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OFOLEY SOLOMON, ETC.
V.
ALEXANDER MENSAH ALLOTTEY AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
16TH DAY OF DECEMBER, 1941
LEX (1941) – VII WACA PP. 195 – 197
OTHER CITATION(S)
(1941) VII WACA PP. 195 – 197
2PLR/1941/39 (WACA)
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
M’CARTHY, J.
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BETWEEN:
OFOLEY SOLOMON OF ACCRA, AS HEAD OF THE LATE NEE ADJABENG ANKRAH OF ACCRA, AND ON BEHALF OF HERSELF AND THE MEMBERS OF THE SAID NEE ADJABENG ANKRAH’S FAMILY – Plaintiff
AND
ALEXANDER MENSAH ALLOTTEY AND ABANG KOFI ALIAS THOMAS BONNEY COFIE EXECUTORS AND TRUSTEES, AND EMMANUEL OBENG, ANKRAH ALIAS NEE OBENG, KWAKU NYAME ANKRAH ALIAS MARK DAVID ADJABENG ANKRAH, AYORKOR ANADJUAH, KWAOFIO, AKU SOLOMON, ARYEE KARLEY AND JOSE SOLOMON ALIAS JOSIAH ADJABENG SOLOMON, BENEFICIARIES UNDER THE WILL OF WILLIAM ADJABENG SOLOMON, LATE OF ACCRA, DECEASED – Defendants
Re THOMAS BONNEY COFIE – Appellant
AND
EMMANUEL OBENG ANKRAH – Respondent
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REPRESENTATION
Dr. J. B. Danquah — for Appellant
K. A. Bossman — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Property of an testator ruled to be family property — Order made for payment out of monies paid in by receiver appointed by Divisional Court when Divisional court had held it had no jurisdiction to hear main action — Main action for declaration that property devised by testator was family property — When properly determined — Proper order for Divisional Court to make regarding monies held
DEBTOR AND CREDITOR — RECEIVERSHIP:- Receiver appointed by court to receive and paid into court accruals relating to a property in dispute — Where court subsequently shown to have no jurisdiction over matter — Proper treatment of
FAMILY LAW — FAMILY PROPERTY:- Declaration that property of testator was family property — Legal implications
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PRACTICE AND PROCEDURE ISSUE(S)
JURISDICTION:- Interim orders made by court before it determined a question regarding its jurisdiction to hear suit — Interim order appointing a receiver to receive and pay in money accruing from disputed property into court — Where court subsequently rules itself lacking in jurisdiction — Proper order to make regarding money in court
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CASE SUMMARY
[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 the 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 no jurisdiction as parties had been referred to a competent Tribunal.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. Divisional Court has jurisdiction as Court may, subject to particular rules, make any order necessary for doing justice. All orders of the Court carry with them in gremio liberty to apply to the Court.
2. 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.
3. The testator had no power of disposal of the properties the subject matter of the proceedings as they were family properties and did not fall into the estate and the executors and trustees of the Will had no interest in either the property or its proceeds.
Cases cited:
Fritz v. Hobson (1880) 14 Ch: 542 p. 561.
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MAIN JUDGMENT
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 announced in the Ga Manche’s Tribunal between the same parties. Plaintiff, by her writ, claimed a declaration that some fourteen “Real properties devised by the late William Adjabeng Solomon alias Nee Adjabeng Ankrah to the defendants being executors and trustees and 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 the Supreme Court of the Gold Coast are the family properties of the late Nee Adjabeng Ankrah of whose family the plaintiff is now the head and for an injunction . . . . .”
The Tribunal held that the properties devised by the Will 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 a cross-appeal on any point. This appeal was dismissed by the 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, Receiver and Manager appointed by Order of the Court made herein on the 7th day of March, 1937, to take charge and control of the said properties the subject matter of the suit pending the hearing and determination of the suit— and for any further or other Order as to the Court may seem meet.”
On the 24th June, Mr. Justice Strother-Stewart made an 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 properties the subject matter of the proceedings as they were family properties and did not fall into the estate and the executors and trustees of the Will had no interest in either the property or its proceeds. The second defendant, one of the executors and trustees of the Will, has, however, appealed from the order of Strother-Stewart, J.
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 set it forth. It reads:
“The Court had no jurisdiction in making an order to draw money in a case is 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 5s 6d.
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