Choice of law in Ghana case law.

Customary law is prescribed to come in only when, at least, one party to the transaction is an indigenous person, a “native,” as he is designated by successive ordinances constituting the superior courts from time to time and providing for their exercise of jurisdiction.

BRITISH BATA SHOE CO., LTD. v. ROURA & FORGAS LTD. [1964] GLR 190 [1964] SLR (SC) 8 · Supreme Court · 1964 · ADUMUA-BOSSMAN JSC

It is necessary therefore that when an action is governed by rule 6 a plaintiff who wishes to avoid the effect of the general rule should make a clear-cut and positive assertion that he does not wish his claim to be adjudicated in terms of the common law. The choice is that of the plaintiff, not that of the court, and must be made in clear and precise terms.

KYEI v. DONKOR [1974] 1 GLR 366 [1973] SLR (CA) 3 · Court of Appeal · 1973 · ANNAN JA

The question of choice of law in Ghana relating to a deceased foreigner's estate, which is determined by the conflict of law rules, has been settled in the case of Youhana v Abboud [1974] 2 GLR 201 to be the law of the domicile of the deceased at the time of death which in this case is Italian Law.

Florini Luca & Anor v Samir & 2 Ors NO. J4/49/2020 [2021] SLR (SC) 2 · Supreme Court · 2021 · PWAMANG JSC

Then general rule or principle of private international law which has been recognised and enforced by the courts in Ghana is that every question as to the devolution of immovable estates in Ghana of persons of foreign origin dying while domiciled abroad is governed by the lex situs or the law of the place where the immovables are situated. The application of this rule or principle involves consideration of the further question of the meaning or scope of the lex situs, and the choice in the present case is between the law of Ghana as the law of the place where the real estates in question are physically situated and the law of the place of domicile of origin of the deceased brothers who died possessed of several houses situated in parts of Ghana, namely, the law of the Lebanon.

YOUHANA v. ABBOUD [1974] 2 GLR 201 [1974] SLR (CA) 4 · Court of Appeal · 1974 · LASSEY JA

After a careful study of the opposing points of view expressed by various judges in our courts on the subject of the right of succession to the real property in Ghana of a deceased foreigner, there is no doubt that the few reported cases dealing with the question show that the judges in the early times were not to accept and apply the restricted interpretation of the lex situs principle, unless it has been shown by the particular facts of the case that the deceased foreigner during his long residence in Ghana merged with the indigenous people of his new place of settlement and adopted their ways of life and customs so as to be regarded as belonging to a particular tribe in Ghana. In that event, after the death intestate of the deceased foreigner, succession to his real estate should be governed by the tribal rules of his place of adoption and settlement.

YOUHANA v. ABBOUD [1974] 2 GLR 201 [1974] SLR (CA) 4 · Court of Appeal · 1974 · LASSEY JA

It seems to me that in Ghana, the personal law of a deceased person has always governed the devolution of his estate whether it is immovable or movable. That has always been the law even before the rules in section 66 of the Courts Act, 1960, were first reduced into statutory form.

YOUHANA v. ABBOUD [1974] 2 GLR 201 [1974] SLR (CA) 4 · Court of Appeal · 1974 · LASSEY JA

But the true basic principle remains that Ghana law is the lex situs and on each occasion, the court attempts to find the personal law of the deceased and applies it. If it cannot ascertain the personal law, then it adapts the customary law of the area in furtherance of justice. Indeed, these principles are now embodied in Rules 2 and 4 of section 49 (1) of the Courts Act, 1971, which read respectively as follows: “In the absence of any intention to the contrary, the law applicable to any issue arising out of the devolution of a person’s estate shall be the personal law of that person.” “In applying [Rule] 2 ... to disputes relating to titles to land due regard shall be had to any overriding provisions of the law of the place in which the land is situated.”

YOUHANA v. ABBOUD [1974] 2 GLR 201 [1974] SLR (CA) 4 · Court of Appeal · 1974 · LASSEY JA

Now this agreement having been entered into in England it must be presumed that the law of the place where the agreement was made is prima facie that which the parties intended should govern the interpretation of words and phrases appearing in the agreement. In other words that the term freehold property should be understood and taken to mean what it implies in English law.

BRITISH BATA SHOE CO., LTD. v. ROURA & FORGAS LTD. [1964] GLR 190 [1964] SLR (SC) 8 · Supreme Court · 1964 · ADUMUA-BOSSMAN JSC

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 domicil. Therefore, if a marriage between a man and a woman is by the law of their domicil a valid marriage, the “wife” is a lawful wife for the 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 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 domicil, and such persons will be “wife and child for the purposes of the Statute of Distribution.

COLEMAN v. SHANG [1959] GLR 390 [1959] SLR (CA) 48 · Court of Appeal · 1959 · VAN LARE AG CJ

That attitude has been that the court has invariably construed or interpreted every document reasonably strictly, giving it such effect only as it is capable of having by the strict application of the principles or rules of (1) English law, where the document is relied on as constituting a transaction known and recognised by English law; or (2) customary law, where, the document is relied on as evidencing a transaction known and recognised only by customary law.

BRITISH BATA SHOE CO., LTD. v. ROURA & FORGAS LTD. [1964] GLR 190 [1964] SLR (SC) 8 · Supreme Court · 1964 · ADUMUA-BOSSMAN JSC

In other words, the rule provides that (subject to rule 1) the parties to a transaction are free to regulate either the whole or part of their transaction by either the common law or customary law, and that the court should give due effect to their agreement (if any) to regulate their transaction by either the common law or customary law as the pleadings and evidence in a particular case may indicate. The evidence and pleadings in this case overwhelmingly pointed to the common law as the mutually intended determinant system of law for the transaction; and it is our considered opinion that the learned judge erred in holding otherwise.

ASARE v. ANTWI [1975] 1 GLR 16 [1975] SLR (CA) 4 · Court of Appeal · 1975 · ANIN JA

Turning, however, to consider that substantial ground, it seems plain that the learned judge, with respect, was palpably in error in applying customary law to the construction or interpretation of transactions between non-indigenous residents of the country especially when those transactions were embodied in formal conveyances in English form. Even as between indigenous persons, it has been indisputably established from an early stage in the history of the former Supreme Court, and by a long line of cases, that the employment or use by them of documents in English form to effect or make their transactions, raises an almost conclusive presumption that they have adopted English law, to regulate their rights and obligations arising out of those contracts.

BRITISH BATA SHOE CO., LTD. v. ROURA & FORGAS LTD. [1964] GLR 190 [1964] SLR (SC) 8 · Supreme Court · 1964 · ADUMUA-BOSSMAN JSC