This is a case stated by Hall, Acting Chief Justice, under the provisions of Section 6 of the West African Court of Appeal Ordinance, 1929: for the opinion of this Court. The Court is asked for it opinion on the following questions of law:- (a) Whether in view of the provisions of the Native Administration Ordinance, the jurisdiction of the Supreme Court to grant Letters of Administration is hereby entirely ousted and the Divisional Court is therefore bound to refer the parties to a Tribunal.
(b) Whether inasmuch as the suit before the Court is as to succession according to Native Law, the parties are not bound to go to a Tribunal in the first instance, it being for the successful party in the Tribunal to apply for Letters of Administration by virtue of the judgment of the Tribunal.
© Whether inasmuch as the question of Letters of Administration arose in the suit, the Supreme Court has jurisdiction under these circumstances to hear the case despite the issues involved being as set forth above.
The facts are clearly set out in the stated case. Mr. Quist on behalf of the plaintiff submitted that the Native Tribunal had no power to grant Letters of Administration, and that the provisions of section 43 sub-section 2 (f) of the Native Administration Ordinance did not oust the jurisdiction of the Supreme Court to grant Letters of Administration. He contended that the question as to the claims of the parties being based on the Native Law of succession was merely an issue, and did not therefore make it a suit exclusively cognisable by a Native Tribunal. He submitted therefore, that the Court either had to try the whole case or to refer the particular issue as to succession to a competent Tribunal for determination and report to the Court under the provisions of section 59 of the Native Administration Ordinance. He referred the Court to section 124 of the Native Administration Ordinance, and submitted that where there was a conflict between the Native Administration Ordinance and any other Ordinance, the other Ordinance prevailed.
Mr. Koranteng, on behalf of the defendant, contended that section 43 of the Native Administration Ordinance did not oust the jurisdiction of the Supreme Court to hear and determine actions relating to succession in accordance with Native law, but gave the Native Tribunal a concurrent jurisdiction with the Supreme Court in regard to such actions. In support of this contention he referred the Court to sections 26 and 35 of the Native Administration Ordinance, where certain matters are especially taken out of the jurisdiction of the Supreme Court by these sections. He submitted, therefore, that if it had been intended by the Legislature that questions as to Native succession should be excluded from the jurisdiction of the Supreme Court, it would have been expressly so provided in the Ordinance.
The Attorney-General, who appeared at the invitation of the Court as “amicus curiae,” while agreeing with Mr. Quist that the Native Tribunal had no jurisdiction to grant Letters of Administration, disagreed with the interpretation he sought to place on section 124 of the Supreme Court Ordinance. As to the effect of the provisions of section 43 of the Native Administration Ordinance upon the jurisdiction of the Supreme Court, he submitted that questions as to succession must be heard in the Native Tribunals and that the power of the Supreme Court to try a question of succession had been taken away by the later Ordinance. He submitted, therefore, that in his opinion the parties should go before the Native Tribunal and get the question as to succession settled before coming to the Supreme Court to apply for Letters of Administration.
I shall now consider the law on the subject.
By sections 11 and 16 of the Supreme Court Ordinance the Court is given jurisdiction in matters of Probate and Administration, similar to the jurisdiction vested in His Majesty's High Court of Justice in England. Order L of the Rules made under this Ordinance prescribes the procedure by which applications in such matters should be made, and makes it quite clear that the Supreme Court has jurisdiction to grant Letters of Administration in respect of the estate of a deceased native. (See Order L rule 1).
Section 43, sub-section 2 (f) of the Native Administration Ordinance provides inter aha that a Paramount Chief's Tribunal has jurisdiction with regard to 1he following:-
“Suits and matters relating to the succession to the property of any deceased native who had at the time of his death a fixed place of abode within the State.”
There is a proviso, however, to that section, which reads as follows:-
“Provided always that a Paramount Chief's Tribunal shall not, unless the parties shall agree thereto, have any jurisdiction in any cause or matter where it appears either from express contract or from the nature of the transactions out of which such cause or matter shall have arisen that the parties expressly or by implication agreed that their obligations in connection with such transactions should be regulated substantially according to the provisions of some law or laws other than native customary law, or where otherwise some other such law or laws as aforesaid is or are properly applicable thereto.”
Section 58 provides inter alia as follows :-
“Whenever it shall appear to the Court that any civil cause or matter brought. Before it is one properly cognisable by a Tribunal under section 43 . . . . The Court shall stop the further progress of such civil cause or matter before it and refer the parties to a competent Tribunal.” Section 59 provides as follows :-
“If and whenever in any civil cause or matter before the Court a question arises as to the rights of any native under native customary law, the Court may, if it shall deem it expedient or convenient so to do and notwithstanding that any party to such civil cause or matter may be a non-native, refer such question to a competent Tribunal for determination. Upon such reference being made, the question shall, subject as provided in section 71 and in section 92, as soon as possible be inquired of, tried and determined accordingly by such Tribunal; and the Tribunal shall thereupon forthwith report its decision on such question to the Court which referred the same.”
No power is given to a Tribunal by the Native Administration Ordinance to grant Letters of Administration.
It follows, therefore, that while the Supreme Court still exercises an exclusive jurisdiction in matters relating to the grant of letters of Administration, its jurisdiction to hear and determine.
suits and matters relating to the succession to the property of any deceased native is ousted by reason of the provisions of section 43 of the Native Administration Ordinance. The essential point to be considered therefore is :-At what stage in an application for Letters of Administration does the question of ouster of jurisdiction arise and in what circumstances?
Order L of the Rules of the Supreme Court provides for the making of applications for a grant of Letters of Administration, the filing of caveats, and of motions relative to such applications, and Rule 17 (d) of that Order, provides as follows :-
“Upon the motion coming on for hearing before the Court, if the parties can come to an agreement among themselves as to the person, or persons to whom a grant of probate or letters of administration as the case may be, should be made, the Court may order that the caveat be removed from the file and a grant may then be made.
“Failing the parties coming to such an agreement, however, the Court may order that the applicant do issue a writ of summon against the caveator within a specified period from the date of such order, to determine the issue as to who is entitled to a grant of probate or letters of administration, as the case may be.”
In the case of Pappoe v. Kweku, F.C. 1923-25 158, the Full Court, following the principles laid down in the case of Villars v. Baffoe., Renner's Reports 549, held that a grant of Letter of Administration by the Court in accordance with English law only prescribes the method of realising the personal estate of the deceased, but such personal estate in that particular case being admitted to be family property was to be distributed by the administrator in accordance with Native Customary Law.
In the case of Villars v. Baffoe, it was held by the Full Court that “A man cannot by simply taking out Letter of Administration oust the native law so far as the family is concerned. The Administrator election to be bound by English Jaw but his election to be so bound does not bind the family or the family property. The family under the Native Customary Law may rightly claim the possession and the control of the family property.”
In my opinion, therefore, it is not until the writ of summons is actually issued under the provision of Order L rule 17 (d), and the parties are before the Court on the return day, that the question as to ouster of Jurisdiction can arise. If It IS then found that the suit is contested and that the claims of one or both of the parties are based upon succession in accordance with Native Customary Law, then the question parities as to whether or not the Supreme Court has jurisdiction to hear and determine the suit.
It will be observed that the suit then before the Court is not a suit to determine the question as to the succession to the property of the deceased, but is a suit to determine the issue as to who is entitled to a grant of Letters of Administration. A While I am not prepared to hold, therefore, in view of the proviso to section 43 of the Native Administration Ordinance, to which I have referred, that such a suit is one properly cognisable by a Native Tribunal under that section, and that the jurisdiction of the Supreme Court is hereby ousted, I consider it highly advisable in view of the provisions of sub-section 2 (f) of that section, that the issue as to succession should not be heard and .determined by the Supreme Court, but by the Native Tribunal. The most expedient course appears, therefore, to me, to be for the Court at that stage to act under section 59 of the Native Administration Ordinance by referring the particular issue as to succession to the Native Tribunal for their determination and subsequent report to the Court. Upon receiving such a report, the Court would then be in a position to determine the question as to who was the proper person to Who Letters of Administration should be granted. This, I may say, is the practice which I personally have adopted since the coming into operation of the Native Administration Ordinance.
Although I realise that difficulties may sometimes arise in consequence of the construction which I feel obliged to place upon section 43, in view of the fact that on some occasions it possible that the Court may not agree with the conclusions at which the Native Tribunal may have arrived, or may consider it advisable that some person other than the successor according to native custom should be granted Letters of Administration in a particular case, yet I consider that it is not for the Courts to make the law, but only to interpret the law as made. At the same time, I may say that I do not agree with the interpretation placed by Mr. Quist upon section 124 of the Native Administration Ordinance.
The questions submitted for the consideration of this Court may, therefore, be answered as follows :- (a) No. (b) No. © Yes.
Each side will pay its own costs. The Court below to carry out.
HALL, ACTING C.J. THE GOLD COAST COLONY.
I have had an opportunity of reading the ruling of my brother Michelin herein, and whilst I agree at the final conclusions at which he has arrived on the question5 before the Court I wish to add a few remarks of my own.
I take this opportunity of saying that, when I stated this case for the opinion of this Court, I did so with a perfectly open mind on the questions to be discussed and that I only took this course to ensure uniformity of practice in the Courts on the points raised in the questions asked. As regards question 1, it is perfectly clear after hearing argument that the jurisdiction of the Supreme Court to grant Letters of Administration is not ousted by the provisions of the Native Administration Ordinance, and this question therefore requires no further consideration by me.
As regards question 2, a good test appears to me to be as follows:-
Suppose e.g. a mother and a nephew of a deceased native are con testing as to the right of succession to the estate of the deceased in a Native Tribunal, the Tribunal will of course decide strictly according to the native law of succession.
Again suppose the same persons are contesting for a grant of Letters of Administration in the Supreme Court. They would base their claims to the grant on the same grounds as they would do in a Native Tribunal, and the Court would find out who is the successor according to native law, but the Court would not be bound thereby, and could in certain circumstances exercise its discretion and grant Letters of Administration to the person who was not in fact successor to the deceased according to native law. It must be remembered that one object which the Court keeps in view is the expeditious and economical administration of estates of deceased persons.
1n this connection rule 17 (d) of Order L seems to me to be of great importance. The relevant part reads :-
“The Court may order that the applicant do issue a Writ of Summons against the caveator. . . .to determine the issue as to who is entitled to a grant of probate of Letters of Administration as the case may be.”
It is not the question of succession, but the question of who shall receive a grant of Letters of Administration that has to be ultimately decided on the claim in the Writ of Summons and, as we have seen above, the successor is not of necessity to be the administrator.
If the parties were compelled to contest the question of succession in the Native Tribunal before the successful party comes to the Supreme Court for a grant of Letters of Administration it might well be, inasmuch as the grant would be on an ex parte application, that the successful party in the Native Tribunal might get Letters of Administration though he would not have done so if the whole matter had been thrashed out in the Supreme Court.
Let us look also at the proviso to section 43 of the Native Administration Ordinance-The relevant part reads:-
“Provided always that a Paramount Chief's Tribunal shall not. . . .have any jurisdiction in any cause or matter. . . .where otherwise some other such law or laws as aforesaid” (i.e. other than native customary law) . . Is or are properly applicable thereto.”
Under section 16 of the Supreme Court Ordinance the jurisdiction conferred upon the Court with regard to these matters may be exercised by the Supreme Court in conformity with the law and practice for the time being in force in England. The proviso set out above would appear therefore to settle the questions in issue standing alone apart from any other considerations. It seems to me, therefore, that the answer to question 2 must be in the negative and it follows from that answer (a) that a Divisional Court is not compelled under section 58 to refer the parties to a Native Tribunal in such a case as the one under review, and (b) that question 3 must be answered in the affirmative. I do not think that, strictly speaking, any reference to section 59 of the Native Administration Ordinance is relevant to the present case, but as it has been alluded to, I would like to say that under the conditions at present obtaining I am unable to advise myself that-to use the words of the section-it is “expedient or convenient” to refer a question to a Tribunal. The section allows the utmost freedom of action. There are other ways of discovering what the native law on any given point is, and I prefer those methods. Further, as regards the actual question in issue in this case, i.e. the right of succession, it must not be forgotten that a reference of the point might possibly defeat the exercise of a discretion by the Court, the evidence being taken by the Tribunal and not by the Court. Another and quite a different consideration as regards the use of section 59, which should not I think be lost sight of, is the inevitable delay which must necessarily ensue on a reference, and which it is obviously very desirable to avoid when the winding up of an estate is awaiting the adjudication of the Court as to the person entitled to administer.
I wish on behalf of this Court to thank the Attorney-General for appearing before us and giving us the benefit of his views. I am sure both Bench and Bar would be very grateful to him if he could see fit to advise the Executive to indicate their wishes on the question in issue one way or the other by an amendment of the Native Administration Ordinance, so that the practice may be made abundantly clear of any doubt in the future.
The ruling: of the learned President and of my learned brother Michelin, which we have just heard and which have gone so fully into the matter before us that I need not repeat much of what each has said, show that there is agreement between them, in which I share, on all but one of the questions in the case as stated, that question (on which they are not in entire agreement, as it seems to me) being (in effect) as to what is the duty of a Divisiona1 Court in an administration suit before it where an issue arises as to which of two or more natives of this Colony has the right to succeed to the estate of a deceased person.
I hope to be able to answer that question in a very few words.
The learned President takes the view that the Court has a discretion as full as could be given it by the Legislature to decide that question for itself in any case where it is considered expedient to do so; whereas my brother Michelin considers it expedient for the Court to first refer it before the Court decides which of the parties is the proper person in all the circumstances to have the grant of Letters of Administration. Now section 43 of the Ordinance makes it clear that the Legislature considered it expedient that questions of succession (inter alia) according to Native Customary Law should be within the jurisdiction of the Native Tribunal (i.e. that they are the proper Tribunals to try such an issue), and whether or not this Court thinks that was a wise view of the Legislature is neither here nor there.
And because of the provisions of that section 43 my view is that in exercising its discretion as to the expediency above referred to, the Court should give the fullest weight to what, as I have indicated, the Legislature has decided is expedient and send the issue as to right to succeed according to Native Customary Law to a Native Tribunal for determination. The person who according to that Tribunal decision is the right person to succeed will, ceteris paribus, then be the person entitled prima facie to a grant of Letters of Administration, although the Court may still hold that for other reasons he should not be allowed to administer the estate.
My view, therefore, is that it is, to say the least, expedient for the Court upon a true construction of section 43 when read with section 59, as I think I must read it, in deciding tills point, to first refer the question of succession before finally deciding which of the applicants before it for a grant of Letters of Administration is, in all the circumstances of each particular case, the proper person to administer.
I will only add that such has been my practice in the past.