IN RE BLANKSON-HEMANS (DECD.); BLANKSON-HEMANS vs. MONNEY AND ANOTHER [1973]DLHC2389

Date	1973-02-22
Suit No.
Citation No.	[1973]DLHC2389

KUMASI

C. F. HAYFRON-BENJAMIN FOR THE PLAINTIFF.

JONATHAN ARTHUR FOR THE FIRST DEFENDANT.

OBENG (FOR JOE REINDORF) FOR THE SECOND DEFENDANT.

[1973]DLHC2389
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													<main id="main" class="content" style="min-height: 60rem" >IN RE BLANKSON-HEMANS (DECD.); BLANKSON-HEMANS<o:p></o:p>&nbsp;vs.<o:p></o:p>MONNEY AND ANOTHER <o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p>&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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1973]
1 GLR 464<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
27 FEBRUARY 1973.<o:p></o:p>

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

C. F. HAYFRON-BENJAMIN FOR THE PLAINTIFF.<o:p></o:p>

JONATHAN ARTHUR FOR THE FIRST DEFENDANT.<o:p></o:p>

OBENG (FOR JOE REINDORF) FOR THE SECOND DEFENDANT.<o:p></o:p>

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

KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORANTENG-ADDOW J.<o:p></o:p>The
plaintiff in this suit is the wife of the late Dr. Gabriel Blankson-Hemans. She
was married under the Marriage Ordinance, Cap. 127 (1951 Rev.), to the deceased
on 27 December 1963. As the marriage certificate (exhibit A) states, before the
solemnization of the marriage she had already been married under native custom
to the deceased for some years. The deceased was an Akan.<o:p></o:p><o:p>&nbsp;</o:p>After the
death of her husband the plaintiff applied to the court for letters of
administration to enable her to administer the estate of the deceased. When her
application was filed the first caveatrix, the mother of the deceased,
caveated. Claiming in her capacity as head of family she contended that she was
the proper person to be granted letters of administration. The second caveatrix
also caveated, claiming to be a widow of the deceased and also as the proper
person to administer the estate.<o:p></o:p><o:p>&nbsp;</o:p>As the
plaintiff and the two caveatrixes failed to agree as to which of them should be
granted letters of administration, in compliance with Order 60, r. 21 (2) of
the Supreme [High] Court (Civil Procedure)<o:p></o:p>Rules,
1954 (L.N. 140A), I ordered a writ to issue.<o:p></o:p>Being
married under the Marriage Ordinance and having five children with the deceased
there was no doubt as between the plaintiff and the first caveatrix, which of
the two of them had a greater interest in the estate and therefore, as to which
of the two had a greater claim to the administratorship. The wife and children
according to the laws of this country, are entitled to two-thirds of the estate
and the family (the customary family) to one-third: see Coleman v. Shang [1959]
G.L.R. 390, C.A. But it was the case of the first caveatrix that because of the
presence of the children (minors) in the matter, in obedience to the provisions
of section 77 of the Administration of Estates Act, 1961 (Act 63), a second
person must be appointed as joint administrator with the plaintiff. It was
further urged on her behalf that she and nobody else ought to be appointed the
co-administrator. I would have found a short answer for her but the other
complication in the matter forced me to order the issue of the writ. The second
caveatrix’s stand in the matter, namely, that she was married under the
customary law to the deceased some time in 1961, and also that she has a son
with the deceased and was therefore a widow of equal standing with the plaintiff
raised some problems. Her claim was that being also a widow and having a child
with the deceased she was as much entitled to a grant of letters of
administration as the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>If the
plaintiff and the second caveatrix were both married under the customary law to
the deceased and both marriages were subsisting in 1963 the marriage between
the plaintiff and the deceased solemnized under the Marriage Ordinance, Cap.127
(1951 Rev.), would have been a nullity in law. As section 42 of Cap. 127 says in
part:”<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“No
marriage . . . shall be valid . . . where either of the parties thereto at the
time of the elebration of such marriage is married by native law or custom to
any person othe</main>