IN RE LARBI (DECD.); LARBI AND ANOTHER vs. LARBI [1977]DLCA1330

Date	1977-07-04
Suit No.
Citation No.	[1977]DLCA1330

ARCHER JA

ANIN JA

ANNAN J.A.

E. D. KOM FOR THE APPELLANT.

E. N. OLAGA FOR THE RESPONDENTS.

[1977]DLCA1330
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >IN RE LARBI (DECD.); LARBI AND ANOTHER <o:p></o:p>vs. <o:p></o:p>LARBI <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977] 2 GLR 506<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:
4 JULY 1977<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. D. KOM FOR THE APPELLANT.<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, ANIN AND ANNAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.A.<o:p></o:p>The father
of the late Ansah Obuadabang Larbi was an Akwapim man from Larteh where
succession is patrilineal. The present appellant is the mother of the deceased
and she is a Fante from Saltpond where succession is matrilineal. The late
Larbi before his death was married under the Marriage Ordinance, Cap. 127 (1951
Rev.), and was survived by his widow and one issue and as such by virtue of the
provisions of section 48 of the Marriage Ordinance, Cap. 127 (1951 Rev.),
two-thirds of his estate would devolve on his widow and issue and one-third to
his family according to customary law. If both parents of the late Larbi had
been Fantes, the one-third devolving on the family would in accordance with
Fante customary law have been inherited by his immediate family on the maternal
side and there would have been no difficulty in ascertaining who constituted
the immediate family. Moreover if both parents of the late Larbi had been
Akwapims where succession is patrilineal there would have been no difficulty in
deciding who constitute the patrilineal family. However, in this appeal, the
parents of the late Larbi come from two separate ethnic groups each with a
diametrically opposed system of succession. In such a case, it is impossible to
select only one of the two systems as the supreme system governing the
succession to his estate. In such a case what should be the solution? The
answer will be provided in the course of this judgment.<o:p></o:p><o:p>&nbsp;</o:p>It
appears from the record of proceedings, that after his death the widow of the
late Larbi did not take any steps to apply for letters of administration to
claim the interest of herself and her infant son in the estate which consisted
of a house situated in Accra. The present appellant who resides in the building
also took no steps to administer the estate although the son had died as far
back as 3 November 1964.<o:p></o:p><o:p>&nbsp;</o:p>Four
years later, i.e. in 1968, the first respondent Koi Obuadabang Larbi a paternal
uncle of the deceased and the second respondent Philip Kofi Adumakoh, a
maternal grandfather of the deceased’s only surviving issue issued a writ of
summons and claimed that they were the proper persons to whom letters of
administration should be granted in respect of the estate.<o:p></o:p><o:p>&nbsp;</o:p>The first
respondent claimed that he had been appointed successor by the Obuadabang
family of Larteh to apply for letters while the second respondent claimed that
he had been made a joint-applicant by virtue of section 77 of the
Administration of Estates Act, 1961 (Act 63), to protect the interest of the
surviving issue who was a minor. The appellant who had been sued as defendant
strongly resisted the claims of the two respondents and stressed that she had
been appointed by her family at Saltpond to apply for letters of
administration. She asserted that her son did not belong to the first
respondent’s Larteh family and in any case, the Larteh family disowned her son
by refusing to bury him when he died. Furthermore, she alleged that during his
lifetime, the deceased did not regard himself as a Larteh man and he did not
observe any Larteh custom. She went further to maintain that the first
respondent’s family had no interest in the estate; rather she and her family
had an interest because her family contributed substantially to the cost of the
construction of the building.<o:p></o:p><o:p>&nbsp;</o:p>After summons
for directions had been heard, the court below heard legal submissions on one
point, namely, what system of law should govern the devolution of the estate of
the deceased. The court then ruled that as the building was situated in Accra,
then section 66, r. 4 of the Courts Act, 1960 (C.A. 9), applied and therefore
Ga-Mashie custom of succession which is matrilineal should govern the
succession. The court below therefore granted letters to the appellant but
joined the first respondent as a co-administrator as an agent of necessity
because the surviving issue of the deceased was an infant. The appellant was
aggrieved by the appointment of the first respondent as a co-administrator and
before this court it was argued on her behalf that as the court below had
decided that the matrilineal system applied then it was for the matrilineal
family to decide who should be appointed co-administrator. For the respondents
it was submitted that as the deceased belonged to both families, that is, the
mother’s family at<o:p></o:p>