In The Matter Of The Estate Of a—Deceased V. In re Adeline Sitbitlade Williams (1941)

LawGlobal Hub Judgment Report – West African Court of Appeal

Administration of Estate—Application for revocation of Letters granted to Administrator-General—Issue of marriage contracted in accordance with the Marriage Ordinance dying intestate.

A who was the imam of a marriage contracted in accordance with the Marriage Ordinance died intestate and was survived by other issue of that marriage and also by a widow and issue of a customary marriage contracted by himself.

The trial Judge stated a case raising the point whether his personal property and any real property of which he might have disposed by will descends to the other issue of the former marriage under the Ordinance or to the widow and issue of the marriage of the intestate and which of them is entitled to a grant of Letters of Administration.

Held : That under section 36 of the Ordinance in the case of succession to the property of the intestate it shall be distributed in accordance with the provisions of the Law of England at the time of the Ordinance relating to the distribution of the personal estate of intestate any law or custom to the contrary notwithstanding.

Agusto for Applicant.

Unsworth for Administrator-General.

The following joint judgment was delivered BAKER” BROOKE, AND JEFFREYS, JJ. CASE STATED.

This is a case stated by the Acting Chief Justice under section 6 of Ordinance No. 47 of 1933 reserving for the opinion of this Court, at the request of the Administrator-General in view of the importance and widespread application of the principle, the question whether he came to a correct decision in finding in favour of the surviving issue of the deceased’s parent’s marriage ^–under the Marriage Ordinance, Chapter 68 (of whom the applicant is one) on an application for the revocation of letters of administration granted to the Administrator-General and the issue of a fresh grant to her.

The point raised is :—

When a person who is the issue of a marriage contracted in accordance with the Marriage Ordinance dies intestate and is survived by other issue of that marriage and also by a widow and issue by a marriage contracted by himself otherwise than in accordance with the Marriage Ordinance, does his personal property and any real property of which he might have disposed by will descend to the former or to the latter and as a corollary which of them is entitled to a grant of letters of administration? The actual marriage is a customary one. The relevant section of the

OCI.:14AM Or die

if^–Rem^–awe is section ^–36 which applies only to the Colony. Mr Unsworth on behalf of the Administrator-General in an ingenious argument emphasised the words ” shall be distributed ” and maintained that the one-third given to the widow under the English law of distribution should include a widow or widows of a customary marriage as in the interpretation of Statutes the singular includes the plural : any other &cision would, he claims, have the effect of invalidating a marriage contracted under native law the validity of which^– is saved in section 35 of the Ordinance, and also of bastardizing the issue.

We are concerned with the issue of a marriage under the Ordinance and the section 36 lays it down very clearly that in the case of succession to the property of an intestate it shall be distributed in accordance with the provisions of the law of England (at the time of the Ordinance) relating to the distribution of the personal estate of intestates an native law or custom to the contrary notwithstanding. The provisions of the earlier Ordinance of 1884 section 41 are in the same terms and were enacted at a time when the Court in England did not profess to decide upon the rights of succession which it might be proper to accord to the issue of a polygamous union. The intention of section 36 of the present Ordinance is sufficiently clear and it has been expressed in terms that. leave no doubt that ” any native law or custom to the contrary notwithstanding ” the property shall be distributed in accordance with the provisions of the law of England which contemplate a monogamous marriage. In the saving of customary marriage in section 35 it is provided that nothing in the Ordinance shall in any manner apply to marriages so contracted. The answer to the question reserved is therefore that the trial Judge was correct in holding that a person whose right depends on native law and custom and not on English law is excluded from the succession on the death intestate of a person who is the issue of a marriage under the Ordinance.