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                                         In the Supreme Court of the Gold Coast Colony, Eastern Province,

                                      held at Victoriaborg, Accra, on Saturday the 5th day of February, 1927

                                       before His Honour Sir Philip Crampton Smyly, Knight Chief Justice.

 

                                                                      

                                                                                       Suit No. 105/1926.

 

 

                                                           ALI BUZU as Successor to MASSU LATCHI.

                                                                                                   Vs:

                                                                SULI SHARDOW and YISA SHARDOW

                                                                              --------------------------------------

 

                                                                                           Judgment:

 

                  In this suit the plaintiff has amended his Writ of Summons and now bases his claim as the successor to a woman, now deceased of the name of Waye, instead of as the successor to a man of the name of Massu Latchi.

 

            By the amended Writ of Summons the plaintiff’s claim against the defendants is for a declaration of title to all that piece or parcel of land with the buildings thereon situate lying and being at Usshertown Accra and bounded as in the Writ set out.

 

           From the evidence it would appear that the plaintiff claims to be the successor of the deceased woman Waye, partly as her adopted son and partly on an alleged gift inter vivos to him made by her shortly before her death in the presence of witnesses.  The defendants allege the house is theirs as successors to their father the late Chief Shardow, who they say was the owner of the premises in question.

 

          Both sides agree that the land and premises in question belonged to a man of the name Massu Latchi, formerly the husband of the woman Waye, the plaintiff alleging that according to Mohammedan law and custom the said land and premises went to the widow, and from her to the plaintiff if not by adoption, then by the alleged gift inter vivos, and contends that there was no blood relationship between the woman Waye and the late Chief Shardow. The defendants allege that according to Mohammedan law and custom, the brother inherits to the exclusion of an adopted child and that therefore the late Chief Shardow was entitled to the whole of Waye’s estate whatever it consisted of.  In the alternative that Waye as widow was only entitled to a share in the estate of her husband the late Massu Latchi and that the remaining shares had been given to their father the late Chief Shardow, by the brother of the said Massu Latchi by name Kojo Nago, except for Massu Latchi’s war medal, in consideration for his, the late Chief Shardow defraying the funeral expenses and custom of the said Massu Latchi.

 

          The greater part of Counsel for the plaintiff’s reply was taken up with an attempt to demolish the case for the defendants as if they the defendants had come before the Court asking for a declaration of title as against the defendant, whereas the only question before the Court is whether or not the plaintiff has made out such a case as would entitle him to a declaration of title as against the defendants.  In order to be so entitled he the plaintiff has several difficulties in his way.  The first is the

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delay in bringing this suit, the Writ of Summons bearing date the 5th of June 1926 while it is admitted that Waye died some fourteen years ago, the plaintiff himself having stated in evidence that before his death Chief Shardow used to collect the rents on the premises in question.  It also appears from exhibit “ A” that he paid rates on them as far back as 1912, plaintiff has also admitted that since Chief Shardow’s death the defendant Yisa has paid the rates, collected the rents and put the tenants in the house. The second difficulty is whether as a fact any such gift inter vivos was made by the deceased woman Waye to the plaintiff as he and certain of his witnesses allege.  Counsel for the plaintiff has pointed out that the defendants have called no independent witnesses except as to the Mohammedan law and custom, and has asked the Court to consider that the plaintiff unlike the defendants has called independent witnesses to corroborate plaintiff’s statements, and that it has not been proved that any of these witnesses has an interest in the property, or that they benefited by the judgment one way or the other.

          Having listened carefully to the evidence given by the plaintiff and his witnesses, I was forcibly reminded by this submission of a verse in The History of Susanna verse 41, the latter part of verse 41 reads “these things do we testify. That is the two elders. Then the assembly believed them, as those who were elders of the people and judges”, we all know how the truth was elicited by the then young man Daniel, by having the two elders separated and putting the question to each of them separately. “Now then, if thou sawest her, tell me, under what tree sawest thou them companying together who answered under a mastick tree and having put him aside he then asked the other “Now therefore tell me, under what tree dids’t thou take them companying together? who answered, under a helm tree”.

             Now to come to the present case, first as to the time of day the meeting took place at which the gift of the premises in question was made by Waye to the plaintiff in the presence of witnesses Awuta Samia says, it was in the afternoon after the afternoon prayers were called, while plaintiff’s witness Mallam Abu when asked what time of day did you meet Alhaji Tapa and the others at Waye’s house answered, the sun was midday, secondly as regards the title deed to the property. Plaintiff in his evidence stated that Waye then took the paper on her house and gave it to Bawah and told him to pay Chief Shardow £5 and keep the paper until Ali Buzu grew up to be a man to work and redeem it. Plaintiff’s next witness Alhaji Tapa gave evidence that at the meeting Bawah Okai told Waye that the paper on her house was with him and further on when asked, “at the meeting when Waye was dying, Did Bawah say the paper on the house was with him or did Waye give him the paper?” answer “The paper was with Bawah before the meeting was called” and in answer to the question, did Waye give up that paper to anyone at the meeting, he answered “She did not take the paper and give it to anyone at the meeting. I did not see.”  The next witness Awuta Samia gave evidence in her examination in Chief that before Waye died she said this was her son and she gave the paper to Bawah.  In cross-examination she was asked “when it (the paper) was produced by the bedside of Waye who took it away’’ she said “ she was strong to hold the paper, she could stand up, she got up and put it in the hands of Bawah. Bawah took it away and Waye said Bawah must keep it for this young boy.  The next witness Malam Abu in cross-examination said she herself brought the paper and gave it to Bawah.  He was then asked “Are you sure Bawah did not produce the paper from his possession? and answered I said she

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brought the paper and gave it to Bawah. He was then asked. Q. I ask you was it not Bawah who produced the paper from his possession, and answered A. No, it is not so. In answer to the Court he said she had it with her and brought it out from where she was sitting. Did she get up to get it? A. Bawah was sitting down she was sitting down and she gave it to Bawah.  Q. Was she able to walk?  A. She was able to walk.

It is hardly necessary for me to go through the various descriptions of the lady’s condition at the time of the meeting whether she was seriously ill without hope of recovery, strong to hold paper, able to walk, able to get out of bed or sitting in a chair.  The meeting at the mosque seven days after the death, or the meeting one year and four months ago as described by his witness Bubali.  I do not propose to go into the discrepancy between the evidence of the plaintiff in the present suit and his evidence before Mr. Curling in 1905 as to how he came here, or his various witnesses at to whether he the plaintiff was brought from Nigeria by Waye or by Malam Awuta Wangara or by both of them.

          I now come to the third difficulty which the plaintiff has to meet namely what would be the effect of the gift by Waye to the plaintiff assuming it to have been made at all.  Assuming that it is an accurate description of Mohammedan law and custom, that where a person dying intestate has during his or her life-time made a gift of his or her estate or portion of it to someone, that such a gift cannot be contested after death, this statement of law appears to me to pre-suppose that the donor was the owner of the estate, a man cannot make a gift to another of property to which he or she has no right or title.

           In the present case it being admitted both by the plaintiff and the defendants that the original estate was in Massu Latchi, Waye as widow would at most be entitled according to Mohammedan law and custom to one fourth share in the estate, and anyone claiming through her to no more.

          This last difficulty appears to me to be fatal to the plaintiff’s claim for a declaration of title to the premises in question.

          Plaintiff non-suited with costs.

 

 

                                                                      

                                                                       (sgd) CRAMPTON SMYLY

                                                                               Chief Justice.

 

 

           Counsel:

                           Mr. Heward Mills for plaintiff

                           Hon. Hutton-Mills & Mr. Whittaker for defendants.

 

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