YOUHANA vs. ABBOUD [1974]DLCA2342

Date	1974-03-18
Suit No.
Citation No.	[1974]DLCA2342

APALOO JA

LASSEY JA

ARCHER J.A.

[1974]DLCA2342
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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:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">YOUHANA<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:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">&nbsp;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:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">ABBOUD<o:p></o:p>&nbsp;[COURT OF APPEAL, ACCRA]<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;[1974] 2 GLR 201<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">

DATE:
18 MARCH 1974.<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">

<o:p>&nbsp;</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">

APALOO, LASSEY AND ARCHER JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LASSEY J.A.<o:p></o:p>The facts
on which this appeal has been argued as well as the various legal points for
determination have been fully set out in the leading judgment delivered by
Apaloo J.A. I will deal only with the main fundamental question of law which
was not considered and decided in the court below, but which was argued in this
court.<o:p></o:p><o:p>&nbsp;</o:p>The main
question of law which arises in this appeal is which system of law ought to be
held to apply to determine how the real estate consisting of several houses
situated in different parts in this country are to be divided up after the
death of each of the two deceased brothers. Then general rule or principle of
private international law which has been recognised and enforced by the courts
in Ghana is that every question as to the devolution of immovable estates in
Ghana of persons of foreign origin dying while domiciled abroad is governed by
the lex situs or the law of the place where the immovables are situated. The
application of this rule or principle involves consideration of the further question
of the meaning or scope of the lex situs, and the choice in the present case is
between the law of Ghana as the law of the place where the real estates in
question are physically situated and the law of the place of domicile of origin
of the deceased brothers who died possessed of several houses situated in parts
of Ghana, namely, the law of the Lebanon.<o:p></o:p><o:p>&nbsp;</o:p>The
contention on behalf of the appellant was that the proper law which is
applicable as the lex situs means strictly the internal or domestic customary
laws prevailing in the different localities in Ghana where the realties are
situated. Therefore, according to this submission of counsel for the appellant,
the lex situs, so literally interpreted, means that for a court in Ghana
dealing with the question of the right of succession to the real estates of the
deceased brothers which are situated in parts of Accra and Kumasi, must apply
the matrilineal customary law of succession as in the case of a Ghanaian of
Akan origin, which is the customary rule of descent applicable in the areas in
Ghana where the houses are situated. By such system of matrilineal inheritance,
it follows that as the appellant is the mother of the deceased brothers, and,
therefore, the real successor, she becomes the rightful person entitled to
enjoy the real estates of her deceased sons to the exclusion of her grandson,
the respondent.<o:p></o:p><o:p>&nbsp;</o:p>The
argument in reverse was that the decision of the learned judge of the High
Court is right, and that the proper law applicable as the lex situs in the
circumstances of this case is Lebanese law which is the law of the place of
domicile of the deceased brothers. This argument, it seems, takes a less
restricted interpretation of the precise meaning of the lex situs as applied in
the context of private international law. Counsel for the respondent was
prepared to accept the wider meaning assigned to the application of the lex
situs by the courts in some of the decided cases which came before them.<o:p></o:p><o:p>&nbsp;</o:p>In his
judgment the learned judge in the court below held (as reported in [1973] 1
G.L.R. 258 at.p. 267): “Consequently, I am of the opinion that the common law
is the law which must apply to the devolution of the estates of these deceased
persons, and that common law should be the English common law as it stood in
1874.” The judge followed the decision reached in the case of King v. Elliot
[1972] 1 G.L.R. 54, C.A., and definitely thought that the common law including
the English statutes of general application in force in 1874, applied to solve
the problem raised in the appeal, and dismissed the claim for lack of capacity
in the appellant.<o:p></o:p><o:p>&nbsp;</o:p><p</main>