This case of Nelson & Ors v. Nelson (1931) is a leading authority in Ghanaian and West African Native Customary Law on whether a child appointed by a deceased parent on his deathbed (“samansiw” or death-bed disposition) can be treated as the head of family or merely a caretaker.The case is crucial for legal practitioners dealing with family property, fiduciary responsibility, distribution of compensation for acquired land, and accountability in customary estates.
The court held clearly that a caretaker appointed on a deathbed does not automatically become the head of family and must account to the other children.
LEWIS V. BANKOLE 1909 FULL REPORT LAW-MADE-SIMPLE
Facts of the Case in Nelson & Ors v. Nelson (1931)
The deceased, George Akotey Nelson, died in Accra about 16 years before the action. He left 13 children, including the plaintiffs and the defendant.
No written will existed, and no letters of administration were taken out.However, evidence before the tribunal showed that before his death, the deceased made death-bed dispositions regarding both real and personal property.
Most importantly, the deceased expressed a wish that his son, the defendant (Samuel Quarshie Nelson), should look after the interests of his brothers and sisters, because he was literate.
Under Ga Customary Law, the person who pays the funeral expenses and belongs to the maternal line becomes head of family.Here, Acquah, nephew of the deceased on the maternal side, paid the funeral expenses and therefore became the head of family.
Acquah later confirmed the deceased’s wish and gave the defendant authority only as a caretaker, not as head of family.
The dispute arose after the Government acquired family land with buildings in 1923. Compensation of £1,650 was awarded, claimed by the defendant alone. The plaintiffs sued for account, alleging he failed to fairly distribute compensation.
Issues for Determination in Nelson & Ors v. Nelson (1931)
1.Was the defendant the head of family under Native Customary Law?
2Was the defendant liable to account to his siblings regarding the estate and compensation?
3.Did the death-bed disposition (“samansiw”) make him absolute manager of the estate?
Judgment (Key Holdings & Exact Judicial Dicta Preserved)
1. Defendant Not Head of Family.
Michelin J. held:
“The plaintiff is not sued as head of the family, nor is there anything in the evidence before the Court or in the judgment of the Native Tribunal to indicate that he succeeded the deceased as head of the family.”
The court emphasized that Acquah, the maternal nephew, was head of family because he paid funeral expenses, consistent with Ga customary law.
2. Caretaker Must Account
The court gave its most important pronouncement:
“In my opinion, this is not the case of an action by a junior member of a family against the head of a family but is brought by brothers and sisters of the defendant against him in his fiduciary position as a caretaker… to look after their interests in the property of the deceased. He was therefore clearly liable to account to the plaintiffs.”
This judicial statement is now frequently cited in customary law cases involving:
fiduciary dutiesmanagement of family landaccountability over proceedsdeath-bed appointments
3. Death-Bed Dispositions (Samansiw) Explained
Citing Sarbah’s Customary Law, Michelin J. noted:
“Death bed dispositions known as ‘samansiu’ seem to be recognised not so much because of any assumed right to make such a disposition as because from feelings of affection, respect or even superstition, the last wishes of the deceased are considered to be entitled to weight among the members of his family.”
4. Compensation from Acquired Land Must Be Shared as Family Property
The government acquired deceased’s land with buildings.Although the defendant made the compensation claim in his own name, the court rejected his personal ownership argument:
©Town Clerk testified the defendant paid rates “as representing his father.”
©Defendant admitted rate payments were in “our father’s name.”
Thus, compensation remained family property, not his personal property.
5. Appeal Dismissed
The appeal failed because:
“The Native Tribunal… went fully into the accounts… The appeal must be dismissed with costs assessed at £16 0s. 6d.”
Hornee J. and Macquarrie J. concurred.
Lopez v. Lopez (1924):Land, Family Property & Rights of Female Members under Customary Law
Legal Principles & Precedents Cited in Nelson & Ors v. Nelson (1931)
in:Villars v. Baffoe – family property does not pass to a personal administratrix.
Pappoe v. Kwaku – head of family with letters of administration is not liable to account to junior members.
Sarbah’s Customary Law – family land cannot be squandered and a head of family cannot be sued for accounting unless misusing family property.
But the court distinguished these cases because:The defendant was not head of family.He acted in a fiduciary/caretaker role.
British South Africa Company v. Companhia de Moçambique (1893)
Key Takeaways
A death-bed appointment does not create a head of family under Ghanaian customary law.
A caretaker appointed to manage property on behalf of siblings has a fiduciary duty and must account.
Compensation from government acquisition of family land constitutes family property, not personal property
The head of family is determined by custom (funeral payer + maternal lineage), not by birth order or literacy.
Courts will enforce accountability where compensation for property is not fairly distributed.
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