ANKOMAH-SEY v. EMBRA-QUANSAH

JUDGMENT OF AZU CRABBE J.S.C.

This is an appeal from the decision of the late Owusu J. whereby he declared that the respondent, as the customary successor, was alone entitled to the grant of letters of administration in respect of the estate of the late George Edward William Quansah (hereinafter referred to as the deceased) of Cape Coast, who died intestate at Tema on 20 January 1968.

The proceedings in this case were commenced on 6 August 1968 with the filing in the High Court, Cape Coast, by the respondent of an originating summons under the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A,), Order 54, r. 4 for the determination of the following questions:

"(i) The interpretation of section 48 (1) of the Marriage Ordinance, Cap. 127 (1951 Rev.);

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(ii) 'Whether leaving a widow or husband or any issue of such marriage' means such marriage contracted under the Ordinance alone or it embraces marriage contracted under customary law.

(iii) If the interpretation of the said section means marriage under the Ordinance alone, whether in the instant case, the applicant as the brother and the person validly appointed as successor to George Edward William Quansah deceased, under native law and custom, is not the proper person entitled to a grant of letters of administration to administer the said estate in preference to the caveatrix Christina Ankoma-Sey, who is an issue of customary law marriage."

On 27 August 1968 the appellant entered a caveat, and on 25 November 1968 the respondent in pursuance of Order 54, r. 6 (1) filed a notice of appointment to hear the originating summons. Subsequently pleadings were ordered and filed, and the issues agreed upon for trial were formulated as follows:

"Whether or not the case should not be set down for legal argument as to which of the parties should be granted letters of administration since the defendant caveated on her own behalf and on behalf of her brothers and sister and since the plaintiff on the pleadings having admitted that the intestate during his lifetime contracted a valid marriage under the Marriage Ordinance of the Gold Coast (now Ghana) and having also admitted on the pleadings that the defendant and her said brothers and sister are the children of the intestate born out of a valid customary marriage."

The facts are not in dispute, but the contest between the parties is whether the respondent, who claims as the customary successor of the deceased, is the one entitled to the gran