The Family & Succession

By Justice Alexander Osei Tutu

 Meaning of Family
It can be seen that family is so important in the discussions of succession both under customary succession
and succession under wills in Ghana.

Under customary succession the family is an indispensable component be it nuclear or extended family

Under the Wills Act 1971, father, mother, spouse and child (under 18), who basically comprise a family may
reasonably be provided for by the Court out of the estate or the testator upon the satisfaction of certain
conditions in sections 13, if the Testator failed to provide for them in his will and also failed to provide for
them in his lifetime

What then is Meaning of Family to the English

• Its usage varies from statute to statute
• Used differently at various times. E.g. in Re Terry’s Will [1854], it was used to refer to ‘children’
• In Humbel v. Bowman [1877], it was used to include ‘illegitimate children’
• In Re Sargent [1890], it was used for all descendants
• In Price v. Gold [1930], it was used to include ‘brothers & sisters’

• Bromley’s Definition: “A basic unit which consists normally of a husband and wife and their children.”
• Generally, it consists of a minor unit comprising of:
a. Man
b. His wife
c. His children
d. And sometimes, domestic servants
 Meaning of family under customary Law

• The word “family” is used, customarily, to embrace a wider unit of persons related or
presumed to be related by consanguinity.

• Sarbah: “A Fanti family consists of all the persons lineally descended through females from a
common ancestress.”

• Ollenu: “the social group into which a person is born.”

• Bentsi-Enchill: “The Family is the group of persons lineally descended from a common
ancestor exclusively through males (in communities called patrilineal for this reason) or
exclusively through females starting from the mother of such ancestor (in communities called
matrilineal for this reason) and within which group succession to office and property is based
on this relationship.”

• All the definitions have their shortfalls.

• But one thing is clear that a person’s membership to a family depends on his matrilineal or
patrilineal linkages to the family in question
• Patrilineal & Matrilineal Societies

• Literally, Patrilineal societies are societies in which inheritance and

royal succession trace through the father of the family. Matrilineal
societies are those in which royal succession and inheritance trace
through the mother.
• In relation to practices in other jurisdictions, the Jewish culture is an
example of one that has matrilineal descent.
• For example, in many communities, if a person’s mother is Jewish
and father is not, the child still counts as Jewish since the line traces
through the mother. In some matrilineal societies, matrilineal
surnames are passed down from mother to daughter instead of the
more traditional patrilineal surnames that go from father to son.

• Most cultures in Europe were patrilineal, such as the one in

England. Even when a woman inherited power, such as with
Elizabeth I, it happened only because there were no other men who
qualified in the line. Elizabeth still inherited the title from her father,
• a) The Matrilineal family
• This refers to all persons, both male and female who descend from a
common ancestress.
• They trace their descent though the mother.
• The children would identify with their mother’s family and would
therefore not inherit or succeed from their father, but rather
through their maternal uncles.

• In Mills v Addy (1958) 3 W.A.L.R 357, the court explained it thus;

• “In the matrilineal areas of Ghana every woman who, being married, has
children, originates a family. The family so originated is a branch of the
wider family to which the originator belongs. The self-acquired property
of such an2 originator, dying intestate, becomes the family property of
her family (although it may be subject to prior life interests in the mother
and the collaterals of the deceased). Upon the failure of her family and
the subfamilies created within it by her daughters or remoter female
issue in the female line, this family property reverts to the wider family of
which the originator was a member: “once family property, always family
property”
 Matrilineal Societies
 The Akans, except the Guan and Kyerepong elements and
 The Akan elements in the Jasikan area
 Tamale town
 The Lobi
 The Lobi Dagartis
 The Tampolense and
 The Vagala or Bala in the savana northern parts of Ghana.
 See Ansaba v. Mbeah & Others [2010-2012] 1 GLR 682 – Per Marfu Sau JA
• Ga Mashies were deemed matrilineal.
Pappoe v. Wingrove & Co. Ltd [1921-1925] Divisional Court, 20
“On the evidence I find that according to Ga Law and Custom, when a Ga dies intestate … his individual
property, both personal and real becomes family property.” Per Smiley C.J.

• See also – Amarfio v. Avorkor [1954] 14 WACA 554; Lakai v. Amorkor [1933] 1 WACA 323; Solomon v.
Botchway [1943] 9 WACA 127; Enin v. Prah [1959] GLR 44 and Vanderpuye v. Botchway [1951] 13 WACA 164.

• But now patrilineal. (See Bentsi-Enchill: Ghana Land Law, 1964, pp. 160-164; Nii Aposa Ga Mashie
Succession: Ascertaining the true personal Law [1974] 6 R.G.L 116.

• Amarteifio v. Ankrah & Ors. [1959] GLR 230, H.C. - That in the absence of proof of a custom (in a particular Ga
family) different from the ordinary Ga custom, the ordinary principle must be applied, viz., that for purposes of
succession to a stool or to other traditional office, succession runs in the paternal line; but for purposes of
succession to property, succession runs in the maternal line.
• (b) The Patrilineal family
• Family systems which trace their descent through
the father are known as patrilineal societies.
• A patrilineal family comprise all persons, male
and female who identify themselves by tracing
their origin to a common ancestor.
• Almost all the ethnic groups in the
• Northern,
• Savana region
• Upper East and Upper West
• Volta,
• Greater Accra (Ga and Ga Adamgbes)
• the Nifa and Benkum divisions of the Akwapim Traditional
Authority.
 Patrilineal Societies

 Guans
 Kyerepongs
 Buems
 Some Akan elements in some communities in the Volta region.
 The Adum and the Pankrono Stools of Kumasi
• For the Adum stool of Kumasi, see In Re Adum Stool; Agyei &
Anor. v. Fori & Ors. [1998-1999] SCGLR 191 @ Holding 2).
• Pankrono Stool: Yiadom & Ors. v. Konadu & Ors. [1992-93] 3
GBR 1094, S.C.
Held: “…originally succession to the
Pankrono Stool was matrilineal but, by the decree of Okomfo
Anokye, it became patrilineal...”
 Patrilineal means intestate estate vests in their
children
Abotsi (An infant), In Re; Kwao v. Nortey and Others [1984-86] 1 GLR 144 at 147, C.A.
“The judge also held, again correctly, that: “The inheritance in Kpone is patrilineal and children do inherit their fathers.“ The holding was
based on the evidence governing the rules of customary succession in Kpone given to the court by the chief of Kpone. In other words, the
succession is, unlike the greater part of Ghana, patrilineal not matrilineal. The decision of this court in Addo v. Manko [1976] 2 G.L.R. 454,
C.A. shows that in this type of succession, the legal and beneficial title to an intestate's estate, vests in his children. On the particular
facts of this case, as the appellant was the only child of the deceased, there is no gainsaying the fact that he became for all purposes the
owner of all the movable and immovable property which his father died possessed of. The fact that some or all of these assets may be
subject to incumbrances does not affect the legal position .” – Per Apaloo CJ

Addo v. Manko [1976] 2 G.L.R. 454, C.A.

“If there was anything like a general rule for patrilineal societies it was that the self-acquired property of a male person
dying intestate in a patrilineal community devolved not on the whole patrilineage, but on his immediate family, both as to
title and as to rights of beneficial enjoyment. But a distinction should be drawn between the family he was born into and the
one he originated when he had issue. The group which was generally regarded as being beneficially entitled to such
property was the group which was most proximate, namely, his children. In the present case since the deceased was a
native of Abiriw, a Guan patrilineal society, the children were entitled to succeed to the part of the property due to the
family”.

Amerley v. Otinkorang [1965] G.L.R. 656, S.C.

“in this case, both parties claim title through the late Otinkorang whom the learned trial judge found to have hailed from
Teshie. It follows that succession to his properties upon his intestacy is determined exclusively by Teshie customary law.
Accordingly, a third share of the deceased's properties which by virtue of section 48 of the Marriage Ordinance devolves in
accordance with customary law descends to the patrilineal family which the children of the late Otinkorang constitute. It
follows that the appellant qua head of the late Otinkorang's family has no title to any portion of these properties and the
learned trial judge was right in so holding
 The position of the family in respect of the property of a member who died
intestate: Family as successor prior to 1985

• Adomako Anane v. Agyemang & 7 Ors. [2014] 75 G.M.J. 1 @ 15, S.C.

“At customary law, property acquired by an individual which upon death
devolves on the individual’s family as family property does not lose its family
character on the sole basis that the mode of acquisition was not under
customary law, but common law.” – Per Wood (Mrs.) C.J.

• In Re Atta (Dec’d); Kwako v. Tawiah [2001-2002] SCGLR 461: The self-acquired

property of a member dying intestate becomes family property and it is the
right of the immediate family to appoint a member as customary successor to
administer estate of family property not vested in customary successor

• Ollenu: “the correct position of the law is that upon a person’s death intestate, his self
acquired property vests in his ancestral family, which includes his immediate family, and the
head and elders of the whole family … the first principle of the customary law of succession
applicable to all tribes in Ghana is that upon a person’s death-intestate – male or female –
his or her self-acquired property becomes family property.”

• Bentsi-Enchill: “the fundamental rule on which all are agreed that upon the
 Can a person appoint his own successor?
• A person cannot lawfully appoint his own successor.
• The dead cannot control and manage his property, he therefore can’t appoint his successor

Kwako v. Tawiah [2001-2002] 1 GLR 339, S.C. @ 352

“… the rule applied because the property would become family property only after the death of the
member of family and because upon his death he would no longer have any control over the land, it is
only reasonable that the family as owner should be the right authority to appoint the person who should
administer the estate on its behalf. This means that customary law regarded any attempt by the owner
of property to appoint his own successor as an encroachment upon the rights of the family to appoint a
successor who is the family’s caretaker and owes a fiduciary duty to the family.” - Adzoe JSC

• Kwoba v. Propaganda File [1948] DC (Land) ‘48-51, 22

• Frimpong v. Anane [1965] GLR 354, S.C.
• Ollenu: The Law on Testate & Intestate Succession in Ghana (1965), p.95

• No one has the inherent right to succeed under customary law

• Okoe v. Ankrah [1961] GLR 109, H.C.

Akumanyi v. Peprah (L.C) 2 WALR 112 at 114
 Succession to a stranger permanently
settled in Ghana
• It is by the customary law of succession of the tribe
among whom he made his permanent settlement.
• In Lutterodt v. Ananfio [1915] D&F 11-16, 78 – That
succession to an emancipated slave who opted to remain
in Accra upon emancipation is according to Accra custom.
• Yeboah v. Bonko, 2 W.A.L.R. 107 – Succession to an
emancipated female slave accepted into the master’s
family is by the custom of the ex master’s family.
• Miller v. Van Hein [1912] D & F, 11-16, 15, 21 – Brazilian
settlers have no custom other than the custom of Accra
among whom they have settled.
 Appointment of the Head of Family
• Appointment of head of family is done by the family
International Bible Students Association v. Divine Healers Church [2012] 42 G.M.J. 1 @ 4,
C.A.
“… Under Customary Law, the head of family is appointed by members of the family and
not by a single person as the testator did.” - Per
Mariama Owusu J.A.

The Mode of appointment

Re Katehena & Duazi [1962] 1 GLR 449
Appointment of head of family
i. Should be made by all the principal members of the family
ii. at a family meeting
iii. duly convened by the proper person.
iv. Notices should be sent to all the principal members eligible to participate in the family meeting
v. showing the purpose of the meeting.

 Mankata v. Ahorli [1956] 1 WALR 169

 Okoe v. Ankrah [1961] GLR 109 (H.C.)

 Accountability of the Head of Family

 The Original position: Head accountable to family at family meetings

 The case of Hansen v. Ankrah [1987-88] GLRD 58: Heads immune from
judicial suits, per the majority decision

 The Passage of PNDCL 114: Immunity stripped

 Condition precedent - Domestic settlement before court action

Sarpong & Ors v. Frimpong & Anor. [2009] 5 M.L.R.G. 36 @ 51,

“Accountability’ envisaged under the Head of Family [Accountability Law, 1985
[PNDCL 114], is only a reiteration of the position under customary law. It does
not simply mean checking monies which have accrued into the pocket of the
successor, and how such monies have been used. It rather relates to the
successor’s overall stewardship, control and management of the family property
in his possession.” - Per Piesare J.A.
 Between the Head & the Customary Successor;
who acts?

Augustt v. Aryee [1961] GLR 584

“As between the successor to a deceased person who is head of the
immediate family and the head of a wider family of which the
immediate family is a branch, the proper person to take charge and
control of, and to litigate over the property of the deceased is the
successor.”

Andrews v. Hayford [1982-83] GLR 214

“A having been appointed the customary successor of P, he in law became the head of
P's immediate family, and as such head he was the proper person to control and deal
with the self-acquired properties of P. In the circumstances, A and D could validly sell the
disputed land during their lifetime without the concurrence and consent of the head and
members of the wider Twidan family of Cape Coast.”
 Atta v. Amissah and Others [1970] CC 73, C.A.
Holding 1: “It is settled customary law that upon the death of a person instate, although his self-acquired property
becomes the property of the whole family, - the immediate and the wider family together -, the right to the
immediate or beneficial enjoyment in it and to the control, use and present possession of it vests in the immediate
or branch family alone. If the property is held by tenants, the right to the landlord’s benefits vests also in the
immediate family alone. It is the immediate family, and not the extended family, which has the power to alienate
the property by virtue of its possession of the right to the beneficial enjoyment of the property. Those members of
the extended family who do not belong to the immediate family (however it is delimited) are excluded from
enjoyment of the property until the extinction of the immediate family. The person appointed successor to the
deceased becomes, under customary law, the head of the immediate family, and is, as such head, the proper person
to sue and be sued in respect of that particular family property.” - Per Anin J.A.

Gyakwa and Others v. Saah [2013-2015] 1 GLR 652

Holding 4: “On the authorities, the person who had the power to alienate property by virtue of its possession of the
right to the beneficial enjoyment of the property was the proper person to sue and be sued in respect of the
property and not the head of the wider family who did not have immediate possession and enjoyment of the
property. In the event where a person became head of the immediate property and as such head was the proper
person to control and deal with the properties. In the instant manner the plaintiff as the usufruct owner was the
proper person to alienate the property in her capacity as the head of her immediate family without the consent and
concurrence of Adamanso and Bawdie Stools. Consequently, it was the usufruct title holder who had the power to
alienate land in his possession and not the stool.” – Per Dennis Adjei J.A.
 The Duty of the Customary Successor
1. Duty to manage and control
2. Duty to account to family
3. Dirty to preserve from encroachment and alienation
4. Duty to protect family interests
5. Duty to improve upon property
6. Duty to prevent waste

Sarpong & Ors v. Frimpong & Anor. [2009] 5 G.M.J. 36 @ 52, C.A.
“While a successor remains in office, he is in complete control and management
of the family property in his possession. But he is accountable to his family, and cannot dispose of, alienate,
encumber or deal with the property in any way to the detriment of or injury to the family.” - Piesare J.A.

The Law of Testate and Intestate Succession in Ghana [1966 Edition] by NA Ollenu, p. 280, paragraph 2
“Again the successor owes a duty to both the immediate and the extended family not only to preserve the
property, but as much as possible to improve it; he is therefore entitled to spend portion of the income from time
to time on the property. In short, he owes the family now living and yet unborn, a duty not to commit waste in
respect of the family property, but rather to preserve and improve it. Therefore while the successor, continuing in
office virtually has complete control and management of the property his dominion over it is subject to important
limitation that he shall not, save with the consent and concurrence of the principal members of the family
alienate, encumber or otherwise deal with the property to the detriment or injury of the family: Golightly & Ors.
v. Vanderpuye {High Court, November 27, 1961 unreported]. Therefore where the successor is not at the same
time the head of the immediate family, he is liable to account to the family. [Krakue v. Krabah, Supreme Court,
th
 The position of the head vis a vis the family
members
• “Abusuapanyin” – More than primus inter pares (Danquah: Akan Law & Customs
at p. 205)

• “Penin”- Sarbah: Fanti Customary Laws at p. 37-38.

• Panyin & Ors. v. Yaw [1982-83] G.L.R. 1118

“Both share a common view that the head of family is the chief administrator and
ruler of the affairs of the family and his position commands respect and obedience
from members of the family. He is endowed by customary law with powers necessary
for the efficient administration of the family.” - Per Twumasi J. (as he then was).

• “[T]he core of Ghanaian society is the family and . . . the head symbolises the
hopes and aspirations of that family . . . [I]t is irrelevant and improper for a
member to bring him to court while he occupies the office . . . The head of family
must of course have the capacity to handle the routine orders and disorders of the
daily life of the family.” – Sowah JSC
 Is a complete, valid and perfect gift revocable
under customary law?
• No: Once the gift is complete and perfected, it can no longer be revoked.

Authorities:
• Mamavi v. West African Building Ltd. (1965) GLR 216 at Holding 7
“Since the gift was not in any way incomplete,
it follows that the gift was irrevocable and the plaintiff could not countermand his
instructions …” - Per Apaloo JSC

• Boafo v. Gyetua (1962) 1 GLR 4 at Holding 1

”At customary law a gift of land inter vivos is
irrevocable once it is completed and the donee has been put in possession.” – Per
Djabanor J.

• Boakye v. Broni and Domfe [1958] 3 WALR 475 at Holding (iii)

“A gift of land, once the gift is completed and the
donee has been placed in possession, is irrevocable”. – Per Ollenu J.
 Does the principle have any exception?

• Yes, in the case of gifts from a parent to child .

Sese v. Sese [1984-86] 2 GLR 166, C.A.

What was contained in the deed of gift, exhibit B, was only the record of a transaction appertaining to a customary gift
from father to son. That was a customary gift which had been evidenced in writing. Thus the mere recording of the gift in
writing could not affect its customary nature. It still remained a customary gift and it continued to be subject to the
incidents of customary law. Some of such incidents being that every gift when completed was irrevocable except in gifts
between parent and child, which could be recalled or exchanged at any time by the parent in his or her lifetime, or by his
will or dying declaration. In the circumstance, the so-called gift, even if it was valid, could still be revoked by the plaintiff's
late father by adopting one of the means stated above. The father did not need any special deed of revocation, specially
prepared and couched in any strong language before the gift could be revoked. So long as the intention to revoke was
clearly and unequivocally expressed by the parent, be it orally or in writing or in a will, the revocation would be effective
and would be in accord with customary law. Even if there was an intention to make an absolute customary gift and the
transaction which took place between the plaintiff and his late father was a valid customary gift, that gift was effectively
and decisively revoked by the father by his will”. – Per Abban J.A.

Awisi v. Nyarko [1966] GLR 3 at Holding 3

“Under customary law a gift once complete is irrevocable except in cases of gifts between parent and child. The maxim
nemo dat quod non habet applied as it has found favour with the customary law, and therefore the purported revocation
by the husband of the gift to the respondent was accordingly ineffectual inasmuch as the husband had earlier divested
himself of title to the farm and the subsequent gift conferred no title, right or interest on the appellant. ”.
 Is the principle still applicable?

 Yes: It was recently applied.

Jacqueline Asabre & Anor. v. Johnson Aboagye Asim [2017]

109 G.M.J. 206 at 242
• “As a general rule, a gift which is perfect or valid, or in other words accepted by the
donee is irrevocable. – see Boakye v. Broni [1958] 3 WALR 475 applied in Mamavi v.
West Africa Building Ltd [1965] GLR 216. The exception to the general rule is that a gift
by a parent to a child is revocable in the lifetime of the parent or by his will or dying
declaration. – see Sese v. Sese [1984-86] 2 GLR 166 and Awisi v. Nyarko [1966] GLR 3.
According to Mensah Sarbah in his book on Fanti Customary Law, such gifts could be
exchanged. On his part, Danquah in his book on Akan Laws and Customs stated that
such gifts could be withdrawn if made in expectation of services which the donee has
failed to perform. Ollenu in P.C.L.L.G. did not mention the necessity for a just cause but
said the gift must be replaced with land of equal value. Lastly, Bentsi-Enchill in Ghana
Land Law held that such gifts may be revoked for serious misconduct. That being so, all
our local text-writers on customary law of the identifiable ethnic groups are id idem
that gifts by a parent to a child is revocable either for cause or no cause in the life time
 Reconciling the customary law doctrine to that of the
common law advancement?

• Property purchased in the name of the child and one already owned and later gifted to the child.

Kwantreng v Amassah [1962] 1 G.L.R. 241, S.C

"....that it appears unnecessary to review in any detail other pieces of material evidence which also
tend, . . . to discredit the definite assertion which the plaintiff made in the course of her evidence that
her father intended and meant to benefit her and expressly declared the transaction embodied in
exhibit A to be an absolute gift to her... Such other evidence need only be mentioned cursorily and that
is the circumstance that, firstly, her father in the interval between the execution of the deed of gift on
the 8th June, 1955, and the execution of the mortgage to the bank on 22nd August, 1955, collected
the rents of the premises; and secondly, he continued in complete control of the premises occupying it
with his other daughters, dependents and the nephew Quist, and also directing the occupation and
use of the premises in exactly the same manner as prior to the execution of the deed of gift and as
though it had not been made at all. This state of affairs the plaintiff not only accepted, but confirmed
as being the true state of things ... In these circumstances I am quite satisfied, ... that the deed of gift,
exhibit A, was made for the plaintiff only for the ... sole purpose of using the property in her name to
raise the loan primarily for the completion of the buildings on the land.... I therefore find the main
contention of counsel for the defendants-appellants that the evidence as a whole does not support an
intention of a gift to the plaintiff, clearly and well established, and I would uphold the same." – Per
Adumua Bossman JSC
 Alienation of property by the family
• The head with the principal members of the family
• What if done by the head alone? - Voidable
• What if done by the principal elders alone?- Void
• What if done by the members and later the principal elders
ratify?- Valid
• Does the same principle go for alienation by occupant of a stool
or skin? No. Alienation by the stool occupant alone is void.

• Any Authority? Yes

 Adjei v. Appiagyei [1958] 3 WALR 401 @ 404
 Fianko v. Aggrey [2007-2008] SCGLR 1135
 Awuku v. Tetteh [2011] 1 SCGLR 366
 Akunsu v. Botchway & Jei River Farm [2011] 1 SCGLR 288
 Litigating on behalf of the family
• The head of family is the proper person to sue over the family property
• But there are exceptions where an action can be brought by a member other than
the head of family

• Kwan v. Nyieni [1959] G.L.R. 67 @ 72

(1) As a general rule the head of family, as representative of the family, is the proper person to institute suits for the recovery of family
land;

• (2) to this general rule, there are exceptions in certain special; circumstances, such as i.
where the family property is in danger of being lost to the family, and it is shown that the head, either out of personal interest or
otherwise, will not make a move to save or preserve it; or

• (ii) where,
owing to a division in the family, the head and some of the principal members will not take any steps; or

• (iii) where the head and the principal members are deliberately disposing of the family property in their personal interest, to the
detriment of the family as a whole.”

• SEE ALSO
i. Nyamekye v. Ansah [1989-90] 2 GLR 152, C.A.
ii. Amponsah v. Kwatia [1976] 2 GLR 189
iii. Yomenu v. Awute [1987] 1 GLR 9
iv. Manu v. Nsiah [2005-2006] SCGLR 25
 Latter approach
• Order 4 Rule 9 of the High Court Civil Procedure Rules,
(2004) C.I. 47.
• (2) The head of a family in accordance with customary
law may sue on behalf of or representing the family.
• If for any good reason the head of a family is unable
to act or if the head of family refuses or fails to take
action to protect the interest of the family any
member of the family may subject to this rule sue on
behalf of the family.
• Where any member of the family

• Recent authorities after C.I. 47