NARTEY AND OTHERS vs. KOSHI AND ANOTHER [1961]DLHC5425

Date	1961-11-27
Suit No.
Citation No.	[1961]DLHC5425

OLLENNU J.

E. N. MOORE FOR THE PLAINTIFFS-APPELLANTS.

G. KORANTENG-ADDOW FOR THE DEFENDANTS-RESPONDENTS

[1961]DLHC5425
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">NARTEY AND OTHERS <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">KOSHI AND ANOTHER<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">[1961] GLR 728&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 27TH NOVEMBER, 1961.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

E.
N. MOORE FOR THE PLAINTIFFS-APPELLANTS.<o:p></o:p>

G.
KORANTENG-ADDOW FOR THE DEFENDANTS-RESPONDENTS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
OLLENNU J.<o:p></o:p>This an appeal from judgment of the Dangbe Shai Local Court,
Division II, delivered on the 3rd May, 1961. Counsel for the
defendants-respondents said of that judgment that it is indefensible, and that
is what it really is.<o:p></o:p><o:p>&nbsp;</o:p>The appellants are some of the children of late David Kwabla
Nartey, deceased. The first respondent is a widow of the said David K. Nartey
by marriage under customary law, and the second respondent is also a child of
the said David K. Nartey by the first respondent. This action was instituted
because the respondents have taken possession of the properties comprised in
the estate, claiming that they are the successors to the said David Kwabla
Nartey.<o:p></o:p><o:p>&nbsp;</o:p>The local court having heard the evidence proceeded to make
findings some of which are irrelevant to the matters in issue; to make
pronouncements for which there is no legal authority; and to make orders which
are ultra vires the local court. For example, the local court held that the
appellants are illegitimate children of their father. That pronouncement is
wrong both in fact and in law. By the law of this land, the only child of a man
who is illegitimate is the child who was procreated in adultery, i.e. the child
that a man, married under the Marriage Ordinance,1(1) has during the subsistence
of the marriage, with a woman who is not the wife married to him under that
Ordinance, or a child that a man has with a woman married to another person
under the Marriage Ordinance while that marriage of the woman with the other
man continues. Now there is no evidence in this case that the late David Kwabla
Nartey married under the Marriage Ordinance; he only married under customary
law. Therefore all his other children are of the same legal status as the
second respondent, his child by the first respondent.<o:p></o:p><o:p>&nbsp;</o:p>Again the local court magistrate made an order appointing certain
persons as administrators of the estate, and gave directions as to the manner
in which they should do their work, he then proceeded to distribute the estate,
and made an order that a debt owed by the deceased to the estate of his brother
should be paid by instalments and in a certain manner. Now the jurisdiction of
a local court is limited to that given it by the Courts Act, 1960.2(2) It does
not include the appointment of an administrator of the estate of the deceased.
Again the law provides that where an estate is indebted, the debt must be paid
before distribution of the estate can take place, in any event since the
personal representatives of the brother to whose estate the estate of David is
indebted are not parties to this suit, the local court is not entitled to make
an order to fetter them in their claim against the estate of David Kwabla
Nartey.3(3) Prampram, as a Ga-Adangbe state, is a patrilineal family society
for the purposes of succession; children belonging to their paternal family,
and therefore children in Prampram are entitled to succeed to their father’s
estate. That does not mean that they succeed as of right and can take and
distribute the estate without it being given to them by the family or
distributed among them by the family. What that means is that they come within
the class of persons entitled to share in the distribution of the estate, and
from among whom a successor can be appointed by the family.<o:p></o:p>The evidence shows that upon the death of David, the family in
compliance with customary law, gave the first respondent in marriage to P.W. 1
George Nene Nartey, and the said P.W. 1 gave the customary drink in acceptance
of first respondent as his wife. By customary law therefore, P.W. 1
automatically stood in the shoes of David vis-a-vis the first respondent and it
is to him that the first respondent should refer all questions respecting her
maintenance, accommodation and other things as her husband.<o:p></o:p>