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AKELE v. COFIE


  • appeal
  • 1961-03-17
  • SUPREME COURT
  • GLR 173-175
  • Print

VAN LARE, SARKODEE-ADOO AND AKIWUMI, JJ.S.C.


Summary

Practice and procedure?-Reference by High Court of a point of customary law to local court?-Proceedings in local court beyond terms of reference?-Whether proper for High Court to adopt report ?"in whole?".

Headnotes

In an administration suit before the Accra Municipal Court, the terms of reference as set out in the summons for directions were as follows:?"1. Whether the plaintiff as head of the Naa Ama Botchway family is the proper person to whom the letters of administration to administer the estate of the late Kofi Aryeh-Kwao (deceased) should issue.?"2. Whether Kofi Aryeh-Kwao in his life-time succeeded some members of the Naa Ama Botchway family and whether at his death he had in his possession and control properties belonging to the Ama Botchway family whom he succeeded.?"During the proceedings evidence was taken of other issues not referred to the municipal court and after that court had reported in the plaintiff?'s favour, the defendant appealed to the High Court on the ground, inter alia, that the finding of the municipal court was incompetent since it went outside its terms of reference. The High Court adopted the report of the municipal court in whole, and the defendant appealed to the Supreme Court.

Judgement

APPEAL from the decision of the High Court, Accra (Acolatse, J.) delivered on the 2nd June, 1960 (unreported) adopting in whole a report of the Accra Municipal Court made on the 20th April, 1960, (Adjei-Botchwey, Esq.) [p.174]

In an administration suit.

JUDGMENT OF SARKODEE-ADDO J.S.C.

Sarkodee-Addo J.S.C delivered the judgment of the court. This is an appeal from a judgment of the High Court, Accra, dated the 2nd June, 1960, in an administration suit in which the plaintiff?'s claim is for a declaration that as the eldest surviving maternal relative of Kofi Aryeh-Kwao (deceased) and his ?"cousin German?", she is the person entitled to succeed to and administer the estate of the said Kofi Aryeh-Kwao (deceased). The writ of summons was issued in pursuance of the order of the court bearing date the 14th September, 1959, after the court had been informed by counsel that the parties (applicant and caveator) had not been able to come to a settlement.

On the pleadings as filed by the parties, the issues appearing thereon were three-fold, namely:

(1) Who is the proper person (plaintiff or defendant) to succeed to the late Kofi Aryeh-Kwao, deceased?

(2) Did the late Kofi Aryeh-Kwao, deceased, in his life-time make a gift inter vivos or a samansiw (death-bed disposition) of all his self-acquired properties to his children?

(3) Was there an arbitration held after the death of the late Kofi Aryeh-Kwao whereby by the award thereof his self-acquired properties were formally and actually granted to his children?

By an order of the court made on the 18th March, 1960, the first issue namely, ?"who is the proper person (plaintiff or defendant) to succeed to the late Kofi Aryeh-Kwao, deceased?" was referred to the Municipal Court, Accra, for that court to enquire into and determine that issue in accordance with native law and custom, and to report its decision on such question to the court, under section 89 of the Courts Ordinance.1

The said municipal court in its judgment found, inter alia, that the plaintiff?'s claim to succession and administration was well sustained and that she was the person rightly entitled to succeed to and administer the estate of the late Kofi Aryeh-Kwao.

From the proceedings of the municipal court transmitted to the High Court, it is patently clear that a mass of evidence was taken in respect of the other issues which were not referred to it, namely, the questions of samansiw and arbitration.

Upon the matter coming up for hearing before the High Court on the 2nd June, 1960, Mr. Hayfron-Benjamin, counsel for the defendant submitted that the said judgment or (report) of the municipal court which had been admitted and marked ?"A?" for the purpose of argument should not be accepted on the following grounds:

(1) The learned judge should have qualified the word estate by the adjective ?'personal?'.

(2) As a result of this omission the referee was persuaded to take a mass of evidence as to succession to real property [p.175] which is irrelevant to the matter in issue, which is, ?'who is entitled to administer the personal estate of the deceased.?'

(3) The finding of the municipal court is incompetent. It went outside the terms of reference.

(4) The magistrate was assuming the function of the High Court when he dismissed the evidence given in respect of samansiw.

Mr. Obetsebi-Lamptey, counsel for the plaintiff argued contra in support of the adoption in whole of the said judgment or report. The learned judge of the High Court adopted the report of the municipal court in whole and found for the plaintiff as follows:

?"Judgment:

The local court decides as between the plaintiff and the defendant as to who is entitled to succeed to and administer the estate of the deceased according to the prevailing Ga native custom.

The defendant did not prove any peculiar custom pertaining to his father?'s family as alleged in his pleadings.

The local court decided upon the facts of the evidence before it and upon the Ga custom and held the plaintiff to be the head of deceased?'s family and accordingly the person entitled to administer the properties of the deceased.

The defendant in his own evidence knows nothing at all about the deceased?'s family.

The plaintiff is the eldest surviving maternal relative of the deceased. It is clear from the evidence. The judgment of the local court was declared on that point.

It is also apparent on the record that the deceased died possessed of properties in his care for and on behalf of the Ama Botchway?'s family. The defendant cannot under the customary procedure administer that part of the estate of Ama Botchway?'s family which the deceased was the caretaker thereof.

I adopt the report of the local court in whole and I find that the judgment of this court should be for the plaintiff as the person having the major interest in the estate of the deceased.

I order that plaintiff is entitled to administer the personal estate of the deceased and let letters of administration issue in her favour.

Judgment accordingly for plaintiff with cost allowed at the fifty guineas for counsel. Other costs to be taxed.

?"(Sgd.) C.S. Acolatse, Judge.?"

The main ground of appeal argued by counsel for the appellant is ground 2 which is as follows:

?"Because the learned trial judge erroneously adopted the report of the local magistrate herein which clearly was ultra vires the issues as per the summons for directions.?"

There is a great deal of force in this argument which is well-founded and abundantly borne out. It is clear from the proceedings of the municipal court that it acted ultra vires as it went outside the terms of reference. Quite clearly the learned judge erred in adopting the report of the municipal court ?"in whole?" and his failure to hear evidence on the other issues presented a situation implying that he had also referred those issues to the municipal court. In all the circumstances of the case it is apparent on the face of the record that there has not been a full and proper trial before the High Court of the main issue involved; there has, therefore, in our view been a denial of justice, and the case should be sent back for a re-hearing. The appeal is accordingly allowed and the judgment of the lower court, including the order as to costs, is set aside. The case is remitted to the court below for a re-hearing.

Decision

<P>Appeal allowed.</P> <P>Case remitted to High Court for re-hearing.</P>

Plaintiff / Appellant

C.F. Hayfron-Benjamin

Defendant / Respondent

Obetsebi-Lamptey

Referals

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