KING AND ANOTHER v. ELLIOT AND ANOTHER [1972] 1 GLR 54
COURT OF APPEAL
Date: 1 NOVEMBER 1971
BEFORE: KOI LARBI AND BENTSI-ENCHILL JJ.S.C. AND SOWAH J.A.
CASES REFERRED TO
(1) Brown v. Miller (1921) F.C. ‘20-’21, 48.
(2) Savage v. Macfoy (1909) 2 Ren. 504.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Lassey J. (as he then was) in favour of the plaintiff for recovery of
possession of a house devised to him in a will. On the death of the plaintiff, the appellants were
substituted in their capacity as executrices of his will.
COUNSEL
Joe Reindorf for the appellants.
No appearance by or for the respondents.
JUDGMENT OF BENTSI-ENCHILL J.S.C.
The facts in this appeal from the judgment of Lassey J. (as he then was) may be summarised as follows: Patience Williams who died in 1943 had by her will devised various properties to her descendants and relations. She was the only child of her mother, Mrs. Nancy Campbell the original owner of the properties, who died intestate. It is not clear from the evidence whether Patience Williams’ title to the properties rested simply on the fact of her being the only child of Nancy Campbell, or whether Nancy Campbell gifted the properties to her. There is a suggestion in the original pleading of the defendants-appellants (hereinafter called the defendants) that Nancy Campbell made a gift of the properties to Patience Campbell’s daughter who predeceased Patience Campbell. There is the admission by the second defendant under cross-examination at page 53 of the record of proceedings that Nancy Campbell bequeathed all her self-acquired properties to her only child Patience Williams. And there is also the possibility, wholly uncanvassed, that Patience Williams was the issue of a marriage under the Marriage Ordinance.
But notwithstanding the lack of clarity regarding the basis of her title to the said properties originally
owned by her mother, it is stridently clear that she dealt with the properties in the character of owner, was in exclusive and undisputed control and possession of them and that her dealings with the said properties during her lifetime and upon her death were acquiesced in and even adopted and accepted by Nancy Campbell’s “family,” such as it was. By her will dated 8 October 1935, she distributed the properties among her descendants and relations including the plaintiff-respondent (hereinafter called the plaintiff) now deceased, and the defendant. Every disposition under her will had taken effect and been accepted by the various beneficiaries including the defendants to whom one of the houses had been devised. The only exception was the property known as “Pitt’s House” which was devised to the plaintiff-respondent. [p.56] of [1972] 1 GLR 54 The defendants are in control of Pitt’s House, collecting the income therefrom, although it was not devised to them, and have refused to surrender possession of it to the plaintiffs to whom it had been devised by Patience Williams under a clause of the same will by virtue of which the defendants are enjoying other property devised to them. And the plaintiff’s claim is for recovery of possession of the said
Pitt’s House from the defendants, mesne profits and a perpetual injunction.
The defendants assumed control and possession of Pitt’s House upon the death of their father, T. A. King, a son of Patience Williams and sole executor of her said will. They took possession of Pitt’s House on the strength of a provision in the will of T. A. King which stipulated that all incomes derived from that house should be paid to the second defendant for a period of ten years in repayment of the cost of redeeming it from a mortgage on that property made by the father of the plaintiff. It is to be noted that, whatever may be said concerning the validity of this charging provision in T. A. King’s will, having regard to the terms of Patience Williams’ will, the said ten-year period during which the second defendant was empowered to receive income from Pitt’s House had expired by the time this action was brought, and that, therefore, T. A. King’s will had ceased to provide even the semblance of a basis for depriving the plaintiff of possession of that house. No wonder then that the defendants pleaded other pretexts for retaining possession as against the plaintiff. One of these pretexts is that they have been using the income from Pitt’s House in paying for house and water rates and for maintaining the plaintiff, who they claimed, could not take proper care of himself by reason of physical infirmity. This was denied. But it is noteworthy that an implicit admission of the plaintiff’s title to the said property may be inferred from thatpretext. Also noteworthy is the fact that the defendants’ counterclaim against the plaintiff for the cost of redeeming the mortgage may be seen as implying an acknowledgement of the plaintiff’s title to the property.
Another pretext pleaded by the defendants is that they are lawfully in possession of the said house as
members of the family of Mrs. Nancy Campbell the true owners of the house in question. This pretext, as pleaded, and on the evidence, does not avail them for the simple reason that as children of T. A. King, a male member of the family of Nancy Campbell, they themselves are not members of her family according to the Fante law which their counsel contended must govern succession to that property. Other defences pleaded on behalf of the defendants, which are equally unavailing, are laches and the Real Property Limitation Act, 1833 (3 & 4 Will. 4, c. 27), and for the reasons given by the learned trial judge. They will not be discussed here.
The real nub of the defendants’ case is their plea of bare possession; their insistence that it is for the
plaintiff to prove superior title. They aver that the plaintiff’s title is defective being derived from the will of Patience Williams who, they contend, had no power to dispose of the said property by her will, as it was family property originally acquired by her mother who died intestate. In my view this would be a valid defence [p.57] of [1972] 1 GLR 54 which must prevail if the plaintiff can be shown to have based his claim on a defective title. I now address myself to that defence.
The question whether or not Patience Williams was competent to make a testamentary disposition of the said property depends on the answer to the question whether the said property was held by her as family property in which other people had an interest, or whether it was in her exclusive ownership. This raises the interesting and important question as to the law which should govern the devolution of the estate of her mother Nancy Campbell.
Now, Nancy Campbell was not a Gold Coast citizen or a Ghanaian. According to the first defendant she was a West Indian who later became domiciled in the then Gold Coast. According to the second
defendant she came from Abeokuta in Nigeria. Thus she was a foreign national who became domiciled in the then Gold Coast. What then is the law that should govern the devolution of her estate? Learned counsel for the defendants contended in his fourth ground of appeal that “the law to be applied is the lex situs, that is, Fante customary law and usage, especially as Mrs. Nancy Campbell acquired a domicil of choice in Ghana and lived with her children and other dependants in Fante land at Cape Coast.” In my view there is an error in this contention. It does not follow from the fact that the lex situs of Ghana became applicable to the devolution of the estate of Nancy Campbell that Fante customary law must apply to her estate merely because “she lived with her children and other dependants in Fante land at Cape Coast.” It is Ghana law which is the lex situs of Ghana. Ghana law indeed includes Fante customary law; but it comprises other systems of law as well-not excepting the English common law as at 1874.
An alien who acquires a domicil of choice here does not necessarily become a person subject to
customary law – no matter where he settles in Ghana. This is clearly the case with a Lebanese, or an
Indian, or an Englishman. He would be held to have become subject to customary law only if he could be shown by positive evidence regarding manner of life etc., to have embraced a particular system of customary law. In the old case of Brown v. Miller (1921) F.C.’20-’21, 48, Wilkinson J. used language which is instructive. He said at p. 52: “In my view, before a stranger can for the purposes of section 2 of Ordinance No. 5 of 1883 [the Native Jurisdiction Ordinance], be held to be a ‘native’ it must be clearly shown that he has by definite andunmistakable signs and acts committed himself to the adoption of membership of the native community which claims him as one of its body.
Such signs might I conceive be descernible in some of the following acts:
(1) Voluntary participation in liability for stool debts.
(2) Voluntary submission to a stool levy.
(3) Formal avowal of allegiance to a native stool. [p.58] of [1972] 1 GLR 54
(4) Active participation qua member in formal stool ceremonials.”
This was a case involving a Jamaican woman who had bought land in Accra and lived there for some 62 years prior to the action. Persons who assisted her to build on that land claimed that the house had thereby become a family house. It was further contended that the Jamaican woman’s long residence here was evidence that she now had a Gold Coast domicile and was bound by the rules of the Ga law of property.
Her contention that she was not a native and not subject to the jurisdiction of the native tribunal was
upheld on appeal by the Full Court overruling a decision of the Ga Manche’s court. (See also Savage v. Macfoy (1909) 2 Ren. 504 and Allott, Essays in African Law, p. 186).
Nancy Campbell was not shown to have embraced Fante customary law. In my view the ruling of
Dennison J. (exhibit 1) does not meet the requirements of such proof. And in the absence of such proof the law applicable to the devolution of her estate would not be customary law but the English common law as it stood at 1874. This, in my view, results from our choice of law rules as originally laid down in sections 14 and 19 of the Supreme Court Ordinance, 1876 (No. 4 of 1876), which were re-enacted in sections 83 and 87 of the Courts Ordinance, Cap. 4 (1951 Rev.), and again (but with modifications that further articulate the solution indicated here) in section 66 of the Courts Act, 1960 (C.A. 9), and in the Courts Decree, 1966 (N.L.C.D. 84), para. 64. The later legislation, it will be recalled, defines “personal law” as the system of customary law to which a person is subject, or the common law, if he is not shown to be subject to customary law.
On this view then, that the law applicable to Nancy Campbell’s estate is the English common law as it
stood in 1874, Patience Williams, her sole surviving daughter, must be adjudged as having inherited the properties of her mother absolutely under the Statutes of Distribution. As such inheritor she was
competent to devise it under her will to the plaintiff. The latter therefore must be adjudged entitled to the reliefs claimed as against the defendants. But even if the defence contention were upheld that Nancy Campbell’s acquisition of a domicil of choice in the then Gold Coast entailed the applicability of Fante law to the devolution of her self-acquired property, and that therefore her said properties became family property upon her death intestate, this would not necessarily dispose of the matter. The question would still remain as to whether Nancy Campbell’s sole surviving daughter Patience Williams was incompetent to deal with it as her absolute property.
There is no evidence that she had any other relatives apart from her daughter. There is positive evidence that her domestics continued as the domestics of Patience Williams, her daughter, and were provided for as such by the latter. And the evidence is overwhelming that far from challenging her daughter Patience Williams’ dealings with the property, [p.59] of [1972] 1 GLR 54 the latter’s own children and grandchildren (including the defendants) as well as the said domestics fully accepted, approbated and acted upon her testamentary dispositions. It certainly does not lie in the mouth of non-members of the family like the defendants, themselves beneficiaries under the same will, to question the title of the plaintiff. And I fully agree with the view of the learned trial judge that the defendants cannot be allowed, whether in equity or at customary law, to approbate and reprobate the will of Patience Williams. At the very least, her dispositions may be deemed to rank as a distribution of family property acquiesced in and adopted by the family concerned.
It was further contended by learned counsel on behalf of the defendants that the persons substituted for the original plaintiff now deceased, have failed to prove their interest in the matter and are therefore not entitled to have judgment entered in their favour. It is, however, clear on the record that the said persons were substituted in their capacity of executrices of the will of the deceased plaintiff. As such, their substitution for the deceased in order to prosecute this action to a conclusion is unexceptionable.
For these reasons I would dismiss the appeal.
JUDGMENT OF KOI LARBI J.S.C.
I agree with the judgment just read and I have nothing useful to add.
JUDGMENT OF SOWAH J.A.
I agree entirely with the judgment just read, but would just add a few words. It seems to me odd, to say the least, that a person having assumed the office of an executor under a testamentary disposition in which he himself was a beneficiary, could now turn round to challenge the validity of the will he was administering without even attempting to renounce probate. His first duty was to have renounced probate if he knew the property to be family property, but having failed so to do and distributed the estate in the manner devised, including taking possession of his own bequest under the will, he is effectively estopped from disputing the validity of the will and the disposition thereunder. He entered into the estate in the character of the executor and not as head or a member of family and it was in such character that he is being assailed against. The present defendants substituted for him stand in the same category.
It seems to me that looking at the matter from every angle, there was no defence to the plaintiff’s claim that the defendants should hand over to him the house devised to him.
DECISION
Appeal dismissed.
