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Customary Succession and the Inheritance Rights of Women: The Case of Odamtten & Others v. Wuta-Ofei & Ors.

Source: Kwame Adusei

Customary Succession and the Inheritance Rights of Women: The Case of Odamtten & Others v. Wuta-Ofei & Ors.
MarryRight Ghana

Introduction

“…the time that women were treated as chattels or were there to obey the whims and wishes of males is long past and it would be offensive to modern thinking and the spirit of the Constitution to find that, the Constitution was framed deliberately to permit discrimination on the ground of sex…”±

This article evaluates the decision of the Supreme Court of Ghana in the case of Odamtten & others v. Wuta-Ofei & Ors[1], with respect to the application of the rule of customary law applicable in patrilineal communities – which restricts the interest of female children of an intestate to a life interest in the self-acquired immovable property of the intestate which they inherit by custom. This paper submits that the Supreme Court, when presented with the opportunity, in the case under evaluation, should have seized same to overrule or otherwise redefine the said rule  of customary law on intestate succession, which is patently discriminatory against female children in patrilineal communities.[2] The paper begins by setting out the relevant facts and key holdings of the Supreme Court in the case under evaluation. Afterwards, the paper is divided into three parts. The first part begins by acknowledging the application of the rules of customary law in Ghana’s pluralistic legal system. From there, the customary law position on intestate succession in Osu, a patrilineal Ga-Adangbe community is stated with precision. The second part of the essay discusses the constitutional provisions on equality, non-discrimination, and human dignity as well as Ghana’s international obligation to eliminate discrimination against women in order to illustrate how the customary law rule of intestate succession as applied to the case under evaluation, undermined these provisions. In this part also, the statutory intervention made by the Intestate Succession Act, 1985 (P.N.D.C.L. 111) is considered. The third part of the paper addresses the issue of retroactive application of the 1992 Constitution and P.N.D.C.L. 111 to the facts of the case. The essay concludes on the note that, had the decision of the Supreme Court gone otherwise, it would have  been a remarkable step towards a progressive jurisprudence on the enforcement of the property rights of women.

Facts

Robert Wuta-Ofei (deceased), who was married to Barbara Wuta-Ofei, was a Ga from Osu. The couple had four children, viz, Roberta, Vida, Percy and Raphael, the 1st Respondent herein. The 1st Respondent is the sole surviving child of Robert Wuta-Ofei (deceased) and he doubles as the head of family. The Appellants are the children of Roberta Wuta-Ofei, and thus, grandchildren of Robert and Barbara Wuta-Ofei. Robert Wuta-Ofei died intestate in 1970; and his wife obtained Letters of Administration to administer the estate before she died in 1976. The subject-matter of the dispute, landed property described as Essie Lodge or Cedar House was the self-acquired property of the intestate. Roberta Wuta-Ofei, the mother of the Appellants, who died in 1997 had purported to devise the entire property to her children in her will, which was challenged and set aside. The family then formed a committee to manage the property. Subsequently, a tenancy agreement (Exhibit C) was entered into between the 1st Respondent; a representative of the Appellants; and a daughter of Percy as lessors on the one hand, and the 2nd respondent as lessee on the other hand. The revenue from the property was shared equally among the lessors. The 1st Respondent also obtained Letters of Administration to administer the estate of his late father, and then sold the property which is the subject-matter of this case to the 2nd defendant. The Appellants sued the Respondents in the High Court to set aside the sale of the property on the ground that, as persons who had an interest in the property, their consent was not obtained prior to the sale. They traced their interest in the property in their capacity as beneficiaries of the estate of their mother, Roberta Wuta-Ofei. They argued that they were entitled to the share of their mother in the property of her father, Robert Wuta-Ofei (deceased). The Appellants challenged the capacity of the 1st Respondent to sell the property. On the other hand, the 1st Respondent maintained that, as the head of family, administrator of the estate and the only surviving child of his parents, he had the right to sell the property. The 1st Respondent maintained that, after the death of all his siblings, the property devolved on him as the owner. The 1st Respondent also challenged the Appellants’ capacity to sue, arguing that they were not persons whose consent and concurrence were required for the validity of the sale.

The High Court and Court of Appeal both dismissed the reliefs sought by the Appellants. In affirming the decision of the High Court judge, the Court of Appeal reasoned that, the self-acquired property of the intestate who was a Ga man became family property upon his death; and that by Osu customary law, which was patrilineal, it was the children of the deceased who inherited him. The Court of Appeal further held that, even though all the four children of the intestate inherited the property, the female children had only a life interest in the estate. As such, Roberta Wuta-Ofei, mother of the Appellants, obtained only a life interest in the property and the Appellants could not have inherited the interest of their mother after her death.  The Court of Appeal affirmed the capacity of the 1st Respondent to deal with the property as the head of family and sole surviving male child of the deceased. On the issue of the capacity of the Appellants, the Court of Appeal held that, the appellants as grandchildren of the deceased in a patrilineal area, were not principal members of the deceased’s family whose consent was requisite for a valid alienation of the property.[3]

Dissatisfied with the decision of the Court of Appeal, the Appellants appealed to the Supreme Court. The grounds of appeal were: first, that the judgment was against the weight of the evidence, and second, that the Court of Appeal erred in holding that, despite P.N.D.C.L. 111, Osu customary law disabled  female children from passing on their interest in the inherited landed property to their children, leading to a situation where the property reverts to the family of the original owner upon death of a sole inheriting female child. Arguing on the first ground of appeal, Mr. Martin Kpebu Esq, Counsel for the Appellants submitted that, based on the previous conduct of the 1st Respondent in sharing the revenue from the property with the Appellants, the 1st Respondent was estopped from denying the family character of the property. On the second ground of appeal, Counsel submitted that, the date for devolution of the estate of the intestate was the time when Roberta and Vida Ofei died, at which time P.N.D.C.L. 111 had come into force. Therefore, counsel argued that, in the light of the P.N.D.C.L. 111 and Article 17 of the 1992 Constitution, the customary rule limiting the interest of female children in the estate of deceased father to life interest, with reversionary interest vested in the patrilineal family, was discriminatory and same should be struck down.

The Decision

The two main legal issues before the Supreme Court[4] were the nature of the interest of a female child in the intestate estate of her father, under Osu Customary law; and the Appellants’ capacity to initiate this action. The court dismissed the appeal by a unanimous judgment delivered by Adinyira JSC (as she then was). The Supreme Court upheld the validity of the sale of the property. The Court found that the Appellants consented to the sale of the property even though their consent was not essential to the validity of the sale. In arriving at this decision, the apex Court affirmed the customary law position stated by the Court of Appeal in relation to devolution of property in patrilineal communities.[5] On the applicability or otherwise of P.N.D.C.L 111, the Court found that, Letters of Administration were granted in respect of the estate of Robert Wuta-Ofei (deceased) and the estate was administered by his wife, Barbara Wuta-Ofei before she died in 1976, at which date, P.N.D.C.L. 111 had not come into force. Since P.N.D.C.L. 111 did not operate retroactively, the Court reasoned that, the distribution to the estate of a person who died intestate prior to 1985, was governed by the personal law of the deceased. In the case under evaluation, the Court found that, the applicable law was Osu customary law on intestate succession, which limited the interest of female children of the deceased in the patrilineal Ga community to only a life interest, with reversionary interest vested in the patrilineal family. The rationale for this customary rule, as found in the judgment of the Court was to ensure that the property remained in the patrilineal family of the original owner. In patrilineal communities, children born to a woman are not members of their mother’s patrilineal family. They belong to their father’s family and they inherit their father’s properties on his death intestate. Since they are not members of their mother’s family, permitting them to succeed to the property would defeat the purpose of the customary rule i.e., to retain the property in the patrilineal family.

On the very important issue of discrimination raised by Counsel for the Appellants, the Court was of the view that, the Appellants had not been discriminated against because they had enjoyed revenue from the estate proportionately with the 1st Respondent in the past. The Court proceeded to pass a ‘comment’ on the constitutional issue raised. Here, the court cited its decision in Togbe Akpoma I v. Mrs. Gladys Mawuli Mensah[6], and reasoned that, under P.N.D.C.L. 111, where a portion of the residue of the estate of a deceased is to devolve according to customary law[7],  a sole surviving female child in a patrilineal system of inheritance would take that fraction of the residue. However, the Court refrained from making any binding pronouncement on the effect of Article 17 of the 1992 Constitution on the customary law rule limiting to a life interest, a female child’s inheritance of her father’s property, in the patrilineal system of inheritance. In the opinion of the Court, that determination of that question ought to be reserved for an appropriate case.

Analysis of the Court's Decision

Part 1 Customary Intestate Succession in Osu, a Patrilineal Ga-Adangbe Community

Legal pluralism connotes the multiplicity of normative orders in a given space.[8] Mensa-Bonsu conveyed this same idea when she wrote that, legal pluralism connotes the state of being subject to more than one system of law, within a particular legal jurisdiction at one and the same time.[9] Drawing inspiration from Article 11 of the 1992 Constitution[10], the Ghana legal system is said to be pluralistic in nature.[11] In Ghana, legal pluralism is reflected in the conflation of formal state laws, including received English laws, religion-based laws and institutions with the customary laws.[12]

Therefore, prior to the commencement of P.N.D.C.L 111 in 1985, succession to the estate of a Ghanaian who died intestate was governed by the personal law of that person which invariably turned out to be the customary law of his/her community.[13] It is important to note that prior to 1985, there were also statutory regimes of intestate succession under sections 48 and 10 of Marriages Ordinance (Cap 127) and Marriage of Mohammedans Ordinance (Cap. 129) respectively.

Generally, intestate succession under customary law depended on whether a person belonged to matrilineal or patrilineal family.[14] With the exception of the Ga Mashie,[15] the Ga Adangbe communities are patrilineal for purposes of succession to property on intestacy.  A well-established rule at customary law, applied in a long line of Ga cases,[16] is that, among the patrilineal Ga Adangbe communities, upon death intestate of a Ga man, the deceased’s self-acquired property becomes family property but the children succeed to the property.[17] In patrilineal communities, children belong to their father’s family.  This assumption implies ‘patri-succession’, a term used to explain the right to succeed to and enjoy property rights derived from membership of a family traced through the male line.[18] Again, in patrilineal communities, the general rule of intestate succession is that, children inherit their deceased father’s interest in his individually acquired property as of right.[19] Therefore, in the patrilineal Ga-Adangbe, even though the self-acquired property of a deceased Ga man is deemed family property, the authorities are legion that, it is the children, and not the family as such who inherit the property.[20]  The application of this principle in Osu is affirmed by the decision of Ollenu J in Augustt v. Aryee,[21] where the learned judge held that, apart from Accra town (Ga Mashie), the whole of the Ga Adangbe tribes, of which Osu is one, are patrilineal family societies for purposes of succession. The plaintiff in that case, being a son of the deceased was held to be entitled to succeed him.

Although children inherit their deceased father in the patrilineal system, the respective entitlements of the inheriting children are subject to the determination of the patrilineal family, and to a very large extent dependent on their gender.[22] The old rule under traditional customary law was that, a daughter of the deceased could not inherit from her father.[23] The current customary rule generally applicable in patrilineal systems is that, the surviving children, both male and female, inherit their deceased father.[24] Even though the rule has now been relaxed considerably, it is still the general principle that, male children are given preference over females.[25] Female children of a deceased acquire limited interest in their father’s estate. So, unlike the males, a female child acquires only a life interest in whatever devolves on her from her father’s estate.[26] In a situation where the intestate is survived by only one issue, that child succeeds to all his interests in property automatically and as of right. However, a sole female child succeeds to the interest in the estate only for her own lifetime.  Upon her death, her children have no right to inherit since the interest in the property reverts to her father’s patrilineal family, as if the original owner had died interstate and without any children.[27] As a life estate, determinable upon her death, the rule was also that, the inheriting female child could neither alienate the interest in inherited property inter vivos, nor exercise any testamentary capacity with respect to the property.[28] The rationale for the rule is to ensure that the property is retained within the patrilineal family.[29] Therefore, the interest of the female child in the inherited property does not devolve on her own children upon her death, as it would in the case of a male child.[30] This is because the inheriting female child’s own children are not customarily regarded as members of her patrilineal family through which the right of succession is traced.[31] The restrictions on alienation imposed on female children in patrilineal communities is not applicable to male children, who took the inherited property absolutely. In Yawoga v. Yawoga & Anor,[32] it was held that the 1st defendant who was the sole son of his deceased father was able to make a valid alienation of the cocoa farm inherited from the estate of his father because ownership of the property devolved on him absolutely.

In Odamtten, the customary law position, as explained in the preceding paragraphs, was applied by the Supreme Court. The Supreme Court  affirmed the decision of the Court of Appeal to the effect that, since the late Robert Wuta-Ofei was a Ga man from Osu, his self-acquired property became family property upon his death intestate. Accordingly, the children of the deceased inherited the property. However, the mother of the Appellants being a female child of Robert Wuta-Ofei (deceased) acquired only a life interest in the property, which could not pass to the Appellants. The 1st Respondent being the sole surviving child of the deceased, and a male, he took the property absolutely and could make a valid alienation of same to the 2md Respondent.

Part 2.1 Arguments on Equality, Non-Discrimination and Human Dignity, under the 1992 Constitution and Ghana’s International Obligation

The Constitution, 1992 is the supreme law of Ghana, which occupies the foremost position in the hierarchy of laws.[33] Accordingly, any other law found to be inconsistent with the constitution is null and void to that extent.[34] It is obvious from a reading of articles 1 and 11 of the Constitution, 1992, that the constitutional provisions in general, and any rights guaranteed therein in particular, are superior to any customary law dictates.[35] The application of customary law in a constitutional democracy as a matter of necessity, demands a discourse on human rights, especially, equality before the law, non-discrimination, the right to freely own and hold property,[36]

Apparently, there are constitutional guarantees of the property rights of women on the issues being discussed in this paper. The Constitution provides for equality of all persons before the law and prohibits discrimination on grounds including gender.[37] Similarly, the constitution guarantees the right to own property, either alone or in association with others.[38] Therefore, there is discrimination when different treatment is given to men and women in relation to property holding which is exclusively premised on their respective gender: whereby women are subjected to some restrictions or disabilities, to which men are not made subject, or otherwise granted advantages which are not granted to women. Does the mere fact of disparity of treatment amount to a violation of the equality principle in Article 17? The jurisprudence of the Supreme Court, as reflected in some landmark cases[39] is that, Article 17 of the Constitution, 1992, outlaws unlawful discrimination but not mere discrimination. As such, any discrimination on the grounds of sex or gender simpliciter is not unlawful. It is unlawful if the dissimilar treatment is not for a lawful and legitimate purpose. The test was laid down in the locus classicus of Nartey v. Gati, where in summary, the Supreme Court held that, equality under Article 17(1) means freedom from unlawful discrimination. Thus, the inequality in rights per se is not a sufficient basis for declaring the unconstitutionality of the rights complained of. According to the Supreme Court, the crucial issue is whether the differentiation in rights of persons who are similarly placed is justifiable, by reference to an object that is sought to be served by a particular statute, constitutional provision or some other rule of law. For instance, in Asare v. Attorney-General, in applying the test adopted by the Supreme Court in Nartey v. Gati, Date-Bah JSC (as he then was) held that, the mere fact that sole citizens and dual citizens were treated differently was not necessarily a breach of article 17 of the Constitution. He further asserted that, the determinative issue is whether the differentiation in their rights is constitutionally justifiable by reference to the object that is sought to be served by the Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act 527). Applying the ratio decidendi as deducible from these cases would mean that, after the fact of discrimination on the ground of gender has been established, a further inquiry is needed to find out why the discrimination has taken place. It is the result of this inquiry, which will determine the unlawfulness or otherwise of the offending discriminatory law or practice. It is submitted that, the rule of customary law applicable in patrilineal communities, which restricts the interest of inheriting female children of an intestate in the self-acquired immovable property of the deceased to only a life interest, discriminates against women. It is further submitted that, the ground for the discrimination is arbitrary and unjustifiable. I proceed to give reasons in support of this position in the subsequent paragraphs.

It is without doubt that the customary law on intestate succession in patrilineal communities, explained in this paper, is discriminatory against female children.[40] The discriminatory practice lies in the fact that both male and female children of a man from patrilineal community, being persons who are similarly placed by virtue of their status as children of a deceased intestate, are given different treatment in terms of property holding under customary intestate succession. This differential treatment lies in the respective interests of female and male children in the inherited immovable property. Whereas male children take the property absolutely, female children have only a life interest in the property. The disadvantage here is that, whereas a male child who inherits property from his father takes as purchaser and may alienate his interest either inter vivos or post mortem,[41] the inheriting daughter, on the other hand, who acquires only a life interest, can neither alienate her interest inter vivos nor dispose of it by testamentary disposition to her own children.[42] Kuenyehia rightly observed that, as a body of laws rooted in tradition and historical experiences, customary law is fraught with certain inherent problems that render its application disadvantageous to women, especially in the area of succession.[43] The operation of these customary laws almost always tend to give men precedence over women. Such gender inequality relegates women to a subordinate position, which in turn affects their access to resources.[44]

Having identified the obvious inequality in the property rights of female and male children, who inherit their deceased father in patrilineal system, I proceed to give reasons why the differentiation in their rights is not constitutionally justifiable with reference to the object that is sought to be served by the impugned customary law rule on intestate succession. The rationale for the customary rule limiting the interest of a female child who inherits immovable property of a deceased father in patrilineal communities to a life interest has been explained to be based on a fundamental principle of customary law which required the retention of the property in the patrilineal family.[45] The argument follows that, since the children of a woman in patrilineal communities are customarily not regarded as members of her family, to permit the female child of a man from patrilineal community, to pass on the inherited property to her own children would mean that, the property would leave the patrilineal family of the original owner to another family. Therefore, upon the death of the inheriting daughter, the property reverts to the patrilineal family. The question is whether the means employed by the customary rule justifies the end it sought to achieve. Kuenyehia advises that, these laws and practices of custom are deeply rooted in community-specific historical, socioeconomic, and cultural experiences., and so, it is extremely important that one be very cautious when making value judgments about customary laws and practices.[46] Bearing this in mind, it is humbly submitted that the means employed by the customary rule is unjustifiable even if  there existed in the past certain sound underlying assumptions for what now seems to be the lack of protection for inheriting daughters and their children. Since the sole import of the customary rule was to ensure that the inherited property remained in the patrilineal family, one would have thought that, a gender-neutral approach would be employed; so as to restrict both inheriting male and female children of the deceased from making outright alienation of the inherited property. Instead, only female children are restricted from alienating the property. On the other hand, inheriting male children take the property absolutely as if they were purchasers. They are placed in a position to alienate the property inter vivos without any restrictions whatsoever in law. This necessarily implies that, the inheriting male children may choose to sell the property to persons who are not members of their patrilineal family, as was done by the 1st Respondent in the case under evaluation. Similarly, the inheriting male children may choose to devise the property under will to a friend or any other person who is not a member of the patrilineal family. In both instances, the inherited property, which was given to the male children absolutely, for the purpose of ensuring the retention of the property in the patrilineal family, ends up passing to persons who are not members of the family, thereby defeating the purpose of the customary rule. In the end, the property is not retained in the family and the inheriting female children and their heirs are disinherited. This begs the question whether there is any reasonable justification for placing these limitations on female children. It is strongly submitted that; the customary rule serves no purpose today. It is merely a relic of traditional notions of men taking precedence over women. In this age of human rights, it is submitted that the customary rule under evaluation flies in the face of Article 17 of the Constitution, 1992.

Furthermore, the customary rule in patrilineal communities whereby children of a woman are precluded from inheriting their mother’s property, on the basis that they do not form part of her patrilineal family, is equally unjustifiable. In the end, the property devolves on the siblings, paternal cousins, nephews and nieces of the woman. The rationale underlying the said customary rule flows from the relegation of women to domestic chores. Women did not acquire property in their own right in the past since they were not permitted to engage in any trade, business or profession. Usually, the property would have passed to them through inheritance or gift from their deceased father or brother in the patrilineal system. The argument follows that, the property should be retained in the patrilineal family of the original owner of the property. Since the children of a woman did not form part of her patrilineal family, the resultant effect was that, the children would be disinherited.  It would appear that this customary rule is justifiable in the light of the rationale given. However, this is only superficial. It is submitted that, when women acquired very little property in their own right in the past, the injustice caused by this system was not very clear.[47] Today, the times have changed as it is evident that, a woman may acquire and accumulate property, virtually to the same extent as a man.[48] In that case, there is no justification whatsoever, as to why the children of a woman in the twenty-first century cannot inherit her self-acquired property simply because they do not form part of  the patrilineal family in which she belonged under customary law. Therefore, it is submitted that the disability imposed on children in patrilineal communities excluding them from inheritance of their mother’s estate is unfair.

In light of the foregoing, it is submitted that the rule of customary law applicable in patrilineal communities – which restricts the interest of female children of an intestate in the self-acquired immovable property of the deceased to only a life interest, thereby, precluding them from passing the property to their own children –  amounts to unlawful discrimination as it sins against the letter and spirit of Articles 17 and 18 of the Constitution, 1992.

It is further submitted that the inequality occasioned by the said customary rule is not only discriminatory against women, but also infringes on their right to dignity, which must be inviolable under Article 15(1) & (2).[49] Human dignity means that an individual (in this case, inheriting female children) feels self-respect and self-worth.[50] It is also concerned with physical and psychological integrity and empowerment of women.[51] As demonstrated earlier, the customary rule under evaluation treats female children unfairly and thereby harms their human dignity. The customary rule is  degrading of the affected women in patrilineal societies to the extent that,  it is premised solely upon their gender which does not necessarily relate to their individual needs, capacities, or merits.[52]  The submission here is that, human dignity is harmed when inheriting female children are marginalized or devalued by the imposition of restrictions on their right to hold property in the estate of their deceased father exclusively based on their gender.[53] As noted by the Canadian Supreme Court, human dignity within the context of equality does not relate to the status or position of an individual in society per se, instead, it relates to the manner in which a person legitimately feels when confronted with a particular law.[54] The question to be asked is this: does the customary rule under evaluation treat inheriting female children (and their own children) unfairly, taking into account all the relevant circumstances regarding the individuals affected and excluded by the law?[55] It is submitted that the customary rule indeed violates the equality and non-discrimination clause as well as the dignity of female children in patrilineal communities.

Apart from these constitutional provisions, Ghana has signed and ratified significant international treaties that impose obligations on the State to ensure equality of the sexes and eliminate discrimination against women.[56] Like all other State parties, Ghana is duty bound under Article 5 of the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) to eliminate customary rules and practices based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.[57] Furthermore, the African Charter guarantees equality before the law and non-discrimination on grounds of sex.[58] In a more detailed rendition, Article 18(3) of the Banjul Charter imposes an obligation on Ghana to ensure the elimination of every form of discrimination against women, as well as, the protection of women’s rights as stipulated in international conventions.[59] Clearly, these international treaties on women’s rights constitute important tools in the efforts to improve the lot of women.[60] As observed by one author, progressive judges have been known to call such treaty provisions to their aid when domestic legislation on an issue is lacking or unsatisfactory.[61]  In Attorney-General v. Unity Dow,[62]  the High Court of Botswana had to determine the core issue of whether the provisions of sections 4 and 5 of Botswana’s Citizenship Act 1984,  which declared children born in Botswana to a female citizen married to a non-citizen to be non-citizens of Botswana, were discriminatory and unconstitutional. The Attorney-General urged the Court to dismiss the applicant’s case on the ground that, section 15(3) of the Constitution of Botswana did not textually outlaw discrimination on grounds of sex. The trial High Court judge rejected the Attorney-General’s invitation and upheld the applicant’s argument. In the Court’s analysis of the issue of discrimination, the Court reasoned that, the grounds on which persons may not be discriminated against as stated in section 15(3) of the Botswanan Constitution were not exhaustive and that, the right to not to be discriminated against because of one’s sex is in accordance with the spirit of the Botswanan constitution.[63] In a powerful dictum, the learned High Court judge expressed himself thus; “the time that women were treated as chattels or were there to obey the whims and wishes of males is long past and it would be offensive to modern thinking and the spirit of the Constitution to find that the Constitution was framed deliberately to permit discrimination on the ground of sex.”[64] The Botswanan Court of Appeal (3-2) affirmed the decision of the High Court with Judges Amissah and Aguda holding that, section 4 of Botswana’s Citizenship Act 1984 infringed on the fundamental human rights guaranteed under the CEDAW and the African Charter.[65] Likewise, in Ephraim v Pastory,[66] Mwalusanya J. of the Tanzanian High Court called in aid these treaties. In that case, the 1st respondent, Ms. Pastory, inherited clan land from her father by a valid will and sold the land to the 2nd respondent who was not a member of her clan.  The appellant filed a suit seeking a declaration that the sale of land by his aunt, the 1st respondent to the 2nd respondent was void, as females under Haya Customary Law had no power to sell clan land. The Court held that, the customary law regarding women’s property rights discriminated against women on the ground of sex in violation of the CEDAW, the African Charter, the ICCPR as well as the Tanzania Constitution. In Nigeria, the Court of Appeal in Mojekwu v. Mojekwu,[67] overruled the ‘oli-ekpe’ custom of the South-East Nigerian which excluded widows from intestate succession to property. In arriving at its decision, the Court of Appeal held that “a court of law being a court of equity as well, cannot invoke a customary law which is repugnant to natural justice, equity and good conscience. The ‘oli-ekpe’ custom is one of such customs.”[68]

The aforementioned cases illustrate the recognition by the courts, of the hardships faced by women by the application of customary law rules; and the gradual inclination to adjudicate cases in a manner as to alleviate the hardship, thereby protecting and upholding the inheritance rights of women and children.[69] Indeed, I wholeheartedly agree with Kuenyehia that, the pro-rights stance taken by the judges in these case reflect a very progressive attitude toward the enforcement of the rights of women which is worthy of emulation by courts all over the African continent, including the Supreme Court of Ghana.[70] Therefore, it is submitted that, the failure of the Supreme Court in Odamtten, to incorporate these international human rights standards into its ruling is a most regrettable omission. It is further submitted that, had the Supreme Court applied these international norms in addition to the equality and non-discrimination clause in the 1992 Constitution, there is no doubt that the Court would have arrived at the unimpeachable conclusion: that Roberta Wuta-Ofei, mother of the Appellants and her children, the Appellants were discriminated against, and their dignity violated by customary law rule which restricted the interest of inheriting female children in patrilineal communities to life estate, precluding any transfer to their children. On the contrary, the Supreme Court held that there had not been discrimination in terms of Article 17 since on the facts of the case, the Appellants as grandchildren were not discriminated against as they continued to have a share of the revenue from the property proportionately with the 1st Respondent. With great deference to the learned justices of the Supreme Court, it is humbly submitted that this holding contradicts the courts earlier holding in the judgment on the issue of estoppel, where it was held that, an arrangement by the family of the parties did not change the family nature of the property and the law applicable to the management of family property, which is customary law. In fact, having made the latter pronouncement, it comes as a surprise that the court later held in the judgment that, the mere fact that the appellants continued to be given share of the revenue from the property meant that there was no discrimination. The customary position as explained above, clearly shows that, the sole surviving male child of a deceased in Osu, a patrilineal Ga Adangbe community, takes the property absolutely as if he was a purchaser. Therefore, as alluded to in the paragraphs above, applying the true customary position would mean that the 1st Respondent being the sole surviving child and a male son of Robert Wuta-Ofei (deceased), he took the disputed property absolutely. It is on this basis that the both Court of Appeal and Supreme Court upheld the sale of the property by the 1st Respondent to the 2nd Defendant. It must be reiterated that the Appellants as children of Roberta Wuta-Ofei (deceased) obtained no interest in the property under the customary law rule, since their mother had only a life interest in the property, which could not have passed to them upon her death. This means that the continuous participation of the Appellants in the revenue from the property proportionately with the 1st Respondent is merely an arrangement by the parties borne out of the ‘goodwill and benevolence of the 1st Respondent towards his nephews and nieces’, to borrow her ladyship’s words. From the Court’s own decision, such arrangements did not change the applicable customary law under which the 1st Respondent was not duty-bound to share the revenue from the property with the Appellants. Thus, the 1st Respondent will not be estopped, and indeed he is at liberty at any time, to rescind from this arrangement and the Appellants would have no reasonable cause of action grounded in law to challenge his decision since they have no interest in the property at customary law. All of this boils down to the very foundational issue of discrimination discussed above. Consequently, the issue of discrimination was left open and undecided by the Supreme Court. With the greatest respect to the learned justices of the Supreme Court, Odamtten presented a clear opportunity for the court to determine the constitutionality of the customary law rule of  inheritance, as applicable in patrilineal communities in light of the non-discrimination and equality clause of the Constitution. There couldn’t be a more appropriate case to do justice to the issue.

2.2 Statutory Intervention – Intestate Succession Act, 1985 (P.N.D.C.L. 111)

The injustice perpetrated by the application of customary law rules on intestate succession, required the enactment of laws to ensure gender parity.[71] The legal pluralist approaches to law reform suggest that, when dealing with customary law, the State may choose to reform or conserve customary law or combine the two options.[72] Thus, the Ghanaian legislature in recognition of the fact that the customary law rules on intestate succession did not sufficiently reflect the increasingly significant role that women play in the household economy, enacted the Intestate Succession Law, 1985 (P.N.D.C.L. 111) which came into force on June 14, 1985.[73] As evidenced in the Memorandum to P.N.D.C.L. 111, the special strength of the Act, is highlighted by the fact that, it prescribed uniform rules for distribution of property upon intestacy irrespective of the type of community to which one belonged.[74] The principal aim of the law is to eliminate all existing discrimination against either spouse and ensure equal rights of women in particular and their dependent children.[75] Therefore, with the passage of the P.N.D.C.L. 111, the seemingly pernicious effects of these customary law rules on property rights of inheriting female children and grandchildren of man who dies intestate in patrilineal communities have been moderated to a large extent. Since the P.N.D.C.L. 111 is religion-and-ethnic-neutral; it seeks to substantially limit the application of different customary systems of inheritance in matters of intestate succession in Ghana.[76]

PNDCL 111 has given statutory blessing to the right of children to inherit property from their intestate parents. This time, since the PNDCL 111 is ethnic-neutral, the law confers a right of inheritance on all children of the intestate, i.e., both male and female. What is commendable about the Act is that, under section 14, where property devolves on two or more persons under the Act, they are to divide the property among themselves in equal shares.[77] The simple effect of section 14 means that all children, regardless of sex or gender, will receive equal shares in the estate of their deceased parent.[78] So, the sex discrimination in the distribution of inherited property between male and female children in patrilineal communities is almost abolished by the Act, since, the law regards all children as equally entitled to succeed to their parents.[79]

However, the vestiges of sex discrimination existing under the customary law rule have not been completely extirpated.[80] This being that, the application of customary law rules on intestate succession, though substantially whittled away, nevertheless continue to apply under sections 5(d), 6(c), 7 and 8 of the Act, to the devolution of the specific fractions of the residue of the estate which is governed by customary law. Therefore, the rule in patrilineal communities excluding children from inheriting their intestate mother will be remain applicable in respect of the distribution of the portion of the estate devolving according to customary law.[81] Also, upon death intestate of a man from patrilineal community, the fraction of his estate which is to devolve according to customary law will be inherited by his children as under the old customary law rule. Accordingly, in the distribution of this portion by the family, female children will still be discriminated against; since, they are to hold only a life interest in the property which they cannot pass to their own children either inter vivos  or post mortem. Kludze expresses the hope that the statutory directive under section 14 of the Act on equality of treatment of children of both sexes may expedite the total eradication of sex discrimination.[82] Unfortunately, the application of the law does not rest on the subjective hopes of individuals, and the fact remains that the total elimination of discrimination against women in the customary law under evaluation has not been achieved by the Act. The fact that the remnants of the customary law rule remain today, is yet another reason why the Supreme Court in Odamtten, should have taken up the challenge to completely consign the patently discriminatory custom to the archives. As alluded to earlier, the Supreme Court is given the power to declare any rule of customary law, which is inconsistent with any constitutional provision as null and void. Also, the definition of customary law is that it includes those decided by the superior court of judicature. Therefore, the Supreme Court should have taken the challenge to at least, make judicial customary law as to bring the discriminatory customary law rule in sync with the needs of the modern Ghanaian society.

In light of the foregoing analysis, it would have followed naturally, that if the Act was applied to the distribution of the estate of the late Robert Wuta-Ofei, then, the portion of the estate that devolves on his children should have devolved to all his children equally. Consequently the 1st Respondent and the mother of Appellants would have had equal shares in the disputed property together with the other children of Robert Wuta-Ofei (deceased). Further, if the Act was applied to the facts of the case, then the mother of the deceased would have been competent to dispose of her interest in the disputed property inter vivos or post mortem. In that case, it may be argued that, the Appellants would be entitled to succeed to their mother’s portion of the property, and thus their consent would be requisite for a valid alienation of the whole property by the  1st Respondent to the 2nd Respondent. The foregoing analysis leads to the question whether or not PNDCL 111 applies to the distribution of the estate of Robert Wuta-Ofei (deceased)? The question of retroactivity is considered in the next paragraph.

Part 3 Retroactive Application of PNDCL 111 and Article 17

 The effect of section 1 of PNDCL 111 is that the Act is to have prospective effect as it applies generally to the estate of a person who dies intestate on or after 14th June, 1985 which is the commencement date for the Act. However, the transitional provision, section 21(1),[83] is to the effect that, the law is applicable to the resolution of any claim or adjudication before a court, chief or head of family in relation to the distribution or administration of the estate of a person who died prior to 14th June, 1985 when the Act came into force, provided that the said claim or adjudication was pending at the said date. Thus, where the person died intestate before the commencement of the Act on June 14, 1985, but his/her estate had not been distributed before the Act came into force, the Act would apply to the devolution of the estate.[84] In essence, the critical date for the invocation of the Act to the distribution of the estate of a person who died intestate prior to the commencement of the Act depends on the decisive date for the distribution of the estate.

In Odamtten, Robert Wuta-Ofei died in 1970. This was at a time when PNDCL 111 had not come into force. As highlighted earlier, for PNDCL 111 to apply to the devolution of the deceased’s estate, it is essential to prove that, the estate of Robert Wuta-Ofei(deceased) had not been distributed as at 14th June, 1985 when the PNDCL 111 came into force, and that there was a pending suit in relation to the distribution of his estate at the said date. The Supreme Court found that Roberta Wuta-Ofei, the wife of the deceased had obtained Letters of Administration and administered the estate of the deceased before she also died in 1976, and that, the children of the deceased including the 1st Respondent and the mother of the Appellants were the beneficiaries under the estate. Since the distribution of the estate of Robert Wuta-Ofei (deceased) had taken place prior to June 4, 1985, it follows that PNDCL 111 was not applicable to the distribution of the said estate and for that matter the case regarding the said estate. Consequently, the Supreme Court held that, the applicable law was the patrilineal system of inheritance since PNDCL 111 would not operate retroactively. To this extent, it is submitted that the decision of the Court is unimpeachable.

It is an incontestable principle that the Constitution, 1992 does not operate retroactively unless otherwise stated.[85] In Ellis v Attorney-General[86] Atuguba JSC (as he then was) held that, the plaintiffs’ action was not within the purview of article 2(1) of the 1992 Constitution which is prospective and not retrospective. Also, in Amidu v. Electoral Commission,[87] Atuguba JSC again reiterated the general perspectivity of the Constitution, 1992. It follows, therefore, that if the Constitution has been held to be prospective and not retrospective in its operation, then article 17 which is part of the Constitution, when read together with article 2(1) and 107 which proscribes retrospective legislation, must also be prospective and not retroactive in its application.

However, it must be pointed out that, nowhere in the judgment of the Supreme Court in Odamtten did the Court raise the address the issue of retroactive application of article 17. In fact, the reason for refraining from deciding the issue on article 17, as stated in the judgment of the Court was that the Appellants had not been discriminated against on the facts of the case, and that the Court would reserve the question regarding the constitutionality of the customary law rule under evaluation for a more appropriate case. But as the author has submitted earlier in this paper, there couldn’t be a more appropriate case than Odamtten for the resolution of the issue of discrimination. Under the customary law rule, the Appellants obtained no legal interest in the disputed property as they did not belong to their mother’s family, and the latter had only a life interest which could not be passed on to the Appellants. Thus, the mere fact that the Appellants were permitted to have a share in the revenue from the property did not change, the patently discriminatory effect of the customary law. Moreover, it appears that the Supreme Court missed the import of the Appellant counsel’s submission on discrimination. Whereas counsel argued that the custom was discriminatory against inheriting female children in patrilineal communities, the Court addressed the issue of discrimination from the angle of the Appellants who were grandchildren of the deceased. It is submitted that the Court should have addressed the issue of discrimination as against the mother of the Appellants who was a daughter of the deceased, and through whom the Appellants traced their title. Again, it is submitted that the Supreme Court missed the golden opportunity to extensively discuss the issue of discrimination.

Assuming that the Supreme Court had held that article 17 of the Constitution,1992 could not be retroactively applied to the facts of Odamtten, it may be argued that Article 25 of the Constitution, 1969 which was in force at the date when the estate of the late Robert Wuta-Ofei was to be distributed prohibited discrimination on grounds of sex. Thus, the Supreme Court could have made a declaration to that effect. However, it is submitted that the Supreme Court established under the Constitution 1992, has its jurisdiction clearly defined and it is very doubtful whether the Supreme Court established under the fourth Republican Constitution can interpret and enforce the Constitution, 1969. Nevertheless, it is submitted that the Supreme Court could have decided the issue of discrimination by reliance on the international treaties which place obligation on Ghana to eliminate discrimination against women in the area of intestate succession.

Conclusion

Even though self-acquired property of a deceased man from Osu, a patrilineal Ga Adangbe community, is deemed family property upon death intestate, the customary law is that the children of the deceased inherit the property. Under this system of inheritance, female children obtain only a life interest whilst the male children obtain an absolute interest with the right of alienation. This paper has demonstrated that this customary law rule of inheritance is discriminatory against women in patrilineal communities and by extension, their children who are disinherited. Even though PNDCL 111 has substantially altered the customary position, the rule still applies to the portion of the intestate estate that devolves according to customary law. Therefore, it has been argued firmly that in the case of Odamtten, the Supreme Court should have declared the said rule of customary law to be in violation of the equality and non-discriminatory clauses and Ghana’s international treaty obligation. The failure of the Court to rule as such comes as a regrettable omission and a major setback in the fight against discrimination against women. In effect, Odamtten is decided and shelved but the customary rule continues to discriminate against women.

— 

* LL.B, University of Ghana, Legon (2021); BL Candidate, Ghana School of Law.

± Per Judge Martin Horwitz in Unity Dow v. Attorney-General (Botswana) [1992] 6 B.C.L.R. 1 pp. 17-18 of the judgment.

[1] [2018] GHASC 63 (Civil Appeal No. J4/20/2016) (12 December 2018).

[2] Under Article 11(2) of the Constitution of the Republic of Ghana, 1992, customary law is defined to include those determined by the Superior Court of Judicature .

[3] The Court of Appeal cited as authority, the decision of Ollenu J in Yawoga v. Yawoga & Anor. [1958] 3 WALR 309, 310, holding (ii).

[4] Quorum: ADINYIRA (MRS), JSC (PRESIDING) AKOTO-BAMFO (MRS), JSC BENIN, JSC APPAU, JSC PWAMANG, JSC.

[5] The Court made reference to Ollenu’s Testate and Intestate Succession in Ghana and Kludze’s Modern Law of Succession in Ghana, 2015 Edition and Ewe Law of Property.

[6] [2018] GHASC 67 (Civil Appeal No. J4/36/2017) dated 12 December 2018.

[7] Intestate Succession Act, 1985 (P.N.D.C.L. 111)  Sections 5 (1) (d), 6 (c), 7 and 8.

[8] Ama Hammond (2019) “Reforming the law of intestate succession in a legally plural Ghana”, The Journal of Legal Pluralism and Unofficial Law, 51:1, 114-139, DOI: https://www.tandfonline.com/action/showCitFormats?doi=10.1080/07329113.2019.1594564

[9] H.J.A.N. Mensa-Bonsu, “Transplanting the English Oak: Legalism, Legality, Legal Pluralism and the Criminal Law of Ghana” in Helen Lauer & Kofi Anyidoho, Reclaiming the Human Sciences and Humanities Through African Perspectives (Ghana: Sub-Saharan Publishers, 2012) 1187 at 1190.

[10] Article 11 of the 1992 Constitution.

[11] Richard Frimpong Oppong, “Managing Legal Pluralism: An Examination of the Colonial and Post-Colonial Treatment of Customary Law under Ghana’s Legal System” in H.J.A.N. Mensa-Bonsu et al, Ghana Law Since Independence: History, Development and Prospects (Accra: Black Mask, 2007) 443.

[12] Adusei, Poku. “Towards a Transsystemic Study of the Ghana Legal System”, Global Journal of Comparative Law 6, 1 (2017): 25-50,  DOI: https://doi.org/10.1163/2211906X-00601002;

See also, Republic v. Tommy Thompson Books Ltd [1996- 97] SCGLR 804 at 838, per Kpegah JSC “A pluralistic legal system is the state of having laws from multiple systems of law being applicable at one and the same time, as represented by the existence of customary law operating side by side with the received common law.”

[13] This was by virtue of section 49 of the Courts Act, 1971 (Act 372) which provided rules for ascertaining the applicable personal law of a person. Section 54 of the Courts Act, 1993 (Act 459) presently provides for these rules.

[14] A.K.P. Kludze, Modern Law of Succession in Ghana (Dordrecht: Foris Publications, 1988) at p. 240-44, where the learned author rejects the definition of family given by Sarbah, Ollenu and Bentsi-Enchill as unsatisfactory and goes ahead to define family as “a unit of persons, both male and female, who, in the contemplation of the law, are lineally descended from a common ancestor, generally but not exclusively through males in a patrilineal community, and generally but not exclusively through females in a matrilineal community, and which group is identifiable as a legal entity by the conferment and imposition thereon of certain rights, privileges and obligations, including the determination of citizenship and political allegiance to a stool, or skin and succession to rights in property and hereditary offices exclusively belonging to or vested in the unit.”

[15] Ibid at 295 citing Vanderpuye v. Botchway (1951) 13 W.A.C.A. 164 that children did not normally succeed to the intestate in Ga matrilineal communities except children born out of the Ga ‘six-cloth’ marriage. See also, Nii Amponsah, “Ga-Mashie Succession: Ascertaining the True Personal Law” (1974) 6 R.G.L. 166

[16] Kludze, supra note 14 at 260 where the following cases are cited: Pappoe v. Wingrove & Co., Ltd. [1921-25) Divisional Court; Amarfio v. Avorkor (1954) 14 W.A.C.A.554; Solomon v. Botchway (1943) 9 W.A.C.A. 127; including Larkai v. Amorkor (1933) 1 W.A.C.A. 323.

[17] Ibid at 260-261. See also, N.A. Ollennu, The Law of Testate and Intestate Succession in Ghana (1966) at p. 70.

[18] Ibid at 245. See also, Christine Dowuona-Hammond, “Women and Inheritance in Ghana” in A. Kuenyehia, ed, Women and Law in West Africa: Situational Analysis of Some Key Issues Affecting Women, (Accra: Human Rights Study Centre, Faculty of Law, University of Ghana, Legon, 1998) 132-168 at p. 137.

[19] Kludze, supra note 14 at 188. Yawoga v. Yawoga & Anor. [1958] 3 WALR 309; See also, A.K.P. Kludze, “Problems of Intestate Succession in Ghana” (1972) 9 U.G.L.J. 89 at 117-120; R.J.H. Pogucki, Land Tenure in Ghana, Vol. II, Land Tenure in Adange Customary Law, 1957, p. 39

[20] N.A. Ollennu, supra note 17 at 171 citing Griffith CJ in In the Estate of Lomotey Nukpa (deceased) that a son succeeds a father at Nungua. See also, Okaikor v. Opare (1956) 1 WALR 275 at 277 holding (ii) per Quashie-Idun J “…the custom of the Tema area, from which the deceased brother originated, provides that the individually owned estate of a deceased man shall pass to his children…”

[21] [1961] GLR 584 at 588

[22] Dowuona-Hammond, supra note 18 p. 142.

[23] Kludze, supra note 14 at 189, where the author explains that irrespective of the age of the female child of the deceased, she would be postponed to her brothers who were much younger.

[24] Tamakloe v. Attipoe D.C. (Land) ’48-51, 378, 383.

[25] Dowuona-Hammond, supra note 18 at p. 142 citing Nukunya, Kinship and Marriage Among the Anlo Ewe, London, Athlone Press (1969) pp. 43-45; Sedorme v. Dodor C.A.A [1984-86] G.L.R.D; See also, Bortei-Doku Aryeetey E., “Behind the Norms: Women’s Access to Agricultural Resources in Ghana”, Paper presented at Regional Workshop on Managing Land Tenure and Resource Access in West Africa, held at Goree, Senegal, November 18-22, 1996, pp 214-7,

[26] Kludze, supra note 14 at 189; Husunukpe v. Dzegblor D.C. (Land) ’48-’51, 393 

[27] Golo v. Doh [1966] G.L.R. 447. See also, Dowuona-Hammond, supra note 18 p. 142; Kludze, supra note 14 at 294.

[28] Golo v. Doh [1966] G.L.R. 447, 488 per Jiagge J. “A daughter cannot therefore make any absolute disposition of property inherited from her father”. Husunukpe v. Dzegblor (supra). See also, Kludze, Ewe Law of Property pp. 291-292.

[29] Kludze, supra note 14 at 294.

[30] Dowuona-Hammond, supra note 18 p. 142. See also, Golo v. Doh [1966] G.L.R. 447, 488 per Jiagge J. “If an only child, a daughter, inherits her father’s property she has only a life interest, on her death the property reverts to her father’s family. Her children will not inherit such property as of right.”

[31] Ibid

[32] [1958] 3 WALR 309.

[33] 1992 Constitution of Ghana, Articles 2(1) and 11.

[34] Id. Art. 2(1), 2(1) the Supreme Court has the exclusive jurisdiction to declare a law or an action unconstitutional. Mensima and Others v Attorney-General [1997-98] 1 GLR 159 per Acquah JSC

at p.200.

[35] Kuenyehia, A. 2006. “Women, Marriage, and Intestate Succession in the Context of Legal Pluralism in Africa.” UC Davis Law Review 40:385–405 at 400.

[36] Id.

[37] 1992 Constitution of Ghana, Article 17.

[38] 1992 Constitution of Ghana,Article 18.

[39] Nartey Vs. Gati [2010] SCGLR745; Asare Vrs. Attorney-General [2012] GHASC 31; Federation of Youth Association of Ghana (FEDYAG) v. Public Universities of Ghana & Others [2010] SCGLR 265.

[40] Dowuona-Hammond, supra note 18 p. 142.

[41] Kludze, supra note 14 at 294. Yawoga v. Yawoga.

[42] Supra note 28.

[43] Kuenyehia, supra note 35 at 390.

[44] Id.

[45] Kludze, supra note 29

[46] Kuenyehia, supra note 35 at 388

[47] Kludze, supra, note 14 at 192.

[48] Id.

[49] 1992 Constitution, Article 15. See also, Ahumah-Ocansey v Electoral Commission [2010] SCGLR 575; Dexter Johnson v. The Republic [2011] 2 SCGLR 601; and Asare v. Attorney-General (supra note 39)

[50] Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497, at para 53; R v Kapp [2008] 2 SCR 483, at para 19-22, both cases are cited in Asare v. Attorney-General (supra note 39)

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Ghana ratified the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) on 2nd February 1986. On January 24 , 1989 Ghana ratified the African Charter on Human and Peoples’ Rights (African Charter). By the formulation in Article 75 of the 1992 Constitution, Ghana is a dualist state. Therefore, international treaties signed by the executive require parliamentary ratification by resolution or Act of Parliament in order to bind the State on the international plane and alter rights and obligations internally. On this point, see Republic v. High Court (Commercial Division) , Accra; Ex Parte Attorney-General (NML Capital and Republic of Argentina-Interested Parties) (Suit No. J5/10/2013).

[57] Convention on the Elimination of All Forms of Discrimination Against Women art. 5(a).

[58] African Charter on Human and People’s Rights, art. 2 and 3.

[59] Id. Art 18 (3)

[60] Kuenyehia, supra note 35, pp 401-404

[61] Id.

[62] [1994] 6 B.C.L.R. 1

[63] E K Quansah, ‘Unity Dow v. Attorney-General of Botswana – One More Relic of a Woman’s Servitude Removed’ (1992) 4 Afr J Int’l & Comp L 195 at 199

[64] Id.

[65] [1994] 6 B.C.L.R. 1 at 92 and 136

[66] (2001) AHRLR 236 (TzHC 1990)

[67] [19971 7 N.W.L.R. 283

[68] Id.

[69] Kuenyehia, supra note 35 pp 394-395

[70] Id. at 404.

[71] Kuenyehia, supra note 35 p. 395

[72] Ama Hammond, supra note 8, citing Morse, B. W., and G. R. Woodman. 1988. “Introductory Essay: The State’s Options.” In Indigenous Law and the State, edited by B. W. Morse and G. R. Woodman, 5–24. Providence, Rhode Island: Foris Publication Laws; and Forsyth, M. 2009. A Bird That Flies with Two Wings: The Custom and State Justice Systems in Vanuatu. Canberra: ANU Press.

[73] Kuenyehia, supra note 35 p. 396

[74] Dowuona-Hammond, supra note 18 at 132-133. See also, Memorandum, Intestate Succession Act, 1985 (P.N.D.C.L. 111)

[75] Id.

[76] Adusei, Poku, supra note 12 at 26

[77] PNDCL 111, section 14 provides: Subject to the rules of customary law relating to a member’s interest in communal property, where two or more persons are entitled to share a portion of an estate under this Act, they shall divide it among themselves in equal shares.

[78] Kludze, supra, note 14 at 189.

[79] Id.

[80] Id.

[81] Id.

[82] Id.

[83] Inserted by Intestate Succession (Amendment) Law, 1991 (PNDCL 264)

[84] Kludze, supra, note 14, Chapter 8 p 205   

[85] Nii Kpobi Tetteh Tsuru III v. Attorney-General SUIT NO.J7/7/2011; Omaboe III v Attorney-General & Lands Commission (2005-2006) SCGLR 579;

In Gbedemah v Awoonor-Williams (1970) 2 G&G 442 at 444, Apaloo JA (as he then was), writing for the majority, said: “As we read the Constitution, it has no retrospective effect . . .” The same judge delivering the majority judgment in Benneh v The Republic [1974] 2 GLR 47 at 85, CA (full bench) said: “The Constitution which became operative on 22 August, 1969 was prospective and did not seek to invalidate acts which were done before it came into being.” Also, in Fattal v Minister for Internal Affairs [1981] GLR 104, SC Archer JSC said “The Constitution will therefore be expected to practice what it has ordained. It cannot operate retrospectively or retroactively otherwise the Constitution will be guilty of what in Scottish legal parlance is referred to as reprobating and approbating. The Constitution came into force on 24 September 1979 and not a day earlier.”

[86] [2000] SCGLR 24 at 44

[87] [2001-2002] 1 GLR 457 pp 472-475