1948
HIGH COURT
GHANA
CORAM
AI Generated Summary
On appeal from Native Court "B" of Edina State, Quist, J addressed a dispute over land and dwelling house No. 754 at New Town, Elmina. Family members of the Kwamina Kwagya Ebiradzi Family claimed the property as family-owned, asserting it was purchased and built jointly by brothers Kwesi Koom and Kodjo Wireku, with family labor and an open declaration by Kwesi Koom that it be held as family property. The defendant, Effua Milbah, widow of Kodjo Wireku, relied on his 11 August 1947 will, probated on 12 April 1948, to assert individual ownership. The Native Court recognized the property as family property but erroneously decreed joint ownership between the family and the widow. Applying Fanti customary law, Quist, J set aside the joint ownership pronouncement, entered judgment for the plaintiffs, allowed the appeal with costs, and denied counsel costs to the unrepresented respondent.
Judgment :
This is an appeal from the Judgment of the Native Court " B" of Edina State.
The claim in the suit, as appears in the record, reads as follows:-
"The Plaintiffs' claim is for a declaration that the land and dwelling house thereon No. 754 situate at New Town Elmina is family property of the plaintiffs and members of Kwamina Kwagya Ebiradzi Family of Elmina, and not the individual or self acquired property of Kojo Wireku deceased, the said land and dwelling house having been devised by the said Kojo Wireku deceased, in his Will dated the 11th day of August 1947 and admitted to Probate by the Divisional Court Cape Coast on the 12th day of April 1948".
It is admitted that all the parties in the case are Fantis.
Neither plaintiff was described as head of family, but their right to sue on behalf of themselves and of the family has not been questioned. The right of members of a family to sue in protection of the family property is well recognized by the Courts, and cannot be disputed.
The plaintiffs' case is that the land with the house thereon the subject of the action, is the family property of the Kwamin Kwagya Ebiradzi Family of which they are members, the said property having been acquired jointly by two brothers, Kwesi Koom and Kodjo Wireku members of the family; and that consequently one of the brothers, Kodjo Wireku who survived the other, could not make a valid testamentary disposition of the same.
The case for the defendant is that the said land with the house thereon is her property, the same being the individual property of her deceased husband Kodjo Wireku who by his Will dated the 11th day of August 1947 devised the same to her, and which Will was admitted to Probate by the Divisional Court Cape Coast on the 12th day of April, 1948.
The material questions for determination by the Native Court were:
(a) whether the property was family property,
(b) whether Kodjo Wireku could make a valid testamentary disposition of the property.
It was admitted by both parties that the land was purchased by the two brothers Kwesi Koom and Kodjo Wireku as evidenced by the indenture of conveyance Exhibit " C"; that the house was built by them jointly, and that the two of them occupied the premises together.
The plaintiffs further proved that one of the brothers Kwesi Koom intended that the property should be held as family property, and made an open declaration to that effect, also that other members of the family contributed labour during the pr