Mami v. Paulina, et al.

N, a member of the Krobo tribe, died intestate with the result that his property was automatically devolved to his five children including his two married daughters M and P. According to the ‘fia’ custom of the Krobo tribe, a woman who contracted a lawful marriage was disqualified from inheriting any portion of her father’s property on the grounds that she was considered as belonging to her husband’s family. The custom further stipulated that if the daughter had children before getting properly married these would be regarded as illegitimate and belonging to the daughter’s pre-marriage family. The birth of the illegitimate children would qualify her to inherit from the estate of her father but in trust for the illegitimate children with the aim of providing her with means to maintain the children.

C, the head of the family, instead of apportioning the property equally, decided to grant it solely to P, excluding M on the ground that she had contracted a lawful marriage. P then sold part of her share to X. Upon C’s death, a relative F re-apportioned the land into two equal parts between M and P. Dissatisfied with the re-apportionment, P complained to the divisional chief who, after arbitration, overturned it, upholding C’s original decision. M then issued a writ in the circuit court for a declaration of title, damages for trespass and perpetual injunction.

Following rejection of her claim, M appealed to the Court of Appeal which ruled that there had been no miscarriage of justice. She then appealed to the Supreme Court.

[Adapted from INTERIGHTS summary, with permission]

In allowing the appeal, the Court held that:

(1) It was clear that both M and P had contracted lawful marriages and had illegitimate children and consequently should have shared the property equally. Consequently, failure to apportion the property equally did result in a miscarriage of justice. The issue of property ownership was at the core of the entire case and considerations of the fia custom and illegitimate children were the grounds on which ownership had to be determined. Ruling incorrectly on them definitely affected justice in the case. The court held that P’s sale of the property to X was improper since she had no title to sell.

(2) Custom which encouraged immorality and promoted promiscuity had no customary or cultural value. Article 39(2)¹ of the Constitution clearly required the abolition of certain customs which were injurious to personal well being. To the extent that the effect of the custom was to disinherit a woman for being properly married, that custom was certainly against the well-being of women in the Krobo area and, in accordance with the Constitution, should be abolished.

(3) However, the courts had neither the power nor the responsibility to abolish customs, however undesirable or inimical the custom may be to some of those who practice it. The only exception to this might be customs which actually encouraged the commission of crimes. There were three methods by which custom may be changed: by Parliament, the President and the people who practice the custom² (Foli VIII v The Republic [1968] GLR 768; Abaye v Akatia [1982-3] 2 GLR 1072 and Tanor v Akosua Koko [1974] 1 GLR 451 considered).

1. Article 39(2) provided: ‘The State shall ensure that appropriate customary and cultural values are adapted and developed as an integral part of the growing needs of the society as a whole; and in particular that traditional practices which are injurious to the health and well-being of the person are abolished.’

2. Editorial note from Supreme Court of Ghana Law Reports: ‘It is respectfully suggested that, contrary to the decision of the Supreme Court in the instant case, the court is vested with power, on a purposive interpretation of articles 34(1) and 39(2) of the 1992 Constitution, to abolish the fia custom, which was declared by the court itself as not being in consonance with article 39(2). Counsel in the case, regrettably did not draw the attention of the Supreme Court to the relevant provision in the said article 34(1) of the Constitution, which states ‘The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.'

[Adapted from INTERIGHTS summary, with permission]