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A. V. SACKEYFIO
V.
AYICHOE TAGOE
WEST AFRICA COURT OF APPEAL HOLDEN AT ACCRA, GHANA
xxxx DAY OF XXXX, 1945
2PLR/1945/24 (WACA)
OTHER CITATIONS
2PLR/1945/24 (WACA)
(1945) xi WACA 73-80
JELR 84086 (WACA)
LEX (1945) – XI WACA 73 – 80
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BEFORE THEIR LORDSHIPS:
HARRAGIN, C.J., GOLD COAST
BAKER, AG. C.J., NIGERIA
M’CARTHY, J.
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BETWEEN:
A. V. SACKEYFIO OF ACCRA, ON BEHALF OF HIMSELF AND THE OTHER CHILDREN OF THE LATE ALEXANDER HAMMAH SACKEYFIO (DECEASED) – Plaintiff-Appellant
AND
AYICHOE TAGOE – Defendant-Respondent
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ORIGINATING COURT(S)
DIVISIONAL COURT, ACCRA, GOLD COAST
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REPRESENTATION
E. C. QUIST — FOR APPELLANT
AKUFO ADDO — FOR RESPONDENT
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ALTERNATIVE DISPUTE RESOLUTION — REFERREE:- Mutually elected and Court ordered appointment of referee to investigate questions as to accounts of an estate to enable proper distribution among its heirs/beneficiaries –l Validity of
CUSTOMARY LAW:- Succession under customary to estate of a deceased person — Children of ‘six-cloth’ marriages under Ga customary law — How treated
ESTATE ADMIINISTRATION AND PLANNING LAW:- Claim for a declaration of Plaintiff’s share or interest in estate of deceased father — Claim by children of six-cloth marriages under Ga Native Custom — Accounts — Certain, questions referred to Ga State Council for determination and report under Section 76 of Native Administration (Colony) Ordinance — Certain answers by State Council accepted by Court — No acceptance or rejection of on answer — How determined
FAMILY LAW:- Distribution of family estate under Ga customary law — Direction by the Court that family meeting be held to determine the share of the Plaintiff, his brothers and sisters and for a report to be sent — Report and recommendations by heads of the families to the Court — Judgment by the Court — Appeal Judgment indefinite and without finality — Claim for accounts — Decision of Family allowing one-third share to Plaintiffs — Whether procedure adopted by heads of family was not irregular and contrary to Native Custom — Whether Respondent is a successor of deceased in accordance with customary law
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CASE SUMMARY
The case was brought to determine the sharing of the estate of a deceased person under Ga Customary law so as to include the plaintiff who were described children of ‘six-cloth’ marriages.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (Appeal fails except to two parts):
(a) The judgments and orders relating to that part of the order of the 17th March, 1945, directing the parties to select a referee to go into the accounts, and as to those parts of the orders of the 23rd February, 1945, and the 17th March, 1945, respectively, accepting without a valuation, the distribution of the houses and farms, and of the personal effects proposed by the joint families – are affirmed.
(b) The case to be remitted to the Court below, which is directed –
(i) to appoint a referee under the provisions of Order 37, to investigate the question of accounts indicated in paragraph 5 of the statement of claim, and to declare the amount to which either side is indebted to or is a creditor of the estate,
(ii) to provide for the estate to be valued in a suitable manner, in order to enable the property to be distributed by the paternal and maternal families at a family meeting or meetings in which the Plaintiff and other children as well as the Defendant or her representatives should have a full opportunity of participating, and
(iii) to dispose finally of the above-mentioned matters.
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MAIN JUDGMENT
HARRAGIN, C.J., GOLD COAST:-
This is an appeal from the judgment of the Divisional Court, Accra, of the 17th March, 1945, herein which judgment embraces the decision of the Court of the 23rd February, 1945, and other decisions.
The suit which was instituted in the Ga Mantse’s Tribunal was transferred by order of the Provincial Commissioner’s Court dated the 20th March, 1943, to the Divisional Court, in which pleadings were ordered:-
The statement of claim is as follows:-
“1. The Plaintiff and the following children, on whose behalf, among others, he sues, are children of six-cloth marriages contracted by their late father Alexander Hammah Sackeyfio in accordance with Ga customary law with their mothers Ahima Ankrah and Akwai respectively, namely: A. Victor Sackeyfio, Alice Borley Sackeyfio, Sarah Borkor Sackeyfio, C. A. Mansoh Sackeyfio, Allen Q. M. Sackeyfio, A. P. Mayebi Sackeyfio, E. W. Adoo Sackeyfio, and Ernest N. Sackeyfio.
2. By a judgment of the Tribunal of the Ga Mantse dated the 1st day of May, 1941, it was declared and adjudged that the Defendant was the successor to the estate of Alexander Hammah Sackeyfio (deceased), a native of the Ga State, but that such successorship was without prejudice to the interest of the Plaintiffs, the children and bene1iciaries of the estate of the deceased, Alexander Hammah Sackeyfio, who should be invited by the Defendant to take part in the management of the estate.
3. Contrary to the terms of the said judgment, the Defendant is not managing the said estate for the benefit of the Plaintiffs nor inviting their co-operation in the management thereof.
4. The said Defendant upon demand by the Plaintiff refuses to supply any accounts to the Plaintiff or other of the deceased’s children and maintains that their interest in the estate does not entitle them to such account or to any co-operation in the management of the estate.
5. The Plaintiffs claim:
(1) An investigation of –
(a) all the real estate which has come into the possession of the Defendant prior to and since the said judgment;
(b) of the moneys received by the Defendant out of the said estate.
(2) A declaration of the Plaintiffs’ share or interest therein and an order for payment of such share to the Plaintiffs. Alternatively, the Plaintiffs claim from the Defendant the sum of £4,962 11s. 9d., being moneys due to the children of the deceased in respect of their share as beneficiaries of the said estate up to the commencement of this action as particulars annexed to the writ of summons herein”.
The statement of defence is as follows:-
“1. The Defendant is the successor by Ga Native custom of the late Alexander Hammah Sackeyfio (deceased) and was so declared by the Ga Mantse’s Tribunal on the 1st May, 1941, in an action brought by the same Plaintiffs against the Defendant. The Defendant is also the grantee of the letters of administration in respect of the personal estate of the said Alexander Hammah Sackeyfio (deceased) and she is the head of the family of the deceased aforesaid.
2. The Defendant denies that the said A. Victor Sackeyfio has any authority and power from the other children of Alexander Hammah Sackeyfio to ‘bring this action on their behalf.
3. The Defendant denies that the children of the late Alexander Hammah Sackeyfio (deceased) enumerated in paragraph 1 (one) of the statement of claim are issue of ‘six cloth’ marriages. The Defendant in effect denies that their mothers Aroma Ankra and Akwai were married to the said Alexander Hammah Sackeyfio in accordance with the Ga customary law relating to ‘six-cloth’ marriage.
4. The Defendant further denies that there was anything in the judgment of the Ga Mantse’s Tribunal referred to in paragraph 2 of the statement of claim which conferred any rights or interest in the estate of the late Alexander Hammah Backeyfio (deceased) upon the said children. The Defendant says that any referenco in the said judgment to the effect that the estate should be managed’ without prejudice to the interest of the Plaintiffs’ was a mere obiter dictum and could not have conferred any interest in the said estate other than the right of the children to live in their father’s house during good behaviour only, inasmuch as any such declaration of interest could only have been made after due enquiry had been held as to whether the said children were children of the ‘six-cloth’ and the Defendant says that there was no such enquiry.
5. The Defendant says that the Plaintiffs are not beneficiaries of the estate of the late Alexander Hammah Backeyfio (deceased) as alleged in paragraph 2 of the statement of claim and are not entitled to accounts and that their interest in the said estate does not extend beyond a right to live in their father’s house during good behaviour only.
6. The Defendant therefore says that the Plaintiffs are not entitled to the reliefs sought or to any other relief.”
At the outset of the trial the learned Judge defined the issues:-
(1) Has Plaintiff right to sue!
(2) Are Plaintiff and other children, children of ‘six-cloth’ marriages!
(3) If so, what are their rights in the succession to the estate of the deceased!
On the 9th March, 1945, the Court below by consent and by virtue of the provisions of section 76 of the Courts Ordinance, referred to the Ga State Council certain questions for determination in the light of facts found by the Court, and for report.
These are the questions:-
1. Was the marriage of A. H. Backeyfio (deceased) with Mary Ahima Ankrah a ‘six-cloth’ marriage according to Ga custom.
2. If the answer to (1) be in the affirmative, does the failure to pay dowry in that case until eight of Ahima’s children were born make any difference to the right (if any) of the children born before such payment!
3. Was the marriage of A. H. Backeyfio (deceased) with Akwai a ‘six-cloth’ marriage according to Ga custom!
4. Who is the head of the family of A. H. Sackeyfio (deceased)!
5. If the children of either of these marriages are entitled to share in their father’s estate according to Ga custom, to whom can they appeal for their rights:-
(a) If the successor, Ayichoc Tagoe, is not the head of the family and the neglects or refuses to distribute the estate to them; and refuses to meet the hood of the family or the children entitled to share with a view to the distribution of the estate.
(b) If the successor Ayichoc Tagoe is the head of the family and refuses or neglects to distribute the property to the persons entitled thereto!”
The answers to the State Council were to the following effect:-
Question 1. In the affirmative. Question 2. In the negative. Question 3. In the affirmative.
Question 4. Inasmuch as the late A. H. Sackeyfio left no full blood or uterine relative, and no nephew or niece surviving him, the head of his family according to custom is the most senior surviving son, that is, the Plaintiff.
Question 5. If the successor Ayichoc Tagoe, who is not the head of the Sackeyfio family, declines to distribute the estate and is unwilling to meet the head of Sackeyfio’s family and the other children entitled to share with a view to the distribution of the estate, the head of the Sackeyfio’s family will appeal to the head of the wider family on the paternal side of the late A. H. Sackeyfio, who in this case is Mr. Aryeetey Aryee, whose next business will then be to place the appeal before the head of the wider family on the maternal side, who in this case we find to be Mr. Lartey Kojo.
If after these appeals the successor continues to disrespect and dishonour the shares of these children, then they are entitled in accordance with custom to seek their redress before a Court or Tribunal of competent jurisdiction.
Question 5 (b) was held not to arise in view of the answer to question 4.
Upon this report being considered by the Court below, Mr. Quist, counsel for the Plaintiff, moved that the findings in it be accepted. Mr. Akufo Adoo objected to the finding on question 4 on the ground that it was contrary to native customary law.
The learned Judge accepted the answers to questions 1, 2 and 3, neither accepted nor rejected the answer to question 4, and made the answer to question 5 an order of the Court.
He directed that a family meeting be held as indicated in the answer to question 5 (a), to determine the shares of the plaintiff, his’ brothers and sisters, and that the heads of the deceased’s paternal and maternal families should report to the Court within three months.
The heads of the family forwarded to the Court their recommendations as to the distribution of the estate with a covering letter dated the 21st November, 1944, in which they reported that though several meetings had been held the children of the deceased had failed to attend any after the preliminary meeting, and it was found necessary to determine the share of the plaintiff, his brothers and sisters in their absence.
When this report was considered by the Court, Mr. Quist objected that no family meeting was called, and further that the distribution of the property was unfair, no valuation having been made, and that it was wrong (as the report recommended) to distribute personal effects in locked safes, chests-of-drawers and cupboards, as the contents were unknown.
He added that the report had not taken into account the moneys and proceeds of the estate appropriated by the defendant and her agents.
The learned Judge accepted “the decision latent in ‘Exhibit Y’ (the family report) that the children of the deceased are entitled to one-third of the property of their deceased father”.
In so far as the houses and farms were concerned the Judge accepted the distribution indicated in the report.
Seeing that part of the personal effects were locked up, he ordered that the keys be produced to the Registrar of the Court.
Seeing that account had not been taken of the proceeds of the estate that had come into the hands of either party, it was ordered that each should file accounts in Court.
When the case next came before the Court, on the 17th March, 1945, both parties objected to the accounts filed by the other side.
The Court made the following order:-
Supporting vouchers to be filled in Court within three weeks and the parties must endeavour to select a referee to go into the accounts and to declare the amount to which either side is either indebted to or is creditor of the estate. These sums will be governed for distribution by the decision of the elders of the family, viz. f to family (Defendant) and 2/3 to the children of deceased.
Referring to a distribution of the personal effects recommended by the heads of the families after the contents of the previously locked chests and wardrobes had been examined, the Court indicated that it accepted the distribution as recommended.
Then the Judge, after dealing with the matter of costs, brought the case, as far as he was concerned, to an end.
The following grounds of appeal have been filed:-
“1. The judgment was indefinite and without finality in as much as:
(a) The decision of the Court given on the 26th of August, 1944, neither accepted nor rejected the finding of the Ga State Council that the Appellant, A. v. Sackyfio, was the head of the family of A. H. Sackyfio, deceased.
(b) The Appellants’ claim for accounts or for the payment in the alternative of the sum of £4,962 11s. 9d., being moneys alleged to have been received by the Respondent out of the estate of the said deceased, was not finally disposed of by the Court.
2. The decision of the Court given on the 23rd of February, 1945, whereby the Court accepted the decision latent in Exhibit ‘Y’ that the children of the deceased-the Appellants-were entitled to 1/3 share of 1 the property of their deceased father was wrong in as much as-
(a) The said decision in Exhibit ‘Y’ by the heads of family was not supported by any evidence.
(b) The said decision was contrary to Ga native law and custom, there being no relation of the deceased A. H. Sackeyfio in the heritable line.
(c) The procedure adopted by the said heads of family was irregular and contrary to custom, no witnesses having been called or examined on any point and non-members of the family having taken part.
3. The decision of the Court on the 23rd of February, 1945, by which the Court accepted the distribution of the real estate of the deceased made by the said heads of family in Exhibit, ‘Y’ was inequitable in as much as the properties involved were of different sizes and values and no valuation of such properties was made in any manner whatsoever before the alleged distribution and the properties allotted to the children-Appellants-were comparatively of lesser values.
4. The judgment was against the weight of evidence”.
There is little substance in ground 1 (a). The neutral attitude of the Court below towards the finding of the State Council that the Appellant is the head of the deceased’s family was not responsible for any lack of definiteness or finality in the decisions of the Court. Examination of the answer of the State Council to question 5 (a) shows that the Council anticipated the contingency that the Defendant might refuse to co-operate with the Plaintiff (the head of the smaller family named by the Council) and the other children of the deceased. The Council therefore provided that if the Defendants were unwilling to do this, the heads of the wider families should take the matter of distribution of the children’s share of the estate in hand.
It may be presumed that the learned Judge doubted the correct- ness of the Council’s finding that the eldest son of the deceased was head of his family, in view of the admitted fact that a member of his family on the maternal side had been made his “successor”. Also that he realized the difficulty of arriving at the truth of the matter and therefore decided that, as it was doubtful whether the Defendant and the children could settle the business of distribution among themselves, it was best at once to) put the matter in the hands of the heads of the wider families. This is what he did, and in our opinion he was justified in this, having regard to the answer of the State Council to question 5 (a). It should be observed that the order of the 26th August, 1944, referring the question of distribution to the wider families, obviously contemplated that the Plaintiff would have full opportunity of taking part in the family meetings, though actually the Court was apparently more concerned in providing what should be done if the Defendant declined to attend. This ground therefore falls.
It will be convenient now to turn to ground 2. As to 2 (a) and 2 (c) it will suffice to say that it is of course not customary for families to take formal evidence of witnesses at a family meeting, much less to record it, and that the learned Judge rightly did not contemplate anything of the kind. If non-members of the family took part in the meeting, and our attention has not been drawn to evidence of this, there is nothing to indicate that this was contrary to custom.
Mr. Quist devoted much of his argument to 2 (b). His complaint is that the whole of the estate was not made over to the Plaintiff on behalf of the children. His point is that as the deceased left no direct uterine relative or nephew or niece, no member of the maternal family could claim any interest in the estate as against the deceased’s children of six-cloth marriages.
Support for this proposition is to be found in two cases decided by the Ga Mantse’s Tribunal which have been cited (Boifio v. Ankrah; and Okai v. Brown). But it is important to refer to an action tried in this Tribunal in connection wtih the estate now in question (A. v. Sackeyfio v. Nii Lartey Kofi), in which the present Appellant sued certain members of his father’s maternal family, claiming inter alia a declaration that they had no interest in the estate. The present Respondent was added as co-Defendant, and it is clear that the only serious issue in the case was that between the Appellant and the Respondent as to interest in the estate.
In its judgment of the 1st May, 1941, the Tribunal found “that in accordance with Ga Native Customary Law and usage, the 2nd co-Defendant, Ayichoe (the present Respondent), as the senior surviving aunt of the late A. H. Sackeyfio, is entitled to succeed, and we accordingly declare her as the rightful successor to the estate of the late A. H. Sackeyfio, without prejudice to the interest of the children of the deceased”.
It is unnecessary for this Court to ask whether this decision can be distinguished from the other cases cited. An appeal from the decision to the Provincial Commissioner’s Court failed on a technical ground, and it obviously is binding on the Appellant, as res judicata.
It can only mean one thing, that the Respondent has very definitely a beneficial interest in the estate. Mr. Quist was unable to cite an instance in Accra (where the customary law as to inheritance differs from that elsewhere in Ga territory) of a person being appointed “successor” to the estate of a deceased person without having a beneficial interest in the estate.
He has tried to persuade this Court that the State Council in answering question 5 (a), intended that the whole of the estate should be given to the Appellant and the children whom he represents. But the answer does not boor this meaning, and we have no doubt that the Council, when reporting that the children are entitled to share in the estate, meant what it said. Ground 2 (b) therefore fails.
We are also of opinion that there is no substance in ground 4 as to weight of evidence.
We now turn to ground 1 (b). It has already been shown that on the 17th March, 1945, when making his final order, the learned Judge directed that the parties should try to select a referee to go into accounts. This has never been done, and though it is obvious that either party could have applied to the Court to appoint a referee under Order 37 of the Rules of Court Schedule 3, still in our view the Court below should, having regard to those parts of the Appellant’s claim as to moneys received by the Respondent out of the estate, have appointed a referee in the first instance.
We are also of opinion that there is force in ground 3. While making it clear that we see no reason for interference with the decision of the head of the families to allow the children a one third share of the estate, which was accepted by the Court below, we consider that it was inequitable to attempt to distribute the estate on this basis without first obtaining a valuation thereof.
In the result the appeal from the various judgments or orders in question fails, except (a) as to that part of the order of the 17th March, 1945, directing the parties to select a referee to go into the accounts, and (b) as to those parts of the orders of the 23rd February, 1945, and the 17th March, 1945, respectively, accepting without a valuation, the distribution of the houses and farms, and of the personal effects proposed by the joint families. The said judgments and orders are accordingly affirmed, subject as follows: The case will be remitted to the Court below, which is hereby directed (a) to appoint a referee under the provisions of Order 37, to investigate the question of accounts indicated in paragraph 5 of the statement of claim, and to declare the amount to which either side is indebted to or is a creditor of the estate, (b) to provide for the estate to be valued in a suitable manner, in order to enable the property to be distributed by the paternal and maternal families at a family meeting or meetings in which the Plaintiff and other children as well as the Defendant or her representatives should have a full opportunity of participating, and (c) to dispose finally of the above-mentioned matters.
It is ordered that the coots of both parties come out of the estate. The Plaintiff’s costs are assessed at £105 0s. 6d.; the Defendant’s costs at £62 14s.
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