IN RE CANFOR (DECD.); CANFOR v. KPODO [1968] GLR 177

DIVISION: HIGH COURT, ACCRA

DATE: 23 FEBRUARY 1968

BEFORE: OLLENNU J.A.

NATURE OF PROCEEDINGS

ACTION by the plaintiff, claiming as the lawful widow of her deceased husband for the grant of letters of administration in respect of his estate. The facts are fully set out in the judgment of Ollennu J.A. sitting as an additional judge of the High Court.

COUNSEL

Odoi for the plaintiff.

Defendants in person.

JUDGMENT OF OLLENNU J.A.

The proceedings in this case began with an application by the plaintiff for the grant of letters to administer the estate of her deceased husband, the late Sydney Signate Canfor. Caveat was entered to the application by the defendants, the mother and uterine brother respectively of the late Canfor. The parties were unable to agree on the person or persons to whom grant of letters of administration should be made; therefore, the court, in pursuance of Order 60, r. 21(2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), ordered the plaintiff to issue a writ of summons against the defendants. [p.179] of [1968] GLR 177

By the writ of summons so filed, the plaintiff claimed a declaration that she is the lawful widow of the deceased, and that as such widow, she together with her children, issues of her marriage with the deceased, are entitled to two-thirds share of the estate of the deceased, and that she is therefore the proper person to whom letters of administration should be granted in respect of the estate. In support of her claim the plaintiff pleaded in paragraphs (2) and (3) of her statement of claim as follows:

“(2) On 19 May 1943 the plaintiff lawfully contracted a civil monogamous marriage at Lome in the Republic of Togo (then the French Colony of Togo) under the laws prevailing in the said country at that time, and

(3) The civil marriage was subsequently followed by a religious marriage in the Roman Catholic Church at Lome on 23 May 1943.”

The defendants do not deny that the plaintiff was married to the deceased, but they have contended throughout the proceedings that the civil marriage in question is potentially polygamous and that the deceased did exercise his right under that system of marriage to marry more than one wife, by marrying one Madam Margaret Akrobotu and that there are two issues of that second marriage. The defendants pleaded that the father of the late Canfor, who was an Englishman, left this country when the deceased was only a toddler, and has never been heard of since. They further pleaded that the family to which the late Canfor belonged, by customary law, has appointed the second defendant successor to the deceased, and consequently he, the second defendant, is the proper person to be granted letters of administration in respect of the estate. These positive averments of the defendants are set out in clear terms in paragraphs (1), (2), (3) and (4) of the statement of defence. Paragraphs (1) and (2) of the statement of defence are as follows:

“(1) Save that the defendants admit that the late Canfor married the plaintiff by a particular civil ceremony at Lome which is potentially polygamous and that there are two issues of the said marriage-paragraphs (1)-(5) of the statement of claim are denied.

(2) The defendants aver that the marriage contracted between the plaintiff and the late Canfor was a customary marriage which entitled late Canfor to marry other women according to custom and that late Canfor did exercise his right to marry another woman by subsequently marrying in Ghana Miss Margaret Akrobotu of which marriage there are two surviving children.” [p.180] of [1968] GLR 177

The only reply filed by the plaintiff to these allegations of fact states:

“(1) The plaintiff joins issue with the defendants on their defence.

(2) The plaintiff denies paragraph (2) of the defendants’ statement of defence and says that the defendants have attempted unsuccessfully to put forward the same contention in the court in Lome in the Republic of Togo.”

Upon summons for directions, the following issues were set down for trial at the request of the plaintiff:

“(a) Whether or not the plaintiff is the lawful widow of the deceased.

(b) Whether or not the plaintiff is entitled to the reliefs sought.”

A few preliminary legal points should be clarified. Firstly since the father of the late Canfor was a stranger who sojourned in the country only for a short time, and has no family here in Ghana the late Canfor belongs to his mother’s (the first defendant’s) family for purpose of succession. Secondly, since the deceased was a Ghanaian, domiciled here in Ghana, and his estate, real and personal are situated in Ghana, succession to his estate will be regulated by the Ghana law of succession. Thirdly, marriage under customary law is a lawful marriage in Ghana. In this connection it should be pointed out that the defendants do not deny the validity of the marriage between the plaintiff and the deceased; in other words, they do not dispute that the marriage took place, and that the forms and ceremonies for entering into that marriage in Togo were observed, all they contend is that the marriage so entered into, is marriage under Togo customary law. The contention of the defendants is that that form marriage does not operate to give a surviving spouse of such a marriage, an interest upon intestacy in the estate of a deceased spouse, which should entitle the survivor to administer the estate of the deceased spouse. Fourthly, the only form of marriage which in this country gives a surviving spouse and issue thereof such interest in the estate of a deceased spouse as may entitle the surviving spouse to grant of letters of administration in respect of the estate, is marriage under the Marriage Ordinance, Cap. 127 (1951 Rev.), s.48(1) and (2) of which provide that: “Where any person who is subject to native law or custom contracts a marriage, whether within or without the Gold Coast, in accordance with the provisions of this Ordinance or of any other enactment relating to marriage, or has contracted [p.181] of [1968] GLR 177 a marriage prior to the passing of this Ordinance which marriage is validated hereby, 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; And also where any person who is issue of any such marriage dies intestate on or after the said 15th day of February, 1909, 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 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 on the 19th day of November, 1884, any native law or 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: Provided—

(i) That where by the law of England, any portion of the estate of such intestate would become a portion of the casual hereditary revenues of the Crown, such portion shall be distributed in accordance with the provisions of the native customary law, and shall not become a portion of the said casual hereditary revenues;

(ii) That real property, the succession to which cannot by the native customary law be affected by testamentary disposition, shall descend in accordance with the provisions of such native customary law, anything herein to the contrary notwithstanding.

(2) Where such a person dies in the circumstances mentioned in the preceding subsection, but on or after the 1st day of December, 1950, the property therein mentioned shall devolve upon the administrator of such deceased person’s estate upon trust to sell the same and to divide the proceeds of the sale thereof in the manner provided in the proceeding subsection.” The term “any other enactment relating to marriage” appearing in the section must be interpreted to mean any Ghanaian enactment other than the Marriage Ordinance. Therefore to succeed in her claim, the plaintiff must prove that her marriage with the late Canfor, was contracted in accordance with provisions of the Marriage Ordinance, Cap. 127 or of any other Ghanaian enactment relating to marriage, or that her said marriage under any other system has been validated by section 45 of that Ordinance, or that there is [p.182] of [1968] GLR 177 some provision of law which makes it a marriage under the Marriage Ordinance.

Now that part of the proceedings containing all the evidence which the plaintiff led on the issue of her entitlement to grant of letters of administration is as follows:

“The late Sydney Signate Canfor was my husband. He died on 6 January 1965. We were married on 19 May 1943. We were married in Lome, we had a civil or court marriage on 19 May 1943, and followed it up with a Church ceremony on 22 May 1943. Certificates were issued to us both by the court and by the Church. I tender the Church certificate, in French with English translation attached thereto … Court: Certificate and translation admitted and marked exhibits Al & 2. The Church certificate in French is also admitted without objection and marked exhibit B1. Counsel for the plaintiff undertakes to provide an English translation of exhibit Bl.

Witness continues: Banns of the marriage were published at Accra, Keta, Hohoe and Lome, this is with respect to the Church ceremony. I produce certified extract of the publication of the banns in French.

Mr. Olaga: We are not in a position to object at this stage, the document being in foreign language.

Court: Admitted for what it is worth and marked exhibit C1.

Witness continues: Photographs were taken after the religious ceremony. I produce one of them.

Court: Admitted for what it is worth and marked exhibit D.

Witness continues: My mother-in-law, i.e., the first defendant appears in that photograph. There are two issues of the marriage.”

Exhibit 2 is the English translation of exhibit A1. The English translation of the certificate in French of the marriage reads:

“MARRIAGE CERTIFICATE

Date of marriage: 19th May, 1943 at 15.30h at Lome, Togo,

Between:

(1º) (1) Sydney Signate Canfor, clerk, born at Keta Gold Coast on the 14th August, 1918, residing in Accra. and (2º ) (2) Nathalia Caesar Olympio, school teacher, born at Adidome Gold Coast on the 5th March, 1920, residing at Hohoe (British Togoland)-Declaration No. 42 of

19th May, 1943.

LOME, 19th May, 1943,

The Colonial Secretary,

Sgd. F. GUILLOU.”

[p.183] of [1968] GLR 177

Learned counsel for the plaintiff relying upon a passage in Tolstoy, The Law and Practice of Divorce (5th ed.) at p. 106, contended that the certificate, exhibits Al and 2 must be deemed to have been issued only after all the formalities of the marriage had been gone through, and therefore this marriage celebrated in a foreign country be held to be valid, and further that the court must hold that that form of marriage is a strictly monogamous marriage. The second point, counsel said, is further supported by the fact that the civil marriage was followed by a church ceremony. Counsel consequently submitted that once the marriage is a valid foreign marriage, the provisions of the Ordinance should be applied to it. If the law in Ghana had recognised one and only one system of marriage as a legal marriage, this submission of counsel would have had impressive force, but that is not the case. Now there are three answers to the submission made by learned counsel. The first point is that, as earlier pointed out, the defence do not question the validity of the marriage. The second is that there is nothing on the form of the certificate to show that the marriage is strictly monogamous; the church ceremony is nothing more than an act of recognition by the church of the marriage status of the parties for purposes of full membership of the church, be that marriage, a marriage under the Ordinance or a marriage under customary law: see Graham v. Graham, Divisional Court, 8 November 1955 (unreported). The third is that the mere fact that a marriage is strictly monogamous, does not by itself automatically make it a marriage under the Marriage Ordinance, carrying all the incidents of a marriage under that Ordinance; no enactment has been referred to which makes every foreign monogamous marriage under the Ordinance; and no authorities have been cited to me to support the statement that a strictly monogamous marriage celebrated under a foreign law whether enacted or indigenous, must be deemed to be a marriage under the Marriage Ordinance. Significantly enough when it was suggested to the plaintiff that the form of marriage she went through was a customary marriage registrable under Togo law, she replied that she did not know what form of marriage it was.

The purpose of section 48 of the Marriage Ordinance, Cap. 127, is to deprive families of Ghanaians married under that Ordinance, of rights vested in them under customary law, to succeed to the whole of the estate of a deceased member of the family. That being the case, that section could not be interpreted to apply to any family, person, or persons except where, by the clear terms of that section, it is shown [p.184] of [1968] GLR 177 that such deprivation is intended. Finally foreign law is a question of fact to be pleaded and proved. The plaintiff did not plead and did not prove what the Togo law is under which she married. She put in evidence exhibits El and E2 an extract, in French, and English translation, from the minutes of the Record Office of the Customary Court of the First Instance of Lome, Togo in connection with proceedings taken in that court by the plaintiff to discharge an order the court had earlier made, confirming certain arrangements made by the Canfor family for the administration of Canfor estate. Those minutes are not of much evidential value as they are inadmissible in proof of the effect of the marriage; their relevance is to the appointment of the second defendant as successor to the deceased. We do not know what jurisdiction and powers the Customary Court of Togo has. One thing is certain, and that is that it has no jurisdiction to make any order for the administration of the estate of the late Canfor, a Ghanaian, domiciled in Ghana, and the whole of whose estate is situate in Ghana. The result is that the plaintiff has failed to prove that she is entitled to the declaration and the order she seeks. On the other hand the averment made by the defendant that he had been properly appointed successor to the deceased was not denied, and the evidence he led in proof too was not challenged. That evidence satisfies me that as between the plaintiff and the second defendant, the latter is the proper person entitled to grant of letters of administration to administer the Canfor estate. But the second defendant has not applied and did not counterclaim for letters. Therefore if he wants them, he will have to apply in the usual way. In the result, the plaintiff’s claim is dismissed and judgment entered thereon for the defendants with costs fixed at N¢100.00 paid out of the estate.

DECISION

Judgment for the defendants.

G. K. G.