–
[CONSSOLIDATED CASES]
M. CAPTAN OF ACCRA AND ANOTHER
V.
ROBERT ADJABENG ANKRAH, ETC.
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
22ND DAY OF FEBRUARY, 1951
2PLR/1950/33 (WACA)
OTHER CITATION(S)
2PLR/1950/33 (WACA)
(1951) XIII WACA PP. 151 – 157
LEX (1951) – XIII WACA 151 – 157
BEFORE THEIR LORDSHIPS
LEWEY, J.A.
COUSSEY, J.
KORSAH, J.
–
BETWEEN:
1. M. CAFTAN OF ACCRA – Defendants-Appellants
2. CHARLES AMOO ANKRAH AS HEAD AND REPRESENTATIVE OF MANTSE ANKRAH FAMILY OF OTUBLOUM, ACCRA – Co-defendants-Appellants
AND
ROBERT ADJABENG ANKRAH OTHERWISE KNOWN AND CALLED ARDAY ANKRAH ON BEHALF OF OTUBLOHUM DADEBANNA, ACCRA – Plaintiff-Respondent
AND
1. J. K. Q.ARYEH,
2. D. S. QUARCOOPOME,
3. J. AMOS LAMPTEY,
4. CHARLES AMOO ANKRAH,
5. J. R. ANKRAH,
6. A. DINNAH ANKRAH
7. AFLAH QUARCOOPOME – Defendants-Appellants
AND
1. INAA QUARDUAH ANKRAH
2. R. A. ANKRAH, OTHERWISE KNOWN AND CALLED ARDAY ANKRAH BOTH OF ACCRA – Plaintiffs-Respondents
–
ORIGINATING COURT(S)
Appeal from the Land Court. W.A.C.A. CIV. APP. 108/48
–
REPRESENTATION
E. C. Quist with Akufo Addo for the Defendant-Appellants (other than Captan)
E. O. Asafu Adjaye, for the Appellant, Captan
K. A. Rossman for Plaintiff-Respondents
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Succession to family property by Ga Customary Law – Where holder of Stool family property died leaving two brothers, all three being sons of same mother who left no daughter – To whom does property pass on death of Stool Holder – To the children and immediate descendants of Stool Holder to the exclusion of the children and descendants of the two brothers or to the members of all three lines of the family
–
CASE SUMMARY
The Appellants were the Defendants.
The Ga Stool granted land to Mantse Ankrah, who died leaving two brothers. All three brothers were sons of a woman named Amanuah. It was admitted that Amanuah left no daughter through whom, according to native customary law, inheritance would follow on the death of the surviving brother.
The plaintiff’s case was that Mantse Ankrah was the occupant of the family Stool, and that the Stool family was and is the descendants of the three brothers. The defendant-appellant, Charles Amoo Ankrah, contended that the property passed to the children and descendants of Mantse Ankrah to the exclusion of the descendants of the two brothers.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held: (Korsah, J dissenting).
Every member of the three lines had an interest in the land to the extent that if they wished to farm upon it they could do so or give up all tribute upon seeking and obtaining the consent of the caretaker of the land.
Cases referred to:
(1) Sackey v. Okantah, Dis. & Full Court Judgements 1911-1916.
(2) Sarah, Ribeiro v. Elizabeth Mingle, judgement by Tribunal of Paramount Chief Ga State, 4th July, 1944.
–
–
MAIN JUDGMENT
The following Judgements were delivered:
COUSSEY, J.
This is an appeal brought from the Judgment of Jackson, J., in the Land Court, Accra, in two consolidated actions arising out of grants of portions of an area of land at Accra known as Awudome. The main issue between the parties was whether on the death of Mantse Ankrah, who was granted the land in question by the Ga Stool, the land was Stool family property as the plaintiffs contend and became the property of the descendants of Mantse Ankrah and his brothers Nii Ayi and Nii Okantah, or whether, as the defendants maintain, upon the death of Okantah (Ayi having predeceased him) according to the Ga customary law of succession, all interest in the property reverted to the children and immediate descendants of Mantse Ankrah to the exclusion of the children and descendants of Ayi and Ohantah. It is admitted that Ankrah, Ayi and Okantah were the sons of a woman, Amanuah. It is further admitted that Amanuah, had no daughter through whom according to the customary law, inheritance would follow on the death of the surviving brother of Mantse Ankrah.
The plaintiffs case, however, was that Mantse Ankrah was the occupant of a family Stool, the Otu Ahiakwa Stool of the Dadebanna section of the Otu Blohum quarter of Accra which is comomnly known as the Mantse Ankrah Stool and, as stated above, that, the land in dispute is family property attached to that Stool, and that the Stool family was and is the descendants of the children of the three brothers Ankrah, Ayi and Okantah.
The dispute arises in the following circumstances: M. D. A. Ankrah, the principal plaintiff in each of the consolidated actions was a grandson of Ayi, and he claimed to have an interest in the land. His case was that he was duly appointed acting Head and representative and custodian of the Stools and lands for the descendants of the three branches of the above-named family, and that at the material time when the second defendant Charles Amoo Ankrah purported as Head of the Mantse Ankrah branch alone to grant by absolute conveyance a part of the Awudome land to the defendant Captan, a stranger to the family, he the plaintiff, was the duly appointed representative of the three families with whose consent and authority he had control and custody of the family Stools, paraphernalia and lands including the land in dispute and that the grant by C. Amoo Ankrah was therefore invalid.
The plaintiff supported his claim to be the accredited Head and representative of the three families by a written authority which undoubtedly was subscribed to by members of all three branches of the family including Charles Amoo Ankrah, who now claims that the property belongs to the Mantse Ankrah branch alone.
Prior to the plaintiff, W. A. Solomon, alias Quansah Solomon, had been appointed Attorney and Caretaker of the Stools and lands. The defendants contended that Solomon acknowledged that he had been appointed only by the Mantse Ankrah branch of the family in a memorandum subscribed to by members of the family in the year 1922.
That document, however, refers to the members of the Ankrah family “; it is not subscribed to exclusively by the Mantse Ankrah branch, and in the course of cross-examination J. K. Q. Aryeh, a defendant giving evidence as a direct descendant of Mantse Ankrah, admitted that in 1922, when Ankrah was referred to, it referred not only to Mantse Ankrah’s but to all three sections as the brothers Ayi and Okantah had adopted the name.
It is in evidence that there had been earlier litigation between the parties in which some of the issues before the Court had been determined. An action had been instituted in 1941 by four of the present defendants against Malam Dawuda to whom a plot of the land in dispute had been granted through the agency of M. D. A. Ankrah, who was joined as a co-defendant in the action.
It is interesting to note that in that suit the present fourth defendant, Charles Amoo Ankrah, in contrast to his attitude in the present litigation, supported H. D. A. Ankrah against the other present defendants who were then the plaintiffs. The Judgement of Land Court (Idun J.), 13th November, 1943, established that Awudome land was part of the Stool land of the Mantse Akrah family; that it had been so declared in earlier proceedings in 1931 and that M. D. A. Ankrah had been appointed to represent the Stool family in all matters connected with the Stool and the Stool lands.
In the present action, the defendants-appellants were rightly held to be estopped from re-opening those issues, and the main-and in fact the only issue remaining for determination by the trial Judge was whether the three branches of the family had interest in the land or only the Mantse Ankrah branch, i.e. the direct descendants of Mantse Ankrah.
That was a question involving issues of fact and Ga native customary law.
It is not necessary nor possible within the compass of this Judgement to state the evidence in detail. I will merely observe that upon a closely-reasoned review of all the evidence and the decisions relevant to the issue, the learned Judge arrived at the following conclusion in these words:-
“The preponderance of evidence before me given by witnesses who could properly be described as expert in native customary law was that not only would the consent of all three lines of the family be necessary before a valid grant or sale of the land could take effect, but that every member of the three lines had an interest in the land to the extent that if they wished to farm upon it they could do so or give up all tribute upon seeking and obtaining the consent of the caretaker of the land.”
In my opinion there was ample evidence to support that finding. Apart from the admission of J. K. Q. Aryeh already referred to, the defendants pleading admit that M. D. A. Ankrah, who was a member of the Ayi branch, was a member of the Mantse Ankrah family. This is an admission that membership of the Mantse Ankrah family is not confined to the direct descendants of Mantse Ankrah.
The learned Judge throughout his judgment kept before himself what considerations arise when land is to be alienated permanently to a stranger or granted to a member of the family who may in tum sell it to a stranger.
Upon the question of native customary law the learned Judge was assisted in arriving at his decision by the evidence of the Linguist of the Ga State called by the plaintiffs, and by the testimony of an independent Ga Chief called by the Court, as to the custom of inheritance in the circumstances presented by the case before the Court. It is true that the Assessor did not share the view of the expert witnesses & and indeed supported the defendants’ contention, but the opinion of the two witnesses referred to was substantially against the contention that the direct descendants of Mantse Ankrah alone inherited this property after the death of Okantah. On a question of the Ga custom of inheritance and family rights, the opinions, particularly of the independent Chief, are entitled to respect. They create a more than ordinary presumption in favour of their correctness and they had the concurrence of the learned Judge who, as appears from his lengthy and detailed judgment, gave anxious consideration to the case.
The argument in support of the present appeal is founded largely upon a rule of descent said to have been postulated by Smyly, C. J., in Sackey v. Okantah (1),which, the defendants contend, was followed by the Ga Native Court in the recent case of Sarah Ribeiro v. Elizabeth Mingle (2) and which, it is submitted, is applicable to the present case. The contention is that as the land as the self-acquired property of Mantse Ankrah, who died leaving two brothers but no sister or other maternal relative, on the death of the last brother, who had admittedly succeeded to the property, according to Ga customary law the land reverted to the children of Mantse Ankrah and was inherited by their descendants to the exclusion of the descendants of Ayi and Okantah. I have given very careful consideration to these authorities but I am unable to hold that they go so far as to establish such rule or that they are strictly applicable to the facts of this case. The argument involves the proposition that land of a family Stool, undivided at the death of Okantah, the brother and successor of Mantse Ankrah, could then revert to the direct descendants of the grantee as their heritage, thereby losing its character of Stool family property. I am unable to agree with that. All the cases upon which the appellants rely in the argument before this Court were considered and dealt with fully by the trial Judge and upon an examination of them I am unable to find in any of them clearly and affirmatively the doctrine contended for with reference to property after it has once been regarded as Stool family property. In cases of this kind each must depend upon its own particular circumstances and in this case, having regard to my view of the authorities and the strong evidence for the respondents at the trial, I concur with the decision of the Court below and I think it right to dismiss the appeal.
LEWEY, J.A.
I entirely agree with the conclusions of Coussey, J., and on the same grounds.
At the trial, the learned Judge dealt with every aspect of this case in a detailed and exhaustive judgment, and he carefully considered such authorities as were cited to him, though he felt constrained to remark that –
“there is very little authority whereby one can pronounce upon this matter with any degree of certainty “.
That is an observation which commands my sympathy after having listened to the lengthy arguments of counsel, on this somewhat complex matter.
In the result, the trial Judge was, to a great extent, dependent on the evidence; and upon that evidence, he came to certain conclusions favourable to the plaintiffs. At one stage of the trial the question arose as to whether it would be necessary for certain evidence material to the issues to be called, by reason of the plea of estoppel raised by the plaintiff in his Statement of Claim. Indeed, the learned Judge seems to have inclined. to the view that it was unnecessary; but, nevertheless, he took, what I may perhaps be allowed to call the fair and prudent course, of hearing the witnesses. One of the most important matters which this Court has had to consider is whether the evidence which the Judge so heard can be said to have justified his conclusions. I wish to say at once that I think, as does my brother Coussey, that it did.
As to the authorities-such as they were – I confess that I am unable to find that the decision in Ribeiro v. Mingle is of any real assistance, having regard to the facts of that case and to the issues which the Tribunal had to decide. Nor am I impressed for the purposes of this appeal by the passages in the judgment of Sir Philip Crampton Smyly, C. J., in Sackey v. Okantah upon which so much reliance has been placed by the appellants I have read that judgement with great care. But it seems to me that those particular observations of the learned Chief Justice – while entitled, of course, to be treated with great respect – are too wide and general in character, and too lacking in the requisite degree of certainty, to be regarded as definite pronouncements as to the law. Since, moreover, they appear to me to go beyond what was strictly necessary to decide the issues in the case, the safer course, in my own view, is to consider them as obiter.
This is not an easy case, nor a usual one. Counsel for the appellants, indeed, has conceded that it is an exceptional case. It is, therefore, important to remember – especially having regard to the complicating factor of native customary law – what the trial Judge was called upon to do. He had to come to a decision, in the light of the available evidence, on certain defined issues which arose from the peculiar circumstances of this case. And that, in fact, is what he did. What this Court has to say is whether his decision was right. For my part, I think it was, and I agree, therefore, that this appeal should be dismissed.
KORSAH, J.
I have had the opportunity of reading the Judgment of my brother, Mr. Justice Coussey, and it is with regret that I am obliged to dissent therefrom.
In effect, the judgment decides that, according to Ga native customary law, children of three brothers are members of one family, or can form one family for the purpose of inheritance or succession to self-acquired real property of one of the said brothers, on the demise of the last of them without a descendant of the female line.
This case is but another example of the erroneous use of the word “Family” by the parties, in a sense other than its accepted legal interpretation, by the Courts in the Gold Coast, in accordance with native customary law of inheritance or succession to property; in view, however, of the fact that there is evidence on record which in my opinion clearly proves that the parties are not members of the same family according to native law, I desire to draw attention to some of the relevant matters which I hope will explain the grounds upon which I base my decision.
Jackson, J., found as a fact, that Mantse Ankrah was one of three sons born of a woman named Amanuah, the other two being Ayi and Okantah; also that it is clear that by reason of the fame achieved by Mantse Ankrah in the Barme War of 1830, and when the land the subject matter of the suit was given to him for his services in that war, the descendants of the two brothers, namely, Ayi and Okantah, have identified themselves with his name.
Plaintiffs-respondents, who are descendants of Ayi and Okantah claim to be members of Mantse Ankrah family together with the direct descendants of Mantse Ankrah and in that capacity contend that they, together with the defendants, except M. Captan, are owners of the said land.
In the course of the proceedings, the parties referred to a judgment of the West African Court of Appeal in a suit between the parties with respect to the same land, in which it is stated:-
“It is true that the actual ratio decidendi in the Court below is not very clear, but the ordinary rule of native customary law as to descent of property through the female line prima facie applies in this case, and in our opinion no sufficient evidence has been adduced to show that any other method of descent applied in this particular case.”
The evidence adduced by the parties proves that neither the plaintiffs nor the defendants are descendants through females, from the woman Amanuah, the mother of the said three brothers – Mantse Ankrah, Ayi and Okantah, the first of whom had originally acquired the property; consequently neither the plaintiffs nor the defendants can claim to be members of the family of the woman Amanuah and of which the said three brothers were members according to native customary law.
The Ga customary law of inheritance or succession to real property with respect to the rights of the children of the owner of self-acquired property is recorded at page 110 of Sarbah’s Fanti Customary Law, 2nd Edition, where in reply to questions by Chief Justice Hutchinson in the year 1891, on Ga customary law, the late Edmund Bannerman of Accra, whom Sarbah described thus,
“That eminent solicitor and advocate, whose knowledge of the customary law and long experience in the Law Courts were unsurpassed,”
stated with respect to self-acquired property that:-
“Real property descends the same as personal property, with this exception, that it is inherited in conjunction with the children of the deceased of that marriage and such real property cannot be disposed of without the children’s consent.”
On the same point, Mr. Justice Smith stated in paragraph 14 of his opinion on native tenure, published by the Gold Coast Government in 1891, and recorded at page 274 of Sarbah’s Fanti Customary Law, same edition, as follows:-
“In the Eastern Province the same rule of succession prevails with this difference, that in some parts thereof, that is Accra, and East of it, children of 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 consent of the children.”
In my opinion this view on the Ga customary law of inheritance or succession to sell-acquired real property declared by these two eminent lawyers, has been approved by judgments of Courts of competent jurisdiction in this country, as the Ga customary law, in the following cases, viz.: Sackey v. Okanlali (1) and Sarai, L. Ribeiro &, Others v. Elizabeth Mingle &, Others (2), which was subsequently affirmed on appeal to the Land Court of the Supreme Court, by M’Carthy, J., on 14th December, 1945.
I am aware of no authority on Ga customary law, and none was cited by Counsel for plaintiffs-respondents in support of the proposition that when the last of the three brothers died without leaving a nephew or other descendant of their mother Amanuah, through female line, the children of Ayi and Okantah, became entitled to join the children of Mantse Ankrah to form a family consisting of three branches. According to native law, as I understand it, children of three brothers cannot form one family; even children of the same father by two wives cannot in native law be members of one family for the purpose of inheritance or succession to property; because every child can only be a member of his mother’s family.
With reference to the evidence of Nii Ayikai II., a sub-chief of the Ga State whom the Court below described as an independent witness and Coussey, J., describes as the expert, it will be observed that in answer to plaintiffs-respondents’ Counsel, he stated that on the death of all three brothers leaving only the children,
“It goes to the eldest child of the man who bought the land “.
He added: “As caretaker for his own brothers”.
It is true that later, in answer to questions put by the Court:-
“Q. Do you mean that the children of ‘ B and ‘ C are cut out?”
He answered:
“They are not cut out: they share; they are one family.”
Further answers by this witness seem to me to be prevarication. The whole evidence of this witness justifies the criticism of expert witnesses contained in Redwar’s Comments on Gold Coast Ordinances, page 83:-
“Evidence of Expert Witnesses called by the parties in the usual way.
“This course is open to the objections common to all expert testimony which in such case is liable to be biased according to the interest which the witnesses may often even unconsciously feel in the matter. The opinions of such witnesses almost constantly favour the side calling them, and are usually found to differ considerably Native Law, then, where it is not incorporated by judicial decision in the case law of the Colony, must be proved either by affirmation of Native Referees, or by consultation with Experts out of Court, or by expert testimony given in the ordinary way, and must stand on the same footing as Foreign Law”
It seems to me, that even if there had been no clear, declaration of Ga customary law of inheritance or succession to property prior to the judgment by the Tribunal of the Paramount Chief of the Ga State in Ribeiro & Others v. Mingle & Others, this judgment should receive greater weight than the statement of a sub-chief of the same State on the same points four years after the said judgment,
It will further be noted that the opinion of the Assessor who tried the case with the Judge, approves the views I have expressed of the opinions expressed by the late Edmund Bannerman and Mr. Justice Smith in 1891.
In my opinion plaintiffs-respondents failed to prove their claim that according to native law they are members of Mantse Ankrah family; they should therefore have been non-suited.
If, on the other hand, M. D. A. Ankrah relies solely on the Power of Attorney as his authority for his claim, then it is clear that the direct descendants of Mantse Ankrah, in whom the property vested on the death of the last of the three brothers, had power to appoint their own head, as they did, after the judgment of Quashie-Idun, J.; and thereafter to deal with the property subject only to the consent of the said direct descendants the rightful owners thereof.
In my opinion the appeal should be allowed.
Appeal dismissed.