AMPONSAH AND OTHERS vs. BUDU [1990]DLSC532

Date	1990-12-17
Suit No.
Citation No.	[1990]DLSC532

AMUA-SEKYI J.S.C

AIKINS J.S.C

EDWARD WIREDU J.S.C

AMPIAH J.A

AMUAH J.A

FRIMPONG BOADU FOR THE APPELLANTS.

P.A. ADJETEY S.A.G FOR THE RESPONDENT.

[1990]DLSC532
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													<main id="main" class="content" style="min-height: 60rem" >AMPONSAH AND OTHERS<o:p></o:p>&nbsp;vs. <o:p></o:p>BUDU <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1989-90] 2 GLR 291<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:
17 DECEMBER
1990<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">

FRIMPONG BOADU FOR THE APPELLANTS.<o:p></o:p>

P.A. ADJETEY, S.A.G, 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">

AMUA-SEKYI, AIKINS AND EDWARD WIREDU
J.J.S.C, AMPIAH AND AMUAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.S.C.<o:p></o:p>The
brothers, Kwesi Donkor and Kofi Wusu (Owusu), now deceased, were Guans. They
hailed from Abiriw in Akuapim. Succession to their estate is patrilineal. It
was the case for the plaintiff, Ama Amponsah, and those she represents, that
Owusu, who died in or about 1953, was the owner of the properties listed in the
statement of claim; that of the defendant, Kwadwo Budu, and he represents, was
that the properties was acquired by Kwesi Donkor. The defendant further alleged
that since the death of the two brothers the properties have been shared among
members of their family and that portions have been given to the plaintiff and
those she represents. Although the sharing was denied by the plaintiff, the
evidence suggests that at the time of the commencement of the suit, part of the
properties were in the hands of the plaintiff and part in the hands of the
defendant.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant is a son of Donkor. His position in the family to which the two
deceased brothers belonged was not in dispute. The plaintiff and those she
represents are children of the three daughters, now deceased, of Owusu who left
no son. It was the case for the plaintiffs that on his death intestate the
self-acquired properties of Owusu devolved on his three daughters and that upon
the death of those daughters the properties had devolved upon them. In the High
Court, Wutoh J. upheld this contention and entered judgment for the plaintiffs.
The Court of Appeal disagreed and reversed his decision: (see Budu v. Amponsah
[1989-90] 1 G.L.R. 150, C.A). Put simply, the question is whether the children
of the daughters of Owusu are members of his family for purposes of
inheritance. Clearly, they are not, being children of females.<o:p></o:p>As
understood in our law, the family is a group of persons tracing their ancestry
through either males or females from a common male or female ancestor. Where
the ancestry is traced through males from a common male ancestor the family is
said to be patrilineal; where it is traced through females from a common female
ancestor, it is matrilineal.<o:p></o:p><o:p>&nbsp;</o:p>It is
usual to draw a distinction between the immediate and wider family. In a
patrilineal family, a person’s immediate family consists of his father, his
brothers and sisters being the children of his father, and the children of his
brothers; his wider family consists of his immediate family and the immediate
families of all those who trace their ancestry through males from the common
male ancestor. In a matrilineal family, a person’s immediate family consists of
his mother, his brothers and sisters being the children of his mother, and the
children of his sisters; his wider family consists of his immediate family and
the immediate families of all those who trace their ancestry through females
from the common female ancestor. The parties to this suit, being Guans, each of
them belongs to his father’s family. Thus, upon the death intestate of the
daughters of Owusu such of his properties as were inherited by them reverted to
his family. Their children, not being members of that family, could not
lawfully keep any of the properties of Owusu without the consent of the family.<o:p></o:p><o:p>&nbsp;</o:p>This suit
would, perhaps, not have arisen if the law had been correctly stated in the
past. Much of the litigation concerning the of [1989-90] 2 GLR 291-314 estate
of deceased persons have been concerned with succession in matrilineal
communities, and such pioneering efforts as had been made by authors like
Sarbah have been devoted to stating the law as it applies to those communities.
Suits to determine the right of succession to persons who adhere to the patrilineal
system of inheritance have been few and far between. In Addo v. Manko [1976] 2
G.L.R. 454, C.A.; Annan J.A. remarked at 458:<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">“Cases
from patrilineal areas seem to have been decided substantially on proffered
evidence as to the local custom prevailing in the relevant patrilineal
community and it does not seem to me that any general trend towards uniformity
and a generalised rule is noticeable in the decided case. So it is that these
cases have been identified with particular patrilineal areas or towns such as
the ‘Ewe’ cases, the ‘Teshie’ cases, the ‘Guan’ cases or ‘Nungua’ cases.”<o:p></o:p>