AMERLEY vs. OTINKORANG AND ANOTHER [1965]DLSC1773

Date	1965-11-18
Suit No.
Citation No.	[1965]DLSC1773

SARKODEE-ADOO C.J

APALOO JSC

SIRIBOE J.S.C.

HAYFRON-BENJAMIN (WITH HIM J. ARTHUR) FOR THE APPELLANT.

NELSON COFIE FOR THE RESPONDENTS.

[1965]DLSC1773
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >AMERLEY <o:p></o:p>vs. <o:p></o:p>OTINKORANG AND ANOTHER <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 656<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
18 NOVEMBER 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

HAYFRON-BENJAMIN (WITH HIM J. ARTHUR) FOR THE
APPELLANT.<o:p></o:p>

NELSON COFIE FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SARKODEE-ADOO C.J., APALOO AND SIRIBOE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SARKODEE-ADOO C.J.<o:p></o:p>This is
the judgment of the court on an appeal from a decision of the High Court which
on 13 September 1961, dismissed a claim by the appellant for a declaration of
title to and recovery of possession of a number of houses, cash and other
personal properties set out in the writ. Without going deeply into the facts,
the evidence shows that the late E. B. Otinkorang lived for many years in
Teshie and died intestate at Accra on 11 June 1959, possessed of considerable
property. The first respondent is his lawful widow having been married to the
deceased under the provisions of the Marriage Ordinance.1 The second respondent
is the eldest child and issue of that marriage. Upon the death of her husband,
the first respondent took out letters of administration and it would seem that
it was while she was in the course of administering the estate that the
appellant found cause to commence this action. The latter claimed that some of
these properties belonged to the Atwei Otofoyo family of which she was head and
she complained that the first respondent wrongfully took possession of those
properties. The appellant also claimed a third share of such of those
properties as belonged to the deceased in his own right.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent denied that she was in possession of any properties which belonged
to the appellant’s family and claimed that all the properties of which she
stood possessed were the self-acquired properties of her late husband. As to
the appellant’s claim to a third share of these properties, the first
respondent replied that that portion descended to the children of the late E.
B. Otinkorang in accordance with Teshie customary law and that the family as
such had no right to it. It is perhaps noteworthy that the appellant filed a
reply to the statement of defence in which she averred that “Teshie custom of
succession is through the maternal line and is the same as the Ga customary law
of succession.” This averment was made on the footing that the late E. B.
Otinkorang was a Teshie man and succession to his property was governed by
Teshie customary law. Shortly afterwards, it would seem that the appellant
found reason to revise her view of the Teshie custom of succession. She
therefore amended her reply and averred that the deceased was not a full Teshie
man but that his maternal grandmother hailed from Akwamu and therefore claimed
that “Teshie custom is not applicable to his estate.”<o:p></o:p><o:p>&nbsp;</o:p>It thus
became necessary to decide whether or not the deceased hailed from Teshie. This
and other controverted matters were set out as triable issues in a summons for
directions taken out by the appellant. The learned trial judge resolved all
these issues in favour of the respondent and in particular, held that the claim
that the deceased was of Akwamu origin was fabricated for the purpose of this
case. He therefore concluded that the appellant failed to make good her title
to any of the properties in dispute and accordingly, proceeded to dismiss the
action. But before dealing with the grounds of appeal, it is necessary to
notice a procedural matter which the appellant claimed damnified her and which
formed one of her grounds of appeal. When counsel for the respondents informed
the court that he had closed his case, the learned judge then proceeded to
reserve judgment to be delivered on notice. There is no record of counsel’s
addresses and it is not possible to say whether the court declined to hear
addresses or whether counsel waived their right of address.<o:p></o:p><o:p>&nbsp;</o:p>Accordingly,
counsel for the appellant founded the first ground of appeal which was urged
before us on this. It was submitted that the case of the appellant was greatly
prejudiced by the denial of the right of address. Counsel referred us to Order
36, r. 21 (g) and (h) of the Supreme [High] Court (Civil Procedure) Rules,
19542 and submitted that that rule cast an obligation on the court to invite
counsel’s address before judgment. We cannot agree. The material part of that
rule reads “the party against whom the same has been adduced shall be at
liberty to address the court, and the party beginning shall be entitled to the
general reply.” In our opinion, that rule merely confers on the parties the
right of address which they can exercise or not just as they please. We cannot
see that that rule obliges the court to call upon counsel to address the court
any more than that it obliges a party to address the court against his wish.
We, however, consider it desirable that where the right of address is waived, a
record should be made of that fact. But in this court, counsel for the
appellant has had every opportunity of addressing us on the evidence and citing
such legal authorities as he would have cited to the court below and we assume
he took full advantage of this opportunity. Having heard him, we are wholly
unable to say that a fair trial has in any way been imperilled or that the
absence of addresses in the court below amounted to anything remotely
resembling a failure of justice. In our opinion, this</main>