OSIGU v. TETTEH AND ANOTHER [1960] GLR 20

DIVISION: IN THE HIGH COURT, CAPE COAST

DATE: 20TH FEBRUARY, 1960

BEFORE: ADUMUA-BOSSMAN, J.

CASES REFERRED TO

(1) Vanderpuye & Others v. Botchway 2 W.A.L.R. 16

(2) Kwow v. Eku II 2 W.A.C.A. 180

(3) Adu v. Dapaa W.A.C.A. 7th March, 1950, unreported.

(4) Hagan & Others v. Adum & Others 5 W.A.C.A. 35.

(5) Mansah v. Ambradu & Others 7 W.A.C.A. 204.

(6) Tsetsewa v. Acquah & Another 7 W.A.C.A. 216.

(7) Acquah v. Acquah & Another 7 W.A.C.A. 222.

NATURE OF PROCEEDINGS

APPEAL from a decision of the magistrate’s court constituted by the Government Agent, Winneba allowing an appeal from the judgment of Awutu Native Court “ B “, in favour of the plaintiff, in an action for possession of land. The plaintiff appellant contended that the magistrate’s court had no jurisdiction to hear the appeal from the Native Court. The facts are set out in the headnote.

COUNSEL

Tannoh for plaintiff-appellant.

Kwaw-Swanzy (with him Koranteng Addow,) for defendant-respondent.

JUDGMENT OF ADUMUA-BOSSMAN J.

(His lordship stated the facts and continued):

In Vanderpuye and Others v. Botchway (2 W.A.L.R. 20) Lord Cohen, giving the judgment of the Judicial Committee of the Privy Council, approved firstly the dictum of Kingdon, C.J. in Kwow v. Eku II (2 W.A.C.A. 180) that: “In cases such as this the real issue between the parties must be the test and not merely the wording of the suit,” and secondly the dictum of Smith, J. in Adu v. Dapaa (unreported) that:

“It has long been the policy of appeal courts hearing appeals from native Courts to look beyond the wording of the claim as brought, and to decide the real matter in issue by a study of the whole record of the case.” Lord Cohen continued (p. 21):— “In their Lordships’ opinion therefore the decisions under the earlier Ordinance “ (the Native Administration Ordinance) “ still apply. They decided that a suit must fall into one category or the other “ (i.e. ownership of land, or else succession) “and that in order to determine into which category a particular suit falls, the court must apply the test of what is the real issue between the parties, and not look only at the wording of the plaint.”

Applying that test, what emerges from a careful study of the whole record of this case? (His lordship referred to the evidence and continued):

[p.22] of [1960] GLR 20

It is clear that the issue which arose for determination was whether on the one hand, as contended by the plaintiff, the late Kojo Ahur acquired, held and administered the property as family property (i.e. acquired it, whilst head of the family and whilst administering family properties, by using family funds; or, if he acquired it before his appointment, whether he expressly declared and added it to the family properties handed to him, holding and administering all as family properties) or, on the other hand—as contended by the defendant —it was Ahur’s self-acquired property, purchased with his own money before his appointment, and held and administered by him throughout as his individual property. Did the land belong to the family, so that it would continue to devolve as family property, or did it belong to the late Kojo Ahur himself, so that it would devolve upon his nephew? That issue was clearly one of ownership of land, not of succession. The urgent necessity for, and the great importance of, keeping clearly in mind the distinction between a suit relating to ownership of land and one relating to succession to the property of a deceased native, was first given prominence by the cases of Hagan and Others v. Adum and other and Hagan and others v. Tanuah (consolidated) (5 W.A.C.A. 35). For the purposes of this judgment it is necessary only to take note of the main point in both cases, namely, that where there is no dispute as to the original character or ownership of the property or properties the subject matter of the suit, and the dispute is as to who is entitled to control them or as to what interest either party has in them, then there is no dispute or issue as to the ownership of the property, but a dispute as to the right of succession, either to the whole or to a portion of them. The part of the judgment (read by Lord Thankerton) to which particular attention should be directed is the following (at pp. 39, 40): “The appellants submitted . . . that a writ to have the estate valued and a share declared was not within the head (f) of sector, 43 (2). These points really all turn on the proper construction of head (f). Counsel for the appellants submitted that this head only included suits as to the right to succeed, and did not include such matters as valuation of the estate, a declaration as to the amount of the share to which a successor was entitled, or the distribution of the estate. Their Lordships see no reason for such a narrow construction of the words, ‘suits and matters relating to the succession to the property’, as, in their opinion, distribution of the estate naturally comes within the meaning of these word, and valuation of the estate is necessarily incidental to ascertainment of the shares for the purpose of distribution.

See also the cases of Mansah v. Ambradu and Others (7 W.A.C.A. 204) and Tsetsewah v. Acquah and Another (7 W.A.C.A. 216) which in my opinion illustrate and bring out the distinction between the two categories of cases⎯succession and ownership—very clearly. Reference might perhaps also be made, lastly, to a third case Acquah v. Acquah and Another (7 W.A.C.A. 222) which was tried in the Native Tribunal of the Paramount Chief of Abura, within whose jurisdiction the [p.23] of [1960] GLR 20 farm, the subject matter of an alleged trespass, was situate. The Tribunal gave judgment in favour of the plaintiff, upholding his claim that the farm was his father’s self-acquired property and validly devised to him, his mother, his brothers and his sisters, and that the defendants (the heads of the family of his late father, who claimed the farm as family property) had committed trespass. The matter was taken on appeal to the court of the Provincial Commissioner, who set aside the Tribunal’s judgment, holding that the plaintiff had not sufficiently proved his father’s individual ownership. On a further appeal to the West African Court of Appeal the Provincial Commissioner’s jurisdiction was not questioned, and the appeal was dealt with on the merits. The Commissioner’s judgment was set aside, and the judgment of the trial court restored. What emerges from these cases, therefore, is this: where the original character or ownership of the property is disputed, one party maintaining that it is family property, the other that it belonged to a particular individual, then clearly the issue is ownership. Where however the original character or ownership is not disputed, and it is admitted that the property is family property (or individual property, as the case may be), the question at issue being “ who is the person now entitled to control it, or how is it to be enjoyed or shared by parties claiming interest therein ? “—then it is a succession suit.

Applying the principles which emerge from the cases above referred to, it appears beyond doubt that the matter in dispute in the instant case is the original character of ownership of the land, that is, whether it was family property acquired and administered as such by the late Kojo Ahur, or his self-acquired property. That question answered, there does not appear to be any dispute how or on whom the property should devolve, or has already devolved. For these reasons I am satisfied that the learned magistrate erred in his view that this was a succession suit, and in accordingly entertaining and determining it. His judgment is hereby set aside. This court in the exercise of powers conferred by section 50 to make such order or orders as the court below could have made, hereby remits this appeal to the Land Court, which appears to be the appellate court properly vested with jurisdiction, to hear and determine the same.

DECISION

Appeal allowed; case remitted to Land Court for hearing.