OMANE v.

POKU [1973] 2 GLR 66-73

COURT OF APPEAL, KUMASI

9 APRIL 1973

APALOO, SOWAH AND ANIN JJ.A.

Practice and procedure—Summons for directions—Non-compliance with rules—Failure to

take out summons in compliance with rules—Issues clear on pleadings and in evidence—
Whether proceedings vitiated—Fundamental defect or mere irregularity—Supreme [High]
Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 30, rr. 1 and 2 and Order 70.

Conflict of laws—Intestate succession—Immovable property—Lex situs—Alien—Acquisition

of Ghanaian domicile of choice —Subject to Akan customary law—Survived by children but
no maternal nor other relations—Whether children entitled to succeed.

Customary law—Matrilineal society—Succession by children—Circumstances in which

children can succeed to estate of their father on his death intestate.

HEADNOTES

B., a national of the Ivory Coast, lived in Ashanti for the best part of 70 years, married in
Ashanti, adopted an Ashanti name, acquired houses and farms in Ashanti, and died in
Ashanti never once visiting his home in the Ivory Coast. He died intestate survived only by
his children. On the death of B., the plaintiff, claiming as B.’s successor, sued the defendant
whom, he alleged, was interfering with two farms left by B., and which he, as successor was
entitled to enjoy. The defendant counterclaimed for a declaration of title to the two farms
which he said had been gifted to him by B. before his death. After the summons for
directions to settle the issues between the plaintiff and the defendant had been taken, B.’s
son Akuto joined the action as co-defendant. He denied that the plaintiff was in any way
related to B. or that he had properly been appointed his successor. He counterclaimed for a
declaration of title to the two farms on the grounds that they were family property and that
as the deceased was an Ivorian and subject to the patrilineal law of succession, his children
were the proper persons to succeed him.

When the suit was heard none of the parties had taken out any further summons for
directions to settle the issues between the plaintiff and Akuto and the latter and the
defendant. The trial judge held (1) that the plaintiff was no relation of B. and was not his
successor; (2) that the farms in dispute were validly gifted to the defendant and (3) that B.
acquired a domicile of choice in Ghana and that succession to his property was governed by
the law of Ghana. He further held that B. was not subject to customary law as his personal
law.

The plaintiff and Akuto appealed on the ground that the judgment was against the weight of
evidence. In addition, it was submitted on behalf of the plaintiff that the failure of the
plaintiff to take out summons for directions after Akuto had filed his statement of defence
and counterclaim was contrary to Order 30, rr. 1 and 2 of L.N. 140A and rendered the entire
proceedings null and void.

Held, dismissing the appeal:

(1) where, as in this case, the issues were clear on the pleadings and in evidence, the failure
to set them out in a summons for directions in accordance with Order 30 rr. 1 and 2 of L.N.
1440 A was not a fundamental defect but a mere irregularity which could be cured by Order
[p.67] 70, r. 1 of L.N. 140A. Armar V. Armar, Court of Appeal, 21 April 1969, unreported ;
digested in (1969) C.C. 73 applied. Mosi V. Bagyina [1963] 1 G.L.R. 337, S.C. considered.

(2) The trial judge’s findings of fact in relation to the disputed farms could not be disturbed,
but they left outstanding as between the plaintiff and Akuto the question who was the
proper person to succeed to the properties B. died possessed of B. had become an Ashanti
to the extent that not only was he subject to Ghana customary law, but to the Akan system
of customary law. It followed that the properties which B. owned at the date of his death
ought to devolve on his maternal family. In ordinary circumstances A. and his brothers and
sisters would be out of reckoning as far as succession was concerned. But where there were
no maternal nor any relations of a deceased in Ghana, his children were the proper persons
to succeed to the intestate. Ankrah v. Ankrah (1957) 3 W.A.L.R. 104, P.C.; Quarcoopome v.
Quarcoopome [1962] 1 G.L.R. 15 and Davies v. Randall [1963] 1 G.L.R. 382, S.C. applied.

Judgment of Annan J.A. in Omane v. Poku [1972] 1 G.L.R. 295, varied.

CASES REFERRED TO

(1) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.

(2) Armar v. Armar, Court of Appeal, 21 April 1969, unreported; digested in (1969) C.C. 73.

(3) In re Pritchard, Pritchard v. Deacon [1963] 1 Ch. 502; [1963] 2 W.L.R. 685; [1963] 1 All
E.R. 873, C.A.

(4) Ankrah v. Ankrah (1957) 3 W.A.L.R. 104, P.C.

(5) Quarcoopome v. Quarcoopome [1962] 1 G.L.R. 15.

(6) Davies v. Randall [1963] 1 G.L.R. 382, S.C.

NATURE OF PROCEEDINGS

APPEAL against the judgment of Annan J.A. sitting as an additional judge of the High Court,
Kumasi, reported in [1972] 1 G.L.R. 295 on the ground that it was against the weight of
evidence. The facts are fully set out in the judgment of Apaloo J.A.

COUNSEL
Akainyah (Owusu Yaw with him) for the appellant.

Mmieh for the co-defendant-appellant.

C. F. Hayfron-Benjamin for the respondent.

JUDGMENT OF APALOO J.A.

The late Kofi Boakye was born in Adjeikro in the Ivory Coast and was a national of that
country. The evidence shows that in order to avoid being conscripted into the first world
war, his grandfather sent him to this country. He was then very young—apparently under
ten years of age. He lived in one or two places in Ashanti, and finally made his home at
Kona where he died intestate about September 1965. He combined farming with the work
of a fetish priest and although he cannot be said to have been a person of large means, he
died possessed of modest property. Two cocoa farms which he owned were the subject-
matter of the suit which culminated in this appeal.

As is only to be expected, at some time after Boakye came of age, he contracted customary
marriages with two women in Ashanti and begat children by them both. They are Ama
Serwah and Yaa Akyaa.

[p.68]

One of his children a male, is Kwabena Akuto. He is the issue of the deceased with Ama
Serwah. Akuto seems to have got on well with his father and lived and worked with him till
his death. He is one of the parties to this case in a role which I am soon to describe.

The plaintiff is also of Ivory Coast origin and seems to have come to this country long ago.
He and the late Kofi Boakye seem to have collaborated, at least in the latter's fetish
business. He was said to be a drummer of that fetish, and was paid for his services as such.
The plaintiff himself said his relationship with the deceased transcended the purely business
one. He said they were in fact blood relations—being a cousin of the deceased. Indeed he
said he and the deceased came from the Ivory Coast together and settled together in a few
towns in Ashanti and finally moved to Kona where they lived together in the house of one
Opanin Kofi Tom. As the deceased died without any other relations apart from himself and
his children, his landlord Opanin Kofi Tom appointed him to succeed to his estate. He
accepted this appointment and gave thanks in accordance with custom. He explained how
Kofi Tom who was a complete stranger to the deceased, came to appoint him to succeed to
the latter's properties. He said, "When we all went to live at Kona with Opanin Tom, we all
became one family, with the family of Tom. The family belong to the Brentuo clan."

The plaintiff said in virtue of his right as successor to the deceased, he performed his
funeral. When he was about to do so, he was disturbed by the defendant who swore the
great oath of Ashanti on him but he ignored this and did the customary rites all the same.
He said the defendant then interfered with his rights to two farms which the deceased
owned at Apatriatom and which, in his right as successor to the deceased, he was entitled
to enjoy. It is this that provoked this litigation in which the plaintiff sought a declaration of
title to the two farms and a perpetual injunction to restrain the defendant either by himself
or his workmen from interfering with the said farms.

The defendant's position was that the two farms were gifted to himself by the deceased
some time before his death and that this gift was customarily accepted in the presence of
witnesses. According to the defendant, the deceased's object in making the gift was to
repay a kindness which his predecessor did the deceased when he and his brothers lived
with him at Mpankrono. Accordingly, the defendant for his part, sought against the
plaintiff, a declaration of his title to the two cocoa farms.

The facts which I have related were in substance, what the parties averred in their
pleadings. When these closed, the plaintiff took out a summons for directions in which he
formulated the issues between himself and the defendant as follows:

(1) Whether or not after the death of Kofi Boakye the plaintiff was appointed customary
successor.

(2) Whether or not before the death of the said Kofi Boakye he gifted the farms in dispute to
the defendant.

[p.69]

(3) Whether or not as a result of his alleged gift the defendant went into possession of the
farms before the death of Kofi Boakye.

These issues were agreed to by the defendant and ordered to be tried as between them.
But before this could be done, Kwabena Akuto, the deceased's eldest son, sought and
obtained leave to join the action as co-defendant. Upon being joined, he filed a defence in
which he denied that the plaintiff was in any way related to the deceased. He admitted that
the Brentuo clan purported to appoint the plaintiff successor to his father but he disputed
the right of that family to do so and while agreeing that his father lodged with some
members of that clan, denied that he had on that account become a member of that family
so as to entitle it to appoint a successor to him. As Akuto was filing a defence to the
plaintiff's claim, he did not in terms refer to the defendant's claim that the two farms were
gifted to him. He did so by implication, because, he himself counterclaimed for a
declaration of title to the two farms in dispute, on the ground that such farms were the
family properties to which he was entitled by reason of the fact that as the deceased was an
Ivorian and subject to the patrilineal law of succession, his children were the proper persons
to succeed him.

Quite clearly, Akuto was not claiming through the defendant, indeed he was claiming
against him as well as against the plaintiff. But neither the plaintiff nor the defendant filed
any reply to his statement of defence and counterclaim, nor was any further summons for
directions taken out to set out formally the question in issue between the plaintiff and
Akuto and the latter and the defendant.
This was presumably because the suit was ordered to be heard definitely on 28 January
1970 and none of the parties seemed to have considered it necessary to take the trouble of
formalizing the issues. But the evidence led by the parties taken together with their
pleadings, brought out the matters in difference between them with great clarity and the
learned judge Annan J.A. in the case reported in [1972] 1 G.L.R. 295 examined these issues
in great detail and determined them with equal clarity. The judge held that the plaintiff was
no relation of the deceased and that the latter had not become assimilated into Kofi Tom's
family so as to entitle him to appoint a successor to the deceased. With regard to the farms,
he concluded that there had been a valid gift of them to the defendant. As the judge held
that the farms in dispute were the subject of a gift inter vivos to the defendant, the claim by
Akuto to these farms must fail because be based himself on the ground that these farms
were the properties of the deceased at the date of his death and that he was entitled to
succeed to them by Ivorian customary law. The judge went further and held that succession
to the properties was governed by the lex situs. In this case this must be the law of Ghana,
in particular Ashanti customary law. The judge also made some pronouncements which
suggest that even if he had held that the farms were not in fact gifted to the defendant,
Akuto could not have succeeded to them.

[p.70]

Both the plaintiff and Akuto appealed to this court on the identical ground that "the
judgment was against the weight of evidence." The plaintiff, but not Akuto, also filed
additional grounds of appeal and obtained leave to argue them. These grounds do not raise
any serious question for our consideration and merely complained of insubstantial
procedural irregularities. It was urged that as Akuto filed his statement of defence and
counterclaim after issues had been settled between the plaintiff and the defendant, the
former was entitled to take out summons for directions and that by hearing the case before
this could be done he was disabled from doing this. It was contended therefore that the
proceedings are "a nullity because the court could only consider the settled issues and since
none was settled, there was no issue before the court for trial." This contention comes
strangely from a person who was himself under an obligation to take out summons for
directions and who, while not doing so, was content to produce evidence to the court and
invite the latter to decide in his favour. Although the issues joined between the plaintiff and
Akuto were not formally settled, they were clear on the pleadings. The learned judge set
them out in great detail and determined them with admirable ability. No complaint is made
about the judge's resolution of these issues. It is difficult to conceive of a more barren
complaint.

One would have thought that since the plaintiff's substantial complaint was non-compliance
with the procedure rules, it is the kind of situation contemplated by Order 70, r. 1 of the
Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and answered positively
against the contention that the proceedings were void but the plaintiff relies on the
authority of Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C. In that case, the respondent obtained
judgment in the native court for possession of certain land. That judgment was affirmed
both by the Asantehene's court and the High Court on appeal. In order to obtain
possession, the respondent applied to the High Court by motion ex parte for an order for a
writ of possession. This application was presumably made under Order 47 of L.N. 140A. This
application was granted. The plaintiff on learning of this, sought by motion on notice to set
it aside. The High Court to which the application was made, refused it on the ground that if
it was an appeal it did not lie; if it was a review, it should be made to the judge who granted
the order. On appeal to the Supreme Court, it was held that since the original order for
possession was not made by the High Court, it had no jurisdiction to make an order for a
writ of possession and that its order was void. It was held further that the court had an
inherent power to set aside an order which was void either on its own motion or under the
application of a party affected by it. The court also held that Order 70 of L.N. 140A did not
avail the respondent as that order merely saves irregularities which do not render
proceedings void but voidable.

I think it is plain that the High Court cannot be said to lack jurisdiction to hear an ordinary
land suit or succession case because although [p.71] the issues are clear on the pleadings,
they were not formally set out in a magic document called "summons for directions." In
Armar v. Armar, Court of Appeal, 21 April 1969, unreported; digested in (1969) C.C. 73 this
court laid down some guidelines as to when Order 70 applies and when it does not. In
substance it held that Order 70 applies to all defects in procedure unless it can be said that
the defect is fundamental to the proceedings. A fundamental defect will make the
proceedings a nullity. The court should not readily treat a defect as fundamental and so a
nullity, and should be anxious to bring the matter within the umbrella of Order 70 when
justice can be done as a matter of discretion. The court then cited the English case of In re
Pritchard; Pritchard v. Deacon [1963] 1 Ch. 502, C.A., where Upjohn L.J. referred to some
fundamental defects which would make proceedings a nullity and incapable of being saved
by Order 70. They are not relevant to this case and it is not necessary to reproduce them.

The real question in this case is whether failure to settle issues formally in a summons for
directions before their determination is such a fundamental defect as would vitiate the
entire proceedings. I think not. Where, as in this case, the issues are clear both on the
pleadings and in evidence, the failure to set them out in a summons for directions in
accordance with Order 30, rr. land 2 of L.N. 140A, is a mere irregularity which is curable
under Order 70. 1 think therefore that this ground of appeal fails.

As I said, both the plaintiff and Akuto united in contending that the judge's finding that the
farms in dispute were validly gifted to the defendant was against the weight of evidence. It
was said that the evidence of the witnesses who testified as to this gift was riddled with
inconsistencies and other improbabilities and was on that account unworthy of credit. In
particular, counsel stressed the fact that although the defendant claimed to have entered
into possession of the farms in pursuance of the gift during the lifetime of Boakye, this was
disproved by the evidence.

I think the argument urged on this ground is not without merit and if the learned judge had
in his consideration of this case, overlooked the many differences in the accounts of the
witnesses or the seemingly disturbing features of the evidence of the gift, I would have
thought it our duty to intervene on the plaintiff's behalf. But the learned judge showed
himself to be fully aware of these conflicts. He enumerates them in his judgment and
himself lists some other matters which lent an air of improbability to the story of a gift. But
in the end, he expressed himself as satisfied with the evidence of the gift. He regarded the
conflicts in the story of the witnesses as honest differences of recollection. He found
positively that the witnesses to the gift, whom he had seen and heard, had not conspired to
narrate false testimony. In those circumstances, short of this court substituting itself for the
trial judge, [p.72] I cannot see how we can overrule the judge on his factual conclusion. I
think therefore that this ground of appeal must also fail.

That should conclude this case but there is outstanding as between the plaintiff and Akuto
the question who is the proper person to succeed to such properties as Boakye died
possessed of. Although he relinquished his title to the two farms in dispute before his
death, there is evidence that Boakye died possessed of two houses at Apatretom and one
house at Kona. Akuto swore that the plaintiff claiming to be the lawful successor of Boakye,
has taken possession of these properties. Akuto asserted the right of the children of Boakye
to these properties as against the plaintiff. As far as the plaintiff is concerned, the judge
found that he was not related to the deceased and was not entitled to succeed him, further
that the Brentuo family were not entitled to appoint a successor to the deceased. That
finding was not contested before us and we think, on the evidence, was a correct finding.

The judge also found that Boakye acquired a domicile of choice in this country and
succession to his property must be governed by the law of this country. The question
therefore is whether Boakye was subject to customary law of this country and if so which?
Although the judge found that Boakye did not identify himself with his landlord's family to
the extent of his becoming a member of that family, he can accurately be said to have
become an Ashanti to the extent that not only was he subject to Ghana customary law, but
to the Akan system of customary law. He came to this country as a child, lived in Ashanti for
the best part of 70 years, married in Ashanti, adopted an Ashanti name, acquired houses
and farms in Ashanti and died in Ashanti never once visiting his home in the Ivory Coast. It
would follow therefore that the properties which the late Boakye owned at the date of his
death ought to devolve on his matrilineal family. In ordinary circumstances, Akuto and the
other children of the deceased being in the contemplation of Akan customary law, strangers
to their father’s family, would be out of reckoning as far as succession is concerned. But in
this case, the evidence is that there are no maternal or indeed any relations of the deceased
in this country. Accordingly, if this matter were res integra, I would hold that his children
should, ex debito justitiae, succeed to his estate. But the matter is in fact concluded by
authority. The cases of Ankrah v. Ankrah (1957) 3 W.A.L.R. 104, P.C., Quarcoopome v.
Quarcoopome [1962] 1 G.L.R. 15 and Davis v. Randall [1963] 1 GLR 382, S.C. decide that in
the type of situation revealed in this case, the children are the proper persons to succeed to
the intestate. I think therefore that as against the plaintiff, Akuto and his brothers and
sisters are entitled to the other assests of the deceased. In so far as the learned judge
thought otherwise, I think, with respect, he slipped. But I share his conclusion that the two
farms in dispute were validly gifted to the defendant by the deceased and as this finding
provoked this appeal, it should be dismissed.

[p.73]

I would order that both the plaintiff and Akuto pay the costs of this appeal in equal shares.

JUDGMENT OF SOWAH J.A.

I agree

JUDGMENT OF ANIN J.A.

I also agree

DECISION

Appeal dismissed.

Judgment varied

S.E.K.