Appeal Court. 1 December,
1936
Appeal from
Administration Suit-Claim by
Plaintiff-Appellant to
Administration
dismissed following entry of
caveat showing, inter alia,
matter already dealt with by
competent native Court
Held: The matter is
Res
judicata,
and the appeal is dismissed.
The facts are sufficiently set
out in the judgment.
H. A. Hayfron-Benjamin
for Appellant
J. W. de G. Johnson for
Respondent.
.
.
The following judgment was
delivered: WEBBER, C.J., SIERRA
LEONE
The plaintiff-appellant brought
an action in the native tribunal
of Kumasihene against the
defendant in which he claimed:-
(a)
Judicial relief, i.e. to show
cause why the defendant should
not hand over to him the
property of his deceased uncles
named Ado-Kwabu and Ardu Yaw,
which defendant had inherited in
a manner not consistent with
native customary law.
(b)
An account of defendant's
dealings with the property.
(c)
An injunction to restrain the
defendant and his agents from
entering into or dealing with.
any of the properties.
This is the usual procedure
under native law and custom when
the question of succession to an
estate is in issue. It is not
unlike an administration suit
where the claimant for a grant
of Letters of Administration
seeks to take over the property
by right of his relationship to
the deceased.
The native tribunal heard the
evidence of both parties and
decided that the plaintiff had
made out no claim and judgment
was given in favour of the
defendant. The native Court
found that the defendant had
inherited the properties in
question in accordance with a
death-bed declaration made by
Adu Yaw in the presence of
accredited witnesses, including
some members of the family, and
that the declaration so made was
confirmed with " great oath" by
the deceased before his death.
It is the usual native
declaration known by native law
and custom by which the declarer
names the person or persons to
whom the inheritance is to be
distributed; the declaration
was put into writing and
attested in the usual native way
prior to the death of the
deceased.
The case in the native tribunal
began in February 1934, and
ended in the early part of 1935.
There was no appeal.
In
October 1935 the plaintiff takes
proceedings in an administration
suit on a caveat entered by
defendant to a claim made by plaintiff
for the grant of Letters of
Administration. The Court below
took no oral evidence. The
proceedings of the native tribunal
were received as evidence, and the
Court below decided that the
plaintiff was estopped by record
and held that the native tribunal
was a competent Court in the
'claim before it and dismissed the
action.
The grounds of appeal were three
in all, but Counsel for appellant
argued grounds 1 and 2 together.
They were as follows :-
1. That the ruling 'was wrong in
law, equity and good conscience.
2.
That the matter was not
res judicata.
3. That the native tribunal had no
jurisdiction inasmuch as Yaw Kyere
claimed under a Will and therefore
the judgment did not create an
estoppel.
I
am of opinion that\the ruling in
the Court below was correct.
The facts which both parties can
set forth in this administration
suit must be the same which they
testified before the native
tribunal and these facts in issue,
as the Court below rightly states,
were decided by the Kumasi Native
Divisional Court, and as to the
third ground of appeal it is quite
clear to my mind that the caveator-respondent
never at any time claimed his
right to the inheritance under an
English Will. He propounded the
usual death-bed declaration well
known to the native tribunal and
in accordance with the native law
and native requirements and his
defence in the native tribunal was
one which that tribunal was
competent to hear and to give
effect to.
I
am of opinion that the judgment of
the Court below in favour of the
caveator-respondent is correct and
that this appeal should be
dismissed.
KINGDON, c.J., NIGERIA.
I
concur.
PETRIDES, C.J., GOLD COAST.
I
concur. |
