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E. D. J. WELLINGTON OF ACCRA, ETC.,
V.
E. QUARTEY PAPAFIO AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
4TH DAY OF APRIL, 1952
W.A.C.A. NO. 57/50
2PLR/1952/84 (WACA)
OTHER CITATION(S)
2PLR/1952/84 (WACA)
(1952) XIV WACA 308 – 309
LEX (1952) – XIV WACA 308 – 309
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KORSAH, J.
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BETWEEN:
E. D. J. WELLINGTON OF ACCRA, HEIR AND NEXT-OF-KIN I OF W. A. WELLINGTON, LATE OF ACCRA, DECEASED, FOR LAND ON BEHALF OF HIMSELF AND ALL THE OTHER CHILDREN OF THE SAID W. A. WELLINGTON, DECEASED – Appellant
AND
E. QUARTEY PAPAFIO AND C. K. ADDY – Respondents
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ORIGINATING COURT(S)
Appeal by plaintiffs from Supreme Court reversing the Native Court’s decision in their favour
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REPRESENTATION
Akufo Addo — for Appellants
K. A. Bossman — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Mortgage — Nature of Mortgagee’s security — Devolution on administrator
ESTATE ADMINISTRATION AND PLANNING:- Native Law and custom — Succession in Ga customary law — Alienation of family property — Proper treatment of
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
A mortgagee’s security is personal estate devolving on the administrator if the mortgagee dies intestate.
Under Ga customary law, upon intestacy, the self-acquired property of the deceased becomes family property; it is only children of a six cloth marriage who are entitled to a right of support out of the estate; all members of the family traced through the maternal ancestor have a joint interest, and no part of the estate can be alienated to the children unless the parties so agree.
The admitted facts in the case were that in 1935 someone mortgaged land to the deceased, the father of the plaintiffs, who went into possession; he died in 1937, and then his mother took out letters of administration of his estate; she put the mortgaged property up for sale in 1939, and the first defendant was the highest bidder; she died in 1940. The first defendant took no interest in the case. The second defendant pleaded possession under a conveyance in 1941 from the uterine brother and sister of the deceased mortgagee through his mother, these vendors being then the principal members of the family.
The plaintiffs alleged that after their father’s funeral, the family met and the property in dispute, which had been mortgaged to their father, was “given” to them, his children, with a life interest in the deceased’s mother for her maintenance, and that after his mother’s death in 1940 part of the rent was given to her daughter. (There was no corroboration that the plaintiffs ever collected the rent.) They also alleged that they succeeded their father and his father and mother.
The plaintiffs’ writ did not allege that they were children of a six cloth marriage.
It was stated in evidence by one witness but not confirmed by another, a member of the family, and the Native Court of trial made no finding on the point; nor did the Court find that there had been distribution or allocation of a share to the children. It appears that the plaintiffs thought, erroneously, that the mortgagee, their father, had acquired the freehold. The Native Court was of opinion that when he died the property became a family property of Aku Aba (namely his mother) and “descendible to the plaintiffs”. Judgment was for the plaintiffs; the appeal to the Supreme Court was allowed, and the plaintiffs appealed from its decision.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
Even if it be assumed that the plaintiffs were children of a six cloth marriage, under Ga customary law on the death of their father, his chattel interest as mortgagee became the property of his family traced through the maternal ancestor, and could not pass to his children except by transfer, of which there was no evidence. The plaintiffs not having established a title, their claim against the second defendant in possession could not be upheld.
Case cited:-
(1) Mary Vanderpuye and Others v. Mary Akua Botchway, W.A.C.A., 8th March, 1951.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J.A.
By his Writ of Summons in the Ga Native Court “B”, the plaintiff claimed as heir and next-of-kin of his late father, W. A. Wellington, deceased, on behalf of himself and all other children of his father, a declaration of title as against the defendants in respect of land and buildings known as House No. D.75/4, Tackie Commey Road, Kokompe, Accra.
The first defendant, who did not take an active part in the proceedings, is the nephew of the late W. A. Wellington. The second defendant, a stranger to the family of Wellington, claims to be in possession of the property under and by virtue of a Deed of Conveyance dated the 4th September, 1941, executed in his favour by Joseph Ayiku alias Amartey Joe and Na Afi Wellington the uterine brother and sister of W. A. Wellington through his mother Aku Aha, and who were principal members of the family at the time of the sale to the second defendant.
As frequently happens in proceedings in the Native Court, the plaintiff authorised a representative, unconnected with the family, to appear and act for him under section 22 of the Native Courts Ordinance. He was sworn and gave evidence as if he were speaking from first hand knowledge of the transaction in issue although, in fact, this was not so. This applies also to the defendant who was represented by his brother.
The facts not in dispute are that by Deed dated 3rd December, 1935, one Alhaji Musa mortgaged the property described in the Writ to W. A. Wellington as security for a loan of £225 or £250. The Deed of Mortgage has not been produced. It may be inferred that it contained a power of sale and that it was in English form.
Wellington went into possession of the mortgaged property in his life time.
After his death, Wellington’s mother Na Alm Aba, obtained Letters of Administration of his estate. Presumably, the grant of Letters was with the consent of the family since notices citing next-of-kin would, in the usual course, be posted under an Order of the Court.
It is pertinent, in view of the plaintiff’s allegations and of the claim for a declaration of title, to consider the interest in the property of Wellington, the mortgagee, during his life time and what estate in the mortgage passed on his death.
As a mortgagee in possession he took the rents and profits. The rents received were the proper fund applicable in paying, firstly, rates and repairs and secondly, in payment of the mortgage debt. Excluding the mortgagor from control of the property, the mortgagee was bound to account not only for the rents he received, but for what he might, or ought to have received. This is based on the principle that since the property is the only security for the money, the mortgagee must be diligent in realising the amount due in order that he may restore the property to the mortgagor. This may be, and usually is, a complicated account.
A mortgagee impliedly elects to be paid by driblets if he enters into possession. Wellington died on the 17th February, 1937. In this case there is no evidence as to the state of the mortgage account at his death or that any account had been kept. But the plaintiff’s case is that after his father’s funeral, the family met and the property in dispute was “given” to the children of the deceased (who numbered thirteen by three several mothers) and Na. Aku Aba, mother of the deceased, but with the reservation that she had only a life interest in the property.
The plaintiff adds that the rents, which apparently were about £3 10s. 0d. to £4 10s. 0d. monthly, were, at the children’s suggestion applied to maintain Na Aku Aba until her death on the 31st August, 1940, and after that, at the entreaty of her daughter, Na Afi Wellington, part of the rent was given to her by the children for her maintenance. There is no corroboration that the children ever collected the rent.
It is not disputed that Na Aku Aba as Administratrix of W. A. Wellington exercised the mortgagee’s power of sale and that the property was sold on the 27th October, 1939. According to the sale account produced, the first defendant, the son of Na Afi Wellington and therefore nephew of the deceased mortgagee Wellington, was declared the highest bidder and purchaser for £190.
A mortgage security is personal estate since the principal right of the mortgagee is to the money and his right to the property is only as security for the money. The mortgage debt and mortgage property devolve on death of the mortgagee intestate on the administrator whose duty it is to get in the mortgage money and apply it in due course of administration.
This short diversion is necessary in order to estimate whether, apart from the native customary law, the probabilities support the plaintiff’s case of an allocation of the chattel interest in the property by the family to the children.
That aspect of Ga customary law, which deals with the rights of children, has frequently been before the Courts. It was considered and the cases thereon reviewed in the recent decision of this Court in Mary Vanderpuye and Others v. Mary Aktta Botchsuay (1). From that decision, we deduce the following principles:-
(1) In the case of intestacy the self-acquired property of the deceased vests immediately on his death in the family as family property.
(2) The native customary law is that only the children of a Ga six cloth marriage are entitled under Ga custom to a share of the self-acquired property of their deceased father.
(3) That share has been termed an interest but it amounts only to a right of support out of the estate.
(4) The exact share or interest which the child gets is not laid down. It depends upon the decision of the head of the family assisted by other members of the family. If he thinks he has been unjustly treated, a child has the right to say so.
(5) The members of a family are traced through the maternal ancestor, and the family is the unit for the purpose of ownership of property. All the members have a joint interest in the family property which is indivisible.
(6) Being indivisible, there can be no apportionment in the sense of the alienation of a particular part of the estate to the children which would have the effect of severing the family property, unless the parties agree to that course.
In the present case the plaintiff’s Writ does not allege a right as children of a six cloth marriage, nor in the Writ did they claim by virtue of an allocation made to them by the family. In one passage only of his evidence does the plaintiff’s representative allege that the deceased married his three wives according to six doth marriage custom. This is not corroborated by the first witness, Afaonatse Ebua, a member of the family who might be expected to give evidence on a matter which is a necessary foundation of the plaintiff’s claim, or by anyone else, and it is significant that the Native Court’s judgment does not make a finding on this important point. Again, the plaintiff’s view of his late father’s interest in the property was misconceived.
At the close of his evidence on the 8th September, 1948, he states that the mortgaged. property became his father’s bona fide, i.e. freehold property, by foreclosure and he alleges a “gift” of that property to the children by the family, when all that could be dealt with was a right, as mortgagee in possession, to receive rents and to account to reduce the mortgage debt until the power of sale was exercised. or the mortgage debt was repaid.
Whilst the plaintiff’s representative says the family “gave” the property to the children, the evidence of the plaintiff’s witness, Afaonatse Ebua, on the point is contained in two short passages only, and it is unsatisfactory.
In examination-in-chief, he said –
“… When he (Wellington) died we distributed his building (singular) amongst his family and his children”.
At the close of his evidence, in answer to the defendant, he said,
“Aku Aba was then alive when the buildings (plural) were distributed among the children of the deceased Ayeetey Wellington”.
There is no mention of the family here. The Native Court did not find that there had been distribution or allocation of a share to the plaintiff’s children.
“The Court is of the opinion (it held) that since the said property immediately after the death of the plaintiff’s father became a family property of Aku Aba it is descendible to the plaintiffs.”
This is clearly wrong. According to the principles stated above the chattel interest became the property of Wellington’s family on his death and not of Aku Aba who was successor and administratrix. The children could not take by descent from Aku Aba. The final passage of the judgment is also incorrect, namely, ‘
‘The Court do hereby declare the said property to be a family property of the plaintiff descendibly “.
The whole judgment gives the impression that the Native Court was striving to find a reason, not necessarily supported by Ga customary law or the evidence, although it professes to be governed by the evidence, to declare in favour of the plaintiff’s claim in the capacity of heir and next-of kin in which he sued.
Thus, in the passage relied on by the plaintiff’s Counsel to support the judgment, the Native Court declared:-
“Under the principles of Ga Native Customary Law and usage (the Court) comes into agreement with the evidence led by the plaintiffs and as such has no ulterior motive besides the evidence before it than to give judgment for the plaintiffs accordingly. Judgment is therefore given for the plaintiffs on the moral aspect of the principles of Ga Native Customary Law and usage.”
It is not clear what the plaintiff’s case was and therefore what evidence the Court agreed with. They alleged, firstly in evidence a gift from the family. Then they alleged that the children succeeded their father including the father and mother of the deceased father.
Whatever evidence was given and whether by plaintiff or defendant, the latter claim by descent is directly in conflict with Ga customary law. On the other hand a claim based on a gift or distribution whereby the whole property passed out of the ownership of the family to the children could only be supported by the clearest evidence of transfer by the principal member of the family with full knowledge so as to divest the family of its interest and to vest the interest in the children so that they could account and give a valid discharge for the mortgage debt. Such evidence would be a written assignment or the giving of drink to mark the transaction according to the customary practice. The nature of the chattel interest was such as to make it highly improbable that it would be granted to the children with the attendant obligation to account.
As against the unsatisfactory nature of the plaintiff’s evidence, it should be remembered that they were making allegations as to the dealings of Madam Aku Aba and other members of the family after their deaths. Their acts might be capable of reasonable explanation were these parties alive and would be consistent with acts of ownership by the family.
Faced with the fact that Na Aku Aba, Na Afi Wellington and Amartey Joe drew the rents which in turn they would be entitled to do as principal members of the family if there were no allocation, the children allege that this was done with their permission. Faced with the fact that Na. Aku Aba. aa administratrix sold under the mortgage the plaintiffs at first alleged that she was called before several people to question the sale but, as the case proceeded it transpired clearly that no question was raised at the time of the sale or during the life time of either Aku Aba or Na Afi Wellington. Although it is said that Amartey Joe was called upon to explain, it was only after his death in 1947 that this action was commenced, and at that time the second defendant had been in possession for seven years paying rates on the property under the Deed of Conveyance from Amartey Joe and Na Aft Wellington which he sets up as his title.
It is unnecessary to consider whether the second defendant has a perfect title.
So far as the plaintiffs claiming as children are concerned they did not establish a title against the second defendant and their claim should not have been upheld.
The findings of the Native Court were wTong and the learned Judge of the Land Court was therefore right in setting that judgment aside.
This appeal is, therefore, dismissed with costs fixed at £16 1s. 0d.
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FOSTER-SUTTON, P.
I agree.
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KORSAH, J.
I agree.
Appeal dismissed.
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