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BROBBEY
V.
YAW KYERE
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
1ST DAY OF DECEMBER, 1936
2PLR/1936/28 (WACA)
OTHER CITATION(S)
(1936) III WACA PP. 106 – 107
LEX (1936) – III WACA PP. 106 – 107
2PLR/1936/28 (WACA)
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBBER, C.J., SIERRA LEONE
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BETWEEN:
BROBBEY – Plaintiff-Appellant
AND
YAW KYERE – Caveator-Respondent
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REPRESENTATION
H. A. Hayfron-Benjamin – for Appellant
J. W. de G. Johnson – for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING – SUCCESSION:- Procedure under native law and custom when the question of succession to an estate is in issue – Distinction from an administration suit where the claimant for a grant of Letters of Administration seeks to take over the property by right of his relationship to the deceased – Legal effect
ESTATE ADMINISTRATION AND PLANNING – SUCCESSION:- Customary law bequest – Inheritance of properties in accordance with a death-bed declaration made in the presence of accredited witnesses and confirmed with “great oath” by the deceased before his death – Where the declaration was put into writing and attested in the usual native way prior to the death of the deceased – Duty of court thereto
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: The matter is res judicata, and the appeal is dismissed.
1. The facts which both parties can set forth in this administration suit must be the same which they testified before the native tribunal and these facts in issue, as the Court below rightly states, were decided by the Kumasi Native Divisional Court.
2. The caveator-respondent never at any time claimed his right to the inheritance under an English Will. He propounded the usual death-bed declaration well known to the native tribunal and in accordance with the native law and native requirements and his defence in the native tribunal was one which that tribunal was competent to hear and to give effect to.
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MAIN JUDGMENT
The following judgment was delivered:- per WEBBER, C.J., SIERRA LEONE.
The plaintiff-appellant brought an action in the native tribunal of Kumasihene against the defendant in which he claimed:
(a) Judicial relief, i.e. to show cause why the defendant should not hand over to him the property of his deceased uncles named Ado-Kwabu and Ardu Yaw, which defendant had inherited in a manner not consistent with native customary law.
(b) An account of defendant’s dealings with the property.
(c) An injunction to restrain the defendant and his agents from entering into or dealing with any of the properties.
This is the usual procedure under native law and custom when the question of succession to an estate is in issue. It is not unlike an administration suit where the claimant for a grant of Letters of Administration seeks to take over the property by right of his relationship to the deceased.
The native tribunal heard the evidence of both parties and decided that the plaintiff had made out no claim and judgment was given in favour of the defendant. The native Court found that the defendant had inherited the properties in question in accordance with a death-bed declaration made by Adu Yaw in the presence of accredited witnesses, including some members of the family, and that the declaration so made was confirmed with “great oath” by the deceased before his death. It is the usual native declaration known by native law and custom by which the declarer names the person or persons to whom the inheritance is to be distributed; the declaration was put into writing and attested in the usual native way prior to the death of the deceased.
The case in the native tribunal began in February 1984, and coded in the early part of 1985. There was no appeal.
In October 1995 the plaintiff takes proceedings in an administration suit on a caveat entered by defendant to a claim made by plaintiff for the grant of Letters of Administration. The Court below took no oral evidence. The proceedings of the native tribunal were received as evidence, and the Court below decided that the plaintiff was estopped by record and held that the native tribunal was a competent Court in the claim before it and dismissed the action.
The grounds of appeal were three in all, but Counsel for appellant argued grounds 1 and 2 together. They were as follows:
1. That the ruling was wrong in law, equity and good conscience.
2. That the matter was not res judicata.
3. That the native tribunal had no jurisdiction inasmuch as Yaw Kyere claimed under a Will and therefore the judgment did not create an estoppel.
I am of opinion that the ruling in the Court below was correct. The facts which both parties can set forth in this administration suit must be the same which they testified before the native tribunal and these facts in issue, as the Court below rightly states, were decided by the Kumasi Native Divisional Court, and as to the third ground of appeal it is quite clear to my mind that the caveator-respondent never at any time claimed his right to the inheritance under an English Will. He propounded the usual death-bed declaration well known to the native tribunal and in accordance with the native law and native requirements and his defence in the native tribunal was one which that tribunal was competent to hear and to give effect to.
I am of opinion that the judgment of the Court below in favour of the caveator-respondent is correct and that this appeal should be dismissed.
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KINGDON, C.J., NIGERIA.
I concur.
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PETRIDES, C.J., GOLD COAST.
I concur.
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