DIVISION: SUPREME COURT
DATE: 18 NOVEMBER 1965
BEFORE: SARKODEE-ADOO C.J., APALOO AND SIRIBOE JJ.S.C.
CASES REFERRED TO
(1) Davies v. Randall [1963] 1 G.L.R. 382, S.C. (2) Ghamson v. Wobill (1947) 12 W.A.C.A. 181.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court, Accra, dismissing the appellant’s claim for a declaration of title to land and recovery of possession of a number of houses thereon, and other personalty. The facts are sufficiently set out in the judgment of the court.
COUNSEL
Hayfron-Benjamin (with him J. Arthur) for the appellant. Nelson Cofie for the respondents.
JUDGMENT OF SARKODEE-ADOO C.J.
This is the judgment of the court on an appeal from a decision of the High Court which on 13 September 1961, dismissed a claim by the appellant for a declaration of title to and recovery of possession of a number of houses, cash and other personal properties set out in the writ. Without going deeply into the facts, the evidence shows that the late E. B. Otinkorang lived for many years in Teshie and died intestate at Accra on 11 June 1959, possessed of considerable property. The first respondent is his lawful widow having been married to the deceased under the provisions of the Marriage Ordinance.1 The second respondent is the eldest child and issue of that marriage. Upon the death of her husband, the first respondent took out letters of administration and it would seem that it was while she was in the course of administering the estate that the appellant found cause to commence this action. The latter claimed that some of these properties belonged to the Atwei Otofoyo family of which she was head and she complained that the first respondent wrongfully took possession of those properties. The appellant also claimed a third share of such of those properties as belonged to the deceased in his own right. The respondent denied that she was in possession of any properties which belonged to the appellant’s family and claimed that all the properties of which she stood possessed were the self-acquired properties of her late husband. As to the appellant’s claim to a third
[p.658] of [1965] GLR 656
share of these properties, the first respondent replied that that portion descended to the children of the late E. B. Otinkorang in accordance with Teshie customary law and that the family as such had no right to it. It is perhaps noteworthy that the appellant filed a reply to the statement of defence in which she averred that “Teshie custom of succession is through the maternal line and is the same as the Ga customary law of succession.” This averment was made on the footing that the late E. B. Otinkorang was a Teshie man and succession to his property was governed by Teshie customary law. Shortly afterwards, it would seem that the appellant found reason to revise her view of the Teshie custom of succession. She therefore amended her reply and averred that the deceased was not a full Teshie man but that his maternal grandmother hailed from Akwamu and therefore claimed that “Teshie custom is not applicable to his estate.” It thus became necessary to decide whether or not the deceased hailed from Teshie. This and other controverted matters were set out as triable issues in a summons for directions taken out by the appellant. The learned trial judge resolved all these issues in favour of the respondent and in particular, held that the claim that the deceased was of Akwamu origin was fabricated for the purpose of this case. He therefore concluded that the appellant failed to make good her title to any of the properties in dispute and accordingly, proceeded to dismiss the action. But before dealing with the grounds of appeal, it is necessary to notice a procedural matter which the appellant claimed damnified her and which formed one of her grounds of appeal. When counsel for the respondents informed the court that he had closed his case, the learned judge then proceeded to reserve judgment to be delivered on notice. There is no record of counsel’s addresses and it is not possible to say whether the court declined to hear addresses or whether counsel waived their right of address. Accordingly, counsel for the appellant founded the first ground of appeal which was urged before us on this. It was submitted that the case of the appellant was greatly prejudiced by the denial of the right of address. Counsel referred us to Order 36, r. 21 (g) and (h) of the Supreme [High] Court (Civil Procedure) Rules, 19542 and submitted that that rule cast an obligation on the court to invite counsel’s address before judgment. We cannot agree. The material part of that rule reads “the party against whom the same has been adduced shall be at liberty to address the court, and the party beginning shall be entitled to the general reply.” In our opinion,
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that rule merely confers on the parties the right of address which they can exercise or not just as they please. We cannot see that that rule obliges the court to call upon counsel to address the court any more than that it obliges a party to address the court against his wish. We, however, consider it desirable that where the right of address is waived, a record should be made of that fact. But in this court, counsel for the appellant has had every opportunity of addressing us on the evidence and citing such legal authorities as he would have cited to the court below and we assume he took full advantage of this opportunity. Having heard him, we are wholly unable to say that a fair trial has in any way been imperilled or that the absence of addresses in the court below amounted to anything remotely resembling a failure of justice. In our opinion, this ground of appeal has no merit and we hold that it fails. Before dealing with the only substantial ground of appeal argued in this case, it is necessary to refer briefly to the only other ground of appeal which counsel for the appellant urged with obvious diffidence. It was complained that the learned trial judge dismissed in too perfunctory a manner the appellant’s contention that Akwamu custom and not Teshie custom applied to this case. In our opinion, the reverse is the truth. The learned trial judge considered the evidence as to the origin of the late Otinkorang in great detail and gave very cogent reasons for concluding that the deceased was a Teshie man. We entirely agree with him. In our opinion, the evidence is not susceptible to any other finding. That brings us to the only substantial ground of appeal. It was submitted for the appellant that as some of the houses in dispute are situate in Accra, the appellant in her capacity as head of the family was entitled to a third share in accordance with Ga as distinct from the Teshie customary law of succession. The reason for this, according to counsel, is that by the principle of private international law, descent of immovable property upon an intestacy is determined exclusively by the lex situs. In support of this, counsel referred us to Cheshire’s Private International Law (3rd ed.) at pp. 732-733 and to a decision of this court in a suit entitled Davies v. Randall.3 In that case the court had to decide what law was applicable to the succession of a Sierra Lconean who while domiciled in Sierra Leone, lived in this country for many years and died here intestate possessed of real property. It was held that succession to his property was governed by the law of Ghana, that being the lex situs. The principle in Randall’s case is clearly inapplicable to this case which concerns the succession of a Ghanaian who died domiciled in this country.
[p.660] of [1965] GLR 656
Counsel for the appellant has not been able to cite one case in which it was held that where a domiciled Ghanaian dies intestate, succession to his property was to be determined by any other law besides his personal law. The argument which was urged before us found favour with the High Court judge in the case of Ghamson v. Wobill.4 In that case, the appellant claimed possession of a house at Winneba as successor to an intestate who hailed from Gomoa Ajumaku and the only question was whether the right to succession was governed by Gomoa Ajumaku customary law being the law of the state to which the intestate belonged or by Efutu customary law being the law of the place where the property was situate. The learned trial judge basing himself on the principles of private international law, held that Efutu customary law applied since that was the lex situs. On appeal, the West African Court of Appeal held that he was in error and that the branch of English law known as private international law did not apply since its application would result in denying natives the benefit of the customary law prevailing in their own locality. The principle of that decision has now been given statutory authority by subsection (1) of section 66 of the Courts Act, 1960.5 Sub-rule 4 of that section provides in effect that where there is an issue relating to entitlement to land on the death of the owner of that land, that issue shall be determined according to the customary law to which the deceased was subject if all the parties claim title to that person. In this case, both parties claim title through the late Otinkorang whom the learned trial judge found to have hailed from Teshie. It follows that succession to his properties upon his intestacy is determined exclusively by Teshie customary law. Accordingly, a third share of the deceased’s properties which by virtue of section 48 of the Marriage Ordinance devolves in accordance with customary law descends to the patrilineal family which the children of the late Otinkorang constitute. It follows that the appellant qua head of the late Otinkorang’s family has no title to any portion of these properties and the learned trial judge was right in so holding. In our opinion, the appeal fails on all the grounds and ought to be dismissed.
DECISION
Appeal dismissed.
A.K. F.
