ENNIN v. PRAH
1959
HIGH COURT
GHANA
CORAM
- ADUMUA-BOSSMAN J
Areas of Law
- Probate and Succession
- Property and Real Estate Law
1959
HIGH COURT
GHANA
CORAM
AI Generated Summary
The trial court's judgment that the late Kofi Nkum's self-acquired properties belonged to the wider Twidan family and that the sale without their concurrence was invalid, was overturned on appeal. The appeal court recognized that under native customary law, the properties should be inherited by the matrilineal descendants from Kofi's mother. The sales conducted by the immediate family were valid and a long delay in challenging these sales rendered the claims invalid.
JUDGEMENT OF ADUMUA-BOSSMAN J.
(His lordship set out the history of the matter, and proceeded):—It is clear that the trial-Court proceeded upon a complete misconception as to the identity of the family to which the properties belonged, and which could deal with them.
The late Kofi Nkum's properties could not devolve upon, and become vested in, the wider Twidan family of which he was a member in his life time. They devolved upon, and became vested in, his immediate family group. This consisted of all who were descended matrilineally from the same womb as himself-his surviving brothers (if any), his surviving sisters (if any), and the surviving children of his sisters, dead or alive (see the dictum of Deane C. J. in Larkai v. Amorkor & ors. (1 W.A.C.A. 323 at 330); and that of Strother- Stewart J. in Santeng per Ohimen v. Darkwa & anor. (6 W.A.C.A. 52 at 53)). In the proper and true conception of the native customary law of inheritance and/or succession, it is Kofi Nkum's family (consisting of the matrilineal descendants of his mother, or, in the absence of any such, the matrilineal descendants of his mother's mother) who are entitled to the beneficial use and enjoyment of the self-acquired properties left by him. It is they, therefore, who are entitled to control the disposition of such properties, not the Head and principal elders of the wider Twidan family of which all the parties are members.
Does the evidence establish that the disposition of the properties to the defendant was by the immediate family group? The answer is clearly in the affirmative. The sale is admitted to be by their Head, the successor Kwaku Nkuma, in whom the title was vested. In Santeng per Ohimen v. Darkwa Strother-Stewart J. refers to Sarbah's Fanti Customary Law (2nd Ed.) p. 83, as follows:—"The owner of self-acquired property can in his life-time deal with it as he pleases. . . As soon as he dies, his successor is entitled to all the property he died possessed of . . . subject to the usual rules of inheritance." The learned Judge goes on to point out, "He has many duties to perform. He has to pay the debts of the person to whom he succeeds, and to collect all assets. He would also be responsible for holding such of the property of the person to whom he succeeds as family property, if such was its nature."
I turn to the question of the concurrence of members of the family in the sale. From the evidence available, it appears sufficiently clear that the transactions had the con