Mary Ekem-daughter Of Peter Henry Johnson Deceased V. Ekua Nerba—widow Of Peter Henry Johnson Deceased (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land at Cape Coast owned by deceased foreigner who married two Fanti women—Applicability of Fanti customary law—Estoppel—Native Courts (Colony)Ordinance, section 15.

Estoppel per rem judicatam operates only as between the parties to the suit and their privies.

The appellate Judge held that the lee sitms soixplied, It does not necessarily follow that this was wrong, in spite of the decision in Ghamson v. Wobill (1), because the relevant facts in the two cases are not the same.

Case referred to:

(1) Ghamson v. Wobill, 12 W.A.C.A. 181

Appeal from the Supreme Court of the Gold Coast.

Bossman for Appellant (plaintiff at first instance).

De Graft Johnson for Respondent (defendant at first i nstance).

The following judgment was delivered:

MiCartky, J. This is an appeal from a decision of the Land Court, Cape Coast, allowing an appeal from a decision of the Oguaa Native Court, in which the plaintiff was declared to be entitled to a one-half share in a piece of land at Cape Coast.

In the first instance the plaintiff-respondent-appellant brought an action in the Provincial Commissioner’s Court, Cape Coast, against her half-brothers and half-sisters, the children of her late father P. H. Johnson deceased and one Ekua Nerba, the present defendant-appellant-respondent, inter alio to establish title to the said piece of land.

The Native Court found inter (ilia that the land in question was the joint property of the said P. H. Johnson deceased and his wife Ekua Nerba, but that the plaintiff took no interest in the land on her father’s death.

On cross-appeals to the West African Court of Appeal, it was held that the finding as to joint ownership should not be disturbed, but it was considered that no reason or explanation had been given by the Court below for finding that the plaintiff had no interest in the property. A judgment of non-suit was accordingly substituted for the finding that the plaintiff had no interest in the land with liberty to the plaintiff to bring a fresh action. Otherwise the judgment of the Court below on the whole claim before it was declared to stand good.

It is necessary to mention that the deceased, Johnson, was a native of Nigeria, and that though he was long resident in Cape Coast, it was not shown that he had lost his domicile of origin. In Cape Coast he married two Fanti women, one being the plaintiff’s mother, and the other Ekua Nerba. Although it is well-established that according to Fanti customary law a person cannot inherit his or her father’s property, it was not shown that Fanti customary law should apply to the ease. On this issue this Court made the following observations:—

” .. . His finding, however, that the plaintiff has no interest in it (the

land in question) is supported by no reason or explanation, and this Court

is unable to ascertain from the evidence or from the judgment on what

princirdes or by what law or custcen the Deputy Provincial Commie was guided in coining to this conclusion. It is not clear whether the English -law of survivorship applies or whether there is some native custom, whether of Nigeria or of the Gold Coast, which must be followed and, if so, what that custom is. Not only is there no evidence upon these points but there is no recorded argument in the Court below.”

The plaintiff thereupon bronght an action in the Oguaa Native Court claiming against Ekua Nerba and her childien a declaration of her interest and title as a daughter of the late P. H. Johnson and Sarah Aggrey in the land in question jointly and severally with the defendants.

Before the Native Court Ekua Nerba’s children stated that they claimed no interest in the property as this was solely vested in their mother. Consequently the action was discontinued as against them, and proceeded only against Ekua Nerba.. The Native Court held that the land was not the joint property of Johnson deceased and Ekua Nerba, but was Johnson’s self-acquired property. Judgment was given in favour of the plaintiff as to a one-half share in the land.

From this decision Ekua Nerba appealed to the Land Court, Cape Coast, which held firstly that the Native Court was wrong in finding the property was the self-acquired property of Johnson deceasqd, as the West African Court of Appeal had already expressly affirmed the finding of the Deputy Provincial Commissioner that the property was jointly held by Johnson and Ekua Nerba.

The Land Court secondly held that though Johnson was a Nigerian, the kx sites applied, and that this being Fanti customary law, the plaintiff was precluded from inheriting any interest in the land. The appeal was accordingly allowed, the judgment of the Native Court being set aside.

The’question arises whether the plaintiff was estopped by the finding that the property was the joint property of Johnson deceased and Ekua Nerba pronounced by the Provincial Commissioner’s Court and affirmed by the West African Court of Appeal. In those proceedings the parties consisted of the plaintiff in the present proceedings on the one hand and Ekua Nerba’s children on the other. In the present proceedings, after Ekua Nerba’s children dropped out of the case in the Native Court, Ekua Nerba was left as the sole defendant. She was not a party in the former case, she- does not claim title through her children, nor can we see any other ground on which she can be regarded as their privy. We are thus somewhat reluctantly forced to the conclusion that the plaintiff cannot in this case be held to be estopped by virtue of a finding in the previous case, and that the latter has no legal bearing on the present case.

It follows that, in our view, the finding of the Native Court that the property was the self-acquired property of Johnson deceased should not have been set aside on the ground of estoppel. It does not appear to us upon perusal of the record of the evidence given in the Native Court that either side made out a strong case on this point, but it may well be that no further evidence was available. It cannot be said that the finding of the trial Court on this issue was unreasonable having regard to the evidence, and in our opinion it should not be disturbed.

So far as the plaintiff’s alleged interest in the property is concerned the position is unfortunately no clearer than when this Court made the observations above quoted on the appeal in the previous case, except that the question of survivorship no longer arises, as the property must be regarded as having been the self-acquired property of Johnson deceased. The learned Judge held that the lax sifts applied, and that therefore the plaintiff could have no interest in her father’s property. His judgment was delivered prior to the date of the judgment of this Court in. Ghamson v. Wobill (1) in which it was held that, where a conflict of native customary laws arises in a case, the question must be decided in accordance with the provisions of section 15 of the Native Courts (Colony) Ordinance, 1944. The learned Judge does not appear to have considered this section. In

the kbove-cited case it was held that the law to’ be applied was not Luc sites.

However, as some of the relevant facts in this case are different from those in Gharnson v. Wobill it does not necessarily follow that the kr sums should not have applied in this case. As it is, although it is common ground that the deceased Johnson was a Nigerian it does not appear from the evidence to what part of Nigeria he belonged, and there is nothing to show what would be the nature of the law applicable, if some foreign law is binding on ^–the parties within the meaning of prpviso (b) to the said section 15.

The appeal will** allowed in this sense, that the judgment of the Land Court will be set aside, and the finding of the Native Court as to the ownership of the land having been in Johnson deceased will be affirmed; the case will be remitted to the Land Court with directions to take such evidence as may be adduced on the question what (if any) interest the plaintiff has acquired by inheritance in her late father’s said property and to determine the issue in the light of the evidence and relevant law.

For this purpose the judgment of the Native Court declaring the plaintiff to be entitled to a one-half share in the property will be set aside.The plaintiff is entitled to the costs of this appeal which are assessed at 39 12s. 6d. The costs of the proceedings in the Land Court to follow the event.

Appeal allowed and case remitted to Land Division of Supreme Court to take evidence.