COURT OF APPEAL, ACCRA
DATE: 18 MARCH 1974
APALOO, LASSEY AND ARCHER JJA
JUDGMENT OF LASSEY JA
The facts on which this appeal has been argued as well as the various legal points for determination have been fully set out in the leading judgment delivered by Apaloo J.A. I will deal only with the main fundamental question of law which was not considered and decided in the court below, but which was argued in this court. The main question of law which arises in this appeal is which system of law ought to be held to apply to determine how the real estate consisting of several houses situated in different parts in this country are to be divided up after the death of each of the two deceased brothers. Then general rule or principle of private international law which has been recognised and enforced by the courts in Ghana is that every question as to the devolution of immovable estates in Ghana of persons of foreign origin dying while domiciled abroad is governed by the lex situs or the law of the place where the immovables are situated. The application of this rule or principle involves consideration of the further question of the meaning or scope of the lex situs, and the choice in the present case is between the law of Ghana as the law of the place where the real estates in question are physically situated and the law of the place of domicile of origin of the deceased brothers who died possessed of several houses situated in parts of Ghana, namely, the law of the Lebanon. The contention on behalf of the appellant was that the proper law which is applicable as the lex situs means strictly the internal or domestic customary laws prevailing in the different localities in Ghana where the realties are situated. Therefore, according to this submission of counsel for the appellant, the lex situs, so literally interpreted, means that for a court in Ghana dealing with the question of the right ofsuccession to the real estates of the deceased brothers which are situated in parts of Accra and Kumasi, must apply the matrilineal customary law of succession as in the case of a Ghanaian of Akan origin, which is the customary rule of descent applicable in the areas in Ghana where the houses are situated. By such system of matrilineal inheritance, it follows that as the appellant is [p.212] of [1974] 2 GLR 201 the mother of the deceased brothers, and, therefore, the real successor, she becomes the rightful person entitled to enjoy the real estates of her deceased sons to the exclusion of her grandson, the respondent. The argument in reverse was that the decision of the learned judge of the High Court is right, and that the proper law applicable as the lex situs in the circumstances of this case is Lebanese law which is the law of the place of domicile of the deceased brothers. This argument, it seems, takes a less restricted interpretation of the precise meaning of the lex situs as applied in the context of private international law. Counsel for the respondent was prepared to accept the wider meaning assigned to the application of the lex situs by the courts in some of the decided cases which came before them. In his judgment the learned judge in the court below held (as reported in [1973] 1 G.L.R. 258 at.p. 267): “Consequently, I am of the opinion that the common law is the law which must apply to the devolution of the estates of these deceased persons, and that common law should be the English common law as it stood in 1874.” The judge followed the decision reached in the case of King v. Elliot [1972] 1 G.L.R. 54, C.A., and definitely thought that the common law including the English statutes of general application in force in 1874, applied to solve the problem raised in the appeal, and dismissed the claim for lack of capacity in the appellant. In my opinion, although the learned judge’s conclusion of the case in favour of the respondent was perfectly correct, the reasoning he employed to arrive at that conclusion seems to me to ignore the crucial question which arose to be decided, namely, whether the lex situs in this case means the customary law of descent as is applicable in the localities in which the various houses in question are situated or whether another system of law should be the criterion in the devotion of the real estates. It seems a definite decision must be given own way or the other in view of the conflicting views expressed in the several decided cased on the subject. Endeavouring to resolve the problem thus raised, I take the view that the wider interpretation of the lex situs which includes the whole of the conflict of laws rules of the place where the property is situated is more reasonable and appropriate than the restricted view which can cause practical difficulties in its application. It seems necessary that in coming to a conclusion in this case as regards which interpretation of the lex situs should be applied, it must be appreciated that it is the rights of foreign national to the real estate in Ghana which are being considered. In this regard, it seems important that the court should avoid an interpretation which appears unjust and is repugnant to morality and inconsistent with comity. In my view, to adhere to the narrow and strict interpretation of the law of the place where the properties are situated does not only cause hardship but seems to be incompatible with the application of the customary law of succession when viewed even through the spectacles of a Ghanaian. This is because the application of the customary law of descent varies in incidence in the different tribal localities comprising the State of Ghana, [p.213] of [1974] 2 GLR 201 and does not permit of the same or equal treatment of the rights or interests of the beneficiaries who are entitled to the enjoyment of a deceased person’s hereditable property. The right of succession to property in Ghana, no matter where the hereditable property is situated in Ghana or its nature is always governedby the customary practice prevailing in the tribe from which the deceased owner of the property hailed and not necessarily by the customary practice of descent to property obtaining in the particular locality or tribe in which the hereditable property happens to be situated. That is the position of the general law of succession as it is applied in Ghana. In this score, the strict adherence to the narrow application of the lex situs in the context of the customary law in Ghana would seem to mean that in Ghana the mere accident of owning landed property in a particular tribal locality renders succession to that property after the death of its owner subject to the particular rules of descent prevailing in the tribal area where the physical property is found to be situated, even though the deceased individual who originally owned the property might belong to another tribe whose custom of inheritance may be quite different as regards incidence from that existing in the tribal area in which the property to be inherited is situated. The customary laws of succession, as applied and recognised by the courts in Ghana, are entirely concerned with the individual deceased person which in turn depends upon the customs and practices of his tribal community or section. After a careful study of the opposing points of view expressed by various judges in our courts on the subject of the right of succession to the real property in Ghana of a deceased foreigner, there is no doubt that the few reported cases dealing with the question show that the judges in the early times were not to accept and apply the restricted interpretation of the lex situs principle, unless it has been shown by the particular facts of the case that the deceased foreigner during his long residence in Ghana merged with the indigenous people of his new place of settlement and adopted their ways of life and customs so as to be regarded as belonging to a particular tribe in Ghana. In that event, after the death intestate of the deceased foreigner, succession to his real estate should be governed by the tribal rules of his place of adoption and settlement. In this case as it has not been shown on the evidence that despite their long residence in Ghana where they acquired considerable real estates over the years, the two deceased brothers attached themselves to any of the tribes in this country. Therefore with regard to the right of succession to the real estate, it would be wrong, in my view, for the courts to apply the lex situs literally as meaning the law and custom of the community in whose territory the real estate happened to be situated. On the contrary, all the indications on the evidence point to the fact that the two deceased brothers remained subject to the law of their place of origin in the Lebanon. On my part, I feel that it would be wrong, in a matter which is of considerable importance in the social life of foreigners who live in our midst, for the courts to attempt to impose or give encouragement to the adoption of alien customary laws by which their private matters were [p.214] of [1974] 2 GLR 201 to be regulated after death. It would not, I think, be right to found too much on the narrow interpretation or application of the rule of private International law to the circumstances of the present case. To avoid causing hardship and also guided by the overriding principle that substantial justice should be done without undue regard to strict and literal application, the courts in cases such as Weytingh v. Bessaburo (1906) 2 Ren. 427, Thompson v. Thompson (1925) D.Ct. ‘21-’25, 155 and Ekem v. Nerba (1947) D.C. (Land) ‘38-’47, 268, in which similar problems as the one in the present appeal arose, took very realistic views in holding that on the devolution upon death intestate of a stranger who left behind real estate in Ghana, the principles of his personal law should be applied. The facts in each case as well as the points of law involved have been admirably dealt with in the leading judgment, and I will not attempt again to dilate on them. But the important principle is that in each of the cases mentioned the courts held that succession to property in Ghana of a deceased foreigner must be governed by the law of the place of his domicile at the time of death, and not by the law of the places in Ghana where the properties weresituated. The decisions in almost all the cases above referred to, do not appear to have been based on the customs of the indigenous people of Ghana where the real properties involved were actually situated but upon what was good sense. In my opinion, it seems implicit in the judgments in those early cases that the courts are not bound to regard the narrow interpretation of the lex situs rule as a hard-and-fast rule. Although the courts in the past seemed to have treated this subject of international importance with much flexibility and a deeper sense of justice by their robust approach in developing and adopting a wider sense of the use of the term lex situs, yet in two recent decisions delivered on the matter of intestate succession to foreign immovables in Ghana, the tendency of the courts now seems to show that they attach great significance to the strict application of the lex situs as meaning the law of the place where the property is actually situated. The first of these decisions is in Davies v. Randall [1963] 1 G.L.R. 382, S.C. which involved succession to the real estate in Ghana of a person of Sierra Leonean descent who settled in the Sekondi area and owned property there. Upon his death intestate, the question arose as to how his real estate was to be divided and who were entitled. The evidence in the case did not show that the deceased foreigner had acquired a domicile here. Equally so it was not known on the evidence who were his immediate lineal descendants who should inherit or succeed. And so the court decided the case on the basis that as the realty was situated in Sekondi, the Fante customary law prevailing there applied, and the estates were given to persons described by the court as members forming the deceased person’s household. But the report of the case does not show that the problem of the choice of law was fully considered and therefore the case is not of much assistance or relevance here. [p.215] of [1974] 2 GLR 201 But in King v. Elliot [1972] 1 G.L.R. 54, C.A. decided a few years later, the very same problem such as arose in Davies v. Randall (supra) was considered again by the courts. In this case the question was as to succession to a house owned by a person of West Indian extraction who had settled in Cape Coast for very many years and died intestate while domiciled there. After her death the question of who should succeed to the house in Cape Coast was brought before the High Court which held that the Fante customary law of succession which is the lex situs governed the devolution of the deceased’s house. On appeal to the Court of Appeal, the decision of the High Court at Cape Coast was upheld on a different reasoning. In the view of the Court of Appeal, Fante customary law did not apply to determine the right of succession to the house situated in Cape Coast as it was not shown on the evidence led that the deceased West Indian had abandoned her domicile of origin and embraced Fante customary law. The full report of the case shows, however, that the decision in the Court of Appeal proceeded on the basis that the English common law as it stood before 1874 including the English statutes of general application governed the devolution. The court, therefore, held that the English Statute of Distribution, 1670 (22 & 23 Cha. 2, c. 10), was the relevant law applicable to determine who should be entitled to inherit the deceased’s house in Cape Coast. This decision together with the reasoning supporting it was what the learned judge of the High Court seriously recommended should be followed in resolving the problem which has risen on the facts of the present appeal, although the judge did not attempt to show how the decision in King v. Elliot (supra) helped to resolve the conflict of the choice of law. It seems to me that as in the opinion of the Court of Appeal, the evidence led in the case did not establish that the deceased, who was a foreigner, had embraced the Fante customary way of life during her long residence at Cape Coast, the Fante customary law was considered unsuitable to apply in determining the right of devolution to her estate. Instead, the court applied paragraph 64(1) of the Courts Decree, 1966 (N.L.C.D. 84), which law authorised the application of the common law including the English statues of general application as they were before 1874 in those cases in which it is found that customary law wouldnot apply. The particular paragraph enacts that: “Subject to the provisions of any enactment other than this sub-paragraph, in deciding whether an issue arising in civil proceedings is to be determined according to the common law or customary law and, if the issue is to be determined according to customary law, in deciding which system of customary law is applicable, the court shall be guided the following rules, in which references to the personal law of a person are references to the system of customary law to which he is subject or, if he is not shown to be subject to customary law, are references to the common law….” The Court of Appeal applied this provision of the Decree and reached the same conclusion in the case as the learned judge of the High Court at Cape Coast. [p.216] of [1974] 2 GLR 201 There can be no doubt, therefore, that the remarks by Abban J. in the High Court in the present case were the result of the application of the above-quoted paragraph of the Decree in solving the problem of succession to real property left behind by a foreign national. But as I have already pointed out, the reasoning of Abban J. based on the decision in King v. Elliot (supra) was reached on the assumption that the English Statute of Distribution, 1670, applied to the devolution of both real and personal estates. In my view, the application of the English Statute of Distribution, 1960, in deciding the dispute in King v. Elliot seems of questionable relevance and opens the observation of Abban J. that the common law which includes the English statutes of general application as at 1874 applies in this case to much criticism. It is be noted that the judgment in the case of King v. Elliot is a determination of the final tribunal in the hierarchy of the courts in this land, and, therefore, is of binding effect on this present Court of Appeal, if the decision is considered to be valid. The important question which is raised for consideration is this: Is the King v. Elliot decision a valid one which ought necessarily to be followed in this case? If it is not, then the correct practice is that the present court would be free to depart from following it or regard it as binding. The evidence in this case satisfactorily proved that the two deceased Lebanese brothers were not shown to have embraced any of the custom in Ghana and so from the point of view of succession to their real estates in Ghana application of the ordinary customary law of descent prevailing in the localities in which the houses are situated would seem to be unsuitable and, therefore, irrelevant to the determination of who should succeed to both real estates or how they are to be divided up. It was advocated that in the absence of the application of customary law as the lex situs, the alternative law to apply is the common law on the basis that King v. Elliot (supra) was validly decided by applying the English Statute of Distribution, 1670, to determine the devotion of real estate. In my opinion, although the common law including the English statutes of general application as at 1874 still remain in operation in Ghana in appropriate cases, the provisions of the English Statute of Distribution, 1670, which is part of the statutes of general application in force in England before 1874, however, did not apply to determine the devolution of realities in England. The provisions of the Statute of Distribution, 1670, show that they applied to determine the distribution of personal estate only in England and not to the devolution of realty which descended to the heir-at-law according to the ancient feudal rule of primogeniture which was later abolished and replaced by various statutory provisions under which the whole of the real estate, other than copyholds, vest in the administrator. As the Statute of Distribution, 1670, was not applicable to real estate even though it is part of the statutes of general application in force in England before 1874, the learned judges were wrong to have applied it in determining how the realty in King v. Elliot (supra) ought to have devolved, and to that extent that case, in my opinion, was not validly[p.217] of [1974] 2 GLR 201 decided, and, therefore, the learned judge of the High Court in the present case erred in basing his reasoning on that decision. The English statutes of general application in force before 1874 operate fully in Ghana in so far as their application is relevant to the determination of a particular issue, and the whole object or purpose of the Statute of Distribution, 1670, was to govern personalty only, it is inapplicable in Ghana to determine the devolution of the real estates of the deceased Lebanese brothers in the present case. Viewed from that point, the decision in King v. Elliot (supra) cannot help to resolve the problem which has arisen because it was decided by applying the wrong law. Even though all the members of the court were in agreement that the provisions of the statute applied effectively, this court now feels bound to differ from the reasoning which provided the basis of the decision in that case. In conclusion, I would very respectfully venture to suggest that in order to avoid the hazards and uncertainties so far known to which succession to foreign real estates in Ghana are exposed in the interpretation or application of the lex situs by our courts, a statutory enactment is considered necessary to clarify the position. For these reasons, in addition to those which have already been given, I am also of the same view that this appeal should be dismissed.
JUDGMENT OF ARCHER JA.
This appeal raises a very important principle of law in this country and I think that the law should be laid down with certainty. The appellant is the mother of two deceased Lebanese sons who before their respective deaths had lived in this country for some time and had died possessed of several houses in Accra and Kumasi. The only question before the court below was what law governed the devolution of their respective estates? When the elder brother died intestate, the younger one took out letters and partly administered his estate. When the younger brother also died intestate, his son, the present respondent, took out letters of administration in respect of his own father’s estate and that of the deceased uncle. According to the evidence on record, the estates were distributed according to Lebanese law. The appellant, the grandmother of the respondent, has abjured the distribution according to Lebanese law and now claims that, as the houses are situated in Accra and Kumasi where the matrilineal system of succession in Ghana prevails, she, as the mother of the two deceased sons, is entitled to succeed to their respective immovable estates in Ghana. The learned trial judge rejected her contention that the matrilineal system of succession applied to the estates but ruled that in view of the recent decision by the Court of Appeal in King v. Elliot [1972] 1 G.L.R. 54, the English common law should govern the devolution of their estates, that is, the Statute of Distribution, 1670 (22 & 23 Cha. 2, c. 10). King v. Elliot is a Court of Appeal decision and is binding on the High Court and in view of section 9 (1) of the Courts Act, 1971 (Act 372), it is also binding on this court. I shall in the course of this judgment show that the reference to the English common law, i.e. the Statute of Distribution, was made per incuriam and as such the decision cannot be binding on this court. [p.218] of [1974] 2 GLR 201 It has been urged before us that the law applicable to the estate should be the law as at 11 January 1957 when the elder son Mousa died, and the law in February 1967 when the younger son Gabriel died respectively. It was therefore submitted that the learned trial judge erred in relying on section 49 (1), r. 1 of the Courts Act, 1971 (Act 372), an Act which was passed after the deaths of these brothers, in determining the law which governed the devolution of their estates. The question I wish to ask is whetherthere has been any change in the law since the deaths of these brothers? My answer is that there has been no change in the law. Section 49 (1) merely repeats certain principles which have been laid down by previous decisions of the courts in this country. What was the origin of these rules in section 49 of the Courts Act, 1971? When Ghana opted for a Republican Constitution in 1960, it became necessary to define the laws of the country and to retain what English law appeared to be acceptable to the needs of the country. When the Courts Act, 1960 (C.A. 9), was passed, it was found expedient to provide certain rules for the guidance of the courts when adjudicating on matters involving parties who are not subject to the same customary law – a problem usually referred to as the internal conflict of laws. As far back as 1956, attempts had been made in Nigeria to provide rules to regulate the choice of law in customary and native courts (see Customary Courts Law, 1957 (W. R. No. 26 of 1957) and Native Courts Law, 1956 (N. R. No. 6 of 1956) of the Western and Northern Regions of Nigeria respectively quoted in Allott, Essays in African Law at p. 174). Ghana thought it wise to have similar but less complicated rules for the guidance of all the courts and accordingly the first rules were enacted in section 66 of the Courts Act, 1960 (C.A. 9). In this connection I wish to quote what Bennion says in his textbook, The Constitutional Law of Ghana at p. 449 as follows: “It having been decided that the common law and customary law were to be treated as separate elements of the laws of Ghana, the most difficult question of all had to be tackled. What rules were to govern the question of whether the common law or customary law applied in a particular case … The method used was to examine as many reported decisions of the West African Court of Appeal and other tribunals exercising jurisdiction over the territories now included in Ghana as was possible in the time available, and to attempt to extract from them certain principles. It is significant that the decisions fall into a fairly clear pattern which is not to be discovered from reading s. 87. The result of this research is now embodied in s. 66 of the Courts Act, 1960 (C.A. 9).” Then the author continues at p. 452: “The opening words of sub-s. (1) provide that the court shall be guided by the following rules. This wording is intended to show that the rules are laying down principles rather than rigid instructions. There may well be cases where the rules will not fit exactly as they stand . . . Nevertheless, in a case where the rules do not fit exactly, the court, in being guided by the principles they lay down, should find no difficulty in extending them by analogy.” [p.219] of [1974] 2 GLR 201 Perhaps I may observe that Bennion drafted the 1960 Constitution and was connected with the drafting of the Courts Act, 1960 (C.A. 9). I cannot therefore cite a better author. It is obvious that the rules in section 66 of the Courts Act, 1960, did not introduce new law. They repeated principles which can be gathered from decisions of the courts before 1960. The same rules were repeated in the Courts Decree, 1966 (N.L.C.D. 84), with insignificant amendments and were substantially reported in the present Courts Act of 1971. There has been no change in the law. The learned trial judge correctly found that the two deceased brothers did not identify themselves with any of the communities in Ghana and their estates could not devolve according to Ga Mashie custom or Ashanti custom. Since no system of customary law can be regarded as the personal law of the deceased, what law should govern the devolution of their estates? In the earliest reported case of Weytingh v. Bessaburo (1906) 2 Ren. 427, where a claim was made to trace title by customary law from a Dutch settler who had cleared bush land 180 years previously, the court rejected the claim on the ground that native law was inapplicable inasmuch as the original owner was a European and that there was no evidence of the relevant Dutch law. The tendency since then has been to apply the personal law of a non-native who is not subject to any of the customary systems of law in Ghana. When a Fante man dies intestate possessed of immovable property situated in an area where the patrilineal system of successionprevails, his personal law, that is, his matrilineal system of succession governs the devolution of his estate. My own experience in the High Court at Accra, Cape Coast and Sekondi has been that when foreigners die in Ghana, e.g., Moshies, Wangaras, Yorubas or Ibos, possessed of immovable property, the affidavit supporting the application for letters indicates that according to their own law in their respective countries, the applicant is entitled to succeed to the estate. These application have been granted without question. It seems to me that in Ghana, the personal law of a deceased person has always governed the devolution of his estate whether it is immovable or movable. That has always been the law even before the rules in section 66 of the Courts Act, 1960, were first reduced into statutory form. Nevertheless, the courts, when faced with the impossibility of ascertaining the personal law of a foreigner, have adopted and adapted the customary law of the area where the immovable property is situated: see Ekem v. Nerba (1974) 12 W.A.C.A. 258. Another case is Davies v. Randall [1963] 1 G.L.R. 382, S.C. where the court held that in the absence of evidence of what the deceased’s family was according to his personal law, his children, being recognised by the law of Ghana as legitimate children of their father constituted his family for the purpose of succession and therefore quite clearly had an interest in the property, the subject-matter of the suit. The court applied Quarcoopome v. Quarcoopome [1962] 1 G.L.R. 15. In both cases, there was no evidence as to the personal law of the deceased and the court had to demonstrate a remarkably laudable capacity for invoking its equitable imagination in furtherance of justice. In the Davies case the court at p. 386 referred to “the peculiar circumstances of [the] case.” By analogy, the court was able to apply [p.220] of [1974] 2 GLR 201 certain basic customary principles to determine the devolution of the estate. But the true basic principle remains that Ghana law is the lex situs and on each occasion, the court attempts to find the personal law of the deceased and applies it. If it cannot ascertain the personal law, then it adapts the customary law of the area in furtherance of justice. Indeed, these principles are now embodied in Rules 2 and 4 of section 49 (1) of the Courts Act, 1971, which read respectively as follows: “In the absence of any intention to the contrary, the law applicable to any issue arising out of the devolution of a person’s estate shall be the personal law of that person.” “In applying [Rule] 2 … to disputes relating to titles to land due regard shall be had to any overriding provisions of the law of the place in which the land is situated.” What are the overriding provisions of the law, if any, in Accra and Kumasi where these houses are situated ? None whatsoever except that the freeholds have been converted into leaseholds for 50 years at peppercorn rent from 22 August 1969: see article 163 (8) of the suspended 1969 Constitution and now preserved by section I of the Lands Commission Decree, 1972 (N.R.C.D. 24). What was the personal law of the deceased brothers? The learned trial judge referred to section 49 (1) of the Courts Act, 1971, and ruled that as the brothers were not subject to any system of customary law, then their personal law must be the common law. He then went further and held, relying on King v. Elliot (supra), that the common law meant the English common law, namely, the Statute of Distribution, 1670. After this country’s independence in 1957 it became necessary to enact a new Interpretation Act, 1957 (No. 29 of 1957), to replace the Old Interpretation Ordinance, Cap. 1 (1951 Rev.). Common law had not previously been defined, although reference were made to it in the Courts Ordinance, Cap. 4(1951 Rev.), and in other pieces of legislation. Section 3(1) of the Interpretation Act, 1957, defined common law to mean “the common law of England referred to in section 83 of the Courts Ordinance.” When Ghana became a Republic, the new Interpretation Act, 1960 (C.A. 4), re-defined common law as follows in section 17:“(1) The common law, as comprised in the laws of Ghana, consists, in addition to the rules of law generally known as the common law, of the rules generally known as the doctrines of equity and of rules of customary law included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable for general application . . . (4) (5) In deciding upon the existence or content of a rule of the common law, as so defined, the Court may have regard to any exposition of that rule by a court exercising jurisdiction in any country. A reference in an enactment to the common law shall be construed as a reference to it as affected by any enactment for the time being in force.” [p.221] of [1974] 2 GLR 201 Section 18 (I) of the Interpretation Act, 1960, also reads: “Customary law, as comprised in the laws of Ghana, consists of rules of law which by custom are applicable to particular communities in Ghana, not being rules included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable for general application.” In effect, customary law as defined is not part of the total common law of Ghana. In this connection too, I am obliged to quote from Bennion, The Constitutional Law of Ghana at p. 405 as follows: “Sub-section (1) of s. 17 refers to `the rules of law generally known as the common law’ and `the rules generally known as the doctrines of equity.’ The rules are not described as `English’ but this probably does not represent any departure from the effect of s. 83 of the old Courts Ordinance. Although the contents of s. 83, and the side-note to that section, suggest that English common law and equity were referred to, …the words `in force in England’ did not apply to references to the common law and equity, although it is true it was to English decisions on common law and equity that the courts in Ghana looked. Indeed, as we have seen, they regarded themselves as bound by decisions of the House of Lords and the Privy Council in England. It was considered inexpedient to refer expressly to English law in these provisions describing the unenacted laws of Ghana. Furthermore, although common law and equity originated in England they have of course been received by the law of many other countries. Wherever territories have been ceded to or settled or conquered by the British, common law and equity have found a foothold which has not easily been dislodged. Nearly two hundred years after the American War of Independence, common law and equity still flourish in most of the States of U.S.A. It is this concept of common law and equity as a world-wide system of law that is now imported into the laws of Ghana. This is emphasized by sub-s. (4) of s. 17 of the Interpretation Act, 1960 (C.A. 4), which enables the courts to seek guidance on any doubtful point on the common law or equity from decisions of courts in any country.” Secondly, the Statute of Distribution, 1670, was not part of the English common law. It was a statute passed to modify the English feudal rules of inheritance. It was a statute which was in force in England on 24 July 1874 and became a statute of general application in Ghana and it appears from the First Schedule to the Courts Act, 1971, that sections 3 to 5 of that statute are still in force in this country. Apart from persons subject to customary law and who are also subject to the provisions in section 48 of the Marriage Ordinance, Cap. 127 (1951 Rev.), I have yet to be told that the Statute of Distribution has ever applied to other Ghanaians who are not married under the Ordinance. What is the basis for extending its [p.222] of [1974] 2 GLR 201 application to Lebanese who are not even affected by section 48 of Cap 127? In England the Statute of Distribution, 1670, never applied to realty. It was section 48 of the Marriage Ordinance, Cap. 127, which extended its application to real property or immovable property in Ghana on and after 15 February 1909. It must be pointed out that section 3 to 5 of the Statute of Distribution are still in force in Ghana becauseof the peculiar provisions of section 48 of the Marriage Ordinance and but for no other reason. It seems to me therefore that any reference to the English Statute of Distribution, 1670, as part of the English common law referred to in King v. Elliot [1972] 1 G.L.R. 54, C.A. was made per incuriam and as such it is not binding on this court. When the Courts Act, 1971, was passed, section 111 (4) provided as follows: “The statutes of England referred to in subsections (1) and (2) of this section shall be treated as if they formed part of the common law, prevailing over any rule thereof other than a rule of customary law included in the common law under any enactment providing for the assimilation of such rules of customary law as are suitable for general application.” It follows therefore that since 22 September 1971, sections 3, 4 and 5 of the English Statute of Distribution, 1670, are now treated as part of the common law of Ghana. Before the Courts Act, 1971, it was a statute of general application in Ghana. It was not even part of the English common law. However, the Court of Appeal in King v. Elliot (supra) regarded it as part of the English common law whereas the common law contemplated by the Courts Act, 1971, was the common law of Ghana as defined in the Interpretation Act, 1960 (C.A. 4), and not English common law. My view is that the operation of the Statute of Distribution has always been limited to the provisions of section 48 of the Marriage Ordinance, Cap. 127 (1951 Rev.), and although that statute is now regarded as part of the common law of Ghana, the conversion has not expanded its previous field of operation. Having defined what was meant by the common law in this country before the Courts Act, 1971, was passed, what was its content? When the Courts Act, 1960 (C.A. 9), was passed, section 66 (3)(a) provided: “66. (3) Notwithstanding anything contained in the foregoing provisions of this section, but subject to the provisions of any other enactment, – (a) the rules of the common law relating to private international law shall apply in any proceedings in which an issue concerning the application of law prevailing in any country outside Ghana is raised…” The common law rule in private international law is that the lex situs determines all question relating to title to land. This established principle was reiterated by the then Supreme Court in Davies v. Randall (supra). [p.223] of [1974] 2 GLR 201 Which is the law of Ghana which is the situs? The law has always been that the personal law of a deceased person determines the devolution of his estate both movable and immovable. What was the personal law of these two deceased brothers? It was not customary law but the law of the Lebanon. In other words Ghana law, although the lex situs, would refer to Lebanese law, if it can be ascertained, as the personal law of the two deceased brothers. This provision in section 66(3) (a) of the Courts Act, 1960, was repeated in section 64 of the Courts Decree, 1966 (N.L.C.D. 84). The express words have not been re-enacted in section 49 of the Courts Act, 1971, because it was not necessary. The rules of private international law form a constitute part of the common law as a world-wide concept and they constitute part of the common law of Ghana. The rules in section 49 of the Courts Act, 1971 (Act 372), do not effect any change in the law and it is of no consequence if the trial judge referred to them in his judgment. The rules have not changed the law that the lex situs determines all questions relating to title to land. That was the law before 1957, that was the law in 1967 and it is still the law. What then is the law of succession to land in Ghana? Is there oneuniform law? There is plurality of laws. First of all, there is the matrilineal system of succession; there is patrilineal system; there is succession by virtue of the provisions of section 48 of the Marriage Ordinance, Cap. 127 (1951 Rev.), and also succession under section 10 of the Marriage of Mohammedans Ordinance, Cap. 129 (1951). What law applies to any deceased person depends upon whether he can be identified with any of these systems of succession. If he cannot be identified with any of them, the courts have attempted to trace their personal law, either by considering their country of origin, i.e. domicile of origin or by looking for the community with which the deceased can be identified. That is what the courts have been doing in this country since Weytingh v. Bessaburo (supra) was decided. In the case of Ekem v. Nerba (1947) 12 W.A.C.A. 258, the West African Court of Appeal did not state categorically that Fante customary law, the lex situs, automatically applied. Rather the court remitted the case to the court below to take further evidence as to what part of Nigeria the deceased came from and what relevant law was to govern the inheritance to his estate. It is clear that there is not law in this country which states that where land is situated in Fante land, then the matrilineal system of succession should prevail although the deceased was an Ewe. Or where a Fante man dies possessed of land in Eweland, the patrilineal system should apply to his estate. In fact, there are no restrictions. The deceased’s personal law has always prevailed. By analogy, this has also applied to foreigners. When foreigners die leaving property in Ghana, the matter should be regarded as one of private international law which is part of the common law as a world-wide concept. It should be recalled that in Davies v. Randall(supra), the court treated the problem as one of private international law and nothing else and cited section 66(3)(a) of the Courts Act, 1960. The present case is in the same category. As there is not one uniform system of succession to land in [p.224] of [1974] 2 GLR 201 Ghana, the question one may ask is this: Assuming that as the house in question are situated in matrilineal areas would the law in these areas prevent the estates to devolve according to Lebanese law? I know of no such prohibition. It seeks to me that if these rules, first introduced in 1960, are regarded as principle for the guidance of the courts and not as rules with nuances of sacrosanctity, no more confusion will continue. Several Lebanese have died and left land and houses in Accra and Kumasi, is it possible to recollect instances in which the parochial incident of the matrilineal system of succession have governed the devolution of their estates? This bring me to the case of Kotia V. Nahas [1941] A.C. 403, P.C. In that case, the deceased was a Lebanese national who died possessed of land in absolute ownership situated in Palestine. The law of Palestine provided that where the deceased owner was neither a Palestine citizen nor a member of one of the religious communities, his land should be distributed in accordance with his national law. It also provided, however, that if the national law referred the question to the lex situs, then the lex situs should be applied by a Palestine court. The deceased was not a member of any religious community and was not a Palestinian. According to Lebanese law succession to land situated outside the Lebanon shall be governed by the lex situs. The Supreme Court of Palestine held that the succession was to be governed by Palestinian law. The decision was affirmed by the Privy Council. It seems to me therefore even if Ghana law referred this matter to the national law of Mousa and Gabriel, that is the law of the Lebanon, although it would not be necessary to do so, the matter would be referred to Ghana as the lex situs; but Ghana would not apply the matrilineal system of succession on the ground that these Lebanese brothers never in their lifetime embrace any particular system of customary law in Ghana: see Brown v. Miller (1921) F.C. ‘20-’21, 48 and Savage v. Macfoy (1909) 2 Ren. 504 referred to in King v. Elliot (supra). Since Ghana customary law is out of the question, their personal law, that of the Lebanon if it can be ascertained, will be applied.It must be pointed out that in Davies v. Randall [1963] 1 G.L.R. 382, S.C. the court did not hold that English Common law was the personal law of the deceased although section 66(1) of the Courts Act, 1960, had also provided that references to personal law of the deceased meant either the customary law or the common law. The court applied the law of Ghana, namely, that in Ghana, upon a person’s death intestate his property real and personal vest in his family. This rule of law or concept pervades all the four systems of succession I have already referred to. What constitutes the family is another question to be determined according to the law applicable in each case. If there had been evidence as to what constituted the family of Mr. Davies according to Sierra Leone law the court would have given effect to that. However in the absence of such evidence, the court, by analogy, held that the surviving children constituted the family in the absence of any other relatives. The court held at p. 385 that “the family maternal or paternal – which should succeed to the [p.225] of [1974] 2 GLR 201 property in dispute must be the one which, by his personal law, would be regarded as his family.” The law in Ghana as I see it is as follows: The family succeeds. If the deceased was subject to customary law then the family as understood in the patrilineal or matrilineal system succeeds. If he was married under the Marriage Ordinance, his family would comprise his widow and children on the one hand who will take two-thirds, and the family as understood in the customary sense on the other hand will take one-third. If he was married under the Marriage of Mohammedans Ordinance, his family will be those designated by that law to succeed. If the deceased was a stranger and not subject to any of these four systems, then the court will find out who constitute his family by his personal law. In the present case therefore since the law of Ghana, the lex situs, is that the family succeeds, the court has to find out who constitute the family of these deceased brothers as understood in the Lebanon, that is, Lebanese law. If the Statute of Distribution, 1670, was to apply then its sections 3, 4 and 5 will govern the distribution of the chattels and chattels real, i.e. leaseholds of the deceased brothers only. How would the realty be shared? I shall quote section 3 in extenso to reveal certain patent and latent absurdities. Section 3 reads: “3. Provided always, and be it enacted, that all ordinaries and every other person who by this act is enabled to make distribution of the surplusage of the estate of any person dying intestate, shall distribute the whole surplusage, of such estate or estates in manner and form following: that is to say, one-third part of the said surplusage to the wife of the intestate, and all the residue by equal portions to and amongst the children of such persons dying intestate, and such persons as legally represent such children in case any of the said children be then dead , other than such child or children (not being heir-at-law) who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his lifetime by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made; and in case any child other than the heir-at-law who shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the share, which will be due to the other children by such distribution as aforesaid; then so much of the surplusage of the estate of such intestate, to be distributed to such child or children as shall have any land by settlement from the intestate, or were advanced in the lifetime of the intestate, as shall make the estate of all the said children to be equal as near as can be estimated; but the heir-at-law notwithstanding any land that he shall have by descent or otherwise from the intestate is to have an equal part in the distribution with the rest of the children without any consideration of the value of the land which he hath by descent or otherwise from the intestate. And in case there be no children or any legal representatives of them, then one moiety of the said estate to be allotted to the wife of[p.226] of [1974] 2 GLR 201 the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them.” Who is the heir-at-law mentioned in section 3 just quoted who takes all the realty exclusively and who also shares the personalty and chattels real with the other children beneficiaries? Is it sensibly permissible to ascertain the heir-at-law according to the English feudal rules of inheritance or is it to be determined according to the customary rules in Ghana? The heir-at-law in the English common law sense was a single person who took the realty beneficially to the exclusion of all others. Who is his equivalent in Ghana? The family is not a single person but a group of persons and as it is well known no member can claim a divisible interest in family property as of right. In any case, the real properties are situated here in Ghana and it would be ludicrous to apply the old English common law rules of succession to realty when the concept of heir-at-law in the English sense is quite different from the notion of an heir as understood in customary law in this country. There must be judicial pragmatism in such cases. The evidence shows clearly how the two estates have been distributed according to Lebanese law, with a fair share going to the appellant. The family of the deceased brothers is their family as understood legally in the Lebanon. Finally I wish to remark that if we were to hold that the matrilineal system applied to these Lebanese, we would be creating a massive and monstrous monument to judicial aberration and the ordinary man in the street would hold the courts in this country in derision because reason and common sense would have fled from the court rooms and every person conversant with the Old Testament will recall the words of the Prophet Isaiah, in Chapter 59, verse 14, “And judgment is turned away backward and justice standeth afar off, for truth is fallen in the street and equity cannot enter.” Rules that were originally intended to play the role of a guiding star, now have the proclivity of leading us into an unnecessary skein. The earlier they are scrapped from the statute books the better it would be for the courts to continue to administer justice according to the established laws of the land. For the reasons I have given, I am also of the view that the appellant has failed in her action and the appeal should be dismissed.
DECISION Appeal dismissed.
S.Y.B.-B.
