DAVIES v. RANDALL AND ANOTHER

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The plaintiff instituted this action in the High Court on behalf of himself as heir and successor to his father, the late L. T. C. Davies, and as representative of all other children of the said L. T. C. Davies. His claim is for an order setting aside firstly a deed whereby an administratrix of his said late father sold and conveyed to the first defendant land with buildings thereon situate at Sekondi which was his late father's self-acquired property, and secondly to set aside a deed whereby the first defendant demised the said property to the second defendant. He also claimed damages for trespass to the said hereditaments and premises. The defence pleaded that (i) the first defendant is in possession of the premises by her agents and tenants as purchaser for value without notice of any claim of the plaintiff; (ii) the claim is barred by the Real Property Limitation Acts, 1832-33,1 and (iii) in any event the plaintiff and those on behalf of whom he claimed are not the lawful children of their deceased father.

The main facts in the case are not in dispute. Briefly they are as follows:

The land with buildings thereon situate in Sekondi, Ghana, was the self-acquired property of one L. T. C. Davies, deceased, father of the plaintiff and those on whose behalf the claim is made. L. T. C. Davies died seised of the said property. The said L. T. C. Davies was a Sierra Leonean but was resident in Ghana (then the Gold Coast) for many years; he never changed his domicile of origin, i.e. Sierra Leone. He married in accordance [p.384] with Fante customary law and the plaintiff, and those on whose behalf the plaintiff, sued are issue of the said marriage; the plaintiff, the eldest of Davies' children, was born in 1899. Later Davies divorced his wife under the customary law, and in 1907 went to Sierra Leone and there married a wife under the Sierra Leone Christian Marriage Ordinance, 1925.2 He returned to Sekondi with his wife and continued to live in the said house until his death in 1919. He was survived by his Sierra Leonean wife, the plaintiff and other children of his by his marriage under customary law.

Upon these facts counsel for the defendants raised a preliminary objection to the right of the plaintiff and those he represents to sue. He submitted that as children by marriage under Fante customary law, they do not, by Fante customary law, belong to the family of their late fathe