E. A. Solomon & Ors V. J. D. K. Botchway As Head Of Jacob Vanderpuye’s Family (1943)

LawGlobal Hub Judgment Report – West African Court of Appeal

Native law and custom—Ga custom of Accra—InheritanceDeceased’s self-acquired property—Children of six-cloth marriage entitled to share—Pleadings defective—Retrial with amended pleadings.

Facts

The nephew and the eldest son of the late Jacob Vanderpuye, for themselves and on behalf of the children and other members of the family of the deceased, sued the defendant as head of the family for a declaration, that, inter alia, they were entitled to a share of the rents and profits of the real property- of the deceased. The second plaintiff was the child of a six-cloth marriage and relied upon the Ga custom of Accra applicable to the children of such marriages, but these points were not pleaded. The trial Court gave a declaration, inter alia, that the second plaintiff and his brothers and sisters had an interest in their father’s property, personal or real.

The principal question argued in the appeal was whether children of a six-cloth marriage under the Ga custom of Accra have any interest in their father’s estate or not.

Held

Affirming the decision in Cole v. Okine and Cole (Supreme Court, Accra, 11th September, 1939, not reported) that the eldest son of a six-cloth marriage was entitled under the Ga.custom of Accra to a share of the self-acquired property, real or personal, of his late father, the amount of such share depending on the decision of the head of the family assisted by the other members.

Since the second plaintiff had not pleaded that he and the other children were children of a six-cloth marriage or that they relied on the Ga custom of Accra, the appeal was allowed and the declaration set aside, and the case was remitted to the trial Court for the pleadings to be amended, and further evidence to be taken if necessary.