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IN RE ESTATE OF A. E. GORLEKU, DECEASED
VICTORIA A. GORLEKU
V.
GEORGE D. GORLEKU
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
15TH DAY OF MAY, 1934
2PLR/1934/31 (WACA)
OTHER CITATION(S)
2PLR/1934/31 (WACA)
(1934) II WACA PP. 82-85
LEX (1934) – II WACA PP. 82-85
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BETWEEN
DEANE, C.J., GOLD COAST (GHANA)
KINGDON, C.J., NIGERIA
WEBBER, C.J., SIERRA LEONE
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BETWEEN/MATTER
IN RE ESTATE OF
A. E. GORLEKU, DECEASED VICTORIA A. GORLEKU — Plaintiff-Appellant
AND
GEORGE D. GORLEKU — Defendant-Respondent
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ORIGINATING COURT(S)
SUPREME COURT OF THE GOLD COAST COLONY
REPRESENTATION
C. S. Acolatse — for Appellant
K. A. Bossman — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Succession – Intestacy – Distribution of real and personal property of deceased person married under the Marriage Ordinance (Gold Coast) – Proper construction of Section 47 thereof and implications for caveators whose rights are founded under native law and custom
FAMILY LAW – SUCCESSION:- Distribution of property of married deceased person subject to customary law and statute – How resolved – Interpretation of Marriage Ordinance (Gold Coast), Statute of Distribution, and Native Law and Custom
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PRACTICE AND PROCEDURE ISSUE(S)
INTERPRETATION OF STATUTE:- Section 47 of the Marriage Ordinance (amending section 39 of the 1903 Marriage Ordinance) – Proper construction of
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MAIN JUDGMENT
The following judgment was delivered:
WEBBER, C.J., SIERRA LEONE
This is a case reserved for the consideration by the Court of Appeal on two questions of law which the trial Judge states arose in an administration suit, namely:-
(1) Has the Supreme Court of the Gold Coast Colony any power to grant Letters of Administration to administer anything but the personal estate of a deceased intestate?
(2) Assuming that the deceased in this case was entitled, at the time of his death, to any real estate of which he might have disposed by Will, will any share of such real estate, and if so what share, rest in the person to whom Letters of Administration are granted in his or her representative capacity?
The facts are fully set out in the judgment of the learned trial Judge and may be briefly recapitulated as follows:
The late Albert Fui Gorleku died on the 14th October, 1929, intestate, leaving his lawfully married wife and a daughter. On his death his wife, the present plaintiff Victoria Ama Gorleku, applied for Letters of Administration and Notice of Opposition was entered by George Damisah Gorleku, an uncle of the deceased.
Then followed the administration suit the plaintiff being the widow Victoria Ama Gorleku, the applicant, and the defendant being George Damisah Gorleku, the caveator.
It was contended by counsel for the plaintiff in the Court below, citing Odonkor v. Akoshia, Full Court Reports 1926-29 at page 32 and Randolph Hammond dated 2/10/1933 (not yet reported), that the Court could only grant Letters of Administration to administer personal estate, and by counsel for the caveator, on the authority of the case, “In re James Hagan ‘deceased’”, Sarbah’s Fanti Law. Report page 92, that the grant of Letters of Administration would enable the grantee to deal with any individual property the deceased owned in land and house.
The learned trial Judge ordered that Letters of Administration of the personal estate of the deceased be granted to Victoria Ama Chorleku subject to the opinion of the West African Court of Appeal on the questions of law stated supra.
The answer to these questions to a great extent depend upon the true construction of section 47 of the Marriage Ordinance, the material part of which reads as follows:
“Where any person who is subject to native law or custom contracts a marriage, whether within or without the Colony, 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 16th 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 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, vis:
“Two-thirds in accordance with the provisions of the law of England relating to the distribution of the personal estate of intestates in force on the 19th 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”.
This section is an amendment of section 39 of the 1903 Ordinance the material part of which reads as follows:
“The personal property of such intestate, and also any real property of which the said intestate might have disposed by will, shall be distributed in accordance with the provisions of the Law of England relating to the distribution of the personal estates of intestates any native law or custom to the contrary notwithstanding.”
The differences of the two sections are these:
1. The amending section adds the words “or descend” after the word “distributed “.
The reason is this, the section deals with both “real” and “personal” property, and as only personal property can be distributed, it was necessary to add as to real property what was to happen when the owner died intestate. It is the old feudal rule of descent which, slightly modified from time to time, continued in force in England until the Land Transfer Act came into operation on 1st January, 1898. By this rule “real” property descended to the heir when the owner died intestate while the personal property was distributed amongst the next of kin by an administrator appointed for that purpose (Williams on Real Property p. 11, 9th Edition).
By the Land Transfer Act the whole of the real estate, other than copyholds and customary freeholds, vested in the administrator.
As this Act is not applicable in this Colony, the rule of descent which was in force in England up to 1928 was intended to be in force here. As however section 39 of the Marriage Ordinance, 1903, dealt with both real and personal properties, if they were both capable of distribution, the ruling in the case In re James Hagan deceased, namely that on the death of an intestate all the deceased’s property was vested in the administrator for purpose of distribution, was to be expected. This ruling, owing to the omission of the words “or descend” in the Marriage Ordinance, 1903, had the same effect as if the Land Transfer Act applied locally.
In 1909 when the amended Marriage Ordinance was enacted this omission was put right and the rule of descent was enunciated for the first time in a local Ordinance, namely “In intestacy”, realty descends to the heir or those entitled thereto and “personality” vests in the administrator for distribution.
2. The other difference in the amended Ordinance states how the real and personal property are to be “distributed” in the case of personal and to “descend” in the case of real property, namely two-thirds in accordance with the provisions of the Law of England relating to the distribution of the “personal” estate of intestates in force on the 19th 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 the Ordinance so that in the case of the real estate the property descends automatically to those entitled to it in the proportion set out in the Ordinance.
In the case of Odonkor & Sackey v. Akoshia, the plaintiffs claimed a declaration that they were, under a conveyance executed by one Froda Winifred Ofosu Quartey, the widow of Ofosu Quarter and administratrix of his estate, joint owner of certain lands which were formerly the property of her deceased husband. The Full Court held that Mrs. Otoma Quartey passed to David Quartey her interest in the premises, and that they, the plaintiffs, were entitled to the declaration asked for as to their one-third share in the said premises.
In the head note of the case, it appears that the Full Court held that under section 47 of the Marriage Ordinance, 1909, two-thirds of the personal and real property of the intestate vested in the administratrix for the purpose of distribution. Such a finding, if it was made, can only be regarded as an obiter dictum since the only question before the Court was whether the native heir was entitled to one-third by descent, and for reasons already stated I am unable to agree with it.
I entirely concur with the opinion of the learned trial Judge that the proper interpretation of section 47 of the Marriage Ordinance is as stated by him:
“where a person who is subject to native law or custom has contracted a marriage in accordance with the Ordinance and dies intestate leaving a widow or husband or any issue of such marriage him or her surviving then –
“(a) Two-thirds of the personal property of such intestate shall be distributed in accordance with the provisions of the Statute of Distribution 22 & 23 Car. II. C. 10 and the remaining one-third in accordance with native customary law.
“(b) The real property of which the intestate might have disposed by will shall descend, as to two-thirds thereof, as though it were personality to which the Statute of Distribution applies and as to one-third in accordance with native customary law”.
For these reasons I think that both questions submitted should be answered in the negative – in other words that the grant of Letters of Administration applies to personality only and that no real property vests in the person to whom Letters are granted.
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DEANE, C.J., GOLD COAST.
I concur.
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KINGDON, C.J., NIGERIA.
I concur.
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