Division: IN THE COURT OF APPEAL
Date: 23RD NOVEMBER, 1959
Before: VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND
OLLENNU J.
ARGUMENTS OF HAYFRON-BENJAMIN
Hayfron-Benjamin for defendant Shang (appellant).The proceedings in the Court below appear to have been carried on with such irregularity as to make the entire trial unsatisfactory. The appellant was not a party to the suit, and she was joined wrongly, and without jurisdiction. Rules 20 and 21 of Order 60 were not complied with, and there was therefore no proper adjudication of her caveat. When the only defendants before the Court below had withdrawn, the proper order would have been that the plaintiff was entitled to letters of administration subject to the caveat filed by the appellant. Rules are to be strictly observed.
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The Court below had no jurisdiction over the appellant in the suit before it, and the judgment delivered against her in that suit was a nullity. Sarh v. Buadu (1922 F.C. 24).
ARGUMENTS OF SWANZY
Swanzy for plaintiff Coleman (respondent). Non-compliance with Rules of Court will not take away jurisdiction, but may render a particular order of the Court voidable (0.70, rr.1 and 2). Under the Rules a writ may be amended by leave of the Court, and “amendment” includes both a change of party and change in the claim (0.28, and 0.16, rr 11 and 28). Though no writ had been served on the defendant after the order joining her was made, she nevertheless filed a statement of defence. The Court below exercised its equitable jurisdiction in order to bring the parties really concerned before the Court. If the appellant was aggrieved by irregularity, she could have proceeded under 0.70, rr.1 and 2. Sarh v. Buadu was decided before the coming into operation of the present Rules of Court.
ARGUMENTS OF HAYFRON-BENJAMIN
Hayfron-Benjamin replies. 0.16, r.11 refers to “causes and matters,” not to administration suits. 0.16, r.28 does not apply because no writ was served. The proceedings stopped short of compliance with the Rules of Court. Since there was no writ directed to the appellant, nothing could go on against her. By the Court We will hear Counsel on the remaining grounds of appeal, and will give our decision on them and on this ground together.
Hayfron-Benjamin (continuing). The learned Commissioner erred in law in dealing with the case solely on the basis that the appellant was the widow by customary law, whereas she claimed also as nominee of the family – a claim which was not considered. Further, as the widow of a lawful marriage under native law and custom, she (with the children of such union) had a major interest in that two-thirds of the Estate which was to be distributed according to the provisions of the law in force in England on the 19th of November, 1884. And as nominee of the deceased’s family she represented the remaining one-third share which the Ordinance entitled the family to share in accordance with the rules of customary law. The ratio decidendi was that because respondent was the child of a marriage under the Marriage Ordinance, therefore he must be preferred to other any applicant. The widow, nevertheless, was a lawful widow, whether the marriage was under customary law or under the
Ordinance. The Commissioner was misled by the case in re Somefun (7 W.A.C.A. 156), which it is submitted was over-ruled by in re Adadevoh etc. (13 W.A.C.A. 304), and the Bamgbose v. Daniel (14 W.A.C.A. 116).
ARGUMENTS OF SWANZY
It is conceded that the proper person to obtain Letters is the person who is entitled to a greater share, or who represents those of larger interest. It is submitted that the proper interpretation of sec. 48 (1) of the Marriage Ordinance (any native law to the contrary notwithstanding) is that either the surviving wife/husband, or the surviving issue, of a marriage under the Ordinance takes two-thirds of the property, where under English law the heir-at-law would have taken the whole estate. In the instant case the respondent is the only surviving issue of a marriage contracted under the Marriage Ordinance. It follows, as against the appellant and her children, that the appellant is not entitled to the greater portion of the estate, for the children were all born during the subsistence of deceased’s marriage under the Ordinance to a third party, and are therefore illegitimate, and not entitled. The respondent is entitled to two-thirds of the estate in accordance with sec. 48 of the Marriage Ordinance. That section refers to the law of distribution in force in England on the 19th of November, 1884, viz., the Statute of Distribution of 1670, which was not repealed till the Administration of Estates Act, 1925.
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Section three of the Statute of Distribution provides, after the necessary statutory deduction, for distribution between wife, children and children’s children. Section five provides for the distribution of surplusage, as to one-third to the wife and as to two-thirds to the children in equal portions. It is submitted that under the Statute of Distribution a surviving widow took one-third of the estate, so that under Ghana law, she would take one-third of two-thirds, i.e. two-ninths of the whole estate. The surviving child of the marriage (the respondent) takes two-thirds, i.e. four-ninths of the estate. “The family” – the appellant’s children take one-third of the entire estate. The appellant herself takes that one-third as representing “the family, but she does not take the widow’s two-ninths, because she is not a widow under the Marriage Ordinance. By sec. 7 of the Statute of 1670, in the absence of a widow her two-ninths goes to the children (in this case the respondent, who therefore takes a total of six-ninths of the whole estate). There is no cogent evidence that he is not a fit and proper person to administer the estate.
RULING OF THE COURT
According to the record there were other children of the deceased, viz. those by Adeline Johnson, whom deceased married by customary law. They are for all purposes legitimate.
ARGUMENTS OF SWANZY
Swanzy (continuing). We do not know whether or not they are alive. In any case they would have to take from the one-third allotted to “the family”.
ARGUMENTS OF HAYFRON-BENJAMIN
Hayfron-Benjamin replies. The principles stated at pp. 43 and 44 of Sarbah bear on the legitimacy of appellant’s ten children. The appellant comes in a representative capacity as regards the family’s one-third, but she also prays the Court to declare her personal interest also as widow.
JUDGMENT OF VAN LARE J.A. AS C.J.
Van Lare J. A. delivered the judgment of the Court: This is a judgment of the Court in the preparation of which we all participated. The proceedings in this case commenced with an application filed by the plaintiff in the Divisional Court under Order 60 rule 1 of the Supreme Court (Civil Procedure) Rules for grant of letters of administration in respect of the estate of his father, the late Stephen Coleman of Christiansborg, who died intestate on the 1st of April, 1958. Against the plaintiff s application two persons, one a paternal half-sister and the other a paternal half-brother, entered a joint caveat. After the procedure laid down in Rules 18 and 20 had been complied with, the plaintiff issued a writ of summons against the two caveators, in pursuance of an order of the Court made in that behalf as provided by Rule 21 (2). After pleadings had closed, the plaintiff on the 6th of January 1958 filed under Order 30 rule 1 a summons for directions, and had it fixed for hearing on the 19th January, 1959.
On the 10th of January, 1959 Emma Kwaley Shang also entered a caveat to the application which the plaintiff had made for grant of letters of administration. On the 19th of January, 1959 the plaintiff
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caused warning to issue to her calling upon her to file her affidavit of interest. On the same date (19th January) the summons for directions came before the Court, and was adjourned to the 26th of January, 1959. On the 22nd of January Emma Shang duly obeyed the warning, and filed her affidavit of interest, a copy of which was served on the plaintiff on the 24th of January. Her obedience to the warning constituted another dispute relating to the administration of the estate of the deceased intestate.
When the summons for directions in the suit (which had been issued in consequence of the first caveat) came before the Court on the 26th of January, leave was granted to the then defendants to withdraw their caveat and also the defence which they had filed to the plaintiff s statement of claim. They were therefore struck out from the suit. The Court there and then made an order amending the writ of summons by joining Emma Kwaley Shang as a defendant to the suit; but it made no further order as to service of the writ or notice on the plaintiff.
Before us it is contended on behalf of the defendant Shang that joinder at that stage of the proceedings was ultra vires the Court, because firstly , the original defendants having withdrawn their defence and having been struck out from the suit, the action abated, and no further order could be made in it; and secondly, as regards the caveat entered by Emma Shang, the stage had not been reached at which the Court could direct the plaintiff to issue a writ of summons against her.
It was further argued on behalf of Emma Shang that the order of the Court joining her as defendant was made in a purported exercise of the powers given to the Court under Order 16 rule 11, and that the subsequent proceedings are null and void, because there was no proof of service of copy of the amended writ or notice upon the defendant as required by the rule.
Order 16 rule 11 reads as follows:-
“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court or a Judge to be just, order that the names of any parities improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants who ought to have been joined, or whose presence before the
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court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice.”
This rule must be read together with Order 16 rule 13, which is as follows:-
“Where a defendant is added or substituted, the writ of summons shall be amended accordingly and the plaintiff shall, unless otherwise ordered by the Court or a Judge, file a copy of the writ as amended, and serve the new defendant with such amended writ or notice in lieu of service thereof in the same manner as original defendants are served, and the proceedings shall be continued as if the new defendant had originally been made a defendant.”
For the plaintiff it has been argued that non-compliance with the requirement of Order 16 rule 11 for service of copy of the writ of summons or notice upon the defendant cannot invalidate the proceedings, in view of the provisions of Order 70 rule 1 which is as follows:-
“Non-compliance with any of these Rules or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.”
Service of process is an administrative matter, and proof of it would appear on the Court’s copy of the document served, or in an affidavit of service. Such proof would not normally appear in an appeal record of proceedings, unless the document served is reproduced as part of the record, or unless service was made an issue before the trial-Court. Therefore, if the person required to be served with any process appeared before the Court in answer to that process or filed documents in answer thereto, the presumption is that service of the process had been duly effected upon him.
In the case of H. A. Hughes Ltd. v. A. Cook & Co. ((1918) W. N. 145) where Order 16 rules 11 and 13 of the English Supreme Court Rules (which are identical with our Order 16 rules 11 and 13) were
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considered, it was held that where the party whom it is sought to join is before the Court, the Court may make the order joining him without service of the writ upon him. Such is exactly the position in this case. The defendant was before the Court when the order joining her was made. She had sufficient notice, and service of the writ upon her became unnecessary.
Caveat in opposition to application for letters of administration, together with an affidavit of interest filed in consequence of warning served upon the caveator, amounts to a counter-claim that, as between the applicant for letters and the caveator, the latter has a better right to the grant of letters. The purpose of Order 16 rule 11 is to secure the determination of all disputes relating to the same subject matter without delay, and without expenses of separate actions. Thus in Montgomery v. Foy Morgan & Co. ([1895] 2 Q. B. 321) Lord Esher M. R., delivering the judgment of the Court, quoted Order 16 rule 11, and said:
“I can find no case which decides that we cannot construe the rule as enabling the Court under such circumstances to effectuate what was one of the great objects of the Judicature Acts, namely, that, where there is one subject-matter out of which several disputes arise, all parties may be brought before the Court, and all those disputes may be determined at the same time without the delay and expenses of several actions and trials. It appears to me that the words of the rule are large enough to allow of the joinder of the British Saw Mills Company as defendants in this case. I think the question arising between them and the plaintiff is a ‘question involved in the same cause or matter’ within the meaning of the rule.”
So, too, in Bentley Motors (1931) Ltd. v. Lagonda Ltd. ((1945) 14 L.J.R. Ch. 208) it was held that one of the main objects of Order 16 rule 11 is to enable the Court “effectually and completely to adjudicate upon and settle all questions involved”, so as to render unnecessary multiplicity of proceedings.
Again, the jurisdiction of the Court to join a party under Order 16 rule 11 may be exercised by the Court at any stage of the proceedings, so long as anything remains to be done in an action (Ives v. Brown [1919] 2 Ch. 314). It can be exercised even after an admission of liability by one of two possible defendants, and even after judgment, though all that remains is assessment of damage (The Duke of Buccleuch) [1892] P. 201).
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In the present case, although the original defendants had withdrawn their caveat and defence, the plaintiff had not withdrawn his claim to a grant of letters, and a dispute was still pending in the Divisional Court for determination, the issue being as to who was entitled to a grant of letters of administration in respect of the deceased’s estate.
We are therefore of the opinion that, in the circumstances, the Court properly exercised the jurisdiction given it by Order 16 rule 11, and that the joinder of the defendant was proper. We are further of the opinion that (there being nothing to show that the provision in Order 16 rules 11 and 13 for service of the writ or notice were not complied with, and the defendant having taken part in the proceedings after the order joining her as defendant) it must be presumed that the provisions of the said rules were complied with. In any event, Order 70 rule 1 prevents the non-compliance from making the proceedings a nullity.
We now proceed to deal with the merits of the case. The basis of the plaintiff s claim for letters to administer the estate is that he is the only surviving lawful child of the intestate, being the issue of a marriage under the Marriage Ordinance between his deceased father and Wilhelmina Eckener celebrated in 1907. The defendant, in her statement of defence, admitted that the plaintiff is a child of the intestate by his marriage under the Ordinance. She pleaded, however, that he is not the only lawful child of the intestate, and that the intestate had other lawful children begotten in marriage contracted under customary law; she also pleaded that she is a lawful widow of the deceased, having been properly married in accordance with customary law, which customary marriage was lawfully effected after the death of the respondent’s mother. She further pleaded that in opposing the plaintiff s claim she was doing so on behalf of herself and the family of the deceased.
The facts are not in dispute. They are briefly as follows: The deceased Stephen Coleman, an Osu man, first (as the evidence stands uncontradicted) married a woman called Adeline Johnson, and had three children by her, all of whom survived him. Later he married the plaintiff s mother (Wilhelmina) under the Marriage Ordinance, and had five children by her of whom the plaintiff is the sole survivor. Wilhelmina died sometime in 1940. During the life-time of Wilhelmina, the deceased lived and cohabited with the defendant, and had ten children by her. After the death of Wilhelmina the deceased married the defendant in accordance with
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customary law, and had the said marriage blessed in the Presbyterian Church. No significance is attached to this blessing for the purposes of this judgment.
The only issue for determination by the Court was; Who is entitled to a grant of letters of administration? The learned Commissioner of Assize and Civil Pleas who tried the case gave judgment for the plaintiff, holding that the defendant being a wife married according to customary law, her position could not override the claim of the plaintiff, the surviving issue of a marriage contracted by the intestate under the Marriage Ordinance.
In coming to that conclusion, the learned Commissioner (with whom we have every sympathy) appears to have followed decisions in similar matters which came before the Divisional Courts in this country in the past, by which the phrase “leaving a widow or husband or any issue of such marriage” (section 48 of the Marriage Ordinance) was taken to mean that upon the death intestate of a person who was subject to customary law and who had married under the Ordinance, two-thirds of his property real and personal went without further consideration to the widow of such marriage, or to the issue of such marriage or to both such widow and issue, to the exclusion of all others.
We refer to the case of In re Otoo, deceased. (Divisional Court [1926-29] p.84). In that case one Otoo had died intestate in Accra, and one of his daughters (the plaintiff in that case) issue of a marriage under the Ordinance, petitioned for letters of administration. The defendant, his uterine sister, opposed the petition, and also attempted to set up a samansiw or nuncupative will, namely, an alleged verbal disposition of his property by the deceased before his death. Otoo had contracted a marriage under the Ordinance on the 17th of July, 1890. The Court held that Otoo, by contracting such a marriage, had altered his legal status, and was therefore incapable of making a samansiw. It further held that, as under the Marriage Ordinance the legitimate children of the deceased, of whom the plaintiff was one, took a larger share (two-thirds) of the intestate’s property than the defendant (who took only one-third), the plaintiff was the proper person to whom letters of administration should be granted.
The learned Commissioner must have relied also upon the decision of the West African Court of Appeal in a Nigerian case: The Estate of Frederick Akidele Somefun (7 W.A.C.A. 156). In the cases which have been before the Divisional Courts hitherto, the points of determination in the instant case were not considered,
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though there was sufficient evidence in some of them to arouse interest in their consideration. Although these points were raised in the Somefun case (supra), the decision which the West African Court of Appeal arrived at in that case was subsequently over-ruled in another Nigerian case by the self-same West African Court of Appeal in a judgment delivered on the 23rd November, 1951 by Verity C. J. (Nigeria), in which a full and clear consideration was given to these questions (In re Sarah I. Adadevoh and Ten others and In the Estate of Herbert Samuel Heelas Macaulay (deceased) (13 W.A.C.A. 304)). Further the Somefun case was subsequently over-ruled by the more authoritative judgment of the Privy Council (Bamgbose v. Daniel [1955] A.C. 107 and 14 W.A.C.A. 116), to which we shall refer at a later stage in this judgment, and by which we are, of course, bound. These two later cases were unfortunately not brought to the notice of the learned Commissioner who dealt with the instant case.
In our opinion a review of the authorities, such as we have here indicated, throws into sharp relief the importance of the present appeal. It gives us an opportunity in this judgment to state what, in our opinion, is the position where a person subject to native customary law contracts a marriage under customary law, and subsequently marries again (in circumstances in which he may lawfully do so) under the Marriage Ordinance; and, further again, after he is free to marry a third time marries under native custom, and dies intestate, leaving a widow, or children born to either a valid customary marriage, or to a marriage under the Ordinance, or to both such marriages.
We are of opinion that a person subject to customary law who marries under the Marriage Ordinance, does not cease to be a native subject to customary law by reason only of his contracting that marriage. The customary law will be applied to him in all matters, save and except those specifically excluded by the statute, and any other matters which are necessary consequences of the marriage under the Ordinance. Consequently, when such a person has a case in Court, native law and custom would be deemed to be the law applicable to that cause or matter, as provided under section 87(1) of the Courts Ordinance. We think it would be unreasonable, and repugnant to natural justice, to hold otherwise, as such a proposition would in effect exclude from access to Native Courts all persons married under the Ordinance, because it would follow from such an opinion that they had by their marriage choice elected to make themselves “non-natives”. To state the matter in this away clearly
indicates the absurdity of the proposition, and its inherent improbability.
By section 87 (1) of the Courts Ordinance the only limitation which a marriage under the Marriage Ordinance can place upon a person’s right to have his case or matter determined in accordance with customary law, is in matters relating to his said marriage, and to such matters only during the subsistence of such marriage, save as where otherwise provided by law. Thus he cannot contract a valid marriage under the Ordinance while his marriage under customary law subsists, nor can he contract a valid marriage under customary law during the continuance of a marriage he has contracted under the Ordinance (section 44), and consequently he cannot, during the continuance of his marriage under the Ordinance, have a legitimate child except by the wife of the said marriage (section 49). It follows that if, during the continuance of his marriage under the Ordinance, he, for example, commits adultery with a wife of another person married under customary law, and the husband of that person sues him, the law to be applied is the customary law as laid down in section 87 (1) of the Courts Ordinance, and not English law. But since by his marriage under the Ordinance he has by express contract agreed that, in any question which may arise in connection with that marriage transaction, his obligations and rights should be regulated by English law, he will not be entitled to claim the benefit of the provisions of the customary law for divorcing his wife (Ackah v. Arinta (Sar.F.L.R. 79); and The Paramount Chief s Tribunal of Akwapim v. Budu (Div. Ct.) 1931-37) 89)).
Similarly, in our opinion, the right of a married person to make a will depends on the law of his domicile relating to wills, and not upon the system of his marriage, unless there is a special provision in the laws relating to marriage which regulates the testamentary rights of a person who so married.
In this country there are two forms of wills – the will made in accordance with English law, and the will made in accordance with customary law (samansiw, a nuncupative will). Each of these may be valid, if the peculiar requirements for making it are complied with. The making of a will is not a matter which arises out of the contract of marriage, consequently a person subject to customary law, though he may be married under the Marriage Ordinance, may in our opinion make a valid samansiw (nuncupative will). We find it difficult to approve the dictum of Michelin Ag. C.J. In re Otoo (deceased) (supra,) when he said:
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“I am compelled to hold, however, that when a person who is subject to native law or custom alters his legal status, by contracting a marriage under the Marriage Ordinance, 1884 he is incapable of making such a will (i.e. samansiw) and this Court cannot give effect to a will so made by him. The only form of will which he can legally make, is one in accordance with the provisions of English law.”
We are of the opinion therefore, that the case of re Otoo (deceased) (supra) was wrongly decided.
Some of the most important incidents of a marriage under the Ordinance, contracted by a person subject to customary law, are contained in Part 7 of the Ordinance, which part consists of only two sections, sections 48 and 49. Section 48 reads as follows:-
“48 (1) Subject to the provisions of the succeeding subsection where any person who is subject to native law or custom contracts a marriage, whether within or without Ghana, in accordance with the provisions of this Ordinance or of any other enactment relating to marriage, or has contracted a marriage prior to the passing of this Ordinance which marriage is validated hereby, and such person dies intestate on or after the 15th day of February, 1909, leaving a widow or husband or any issue of such marriage; “And also where any person who is issue of any such marriage dies intestate on or after the said 15th day of February, 1909, the personal property of such intestate and also any real property of which the said intestate might have disposed by will, shall be distributed or descend in manner following viz:
“Two-thirds in accordance with the provisions of the law of England relating to the distribution of the personal estates of intestates in force on the 19th day of November 1884; any native law or custom to the
contrary notwithstanding; and one-third in accordance with the provisions of the native customary law which would have obtained if such person had not been married under this Ordinance:
“Provided
“(i) That where by the law of England, any portion of the estate of such intestate would become a portion of the casual hereditary revenues of the Crown such portion shall be distributed in accordance with the provisions of the native customary law, and shall not become a portion of the said casual hereditary revenues;
“(ii) That real property, the succession to which cannot by the native customary law be affected by testamentary disposition,
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shall descend in accordance with the provisions of such native customary law, anything herein to the contrary notwithstanding.”
This section invokes the law of England relating to the distribution of personal estate of intestates in force on the 19th of November, 1884, and relates it to the distribution of two-thirds of the estate, real and personal, of two classes of intestates. These classes are:
(i) persons married under the Ordinance, and
( ii) persons who are issue of marriages under the Ordinance.
In the case of a person married under the Ordinance who dies intestate, the English law will apply only if such person (a) left a widow or husband of a marriage under the Ordinance, or (b) left issue of a marriage under the Ordinance; otherwise the law of England will not apply.
In the case of issue of the marriage, no condition precedent is required to make the law of England applicable. It follows that since the plaintiff is issue of a marriage between the deceased and Wihelmina under the Ordinance, and has survived the deceased, the law of England applies to this case.
The law in force in England on the 19th of November, 1884, relating to distribution of personal estate, was based upon the Statute of Distribution, 1670 (22 & 23 Car. 2 c.10), the Statute of Frauds 1677 (29 Car. 2 c.3) section 24, the Administration and Distribution of Estates Act, 1685 (1 Jac. 2 c.17), and judicial decisions which interpret these Acts. Discussions as to distribution, who are entitled in distribution, and in what proportions, under the said statutes, appear in 22 Eng. Reps.Ch. pages 368 to 382, and rules of distribution formulated from the statutes and the judicial decisions on them are set out in full in Volume II of Halsbury Laws of England (1st Ed.), pages 16 to 23. For the purposes of this case the relevant statutes are: the Statute of Distribution, 1670 and the Administration and Distribution of Estates Act, 1685.
Section 3 of the Statute of Distribution, 1670, provides that if a man dies intestate, leaving a widow and issue, the widow is entitled to one-third; and if he leaves a widow and no issue, she is entitled to one moiety. The other moiety falls to be distributed amongst his next-of-kin. The said section also provides that if he leaves issue and no widow, the estate is distributed equally among the children.
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Under section 48 of the Marriage Ordinance, when the English law applies it does so only as to two-thirds of the estate; the other one-third is to be distributed in accordance with the provisions of the native customary law which would have obtained if such person had not been married under the Ordinance. The proportions to which wife and children in this country will be entitled in the whole of a deceased husband’s estate in law therefore are:
(i) wife: 1/3 of 2/3, which is 2/9;
(ii) children: 2/3 of 2/3, which is 4/9.
It is observed that the case of Odonkor and Freda W. Hansen Sackey v. Ashawa Akoshia (F.C. [1926-29] 322) appears to be the only case in this country in which the correct shares of wife and children according to the law have been considered.
The next important question to be determined is, Who are the people who come within the definition of the term “wife”, and who constitute the class under the term “children”?
Before proceeding to answer this question we must emphasise that the expression “leaving a widow or husband or any issue of such marriage” in section 48 of the Marriage Ordinance does nothing more than indicate the condition precedent upon which English law would be applied to the estate of an intestate husband who married under the Ordinance; that is to say, English law will apply if a wife of such marriage survives him, or if any issue of such marriage survives him. It is not in accordance with the law, in our view, to hold that when a person subject to customary law marries under the Ordinance, and dies intestate, the only classes of persons entitled under the Statute of Distribution to share the two-thirds of his estate are a widow or a husband and/or issue of such marriage, as has been the practice hitherto in this country. Until now in this country, the opinion which the Divisional Courts have followed is that if a native who had married under the Marriage Ordinance dies intestate no consideration is given to entitlement in the distribution of his estate either to any widow, other than a widow of a marriage under the Ordinance, or to any issue of the deceased of a marriage other than a marriage under the Ordinance. All such persons, that is to say the widow in respect of a lawful marriage according to native customary law, or the children of such marriage born legitimate according to the law of the domicile (which is native custom), have been so far considered to fall out, and therefore to be excluded from consideration as to distribution. It is this opinion which we are, in this judgment, anxious more than anything else to declare to be erroneous in the light of recent decisions by the Privy Council.
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Under the Statute of Distribution a “wife” means a “lawful wife”, and child means “a lawful child.” The question of “lawful wife” and “legitimate child” are questions of status to be decided by the law of domicil. Therefore, if a marriage between a man and a woman is by the law of their domicil a valid marriage, the “wife” is a lawful wife for the purposes of the Statute no matter whether or not the marriage is invalid by the law of England or of any other place. Similarly, if a child is legitimate by the law of the country where at the date of its birth its parents were domiciled, he is a legitimate child for purposes of the Statute, no matter whether or not that child would be illegitimate by English law. In such cases the law of England recognises and acts on the status declared by the law of domicil, and such persons will be “wife and child for the purposes of the Statute of Distribution.
The law on this matter has been made clear in the case of re Goodman’s Trust (1887) 17 Ch. D. 266), where it was held by the Court of Appeal in England that a child born of its parents in Holland (where they were domiciled) and legitimated according to Dutch law, though it would be illegitimate if the parents were domiciled in England at the date of its birth, was nevertheless a child entitled to claim under the Statute of Distribution. Cotton L.J., in the course of his judgment, said at page 292:
“If, as in my opinion is the case, the question whether a person is legitimate depends on the law of the place where his parents were domiciled at his birth, that is, on his domicil of origin, I cannot understand on what principle, if he be by that law legitimate, he is not legitimate everywhere, and I am of opinion that if a child is legitimate by the law of the country where at the time of its birth parents were domiciled, the law of England, except in the case of succession to real estate in England, recognises and acts on the status thus declared by the law of the domicil. “In fact the respondents wish to use the proposition, that ‘in an English Act of Parliament those only are next-of-kin or children of a deceased brother whom the law of England recognises as legitimate’, as if it were ‘whom the law of England would recognise as legitimate if at the time of their birth their domicil, that is the domicil of their parents, had been English.’ But, in my opinion’ in deciding questions of legitimacy, that is of status, the law of England looks to the law of the actual, not of an hypothetical, domicil.
And James L.J. at page 298 said:
“Can it be possible that a Dutch father, stepping on board a steamer at Rotterdam with his dear and lawful child, should on
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his arrival at the port of London find that the child had become a stranger in blood and in law, and a bastard, filius nullius? “It may be suggested that that would not apply to a more transient visit or a temporary commorancy, during which the foreign character of the visitor and his family would be recognised, with all its incidents and consequences, but that it would only apply to a man electing to have permanent English domicil. But what could, in that view, be more shocking than that a man, having such a family residing with him perhaps for years in this country as his lawful family, recognised as such by every Court in the kingdom being minded at last to make this country his permanent domicil, should thereby bastardize his children; and that he could re-legitimate them by another change of domicil from London to Edinburgh? And why should we on principle think it right to lay down a rule leading to such results? I protest that I can see no principle, no reason, no ground for this except an insular vanity, inducing us to think that our law is so good and so right, and every other system of law is naught, that we should reject every recognition of it as an unclean thing.”
Section 41 of the Nigerian Marriage Ordinance, 1884 is identical, word for word, with section 48 of our Marriage Ordinance, except for the provision in the Ghana Ordinance that one-third of the estate of the intestate, real and personal, shall be distributed or descend in accordance with native customary law. The Privy Council, in the case of Bamgbose v. Daniel ([1955] A.C. 107; 14 W.A.C.A. 116), has held that under section 41 of the Nigerian Marriage Ordinance (the equivalent of section 48 of our Marriage Ordinance) and the effect of the Statute of Distribution which is applied by the Ordinance, the legitimacy or illegitimacy of a child is to be determined by the law of the country which is the country of origin, where at the time of its birth its parents were domiciled. Consequently it was held that a man’s children by nine wives of valid polygamous marriages were legitimate children entitled to claim under the Statute of Distribution.
We desire also to refer to the case of Cheang Thye Phin & ors. v. Tan Ah Loy ([1920] A.C. 369), in which the Privy Council held that since by the Chinese law of marriage applicable to the Straits Settlement of Penang a Chinaman may have secondary wives, called tsips, who have status as wives, such secondary wives are entitled upon the death intestate of their husband to share in his estate as widows: see also the case of Khoo Hooi Leong v. Khoo Hean Kwee. ([1926] A. C. 529).
Turning to our own Marriage Ordinance, it can be seen that under section 49(1) the only child who can be illegitimate under the Ordinance is the child procreated in adultery; and section 49 (2) provides that “adultery shall not be held to include the intercourse of a man married by native customary law with an unmarried woman.”
By section 44 of the Marriage Ordinance a person married under the Ordinance is incapable “during the continuance of such marriage of contracting a valid marriage under native law and custom, but save as aforesaid, nothing in this Ordinance contained shall affect the validity of any marriage contracted under or in accordance with any native law or custom.” Section 42 lays down inter alia that no marriage celebrated in Ghana under the Ordinance shall be valid where either of the parties thereto at the time of the celebration of such marriage is married by native law or custom to any person other than the person with whom such marriage is had. The simple and plain interpretation of these two sections 42 and 44 of the Ordinance as read together, in our opinion is as follows: Firstly marriage which a man duly contracts by customary law prior to marriage under the Ordinance is valid, and any issue of that marriage is legitimate. If a man, married under customary law, intends to marry under the Ordinance he must either marry the person to whom he is already validly married according to customary law, or if he intends to marry a person other than the wife married by customary law then he must determine the customary marriage lawfully. Secondly, any marriage which a man purports to contract by customary law while the marriage under the Ordinance still subsists, is null and void, and any children of that relationship are illegitimate. Thirdly, after the determination of his marriage under the Ordinance (either by divorce or by the demise of his wife) any marriage which he duly contracts by customary law will be valid, and the issue of that marriage will be legitimate.
Applying the law to the facts of this case we have the following results:
(1) the three children which the late Stephen Coleman had by his first wife Adeline Johnson are legitimate children, and have equal status with the respondent, issue of the marriage under the Ordinance with Wilhelmina. They, together with the respondent, are entitled to share equally the portion of their father’s estate which falls to children under the Statute of Distribution;
(2) the ten children whom the deceased had by the defendant during the lifetime of his wife Wilhelmina were procreated in
[p.409] of [1959] GLR 390
adultery, and are illegitimate as far as Marriage Ordinance is concerned:
(3) the marriage between the deceased and the defendant, celebrated in accordance with native customary law after the demise of Wilhelmina, is a valid marriage, and the defendant is a widow entitled to share in the estate of her late husband under the Statute of Distribution.
It follows that, since Stephen Coleman died intestate, leaving the plaintiff as issue of his marriage under the Ordinance, devolution of his estate must be as laid down in section 48 of the Marriage Ordinance: that is one-third devolves according to the native customary law, and two-thirds is to be distributed according to the law in force in England on the 19th November, 1884.
As the deceased died leaving a widow (i.e. the defendant), and children, namely, the three by his first lawful wife Adeline Johnson (married according to native custom), and the plaintiff (issue of a marriage under the Ordinance), the widow is entitled to 1/3 of the 2/3 i.e. 2/9 in her own right, and the plaintiff and the other three children are entitled to 4/9 in equal shares. The plaintiff himself is thus entitled to 1/9 of the whole estate, both real and personal.
The remaining one-third of the entire estate goes to those entitled in accordance with the customary law which applies in Osu (Christiansborg). Succession in Osu (a Ga-Adangbe community) is patrilineal. By customary law, children in a patrilineal family community belong to their father’s family, and are entitled to enjoy their father’s estate. Again by customary law, all children however born are entitled to enjoy equally. Consequently all the three sets of children of the late Stephen Coleman, namely, his three children by Adeline Johnson, the plaintiff and the ten children by the defendant are part and parcel of his family entitled to share in the personal property, and to continue enjoyment of the real property.
Upon these shares the defendant is proved to be entitled to five-ninths of the estate, i.e. two-ninths for herself, and three-ninths (one-third) for and on behalf of the “family” of her late husband which she represents in this suit. Following the principle that letters of administration are usually granted to the party who is shown to have the largest interest in the property, the defendant is the person who should be declared entitled to grant of letters. It is therefore clear, in our opinion, that the learned Commissioner erred in law when he based his decision on the following view:
“Her (the defendant’s) status being that of a wife married according to native custom cannot override the claim of the plaintiff.”
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However, as the appellant is illiterate, we think that in the interests of the estate, and of all the beneficiaries concerned, letters should be granted to her jointly with the plaintiff to administer the estate, and the plaintiff is ordered to account to the defendant as to the extent to which he has already administered the estate as a result of the letters of administration which he obtained upon a grant by the learned Commissioner, which grant we have by his judgment revoked.
DECISION
In the result we allow the appeal.
(Editorial Note: This case went to the Privy Council on appeal. On the 7th March, 1961 the Judicial Committee decided as follows:
“For these reasons their Lordships will report to the President of Ghana as their opinion that this appeal should be dismissed.”
The Committee’s judgment will be reported in full in due course.)
