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[CONSOLIDATED SUITS]
D. N. NARTEY OF ACCRA AND OTHERS
V.
DOREEN L. NARTEY BY HER NEXT FRIEND, MARGARET AGBESHIE
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
23RD DAY OF MARCH, 1953
APPEAL NO. 33/52
2PLR/1953/58 (WACA)
OTHER CITATION(S)
2PLR/1953/58 (WACA)
(1953) XIV WACA PP. 295-298
LEX (1953) – XIV WACA 295-298
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
1. D. N. NARTEY OF ACCRA
2. S. T. ARYEH OF ACCRA
3. R. J. AMARTEY OF ADA EXECUTORS AND TRUSTEES UNDER THE WILL OF THE LATE DAN. K. B. NARTEY, DECEASED – Appellants
AND
DOREEN L. NARTEY BY HER NEXT FRIEND MARGARET AGBESHIE – Respondent
CONSOLIDATED WITH
D. N. NARTEY AND THE OTHER TWO EXECUTORS AND TRUSTEES AFORESAID – Appellants
AND
FLORENCE NADU NARTEY BY HER NEXT FRIEND MARGARET AGBESHIE – Respondent
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ORIGINATING COURT(S)
Appeal by the defendants against decision of the Supreme Court
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REPRESENTATION
C. F. Hayfron-Benjamin — for Appellants
N. A. Ollennu — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Land Court— Alleged gift inter vivos— Whether property part of residuary estate
ESTATE ADMINISTRATION AND PLANNING:- Will under English law and residuary estate — What constitutes – Courts Ordinance, section 17 – Testator’s gift inter vivos under Native Law and Custom made to a child born after the making of the will of deceased father — Publicity of gift — Where deemed valid – Legal effect
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CASE SUMMARY
The respondent in either case was the plaintiff, the appellants were the defendants. The plaintiffs were children of the testator suing, through their mother, the executors and trustees of his will.
In the first case the plaintiff claimed that a certain house was her property, whilst the defendants averred it was part of the residuary estate. In the second case the mother for herself and the other daughter claimed orders on certain property arising out of the terms of the will. The two suits were consolidated.
On the first day of the trial the defendants’ counsel raised the point of the Land Court’s jurisdiction and asked that the suit be referred to the Native Court; the Judge ruled that it did not appear yet that jurisdiction was ousted; the point was not raised again. Jurisdiction was the first important ground of appeal. (It bears on section 17 of the Courts Ordinance, which provides that the Supreme Court shall not exercise jurisdiction in a cause properly cognisable by a Native Court.)
The second case related to matters arising out of the will and regulated by English law; it was conceded that it was within the jurisdiction of the Land Court.
As regards the first case: Doreen, the infant suing through her mother, was born some time after the will was made; her father took out a building permit and made a builder’s agreement, both in her name, and had a house built for her, which was not mentioned in the will. The Judge was of the opinion that the testator, who had provided for the other children in his will, wished to provide for Doreen also and made a gift of the land and house to her. For the executors, who claimed it as part of the residuary estate, it was argued that the evidence showed no more than an intention to make a gift; and this was the other important ground of appeal.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
(1) On jurisdiction: The issue was whether there had been a gift inter vivos or whether the property, as claimed by the executors, formed part of the residuary estate under the will; and proving the gift was in answer to the executor’s claim; therefore jurisdiction had not been wrongly exercised by the Land Court.
(2) There was a valid gift in customary law as there was publicity in making the gift and user by the donee in that the deceased erected a building for her on the land before his death.
Materials Cited:-
Sarbah’s Fanti Customary Law, p. 80.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J.A.
These consolidated suits came before this Court on appeal from a judgment of Jackson, J., in the Land Court, Accra, in favour of each plaintiff-respondent.
The first ground of appeal is that the Court had no jurisdiction ab initio over the suits as they relate to the ownership, possession and occupation of land held under native tenure.
In the first suit, No. 22/1951, Doreen L. Nartey, claiming by her mother Margaret Agbeshie as Guardian ad litem, prayed as against the defendants, as executors and trustees under the will of her late father, a declaration that a house at Kokomlemle, Accra, is her property and does not form part of the estate of the deceased Daniel K. B. Nartey. An injunction was also claimed against the defendants.
According to paragraph 9 of the statement of claim, the plaintiff averred that the defendants were claiming the house as part of the estate of the deceased and by their solicitor had written the plaintiff claiming the premises as part of the deceased’s residuary estate.
In answer to paragraph 9 of the statement of claim the defendants by their defence averred that the land and buildings thereon form part of the said residuary estate.
The will of the deceased is not in dispute. It is dated the 3rd April, 1947. Daniel K. B. Nartey died on the 19th January, 1951, and probate of his will was granted to the defendants on the 12th February, 1951.
Before considering the objection as to the jurisdiction of the Land Court, it is necessary to refer to the second suit. In that action No. 23/1951, Margaret Agbeshie on behalf of herself and as guardian ad litem of another infant daughter, Florence Nadu Nartey, claimed as beneficiaries under the will referred to orders defining the powers of the defendants under the said will and prohibiting them from dealing with a house No. C.134/2 at Adabraka in a manner other than as directed by the testator, and an injunction restraining the defendants from interfering with Margaret Agbeshie in the control and management of house No. C.55/4 at Ring Road for her infant daughter above-mentioned.
The plaintiff averred that house No. C.55/4 had been built upon land devised by the will to the infant Florence Nadu Nartey but that the defendants had written to tenants prohibiting them from paying rents to the plaintiff.
As to the house No. C.134/2 at Adabraka, the plaintiff Margaret Agbeshie averred that the defendants had compelled her to vacate part of the premises contrary to the directions of the deceased testator and had also contrary to the direction of the testator prohibited and interfered with her in the management of the com milling business left by the deceased.
The defendants averred that house No. C.55/4 formed part of the trust estate and was vested in them as executors and trustees of the deceased. They admitted that they had caused the plaintiff, Margaret Agbeshie, to vacate house No. C.134/2 and they pleaded in effect that they had not departed from the testator’s directions as to the com mills.
Arguing his first ground of appeal, Mr. Benjamin conceded that the Land Court had jurisdiction as to the second suit and obviously that must be so, for the matters that fell for decision were the rights and duties of the parties under a will. As all the parties although natives recognised the will and claimed under it, it is right to say that the parties by implication had agreed that their obligations in connection therewith should be regulated substantially according to the English Law as to wills.
As to the first suit, the point was raised by the defendants’ counsel on the first day of the trial, that the suit be referred to the Native Court. The Court ruled that it did not appear to it at that stage that its jurisdiction was ousted. The point was not raised again and the Court heard and determined the suit. In considering whether the Land Court had jurisdiction, it is necessary to consider what the real issue was between the parties.
The plaintiff claimed by direct gift from the testator during his lifetime. The defendants as stated already claimed by virtue of the will, that the house No. C.145/4 at Kokomlemle was vested in them as part of the residuary estate of the deceased. There was in my opinion no dispute as to the ownership, possession or occupation of land in the sense that title to the property was in dispute; the issue was whether it was the plaintiff’s infant’s property by gift inter vivos or whether it formed part of the residuary estate under the will of the deceased. It is true that the plaintiff had the onus of proving the gift to the infant Doreen but in my view she did so to explain why the property was not devised by the testator in the will proved and in answer to the claim of the executors and trustees.
The question turns on one of fact to be decided by the trial Judge on the particular facts of each case and at any stage of the case and I am not prepared to hold, when it is borne in mind that suit No. 22/1951 had by order been consolidated with suit No. 23/1951 for trial and that suit No. 23/1951 was within the original exclusive jurisdiction of the Land Court, that the trial Judge in his discretion wrongly exercised jurisdiction over that suit.
There is only one other ground of appeal that merits consideration.
Referring to p.80 of Sarbah’s Fanti Customary Law, Mr. Benjamin has argued that the evidence establishes only an intention on the part of the deceased to make a gift to the infant in suit No. 22/1951, but that there was in fact no gift.
Mr. Sarbah states several forms of acceptance as necessary to evidence a valid gift of immovable property but it must be observed that if one of them is supplied it is sufficient. In this case there is evidence of publicity in making the gift and user by the donee in that the deceased erected a building for her on the land before his death.
As the learned trial Judge observes, “the will in question was made some sixteen months before the infant Doreen was born. Nowhere is this house No. 145/4 specifically mentioned in the will and the evidence in the other suit consolidated in this action refers to the land devised to Florence Nadu Nartey in paragraph 6 of the will … it appears to me to be reasonable to understand that having provided for all his children at the time of the making of the will, he wished to make provision for his child Doreen who was born after its making and that he did so by way of gift but unevidenced by any deed of conveyance”. It is probable that he took this course and evidenced it by having the building permit and builder’s agreement for the house on the land made in Doreen’s name in the hope that it would avoid the legal expense, wrangles and litigation so often incident to an estate of several houses.
I find it unnecessary to review in detail the several orders made by the learned trial Judge. They are in my opinion supported and necessitated by the evidence before him and the conclusions at which he arrived. The law of trusts has not been misapplied as learned counsel for the appellants has submitted and I would, therefore, dismiss this appeal.
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FOSTER-SUTTON, P.
I concur.
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WINDSOR-AUBREY, J.
I concur.
Appeal dismissed.
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