IN RE CANFOR (DECD.); CANFOR v. KPODO

JUDGMENT OF OLLENNU J.A.

The proceedings in this case began with an application by the plaintiff for the grant of letters to administer the estate of her deceased husband, the late Sydney Signate Canfor. Caveat was entered to the application by the defendants, the mother and uterine brother respectively of the late Canfor. The parties were unable to agree on the person or persons to whom grant of letters of administration should be made; therefore, the court, in pursuance of Order 60, r. 21(2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), ordered the plaintiff to issue a writ of summons against the defendants.

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By the writ of summons so filed, the plaintiff claimed a declaration that she is the lawful widow of the deceased, and that as such widow, she together with her children, issues of her marriage with the deceased, are entitled to two-thirds share of the estate of the deceased, and that she is therefore the proper person to whom letters of administration should be granted in respect of the estate.

In support of her claim the plaintiff pleaded in paragraphs (2) and (3) of her statement of claim as follows:

"(2) On 19 May 1943 the plaintiff lawfully contracted a civil monogamous marriage at Lome in the Republic of Togo (then the French Colony of Togo) under the laws prevailing in the said country at that time, and

(3) The civil marriage was subsequently followed by a religious marriage in the Roman Catholic Church at Lome on 23 May 1943."

The defendants do not deny that the plaintiff was married to the deceased, but they have contended throughout the proceedings that the civil marriage in question is potentially polygamous and that the deceased did exercise his right under that system of marriage to marry more than one wife, by marrying one Madam Margaret Akrobotu and that there are two issues of that second marriage.

The defendants pleaded that the father of the late Canfor, who was an Englishman, left this country when the deceased was only a toddler, and has never been heard of since. They further pleaded that the family to which the late Canfor belonged, by customary law, has appointed the second defendant successor to the deceased, and consequently he, the second defendant, is the proper person to be granted letters of administration in respect of the estate. These positive averments of the defendants are set out in clear terms in paragraphs (1), (2), (3) and (4) of the statement of defence.

Paragraphs (