OMANE vs. POKU [1973] 2 GLR 66

CASES REFERRED TO

(1) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.

(2) Armar v. Armar, Court of Appeal, 21 April 1969, unreported; digested in (1969) C.C. 73. (3) In re Pritchard, Pritchard v. Deacon [1963] 1 Ch. 502; [1963] 2 W.L.R. 685; [1963] 1 All E.R. 873, C.A.

(4) Ankrah v. Ankrah (1957) 3 W.A.L.R. 104, P.C.

(5) Quarcoopome v. Quarcoopome [1962] 1 G.L.R. 15.

(6) Davies v. Randall [1963] 1 G.L.R. 382, S.C.

NATURE OF PROCEEDINGS

APPEAL against the judgment of Annan J.A. sitting as an additional judge of the High Court, Kumasi, reported in [1972] 1 G.L.R. 295 on the ground that it was against the weight of evidence. The facts are fully set out in the judgment of Apaloo J.A.

COUNSEL

Akainyah (Owusu Yaw with him) for the appellant.

Mmieh for the co-defendant-appellant.

C. F. Hayfron-Benjamin for the respondent.

JUDGMENT OF APALOO J.A.

The late Kofi Boakye was born in Adjeikro in the Ivory Coast and was a national of that country. The evidence shows that in order to avoid being conscripted into the first world war, his grandfather sent him to this country. He was then very young—apparently under ten years of age. He lived in one or two places in Ashanti, and finally made his home at Kona where he died intestate about September 1965. He combined farming with the work of a fetish priest and although he cannot be said to have been a person of large means, he died possessed of modest property. Two cocoa farms which he owned were the subject-matter of the suit which culminated in this appeal.

As is only to be expected, at some time after Boakye came of age, he contracted customary marriages with two women in Ashanti and begat children by them both. They are Ama Serwah and Yaa Akyaa.

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One of his children a male, is Kwabena Akuto. He is the issue of the deceased with Ama Serwah. Akuto seems to have got on well with his father and lived and worked with him till his death. He is one of the parties to this case in a role which I am soon to describe.

The plaintiff is also of Ivory Coast origin and seems to have come to this country long ago. He and the late Kofi Boakye seem to have collaborated, at least in the latter’s fetish business. He was said to be a drummer of that fetish, and was paid for his services as such. The plaintiff himself said his relationship with the deceased transcended the purely business one. He said they were in fact blood relations—being a cousin of the deceased. Indeed he said he and the deceased came from the Ivory Coast together and settled together in a few towns in Ashanti and finally moved to Kona where they lived together in the house of one Opanin Kofi Tom. As the deceased died without any other relations apart from himself and his children, his landlord Opanin Kofi Tom appointed him to succeed to his estate. He accepted this appointment and gave thanks in accordance with custom. He explained how Kofi Tom who was a complete stranger to the deceased, came to appoint him to succeed to the latter’s properties. He said, “When we all went to live at Kona with Opanin Tom, we all became one family, with the family of Tom. The family belong to the Brentuo clan.”

The plaintiff said in virtue of his right as successor to the deceased, he performed his funeral. When he was about to do so, he was disturbed by the defendant who swore the great oath of Ashanti on him but he ignored this and did the customary rites all the same. He said the defendant then interfered with his rights to two farms which the deceased owned at Apatriatom and which, in his right as successor to the deceased, he was entitled to enjoy. It is this that provoked this litigation in which the plaintiff sought a declaration of title to the two farms and a perpetual injunction to restrain the defendant either by himself or his workmen from interfering with the said farms.

The defendant’s position was that the two farms were gifted to himself by the deceased some time before his death and that this gift was customarily accepted in the presence of witnesses. According to the defendant, the deceased’s object in making the gift was to repay a kindness which his predecessor did the deceased when he and his brothers lived with him at Mpankrono. Accordingly, the defendant for his part, sought against the plaintiff, a declaration of his title to the two cocoa farms.

The facts which I have related were in substance, what the parties averred in their pleadings. When these closed, the plaintiff took out a summons for directions in which he formulated the issues between himself and the defendant as follows:

(1) Whether or not after the death of Kofi Boakye the plaintiff was appointed customary successor.

(2) Whether or not before the death of the said Kofi Boakye he gifted the farms in dispute to the defendant.

[p.69] of [1973] 2 GLR 66 (3) Whether or not as a result of his alleged gift the defendant went into possession of the farms before the death of Kofi Boakye.

These issues were agreed to by the defendant and ordered to be tried as between them. But before this could be done, Kwabena Akuto, the deceased’s eldest son, sought and obtained leave to join the action as co-defendant. Upon being joined, he filed a defence in which he denied that the plaintiff was in any way related to the deceased. He admitted that the Brentuo clan purported to appoint the plaintiff successor to his father but he disputed the right of that family to do so and while agreeing that his father lodged with some members of that clan, denied that he had on that account become a member of that family so as to entitle it to appoint a successor to him. As Akuto was filing a defence to the plaintiff’s claim, he did not in terms refer to the defendant’s claim that the two farms were gifted to him. He did so by implication, because, he himself counterclaimed for a declaration of title to the two farms in dispute, on the ground that such farms were the family properties to which he was entitled by reason of the fact that as the deceased was an Ivorian and subject to the patrilineal law of succession, his children were the proper persons to succeed him.

Quite clearly, Akuto was not claiming through the defendant, indeed he was claiming against him as well as against the plaintiff. But neither the plaintiff nor the defendant filed any reply to his statement of defence and counterclaim, nor was any further summons for directions taken out to set out formally the question in issue between the plaintiff and Akuto and the latter and the defendant.

This was presumably because the suit was ordered to be heard definitely on 28 January 1970 and none of the parties seemed to have considered it necessary to take the trouble of formalizing the issues. But the evidence led by the parties taken together with their pleadings, brought out the matters in difference between them with great clarity and the learned judge Annan J.A. in the case reported in [1972] 1 G.L.R. 295 examined these issues in great detail and determined them with equal clarity. The judge held that the plaintiff was no relation of the deceased and that the latter had not become assimilated into Kofi Tom’s family so as to entitle him to appoint a successor to the deceased. With regard to the farms, he concluded that there had been a valid gift of them to the defendant. As the judge held that the farms in dispute were the subject of a gift inter vivos to the defendant, the claim by Akuto to these farms must fail because be based himself on the ground that these farms were the properties of the deceased at the date of his death and that he was entitled to succeed to them by Ivorian customary law. The judge went further and held that succession to the properties was governed by the lex situs. In this case this must be the law of Ghana, in particular Ashanti customary law. The judge also made some pronouncements which suggest that even if he had held that the farms were not in fact gifted to the defendant, Akuto could not have succeeded to them.

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Both the plaintiff and Akuto appealed to this court on the identical ground that “the judgment was against the weight of evidence.” The plaintiff, but not Akuto, also filed additional grounds of appeal and obtained leave to argue them. These grounds do not raise any serious question for our consideration and merely complained of insubstantial procedural irregularities. It was urged that as Akuto filed his statement of defence and counterclaim after issues had been settled between the plaintiff and the defendant, the former was entitled to take out summons for directions and that by hearing the case before this could be done he was disabled from doing this. It was contended therefore that the proceedings are “a nullity because the court could only consider the settled issues and since none was settled, there was no issue before the court for trial.” This contention comes strangely from a person who was himself under an obligation to take out summons for directions and who, while not doing so, was content to produce evidence to the court and invite the latter to decide in his favour. Although the issues joined between the plaintiff and Akuto were not formally settled, they were clear on the pleadings. The learned judge set them out in great detail and determined them with admirable ability. No complaint is made about the judge’s resolution of these issues. It is difficult to conceive of a more barren complaint.

One would have thought that since the plaintiff’s substantial complaint was non-compliance with the procedure rules, it is the kind of situation contemplated by Order 70, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and answered positively against the contention that the proceedings were void but the plaintiff relies on the authority of Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C. In that case, the respondent obtained judgment in the native court for possession of certain land. That judgment was affirmed both by the Asantehene’s court and the High Court on appeal. In order to obtain possession, the respondent applied to the High Court by motion ex parte for an order for a writ of possession. This application was presumably made under Order 47 of L.N. 140A. This application was granted. The plaintiff on learning of this, sought by motion on notice to set it aside. The High Court to which the application was made, refused it on the ground that if it was an appeal it did not lie; if it was a review, it should be made to the judge who granted the order. On appeal to the Supreme Court, it was held that since the original order for possession was not made by the High Court, it had no jurisdiction to make an order for a writ of possession and that its order was void. It was held further that the court had an inherent power to set aside an order which was void either on its own motion or under the application of a party affected by it. The court also held that Order 70 of L.N. 140A did not avail the respondent as that order merely saves irregularities which do not render proceedings void but voidable.

I think it is plain that the High Court cannot be said to lack jurisdiction to hear an ordinary land suit or succession case because although

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the issues are clear on the pleadings, they were not formally set out in a magic document called “summons for directions.” In Armar v. Armar, Court of Appeal, 21 April 1969, unreported; digested in (1969) C.C. 73 this court laid down some guidelines as to when Order 70 applies and when it does not. In substance it held that Order 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make the proceedings a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Order 70 when justice can be done as a matter of discretion. The court then cited the English case of In re Pritchard; Pritchard v. Deacon [1963] 1 Ch. 502, C.A., where Upjohn L.J. referred to some fundamental defects which would make proceedings a nullity and incapable of being saved by Order 70. They are not relevant to this case and it is not necessary to reproduce them.

The real question in this case is whether failure to settle issues formally in a summons for directions before their determination is such a fundamental defect as would vitiate the entire proceedings. I think not. Where, as in this case, the issues are clear both on the pleadings and in evidence, the failure to set them out in a summons for directions in accordance with Order 30, rr. land 2 of L.N. 140A, is a mere irregularity which is curable under Order 70. 1 think therefore that this ground of appeal fails.

As I said, both the plaintiff and Akuto united in contending that the judge’s finding that the farms in dispute were validly gifted to the defendant was against the weight of evidence. It was said that the evidence of the witnesses who testified as to this gift was riddled with inconsistencies and other improbabilities and was on that account unworthy of credit. In particular, counsel stressed the fact that although the defendant claimed to have entered into possession of the farms in pursuance of the gift during the lifetime of Boakye, this was disproved by the evidence.

I think the argument urged on this ground is not without merit and if the learned judge had in his consideration of this case, overlooked the many differences in the accounts of the witnesses or the seemingly disturbing features of the evidence of the gift, I would have thought it our duty to intervene on the plaintiff’s behalf. But the learned judge showed himself to be fully aware of these conflicts. He enumerates them in his judgment and himself lists some other matters which lent an air of improbability to the story of a gift. But in the end, he expressed himself as satisfied with the evidence of the gift. He regarded the conflicts in the story of the witnesses as honest differences of recollection. He found positively that the witnesses to the gift, whom he had seen and heard, had not conspired to narrate false testimony. In those circumstances, short of this court substituting itself for the trial judge,

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I cannot see how we can overrule the judge on his factual conclusion. I think therefore that this ground of appeal must also fail.

That should conclude this case but there is outstanding as between the plaintiff and Akuto the question who is the proper person to succeed to such properties as Boakye died possessed of. Although he relinquished his title to the two farms in dispute before his death, there is evidence that Boakye died possessed of two houses at Apatretom and one house at Kona. Akuto swore that the plaintiff claiming to be the lawful successor of Boakye, has taken possession of these properties. Akuto asserted the right of the children of Boakye to these properties as against the plaintiff. As far as the plaintiff is concerned, the judge found that he was not related to the deceased and was not entitled to succeed him, further that the Brentuo family were not entitled to appoint a successor to the deceased. That finding was not contested before us and we think, on the evidence, was a correct finding.

The judge also found that Boakye acquired a domicile of choice in this country and succession to his property must be governed by the law of this country. The question therefore is whether Boakye was subject to customary law of this country and if so which? Although the judge found that Boakye did not identify himself with his landlord’s family to the extent of his becoming a member of that family, he can accurately be said to have become an Ashanti to the extent that not only was he subject to Ghana customary law, but to the Akan system of customary law. He came to this country as a child, lived in Ashanti for the best part of 70 years, married in Ashanti, adopted an Ashanti name, acquired houses and farms in Ashanti and died in Ashanti never once visiting his home in the Ivory Coast. It would follow therefore that the properties which the late Boakye owned at the date of his death ought to devolve on his matrilineal family. In ordinary circumstances, Akuto and the other children of the deceased being in the contemplation of Akan customary law, strangers to their father’s family, would be out of reckoning as far as succession is concerned. But in this case, the evidence is that there are no maternal or indeed any relations of the deceased in this country. Accordingly, if this matter were res integra, I would hold that his children should, ex debito justitiae, succeed to his estate. But the matter is in fact concluded by authority. The cases of Ankrah v. Ankrah (1957) 3 W.A.L.R. 104, P.C., Quarcoopome v. Quarcoopome [1962] 1 G.L.R. 15 and Davis v. Randall [1963] 1 GLR 382, S.C. decide that in the type of situation revealed in this case, the children are the proper persons to succeed to the intestate. I think therefore that as against the plaintiff, Akuto and his brothers and sisters are entitled to the other assests of the deceased. In so far as the learned judge thought otherwise, I think, with respect, he slipped. But I share his conclusion that the two farms in dispute were validly gifted to the defendant by the deceased and as this finding provoked this appeal, it should be dismissed.

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I would order that both the plaintiff and Akuto pay the costs of this appeal in equal shares.

JUDGMENT OF SOWAH J.A.

I agree JUDGMENT OF ANIN J.A. I also agree DECISION Appeal dismissed.

Judgment varied S.E.K.