VANDER PUYE AND OTHERS v. BOTCHWAY.
January 1, 1956
WEST AFRICAN COURT OF APPEAL
CORAM
- Lord Oaksey
- Lord Tucker
- Lord Cohen
- Lord Keith of Avonholm
- Mr L. M D. de Silva
Areas of Law
- Probate and Succession
- Civil Procedure
January 1, 1956
WEST AFRICAN COURT OF APPEAL
CORAM
AI Generated Summary
The Privy Council (judgment delivered by Lord Cohen) addressed an appeal by seventeen six-cloth children of Jacob Vanderpuye against determinations following litigation concerning the distribution of Vanderpuyes estate. They had sued first cousin Joel Douglas Kwaku Botchway, the head of the family, for a declaration of their Gbena (share) and for accounts of rents accrued since 1935. After the Native Court declared the childrens interest in the whole estate but granted Botchway and his sister limited occupation rights and a share of accrued rents, the Land Court allowed Botchways appeal and adjusted the declaration, and the West African Court of Appeal later dismissed the childrens appeal while altering the Land Courts declaration. The Privy Council took up only the jurisdiction issue, holding that the case was a succession matter, not a land cause, under the 1945 Ordinance when read with its schedules and earlier law. It concluded that the Land Court lacked appellate jurisdiction, set aside the orders of the Land Court and the Court of Appeal, restored the Native Courts order, and awarded costs against the respondent.
The judgment of their Lordships was delivered by LORD COHEN: The appellants are seventeen of the children by "six-cloth" marriages of Jacob Vanderpuye deceased who died on October 5, 1918. On June 28, 1947, they commenced proceedings in the Ga Native Court" B " in the Eastern Province of the Gold Coast Colony against Joel Douglas Kwaku Botchway who was a first cousin in the matrilineal line of the deceased and had been appointed head of the family of the deceased pursuant to Ga Native customary law. The appellants claimed the following relief:
" (a) A declaration of the share (Gbena) to which they are entitled and the appropriation to them of such of the Estate as represents the share to which they are entitled according to Ga Native Customary Law.
" (b) An account of all rents and profits as have accrued to the estate since June, 1935, and the payment to the appellants of such amount as represents their share of the estate which may be found due."
On November 25, 1947, the Native Court delivered judgment in which it was declared that the interest of the six-cloth children of the deceased was the whole estate but it was ordered that for the reasons stated in the judgment Mr. Botchway and his sister the present respondent should be permitted to occupy one room each in the Garden House, one of the properties forming part of the estate of the deceased, and that one-third of the rents accrued in the hands of the receiver and manager of the estate at the date of the judgment after deducting outgoings should be given to Mr. Botchway and the respondent. The court directed Mr. Botchway to file an account and ordered that the costs should be taxed and paid out of the estate.
Mr. Botchway appealed from this judgment to the Land Court at Accra. On September 29, 1948, despite an objection that the Land Court had no jurisdiction in the matter as it was a succession case, Smith J. allowed the appeal and substituted a declaration that the appellants are entitled to one-third of the property of the deceased and to an accounting from Ml'. Botchway of one-third of the rents and profits from December, 1935, to 1946. He awarded costs to :Mr. Botchway.
From this decision the appellants appealed to the Court of Appeal, including in their grounds of appeal the objection that the Land Court had no jurisdiction to hear Mr. Botchway's appeal as the matter was not a land cause or matter. On or about May 13, 1950, Mr. Botchway died and on January 30, 1951, the respondent as the