Appeal Court. 4th June, 1938. Appeal by way of case stated by Divisional Court of Eastern Province.

Declaration of title to real properties devised by Will-Family properties--Injunction-Head of Family

Issues (1) Is the present plaintiff the head of the family and therefore entitled to maintain action?

(2) Are the properties devised in the said Will family properties or properties self acquired by the testator?

Jurisdiction-Section 48 (2) (c) (I) of Native Administration Ordinance and Section 76 of Courts Ordinance-Ruling of West African Court of Appeal in Yarnuah IV v. Kwa Owuayern Sekyi contrasted.

CASE STATED FOR OPINION OF WEST AFRICAN COURT OF APPEAL.

This is the case, part heard before me, in which the plaintiff claims as head of the family of the late Nee Adjabeng Ankrah of Accra, on behalf of herself, and the members of the said Nee Adjabeng Ankrah family, a declaration of title that a number of real properties are family properties, and an injunction restraining the defendants from dealing with them pending the hearing and determination of the said claim.

All the parties are natives.

The subject matter of the claim amounts in value of several thousands of pounds.

The properties claimed were devised to certain of the defendants in the Will of William Adjabeng Solomon, known as of Nee Adjabeng Ankrah II, which Will is dated the 30th day of May, 1928. Probate of the said Will was granted by this Court on the 23rd November, 1936, to two of the defendants-a third executor having renounced probate. The said William Adjabeng Solomon acted as head of the said family for a large number of years. Two separate defences have been filed, one on behalf of the executors and trustees of the said Will, and such devisees as have not renounced their devises, claiming that the said real Properties are not family properties, but were acquired by the said testator by his own exertions, with his own money, and for himself; and the other by four other members of the family, who claim the said real properties as family properties, but say that the present plaintiff is not the head of the family, and cannot, therefore, maintain the present claim. One of these four defendants claims to be head of the family by election in accordance with native custom, and has instituted a separate action on behalf of the said family, which separate action is also pending before this Court.

As all the lawyers engaged in the case contended I had juris­diction, and were anxious for me to try the case, which they described as urgent, I allowed the case to be opened, and certain evidence to be called in order to ascertain the real issues involved.

I came to the conclusion that the issues were two: (1) Is the present plaintiff the head of the family, and therefore entitled to maintain the action? (2) Are the properties devised in the said Will family properties, or properties self acquired by the testator?

Section 48 (2) (c) and (f) of the Native Administration Ordinance confers jurisdiction on a Paramount Chief's Tribunal, where the parties are natives, and the cause of action arose within the State of such Paramount Chief in:-

" (c) Suits relating to the ownership, possession, or "occupation, of lands situated within the State of " such Paramount Chief, and

" (I) 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."

Section 76 of the Courts Ordinance gives me the power where a question arises as to the rights of any native under native law and custom to refer such question to a competent Native Court for determination.

I could refer both the issues in the present case to such a Native Court, and if they were decided by such Native Court I could adopt such decisions, and the case would be disrobed of without my having to try them.

This practical test of the issues involved seems to me to show that the ease is one properly triable by a Paramount Chief's Tribunal under :section 48 (2) (c) and (I) of the Native Adminis­tration Ordinance, and therefore not within my jurisdiction.

Some  of  the counsel  in  the present  case  contend  that  I  have  jurisdiction to try the case  under the proviso to section 48 of the Native Administration Ordinance as the properties have been devised under a Will, and that therefore the parties have by implication agreed that their obligations shall be regulated according to the provisions of some law other than native law.

But can it be said that the mere fact that a testator devises by Will certain property automatically makes the case one which Bannerman comes within the proviso to section 48 of the Native Administration Ordinance, and that in a case which involves only the question whether the property devised is family property or not, the parties to such action shall be taken to have agreed to be bound by English law? The present case is not a case of the Court being asked to construe the Will, nor do the issues involved affect the Will itself, except indirectly, in that if the issues were decided in favour of plaintiff, and the properties were found to be family properties, certain of the devisees would have nothing to take.

It is difficult to see how the plaintiff, who close not recognise the Will, or take any interest under it, can be taken, either expressly or impliedly, to have agreed to be bound by law other than native law.

A case of my own, namely Yamua IV v. Kwa Owuayem Sekye, Suit No. 50/1932, tried by me at Cape Coast, and in which I gave judgment on the 28th March, 1935, has been quoted as showing that I have jurisdiction to try the present case. It was a case similar to the present case except that the properties claimed in it were all personalty. The case went to the West African Court of Appeal, where (inter alia) the question of jurisdiction was raised. The decision of the West African Court of Appeal or: the 3rd day of March, 1936, in that case was: "It appears " clear to this Court that from the nature of the transaction out "of which this matter arose. the parties by implication have " agreed that their obligation in connection with such transaction " should be regulated substantially according to the English law "as to Wills. The jurisdiction of the Paramount Chief's " Tribunal was therefore ousted, the case was properly cognisable " by the Supreme Court and this ground of appeal fails."

It was a case in which personalty amounting to several thousands of pounds had been devised by a wealthy stool holder. The plaintiff in that case claimed that the personally was stool property and not self acquired.

If the judgment in that case is to be of general application. and that in every case where property, real or personal, is devised by Will, the Supreme Court has jurisdiction then clearly I have  jurisdiction in the present case. I have my doubts, however, as to whether that was the intention of the West African Court of Appeal.

No doubt in the present case, where valuable properties are concerned, the parties are anxious for the issues to be tried by the Supreme Court instead of by a Paramount Chief's Tribunal.

The present case will be a very lengthy one. No less than seven senior members of the Bar are engaged in it,- and it would be a serious loss of time, and money, if it turned out I had no jurisdiction. I think, therefore,-and counsel in the case think the same,-that the opinion of the West African Court of Appeal should be taken on the points of jurisdiction involved.

The points on which the opinion of the West African Court of Appeal is asked are:-

(1) Is a case ousted from coming within the jurisdiction of a Paramount Chief's Tribunal under section 48 (2) (c) and (f) of the Native Administration Ordinance by the mere fact that some, or all, of the property, real or personal, has been devised by a 'Will ?

(2) Have I, on the facts stated in the present case, jurisdiction to try it?

Frans Dove for Plaintiff.

J. H. Coussey (with him A. W. Kojo Thompson) for first, second, seventh, eighth and ninth Defendants and the two Co-Defendants.

D. M. Abadoo (with him Olei Awere) for third, fourth, fifth and sixth Defendants.

The following opinion of the Court was given:-

KINGDON, C.J., NIGERIA, BANNERMAN AND DOORLY, JJ.

The Court is asked its opinion on the following two questions: -

(1) Is a case ousted from coming within the jurisdiction of a Paramount Chief's Tribunal under section 48 (2) (c) and (f) of the Native Administration Ordinance by the mere fact that some, or all, of the property, real or personal, has been devised by a Will ?

(2) Have I, on the facts stated in the present case, jurisdiction to try it?

The first question is put in wide and general terms, far wider than the question which arises in the present case. We answer it in the negative.

The question in this and similar cases turns on one of fact to be decided by the trial Judge on the particular facts of each individual case-Does it appear from the nature of the transaction out of which the cause or matter shall have arisen that the parties expressly or by implication agreed that their obligations in connection with the transaction should be regulated substantially in accordance with English law?

The answer to the learned trial Judge's second question is therefore--

If you decide the facts so as to answer the above question in the affirmative, the answer to your question is in the affirmative.

If you decide the facts so as to answer the above question in the negative, the answer to your question is in the negative.

It is ordered that the costs of all parties upon this case stated shall be costs in the cause. They are assessed at fifteen guineas in the case of each party.