Mary Vanderpuye & Ors V. Mary Akua Botchway (Substituted) Head Of The Defendant-family Of The Late Jacob Vanderpuye (Deceased) (1951)

LawGlobal Hub Judgment Report – West African Court of Appeal

Succession to family property according to Ga custom—Rights of maternal family and of children of a six cloth marriage—Descent of property is through female line—Children of six cloth marriage entitled to limited interest in estate.

Facts

Jacob Vanderpuye died intestate in 1918 possessed of self-acquired property which became family property on his death. He left children of a six cloth marriage, and a nephew, the son of a sister. In 1922 the Court declared that the said nephew, E. A. Solomon, was the heir and successor, subject to the general rights of the family according to Ga native law and custom, but that the deceased’s children had some interest in the estate.

Solomon mismanaged the estate and claimed that he was the sole beneficiary. After further litigation, the family in 1934 removed E. A. Solomon and appointed J. D. K. Botchway, also a member of the maternal family, to be head of the family. This appointment was contested but upheld by the Court.

Later, P. R. Vanderpuye, the eldest son and others, sued J. K. D. Botchway for a declaration that they were entitled to a share of the rents and profits of the real property of the deceased.

On appeal to this Court the case was remitted to the Divisional Court, which found that the children named in the judgment were children by six cloth marriage and as such respectively entitled to shares in the deceased estate.

The suit from which appeal is brought originated in the Ga Native Court where the children claimed a declaration of their shares and an account of all rents and profits. The defendant led evidence to establish that he had called a family meeting which the Plaintiffs, the children, had refused to attend, and had allotted the children one-third of the estate.

The Native Court held, that a head of a family, who is not a brother or nephew of the deceased, does not inherit the self-acquired property. As the defendant was only a cousin of the deceased the native court held that the defendant had no beneficial interest in the property and awarded the children the whole estate.

The defendant appealed to the Land Court, which varied the judgment of the native court and substituted a declaration that the plaintiffs were entitled to one-third of the property and an account of, and payments of, one-third of the rents and profits.

From that decision the plaintiffs appealed to this Court claiming the whole property. The issues before this Court were what shares the defendants and the plaintiffs were respectively entitled to.

Held

According to Ga native customary law the members of a family are traced through the maternal ancestor, and the family is a unit for the purpose of ownership. All members have a joint interest which is indivisible. The interests of the children of an owner of self-acquired property amounts to a right of support out of the estate, but this right does not operate to set aside the ordinary rule of customary law that descent is through the female line.

The Land Court was right in setting aside the judgment of the native court, but it was unnecessary for the Land Court to remit the case to the native court to effect a division of one-third of the property, as the allotment made by the defendant, prior to the native court case, of one-third of the property to the children was properly made and was a fair one.

Appeal dismissed.