Augustina Mamuna Ruttmern & Ors V. Emmanuel Candinho Ruttmern (1937)

LawGlobal Hub Judgment Report – West African Court of Appeal

Claim for a declaration that certain land is family land, and that plaintiffs are entitled to share the rents, and for an account—Question of marriage of plaintiff’s grandmother to common ancestor—Finding of marriage according to native law and custom—Opening statement of Counsel binding when there are no pleadings.

Held : Finding of Court below upheld and appeal dismissed.

The facts are sufficiently set out in the judgments. J. H. Coussey for Appellant.

E. C. Quist (with him K. A. Bossman) for Respondent. The following judgments were delivered :-

KINGDON, C. J., NIGERIA.

The parties in this case are all grandchildren of one Alfa ; the three plaintiffs are the children of Nuffu by Yiboi, and Nuffu was the son of Alfa by Ashetu ; the defendant is the son of Karimu, who was the son of Alfa by Fatuma. Karimu also had another son, Louis, who died in 1928. In addition to his children by Ashetu and Fatuma, Alfa had children by Mariama, but they are all dead without issue.

The plaintiffs filed a suit against defendant in the Tribunal of the Paramount Chief of the Ga State claiming as follows :-

” The plaintiffs claim (b) for a declaration that all that piece or parcel of land together with the buildings thereon hereinafter more accurately described to wit : All the land with the buildings thereon which is situate in the High Street, Accra, and now leased to the Gold Coast Machinery and Trading Company Branch of the United Africa Company Limited, and bounded on the north by the High Street on the south by Janet Harbour and open space on the east by a lane between it and Hope Store and on the west by Janet Harbour, is the property of the Alfa Ruttmern Family of which the said plaintiffs together with the defendant are members and that the said plaintiffs are entitled to share the rents accruable from the said premises with the defendant.”

The case was transferred to the Supreme Court for hearing in the Divisional Court, Accra, and before that Court the writ was amended by adding the further claim :—

” The plaintiffs further claim an account of all rents collected by the Ruttmern

defendant in respect of the said premises from the year 1928 up to date and & Ors. for an order for payment to the plaintiffs of the-amount found due upon thev.

taking of such accounts aforesaid to be their share of the rents so collected.” Ruttmern.

The trial Judge found for the plaintiffs and granted them the Kingdon, declaration sought for, and ordered an account to be taken from the ^c.Jyear 1928 by Captain Price-Jones, who was then acting as Registrar

of the trial Court. Against this judgment the defendant now appeals to this Court.

The main question in issue both in the Court below and in this Court is whether or not the plaintiff’s grandmother, Ashetu, was married to the parties’ common grandfather, Alfa.

The learned trial Judge found as a fact that Ashetu was the lawful wife according to native custom of Alfa, and the first and vital point in this appeal is to decide whether this finding is to hold good.

Appellant’s Counsel seeks to impeach it first by arguing that the finding cannot possibly be correct because Alfa, being a Mohammedan priest, could not contract a marriage by native law and custom. Now this is an entirely new point which was not taken in the Court below, but on the contrary, the then Counsel for defendant, in his opening, pleaded ” the grandmother of defendant was married by native custom to the common ancestor ” ; this statement was not disputed by plaintiffs, but its importance lies in the fact that it amounts to an admission that Alfa was capable of contracting a marriage by native custom ; moreover there is nothing in the whole proceedings to suggest that this admission was subsequently repudiated until this Court was reached.

This case was—and in passing I wish to add that I think that it was unfortunate that it was—tried without pleadings ; and when this is done, the opening statements of Counsel take the place of pleadings and are just as binding as actual pleadings ; it is useless for Counsel to ask this Court, as Counsel in this case has done, to treat such statements as mere loose expressions which can be subsequently repudiated if found inconvenient. I think that the appellant is bound by his Counsel’s opening in the Court below, and that it is not competent now for him to raise, or for this Court to consider, the contention that it was not competent to Alfa to contract a marriage according to native custom. It follows that I also consider it unnecessary to go into the question of whether or not Alfa could contract a marriage according to Mohammedan law with Ashetu. That question does not arise either on the pleadings or in the judgment of the Court below. Appellant’s Counsel next asks this Court to reverse on its merits the finding of fact that Alfa and Ashetu were married. Since that finding of fact is based mainly on the credibility of a witness, I am of opinion that the finding must be accepted and acted upon. In this connection there is one point which should be mentioned in regard to the evidence of the old woman, Yawa Aruna. Appellant’s Counsel sought to discredit her

by pointing out that she said in examination-in-chief that Ashetu
& Ors.was Alfa’s first wife, whilst she had to admit in cross-examination

v.

Ruttmern. that Alfa had previously had another wife ; but the contradiction was only apparent and not real, because it is dear that, when she

Kingdon,

said “Ashetu was Alfa’s first wife,” she and the Court and the interpreter were only thinking of priority as between Ashetu and Fatuma, and the evidence being given through an interpreter, a question and answer as to which wife was first, i.e. between Ashetu and Fatuma, would quite naturally be recorded in the terms appearing without any conscious or intentional false statement by the witness.

Further in this connection, it is clear that, in view of this witness’s evidence in cross-examination, the finding of the trial Judge that Ashetu was Alfa’s first wife cannot be upheld and must be modified to a finding that she was a senior wife to Fatuma, the defendant’s grandmother. This modification makes no real difference, as the finding that defendant is not the head of the family remains good, as does the consequence that plaintiffs are entitled to a share in the rents.

Turning now to the claim for an account, the appellant has protested that the office of caretaker cannot be thrust ex post facto upon a person in the way the judgment thrusts it upon the appellant and his brother Louis before him. Perhaps the term ” caretaker ” is, strictly speaking, a misnomer, but it is a term which is commonly used in this country to mean the member of the family, not necessarily the head, who acts as agent for the family in conducting its affairs. The trial Judge found, and I see no reason to differ, that the defendant and his brother, Louis, before him were caretakers in the sense I have indicated, though not heads of the family. They, as the literate members of the family, naturally managed^– the family affairs rather than the illiterate plaintiffs, who entrusted the family affairs to the members most capable of managing them. It would, I think, be inequitable and contrary to well-recognised native custom to deprive the illiterates of their claim to enforce their rights even after a period of years.

In my opinion the plaintiffs have not been guilty of such ‘aches as to estop them.

Such an agent as was the defendant and Louis before him is liable to account for all sums received by him (Nelson v. Nelson, 1 W.A.C.A. 215), and therefore I am of opinion that the trial Judge’s order directing an account to be taken as prayed was correct.

For these reasons I am of opinion that the judgment of the trial Court must be upheld and that the appeal should be dismissed.

I agree that this appeal should be dismissed. I feel myself in entire concurrence with the judgment of the learned Judge in the Court below. His findings of facts and the law which he applied cannot, in my opinion, be questioned. The main and fundamental question in the whole case was whether the marriage between the ancestor Alfa and Ashetu was a valid one in accordance with native law and custom. After a very careful investigation, the learned Judge held rightly that the marriage was lawful, and that as between the wives Ashetu and Fatuma, the descendants of the former belonged to the senior branch of the family. There is evidence, believed by the Judge, in support of, a form of marriage under native law and custom, and in any case I should apply the principle that the law will presume strongly in favour of the validity of a marriage where a great length of time has elapsed since its celebration. Such a presumption can be, I know, rebutted, but only by strong, satisfactory and conclusive evidence, which is absent in this case.

I cannot concur with the contention of Counsel for the appellant that there is no right of action in this case, nor can I support the argument that there was laches. For years and years the plaintiffs’ illiterates were entirely in the hands of the other side of the family, who were well educated. The defendant’s side of the family by reason of their education were in the local sense of the word the^– caretakers of the family property. The defendant was never the head of the family, but he was in charge of and acted as trustee for the family, and was rightly accountable to the illiterate branch, and I support the judgment and confirm the declaration and order made.