly, C.J., was not necessary for the decision in that case, and we do not think that the learned Chief Justice could have intended it to apply to family or ancestral property. But if he did, this Court is unable to follow him to that extent. The appellants’ argument overlooks the fact that the property had vested in the family as family property before Solomon the nephew succeeded, and remained vested in the family when Botchway after him, was appointed the head.
The case falls into its true proportion if the following principles of Ga native customary law are kept in view.
The members of a family are traced through the maternal ancestor, and the family is the unit for the purpose of ownership of property. All the members have a joint interest in the family property which is indivisible. The interest of the children of an owner of sell-acquired property amounts to a right of support out of the estate. This right of support is termed a share of the estate, and to ensure that this right may not be affected or defeated, it is said that the children may be regarded as inheriting in conjunction with the heir, and the real property cannot be disposed of without their consent. But this right of support does not operate to set aside the ordinary rule of customary law that descent of property it through the female line, which rule none of the cases cited to us affect.
In Sarah Ribeiro v. Elizabeth Mingle (9), which was a dispute as to real property between the children of two brothers, M’Carthy, J., observed that if the children had been claiming against the maternal family of the person who acquired the property, the finding of the Tribunal in favour of the children of one of the brothers would be clearly against authority, but the decided cases relate only to cases between the children of the person who acquired the property and the family, therefore in the special circumstances of that case the Court had no legitimate ground for supposing that the Tribunal’s decision in favour of the children of one brother as against those of the other was contrary to native customary law. The special circumstance was, we think, that the rights of the maternal family were not being considered.
The same learned Judge had, in the preceding month, delivered the judgment of the Court in the Court of Appeal in A. V. Sackeyfio v. Ayichoe Tagoe (7). Unlike the present case where the deceased Jacob Vanderpuye left a nephew, the contention in Sackeyfio v. Tagoe (7) was that as the deceased left no direct uterine relative or nephew or niece, no member of the maternal family could claim the property. To that extent it was a stronger case in favour of inheritance by the children. The cases of Boifio v. Ankrah (10) and Okai v. Brown (11) were referred to. But this argument was rejected by the Court on a ground which is applicable with more force to the case before us, namely, that In earlier proceedings the defendant had, as the defendant Botchway had in this case, been declared the head of the maternal family and that the family had an interest in the estate.
On the authority of this case, and the principles already referred to, we find that the learned Judge was right in setting aside the judgment of the Native Court awarding the whole of the property to the plaintiffs’ children, a finding which was, in fact, beyond the limits of their claim and the effect of which for practical purposes was to remove the defendant from the headship of the family.
The case of Sackeyfio v. Tagoe (7) is also relevant for two other reasons, namely: the children were allotted one-third of the estate by the head of the family and the Court was not disposed to hold that there could be a head of the family of children as opposed to the head of the maternal family.
In this case, we have come to the conclusion that the defendant, after more than one meeting rendered abortive by the children’s refusal to attend, communicated through his Solicitor the apportionment which he had made in consultation with the family.
The plaintiffs’ contention that the Solicitor had ceased to act for them is, we think, agreeable with their conduct in abstaining from the family meetings. A section of a family must not be suffered to obstruct the conduct of affairs in this manner. We have referred earlier in this judgment to the finding of Yates, J., that the election of a head of family was not invalid, although the deposed head had refused to attend the meeting. Native custom consists in the performance of the reasonable in the particular circumstances of the case-per Brandford Griffith, C.J., in Yerenchie v. Akuffo (12). The allotment, therefore, was made and communicated by a method reasonable having regard to the strain between the parties and it is binding and effective. In view of this finding we are of the opinion that it was unnecessary for the Land Court to remit the case to the Native Court to effect a division of one-third of the property. The allotment made appears to be a fair one, but if it is true that the Adabraka property referred to has been sold the proper course is for the plaintiffs to apply to the head of the family for the allotment of other property of the estate sufficient to implement the allotment made.
The plaintiffs are entitled to an account of the properties allotted or which may be allotted as their share from December, 1935, to December, 1946, but it must be understood that family property is indivisible and that there can therefore be no apportionment in the sense of the alienation of a particular part of the estate to the children which would have the effect of severing the family property unless the parties agree to that course.
The appeal is therefore dismissed but the order of the Land Court is set aside declaring that the plaintiffs are entitled to one-third of the property of their late father and to an account of one-third of the rents and profits of the estate and with it the further order remitting the case to the Native Court to give effect to that order.
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BLACKALL, P.
I agree.
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LEWEY, J. A.
I also agree.
Judgment varied. Appeal dismissed.
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