AKELE vs. COFIE [1961]DLSC549

Date	1961-03-17
Suit No.
Citation No.	[1961]DLSC549

VAN LARE JSC

SARKODEE-ADOO JSC

AKIWUMI JSC

C.F. HAYFRON-BENJAMIN FOR THE APPELLANT

OBETSEBI-LAMPTEY FOR THE RESPONDENT

[1961]DLSC549
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&nbsp;[SUPREME COURT]

[1961] GLR 173

DATE: 17TH MARCH, 1961.

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COUNSEL:&nbsp;&nbsp;

C.F.
HAYFRON-BENJAMIN FOR THE APPELLANT.

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VAN LARE, SARKODEE-ADOO ANDAKIWUMI,
JJ.S.C.

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&nbsp;

JUDGMENT OF SARKODEE-ADDO
J.S.C.

Sarkodee-Addo J.S.C delivered the judgment of the court. This is
an appeal from a judgment of the High Court, Accra, dated the 2nd June, 1960,
in an administration suit in which the plaintiff’s claim is for a declaration
that as the eldest surviving maternal relative of Kofi Aryeh-Kwao (deceased)
and his “cousin German”, she is the person entitled to succeed to and
administer the estate of the said Kofi Aryeh-Kwao (deceased). The writ of
summons was issued in pursuance of the order of the court bearing date the 14th
September, 1959, after the court had been informed by counsel that the parties
(applicant and caveator) had not been able to come to a settlement.

On the pleadings as filed by the parties, the issues appearing
thereon were three-fold, namely:

(1) Who is the proper person (plaintiff or defendant) to succeed
to the late Kofi Aryeh-Kwao, deceased?

(2) Did the late Kofi Aryeh-Kwao, deceased, in his life-time make
a gift inter vivos or a samansiw

(3) Was there an arbitration held after the death of the late Kofi
Aryeh-Kwao whereby by the award thereof his self-acquired properties were
formally and actually granted to his children?

By an order of the court made on the 18th March, 1960, the first
issue namely, “who is the proper person (plaintiff or defendant) to succeed to
the late Kofi Aryeh-Kwao, deceased” was referred to the Municipal Court, Accra,
for that court to enquire into and determine that issue in accordance with
native law and custom, and to report its decision on such question to the
court, under section 89 of the Courts Ordinance.1(1)

The said municipal court in its judgment found, inter alia, that
the plaintiff’s claim to succession and administration was well sustained and
that she was the person rightly entitled to succeed to and administer the
estate of the late Kofi Aryeh-Kwao.

From the proceedings of the municipal court transmitted to the
High Court, it is patently clear that a mass of evidence was taken in respect
of the other issues which were not referred to it, namely, the questions of
samansiw and arbitration.

Upon the matter coming up for hearing before the High Court on the
2nd June, 1960, Mr. Hayfron-Benjamin, counsel for the defendant submitted that
the said judgment or (report) of the municipal court which had been admitted
and marked “A” for the purpose of argument should not be accepted on the
following grounds:

(1) The learned judge should have qualified the word estate by the
adjective ‘personal’.

(2) As a result of this omission the referee was persuaded to take
a mass of evidence as to succession to real property which is irrelevant to the
matter in issue, which is, ‘who is entitled to administer the personal estate
of the deceased.’

(3) The finding of the municipal court is incompetent. It went
outside the terms of reference.

(4) The magistrate was assuming the function of the High Court
when he dismissed the evidence given in respect of samansiw.

Mr. Obetsebi-Lamptey, counsel for the plaintiff argued contra in
support of the adoption in whole of the said judgment or report. The learned
judge of the High Court adopted the report of the municipal court in whole </main>