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jurisdiction-Administrator suing also as successor-Defendant claiming to be successor-Native Courts (Ashanti) Ordinance (Cap. 80), section 35­Courts Ordinance (Cap. 4), sections 14 and 17.

Section 14 of the Courts Ordinance confers jurisdiction on the Supreme Court but section 17 provides that the Court shall not exercise it in a civil case subject to section 35 of the Native Courts (Ash anti) Ordinance: under this section 35 suits relating to succession to property of a deceased native are within the jurisdiction of the Native Court.

The appellant (plaintiff below) after obtaining letters of administration sued the respondent (defendant below) claiming as administrator of and as successor by native customary law of the deceased recovery of certain articles from the defendant; the defendant disputed the claim; the Court stopped the case, in view of the said section 35 and Hagan v. AdU1n, 5 W.A.C.A., 35 (P.C.).

The plaintiff appealed arguing that as he had established his right to administration, he must be assumed to be the successor and no issue of succession was left for the Native Court; that the only matter left was his right as adminis­trator to call in from defendant the personal property of the deceased for distribution; and that the Supreme Court has concurrent jurisdiction by virtue of section 14 of the Courts Ordinance.

Held: (1) The fact that plaintiff obtained letters of administration did not prove that he was the successor of the deceased or preclude another person from· establishing in other proceedings that he was the successor by customary law.

(2) By claiming not only as administrator but also as successor of the deceased by customary law, the plaintiff undertook to prove as a condition to succeeding on his claim, that he was the successor; this dispute as to succession being within the jurisdiction of the Native Court, the Supreme Court, though having jurisdiction, should not exercise it in view of section 17 of the Courts Ordinance.

Cases cited :--

(1) Hagan v. Adum, 5 W.A.C.A. 35 (Privy Council).

(2) Ababio v. Ackumpong, 6 W.A.C.A. 173.

Appeal from Supreme Court by plaintiff: No. 12/50.

j. B. Siriboe for Appellant.

No appearance for the Respondent.

The following judgments were delivered:

Coussey, j. On the 21st of March, 1949 the plaintiff obtained an order in the Divisional Court against the defendant as caveator for Letters of Administration of the personal property of the deceased Kwaku Sampaney alias Kwasi Brafo. On the 30th September, 1949, the plaintiff commenced this action against the defendant claiming as Administrator of and as Successor by native customary law of the deceased, recovery of possession of certain, .chattels amongst which are [pg 8] an Albion lorry, a single barrel gun, promissory notes and documents of sundry debtors and also the documents of title in respect of a house in Kumasi.

The defendant disputed the plaintiff's claim to recover these articles and thereby put in issue the plaintiff's right to the property both as administrator and as successor of the deceased. The plaintiff having been declared administrator the defendant could not have contested the suit on that score. But the plaintiff claimed also, possession of the articles as successor by native customary law. and the Court on the authority of the Privy Council decision in Hagan v. Adum (1) stopped the further progress of the action in view of the provision of section 35 of the Native Courts (Ashanti) Ordinance (Cap. 80) and the first schedule to that Ordinance which gives to Native Courts of Grade" B" jurisdiction in " suits and matters relating to the succession of property of any deceased" and referred the parties to the appropriate Court.

On this appeal Mr. Siriboe for the plaintiff-appellant has argued with con­siderable force that as the plaintiff had already succeeded in establishing his right to a grant of Letters to administer the personal property of the deceased it must be assumed that he is the successor of the deceased and that there was no issue as to succession which could properly be referred to the Native Court. There have however been many decisions of this Court and Divisional Courts that the grant of Letters of Administration of personal property of a deceased person leaves open for decision the issue as to who is the successor of the deceased by native customary law, for the simple reason that a grant in respect of personal property is made to that person usually amongst the next-of kin who the Court considers the most suitable to administer the personal estate. That person may be the successor but he is not necessarily the successor and a grant of Letters of the personal estate does not preclude another person from establishing in other proceedings that he is in fact the successor by native customary law of the deceased. There are many instances where that issue has been decided after the grant of Letters of the personal estate.

Mr. Siriboe has further submitted that since this appeal was lodged the parties have litigated over the house and that the plaintiff was successful as against the defendant and he asks therefore that this Court may direct the Divisional Court to proceed with the suit on the basis that the only matter now for adjudication is the right of the plaintiff as administrator to call in from the defendant the personal property for distribution. He argues that the Divisional Court has concurrent jurisdiction with the Native Court by virtue of section 14 of the Courts Ordinance (Cap. 4) and that the Divisional Court should therefore exercise jurisdiction and not refer the matter to the Native Court.

That argument in my opinion overlooks firstly the claim of the plaintiff and secondly the plain direction of section 17 of the Courts Ordinance. As to the claim it will be noticed that the plaintiff claims not only as administrator but as successor by native customary law of the deceased. He therefore assumes the burden to establish, as a condition to succeeding on his claim, that he is the successor by native customary law. Section 17 of the Courts Ordinance provides that notwithstanding that the Court has jurisdiction it shall not exercise the jurisdiction vested in it in Ashanti in a civil cause or matter subject to the provision of section 35, of the Native Courts (Ash anti) Ordinance (Cap. 80) and when that Ordinance is looked at it is seen that suits relating to succession to property of a deceased native are within the jurisdiction of the Native Court. It follows, that although the Supreme Court has jurisdiction in the suit by virtue of section 14 of the Courts Ordinance it will not exercise that jurisdiction because of section 17 of the Ordinance.

In my view the learned Judge was right in referring the parties to the Native Court and I consider the case of Ababio v. Ackumpong (2) applicable to the case [pg 9 ] as well as Hagan v. Adum (3). For these reasons I would dismiss the appeal without costs as the respondent has not appeared.