¹ The term “internal conflict of laws” was first proposed by the present writer, as an apter expression for what had heretofore been referred to as “private inter-personal law” (Wolff, Bartholomew), “intergentiel recht” (in Dutch), “conflits de lois interpersonnels” (in French), etc.; “external conflict of laws” was also proposed as the obvious contrary.

^{page 166 note 1} The abolition of the native courts system, and its replacement by a system of local courts, as recommended by the Korsah Commission, is now under way. This paper deals with the position under the old system, since all the reported decisions presuppose the division into native and non-native courts.

^{page 166 note 2} Courts Ordinance (cap. 4, 1951 Revision), section 87 (1).

^{page 167 note 1} Courts Ordinance, section 85.

^{page 168 note 1} E.g., the Courts Ordinance and the Native Courts Ordinances.

^{page 168 note 2} Cf., Courts Ordinance, s. 87 (1); Native Courts (Colony) Ordinance, cap. 98, s. 15 (a); etc.

^{page 169 note 1} Cf., references cited in note ², on previous page.

^{page 169 note 2} It is obvious that time does not permit of leaving the future state of the law to evolve of its own through judicial decisions and changes in customary practice; the legislature will thus doubtless step in (on the side of the English-type law, perhaps ?).

^{page 170 note 1} Section 48 (1) (f) proviso contains similar provisions regarding District Magistrates’ Courts.

^{page 170 note 2} Native Courts (Colony) Ordinance, cap. 98, s. 58; Native Courts (Ashanti) Ordinance, cap. 99, s. 35; etc.

^{page 170 note 3} (1866), L.R. 1 P. & D. 130.

^{page 171 note 1} (1888), 38 Ch.D. 220. This is a much misunderstood decision.

^{page 171 note 2} Cf. the Nigerian case of Bamgbose v. Daniel, [1955] A.C. 107, and the recent Tanganyika appeal of Maleksultan v. Sherali Feraj, [1957] 1 J.A.L. 58, esp. at p. 64 (E.A.C.A.).

^{page 171 note 3} In re Sapara (1911), Ren. 605, at p. 606.

^{page 172 note 1} Cf., the definition of bigamy in the Criminal Code, s. 451 (1); the definition of “Christian marriage” in the Criminal Procedure Code, s. 2 (already cited); the wording of s. 48 of the Marriage Ordinance regarding intestate succession to a person married under the Ordinance: “… where any person who is subject to native law and custom contracts a marriage whether within or without [Ghana] …”; etc.

^{page 173 note 1} Marriages between a master and his female slave or pawn were not uncommon.

^{page 173 note 2} And this is an offence carrying a penalty of two years’ imprisonment under the Criminal Code, s. 449.

^{page 173 note 3} But see the old case of R. v. Mensah (1922), F.Ct. ’22, 61, referred to infra, at p. 176, n. 1.

^{page 173 note 4} (1888), 38 Ch.D. 220.

^{page 173 note 5} (1909), Ren. 504, esp. at p. 507.

^{page 174 note 1} Duncan v. Robertson (1891), Sar.F.C.L. 134; Adjei and anor. v. Ripley (1956), 1 W.A.L.R. 62.

^{page 174 note 2} Contrast, e.g., Northern Rhodesia.

^{page 175 note 1} Naїve informants say that the difference is that a customary wife has to work and obey her husband, whereas a wife of a Christian marriage can please herself and sit around at home all day doing nothing.

^{page 176 note 1} R. v. Mensah (1922), F.Ct. ’22, 61 [in the report the accused's name is spelt Menahs, but this is an obvious printer's error].

^{page 176 note 2} Cf. my “The Effect of Marriage on Property in the Gold Coast”, (1956) I.C.L.Q.519.

^{page 177 note 1} Cf., the dictum of BRANDFORD GRIFFITH, J., in Cole v. Cole (1898), 1 N.L.R. 15, at p. 22: “… a Christian marriage clothes the parties to such marriage and their offspring with a status unknown to native law.”

^{page 177 note 2} Cf., Abbapesiwa v. Krakue (1943), 9 W.A.C.A. 161.

^{page 177 note 3} (1924), 5 N.L.R. 102, per VAN DER MEULEN, J.: “It would be quite incorrect to say that all the persons who embrace the Christian faith or who are married in accordance with its tenets, have in other respects attained that stage of culture and development as to make it just or reasonable to suppose that their whole lives should be regulated in accordance with English laws and standards” (at p. 104).

^{page 178 note 1} Unlike in many British African countries.

^{page 178 note 2} Re Otoo (1927), D.Ct. ’26–’29, 84.

^{page 178 note 3} “Intestate” means dying without leaving a will in English form; if the deceased left only a customary will, he dies intestate: Re Anaman (1894), Sar.F.C.L. 221-sed quaere. The provisions of s. 48 presumably apply in the case of a partial intestacy as well.

^{page 178 note 4} Marriage Ordinance, s. 48 (1), proviso (2).

^{page 179 note 1} (1898), 1 N.L.R. 15, cited above at p. 177, n. 1.

^{page 179 note 2} (1943). 17 N.L.R. 55.

^{page 179 note 3} Per Crampton Smyly, C.J., in Sackey v. Okantah (1916), D. & F. ’11–’16, 88, at p. 92: “Marrying under the Ordinance with the knowledge that the doing so affects the succession is in my opinion a rather pronounced form of sammansiew [i.e., samansew, the customary nuncupative death-bed disposition].”

^{page 179 note 4} Marriage Ordinance, s. 48 (3).

^{page 180 note 1} In one case in Northern Rhodesia, the High Court held that chastisement by a husband, leading to the death of the wife, was immoderate.

^{page 180 note 2} (1893), Sar.F.L.R. 79.

^{page 181 note 1} (1935), D.Ct. ’31–37, 89.

^{page 181 note 2} Under s. 46 (15) of the old Native Administration Ordinance, 1927, now repealed.

^{page 181 note 3} (1956), 2 W.A.L.R. 40.

^{page 182 note 1} In studying the records of many native courts, I did not find a single case relating to dissolution of marriage, though there were a number relating to adultery.

^{page 182 note 2} In one case, a man who had four wives divorced them all simultaneously, and then married a fifth. In another case, a woman had had several husbands in the course of a year.

^{page 182 note 3} In a sample of 525 Ashanti women of all ages, taken in 1945, 33% had been given in marriage by their fathers, 28% by their mothers’ brothers, 13% by their mothers-Fortes, “Kinship and Marriage among the Ashanti”.

^{page 183 note 1} Newton v. Holm (1913), D. & F. ’II–’16, 43.

^{page 183 note 2} Fones v. Mends (1872), Sar. F.C.L. 128.

^{page 183 note 3} Uso v. Iketubosin (1957), W.R.N.L.R. 187.

^{page 183 note 4} Obviously by a customary law permitting polygamy this marriage would not have disabled defendant from marrying plaintiff.