AGYARE v.

DOTWA
[1960] GLR 253

Division: IN THE SUPREME COURT

Date: 23RD DECEMBER, 1960
Before: KORSAH, C.J. GRANVILLE SHARP AND AKIWUMI,
JJ.S.C.

Administration—Application for grant of letters of administration—Caveat—Appointment of

successor—Customary law—Reference to native court—Courts Ordinance Cap. 4, s. 89.

HEADNOTES
The plaintiff applied in the High Court, Kumasi for a grant of letters of administration as the
“nephew” and duly appointed successor to the deceased Kwame Agyin. A caveat was entered by the
defendant who claims to be a “brother” of the deceased and head of the family. The issue as to
whether plaintiff or defendant was the proper person under customary law to administer the estate was
referred to the native court under section 89 of the Courts Ordinance, Cap. 4. The native court
reported that the defendant as head of

[p.254] of [1960] GLR 253

the family was entitled to succeed but did not make a finding on the claim by the plaintiff that he had
been appointed successor. The trial judge, however, held on the evidence adduced in the native court
that the plaintiff had been appointed successor by the family and gave judgment in his favour. The
defendant appealed.
Held:
(1) the plaintiff and defendant were both descendants of a common ancestress and in the same
category of “ordinary” successors of the deceased.
(2) the head of a family is not entitled as of right to be appointed successor to the estate of any
member of the family. The power of appointment is vested in the family, who have a discretion
in the matter. Akumanyi v. Peprah 2 W.A.L.R. 112 approved.
(3) the trial judge was entitled under section 89 of the Courts Ordinance, Cap. 4, to base his
judgment on the evidence adduced in the native court, without the necessity of referring the
case back to that court for a specific finding on the issue whether the plaintiff had been
appointed successor by the family.
Note:— The procedure by a court for the ascertainment of a rule of customary law which may be
relevant in any proceedings before it is now governed by section 67 of the Courts Act, 1960.

CASE REFERRED TO
Akumanyi v. Peprah 2 W.A.L.R. 112.

NATURE OF PROCEEDINGS
APPEAL from a decision of the High Court, Kumasi on October 29, 1959 in favour of the plaintiff in
an action for a grant of letters of administration.

COUNSEL
Akufo-Addo for appellant;
Prempeh for defendant.

JUDGMENT OF KORSAH C.J.

Korsah C.J. delivered the judgment of the court. This is an appeal from the judgment of Murphy, J.
in a suit, in which the plaintiff who claims to be the nephew and successor of Kwame Agyin,
deceased, applied for letters of administration to administer the estate of Kwame Agyin. The
defendant who claims to be the head of the family to which the plaintiff belongs, and of which the
deceased was a member, entered a caveat. The three main grounds upon which the caveat is based are:
(a) That he, defendant, being the head of the family and the plaintiff a member thereof, the plaintiff
could not be appointed a successor to the deceased while the defendant is alive.
(b) That in fact plaintiff had been appointed by the said family to be only caretaker of the deceased
estate, and not successor to Kwame Agyin.
(c) That he is a brother of the deceased while plaintiff is a nephew, that a nephew cannot succeed
while a brother of the deceased is alive.
Both parties attached genealogical trees of the family to affidavits filed in support of their respective
claims, and these exhibits have materially assisted the court in assessing the value of the evidence and
the shades of interpretation of the English words “brother” and “nephew” as used by the parties both
in their affidavits and in the course of the proceedings.

[p.255] of [1960] GLR 253

It is observed from the genealogical trees which agree in material particulars that both plaintiff and
defendant have a common ancestress Adjoa Beh who apparently had four daughters and a son or sons,
but for all practical purposes the descendants of the sons are not regarded as members of the family
because, the parties being Ashantis the matrilineal system is the method by which membership of a
family is traced. By this method, descendants of Adjoa Beh are divided into four lines of descent from
each of the four daughters. Plaintiff is of the second line, defendant is of the third line and the
deceased is of the fourth line. It will therefore be seen that the expression “nephew” and “brother”
used by the parties have not the ordinary meaning in English but they are used in the sense in which
members of the same family belonging to different lines of descent, may call themselves brothers,
sisters or nephews in a local sense.
Sarbah’s Fanti Customary Laws (2nd ed.) p. 102 contains a list of persons in the line of succession
and goes on to state:
“There are therefore four kinds of successors, viz. Real, Proper, Ordinary and Extraordinary.

The Real successor of a person is his mother.

We call those persons Proper successors who are the uterine brothers and sisters of the deceased, and
the issue of such sisters; but never can the pedigree be traced out in the line of the male.
“Ordinary successors are such persons as are descended from the maternal grandmother.”

From the above quotation it will be seen that both plaintiff and defendant are in the category of
ordinary successors; consequently the principle that uterine brothers and sisters would take before
nephews does not apply in this case since neither plaintiff nor defendant is in the category of a proper
successor.
There is, however, evidence on record which is not disputed, that it has been the practice of the
members of this family on the death of any of them to meet and appoint a person in the category of
ordinary successor where deceased had no uterine brother or sister.
Furthermore, the defendant’s contention that because he is the head of the general family or clan,
therefore he is the person entitled to succeed to the estate of any member of that family so long as he
is alive, is a novel proposition contrary to native customary law. In Akumanyi v. Peprah (W. A. L. R.
112) it was held, inter alia,
“(ii) In any event the right to succeed is not an absolute right. The power of appointment vests in the
family, who can pass over a person with a prior right to succeed if they are satisfied in the family
interest that it would be desirable to do so”.

At the trial the learned judge referred certain questions on native custom to the native court, but was
obliged to reject their report on grounds which he has fully discussed in his judgment and with which
I agree. Defendant has appealed to this court and counsel on his behalf has urged that when the
learned judge found that the native court had not reported fully on the questions submitted to it, he
should either have

[p.256] of [1960] GLR 253

referred it back to the native court, or conducted his own enquiry by taking evidence, and not have
based his judgment on the record of proceedings in the native court. I disagree with such an
interpretation of the relevant clause in section 89 under which the reference was made:
“Upon such reference being made, the question shall as soon as possible be enquired of, tried, and
determined accordingly by such Native Court; and the Native Court shall thereupon report its decision
on such question to the Court which referred the same. No appeal shall lie from such a decision; but it
shall be competent to such Court in whole or in part to adopt or reject such decision, or to deal therewith
in such manner as justice and the circumstances of the case shall appear to it to require, and to give such
judgment and make such orders as to it shall seem lawful and just; and the Court shall also have the same
powers with respect to such reports and decisions of the Native Court as it has with respect to the
proceedings and report in writing of a reference”.

In my view the learned judge was justified in the conclusion he reached when he said:
“I therefore do not find the decision of the native court of any great assistance, but on perusal of the
evidence which was taken by it, I consider that there was a strong preponderance of evidence in favour
of the plaintiff’s assertion that he was appointed successor by members of the family”.

For these reasons this appeal is dismissed with costs to the respondent fixed at £G36.

DECISION
Appeal dimissed.