1948
HIGH COURT
GHANA
CORAM
AI Generated Summary
This ruling by Jackson, J concerns a preliminary issue in a dispute between Ekua Kwoba and the Roman Catholic Mission over land at Cape Coast originally purchased by John Ward Kankam in 1916. After Kankam died intestate in 1939, his sister Susannah Kankam became successor under Fanti Customary Law. Kwoba claims exclusive title based on Susannah’s will appointing her successor and alleges the Mission trespassed after a 1946 conveyance executed by James Felix Mends acting as head of the family. With counsel’s agreement, the court sought expert testimony from the Fanti Confederacy Native Authority. The judge found that, upon intestacy, self-acquired land becomes ancestral, to be managed by a successor who has only a life interest and cannot dispose of it by will; alienation requires consent of the Naamba. The court held Susannah’s will could not dispose of the land and limited its decision to the preliminary issue, leaving parties to consider further proceedings.
Ruling:
The facts in this case which are undisputed is that on the 21st September, 1946 the late James Felix Mends purporting to act as the Head of the family of the late John Ward Kankam conveyed to the Roman Catholic Mission by Deed a piece of land situate at Cape Coast.
It is agreed that this land was purchased by late John Ward Kankam in 1916 and that by customary law that land became his self-acquired property to dispose at his will during his life time.
It is agreed that John Ward Kankam died intestate on 25th February, 1939, and that his sister Susannah Kankam by customary law became his successor, but it was denied by the defendant-Mission that the said Susannah Kankam was the sole surviving uterine relation of John Ward Kankam.
In paragraph 5 of the Statement of Claim the plaintiff pleads:
"By her said Will, Susannah Kankam appointed plaintiff her successor according to custom and this appointment was confirmed by a judgment of the Ogua Native Court...........".
The case as presented by Mr. Johnson, Counsel for Ekua Kwoba, the plaintiff, is that when property is self-acquired and the acquirer dies intestate the property devolves solely through the uterine relations, i.e. only a person born of the same mother of the acquirer can be appointed a " successor", and that, further the last surviving uterine relation holding that property has the right to dispose of it in any manner that she wills during her lifetime. In other words, that being the sole surviving uterine member she is in precisely the same position as regards the disposal of the property as was the original acquirer.
Mr. Johnson says that Susannah Kankam, being the sole surviving sister of the late John Ward Kankam and that neither she nor John Ward Kankam having children, was entitled to dispose of that property, and did so by appointing Ekua Kwoba as her successor, but he does not plead what estate or interest in the land was bequeathed to her under the Will of the late Susannah Kankam (otherwise known as Yaa Ampomah).
Ekua Kwoba now claims that the exclusive title of ownership of this piece of land is vested in her and that the defendant-Mission have trespassed by erecting buildings upon that land.
Mr. Sekyi for the defendant-Mission denied that the title of exclusive owner was vested in the plaintiff upon the death of Susannah, and argued that the descendants both of Kankam and James Felix Mends had interests as joint owners as being the uterine descendants of the same grandm