ELLIOT AND ANOTHER v. KING AND ANOTHER [1966] GLR 654

Division: HIGH COURT, CAPE COAST

Date: 13 JULY 1966

Before: LASSEY J.

NATURE OF PROCEEDINGS

ACTION by the original plaintiff, Frederick Moore, deceased, (substituted by the plaintiffs herein as executrices of the will of Frederick Moore), for the recovery of a house devised to him under a will, wherein the defendants counterclaimed for the sum of £G468 with interest thereon. The facts are fully set out in the judgment.

COUNSEL

Dr. J. W. de Graft-Johnson (with him Myles Abadoo) for the plaintiffs.

C.F. Hayfron-Benjamin for the defendants.

JUDGMENT OF LASSEY J.

In this action the original plaintiff Frederick Moore, now deceased, claimed that as the devisee under the will of Mrs. Patience Williams, deceased, dated 18 October 1935, probate whereof was granted on 27 January 1944, he was entitled to recover from the defendants who are the beneficiaries under the will of their late father Thomas Adjei king of Cape Coast, the premises and hereditaments described as house No. D.35/2, situate at Cape Coast; in addition, the original plaintiff, the late Frederick Moore, also claimed for

(a) mesne profits and (b) an injunction order against both defendants.

After pleadings had closed the following main issues were agreed and settled for trial: “(1) Whether the defendants are not trespassers and therefore accountable to the plaintiffs;

(2) Whether by virtue of the fact that Mrs. Nancy Campbell died intestate Mrs. Patience Williams was the only heiress at the date of her mother’s death, the property was not devisable by her; and

(3) Whether the late T. A. King as executor to Mrs. Patience Williams had any authority or right to give any directions as to the disposal of the property which by her will she had specifically devised to plaintiffs.”

The facts which are not seriously in dispute are stated briefly as follows: The testatrix, Mrs. Patience Williams of Cape Coast, died in 1943. She left a will, dated 18 October 1935, whereby she appointed her son, the late T.A. King, father of the present defendants, as her sole executor. Under a clause in the said will of the late Mrs. Patience Williams, she devised a two-storeyed building popularly known and referred to as “Dr. Pitts’ House,” but now numbered as D.35/2 situate on Jerusalem Street, Cape Coast, to the original plaintiff, the late Frederick Moore, who was the testatrix’s great grandson. [p.657] of [1966] GLR 654

The late T. A. King, the defendants’ father, and the sole executor under the will of the late Mrs. Patience Williams, applied to the court and obtained probate of the said will on 27 January 1944; copy of the probate together with a certified true copy of the original will is in evidence as exhibit A. The sole executor under the will of the testatrix also died on 23 March 1948, and left a will whereby he purported to leave the plaintiff’s beneficial interest in the house so devised to him absolutely under the will, exhibit A, to his children, including the present defendants. The defendants upon the demise of their father, the said T. A. King, took possession of the said house No. D.35/2, now in dispute, which had been previously devised absolutely under clause 5 of exhibit A to the original plaintiff, Frederick Moore, now deceased, and have remained in possession and occupation thereof up to the present time. The defendants and a number of other members of their family are beneficiaries under various clauses in the same will, exhibit A, of the late Mrs. Patience Williams, and have been and still are in unfettered exclusive enjoyment of the properties so devised to them as the beneficiaries. The defendants have refused and still refuse to deliver up possession of the said house in dispute to the plaintiff or his successors or executrices, who are the present plaintiffs herein. Their reasons for so remaining in possession of the said house or failing to deliver up possession to the late Frederick Moore or his successors or agents are:

(a) That the house referred to as D.35/2 Cape Coast, was not the self-acquired property of the testatrix, it being the family property of the testatrix’s family and that she had no disposable interest in it;

(b) That the original plaintiff, the late Frederick Moore, the sole devisee of the said house under the will, exhibit A, was an infirm or invalid person incapable of managing the said house;

(c) That under clause 5 of the will of the late Mrs. Patience Williams whereby the late Frederick Moore, the original plaintiff, became a devisee of the said house now in dispute, there is a qualifying direction to the effect that if the devisee under the said will, that is, the late Frederick Moore, the original plaintiff herein, should die before the testatrix, then the said house No. 1 Jerusalem Street, Cape Coast, now numbered as D.35/2, Cape Coast, should go to the devisee’s mother Freda Williams, Mrs. Yalley, the second defendant herein, and Mrs. Johnson, and their issues and to be used by them as their dwelling-house.

Apart from these grounds which the defendants contend entitle them not to deliver up possession of the said house to the late

[p.658] of [1966] GLR 654

Frederick Moore, it has also been contended on behalf of the defendants by their counsel that the original plaintiff, the late Frederick Moore, was not entitled to sue the defendants herein as beneficiaries under the will of their late father who was the sole executor under the will exhibit A, and that the proper person to be sued must be either the sole executor under the will exhibit A, that is, the late T. A. King or his executor or administrator; furthermore, counsel for the defendants has submitted that the plaintiff’s action is misconceived because the present plaintiffs herein have no valid title to the property, the subject-matter of the dispute of this suit, as there has never been any assent or a conveyance to the original plaintiff as a devisee under the said will exhibit A.

It is not seriously disputed by all sides both on the pleadings and the evidence that the house No. 1 Jerusalem Street, Cape Coast, now known as D.35/2, Cape Coast, was the self-acquired property of the late Mrs. Nancy Campbell who had died intestate whilst domiciled at Cape Coast; it is also not disputed that the other real properties devised under clauses 2, 3 and 6 of the will exhibit A, some of which real properties are in the exclusive enjoyment and possession of the defendants as the beneficiaries under the will, exhibit A, were also the self-acquired properties of the late Mrs. Nancy Campbell who had died intestate. It is also clear from the pleadings and on the evidence that the original plaintiff, the late Frederick Moore, and the defendants as well as the present plaintiffs who have been substituted for the late Frederick Moore, are blood relations of the late Mrs. Nancy Campbell, the original owner of the disputed property.

The late Mrs. Nancy Campbell said to have been a West Indian came from Abeokota in Nigeria and finally settled in Cape Coast until the time of her death in about 1903; at the time of her death she left behind only one surviving daughter, namely, the late Mrs. Patience Williams, the testatrix herein; after the death of Mrs. Nancy Campbell, her sole daughter, the testatrix, inherited as the sole heiress all her mother’s properties, including the house now in dispute, which she enjoyed exclusively as the absolute owner thereof without any interference or protest from any member of her late mother’s family or household.

In the year 1935, Mrs. Patience Williams, the sole daughter and heiress to her late mother, willed the house in dispute to the late Frederick Moore, the original plaintiff; under various clauses in her said will, the late Mrs. Patience Williams also devised other landed properties which she inherited from her late mother Mrs. Nancy Campbell, to other members of the family, including the defendants herein. [p.659] of [1966] GLR 654

At the time of her death in the year 1943, she left two surviving sons, the late T. A. King, father of the present defendants, and the sole executor under his mother’s will exhibit A, and his late brother George Herbert Williams, also deceased. The late Mrs. Patience Williams, the testatrix, also had three daughters all of whom pre-deceased her; the late Frederick Moore was the great grandson of the late Mrs. Patience Williams, the testatrix herein.

The plaintiff’s case is that at the time of his great-grandmother’s death in 1943, he had enlisted for service in the Armed Forces and was stationed outside Cape Coast; on his discharge from the Army, he returned home where he came to know for the first time that the house now in dispute had been devised to him under the will of his late great-grandmother, Mrs. Patience Williams; he said his own mother who was then alive told him about it, and this information was confirmed by other members of the family. He led evidence to the effect that after the death of the testatrix, her last will, exhibit A, was read out to the members of her family, including the present defendants, and subsequently, the sole executor under the said will, the late T. A. King, the defendants’ father, applied for and obtained a grant of probate in respect of the said will of the late Mrs. Williams on 27 October 1944, and continued to administer all the properties mentioned in the said will, including the house now in dispute, until it came into the possession of his own children, the present defendants, after the death of Mr. T. A. King, the sole executor under the will exhibit A.

The late Frederick Moore stated that upon hearing of the devise to him of the house in dispute he contacted the late Mrs. Patience Williams’ family lawyer, Mr. Myles Abadoo, senior counsel for the plaintiffs in this suit, and requested him to take steps to recover possession of the said house. In consequence, Mr. Myles Abadoo summoned the two defendants and their sister Mrs. Sarah Johnson to his office in Cape Coast where he advised them to release the house in dispute to the original plaintiff, the late Frederick Moore, but they refused and still refuse for the reasons I have already mentioned. The late Frederick Moore told me that the defendants’ continued occupation of the said house prompted him to institute the present action against them for the recovery of the house so devised to him by his late great-grandmother Mrs. Patience Williams.

The plaintiff Frederick Moore himself gave evidence before me at the start of the hearing of this case but died unexpectedly during the adjournment. I must confess that when he appeared in court he looked a sick person, an invalid who had been undernourished and starved for quite a long time. His sudden death in the course of the trial was no surprise to me, as I had had the feeling all the time, [p.660] of [1966] GLR 654 judging by his very poor health, that death might take him away at any time. His condition in life prior to his death was a sad one. He was a man who had fallen on very serious adverse circumstances in life and had been neglected by the defendants and their sister. The defendants and the first defendants’ witness would want me to believe that they tried to relieve him of his difficulties in life by generously providing him with food, clothing and pocket money; but the late Frederick Moore told me that that was not correct; he stated that had he been allowed to collect the rents accruing from the premises devised to him under the will exhibit A, his condition in life would have improved beyond what had hitherto been the case with him; but the defendants would never let him enjoy the rents in his own right. This is the sad background against which the defendants sought to defend the plaintiff’s claim in this action. After the death of the original plaintiff Mr. Frederick Moore on 17 February 1965, in the course of the trial, upon hearing Mr. Myles Abadoo (with him Dr. de Graft-Johnson) counsel for and on behalf of Mrs. Elliot and Mrs. Zenobia Freeman, in support of an application filed on 8 June 1965, for substitution as the plaintiffs in the place of the late Frederick Moore, and after hearing Mr. Charles Hayfron-Benjamin, counsel for and on behalf of the defendants herein, who raised no objection to the application for the substitution, I accordingly made an order substituting the said Mrs. Mercy Elliot and Mrs. Zenobia Freeman both of Cape Coast as the plaintiffs in place and stead of Frederick Moore of Cape Coast, the above-named plaintiff, deceased. Probate of the will of the late Frederick Moore, the original plaintiff herein, dated 27 October 1964, was granted to his now executrices, the present plaintiffs, on 7 June 1965. The important question which I consider I have to decide is whether or not the devises made under the will of Mrs. Patience Williams are valid and took effect upon her death, and if so, whether or not the defendants are justified in retaining control over or possession of the said house which is in dispute. In trying to resolve this important problem, it is essential to bear in mind that at the date when the will was made, and when the testatrix died, she was in exclusive possession and enjoyment of all the properties mentioned and devised to the beneficiaries under the various clauses in the said will exhibit A. It is however, conceded, and in my view very rightly, that as the deceased died domiciled in Cape Coast in Fante land, and as the property in dispute is situate in Cape Coast the lex situs, namely, Fante customary law, is the proper law applicable in determining all matters of succession if it is established that the testatrix had no disposable interest or estate in the said property which she could have willed under exhibit A to the late Frederick

[p.661] of [1966] GLR 654

Moore; Mr. Hayfron-Benjamin, counsel for the defendants, produced exhibit 1, which is a ruling by this court in an earlier suit entitled Nancy alias Campbell v. King, unreported, in which it was held that the late Mrs. Campbell had acquired a domicile of choice here and that succession to her estate was governed by customary law, in this case, Fante customary law.

On the question of domicile and the proper law applicable to the estate of the late Mrs. Campbell, in the event of her dying intestate, as I said earlier in this judgment, no difficulty arises because of the agreement of counsel that according to the ruling in exhibit 1, she died domiciled in Cape Coast in the then Gold Coast. Apart from that, I am satisfied by the evidence of the parties and their witnesses and I hold that the late Mrs. Nancy Campbell, being either a native of the West Indies or Nigeria where she eventually came from and settled in Cape Coast, was a person subject to the customary law of the then Gold Coast (now Ghana); she had lived the greater part of her life and died in Cape Coast in Ghana; she acquired and owned several real properties in and around Cape Coast and married and had issues in Cape Coast. I am satisfied that at the date of her death in Cape Coast and from the surrounding circumstances of her life in Cape Coast she had no intention of returning to her place or domicile of origin which I find on the evidence she had lost and she acquired a domicile of choice in the then Gold Coast (now Ghana). Section 66 (3) (a) of the Courts Act, 1960,1 provides that:

“the rules of the common law relating to private international law shall apply in any proceedings in which an issue concerning the application of law prevailing in any country outside Ghana is raised.” According to the universal principle of private international law the law applicable to succession to real property is the law of the country where the property is situate, namely, the lex situs, and not the lex domicilii. It follows therefore that if it is established that the property in question is a family property and that the late Mrs. Patience Williams had no disposable interest in it which she could give away under her will, then, according to the law applicable in Ghana upon a person’s death intestate succession to his or her real or personal properties can be claimed only by those who are recognised as heirs according to the custom of the place in Ghana where the property is situated. In the instant case, as the late Mrs. Nancy Campbell lived among the Fante community, a matrilineal [p.662] of [1966] GLR 654 society, and died there possessed of real estate, including the house now in dispute, succession to her estate would therefore be governed by Fante customary law.

Counsel for the defendants relying on this principle of the law, has suggested that in view of the fact that the house in dispute has the character of a family property the will exhibit A was ineffective in so far as it purported to vest title in the devisee, and that in such a case an intestacy should be set up in which case the disputed property would descend to the family of the late Mrs. Nancy Campbell. No evidence has been led to indicate who are the members of the late Mrs. Patience Williams’ family who should succeed to the property according to customary law.

But Mr. Hayfron-Benjamin has cited to me the case of Davies v. Randall2 and contended that according to the principle of the decision in that case, the property in dispute became family property and that the defendants and other descendants through the late Mrs. Nancy Campbell, including all members of her household, constitute the family which is entitled to succeed to the property in dispute. He therefore concluded that the devise of the house to the late Frederick Moore was invalid.

Notwithstanding the undoubted fact that the late Mrs. Nancy Campbell was the original owner of the property in dispute, her only daughter the late Mrs. Patience Williams inherited it absolutely after her death. In this situation where there is some uncertainty as regards the nature or character of the property in dispute left behind by the late Mrs. Nancy Campbell, and where the evidence indicates clearly that in her lifetime the late Mrs. Patience Williams the testatrix herein, was in exclusive possession as owner without exercise of any right of control by or on behalf of her late mother’s family, all that the court is bound to do is to accept the accomplished fact that she was the sole absolute owner in her own right at the time of her death, whatever may have been the character or nature of the said disputed property at the time of the death of her mother Mrs. Nancy Campbell. I do not think that I should disturb a de facto situation of her exclusive ownership of the property which had existed throughout the whole of her lifetime without any clear and positive evidence of the family’s right over the said house. Upon the death of her mother, Mrs. Nancy Campbell, according to the evidence, Mrs. Patience Williams became the sole heiress as the only surviving daughter of her mother and therefore inherited all her late mother’s properties absolutely as there were no other members of her late mother’s family in existence who could have

[p.663] of [1966] GLR 654 had any joint interest in those properties with her. From the evidence before me, I am not prepared to hold that just because the property in dispute was the self-acquired property of Mrs. Nancy Campbell in her lifetime upon her death intestate, in the absence of any clear evidence as to who were her successors according to custom for the purpose of succeeding to her estate, her sole surviving daughter in whom the property became vested cannot be treated in law as the absolute owner thereof which she could will away. To hold that because the property became the family property of her late mother, and that in the absence of any other successors according to custom than herself, she could not alienate the said property in her lifetime would amount in my view, to over-stretching and stultifying the whole object of the customary law. As stated by Granville Sharp J.A. in Sasraku v. David3:

“I would find it impossible to uphold the principle … that no volutionary change in native customary law since 1874 can be recognised in these Courts, and that only those elements of that law which subsisted before the date mentioned can be administered by the Judges in Ghana.”

There being no successors or heirs in accordance with customary law upon whom the disputed real property vested at the death of the original owner, all her properties both real and personal became vested in her only surviving daughter and sole heiress, the late Mrs. Patience Williams.

It is abundantly clear, however, from the evidence that during the lifetime of the late Mrs. Patience Williams she was acknowledged by the defendants’ late father T. A. King as the only daughter and the late Mrs. Patience Williams’ right of ownership over her mother’s properties as the absolute owner thereof had been acknowledged by the late T. A. King and his children, the defendants herein, and I hold that it was for that reason when the will was read after the death of Mrs. Patience Williams that no protest was registered by any member of the defendants’ family that she had no disposable interest in the disputed property.

I believe and find as a fact that the late Mrs. Patience Williams, the testatrix herein, was the absolute owner in her own right of the property in dispute as it was gifted to her by her late mother Mrs. Nancy Campbell. I am fortified in my conclusion on this aspect of the case by the averment of this point contained in the statement of defence on behalf of the defendants and also by the admission of the first defendant in cross-examination. In paragraphs (2), (3) [p.664] of [1966] GLR 654 and (4) of the statement of defence delivered on behalf of the defendants on 27 April 1963, it was therein pleaded as follows:

“(2) The defendants in answer to paragraph (2) of the statement of claim deny flatly the allegation contained, and further aver that the property subject-matter of dispute originally belonged to Mrs. Nancy Campbell, late of Cape Coast (deceased) as her self-acquired property.

(3) On the demise of the said Mrs. Nancy Campbell, the said property devolved by gift upon her grand-daughter Mrs. Sarah Johnson who for a considerable number of years occupied the said property as the owner thereof.

(4) On the death of Mrs. Sarah Johnson aforesaid, without issue, the property devolved on her mother the said Madam Patience Williams as family property.”

It is patently clear that these facts pleaded by or on behalf of the defendants are entirely inconsistent with the facts later averred in the amended statement of defence and the evidence led in support thereof. By an amended statement of defence filed on 18 October 1965, the defendants sought leave of the court to delete paragraph (3) of their original statement of defence, and substituted in place thereof the following: “(3) On the demise of the said Nancy Campbell her granddaughter Mrs. Sarah Johnson acted as the caretaker of the property for the family of Mrs. Nancy Campbell aforesaid.”

This fact, though utterly at variance with the allegation of gift pleaded earlier, was not proved by the evidence.

Apart from this point, I am further satisfied that the admission on the evidence by the first defendant in cross-examination established clearly the legal right on the part of the testatrix to regard herself as the absolute owner with power to will the property in dispute to her great-grandson, the late Frederick Moore. In his evidence the first defendant deposed as follows:

“All the self-acquired properties of the late Nancy Campbell were bequeathed by her to her only child the late Mrs. Patience Williams. Of those properties which the late Nancy Campbell owned in her lifetime and which she bequeathed to her only child the late Mrs. Patience Williams the house now in dispute and described as No. D.35/2, Jerusalem Street, Cape Coast, is one of them.”

It is clear from this evidence that the house in dispute together with the other landed properties which Mrs. Patience Williams gave

[p.665] of [1966] GLR 654 away in her will exhibit A were gifted to her by her late mother Mrs. Nancy Campbell. I believe it is for this reason that the defendants, who are also beneficiaries under the same will exhibit A, have been and are still in a quiet and unfettered exclusive enjoyment of their properties gifted to them under the said instrument. It is also admitted in the evidence of the second defendant that the validity of the will exhibit A had previously been pronounced upon by a court of competent jurisdiction in this country when the effect of clause 2 under the said will exhibit A became a matter of dispute between the late H. G. Williams and the late T. A. King, father of the defendants herein.

One other fact which stands out very predominantly is that when probate of the said will, exhibit A, was obtained by the sole executor therein-mentioned, namely, the late T. A. King, the defendants’ father on 9 July 1944, neither the executor himself nor his children, the defendants herein, raised any protest against the grant of probate on the ground that the properties therein mentioned were the family properties of the late Mrs. Nancy Campbell which the late Mrs. Patience Williams also succeeded to according to custom, the former having died intestate, and therefore the devises therein were invalid. No evidence has been led by or on behalf of the defendants who now claim that the disputed property is family property to show that after it became known to them or their late father some time after probate had been obtained on 9 July 1944, the so-called family of the late Mrs. Nancy Campbell acting by the head or other principal members took any step to recover all the properties devised to the various beneficiaries under the will exhibit A because they were family properties. In my opinion it is rather too late in 1965 to lay such a claim so as to defeat the purpose of the will. The defendants are estopped by their conduct from alleging today that the house which had been devised to the late Frederick Moore under the will of the late Mrs. Patience Williams is family property, and therefore the devise or gift is incapable of taking effect. But the matter does not end there. Expressly stated in her said will exhibit A, the deceased also devised other real properties said to be family properties of the late Nancy Campbell to the defendants who have since the grant of probate or after the death of their late father Mr. T. A. King, been in exclusive enjoyment thereof without reference to other members of the so-called family of the late Mrs. Nancy Campbell. It is in evidence before me that the defendants and the defendants’ first witness who are beneficiaries under the will of their late father, T. A. King, who was the sole executor under the will exhibit A, are in exclusive occupation of the real properties alleged to be family properties of the late Nancy Campbell which

[p.666] of [1966] GLR 654 said properties are situate in Cape Coast and were also devised to the defendants’ late father T. A. King; this property is mentioned in clause 2 of the will exhibit A and is described as No. 17, Jerusalem Street, Cape Coast. This property was willed by the late T. A. King to his children, the defendants herein who collect the rents accruing therefrom for their exclusive enjoyment. Furthermore, clause 6 of the will exhibit A reads as follows: “I give and bequeath to my grandson Kwamina Babatunde King and his sisters Mrs. Yalley and Mrs. Johnson and their issues my house situate at Commercial Street known as No. 3 Commercial Square for their separate use for ever.”

“The Mrs. Yalley” and “Mrs. Johnson” referred to in the said clause of the will under which the late Frederick Moore also benefited by reason of the devise to him under clause 5 are the second defendant herein and her sister the defendants’ first witness. It is clear from this that in these proceedings while the defendants and their sister are enjoying the full benefits of the properties devised to them under the will of the late Mrs. Patience Williams, they seek to deprive another beneficiary under the same will of the enjoyment of his devise. This position is inequitable, unfair and untenable.

In the case of In re Dicey (decd.); Julian v. Dicey,4 the principle of which I think should be applicable to the circumstances of this case, a testatrix by clause 4 of her will made in 1950, devised to the plaintiff, her grandson, “my two freehold houses in Berestford Road . . .” By clause 5 she gave the defendant, her son, another freehold house, and also her real and personal residuary estate. The testatrix had no disposable interest in the two freehold houses in Berestford Road, which she merely occupied as a life tenant under a deed of family arrangement made in 1939, by which the defendant became on her death entitled to a half share of the beneficial interest in the houses, and the plaintiff and his brother to a quarter share each. The plaintiff claimed that the defendant must elect either in favour of the will, and give effect to the devise to him (the plaintiff) so far as he could or against the will, and compensate the plaintiff to the extent of his (the defendant’s) interest under the will in respect of the plaintiff not recovering the defendant’s share of the two houses. The defendant contended that the doctrine of election did not apply on the ground, inter alia, that he himself could not give effect to the devise, since a quarter share belonged to the plaintiff’s brother. It was held, however, that the doctrine of election was applicable, and the defendant must, within a reasonable time, elect either for or against the will.

[p.667] of [1966] GLR 654

That being the case, if the view is taken that all the real properties which the late Mrs. Patience Williams attempted to dispose of by clauses 2, 5 and 6 of her will were said to be the self-acquired properties of the testatrix’s mother who died intestate while possessed of them and to which her sole daughter, the late Mrs. Patience Williams had succeeded according to Fante custom, and therefore was in possession thereof as family property jointly with other members of the family, then it follows that as the defendants took the said family properties devised to them under clause 6 of the said will, properties over which according to them, the late Mrs. Patience Williams had no disposing interest or power, they had to elect for or against the will. The evidence having shown that they elected for the will and gave effect to the devise to them under clause 6 of the will, they cannot be heard to contend that the specific devise under clause 5 is revocable on the ground that it is family property.

Even if the correct view is that the house in dispute is family property, as the defendants contend, and therefore the late Mrs. Patience Williams had no disposable power over it, the question posed for a satisfactory answer is this: Who are the successors according to custom who according to the matrilineal line of descent of the late Mrs. Nancy Campbell are entitled to succeed to her estate upon her death intestate? Mr. Hayfron-Benjamin’s reply is that even if the direct lineal descendants of the late Mrs. Nancy Campbell are not ascertainable, there is evidence that her children the late T. A. King, his brother and sister and her grand children including the late Frederick Moore who was her great-great grandson, together with all the members of her household, constitute the proper successors according to the principle of the decision in Davies v. Randall5 referred to earlier in the judgment. In such a case the defendants herein as well as the late Frederick Moore all of whom benefited under the will of the late Mrs. Patience Williams would have joint life interests in all the family properties, including the house in dispute, which allegedly were the self-acquired properties of the late Mrs. Nancy Campbell and to which the testatrix had succeeded according to native custom. In this connection, I think it would still be wrong and contrary to well-recognised principles of native custom that whereas the defendants retain and enjoy their share of portions of the alleged family properties devised to them specifically under the same will, they should be permitted to deprive the late Frederick Moore, also a devisee under a separate clause of the same will, of his gift. In my view, it would be most inequitable to hold that the defendants can hold onto the estate

[p.668] of [1966] GLR 654 devised to them under the will as what they enjoy as beneficiaries under the will, and at the same time set at nought other similar valid devises to other beneficiaries.

In that state of things, the testatrix not owning all the properties devised to the various beneficiaries under clauses 2, 5 and 6 of the will exhibit A, and having no disposing power over them because they are deemed to be family properties in which all members of her family household including the defendants herein and the original plaintiff the late Frederick Moore have joint interests, her attempt to dispose of the said family properties by her will clearly would raise a case of election against any person who, taking under her will, might be found to have an interest in other properties under the same will. The defendants cannot be allowed both in equity and according to customary law to approbate and reprobate more or less, and if they approbate by taking advantage of the will, they must do all in their power to give effect to the instrument under which they benefit, and do nothing to disturb other devises under the same instrument which the testatrix had made. It is for this reason also that I find myself unable to concur with the contention of counsel for the defendants that the gift under the will of the disputed house is ineffective and therefore the plaintiff’s action is not maintainable.

If, however, I am wrong in holding that the property in dispute in this action is not family property, I am of the clear opinion that on the particular facts this is a case in which the court ought not to allow the defendants to take advantage of the benefit of the customary law while at the same time seek to enjoy exclusively the benefits of the law applicable to the taking of a devise under a will, the validity of which is governed according to principles of English law. In taking this view of the matter before me I bear in mind the principle of the law that when the court has before it a matter which is purely “native or custom” or where all the circumstances to be taken into account are connected with native life, habit or custom, then undoubtedly, customary law should apply. Where on the other hand, the matter before the court contains elements foreign to native way of life and custom or habit, the court is not bound to observe or enforce strictly native rights or custom. In the latter situation the court shall be governed by the principles of justice, equity and good conscience in resolving the matter in controversy when the nature of the dispute is such that strict adherence to the rules of customary law would result in a manifest injustice, as in the present case.

The justice of this case, in my view, reveals that the defendants ought not to be permitted to take advantage of the customary position

[p.669] of [1966] GLR 654 that the property in dispute may possess the character of family property and therefore is incapable of being willed to the devisee in exhibit A.

I now deal with two other feeble reasons given by the defendants for refusing to deliver up possession of the disputed house to the devisee under clause 5 of the will, exhibit A. The first is that there is a qualification of the nature of the estate devised to the late Frederick Moore with the result that he did not have any absolute interest in the said devised property. Clause 5 under which the late Frederick Moore benefited reads as follows:

“I give and bequeath to my great grandson Frederick Moore my house situate at Jerusalem Street known as No. 1 Jerusalem Street, Cape Coast, for his own use and benefit forever, and if he should die before me then the said house No. 1 Jerusalem Street, Cape Coast, shall go to his mother Freda Williams, Mrs. Yalley and Mrs. Johnson and their issues and to be used by them as their dwelling place.”

The unchallenged evidence is that Frederick Moore survived the testatrix who predeceased him on 21 March 1943. The beneficiary Frederick Moore who took absolutely under the said clause of the will died on 17 February 1965, long after the said property had vested in him immediately upon the death of the testatrix. The purported gift over in the event of the beneficiary predeceasing the testatrix did not take effect. It lapsed entirely. He took absolutely.

An equally unreasonable ground alleged by the defendants for objecting to release the disputed property to the late Frederick Moore is that the devisee was incapable of managing his own personal affairs and therefore it was not proper to permit him to have absolute control or management of his own bona fide property. There is no suggestion by the defendants that prior to his death and at all material times in his life when he requested them to deliver up possession of the premises in dispute to him, the late Frederick Moore was of unsound mind and suffered some physical and mental incapability or that he had been certified as such, or that they, the defendants, had been appointed his guardian ad litem to manage his affairs. This sham excuse by the defendants for their persistent refusal to let the late Frederick Moore enjoy the rents from the disputed properties is to me iniquitous, wicked and unreasonable. In my view, it is not a legitimate ground for objecting to deliver up possession of the house. The property became the absolute property of the late Frederick Moore alone and he alone could decide what to do with it. It was no business of the defendants motivated, as they said, by their so-called feelings of love and affection, to interfere

[p.670] of [1966] GLR 654 with the said property. In my opinion, the moment the said property came into their possession under the will of their late father after the latter’s death they became from that date, trespassers and are answerable parties to the owner for their dealings with the said estate from the time they took over possession. Counsel for the defendants has further endeavoured to convince me that even if the devise of the house in dispute under the relevant clause of the will exhibit A was valid and took effect, still the plaintiff ‘s action in its present form is not maintainable because no formal deed of conveyance or assignment had been executed by the executor trustee of the will to the late Frederick Moore, the original plaintiff herein. Mr. Hayfron-Benjamin has contended that the property now in dispute had vested in the late T. A. King as the trustee and that the assent of the trustee had not been given, and therefore the late Frederick Moore or the present plaintiffs who have stepped into his shoes upon his demise have no status to sue in their present capacity.

In reply Dr. de Graft-Johnson relying on the old case of France v. Quartey,6 has submitted that the Land Transfer Act, 1897,7 which is applicable in Britain does not apply in this country, and therefore the devised property vested in the devisee after probate of the will under which he benefited had been granted.

Counsel for the defendants cited no authority to me in support of his contention that the plaintiff could not bring this action in its present form. It is clear to me from the plain terms of the will that the defendants’ father, the late T. A. King, was an executor and trustee of the will, exhibit A, only and not a trustee of the specific devise under clause 5 of the said will for the beneficiary therein mentioned. By clause 5 Frederick Moore took the devised property in perpetuity, and upon the death of the testatrix on 21 March 1943, the devised property vested in the late Frederick Moore as the absolute owner thereof because the executor appointed under the will was not made a trustee of the house for him.

I am in agreement with the view taken by counsel for the plaintiff’s that the Land Transfer Act, 1897, upon which counsel for the defendants probably seems to rely for his contention has no force in Ghana and is therefore not applicable to the facts of this case. According to our law the will is regarded as a conveyance of the property, and the will took effect from the death of the testator or testatrix to vest the property in the devisee. This being the case, then unless the real property described in clause 5 was specifically

[p.671] of [1966] GLR 654 devised to the late T. A. King as a trustee in trust for the late Frederick Moore, the fact that the executor under the will was also called trustee would not change the position, unless the house had been so devised to the executor trustee as aforesaid. I am therefore bound to rule that the plaintiff ‘s writ of summons in its present form discloses a good cause of action and is proper in law.

Another point raised by counsel in further effort to save the defendants from liability for what I consider an unwarrantable interference with the disputed property is that the plaintiffs are estopped by laches from claiming the house in dispute. This contention in my view is another futile attempt to save an otherwise hopeless situation and to set at nought an otherwise effective clause under a valid will. The evidence is abundantly clear that the testatrix who made the will, exhibit A, probate of which was granted on 27 January 1944, died on 21 March 1943; as I have already pointed out,, the property vested in the devisee immediately upon the death of the testatrix on 21 March 1943; this was the period of the last war and it is admitted on all sides that the late Frederick Moore was, by the time of the devise to him under the will of his great grandmother, the late Mrs. Patience Williams, enlisted in the Armed Forces and stationed outside his home town, Cape Coast. The evidence is certain that he was not in Cape Coast when the testatrix died and when probate of her will was granted on 27 January 1944. On his discharge from the Army he returned home and was told for the first time about the devise to him of the house in dispute by his late grandmother Mrs. Freda Williams.

The late Frederick Moore in his evidence said immediately he heard that the testatrix had gifted the house in dispute to him under her will he took steps to recover the said house from the defendants late father T. A. King and later from the defendants and their sisters, but without success. He stated that after several and repeated demands to hand over the same to him by the defendants had passed by unheeded, he finally appealed to the family’s solicitor and legal adviser Mr. Myles Abadoo to intercede on his behalf and to persuade the defendants to let him have access to the house. In accordance with this request Mr. Myles Abadoo, who is also the senior counsel for the plaintiffs in this action and on whose advice, I am informed, this action was instituted, called upon the defendants and their sister, the defendants’ first witness, who were in possession of the house and enjoying exclusively the rents accruing therefrom, to give up possession of the said house to the late Frederick Moore according to the wishes of the testatrix as expressed in her last will, but his advice also went unheeded as the defendants would [p.672] of [1966] GLR 654 not yield or agree to let the late Frederick Moore have possession of the disputed house. The late Frederick Moore said he was in financial straits at that time, and so could not find the necessary fee to pay for the writ of summons until the present plaintiffs, who had been providing him with food and clothing, came to his aid, hence this action. In these circumstances, I fail to see how it can be said that the late Frederick Moore or his present successor have slept over their rights and are therefore estopped by laches from instituting this action against the defendants. The convincing evidence which I accept as true and satisfactory is that the late Frederick Moore acted timeously in seeking to recover his just and legitimate property whilst his difficulties due to lack of funds were aggravated by the wilful and persistent refusal by the defendants to meet his request. By section 6 of the Real Property Limitation Act, 1833,8 which is a statute of general application in force in England on 24 July 1874, and therefore applicable under our laws, where an administrator or executor claims, the time runs from the date of the deceased’s death, and the same limitation applies to the plaintiff who has sued in respect of the estate of the deceased, as in the present case. Mrs. Patience Williams, the testatrix, died on 21 March 1943, and this suit was instituted on 25 February 1963; and therefore the period of 20 years limitation under the statute which would operate to bar the plaintiffs from suing in respect of the deceased’s estate has not run out. I have taken some time to consider the facts in this case and also the various submissions of counsel for the defendants touching upon the several matters raised against the institution of this action, but I am fully satisfied having regard to all the circumstances and the evidence led that the plaintiffs have established a clear case against the defendants. I find that the house in dispute described in the will exhibit A, as “number one Jerusalem Street, Cape Coast; now numbered in these proceedings as D.35/2, Cape Coast,” was at the date the will exhibit A was executed, the absolute property of the testatrix and that she was in exclusive possession of it as owner and had a disposing power over it. I believe the evidence of the second defendant that the said house now in dispute, and the other real properties were the properties of the Mrs. Nancy Campbell, and that she gave them to her only daughter, the testatrix, absolutely, and that as absolute owner of the house in dispute the late Mrs. Patience Williams could validly devise it to her late grandson, Frederick Moore, the original plaintiff in this action. Consequently, I find that the devise of the said house now in dispute under clause

[p.673] of [1966] GLR 654

5 of the will, exhibit A, was valid and passed title in the said house to the late Frederick Moore immediately upon the death of the testatrix on 21 March 1943. I find also that as from that date, namely, 21 March 1943, the devisee, the late Frederick Moore, became the lawful owner of the said house. In my view the evidence fails to convince me that the house in dispute is family property over which the late Mrs. Patience Williams had no disposing power.

For my part I must confess I do not clearly understand the legal basis for the defendants’ counterclaim against the plaintiffs in this action. Both in paragraphs (11) and (12) of their original statement of defence delivered on 27 April 1963, and also in their notice of counterclaim filed on 11 June 1964, the defendants plead that they are entitled to recover from the plaintiffs the sum of £G468 with interest thereon at the rate of fifteen per cent as from 1945 or thereabouts up to the date of judgment being the mortgage debt paid off by the defendants’ father the late T. A. King to the mortgagees Messrs. J. F. Sick & Co. of Cape Coast in respect of a mortgage transaction effected in respect of the premises now in dispute between the defendants’ late uncle one Herbert George King, brother to the late T. A. King, the defendants’ father, as mortgagor and Messrs. J. F. Sick & Co. as mortgagees.

The truth about this matter as revealed by the evidence led is that some time in the year 1945 when the disputed property which belonged to the late Frederick Moore was still in the unlawful possession of the defendants’ father, the late T. A. King, by virtue of his being the sole executor under the will of the late Mrs. Patience Williams, permitted his brother H. G. King, now deceased, to mortgage the said property to Messrs. J. F. Sick & Co. for some amount of money. For some reasons not really disclosed on the evidence the late H. G. King, brother to T. A. King, the defendants’ father, must have defaulted in paying off the mortgage debt and failed to redeem the disputed property. Subsequently, the late T. A. King himself redeemed the said disputed property by paying off the mortgage debt of £G468. Honestly, I fail to see how any liability arising from the mortgage debt could be said to have attached either to the late Frederick Moore personally or to the disputed property if it came into his hands as the lawful owner thereof. Firstly, the alleged mortgage incumbrance did not attach to the property at the death of the testatrix and therefore the plaintiffs could not have been liable for any such debt; secondly, it is clearly established on the evidence I have received that the late Frederick Moore was never allowed to assume ownership or go into possession of the disputed house which still remained in the unlawful occupation of the defendants’ father, the late T. A. King in 1945, the date it [p.674] of [1966] GLR 654 is alleged the mortgage transaction was effected in relation to the said premises. The late Frederick Moore was not consulted, and was never a concurring or consenting party to any such mortgage transaction affecting the said property.

The inference I am forced to draw from this plea put forward in the defendants’ counterclaim is that by seeking to recover the amount claimed in the counterclaim from the plaintiffs by their conduct, they acknowledged the late Frederick Moore’s right of ownership over the disputed house. If it is their case that when the disputed property was redeemed from the mortgaged transaction it was done so for and on behalf of the family said to be the owner thereof it is curious why they should wish to recover the said mortgage debt from one whose ownership or right to possess the said property they have throughout denied or disputed. Their conduct justifies me further in holding that this property was at the time it was devised under clause 5 of the will, exhibit A, the absolute property of the late Mrs. Patience Williams, and not the family’s property. This counterclaim is misconceived and must fail and there must be judgment in favour of the plaintiffs dismissing it.

The plaintiffs are asking for an account of all rents and profits, if any, which the defendants have derived from the house in dispute and which they admit has been let out to tenants. They claim this as mesne profits. But as the evidence led shows that the plaintiff’s wish the defendants to account for their dealings with the disputed property since it came into their possession or enjoyment, or in the hands of any other person or persons who intermeddled with the said property by their order, they ought to have asked for an order for strict accounts to be taken on the ground of wilful default, and led evidence to show that the accounting parties, who in this case would be the defendants, have received more than they are prepared to admit by the accounts; in other words, the plaintiffs must give notice to surcharge to the accounting parties, stating the amount sought to be charged against them, and upon clear proof of omission or insertion of proper items of benefits derived from the use of the disputed property through mistake or deliberate fraud, the court is bound to give them liberty to surcharge and falsify.

However, as this relief has not been prayed for, I must proceed to do my best as to what amount of mesne profits the plaintiffs are entitled to receive from the defendants herein. There is ample evidence which I accept in finding that by their continued retention or occupation of the property in dispute and interfering with it by renting it and exclusively enjoying the rents therefrom without the authority or permission of either the original plaintiff himself, the late Frederick Moore, or his successors, the present plaintiffs, they [p.675] of [1966] GLR 654 are trespassers in respect of the said property and are liable to pay mesne profits from the time the said property came into their joint possession. Strictly speaking, according to the devise under the will exhibit A, the property in dispute vested in the devisee immediately upon the death of the testatrix on or about 21 March 1943, and from that date any one who unlawfully dealt or intermeddled with it without the permission of the lawful owner would be liable to account to the true owner of all his dealings with the said estate.

At any rate the evidence is clear that after probate of the said will, exhibit A, was granted to the sole-executor, the late T. A. King, the defendants’ father, on or about 24 February 1944, proceeded to distribute the various devises and bequests under the said will, and accordingly became possessed of the disputed property from the date probate was granted to him. There is no direct or clear evidence as to what he did with the said property during the whole of his lifetime. But it is admitted that he willed the house in dispute to his own children order his last will, probate of which was also obtained on 9 July 1949. One thing that is certain on the evidence led is that in the lifetime of the defendants’ father, T. A. King, his brother Herbert George King, also now deceased, mortgaged the said disputed property belonging to the devisee under the will, exhibit A, to Messrs. J. F. Sick & Co., of Cape Coast, for an uncertain sum of money but later the property was redeemed.

As I have no evidence before me which should guide me as to how to determine the mesne profits, if any, derived from the disputed property during this period, and as the defendants herein were not directly in occupation or possession of the said property, which came into their hands some time after the death of their father, I am unable to award the plaintiffs any mesne profits covering this period. The next difficulty I further encounter is the dearth or lack of material upon which I am asked to calculate the amount of mesne profits which the defendants are liable to pay in respect of their own dealing with the plaintiffs’ property in question. The defendants succeeded to or became possessed of the said property when it came into their hands upon the death of their father in the year 1949, or at least as from 9 July 1949, when probate of the will of their father was granted. Although it is admitted that shortly after they took up occupation of the house in dispute, it was rented to tenants who occupied rooms or stores therein, it being a two-storey building situated at the commercial centre of Cape Coast, yet it is not clearly indicated on the evidence how much exactly they collected either per month or per annum. [p.676] of [1966] GLR 654

At one time they permitted their own mother to collect and use the rents from the disputed property, and the second defendant deposed that for the period that their mother collected the said rents she never accounted to them the defendants for the rents so collected in respect of the disputed property. Owing to the rather clandestine manner in which the defendants, their sister Sarah Johnson, the defendants’ second witness, and their mother, dealt with the property in dispute and enjoyed the rents accruing therefrom up to date, neither the late Frederick Moore, nor the present plaintiffs, were in a position to know exactly the amounts they collected. The plaintiffs said they are aware of the fact that the rooms or the stores on the ground floor of the said house have been rented but cannot be certain for how much. The defendants did not deny this fact, but went on to state that the total amount of rents collected from the tenants living in the said house so far was about £G10 10s.; they did not go far enough to say for what period of time that sum was collected and at what rental. They however admitted that out of the total sum of rents collected they used part to effect necessary repairs to the said house, and at times used part to provide food, clothing or pocket allowance for the late Frederick Moore. Much as I appreciate this fine gesture on their part towards the late Frederick Moore in his lifetime, I wish to point out to them that their moral obligation to provide a blood relation with the bare necessities of life at a critical time when he had been in need, does not absolve them from their legal duty to account strictly to him of all the money they derived from his lawful property by unlawful dealing with it.

I have not had the opportunity of seeing the nature or character of the house in dispute, but I have been informed that it is situated on a commercial street in Cape Coast where it is likely to fetch good rents. The defendants have proved themselves to me to be heartless fellows and by their shameful and wicked conduct unjustly enriched themselves all these years that they have been in exclusive enjoyment of the rents from the disputed property, and thereby impoverished the late Frederick Moore who suffered from paralysis which hastened his death in February of last year in the course of the trial of this very action. As the defendants admit they have used or are in possession of the rents they have been collecting from the tenants living in the house now in dispute, and continue to collect them and enjoy them, having regard to all the circumstances of the case, and taking into consideration the amount of £G10 10s. admitted by the defendants as being the rents collected so far, and making allowance for any legitimate disbursements they may have made in respect of necessary

[p.677] of [1966] GLR 654 repairs to the house or payment of house rates, etc., the appropriate payment which I consider the defendants are liable jointly and severally to pay to the plaintiffs, who are the legal representatives of the late Frederick Moore, the original plaintiff herein, must be calculated at the rate of £G10 per month from the year of the inception of this suit, that is 1963, up to the month of July 1966. It is beyond dispute on the evidence that the defendants were in fact in unlawful possession of the disputed property prior to 25 February 1963, when this action was first instituted. If I am right in my arithmetical calculations of the total amount of mesne profits which the defendants have to pay for the period stated, the total sum comes up to £G430 or ¢1,032.00 and I accordingly give judgment in favour of the plaintiffs as against the defendants for that amount with a declaration that the plaintiffs do recover the said sum from the defendants jointly and severally.

Finally, in view of the conclusions I have arrived at on the evidence as a whole and for the various reasons which have led me to come to these conclusions, there will be judgment in favour of the plaintiffs and an order for immediate recovery of possession of the premises described in the plaintiffs’ writ of summons herein in this action. I hereby further decree a perpetual injunction restraining the defendants, their agents, labourers or children from further dealing or interfering with the disputed property, house No. D.35/2 situate on Jerusalem Street, Cape Coast, in any manner whatsoever.

With respect to costs of this action my sympathies are fully with the plaintiffs that they deserve the right to be paid costs, and as costs follow the event the unsuccessful defendants who have unnecessarily in my opinion provoked this suit must be condemned in costs. If there was any fault in bringing this action at all, it was rather the fault of the defendants who having been actuated by feeling of greed and avarice have persistently and unlawfully clung to the property which legitimately belonged to the late Frederick Moore, the original plaintiff in this action. I cannot imagine what this unfortunate man who died in the course of this action could have done in the particular circumstances, but to bring the matter to the notice of the court, which he did and he succeeded. One would have expected the defendants to heed the advice of their own family’s legal adviser, Mr. Myles Abadoo, when he summoned them at the request of the late Frederick Moore and enjoined upon them the necessity of their releasing the disputed property to the devisee under the will, exhibit A. However, they chose rather to resist the plaintiffs claim of right to the said property, and the plaintiffs have won. I think the right order I ought to make is to ask the defendants jointly and severally to pay to the successful plaintiffs the costs of [p.678] of [1966] GLR 654 this action which I assess at 120 guineas or ¢302.40 inclusive of counsel’s brief fee of 75 guineas or ¢189.00.

DECISION Judgment for the plaintiffs.

S. Y. B.-B.