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Husband and wife – Customary marriage – Proof of, – Deceased holding out cohabitee as wife in lifetime – Whether sufficient evidence of marriage – Circumstances in which marital status may be inferred – Evidence Decree 1975 (NRCD 323) s 31.

Customary law - Samansiw - Essentials - Deceased attempting unsuccessfully to make will in English form - Deceased not in contemplation of death - Whether inchoate will qualified as samansiw.

Practice and procedure - Amendment - Capacity - Proposed amendment on appeal necessitating evidence in proof of new capacity - Amendment refused.

The plaintiff, in her capacity as the customary successor to Prempeh, a legal practitioner, filed a writ against the defendant for a declaration that the disputed house formed part of the estate of the deceased, damages for trespass, perpetual injunction from interfering with the ownership, recovery of possession of the house and an order for the defendant to pay rent. The defendant counterclaimed for a declaration that the deceased held the property as her trustee and that a paper-writing read on the 40th day of the death of the deceased was a valid samansiw by the deceased. The defendant did not claim as the wife of the deceased but rather averred in her statement of claim that the deceased was a friend with whom she cohabited as a wife.

At the trial the law clerk of the deceased tendered exhibit 1 comprising two unsigned documents, one being a two-page, type-written draft will which the deceased caused the witness to type for him in June 1979. This draft stated: “I hereby revoke all former wills and codicils and other testamentary disposition in whatever form and according to whatever custom hereinafter made by me and declare this to be interpreted in accordance with English law and any law or custom to the contrary notwithstanding”. It contained hand-written corrections. The second part of the exhibit was a one-sheet, hand-written paper.

The witness explained that the deceased called him to his house on a Sunday and told him that he nearly died the previous day so the witness should help him finish his will. The deceased brought out the draft will that he had typed previously and said he had made some corrections and intended to make some more. He dictated and the witness wrote a will but halfway down the page he took over. The deceased then gave the draft to the witness to type and proceeded to a clinic to rest. Next morning the deceased sent for the witness and warned him to hurry with the typing of the will. Later the witness was told that the deceased had died.

The trial judge held that the disputed property was the self-acquired property of the deceased. He accepted the testimony of the witness and held that the paper writing, exhibit 1, was a valid samansiw. He therefore dismissed the action. The plaintiff appealed successfully to the Court of Appeal; vide [1989-90] 2 GLR 407. That court declared title to the house in favour of the plaintiff and her family and ordered out the defendant. It held further that since the deceased expressed the intention that his said will be interpreted in accordance with English law, it was not open to the trial judge to convert the draft will, that was invalid in English law, into a valid samansiw. The court also declined the defendant’s application to amend to enable her claim as a wife under PNDCL 111.

The defendant appealed to the Supreme Court, complaining that the Court of Appeal erred in disallowing her application for amendment that merely sought to bring the pleadings in line with the overwhelming evidence on record that she was the wife of the deceased and a beneficiary to his estate under PNDCL 111. She contended that her marriage to the deceased could be inferred from the record of proceedings; that the deceased held her out to the whole world as his wife and referred to her as his wife in exhibit 1. Her counsel submitted further that the Court of Appeal erred in holding that exhibit 1 was not a valid samansiw. Her counsel argued that on the facts, an intention on the part of the deceased to make a samansiw could be inferred and that the inchoate will dictated to the witness be honoured as a valid samansiw.

Held: (1) Concubinage was not the same as a valid marriage. Merely referring to a woman as a wife did not constitute proof of a customary marriage. To prove a marriage, evidence must be led to that effect. The defendant having pleaded that she cohabited with the deceased merely as a friend could not now claim that she was his wife. Even though marital status could be inferred under section 31 of NRCD 323, no such inference could be made from the record of proceedings since the defendant did not claim as a wife. The inference of the defendant’s marital status would change the whole nature of the case on appeal and cause surprise and injustice to both parties. For the defendant’s original claim implied that the deceased did not die intestate with regard to the disputed property and PNDCL 111 did not apply. On the other hand the invocation of PNDCL 111 was an acknowledgement of the

and Ollennu have had to yield to three simple rules namely, self-acquired ownership in the testator, his sanity at the time of the declaration and attestation by credible, disinterested witnesses – two at least in normal circumstances, but one permissible in extreme exigencies.

(4) Whereas the plaintiff sought a declaration that the premises formed part of the estate the Court of Appeal declared it to be the property of the plaintiff’s family. Subject to the amendment of the decision of the Court of Appeal in terms of the plaintiff’s claim the appeal would be dismissed.

Cases referred to:

Abinabina, Stool of v Enyiwadu (1953) 12 WACA 171, PC.

Akyirefie v Breman-Esiam Stool (1951) 13 WACA 331.

Ampoma Re, Oppong v Oppong [1989-90] 1 GLR 83.

Armah Re, Awotwi v Abadoo [1977] 2 GLR 375, CA.

Armah Re, Awotwi v Abadoo [1975] 1 GLR 374, CA.

Blankson-Hemans Re, Blankson-Hemans v Monney [1973] 1 GLR 464.

Brobbey v Kyere (1936) 3 WACA 106.

Crumpe v Crumpe [1900] AC 127, 82 LT 180, 67 LJPC 7, 82 LT 130, HL.

Dove v Wuta-Offei [1966] GLR 299.

England v Palmer (1955) 14 WACA 659.

Gym v Insaidoo, [1965] GLR 574.

Hausa v Hausa [1972] 2 GLR 469, CA.

Marfo v Adusei [1963] 1 GLR 225, SC.

Otoo, Re (1927) D Ct ’26 – ’29, 84.

Perrin v Morgan [1943] 1 All ER 187, [1943] AC 399, 59 TLR 134, HL.

Sackitey’s Caveat, Re [1962] 1 GLR 180.

Sugden v St Leonards (Lord) (1876) 1 PD 154, CA.

Yaotey v Quaye [1961] GLR 573.

APPEAL against the judgment of the Court of Appeal.

Monica Quayson for the defendant-appellant.

G L A Djabanor, with him, W A N Adumua-Bossman for the plaintiff-respondent.

FRANCOIS JSC. There is only one issue of importance in this matter and that is whether the appellant is entitled to the disputed house No 24 Block B, Asokwa, Kumasi under the beneficial dispensation of samansiw.

Two other matters have however been debated but they are inconsequential and may be dismissed briefly. First, is the appellant’s proprietary claim to the disputed house with the correlated request that the court treat the deceased as trustee acting in her interest whenever title was in issue. The facts belie such a claim. The trial judge made a clear and decisive finding that the vendor-owner sold the property to the deceased who purchased it in his own right. The judge was amply supported by the appellant’s own witness, and also the claim pressed by the deceased himself in exhibit C. The rejection of the appellant’s claim in the court’s conclusion, which I quote below, cannot be successfully impugned. The judge said:

“I find from the totality of the evidence, that the offer for sale of the house in dispute was made to the late Joseph Kwasi Prempeh and that he negotiated with the First Ghana Building Society in his own right and not as agent of the defendant. I also find as a fact that the late Joseph Kwasi Prempeh financed the purchase of the house from his own resources… The house in dispute was the self-acquired property of the late Joseph Kwasi Prempeh.”

If the appellant was dissatisfied with this conclusion, it is perplexing she did not cross-appeal. Indeed to invoke PNDCL 111 to reap a benefit derived from a deceased spouse’s estate or even to claim under samansiw is to acknowledge lack of proprietary interest in oneself, and amounts to acquiescence in the trial judge’s findings.

As this aspect of the matter was not re-agitated in a cross-appeal, it must be deemed abandoned. It cannot be resurrected now.

The second issue, arising from the statutory effect of PNDCL 111, derives its viability from proof of a recognised marriage. The respondent, at the trial, described the appellant as a mere girl friend of the deceased who at the time was lawfully married to one Christie. There was no cross-examination of this. The appellant herself did not put her relationship with the deceased higher than that of “friends” - see para 4 of her amended statement of defence, which made no attempt to answer the averment in para 3 of the claim that the relationship had never “ripened into marriage either under the customary law or under the Marriage Ordinance”.

When she had the opportunity to put the record straight, the appellant stated under oath that the deceased was a family friend; she and the deceased “became friends and later lived as man and wife”.

The expression “living as man and wife” is as loose and inconclusive as can be imagined. It covers a multitude of relationships and only describes an existence of cohabitation rather than connubiality. The description is equally apt in describing the relationship of paramours as also those bonded in holy wedlock. It is colourless.

The issue of marriage vel non was however never a critical one at the trial court, where all at stake was title to a disputed house. It would be wrong for the court therefore to foreclose any future attempts at a proper definition of the appellant’s marital status. That aspect of the matter must remain open to be determined in an appropriate forum.

A claim under statute, i.e. PNDCL 111 cannot be summarily dismissed. It must be seriously debated. The issue of marriage was only referred to, purely to reject it as an issue of no consequence in the determination of this appeal. It follows that the attempt to halt the proceedings in this appeal, and to compel a pronouncement on PNDCL 111 as to the rights of members of the deceased family under that law, at this late stage, must fail.

It is not denied that the deceased had children, who may have a statutory claim under PNDCL 111. They cannot be prevented from urging their claims elsewhere. It follows further from this that the judgment of the Court of Appeal declaring title in the disputed house in the respondent, has jumped the gun and cannot be legally sustained. The existence of children of the deceased totally undermines the legal viability of such a declaration. I would set it aside.

Finally I turn to the only question of relevance in this appeal; namely the viability of the samansiw alleged to have been made by the late Joseph Kwasi Prempeh.

A brief survey of the facts needs to be made. The appellant and the deceased were close friends living in the most intimate relationship. The deceased attempted to make a will when he had premonitions about his future. That will failed for not fulfilling the requirement of the Wills Act 1970 (Act 360) in a number of particulars. It is however being suggested by the appellant that the intentions of the testator, as gleaned from his inchoate will dictated to his clerk, should be honoured as a valid samansiw.

The Court of Appeal roundly rejected any attempt to rescue a failed will on the wings of a samansiw. That is a stance I endorse. From tradition and history the two are different. An oral declaration before witnesses is the start of samansiw.

The witnesses to a samansiw must necessarily be privy to the deceased’s wishes regarding the distribution of his estate, to enable them attest fully to the devises in the future, whereas witnesses to a will are completely ignorant of its contents. Accordingly a clerk who is merely to type the intentions of a testator cannot claim to have participated at a solemn ceremony where a testator’s last wishes are publicly proclaimed. The clerk typist may not necessarily be an attesting witness to a will. He merely performs the duty of a typist.

The older cases illuminate this distinction; and it seems in earlier times a choice had to be made; sometimes there was no choice. Prof Allott at p 243 of his Essays in African Law states of a testator:

“If he wishes to leave his property by will, he can either make an oral declaration in front of witnesses (Samansiw) according to native customary law, or make a written will in English form.”

The learned author hastened to add that it did not mean a samansiw could not be confirmed in writing. But when this was done, it did not convert the samansiw into a will. The different concepts retained their separate identities. Thus in Brobbey v Kyere (1936) 3 WACA 106, the confirmation of a samansiw in writing did not empower the legatee to claim a right of inheritance under an English will.

There has been a tendency to graft on to the samansiw the trappings of a death-bed gift. Thus its purely nuncupative effect as an oral will has been qualified by the insistence of proof of an imminent fear of death. This operated very forcibly in the minds of the Appeal Court bench. I think it is an error.

Sarbah in his Fanti Customary Laws 2nd Ed at p 99, grafted no such qualification on samansiw. He said:

“It is not only on the death-bed that a man can make testamentary disposition. A person can make his testamentary disposition while enjoying perfect health; but at the time it is made, the witnesses must be distinctly told by him his words are his Samansiw, to take effect after his death.”

I consequently do not share the conclusion of the Court of Appeal that the samansiw failed because it was not made in contemplation of death.

Another difference that Prof Allott states in his book restricts the power to make a samansiw to those not married under the Marriage Ordinance, Cap 127. At p 236 of the op cit he gives us the benefit of his research as follows:

“Apparently a party to an Ordinance marriage can only make a will in English form, and loses his power to make an oral customary will (Samansew among the Akan).”

Prof Allot cites Re Otoo (1927) D Ct ‘26 – ‘29, 84, in support. He doubts the viability of this judgment and articulates his reservations in this passage:

“But the reasons of Michelin, Ag. CJ., for asserting this rule are not made explicit; and one takes leave to doubt whether such a rule is required by the law or is desirable on other grounds.”

See also p 240 of the op cit where he reaffirms the rule alongside his quaere. Be that as it may, this rule prevailed in the colonial Gold Coast.

Customary law is constantly changing especially in the area of nuncupative wills. The social and economic demands of the day have forced the pace.

The ancient requirements regarding the kinship quality and plurality of witnesses, and the giving of aseda (thanks) to seal a legacy, have all suffered change. The courts in recent times have rejected or pruned very thinly these requirements, taking care not to throw away the baby with the bath water, to use the celebrated expression.

Thus the pristine formulations of Sarbah, Rattray and Ollennu, have had to yield to three simple rules; namely, self-acquired ownership in the testator, his sanity at the time of the declaration, and attestation by credible, disinterested witnesses - two at least in normal circumstances, but one permissible in extreme exigencies. See Hausa v Hausa [1972] 2 GLR 469, CA and Re Armah, Awotwi v Abadoo [1977] 2 GLR 375.

Tested by this current definition and the facts outlined above, I cannot see that Joseph Prempeh’s abortive will can be resurrected as a samansiw.

I uphold the Court of Appeal’s final conclusion rejecting a samansiw. Save for the reservations made in this judgment, I will accordingly dismiss the appeal.

WUAKU JSC. In my opinion the only issue raised in this appeal which needs serious consideration is whether exhibit 1 could be regarded as a samansiw according to law. Exhibit 1, to my mind, consists of two separate documents. In my judgment, I will refer to the two typed sheets of paper with the hand-written corrections therein made as exhibit 1(a) and the one hand-written sheet of paper as exhibit 1(b).

Exhibit 1(a) is the draft will of the late Joseph Prempeh which Paul Mainoo prepared sometime in June 1979 upon instructions from the late Joseph Prempeh. Exhibit 1(b) is the result of what happened on Sunday 15/7/1979 when the late Joseph Prempeh invited his clerk, Paul Mainoo to his house. This is what in part, Paul Mainoo said:

“As soon as I arrived, the late Joseph Prempeh told me that he nearly died the previous day so I should help him in finishing his will. He brought out exhibit 1 which I typed previously. He told me that he had made some corrections and he would like to add more. He pulled out a plain sheet and pen and gave them to me. He asked me to start writing. He dictated to me. I wrote half of the sheet. He took the pen and the sheet from me. Thereafter he continued from where I reached.”

A careful examination of exhibit 1(b) shows that it has two different handwritings on it. From the top, lines 1 to 12 ending with “William Prempeh” are different from the lines continued with “The Piano”. In my opinion, the first 12 lines must be that of the witness and the rest that of the deceased.

From the evidence, what he had described were the documents that he gave to Mr Justice Prempeh. Mr. Justice Prempeh gave evidence as the defendant’s first witness and the documents were tendered as exhibit 1.

Paul Mainoo continued his evidence by saying that his master, on 15/7/1979 gave him a cheque to be cashed and, after making some expenses, to bring back to him ¢1,000. The late Joseph Prempeh also told him that “he would go to rest at Dr Asafo-Adjei’s Clinic”. On the morning of 16/7/1979, the late Joseph Prempeh sent for Paul Mainoo and warned him “to hurry up with the typing of the will”. Paul Mainoo went and cashed the cheque and decided to go to give the ¢1,000 to the late Joseph Prempeh at Dr Asafo-Adjei’s Clinic. On reaching the clinic, he was told by a nurse that Joseph Prempeh had died. He saw Dr Asafo-Adjei and gave the ¢1,000 to him to keep. He also went to Mr Justice Prempeh and told him about the death and mentioned the documents to him. According to him he handed the documents, which are referred to as exhibit 1 to Mr Justice Prempeh the following the day.

The trial judge has held that the defendant’s second witness, Paul Mainoo, had impressed him as an honest and trustworthy person and consequently a credible witness. Upon that the trial judge accepted exhibit 1 as samansiw, relying on re Armah (Deceased); Awotwi v Abadoo [1977] 2 GLR 375. What constitutes a valid samansiw is stated therein and I need not go over that.

I consider the evidence of Paul Mainoo as very crucial in the determination of this appeal. A careful reading of what I have described as exhibit 1(a) clearly shows that what the late Joseph Prempeh intended to do was to make a will according to English law but not a customary will, samansiw. He had therefore invited Paul Mainoo to continue or finish his will by adding what I have described as 1(b). Paul Mainoo’s own evidence was that Joseph Prempeh said he had made corrections and wanted to add more. If 1(b) had been with Joseph Prempeh before 15/7/1979, he would not have simply said he made corrections, but that he made corrections and added more. I think that what this court has to do is to ascertain from the express words in exhibit 1 as a whole the true intent of Joseph Prempeh. What I have described as exhibit 1(b) cannot be divorced from 1(a). Consequently I also hold the view that exhibit I cannot qualify as samansiw.

Another matter which had agitated my mind is that, reading through exhibit 1, it could be seen that Joseph Prempeh had shown a genuine desire to make a proper disposition of his self-acquired properties. Mr Justice Prempeh said that the only dispute about exhibit 1 was that it was not signed by Joseph Prempeh.

The English case of Sugden v St Leonards (Lord) (1876) 1 PD 154 came to my mind. That was the case where a testator made a will followed by 8 codicils. The original will was lost or could not be traced after the death of the testator. The testator in his lifetime had often disclosed the contents of the will to the Hon Charlotte Sugden, the only unmarried daughter of the testator, who had lived with the testator for many years up to the time of his death. The testimony of the single witness was found reliable and trustworthy and the oral evidence was admitted together with the codicils to probate. In the present case there was no proper will to begin with, the defendant is relying on documentary evidence which does not meet the requirements of the law.

Exhibit 1 at best was an attempt by Joseph Prempeh to make a will, which had failed. Thus he died intestate.

In conclusion, I also agree that the appeal be dismissed and also that the declaration of title in favour of the plaintiff in the Court of Appeal be varied.

AMUA-SEKYI JSC. I am of the opinion that the Court of Appeal showed a better appreciation of the law when they held that the court could not ignore the expressed intention of late Prempeh and

construe what he set out to do as the making of a customary will or samansiw.

Before 1971, the English Wills Act 1837 applied here as a statute of general application. A statement in a will that it was to be construed in accordance with English law was no more than recognition of this fact.

Now, it must be taken as an intention that its successor, the Wills Act 1971 (Act 360) is to apply. This is perfectly in order as the Courts Act 1971 (Act 372) section 49 rule 2 permits a person to decide that the devolution of his estate shall be governed by statute rather than by customary law.

When, therefore, in the document of 1979, Prempeh declared that it was to be “interpreted in accordance with English law and any law or custom to the contrary notwithstanding” he excluded the making of a customary will. You simply cannot interpret a customary will in accordance with English law.

As I see it, the only valid criticism that can be made of the judgment of the Court of Appeal is that whereas the plaintiff asked for a declaration that the premises formed part of the intestate estate of the deceased the court declared it to be the family property of the plaintiff. Therefore, subject to an amended order in terms of the endorsement to the writ being made, I would dismiss the appeal.

AIKINS JSC. The facts in this appeal have been stated by my learned sister Mrs Bamford-Addo JSC and I do not think it is necessary that I repeat them.

Several grounds of appeal were filed by counsel for the appellant, and these were fully argued by her in the statement of case filed on behalf of the appellant.

One of the grounds argued by counsel is that the Court of Appeal erred in law when it held that the learned trial judge had no power to save the void will against the expressed wishes of the testator, since the late Prempeh had expressed his intention that his will shall not be interpreted in accordance with any law but English law. Counsel argued that exhibit 1, containing the testamentary disposition of the late Prempeh’s property, was a valid samansiw and ought to have been enforced as such by the Court of Appeal; that intention is not a requirement for determining the validity of either a statutory will or samansiw (nuncupative will).

I have read the record carefully, but I have not been able to discern from my reading that what is written in ink on exhibit 1 was made on 15 July 1979 in the house of the late Prempeh when DW2, Paul Mainoo reported there at the request of the deceased.

In his evidence DW2 said:

“As soon as I arrived, the late Prempeh told me that he nearly died the previous day, so I should help him in finishing his will. He brought out exhibit 1 which I typed previously. He told me that he had made some corrections and he would like to add some more.”

At this stage it is clear that DW2 was not present when the deceased made the corrections on the draft that DW2 typed. Under normal practice such corrections could include additions in writing.

DW2 then continued his evidence:

“He pulled out a plain sheet and pen and gave them to me. He asked me to start writing. He dictated to me. I wrote half of the sheet. He took the pen and sheet from me. Thereafter he continued writing from where I reached.”

One would expect from this sheet two completely different sets of handwriting, one by the witness and the other by his master. A close examination of pages 3 and 4 of exhibit 1 does not reveal these two sets of handwriting. As to the author of pages 3 and 4, DW1, a brother of the deceased said it was the deceased who wrote them because it was in the deceased’s handwriting. This piece of evidence was not challenged, neither was any portion of it shown to him as different from the deceased’s handwriting, nor any suggestion made to him that any portion of it was written by the clerk, DW2. The sheet of paper containing the handwriting of DW2 and that of the deceased was never tendered in evidence. It is in relation to this sheet that one may argue that it was written or said by the deceased in contemplation of death and in the presence of DW2. Nobody knows the contents of this sheet.

Since the two pages of typing in exhibit 1 were made in June 1979, and there is no record as to when the corrections and additions were made by the deceased before the exhibit was handed over to DW2 on 15 July 1979, that document cannot pass as having been made or confirmed on 15 July 1979, and can only be regarded as an incomplete testamentary deposition or statutory will of the deceased. It cannot be regarded as the deceased’s samansiw or a valid nuncupative will enforceable according to customary law.

With respect to intention, I think what the Court of Appeal was stressing is that wills must be so construed as to give effect to the intention of the testator, and cited the English cases of Perrin v Morgan [1943] 1 All ER 187 and Crumpe v Crumpe [1900] AC 127 to buttress its contention. Lord Thankerton stated in the Perrin case at p 195 the cardinal principle of construction of wills, which is also applicable in Ghana. He said:

“In England and Scotland, the cardinal principle of construction of Wills is that they should be so construed as to give effect to the intention of the testator…”

And Lord Macnaghten in Crumpe v Crumpe (supra) said at p 132-133:

“In his will the testator may explain what he is doing, or what he means to do, by any form of words he pleases, provided he makes his meaning clear. Here, I think the testator has made his

intention clear. I find an indication of his intention in the first place in the revocation clause, but all the other circumstances point to the same conclusion.”

The Court of Appeal then continued in [1989-90] 2 GLR 407 at 414.

“Counsel for the respondent has argued that the court should interpret exhibit 1 in accordance with law irrespective of the intention of the testator. In other words, the court must propound the document as samansiw if it satisfies the ingredients of the law but must not look at the intentions of the testator. This submission is not only unfortunate but it is also bad in law. The maxim is, animus hominis est anima scripti (intention is the soul of an instrument). In fact, the whole essence of a will is the declaration of the wishes (intentions) of the testator. One cannot pass a document as a will or samansiw if it does not contain the intentions (wishes) of the maker.”

The court then referred to section 49(1) of the Courts Act 1971 which states that “the court when determining the law applicable to any issue arising out of any transaction or situation, shall be guided by the following rules in which reference to personal law of a person are references to the system of customary law to which he is subject or to that common law where he is not a subject to any system of customary law…” And rule 2 of the seven rules stated thereunder stipulates:

“Rule 2. In the absence of any intention to the contrary, the law applicable to any issue arising out of the devolution of a person’s estate shall be the personal law of that person.”

The Court of Appeal then concluded as follows at p 416:

I, for my part, do not see anything wrong with the law as stated by the Court of Appeal. Apart from the fact that the whole gamut of a will is the declaration of the wishes or intention of the testator, since in Ghana there are two types of wills, one made under the Wills Act 1971 and the other under customary law, the ingredients required to establish any of these two forms of wills being different, it is incumbent upon the court to determine the intention of the testator as to which of these two wills he contemplated to adopt.

In my view the initial expression of the deceased in exhibit 1 namely,

“I Joseph Kwasi Prempeh, Barrister-at-Law, Kumasi in the Ashanti Region of Ghana make this my last will and testament of my self-acquired bona fide properties herein. I hereby revoke all former wills and codicils and other testamentary dispositions in whatever form and according to whatever custom hereinafter made by me and declare this to be interpreted in accordance with English Law and any law or custom to the contrary notwithstanding.”

This indicates that he intended to make a will under the Wills Act 1971 and not samansiw as he had specifically excluded a will under customary law, and at the time of writing he did not have any fear of imminent death, otherwise he would not have put in a clause about the devolution of a house he intended building at Tarkwa near Suame, Kumasi.

The court ought to be circumspect in transforming a statutory will into a customary will simply because the statutory will has failed.

The next issue is whether PNDCL 111 is applicable in this case. Counsel for the appellant’s argument is that even though PNDCL 111 came into force on 5 July 1985 and the action in this case was commenced by a writ of summons filed on 4 October 1983, judgment was delivered by the trial court on 12 November 1987, after the coming into force of PNDCL 111, and by virtue of the transitional provisions of the Law, i.e. section 21(1), the Law is applicable in this case as the action was pending when the Law was promulgated. The section stipulates:

“21(1). Notwithstanding the provisions of section 1 of this Law or any other enactment the provisions of this Law shall be applicable in the settlement of any claim or adjudication pending before the Court or a Chief or Head of Family under customary law at the commencement of this Law in respect of the administration or distribution of the estate of an intestate who died before such commencement, and for the purpose of this section the provisions of the Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112) and the Administration of Estates Act, 1961 (Act 63) as amended by the Administration of Estates (Amendment) Law, 1985 (PNDCL 113) shall be deemed to be applicable to such claim or adjudication.”

Counsel’s argument is based on the premise that the deceased was survived by a spouse, i.e. the appellant and children, and for that matter, in the words of counsel, “the appellant’s case is clothed with the protection of PNDCL 111 and that the respondent should not have been given the relief of recovery of possession of the disputed house”. Counsel urges that since the action in this case was brought on behalf of the estate of the late Prempeh, statements made voluntarily by the deceased are binding on the respondent as successor. The statements referred to are that the late Prempeh described the appellant as a wife in exhibit 1 and further introduced her to the whole world as his wife. Counsel further urges that as these statements were voluntarily made by the deceased they are fatal to his cause and he is bound by them, and so are his successors and privies, and they should not be permitted to retract from them.

In my view, merely referring to a woman as his wife does not mean that the woman is properly married to the declarant either under the Marriage Ordinance or under customary law. To prove the marriage, evidence must be led to that effect. I must say that I am not convinced by the arguments advanced by counsel on this issue.

It should be remembered that the question whether or not the respondent was the wife of the deceased was not made an issue at the trial. In paragraph 3 of her statement of claim the respondent, as plaintiff, stated that “at all material times the late Joseph Kwasi Prempeh, deceased, and the defendant lived together in some kind of loose association but their relationship, though it lasted, never at any time before the death of Joseph Kwasi Prempeh ripened (sic) into marriage either under the customary law or under the Marriage Ordinance”.

In reply to this the appellant deposed in paragraph 4 of her statement of defence and counterclaim that “the defendant denies the averment contained in paragraph 3 of the statement of claim but says that the defendant and the late Joseph Kwasi Prempeh were friends and from time to time the said late Joseph Kwasi Prempeh acted as the defendant’s adviser and agent”. This assertion was repeated in paragraph 4 of her amended statement of defence filed pursuant to leave of court granted on 18 May 1987.

In her evidence-in-chief, the appellant said that the late Kwasi Prempeh was a family friend, and that after the death of her husband in 1971, she and the deceased became friends and later lived as man and wife. My understanding of this statement, taking into consideration the averments in the pleadings, is that the appellant lived with the deceased as his mistress and not a wife at law, either customary or statutory.

In my judgment, the statements of the appellant precludes her from asserting now that she was the legal wife of the late Prempeh, and she therefore fails to qualify as wife or spouse to let the provisions of PNDCL 111 inure to her benefit. As regards the children, since they were not joined as a party to the action they cannot take advantage of the Law.

The next point taken by counsel for the appellant is that the Court of Appeal erred in refusing to accede to her request to amend the statement of defence. Counsel’s request for the amendment was to invite the court to apply the provisions of PNDCL 111 to the facts found by the trial judge, and to bring the pleadings, according to counsel, “in line with the evidence already on record”. The intended amendment was to enable the respondent to claim that she was the wife of the deceased, and to use whatever evidence on record to support her contention.

As stated above there is no convincing evidence on record establishing such a marriage, and no issue had been joined on that. As at the close of the case for the defendant-appellant, she had insisted that she and the deceased were never married, but were friends and that the deceased only acted as her adviser and agent. I therefore agree with the Court of Appeal when it stated that “if the amendment is granted, it would be necessary to adduce further evidence to establish that fact”, that is to say that the respondent and the deceased were properly married, and also that it would enable the respondent to claim a relief quite different from what she had originally claimed. The application was therefore rightly refused by the Court of Appeal.

Before I conclude, it seems to me that there was a submission by counsel for the appellant that the learned trial judge was wrong in overruling the objection that the customary successor had no capacity to sue in respect of the estate, because at that time PNDCL 111 had come into operation and the intestate was survived by a spouse and children. Counsel argued that by merely amending the title of the suit the trial judge could not cure the defect, and that the suit should have been dismissed for lack of capacity to sue.

I do not think there is any merit in this argument. The suit was brought on behalf of the estate of the deceased, and the appellant was claiming the property in dispute as her own self-acquired property and not as a spouse of the deceased, and therefore even if PNDCL 111 had been brought to his notice the learned trial judge could not have dismissed the suit because there was no convincing and acceptable evidence on record to support the claim of the appellant that she was lawfully married to the deceased.

In my view the amendment to the title of the suit made by the trial judge by deleting the words “Administratrix” and leaving the action in her capacity as “customary successor of the estate of Joseph Kwasi Prempeh” was proper to avoid multiplicity of suits. See Dove v Wuta-Offei [1966] GLR 299, Akyirefie v Breman-Esiam Stool (1951) 13 WACA 331 and England v Palmer (1955) 14 WACA 659.

In the result the appeal is dismissed. Since the suit was brought on behalf of the estate of the deceased I would give judgment for the respondent and declare title in the disputed house in the estate of the deceased, and order recovery of possession accordingly. Save as aforesaid I affirm the decision of the Court of Appeal.

BAMFORD-ADDO JSC. The brief facts of this case are that the plaintiff filed a writ at the High Court claiming as follows:

(a) A declaration that House No 24 Block B Asokwa, New Amakom Extension, Kumasi forms part of the estate of the late Joseph Kwasi Prempeh.

(b) An order of possession of the said house.

(d) Perpetual injunction restraining the defendant from interfering with the plaintiff’s ownership and possession of the said house.

(e) An order that the defendant be made to pay monthly rents of the said house from the date of death of Joseph Kwasi Prempeh to the date of judgment at the rate of ¢100,000 per month.

The plaintiff sued in her capacity as the successor to the deceased, Joseph Kwasi Prempeh, who died in July 1979. The defendant counterclaimed for:

(a) A declaration that the late Joseph Kwasi Prempeh held the lease in respect of the building as trustee for the defendant.

(b) A declaration that the paper writing that was read on the fortieth day of the death of the late Joseph Kwasi Prempeh was a valid samansiw.

The trial judge held that House No 24 Block B Asokwa, New Amakom Extension was the self-acquired property of the deceased but that the paper writing of Joseph Kwasi Prempeh read on the 40th day of his death, exhibit 1 was a valid samansiw or parol will and enforceable at law. He dismissed the plaintiff’s action and held that the defendant’s counterclaim (b) was proved.

(2) The learned trial judge erred in law by ignoring the words in exhibit 1 the alleged samansiw, by which the late J K Prempeh expressed his intention to exclude the application of any customary law rule to the construction and or implementation of the contents of that exhibit.

(3) Having regard to the evidence on record the learned trial judge erred in law in holding that the paper writing of Joseph Kwasi Prempeh (deceased) tendered in evidence as exhibit 1 by or on behalf of the defendant was a valid samansiw or parol will and enforceable at law.

“I give judgment for the appellant, i.e. the plaintiff and declare title to the disputed house in her and her family, and order recovery of possession accordingly. The respondent’s counterclaim is dismissed. The respondents will be given up to one month to vacate the premises.”

The defendant-respondent-appellant (hereinafter referred to as “the defendant”) appealed to this court and a summary of her grounds of appeal are that:

1. The Court of Appeal erred in holding that exhibit 1 was not a valid samansiw.

2. That the Court of Appeal erred in holding that the defendant was not the wife of Joseph Prempeh (deceased) and was therefore not entitled to certain benefits under the Intestate Succession Law 1985 (PNDCL 111).

3. That the appellate court erred in disallowing the amendment of defendant made in that court, since it was only an amendment to bring the pleadings in line with the overwhelming evidence on record that she was a wife of the deceased and therefore that PNDCL 111 was applicable to the case.

At the hearing the defendant applied for an order to serve the son and daughter of the deceased Prempeh with notice of this case as persons directly affected by this appeal and whose interest would be affected by the outcome of this case under PNDCL 111. This application was made under CI 13 r 10(2) which gives this court the power, in its discretion to order service of notice on any party.

The applicant is not the guardian of the said children and their natural mother who is alive has not shown any interest in this case even though she is herself a co-adminstratrix with the plaintiff.

First of all, this case commenced in 1983 before the passage of PNDCL 111 and was an action by the customary successor of the deceased Prempeh, claiming the house in dispute as family property. The defendant counterclaimed as owner or alternatively as a beneficiary under a samansiw. She amended her counterclaim after the passage of PNDCL 111 in 1985 but did not claim as a spouse under the said Law. In 1990, in the Court of Appeal she attempted to change the nature of this whole case, when she alleged that she was the wife of the deceased under customary law and entitled to benefit under PNDCL 111. The said court rejected her attempt on the following grounds:

“No issue was joined on the fact whether or not the respondent was ever married to the deceased. There is thus no convincing or acceptable evidence on record to support the assertion that the respondent was married to the late Joseph Prempeh and therefore was a “spouse” of the deceased. If the amendment is granted it would be necessary to adduce further evidence to establish the fact and, more seriously, if the amendment is granted it would change the nature of the claim by the respondent; it would enable the respondent claim a relief quite different from what she had originally claimed. For the above reasons, I do not think it would be just to grant the amendment at this stage of the proceedings. I would refuse the application.”

This refusal was made one of the grounds of appeal by the defendant in this court, and the defendant has followed with the present application for an order to serve certain persons.

I support the reasons given by the Court of Appeal in refusing the amendment so as to apply PNDCL 111 to the case. Therefore I would also refuse the application to serve the persons named in the said application on the ground that PNDCL 111 is not applicable to this case, and therefore that they would not be affected by the outcome of this case.

Further reasons why I think PNDCL 111 is not applicable would be discussed later in this judgment when dealing with the relevant ground of appeal.

I would now consider two main grounds of appeal, i.e. ground 2 and ground 3 together. These are that the Court of Appeal erred in disallowing the amendment sought by the defendant, in order, according to her, to bring the pleadings in line with the overwhelming evidence on record that the defendant was the wife of the deceased and therefore entitled to certain benefits under PNDCL 111.

The Intestate Succession Law 1985 (PNDCL 111) provides for the devolution of intestate estate on a “spouse” of deceased dying after 1985. Under s 4 of this law a surviving spouse and children are entitled to household chattels and a house of deceased. Section 21 thereof states that:

“Notwithstanding the provisions of Section 1 of this law or any other enactment, the provisions of this Law shall be applicable in the settlement of any claim or adjudication pending before the Court or a Chief or Head of Family under customary law at the commencement of this law in respect of the administration or distribution of the estate of an intestate who died before the commencement and for the purposes of this section the provisions of Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112) and Administration of Estates Act, 1961 (Act 63) as amended by the Administration of Estates (Amendment) Law 1985 (PNDCL 113) shall be deemed to be applicable to such claim or adjudication.”

The Customary Marriage and Divorce (Registration) Law 1985 s 15 states that PNDCL 111 shall apply to any “spouse” of a customary law marriage registered under that law. This in effect means that in order for a claimant to benefit under PNDCL 111 such a claimant must prove strictly the existence of a valid Ordinance or customary law marriage as a matter of law.

The defendant did not claim as the wife of the deceased; in the statement of her counterclaim, she never claimed as a wife. In fact, in her counterclaim she alleged that the deceased was her friend who acted as her adviser and agent from time to time. She did not lead any evidence of the existence of a valid customary law marriage performed before witnesses as to make her the wife envisaged under PNDCL 111. Her claim that she and the deceased were friends living together as man and wife appears to be supported by the plaintiff who said that they “were mere friends but never legally married”.

“Concubinage” is not the same as a valid marriage and a “spouse” under PNDCL 111 is one who has contracted a valid customary marriage. In Yaotey v Quaye [1961] GLR 573 at 574 it was held that

“(3) The question whether the relationship between a man and a woman is one of marriage or of concubinage is a question of law to be determined from the facts and circumstances of the relationship. The essentials of a valid customary marriage are:

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

In Re Blankson-Hemans, Blankson-Hemans v Monney [1973] 1 GLR 464, a certain lady, Y, pleaded on the death of the deceased who had been married to the plaintiff under the Marriage Ordinance in 1963, that she was customarily married to the deceased in 1961. That being also a widow and having a child with deceased, she was as much entitled to a grant of letters of administration as the plaintiff. She did not give evidence at the trial but her counsel pleaded that marriage should be inferred from all the circumstances. It was held:

“The assertion in Y’s pleadings of a prior subsisting customary marriage between her and the deceased was a positive assertion capable of positive proof. The submission that marriage should be inferred was not in line with the pleadings and could not be countenanced. In any event, there was no principle of customary law that after a man has lived in concubinage for sometime with a woman, their relationship should be deemed to have ripened into marriage. Gym v Insaidoo, [1965] GLR 574 cited.”

In this case the defendant did not plead any customary law marriage and there was no satisfactory proof of such a marriage. Therefore no presumption of marriage could be made in accordance with law. The trial judge therefore erred when he stated that “defendant was the widow of deceased” or inferentially that she was the wife of the deceased.

The defendant argues that a valid marriage between the deceased and the defendant must be inferred from evidence on record. But in Re Blankson-Hemans cited above Koranteng Addow J stated at p 467:

“It is my considered view that when the fact of marriage is in dispute as it is in this case, it has to be proved strictly and affirmatively like any other disputed fact. It does not have to be inferred.”

Inference of marriage can be made in certain circumstances as stated in s 31 of NRCD 323. In the circumstances of this case marriage was never an issue; it was neither pleaded or proved by witnesses to the marriage and the same cannot be inferred as we are being invited to do. The Court of Appeal rightly refused to apply PNDCL 111, and rightly refused defendant’s application to amend her defence.

Secondly, defendant’s earlier claim was different and inconsistent with her new claim under PNDCL 111. In the case of Marfo v Adusei [1963] 1 GLR 225, SC it was stated in holding (4) that;

“An allegation of fact, not pleaded but admitted in evidence, which is inconsistent with, and is a departure from the averment made by the plaintiff in his statement of claim, is not entitled to favourable consideration.”

“Was the learned commissioner therefore justified in giving consideration in favour of the plaintiff to the matters which were not pleaded by him and which were admitted in evidence, viz, that the first defendant granted the plaintiff extension of time for a further period of one year? We think he was not, in view of the fact that the evidence complained of is an allegation of fact which is inconsistent with, and a departure from the averment made by the plaintiff in his statement of claim.”

See also the Privy Council case of Stool of Abinabina v Enyiwadu (1953) 12 WACA 171, PC.

In this case not only was there no evidence of a valid customary law marriage on record to justify the application of PNDCL 111, but to do this would change the whole nature of the case on appeal, take the parties by surprise and result in injustice to both plaintiff and even to defendant. The defendant’s earlier claims impliedly meant that the deceased had not died intestate in respect of the house in dispute, therefore how could PNDCL 111 be said to be applicable when that law applied only to intestate estates?

Furthermore for s 21 to apply there must be pending before the High Court in 1985 an administration or distribution case regarding the intestate estate of a deceased. See the case of Re Ampoma, Oppong v Oppong [1989-90] 1 GLR 83 where it was held that unless a settlement, claim or adjudication is pending in court before 1985 s 21 of PNDCL 111 would not be applied to such case. The attempt by the defendant in the circumstances of this case to apply the said law to this matter in 1990 was rightly rejected by the Court of Appeal. I am of the view that the appeal in respect of grounds 2 and 3 should fail.

Regarding Ground 1, the defendant argued that the Court of Appeal erred in declaring that the paper writing, exhibit 1, was not a valid will under the Wills Act 1971 (Act 360) and could not be held to be a samansiw because it did not satisfy the essential requirement of a valid samansiw as enunciated in the case of Re Armah, Awotwi v Abadoo [1975] 1 GLR 374, CA which set out those essential requirements as follows:

b) there should be credible witnesses present who could testify that the dispositions were made in their presence and to their hearing;

c) the disposition should concern the self-acquired properties of the deceased.”

This is a case in which an oral disposition was taken down in writing and after typing it was signed by the declarant who was in hospital and in fear of death. The circumstances of the said case and this one are dissimilar in that exhibit 1, which was wrongly accepted as a samansiw by the learned trial judge, was made in two parts on different dates.

The typewritten part was a draft will made by the deceased lawyer in his office in June 1979 when he was not in contemplation of death. A witness DW2 gave evidence of the circumstances under which it was made thus:

“In June the late boss (Prempeh) invited me to his office and told me he wanted to prepare his will, and asked me to take down some notes. He dictated to me and I took them and had them typed. After typing, I sent the draft to him. He did not tell me anything about it again until July 1979.”

This draft will was neither signed not witnessed and at the beginning of it the deceased stated quite clearly that:

“I hereby revoke all former wills and codicils and other testamentary disposition in whatever form and according to whatever custom hereinafter made by me and declare this to be interpreted in accordance with English law, and any law or custom to the contrary notwithstanding.”

The intention of the deceased was clearly to make exhibit 1 his will and not a samansiw, under customary Law. The second handwritten part of exhibit 1 was made on 15 July 1979 in circumstances narrated by DW2 thus:

“The day was a Sunday. He invited me to his house. I went with my friend called Gyamfie, a tailor by profession. As soon as I arrived the late Joseph Prempeh told me that he nearly died the previous day, so I should help him in finishing his will. He brought out exhibit 1 typed previously. He told me that he had made some corrections and he would like to add some more. He asked me to start writing. He dictated to me. I wrote half the sheet. He took the pen and the sheet from me. Thereafter he continued writing from where I reached. After that he told me that he would give a cheque to withdraw the money Monday morning. He asked me to use part to buy stationery, give part to a certain Alhaji and reserve ¢1,000 for him. He told me he would go to rest at Dr Asafo-Adjei’s Clinic. After giving the cheque to me he handed me exhibit 1. The following morning he called me again to his house and warned me to hurry up with the typing of the will.” (Emphasis mine)

This evidence clearly shows that deceased wanted DW2 to help him in finishing his will and not in making a samansiw. The handwritten part was clearly meant to be a continuation of the earlier typed part of a proposed will. The deceased’s handwriting started from the bottom of page 2 of exhibit 1 as a continuation of the earlier typed part of the abortive will.

The defendant has argued that the two parts of exhibit 1 should be read as one whole document, a proposition with which I am in entire agreement. Reading exhibit 1 as a whole can it be said to constitute a valid samansiw even if it is not a valid will under Act 360? I am clearly of the view that it cannot and the reason for this view is that exhibit 1 does not satisfy the essential requirements of a valid samansiw as enunciated in Re Armah, Awotwi v Abadoo cited supra. The first requirement that a declaration of the deceased must be made in contemplation or fear of death, cannot be said to have been satisfied when exhibit 1 was made in June 1979 or even in July 1979 when the written part was made. If it was deceased’s intention to make a samansiw, then being a lawyer, he would have amended the first part of the will which excluded the application of customary law; also those parts of exhibit 1 which stated as follows:

“I intend to erect a house at Tarkwa near Suame Kumasi. If I am able to build this house it should go to my family… one third to Justice Prempeh and William Prempeh if they do not predecease me, to be shared between them equally and if they do, it should go to my sisters. The remaining one third to my subsequent children by me.” (Emphasis mine.)

These words amount, in my view, to future intentions and negative a finding that the deceased was in contemplation of death when making exhibit 1.

On the contrary a person in this frame of mind cannot talk of others predeceasing him or an intention to build a house or to have more children in future life. I would not therefore be persuaded by the argument that because the deceased died later, he was in immediate fear of death or in contemplation of death either in June 1979 or 15 July 1979, when making exhibit 1.

Furthermore to hold thus would be a complete departure from the deceased’s intention to make a will, not samansiw and would indeed be contrary to deceased’s intention.

I am satisfied that exhibit 1 was not made in anticipation or contemplation of death and consequently cannot be held as a valid samansiw under customary law so as to benefit the defendant.

Even if exhibit 1 is read in two parts and a very favourable interpretation put on the second, hand-written part, namely, that it was made in contemplation of death, because the deceased died the next day, such finding would still not inure to the benefit of the defendant because she was not mentioned therein.

Exhibit 1 is clearly an invalid will because it was not signed or witnessed and is also not a valid samansiw. The Court of Appeal was therefore right when it criticised the learned trial court’s ruling that exhibit 1 was a samansiw in these words:

“When a judge therefore finds it possible to save a void statutory will by declaring it a valid samansiw under customary law, for the purpose of the devolution of the testator’s estate, he can do so, but only if the deceased has expressed no contrary intention as to the applicability of the customary law or his personal law. Since the late Prempeh has expressed his intention that his will shall not be interpreted in accordance with any law or customary law, but English law the learned trial judge had no power to save a void will against the expressed wishes of the testator even if he had power to convert the statutory will into a samansiw. Under these circumstances the learned trial judge was under a duty to declare that the maker had died intestate.”

I agree with the Court of Appeal and it seems to me that even if the deceased had not clearly excluded the application of the customary law to exhibit 1, a court cannot change the nature of that exhibit, i.e. an abortive will, into a valid samansiw unless the essential requirements of a valid samansiw are present.

It is my considered opinion that exhibit 1 is not a valid samansiw, and therefore the deceased died intestate in respect of the house in dispute. The estate is to be distributed by the plaintiff successor. The appeal on this ground also should fail.