M’Carthy, J. This is an appeal from a judgment of the Land Court, Central Judicial Division, given in two consolidated actions in which Obiba John Kodjoe Wobill, the plaintiff in Suit No.4 of 1946, claimed recovery of possession of a house in Winneba as against the defendants in that action, and Kwesi Kra, the plaintiff in Suit No.5 of 1946, claimed to have set aside a deed of sale dated the 15th August, 1945, purporting to convey the said house to the said Obiba John Kodjoe Wobill.
The deed was executed in favour of Wobill by Mary Danquah and John Danquah who traced their title through their mother, Essie Kuma, who was alleged to have inherited it from her mother Essie Osuomba.
Kwesi Kra, who sued in Suit No.5 of 1946 as head. of Essie Osuomba's family, claimed that according to the Fanti customary law in Gomoa Ajumaku, to which State his family belongs, he became “successor” to Essie Osuomba on her death, and not her daughter Essie Kuma.
The customary law on which he relied was established by the evidence. The only serious question for the learned Land Judge to determine was whether it applied in this case, or whether as contended on behalf of Wobill, the case was governed by Efutu native customary law (in force in Winneba, where Essie Osuomba was living at the time of her death), according to which her daughter Essie Kuma would have succeeded to her property.
The following extract from the judgment shows how the learned Judge approached this point:-
“The general rule of law governing immovable property is that all rights over, or in relation to land are governed by the law of the country where the land is situate. The sovereign power of the country where land is situate has absolute control over the land within its dominion, and, I think ,that, by analogy, the same principle must apply in a country like the Colony of the Gold Coast within which territory are numerous States whose subjects, prior to the establishment of the Colony, owed allegiance to no one but to their Omanhene. English Courts when determining rights in respect of foreign lands follows the ‘lex situs’ almost of necessity.”
Holding that the onus cast on Kwesi Kra of satisfying the Court that the sale was invalid according to Efutu law had not been discharged, he decided that Wobill was entitled to recovery of possession.
The decision was supported by Mr. Akufo Addo counsel for the respondent on the ground that in the second schedule to the Native Courts (Colony) Ordinance, 1945, Native Courts are given jurisdiction in suits and matters relating to the succession to property of any deceased who had at the time of his death a fixed place of abode within the area of jurisdiction of the Native Court, and that under section 15 of the said Ordinance, a Native Court is enjoined to administer the native customary law prevailing within the jurisdiction of the Native Court.
He contended that it was incumbent on the Court to take cognizance of this, and to apply to succession cases falling within its jurisdiction on the native customary law which under section 15 would apply to them in a Native Court.
The most effective answer given to this argument by Mr. Bossman is that though a native Court is required by paragraph (a) of section 15 to administer the native customary law prevailing within its jurisdiction, it is also required by paragraph (b) to administer the provisions of any law binding between parties subject to the jurisdiction of Native Courts.
Mr. Bossman submitted that the law binding between the parties for the purposes of the present case is the law binding the parties immediately involved in the question of succession to Essie Osuomba, and that this was Fanti customary law. He urged that a contrary interpretation of section 15 would have the effect of depriving a party of the benefit of the native customary law prevailing in his own locality and would be inequitable.
We are of opinion that, as regards the issue between Kwesi Kra and MaryDanquah and John Danquah (co-defendants with Wobill in Suit No.5 of 1946), as to the succession to Essie Osuomba, the law binding the parties, if the case had not been tried in a Winneba Native Court, would have been Fanti customary law. We are of opinion that, although Fanti law would not ordinarily be binding between Wobill, an Efutu, and Kwesi Kra, a Fanti, it is in this case because Wobill’s claim depends on the issue as to succession, and he claims through the Danquahs who are in this respect subject to Fanti customary law.
We have no doubt that the Courts should in the exercise of jurisdiction which in a sense it enjoys together with Native Courts be guided by the provisions of section 15 of the Native Courts (Colony) Ordinance, particularly having regard to section 74 of the Courts Ordinance which in effect requires the Supreme Court, subject to certain qualifications, to ensure that natives shall not be deprived of the benefit of any native law and custom existing in the Gold Coast.
The learned trial Judge appears to have overlooked the relevant local legislation to which reference has been made, and to have applied as analogous the rule of law in the branch of English law known as “Conflict of Laws “ or” Private International Law”, that the persons entitled to succeed to immovable property belonging to an intestate are determined by the lex loci rei sitae (see Halsbury, 2nd Edition, Vol. 6, 195, 240). In our view the application of this rule was mistaken, even by way of analogy, having regard to the provisions of section 15 of the Native Courts (Colony) Ordinance and of section 74 of the Courts Ordinance. If we had agreed with Mr. Akufo Addo’s interpretation of section 15 we should have upheld the decision though on different grounds than those relied on by the learned Judge, but consideration of paragraph (b) of section 15 satisfies us that the decision was wrong.
The appeal will therefore be allowed and the judgment of the Court below set aside. There will be substituted therefore in respect of Suit No.4 of 1946 judgment for the defendants and in respect of Suit No.5 of 1946 judgment for the plaintiff.
The appellants are allowed costs in this Court assessed at £36 12s. 6d. and in the Court below to be taxed.
Appeal allowed.