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ARABA TSETSEWA, ETC.,
V.
JOSEPH DOBSON ACQUAH AND ANOTHER
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
24TH DAY OF DECEMBER, 1941
2PLR/1941/28 (WACA)
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OTHER CITATION(S)
2PLR/1941/28 (WACA)
(1941) VII WACA PP. 216 – 221
LEX (1941) – VII WACA PP. 216 – 221
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
BANNERMAN, J.
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BETWEEN:
ARABA TSETSEWA HEAD OF HER FAMILY FOR HERSELF AND ON BEHALF OF ALL OTHER MEMBERS OF HER FAMILY OF CAPE COAST — Plaintiff-Appellant
AND
JOSEPH DOBSON ACQUAH AND SAMUEL GABRIEL ACQUAH AS EXECUTORS AND BENEFICIARIES UNDER THE WILL OF JOSEPH DOBSON ACQUAH (DECEASED) BOTH OF CAPE COAST — Defendants-Respondents
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REPRESENTATION
K. A. Korsah — for Appellant
D. M. Abadoo with Dr. J. W. de Graft Johnson — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Family Property — Houses built largely at expense of one of three brothers — Slight contribution from other members of family — Properties in name of the three brothers jointly — Can surviving brother make valid testamentary disposition thereof — Applicability of English law or Fanti customary law.
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CASE SUMMARY
Here, one of three brothers was employed by a commercial firm in the French Ivory Coast. He remitted money and materials to his other two brothers who supervised the building wherein the members of the family helped in labour and materials. The house was occupied by members of the family and later the three brothers built another house again with the assistance of the family. From the profits of these ventures, four other properties were purchased. The properties stood in the joint names of the three brothers. All three brothers are now deceased and plaintiff as head of her family claims the properties as family property. The defendant contended that Joseph the last survivor of the joint holding could make a valid disposition of these properties, and this contention was upheld by the Provincial Commissioner’s Court.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
The evidence adduced on behalf of defendants was not sufficient to rebut the strong presumption in favour of family property which is the rule among Fanti-speaking people. Native law and custom must govern the case.
Appeal allowed.
Case quoted:-
George Hagan and others v. Araba Tanuah: 5 W.A.C.A. 35.
Fawcett v. Odamtten, Full Court Reports 1926/29 p. 339
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND BANNERMAN, J.
This is an appeal from the Provincial Commissioner’s Court, Cape Coast, dated 10th March, 1941, whereby the Deputy Provincial Commissioner of the Central Province gave judgment in favour of defendants.
On the 21st September, 1940, the plaintiff, Araba Tsetsewa, who describes herself as head of her family, filed a writ in the Provincial Commissioner’s Court, Cape Coast, for a declaration of title in respect of six separate properties situate at Cape Coast in the Central Province of the Gold Coast Colony. Araba Tsetsewa brought this action on behalf of herself and all other members of her family. It is common ground that all the parties in this case are Fantis and although the defendants-respondents do not admit that Araba Tsetsewa is the head of her family, it is clear from the proceedings before the Provincial Commissioner’s Court that she is the recognized head of her family.
‘In his Will, Joseph mentions her as his cousin and the head of the family. In her evidence she states that she is head of the family duly appointed as such by all the members of the family after the death of Joseph. In this case no male member of the Acquah family has come forward to represent the interest of the family, and the Courts of this country have always recognized the right of the leading female member of the family to sue and be sued in respect of family property in the absence of any male head. One case only may be mentioned in this connection. In the case of George Hagan and other, v. Araba Tanuah, which came before this Court and which subsequently went before the Privy Council, the leading female member represented the family. We are satisfied that Araba Tsetsewa is the present head of the family and she can represent the family in this case.
The plaintiff’s case is that the six properties enumerated in her writ of summons form part of the property of her family, of which the three brothers, namely, Charles Winslow Acquah, John, Mensah Acquah and Joseph Dobson Acquah in turn preceded her as head. Araba Tsetsewa claims (and this is not disputed by the respondents) that her mother and the mother of Charles Winslow Acquah, John Mensah Acquah and Joseph Dobson Acquah were sisters. (Hereafter the three brothers will be referred to as Charles, John and Joseph). Charles and Joseph were literate and John was illiterate.
Charles who was the eldest of the three brothers was employed by Messrs F. & A. Swansy, Limited as Factor and afterwards as Agent from 1874 and was stationed at various places on the French Ivory Coast. About the year 1888, Charles instructed one Ellis of Cape Coast to engage workmen in order to build a house for him
In 1890, Charles returned to Cape Coast on leave; he was dissatisfied with the building because it contained only three bedrooms and did not provide sufficient accommodation for himself, wife and children, and members of the family. Charles gave instructions to his brothers John and Joseph to purchase adjacent land in order that the building might be extended. Charles returned to the Ivory Coast during the same year and remitted money and shipped building materials to Cape Coast for the construction of two more wings.
From 1890 up to 1914 John and Joseph acted as the agents for Charles at Cape Coast and they supervised the building of the two wings of Alepe House. The members of the family helped towards the building of the two wings and made contributions in material. After the completion of the building several members of the family lived in Alepe House and they have continued to live there up to the present.
About the year 1900 the three brothers built another house at Cape Coast known as Acquah Hotel. This house was built with the assistance of the members of the family: they carried stones sand, swish, water, timber and other building materials.
With regard to the other four properties the plaintiff contends that they are family properly inasmuch as they were purchased out of the profits from the joint venture of Alepe House and Acquah’s Hotel. In other words Tsetsewa contends that inasmuchas all the three brothers have died she, as the head of the family, is entitled to claim those properties on behalf of herself and the other members of the family in view of the fact that they are family properties.
The case for the defendants is that all the properties mentioned in the plaintiff’s writ of summons belonged to Charles, John and Joseph as joint owners and that no member of the family helped or contributed anything towards the buildings or towards the purchase of the lands. They (defendants) further contend that it was not the intention of the three brothers that the members of their family should have any interest in the properties. They however admit in paragraph 6 of their statement of defence that certain members of the family lived in Alepe House by the leave, licence and courtesy of the three brothers”.
The substantial questions before this Court are:
a. Are the properties family properties?
b. Whether Joseph, as the last surviving brother, could make valid testamentary dispositions of the properties?
(c) Whether English law or whether Fanti customary law governs the determination of the case?
Before we deal with these questions it is necessary to state that Charles, throughout his life, showed deep interest not only in the welfare of his brothers John and Joseph but also in all the other members of his family. In the various letters written by Charles from the Ivory Coast to his brothers in Cape Coast it is clear that he treated the family with kindness and generosity, and was always anxious to identify the interest of the family with the properties which he, John and Joseph acquired. Charles did all he could to make his family happy and prosperous and he made substantial contributions towards the purchase of all the properties in question.
Before the court of the Provincial Commissioner there was evidence to show that the family have definite interest in Alepe House and Acquah’s Hotel, and it makes no difference that the lands on which these houses were built were jointly bought by the three brothers. It is significant that in his Will, Joseph does not dispose of any of the real properties involved in this action. All he has done is to apportion the rents accruing from the properties to various persons, including the plaintiff and other members of the family. This suggests that Joseph knew that the properties were family properties or at least that the family have some interest in them and he could not dispose of them without recognizing that interest.
At pages 79-81 of Redwar’s comments on the Gold Coast Ordinances, the learned Author says:-
“According to Native Law there is a presumption in favour of all land being jointly held by a family or other community, which presumption may, however, be rebutted by evidence that it has been acquired by an individual through his own personal exertions in trade or otherwise, without any assistance from the community of whom he is a member, or by gift to the individual apart from the rest of the community. Absolute and exclusive ownership of land by one individual is still comparatively rare, although individual property will probably increase as time goes on, and European notions get a firmer hold of educated natives.
“Joint family or stool property is still, however, the rule, and individual property the exception, as Mr Sarbah says in his work on ‘Fanti customary law’. Nevertheless, as “individual property does in fact exist, it is desirable to “consider the position of the individual owner. It is clear that although the land of a native may be individual property, he is absolute owner of it, and has not an estate in fee simple, inasmuch as no land owned by natives is held, in strictness, by Tenure, as in England. Of course, if he be married under the provisions of the Marriage Ordinance, 1884, the change of legal status brought about by such marriage affects his positions as regards the devolution of his property upon his death, a matter which has been considered in a previous article. This is also clear that he has an unfettered right to dispose of his individual during his lifetime, or by Will. The native however, while recognizing individual property, does not regard it with favour, and upon the individual owned death interstate, it is held that the property then becomes impressed with the character of Joint Family Property, and devolves upon his heir by Native Custom as the head of the Family community. Where, however, the individual owner dies leaving a Will, the heir by native custom is bound by the dispositions of the Will, and the recipients of the testator’s bounty can enforce their rights even in the Native Tribunals, the Native Law on this point being now fully established.”
The defendants’ main contention is that Charles, John and Joseph jointly acquired all the properties in dispute, so that the properties were all the joint properties of the three and upon the death of Charles, the properties became the joint property of John and Joseph, and upon the death of John, the properties became solely vested in Joseph as the last surviving brother and he could dispose of them by his Will. In support of this contention the case of Fawcett v. Odamtteri, reported at paces 339-343 of Full Court Reports, 1926-29 was cited. We have examined this report and we are of opinion that the principles enunciated in that case do not apply in the present case for these reason. In that case, the six purchasers were not brothers, and the question whether they were bound by Fanti customary law was not mentioned. In the present case, Charles, John and Joseph were brothers and the Fanti law and custom applicable to joint acquisition of property by more than one member of the family is undoubted, namely that such property becomes family property.
Sarbah at pages 88 and 89 of his ”Fanti customary laws (2nd Edition) thus defines “Family property” and “Self-acquired property”:-
”Family property is any movable or immovable thing acquired —
(i) By the joint labour of the members of a family. One of the most common instances of this is the building of a house by the members of a family; or
(ii) By the contributions from two or more members of one’s family.
“Property is designated self-acquired or private, where it is acquired by a person by means of his on personal exertions, without any unremunerated help or assistance from any member of his family; or without any advance or contribution from the ancestral or family of his family”.
It has never, so far as we are aware, been suggested before this case that where two or more members of a family combine to acquire property, the property so acquired becomes the private joint property of the two or more and not family property. In our opinion the evidence adduced on behalf of the defendants is not sufficient to rebut the strong presumption in favour of family property which is the rule among Fanti-speaking people. We are of opinion that native law and custom must govern this case.
The Deputy Provincial Commissioner appears to have based his judgment solely on the English law of survivorship, and to have disregarded native law and custom. As already stated, we take the opposite view.
In all the circumstances we hold that Alepe House, Acquah’s Hotel and all the other four properties are family properties. Accordingly the plaintiff is entitled to a declaration in her favour. The appeal is allowed and the judgment of the Provincial Commissioner’s Court, including the order as to costs, is set aside, and it is directed that if any sum has been paid by the appellant to the respondents in pursuance of that judgment it shall be refunded. It is ordered that the appellant be granted a declaration as prayed. The appellant is awarded costs in this Court assessed at £73 14s 9d and in the Court below to be taxed.
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