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Jurisdiction of Divisional
court-Order made for payment out
of l1wnies paid in by recei1Jer
appointed by Divisional Court
when Divisnonal Court had held
no jurisdiction to hear m8in
action--M ain 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 whilat he had had
control of the properties
pending the determination of the
suit. One of the executors
appealed against this Orde, on
ground that Court had
nojurisdiction as parties had
been referred to a competent
Tribunal.]
He1d: 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. Hob.wn
<!880) 14 Ch: 542 p. 561.
Dr .T. B. Danquah for
Appellant. K. A. Bo.~sman
for Respondent.
Appeal from order of the
Divisional Court.
196
Dfoley Solomon etc.
v.
Alexander Mensah Allotey
& ors.
Kingdon, Petrides, C.JJ. and
M'Carthy, ].
Ofoley Solomon etc. v. A. M.
Allotey
·ct 01'S.
The following joint judgment was
delivered:KINGDON, C.J.,
NIGERIA, PETRIDES, C.J., GOLD
OOA8 AND M'CARTHY, J.
On the 8th July, 1938, Strother-Stewart,
J., held he had.J jurisdiction
to try' this action and that
plaintiff must seek h remedy in
the appropriate Tribunal.
Proceedings were then commenced
in the Ga Manche Tribunal
between the same parties.
Plaintiff, by het· wri claimed a
declaration that some fourteen "
Real properties devisl by the
late William Adjabeng Solomon
alias Nee AdjabeI Ankrah to
the defendants being executors
and trustees aI devisees under
the said Will of the said
William AdjabeI
Solomon alias Nee
Adjabeng Ankrah, Probate of whi4
said Will was on the 23rd day of
November, 1936, granted by tJ
Supreme Court of· the Gold Coast
are the family properties of tJ
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-a:«;quired
properties of Nee Adjabeng Ankrl
.but belonged to the Nee
Adjabeng Family and that third
defenda was the head of that)
family.
The plaintiff appealed from the
decision as to the headsh of the
family but the second and third
defendants did not file
cross-appeal on any point. "This
appeal was 'lismisS"OO .by t
West African Court of Appeal on
the 13th May, 1941.
Third defendant thereupon by
notice, dated 16th June, 194
moved the Divisional Court " for
an Order of the Court for pa
ment to the said Nee Obeng in
his capacity as Head of the Fami
of the late Nee Adjabeng Ankrah
of all monies paid into 0011 to
the credit of this suit by
Alexande~Konuah, Esquire, Receiv
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 Oider
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 wi by him. in accordance
with law.
It results from the judgment of
the Ga Manche'8 TribUII that the
testator had no power of
disposal of the propertie8 t:
subject matter of the
proceedings as they were family
properti and did not fall into
the estate and the executors and
trustee8 the Will had no
interest in either the property
or its proceec The second
defendant, one of the executors
and trustees of t: 'Vill, has,
however, appealed from the order
of Strother-Stews] J.
G/oley Solornon etc. v.
A. M. Allotcy
9" o'rs.
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 Tri'bunal 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.
197
Ofoley Solomon etc.
v.
Alexander Mensah Allotey
& ors.
Kingdon, Petrides, C.JJ. and
M'Carthy, J.
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