Nee Mensa Larkai V. Amorkor Alias Ashiety & Ors (1933)

LawGlobal Hub Judgment Report – West African Court of Appeal

Family stool—Headship of family—Family property—Succession-Long continued possession—Individual ownership–Ga customary law.

Facts

A dispute arose concerning a plot of land at Accra, and all the parties concerned and those through whom they claimed title were of Ga nationality.

In 1872 the then Gbese Manche gave the land in dispute to one J., and it became his own individual property.

In 1889 J. gave the land to his brother A., who thus became the individual owner of it. As such owner he could have disposed of it during his life time, but no evidence was adduced to show that he had done so. A. died intestate in or about 1905, and first his sister L. entered into possession of the land and then, on her death which occurred shortly afterwards his sister 0. entered into possession and remained in possession until her death in 1932. During that period of quite 26 years she appears to have built on the land, received all rents accruing from i t paid all rates, and generally to have behaved as the owner. By her will 0. purported to devise the land to her daughters, the first three^– defendants, who took possession thereof on her death. The plaintiff, alleging himself to be the head of the L. family—a family to which with A. and 0. had belonged, brought an action against the first three defendants claiming the land as the property of the L. family. (The fourth defendant—a mortgagee–was added during the hearing in the Court below and was not concerned in the appeal). At the trial the first three defendants sought to show that A. had given the land in dispute to their mother 0. during his life time. The Court below arrived at the following conclusions :—

1. That as the plaintiff was admittedly sitting on the L. family Stool he must be the proper person to bring this action on their behalf, though no family meeting had been held to appoint a family head.
2. That all the facts of the case were consistent with A. having given the land in dispute to 0.
3. That even if A. had not given the land in dispute to 0. her undisputed occupation thereof for a period of 25 years had ripened into full ownership.

On these findings the Court below gave judgment for the defendants.

Held

On appeal, that succession to a family stool, which descends through males, is quite different to succession to family property, which descends through females ; hence the plaintiff, being a son of A. could not have succeeded to the land in dispute and was not the proper person to bring the action. In this connection it was painted out, by Deane C. J., that the land in dispute could only be the property of A.’s family, not of the wider L. family.

Held, also, however, that 0. must have succeeded to the land in dispute as the then head of A.’s family and as trustee for all the members thereof in accordance

with Ga customary law, and that her long continued and undisturbed’on

was therefore quite consistent with her rights and duties as such hof A.’s

family : in those circumstances her possession could not ripen into ownership.

Thus, as neither the plaintiff nor any one of the first three defendants had been able to establish any title to the land in dispute, the judgment of the Court below was carried by non-suiting the plaintiff and the parties were left to pay their own costs of the appeal and the original hearing.