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I
JUDGMENT
WOOD, J.A.:
This is an appeal from
the decision of Benin, J. (as he then was) dated 11th
July, 1994. The facts which gave rise to the proceedings
culminating in the said decision are very simple indeed.
One Kojo Oyeman Brown died intestate on 22nd February,
1986. He appears to have been an extremely wealthy man
for he died possessed of several houses. He was also
survived by three wives and twenty one children. Not
suprisingly, it was these same factors namely, the fact
of his intestacy, the extent of his wealth as well as
the sheer size of his nuclear family which led to his
family’s inability to distribute the properties among
those entitled to them, to their satisfaction. His
customary successor later applied for joint letters of
administration for himself, the deceased eldest child,
Ernest Kofi Brown and the appellant, who is one of the
widows. Following upon an application subsequently
brought by the appellant, the widow by name Mercy Sagoe,
the learned trial judge proceeded to distribute the
assets in terms of the intestate succession Law 1985
(PNDCL111). My own personal view is that the learned
trial judge deserves our commendation rather than
condemnation. For, in this rather extremely difficult
exercise, an exercise in which it is impossible to
achieve a 100% success rating, he carefully outlined the
factors he intended to rely on to help him arrive at a
just equitable and fair distribution and so succeeded in
distributing the said properties among the spouses and
their children as well as the extended family. The
appellant, who as I have already pointed out initiated
the court distribution, being dissatisfied with the
result has appealed to this court on a number of
grounds. At first impression, that this by merely
examining the various grounds of appeal, the impression
one gets and rightly so in my view, is that she intends
to upset the apple cart, that is to say, even as the
relief endorsed on the notice of appeal clearly
stipulates, she is asking for nothing less than a
setting aside of the entire ruling and consequently the
whole distribution and requesting for a redistribution
by this court, since appeals are by way of rehearing.
However, at the hearing, counsel made it plain that
their only and main complaint is with respect to the
subject matter on plot No. 30 Korle Gonno. It is with
respect to this property that she has prayed for a
setting aside of the order giving part of it to her
rival Diana Appiah. Her desire is that the entire
property be given to her and her children. It follows
then that our decision in this court rests only on this
property, plot No. 30 Korle Gonno.
The evidence clearly
shows that there are two buildings situate on this land.
First there is what the learned trial judge described as
the “main building”. Then there is what he identified as
the “Outhouse” or the boys quarters. In spite however of
these descriptive terms — “main house”, “boys quarters”,
‘outhouse’ they each comprise three rooms and a hall.
Though in our culture describing one of the houses as a
boys quarters or outhouse would immediately conjure in
the mind a less superior property, inferior both in size
and quality and so status to the main building it is
equally true under normal circumstances a boys quarters
cannot have the same number of rooms and facilities or
conveniences as the main house. Under these
circumstances, in the absence of any evidence to the
contrary and there is none on the record to that effect,
it is safe to conclude, since they stand on the same
land that they are of equal value. The learned trial
judge gave out the main house to her rival Diana Appiah
and the outhouse to the appellant. The question which
readily comes to mind then is what is wrong with this
particular distribution. Why does she want us to disturb
this finding of the learned trial judge. I was able to
discern four main complaints from her counsels argument.
It was first submitted that because the learned trial
judge used the alphabetical order to decide who should
exercise his choice first as to which house should go to
whom the learned trial judge erred. This error it was
argued led to an inequality and injustice in the
distribution. The argument of counsel is that by S.14 of
the PNDCL.111 where two or more persons are entitled to
a share in the estate, it shall be done in accordance
with customary law. It was thus contended that under
customary law, the wife with more children is entitled
to more. It was argued that not only did the wife whose
name appeared first in alphabetical order unwillingly
obtain an advantage but more importantly that the
grouping of the various women and the number of children
they had did not manifest in the distribution.
Secondly, it was urged
that as happened in the instant case, where the parties
have reached an agreement on who is to take what, the
courts jurisdiction must be based on the agreement of
the parties. I think the implication here is that the
court failed to abide by this agreement with respect to
the subject matter and consequently the distribution
ought to be set aside.
Thirdly, it was
contended that what greatly influenced the trial judge
in this mode of distribution is the fact that some of
the beneficiaries have spent moneys on the property. It
was counsels contention that since they made such
outlays before the distribution they did so at their own
risk and they cannot be allowed to profit by their own
wrong doing.
Fourthly, and finally
it was urged that since in none of the groupings were
made to share one property it was unjust and unequitable
to make the order that he did and the same therefore
ought not to be allowed to stand.
Respondent counsels
reply to these arguments were that, firstly that the use
of the names of the widows in alphabetical order was
merely for convenience, to facilitate the identification
of the various groupings. It was therefore contended
that it played no dominant role in the distribution.
Secondly it was urged
upon us that as the two properties had the same number
of rooms they were of equal value. Thirdly, and more
importantly, it was urged that the distribution was
done, as far as was possible in accordance with the
person who was in occupation of which building. The
contention therefore was that since both appellant and
her rival were at the time of the distribution in
occupation of the said premises, and since in any case
the learned trial judge had ordered the construction of
a wall to separate the said properties, the distribution
was fair, just and equitable and the same ought not to
be interfered with.
I am of the opinion
that the learned trial judge did all that was necessary
to ensure fairplay and equity as far as this property
was concerned. I have already shown that although the
appellants share is described as an outhouse it is
virtually of the same value as her rivals. The record
also shows that each of them was in occupation of that
building which was allotted to her by the trial judge.
But the more important question is did the trial judge
use the alphabetical of order purposely to decide who
will be entitled to what property? My answer is no. I
think he chose this method merely to enable him identify
the wives in a very neat and orderly fashion and the
number of children each had. I reproduce that portion of
his judgment for I believe it does support my line of
thinking of the matter.
“Deceased was survived
by three wives and 21 children. Using the alphabetical
order the names of the wives are Diana Appiah who has 4
children, Grace Enninful who has 7 children and Mercy
Sagoe who has 8 Children. There was two other children
whose mother was not a surviving wife. The applicant as
the customary successor represents the deceased maternal
family, the 2nd applicant represents the children and
the third applicant represent the survi vingwifes.”
Earlier on his
judgment, he has outlined the factors he would take into
account in arriving at his decisions. These did not
include the alphabetical order of the names of the
widows. It follows that the alphabets played no role,
let alone a dominant one in deciding who should have
which of the properties or plot No.30. Matters the
learned trial judge took into account were firstly
distribution done by the family and by which some
beneficiaries came by certain properties and enjoyed
them. Secondly the agreement by beneficiaries that the
distribution be based on groupings, that is to say each
wife together with her children (bearing in mind the
number that she has) was to take particular property.
Thirdly, one other factors which influenced his thinking
was the provisions of Law III as regards “the
distribution ratios between the family, the surviving
wives and the children.”
The criticism that the
grouping idea, based on the number of children did not
manifest in the distribution is whole unjustified.
Perhaps, when looked at solely from the point of view of
plot No. 30 one may be attracted by this argument for
the question may be asked why should each groupings
share in the property be equal when the appellant has as
many as eight children while her rival has only four.
But we only have to bear in mind the other factors which
influenced the decision. Namely the fact that before the
distribution each was already in possession of the
premises and more importantly the tract also the
appellant became the proud owner of other properties in
Accra and Takoradi which we are told translates into 9
flats. Her rivals obtained 6 flats. It would seem then
that the learned trial judge did take into account the
number of children each had. In this wise, I do not find
that the learned trial judge erred either in law or in
fact distribution that:
I have read the S.14 of
the Intestate Succession Law PNDCL.111. It does not
stipulate as has been argued by appellant counsel that
where two or more persons are entitled to a share in the
estate it shall be done in accordance with customary
law.
On the contrary it
maintains the property shall divide among themselves in
equal shares. It has not been demonstrated that the
learned trial judge offended these provisions in his
dealing with the subject matter and it will therefore
wrong to interfere with his findings. Again, the charge
that the learned trial judge failed to take the
agreement of the parties as to who was to have what
property into account wholly fails.
As already
demonstrated, both appellant and her rival had been in
occupation of their respective premises before the
court’s final order. Does this fact alone not show that
they are in occupation as a result of this earlier
agreement? How then can the judge’s order asking that
the status quo be maintained be interpreted as a
flagrant violation of their agreement? I will now deal
with one final criticism namely that none of the other
groupings have been asked to have the same property. My
answer is first, the appellant and his rival are not
being made to share the same property. Second, as the
record would suggest this had been the state of affairs
and well before the courts intervention. And the
implication from counsel’s own argument is that the
agreement was mutual.
Thirdly there is no
evidence at the record that others in similar
circumstances were treated differently, that is to say
others who were sharing properties on the same land,
were separated and preferentially treated. Finally, let
me emphasise once again the rather difficult nature of
the exercise the trial judge was called upon to perform
and our role as appellate judges, an exercise which
naturally includes the balancing of several factors. I
have outline some of them. To some extent he exercised
his discretion and wisdom of course based no doubt on
the law and the facts, supplied by the parties, the
appellant in particular. But unless in arriving at the
conclusion he did erred in law as for example by
applying wrong principles of law or he made wrong
findings of fact or drew wrong inferences from the
proven facts, we as an appellate court would have no
basis for interfering with his decision and substituting
our own. I have come by no such errors and I would
therefore hesitate to disturb his conclusion on the
matter. In the result the appeal fails and is hereby
dismissed.
MRS. G.T. WOOD
JUSTICE OF APPEAL
ESSILFIE-BONDZIE, J.A.
:
I agree.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
GBADEGBE, J.
I also agree.
N.S. GBADEGBE
JUSTICE OF THE HIGH
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