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NSIAH v. UNION TRADING COMPANY LTD.


  • appeal
  • 1959-02-26
  • COURT OF APPEAL
  • GLR 7985
  • Print

KORSAH C.J., VAN LARE J.A. AND OLLENNU J.


Summary

Administration of deceased's estate?-Extent of duties of administrators to settle debts?-A leasehold is personal property in Ghana?-Real Property Limitation Act, 1833 is a statute of general application.

Headnotes

By an Indenture of Lease No. 1617/840, dated 7th September, 1922, Government demised Plot No. 167 O.T.B. Kumasi to one Kobina Nketsia for a term of 7 years, renewable for a further term of 7 years. He built a house on it, and on the 24th September, 1925 he demised the said plot of land, with the building thereon, to the Union Trading Company, Ltd. for a term of 4 years, renewable for a further term not exceeding 5 years. At the same time he also deposited the said Lease No. 1617/840 with the Company to secure a trading account of 205 then due and owing by him to them.In January, 1927, Kobina Nketsia died intestate, and in the same year his successor Kwasi Yentumi, and one Kojo Sarkodie, obtained Letters of Administration to administer his estate. By notice in writing dated 20th April, 1929, the said Administrators gave notice to the Government terminating the tenancy of the said plot No. 167 O.T.B., with intent that the Government should grant a new Lease of the plot to the Company, to which the estate now owed the sum of 300. An Indenture dated 23rd April, 1929 was executed between Kwasi Yentumi and Kojo Sarkodie (the Administrators) as vendors of the 1st part, the Government of the 2nd part, and Union Trading Company Ltd. as purchasers of the 3rd part. By this Indenture the vendors, in consideration of the sum of 800 paid by the purchasers to them assigned to the purchasers all and singular the hereditaments comprised in and demised by the Lease (No. 1617/840) of plot No. 167.Twenty-seven years later, viz. on the 12th May, 1956, one Kwame Nsiah issued a writ against the Union Trading Company, Ltd., in respect of these matters. His claim, set out in paragraph 3 of his Statement of Claim, was as [p.80] follows:?-?"The plaintiff on behalf of the family of the said late Kobina Nketsia (deceased) therefore claims?-(a) A declaration that the Leasehold plot No. 167 O.T.B. Kumasi with the buildings thereon is the property of the family of the late Kobina Nketsia of Sewuah.(b) A declaration that the alleged sale of the said leasehold plot with the buildings thereon by one Kwasi Yentumi and one Kojo Sarkodie to whom Letters of Administration were granted to administer the personal estate of the said late Kobina Nketsia under written agreement dated 24th May, 1928, is void and of no effect and not binding on the family of the said Kobina Nketsia.(c) A declaration that the Lease dated 12th March, 1935, granted by the Government to the defendants Messrs Union Trading Company Limited upon their representation that they had acquired a valid transfer by purchase of the interest of Kobina Nketsia on the said leasehold plot with the buildings thereon is held by the said defendants Union Trading Company Limited in trust for the family of the said Kobina Nketsia.(d) An Order for accounts of all rents payable by the said defendants under Sub-lease dated 24th February, 1926, in respect of the said leasehold plot and the buildings thereon, which rents were to be applied towards liquidation of the trading account of the said Kobina Nketsia with the said defendants, secured by deposit of the said Kobina Nketsia's Head-lease dated 7th September, 1922.(e) An Order for redemption and delivery up of the said Lease dated 7th September, 1922, upon payment by the defendants to the plaintiff of amount found due upon the taking of accounts.(f) An Order for recovery of possession of the said Leasehold plot No. 167 O.T.B. - Kumasi and the buildings thereon." The defence to the action was set out in paragraph 11 of the Defence, which was as follows:-"The defendant says that the plaintiff's claims herein are barred by the Real Property Limitation Act, 1833 in that:(a) The plaintiff's claim for redemption and account was barred on the expiration of 20 years from the 24th February, 1926 being the date of the creation of the equitable charge referred to in paragraph 4 of the Statement of Claim and(b) The plaintiff's claim for a declaration of title and for possession were barred on the expiration of 20 years from the 23rd April, 1929 the date of the Assignment mentioned in paragraph 7 of this defence or alternatively from the 31st May, 1929 being the date of expiration of the notice to quit mentioned in paragraph 8 of this defence and(c) The plaintiff's claim for a declaration that the Lease dated the 12th March, 1935 granted by the Government to the defendants is held by the Defendants in trust for the Family of the late Kobina Nketsia was barred on the expiration of 20 years from the 1st January 1935 being the date from which the yearly term created by the said Lease commenced or alternatively from the said 12th March 1935 being the date of the said Lease. [p.81](d) Further and alternatively the plaintiff?'s claim herein is barred by his laches.?"The following issues were set down for trial:?-(a) whether or not the property became family property on the death of Kobina Nketsia;(b) if so, whether the administrators were vested with the property and so had power to dispose of it.(c) whether or not, the original lease having expired, the plaintiff is entitled to any claim to the land;(d) whether or not the plaintiff is estopped, and(e) whether or not the claim is barred by statute.The Land Court, Kumasi (Sarkodee-Addoo J.) gave judgement for the defendant Company, with costs assessed at 400 guineas, inclusive of Counsel?'s brief fee of 150 guineas.The plaintiff (Kwame Nsiah) appealed to the Court of Appeal (Civ. App. No. 77/58).

Judgement

(His lordship stated the facts, and proceeded):-

It is conceded that according to native customary law (Ashanti) applicable in this case, upon the death of the owner of a self-acquired property, the property would devolve upon the successor, who should be one of his sisters' children, males preferred to females; but such property does not become part of the ancestral property belonging to all those known as ?"family,?" who claim descent from a common ancestress. It is generally known that there are several branches of the same family, each entitled to inherit property which descends to the successor of a deceased uncle of the direct line, immediately removed. Hence the evidence of Yaah Adu, who claims to be 80 years of age, and to be a descendant of one of three sisters whose descendants constitute the larger family. She said, "Kwasi Yentumi was the successor of Kwabena Nketsia; and he was so appointed by the family, who entrusted the properties of t he deceased to his care.?"

According to native customary law, the successor of a deceased person is liable to pay all the debts of the deceased, whether the estate was solvent or insolvent This customary law was examined by Sir George Campbell Deane C. J. in his judgment in the case of Asiedu v. Ofori anor. (Div. Court, Accra. 6th Dec. 1932). He held.

(a) "such a course would in my view be repugnant to natural justice and equity; [p.83]

(b) "it would also be, I think, implicitly incompatible with our Statute Law, Rule 8, Order 44, Cap. 158 (now Cap. 4):

?'If the decree be against a party as the representative of a deceased person, and such decree be for money to be paid out of the property of the deceased person, it may be executed by the attachment and sale of any such property; or, if no such property can be found, and the judgment debtor fail to satisfy the Court that he has duly applied such property of the deceased as shall be proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property not duly applied by him, in the same manner as if the decree had been against the judgment-debtor personally."

In practice, then, the customary law of making the successor liable to pay debts of his predecessor out of his own pocket has been modified, and limited to the value of the estate which comes into the hands of the personal representatives. The question does not arise here, because the debt which deceased owed to defendants was paid out of the estate. But I refer to it to show that, under the native customary law, as well as under the English law applicable, the administrators are required to settle all the debts of the deceased from the estate before distribution of the assets.

Furthermore, it is important to note that Kwasi Yentumi and Kojo Sarkodie, who obtained Letters of Administration to administer the estate of Kobina Nketsia, are described in the Letters of Administration dated 6th April, 1927, as ?"the real nephews of the said intestate.?" This description of them implies that they were acknowledged to be persons who, under native customary law, would have been obliged to settle the debts of the deceased out of the estate.

The appellant did not adduce evidence to prove that Kobina Nketsia left other property from which his debts could have been paid without bringing into account the leasehold interest in plot 167. In the circumstances, Kwasi Yentumi could, according to native customary law, dispose of any self-acquired property of Kobina Nketsia which devolved upon him (Yentumi) as successor, to settle the debts of the said Kobina Nketsia. There is evidence that Kobina Nketsia owed 300, and that the documents relating to his leasehold property had been deposited by him with the creditors to secure a trading debt.

It is not disputed that Kwasi Yentumi could not deal with the leasehold interest of Kobina Nketsia in plot No. 167 until he obtained Letters of Administration, enabling him to execute the necessary [p.84] documents relating to it. By the law of this country the person to whom administration is granted is empowered to collect, get in, and administer the personal property of the deceased. The term ?"personal property,?" as distinguished from "real property,?" is a term of art applicable to certain kinds of property, including leasehold interests in land.

The division of property into movable and immovable is not the same as that into ?"personal?" and ?"real?" property, which for historical reasons is fundamental in English law. The distinction between real and personal property derived its origin from the forms of action which were permitted at common law to protect the interest of those entitled to possession. Originally, where possession of freehold land was in dispute, the common law gave an action whereby this possession could itself be recovered. The remedy for dispossession or withholding of possession of all other rights of property, in the earlier stages of the developed common law, lay in damages. Delivery of possession could, in some cases, be demanded, but the defendant could elect to pay damages named in the writ as an alternative. This rule originally applied to leasehold interest in land, hence not all interests in land fall within the classification of "real property" (Goodeve on Personal Property, 9th Ed. p. 2).

I may here refer to section 83 of the Courts Ordinance which reads:-

"Subject to the terms of this or any other Ordinance, the common law, the doctrines of Equity and the Statutes of general application which were in force in England on the 24th day of July, 1874, shall be in force within the jurisdiction of the Courts."

It follows that after 1874, laws enacted in the United Kingdom, the operation of which may have removed some of the fundamental distinctions between real property and personal property, and the incidents thereto, are not applicable in this country. Consequently, leasehold interest in land is still in our law personal property, and can be administered by the person to whom Letters of Administration have been granted by the Court in this country.

In any case, the term granted by the Government to Kobina Nketsia expired in 1929, and was not renewed. The Government as lessor could, from the expiry of the term, grant the same land to any applicant who might be ready and willing to comply with the terms and conditions of a new lease. The notice given by the administrators dated 20th April, 1929, coupled with the non-renewal of the [p.85] lease and the sale to the Company, divested the estate of Kobina Nketsia of all interest in the leasehold property. In my view, the appellant and the members of his family have no interest in the plot in respect of which they can maintain this action.

With regard to the last issue, viz., whether or not the claim is barred by statute, I am in full agreement with the views expressed by the Judge as follows:-

"By section 6 of the Real Property Limitation Act, 1833, where an Administrator claims, the time runs from the time of the deceased's death, and the same limitation applies to the plaintiff who has sued in respect of the estate of the deceased intestate. It is a statute of general application: Koney v. Union Trading Co. Ltd. (2) W.A.C.A. 188 at page 191). Nketsia died on the 16th day of January, 1927, and this suit was instituted on the 12th of May, 1956, a lapse of 29 years."

For these reasons I would dismiss this appeal.

JUDGMENT OF VAN LARE J.A.

I agree.

JUDGMENT OF OLLENNU J.

I also agree.

Decision

<P>Appeal Dismissed.</P>

Plaintiff / Appellant

Hayfron-Benjamin

Defendant / Respondent

Mead

Referals

Aseidu v. Ofori and anor.  (Div. Ct., Accra, 6th Dec., 1932).

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