BENG AND ANOTHER vs. POKU [1965]DLSC1785

Date	1965-03-15
Suit No.
Citation No.	[1965]DLSC1785

MILLS-ODOI JSC

OLLENNU JSC

BRUCE-LYLE J.S.C.

OWUSU AFRIYIE FOR THE FIRST APPELLANT.

S. A. GYIMAH FOR THE SECOND APPELLANT.

OSEI BONSU FOR THE RESPONDENT.

[1965]DLSC1785
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													<main id="main" class="content" style="min-height: 60rem" >BENG AND ANOTHER<o:p></o:p>&nbsp;vs.<o:p></o:p>&nbsp;POKU <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 167<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:
15 MARCH 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">

OWUSU AFRIYIE FOR THE FIRST APPELLANT.<o:p></o:p>

S. A. GYIMAH FOR THE SECOND APPELLANT.<o:p></o:p>

OSEI BONSU FOR THE RESPONDENT.<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">

MILLS-ODOI, OLLENNU AND BRUCE-LYLE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. The proceedings which have
culminated in this appeal commenced in the High Court, Kumasi, with an
application by the plaintiff, the first appellant herein, for a grant of letters
of administration in respect of the estate of his deceased father, Kofi Beng,
also known as Okomfo Kofi Beng. Caveat to the said application was first
entered by the first defendant, the respondent herein, and later another was
entered by the second defendant, the second appellant herein, each of whom
claimed to be the proper person entitled to the grant of letters in respect of
the estate. After the preliminary proceedings required by the rules of
procedure applicable to the High Court in administration matters had been
completed and writ of summons issued by the plaintiffs, pleadings were filed,
and the matter proceeded to trial..<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff based his claim upon facts pleaded in paragraphs (2), (3), (5) and
(6) of his statement of claim which are as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) The
deceased, who was about 70 years old at the time of his death, was survived by
a wife Afua Manu, four sons, namely, plaintiff, Kwabena Appiah, Akwasi Pasa and
Alexander Ofori, and by two daughters, namely, Akua Afriyie and Akosua Kitiwaa.
Deceased was predeceased by two sons and two daughters. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3) save
for those mentioned in paragraph (2) herein, deceased left no relative or other
issue. (5) Deceased was not a native of Ashanti, but was born in Moseaso of
parents who had migrated thither from the Krachi district in the Volta Region.
(6) By the customary law of the said Krachi district, which plaintiff contends
is the proper law applicable to the estate of deceased, inheritance on
intestacy is through the paternal line.”<o:p></o:p><o:p>&nbsp;</o:p>Each of
the two defendants denied that the late Kofi Beng was from Krachi; they each
asserted that he was an Ashanti, and that succession to his estate is governed
by Akan customary law. But while the first defendant claimed descent with the
deceased from a very remote common ancestress, one Akosua Brago, who was five
generations above his mother, the second defendant claimed to have descended
with the deceased from one Yaa Gyaa or Adjoa Gyaa, the great grandmother of the
deceased Kofi Beng. In addition The second defendant pleaded that the deceased,
shortly before his death distributed some of his properties to his wife and
children, and appointed himself his successor to take charge of the residue of
his estate.<o:p></o:p><o:p>&nbsp;</o:p>The trial
judge, Djabanor J., dismissed the claim of the plaintiff as well as that of the
second defendant, and entered judgment in favour of the first defendant, as the
proper person entitled to the grant of letters of administration. From that
decision the plaintiff and the second defendant have separately appealed.<o:p></o:p><o:p>&nbsp;</o:p>Three
original and eight additional grounds of appeal were filed on behalf of the
plaintiff; of these only the first two of the three original grounds merit some
consideration; these are:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1) The
learned judge in the court below erred in finding as he did that since
plaintiff’s father came from Ashanti therefore plaintiff</main>