BADU AND ANOTHER v. KRA

JUDGMENT OF ESSIEM JA.

The only point in controversy between the parties in this litigation is the ownership of house No. NT 78, Akim Oda. It was the case of the plaintiff that the said house was the self-acquired property of his late father while the defendant and co-defendant contended that the plaintiff's father acquired that property from proceeds of certain family properties he had inherited during his lifetime and therefore the property was family property.

The plaintiff's father, Kwaku Abeh, made a will and bequeathed this particular property to the plaintiff and his brothers and sisters, ie the children of the late Kwaku Abeh. The defendant and co-defendant are nephews of the late Kwaku Abeh who died on 20 September 1985.

The plaintiff admits that the co-defendant, Kwaku Boadi also known as Kwaku Dauda, was his father's customary successor. During the funeral celebrations of the plaintiff's father, a lawyer came to Ofoase where the funeral was being celebrated to read the will of the deceased but members of the deceased's family protested against the reading of the will. It appears the children took the matter to the Ofoase "ahenfie." The deceased's family members were invited to the "ahenfie" and again the will could not be read because, as the plaintiff put it under cross-examination, "the members of the family were annoyed and so we dispersed and the lawyer left."

The evidence shows that the will was subsequently read at the High Court, Koforidua and the plaintiff later obtained letters of administration with the will annexed. However, before then the defendant had been collecting rents from the property and the plaintiff instituted this action against him for a declaration of title and an order for accounts. The co-defendant applied and joined because he, as customary [p.565] successor of the late Kwaku Abeh, authorised the defendant to collect the rents and also claimed that the property was family property. There is clear and undisputed evidence on the record that the late Kwaku Abeh enjoyed the property in dispute as his own during his lifetime. The implication of the appellants' case is that whenever a person inherits property as a customary successor any subsequent property he acquires becomes family property. I cannot accept this, in the face of decided cases, as the correct customary law position. Even if the proposition is part of the customary law, but I doubt it, then where there is evidence that the person through his own hardw