MARY AFUA NELSON V. SAMUEL QUARSHIE NELSON

 MICHELIN, J.

This is. An appeal from the judgment of the Provincial Commissioner of the Eastern Province dated the 7th December, 1931, in which he dismissed with costs an appeal from the judgment of the Native Tribunal of the Ga Mantse dated the 30th July, 1931.

Before going into the merits of the appeal Mr. Akiwumi on behalf of the respondents raised the following preliminary objection:- The Court below had no jurisdiction to hear the appeal from the Native Tribunal for the following reasons

(1) No record appears on the face of the proceedings that an application was made to the Native Tribunal and refused before the Court granted leave to appeal.

(2) Appeal should have gone to the District Commissioner and not to the Provincial Commissioner.

(3) The conditions of appeal had not been fulfilled in regard to the service of the notice of appeal upon the respondent.

The Court, however, after having heard counsel for the appellant, in reply, overruled each of these objections and directed that the appeal should proceed.

Five grounds of appeal were filed which appear at page 130 of the record. In arguing this appeal Mr. A were dealt with grounds

2, 3, 5 and 6 together, then with ground 4. Ground 1 which practically embraces all the other grounds was not argued.

In dealing with grounds 2, 3, 5 and 6, he referred the Court to the decisions of the Full Court in Villars v. Baffoe, Renner’s Reports 549 and Pappoe v. Kwaku F.C. 1923-25158, and submitted that the defendant was head of the family and therefore not liable to account to the plaintiffs who were junior members of the same family.

In arguing the fourth ground, he submitted that no accounts had been taken before the Native Tribunal delivered its judgment.

I shall in the first place consider the judgments in the two cases cited. In the case of Villars v. Baffoe an action had been brought in the Divisional Court by a woman who had obtained letters of administration against certain members of the deceased’s family for the surrender and delivery up by them to her of certain articles of personal property which had belonged to the deceased. It was held by the Full Court that articles regarded as family property” did not pass to the administratrix.

In the case of Pappoe v. Kwaku, where the defendant as head of the family took out letters of administration of a deceased member, it was held that he was not liabe to account to another member of the family.

In Sarbah’s Customary Law at page 78 the following appears:- “If the family therefore find the head of the family misappropriating the family possessions and squandering them, the only remedy is to remove him and appoint another instead; and although no junior member can claim an account from the head of the family or call for an appropriation to himself of any special portion of the family estate or income therefrom arising, yet the Customary Law says they who are born and they who are still in the womb require means of support, wherefore the family land and possessions must not be wasted or squandered.

In the present case, however, the facts are entirely different. The plaintiff is not sued as head of the family, nor is there anything in the evidence before the Court or in the judgment of the Native Tribunal to indicate that he succeeded the deceased as head of the family. The facts appear to be shortly as follows:-

The deceased George Akotey Nelson died in Accra about 16 years ago. At the time of his death no written will could be found, and no will either written or verbal, as ever admitted to probate, nor was any application made to the Court by anyone for the grant of letters of administration.

The witnesses on each side testified, however, to the fact that prior to the death of the deceased he had made certain death bed depositions of his property both real and personal. The deceased left 13 children including the present plaintiffs and defendant.

In Sarbah’s Customary Law at page 82 it is stated as follows:-

“Death bed dispositions known as ‘samansiw’ seem to be recognised not so much because of any assumed right to make such a disposition as because from feelings of affection, respect or even superstition, the last wishes of the deceased are considered to be entitled to weight among the members of his family.”

The question of whether or not the death bed disposition of the deceased in this case amounted in Native Customary Law to a “samansiw” was not considered by the Native Tribunal, and it is not necessary therefore for me to determine this matter. It was clearly proved, however, that on the death of the deceased his funeral expenses were defrayed not by the defendant but by one Acquah, nephew of the deceased on the maternal side, and according to Ga Native Customary Law as laid down in numerous decisions of this Court, he and not the defendant, a son of the deceased, would succeed the deceased as the head of the family.

It was proved that on the death bed of the deceased he expressed the wish that as the defendant was literate, he should look after the interests of his brothers and sisters in the property left by the deceased, and after the death of the deceased Acquah, as head of the family of the deceased confirmed this request.

In the course of Acquah’s evidence he was asked the following questions, and gave the following reply

“Q. Do you truly say that you gave the defendant power over the estate on behalf of the plaintiffs?

“A. Yes.”

No evidence was led, however, to show that Acquah was ever superseded as head of the family by the defendant. The sole ca11se of the institution of this action is the acquisition by the Government in the year 1923 of a portion of land with a building on it which had belonged to the deceased during his lifetime, and the failure of the defendant to distribute an adequate portion of the proceeds of the compensation awarded by the Court among the plaintiffs.

The defendant claimed in his own name compensation and was awarded by the Court £1; 650. It was stated, however, by the Town Clerk Mr. Blankson-Mills in the course of his evidence at the hearing of the acquisition case, that the defendant was a ratepayer in respect of the land as representing his father. The defendant also in the course of his evidence on being asked the following question:

“Q. In whose name is the Town Council rate paid for the house? Replied as follows:- “Our father’s name.”

In my opinion, this is not the case of an action by a junior member of a family against the head of a family but is brought by brothers and sisters of the defendant against him in his fiduciary position as a caretaker on their behalf, not only at the request of the deceased but also at the request of the head of the family, to look after their interests in the property of the deceased.

He was therefore clearly liable to account to the plaintiffs. The Native Tribunal, after a careful and exhaustive enquiry in which I consider they went fully into the accounts, came to certain definite conclusions on the facts which have been upheld on appeal by the Provincial Commissioner.

Although, I am unable to agree with the Provincial Commissioner in his statement that the defendant was “head of the family” of the deceased, it is clear from his judgment that he did not use these words in the sense of the definition of that term in Native Customary Law.

The appeal must be dismissed with costs assessed at £16 Os. 6d. The Court below to carry out. HORNE, J. I concur. MACQUARRIE, J. I