ANKOMAH-SEY v. EMBRA-QUANSAH [1971] 2 GLR 274

DIVISION: IN THE COURT OF APPEAL

DATE: 5 JULY 1971

BEFORE: AZU CRABBE J.S.C., LASSEY AND SOWAH JJ.A.

NATURE OF PROCEEDINGS

APPEAL against a ruling of the late Owusu J. wherein he ruled that the respondent was the person entitled to be granted letters of administration to administer the estate of the late George Edward William Quansah.

COUNSEL

A. K. B. Ampiah for the appellant.

K. A. Sarpong for the respondent.

JUDGMENT OF AZU CRABBE J.S.C.

This is an appeal from the decision of the late Owusu J. whereby he declared that the respondent, as the customary successor, was alone entitled to the grant of letters of administration in respect of the estate of the late George Edward William Quansah (hereinafter referred to as the deceased) of Cape Coast, who died intestate at Tema on 20 January 1968.

The proceedings in this case were commenced on 6 August 1968 with the filing in the High Court, Cape Coast, by the respondent of an originating summons under the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A,), Order 54, r. 4 for the determination of the following questions: “(i) The interpretation of section 48 (1) of the Marriage Ordinance, Cap. 127 (1951 Rev.); [p.276] of [1971] 2 GLR 274

(ii) ‘Whether leaving a widow or husband or any issue of such marriage’ means such marriage contracted under the Ordinance alone or it embraces marriage contracted under customary law.

(iii) If the interpretation of the said section means marriage under the Ordinance alone, whether in the instant case, the applicant as the brother and the person validly appointed as successor to George Edward William Quansah deceased, under native law and custom, is not the proper person entitled to a grant of letters of administration to administer the said estate in preference to the caveatrix Christina Ankoma-Sey, who is an issue of customary law marriage.”

On 27 August 1968 the appellant entered a caveat, and on 25 November 1968 the respondent in pursuance of Order 54, r. 6 (1) filed a notice of appointment to hear the originating summons. Subsequently pleadings were ordered and filed, and the issues agreed upon for trial were formulated as follows:

“Whether or not the case should not be set down for legal argument as to which of the parties should be granted letters of administration since the defendant caveated on her own behalf and on behalf of her brothers and sister and since the plaintiff on the pleadings having admitted that the intestate during his lifetime contracted a valid marriage under the Marriage Ordinance of the Gold Coast (now Ghana) and having also admitted on the pleadings that the defendant and her said brothers and sister are the children of the intestate born out of a valid customary marriage.”

The facts are not in dispute, but the contest between the parties is whether the respondent, who claims as the customary successor of the deceased, is the one entitled to the grant of letters of administration or the appellant, who claims to represent all the children of the deceased. The following statement of the relevant facts are taken from the judgment of Owusu J.:

“The plaintiff is the customary successor of the late George Edward William Quansah, and the defendant the daughter of the said George Edward William Quansah, deceased. During the lifetime of the late Quansah, he married Madam Beatrice Nartey, alias Ewura Efua Korkor, under native law and custom; this marriage was later dissolved with one issue named George Spio Quansah alias Papa Kwesi Quansah. After the dissolution of this first marriage, the late George Edward William Quansah again married Madam Jane Adabie alias Akyire, under native law and custom. This marriage was also later dissolved with four issues, namely, Robert Spio Quansah alias Kwamina Quansah, an army officer presently studying in the United Kingdom, Mrs. Christina Ankoma-Sey alias Christina Spio Quansah, the caveatrix-defendant herein and a school-teacher, Jacob Wilson Sey Quansah, alias Nana Benyin, a carpenter by profession and Miss Georgina Spio Quansah, a petty trader. The late George Edward

[p.277] of [1971] 2 GLR 274

William Quansah married one Miss Mary Baffoe, alias Aba Safu, under the Marriage Ordinance on 4 October 1947 at the Anglican Church, Takoradi, after the dissolution of the two customary marriages. There was no issue and this third marriage was also dissolved at the High Court, Sekondi, on or about 16 November 1961. For the fourth time, the late George Edward William Quansah married Madam Nancy Andrews, alias Efua Bebowusiwa, also under native law and custom. Madam Nancy Andrews lived with the deceased up to the time of his death, but there was no issue of the said marriage.” The main ground upon which the appellant opposed the application by the respondent for letters of administration was that the children of the deceased, whom she represented, were together entitled to four-ninths share of the estate of their late father, and that since the children were entitled to a greater proportion of the estate of the deceased, the appellant was better entitled to a grant of the letters of administration as against the respondent.

This case once more raises interesting problems under the Marriage Ordinance, Cap. 127 (1951 Rev.), but so far as I can see, these have been settled by the decisions of the Ghana Court of Appeal and the Privy Council in Coleman v. Shang [1959] G.L.R. 390, C.A. and [1961] G.L.R. 145, P.C. The two questions raised here are (1) whether the Marriage Ordinance applies, and (2) if it applies, whether the appellant, as representing all the children of the deceased, should be preferred in the grant of the letters of administration.

Section 48 of the Marriage Ordinance reads:

“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 19 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 —

[p.278] of [1971] 2 GLR 274

(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, shall descend in accordance with the provisions of such native customary law, anything herein to the contrary notwithstanding.”

Both the Ghana Court of Appeal and the Privy Council are agreed in their interpretation of section 48 (1) that in case of intestacy of a person married in accordance with the Ordinance there are two conditions precedent to the application of the English law relating to the distribution of the personal estate of intestates in force on 19 November 1884. These conditions are: (1) a valid marriage under the Ordinance,

(2) the survival of a widow or husband or any issue of such marriage. As Lord Tucker observed, when delivering the opinion of the Privy Council in Coleman v. Shang [1961] G.L.R. 145 at p. 148, P.C. that, “Once these conditions are satisfied it remains only to see how the two-thirds portion was distributable under English law in 1884.” The relevant English law is the Statute of Distribution, 1670 (22 & 23 Car. 2, c. 10), which provides that if a man dies intestate leaving a wife and issue the wife is entitled to one-third of the personal estate and the children to two-thirds. In the Court of Appeal, van Lare J.A. explained how the English law is to be applied in this country. He said in [1959] G.L.R. 390 at p. 405 that: “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.”

There is a general principle that administration follows the interest of the property, and if the court is satisfied that in the particular circumstances of this case the children represented by the caveatrix are entitled to share in the estate of the deceased, then obviously they would be entitled to a greater share in the estate than the successor appointed by the deceased’s family.

In the present case it is not disputed that the deceased married four times in his lifetime. The first and second marriages were under the customary law, and the issue of these marriages have survived the deceased.

[p.279] of [1971] 2 GLR 274

The third marriage, which was contracted under the Ordinance was dissolved in 1961 but there was no issue by this marriage. The deceased contracted his fourth marriage under customary law, and he died leaving a widow, but no children. Delivering the judgment of the Ghana Court of Appeal in Coleman v. Shang (supra at p. 405) van Lare J.A. said:

“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.” Since the case for the appellant was based upon the status of the children, it is imperative that the meaning of the word ‘child’ as used in the Marriage Ordinance be ascertained. The word as used in that enactment means a child who is legitimate by the law of the country where at the date of its birth its parents were domiciled: see Coleman v. Shang (supra, at p. 406). In Ollennu The Law of Testate and Intestate Succession in Ghana, p. 253, the learned author argues in support of this meaning. He states: “Section 44 of the Marriage Ordinance declares that no person married under the Ordinance shall be capable during the continuance of that marriage of contracting a valid marriage under any native law or custom, but that the validity of a marriage contracted in accordance with customary law prior to marriage under the Ordinance is not affected by the Ordinance; it follows that the validity of marriage according to customary law entered into after the determination of marriage under the Ordinance, either by death or divorce, is also not affected …

Therefore the only child which is illegitimate under the statute and who is consequently excluded from the connotation of the term child,’ is the child which a man or woman married under the Ordinance has during the continuance of the said marriage with a woman or man who is not the one married to him or her under the Ordinance.”

In Coleman v. Shang (supra) the courts were dealing with a case that fell within the first category of intestate. But the deceased in Bamgbose v. Daniel (1954) 14 W.A.C.A. 116, P.C., fell within the second category of intestate, being a person who was the child of a marriage contracted under [p.280] of [1971] 2 GLR 274 the Ordinance. It was held in that case that where the deceased was an issue of a marriage under the Ordinance, the English law will be applied to his estate in any event whether or not he himself married under the Ordinance or according to customary law, and whether or not he left a wife or issue. That the caveatrix and the children of the deceased whom she represents are all legitimate children in accordance with the customary law of this land has not been disputed. But to succeed in her claim to the grant of letters of administration the caveatrix must show that the conditions precedent to the application of English law have been satisfied in this case.

It is common ground that the deceased once married under the Ordinance and that he died intestate, but the crucial question is whether the deceased left “a widow” or “any issue” of the marriage under the Ordinance. Clearly, he did not. And there is no evidence that the deceased fell within the second category of intestate (being a person who was the child of a marriage contracted under the Ordinance), so as to make the English law apply to his estate in any event. Consequently, the surviving children of the deceased do not come within the class of persons entitled to share in the succession of the deceased under the English Statute of Distribution. The distribution of the estate of the deceased must, therefore be in accordance with the customary law under which the children represented by the Caveatrix cannot claim an aliquot share of the personal estate of their deceased father.

I think the decision of the court below is right, and I would accordingly dismiss this appeal.

JUDGMENT OF LASSEY J.A.

I agree.

JUDGMENT OF SOWAH J.A.

I also agree.

DECISION

Appeal dismissed.

S.A.B.

ANNOR II AND OTHERS v. THE REPUBLIC

[1971] 2 GLR 281

Division: IN THE HIGH COURT, SEKONDI

Date: 30 JULY 1971

Before: EDUSEI J.

Criminal law and procedure—Basic rate—Refusal to pay—Charge of wilful neglect to pay annual basic rate—Plea of justification—Statutory obligation of local council to provide amenities—Failure to provide amenities—Whether accused justified in refusing to pay rate—Local Government Act, 1961 (Act 54), s. 96—Local Government (Jomoro Local Council) Establishment Instrument, 1962 (E.I. 197). [p.282] of [1971] 2 GLR 281

HEADNOTES

It is provided by section 96 (1) of the Local Government Act, 1961 (Act 54), that:

“Any person who, without lawful justification or excuse, the proof of which shall lie on him, refuses or wilfully neglects to pay any rate payable by him under this Act on or after the date on which it is payable, shall be guilty of an offence…”

The appellants who were all inhabitants of Bonyere village within the jurisdiction of the Jomoro Local Council refused to pay their annual basic rates of N¢3.00 each because the council had not been providing them with basic amenities, even though they had been paying their rates regularly. They were charged with wilful neglect to pay their annual basic rate under section 96 (1) of the Local Government Act, 1961 (Act 54). They were convicted and sentenced to a fine of N¢50. 00 each or three months’ imprisonment with hard labour. On appeal,

Held, allowing the appeal:

(1) the primary function of every council is to provide and administer those services that it is required or authorised to provide by the central government. The services which local authorities are expected to provide for the people are of two kinds: they may be mandatory or permissive. The mandatory functions are those which the council must perform at all cost. The Local Government (Jomoro Local Council) Establishment Instrument, 1962 (E.I. 197), which established the Jomoro Local Council made it obligatory on the Jomoro Local Council to provide such amenities as the building of school blocks and construction of drains as well as markets in the council area which includes Bonyere. The evidence has established beyond doubt that the Jomoro Local Council failed to carry out these mandatory functions at Bonyere.

(2) The appellants were exercising their civic rights in refusing to pay any more rates when those previously paid, which extended over a period of some eleven years, had not been used in providing the people of Bonyere with amenities which the council’s instrument of creation enjoined on them.

NATURE OF PROCEEDINGS

APPEAL against a conviction for wilful neglect to pay annual basic rates entered by the District Court Grade II, Half Assini.

COUNSEL

T. Amihere Mensah for the appellants.

Tagoe, State Attorney, for the respondent.

JUDGMENT OF EDUSEI J.

The appellants were charged, convicted, and sentenced to a fine of N¢50. 00 each or three months’ imprisonment with hard labour by the District Court Grade II, Half Assini. Against this conviction they have appealed to this court. The charge was that the appellants did wilfully neglect to pay their annual basic rate of N¢3.00 each on 26 May 1970, for the year 1969-70. The charge was brought under section 96 (1) of the Local Government Act, 1961 (Act 54), which reads as follows: [His lordship here read the provisions of section 96 (1) of the Act as set out in the headnote and continued:] It is quite clear from the section just quoted that the burden on proving lawful justification is thrown on the appellants. The appellants who are natives of, and resident in, Bonyere admitted that they refused to pay their basic rates for 1969-70 to the Jomoro Local Council. They set [p.283] of [1971] 2 GLR 281 out to establish their lawful justification or excuse through the Bonyerehene who gave evidence on behalf of all the appellants including himself. His evidence established that the people of Bonyere including the appellant had, for the eleven years before the 1969-70 fiscal year, been paying their basic rates, but the council had done nothing for their village in the way of providing them with amenities. They petitioned the Minister of Local Administration on 30 April 1970, alleging “the continued deplorable ill-treatment meted out to them by the Jomoro Local Council,” and also pleaded that they were stopping payment of their basic rates to the said local council. Instead, they stated that they would pay the rates to their town development committee for development projects in their area. They went further to state that the accounts of this committee could be subjected to regular audit inspection by government auditors and the purpose of this statement, I think, is to show the minister their genuine desire to make contributions which would be utilised for development projects in their village. It was not their intention to wilfully refuse to pay their basic rates.

The petition is exhibit B. The evidence of Bonyerehene, the first appellant, was to a large measure supported by the second prosecution witness, a basic rate collector of Jomoro Local Council and a native of Bonyere. He testified that “The people of Bonyere usually pay their basic rates. In return for this I expect something to be done for them by this local council. As far as I am concerned nothing has been done by the council to the people of Bonyere.” The evidence also shows that the people of Bonyere themselves built their school blocks, a post office, and constructed drains in the village with contributions provided by themselves and this evidence is supported by the second prosecution witness. This is what the second prosecution witness said: “It is true that the post office at Bonyere was built by the people themselves … I am aware that there are some school blocks at Bonyere — they were built by the people themselves.” The only help given by the Jomoro Local Council according to the evidence was to provide the people of Bonyere with fifteen bundles of iron sheets to roof their school building, and also two sanitary labourers and two conservancy labourers to work in the town. There is the further evidence that about ten years ago the Jomoro Local Council constructed a market at Bonyere but there were leakages in the roofs and therefore rendered the market unusable. This was not put right. The women of Bonyere themselves therefore made contributions and built their own market, and the Jomoro Local Council has been collecting fees from sellers in this market and this in my opinion is most unfair. On these facts the trial magistrate in his judgment said: “It is therefore unreasonable at this stage for the accused persons to refuse to pay their basic rates when the report is even not published.” The magistrate was here referring to the report of the “Polley Committee” which inquired into the activities of the Jomoro Local Council and which probe, he said, was known to the people of Bonyere. He further said in his judgment, “If the refusal is accepted by the court how is the council going to meet the wages of the conservancy and sanitary labourers …”

[p.284] of [1971] 2 GLR 281

It does seem to me that the trial magistrate concentrated his attention more on the payment of wages of workers of the council than on the provision of amenities for the people of Bonyere. He overlooked the important fact that the primary function of every council is to provide and administer those services that it is required or authorised to provide by the central government. The services which local authorities are expected to provide for the people are of two kinds: they may be mandatory or permissive. The mandatory functions are those which the council must perform at all costs. The Jomoro Local Council was established on 25 September 1962 by virtue of the Local Government (Jomoro Local Council) (Establishment) Instrument, 1962 (E.I. 197), and para. 10 of that instrument made it obligatory on the Jomoro Local Council to provide such amenities as the building of school blocks and construction of drains as well as markets in the council area which includes Bonyere. The evidence has established beyond doubt that the Jomoro Local Council failed to carry out these mandatory functions at Bonyere. It is interesting to observe that in the petition to the Minister of Local Administration, the appellants made reference to the pamphlet entitled “You and Your Local Government,” and it is quite evident that they have been acquiring some knowledge from the lectures given by the staff of Centre for Civic Education in so far as their rights and duties of local government administration are concerned. At page 16 of that pamphlet appears the following: “But the people will surely be diffident and may even refuse to pay those rates and taxes if they have reasons to suspect or believe that their moneys cannot be accounted for or put to the purpose for which they were demanded.”

The appellants, in my view, were exercising their civic rights in refusing to pay any more rates when those previously paid, which extended over a period of some eleven years, had not been used in providing the people of Bonyere with amenities which the council’s instrument of creation enjoined on them. In the circumstances of this case there was, in my view, ample justification on the part of the appellants to refuse to pay their basic rates for 1969-70. Their refusal cannot therefore be described as wilful. This was a practical and effective way of registering their protest against the council, and it is hoped that such bold and righteous act of the appellants will make the Jomoro Local Council and other councils in the country be up and doing; it is a clear lesson for all councils that the days are gone when villagers were made to do whatever they were told by the so-called enlightened men in their midst without question. The appeal succeeds and is allowed; the appellants are acquitted and discharged. The fines, if paid, should be refunded to them.

DECISION

Appeal allowed.

[Reported by S. OSAFO, LL.B. (GHANA).]