19.06.2023 Academic Article

Family Property Law

By Mohammed Dahamani
Family Property Law
19.06.2023 LISTEN

Everyone in a given society or community is a member of a specific family. After reading this article, the reader should be able to understand the concept of family property. In my society, every family has a name, as well as properties such as farms, animals, and land. According to customary law, virgin lands farmed by grandfathers in the Dagomba region of the North later acquired family property.

You should be able to answer these questions, as a law student, "Who is the right person to bring an action on behalf of the family?" in relation to Ghanaian land law. Once more, is it possible for any family member to file a claim to recover lost or in danger property? How can you also know that the property is a family property in that case?

The law/position of the law
One should be able to understand that before westernization, we were ruled by our chiefs and family heads, and even now we still have family heads in our communities and chiefs as well. Hence, there are no families without heads or leaders, and the head should have control and possession of the family properties. In the case of KWAN v. NYIENI & ANOR[1]; it was accepted by the Court of Appeal that, as a general rule the head of a family, as representative of the family, is the proper person to institute suits for the recovery of family land. But there are exceptions to that effect, the Court of Appeal further stated that, to this general rule there are exceptions in certain special circumstances, such as:

  1. 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 step; 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.

Moreover, the principle in the case above demonstrated that the family head is the right person to bring an action to recover a family property. But where a family head has a personal interest in the matter and will not make a move to save or recover the family property then any member of the family with the consent of the other family members can bring an action to save or recover the family property.

In Ghana, acquiring family property is entirely dependent upon the family's financial capabilities; thus, if Cephas' family purchased a tractor for use in farming and later sold the vehicle to purchase land, the land is now considered family property. Also, Dahamani and Cephas, two brothers who have been farming for about ten years, are a good example of a collaborative endeavor where two brothers obtained land through farming. The house is not family property. It can be referred to as family property if and only if one of us passes away, but in the case of Dahamani's death, where the surviving spouse Cephas could only have a life interest in the home, the house has now become family property. Note, if two of us petition the property before we die, it is no more a family property

In NKONNUA v. ANAAFI[2]; it was established by OLLENNU J that where property will be property wearing the character of family property in which he and the person or persons with whom he acquired it has each a life interest and which all of them acting together could alienate inter vivos, but upon the death of any one of them the property becomes full family property and would remain under the control of the survivor of those who acquired it; upon the death of the last of them, it will come under the control of the head of the family or any other person appointed by the family. Already examined in the above see Dahamani and Cephas as example given.

However, the reader should understand the fact that we have intestate and testator. Indeed, if a person dies without making a will (intestate) and a person who makes a will (testator). Herein, what happened if a person dies intestate and the person who make a will with regards to family property. In KRABAH v. KRAKUE[3]; Ollennu Justices, I also agree with the submission that Jane Krakue having died intestate as far as the property in dispute is concerned, the property became family property. Hence, if Dahanani's father dies intestate, the child or the children only have beneficiary interest in the property because the property became family property as soon as the father die intestate. Ollennu J further stated that, I agree with the view that though a member of the family has an inherent right to occupy a portion of the family house, the portion he is to occupy must be allotted to him by the head of the family in consultation with his elders in order that other needy and deserving members should receive their fair share. Note, you can not make a will with regards to family property.

Moreover, in customary law, where a child or a ward works with his father or guardian, he does not become owner with the father or guardian of the income of their joint labour; whatever comes out of that joint effort belongs exclusively to the father or the guardian it was established in the case of YOGUO AND ANOTHER v. AGYEKUM AND OTHERS[4],it was further established by Ollennu J that, the Principle; under customary law, since the two brothers kept a common purse, whatever is acquired from the common purse has the character of family property, such that they could partition it during their lifetime, but upon the death of any one of them, it becomes full family property. Mostly, we don't know much with regards to family property, as a law student you should be able to advise your people with regards to family property.

In the Northern region one of my elderly friends told me about his finances and his inability to pay for his children' school fees or even unable to build a house for his family. This happened because when their father where alive all the children of his father farm together and acquired properties from the farming and after the death of their father the elder son who is the brother to him succeeded and refused to share their father's property. They continued to farm together as two brothers and bought about five tractors and 100 cows after the death of the brother; the children of the brother denied the younger brother from getting access to the properties by claiming that it was acquired by their father and not joint effort. Therefore, knowing the law with regards to family property is very important to the society in order bring justices, fairness among the people in our communities.

In BOATENG AND OTHERS v. BOATENG[5]; The trial judge found that the land on which the house was built was acquired jointly by B, his mother and sister and the plaintiff and they put up the house by their joint efforts. He therefore held that the house was family property and the plaintiff was entitled to immediate possession. It was upheld in the Court of Appeal. It was further established in the Court of Appeal that, customary law rule that children under the Akan system of inheritance were entitled to remain in their father's house subject to good behavior only related to the self-acquired property of their father. In the instant case, the house was not the self-acquired property of the defendants' deceased father but their father's family house. And since they did not belong to that family, they did not have an interest in it. The family was therefore entitled to immediate possession of the house.

Again, in NKONNUA v. ANAAFI supra it was further established by Ollennu J that, if an occupant of a stool develops property of his family, i.e. develops a foodstuff farm into a cocoa farm, or improves an existing family house as distinct from farms or buildings belonging to the stool, the property as improved does not change its legal character as family property to become stool property. Herein, if a member of a family develops or improves a family house, the law is still the same even extension or rebuilding the family house does not change the property be your property is still a family property.

Family property should be taken in to consideration, in order to reduce conflicts in our communities. The position of law is very clear about family property, by customs in our communities indeed the head is the right person to send a matter on behave of his/her family to chief palace even before the Court system came in to existence. Yes, people due have personal interest as a leader with regards to family heads, in that circumstance, it will be wrong to say that any member could not institute an action to save or recover the family property. I agree with the view that a family member helping or paying a student's school fees and later or in future whatever the person acquired is not a family property, to me is fair and justices.

In Larbi vs. Cato[6]; In my opinion, however, it would be repugnant and contrary to all principles of natural justice and good conscience to hold in modern days that where, for example, a man employs contractors to build on his land, the house so built would become family property simply because one member or another of the family occasionally visited the site of the work when it was in progress, and casually carried a pail of water, a piece of bricks, or helped the contractors' labourers to lift a board or so. Herein, it does not constitute family property and it is good law that was established by Ollennu Justice.

To conclude, the reader should be able to read the position of law as today or the current position with regards to P.N.D.C. L. 111 intestate succession Act 1985. Family property is a broad topic with regards to land law in Ghana and this could be my write up part 1. This is just to understand the basic knowledge with regards to family property. Thank you for reading and I am available for further interactions and your legal contributions.

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[1] [1959] GLR 67
[2] [1961] GLR 559
[3] [1963] 2 GLR 122; Division Supreme Court
[4] [1966] GLR 482-520 Supreme Court
[5] [1987-88] 2 GLR 81-86
[6] (1959) GLR 15