KUMAH vs. KYERAAH AND OTHERS [1965]DLSC1821

Date	1965-04-05
Suit No.
Citation No.	[1965]DLSC1821

MILLS-ODOI JSC

OLLENNU JSC

ACOLATSE J .S.C.

OSEI-BONSU FOR THE APPELLANT.

OWUSU FOR ANNIN FOR THE RESPONDENTS.

[1965]DLSC1821
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													<main id="main" class="content" style="min-height: 60rem" >KUMAH<o:p></o:p>&nbsp;vs. <o:p></o:p>KYERAAH AND OTHERS <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 235<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:
5 APRIL 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">

OSEI-BONSU FOR THE APPELLANT.<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 ACOLATSE
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. This is an appeal from a judgment
of Bruce-Lyle J., as he then was, given in the High Court, Sunyani, on appeal
from a decision of the local court of the Sunyani Urban Council. The
respondents, plaintiffs in the local court, are children of one Kwabena
Bogyabi, deceased, and the appellant, defendant in the local court, is
successor to the said Kwabena Bogyabi. The essence of the claim is for a
declaration of title to and recovery of possession of a farm described in the writ
of summons.<o:p></o:p><o:p>&nbsp;</o:p>It is the
case of the plaintiffs that their father devised the farm to them by his
samansiw, an oral will made in accordance with customary law, the substance of
which was afterwards reduced into writing, and that the family had refused to
surrender the same to them. The defendant admits that the samansiw in question
was validly made; he, however, contends that the subject of the samansiw is
only one farm, but that the farm as described in the writ of summons comprises
two separate farms, one of which is not affected by the samansiw gift. As to
the claim for recovery of possession of the one farm he admits to be the
subject of the samansiw, the defendant contends that the said farm together
with two other farms left by the deceased are, by customary law, liable for the
payment of a debt of, £G500 owed by the deceased at the date of his death, and
that quite apart from the customary law, the deceased himself had, in a
promissory note covering the debt, mentioned all his farms including the devised
farm as properties which could be sold in execution in satisfaction of a decree
which may be made against him for the payment of the said £G500. The defendant
therefore pleaded that the surrender of the farm cannot be made to the
beneficiaries under the samansiw until the debt is discharged. The issues the
local court was called upon to determine upon these pleas are: (a) whether the
samansiw is in respect of two farms and (b) whether the farm or farms, the
subject-matter of the samansiw, are liable, together with other properties of
the deceased, for the payment of the debt due from his estate; in other words,
whether under customary law property which a deceased person had directed in
his samansiw, should be given to a particular person or persons, forms part of
the assets for the payment of the debts of his estate.<o:p></o:p><o:p>&nbsp;</o:p>After
taking evidence, oral and documentary, the local court magistrate inspected the
farm in dispute; he thereafter delivered his judgment, and in it decided each
of the two issues in favour of the defendant holding on the first issue that
one and only one farm was devised under the samansiw and not two farms as
claimed by the plaintiffs, and on the second issue, that by customary law that
farm forms part of the assets of the estate for the payment of the debts of the
estate.<o:p></o:p><o:p>&nbsp;</o:p>The
judgment of the local court was delivered on 23 March 1962; the plaintiffs
being dissatisfied with it, and intending to appeal therefrom, lodged in the
High Court, notice of their intention to appeal; this they did on 27 April
1962, four days outside the statutory period of one month allowed for
instituting appeal, as provided by regulation 171 of the Local Courts Procedure
Regulations, 1959,1 which were the rules then applicable to appeals from a
local court. The plaintiffs also failed to fulfil the statutory conditions of
appeal prescribed in regulation 173 of the aforesaid regulations within the
time limit allowed. They therefore moved the High Court for an extension of
time within which to fulfil the conditions of appeal; this they did in the hope
that such an enlargement of time will regularise the appeal. Counsel for the
defendant opposed that application on the grounds that since the notice of
intention to appeal was given out of time, the High Court was not seised of the
appeal and therefore had no jurisdiction to enlarge time for fulfilling
condijtions of appeal; he however, withdrew his opposition to the application
and the learned judge of the High Court granted it. But the withdrawal of the
opposition cannot operate to vest the High Court with jurisdiction because
parties cannot by consent confer jurisdiction on a court where the court has
none by statute.<o:p></o:p><o:p>&nbsp;</o:p>Eventually
the appeal was argued; the learned judge allowed it, reversed the decisions of
the local court both on the facts and on the customary law, and entered
judgment for the plaintiffs on their claim. From that judgment the defendant
ap</main>