11/8/2018 pages.

gif

GHANA LAW FINDER

Self help guide to the Law Easy to use Case and Subject matter index and more [email protected]

HOME 1959 GHANA LAW REPORT

QUARTEY v. MARTEY & ANOR. [1959] GLR 377­383

IN THE HIGH COURT, ACCRA

17TH NOVEMBER, 1959

OLLENNU J.

Family law—Customary law—Nature of property acquired with proceeds of family property—Duty of a

man's wife and children to assist him in his work—Nature of property acquired by proceeds of such joint
effort—Devolution of property upon a man's death intestate—Principle of distribution of such property—The
widow's right is to maintenance only—Responsibility for funeral expenses.

HEADNOTES

H.A. Martey and Evelyna Quartey were married under customary law some 25 years before the
proceedings to which this report relates. In course of time Martey died, and his widow issued a writ of
summons, directed to Okoh Martey and Anti Koshie, claiming

[p.378]

(1) an amount of £91 Os. 6d., balance of expenses incurred by her in connection with the funeral of her
late husband;

(2) a one­third share in 70 cattle;

(3) a one­third share in a house at Official Town, Accra; and

(4) a one­third share in the sum of £1,305 8s. 6d., which stood to her late husband's credit at the time of his
death.

As to the funeral expenses, the widow pleaded that she had incurred them at the request of the chief
mourner who presided over the funeral, and with the full knowledge and consent of the family. As to the
claim to the various one­third shares, the widow relied on two grounds, viz.,

(1) that a wife married according to customary law is entitled to a one­third share of the estate, real and
personal, of her husband upon his death intestate, and

(2) that she had assisted her late husband financially during his lifetime, and had given active assistance to
him in all jobs he did. The properties mentioned in the writ of summons were acquired by him with moneys
which he had made from the jobs in which she had rendered him assistance. Where a woman so assists
her husband in carrying on his business, she is entitled to a share in the proceeds of his work, or to a share
of the property he acquires.

The defendants denied that the plaintiff was a wife of the deceased as alleged by her. They also denied
knowledge of the plaintiff's authority to incur the expenses of £91 Os. 6d. on the funeral, or any other
funeral expenses.

Held:

(1) that the plaintiff had been the lawful wife of the deceased, married according to customary law;

(2) that if the house had been built by the deceased out of proceeds from a cocoa farm at Pramkese which
his deceased father had left and of which he (H. A. Martey) had had charge, the house would be family
property, because by customary law any property acquired with the proceeds of family property is itself
family property;

(3) that by customary law it is the duty of a man's wife and children to assist him in the carrying out of the
duties of his station in life. The proceeds of that joint effort, and any property which the man acquires with
such proceeds, are by customary law the individual property of the man, not the joint property of all;

(4) that the proposition that upon a man's death intestate, his widow married under customary law is by
that law entitled to a one­third share of his self­acquired property, real and personal, is untenable;

(5) that by customary law, upon a man's death intestate his self­acquired property becomes family property,
vested in his family. No member of the family has the inherent right to succeed ­ succession is a matter of
appointment, or election, by the head and principal members of the family;

[p.379]

file:///Users/sophiamuller/Documents/LOCATE%20LAW%20REPORTS%20/ghana%20law%20rep/1959/QUARTEY%20v.%20MARTEY%20&%20ANOR.%… 1/3
11/8/2018 pages.gif
(6) that by customary law, upon a man's death intestate, no member of the family is entitled to a fixed share
of the property. Most of the personal property is distributed among the children and other members of the
family, the children getting the major share. The real property, and certain classes of personal property, are
not distributed; neither the successor nor any one member of the family can dispose of such property
without the consent and concurrence of the head and principal member of the family;

(7) that by customary law a widow's right is the right to maintenance by the family of her deceased
husband. This is the responsibility of the head of the family until a certain stage of the funeral, when the
family appoints another member of the family to be the widow's new de jure husband. The latter, even if
they do not live together as man and wife, is responsible to maintain her according to his own standard in
life;

(8) that by customary law the funeral expenses of a deceased person are the responsibility of the family.
The proper person to be sued in respect of such expenses is the head of the family, or the successor
appointed by the family to take charge and control of the family property.

CASES REFERRED TO

(1) Asumah v. Khair (p. 353 of this volume);

(2) Okwabi v. Adonu (2 W.A.L.R.268).

COUNSEL

Acheampong for plaintiff (the widow);

Puplampu for defendants

JUDGMENT OF OLLENNU J.

(His lordship referred to the pleadings, and continued:—)

The evidence led by the plaintiff as to her marriage with the late H.A. Martey was not cross­examined upon,
and there is evidence led by the defendants which shows that the late H. A. Martey lived with the plaintiff for
over 25 years as man and wife, and that the family of the deceased acknowledge the plaintiff as a wife of
the deceased, married under the provisions of customary law.

There are various forms of valid marriage under customary law. The indispensable elements in all of them
are the request of the man to live with the woman as man and wife, and consent thereto by the family of the
woman (Asumah v. Khair (p.353 of this volume), where the various forms of customary marriage in Ghana
are discussed). On the evidence before me I hold that the plaintiff was the lawful wife of the deceased,
married according to customary law.

I turn now to the question of assistance which the plaintiff alleged she gave to her late husband who, she
said, was out of employment and a man of straw, deserted by his first wife at the date when she [p.380] got
married to him. All the assistance which she said she gave her husband was an allowance of £5 a month,
later increased to £10 a month; and her use of his U.A.C. Credit Customer's Passbook to trade on his
behalf. When asked how her husband who "was out of employment" could build a house valued at £6,000
on the allowance which she said she was giving him, she replied "It is only God Who can tell". She
admitted, of course, that the husband was in charge of a cocoa farm at Pramkese left by his deceased
father, and that he could have built the house from the proceeds of that farm. In that case the house would
be family property, because by customary law any property acquired with the proceeds of family property is
itself family property, and is not the self­acquired property of the member of the family so acquiring it.

Again, by customary law it is a domestic responsibility of a man's wife and children to assist him in the
carrying out of the duties of his station in life, e.g. farming or business. The proceeds of this joint effort of a
man and his wife and/or children, and any property which the man acquires with such proceeds, are by
customary law the individual property of the man. It is not the joint property of the man and the wife and/or
the children. The right of the wife and the children is a right to maintenance and support from the husband
and father.

Applying that principle, in the case of Okwabi v. Adonu (2 W.A.L.R 268), the West African Court of Appeal,
confirming a judgment of the Land Court, held that it is a common feature of family life that a son will work
with and for his father, and that therefore, in the absence of strong evidence to the contrary, no presumption
will be raised that the property, obtained by the joint efforts of father and son and held by the father, is held
by the father in trust for the son absolutely. On the same principle I must hold that, in the absence of strong
evidence to the contrary, any property a man acquires with the assistance or joint effort of his wife, is the
individual property of the husband, and not joint property of the husband and the wife. There is no evidence
in this case which can raise a presumption that the properties acquired by the late H. A. Martey were the
joint property of himself and his wife.

Counsel for the plaintiff submitted that, upon a man's death intestate, his widow, married according to
customary law, is entitled in distribution to a one­third share of his self­acquired property, real and personal.
This, he said, is the customary law. He led no evidence of such a custom, and was unable to refer the
Court to any judicial decision in support of it. In my opinion, this submission is wholly untenable.

[p.381]

The customary law is, that upon a man's death intestate, his self­acquired property becomes family
property, vested in his family, which will be the paternal family or the maternal family, depending upon the
tribe to which the deceased belonged. Except in very rare circumstances a wife is not a member of that
family. No member of the family has the inherent right to succeed the deceased; succession is a matter of
appointment, or election, by the head and principal members of the family.

Nor has any member of the family an inherent right to a fixed share of the deceased's property in such a
case. Therefore, even where the wife happens to be a member of her husband's family she will not be
entitled to an ascertainable share of the property. The personal property is distributed among the children
and other members of the family, the children getting the major share. But the real property, and certain
classes of personal property, are not distributed or partitioned; they remain intact, and neither the
file:///Users/sophiamuller/Documents/LOCATE%20LAW%20REPORTS%20/ghana%20law%20rep/1959/QUARTEY%20v.%20MARTEY%20&%20ANOR.%… 2/3
11/8/2018 pages.gif
successor nor any one member of the family can dispose of such property without the consent and
concurrence of the head and principal members of the family.

By customary law the right of a widow is the right to maintenance and support by the family of her deceased
husband. Her maintenance and support remain the responsibility of the head of the family until a certain
stage of the funeral, when the family by custom appoints a member of the family to be her new husband.
From then on, that customary husband becomes responsible for the widow. He may not in fact live with her
as man and wife, but she is his wife de jure, and he is responsible to maintain her according to his own
standard in life, as he would maintain a wife married by himself originally. The widow may opt not to accept
the customary husband, in which case the family's responsibility for her support and maintenance ceases;
or the family may opt to give her a send­off, in which case, too, their responsibility would cease. In either
case, special custom must be performed to effect the determination of the marriage of the woman into her
late husband's family.

It follows that the only claim open to a widow of a marriage according to customary law is a claim for
maintenance and support. This is based upon the principle that when the husband married the woman into
his family, he undertook responsibility for her maintenance and support; which responsibility together with
the enjoyment of his self­acquired property (if any), falls to the lot of his family. The widow can maintain an
action for her support against the head of the family, against the successor to her husband (if one has
[p.382] been appointed according to custom), or against the customary husband. I hold, therefore, that the
plaintiff,s claim to a one­third share of the estate of her late husband is misconceived.

Finally, I come to the claim of the plaintiff for £91/­/6d, which she alleged to be the balance of an amount
she spent on the funeral of her late husband. She gave evidence that she undertook the expenditure upon
the authority of one Martey Obaamla, her only witness in this case. Among the items of expenditure given
by her are: Coffin, mourning­cloth for the three widows of the deceased, Bus hired for the funeral. On this
issue the defendants denied the authority of the said Martey Obaamla to bind the family. They admitted,
however, that the family paid the plaintiff for the coffin. I cannot see how the family would accept
responsibility for that expenditure if it was incurred without their authority. As to the cloth supplied to the
widows, the 1st defendant said that it was not the family who supplied the widows with the said cloth, but
rather that the customary husbands who had been given to the widows and had become responsible for
them by customary law, each supplied his widow­wife with the requisite cloth.

In contrast to that, the 2nd defendant, daughter of the deceased by his first wife, corroborated the evidence
of the plaintiff that it was the family who supplied each of the three widows with the mourning cloth. I reject
the evidence of the 1st defendant, and I accept that of the plaintiff and the 2nd defendant. I have no doubt
in my mind that these cloths were purchased by the plaintiff upon the request of Martey Obaamla, and that
Martey Obaamla had the authority of the family when he requested the plaintiff to incur that expenditure,
and that explains why the family supplied those cloths to the widows.

As to the other items of expenditure also, I have no doubt that Martey Obaamla had the authority of the
family to request the plaintiff to undertake these, but with the exception of the hire of the Bus, the plaintiff
has not led sufficient evidence as to the accuracy of the other items of expenditure. This is particularly so,
because when Martey Obaamla came to the witness ­ box he was not asked a word about any request he
made to the plaintiff in respect of those items.

The funeral expenses of a deceased person are by customary law the responsibility of his family. The
proper person to be sued in respect of funeral expenses is the head of the family, or the successor
appointed by the family to take charge and control of the family property. Upon the plaintiff's own evidence
the defendants are not the heads of the family; moreover, there is no evidence that any of [p.383] them has
been appointed successor to the deceased. The plaintiff has therefore sued the wrong persons for those
expenses, and her claim must for that reason also fail.

DECISION

The plaintiff's claim is dismissed. In the circumstances of this case I make no order as to costs.

Legal Library Services Copyright ­ 2003 All Rights Reserved.

file:///Users/sophiamuller/Documents/LOCATE%20LAW%20REPORTS%20/ghana%20law%20rep/1959/QUARTEY%20v.%20MARTEY%20&%20ANOR.%… 3/3