ADDO AND ANOTHER vs. MANKO [1974]DLCA337

Date	1974-05-13
Suit No.
Citation No.	[1974]DLCA337

AMISSAH J.A

ARCHER J.A

ANNAN J.A.

OHENE AMPOFO FOR THE APPELLANTS.

S. KWAMI TETTEH FOR THE RESPONDENT.

[1974]DLCA337
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													<main id="main" class="content" style="min-height: 60rem" >ADDO AND ANOTHER<o:p></o:p>&nbsp;vs. <o:p></o:p>MANKO<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 2 GLR 454<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:
31 MAY 1976.<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">

OHENE AMPOFO FOR THE APPELLANTS.<o:p></o:p>

S. KWAMI TETTEH FOR THE RESPONDENT.<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">

AMISSAH, ARCHER AND ANNAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANNAN J.A.<o:p></o:p>The point
for determination in this appeal concerns the right of succession to the
self-acquired property of an intestate male member of a patrilineal family. The
claim being made by the appellants on behalf of the children of the male
intestate is that they are exclusively entitled to the immediate beneficial
enjoyment of the self-acquired property of their deceased father and that any
other interest must be contingent and must therefore be postponed to their
right of immediate enjoyment.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent, on behalf of the Kofi Broni family, the deceased’s relatives,
contends that at customary law the self-acquired property of a member of a
family becomes family property upon his death intestate and therefore the
children of the male intestate cannot have any exclusive or prior right to the
beneficial enjoyment of the intestate’s property since they constitute a part
and not the whole of the inheriting family of the deceased member for purposes
of succession to his self-acquired property. The parties, as well as the
deceased, belong to the Kofi Broni family of the Kyerepong clan of the Akwapim
Traditional Area and are admittedly subject to the patrilineal system of
inheritance.<o:p></o:p><o:p>&nbsp;</o:p>It is
important, I think, to advert briefly to general principles which underlie the
basic issue raised by the specific question before I proceed to consider that
question. The general issue can safely be posed in the form of the question:
who are the inheriting family of a deceased member of a family for the purposes
of the beneficial enjoyment of his self-acquired property? Taking first the
case of a male member of a family in a patrilineal society, from the moment of
birth the position is that he was born into his father’s family and so clearly
became a member of that family by right of birth. He would then start life as a
member of his father’s family, together with any brothers and sisters who share
a common paternity with him and under their father would constitute one unified
family, patrilineal in character. For purposes of succession he would not, at
birth, have any other relevant family since his right at law to identify with a
family for the purpose of succession was determined at birth by his paternity.
His family then would be his father’s family and he would be a member of the
family of his father. Since however a male member of a family in the
patrilineal system is himself a point of origin of a new family, he starts such
a family when he has issue and a family that a male member of a patrilineal
family starts himself is his own or personal family and he stands at the apex
of that family as the originator thereof. When therefore one considers the
position of a male member of a patrilineal family, for purposes of succession
it is of importance whether he has issue or not. If he has not, then his family
is his father’s family he having none of his own. Where however he has issue
then his children constitute his own or personal family, that is the family
which he himself originated as distinct, that is, from the family his father
originated. The true position therefore must be that a male member of a family
in a patrilineal society who has issue is the head of the family that he
himself procreates in addition to being a member by right of birth of the
family he was born into, that is his father’s family.<o:p></o:p><o:p>&nbsp;</o:p>By
contrast in a matrilineal society a family is originated by a female who at her
own birth belonged to her mother’s family by right of birth. When she herself
has issue her children would constitute her own or personal family and she
would be the head of that family as the originator thereof. Her female issue
would in due course have their own children who would then constitute their
personal family. Her male issue would however be incapable of having their own
accretions to her family as their personal family since, being in a matrilineal
system, they cannot themselves originate their own branches of the successional
family. These male members, therefore, as a matter of necessity, continue to be
members of their mother’s personal family as the nearest successional family
they can have, they having none more proximate to themselves than that family.
The nearest family therefore of a male member of a family in a matrilineal
society must be his mother’s family whether he himself has issue or not whereas
a female member’s nearest family must be her issue only that is her personal
family and if none, her mother’s family, that is her mother’s personal family,
the family into which she was born.<o:p></o:p>