ADMINISTRATION OF ESTATES - Letters of administration - Grant of
representation - Law applicable - Customary law or Marriage Ordinance - Intestate
married under Marriage Ordinance after dissolution of two customary marriages Subsequent marriage under customary law after dissolution of Ordinance marriage - No
issue of Ordinance marriage - Intestate survived by issues of customary marriage Whether children of customary marriages entitled to grant in preference to customary
successor - Marriage Ordinance, Cap. 127 [1951 Rev.], s. 48 (1) Ankomah-Sey v.
Embra-Quansah [1971] 2 GLR 274, CA
ANKOMAH-SEY v. EMBRA-QUANSAH [1971] 2 GLR 274-280
IN THE COURT OF APPEAL
5 JULY 1971
AZU CRABBE J.S.C., LASSEY AND SOWAH JJ.A.
Administration of estates—Letters of administration—Grant of representation—Law
applicable—Customary law or Marriage Ordinance—Intestate married under Marriage
Ordinance after dissolution of two customary marriages—Subsequent marriage under
customary law after dissolution of Ordinance marriage—No issue of Ordinance
marriage—Intestate survived by issues of customary marriage—Whether children of
customary marriages entitled to grant in preference to customary successor—Marriage
Ordinance, Cap. 127 (1951 Rev.), s. 48 (1).
HEADNOTES
The deceased married four times in his life-time, each marriage taking place after the
dissolution of the previous one. The first, second and fourth of the marriages were
contracted under customary law and the third under the Marriage [p.275] Ordinance,
Cap. 127 (1951 Rev.). There were five issues under the first two marriages, one of
whom was the appellant, but none under the last two. On his death intestate, his
customary successor, the respondent, applied to be granted letters of administration in
respect of his estate. The appellant caveated, claiming that all the children who were
together entitled to four-ninths share of the deceased's estate had a greater proportion
of the estate and therefore by virtue of Cap. 127, s. 48 (1), she, as their representative,
was better entitled to the letters of administration. The respondent's counsel took
originating summons before the High Court for the determination of the questions (1)
whether Cap. 127 applied to the case and (2) if it applied, whether the appellant was
better entitled to the letters of administration. Owusu J. ruled against the appellant (see
(1970) C.C. 32). Against that ruling she appealed to the Court of Appeal.
Held, dismissing the appeal: for the Marriage Ordinance, Cap. 127 (1951 Rev.), s. 48
(1) to apply to the distribution of a deceased's estate, there should be (1) a valid
marriage under Cap. 127 and (2) the survival of a widow or issue of such marriage. In
the present case, there was no issue under the Ordinance marriage which was validly
dissolved in the deceased's lifetime. Cap. 127 was consequently inapplicable to the
case and the estate was to be distributed in accordance with customary law. Dicta of
van Lare J.A. and of Lord Tucker in Coleman v. Shang [1959] G.L.R. 390 at p. 405, C.A.
and [1961] G.L.R. 145 at p. 148, P.C. applied. Bamgbose v. Daniel (1954) 14 W.A.C.A.
116, P.C. cited.
Judgment of Owusu J. digested in (1970) C.C. 32 affirmed.
CASES REFERRED TO
(1) 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; [1961] 2 All E.R. 406, P.C.
(2) Bamgbose v. Daniel (1954) 14 W.A.C.A. 116; [1955] A.C. 107; [1954] 3 W.L.R. 561;
[1954] 3 All E.R. 263, P.C.
NATURE OF PROCEEDINGS
APPEAL against a ruling of the late Owusu J. wherein he ruled that the respondent was
the person entitled to be granted letters of administration to administer the estate of the
late George Edward William Quansah.
COUNSEL
A. K. B. Ampiah for the appellant.
K. A. Sarpong for the respondent.
JUDGMENT OF AZU CRABBE J.S.C.
This is an appeal from the decision of the late Owusu J. whereby he declared that the
respondent, as the customary successor, was alone entitled to the grant of letters of
administration in respect of the estate of the late George Edward William Quansah
(hereinafter referred to as the deceased) of Cape Coast, who died intestate at Tema on
20 January 1968.
The proceedings in this case were commenced on 6 August 1968 with the filing in the
High Court, Cape Coast, by the respondent of an originating summons under the
Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A,), Order 54, r. 4 for the
determination of the following questions:
"(i) The interpretation of section 48 (1) of the Marriage Ordinance, Cap. 127 (1951
Rev.);
[p.276]
(ii) 'Whether leaving a widow or husband or any issue of such marriage' means such
marriage contracted under the Ordinance alone or it embraces marriage contracted
under customary law.
(iii) If the interpretation of the said section means marriage under the Ordinance alone,
whether in the instant case, the applicant as the brother and the person validly
appointed as successor to George Edward William Quansah deceased, under native
law and custom, is not the proper person entitled to a grant of letters of administration to
administer the said estate in preference to the caveatrix Christina Ankoma-Sey, who is
an issue of customary law marriage."
On 27 August 1968 the appellant entered a caveat, and on 25 November 1968 the
respondent in pursuance of Order 54, r. 6 (1) filed a notice of appointment to hear the
originating summons. Subsequently pleadings were ordered and filed, and the issues
agreed upon for trial were formulated as follows:
"Whether or not the case should not be set down for legal argument as to which of the
parties should be granted letters of administration since the defendant caveated on her
own behalf and on behalf of her brothers and sister and since the plaintiff on the
pleadings having admitted that the intestate during his lifetime contracted a valid
marriage under the Marriage Ordinance of the Gold Coast (now Ghana) and having also
admitted on the pleadings that the defendant and her said brothers and sister are the
children of the intestate born out of a valid customary marriage."
The facts are not in dispute, but the contest between the parties is whether the
respondent, who claims as the customary successor of the deceased, is the one entitled
to the grant of letters of administration or the appellant, who claims to represent all the
children of the deceased. The following statement of the relevant facts are taken from
the judgment of Owusu J.:
"The plaintiff is the customary successor of the late George Edward William Quansah,
and the defendant the daughter of the said George Edward William Quansah,
deceased. During the lifetime of the late Quansah, he married Madam Beatrice Nartey,
alias Ewura Efua Korkor, under native law and custom; this marriage was later
dissolved with one issue named George Spio Quansah alias Papa Kwesi Quansah.
After the dissolution of this first marriage, the late George Edward William Quansah
again married Madam Jane Adabie alias Akyire, under native law and custom. This
marriage was also later dissolved with four issues, namely, Robert Spio Quansah alias
Kwamina Quansah, an army officer presently studying in the United Kingdom, Mrs.
Christina Ankoma-Sey alias Christina Spio Quansah, the caveatrix-defendant herein
and a school-teacher, Jacob Wilson Sey Quansah, alias Nana Benyin, a carpenter by
profession and Miss Georgina Spio Quansah, a petty trader. The late George Edward
[p.277] William Quansah married one Miss Mary Baffoe, alias Aba Safu, under the
Marriage Ordinance on 4 October 1947 at the Anglican Church, Takoradi, after the
dissolution of the two customary marriages. There was no issue and this third marriage
was also dissolved at the High Court, Sekondi, on or about 16 November 1961. For the
fourth time, the late George Edward William Quansah married Madam Nancy Andrews,
alias Efua Bebowusiwa, also under native law and custom. Madam Nancy Andrews
lived with the deceased up to the time of his death, but there was no issue of the said
marriage."
The main ground upon which the appellant opposed the application by the respondent
for letters of administration was that the children of the deceased, whom she
represented, were together entitled to four-ninths share of the estate of their late father,
and that since the children were entitled to a greater proportion of the estate of the
deceased, the appellant was better entitled to a grant of the letters of administration as
against the respondent.
This case once more raises interesting problems under the Marriage Ordinance, Cap.
127 (1951 Rev.), but so far as I can see, these have been settled by the decisions of the
Ghana Court of Appeal and the Privy Council in Coleman v. Shang [1959] G.L.R. 390,
C.A. and [1961] G.L.R. 145, P.C. The two questions raised here are (1) whether the
Marriage Ordinance applies, and (2) if it applies, whether the appellant, as representing
all the children of the deceased, should be preferred in the grant of the letters of
administration.
Section 48 of the Marriage Ordinance reads:
"48. (1) Subject to the provisions of the succeeding subsection where any person who is
subject to native law or custom contracts a marriage, whether within or without Ghana,
in accordance with the provisions of this Ordinance or of any other enactment relating to
marriage, or has contracted 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 19 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 —
[p.278]
(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."
Both the Ghana Court of Appeal and the Privy Council are agreed in their interpretation
of section 48 (1) that in case of intestacy of a person married in accordance with the
Ordinance there are two conditions precedent to the application of the English law
relating to the distribution of the personal estate of intestates in force on 19 November
1884. These conditions are: (1) a valid marriage under the Ordinance, (2) the survival
of a widow or husband or any issue of such marriage. As Lord Tucker observed, when
delivering the opinion of the Privy Council in Coleman v. Shang [1961] G.L.R. 145 at p.
148, P.C. that, "Once these conditions are satisfied it remains only to see how the twothirds portion was distributable under English law in 1884." The relevant English law is
the Statute of Distribution, 1670 (22 & 23 Car. 2, c. 10), which provides that if a man
dies intestate leaving a wife and issue the wife is entitled to one-third of the personal
estate and the children to two-thirds. In the Court of Appeal, van Lare J.A. explained
how the English law is to be applied in this country. He said in [1959] G.L.R. 390 at p.
405 that:
"Under section 48 of the Marriage Ordinance, when the English law applies it does so
only as to two-thirds of the estate; the other one-third is to be distributed in accordance
with the provisions of the native customary law which would have obtained if such
person had not been married under the Ordinance. The proportions to which wife and
children in this country will be entitled in the whole of a deceased husband's estate in
law therefore are:
(i) wife: 1/3 of 2/3, which is 2/9;
(ii) children: 2/3 of 2/3, which is 4/9."
There is a general principle that administration follows the interest of the property, and if
the court is satisfied that in the particular circumstances of this case the children
represented by the caveatrix are entitled to share in the estate of the deceased, then
obviously they would be entitled to a greater share in the estate than the successor
appointed by the deceased's family.
In the present case it is not disputed that the deceased married four times in his
lifetime. The first and second marriages were under the customary law, and the issue
of these marriages have survived the deceased.
[p.279]
The third marriage, which was contracted under the Ordinance was dissolved in 1961
but there was no issue by this marriage. The deceased contracted his fourth marriage
under customary law, and he died leaving a widow, but no children. Delivering the
judgment of the Ghana Court of Appeal in Coleman v. Shang (supra at p. 405) van Lare
J.A. said:
"The next important question to be determined is, Who are the people who come within
the definition of the term 'wife', and who constitute the class under the term 'children?'
Before proceeding to answer this question we must emphasise that the expression
'leaving a widow or husband or any issue of such marriage' in section 48 of the
Marriage Ordinance does nothing more than indicate the condition precedent upon
which English law would be applied to the estate of an intestate husband who married
under the Ordinance; that is to say, English law will apply if a wife of such marriage
survives him, or if any issue of such marriage survives him. It is not in accordance with
the law, in our view, to hold that when a person subject to customary law marries under
the Ordinance, and dies intestate, the only classes of persons entitled under the Statute
of Distribution to share the two-thirds of his estate are a widow or a husband and/or
issue of such marriage, as has been the practice hitherto in this country."
Since the case for the appellant was based upon the status of the children, it is
imperative that the meaning of the word 'child' as used in the Marriage Ordinance be
ascertained. The word as used in that enactment means a child who is legitimate by
the law of the country where at the date of its birth its parents were domiciled: see
Coleman v. Shang (supra, at p. 406). In Ollennu The Law of Testate and Intestate
Succession in Ghana, p. 253, the learned author argues in support of this meaning. He
states:
"Section 44 of the Marriage Ordinance declares that no person married under the
Ordinance shall be capable during the continuance of that marriage of contracting a
valid marriage under any native law or custom, but that the validity of a marriage
contracted in accordance with customary law prior to marriage under the Ordinance is
not affected by the Ordinance; it follows that the validity of marriage according to
customary law entered into after the determination of marriage under the Ordinance,
either by death or divorce, is also not affected ...
Therefore the only child which is illegitimate under the statute and who is consequently
excluded from the connotation of the term child,' is the child which a man or woman
married under the Ordinance has during the continuance of the said marriage with a
woman or man who is not the one married to him or her under the Ordinance."
In Coleman v. Shang (supra) the courts were dealing with a case that fell within the first
category of intestate. But the deceased in Bamgbose v. Daniel (1954) 14 W.A.C.A.
116, P.C., fell within the second category of intestate, being a person who was the child
of a marriage contracted under [p.280] the Ordinance. It was held in that case that
where the deceased was an issue of a marriage under the Ordinance, the English law
will be applied to his estate in any event whether or not he himself married under the
Ordinance or according to customary law, and whether or not he left a wife or issue.
That the caveatrix and the children of the deceased whom she represents are all
legitimate children in accordance with the customary law of this land has not been
disputed. But to succeed in her claim to the grant of letters of administration the
caveatrix must show that the conditions precedent to the application of English law have
been satisfied in this case.
It is common ground that the deceased once married under the Ordinance and that he
died intestate, but the crucial question is whether the deceased left "a widow" or "any
issue" of the marriage under the Ordinance. Clearly, he did not. And there is no
evidence that the deceased fell within the second category of intestate (being a person
who was the child of a marriage contracted under the Ordinance), so as to make the
English law apply to his estate in any event. Consequently, the surviving children of the
deceased do not come within the class of persons entitled to share in the succession of
the deceased under the English Statute of Distribution. The distribution of the estate of
the deceased must, therefore be in accordance with the customary law under which the
children represented by the Caveatrix cannot claim an aliquot share of the personal
estate of their deceased father.
I think the decision of the court below is right, and I would accordingly dismiss this
appeal.
JUDGMENT OF LASSEY J.A.
I agree.
JUDGMENT OF SOWAH J.A.
I also agree.
DECISION
Appeal dismissed.
S.A.B.