CARBOO v. CARBOO

JUDGMENT OF OLLENNU, J.

[After narrating the facts his lordship continued :] It was submitted on behalf of the defendant that upon a Ningo man's death intestate his children inherit, and his property automatically vests in his children as upon a devise; and that it is only when all the children are minors that some relative may be appointed to take charge of the property. I must say at once that this submission is a misconception, and is against all the fundamental principles of our customary law of succession.

The most elementary principle of our customary law of succession is that upon a man's death intestate, his self-acquired property, real and personal, vests automatically in his family. That family may be the patrilineal family, or the matrilineal family depending upon the tribe to which the deceased belonged. In this case, therefore, upon the death of Alfred Jonas Carboo, all his self-acquired property vested in his family.

The next general principle of our customary law of succession is, that succession is not as of right, a successor must be appointed by the family who inherit the property; see the case of Attipoe & Anor. v. Shoucair & Anor.1 where Coussey, J. as he then was, stated the law as follows:-

"In native custom all succession is a question of election by relatives not of inherent right; the only rigid rule is that the election shall be constitutionally carried out at a proper meeting of relatives."

Also in the case of Makata v. Ahorli & Ors.2 the West African Court of Appeal said:

". . . there is no codified or rigid law of inheritance anywhere in the Gold Coast although it is spoken of as the Native customary law. The elders, on due consideration where circumstances so warrant, may depart from the usual practice and often do so . . .

"I have stated earlier that there is no rigid law of inheritance in Native custom. If the family decided, as the evidence indicates they did, in justice to the plaintiff who had helped the deceased and probably worked the farms with him, that a more distant relative was more deserving and should inherit from him, there is nothing strange or improper about that - it was within the decision of the family council, of which, on the evidence, the deceased's brother, Siameh Boshua, was a member.3

The estates with which these two cases were concerned were estates of persons who belonged to the patrilineal family system; there is a host of authorities which lay down the same principle with respect to both