Appeal from Divisional Court. Accra, 20th November, 1934

Proof of title by production of Probate of Will with copy of Will annexed- Waiver of notice of intention to produce-Court cure. defect by hearing evidence of attesting witness-Proof of identity of deceases--Sections 43 and 49 of Native Administration Ordinance (Gold Coast) did not preclude Court below from hearing evidence to determine such identity.

The facts are sufficiently set out in the judgment.

Held: Appeal dismissed.

P. A. Renner for Appellants

. Frans Dove for Respondents.

The following judgment was delivered:­ GRAHAM PAUL, J.

The facts of this case are very fully set out by the learned Judge in his judgment of 3rd October, 1933, which comes before this Court on an appeal taken by the defendants Haroun Brothers, Joseph Nasser and Akuamoa. These facts are not seriously in dispute and it is unnecessary to recapitulate them.

In this Court, on the motion of the appellants, G. B. Ollivant Limited, Attorneys of the Liquidators of L. C. Limited in voluntary liquidation, were substituted for G. B. Ollivant & Co., Ltd. as plaintiffs in this action-I,. C. Limited being the changed name of G. B. Ollivant & Co., Ltd.

There were two main points of law raised by the appellants 1Il this appeal:-

(1) That the devise to the children of J. E. Mettle, deceased, in his 'Will was relied upon by the plaintiffs G. B. Ollivant & Co., Ltd. as the title of their lessors, and was insufficiently proved at the trial by the production in evidence of the Probate of the Will with copy of the Will attached; and

(2) That the twenty persons joined as plaintiffs, and as the lessors to G. B. Ollivant & Co., Ltd., were not proved to be the devisees under a devise in the Will " to all my children living at my death".

As regards the first point of law there is no doubt that G. B. Ollivant & Co.Ltd. did rely on the devise to their lessors contained in the Will, and that the onus of proof of the devise in question lay upon G. B. Ollivant & Co., Ltd. at the trial of this suit. The only evidence of the devise  which they tendered at the trial was the Probate of the Will with copy of the 'Will annexed. The Probate was tendered by them and admitted in ~evidence without any objection on behalf of the defendants.

It was not disputed that the Probate could only be produced as evidence of the devise in the Will by virtue of section 64 of The Court of Probate Act, 1857.

That section provides as follows:-

"In any action at law, or suit in equity, where, " according to the existing law, it would be necessary "to produce and prove an original will, in order  to establish a devise or other testamentary

, disposition of or affecting real estate, it shall be "lawful for the party intending to establish in " proof such devise or other testamentary disposition "to give to the opposite party ten days at least " before the trial or other proceeding in which the " said proof shall be intended to be adduced, notice " that be intends at the said trial or other proceeding to give evidence, as proof of the devise or " other testamentary disposition, the probate of the " said Will, or the Letters of Administration with .• the Will annexed, or a copy thereof stamped with "the seal of the Court of Probate, and in every "such case, such Probate or Letters of Administration, or copy thereof, respectively, stamped as " aforesaid, shall be sufficient evidence of such Will, " and of its validity and contents notwithstanding "the same may not have been proved in solemn " form, or have been otherwise declared valid in a ~'contentious cause or matter, as herein provided, "unless the party receiving such notice shall. "within four days after such receipt, give notice "that he disputes the validity of such devise or " other testamentary disposition".

No notice of their intention to prove the devise by the production of the Probate was given by the plaintiffs to the defendants. At the close of the plaintiffs' case at the trial counsel for the defendants submitted on this point that the Will should have been proved in solemn form and that this not haying been done there was no case for the defendants to answer. The learned trial Judge held that there was a case to answer and the defendants' case was. heard.

At the close of the defendants' case at the trial counsel for the plaintiffs asked for an adjournment to enable him to give the statutory notice to defendants of intention to prove the Will by production of the Probate. The learned trial Judge refused that application and proceeded to give his judgment, holding on this point that the procedure adopted by the plaintiffs was in order, save that the necessary notice under section 64 had not been given and that if the objection hall been taken when the Probate with copy of the Will attached was tendered in evidence the plaintiffs would have had an opportunity of producing and proving the original Will. Taking that view the learned trial Judge held that the Will had been sufficiently proved.

I think it is clear that in an action inter partes, such, as this is, it was open to the defendants to waive the notice provided by section 64 of The Court of Probate Act and that the failure to take objection when the Probate with copy of the ·Will attached was tendered in evidence amounted to such waiver, and that the learned Judge was right in his view to that effect. This view is borne out by reference to William. on Executors (11th Edition) at .the footnote(j) to page 452 where the following expression of opinion appears:-

,. " The absence of notice, may, it would seem, be waived, " or the Court may adjourn the case to allow of the " notice being given, or to allow proof of the Will " per testes: Hilliard v. Eiffe. L.R. 7 M.L. 39 ".

However that may he, I am of opinion that the learned Judge could and should have allowed the plaintiffs the adjournment asked for-subject to such ruling as to costs as he might have thought fit to make. It is clear from the case of Hilliard v. Eiffe (supra) as reported in Mews Digest Volume 8 page 978 (the only report of the case here available) that the objection that the notice under section 6-J. had not been given is a mere technical objection, and that if taken the Court should allow an adjourn­ment to remedy it.

In view of the defendants' omission to raise the objection when the Probate was tendered, and in view of the refusal of the learned Judge to grant t the adjournment asked for, and in order to remove all doubt, this Court decided to give to the plaintiffs an opportunity of proving the Will. Evidence was given before this Court by the only surviving attesting witness. In my opinion his evidence was satisfactory and sufficient to prove the Will and to show that the objection of the defendants was in fact purely technical and based on no ground for attacking the Will. It was made quite clear from the beginning of the trial that the plaintiffs were relying on the Will and the devise in it. For aught the defendants knew the plaintiffs might have proved the Will by evidence of the attesting witnesses so that if the defendants had any ground for attacking the validity of the Will they should have been ready with their evidence to support their attack. And in spite of the production of the Probate with Will attached the defendants could have given evidence in their case attacking the validity of the 'Will (Barraclough v. Greenhough 18 L.R. 2 Q.B. 612). But the defendants did not produce any such evidence. Having no ground for attacking the validity of the 'Will it was quite a reasonable' and proper thing for the defendants to waive their right to ten days' notice by not objecting to the devise being proved by the Probate. In my opinion that is what they did.

As regards the other point, I am of opinion that there was sufficient evidence on which the Court below could hold that the twenty persons joined with G. B. Ollivant & Co., Ltd. as plaintiffs and lessors were in fact the devisees described in the Will as " all my children living after my death".

In regard to this point counsel for the appellants, as a preliminary plea, argued that the Court below had no jurisdiction to try the issue as to whether these people were children of the deceased within the meaning of the Will, as that was a question of native customary law. In support of this plea he relied upon sections 43 and 59 of the Native Administration Ordinance. I can find no substance in this argument. Section 43 applies only to suits or matters in which all the parties are natives and therefore manifestly does not apply to this suit. Section 59 is simply a permissive section giving a purely discretionary power to refer questions of native customary law. Neither of these sections ousts the jurisdiction of the Court below to try this issue.

As regards evidence on this point it is to be found mainly in the statement of the witness Aryeetey. The relevant portions of his evidence are as follows:-

"Isaac Annan Mettle was eldest son of J. E. Mettle deceased. " The other lessors are sons and daughters of J. E. Mettle"

          "I know that Mettle lived with their mothers as man and wife. I " don't know if they were married or not.

" Apart from the list of the children of J. E. Mettle deceased given "to me by Konuah I knew who the children were. I lived close to "their house. J. E. Mettle's children used to come to my mother's "house where I lived and my mother's children used to go to their "house. My mother and J. E. Mettle were friendly and we all saw a. "lot of each other. Up to the time of his death J. E. Mettle " recognised these people as his children and I always knew them as "such. Apart from those of the children who are now dead I do not "know of any other children of J. E. Mettle than the twenty lessors " named in the lease Exhibit' A ' ".

It is to be noted that the witness Aryeetey, besides being an intimate friend of the deceased and of his children, was also appointed by the Court to be the Receiver and Manager of the deceased's estate, and as such was charged' with the distribution of the rents of the deceased's estate among the children. This appointment was made on 6th February, 1932, on the application of the same twenty persons as are joined as co-plaintiffs in this suit. Since his appointment the witness Aryeetey has distributed the rents among the same persons as granted the lease to G. B. Ollivant & Co., Ltd., and no one in the family has thought fit to contest that these are the rightful devisees. Aryeetey was undoubtedly a witness with an excellent opportunity of knowing, and a duty as Receiver and Manager to satisfy himself, whom the deceased meant by " all my children living at my death".

The learned Judge in the Court below apparently believed and accepted the evidence of the witness Aryeetey as to these facts. No evidence whatever was offered by the defendants in contradiction of Aryeetey's evidence. No fact or custom was given in evidence by the defendants suggesting that anyone of these twenty persons was not recognised by the deceased up to his death as his child; or that there was any other child of the deceased who should have been included and is not. In that position of the evidence I think that the learned Judge in the Court below was quite justified in coming to the conclusion he did.

It appears that the defendants had a lease of the property in question granted by Isaac Annan Mettle and Joseph Adjetey Okai "as Administrators of the Estate of Joseph Edward Mettle deceased" . It is not suggested in evidence that these parties had any legal right to grant that lease and that lease can nave no effect as against the plaintiffs. The defendants mayor may not have a legal remedy against their lessors in respect of the position which has arisen but that question does not affect the issues in this case.

I t follows that in my view this appeal should be dismissed with costs to the respondents.

Note.-I may add that some days after the arguments in this appeal had been heard and judgment reserved, counsel for the appellants referred to three cases. I had already written the judgment which I have just read but I have since looked at these cases and find that they have in my opinion no application to the questions upon which the decision of this appeal turns.

KINGDON, C.J., NIGERIA.

I concur.

YATES, ACTING C.J., GOLD COAST.

I concur.

 

 

163

G. B. Ollivant

& Co .• Ltd. &. orB.

T.

H aroun Brothers & ors.

Graham Paul, J.