E. D. J. Wellington Of Accra V E. Quartey Papafio & Anor (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Mortgage—Nature of Mortgagee’s security—Devolution on administrator. Native Law and custom—Succession in Ga customary law—Alienation of family property.

Facts

A mortgagee’s security is personal estate devolving on the administrator if the mortgagee dies intestate.

Under Ga customary law, upon intestacy, the self-acquired property of the deceased becomes family property; it is only children of a six cloth marriage who are entitled to a right of support out of the estate; all members of the family traced through the maternal ancestor have a joint interest, and no part of the estate can be alienated to the children unless the parties so agree.

The admitted facts in the case were that in 1935 someone mortgaged land to the deceased, the father of the plaintiffs, who went into possession; he died in 1937, and then his mother took out letters of administration of his estate; she put the mortgaged property up for sale in 1939, and the first defendant was the highest bidder; she died in 1940. The first defendant took no interest in the case.

The second defendant pleaded possession under a conveyance in 1941 from the uterine brother and sister of the deceased mortgagee through his mother, these vendors being then the principal members of the family.

The plaintiffs alleged that after their father’s funeral, the family met and the property in dispute, which had been mortgaged to their father, was ” given” to them, his children, with a life interest in the deceased’s mother for her maintenance, and that after his mother’s death in 1940 part of the rent was given to her daughter.

(There was no corroboration that the plaintiffs ever collected the rent.) They also alleged that they succeeded their father and his father and mother.

The plaintiffs’ writ did not allege that they were children of a six cloth marriage. It was stated in evidence by one witness but not confirmed by another, a member of the family, and the Native Court of trial made no finding on the point; nor did the Court find that there had been distribution or allocation of a share to the children.

It appears that the plaintiffs thought, erroneously, that the mortgagee, their father, had acquired the freehold. The Native Court was of opinion that when he died the property became a family property of Aku Aba (namely his mother) and “descendible to the plaintiffs ”. Judgment was for the plaintiffs; the appeal to the Supreme Court was allowed, and the plaintiffs appealed from its decision.

Held

Even if it be assumed that the plaintiffs were children of a six cloth marriage, under Ga customary law on the death of their father, his chattel interest as mortgagee became the property of his family traced through the maternal ancestor, and could not pass to his children except by transfer, of which there was no evidence.

The plaintiffs not having established a title, their claim against the second defendant in possession could not be upheld.

Appeal dismissed.