Author: Joel Oheneba Afari-Acquah
The Supreme Court of Ghana in George Odamtten & Ors v Wuta-Ofei & Ors affirmed the decision of the Court of Appeal to the effect that by the customary law of Gas of Osu, female children of a deceased original owner of property who inherit the property cannot pass on their interest to their descendants, thus the property reverts to the family of the deceased original owner. In this article, I write a well-researched response to the decision of the Supreme Court pointing out the flaws in the judgment. I highlight the role of the Intestate Succession Act, 1985 (PNDCL 111) in regulating intestate succession in Ghana and the role of customary law in the determination of inheritance under intestacy in Ghana.
Intestacy is the state of dying without leaving behind a valid will or clear instructions on the disposition of one’s property in the event of demise. In legal terms it refers to dying without leaving testable property disposed of by will. Two forms of intestacy are recognized; total intestacy and partial intestacy. A deceased dies totally intestate if he left no valid will to govern the devolution of his estate. Here, the law falls on the rules of intestacy to determine the devolution of his estate. On the other hand, individuals who may assume that they have made a perfect will may well die partly testate and partly intestate. Succession to their property falls into a penumbral area of the law called partial intestacy. In such an event the terms of the will apply to those properties to which he died testate and the rules of intestacy will regulate the distribution of properties in respect of which he died intestate. Both testate and intestate succession are subject to statutory interventions existing at the time being. Aryeh (2014) captures this effectively as the concept of intestacy in Ghana.
In In re Ackom-Mensah (Decd); Ackom-Mensah v Abosompem, the plight of widows and children of a deceased intestate at the hands of his family as persisted at the time of the case were recounted by Hayfron-Benjamin J (as he then was) as follows: “In the lifetime of their relative, they cannot vent their spleen on his wife. The opportunity comes when he dies. The poor widow and her children are subjected to a vulgar and humiliating abuse; they are made to pay unreasonable and unjustifiable funeral dues, to incur other liabilities in respect of the funeral which can find no foundation in customary law; and after the funeral are harassed and driven to desperation by unnecessary litigation.”
It is discriminatory treatment of this kind that the introduction of PNDCL 111 sought to remedy.
First, I give an overview of the law applicable to intestate succession in Ghana. I follow this up with a discussion of the customary law on inheritance in the event of intestacy in Ghana. Thereafter, I provide a well-researched response to the decision of the Supreme Court in Odamtten & Ors v. Wuta-Ofei & Ors while highlighting the arguments of counsel of the appellants with particular attention to the issue of discrimination in the case of a female child who only has a life interest in the estate or property of her deceased parent as existed as a rule of customary law. Finally, I propose what I am of the opinion the Supreme Court should pay attention to, going forward.
Intestate Succession Act, 1985 (PNDCL 111)
The law that governs intestate succession in Ghana is the Intestate Succession Act, 1985 (PNDCL 111). The enactment of PNDCL 111 in 1985 had as its principal aim the elimination of all existing discrimination against either spouse and to ensure equal rights for women in particular and their dependent children, as reiterated by Dowuona-Hammond (1998). Hammond (2019), is of the view that PNDCL 111 was promulgated as a result of the perceived injustice suffered by spouses, especially women, and children whose spouses and parents respectively died intestate. In the memorandum to the Act, the Act aims at removing the anomalies in present law relating to intestate succession and to provide a uniform intestate succession law that will be applicable throughout the country irrespective of the class of the intestate and the type of marriage contracted by him or her.
On the recognition and relevance of the nuclear family, the memorandum pointed out that “The growing importance of the nuclear family brings with it its own logic of moral justice. Simply put, this argues that a surviving spouse be compensated for his or her services to the deceased spouse; that a spouse is more likely to look after the children on the death of the other partner than anybody else, and that the expectation of the spouses are probably best satisfied by giving the property of one to the other on the former’s death.”
On the distribution of the estate of the deceased, PNDCL 111 aimed at giving a large portion of the estate of the deceased to his spouse and children than is normally the case at present. The Act also removes the discrimination between succession by widows and widowers which exist under both the Marriage Ordinance (Cap. 127) and the Marriage of Mohammedans Ordinance (Cap. 129) and the same scheme of distribution will apply whether the deceased is a man or woman.
It is imperative to note that under section 1(1), PNDCL 111 applies to any person who dies intestate, on or after the commencement of PNDCL111.
Daniels [1991-92] notes that a child is born into a family of persons who may reckon their relationship with one another on the basis that they are either lineally descended from a common ancestress in the female line such as the Akan, or a common ancestor in the male line such as the Ewe. That relationship arises generally by birth and in exceptional cases by adoption but not because of marriage.
At customary law, there is very little protection for a surviving spouse. Neither spouse has a right to the property of the other. Children in a matrilineal system have no more than a right to maintenance by their father’s customary successor and a right to reside in their father’s house subject to good behavior.
The right to succeed property under the patrilineal system is derived from membership of the family through one’s father. When a man dies intestate, it is his children that inherit his estate. The decisions in Hausa v Haruna , Yawoga v Yawoga, Husunukpe v Dzegblor, Sedorme v Dodor, Agboe v. Mang are to this effect. A surviving spouse at customary law has no specific share of the deceased’s property. A widow only has a right of residence in the house built by her husband. In Hausa v. Haruna, it was reasoned that among the patrilineal communities, it is the children of the intestate who succeed the estate as of right. Their respective shares are subject to the rules of that patrilineal community.
In George Odamtten & Ors v. Raphael Wuta-Ofei, the issue revolved around property which was the self-acquired property of one Robert Wuta- Ofei who died intestate in 1970. He was survived by his wife Barbara Wuta Ofei and four children, Roberta, Vida, Percy and the 1st Respondent. The Plaintiffs in both suits at the High Court are the grandchildren of Robert and Barbara Wuta Ofei claiming the property as beneficiaries of the estate of their mother Roberta Wuta- Ofei. The reliefs sought in both cases are the setting aside of the sale of the said property by the 1st Respondent to the 2nd Respondent, who was the sitting tenant for decades, on the basis that they were not consulted before the sale as they also had an interest in same, and an order of perpetual injunction retraining the Respondents from dealing with the property. The 1st Respondent claimed the right to sell the property as the head of family, administrator of the estate and the only surviving child of the parents.
On the right to sell property which other members of the family have an interest in, there are certain provisions of law. Section 1(1) of the Head of Family (Accountability) Act, 1985 (PNDCL 114) provides that despite a law to the contrary, a head of family or a person who is in possession or control of, or has custody of, a family property is accountable for that property to the family to which the property belongs. Under section 4 of the same, “head of family” includes a person who is in possession of or in control of, or has custody of a family property and “family property” includes property, whether movable or immovable, which belongs to the members of a particular family collectively or is held for the benefit of the members and the receipts or proceeds from that property.
It is my humble submission that the Supreme Court erred when the learned justices noted that the arrangement concerning the lease of the property did not alter the character of the property as family property or affect the law applicable to the management of family property which by customary law is the role of the head of the family who in this case is the 1strespondent, Raphael Wuta-Ofei and yet still went ahead to hold that being the surviving son and sole beneficiary of Wuta-Ofei, and head of family, he could dispose of the property without the consent and approval of his nieces and nephews. If indeed the property remained family property, then it was caught within the provisions of sections 1 and 4 of PNDCL114 and the 1st respondent who was in possession or control of the property is accountable to the family to which the property belongs. As Kludze (1987) notes, under practiced customary law, the head of family has always been accountable for family property held or administered by him.
The Supreme Court, also, held that the Court of Appeal stated the true position of customary law and practice of the devolution of property in a patrilineal system not only in Osu, but predominantly in other parts of Ga, Ewe and Guan communities; which position is backed by judicial precedents and learned pronouncements on patrilineal form of inheritance by authors as Justice Ollenu and Professor Kludze.
I am of the opinion that the Supreme Court erred in this regard. This is because the system of inheritance in these communities is not always strict but often based on the peculiarities of each case.
In Amponsah & Ors v. Budu, Wiredu JSC in his dissenting opinion reasoned that “To me any custom which seeks to deny a child from succeeding to his or her mother’s estate must be held to be unconscionable and contrary to good sense and should not be entertained in any customary law jurisprudence in Ghana…I further do not think that even in a strict patrilineal society there exists a system of inheritance that discriminates against a child on grounds of sex, even though there may be preferences whether the deceased was a male or female. I am however consoled that cases decided and the practice followed by the Guans had been held not to be strict patrilineal but mixed patrilineal and matrilineal.” “It may be true that succession and inheritance among the Guans is treated essentially as patrilineal but the known cases and the authorities reveal a flexible parental type rather than a strict patrilineal system”.
In Testate and Intestate Succession of Ghana, referred to by the Supreme Court, Ollenu at p. 176 says about the patrilineal family that “Again the assertion in Tamakloe & ors v. Attipoe & ors, that children have a beneficial interest in the enjoyment of the property to the exclusion of the other members of the family’ is, with respect, a statement of practice and not the customary law. This fact is borne out by the judgment in Husunukpe v. Dzegblor, which relied upon Attipoe v. Schoucaire, and which held that a sole surviving daughter of a deceased person cannot dispose of the estate without the consent of her own children. Other decisions have tended to show that succession among the Guan and among the Adas of the Ga-Adangbe tribe is mixed matrilineal and patrilineal. In the case of the Guan see: Darko v. Addo and Boadu v. Afoakwa.”
Ollenu admits that the Guan of Akuapim do not practice strict patrilineal inheritance but rather a mixed patrilineal and matrilineal system. The Supreme Court erred therefore in holding that the Court of Appeal stated the true position of customary law and inheritance as pertaining to Ga, Guan and Ewe communities as being patrilineal.
In Ewe communities, the Supreme Court’s position is again not accurate. For example, In Sedorme v. Dodor, since the only four sons who were entitled to their late father’s land partitioned it among themselves, each accordingly became solely beneficially entitled to that portion and could in all respects treat it as his own. Accordingly, on the death intestate of the deceased without issue, the person entitled to inherit the land was his sister of the full blood. The legal position was that the land lost its nature as family land and became successively the deceased’s and thereafter his sister’s land. On her death that land devolved on her descendants. The appellants who were the grandchildren of the deceased’s sister, then stood in her shoes and were therefore entitled to that land as against the respondents who were not descendants of the deceased’s sister.
In the Ada case of Sarbah v. Narnor, Korsah J., as he then was, held that upon the evidence before him “property of a deceased (Ada) father descends to his sons and daughters… if a woman at her death had interest in her father’s property, her interest would descend to her children. A person is entitled to succeed to property left by both parents, i.e. he or she has interest in both father’s and mother’s properties.”
In the instant case, the children of Robert Wuta-Offei succeeded to his self-acquired property. The appellant is a son of a daughter of Robert Wuta-Offei and is claiming through his mother. It appears a flawed position therefore that being the patrilineal system of inheritance, the interest of the appellant’s mother in the disputed property was limited to the interest she held jointly with her brothers and sisters for life. That interest should devolve to her children, in accordance with the rules of equity and good conscience.
In Duako v. Addo, Quashie Idun J. (as he then was) held that according to Guan custom children succeed to their mother’s property. The property does not revert to the family of the deceased owner.
In Addo v. Manko, Annan JA opined that “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 generalized rule is noticeable in the decided cases…Upon this review, I myself find no support for, and therefore do not support, the view that there is a rule of customary law of intestate succession of universal effect that upon the death intestate of a member of a family whether patrilineal or matrilineal, his self-acquired property becomes family property which enures to the beneficial enjoyment of a group described as the immediate family.”
From the afore-discussed, it appears therefore that even in Ga, Guan and Ewe communities, there is not a strict adherence to patrilineal inheritance but a matter of inheritance under intestacy is decided on the peculiar facts of the case with customary law acting as a point of reference.
Further, Counsel for the appellant averred that “it would be the height of discrimination if the alleged restriction on a female inheriting her father’s property has only a life interest in same existed as a rule of customary law. Article 17 of the Constitution (1992) prohibits discrimination as such that customary law, if any, ought to be struck down…” From the facts, The Court of Appeal held that upon the death intestate of Wuta–Ofei, a Ga from Osu, succession to his self-acquired property became family property and by Osu customary law which is patrilineal it is his children who inherited him. This position is accurate. However, the Court held further that all the four children of Wuta Ofei inherited the property, but the female children had only life interest in the estate. Herein lies the discrimination.
Under the 1992 Constitution of Ghana, article 11(1) provides that the laws of Ghana shall comprise this Constitution; enactments made by or under the authority of the Parliament established by this Constitution; any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution; the existing law; and the common law. Article 11(2) further provides that the common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines ofequity and the rules of customary law including those determined by the Superior Court of Judicature. Under article 11(3), “customary law” means the rules of law, which by custom are applicable to particular communities in Ghana.
Although there does not appear to be a hierarchical structuring of the sources of law as a result of the diction used under article 11(1), the matter is put to rest in article 1(2) that the Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void. It follows therefore that among all the sources of law provided under article 11, the Constitution reigns supreme. It is germane that all the sources of law are in tandem with the provisions of the constitution.
Article 17 of the 1992 Constitution provides that all persons shall be equal before the law and a person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status. Under clause 3, it provides that to “discriminate” means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.
The constitution is unequivocally clear on the equality of all persons and affirms the ideal of non-discrimination. To affirm therefore the decision of the Court of Appeal that all the four children of Wuta Ofei inherited the property, but the female children had only a life interest in the estate is indeed evidence of the acceptance by the Supreme Court of this discrimination against the female children.
In the preamble to the Convention on the Elimination of All Forms of Discrimination against Women, the Convention, to which Ghana is a party, explicitly acknowledges that “extensive discrimination against women continues to exist”, and emphasizes that such discrimination “violates the principles of equality of rights and respect for human dignity”. As defined in article 1, discrimination is understood as “any distinction, exclusion or restriction made o.1 the basis of sex…in the political, economic, social, cultural, civil or any other field”. In article 3, the Convention affirms the principle of equality by requiring States parties to take “all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men”(article 3).
It is imperative to add that the provisions of the Convention can be reconciled with who a child is under PNDL 111. This is because under section 18, “child” includes a natural child, a person adopted under an enactment or under customary law relating to adoption and a person recognized by the person in question as the child of that person or recognized by law as the child of the person. There are no age limitations on who a child is; the child must only be recognized as a child of the deceased and therefore a female child can be a woman who is captured within the provisions of the Convention.
The Supreme Court held that PNDCL 111 is not retrospective and did not affect an estate that had already been distributed according to the personal law of succession of the intestate. It reasoned that in the case at hand, the property was the self acquired property of Robert Wuta -Ofei who died intestate in 1970 and his wife Barbara Wuta- Ofei obtained letters of administration and administered the estate before she died in 1976. The 1st Respondent and his siblings including the mother of the Appellants were the beneficiaries of the said estate. The patrilineal system of inheritance prior to PNDCL 111 traces the line of succession through the male line and property even if inherited by a female reverts to the paternal family after her death. The rational is that children born to a woman inherit properties belonging to their father and it is through their father’s line that they can lay claims to such properties.
I humbly submit that the justices of the Supreme Court erred when they affirmed the decision of the Court of Appeal in holding that despite the interstate Succession Law (PNDCL 111) by the customary law of Gas (Osu), female children of a deceased original owner of property, who inherit the property cannot pass on their interest to their children (grand children of the deceased) thus the property reverts to the family of the deceased original owner. The decisions in the cases of Sarbah v. Narnor, Duako v. Addo and Addo v. Manko hitherto discussed are to the effect that where children inherit property from their deceased parent, they, whether male or female, have an interest in the property that can be passed to their descendants. Such property does not revert back to the family of the deceased. It is therefore discriminatory to hold that by the customary law of Gas of Osu, female children of a deceased original owner of property who inherit the property cannot pass on their interest to their children, but male children can, and thus the property reverts to the family of the deceased original owner.
Also, under section 4(1)(a) of PNDCL 111, despite the act, where the estate includes only one house, as is the case in the instant matter, the surviving spouse or the child or both of them is or are entitled to that house and where it devolves to both the spouse and the child, they shall hold it as tenants in common. As a tenancy in common, the right of survivorship does not exist. The effect is that the house devolves on the descendants of the last tenant through intestacy. It cannot be said therefore that the female children of a deceased owner of property only have a life interest in the property and cannot pass on their interest to their children. However, even if PNDCL 111 is not retrospective and can therefore not be applied to the estate of the intestate, as provided in section 1(1), the Supreme Court decision that in the patrilineal system of inheritance property inherited by a female reverts to the paternal family after death is not accurate.
In light of articles 1(2), 11 and article 17 of the 1992 Constitution, Customary law must not contravene the provisions of the constitution. At best, it must be reconciled with the Constitution. Where such an inconsistency exists, the provisions of the Constitution shall prevail. A rule of customary law, where it actually exists, that the female child of a deceased only has a life interest in the property and cannot pass same to her descendants is discriminatory when brought within the provisions of article 17, hitherto discussed. The Supreme Court erred therefore in holding this to be the true position of inheritance under Ga customary law. Even if it was the position under customary law, the onus lay on the Court to reconcile that position with the provisions of the Constitution so to remedy this discrimination. As noted by Wiredu JSC in Amponsah v. Budu, “any custom which seeks to deny a child from succeeding to his or her mother’s estate must be held to be unconscionable and contrary to good sense and should not be entertained in any customary law jurisprudence in Ghana.”
As Hammond (2019) aptly states, it is imperative that the state reforms certain customary laws in Ghana, because some of these laws undermine the protection and promotion of human rights as well as socioeconomic development. In In re Kofi Antubam (Decd); Quaico v Fosu, Archer J (as he then was) postulated that “If the customary law is to retain its place as the greatest adjunct to statutory law and the common law, it cannot remain stagnant whilst other aspects of the law are in constant motion.”
A reform in certain customary laws is required. Aspects of law are indeed in constant motion and it is germane therefore that customary law does the same. This motion must be to a more desired end and be reflective of the rules of equity and good conscience. It must not elude the courts also their power to make pronunciations of binding effect as a result of the interpretation they give to statutes and law in the adjudication of cases. In cognizance of this, the court must do all it can to uphold human rights and the principles of equity. It does not speak well of our judicial system where there is the strict adherence to customary law even when it is evident such law is discriminatory. The Supreme Court had the power to make a pronunciation to remedy the discrimination towards female children inheriting under intestacy in the patrilineal system of Gas of Osu evident in Odamtten & Ors v. Wuta-Ofei, and it is my humble submission that it failed to do so.
- Convention on the Elimination of All Forms of Discrimination against Women.
- 1992 Constitution of the Republic of Ghana
- Head of Family (Accountability) Act, 1985 (PNDCL 114)
- Intestate Succession Act, 1985 (PNDCL 111)
- Addo v. Manko
- Amponsah v. Budu
- Duako v. Addo
- George Odamtten & Ors v. Raphael Wuta-Ofei
- Hausa v. Haruna
- In re Ackom-Mensah (Decd); Ackom-Mensah v Abosompem
- In re Kofi Antubam (Decd); Quaico v Fosu
- Sarbah v. Narnor
- Sedorme v. Dodor
- Aryeh, J N A. 2014. “The Right to walk in another man’s shoes: The intestate succession Act in context”. UGLJ Vol xxvii. pg 202
- Daniels, E W C. 1991-92. Development of Customary law. Vol. xviii. p68—94.
- Dowuona-Hammond, C. 1998. “Women and Inheritance in Ghana.” In Women and Law in West Africa: Situational Analysis of Some Key Issues Affecting Women, edited by Akua Kuenyehia, 132–168. Ghana: Women and Law in West Africa.
- Hammond, A. 2019. “Reforming the law of intestate succession in a legally plural Ghana”, The Journal of Legal Pluralism and Unofficial Law, 51:1, 114-139
- Kludze, A. 1987. “Accountability of the Head of Family in Ghana: A Statutory Solution in Search of a Problem.” Journal of African Law 31 (1–2):107–108.
- Ollennu, N.A. 1966. The Law of Testate and Intestate Succession in Ghana, London. P 176.