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J U D G M E
N T
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This case was initiated in 1989,
that is 22 years ago. After the
close of pleadings, the court
directed the trial of the case
on 20th December,
1989. Thereafter, it appears
from the record, both parties
fell into a rather long
inordinate slumber.
It is on record that both
parties at one time or the other
filed notice of intention to
proceed. However, it was not
until 2003 that plaintiff filed
what appears to be the last of
the “Notice of Intention to
proceed”
The matter then came
before the court then
constituted by E. F. Dzakpasu J
who actually started the hearing
of the case.
However, after the
evidence in chief of plaintiff
had been adduced, learned lawyer
for plaintiff sought leave to
amend the statement of claim and
thus brought a motion to that
effect.
This motion occasioned
series of adjournments thus
accentuating the already
inordinate delay. This damnable
state of affair bedeviled the
conduct of this case until 2009
when the case was transferred to
Kwasi Dapaah J.
It may therefore be
observed that the conduct of the
parties in particular and even
their respective initial
lawyers is anything but
uncomplimentary, to say the
least, as far as the rather
inordinate delay for the
disposition of this case is
concerned.
On 1st
March, 2010 through the
instrumentality of Kwasi Dapaah
J, the
de novo trial of the case
commenced. Plaintiff testified
per his lawful attorney, Vincent
Joseph Richter. Both the
attorney of plaintiff and PW1,
Johann Ernest Richter
categorically stated that
plaintiff is the head of Richter
family of Osu. This rather
unchallenged evidence on record
poignantly shows that plaintiff
is clothed with the requisite
legal capacity to institute
this action for and on behalf of
the Richter family of Osu
claiming that H/No. F 375/1,
osu, the subject matter in
dispute belongs to the Richter
family of Osu.
(See the cases of KWAN Vs.
NYIENI (1959) GLR 67, CA; IN RE
ASHALLEY BOTWE LAND CASE
(2003-2004) SC GLR 420 and Order
4 RULE 9 (2) OF HIGH COURT
(CIVIL PROCEDURE) RULES, 2004,
C.1 47).
There is uncontroverted
evidence on record that H/No. F
375/1, Osu was self-acquired by
Henry Emmanuel Richter
(deceased) hereinafter to be
referred to as Henry). Indeed,
in both the defence as pleaded
and as testified, no mention was
made that the subject matter in
dispute was jointly acquired or
that Mrs. Clara Richter, Henry’s
wedded wife made any
contributions at all in the
acquisition of H/No. F 375/1,
Osu. Plaintiff sought to show
per Exhibit ‘C’ that Henry
acquired this property before he
married Clara Richter. In my
view this attempt by plaintiff
was superflous since defendant
never challenged the fact of the
self-acquisition of the subject
matter in dispute by Henry.
At any rate, considering the
issues for determination,
whether the acquisition of the
property in dispute was made
before Henry married Clara or he
acquired this property during
the subsistence of the marriage
or after the marriage is of no
consequence.
There is yet another
uncontroverted piece of evidence
on record that Henry married
Mrs. Clara under the Gold Coast
Ordinance No. 14 of 1884 in
1936. In other words that
marriage is distinquishable from
customary mode of marriage which
is also recognisable under the
law but has its own peculiar
incidents with respect to
property rights.
It is on record that Henry
died in 1967 intestate possessed
of the property in dispute. The
evidence indicated that at the
time of Henry’s death he was
staying with Mrs. Clara and
defendant in the very house in
dispute.
The question to pose in
this case is what was the legal
system of inheritance of a man
married under the Ordinance who
had died intestate possessed of
a property? Does the surviving
spouse have any share by way of
inheritance any property the
other spouse died intestate
possessed of ?
Before proceeding to
consider this legal issue, let
it be acknowledged that Mrs.
Clara and Henry had no child or
children of their own but the
record indicated that Mrs. Clara
had a daughter of her own before
marrying Henry and this daughter
happened to be defendant in this
case. In other words, defendant
is a step daughter of Henry.
It is instructive to
note therefore that defendant as
a step daughter is recognised
under the Ordinance as a
daughter of Henry. It is on
record that defendant was born
before Clara married Henry under
the Ordinance.
However, there is no
evidence that defendnt was
procreated in adultery. In the
circumstance, under the law,
defendant is deemed the lawful
isssue of the marriage between
Henry and Clara under the
Ordinance.
For this reason,
defendant is entitled to the
same rights and privileges as an
issue of the marriage and upon
the death of intestate of Henry,
defendant became subject to the
same incidents of inheritance as
if Henry and Clara had her, that
is procreated her under their
Ordinance marriage.
(See Section 49 of the
marriage Ordinance and the case
of COLEMAN vs. SHANG (1959) GLR
390).
In the COLEMAN case, Van
Lare J A stated that “some of
the most important incidents of
a marriage under the Ordinance,
contracted by a person subject
to customary law (such as in
this case) are contained in part
7 of the Ordinance which part
consists of only two Sections,
Sections 48 and 49”
The learned judge then
quoted in extenso Section 48 of
the Ordinance and concluded
that: “this section invokes the
law of England relating to
distribution of personal estate
of intestates in force on the 19th
November 1884, and relates to
the distribution of two-thirds
of the estate, real and
personal, of two classes of
intestates. These classes are:-
(i)
Persons married under the
Ordinance, and
(ii)
Persons who are sissue of
marriages under the ordinance”
The Learned Law
Lord then said the “Law in force
in England on
19th November, 1884
relating to distribution of
personal estate, was based upon
the statute of Distribution,
1670 (22 x23 Car. 2 C 10)’ and
some other statutes.
He then concluded that:-
“Under Section 48 of the
Marriage Ordinance, when the
English law applies it does so
only as to two-thirds of the
estate; the other one-third is
to be distributed in accordance
with the provisions of the
native customary law which would
have obtained if such person had
not been married under the
Ordinance. The proportions to
which wife and children in this
country will be entitled in the
whole of a deceased husband’s
estate in law therefore are:-
(i)
“Wife: 1/3 of 2/3, which is 2/9
(ii)
Children: 2/3 of 2/3, which is
4/9”
From the facts of this case and
the application of the law which
has succintly been espoused by
Van Lare J A, it is quite
observable that if the estate of
Henry, in this case H/No. F
375/1 Osu were to be distributed
in accordance with the
Ordinance, six-ninth would be
given to Mrs. Clara and
defendant while three-ninth
would devolve on the Richer
family in accordance with
customary law.
But then the pertinent
question to pose is whether
H/No. F375/1, Osu is
distributable in accordance with
Section 48 of the Marriage
Ordinance or distributable in
accordance with the intestate
succession Law, 1985
(PNDCL 111), having regard to
the peculiar facts of this case.
Indisputably, Henry died in
1967. Quite clearly therefore,
if the parties were alive to the
prevailing law they would have
been aware of their respective
interest or shares in H/No. F
375/1, Osu. However, this was
not the case. Both Mrs. Clara
and the Richter family did not
apply for Letters of
Administration to administer
their respective shares in the
property or the estate of Henry.
Mrs. Clara stayed and enjoyed
the property exclusively. It was
after 1984 when she died that
the Richter family thought they
were entitled to recover the
property. This thought was
actuated by misconception of the
law.
The Richter family contended
that Mrs. Clara and her
daughter, the defendant were in
occupation of H/No. 375/1 and
enjoying same at the sufferance
and permission of the former.
Mrs. Clara and defendant by
virtue of having the majority
share in the property, it is
sheer misapprehension of the law
for the Richter family to have
conceived the thought that Mrs.
Clara and her daughter were
enjoying the property by the
permission of the Richter
family. That is to say the
Richter family could not have
taken Mrs. Clara and defendant
out of the house. Indeed, PW2
could not have put it better
when he said in
cross-examination that Mrs.
Clara continued to stay in the
premises as of right. What he
did not know was that that
situation was not due to Ga
custom. It was an incident of
inheritance derivable from the
marriage of Henry and Clara
under the Ordinance.
Defendant’s attorney who
testified for and on behalf of
defendant per Exhibit ‘2’, a
Power of Attorney and who
happened to be defendants’s
daughter wanted the court to
believe that Henry decreed that
upon his death, the property in
dispute should be given to
defendant. Was that supposed to
be death bed declaration? The
evidence adduced on record falls
short of establishing what could
be regarded as death bed
declaration. Defendant cannot
rely on any such evidence to
claim any interest in the
property. What aids her is the
fact of the Ordinance marriage
her mother Clara entered into
with Henry.
From the forgoing, the fact
remains that in 1967 when Henry
died, the house in controversy
ought to have been distributed
according to law but that has
not been done to date.That is to
say no formal or informal
distribution of the house has
been done.
It appears however that in
1980, the Richter family had a
meeting and decided to take over
the property after Clara’s
death, which decision I have
earlier on condemned as
inconsistent with the law. It is
noteworthy that as at 1984 when
Clara died, there was still no
distribution of the estate of
Henry, let alone the very house
in controversy.
The evidence showed that it
was after 1984 when Clara died
and the Richter family, in their
attempt to claim recovery of the
property, that they applied for
Letters of Administation which
application defendant caveated
culminating in the instant suit
to determine who is entitled to
what as far as H/No. F 375/1,
Osu is concerned.
Therefore it can be stated
that since 1984, the issue of
who takes what regarding the
property in dispute has been a
subject matter for determination
in court. That is to say that as
at 1985 when PNDCL 111 came into
force, the issue of distribution
of H/No. F 375/1 was unresolved
and was indeed pending in the
court by virtue of the
applicantion for Letters of
Administration and the caveat
entered thereto.
Section 1 of PNDCL 111
provides:
“1. (1) On the
commencement of the law, the
devolution of the estate of any
person who dies
intestate on or after such
commencement shall be
determined in accordance with
the provisions of this
law
subject to subsection 2 of this
section and
the
rules of private international
law.
(2) This law
shall not apply to any stool,
skin or
family
property”
On the face of Section 1 of
PNDC 111 it may appear that
since Henry died in 1967,
applicability of PNDCL 111 has
no place at all.
However if one looks at
Section 21 of the same law, it
will be appreciated that the
applicability of PNDCL 111 may
not after all be out of place.
Section 21 of PNDCL 111
provides:
“21
(1) Notwithstanding the
provisions of Section 1
of this law or any other
enctment 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
and distribution of the estate
of an intestate who died before
such commencement, and for
purposes 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.
(2) “For the avoidance
of doubt the provisions of
subsection (1) of this section
shall not apply to any claim
that is statute barred by virtue
of the Limitation Decree, 1972
(NRCD 54)”
Having concluded that in 1985,
that is, at the time of the
commencement of PNDCL 111, there
was an action pending in the
court the law permits the
application of PNDCL 111 to this
case.
In the case of ADADE Vs. ADADE
and Anor. (1991) 1GLR 267, the
Court of Appeal held that PNDCL
111 was applicable to the
distribution and administration
of the Estate of one Anthony
Kwabena Kusi who died intestate
in 1984 since his brother and
sister on one hand and his widow
on the other hand had matters in
court pending as at November
1985 when PNDCL 111 came into
effect.
See also the case of In RE ARMAH
(deceased); ARMAH Vs. ARMAH
(1991) 2 GLR 53.
It cannot be overemphasized that
Section 19 of PNDCL 111
repealed Section 48 of the
Marriage Ordinance. Clearly,
therefore, the distribution
pertaining to the proportions
due to beneficiaries under that
law succintly espoused by Van
Lare referred to earlier on in
this judgment will not apply. In
other words, this suit which was
filed in 1989, but at a time
that the estate of Henry had not
been distributed ought to be
resolved by resort to PNDCL 111
in which case Section 48 of Cap
127 is not applicable.
It is on record that Henry died
survived My Mrs. Clara and no
Child of his own. His estate, as
far as this suit is concerned,
is essentially H/No. F 375/1
Osu, among other properties
which are of no consequence.
The applicable provision in
PNDCL 111 to look at is
therefore Section 4 (a) which
states:-
“(a)
Where the estate includes only
one house
the
surviving spouse or child or
both of them,
as
the case may be, shall be
entitled to that house
and
where it devolves to both spouse
and child,
they
shall hold it as tenants – in-
common”
By operation of the law
therefore H/No. F 375/1, Osu
devolves on the surviving spouse
of Henry, Mrs. Clara and since
she is also dead it devolves on
her estate. Defendant is the
daughter of Mrs. Clara and the
beneficiary of her estate.
Consequently, it is my
judgment that plaintiff family
and for that matter the
plaintiff herein has no interest
whatsoever in H/No. F 375/1,
Osu.
Accordingly, the
plaintiff’s action fails and
same is dismissed with costs of
GH¢2,000.00 against plaintiff in
favour of defendant.
This morning, I was
given a copy of the address
filed by learned lawyer for
plaintiff. After reading it, the
only legal issue raised which I
deem worthy of my comment is on
the issue of the legality or
otherwise of Exhibit ‘2’, the
Power of Attorney given to
Dorothy Quist by defendant. The
point made was that as long as
the Power of Attorney was not
witnessed by another person,
same is invalid. I recall that
when this Power of Attorney was
being tendered, same was
objected to on the same reason
canvsassed by learned lawyer for
plaintiff. Nevertheless, the
objection was overruled. Now,
learned lawyer for plaintiff,
this time has referred me to
Supreme Court cased, namely
ASANTE APPIAH Vs. AMPONSAH ALIAS
MANSAH (2009) SCGLR 90 and I am
most grateful to him. Having
read that case, I have come to
the realisation that it was
wrong in law for me to have
overruled the objection. I
thought that since Exhibit ‘2’
had duly been commissioned, the
commissioner for oath doubled as
a witness. In the ASANTE APPIAH
case, the Court of Appeal held
otherwise and the holding of the
Court of Appeal was seconded by
the Supreme Court. Brobbey JSC
who delivered the judgment of
the court at page 94 had this to
say:
“The Court of Appeal rightly
rejected the argument
of counsel for the plaintiff
that the commissioner
for oaths doubled as both the
witness and the person before
whom the power was executed.
There is no
legal or statutory basis for
that argument. It would be
observed that the provision is
couched in imperative
terms. In so far as the Power of
Attorney in question
was not signed by any witness
(like in this case) it
was not valid”
The effect is that defendant did
not testify in this case. The
only evidence on record to look
at is therefore that of
plaintiff and his witness.
Nevertheless, this state of
affair will not detract from the
conclusion reached since the
facts of the case from
plaintiff’s standpoint warranted
the discussions of the law made
and the conclusion reached.
(SGD) ANTHONY OPPONG J.
JUSTICE OF THE HIGH COURT.
LAWYERS:
S.K. AMOAH, ESQ FOR PLAINTIFF.
GABRIEL PWAMANG, ESQ FOR
DEFENDANT. |
