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Brobbey V. Yaw Kyere (1936) LJR-WACA

Brobbey V. Yaw Kyere (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Administration Suit—Claim by Plaintiff-Appellant to Administration dismissed following entry of caveat showing, inter alia, matter already dealt with by competent native Court.

Held : The matter is res judicata, and the appeal is dismissed.

The facts are sufficiently set out in the judgment. H. A. Hayfron-Benjamin for Appellant.

J. W. de G. Johnson for Respondent.

The following judgment was delivered :– WEBBER, C. J., SIERRA LEONE.

The plaintiff-appellant brought an action in the native tribunal of Kumasihene against the defendant in which he claimed :—

  1. Judicial relief, i.e. to show cause why the defendant should not hand over to him the property of his deceased uncles named Ado-Kwabu and Ardu Yaw, which defendant had inherited in a manner not consistent with native customary law.
  2. An account of defendant’s dealings with the property.
  3. An injunction to restrain the defendant and his agents from entering into or dealing with any of the properties.

This is the usual procedure under native law and custom when the question of succession to an estate is in issue. It is not unlike an administration suit where the claimant for a grant of Letters of

Administration seeks to take over the property by right of his

relationship to the deceased.

The native tribunal heard the evidence of both parties and decided that the plaintiff had made out no claim and judgment was given in favour of the defendant. The native Court found that the defendant had inherited the properties in question in accordance with a death-bed declaration made by Adu Yaw in the presence of accredited witnesses, including some members of the family, and that the declaration so made was confirmed with ” great oath ” by the deceased before his death. It is the usual native declaration known by native law and custom by which the declarer names the person or persons to whom the inheritance is to be distributed ; the declaration was put into writing and attested in the usual native way prior to the death of the deceased.

The case in the native tribunal began in February 1984, and ended in the early part of 1935. There was no appeal.

See also  Rex V. Jonathan Cole (1942) LJR-WACA

In October 1935 the plaintiff takes proceedings in an administration suit on a caveat entered by defendant to a claim made by plaintiff for the grant of Letters of Administration. The Court below took no oral evidence. The proceedings of the native tribunal were received as evidence, and the Court below decided that the plaintiff was estopped by record and held that the native tribunal was a competent Court in the claim before it and dismissed the action.

The grounds of appeal were three in all, but Counsel for appellant argued grounds 1 and 2 together. They were as follows :-

  1. That the ruling was wrong in law, equity and good conscience.
  2. That the matter was not res judicata.
  3. That the native tribunal had no jurisdiction inasmuch as Yaw Kyere claimed under a Will and therefore the judgment did not create an estoppel.

I am of opinion that the ruling in the Court below was correct. The facts which both parties can set forth in this administration suit must be the same which they testified before the native tribunal and these facts in issue, as the Court below rightly states, were decided by the Kumasi Native Divisional Court, and as to the third ground of appeal it is quite clear to my mind that the caveator-respondent never at any time claimed his right to the inheritance under an English Will. He propounded the usual death-bed declaration well known to the native tribunal and in accordance with the native law and native requirements and his defence in the native tribunal was one which that tribunal was competent to hear and to give effect to.

See also  Madjoub Rafat V. Robert Etrue (1954) LJR-WACA

I am of opinion that the judgment of the Court below in favour of the caveator-respondent is correct and that this appeal should be dismissed.

KINGDON, C.J., NIGERIA.

I concur.

PETRIDES, C.J., GOLD COAST.

I concur.

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