ellingt
Court: West African Court of Appeal, Gold Coast
Date: 4th April 1952
Judges: Foster-Sutton, P.; Coussey, J.A.; Korsah, J.
British South Africa Company v. Companhia de Moçambique (1893)
Facts of Wellington v. Quartey Papafio(1952).
In 1935, Alhaji Musa mortgaged a property in Accra to W. A. Wellington as security for a loan. Wellington entered possession as mortgagee. Upon his death in 1937, his mother, Na Aku Aba, obtained Letters of Administration over his estate. She sold the mortgaged property in 1939, with the first defendant as the highest bidder. The second defendant claimed possession under a 1941 conveyance from Wellington’s uterine siblings through their mother, principal members of the family.
The plaintiffs claimed that after their father’s funeral, the family allocated the property to them with a life interest reserved for their mother. They asserted succession through both paternal and maternal lines. However, their writ did not allege that they were children of a six-cloth marriage, a crucial requirement under Ga customary law to claim a share of self-acquired property. Evidence of distribution or collection of rents was uncorroborated.
PENN V LORD BALTIMORE (1750)Full Facts, Issues, and Judgment
Issues in Wellington v. Quartey Papafio & Addy (1952) LAW-MADE-SIMPLE REPORT
1.Whether the mortgagee’s interest in the property passed to the children under intestacy or Ga customary law.
2.Whether the plaintiffs, as children, had a valid claim to the mortgaged property.
3.Whether the Native Court correctly applied Ga customary law in declaring the property descendible to the plaintiffs.
Court’s AnalysisWellington v. Quartey Papafio & Addy (1952)
A mortgagee’s security is personal estate; the right to the property exists only as security for repayment of the loan. Upon intestacy, the mortgage debt and property devolve to the administrator.
Under Ga customary law, self-acquired property vests immediately in the family upon death. Only children of a six-cloth marriage are entitled to a right of support. Family members traced through the maternal ancestor have joint, indivisible interest, and alienation to children requires agreement.
The plaintiffs failed to prove entitlement under the six-cloth marriage requirement or any allocation by the family. Allegations of a gift or distribution were unsatisfactory and uncorroborated.
The Native Court erred in declaring the property descendible to the plaintiffs, as it contravened both English mortgage principles and Ga customary law.
Dictum:”In intestacy, self-acquired property vests immediately in the family as family property. Only children of a Ga six-cloth marriage have a right of support, and all members traced through the maternal line hold joint, indivisible interest. No part of the estate may be alienated without family consent.”
The appeal was dismissed with costs. The Court affirmed that the plaintiffs did not establish a valid title against the defendants and that the Native Court’s judgment was incorrect.
Dictum:”Claims based on alleged gifts or family allocation without clear customary consent cannot override the communal interest in family property. The chattel interest of a deceased passes to the family, not to individual children, unless the family expressly allocates it.”