CARBOO vs. CARBOO [1961]DLHC872

Date	1961-02-03
Suit No.
Citation No.	[1961]DLHC872

OLLENNU J

I. AMOO-LAMPTEY FOR THE PLAINTIFF

G. R. MCV. FRANCOIS FOR THE DEFENDANT.

[1961]DLHC872
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&nbsp;[HIGH COURT, ACCRA]

[1961] GLR 83

DATE: 3RD FEBRUARY, 1961.

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COUNSEL:&nbsp;&nbsp;

I.
AMOO-LAMPTEY FOR THE PLAINTIFF.

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OLLENNU, J.

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&nbsp;

[After narrating the facts his lordship continued:] It was
submitted on behalf of the defendant that upon a Ningo man’s death intestate
his children inherit, and his property automatically vests in his children as
upon a devise; and that it is only when all the children are minors that some
relative may be appointed to take charge of the property. I must say at once
that this submission is a misconception, and is against all the fundamental
principles of our customary law of succession.

The most elementary principle of our customary law of succession
is that upon a man’s death intestate, his self-acquired property, real and
personal, vests automatically in his family. That family may be the patrilineal
family, or the matrilineal family depending upon the tribe to which the
deceased belonged. In this case, therefore, upon the death of Alfred Jonas
Carboo, all his self-acquired property vested in his family.

The next general principle of our customary law of succession is,
that succession is not as of right, a successor must be appointed by the family
who inherit the property; see the case of Attipoe &amp; Anor. v. Shoucair &amp;
Anor.1(1) where Coussey, J. as he then was, stated the law as follows:-

Also in the case of Makata v. Ahorli &amp; Ors.2(2) the West
African Court of Appeal said:

“. . . there is no codified or rigid law of inheritance anywhere
in the Gold Coast although it is spoken of as the Native customary law. The
elders, on due consideration where circumstances so warrant, may depart from
the usual practice and often do so . . . “I have stated earlier that there is
no rigid law of inheritance in Native custom. If the family decided, as the
evidence indicates they did, in justice to the plaintiff who had helped the
deceased and probably worked the farms with him, that a more distant relative
was more deserving and should inherit from him, there is nothing strange or
improper about that - it was within the decision of the family council, of
which, on the evidence, the deceased’s brother, Siameh Boshua, was a
member.3(3)

The estates with which these two cases were concerned were estates
of persons who belonged to the patrilineal family system; there is a host of
authorities which lay down the same principle with respect to both the
patrilineal and the matrilineal systems.

I accept the evidence elicited by cross-examination from P.W. 2,
Susana Carboo, sister of the whole blood of the deceased, that when Jonas
Carboo, father of Alfred Jonas Carboo died, he was succeeded by his next
brother Kofi Doe, and that upon Kofi Doe’s death, Carboo Tetteh, the last
brother of Jonas and Kofi Doe succeeded; and that it is now that all “our three
fathers” (three fathers, meaning their father and his two brothers) are dead,
that Otubua Carboo, elderst son of Jonas, and paternal half-brother of the
deceased in this case and of the plaintiff, has taken charge of the properties
of their late father and of his brothers. That evidence and the evidence of
custom given by D.W.1., Siaotse Amanor II, called by the defendant as an expert
witness on custom, satisfy me that Ningo custom of succession is the same as
obtains among all the Ga-Adangbe and Ewe peoples (excepting Accra town).

I am also satisfied from the evidence that the most important
principal members of the family of the deceased are the plaintiff and his two sisters
of the whole blood, next come their paternal half-brothers and then the
children of the deceased.

Now it would appear that none of the two groups which purported to
appoint either the plaintiff or the defendant is a full meeting of all the
principal component parts of the family competent by customary law to appoint a
successor. But the group which met and appointed the plaintiff is more
authoritative than that</main>