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JUDGMENT
ADINYIRA (MRS.) J.A.:
The facts briefly are
that one Madam Zinabu Asimawu N’Diaye Jayi (deceased)
(simply referred to hereinafter as Madam Zinabu) on 25
March 1996, brought an action against the defendants
appellants (hereinafter referred to as appellants) at
the Circuit Court, Accra
‘‘For recovery of
possession of the residential premises and all the
stores, the defendants are occupying in house No.D.714/4
Okaishie’’
Her claim was based on
the will of her grandmother Asimawu Afoda. Madam Zinabu
died in the course of the trial and she was substituted
by the present plaintiff/appellant. In the course of the
proceedings Francis Decland joined the action as
co-plaintiff. By an amended statement of claim filed on
6 June 1998, the co-plaintiff pleaded that he has bought
the life interest of Madam Zinabu and the reversionary
interest of her son Abdulai Mayuka Fiston respectively.
He therefore claimed against the defendants jointly and
severally for:
(a) Declaration of
title to all that piece or parcel of land in extent
0.091 hectare (0.224 of an acre) more or less being
Parcel No. 66, Block 1 Section 30 situate at Accra in
the Greater Accra Region.
(b) Recovery of
possession.
(c) Perpetual
injunction against the defendants and co-defendants
their agents, servants, assign, privies from interfering
in any way whatsoever with his property.
The 1st and 2nd
defendants/appellants are the children of Abubakari Mama
Jimah an uncle of Madam Zinabu. The 3rd to 7th
defendants/appellants are tenants in the house in
dispute. The co-defendants/appellants joined the action
as the administrators of the estate of the 1st and 2nd
defendants/appellants. The defendants and
co-defendants/appellants (hereinafter referred to simply
as appellants where appropriate) by their amended
statement of defence dated 8 July 1998 and filed on 9
July 1998, traced their root of title to a conveyance
dated 20th July 1940 and registered as No.3271/40 from
Millet Solomon Millet to Fatima Adjua, Asimawu, Rahamatu
Mamah Jimah and Abubakari Mama Jimah. Asimawu was the
grandmother of Madam Zinabu and Abubakari Mama Jimah the
father of the 1st and 2nd appellants who was then an
infant. They claimed Asimawu Afoda devised only four
rooms by her will to Madam Zinabu and therefore the
latter did not own the whole house, the subject matter
in dispute. They claimed Madam Zinabu sold these four
rooms to their father for ten thousand Cedis in 1987.
They claimed that even if Madam Zinabu owned the house
her action was statute barred. Finally they claimed the
co-respondent’s land title certificate was obtained by
fraud and therefore void. The particulars of fraud were
1. The co-plaintiff
concealed material facts from the Land Title Registrar.
2. The co-plaintiff
never disclosed the presence of the defendants and
co-defendants in the land in dispute.
3. The co-plaintiff
never disclosed to the Land Title Registrar that there
was an action pending in the High Court concerning the
land.
The main issues for
determination by the trial judge in his judgment were,
(i) the ownership of the house, (ii) whether Madam
Zinabu sold her interest in four rooms to the 1st and
2nd defendants’ father and (iii) whether the sale to the
co-respondent was valid. The trial judge held that the
plaintiff respondent was entitled to her claim and the
co-plaintiff/respondent was declared owner of the house.
The appellants being dissatisfied appealed against the
judgment on the following grounds:
‘‘1. The plaintiff and
co-plaintiff having failed to establish their case the
learned trial judge gave them judgment.
2. The judgment is
against the weight of evidence.’’
These two grounds of
appeal are in effect the same and both counsels in their
statements invariably treated them as such. The
gravament of Counsel for appellants’ submission was
that:
‘‘ Based on the will of
Madam Asimawu Afoda the plaintiff is only entitled to
what the will devised to her and no more. Since the will
did not devise the whole of house No. D.714/4 to the
plaintiff she could not have passed title of the whole
house to the co-plaintiff. Nemo dat quod non habet.’’
It is therefore
pertinent to look at the will itself, which was tendered
in evidence as Exhibit A. For purposes of brevity. I
will quote only the relevant portions.
‘‘I give devise and
bequeath all my property which I die possessed of to my
grand-daughter Zinabu Jayi Asimawu and I appoint my
Executors and Trustees to be guardians of my said
grand-daughter and direct that they shall bring her up
from the income of my estate after payment of my funeral
and testamentary expenses and just debts.
I further direct that
on my said grand-daughter attaining the age of
twenty-one or on her marrying before attaining the age
whichever happens first my Executors and Trustees shall
vest the under mentioned freehold properties in her
which I direct shall be held and enjoyed by her during
her lifetime and not alienate or otherwise part with any
of them and that on her death the said properties shall
devolve on to her children of her body.
I devise to Suli
Mohamed the one room, which he now occupies, in my
freehold house at Granville Avenue for his lifetime and
on his death to my said granddaughter Zinabu Jayi
Asimawu.
The following are the
freehold properties I possess:
1. House No.
D.802/1-Four rooms at Granville Avenue, Accra.
2. Land in same
house-my portion on partition.
3. Two rooms in Nima
in the Municipality of Accra.
4. House at Kotobabi
in the Municipality of Accra.’’
The testator in the
first place devised all that she died possessed of to
Madam Zinabu. In the will one of the properties she
owned at the time she made the will on September 20 1954
was described as House No. D.802/1- Four rooms at
Granville Avenue. As a matter of practice in the
construction of any document the general rule is to give
the words their ordinary meaning. In Halsbury’s Laws of
England 3rd Edition Vol.39 on principles of construction
at page 975, on Context, Meaning and Effect of Words it
is stated:
‘‘1492. Words prima
facie to receive their grammatical and ordinary meaning.
It is a general rule applicable to all wills that,
unless it appears from the context of the whole will
that the testator intended a different meaning to be
given to the words, ordinary words are first read in
their grammatical and ordinary sense, and legal and
technical words in their legal and technical sense, and
the usual rules of grammar are to be applied.’’
So following the
ordinary rules of construction the phrase, ‘House No.
D.802/1-Four rooms at Granville Avenue’ given its
ordinary and grammatical meaning may be interpreted to
mean that the testator owned House No. D. 802/1 with
four rooms at Granville Avenue. It may also mean she
owned four rooms in House No. D.802/1 at Granville
Avenue, but this presupposes that the house has more
than four rooms. Looking at the context of the will one
does not get any help, as she describes one property as
‘two rooms in Nima’ and another property as ‘house at
Kotobabi’. In another context in a devise to Suli
Mohamed, the testator described the property as ‘my
freehold house at Granville Avenue.’ In deciding which
of these two meaning to choose, then we must look at the
pleadings and evidence led. In the pleadings there was
no indication by any of the parties that the house
comprised of more than four rooms at the time of the
testator’s death. The only relevant pleadings was that
by the appellants which, was that, the house did not
belong to the testator alone but that she bought it with
others from Millet Solomon Millet. But this contention
was found to be untrue as the title deed upon which they
relied was held to be fictitious by the trial judge.
This holding was not challenged in this appeal. It was
in the cross-examination of Madam Zinabu that she said
at the time of her grandmother’s death the house
consisted of only four rooms, which the 1st and 2nd
appellants’ father added seven stores from rents he
collected as her caretaker when she travelled to Senegal
for 10 years. At the time she was travelling she had
tenants in three of the rooms and the defendants’ father
in the other room. The appellants’ claim that their
father bought these four rooms from Madam Zinabu was
also held to be false by the trial judge. This holding
was also not challenged in this appeal simply because it
was supported by the fact that the receipt of purchase
the appellants were relying on has been held to be a
forgery in a previous criminal proceedings against the
1st and 2nd appellants. So, in the absence of any
evidence that the house in dispute contained more than
four rooms at the time of the testator’s death, I hold
the view that the phrase ‘‘house No. D.802/1-Four rooms
at Granville Avenue’’ means a four- room house at
Granville Avenue, Accra.
It was also argued on
behalf of the appellants that Madam Zinabu was entitled
to only a portion of the land attached to the house.
Counsel argued that in the will the testator said she
owned only a ‘portion on partition’ and it was therefore
fraudulent for Madam Zinabu to have the whole house
vested in her by a vesting assent. There was no evidence
of a partition and no one claimed a portion of this land
as having been partitioned before the testator’s death.
If there was an intention by the testator to partition
and give a portion to her nephew during her lifetime, as
given in evidence by Madam Zinabu, and this was not done
then Madam Zinabu was entitled to all that the testator
died possessed of, in accordance with the devise in the
will that, ‘‘I give devise and bequeath all my property
that I may die possessed of to my grand-daughter…’’
It is therefore my
considered view that Madam Zinabu was right in having
the property at Granville Avenue vested in her after
obtaining letters of administration with will annexed as
the Executors of her grandmother’s will failed to do
that before they died. I do not find any basis for the
allegation of fraud by counsel for the appellant. I
therefore hold that the trial judge was right in holding
that Madam Zinabu was entitled to the whole house.
Another issue raised in
this appeal was that Madam Zinabu had only a life
interest in the house in dispute and it is only that
interest the co-plaintiff purchased and this terminated
upon her death. I do not see the purpose of this
argument, as the appellants are not the beneficiaries of
the reversionary interest in this property. In any case
the co-respondent gave evidence and produced receipts
Exhibits J3, J4, J5, and J6, proving he bought both the
life interest and the reversionary interest from Madam
Zinabu and her son Abdulai Mayuka alias Fiston,
respectively. This son had earlier joined the suit to
protect his reversionary interest but withdrew for the
reason that he was travelling out of the jurisdiction.
Apparently he returned to sell his interest as the sale
was done when this action was pending. I therefore do
not find any reason to fault the trial judge’s finding
that the co-respondent was entitled to the house in
dispute, as there is overwhelming evidence to support
the judgment.
For the above reasons I
do not find any merit in this appeal and it ought to be
dismissed. The appeal is accordingly dismissed.
S.O.A. ADINYIRA (MRS.)
J.A.
JUSTICE OF APPEAL
OWUSU, J.A:
I agree.
R. C. OWUSU (MISS.)
JUSTICE OF APPEAL
OWUSU ANSAH, J.A:
I also agree.
P. K. OWUSU ANSAH
JUSTICE OF APPEAL
COUNSEL:
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