WHITTAKER v. CHOITERAM [1971] 2 GLR 267

DIVISION: IN THE HIGH COURT, KUMASI.

DATE: 20 JULY 1971

BEFORE: MENSA BOISON J.

CASES REFERRED TO

(1) Adjei & Dua v. Ripley (1956) 1 W.A.L.R. 62.

(2) Szalatnay-Stacho v. Fink [1947] 1 K. B. 1; 115 L.J. K. B. 455; 175 L.T. 336; 62 T.L.R.573; 90 S.J. 442; [1946] 2 All E.R. 231. C.A.

(3) Manu v. Kuma [1963] 1. G.L.R. 464, S.C.

(4) Quaico v. Fosu, High Court, 11 March 1965, unreported; digested in (1965) C.C. 105.

(5) In re Goodman’s Trusts [1881] 17 Ch. D. 266; 50 L.J. Ch. 425; 44 L.T 527; 29 W.R. 586, C.A.

(6) Coleman v. Shang [1959] G.L.R 390. C.A.; affirmed in [1961] G.L.R. 145; [1961] A.C. 481; [1961] 2 W.L.R. 562; 105 S.J. 253; (1961) 2 All E.R. 406, P.C.

JUDGMENT OF MENSAH BOISON J.

The writ in this matter was taken pursuant to Order 60 r. 21 (2) of the Supreme (High) Court (Civil Procedure) Rules, 1954 (L.N. 140A), to determine who was entitled to the grant of letters of administration to the estate of one Dr. Kenneth Charles Whittaker deceased. The facts are not in dispute and the trial was confined to legal submissions.

The plaintiff, a Ghanaian, was married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to the deceased who died intestate. The intestate, a professor of mathematics at the University of Science and Technology, Kumasi, was English by nationlity. He died at his home at Oxford in England, with Kumasi as his fixed place of abode at the time of his death.

There was no issue of the marriage with the plaintiff. During the subsistence of his marriage the plaintiff, the intestate had two male children outside the marriage by the caveatrix. The two children as admitted are illegitimate. They are Allan Whittaker aged thirteen and Michael Whittaker aged eleven-and-half years. The caveatrix seeks a joint grant of letters of administration with the plaintiff widow because of the interest of her two sons by the intestate as averred in paragraph (10) of the amended statement of defence which,

“is inextricably mixed up with the interest of the successor (and) the defendant contends that as the mother of the children she is the person best suited to represent them and the successor in this matter.” The material issue set down in the summons for directions is:

“Whether or not by entering into concubinary relationship with the defendant while his marriage under the ordinance subsisted, the late Kenneth Charles Whittaker became subjected to the customary law of this country.”

The stand of the plaintiff is a simple one without any gloss. On her behalf it was submitted that under the Marriage Ordinance the widow and the children of the marriage were entitled to two-thirds part of the estate, the remaining one-third portion going to the family of the deceased. That was the case where the deceased was subject to customary law. But as the late Dr. Whittaker was a non-Ghanaian he was not subject to

[p.270] of [1971] 2 GLR 267 customary law. Consequently, the plaintiff as widow took the other one-third part also. Therefore whether as to the two-thirds part or the whole, the plaintiff’s interest entitled her to a grant. Learned counsel for the plaintiff conceded the point that the deceased as the putative father was by customary law under legal obligation to maintain the two children begotten outside his marriage. Counsel, however, contended that the obligation was a personal liability, in the sense that it did not bind the estate to give the two children an interest in the estate, whether the devolution was by customary law or under the provisions of the Marriage Ordinance. It follows in counsel’s submission that the legal right of the children to maintenance, gives them only a right of action against the successor or next-of-kin of the intestate.

For the defendant it was submitted that by contracting concubinary relations with the defendant, an Akan, the deceased subjected himself in this case to Fanti customary law, and agreed to have his transaction arising therefrom governed by customary law. This is counsel’s contention, by virtue of section (48) (1) of the Marriage Ordinance placed one-third part of his personal estate on intestacy to devolve in accordance with customary law; leaving only two-thirds part of his estate to be distributed in accordance with the law of distribution of personal estates in force in England on 19 November 1884. Counsel argues that there being no issue surviving, the widow is entitled to only one-half of the two-thirds, that is to say one-third part of the estate only, with the two-thirds going to the next-of-kin. By reason of their right to maintenance, it is contended that the portion of the next-of-kin inures to the benefit of the children of the defendant and entitles her to a joint grant with the widow.

Learned counsel for the defendant would want to consider the decision in Adjei & Dua v. Ripley (1956) 1 W.A.L.R. 62 as an application of the Courts Decree, 1966 (N.L.C.D. 84), para. 64 (1), r. 2 in support of his contention that the intestate had subject himself to customary law, N.L.C.D 84, para. 64 (1), being in content a replacement of section 87 of the Courts Ordinance, Cap. 4 (1951 Rev.), under which Ripley’s case was decided. Rule 2 of para. 64 (1) of N.L.C.D 84 provides:

“Subject to Rule 1, where an issue arises out of a transaction the parties to which have agreed, or may from the form and nature of the transaction be taken to have agreed, that such an issue should be determined according to the common law or any system of customary law effect should be given to the agreement. In this rule `transaction’ includes a marriage and an agreement or arrangement to marry.” In Ripley’s case, a European was sued for maintenance as the putative father of a child by a Ghanaian woman. It was held that as by native custom a father was primarily responsible for the maintenance of his children, therefore if a man not normally subject to customary law enters into concubinary relations with a native (Ghanaian) woman who has a child by her, his liabilities (and rights, if any) should be determined by [p.271] of [1971] 2 GLR 267 the same rules as would apply in similar circumstances to a man who is subject to customary law. In my view N.L.C.D. 84, para. 64 (1), r. 2 applies to acts of parties of contractual nature, other than devolution of property prescribed by law. That para. 64 (1), r. 2 does not cover this case is evident from the provision in the same paragraph as to the devolution of personal property on death. That is provided by r. 5 of that paragraph, viz: “Subject to Rules 1 to 3, [which are not relevant here] where an issue relates to the devolution of the property (other than land) of a person on his death it should be determined according to his personal law.”

Ripley’s liability to maintain the child was not because he had agreed or was taken to have agreed to be governed by customary law. By his act of having an issue with Madam Dua, he had committed a wrongful act (call it a tort) by the law of the place of commission. It is a principle of the common law that when a tortious act has been entirely committed in England, no foreign element in the case such as the nationality of the parties is relevant to liability and the issue does not concern the conflict of laws: see Szalatnay-Stacho v. Fink [1947] 1 K.B. 1, C.A. That principle will hold good in a tort committed in Ghana. So in imposing the liability for maintenance on Ripley it was irrelevant that he was a European. Consequently the question of having subjected himself to customary law did not in my opinion arise. All that mattered was what was the liability he had incurred by his wrongful act and this I think was underlined in Ripley’s case (supra) at p. 65 of the judgment when the court stated that: “In a case of this sort where there is a natural obligation and responsibility for maintenance-where society and the community are affected I should be particularly reluctant to subscribe to the view that in one country one law should exist for one man and a different law for another, merely on a question of race.” What then is the nature and character of the legal obligation of an Akan father to maintain his children, whether legitimate or otherwise and not qualified by section 48 (1) of the Marriage Ordinance? My answer is, it is a personal liability and not one which binds the estate. The law was stated by the Court of Appeal in Manu v. Kuma [1963] 1 G.L.R. 464 at p. 469, S.C. approving the statement of the law by Ollennu J.S.C. (as he then was) in his book, “The Law of Succession in Ghana” at p.19 when the court said as follows:

“We consider that the responsibility of a successor to maintain and train the child of his predecessor is a legal one, and the right enuring therefrom to the child is different in its nature from a right to succeed to or have a share in the estate of his deceased father.”

(The emphasis is mine). While conceding to this view of the law counsel nevertheless contends that by an extension of their right to maintenance, the share of the next-of-kin as successor may go to the children direct. For this aspect of his proposition counsel referred the court to the decision in Quaico v. Fosu, High Court, Accra, 11 March 1965, unreported;

[p.272] of [1971] 2 GLR 267 digested in (1965) C.C. 105, per Archer J. (as he then was) where the learned judge held that “the interest [of the children] are inextricably mixed up in the indivisible estate and accordingly they are entitled to shares in the estate if ultimately the whole estate is converted into money or partitioned.” It would seem that the case of Manu v. Kuma (supra) was not cited to his lordship then, and with the greatest respect I consider that part of the decision delivered per incuriam.

I therefore hold that the liability of the intestate to maintain the two illegitimate children is a personal liability and that in my opinion Ripley’s case goes no further than enforcing this personal liability. This personal liability, in my opinion, cannot rid a person in the position of the intestate of his personal law. An example in Coleman v. Shang [1959] G.L.R. 390, C.A. will illustrate this point. At p. 401 of that judgment the court stated: “that a person subject to customary law who marries under the Marriage Ordinance does not cease to be a native subject to customary law by reason only of his contracting that marriage.” By the same parity of reasoning I do not see how the intestate could have been shorn of his personal law merely by his contracting the concubinary relationship with the defendant. As I have pointed out, rule 5 of para. 64 (1) of N.L.C.D. 84, provides that issues relating to devolution of movable property of a person on his death, should be determined according to his personal law; that is the law of the domicile of the intestate. This provision of the law is in accord with the principles of English conflict of laws, that succession to personal property of an intestate is governed by the law of domicile. As it is stated by Professor Graveson in his Conflict of Laws (4th ed.) at p. 420: “The law of the domicile of the intestate at the date of his death determines the persons who shall take shares in the movable estate, the proportion of their respective share and their order of succession.” “In In re Goodman’s Trust (1887) 17 Ch.D. 266 is also an authority for the same principle of law.

Again Coleman v. Shang (supra) shows an application of this rule when the construction of the words “leaving a widow or husband or any issue of such marriage” in section 49 (1) of the Marriage Ordinance for the purposes of succession when the English Statute of Distribution applies was held to mean “a widow or husband or issue” of a marriage lawful by the law of Ghana whether customary or otherwise. At p. 406 of the judgment, this is what the court said:

“Under the Statute of Distribution a ‘wife’ means a ‘lawful wife’, and child means `a lawful child.’ The question of ‘lawful wife’ and ‘legitimate child’ are questions of status to be decided by the law of domicile. Therefore, if a marriage between a man and a woman is by the law of their domicile a valid marriage, the ‘wife’ is a lawful wife for purposes of the Statute no matter whether or not the marriage is invalid by the law of England or of any other place. Similarly, if a child is legitimate by the law of the country where at the date of its birth its parents were domiciled, he is a legitimate child for [p.273] of [1971] 2 GLR 267 purposes of the Statute, no matter whether or not that child would be illegitimate by English law. In such cases the law of England recognises and acts on the status declared by the law of domicile, and such persons will be `wife and child’ for the purposes of the Statute of Distribution.”

From the foregoing statements of the law, I hold that succession to the personal property of the late Professor Whittaker under the Marriage Ordinance is governed by his personal law.

There is no material before me that the intestate at the time of his death had changed his domicile. The law applicable then will be the law of intestate succession in England.

Now section 48 (1) of the Marriage Ordinance (so far as is material) provides:

“Subject to the provisions of the succeeding subsection [not material] where any person who is subject to native law or custom contracts a marriage,… in accordance with the provisions of this Ordinance or of any other enactment relating to marriage, … 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… 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 the 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 or the 19th day of November, 1884, any native law on 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.”

Having held that the intestate was not subject to customary law it means if the statute were to apply it will do so without any diminution of a one-third part. That is, as explained in Coleman v. Shang (supra) at p. 404, section 3 of the Statute of Distribution, 1670 (22 & 23 Car. 2, c. 10) would have applied without any qualification. That section provides that if a man dies intestate leaving a widow and issue, the widow is entitled to one-third, and if he leaves a widow and no issue she is entitled to one moiety, the other moiety falling to be distributed amongst the next-of-kin. It follows that were the Statute of Distribution of personal estate in force in England on 19 November 1884, to apply as provided by section 48 (1) of the Marriage Ordinance, the plaintiff, widow by herself, will be entitled to one-half of the estate. Ironically, although the law in this country, harks back to the English laws of pre-nineteenth century with unenviable faithfulness, the law of England itself, the domicile of the intestate, has moved a long way from the statute of 1670 in respect of intestate succession. And it would seem to me that under the law at the time of the death of the intestate the plaintiff has undisputed claim to a grant of letters of administration.

[p.274] of [1971] 2 GLR 267

I do not venture in this proceeding to undertake the distribution. I abide by the injunction in the Privy Council decision in Coleman v. Shang [1961] G.L.R. 145 at pp 151-152, P.C. that that is more appropriate to administration proceedings. I only indicate where the greatest interest lies. The law applicable to intestate succession in respect of this estate seems to be English Administration of Estates Act, 1925 (15 &16 Geo. 5, c.23), as amended by the Intestates’ Estates Act, 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c. 64).

For deaths after 1952, section 46 (1) (i) broadly provides that if the intestate leaves a husband or wife and leaves no issue, parent, etc. or other relatives of the whole blood, the surviving spouse takes the whole of the residuary estate absolutely. In cases where the intestate leaves no issue but a parent or other relatives of the whole blood, then the surviving spouse takes the personal chattels, a sum of £20,000 absolutely and the residuary estate is held as to one-half in trust for the surviving spouse: See Halsbury’s Laws of England (3rd ed.), Vol. 16, pp. 383 and 396, paras. 759 and 765.

The first in order of priority of right to a grant is therefore, in my opinion, the widow of the present intestate.

Accordingly I would enter judgment for the plaintiff and declare her as the person entitled to a grant of letters of administration to the estate herein.

There will be costs of N¢80.00 against the defendant to be paid out of the estate.

DECISION

Judgment for the plaintiff.

[Reported by S. Osafo LL.B (GHANA).]