IN RE KOFI ANTUBAM (DECD.); QUAICO vs. FOSU AND ANOTHER [1965]DLHC1812

Date	1965-03-11
Suit No.
Citation No.	[1965]DLHC1812

ARCHER J.

E. N. MOORE FOR THE PLAINTIFF.

A. TAGOE FOR OLAGA FOR THE DEFENDANTS.

[1965]DLHC1812
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													<main id="main" class="content" style="min-height: 60rem" >IN RE KOFI ANTUBAM (DECD.); QUAICO<o:p></o:p>&nbsp;vs. <o:p></o:p>FOSU AND ANOTHER <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1965] GLR 138<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
11 MARCH 1965.<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">

E. N. MOORE FOR THE PLAINTIFF.<o:p></o:p>

A. TAGOE FOR OLAGA FOR THE DEFENDANTS.<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">

ARCHER J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>The
plaintiff has caused this originating summons in this suit to issue to
determine the following questions:<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">(a)
Whether the defendants and their children have an interest in the estate of the
said Kofi Antubam, deceased.<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">(b) If
the defendants and their children have any interest in the estate of the
deceased what is the nature or extent of such interest.<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">(c)
Whether the family of the deceased have any interest in the estate of the
deceased and if so what is the nature and extent of such interest.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff claims to be the head of family of the deceased who died intestate
and the defendants claim to be the widows with children having been married to
the deceased according to customary law. The first defendant is the mother of
six children by the deceased and the second defendant is the mother of three
children by the deceased. For the purpose of determining the questions, the
court was of opinion that filing of affidavits by the parties was unsuitable
and in order to throw light on the custom the court decided to take oral
evidence if necessary if the parties were prepared to do so. The plaintiff
brought the Acting Omanhene of the Wassaw Amanfi Traditional Area to give
evidence as to customary succession to the estate of a male person who died
intestate and leaves a widow, or widows with children. Section 67(1) of the
Courts Act, 19601 provides that any question as to the existence or content of
a rule of customary law is a question of law for the court and not a question
of fact. After considering the submissions made by both learned counsel and
consulting such reported cases and appropriate text books, I entertained no
doubt as to the existence of customary law regulating intestate succession in a
matrilineal system such as among the Akans. I did not therefore think it necessary
to hold the inquiry laid down by subsection (3) of section 67 of the Courts
Act, 1960, or to request the appropriate house of chiefs or traditional council
to state its opinion.<o:p></o:p><o:p>&nbsp;</o:p>As the
questions posed for determination are questions of law, I proposed to deal with
the first question: Whether the defendants and their children have an interest
in the estate of the deceased who was an Akan. It was submitted by learned
counsel for the plaintiff that the widows, and the children have no interest
whatsoever in the estate of the deceased whose estate must devolve according to
the matrilineal system of succession. On the death of the deceased the estate
vests in the head of family until a successor is appointed by the family. The
estate then vests in the successor who has to maintain the children whether or
not there is sufficient estate to maintain them. The children are also entitled
to live in the father’s house so long as they behave themselves. The successor
assumes the role of a father and if he does not look after the children, the
children may complain only to the family who may replace the successor. Finally
that the family become entitled to the estate absolutely.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel for the defendants submitted that according to Akan custom, children
cannot succeed their deceased father as successors but they have a life
interest in the immovable property of the deceased father where the immovable
is self-acquired and as such they are entitled to the income from the immovable
property. It was further submitted that until the wives were released by the
successor, the latter was under an obligation to maintain them. Learned counsel
further argued that if there was no sufficient estate the successor was under
no obligation to maintain the widows and the children. If the deceased left
personalty, some of the personalty is usually given to the children and as such
the children can claim some of the personalty from the head of family or the
successor. Learned counsel referred to certain passages at pp.105 and 112 of
Sarbah’s Fanti Customary Laws (2nd ed.). There are no decided cases relating to
succession in the Wassaw Fiase Traditional Area, although learned counsel for
the plaintiff cited the case of Vanderpuye</main>