IN RE BLANKSON-HEMANS (DECD.); BLANKSON-HEMANS vs. MONNEY AND ANOTHER [1973] 1 GLR 464

CASES REFERRED TO

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

(2) Gym v. Insaidoo, High Court, Sekondi, 10 August 1965, unreported.

NATURE OF PROCEEDINGS

ACTION to determine who was entitled to the grant of letters of administration in respect of the estate of the late Dr. Gabriel Blankson-Hemans. The facts are fully stated in the judgment.

COUNSEL

C. F. Hayfron-Benjamin for the plaintiff.

Jonathan Arthur for the first defendant.

Obeng (for Joe Reindorf) for the second defendant.

JUDGMENT OF KORANTENG-ADDOW J.

The plaintiff in this suit is the wife of the late Dr. Gabriel Blankson-Hemans. She was married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to the deceased on 27 December 1963. As the marriage certificate (exhibit A) states, before the solemnization of the marriage she had already been married under native custom to the deceased for some years. The deceased was an Akan.

After the death of her husband the plaintiff applied to the court for letters of administration to enable her to administer the estate of the deceased. When her application was filed the first caveatrix, the mother of the deceased, caveated. Claiming in her capacity as head of family she contended that she was the proper person to be granted letters of administration. The second caveatrix also caveated, claiming to be a widow of the deceased and also as the proper person to administer the estate.

As the plaintiff and the two caveatrixes failed to agree as to which of them should be granted letters of administration, in compliance with Order 60, r. 21 (2) of the Supreme [High] Court (Civil Procedure)

Rules, 1954 (L.N. 140A), I ordered a writ to issue.

Being married under the Marriage Ordinance and having five children with the deceased there was no doubt as between the plaintiff and the first caveatrix, which of the two of them had a greater interest

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in the estate and therefore, as to which of the two had a greater claim to the administratorship. The wife and children according to the laws of this country, are entitled to two-thirds of the estate and the family (the customary family) to one-third: see Coleman v. Shang [1959] G.L.R. 390, C.A. But it was the case of the first caveatrix that because of the presence of the children (minors) in the matter, in obedience to the provisions of section 77 of the Administration of Estates Act, 1961 (Act 63), a second person must be appointed as joint administrator with the plaintiff. It was further urged on her behalf that she and nobody else ought to be appointed the co-administrator. I would have found a short answer for her but the other complication in the matter forced me to order the issue of the writ. The second caveatrix’s stand in the matter, namely, that she was married under the customary law to the deceased some time in 1961, and also that she has a son with the deceased and was therefore a widow of equal standing with the plaintiff raised some problems. Her claim was that being also a widow and having a child with the deceased she was as much entitled to a grant of letters of administration as the plaintiff.

If the plaintiff and the second caveatrix were both married under the customary law to the deceased and both marriages were subsisting in 1963 the marriage between the plaintiff and the deceased solemnized under the Marriage Ordinance, Cap.127 (1951 Rev.), would have been a nullity in law. As section 42 of Cap. 127 says in part:”

“No marriage . . . shall be valid . . . where either of the parties thereto at the time of the elebration of such marriage is married by native law or custom to any person other than the person with whom such marriage is had.”

But the fact of the second caveatrix being ever married under native custom to the deceased was denied by the plaintiff. And that fact was thus thrown into issue. The second caveatrix had the onus to establish it.

The second caveatrix did not give evidence. Perhaps it was not necessary on her part to do so, because as her counsel put the matter at the trial the basis of her claim was legal: no marriage was ever celebrated between her and the deceased but she lived with and took care of the deceased for some months and in that period had a child with the deceased. It was from those circumstances that it was urged upon the court to construe the customary marriage which was alleged in the pleadings to have taken place in 1961. The fact that the second caveatrix lived with the deceased and had a child with him is not in dispute. The plaintiff got to know of the child and does not dispute his paternity. The first caveatrix also knows the child. She said in her evidence that on one occasion when she paid her son a visit at Bekwai the son introduced the second caveatrix to her as a woman who was living with and taking care of him. The first caveatrix said also in her evidence that it was she who performed the naming ceremony of the boy. The question then is whether marriage under the customary law can be inferred from the circumstances of the matter.

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There is no principle of the customary law which, as far as I am aware, says that after a man has lived in a state of concubinage for some time with a woman their relationship should be deemed to have ripened into marriage. For all I know, even though a polygamous society, the customary law of Ghana puts a high premium on and encourages people to contract marriages. Concubinage is frowned upon. As Sarbah puts the matter in his Fanti Customary Laws (3rd ed), p. 51:

“A woman living with a man as concubine mistress, or friend, is not encouraged in the eyes of the Customary Law, which stamps the relationship as immoral, to be remedied as quickly as possible. But women are frail, though the desire to have issue is keen in them, and men are deceivers ever. If a man therefore will not be properly and honourably married to a woman but will for his own purposes keep her and live upon her labour, she is at liberty to terminate the immoral relation at any time she pleases, and she shall not be liable to return to him anything whatsoever he may have given or entrusted to her for safe keeping, sale or any purpose whatsoever.”

It is my considered view that when the fact of marriage is in dispute as it is in this case, it has to be proved strictly and affirmatively like any other disputed fact. It does not have to be inferred. I had occasion to discuss this matter in some detail in my judgment in the case of Gym v. Insaidoo at the High Court, Sekondi, 10 August 1965, unreported. To clinch the matter, however, let us refer to Sarbah again. At p. 51 of his book-the same edition-he says, “Where a person living with a woman as his concubine wishes to marry her, he is bound to pay to the family of the woman satisfaction money, which can be waived, before giving the consawment …” Consawment is any money or token and a piece of cloth for the purpose of betrothal. From the above quotation it is obvious that a man living in concubinage has to atone for his transgression before beginning the customary rites leading to marriage. The assertion in the pleading of the second caveatrix, namely, that the customary marriage between herself and the deceased took place in 1961 looked rather positive and should have been amenable to positive proof. But no such proof was possible. The submissions of Mr. Obeng, learned counsel for the second caveatrix, that is to say, that marriage should be inferred is clearly not in line with her pleadings and should not be countenanced. It was not alleged in the pleadings that the fact of marriage should be inferred from the conduct of the parties or their reputation. The pleadings said categorically that the marriage took place at a specific time in 1961. I am therefore to hold that no marriage was ever solemnized between the second caveatrix and the deceased.

Having come to that conclusion, I am also to hold that no customary marriage subsisted between the second caveatrix and the deceased in 1963-the time the plaintiff and the deceased were married under the Marriage Ordinance. And again I hold that the second caveatrix is not

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a lawful widow of the deceased. After holding as I have done, I cannot but hold also that the child born to the second caveatrix and the deceased cannot be legitimate in the eyes of the law. As stated in Coleman v. Shang [1959] G.L.R. 390 at p. 406, by the Court of Appeal “Under the Statute of Distribution, a `wife’ means a `lawful wife,’ and child means `a lawful child’.” The son of the second caveatrix therefore fails to qualify for a portion in the share of the widow and children.

As he was acknowledged by his father under the customary law, the son of the second caveatrix may be regarded as a full-blooded son of his father. He is probably entitled to all the rights of a son in the Akan society. After all he is not a member of his father’s family. He is a royal in his mother’s family. In his minority, however, he is the responsibility of his father and in his absence his father’s successor. He is entitled to look up to him for his maintenance, education and care. See p. 50 of Sarbah’s Fanti Customary Laws where all the incidents are enumerated. His position is, however, not identical with the illegitimate children in Coleman v. Shang (supra). The succession involved in that case was not matrilineal. It was patrilineal.

After eliminating these intermediate problems I have come back to where I started. I am left with the first caveatrix and the plaintiff. I have to decide which of the two is better entitled to the grant of letters. In doing so I have to fall back on the old criterion of deciding the issues by the yardstick of the magnitude of the interest of the respective parties.

As the family’s share is one-third of the estate, and the wife and children’s share is two-thirds, I shall order that letters issue in favour of the wife-the plaintiff in this case. I do not see any wisdom in appointing the first caveatrix a joint-administrator; in the first place the share to be administered falls outside the share of her family. It has nothing whatsoever to do with the caveatrix or any member of her family. Again there would seem to be no love lost between her and the plaintiff. The first caveatrix herself confesses to that. She said in her evidence that she is not on speaking terms with her. It would be simply impossible for the two of them to agree on anything. And I do not think the position would be any the better by appointing any other member of the caveatrix’s family as joint administrator. I would rather, therefore, appoint the senior registrar of this court as the joint administrator to assist the plaintiff.

The senior high court registrar was appointed a preservator of the property (the estate) earlier on in these proceedings by Taylor J. No fee was named for him. I would order now that for his services he be paid three per cent of the value of the estate.

DECISION

Judgment for the planting.

Application granted.

S.E.K.