BENYI & ANOR. v. AMO & ANOR

JUDGMENT OF ADUMUA-BOSSMAN J.

(His lordship set out the respective cases of the parties, and proceeded):—

The question of the jurisdiction of this Court to entertain the appeal arises firstly for consideration. The Writ of Summons, on the face of it, appears to be a clear claim to the estate of a deceased person. But the real issue would appear to be whether the plot of land on which the storey-building was erected—

(a) was his self-acquired plot, so as to make the building, together with the plot on which it was erected, the self-acquired property of the deceased; or

(b) was the family-property of his wife's family, of which land he was only allowed the use to erect a building for himself and his [p.94] wife and children, so that both plot and building were the property of himself together with his wife and children - a kind of family property in fact. In that event, the appellants contend, it could not devolve as his self-acquired property.

Lord Cohen, delivering the judgment of the Privy Council in Vanderpuye & ors. v. Botchway (2 W.A.L.R. 16 at p. 21), said: "In order to determine into which category a particular suit falls, the Court must apply the test of what is the real issue between the parties, and not look only at the wording of the plaint."

The analogy to the instant case is the usual type of suit concerning property held in his life-time by a deceased native, where it is claimed on the one hand that he held the property in a fiduciary capacity as Head of Family, and contended on the other hand that he held it in his personal capacity as his self-acquired property. In those cases the issue has always been held to be an "Ownership" or "Land" issue, not a "Succession" issue, because the real dispute is as to the original ownership of the land whilst the deceased held it, but not how or upon whom it should devolve.

Such were the cases of:—

(a) Larkai v. Amorkor & ors. (1 W.A.C.A. 323) in which the appellant claimed that property which had been in undisturbed possession of one Otua for a period of about 25 years, was property which had devolved as family property upon her, and which she had, held and controlled all the time in a fiduciary capacity as Head of the family. The respondents (her children) claimed that it was her self-acquired property, and that she held it in her personal or individual capacity; and

(b) Solomon v. Allotey & ors., (unreported decision of W.A.C.A,, dated 13th May, 1941, in Civil Appeal No. 1/41). There the appe