ESHUN AND OTHERS vs. JOHNFIA [1984]DLCA913

Date	1984-11-05
Suit No.
Citation No.	[1984]DLCA913

APALOO CJ

EDWARD WIREDU JA

ABBAN JA

MRS ADU-MANTE FOR THE APPELLANTS.

KWESI WINNEY FOR THE RESPONDENT.

[1984]DLCA913
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ESHUN AND OTHERS <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 105<o:p></o:p>

DATE:
5 NOVEMBER 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

MRS ADU-MANTE FOR THE APPELLANTS. <o:p></o:p>

KWESI WINNEY 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;
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APALOO CJ, EDWARD WIREDU AND ABBAN JJA<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>Abban J.A.
delivered the judgment of the court. The appellants in the High Court, Sekondi
sought a declaration that they were entitled to an interest in the
self-acquired properties of their late father and the said interest included
rent income accruing from the said properties.<o:p></o:p><o:p>&nbsp;</o:p>The
appellants are sui juris and are presently engaged in the business of petty
trading for their living. Their late father, one Ato Kwamina Essuman, who was a
Fanti died intestate in Sekondi. During his lifetime, the late Ato Kwamina Essuman
acquired several building plots and put up houses on six of them. On his death
intestate, the respondent, who was his maternal nephew, was appointed his
successor by the family in accordance with Fanti customary law.<o:p></o:p><o:p>&nbsp;</o:p>Since the
death of their father the appellants have been living in one of the houses-No
70/8, Third Street, Sekondi with the respondent. But the respondent has let out
the remaining five houses to tenants. It is the rent income from these houses
that the appellants claimed that they were entitled to a share of during their lifetime.
The High Court on 8 June 1981 dismissed the claim.<o:p></o:p><o:p>&nbsp;</o:p>In this
appeal only one ground was argued, namely that the learned High Court judge
failed to direct his mind to and pronounce on the specific issue of the nature
and extent, if any, in practical terms of the appellant’s life interest in the
other five self-acquired houses of which their father died possessed and in
which they could not contemporaneously stay or in which they have not been
allotted rooms. The sum total of the argument of learned counsel for the
appellants was that in as much as the Fanti customary law was concerned, the
children were entitled to be maintained out of their father’s self-acquired
property in addition to their right of occupation and that maintenance entitled
them to a portion of any income accruing from the property and that the learned
High Court judge should have made a declaration to that effect.<o:p></o:p><o:p>&nbsp;</o:p>We did
sympathise with and appreciate the force of the argument. However, it was our
painful but bounded duty, in view of the present state of Fanti customary law,
to hold that the learned High Court judge was right in rejecting the
appellants’ contention.<o:p></o:p><o:p>&nbsp;</o:p>The
appellants, as children, had no right to any specific portion of the estate,
neither did they have any right to share the rents accruing from the properties
with the respondent. Their right was limited to occupation of their father’s
house and also to be maintained by the respondent out of their father’s estate
while young.<o:p></o:p><o:p>&nbsp;</o:p>Thus if
the appellants had been infants or young persons, the respondent in his
capacity as the customary successor should have been customarily and legally
bound to maintain and to educate them to the extent of the estate left by their
deceased f</main>