Kweku Ghamson & Ors V. Obiba John Kod Joe Wobill & Ors (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Consolidated suits—Fanti law and custom—Intestate’s Estate—Death inWinneba—Native Law and custom applicable–Native Courts (Colony)Ordinance, Schedule 2 and section 15—Courts Ordinance, section 74—Recovery of possession—Setting aside deed of sale.

Facts

In these two consolidated suits, Obiba Wobill claimed, in the first, recovery of possession of a house in Winneba said to have been sold to him by deed, against Kweku Ghamson and his co-appellants, and Kwesi Kra claimed, in the second, to have the deed of sale set aside.

The vendors under the deed of sale traced their title through their mother who inherited from a woman who died in Winneba where Efutu native customary law applies, but Kwesi Kra contended, as head of this deceased woman’s family, that according to Fanti native law which applies in Gomoa Ajumaku to which state his family belongs, he and not her daughter became ” successor ” to the deceased woman on her death.

The trial Judge held that Efetu customary law as the ” lex loci rei sitae applied, dismissed Kwesi Kra’s claim and granted possession to Wobill against Kweku Ghamson and his co-appellants.

The persons aggrieved by this decision appealed.

Held

On appeal,

1. that if the case had been tried in a Winneba Native Court, Fanti native law would have applied ;
2. although Fanti law would not ordinarily be binding between Wobill, an Efutu, and Kwesi Kra, a Fanti, it was in this case because Wobill’s maim depended on the issue as to succession, and Wobill traced his title through persons subject to Fanti law;
3. the Courts should, in exercising the jurisdiction concurrent with that of Native Courts, ensure that natives are not deprived of the benefit of Gold Coast native law and custom;
4. the branch of English law known as ” Conflict of Laws ” or ” Private International Law ” did not apply, even by analogy, having regard to section 15 of the Native Courts (Colony) Ordinance and section 74 of the Courts Ordinance.

Appeal from the Supreme Court of the Gold Coast.

Appeal allowed.