1ST JULY, 2018

LECTURE ONE (1)

CONFLICT OF LAWS II SECOND SEMESTER

COURSE OUTLINE

1. THE LAW OF CIVIL OBLIGATION

- International Contract
- International Tort
2. PROPERTY
- Movable and immovable properties
3. FAMILY LAW
-Family systems in Ghana
- Marriage (husband & wife, children, parents, wards, children, adoption,
legitimacy & legitimation)

4. SUCCESSION
- PNDC Law 111
- Administration of estates
5. RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT

1
The Proper Law of the Contract
A contract that is not domestic is called an international contract.
Section 54 (1) Rule 1 (DWELLS ON THE intention of the parties, that is freedom
of the parties to contract among others) This governs the rules of international
contract which direct the Ghanaian courts to recognize the concept of freedom of
contract. The intention of the parties to the contract must always be taken into
consideration in the event of a dispute.

With regard to international law, section 54 (1) Rule is the applicable law that will
govern international contract. The courts have also developed their own rules to
guide them in ascertaining the law the parties intended to govern the international
contract. An outstanding English academic law, Dicey described the law the parties
would intend to govern the contract as the proper law of the contract. According to
Dicey, the proper law is the law the parties intended. This is the subjective view.
Another English writer, Westlake prefer to describe the proper law as what a
reasonable or physio bystander , that is the court…. That is the objective view.
In the Ghanaian case in this area of the law, it is the objective test that would be
applied.

The Proper Law of the Contract

The proper law is the system of law which governs many of the matters affecting a
contract.
It has been defined:
(a) By Dicey as “ the law or laws, by which the parties intended, or may fairly
be presumed to have been intended, the contract to be governed (a mainly
subjective view);
(b) By Westlake, as the law of the country with which the transaction has the
most real connection (an objective view).
Ghana applies the objective view, See Adomako V Enterprise Insurance.

Judicial Definition: The courts have also formulated a definition of the proper law
of the contract. In Thonkinson V First Pensylvania (refer to case number 24) on
the reading list; The court applying the dictum of Lord Simon in Bonnitin V
Commonwealth of Australia (refer to case number 3 on reading list) defined
2
the proper law as “the system of law by reference to which the contract was made
or that with which the transaction has the closest and most real connection”. In
other words the court will prefer to describe the proper law of the contract as the
law with which the parties as reasonable men ought to have intended to govern the
contract, had they considered the matter when the contract was made.

Note examples of connecting factors which may influence the results and their
application as mentioned in the Assunzione case in 1954 approached the issues
from this angle:
i. How the ordinary and reasonable man would look at the situation
ii.

Origin and Development of the Proper Law Doctrine in English Law

The doctrine of the proper law of the contract was developed by the English Courts
in the 19th & 20th Centuries.
Morris is of the view that the English proper law doctrine is itself easily traceable
to, at least as far as Hubar, 17th Century Dutch Jury. Writings on the Doctrine
concept of the proper law of the contract had certain air of doubt arising from the
discrepancy between theories and practice. By the 19th century however, a large
body of writing in jurisprudence had been accumulated and applied
…………..Ultimately resulting in the birth of the proper law of the contract.

Robbinson V Blunt which is reported to be the first English case to show Hubar’s
influence is treated by the standard English text books by the English Standard of
laws as the locus classicus.
Before the evolution and development of the proper law of the contract in the
English conflict of laws, the English approach had been based on certain theories.
The theories included in no particular order of historical ranking:
a. The law of the place of contracting (that is lex loci contractus)
b. The lex loci solutionis
…. It is based on an internal …

Contribution of English Conflict of Laws on Contract

3
The development of the proper conflict of laws by the English has put the conflict
of laws on contract unto a statutory bases for the first time thereby replacing the
common law rules. See section 54 (1) Rule 1

Party Autonomy in the Conflict of Laws

Contract law has for many centuries recognized the freedom of the parties to
contract. Party autonomy has long been held as the foundation of contract in the
common law. The approach of English conflict of laws to international contract
was greatly influenced by its largely laiserfaire attitude to contractrual terms. The
parties are free to agree the terms of the contract that will govern their relationship
or, businessmen should be free to make their own laws. The 19th century position
was actually summed up with characteristics candor by Jessel in Printing &
Nemerical Printing Co V Sampson as follows, “if there is one thing more than
another, which public policy requires, it is that men of full age and competent
understanding shall have the utmost liberty in contracting, and that their contract
when entered into freely and voluntarily, shall be held secret and shall be enforced
by court of justice”.
What this means in the context of International contract in the conflict of laws is
that where parties of full age and competent understanding have entered into
contract freely and voluntarily and have chosen the system of law with respect to
which the contract is to be governed, then it of the duty of the court to uphold and
enforce such wishes of the parties to the contract.

LECTURE TWO (2)

Saturday, 7th July, 2018
Family and Family Law
1. Definition of Family
There is no concise definition of what constitutes a family.
There is the broad popular meaning of family and the narrow technical legal
meaning of family. The narrow meaning of family is the Husband, wife and
children and sometimes for academic purposes the househelps/domestic servants
among others. The broad and popular meaning of the family includes the uncles,
nieces, nephews, grandparents among others. Mention the various writers
definition of family from the broad meaning and from the narrow technical
meaning.
4
Consider the case law too.
Family law is thus defined as the law that regulates the operation and the very
existence of the family such as property issues, which are incidental to the family.
Refer to the following for details: It could relates to issues of property as in Article
20 of the Constitution, 1992, Marriage issues as in Article 22 of the Constitution,
1992, Issues of Economics/Economic Rights (Article 25) and Section 19 of the
Matrimonial Causes Act, Issues bothering on Children as stated in Article 28 of the
Constitution, 1992, The Children Act, 1998 (Act560???)

2. English and Ghanaian Laws perspective of Family

i. The meaning of family and family law in English Law
ii. Family and Family law in Ghana (Here a close look at the family systems,
that is Patrilineal and matrilineal systems of inheritance). This is very
important because when a person dies there must always be a customary
successor

3. Membership of a Particular Family

4. The Customary Successor must also be looked at
5. Distinction between the Extended Family and the Nuclear Family

Saturday 14th July, 2018; Lecture Three

Ascertainment of the Proper Law of the Contract
The Judicial process in any conflict case follows a specific pattern:
1. The definition and nature from the point of view of the pragmatic:
– From Morris-subjective view
– Westlake from the objective view
– Express choice
2. In Line with Party’s Choice

3. The Vita Food V case gave three conditions:

– the parties exercising good faith
– Illegal ( take a case like Zaglo Real Estate V british airways, also read
PNDC Law 150, Zainy V Sandoth, Pearce V Brooke,

5
 4. – Contra Bonus Morris; that is against public policy as provided for in
the case of Kessie V Charmant
5. Where there is no express law the court would apply implied law of the
parties, the lex loci, the lex solutionis, etc would be used by the court.
6. Where there is neither the express or implied law of the parties, refer to
Godka V PS International, etc.

Notes given by Ansa Asare

Ascertainment of the Proper Law of the Contract
In ascertaining the proper law of the contract, the courts always attempt to follow
the approach below:
1. They will first ask or inquire whether the parties have given an indication of
the governing or applicable law. That is to say whether the parties have
expressly selected the governing law. This is the express choice of the
parties
2. Next, if the parties have not expressly chosen or selected the proper law, it
would be deemed to have implied the governing or applicable law
3. Finally, where they has been no bona fide express choice of the proper law
or an implied one, then the judicial approach would be to find a system of
law which the transaction as its process and most real connection. Tis
judicial inquiry can be found in the Ghana case of:
Refer to case number 9, 6 and number 7 of the reading list to fill the cases

1. Where there is an Express Choice of the Proper Law:

The language of the judges in several of the decided cases favours the
subjective view, whereby the parties, provided their intention is bona fide
are free to choose as the proper law any law which they pleads, even the law
of a country with which the contract has no real connection (See per Lord
Atkin in R V International Trustees, see also per Lord Wright in Vita
Food Products Inc. V Unus Shipping Co. Ltd).
6
 Many writers including Cheshire are of the view that once it is admitted that
a valid contract has been created, the parties have freedom of choice in
selecting the law which is to govern it, but otherwise most writers prefer the
objective view.
In Vita Food Product Inc. V Unus Shipping Co. Ltd, Lord Wright
acknowledged the freedom of the parties nevertheless explained that parties’
autonomy is subject to the limitation of good faith, legality and public
policy.

Otherwise an express provision in an international contract for instance

Ghanaian Arbitration effectively ensures that the proper law of the contract
is Ghana law even though the contract has little factual connection with
Ghana.
The following cases are instructive or provided:
Ackaman V Society General, Godka Group of Companies V PS
International, Garcia V Torrejoh, Hamlyn V Talisker and the case titled
NV Kwik Hoo Tong V James Finlay. Another sign post which is a well-
established rule or principle is that once a valid contract is made, the parties
to the contract have the right to incorporate into it the domestic provision of
any law they plead (See for instance the Arbitration Act of 1961), Fattal V
Fattal is a helpful case. It should be noted however that this is not the same
thing as an express choice of the proper law, since the provision which are
incorporated are construed as terms of the contract and are not affected by
changes in the law after the date of the contract, whereas a proper law is
administered as a living and changing body of law.

2. Where There Has Been No Bona Fide Express Choice of the Proper
Law
It is a well-established rule that where there has been no bona fide terms of the
proper law, the objective test of intention is applied and the proper law is the law
with which the transaction has it closest and most real connection (See Garcia V
Torrejoh, Godka Group of Companies V PS International, Thomkinson V First
Pennsylvania Banking, applying a dictum of Lord Simons in Bonython V
Commonwealth of Australia describing the proper law as “the system of law by
reference to which the contract was made or that with which the transaction has the
7
closest and most real connection. That is to say, the proper law is the laws which
the parties as reasonable men ought to have intended to govern the contract had
they consider the matter when the contract was made. In other words, where there
is no express choice of the proper law, the proper law is the laws which the parties
as reasonable men would have intended to govern the contract had they consider
the matter.

Read the case of Grippman V Nigeria Airways

Particular Topics

Capacity
The authorities do not clearly establish what law governs capacity to make a
mercantile contract. Opinion is divided. Some writers with the support of some
decided cases are of the view that capacity was governed by the law of the place
where the contract was made. The 1800 English case of De May V Roberts is
illustrative of this view. There is a contrary school of thought which is of the view
that the lex loci contractus theory is hardly satisfactory since it would enable a
party to evade any capacity simply by making a contract in a place where that same
capacity does not exist.
There is yet another school which hold the view that capacity is to govern by the
law of the domicile of the parties (See Charron V Montreal Trust Co., Sottomayor
V De Barros).
The modern view is that capacity in relation to commercial contract is governed by
the proper law of the contract in the objective sense.

Formation of the Contract

a. Formation of the Agreement: As regard the fact of agreement, there is no
clear decision as to the law which will determine whether the agreement
between the parties is complete. The moment at which an acceptance by post

8
 becomes effective (Refer to Afolabi V Almera, Addison V A.S Norway
Cement Export Ltd, Kessie V Charmant).
b. Formal Validity: Under the common of Ghana, it is sufficient for the
parties to comply either with the law of the place where the contract was
made, or with the proper law.
c. Essential Requirements Either than Form: With regard to essential
requirements either form, the putative proper law governs such questions as
whether a contract not under seal must be supported by consideration (
Kessie V Charmant, Re: Bonacina (1912) 2 CH.394.

Legality of Purpose
The Ghanaian Courts would not enforce the following Contracts:
i. If it is illegal by its proper law…
ii. If it infringes a distinctive public policy of Ghana ( Refer to Fiajoe, A.
K., Canfor V Kpodo and, Kessie V Charmant)
iii. If it connotes sexual immorality
iv. If it will obstructs the administration of justice
v. If it is a contract to commit a crime or a tort.

Interpretation
The view is that, once it is admitted that the valid contract has been made, there is
no reason why the parties should not be freed to select the law which will govern
its meaning. Interpretation is accordingly governed by the law which the parties
intended should govern it, but in the absence of an express choice there is a strong
presumption in favour of the proper law in the objective sense.

Discharge
As regard discharge of the contract, the proper law governs.

Judgments or Awards in Foreign Currency

In what currency must the judgment be awarded? Refer to Godka Group of
Companies V PS International, Ackerman V Societe General
9
That instead of looking at the law of the connecting factors, that there in the
19607s was a new wind blowing championed by Lord Denning that parties to look
instead at the in applying the proper law the intention of the parties must be taken
into consideration. Refer to case number 2 where the rules was laid down that an
English court has no jurisdiction to order any party to make payment in any
currency. Refer to case number 14, 15, 16. The biggest departure however came in
case number 17, a German case. Read Lord Denning decision as provided for in
case number 1. (Take note of the difference as mentioned by Lord Denning in
case number 1 and in number 17).
The practice direction of as stated in case number 18 as departed from case
number 1; Lord Denning decision.
Refer to case number 4 where the court of appeal stated that Ackerman V Societe
General was wrongly decided., It was followed in Mensah V National Savings
Trading Corporation, Silver Peak V National Investment Bank

Saturday 21st July, 2018-Lecture Four (4)

Foreign or International Tort:
Akrong V Bulley
Definition:
International Tort is a tort committed abroad and so we apply the rules of private
international law.
Section 54 (1) r1 of the Courts Act, 1993 (Act 459) interpret transaction to mean
an issue arising out of a contract, restitution and tort shall be determined according
to the system of law intended by the parties to the transaction to govern the issue or
the system of law which the parties may, from the nature or form of the transaction
be taken to have intended to govern the issue.
Refer to the case of Watcher V Harlley where it is assumed not to be properly
decided. You may be asked in an exam to comment on the wrongfulness or
otherwise of that ruling.
10
A customary successor doe not need to take or go in for letters of administration
The applicable law was laid down the case of Philips V Isles. The rules states that
two conditions exist which the plaintiff must fulfilled:

Tort Committed on Land

What follows assume that the Ghana Courts have jurisdiction to hear the action.
An action brought before the Ghana courts for a tort committed abroad will
succeed only if the rules laid down in the 1870 English case of Philip v Isle are
fulfilled/met/satisfied.
An international tort within the context of Ghanaian conflict of laws is a tort
committed outside Ghana.it could be assault and battery, it could negligent,
defamation, etc,. In other words, if the tort was committed outside Ghana’s
territorial area or simply the tort was committed in a foreign country, it would
constitute an international tort.
The applicable law governing international tort in Ghanaians Courts can be found
in the famous or world known English case of Philip V Isle. It arose in 1870. After
dealing with the triable issues, Willy J as he then was held that, an action in an
English court for a tort committed abroad would succeed only if the conditions laid
down were fulfilled.

Philip V Isle became part of Ghanaians conflict of laws when the colony of the
Gold Coast was created on 24th July, 1874. It is therefore of common law origin
and it is part of the rules of private international law mentioned in section 54 (2) of
the courts act, 1993 (act 459).

In line with the principles enunciated in Philip v Isle:

1. An action in Ghana for a tort committed abroad as for example on land or at
sea or on the high seas will succeed only if the tort is both; –
(a) Actionable by Ghana internal law (that is to say of such a character
that it would have been actionable if committed in Ghana, and,

(b) Not justifiable by the internal law of the place where it was done. The
two statements stated above must always be in contemplation when
dealing with a matter in which a foreign tort is involved.

11
2. As regard (1) (a) above, there is the authority of Akrong V Bulley to the
effect that the plaintiff must show that the right of action is vested in him
personally by Ghanaian Law.

On this point, there is no English authority directly on the point. According

to the Scot case of Mirroid V Mailisaid, criticized by Cheshire, plaintiff
suing in Scotland just as Akron V Bully, the plaintiff must show that the
right of action is vested in him by Scot law. As regard (1) (b) noted above, it
was held in Macado V Frongate that it suffices if an act is either tortious or
criminal where committed. Satsa criticizes this decision and argues that the
act should be civilly actionable where committed.

There are different approaches in different jurisdictions. The Ghanaian

approach derives from the English approach established in Philip V Isle
turns largely on the two rules or conditions already referred to. In George
Monroe V American Cyanamid Corporation, the court observed that the
tort is committed where the wrongful act or default is committed and not
where that damage is suffered even if damage is of the gist of the action.
And it was held in Bata V Bata that libel is committed is committed where
it was published.
A Tort Committed at Sea
i. In territorial Waters: The rules in Philip V Isle apply to tort
committed in foreign territorial waters. Note that the Harley is a Privy
Council decision.
ii. On the High Seas: a confined to a ship, for instance a passenger
assaults the captain. As regards tort on the high seas, where the
wrongful act is confined to a single ship, it must be actionable by
Ghanaian law and not justifiable by the law of the ship flag. (b).
External to a ship as for instance negligence leading to a collision with
another ship. Other torts on the high seas are governed solely by
Ghanaian maritime law.
Cheshire suggests that the tort should be committed as having occurred in
any country which is substantially affected by the defendant activities or its
consequences and the law of which is likely to have been in the reasonable
contemplation of the parties.
12
Some times called double baron rule, Philp v Isle, double actionability, concurrent
liability

This is a tort committed outside Ghana. Refer to Kofi Kumado’s book, Atupare’ s
book for details.
Refer to the 1870 case of Philip V Isles for details. There is no known case in
English law apart from the case of Philip v isle (this case established the double
baron rule).
The next important case is Marcado V Frongate which has now been overturned,
refer to case number 8 on the reading list, also, read also Chapeling V Boise
Refer to section 54: Choice of law Rule
Section 54 (1) deals with only the laws of Ghana.
Section 54 (2) defines the internal law to wit the law of Ghana including the
private international law
In the Ghanaian case of WACHTER v. HARLLEY [1968] GLR 1069-1080, the court held
inter alia that:
To establish jurisdiction in a tort committed outside Ghana the tort complained of,
(a) must be actionable as a tort according to the law of Ghana, and (b) must be
one which was not justifiable according to the law of the country where the tort
was alleged to have been committed. The application before the court was one in
respect of an action in personam. It was an action based on an alleged
slander. The law was that if at the time of the service of the writ the defendant was
within the jurisdiction of the court, then the court had jurisdiction in respect of any
cause of action, being in personam, regardless of where the cause of action
arose. In the instant case the defendant was within the jurisdiction of the court
when the writ was issued and he was served with it. His nationality and the period
of his stay in the country were immaterial. It was equally immaterial whether his
stay here was voluntary or otherwise. The applicant's contention that slander
committed outside Ghana could not be tried by Ghanaian courts unless it was
established that the slander was actionable where it was committed was therefore
untenable.

13
Saturday 4th August, 2018; Lecture Five (5)

Choice of Law Rule Regarding Marriage

Refer to Section 54 of the Courts Act, 1993 (Act459)
Marriage with the Husband and Wife being Central because of the purposes of
procreation. Read Genesis 2: 24, Matthew 19: 5

Marriage
Husband and Wife
Ghana is an ex-colony of the British therefore the English law is central in
deciding what is marriage:

The English view of Marriage; It is a voluntary view of one wife to one woman
for an indefinite duration to the exclusion of all others.

14
What does the expression one man to one woman mean? It should be to the
voluntary consent of one man to one woman as formulated by Lord Penzance in
the case of Hyde V Hyde. Opposite sex not same sex under the English Law was
what existed. So under the English Law same sex marriage under the law was
criminalized. This however is not the case today in Britain as there is an
amendment to this provision to pave way for the inclusion of same sex marriage.
Same sex marriage is still a criminal offence in Ghana.

There must be the voluntary union and not under compulsion or coercion.
It must also be under the principle of consanguinity (that is sisters or blood related
marriage) Read Section 13 of the Matrimonial Causes Act, 1971 (Act 367).

Application of the Law

Refer to Section 41 of the Matrimonial Causes Act, 1971 (Act 367): The English
view is one of monogamy and that is the subject matter of section. Section 43 of
Act 367, defines what constitutes monogamous marriage.

Enactments of Statutes ceasing to exist

Section 44 of Act 367, the statute distribution of and the 1617 would not apply,
Basic Differences Between the Two
See Article 11 (2 ) The definition of customary law as spelt out in Article 11 (3) of
the Constitution, 1992… includes those determined by the superior courts of
judicature. (Judicial case law).
Under Article 11 (3) of the Constitution, the definition of customary law does not
include those determined by the courts.

The Ghanaian View of Marriage

In the case of Yaotey V Quaye; Ollenu, J defined the Ghanaian view of marriage
to include a union of two family. This definition can however be extended by
saying that it ids the union two families based on the agreement and consent of the
two people.
15
The essentials of a valid customary marriage established in Yaotey V Quaye
are:

(a) agreement by the parties to live together as man and wife;

(b) consent of the families of the man and the woman to the marriage. Such
consent may be implied from the conduct, e.g. acknowledging the parties as man
and wife, or accepting drink from the man or his family;

(c) consummation of the marriage, ie. the parties living together openly as man and
wife

Section 54 (1) and (2) of the Courts Act, 1993 (Act 459), as amended; The internal
law is the law that the courts of that country will apply to the dissolution of an
issue when the case arise. Section 15 of the Wills Act must always be read in
tandem with Section 16 of the Wills Act.

Sunday 12th August, 2018

Capacity to Marry in the Conflict of Laws
Capacity relates to rules that are to be complied with in the conflict of marriage
rules in the wider context of family law. In particular, compliance with rules as to
the prohibited degree of relationship and as to the earliest age at which a person
can marry at all.
According to the usual view of capacity held for instance by Dicey, Martin Woldd
stated in their book ‘Private International Law, each party must have capacity to
marry the other by the law of his or her domicile immediately prior to marriage. In
Yaotey V Quaye, Ollenu J, as he then was expressed the view that the issue of
capacity must be regulated by the law of the place where the marriage is
celebrated. It seems however that the better view is the usual view of capacity
noted above.

16
Consequently;
1. If each party has such capacity, we recognize as valid a marriage celebrated
abroad although it would not be celebrated in Ghana. See Sowah V Sowah
and also Re Bozzelli

2. If either party lacks such capacity the marriage is void. See Sottomayor v De
Barres, Metter V Metter, Re Pain

The usual view is subject to two exceptions:

a. If the marriage is celebrated in Ghana and one of the parties is domicile in
Ghana it is sufficient that both parties would have capacities by Ghanaian
Law. See section 31 and 35 of the Matrimonial Causes Act, 1971 (Act367).
At common law the stated period of the domicile is the period immediately
preceding the marriage which is different in the Ghanaian Law as stated in
Section 32 of the Matrimonial Causes Act, 1971 (Act367). Note that section
31 and 35 derived from the decision to the English case of Sottomayor V De
Barres N02, a decision criticized by Cheshire.
b. If the marriage is celebrated in Ghana, the Ghanaian court will not give
effect to an incapacity which is penal in nature or contrary to the public
policy of Ghana. See In Re Carrias Vella (Donkor V …). Note also the
following English cases, Scot V Attorney General, Chetti V Chetti, Warter
V Warter. Wherever a marriage was celebrated, a Ghanaian court will refuse
to recognize a capacity or incapacity where it would be unconscionable to do
otherwise. See In Re Carriage Bola, Donkor V Greek Console General.

The reasoning in most of the decided cases supports the usual view of
capacity held by for instance Dicey. But as has been observed, Cheshire’s
view is that capacity to marry should be governed by the law of the intended
matrimonial home which if no other intention appears, is presumed to be the
law of the husband domicile at the time of the marriage. Note the arguments
put forward in support of this view and that some judicial support of
Cheshire view can be found in the cases of Derenevile V Derenevile and
Kenward V Kenward. It would appear that the parties to the marriage must
have capacity by the lex causae solutionis although the only illustrative case
is Breen V Breen.
17
Formalities of Marriage in the Conflict of Laws
As a general rule, the formal validity of a marriage depends upon the law of
the place where it is celebrated. This general rule was laid down in Screinser
V Screinser.

In the case of a marriage by proxy, the Ghanaian conflict rule is that the
palace of celebration is the place in which the proxy takes part in a formal
ceremony. This is in line with the rules laid down in Apt V Apt. The
reasoning behind thus general rule is that the authority is conferred upon him
or her by the absence party. A marriage formally void by the law of the
place of celebration can be retrospectively validated by legislation in that
place. This common law rule is easily traceable in the English case of
Sacousy V A.G.

Note that the necessity of obtaining parental consent is a question of

formality governed by the lex loci solutionis, not a question of capacity
governed by the lex domicile. See Cemonin V Mallat, Udden V Udden
(which has been much criticized). Note further that the original common law
was that parties might marry by taken each other as man and wife. It was
and has been a long established rule that an Episcopally Ordained priest can
officiate a marriage. This long standing rule was enunciated in RV Millis.

Matrimonial Causes

Suits For Dissolution of Marriage

Ghanaian Suits
Jurisdiction
The general rule is that the Ghanaian courts have jurisdiction in Ghanaian
courts only if:
a. Either party is Ghanaian citizen
b. Resident in Ghana
c. Or has been ordinarily resident in Ghana for at least three years
immediately preceding the commencement of the marriage.
18
Note that the statutory language is ‘immediately preceding the
commencement of the proceedings’. Section 31(c) of Act 367 is therefore a
common law rule stated in Le Mesurier V Le Mesurier or H V H or
Brownry V Brownry, all of which fix the timing at the start of the preceding
and not immediately proceedings.

Section 34 of Act 367, therefore provides a statutory exception to the general

rule. See the English case of Rassel V Rassel.
Further if the husband has completely disappeared and his last established
domicile was Ghanaian, the wife may be able to rely upon Sections 15 (i.e
presumption of death) and 32 of Act 367. Note that in suit for presumption
death (section 15 of Act 367) and a dissolution (section 31 of Act 367), the
court has the jurisdiction if the wife is the petitioner, if she is domicile in
Ghana or in line with Section 32 of Act 367. In case of section 15
proceedings under the Act, the wife for the purpose of determination on the
basis that her husband died immediately after the last occasion on which she
knew or had reasons to belief him to be living, for a section 31 resolution,
the wife as petioner must be able to establish that she had been ordinarily
resident in Ghana for a period of at least three years immediately preceding
the commencement of the proceedings.

Choice of Law
Further all questions arising in divorce suit in Ghanaian conflict of laws
properly brought in Ghana are governed exclusively by Ghanaian law. See
Section 31 of Matrimonial Causes Act, 1971 (Act 367)

Recognition of Foreign Decrees

i. A foreign divorce decree is recognized in Ghana
a. if granted by the court of the domicile of the parties at the start of
the suit. See Brown V Mallet, In Re Carias Bola supra
b. If recognized by such courts. See Amponsah V Amponsah
reasserting the common law rule laid down in Hamilton V
Attorney General or under the principle of reciprocity (that is,
where the facts if revert disclosed the situation in which for
19
 instance the English courts would have possess jurisdiction under
Section 40 (1) of the Matrimonial Causes Act, 1971, (Act 367).

Suit for Nullity of Marriage

1. Distinguish a void marriage where the parties never have been married and
may therefore have separate domiciles
And where the nullity decree is declaratory only, from (b) a voidable
marriage which a marriage for all purposes until a nullity decree is obtained,
the wife having necessarily the same domicile as her husband or in terms of
section 32 of Act 367,
2. On the annulment of a voidable marriage, the decree is to the effect that
there never had been a marriage.

Jurisdiction in Suit For Nullity of Marriage

1. Whether the marriage is alleged to be void or voidable, the Ghana courts
have jurisdiction if the conditions in Section 31 of the Act can be met or
under section 40 (1) paragraph (a) of the Matrimonial Causes Act, 1965 of
English whereby an English court would entertain a suit by the wife ……??/
and the matter was pending before the coming into force of Act 367.
Note also that in English Law, one of the test as to whether a wife has been
ordinarily resident in England is the location of her real home. See the
Ghanaian case of Abu-Chedid V Abu-chedid for a seeming application of
this test. The test was applied in the English case of Lewis V Lewis.

Sunday 19th August, 2018

Matrimonial Causes

Legitimacy V Legitimation (Coleman V Shang)

Section 15 of the Matrimonial Causes ActAct 367 talks about

presumption of death and dissolution of marriage

The act does not define exactly what matrimonial cause is. Rather the act
provides examples of what matrimonial cause is. Take for Example Section
31 of Act 367, which is on Divorce and the whole of Part One of the Act
20
 deals with Divorce whereas Part II deals with Other Matrimonial Causes.
One is one institution that is so sacrosanct that its sanctity is obvious. As the
Bible says what God has put together, let no man put asunder. You therefore
need a though character file a divorce action. Part one of the Act which
Under Section 2 (f) of Act 367 talks about divorce. Read the Ghana case of
Gray V Gray, here it is clear that as late as 1985, the Ghanaian Law on
matrimonial causes was the same as that of the Matrimonial Causes of
England. The definition of Matrimonial Causes can however be viewed from
Black Law Dictionary, Shorter Oxford Dictionary. We can only go by the
common law definition of matrimonial cause. The Act only gives us
examples of matrimonial causes without defining same. The focus of the
class would be on proceedings relating to Divorce (Section 31, 32, 33 34 and
35), Nullity Proceedings (Section 13), Child Custody, Financial Provision in
the event of the dissolution of a marriage. The main condition for divorce
proceedings are three and are provided for in section 31 of the Matrimonial
Causes Act, 1971 (Act 367):
a. Domicile in Ghana
b. Citizen of Ghana
c. Or ordinarily resident in Ghana

The Grounds for the Dissolution of Marriage

Section 2 (1) (a-f) of the Matrimonial Causes Act, 1971 (Act 367)
Provides for the Proof/Grounds for Dissolution of Marriage:

(1) For the purpose of showing that the marriage has broken down beyond
reconciliation the petitioner shall satisfy the court of one or more of the following
facts:—

(a) That the respondent has committed adultery and that by reason of such
adultery the petitioner finds it intolerable to live with the respondent; or

(b) That the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent; or

21
 (c) That the respondent has deserted (desertion here means absence of sex,
etc) the petitioner for a continuous period of at least two years immediately
preceding the presentation of the petition; or

(d) That the parties to the marriage have not lived as man and wife for a
continuous period of at least two years immediately preceding the
presentation of the petition and the respondent consents to the grant of a
decree of divorce; provided that such consent shall not be unreasonably
withheld, and where the Court is satisfied that it has been so withheld, the
Court may grant a petition for divorce under this paragraph notwithstanding
the refusal; or

(e) That the parties to the marriage have not lived as man and wife for a
continuous period of at least five years immediately preceding the
presentation of the petition; or

(f) That the parties to the marriage have, after diligent effort, been unable to
reconcile their differences.

Note: There would be a question to write on divorce

Difference between Part One of the Act and Part two of the Act
The difference between Part One of Act 367 and Part two is that Part one
deals with a valid and voidable marriage while part Two deals with Nullity
as provided for in Section 13 of the Matrimonial Causes Act, 1971 (Act
367).

Nullity of Marriage (Section 13 of the Matrimonial Causes Act, 1971 (Act 367)
(1) Any person may present a petition to the court for a decree annulling his
marriage on the ground that it is by law void or voidable (in this Act referred to as
"a decree of nullity”).

22
(2) In addition to any other grounds on which a marriage is by law void or
voidable, a marriage shall, subject to subsection (3), be voidable on the ground—
(a) that the marriage has not been consummated owing to the wilful refusal
of the respondent to consummate it; or
(b) that at the time of the marriage either party to the marriage was of
unsound mind or subject to recurrent attacks of insanity; or
(c) that the respondent was at the time of the marriage pregnant by some
person other than the petitioner; or
(d) that the respondent was at the time of the marriage suffering from an
incurable venereal disease in a communicable form
Or on grounds of consanguinity (blood related marriage)

Part III Deals With Financial Provision

Part Iv Deals With The General Jurisdiction
Read Section 31 of Act 367 which has statutorily recognition of the common
law rules. This section has split … intot two:

PART III—FINANCIAL PROVISION, CHILD CUSTODY AND OTHER

RELIEF

Section 18 of Act 367—General Powers

In any proceedings under this Act, the court may exercise any of the powers
specified in this Part.
Section 19 of Act 367—Financial Provision for Spouse.
The court may, whenever it thinks just and equitable, award maintenance pending
suit or financial provision to either party to the marriage, but no order for

23
maintenance pending suit or financial provision shall be made until the court has
considered the standard of living of the parties and their circumstances.

Section 20 of Act 367—Property Settlement

(1) The court may order either party to the marriage to pay to the other party such
sum of money or convey to the other party such movable or immovable property as
settlement of property rights or in lieu thereof or as part of financial provision as
the court thinks just and equitable.
(2) Payments and conveyances under this section may be ordered to be made in
gross or by instalments.

Section 21 of Act 367—Conveyance of Title

(1) When a decree of divorce or nullity is granted, if the court is satisfied that
either party to the marriage holds title to movable or immovable property part or
all of which rightfully belongs to the other, the court shall order transfer or
conveyance of the interest to the party entitled to it upon such terms as the court
thinks just and equitable.
(2) When a transfer or conveyance of movable or immovable property is ordered
by the court and the party ordered to make the transfer or conveyance is either
unable or unwilling to do so, the court may order the registrar of the court to
execute the appropriate transfer or conveyance on the part of that party.

Section 22 of Act 367—Custody and Financial Provision for Children.

(1) In all proceedings under this Act, it shall be the duty of the court to inquire
whether there are any children of the household.

24
(2) The court may, either on its own initiative or on application by a party to any
proceedings under this Act, make any order concerning any child of the household
which it thinks reasonable and for the benefit of the child.
(3) Without prejudice to the generality of subsection (2), an order under that
section may—
(a) award custody of the child to any person;
(b) regulate the right of access of any person to the child;
(c) provide for the education and maintenance of the child out of the
property or income of either or both of the parties to the marriage.
PART IV—JURISDICTION
Section 31 of Act 367—General Matrimonial Jurisdiction
The court shall have jurisdiction in any proceedings under this Act where either
party to the marriage—
(a) is a citizen of Ghana; or
(b) is domiciled in Ghana; or
(c) has been ordinarily resident in Ghana for at least three years immediately
preceding the commencement of the proceedings.
Section 32 of Act 367—Domicile of Married Women.
For the sole purpose of determining jurisdiction under this Act, the domicile of a
married woman shall be determined as if the woman was above the age of twenty-
one and not married.Read the case of Gray V Fomose. This same position was also
held by the Ghanaian Court of Appeal as being progressive in the case of
Amponsah V Amponsah.
Section 33 of Act 367-Additional Jurisdiction Relating to Financial Provision
In addition to any other jurisdiction conferred by this Act, the court shall have
jurisdiction, where a party who may be ordered to make financial provision has

25
assets in Ghana, to order that party to make financial provision not exceeding the
value of those assets.
Section 34 of Act 367—Additional Jurisdiction Relating to Child Custody
In addition to any other jurisdiction conferred by this Act, the court shall have
jurisdiction to make child custody arrangements whenever the child whose custody
is in question is present in Ghana.
Section 35 of Act 367—Choice of Law
In any proceedings under this Act, except in proceedings for a decree of nullity of
a void marriage, the issues shall be determined as if both parties to the marriage
were domiciled in Ghana at the commencement of the proceedings.
Section 36 of Act 367Recognition of Foreign Decrees (Note this section well)
The court shall recognize as valid a decree of divorce, nullity or presumption of
death and dissolution of marriage, obtained by judicial process or otherwise, which
is not contrary to natural justice, and which—
(a) has been granted by any tribunal which had a significant and substantial
connection with the parties to the marriage; or
(b) is in accordance with the law of the place where both parties to the
marriage were ordinarily resident at the time of the action dissolving or
annulling the marriage.
Sunday 26th August, 2016
One question Nullity of Divorce Proceedings
General Jurisdiction of the Ghana Courts in Divorce Cases
Nullity of Divorce proceedings:
Section 31 of the Matrimonial Causes Act gives a statutory blessing of the
common law rule (i.e to be able to litigate a divorce proceeding, you should
have resident in England for three years and more) of the English case of Le
Mesurier V Le Mesurier
26
Oppong has taken a swipe on the provision of Section 31 of the Matrimonial
Causes Act. Compare this Canfor V Kpodo.
Read Abujauded case and state that at the time this case was decided it was
the English law of marriage which was in force and that decision would have
changed it were to be decided today.
Importance of Section 31 of the Matrimonial Causes Act
1. It has endorse the common rule in Le Mesurier V Le Mesurier
Section 35 empower the courts to apply the law of the domicile of the parties
(that is it states that ‘either citizen ) can apply for the divorce. The court will
normally use rules of evidence and rules of procedure.
Section 32 of the Act has statutorily modified the common law rule, that is
for the sole purpose divorce proceedings the woman would fo as though she
has never married before. Section 32 of the Matrimonial Causes Act has
abolished the rule in Fomosa.
Take note of the case of Sowah V Sowah where the court stated that the fact
that Ghana is a polygamous society does not mean that one cannot marry
under the rule lay down in Hyde V Hyde (a man and woman getting
married).

Distinction between Void marriage and Voidable Marriage

Define marriage from the perspective of the Act, and that of case law, e.g
Hyde V Hyde, Le Mesurier V Le Mesurier, the dictionary view, text writers
like Oppong among others, The 21ST century definition of marriage
including same sex marriage.
Essential validity of a marriage

27
Void Marriage (Null and void), It satisfy the consanguinity rule, sister and
brother, blood related marriage, etc. Voidable marriage is valid until the
court set it aside.
Section 2 of the English Marriage Act 1949 provides that a marriage
between persons either of whom is under the age of sixteen years is void.
Section 2 of the Children Act, 1998 (Act 560) has given a statutory blessings
to this provision, that marriage contracted between persons under age
without consent is void ab intio.

Note that there would be a question on same sex marriage

Civil Marriages or Same Sex Marriage
The question of what constitute civil marriage?
Is a topical and a thought provoking question that beg answers. It means
different thing to different people from different parts of the world including
Ghana. It is probably one of the most debatable and well over researched
areas in the world of space . Happening of Soddom and Gomora in the Bible
of homosexuals is easily called to mind. Some say is a social defect that
must be criminilised. Others say it must be viewed from the context of a
criminal offence and yet others are defining it as a life for the elite class. The
busuazi or the so called rich people across the world.

The interpretation section of the Matrimonial Causes Act does not defined
same sex marriage or gayism. Such marriages were frowned upon as in the
case of DPP V Shaw, Whoolminton V DPP, the Ghanaian case of Isaac

28
Antwi V Republic. That if were done in the open it was a crime but if it were
done in the closest, it was not a crime.
The fact that section 35 or 43 of the Matrimonial Causes Act talks about
divorce proceedings involving all persons including same sex marriage. The
Act does not use the language dissolution of marriages regarding same sex
marriage does not mean that when divorce petition regarding same marriage
the judge would not entertain same sex marriage. The judge must and should
sit on the such divorce proceedings because he is under oath to do justice to
Article 17 of the Constitution, 1992 frowns upon discrimination against all
persons filing divorce proceedings in the Ghanaian Court including persons
seeking divorce in same sex marriage. What about if the judge comes under
the fact public policy and under Section 104 of the Criminal offences Act,
1960 (Act 29) talks about unnatural canal knowledge which is limited in
scope. What of two ladies using their breast? Does it qualify the test of
unnatural canal knowledge? Read also Kessie V Chammant on public policy
reasons. The judge would have been discriminating against such people of
same sex marriage as all manner of persons without fear and without favour.
So when the case is called, two jurisdiction would be come to mind:
1. The jurisdiction of the judge (where the parties are duly served and they
appear before him for the determination of divorce proceedings). As our
law is scourged now, it would be difficult for a judge to decline
jurisdiction of divorce proceedings regarding same sex marriage.
2. The Jurisdiction of the Court: Whether the court has the power to
entertain the matter.
The social conditions at the time especially the practice in Sodom and
Gamora.
It has become
29
Sunday 2nd September, 2018
The Law of Property
Section deals with the rebuttable presumption and Section 35 of the
Evidence Act-Possession is 9/10 of the law.
Common law recognized the person in possession of the legal documents of
the property.
The development of equity has to create new right whereby the beneficiary
owner has to be recognized under the law of equity.
The classification of property into movable and immovable is of Roamn
origin and the reason we are using it is the fact that we were colonized by
the British and these laws were part and parcel of it.
Section 119 (2) of the Courts Act talk about some provisions of general
application particularly some…… Also read Article 132 of the Constitution,
1992, and Section 54 (1) Rule 7 of the Courts Act. In furtherance of that we
also have to look at Section 54 (1) Rule 2, 3 and 4 of the Courts Act, 1993
(Act459). The expression overriding provision’ Brobbey has included it in
the case titled Gareth V Gareth. Also read Akoto V Akoto, Kings V Elliot,
Davies V Randall, Read als the case of British Companion V …., Omane V
Poku, and also Section 54 (1) rule 2 deals with the choice of law rule.

The Rules
In terms of Choice of Law; the general rule of the common law origin is that
of the provision is mentioned in Section 54 (1) Rule 2-Personal Law of that

30
person. See Apenyo V Apenyo, Per Asare Korang JA as he then was, See
Gareth V Gareth, Kings V Elliot.

NOTES BY ANSAH ASARE

The law of Property
Movable and Immovable Distinguished
Ghanaian Private International Law or the Conflict of Laws classified
property as Movable and Immovable, not as reality or personality. Read
Amartey V Otinkorang. The classification is historical and thus traceable
to Roman Law. The English adopted it. It became part of the common law of
Ghana following the general adoption of English Law which was officially
introduced into Ghana (formerly the Gold Coast) when the colony was
created on 24th July, 1874. The distinction has come to stay in Ghanaian law
and it must be used as such.
In Gareth V Gareth, Brobbey, J (as he then was) decided that the lex situs
decides whether property is movable or immovable. In his considered view,
the application or the decision must largely turn or depend as to whether
property is movable or immovable and is subject to the overriding provision
of our law in terms of Section 54 (1) Rule 4 of the Courts Act. In applying
Section 54 (1) Rule 4 must always be read together or in conjunction with
Section 54 (1) r2 & 3.

The distinction is important. More so when some jurisdictions may classify

what under Ghanaian private international law is immovable as movable.
In Ghanaian conflict of laws, the following among others are immovable:

31
 i. All interests in Land
ii. Freehold or leasehold including land held on trust for sale. Refer to
Sections 35, 36, 38 ,45, 46 and 48 of the Evidence Act
iii. Title Deed to Land
iv. A rent charged on Land, See section 47 of the evidence Act
v. Investments representing the proceeds of sale of settled lands
vi. A debt secured by mortgage of land (has been held to be immovable
as established in the case of Re Hoyles).
Some writers divide movable into tangible and intangible movables. Cheshire
prefers the distinction between Chose in possession and Chose in action.
Sales in possession refers to tangible movable objects whereas sale in action refers
to things such as debt, patents, copy right, goodwill, stocks and shares
Early writers took the view that Mobilia Sequuntur personam (i.e all questions of
rights over movables property were governed by the law of the person’s domicile).
This is true of devolution of movable on death, (See Sections 2 and 3 of Act 459).

Sunday 16th September, 2018

ADMINISTRATION OF MOVABLE ON DEATH

32
Read Amerley V Otingkorang
As stated below, under Ghanaian Conflict of Laws, immovable are generally
governed by the lex situs. The lex situs means not the domestic law of the place,
where the immovable is situated but the law which judges of that place would
apply to the case containing a foreign element. This common law rule as well it
meaning is well established in Ghana. The rule fines statutory expression in
Section 54 (1) r2, 3 & 4 of the Courts Act, 1993 (Act 459) in accordance with
section 54 (2) of the same act, the rule, has similarly being judicially considered in
many Ghanaian cases. As for instance

Exception to the rules

Whenever the situs rule is applied broadly and mechanically, it leads to injustice.
As such, many writers on the conflict of laws severelly criticized the rules. A fiece
commentator, Professor Hancock roundly condemned the situs rule as a taboo.
Follwing the academic scripters and judicial disapproval in certain instances of
case, the courts have developed exceptions to mitigate the rigouus of its application
as way of removing some of the injustices and manifold inconveniences =which
often occasioned the operation of the rules. There are three exceptions, two at
common law and one in equity:
1. The situs/Mozambique rule does not apply if the defendant can be seeved
with the writ here in Ghana or with leave abroad and there is some personal
obligation binding on his conscience by reason of contract for which the
famous case of Penn V Bartimould is illustrative. The rule would also not
apply in cases of fraud or other unconscionable conduct as in Crantown V
Johnson or fiduciary relationship such as occurred in Taller V Cartenberg. In
such a case the Ghana courts can exercise equitable jurisdiction in personam
although the suit or action relates to land abroad. In other words the Ghana
courts can order specific performance relating to land abroad, conveyance
where a conveyance of land abroad has been obtained by fraud or fox closer
of a mortgage of land abroad. However, it is worth noting that such
jurisdiction cannot be exercised thus, i. If the lex situs renders it impossible

33
 to carry out the courts decree; ii. Unless the defendant is under a personal
obligation to the plaintiff arising from the defendant own conduct.

1. The Common Law Exceptions

The common law exceptions are two folds:
a. Contracts and trust
b. Maritime Action.
If the question of title to land abroad arises in Ghana…… as where ……….
Which include foreign immovable is being administered in Ghanaian
proceeding of which Amerley V Ottinkorang is illustrative. See also Davies V
Randall, King V Illiot, For an instructive English case see Re duke of
Wellinton.
2. The second exception is in the area of Admiralty….. to enforce a maritime
lien resulting from damage done by a ship to land abroad. This exception at
common law was laid down in the English case of …. Where Lord Justice
Cock was of the opinion rhtat the Mozanbique rule has no application to the
admira;ty …… in personam

Question to Note!!!!
Distinguish between property of a Ghanaian domicile abroad and a person who
never domicile any where. Read Section 15 of the Wills Act and the relevant
provision in PNDC Law 111. If the person is domicile abroad then the internal
law of that person would apply under section 54 of the courts Act. We assume
that PNDC Law 111 is apply to only Ghanaian. This is not correct. Read
Sections 9, 10, 15, of the PNDC Law 111. Look for provision of the law in
PNDC Law 111 that apply to persons who died instate abroad. Refer to section
9, 10, 15 would apply. But if the person has property abroad, for instance in
Nigeria, South Africa, etc it is the laws of these areas that will apply and the the
courts in these areas would refer the matter to the Ghanaian Courts to
administer the property according to the personal law of the person under
Section 54 of the Courts Act.
There would a question on Sections 1, 84 and 85 of the Administration of Estate
Act. Read also Order 66… of C.I 47, Read also section????????

34
Read Section 84 and 85 of the administration of Estatate Act. Read also In Re
Lartey for more details……. Apply to the probate division for a resealing.
There is always a question in this area.

22nd September, 2018

Recognition and Enforcement of Foreign Judgments

Sunday, 23rd September, 2018

Areas for Exam
The trend the questions will change this year as there would be problem
questions

There would be a question on same sex marriage. Gather as musch information

from the internet as possible.

There would be a question on recognition and enforcement of foreign

judgments.

There would be a question on devolution of movable and immovable properties

under international conflict of laws. For instance if a Ghanaian who lived and
died in abroad. Principles established in Amerley V Ottinkorang. Also read part
one of Act 63 and section 54 of 459. In applying section 54 (1) rr 2, 3, 4 & 7 it
would be in relation with the devolution of both movable and immovable
properties.
i. Movable properties: With regard to the movable, the domicile of the
person
ii. With immovable, it is the lex situs
iii. If the person is a Ghanaian, his personal law would be applied as
provided for in Amerley V Ottinkorang, Refer also to section 16 of the
Wills Act, and Section 2 of PNDC Law 111
iv. What about foreigners domicile in Ghana-King V Elliot, Omane V Poku,
Yuhanner V Abbou, Ekem Case, Godson V Essian,. Find out whether the
person integrated into any Ghanaian community.
35
One question will come from administration of estates (Take note that Part one
(1) of Act 63 deals with the devolution of movable and immovable estates).
Who is a personal representative?
Always start from
i. Customary Successor: Who is a customary successor
ii. Executor:
iii. Administrator?
- The position of a personal representative is very important. When one is
alive he can deal with his property as he likes. This is however different
when one dies. Know who is an executor is -appointed by the testator to deal
with his estate in the event of his death. In dealing with personal
representative always mention the customary successor first. Read section 2
of Administration of estates Act, Act 63. Refer to Section 108 of the Act 63
for the definition but this does not mention the customary successor. Our
customary representative is always the customary successor
- What is an estate-According to section 108 of Administration of estate Act
the movable and immovable properties of person-
- Know the meaning of administration of estate.
- Refer to section 19 of Act 63-Uncertainty as to succession
- Refer also to Section 20 of Act 63
- Order 66 r 13 of C.I 47. Don’t ignore r 12 on caveat
- Section 28 of Act 63 on Payment of debt
- Look also at sections 75-77 of Act 63
- Sections 84-85 of Act 63.
- The definition of an estate also defined the scope of the person’s estates (i.e
assets (the movable and the immovable properties including any credit in the
person’s bank account) and then the liabilities of the deceased
- Know who a testator/testatrix is. Section 2 (1)… of PNDC Law 111 clarifies
the circumstances in which a will may be classified as a testator. Age is
relative when it comes to the administration of estates as age is relative.
Know the meaning of a lunatic in the relevant provisions under Act 63.

36
A question on Sections 1, 2 and 3 of the Wills Act, 1971 (Act 360) on the
validity or invalidity of a person’s will (i.e the requirements of a will).
Who is an executor? Refer to section 18 of the wills act
Know the difference between Legacy and Legatee (Refer to Section 108 of the
Administration of Estates Act, Act 63.
A person may die in possession of property. What does dying in possession of
property mean? Dying in possession of property includes the receipt of rent and
profits or right to receive same.

Know the meaning intestate. Where a person dies intestate, you must know
what it means-Refer to section 2 (1) of PNDC Law 111. Refer also to

Section 1 of Act 63 deals with the devolution of estates of the deceased person.
Sections 15 and 16 of the Wills Act, 1971, (Act360) is very important-That is
Wills made abroad.

The following steps are relevant and must be followed by the executors or
administrators of the testator:
i. Gather in the assets: Assets here means the movable and immovable (i.e
landed properties) properties in addition to the bank balance and the
liabilities.
ii. Ascertain the liabilities including debts
iii. Pay just debt
iv. Distributions of the assets
v. Vesting Assent
vi. Later discoveries may be treated as residual particularly if these
discoveries were not mentioned in the will. So section 2(2) of PNDC
Law 111 will apply.

37
Areas for the Exams
International Contracts- 2 questions
International Tort-one question
The Law of Property (movable and Immovable)-one question
Devolution of property –One question
Succession-one question
Marriage and succession-one question
Administration of Estate-one one question

38