BRIMAH AND COBSOLD v. ASANA
[HIGH COURT, ACCRA]
DATE: 20TH FEBRUARY, 1962
COUNSEL
I. Amoo-Lamptey for the plaintiffs.
A. W. Acquaah for the defendant.
JUDGMENT OF OLLENNU J
The house the subject-matter of this suit forms part of the estate of one Imoru Mobalaji Peregrino
Brimah deceased, late of Accra. The said Imoru Mobalaji Peregrino Brimah died testate on the 7th
August, 1961, and probate of his will bearing the date the 14th January, 1961, was granted on the 3rd
October, 1961 to the plaintiffs, the two executors and trustees named therein. He was a Moslem.
By his said will the testator devised the house in dispute to the plaintiffs upon certain trusts. The
defendant is not a beneficiary under the will, but has occupied portion of the said house and has
refused to quit upon notice given to her by the plaintiffs. The defendant admits that she is not a
beneficiary under the will. She contends however, that she is entitled to
[p.119] of [1962] 1 GLR 118
occupy portion of the house as of right; she based her said contention on the following grounds: (1)
the will of the testator was null and void since it disposed of more than one-third of the estate of the
testator contrary to Islamic law, (2) she, the defendant, is a widow of the testator and is entitled as of
right to one-eighth share of the whole of his estate according to Islamic law, and (3) the devises to the
second plaintiff, a wife of the testator and to her children by the testator, are null and void because as
Moslems they are not entitled to be beneficiaries under a will.
The deceased Imoru Mobalaji Peregrino Brimah was a Ghanaian of Accra, a Ga Mashie, if for no
other reason than the fact that his mother was a Ga Mashie (an Accra) woman. The land with the
building thereon, the subject of the devise is situate in Accra New Town, Accra. Therefore by section
66 (1), rule 4 of the Courts Act, 19601(1) the law to be applied in determining the issue in this suit is
the customary law of Ga Mashie. In any event since the issue in this case has arisen in consequence of
a unilateral testamentary disposition, the law applicable i.e. the law to be applied is that laid down in
section 66 (1), rule 3 of the Courts Act, 1960, namely the law which appears from the form or nature
of the disposition to have been intended by the testator to be applied in determining the issue; that law
is the common law of Ghana as to testate succession. That law is a combination of the customary law
common to all sections of Ghana arising out of the law of nature, that each Ghanaian has a right to
dispose of his self-acquired property by will either in accordance with the Wills Act, 18372(2) or in
accordance with the principles of customary law i.e. by samansiw or nuncupative will.
It is wrongly assumed that because the deceased was a Moslem, his personal law as to succession
must be regulated by Islamic law. That assumption is a grievous error. A Ghanaian can opt for any
religious faith or creed, but that choice which he freely and voluntarily makes cannot operate to
deprive him of rights and privileges under the law of the land, neither can it exempt him from his
liabilities and duties under it; whether a Christian or Moslem, pagan or atheist, a Ghanaian remains
subject to the law of the land. And at his death, unless otherwise provided by law, devolution of his
property upon testacy or intestacy would be regulated by his personal law as modified by statute or
otherwise.
By the laws of Ghana, there are only two instances in each of which succession to the estate of a
deceased Ghanaian may be wholly or partly regulated by law or laws other than the personal law of
the deceased. The first instance is provided by section 48 of the Marriage Ordinance,3(3) where a
Ghanaian married under the Marriage Ordinance dies intestate; the second is provided by section 10
of the Marriage of Mohammedans Ordinance4(4), where a Mohammedan dies married in accordance
with the provisions of Mohammedan law having had his or her said marriage registered under section 5 of that Ordinance. The said section 10 of that Ordinance reads:
“10. On the death of a Mohammedan whose marriage has been duly registered under this Ordinance, the succession to his or her property shall be regulated by Mohammedan law.”
It will be noticed that while under section 48 of the Marriage Ordinance, a person married under the
Ordinance must die intestate before the English
[p.120] of [1962] 1 GLR 118
law can be applied to part of his estate, under section 10 of the Marriage of Mohammedans
Ordinance, all that is necessary for the application of Mohammedan law to the distribution of the
estate of a person whose marriage was registered, is that he should die, not necessarily intestate.
Therefore for Moslem law to become the law which should regulate the succession to the estate of a
Moslem the following conditions are necessary: (1) the deceased must have married according to
Mohammedan law, and (2) the said marriage must have been registered under the Marriage of
Mohammedan Ordinance.
Evidence was given in this case that whatever the form of marriage it was that the testator went
through, his said marriage was not registered under section 5 of the Marriage of Mohammedans
Ordinance. Therefore by virtue of section 10 of that Ordinance, Moslem law cannot be applied to
succession to the estate of the late Imoru Mobalaji Peregrino Brimah whether he died testate or
intestate. In Opanyin Yaw Kwakye v. Abudulai Tuba, a case in respect of succession to the estate of a
Moslem who died intestate, I stated what the law is. I will here repeat what I said in that case on the
subject.
“It is only a Muslim who married according to Mohammedan law, and had his marriage registered under
the Ordinance in the manner provided by the Ordinance whose succession shall be regulated by
Mohammedan law. In the eyes of our law, a marriage by a Mohammedan according to Mohammedan
law is at its very best marriage by customary law and does not affect succession to his estate, unless the
said marriage is registered under the Ordinance. Therefore if a Mohammedan died not having married,
and if married not having had his said marriage registered under the Ordinance Cap. 129, the only law
which can regulate succession to his estate, is his personal law, i.e. the customary law of the tribe to
which he belonged.”5(5)
Therefore even if the defendant was not divorced by the testator, (I must say I find she was divorced)
Islamic law is not the law to be applied in deciding the issues which have arisen in this case.
Consequently the defendant has not been able to offer any defence to the action.
There will be judgment for the plaintiffs against the defendant for declaration of title, and injunction
restraining the defendant, her agents and servants from entering upon the premises and from
interfering by any means whatsoever with the plaintiffs in their possession, occupation or control of
the house.
In view of the fact that the defendant was at one time married to the testator and has children by him I
make no order as to damages. The plaintiffs will have nominal costs.
DECISION
Judgment for the plaintiffs.
