Privy
Council Appeals Nos.
82 & 137 of 1936
These are two appeals,
consolidated by order of the
Board, against two judgments of
the West African Court of
Appeal, dated respectively the
19th and the 21st December,
1935, in two suits relating to
the estate of the late Thomas
Hagan, a native, who died at
Winneba in the Central Province
of the Gold Coast Colony on the
9th July, 1931.
The appellants are the brothers
and sister of the deceased, and
they were granted letters of
administration of his personal
estate by the Divisional Court
of the said Province on the 22nd
February, 1932. The respondents
Effuah Adum and her children
claim to be interested in the
estate, both real and personal,
as the domestic" slave-wife" and
children of the deceased. The
respondent Araba Tanuah
claims to be interested in the
estate as the head of the family
of the deceased. It is common
ground that the succession to
the estate falls to be
determined according to the
native customary law.
The first suit, which may be
referred to as suit A, was
initiated by the issue of a
summons in the Native Tribunal
of Winneba on the 21st November,
1933, by the respondent Adum, on
behalf of herself and her
children, calling on the present
appellants 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 should not be designated.
On the 28th November,
19331
the appellants applied to the
Court of the Provincial
Commissioner of the' Central
Province for the transfer of the
above suit to the Divisional
Court on. the ground that the
Native Tribunal had no
jurisdiction to try it, and
the' Native Tribunal thereupon
suspended the hearing of the
suit. On the 2nd February, 1934,
the Court of the Provincial
Commissioner dismissed the
application, finding as a fact
that the deceased had lived and
died at Winneba, and holding
that the Native Tribunal had
jurisdiction. The appellants
appealed therefrom to the
Divisional Court of the
Province, but they withdrew the
appeal by leave of the Court on
the 27th October, 1934, with a
view to reaching an amicable
settlement.
On the 21st December, 1934,
hearing notices in suit A were
issued, and on the 3rd January,
1935, the Tribunal granted an
ex parte
motion by the respondent Araba,
as head of the family of the
deceased, to be joined as
co-plaintiff in the suit.
On the 8th January, 1935, the
hearing before the Native
Tribunal, which had been
suspended, was resumed. The
appellants again objected to the
jurisdiction of the Tribunal,
but this objection was
over-ruled by the Tribunal, in
view of the decision of the
Provincial. Commissioner's Court
on the motion for transfer. The
appellants thereafter refused to
cross-examine or gave any
statement before the Tribunal,
and, after hearing evidence, the
Native Tribunal held that the
value of the personal estate had
been proved to be about £15,000,
and gave judgment in favour of
the respondent Adum and her
children for one-fourth of the
£15,000, which was £3,750, plus
one-fourth of the immoveable
properties, and the remaining
three-fourths of-the amount of
the personal estate and the
immoveable properties were to be
under the control of the
respondent Araba Tanuah, the
head of the deceased Thomas
Hagan's family
The appellants
appealed to the ' Court
of the Provincial
Commissioner, but, at the
hearing of the appeal on
the 12th July, 1935, the Court
sustained an objection by
the respondents that the appeal
was not competent in
that Court, and
dismissed the appeal. On an
appeal, this decision was
affirmed by the West
African Court of
Appeal on the .19th,
December, 1935. This Judgment
is the first
of the two
Judgments against which this
appeal is taken.
Turning
now to the second suit, which
may. be called suit B, the
writ of summons was issued in
the Divisional Court of
the Central Prov'ince on the 6th
February, 1935, by the
respondent Araba Tanuah against
the appellants, claiming as head
of the family for herself and on
behalf of other members of
the family, of which she stated
the appellants were members,
that account should be taken of
all the personal estate of the
deceased, which had come into
the possession of and under the
control of the .appellants prior
to and Since the grant of
letters of administration by the
Court to the appellants, and for
an administration order to be
made in regard to the estate. By
judgment dated the 25th March,
193.5, the Divisional Court (Strother-Stewart
J.)
gave judgment for the present
appellants. The learned Judge
was satisfied that the
respondent Araba Tanuah was head
of the family, to which the
appellants belong, but he held
that she had not established
such an interest as would
entitle her to call the
appellants to account, as it had
not been proved that she or the
members of the family, other
than the appellants, were
entitled to any portion of it.
The learned Judge disregarded
the decision of the Native
Tribunal in suit A, although it
had been submitted to him that
that judgment constituted
res judicata.
On an appeal by the respondent
Araba Tanuah, the West African
Court of Appeal on the 21st
December, 1935, set aside the
judgment of the Divisional
Court, and granted the
respondent the relief claimed
by
her. This judgment is the second
judgment here appealed against.
The Court of Appeal agreed with
the finding of the Divisional
Court that the said respondent
was head of the family, but they
held that the question whether
the property was self- acquired
or whether the respondent had
any interest in it was decided
by the Native Tribunal in the
respondent's favour and was
binding.
In the first place, an attempt
by the appellants to found on an
alleged arbitration award, prior
in date to the decision of the
Native Tribunal, may be disposed
of. It is perhaps enough to say
that the contention that there
was a binding award, which
precluded the respondent Adum
from suing on anything but the
award, appeared for the first
time in the body of the
appellants' case in this appeal,
but it does not appear among the
reasons of appeal. Further,
although some of the arbitrators
gave evidence as to it at the
hearing before the Native
Tribunal, its date is not
proved, and the evidence was
quite insufficient to prove that
the award was accepted as final
and binding by the parties. It
is not surprising, therefore,
to find the present appellants'
pleader, at the hearing before
the Divisional Court on the 20th
February, 1935, maintaining that
the arbitration did not
eventuate into an award. Their
Lordships, in these
circumstances, are not prepared
to entertain, at this late
stage, such a contention, as
they are not satisfied that the
evidence establishes beyond
doubt that the facts, if fully
investigated would have
supported the new plea.
Connecticut Fire Insurance
Company
v.
Kavanagh,
[1892J A.C. 473, at p. 480.
The appellants' main contentions
challenge the jurisdiction of
the Native Tribunal over the
subject matter of suit A. It
.will be noted that suit A
relates to the whole estate of
the deceased, both real and
personal, while suit B relates
only to the personal estate, but
the judgment against the
appellants in suit B assumes the
validity of the judgment of the
Native Tribunal. The
jurisdiction of a Paramount
Chief's Tribunal at the material
date, was conferred by section
43 of the Native Administration
Ordinance, cap. Ill, 1928, which
provided as follows :-
43.-(1) A Paramount. Chief's
Tribunal shall have and may
exercise within the State of
such Paramount. Chief civil
jurisdiction for the hearing and
determination of the causes and
matters hereinafter mentioned
in which all parties are natives
and the defendant was at the
time when the cause of action
arose within such State, or in
which any party not being a
native consents in writing to
his case being tried by such
Paramount Chief's Tribunal.
Provided always that a Paramount
Chief's Tribunal shall not,
unless the parties shall agree
thereto, have any jurisdiction
in any cause or matter where it
appears either from express
contract or from the nature of
the transactions out of which
such cause or matter shall have
arisen that the parties
expressly or by implication
agreed that their obligations in
connection with such
transactions should be regulated
substantially according to the
provisions of some law or laws
other than native customary law,
or where otherwise some other
such law or laws as aforesaid is
or are properly applicable
thereto.
(2) The causes and matters
hereinabove in this section
referred to are the following :-
(a)
Suits to establish the paternity
of children, other than suits in
which some question affecting
rights arising out of any
Christian marriage is or may be
involved;
(b)
Suits relating to the custody of
children, other than suits in
which some question affecting
rights arising out of any
(Christian marriage is or may be
involved i
(c)
Suits relating to the ownership,
possession, or occupation, of
lands situated within the State
of such Paramount Chief
(d) Suits
for divorce and other
matrimonial cause. between
natives married under native
.
customary law
(e)
Persona! suits in which the
debt, damage, or demand does
not exceed one hundred
.
pounds
(f)
Suits and matters relating to
the succession to the property
of any deceased native who
.
had at the time of his
death a fixed place of abode
within the State; and.
(if) Any other causes and
matters by this ordinance
expressly assigned to a
Paramount Chief's Tribunal or to
a dated)
Divisional
Chief's Tribunal.
-
In the first place, the
appellants maintained that it
had not been established that
the appellants were" at the time
when the cause of action arose
within such State". But this
question of fact was decided
against the appellants on their
motion for transfer of suit A by
the judgment of the Provincial
Commissioner's Court dated the
2nd' February, 1934, the appeal
against which was withdrawn by
the appellants, and their
Lordships are not prepared to
entertain this contention now.
In the second place, the
appellants submitted that the
letters of administration having
been granted by the Divisional
Court of the Province, suit A
should have been instituted in
that Court, which, if it had so
desired, could have referred any
question relating to native
customary law to a Native
Tribunal under section
59 (1) of the Ordinance. They
further suggested that, by her
part in suggesting that the
appellants should be the parties
to apply for the letters of
administration, the respondent
Araba Tanuah had elected to
proceed in that Court; and,
lastly, that a writ to have the
estate valued and a share
declared was not within the head
(f) of section 43 (2).
These points really all turn on
the proper construction of head
(f). Counsel for the appellants
submitted that this head only
included suits as to the right
to succeed, and did not include
such matters as valuation of the
estate, a declaration as to the
amount of the share to which a
successor was entitled, or the
distribution of the estate.
Their Lordships see -no reason
for such a narrow construction
of the words" suits and matters
relating to the succession to
the property", as, in their
opinion, distribution of the
estate naturally comes within,
the meaning of these words, and
valuation of the estate is
necessarily incidental to
ascertainment of the shares for
the purpose of distribution.
They agree with the view
expressed by both the Courts in
suit A that that suit is a suit
relating to the succession to
the property of the deceased
within the meaning of head
(f)
of section 43 (2). If this be
so, there can be no reason why
letters of administration should
not be obtained in one Court,
and proceedings relating to the
distribution of the estate
should be dealt with by another
Court. There can be no reason
for rendering nugatory the
jurisdiction conferred by head
(f),
and none of the Courts below
have felt any practical
difficulty in the matter.
Accordingly the application for
letters of administration in the
Divisional Court cannot
preclude any party from
instituting proceedings relative
to distribution before the
Native Tribunal.
The appellants maintained,
thirdly, that suit A was a
personal suit for more than
£100, and that the jurisdiction
of the Native Tribunal was
excluded by the terms of head
(e)
of section 43 (2), and,
fourthly, it being admitted that
two houses which formed part of
the succession were not situated
within the State, that
jurisdiction was excluded by the
terms of head
(c)
of section 43
(2). Both these contentions are
based on a construction of sect
on 43 (2) which their Lordships
do not accept. In their opinion,
while each of the heads (a)
to (g) is subject to
the provisions of sub-section
(1) of section 43, each head in
sub-section (2) affords a self
contained subject of
jurisdiction, which is
independent of the other heads,
and it. is illegitimate to
import the qualifications or
conditions expressed in one of
the heads into any of the other
heads. From this it follows that
as suit A falls within head
(j) and satisfies the
provisions of sub-section (1),
heads (c) and (e)
of sub-section (2) are
irrelevant on the question of
jurisdiction. Both Courts below
took the same view.
Their Lordships are therefore of
opinion that the Native Tribunal
had jurisdiction to deal with
suit A.
Lastly, the appellants sought to
have the judgment of the Native
Tribunal reviewed on the merits
by this Board, but their
Lordships agree with the \Vest
African Court of Appeal that the
judgment of the Native Tribunal
is now final and binding on the
appellants. That judgment was
given on the 8th January, 1935,
and the appellants appealed to
the Court of the Provincial
Commissioner, leave to appeal
being granted on the 4th May,
1935. That appeal was dismissed
on the ground that suit A was a
suit relating to the succession
of property, in regard to which
the only right of appeal lay to
the Court of the District
Commissioner under section 74 of
the Ordinance, and was not a
suit or matter