NEE MENSAH LARKA
V.
AMORKOR & 3 ORS

JELR 80640 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
 · 
Other Citations
1936-39 1 WACA 323-331
CORAM
MICHELIN, J.
Core Terms Beta
plaintiff
court
defendants
page
dispute
family property
evidence
appeal
learned judge
judgment
family stool
family property of the larkai family
judgment of the court
writ of summons
customary law
family head
finding of the learned judge
good care
immediate gift
lifetime of ahuru
mr. sawyerr
native law
plot of land
said ahuru
said coffe jarfro
grounds of appeal
head of the larkai family of manhia claims
late alice larkai alias otua
own individual property
particulars of claim
property of the larkai family
real issue

MICHELIN, J.

This is an appeal by the plaintiff from the judgment of Barton, Acting J. dated the 14th of August, 1933, in which he held that the property in dispute was not the property of the Larkai family and gave judgment in favour of the defendants with costs,

Upon the appeal coming on for hearing before this Court, Counsel for the appellant informed the Court that in so far as the respondent J. Kitson Mills was concerned, the appellant had discontinued the appeal from the Judgment of the Court below and the respondent had been notified accordingly, The appeal was argued therefore only in regard to the other three respondents.

Seven grounds of appeal were originally filed, which appear at page 234 of the record; the following additional grounds were however subsequently added with the leave of the Court:-

(8) The learned Judge was wrong in holding that there was no proof that the property was family property.

(9) That there was no evidence to support the finding of the learned Judge that Ahuru gave Otua the property in dispute,

(10) The learned Judge was wrong in holding that undisputed possession by Otua ripened into full ownership of the land.

(11) The judgment is contrary to native law and custom which presumes all property to be family property until the contrary is proved.

In arguing the appeal Counsel for the plaintiff restricted his arguments entirely to grounds (1) and (8). Ground (1) reads as follows:-

“(1) Whether the defendants did not fail to prove a grant from Ahuru to their mother, which was their case.” Arguing these grounds he referred the Court to the writ of summons dated the 4th of April, 1933, which appears at page 1 of the record of appeal, in which the particulars of claim are stated as follows :

“The plaintiff as head of the Larkai family of Manhia claims against the defendants jointly and severally a declaration that all that piece or parcel of land with the buildings thereon situate lying and being at the junction of Horse Road, Zion Street, Ussher Town, Accra, and bounded on one side by Zion Street, on one side by Horse Road, on one side by properties belonging to Adjumaku, Ahele, Mensah and Kwamang, and on one side by property belonging to Amarley Richardson is family property of the Larkai family.

“The plaintiff further claims recovery of possession of the said land with the buildings thereon from the defendants, and also mesne profits for the use and occupation by the defendants of the said land with the buildings thereon from the 31st day of July, 1932, till possession is delivered to the plaintiff.” The writ of summons was originally instituted as against the first three defendants only, the fourth defendant, the holder of a deed of mortgage dated the 13th of July, 1931, executed by the late Alice Larkai alias Otua, the mother of the other defendants, in his favour, having been subsequently joined by the Court as a co-defendant on the 31st of May, 1933.

He next referred to the opening statements of Counsel on each side which appear at page 15 of the record.

He next referred to a document which appears at page 270 of the record and which reads as follows :-

“Know all the witnesses by these presents that I, Coffe Jarfro of Accra Fisherman Larkai Street Ussher Town, do hereby granted given all the properties known as the property of I the said Coffe Jarfro, was given unto the hand of my Dearest Own Brother Ahuru of Ussher Town Accra Fisherman who have taken good care of me during all my sickness, who have feeding me with anything desired all the time, and I the said Coffe Jarfro now given the full power unto the said Ahuru to claim my things known as the property of me to hold free from the interference and control of the families, and by these presents hath freely given to the said Ahuru and also my four sons namely Larty Quarshie, Larteyhye, Larteh-Quaro and Dearnyanbiyer, etc. to take good care of them to feed them, to clothed them, and to attend them during any sickness or trouble whatever.

“Witness my hand and seal this 12th day of September, in the year of our Lord one thousand eight hundred and eighty-nine, 1889. My COFFE JARFRO X mark. My AHURU X mark. “Witnesses “JAMES GEORGE AYETEY.” and to a judgment of Hutchinson, C.J. in the case of Ahuru v. Larkai Mensah which appears at page 261 of the record, in which the plaintiff sought to establish his title to certain land at Ussher Town Accra. This judgment reads as follows:-

“I find that the document J .E.M.I. was written at the time when Ahuru and his witnesses say it was written and that it is Jarfro's deed; That Jarfro understood the effect of it, and intended by it to make an immediate gift of all his property to Ahuru, revocable in his life-time, but to be irrevocable if he should die of the illness under which he was then suffering without having revoked it.

“I find also that the property in question in the first action is family property which Jarfro could not alienate. Both actions must therefore be dismissed. I give no costs in either action.”

He admitted that the land now in dispute was one of the properties of the late Jarfro referred to in the document dated the 12th September, 1889.

Assuming, however, that now acquire the property as his individual property, he contended that on his death it became family property, and upon Ahuru’s death, it also became family property. In order for the defendants to succeed, therefore, it would be necessary to prove grant inter vivos from Ahuru to Otua, which he submitted they had entirely failed to do.

Mr. Sawyerr on behalf of the respondents contended that the case put forward in the Court below was different to the case now put forward.

In the Court below the plaintiff claimed the property by reason of his succession to the family stool. It was not then claimed that he succeeded to the family property of the late Ahuru.

As regards the ownership of Otua, he submitted that she was in possession of the property claimed during the lifetime of Ahuru from the year 1907 up to the time of her death in 1932. The evidence showed that she built on this property, drew the rents derived from it, paid the rates, and exercised other rights of ownership.

The learned Judge after reviewing at length all the evidence before him, stated as follows :- “I am satisfied that all the facts in this case are consistent with Ahuru having given Otua the property in dispute, but that even if he did not give it to her undisputed occupation over a period of at least 25 years ripened into full ownership of the land on which she had established a home.” In my opinion the learned Judge drew wrong inferences from the facts proved before him.

It appears to me clear from the evidence in the Court below that the property now claimed was originally the individual property of the late Jarfro, having been given to him in the year 1872 by the then Gbese Mantse. During his lifetime he executed the document, which was admitted in evidence as Exhibit “D.” I agree with Hutchinson, C.J. that in executing this document, he intended to make an immediate gift of all his property to Ahuru. Although in this document he also asks Ahuru to take care of his children and to feed and clothe them, this request in no way vested any interest in this property in his children.

The property now claimed in the present action, being therefore the Individual property of Ahuru, he could have disposed of it during his lifetime if he had so desired. There was no evidence whatever, however, in the Court below, that he did so dispose of it. On the contrary it appears abundantly clear that on his death intestate it became family property. It is not disputed that on his death he was succeeded by his sister Larteley, and then by his sister Otua, who up to the time of her death managed the property as head of the family of the late Ahuru. The fact that she was in long possession of this property and receive rents and paid were facts consistent with her position as head of the family, and the two deeds admitted in evidence as exhibits “8”and “H” and my opinion completely negative any suggestion of a gift inter vivos having been made to her by Ahuru.

I am satisfied, therefore, that on the death of Ahuru intestate, the property claimed in the writ of summons and which during the lifetime of Ahuru was his individual property became family property. Otua who succeeded him as head of his family had no authority whatever to dispose of this property by her will, and on her death such property would vest in the person who, in accordance with native customary law, was the proper successor to the family property of the late Ahuru as a trustee on behalf of the family. (See Sarbah’s Fanti Customary Law at page 255 par. 9), and the judgment of Smyly, C.J. in the case of Papppoe v. Wingrove, Div. Ct. 1921t19fl5 at page 23).

In the course of his judgment the learned trial Judge stated as follows:- “With regard to the contention that the plaintiff is not the proper person to bring this action, it has not been suggested that anyone else is the head of the family, and although I am satisfied that since the plaintiff was enstooled there was no meeting of the family to appoint a family head, in view of the fact that the stool is a family stool and the plaintiff is on that stool I am of opinion that he is entitled to bring this claim.”

The learned Judge in arriving at this conclusion evidently confused the principles of succession of family property, with the principles of succession of a family stool. Although as stated in Sarbah’s Fanti Customary Law at page 256 the family stool frequently descends to the-son, it is clear from the various decisions of the Supreme Court of this Colony that in Accra, according to Ga Custom, descent to family property is traced through females, and that the son does not succeed as head of the family. (See Sackey v. Okantah Div. and F.C. judgments 1919, 88, Botchey v. Vanderpuye, Div. Ct. 1921-25, 8, and the report of Mr. Justice Smith, which appears in Sarbah’s Fanti Customary Law at page 256).

It is clear from the evidence that although the plaintiff now sits on the Larkai family stool since the death of Otua, her successor in accordance with native customary law to the family property of the late Ahuru deceased, has not yet been elected or approved by the family.

The learned Judge was wrong, therefore, in holding that because. The plaintiff sat on the family stool he was entitled to institute the present action.

The facts in the case of Ababio v. Quartey, P.C. .1874-1928, 4O, to which we were referred, may be distinguished from the facts in the present case, and in my opinion this Court would not be justified  in granting such an amendment of the writ of summons as would justify the plaintiff in his having instituted the present action, it being a matter still in dispute as to who is now the proper successor in accordance with native customary law to the family property of the late Ahuru deceased, moreover there is another dispute as to whether the family property of Ahuru is also the family property of the Larkai family.

In my opinion upon the evidence before him the learned Judge should have nonsuited the plaintiff instead of entering judgment for the defendants. In view, however, of the fact that the first three defendants completely failed to prove that their mother Otua, from whom they derived their title, had any interest in the property claimed which was capable of being disposed of by will, such nonsuit should have been without costs.

The appeal must therefore be dismissed, but the judgment of the Court below must be varied by substituting a judgment of nonsuit, without costs, for the judgment in favour of the first three defendants with costs. This decision will, of course, not prevent anyone hereafter duly elected to be head of the family of the late Ahuru deceased from instituting a fresh action, if so desired, to recover possession of the property now claimed. As regards the costs in this Court, each side will pay its own costs. DEANE, C.J. THE GOLD COAST COLONY.

This is an appeal from the decision of Barton, Acting J. in favour of the defendants. The action was brought by the plaintiff in his capacity as head of the Larkai family for a declaration that a plot of land at the junction of Horse Road and Street, Accra, was the family property of the Larkai family and for possession.

The facts which gave rise to the dispute were that the property in question had been devised under the will of one Otua to the defendants other than Kitson-Mills who are her daughters (Kitson- Mills being a mortgagee), and the suit was brought to establish that the land was family property of the Larkai family and never belonged to Otua so as to enable her to dispose of it by will. It appears that the land in question was originally given to one Jarfro and that in the suit of Ahuru v. Mensah, heard in this Court, it was held by Hutchinson, C.J. that it was Jarfro’s own individual property and was by him given under a document dated 12th September, 1889 to his brother Ahuru.

The root of title therefore is in Ahuru to whom also the land was given in his individual capacity, but with a request by Jarfro that he should care for his four sons mentioned in the document, and the real issue between the parties in this case was whether the land on the death of Ahuru, who died intestate, became family property or whether during his lifetime it had been given by Ahuru to Otua as her individual property which she could dispose of by will.

Now the presumption of law on the Gold Coast is that property held by an individual becomes family property on his death intestate, and that presumption can only be displaced by satisfactory evidence that during his lifetime he parted with the property by giving it to another. In this case the learned Judge found that the property had been given by Ahuru during his lifetime to Otua his sister, but in my opinion there is no evidence to support such a finding. There is no documentary evidence of such a gift so as to constitute a gift by English Law, and we have therefore to enquire whether there is any evidence of a gift by native customary law. Here also there is an entire absence of such evidence. Native law requires to establish such a gift a public affirmation by the donor of the gift in the presence of the other members of his family, and an acknowledgment by the donee of the gift by the slaughter of a sheep or by thanking the donor with a bottle of rum: here nothing of the kind is alleged. The learned Judge’s finding, therefore, that the land was given to Otua cannot be sustained.

The learned Judge went on to find that, even if the gift was not satisfactorily established, “the undisputed. Possession of the property by Otua over a period of at least 25 years ripened into full ownership of the land on which she established a home.” Once it is conceded, however, as I have shown it must be that here is no proof of a gift by Ahuru to Otua during his lifetime it follows that on his death intestate the property became the property of his family, and the possession of the property by Otua even for 25 years and her receipt of the rents and profits from it over that term cannot be held in the words of the learned Judge to “have ripened into full ownership of the land on which she had established her home,” since her possession was as head of the family of Ahuru she being his eldest surviving sister after the death of Larteley who succeeded to Ahuru on his death, As head of the family she would have the right to live on the property and to receive the rents and profits without accounting to any of the junior members of the family, and it is clear that by so doing she could not acquire any proprietorial rights for herself and as against her family.

The documents “8” and “H” which are in evidence prove also conclusively that this land was family and was well recognised to be such by Otua. The explanation of “H” as being an attempt by Otua to defraud creditors does not appear to me either adequate or probable: it seems rather to be an attempt by Otua, who may have been affected by doubts whether the rights of Jarfro’s children under the document of 12th September, 1889 might not affect her position as head of the family vis-à-vis this land, to obtain an affirmation from these same children that the land was entirely family property and that they had no individual rights in it. To my mind it is clear that this land on the death of Ahuru passed to his eldest surviving sister Larteley, and on her death to Otua as the successor, and that the land is the family land of Ahuru.

Now the plaintiff has claimed this land as being the head of the Larkai family. Ahuru it is true was called Ahuru Larkai and it seems was a member of the Larkai family, ‘but individually owned property of his would, on his death intestate, became the family property, not of the Larkai family, but of his own family.

Family property descends according to the custom of the Gas through females, a stool which is a dignity descends through males.

The plaintiff as a son of Jarfro is the present holder of the Larkai family stool, but he would not thereby necessarily become the head of the family entitled to hold the Larkai family property, and certainly he would not be a member of Ahuru’s family so as to become the head of his family and as such entitled to the family property of Ahuru so as to sue for it in this Court.

All the evidence given in respect of him that he is head of the family must be taken as referring to the Larkai family and not to the family of Ahuru and although Ahuru’s family is probably a sub-branch of the Larkai family, it is clear that the Larkai family has a much wider ambit and includes a far larger number of individuals than Ahuru’s family could ever do.

In my opinion, therefore, it is certain that the plaintiff cannot succeed in this case as the head of the Larkai family since the Larkai family as such have no interest in this land which is not their family property but the property of the family of Ahuru. The finding of the learned Judge that the plaintiff could sue as head of the Larkai family thus turns out to be quite irrelevant, and Mr. Sawyerr was in fact conceding nothing when he stated in answer to the Court at the opening of the appeal that he did not contest it, since the property does not belong to the Larkai family,

The real contest between the parties, however, as it developed during the course of the case and as I pointed out at the beginning, was whether this land was family land or the private property of Otua. The learned trial Judge found it was the private property of Otua, and therefore gave judgment. For the defendants.

As he also found that plaintiff had the right to sue as head of the Larkai family, the inference is clear to my mind that had he decided against the land being the individual property of Otua he would have given judgment for the plaintiff. In this also he would in my opinion have been wrong since the Larkai family is not Ahuru’s family, and it is to Ahuru’s family that the land belongs.

Both parties to this litigation therefore have failed to establish any title to this property, but it is an undoubted fact, as appears from the evidence of Hammond who belongs to the family of Ahuru, that an attempt was made after the death of Otua to appoint a successor who should take charge of this property as family property and that this attempt was frustrated by the defendants who claimed that it was their mother’s individual property which she could dispose of by will. That being the case it is clear that simply to dismiss this appeal would operate to confirm the possession of the defendants to this land.

I think in the peculiar circumstances the appeal should be dismissed, but the judgment of the Court below should be varied by nonsuiting the plaintiff, and ordering that the parties should bear their own costs both of this appeal and in the Court below. That will leave it open to the head of the family of Ahuru by native customary law to take such steps as he may be advised to obtain possession of the property as head of the family.

The Court below to carry out. WEBBER, C.J. SIERRA LEONE. I concur.