COLEMAN vs. SHANG [1961]DLSC876

Date	1961-03-07
Suit No.
Citation No.	[1961]DLSC876

LORD TUCKER JSC

LORD HUDSON JSC

THE RT. HON. MR L.M.D. DE SILVA JSC

RALPH MILLNER FOR THE APPELLANT

JOSEPH DEAN AND MISS E. ARYEE FOR THE RESPONDENT.

[1961]DLSC876
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >

&nbsp;[JUDICIAL COMMITTEE OF THE PRIVY COUNCIL]

[1961] GLR 415

DATE: 7TH MARCH, 1961.

</div>

COUNSEL:&nbsp;&nbsp;

RALPH
MILLNER FOR THE APPELLANT.

</div>

LORD TUCKER, LORD HUDSON AND
THE RT. HON. MR L.M.D. DE SILVA

</div>

&nbsp;

Lord Tucker delivered the judgment of their Lordships. [He stated
the facts as set out in the headnote and continued:] The issue for
determination at the trial was settled on the summons for direction as
follows:-

&nbsp;“Whether the plaintiff or
the defendant is the proper person entitled to the grant of letters to
administer the estate of the above-named deceased”. The contest was therefore
between the sole survivor of the deceased’s marriage under the Marriage
Ordinance and the lady whom he had married under customary native law on the
death of his former wife.

“48 (1) Subject to the provisions of the succeeding subsection
where any person who is subject to native law or custom contracts a marriage,
whether within or without [Ghana], 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 15th day of February,
1909, leaving a widow or husband or any issue of such marriage; [Amended by 13
of 1951, S.2].

And also where any person who is issue of any such marriage dies intestate
on or after the said 15th day of 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, viz.

Two-thirds in accordance with the provisions of the law of England
relating to the distribution of the personal estates of intestates in force on
the 19th day of 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:

(i) That where by the law of England, any portion of the estate of
such intestate would become a portion of the casual hereditary revenues of the
Crown, such portion shall be distributed in accordance with the provisions of
the native customary law, and shall not become a portion of the said casual
hereditary revenues;

The first submission of counsel for the appellant was to the
effect that on the proper construction of the Ordinance the only persons
entitled to any portion of the two-thirds share of the personal estate of a
deceased person dying intestate are his widow whom he had married under the
Ordinance or the issue of such marriage, and any persons claiming under a
marriage contracted by native customary law are relegated to such share of the
remaining one-third as they can establish under that law.

This is the construction which appears to have been put upon the
section in some decisions of the courts in Ghana from time to time and would
seem to have been adopted by the trial judge towards the end of his judgment
where, referring to the present respondent, he said “her status being that of a
wife married according to the native custom cannot override the claim of the
plaintiff.”

Their Lordships are unable to accept this construction of the
section. In the case of intestacy of a person married in acco</main>