HIGH COURT, SEKONDI
DATE:8TH JANUARY, 1962
BEFORE: CHARLES J.
CASES REFERRED TO
(1) Young v. Holloway [1895] P. 87
(2) Ekem v. Nerba (1947) 12 W.A.C.A. 258
(3) Coleman v. Shang [1961] G.L.R. 145, P.C.
[p.2] of [1962] 1 GLR 1
NATURE OF PROCEEDINGS
RULING on a preliminary objection that the plaintiff who brought this action as heir and successor of his father, L.T.C. Davies, deceased, had no locus standi.
COUNSEL
C. F. Hayfron-Benjamin with him S. Baidoo for the plaintiff.
F. A. Williams for the defendants.
JUDGMENT OF CHARLES J.
In this action the plaintiff in a representative capacity as heir and successor of the late L. T. C. Davies and as the representative of the other children of the said L. T. C. Davies, deceased instituted an action against the defendant for:
(1) A declaration that the deed of sale executed on the 19th January, 1953 between the first defendant and the administratrix Fanny Margaret Davies, and also the subsequent lease executed between the first and second defendants are both null and void, and for a rescission of both.
(2) £G1,500 as damages suffered as a result of the defendants trespassing to the said land and, with the assistance of their servants and agents, demolishing the building thereon.
When this case came on for hearing Mr. Benjamin, counsel for the plaintiff sought leave of the court to amend the statement of claim as appears in the notice of proposed amendment filed. Mr. Williams opposed this application on the ground that he proposed to take an objection in limine that the plaintiff and those on whose behalf he brought the action have no locus standi because the statement of claim failed to disclose that the plaintiff has an interest in the estate of L.T.C. Davies deceased. I decided to hear argument on the preliminary objection raised by Mr. Williams and rule thereon before dealing with the application for the amendment.
Mr. Williams submitted:
“1. That the intestate L.T.C. Davies was born in Sierra Leone in 1866 and was domiciled in Sierra Leone. He was lawfully married in Sierra Leone on the 9th June, 1907 and he never changed his domicile though he lived and died in Ghana in 1919.
“2. As the plaintiffs are claiming to be children of the deceased, according to Fante customary law they have no interest in their father’s estate. Plaintiffs are contending that the marriage with their respective mothers makes them legitimate according to Fante customary law. The Statute of Distribution cannot be applied to marriage according to Fante customary law in matters of succession or property and the only law applicable will be the Fante customary law which is also the lex situs. See Sarbah’s Fanti Customary Laws Ch. VII at pp. 100—102. The Statute of Distribution only applies to marriages under the Ordinance or according to Christian rites.”
Mr. Benjamin replied: “Refers to par. 3 of the reply. Children of a native marriage are legitimate although the marriage was polygamous. The children of the marriage according to Fante customary law will be entitled to claim
under the Statute of Distribution when their father subsequently contracts a marriage under the Sierra Leone Ordinance. Fante customary law is only invoked as regards the marriage but not as regards succession. Mr. Benjamin concedes that the intestate was born in Sierra Leone of parents who were natives of Sierra Leone but he cannot say whether the intestate changed his domicile. The test for determining the legitimacy of the plaintiff is the law of the place of birth and not the law of the domicile of the parents.”
[p.3] of [1962] 1 GLR 1
The case was adjourned to the 30th October, 1961 and it was further adjourned to the 2nd November, 1961. On this day Mr. Benjamin sought leave to amend paragraph 3 of the reply as set out in the proposed amendment of plaintiff’s reply filed on the 2nd November, 1961 and as the application was not opposed by Mr. Williams, I granted leave as prayed. I however decided to hear evidence on the preliminary objection to decide the domicile of the late L. T. C. Davies as well as the validity of the marriage between the late L. T. C. Davies and the late Ekua Ahima the mother of the plaintiff.
The plaintiff tendered in evidence a judgment in an administration suit in which neither of the defendants were parties nor did they nor the persons through whom they claim have an opportunity of intervening. It is true that according to this judgment the court declared the plaintiff a legitimate son of L. T. C. Davies, deceased. Although this is a judgment in rem as it decided the status of the plaintiff, I nevertheless hold that the defendants are not estopped from relitigating this very issue. In Young v. Holloway1(1) it was held that the decree of a court of probate, establishing a will or the status of an administrator, though conclusive against all parties and in all courts until set aside, is not, as against persons who had no opportunity of intervening or upon whom a fraud had been practised in obtaining the decree, so conclusive as to prevent their taking proceedings in the same court for
revocation of the probate or grant.
The evidence disclosed that the late L. T. C. Davies who was born in 1866 in Sierra Leone was married according to Fante customary law to Ekua Ahima, a native of Cape Coast on the 6th September, 1899; the plaintiff was the first child of the said marriage. There were three other children of the said marriage but they died subsequent to the death of L. T. C. Davies in 1919. L. T. C. Davies divorced Ekua Ahima after the birth of the fourth child and he married Fanny Margaret James in Sierra Leone. A certified copy of the marriage certificate was tendered in evidence by consent and marked exhibit A.
According to the evidence of the plaintiff, his father used to visit Sierra Leone often and his father also owned a house there. On the evidence led before me I hold that the late L. T. C. Davies never lost his domicile of origin and he was throughout his lifetime domiciled in Sierra Leone. As L. T. C. Davies had not acquired a domicile in Ghana (then the Gold Coast) the essential validity of his marriage to Ekua Ahima is governed by the lex domicilii of the parties, that is to say the antenuptial domicile of either party. In other words the validity of this marriage has to be determined not only by the law applicable in the Gold Coast but also by the law applicable in Sierra Leone. The law of Sierra Leone is foreign law which has to be proved as a question of fact and the plaintiff has failed to adduce any evidence to prove that the marriage according to Fante customary law between a native of Sierra Leone and a native of the Gold Coast (now Ghana) at the relevant date was valid. I therefore hold that the plaintiff has failed to prove that the marriage celebrated between his mother and his father was a valid marriage.
[p.4] of [1962] 1 GLR 1
Furthermore the plaintiff’s right to institute this action is set out in paragraph 3 of the statement of claim which reads as follows: “The said L.T.C. Davies was a native of Sierra Leone and, in accordance with the lex successionis, the plaintiff being his eldest legitimate son is the rightful heir and entitled to succeed to every landed property of the deceased on his death intestate and to control and manage same for the benefit of himself and all the other children plus the widow.”
It is patently obvious that the plaintiff is claiming the property in dispute by virtue of his right as the successor to his father the late L. T. C. Davies. The property in dispute is the self-acquired property of the late L. T. C. Davies who died intestate and though the property is situate in Sekondi there is no evidence to show what would be the nature of the law applicable if some foreign law is binding on the parties within the meaning of proviso (b) to section 15 of the Native Courts (Colony) Ordinance.2(2)
See Ekem v. Nerba.3(3) The plaintiff who is a Fante, will not be entitled to succeed to the property of his father according to Fante customary law even if it could be held that his father acquired a domicile in Ghana. Mr. Benjamin contended that the marriage between the parents of tile plaintiff was valid according to Fante customary law and therefore the plaintiff is a person entitled to succeed under section 48 of the Marriage Ordinance4(4) and in support thereof he cited the case Coleman v. Shang.5(5) However the facts are distinguishable in this case because the late L. T. C. Davies never contracted a marriage in accordance with the provisions of the Marriage Ordinance, and therefore the provisions of the Marriage Ordinance will not apply.
For these reasons I uphold the submission of counsel for the defendants and dismiss the plaintiff’s claim and enter judgment in favour of the defendants.
DECISION
Claim dismissed.
Judgment for the defendants.
