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BRIMAH AND COBSOLD v. ASANA


  • New
  • 1962-02-20
  • HIGH COURT
  • 1 GLR 118-120
  • Print

OLLENNU, J.


Summary

Islamic law?-Conditions precedent to application of Islamic law to distribution of estate of a deceased Moslem?-Marriage of Mohammedans Ordinance, Cap. 129 (1951 Rev.) ss. 5 and 10?-Courts Act, 1960 (C.A. 9) s. 66 (1) rules (3) and (4).

Headnotes

Imoru Brimah, deceased, late of Accra, was a Moslem by religion. After his death, probate of his will was granted to the plaintiffs to whom Brimah had devised a house, the subject-matter of this dispute, upon certain trusts. The defendant, who admitted she was not a beneficiary under the said will, occupied a portion of the house and refused to quit upon notice being given to her by the plaintiffs. She maintained that she was entitled to occupy a portion of the said house as of right, and based her contention upon the following grounds: (1) the will of the testator was null and void since it disposed of more than one-third of the estate of the testator contrary to Islamic law, (2) she, the defendant, is a widow of the testator and is entitled as of right to a one-eighth share of the whole of his estate according to Islamic law, and (3) the devises to the second plaintiff, a wife of the testator and to her children by the testator, are null and void because as Moslems they are not entitled to be beneficiaries under a will.

Judgement

ACTION for declaration of title to certain property devised to the plaintiffs by one Imoru Brimah, a deceased Moslem and for an injunction restraining the defendant from entering the said property.

The house the subject-matter of this suit forms part of the estate of one Imoru Mobalaji Peregrino Brimah deceased, late of Accra. The said Imoru Mobalaji Peregrino Brimah died testate on the 7th August, 1961, and probate of his will bearing the date the 14th January, 1961, was granted on the 3rd October, 1961 to the plaintiffs, the two executors and trustees named therein. He was a Moslem.

By his said will the testator devised the house in dispute to the plaintiffs upon certain trusts. The defendant is not a beneficiary under the will, but has occupied portion of the said house and has refused to quit upon notice given to her by the plaintiffs. The defendant admits that she is not a beneficiary under the will. She contends however, that she is entitled to [p.119] occupy portion of the house as of right; she based her said contention on the following grounds: (1) the will of the testator was null and void since it disposed of more than one-third of the estate of the testator contrary to Islamic law, (2) she, the defendant, is a widow of the testator and is entitled as of right to one-eighth share of the whole of his estate according to Islamic law, and (3) the devises to the second plaintiff, a wife of the testator and to her children by the testator, are null and void because as Moslems they are not entitled to be beneficiaries under a will.

The deceased Imoru Mobalaji Peregrino Brimah was a Ghanaian of Accra, a Ga Mashie, if for no other reason than the fact that his mother was a Ga Mashie (an Accra) woman. The land with the building thereon, the subject of the devise is situate in Accra New Town, Accra. Therefore by section 66 (1), rule 4 of the Courts Act, 19601 the law to be applied in determining the issue in this suit is the customary law of Ga Mashie. In any event since the issue in this case has arisen in consequence of a unilateral testamentary disposition, the law applicable i.e. the law to be applied is that laid down in section 66 (1), rule 3 of the Courts Act, 1960, namely the law which appears from the form or nature of the disposition to have been intended by the testator to be applied in determining the issue; that law is the common law of Ghana as to testate succession. That law is a combination of the customary law common to all sections of Ghana arising out of the law of nature, that each Ghanaian has a right to dispose of his self-acquired property by will either in accordance with the Wills Act, 18372 or in accordance with the principles of customary law i.e. by samansiw or nuncupative will.

It is wrongly assumed that because the deceased was a Moslem, his personal law as to succession must be regulated by Islamic law. That assumption is a grievous error. A Ghanaian can opt for any religious faith or creed, but that choice which he freely and voluntarily makes cannot operate to deprive him of rights and privileges under the law of the land, neither can it exempt him from his liabilities and duties under it; whether a Christian or Moslem, pagan or atheist, a Ghanaian remains subject to the law of the land. And at his death, unless otherwise provided by law, devolution of his property upon testacy or intestacy would be regulated by his personal law as modified by statute or otherwise.

By the laws of Ghana, there are only two instances in each of which succession to the estate of a deceased Ghanaian may be wholly or partly regulated by law or laws other than the personal law of the deceased. The first instance is provided by section 48 of the Marriage Ordinance,3 where a Ghanaian married under the Marriage Ordinance dies intestate; the second is provided by section 10 of the Marriage of Mohammedans Ordinance4, where a Mohammedan dies married in accordance with the provisions of Mohammedan law having had his or her said marriage registered under section 5 of that Ordinance. The said section 10 of that Ordinance reads:

"10. On the death of a Mohammedan whose marriage has been duly registered under this Ordinance, the succession to his or her property shall be regulated by Mohammedan law."

It will be noticed that while under section 48 of the Marriage Ordinance, a person married under the Ordinance must die intestate before the English [p.120] law can be applied to part of his estate, under section 10 of the Marriage of Mohammedans Ordinance, all that is necessary for the application of Mohammedan law to the distribution of the estate of a person whose marriage was registered, is that he should die, not necessarily intestate.

Therefore for Moslem law to become the law which should regulate the succession to the estate of a Moslem the following conditions are necessary: (1) the deceased must have married according to Mohammedan law, and (2) the said marriage must have been registered under the Marriage of Mohammedan Ordinance.

Evidence was given in this case that whatever the form of marriage it was that the testator went through, his said marriage was not registered under section 5 of the Marriage of Mohammedans Ordinance. Therefore by virtue of section 10 of that Ordinance, Moslem law cannot be applied to succession to the estate of the late Imoru Mobalaji Peregrino Brimah whether he died testate or intestate. In Opanyin Yaw Kwakye v. Abudulai Tuba, a case in respect of succession to the estate of a Moslem who died intestate, I stated what the law is. I will here repeat what I said in that case on the subject.

"It is only a Muslim who married according to Mohammedan law, and had his marriage registered under the Ordinance in the manner provided by the Ordinance whose succession shall be regulated by Mohammedan law. In the eyes of our law, a marriage by a Mohammedan according to Mohammedan law is at its very best marriage by customary law and does not affect succession to his estate, unless the said marriage is registered under the Ordinance. Therefore if a Mohammedan died not having married, and if married not having had his said marriage registered under the Ordinance Cap. 129, the only law which can regulate succession to his estate, is his personal law, i.e. the customary law of the tribe to which he belonged."5

Therefore even if the defendant was not divorced by the testator, (I must say I find she was divorced) Islamic law is not the law to be applied in deciding the issues which have arisen in this case. Consequently the defendant has not been able to offer any defence to the action.

There will be judgment for the plaintiffs against the defendant for declaration of title, and injunction restraining the defendant, her agents and servants from entering upon the premises and from interfering by any means whatsoever with the plaintiffs in their possession, occupation or control of the house.

In view of the fact that the defendant was at one time married to the testator and has children by him I make no order as to damages. The plaintiffs will have nominal costs.

Decision

<P>Judgment for the plaintiffs.</P>

Plaintiff / Appellant

I. Amoo-Lamptey

Defendant / Respondent

A. W. Acquaah

Referals

Kwakye v. Tuba [1961] G.L.R. (Pt. II) 720

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