ESSON vs. GYAKYI AND ANOTHER [1960]DLSC317

Date	1960-02-26
Suit No.
Citation No.	[1960]DLSC317

ADUMUA-BOSSMAN J.

ABADOO FOR PLAINTIFF.

AMOAH (WITH HIM BLAY) FOR DEFENDANTS.

[1960]DLSC317
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													<main id="main" class="content" style="min-height: 60rem" >ESSON<o:p></o:p>&nbsp;vs. <o:p></o:p>GYAKYI AND ANOTHER<o:p></o:p>&nbsp;[HIGH
COURT, CAPE COAST]<o:p></o:p>[1960] GLR 23<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
26TH FEBRUARY, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ABADOO FOR PLAINTIFF.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ADUMUA-BOSSMAN, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADUMUA-BOSSMAN J.<o:p></o:p>(His
lordship referred to the facts and continued). The matter first came before me
on January 12, 1960. In my own experience much depends (in matters such as
this) on the relationship of the alleged offending member to the head of the
family, and on the question what interest (if any) his relationship to the
original owner of the property has conferred on him. I therefore decided to
resort to the power given to the Appeal Court under section 50 of the Native
Courts Ordinance, to hear further evidence, in order to afford to the defendants
the opportunity of establishing to my satisfaction the exact relationship which
they claimed to have with the original owner of the premises in question, and
the interest which (as they claimed) had been conferred on them by native
customary law in virtue of that relationship.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants availed themselves of the opportunity, and the senior gave evidence
purporting to show how he was connected with Mrs. Gwira, the head of the family
who gave him occupation of a room in the premises, and the head of family after
whom came the plaintiff’s elder sister called Egyiriba, and then the plaintiff.
His evidence as to relationship was that his mother was Effua Kurentsiwa. Her
maternal grandmother (Essie Dokua ) had a maternal brother called Dutton. The
latter by his marriage had a daughter, who in turn married John Sarbah, from
whom Dutton’s daughter acquired the premises in dispute. They passed to her
children (Mrs. Gwira and others) on her death intestate in respect of those
premises. It is clear, therefore, that the defendants could not possibly have
any interest in property acquired by or belonging to Dutton’s children, for, in
the view of customary law, the properties of Dutton’s children would go to
their mother’s side, not to their father Dutton’s side, with which the
defendants claim to be connected. As observed by Sarbah in his Fanti Customary
Law’s (2nd ed.) p.100:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
first important rule which one has to learn and ever bear in mind when dealing
with matters of succession is that the right of inheritance is only through the
female, and pedigree is traced through the female line and that only.”<o:p></o:p>That
proposition was approved by the Privy Council in Hammond v. Randolph and
another (5 W.A.C.A. 42). And Sarbah says further, at p. 101:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
owner of self-acquired real property dying intestate, is not succeeded by his
sons, they being outside the line of inheritance, but by his mother and her
issue according to seniority.”<o:p></o:p><o:p>&nbsp;</o:p>It
follows that if Mrs. Gwira, while not shutting her eyes to the paternal
relationship, took the first defendant into the premises in dispute, it was
distinctly as an act of grace, but not by reason of any heritable interest or
right which the customary law had conferred on the defendant in virtue of his
relationship.<o:p></o:p><o:p>&nbsp;</o:p>The trial
court did not take evidence of the exact relationship, but decided the case on
the assumption that first defendant was within the heritable class, and that he
had misconducted himself towards the head of the family. But from the evidence
as to relationship adduced in this court it does not appear to be necessary to
consider the case in a light so favourable to the first defendant. His claim to
residence in the premises in dispute, from his own evidence, appears quite
untenable in the contemplation of customary law, and therefore the order for
ejectment was rightly made against him.<o:p></o:p><o:p>&nbsp;</o:p>

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