DIVISION: IN THE SUPREME COURT
DATE: 29TH APRIL, 1963
BEFORE: OLLENNU, BLAY AND AKUFO-ADDO JJ.S.C.
CASES REFERRED TO
(1) Coleman v. Shang [1959] G.L.R. 390, C.A.; [1961] G.L.R. 145 [1961] A.C. 481, P.C.
(2) Balfour v. Scott (1793) 6 Brown 550; 2 E.R. 1259, H.L.
(3) Duncan v. Lawson (1889) 41 Ch.D. 394
(4) Ankrah v. Ankrah (1957) 3 W.A.L.R. 104, P.C.
(5) Quarcoopome v. Quarcoopome [1962] 1 G.L.R. 15
NATURE OF PROCEEDINGS
APPEAL from a ruling of Charles J. reported in [1962] 1 G.L.R. 1 where the facts are fully set out.
COUNSEL
R.J. Hayfron-Benjamin, Snr. for the appellant.
Awoonor-Williams for the respondent.
JUDGMENT OF OLLENNU J.S.C.
Ollennu J.S.C. delivered the judgment of the court. The plaintiff instituted this action in the High Court
on behalf of himself as heir and successor to his father, the late L. T. C. Davies, and as representative of
all other children of the said L. T. C. Davies. His claim is for an order setting aside firstly a deed whereby
an administratrix of his said late father sold and conveyed to the first defendant land with buildings
thereon situate at Sekondi which was his late father’s self-acquired property, and secondly to set aside a
deed whereby the first defendant demised the said property to the second defendant. He also claimed
damages for trespass to the said hereditaments and premises. The defence pleaded that (i) the first
defendant is in possession of the premises by her agents and tenants as purchaser for value without notice
of any claim of the plaintiff; (ii) the claim is barred by the Real Property Limitation Acts, 1832-33,1 and
(iii) in any event the plaintiff and those on behalf of whom he claimed are not the lawful children of their
deceased father.
The main facts in the case are not in dispute. Briefly they are as follows:
The land with buildings thereon situate in Sekondi, Ghana, was the self-acquired property of one L. T. C.
Davies, deceased, father of the plaintiff and those on whose behalf the claim is made. L. T. C. Davies died
seised of the said property. The said L. T. C. Davies was a Sierra Leonean but was resident in Ghana
(then the Gold Coast) for many years; he never changed his domicile of origin, i.e. Sierra Leone. He
married in accordance
[p.384] of [1963] 1 GLR 382
with Fante customary law and the plaintiff, and those on whose behalf the plaintiff, sued are issue of the
said marriage; the plaintiff, the eldest of Davies’ children, was born in 1899. Later Davies divorced his
wife under the customary law, and in 1907 went to Sierra Leone and there married a wife under the Sierra
Leone Christian Marriage Ordinance, 1925.2 He returned to Sekondi with his wife and continued to live
in the said house until his death in 1919. He was survived by his Sierra Leonean wife, the plaintiff and
other children of his by his marriage under customary law.
Upon these facts counsel for the defendants raised a preliminary objection to the right of the plaintiff and
those he represents to sue. He submitted that as children by marriage under Fante customary law, they do
not, by Fante customary law, belong to the family of their late father and are therefore not entitled to
succeed him; and further that the Statute of Distribution, 1670,3 cannot be applied to marriage under
customary law, and therefore the plaintiff and those he represents have by the common law also no locus
standi in the case. He therefore invited the High Court to dismiss the claim.
In opposition to the objections raised to the right of the plaintiff to sue, counsel for the plaintiff submitted
that as children of a marriage under customary law, the plaintiff and the other children of the deceased are
legitimate children of their father and the Statute of Distribution applies to them, and they have a right in
their father’s estate which they are entitled to litigate. He cited Coleman v. Shang4 confirmed by the judgment of the Privy Council5.
The learned judge upheld the objection and dismissed the plaintiff’s claim. The reasons he gave for his
judgment are (1) that although the late Davies lived for a long time and died here in Ghana, it was not
proved that he lost his Sierra Leone domicile, and therefore the law applicable to this suit in respect of his
Ghana estate is the law of his domicile which is Sierra Leone law; (2) that the plaintiff had failed to prove
that by Sierra Leone law the marriage in Ghana entered into by his late father according to the provisions
of customary law is valid so as to make the issue of that marriage legitimate; and (3) that the case of
Coleman v. Shang, supra, is distinguishable due to the fact that Davies’ marriage under the Sierra Leone
Christian Marriage Ordinance, 1925,6 is not the same as marriage under the Marriage Ordinance of
Ghana.7 It is quite clear that the sole issue raised for determination in the preliminary objection is the law which
applies to distribution of real property situate in this country of which Davies who was domiciled in
[p.385] of [1963] 1 GLR 382
Sierra Leone died seised or possessed. That brings us to section 66(3) (a) of the Courts Act, 1960,8 which
says:
“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 answer to the question, therefore, is provided by the principles of private international law. It is most
unfortunate that the learned judge overlooked the fact that the property in question is real property, and
consequently dilated a great deal on irrelevant matters, and completely failed to direct his attention to any
book or decision on the subject.
Private international law lays it down as a universal principle that the law applicable to succession to real
property is the law of the country where the property is situate, i.e. the lex situs. The law is concisely set
out in Cheshire’s Private International Law (3rd ed.), pages 732 -733, as follows:
“It is an established principle, universally affirmed, that the descent of immovable property upon an intestacy
is determined exclusively by the lex situs. Succession can be claimed only by those persons who are
recognized as heirs by law of the country where the property is situated. Once it is decided that the property
in question is regarded by the lex situs as being immovable in nature, the local rules of descent are applied by
an English Court whether the situation be English or foreign.
Thus, in an Irish case, a domiciled Irishman died intestate `without issue in Ireland owning certain land in
Victoria. In such circumstances a widow is entitled by a Victorian statute to a charge of £1,000 upon the land
in the colony. The land having been sold and the proceeds remitted to Ireland, it was held that the widow was
entitled to the £1,000, since her rights were those conferred by the lex situs.’’’
See also Balfour v. Scott9 and Duncan v. Lawson.10
Therefore the law applicable to the case is the law of Ghana. It is a firmly established law in Ghana that
upon a person’s death intestate his property real and personal vest in his family, which may be his
maternal family or his paternal family depending upon the tribe to which the deceased belonged, in other
words his family is determined by his personal law. In the case of a stranger resident in Ghana who
identifies himself with or adopts a particular tribe or family, his family will be the family which, by the
custom of the tribe or the family which he adopted, is the family for purposes of succession: see Ollennu,
Law of Succession in Ghana, at p. 13. Although the late Davies dwelt in Sekondi among the Fantes, a
matrilineal family society, there is no evidence that he adopted the Fante or any other Ghanaian tribe or
family. Therefore the family—maternal or paternal—which should succeed to the property in dispute
must be the one which, by his personal law, would be regarded as his family. Again the facts show that apart from his children, no relations of the late Davies,
[p.386] of [1963] 1 GLR 382
paternal or maternal, are known to survive him. By customary law children in the maternal family system
are members of the household of their father’s maternal family, although not members of that family; but
if the family dies out, i.e. fails through whatever cause and becomes extinct, the children stay on and
become established as the family to succeed their father. In the paternal family, children are members of
their father’s family, and in the absence of any other members of that family they alone constitute the
family for purposes of succession. Therefore our law makes provision for such an eventuality as has
happened in this case. It follows that in the peculiar circumstances of this case, Davies’ family, for
purposes of succession, will consist of his children and their descendants, that is, in the absence of
evidence of what Davies’ family is according to his personal law: see Ankrah v. Ankrah11. A case in
point is Quarcoopome v. Quarcoopome12: There one John Quarcoopome, a Nigerian who lived in Accra
for a long time, died in 1916 leaving land and buildings in Accra. By his will he devised his said property
to his children as tenants in common each to enjoy the share which falls to him or her, only for his or her
life. He made no disposition of his residuary estate, and gave no directions in respect thereof. By the law
of succession in Accra, Ga Mashi, where he resided the family which should succeed to the residuary
portion of his said land and building of which he died intestate is the maternal family. There being no
maternal or paternal relation of his who could be traced apart from his children, it was held that the family
who should succeed to the residuary estate were his children.
Upon the evidence in this case the plaintiff and the other children are by the law of Ghana which
recognises marriage under customary law, legitimate children of their father and as such constitute the
family of their late father in the eventuality of the case and therefore quite clearly have an interest in the
property, the subject-matter of the suit. And there being no evidence that the said family has formally
appointed a head or successor to the said father, the plaintiff who, undisputedly is the eldest of the
children, is by customary law, the head of that family, entitled to manage the property of their deceased
father for and on behalf of that family, and to litigate the family’s title thereto. The learned judge
therefore erred in upholding the objection and ruling that the plaintiff has no locus standi; consequently
his judgment cannot stand.
For these reasons we allow the appeal, set aside the judgment of the High Court including the order as to
costs; any costs paid to be refunded. The case is remitted to the High Court for trial on the merits. The
appellant will have his costs fixed at £G49 4s.9d.
DECISION
Appeal allowed.
J.D.
