1946
HIGH COURT
GHANA
CORAM
AI Generated Summary
A land title dispute involving the Hodgson family was appealed from a native tribunal. The Plaintiff-Respondent, treated as successor to J. E. Hodgson and Kofi Korantwi and head of the wider Hodgson family, sought a declaration of title to property formerly associated with W. D. Hodgson. The Defendants-Appellants claimed through Joseph Bossman, asserting that Bossman bought the property in 1916 from H. Y. Bosumpim, then family head, and settled claims of B. K. Hodgson and H. B. Hodgson, children of W. D. Hodgson by a Marriage Ordinance union. They further contended Bossman entered into possession in good faith and remained in possession. M'Carthy, Ag. C.J., held that the Tribunal should not have retained jurisdiction because the case raised statutory questions under section 48 of the Marriage Ordinance and potentially equitable questions better suited to the Land Court. The Tribunal’s judgment for the plaintiff was set aside, and a de novo hearing in the Land Court was ordered, with costs directions and refund of appeal deposits.
Judgment :
The Plaintiff-Respondent was regarded in this action (though this is not clearly shown in the writ of summons) as suing as successor of J. E. Hodgson deceased and successor of Kofi Korantwi deceased who succeeded the said J. E. Hodgson, and also as head of the wider family alleged to own the property in dispute through W. D. Hodgson, the original owner. She seeks a declaration of title.
The Defendants-Appellants claim the property through Joseph Bossman deceased, who they say bought the property from one H. Y. Bosumpim, then head of the plaintiff's family, and who they also say "settled" claims made by B. K. Hodgson and H. B. Hodgson to the property. The two later persons claimed to be interested in the property as children of the original owner W. D. Hodgson by a marriage under the Marriage Ordinance. Thus the Defendants-Appellants claim both through Bosumpim, and through B. K. Hodgson and H. B. Hodgson.
Supposing that this marriage took place under the Ordinance as alleged, then as W. D. Hodgson died in 1915, and consequently after the 15th February, 1909, his children would share the deceased's individual estate with the deceased's "family" in the proportion of two thirds to one third under section 48 of the Marriage Ordinance.
The Tribunal did not regard this issue as one of the issues before it, and made no finding upon it. Indeed if it had it would have exceeded its jurisdiction, as the point arises out of statute and not out of native customary law.
It was further contended on behalf of the Defendants-Appellants that whether or no the alleged sale by Bosumpim to Bossman was good
or bad, because (as is contended by the Plaintiff-Respondent) it was made without the consent of the family, the transaction so far as Bossman was concerned was effected in good faith; that Bosumpim put Bossman into possession in 1916; and that the latter or his privies have remained in possession ever since. It is contended that whatever the native customary law may be as to long possession in such circumstances, English Courts would treat it as inequitable that the family should after this lapse of time be allowed to assert title (Kwesi Manko v. Bonso (1) and Bayaidie v. Mensah (2).)
The Tribunal gave judgment in favour of the plaintiff. In view of the two issues to which I have referred, I consider it a mistake that the Tribunal should have retained jurisdiction in this difficult case.
In all the circumstances the judgment of the Tribunal will be set as