Published online by Cambridge University Press: 28 July 2009
Four interrelated reforms in the private law of Ghana were promulgated by the ruling Provisional National Defence Council (P.N.D.C.) on 14 June, 1985: the Intestate Succession Law, 1985 (P.N.D.C.L. Ill); the Customary Marriage and Divorce (Registration) Law, 1985 (P.N.D.C.L. 112); the Administration of Estates (Amendment) Law, 1985 (P.N.D.C.L. 113); and the Head of Family (Accountability) Law, 1985 (P.N.D.C.L. 114). The Intestate Succession Law radically changes the law of inheritance, and constitutes the most extensive legislative reform ever made in the private law of Ghana. The Administration of Estates (Amendment) Law is a minor consequential enactment. The other two Laws are directed primarily to other issues, but bear on the Intestate Succession Law in minor aspects which will be mentioned later.
This comment does not seek to provide a detailed textual analysis of the Law, but merely to consider its provenance and general significance in the development of Ghanaian property law.
1 GÉRONTE: Just one thing surprised me: the position of the liver and of the heart. It seems to me that you place them differently from where they are: surely the heart is on the left side and the liver on the right side.
SGANERELLE: Yes, that was formerly the case; but we have changed all that, and nowadays we practise medicine by an entirely new method.
2 The most complete account of the law is contained in Ollennu, N. A., The Law of Testate and Intestate Succession in Ghana, 1966, Part II.Google Scholar There were many published discussions of particular issues. See e.g. Bentsi-Enchill, K., Ghana Land Law: an Exposition, Analysis and Critique, 1964, Chap. 4Google Scholar; Woodman, Gordon R., “Two Problems of Matrilineal Succession” (1969) 1 R.G.L. 6; (1971) 3 R.G.L. 57 (G.W.);Google ScholarKludze, A. K. P., Ewe Law of Property, 1973, Chap. 13;Google ScholarKludze, A. K. P., “Problems of Intestate Succession in Ghana” (1972) 9 U.G.L.J. 89;Google ScholarBentsi-Enchill, K., “Intestate Succession Revisited I“ (1972) 9 U.G.L.J. 123.Google Scholar
3 Nor, of course, the child or children of a non-Akan female. The last case is not mentioned because it excited little comment, and does not seem to have been a factor in the decision to reform the law. Hereafter references will be to the spouse (sing.) and to the children (plur.) of a deceased, in accordance with convention. The plural will include the singular and (where lawful) vice versa.
4 The development of the law was examined in Woodman, G., “The Rights of Wives. Sons and Daughters in the Estates of their Deceased Husbands and Fathers”, in Oppong, C. (ed.). Domestic Rights and Duties in Southern Ghana, Legon Family Research Papers No. 1, 1974, p. 268.Google Scholar The leading cases were: Manu v. Manu  1 G.L.R. 464;Google ScholarIn re Kofi Antubam (Deed.)  G.L.R. 138;Google ScholarAmissah-Abadoo v. In re Kofi Antubam (Deed.)  G.L.R. 138;Google ScholarAmissah-Abadoo  2 G.L.R. 110;Google ScholarAmissah-Abadoo v. Amissah-Abadoo  G.L.R. 509.Google Scholar
6 Marriage (Amendment) Ordinance, 1909 (No. 2 of 1909) and Marriage (Amendment) Ordinance, 1909 (No. 6 of 1909).
10 The case for viewing inheritance law in this wider context is acknowledged and acted upon in Goody, J., Death, Property and the Ancestors, 1962, pp. 277–283, 304–327.Google Scholar Evidence is given which shows it to be necessary, and it is placed in the still wider context of reciprocal assistance between generations, in Okalie, C., Cocoa and Kinship in Ghana, 1983, Chap. 5.Google Scholar It is fully developed in Von Benda-Beckmann, F., Property in Social Continuity, 1979, pp. 45–55.Google Scholar
14 These arguments were frequently stated in the literature from 1961 up to and including the Memorandum to the Intestate Succession Law, 1985, referred to below.
17 Ghana Law Reform Commission Working Paper No. 5/75.
19 S. 18. The definition is the same as that in the 1975 Proposed Decree, except for the items specified above in the text, which were added subsequently. The 1983 Proposed Law introduced a requirement limiting the provision to those household utensils which the spouses and children had enjoyed with the deceased, but this was removed. If they do not make a selection, the High Court is empowered to make it on the application of the administrator of the estate.
21 The Law provides no special definitions of “spouse” and allied terms, but the general law gives them this wide meaning. See e.g. Coleman v. Shang, above.
22 The Customary Marriage and Divorce (Registration) Law, 1985, s. 15, provides:Google Scholar.
“The provisions of the Intestate Succession Law, 1985 (P.N.D.C.L. 111) shall apply to any spouse of a customary law marriage registered under this Law.”Google Scholar
It seems unlikely that this impliedly excludes the spouses of unregistered marriages from taking under the Intestate Succession Law. The provision cannot be unqualifiedly exclusionary because it clearly does not exclude spouses of marriages under the Marriage Ordinance or Marriage of Mohammedans Ordinance. Moreover, to construe it as excluding spouses of unregistered customary law marriages would exclude large numbers of spouses in the early period of the Law. because the Customary Marriage and Divorce (Registration) Law applies to marriages contracted before the date of commencement as well as those contracted subsequently (s. 1). and it seems certain that some time will elapse before most prior marriages are registered. It was reported five months after the commencement of the Law that no customary marriages had yet been registered in many districts, including Accra, because the necessary forms were not ready: The Mirror, 16 11, 1985, p. 1.Google Scholar
23 This follows from the comprehensive terms of the definitions of “child” and “parent”, s. 18. Under their wording it is theoretically possible for a person to have more than two parents, and for a person not to be a “parent” to someone who is his or her “child”. These possibilities are unlikely to give rise to problems in practice, although Sganerelle might have appreciated them.
24 E.g. by A. R. Jiagge, Lecture to Ghana Council of Women. “The New Proposals in the White Paper on Marriage, Divorce and Inheritance” (undated), asserting: “This I hold repugnant to everything African.”
25 See e.g. In re Larbi (Deed.); Larbi v. e.g. In re Larbi (Deed.); Larbi  2 G.L.R. 506.Google Scholar There the father of the male deceased had belonged to a patrilineal, and the mother to a matrilineal community. It was held that such property of the deceased as passed under the customary law of intestate succession was to be shared equally between his matrilineage and his children.
26 The cause of the failure of this section lies in its history. The 1975 Proposed Decree provided for proportions to pass to “the family of the deceased], a phrase which it defined in terms virtually identical to those of s. 10, paras, (a), (b) and (c) of the Law. It thus provided a comprehensive direction for the ascertainment of the beneficiaries in all cases. However, it was subject to the criticism that it was based on the false assumption that under every system of customary law the property of an intestate devolved on the family, and consequently imposed that rule on peoples for whom it was not customary. (A. K. P. Kludze, “Comments on the Proposed Intestate Succession Decree], Legon, undated.) The new formula is apparently an attempt to meet that criticism, but since the section has not been thoroughly redrafted it fails to apply to the class of cases covered by the original draft.
27 It was so suggested in the Official Release from the Office of the P.N.D.C. which accompanied the publication of the Law: People's Daily Graphic, 15 06, 1985, p. 1.Google Scholar
28 The section presents difficulties of construction, but the above summary seems likely to be correct. The 1975 Proposed Decree contained no such provision. The 1983 Proposed Law would have given protection to spouses and children only.
29 See e.g. Re Ackom-Mensah  2 G.L.R. 18.Google Scholar There is much evidence in the anthropological and sociological literature of the tensions and competition between spouses and their affines, and between sons and daughters of Akan men and their fathers' kin. See e.g. Fortes, M., “Kinship and Marriage Among the Ashan'ti”, in: Radcliffe-Brown, A. R. and Forde, D. (eds.), African Systems of Kinship and Marriage. 1950. p. 252.Google Scholar
30 These are the express or necessarily implied effects of ss. 4 (referred to above in the second paragraph of this part), 9 (referred to above in the Table, note c) and 14 (referred to ibid., note a).
32 The corresponding Proposed Law of 1983 provided that the expression “head of family” was to include a customary successor. That was omitted from the enacted Law, but in the main substantive section of the latter the words of the earlier draft “any Head of family who is in possession or control, or has in his custody, any family property …” were expanded by the insertion after “Head of family” of the words “or any person”. Inconsistently this was not done in corresponding places in the other substantive sections, but it seems that, to avoid anomalies, the Law must be interpreted as applying fully to successors.
32 These conclusions are based on the analysis of the previous law argued for at (1976) 8 R.G.L. 147 (G.W.).Google Scholar However, it is possible that a judicial reform of the law would have occurred if the legislature had not acted. See Hansen v. Hansen  G.L.R.D. 73;Google Scholar and on appeal sub nom. Ankrah v. sub nom. Ankrah  G.L.R.D. 82,Google Scholar C.A. A further appeal was taken to the Supreme Court, the decision of which is not known.
A number of minor provisions of the Intestate Succession Law are not discussed here. They are: s. 12, providing special rules for the devolution of “small estates”; s. 13, empowering the Secretary (Minister) to vary the value of “small estates”; s. 15, a spouses commorientes rule; and s. 21. containing transitional provisions applying the Law to “any claim or adjudication pending before the Court or a Chief or Head of Family under customary law” at the date of commencement.
33 The Memorandum notes these matters when it states that the new Law “will be applicable throughout the country irrespective of the class of the intestate and the type of marriage contracted by him or her”. On the rarity of Ordinance marraiges. see Vellenga, D. D., “Who is a Wife? Legal Expressions of Heterosexual Conflicts in Ghana], in: Oppong, C. (ed.). Female and Male in West Africa. 1983. p. 144 at pp. 146 and 153. n. 5.Google Scholar
34 The common law on partition applicable in Ghana is complex and obscure. It seems that any co-tenant ol land may require partition, and that in an action to enforce that right the court may order the property to be sold and the proceeds of sale to be distributed among the co-tenants: Partition Acts 1339. 1540 and 1868. in force by virtue of the Courts Act, 1971 (Act 372), s. 111(1) and Schedule 1.
35 It has been argued by one writer in relation to a different statute that tenancy in common, in contrast to joint tenancy, tends to impede the efficient functioning of a register of titles to land, because the number of co-tenants tends to increase over time (whereas there is a tendency in the case of joint tenancy for a decline in the number on account of the right of survivorship), and “too many names encumber the register”: Asante-Ansong, S., “Title Registration in Ghana” (1981 & 1982) 13 & 14 R.G.L. 51.Google Scholar The argument would apply equally to the efficiency of a market in land with or without a system of title registration. It is possible that in either circumstance the tendency for agreed or enforced sales of land under co-ownership would off-set the trend which Mr Asante-Ansong fears.
36 A policy of limiting the number of residential plots held by any individual is manifested in the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law, 1982 (P.N.D.C.L. 42), ss. 45(6)–(9) and 50. Moreover s. 45(2) of that Law provides: “The [P.N.D.C.] shall ensure that the benefits of land as a national resource are enjoyed by the people of Ghana as a whole."
37 See e.g.: Re Ackom-Mensah, above; Adinkrah, K. O., “Ghana's Marriage Ordinance: an Inquiry into a Legal Transplant for Social Change” (1980) 18 A.L.S. 1, at 22–24.Google Scholar
38 Conveyancing Decree, 1973 (N.R.C.D. 175), ss. 4–13, discussed:Google Scholar  J.A.L. 300 (G.W.); (1980) 12 R.G.L. 166 (L.K.A.) at 170–172. In the latter an editorial note (at 175) confirms the ineffectiveness of the provision; however, with respect to the editor, it is submitted that he is wrong, and the writer of the note is right, as to the latter's suggestion that the statute invalidates unrecorded and unregistered disposals notwithstanding the absence of administrative facilities which would enable registration to take place.
39 Read, J. S., “A Milestone in the Integration of Personal Laws: the new Law of Marriage and Divorce in Tanzania”  J.A.L. 19, at p. 38,Google Scholar quoting to the same effect: Ghai, Y. P., “The new Marriage Law in Tanzania” (1971) 11 Africa Quarterly 101;Google ScholarKassam, F. M., “Report of the Kenya Commission on Marriage and Divorce: a Critique” (1969) 2 E.A.L.R. 179.Google Scholar