Division: IN THE COURT OF APPEAL
Date: 26TH FEBRUARY, 1959.
Before: KORSAH C.J., VAN LARE J.A. AND OLLENNU J.
CASE REFERRED TO
Aseidu v. Ofori and anor. (Div. Ct., Accra, 6th Dec., 1932).
ARGUMENT OF COUNSEL
Hayfron-Benjamin for appellant. The facts on which appellant relies are three –
that when Kobina Nketsia died, he (Nketsia) was lessee of the property; (2) that after his successor and another were granted Letters of Administration they purported to sell the property to the Company; (3) that on the 12th March, 1935 the Company, by a misrepresentation to the Government, obtained a valid transfer of the said plot by a lease from year to year from the Government.
The issues also are three- (1) did the leasehold property devolve on the family or on behalf of the family, or on the administrators? (2) could Kwesi Yentumi, and the other, pass a valid interest in the property to the Company? (Alternatively assuming that they could, was the deed of assignment by the administrators to the Company valid in law?) and (3) was the lease dated 12th March, 1935 granted by Government to the Company, valid?
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The claim does not allege fraud against the company, and we do not now allege fraudulent misrepresentation against them. We do contend, however, that the transfer is invalid. “Immovable property” is defined by the Interpretation Act, 1957, as including “land and everything attached to the earth, or permanently fastened to any thing which is attached to the earth, and all chattels real.” In this country leasehold is real estate, and an administrator could not pass the leasehold interest of the late Kobina Nketsia to the Company, though in this case the administrators purported to do so with the knowledge and consent of the family. Although Yentumi was at the time successor to deceased, there is no shred of evidence that he purported to convey as such on behalf of his family. And there had been no specific re-entry by Government. This is an action for an account, and because such an action is ambulatory the Statute of Limitations does not apply.
As to the order for costs, the quantum granted to Counsel may be reasonable, but the other costs are excessive.
Mead for the respondent Company called on to argue the question of costs only. It was necessary for the Company to search archives going back 29 years, both here and in Switzerland, in addition to much other work in this country. The sum of £100 in addition to Counsel’s fee of £150 would not be excessive.
JUDGMENT OF KORSAH C.J.
(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;
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(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
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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
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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
Appeal Dismissed.
