Court: Supreme Court of the Gold Coast
Date: 1st August 1898
Judge(s): Brandford Griffith, J.
Citation: Supreme Court Ordinance, Sections 14, 17, 19; Marriage Ordinance 1864; Ordinance 3 of 1863; Ordinance 8 of 1889
Full Facts of the Case Cole v. Cole (1898) Law Made simple Report(L.M.S.R)
John William Cole, a native of Lagos, married Mary Jemima Cole in Sierra Leone in 1864 under Christian rites. Shortly thereafter, he returned to Lagos, where he resided until his death in 1897. He was survived by his wife, Mary J. Cole, and his only son, Alfred Cole, who was a lunatic.
The deceased’s brother, Abraham Benjamin Cole, claimed to be the customary heir of the estate and the trustee of the lunatic son, arguing under native law. The lower court declared Abraham Cole the customary heir.
Mary J. Cole and her son appealed.The central issue before the Supreme Court was: Should English law or native law govern succession to the estate of a Christian native married outside the Colony?
Legal Issues Cole v. Cole (1898)
Applicability of English law vs. native customary law
Whether the Marriage Ordinance applied to a Christian marriage conducted outside the Colony.
Whether the Supreme Court Ordinance, particularly section 19, empowered the Court to apply native law or customary law in succession matters.
Rights of widow and children
Whether the wife and son acquired rights under English law that could override native customs.
Judgment and Ratio Decidendi Cole v. Cole (1898)
Brandford Griffith, J., held that:
Christian marriage performed outside the Colony does not invoke the Marriage Ordinance.
English law of succession does not automatically apply; the law of the deceased’s domicile governs succession.
Since the deceased was domiciled in Lagos, native customary law of Lagos governs succession.
Application of Sections 14, 17, and 19 of the Supreme Court Ordinance 1876.
Sections 14 and 17 imported English law broadly but did not displace native law in all succession matters.
Section 19 allows native law to be applied if it does not conflict with natural justice or local Ordinances.
Courts are not bound to observe native law in every case; application is contextual.
On Rights of Widow and Son
Widow’s right (dower) and son’s inheritance are determined by the law of the domicile.A son cannot be heir during the life of the father (Nemo est hares viventis).
The brother of the deceased, Abraham Cole, was entitled as the customary heir until succession passes to the son upon the father’s death.
KEY Judicial Dicta and Principles.
Broad Principle: “Where a matter is purely native, or all circumstances relate to native life, habit, or custom, native law applies.”
Limited Scope: English law may govern where parties expressly contract to it, or where local custom would result in injustice.
Marriage & Succession Distinction: “The act of marriage does not vest the husband’s property in the wife; succession rights are determined only after death.
”Nemo est hares viventis: “No one is heir during the lifetime of the ancestor.”
Practical Application: Section 19 is discretionary, not mandatory, allowing courts to balance equity, justice, and custom.
ConclusionCole v. Cole (1898) establishes that:
Succession of a Christian native married outside the Colony is governed by the law of domicile.
Native law may prevail under Section 19 of the Supreme Court Ordinance, provided it is consistent with justice and not repugnant to Ordinances.Courts have discretion in applying native law and are not bound in every case, particularly where parties have contracted under English law.
This case remains foundational for understanding the hierarchy of laws in colonial succession and marriage disputes.