–
E. A. SOLOMON, ETC.
V.
J. D. K. BOTCHWAY, ETC.
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
31ST DAY OF MAY, 1943
2PLR/1943/22 (WACA)
OTHER CITATION(S)
2PLR/1943/22 (WACA)
(1943) IX WACA PP. 127 – 136
LEX (1943) – WACA PP. 127 – 136
–
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
M’C’ARTHY, J.
–
BETWEEN:
1. E. A. SOLOMON
2. P. R. VANDERPUYE
[ON BEHALF OF THEMSELVES AND AS REPRESENTING THE WOFASE, THE CHILDREN AND OTHER MEMBERS OF THE FAMILY OF JACOB VANDERPUYE LATE OF ACCRA, DECEASED] – Plaintiffs-Respondents
AND
J. D. K. BOTCHWAY AS HEAD OF JACOB VANDERPUYE’S FAMILY – Defendants-Appellant
–
ORIGINATING COURT(S)
APPEAL FROM DIVISIONAL COURT
–
REPRESENTATION
K. A. Bossman with S. A. Attoh — for Appellant
A. Sawyerr — for Respondents
–
ISSUE(S) FOR DETERMINATION OF APPEAL
CUSTOMARY LAW:- Native law and custom — Ga custom of Accra —Inheritance — Deceased’s self-Pleadings defective — Retrial with amended pleadings.
–
CASE SUMMARY
ORIGINATING FACTS
The nephew and the eldest son of the late Jacob Vanderpuye, for themselves and on behalf of the children and other members of the family of the deceased, sued the defendant as head of the family for a declaration, that, inter alia, they were entitled to a share of the rents and profits of the real property of the deceased. The second plaintiff was the child of a six-cloth marriage and relied upon the Ga custom of Accra applicable to the children of such marriages, but these points were not pleaded. The trial Court gave a declaration, inter alia, that the second plaintiff and his brothers and sisters had an interest in their father’s property, personal or real.
The principal question argued in the appeal was whether children of a six-cloth marriage under the Ga custom of Accra have any interest in their father’s estate or not.
–
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. Affirming the decision in Cole v. Okine and Cole (Supreme Court, Accra, 11th September, 1939, not reported) that the eldest son of a six-cloth marriage was entitled under the Ga-custom of Accra to a share of the self-acquired property, real or personal, of his late father, the amount of such share depending on the decision of the head of the family assisted by the other members.
2. Since the second plaintiff had not pleaded that he and the other children were children of a six-cloth marriage or that they relied on the Ga custom of Accra, the appeal was allowed and the declaration set aside, and the case was remitted to the trial Court for the pleadings to be amended, and further evidence to be taken if necessary.
Cases cited:-
Lutterodt v. Anangfio & ors. (D. & F.C. 1919 p. 78 at p.81).
Bonsi v. Adjena II (6 W.A.C.A. 241).
Cole v. Okine and Cole (Supreme Court, Accra, on the 11th September, 193!)) unreported.
–
–
MAIN JUDGMENT
The following joint judgment was delivered:- per KINGDON, C.J., NIGERIA, GRAHAM PAUL, C.J., SIERRA LEONE AND M’CARTHY, J., GOLD COAST.
KINGDON, C.J., DELIVERING THE JUDGMENT OF THE COURT.
The writ issued by the plaintiffs in this case was the following form:-
“The plaintiff E. A. Solomon is a nephew of the late Jacob Vanderpuye of Accra. The plaintiff P. R. Vanderpuye is the eldest child of the said Jacob Vanderpuye. The defendant J. D. K. Botchway has been in charge of several properties of the said Jacob Vanderpuye which properties have been yielding rents and profits as from June, 1935. The plaintiffs’ claim on behalf of themselves and as representing the nephew, children and other members of the family of the late Jacob Vanderpuye of Accra, is for a declaration as against the defendant that they the plaintiffs are entitled to a share of the rents and profits accruing from the properties of the said Jacob Vanderpuye and for payment to the plaintiff of such share.
And for an injunction to restrain the defendant and hit agents and servants from collecting the said rents until the hearing and determination of this action and payment to the plaintiffs of their said share in the said rents and profits.”
This was elaborated by the Statement of Claim as follows:-
“1. The plaintiff Emmanuel Arde Solomon is the nephew of the late Jacob Vanderpuye of Accra; and the plaintiff Peter Richard Vanderpuye is the eldest son of the said Jacob Vanderpuye.
“2. On the 5th of October, 1918, the said Jacob Vanderpuye died at Accra intestate; possessing at the time of his death several real properties, including Sea View House, Accra, Garden House, Accra, and a house in Selwyn Market, Accra.
“3. About June, 1933, the defendant claimed to be the head of the family of the said Jacob Vanderpuye and the proper person to be in charge of the properties of the said Jacob Vanderpuye, both real and personal.
“4. The defendant was therefore allowed as such head to take possession of all the properties of the said Jacob Vanderpuye including those mentioned above and he has been receiving the rents and profit accruing from the said properties as from that time up to the present time.
“5. The defendant has refused to give any portion or share of the said rents and profits to the plaintiffs and those whom they represent in this action. And he has also refused the application of many of the children of the deceased to reside in any of the left by the deceased.
“6. The plaintiffs therefore on behalf of themselves and those whom they represent claim:-
(a) A declaration that a nephew, children and other members of the family they are entitled to reside in the houses of the said Jacob Vanderpuye deceased and to have a share of the rents and profits accruing from the real properties of the Jacob Vanderpuye.
(b) Payment to the plaintiffs of such their share.
(c) An injunction restraining the defendant his agents and servants from collecting the said rents until the hearing and determination of the action.”
The defence pleaded:-
“1. The defendant is the head of the family of the late Jacob Vanderpuye deceased, the said defendant having been elected and appointed such head sometime about 20th July, 1935.
“2 The said defendant in answer to the plaintiff’s Statement of Claim filed herein admit paragraphs 1, 2, 3, but denies paragraphs 4, 5 and 6 of the said Statement of Claim.
“3. The said defendant in further to paragraph 4 of the said Statement, says that although, he was given management of the estate of the late Jacob Vanderpuye sometime about end of December, 1936, after his appointment as head of the family he did not take possession or charge of any personal estate left by the deceased all such, personal estate having been entirely squandered by the second plaintiff Peter Vanderpuye who acted as administrator of the estate for a considerably long period before the defendant’s appointment as head of the family and that such small rents as the defendant was able to collect in respect of some of the real estates have been properly used by him with the knowledge and consent of the family towards repair renovation and upkeep of the houses and in meeting other family liabilities.”
“4. The defendant in further answer to paragraph 5 of the statement denies that he has refused to give any portion or share of rents and profits to the plaintiff, and alleges that what he has told each of the two plaintiffs is that the family requires each to submit an account of his administration of the estate for the period he had charge or management — the first plaintiff Emmanuel Arday Solomon having had management from 22nd March, 1933 to 7th December, 1935 and the second plaintiff Peter Richard Vanderpuye having had management from October, 1918 to March, 1933 and that upon the submission of such account by each of the two plaintiffs, the question of his share if any in rents collected since the defendant’s appointment as bead would be gone into and any legitimate claim of each of the plaintiffs satisfied.
“6. That each of the two plaintiffs have willfully refused to submit an account of his management of the estate for the period he had charge of the eat ate, and to inform the family of the monies that came into his them during such his period of management, and by reason of such refusal to submit accounts, have kept aloof from the family.
“6. That in further answer to paragraph 5 of the Statement of Claim, the defendant says that it is grossly untrue that he has refused the application of many children of the deceased to reside in the family house end that the plaintiff P. R. Vanderpuye and 6 of his brothers to wit: P. J. Vanderpuye, Henry Vanderpuye, C. J. Vanderpuye, J. N. Vanderpuye, P. B. Vanderpuye and Isaac Vanderpuye live with the family in the family house, using 12 rooms in the said house.
“7. The defendant further alleges that the following are the surviving members of the Jacob Vanderpuye family, and that such family of which defendant is head has not authorised the two plaintiffs to represent them nor to make the claim in this suit, and that the two plaintiffs and the persons other than the undermentioned whom they claim to represent are not entitled to maintain this action to wit: Kai Ashong, Oberye Amah, Mary Botchway, E. K. Quartey, I. O. Quartey, Kwarley Quartey, Kwakai Quartey, Maria Kofie and A. D. Kofie.
“8. The defendant admits that the first plaintiff as nephew of the deceased is a member of his family and as such having some interest in his estate, but says that the said plaintiff is not entitled to any amount at date of the writ, having regard to the amounts in his hands for the family in respect of which he has refused to submit accounts so that the family might be in a position to determine if anything is due to him or not.
“9. The defendant however denies that the second plaintiff son of the deceased and all other children of the deceased are entitled in distribution to the estate of the deceased.
“10. The defendant finally pleads that the plaintiffs are not entitled to any of the reliefs claimed hereon.”
And in reply the plaintiffs pleaded:
“1. The plaintiffs join issue with the defendant on paragraphs 1, 2 and 3 of his Statement of Defence.
“2. The plaintiffs further join issue with the defendant on paragraphs 4 and 5 of his defence and say that the allegations made therein are absolutely untrue and only made with a view to justifying the defendant’s collecting the rents on the real properties of the deceased and using such rents for the benefit of himself and his mother’s children.
” 3. The plaintiffs also join issue with the defendant on paragraph 6 of his Statement of Defence and say that although all the children of the deceased are entitled to live in such houses as their deceased father died possessed of, the defendant turned four of the said children out of rooms occupied by them in their deceased father’s house.
“4. In further reply to paragraph 6 of the Statement of Defence the plaintiffs say there are 8 other children of the deceased who are at present without any accommodation in any of their father’s houses although they have repeatedly applied for accommodation.
“5. The plaintiffs join issue also with the defendant on paragraphs 1, 8, 9 and 10 of his Statement of Defence,”
The relief granted by the learned trial Judge was embodied in four declarations, vis:-
“(1) That Solomon is entitled to reside in his own uncle’s house free from any molestation, and
“(2) He is entitled to a share a greater share in the rents accruing from the estate.”
That plaintiff Vanderpuye and his brothers and sisters are:-
“(3) entitled to live in their father’s house or houses, and
“(4) have an interest in the father’s properties, personal or real.”
The Judge added “that the head of the family has no right, whatsoever to molest the children who, after all, bear the name of the father, and he has also no right whatsoever to deprive them of their share in their father’s estate.”
In addition, in the course of his judgment the learned trial Judge said:-
“I should like to mention that it was Sarbah, in his books, who propounded the principle that a member of the family cannot claim an account from the head of the family. This is an Akan custom and not a Ga custom. With the utmost respect to the learned author I hold that this principle is contrary to equity and natural justice and it is not unknown that some unscrupulous and callous heads of families have mercilessly exploited this so-called custom to the detriment of individual members of the family. This is common knowledge.”
This appears to us to be merely obiter dictum on a point which did not arise for decision in the case under trial, so we will refrain from expressing our opinion on the point, but it may not be out of place to draw attention to the words of Smyly, C.J. in referring to another custom in the case of Lutterodt v. Anangfio & ors. (D & F.C. 1919 p. 78 at p. 81):-
“I see nothing contrary to Natural Justice or equity in his doing so in England it can be done by will, here apparently it is done by custom-a custom which whether it is enforceable in English Courts or not should not be treated by the Courts as a nullity, so as to confer rights in property to Natives inconsistent with their Native Laws and Customs.”
Questions arising upon the first three of the declarations granted can be quickly disposed of.
No. (1) is not contested by the appellant and is confirmed.
No. (2) is contested only as regards the words “a greater share”, and respondents’ Counsel does not oppose the deletion of these words, since he agrees that the question of the amount of each share is one to be decided by a family meeting. If satisfaction is not obtained at a family meeting, the remedy is appeal to the Native Tribunal. The question was not one of the questions in issue in the present case. The declaration must be amended by the deletion of these words.
No. (3) must also be amended, since it is clear that by an oversight the learned trial Judge omitted to add to the declaration the words during good behaviour which, of course, includes, as the Judge expressed it earlier in his judgment, ”proper behaviour towards the head of the family “.
We think it unnecessary to make this declaration (as Counsel for appellant has invited us to do) subject to the further proviso that there is room, because it is clear from the evidence in the case that there is ample room.
That brings us to declaration No. (4) which raises issues of great importance and has led to lengthy argument on this appeal, a large proportion of which was at cross purposes. The issues involve questions of the Ga custom in Accra upon the question of whether or not children have an interest in the self-acquired estate of their father. The custom in Accra is peculiar unto itself, and we regard it as now well established and definite. The first point is that everything depends upon the nature of the marriage or relationship between the parents of the children. Children of what is known as a “six-cloth marriage” are in a position different from, and more advantageous than, other children. We use the expression “six-cloth marriage” advisedly, it is the old term and its meaning is well understood, even though today gifts other than six cloths may be enough to create it. It is preferable to the terms sometimes used to express the same thing “legal marriage” or “lawful marriage”‘ which suggest that other marriages are illegal or unlawful, which they are not.
It was agreed by Counsel on both sides that children, other than children of a “six-cloth marriage” have no claim to any interest in their father’s estate other than a right to live in their father’s house during good behaviour and we hold that this must now be taken as established. The dispute is as to children of six-cloth marriages. Appellant’s Counsel admits that there are two schools of thought as to these, one school holding that they have no interest and the other that they have an interest. He invites us to find in favour of the former view. We can however find nothing in the long string of cases to which he referred us to justify such a finding. Respondents’ Counsel in the Court below called evidence in support of the opposite view, and in this Court relied upon it and the Judge’s finding in his favour. We confess we find his attitude somewhat difficult to understand, because, in our view, the point has been finally, authoritatively and definitely decided in his favour in a recent case, in which the proper course of referring the matter to the Ga Kantse’s Tribunal was followed. We refer to the case of Cole v. Okine and Cole (No. 28/1939, decided by Cooper, Ag. J. in the Supreme Court on the 11th September, 1939, not yet reported). We make no excuse for referring to the proceedings in that case at some length. In it the plaintiff, Cole, claimed against the defendants, as Administrators of the Personal Estate of his deceased father, that he was entitled to a share of the estate. It was agreed that administration must be governed by Accra custom. The Judge accordingly referred the matter to the Tribunal of the Ga Manche for enquiry and report. We quote the Tribunal’s report in extenso: –
“This is a case referred to this Tribunal by Order of the Divisional Court, dated the 7th day of June, 1939, and given under the hand of Mr Justice Guy Cooper, for the following points to be determined in accordance with Accra custom:-
“(a) Is the plaintiff as eldest son of the deceased Panticus Cole entitled to any share or interest in the estate of the deceased, according to Accra custom?
“(b) If the plaintiff is entitled to any interest or share to how much is he entitled and who determines the amount?
“2. In accordance with Ga Native Custom, the determination of plaintiff’s interest or share, and the amount of any interest or share and the person to determine it, is depended firstly on the nature of the marriage tie existing between the plaintiff’s deceased father and his mother, and secondly, on the congenital relationship existing between plaintiff’s deceased father and the defendants in this case.
“We decided therefore to bear evidence.
“3. The plaintiff alleged that he was the eldest surviving son of the late Panticus Cole, begotten out of his marriage by custom with Hawa Abraham. He was aware that before his late father married his mother, the former paid some head-money to the parents of the latter. His mother was not a native of Accra, and he could not therefore say whether what his father did conformed with the custom of the nationality to which his mother belonged. Plaintiff contended that his late father owned his paternal parents partly Nigerian and partly Sierra Leonean; and he was aware that the maternal parent of his late father was a native of Accra. The first defendant was the son of a maternal sister of his late father, called Achong in other words, first defendant is the nephew of plaintiff’s late father. The second defendant on the other hand was only a paternal brother. “
This action was taken against defendants, because they both have been granted Letters of Administration – the first as representing the maternal family and the second the paternal. Plaintiff contended that in accordance with Sierra Leone custom, a son was entitled to succeed to the estate of his father, and quoted the case of his own father, who succeeded to the estate of his (plaintiff’s) grandfather.
“4. The first defendant stated that he was the nephew of the late Panticus Cole, he being the son of the maternal sister of the deceased Panticus Cole. He also declared that in the closing days of his uncle’s life, the deceased handed to him his Bank Account Books, with the testimony that after his death, he should utilize the remainder of his Savings, after payment of his funeral expenses, for the erection of a premises in which to accommodate his (deceased’s) children. He has therefore acquired a land with a view to fulfilling the testimony of his uncle. The second defendant on his part alleged that he was only a paternal brother of the late Panticus Cole, and that as a result of his death, he has assumed office, as head of the Cole Family.”
In accordance with custom, we hold that the second defendant has no interest or share in the estate of the deceased Panticus Cole.
“5. In the evidence of the plaintiff, he suggested that succession to the estate of his late father must be regulated by Sierra Leone’ custom, because, he contended, his late father was not a native; but such a suggestion was highly against reason. It had been made clear that the estate was a self-acquired one, and the circumstances of the case of the deceased varied largely from those in the case of the deceased and his father, because –
(a) the mother of the deceased was a native of Accra;
(b) the deceased throughout his life time lived in Accra; and
(c) the maternal family was entitled to a share in the estate of the deceased.
“6. The plaintiff therefore as the eldest son of the late Panticus Cole is entitled to a share in the personal estate of his late father in accordance with Ga custom, and if any share or interest is paid out of the estate to the plaintiff, he shall have no father right, interest or share in any property which shall be acquired by the remainder of the estate.
“7. That the Ga Native Custom does not lay down the exact share or interest which the son gets, but such share depends upon the decision of the Head of the Family, assisted by the other members of the family. If the deceased left a house, his children are entitled to live in the house during good behaviour.”
The Judge in that case accepted this report, and we accept it, as a clear and binding exposition of the Ga custom in Accra upon the points raised.
Founding upon the report, the Judge made the following order:-
“1. The defendant as Administrators shall administer and distribute the personal estate of the deceased according to Accra custom.
“2. They are directed that the plaintiff is entitled to a share of the personal estate.
“3. That the amount of such share should be determined by the Head of the Family.”
“4. That in the event of any dispute as to who was the Head of the Family the dispute should be taken before the Ga Manche’s Tribunal.”
It has not been suggested to us in argument in the present case, nor does it appear from any of the cases cited to us that the custom makes any distinction between personal and real estate, though there is a distinction between ancestral and self-acquired property. Although in his order in the Cole case the Judge clearly used the expression personal estate in its English legal meaning, i.e. as opposed to “real estate”, we think it clear that when the Native Tribunal used the expression “personal estate” in paragraph 6 of their Report they were using it not in that sense hut as meaning self-acquired property as opposed to ancestral property. That the custom applies equally to realty as to personalty is shown by reference to the case of Lutterodt and Lutterodt v. Solomon decided in the Tribunal on the 30th December, 1930, a case in which the Tribunal made an order in· favour of children of a six cloth marriage specifically in respect of realty. It is significant that the very first step the Tribunal took in the Cole case was to enquire as to the nature of the marriage between Cole’s parents. It is agreed that their enquiries established that it was a six-cloth marriage. The ruling of the Tribunal applies only to such marriages.
The custom, then, being clear and settled, there ought to be no difficulty in deciding the present case, but unfortunately the plaintiff’s pleadings were so badly drawn that there is difficulty.
It is laid down by rules 3 and 4 of Order 25 in Schedule III to the Courts Ordinance that every pleading shall contain a statement of all the material facts on which the party pleading relies and that the facts shall be alleged positively, precisely and distinctly. Further, in the case of Bonsi v. Adjena II (6 W.A.C.A. 241) this Court said:-
“We cannot too strongly emphasise that where a party intends to set up and rely upon a Native Law and Custom it must, be specifically alleged and pleaded.”
It was obviously incumbent upon the second plaintiff to plead that he and the other children were children of six-cloth marriages and that he relied upon the Accra custom applicable to the children of such marriages. He did neither; ‘instead he described himself and the other children merely as children, and as far as appears on the face of the pleadings any custom on which he relied would be a custom applicable to all children as such and not to a restricted class. In this connection we are of opinion that the learned trial Judge misdirected himself as to the onus of pleading and proof in that passage of his judgment which reads:-
“It may be added that the question whether the mothers of the late Vanderpuye’s eighteen children were married according to the six-cloth custom was not raised on the pleading by the defendant; and indeed Mr Bossman, Counsel for the defendant, never touched upon it.”
The onus was clearly upon the plaintiffs to plead and (unless admitted) to prove both the custom and facts which brought the children within the class to which the custom applies. Counsel’ for the respondents, however, alleges that the case was fought throughout in the lower Court on the assumption that the children were children of six-cloth marriages and he points to a passage in the shorthand notes of his final address to confirm this. Counsel for the appellant denies this. We are of opinion that it is impossible for this Court, and was wrong for the Court below, to act upon mere assumption on such a vital point. In the absence of the proper averments appearing in the pleadings, a note by the Judge recording an agreement by Counsel upon the point is the least that could be acted upon. As matters stand we feel that in the interests of justice the case will have to go back to the Court below for the plaintiffs to be allowed to amend their pleadings by making the averments necessary to establish the children’s claim to an interest in their father’s property, and if they are put to proof of the facts, they will of course have to prove those facts by evidence before they are entitled to a declaration in the form of declaration. No. (4) which was given to them in the judgment appealed against. We think that no further evidence or argument is necessary as regards the custom, which, as we have said, we regard as now established; but it should, of course, be pleaded.
The following then is our decision upon the appeal in regard to the four declarations granted to the respondents:- As to declaration (1) the appeal is dismissed. As to declaration (2) the appeal is allowed to the extent that the declaration is amended by striking out the words “—A greater share—“. As to declaration (3) the appeal is allowed to the extent that the declaration is amended by adding at the end thereof the words subject to good behavior”. As to declaration (4) the appeal is allowed and the declaration is set aside, and the case is remitted to the Court below for the second plaintiff-respondent to be allowed to amend his statement of claim by pleading further facts and custom which, if admitted or proved, would entitle him to a declaration in the same terms as that set aside, the defendant-appellant to be allowed to file a further defence, and further evidence to be taken if necessary, whereupon it will be the duty of the Court to refuse a declaration or to grant a declaration in the same or an amended form as the amended pleadings and further evidence may disclose to be proper. Costs of both parties in this Court are to be borne by the estate; they are assessed at £70 18s 5d for the appellant and £50 5s 6d for the respondents. We make no interference with the order as to costs to the Court below. The costs of future proceedings in the lower Court will be in the discretion of the Judge at the further hearing.
–