pg 204 Appeal Court, 16th Dec., 1941

 Held: The issue between the parties was one as to succession ·to property within the meaning of section 48 (2) (f), and the only right of appeal lay to the Court of the District Commissioner. The Court of the Provincial Commissioner therefore had .no jurisdiction 'to try the suit and the judgment of that Court is set aside.

     EfJuah Adum and ors; v. George Hagan and ors and Arabah Tanuah v. George Hagan and ors. in Privy Council reported in 5 ·W.A.C.A .. · 35 followed.

  C. F. H. Benjarnin for Appellants.

  F. A. Williams for Respondent.

 The following joint judgment was delivered:-

    KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND  M'CARTHY, J.

 In this case the plaintiff claimed as' follows:-

     The plaintiffs' claim is for a declaration. against the I. defendants that Ekuah Mansah as head of and as successor "according to Native Custom of the late Isaac Benjamin  pg 206 Ephraim (Kwesi Effrim) (Deceased) is entitled to th possession and to the receipt of the rents of the family  "properties (lands and houses) particularly the premises situate between Lagoon Road and. Sixth-Street, Dutch Sekondi, generally known as Ephraim's Family property: "And for an injunction restraining the defendants their .-­"servants; agents and people from interfering with the possession of the said premises and ·the receipt of the rents of the said properties by the plaintiffs.           

    The plaintiffs also claim such further and other relief "as they may be entitled in the premises- against the " defendants."

    Unfortunately the opening statements of counsel in the· Court below containing the pleas of the parties-were not recorded. How­ever, statements as to these have been made to this Court by Mr Williams, counsel for the plaintiff-respondent both in the Court below and on the appeal, and by Mr Blay who, though he no longer represents the defendants-appellants, appeared for them in -the Court below.

    Mr Williams's statement did not add materially to the claim as set out in the writ of summons and particulars of claim. In them the plaintiff as head and successor of 1. B. Ephraim on behalf of herself and the elders of her family claims a declaration that she is entitled to possession and receipt of the rents of the family properties (lands and houses) and particularly of certain premises' in Sekondi known as " Ephraim's family property."

     The pleas by Mr Blay for the defendants were as follows:­

              (1) Members of deceased's family entitled to enjoy house and proceeds.

              (2) Plaintiff is not head of the family. (3) Defendants share similar rights.

     Judgment was given in the Provincial Commissioner's Court in favour of the plaintiff. In other words her claim succeeded.

      In this Court it was in the first place submitted on behalf of the defendants-appellants that this is a suit relating to succession to property within the meaning of section 48 (2) U) of the Native Administration Ordinance (Cap. 76), and that not being one relating to the ownership, possession or occupation of land within the meaning of section 48 (2) (c) of the Ordinance, by virtue of the combined effect of sections 79 and 128,\ of the Ordinance, the Provincial Commissioner's Court had no jurisdiction to try the suit. It. is common ground that the appropriate Tribunal is not functioning and that section 128,\ applies. The plaintiff respondent contends that the suit is one relating to the ownership, possession or occupation of lands, and that by virtue of the combined effect of sections 80 and 128. the Provincial Commissioner's Court had jurisdiction. pg 206

The claim of the plaintiff in her capacity~· as successor to Ephraim suggests that though the property in dispute was family property, it was property in which she had a special interest. According to the evidence the property actually in: dispute is a compound which formerly 'belonged to the plaintiff-respondent and to her brothers 1. B. Ephraim, deceased, and D. Ephraim •• deceased (the latter pre-deceased the former). The compound contains a storey house built by the two brothers. When D. Ephraim died it would seem that 1. B. Ephraim succeeded him as to his share in the house. When 1. B. Ephraim died the sister, the defendant-appellant was appointed to succeed to the self acquired property of the deceased, and to the house.

In her evidence the plaintiff stated:-

" When EJ1hraim died I was appointed successor and a8 " such I made application to the Divisional Court and obtained " Letters of Administration to his estate."

The application of course only concerned his separate personal property.

In cross-examination the plaintiff stated:-

" The compound is mine. The compound is for myself " and deceased, and not for anybody elge."

In re-examination she said:-

" I claim for myself and the blood cycle of my family" whatever that may mean.

Kwasi .Awotwi, who claims to have been appointed' head of the family' to act for the plaintiff-respondent because of her age, said both in cross-examination and in re-examination that the property belongs to the plaintiff and not to the family .. In re­examination he said that the plaintiff can if she wishes give the family some of the rent.

The defendants contended that the property simply became the property of the whole family. They admitted that the plaintiff was appointed successor to Ephraim's personal property, but they say that when Awotwi, who according to them was then the head of the family allowed the plaintiff-respondent as Ephraim's successor to collect the rents of the house, he was destooled. It may be added that Eku Sado, plaintiff-respondent's daughter, stated in evidence that one uncle got money to build (the hou8e) from one Aba Kufua (a member of the family), the other uncle and her mother. She also stated that the defendants contributed to the building of the house.

There would appear therefore to have been a definite question as to succession. It is true that the plaintiff-respondent purported to sue' as head of the family as well as successor to Ephraim, but this hardly affects the question. The elders may have approved of the plaintiff-respondent's claim; the fact remains that the pg 207 defendants-appellants repudiated it. They contended that the property was family property to which the plaintiff-respondent had no special right of succession, and they claim that they with other members of the family had an equal beneficial interest in the property.

The Provincial Commissioner held that though the plaintiff was in a way correct in averring that the property was " for her alone ", he considered that there was ample evidence to show that she was acting for and with the authority of the family. He held that there was no doubt as to her lawful inheritance of the property as Ephraim's successor, and that she is entitled to collect the rents just as Ephraim did, though she has her duty to do to her family such as rendering account of monies accruing from the property to the family. Rut, it may be observed, this would not be of much satisfaction to the defendants-appellants if the other members of the family share the view of Awotwi that the plaintiff-respondent is alone entitled to the proceeds of the property.

Whether the defendants-appellants have any right to oppose the wishes of the elders in this matter is a question that does not now arise. It appears to be clear that the issue between the parties was one as to succession to property within the meaning of section 48 (2) (f).

It is now necessary to examine the submission made on behalf of the defendants-appellants that it follows, if the Court finds that the suit relates to the succession to property, that, by virtue of the provisions of sections 79 and 128A, an appeal from the judgment of the appropriate Tribunal, if it were functioning, would lie only to the District Commissioner's Court and that accordingly the Court of the Provincial Commissioner had no jurisdiction. In a suit entitled Effuah Admn and Other.~ v. George Hagan and Oth('.r.~, instituterl in t.he Effutu Tribunal, the plaintiff, the domestic "slave-wife" of Thomas Hagan rleceased, called on the defendants, the brothers and sister of the deceased, to declare the value of the estate of the deceased, and to show cause why her share and that of her children in the estate, consisting of houses and personal property, should not be designated. The defendants appealed from the jurlgment of the Tribunal to the Provincial Commissioner's Court, which sustained an objection that the appeal was not competent in that Court and dismissed the appeal. On an appeal, this decision was affirmed by this Court on the 19th December, 1935, when the following judgment was delivered:-

The question in this case is whether or not the suit in " the Tribunal of the Paramount Chief of the Effutu Division " is a suit. or matter relating to the ownership, possession or " occupation of any land within the meaning of section 75 of "the Native Administration Ordinance (pap. 111). The "Court of the Provincial Commissioner of the Central " Province has held that it is not and we think that it is  pg 208 right in so holding because the suit does not relate to the " ownership, possession or occupation of any particular piece " of land, it only relates generally to the question of how the "estate, real and personal, of the deceased man, Thomas "Hagan, should be shared j in other words it comes under "sub-section (I) and not (c) of section 43 (2) of the Native "Administration Ordinance.

" The appeal is accordingly dismissed with costs assessed " at £21 16s 0d."

The defendants-appellants appealed to the Privy Council from this judgment and from a judgment given in another suit, Arabah Tanuah v. George Hagan and Others in connection with the same estate. The two appeals were consolidated in the Privy Council which affirmed the said decision of this Court In its judgment the Board held that the suit was one relating to the succession to property within the meaning of head (I) of section 43 (2) (now 48 (2». The Board also dealt with two further submissions, one that the suit was a personal suit for more than £100, and that the jurisdiction of the Native Tribunal was therefore excluded by the terms of head (e) of section 48 (2), the other that, it being admitted that two houses which formed part of the succession were not situated within the State, jurisdiction was excluded by the terms of head (c) of section 48 (2). The Board held that, while each of the heads (a) to (g) is subject to the provisions of sub­section (1) of section 48, each head in sub-section (2) affords a self-contained subject of jurisdiction, which is independent of the other heads, and that it is illegitimate to import the qualifications or conditions expressed in one of the heads into any of the other heads. The Board was of opinion that as the suit fell within head (I), and satisfied the provisions of sub-section (1), heads (c) and (e) of sub-section (2) were irrelevant on the question of jurisdiction.

'1'he Board further remarked that the appeal to the Court of the Provincial Commissioner was dismissed on the ground that the suit was one relating to the succession to property, in regard to which the only right of appeal lay to the Court of the District Commissioner under section 74 (now section 79) of the Ordinance, and that it was not a suit or matter relating to the ownership, possession, or occupation of any lands, i~ which case an appeal would lie to the Court 'of the Provincial Commissioner under section 75 (now section 80). The Board expressed approval of these reasons for the decision.

In view of the above Privy Council judgment, we are of opinion that inasmuch as the present suit was one relating to the succession to property, the only right of appeal lay to the Court of the' District Commissioner, and that it was not a suit relating to the ownership, possession or occupation of land within the meaning of head (c) of section 48 (2). pg 209

It follows that in our opinion the Court of the Provincial Ekuah Commissioner had no jurisdiction to try the suit. The appeal is therefore allowed, the judgment of the Court of the Provincial e c. Commissioner, including the order as to costs, is set aside, and it is ordered that any sum paid by the appellants to the respondent in pursuance of such order shall be refunded j the appellants are awarded costs in this Court assessed at £56 8s 9d. In ,the Court below the parties must bear their own costs.