Victoria Gorleku V. George Gorleku (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

Section 47 of Marriage Ordinance (Gold Coast) does not vest real property in person granted Letters of Administration—Real property descends, as to two-thirds, according to Statute of Distribution, and as to remaining third according to Native Law and Custom.

The facts are sufficiently set out in the judgment.

C. S. Acolatse for Appellant.

K. A. Bossman for Respondent.

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 ditiposed by Will will any share of such real estate, and if so what share, vest 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 sagt,-the plaintiff being the witlow Victoria Ama Gorleku, the applicant, and the defendant being George Damisah Gorleku, the caveator.

It was contendedvonmel for the plaintiff in the Court

below, -citing Odonkor Akoshia, Full Court Reports 1926-29 at page 322 and Randolpk ilonimonia -dated 2/10/1933 (not yet reported), that the Court -41COU1rd only grant Letters of Adminie. tration to administer personal = estate, and by counsel for the eaveator, on the authority of the -ease “In re James Hagan ” deeeas^‘ed “_i &shah s- ‘ binti Law Report page 92, that the grant of Letters olAdministration 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 Gorleku 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 Marriagz. rdinanee, 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 enact” ment 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 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, _vi_z

” 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 r 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 distribntiorof tbe personal ” estates of intestates any native lair& eastern to the ” contrary notwithstanding “.

The differences of the two sections are these —

I. The amending section adds the words ” or descend ” after the word ” distributed “. The reason is this-4he =fin deals with both ” real ” and ” personal ” pmerty, sad so only personal property can be distributed it was necessary to add as to “Teal ” 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 ;in 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 freehokls, 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 is 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 ” personalty ” 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 Droviaions 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 °dealer ₄ Ssckey v. ilkoshia the plaintiffs ‘Wens claimed a declaration that they, were under a conveyance executed Certain’ by one Freda Winifred Of 4urirt4, the widow of Ofosu Quartey

and administratrix of his estate, joint owner of certain lands which “^In^a were formerly the properly of her deceased husband. The Full ” Court held that Mrs. Mont 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 a_dministratrix for. purpose of distribution. Such a finding, if it was made, can only be regarded as an °biter 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

1. 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.
2. The real property of which the intestate might have ” disposed by will shall descend, as to two-thirds thereof, as ” though it were personalty to which the Statute of Distribution ” applies and as to one-third in accordance with native customary ” law “.

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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 personalty only and that no real property vests in the person to whom Letters are granted.

DEANE,GOLD COAST.

I concur.

KINGDON, CI., NIGERIA.

I concur.