It will be observed that, by section 25(1)(a), the law merely permits such a course if the Land Judge deems it desirable; whereas, by section 25(1)(b) it is mandatory, but only when a question of native customary law is essential for the determination of the claim. In my opinion, the learned Judge was not required in the circumstances to invoke the aid of an assessor or assessors, and was therefore competent to try the case without an assessor.
Section 87: native law and custom in causes between natives and non-natives
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.
Having regard therefore to the circumstances that the three controversial conveyances were in the form usual and normal to English conveyances and also that they were between non-indigenous residents, or non-natives, of Ghana, i.e. Lebanese merchants, it seems sufficiently clear that it is this latter portion of section 87 which was strictly relevant to the determination of the legal issue of construction which arose in connection with the said conveyances; and it seems equally clear also that customary law had no application, but that it was rather the common law which was properly applicable.
Section 87(1): law applicable to a person married under the Marriage Ordinance
We are of opinion 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. The customary law will be applied to him in all matters, save and except those specifically excluded by the statute, and any other matters which are necessary consequences of the marriage under the Ordinance. Consequently, when such a person has a case in Court, native law and custom would be deemed to be the law applicable to that cause or matter, as provided under section 87(1) of the Courts Ordinance. We think it would be unreasonable, and repugnant to natural justice, to hold otherwise, as such a proposition would in effect exclude from access to Native Courts all persons married under the Ordinance, because it would follow from such an opinion that they had by their marriage choice elected to make themselves “non-natives”. To state the matter in this away clearly indicates the absurdity of the proposition, and its inherent improbability.
By section 87 (1) of the Courts Ordinance the only limitation which a marriage under the Marriage Ordinance can place upon a person’s right to have his case or matter determined in accordance with customary law, is in matters relating to his said marriage, and to such matters only during the subsistence of such marriage, save as where otherwise provided by law. Thus he cannot contract a valid marriage under the Ordinance while his marriage under customary law subsists, nor can he contract a valid marriage under customary law during the continuance of a marriage he has contracted under the Ordinance (section 44), and consequently he cannot, during the continuance of his marriage under the Ordinance, have a legitimate child except by the wife of the said marriage (section 49).
