Jurisdiction of Divisional Court-Order made for payment out of monies paid in by receiver appointed by Divisional Court when Divisional Court had held no jurisdiction to hear m8in action--Main action for 'declaration that property devised by testator was family property.

       [An action for declaration that real properties disposed of by Will was family property was instituted in Divisional Court. Divisional Court .Judge held he had no jurisdiction. Proceedings were then taken in the Ga Manche's Tribunal who held that the property was family property. The Head of Family as such moved the Divisional Court and obtained an order for payment to him of money paid into Court by receiver previously appointed by the Divisional Court to the credit of this suit whilst he had had control of the properties pending the determination of the suit. One of the executors appealed against this Order, on ground that Court had no­jurisdiction as parties had been referred to a competent Tribunal.]

    Held: Divisional Court has jurisdiction as Court may, subject to particular rules, make any order necessary for doing justice. All order. of the Court carry with them in gremio liberty to apply to the Court.   Case cited:-

  Fritz v. Hobson (1880) 14 Ch: 542 p. 561.

Dr .J. B. Danquah for Appellant.

K. A. Bossman for Respondent. pg196

The following joint judgment was delivered:­

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

On the 8th July, 1938, Strother-Stewart, J., held he had. no jurisdiction to try' this action and that plaintiff must seek her remedy in the appropriate Tribunal.

Proceedings were then commenced in the Ga Manche Tribunal between the same parties. Plaintiff, by her· writ claimed a declaration that some fourteen " Real properties devise by the late William Adjabeng Solomon alias Nee AdjabeI Ankrah to the defendants being executors and trustees as devisees under the said Will of the said William Adjabeng Solomon alias Nee Adjabeng Ankrah, Probate of which said Will was on the 23rd day of November, 1936, granted by t Supreme Court of· the Gold Coast are the family properties of the late Nee Adjabeng Ankrah of whose family the plaintiff is now t] head and for an injunction ..... , "

The Tribunal held that the properties devised by the W: were not the self-acquired properties of Nee Adjabeng Ankrah .but belonged to the Nee Adjabeng Family and that third defendant was the head of that family.

The plaintiff appealed from the decision as to the headship of the family but the second and third defendants did not file cross-appeal on any point. "This appeal was 'dismissed .by t West African Court of Appeal on the 13th May, 1941.

Third defendant thereupon by notice, dated 16th June, 1941 moved the Divisional Court " for an Order of the Court for payment to the said Nee Obeng in his capacity as Head of the Family of the late Nee Adjabeng Ankrah of all monies paid into court to the credit of this suit by Alexander Konuah, Esquire, Receive and Manager appointed by Order of the Court made herein on t 7th day of March, 1937, to take charge and control of the 8a properties the subject matter of the suit pending the hearing al determination of the suit-and for any further or other Order as the Court may seem meet."

On the 24th June, Mr Justice Strother-Stewart made :

Order for the monies' to be paid to the applicant, to be dealt with by him. in accordance with law.

It results from the judgment of the Ga Manche's Tribunal that the testator had no power of disposal of the propertie8 t: subject matter of the proceedings as they were family property and did not fall into the estate and the executors and trustee8 the Will had no interest in either the property or its proceed The second defendant, one of the executors and trustees of the will, has, however, appealed from the order of Strother-Stewart J.pg 197

There is no substance in any of the grounds of appeal but: as one of them raises a point of practice of some importance, we !>et it forth. It reads:-

" The Court had no jurisdiction in making an order to draw money "in a case in respect to which the parties had been referred to. a " competent Tribunal the suit having thereby ceased to be pending in "the Supreme Court."

By the Order of the Court of the 9th March, 1937, Alexander Konuah was appointed Receiver and Manager to collect the crops and the rents of the property in dispute with directions to pay the proceeds into Court to the credit of the suit. The executors and trustees were by this order required to pay into Court all monies they had received.

Order 5 Rule 2 of Schedule 2 of the Courts Ordinance provides that, subject to particular rules, the Court may in all causes or matters make any order necessary for doing justice.

As stated by Fry, J., in Fritz v. Hobson (1880) 14 Chancery Division 542 at page 561 (on an application made after judgment had been delivered, drawn up and passed) all orders of the Court carry with them in gremio liberty to apply to the Court.

In our opinion the order of the 9th March, 1937, was not a final one as it had to be followed by one directing the money collected to be paid out to the person entitled and this could be made at any time even after the parties had been referred to the appropriate Tribunal.

In our opinion the correct procedure was followed in this case.

The appeal is dismissed with costs assessed at £20 58 6d.