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J U D G ME N T
BAMFORD-ADDO(MRS) JSC:
The appeal before us is against
the Judgment of the Court of
Appeal dated 19th
January 1995. This case
originated form the District
Court Kumasi when the Appellant
herein as Plaintiff issued a
writ of summons against the
Respondents herein as Defendants
for the recovery of possession
of two rooms in House No.
O.T.77A Ashanti New Town Kumasi
which they occupied rent free.
The District Court gave judgment
on the 19th May 1986 for the
Plaintiff and the Defendants
appealed that decision to the
High Court Kumasi which Court
affirmed the District Court's
judgment dated 28th July 1987.
The Defendants again appealed to
the Court of Appeal and the
court reversed the High Courts
judgment in part, hence this
appeal.
The simple facts of the case are
that House No. O.T.77 Kumasi was
built by one Madam Afua Mensah,
who had two children namely
Elizabeth Victoria Mensah and
Daniel Owusu. During Madam Afua
Mensah's lifetime she sold half
of the house to one A.D.
Agboloso. After the sale the
house was numbered as O.T. 77A
and O.T.77B and Afua Mensah
retained that part numbered O.T.
77A. Madam Afua Mensah died in
1950 leaving a will which was
tendered in evidence and marked
Exhibit "B". In the will she
bequeathed to her son Daniel
Owusu and he daughter, Elizabeth
Victoria Mensah her portion of
the said house. In par 2 of Exh.
'B' the Will she said as
follows:
"I give and bequeath to my son
Daniel Kwame Owusu and my
Daughter Elizabeth Victoria
Mensah for their use absolutely
my share of one-half (1/2)
undivided moiety of premises
situate and known as Plot No 77
in the Odomasi District of
Kumasi".
The defendants in the case are
the children of Daniel Owusu
namely Dina Owusu and Daniel
Owusu. After the death of Daniel
Owusu's mother i.e Afua Mensah
he lived in the house with his
wife and children. When Daniel
Owusu also died in 1959
intestate, he was succeeded by
his uterine sister Elizabeth
Victoria Mausah PW1. The latter
obtained Letters of
Administration in respect of the
estate of her deceased brother
and also a lease in respect of
the house. She also took steps
to have the ownership of the
house changed into her name at
the Kumasi City Council.
When Daniel Owusu died his
children i.e. the defendants
were too young and so left to
live with relatives, but after
16 years they returned to live
in their father's house and
occupied two rooms which their
father had occupied in his
lifetime rent free.
In 1984 the plaintiff Madam
Akosua Agyentoa bought the whole
house from Elizabeth Victoria
Mensah PW1, who had perfected
her title document on the House.
After the sale Madam Akosua
Agyentoa the Plaintiff took
action against the Owusu's
children for recovery of
possession of the said rooms.
Judgment was given in her favour
at the District Court and the
defendants were ordered to
vacate the rooms forthwith. An
Appeal to the High Court by the
Defendants against the judgment
of the lower Court was
confirmed. Dissatisfied the
Defendants again appealed to the
Court of Appeal which court
party allowed the Appeal, in a
unanimous decision of the Appeal
Court. Then the appellant herein
also appealed to the Supreme
Court.
Appellant filed the Original
grounds namely:
(a)
The Judgment is against the
weight of evidence
(b) Additional grounds of
Appeal would be filed on receipt
of the record of
proceedings.
No additional grounds of appeal
were field but in the appellants
statement of case his counsel
mentioned certain matters namely
that PNDCL 111 is not applicable
to the case brought against
present Respondents i.e ejection
case and had noting to do with
succession. Indeed the Appellant
never raised this issues in the
Courts below and did not make it
a ground of Appeal.
Under rule 6(6) of the Supreme
Court Rule C.1.16:
"The Appellant shall not without
leave of the Court, argue or be
heard in support of any ground
of Appeal that is not mentioned
in the notice of Appeal".
Therefore, the Appellant cannot
argue this matter here. In any
case it is clearly unmeritorious
as would be seen in the course
of this judgment.
The only ground of Appeal that
the judgment is against the
weight of evidence, was
considered in detail by the
Court of Appeal. That court
thoroughly considered the law
and came to the conclusion that
the principal issue in the whole
case was, whether the devise in
the will of Afua Mensah to her
children Elizabeth Victoria
Mensah and Daniel Owusu
concerning house No. OT 77A
granted an interest of tenancy
in common or joint tenancy to
her children. It ruled correctly
that interest created by use of
the word "absolutely" in the
will was that of tenancy in
Common, and relied on the
principle in the case of Biney
V. Biney (1974) 1GLR 318. That
case also relied in the case of
Bata Shoe Co Ltd v. Roura and
Forgas (1964) GLR 190 in which
the Supreme Court held at P129
as follows:
"In the construction of
documents the attitude of the
Courts of Ghana (Then Gold
Coast) has invariably been to
construe every document
reasonably strictly giving it
such effect as it is capable of
bearing by the strict
application of the principle of
(a) English Law where the
document as relied on as
Constituting a transaction known
and recognized by English Law or
(b) customary law, where the
document is relied on as
evidencing a transaction known
or recognized only by customary
law."
In this case the court found
that the law applicable to the
situation was English Law and
held that the interest of Daniel
Owusu created by the Will was
tenancy in Common. He therefore
held separate and distinct
interest or share in the house
which would descend on his death
intestate on his personal
representatives, according to
the applicable customary law at
the time of his death.
Prior to 1985, the customary law
was that on the death intestate
of an Akan like late Owusu his
successor, being the next of
Kin, was the person entitled to
inherit him not his children.
See the case of Eshun v. Jonfia
(1984-86) GLR D P.13 which held
in that case dismissing an
appeal that:
"(1) the appellants as
children has no right to any
specific portion of the estate,
neither did they have any right
to share the rents accruing from
the properties with the
Respondent. Their right was
limited to occupation of their
father's house and also to be
maintained by the Respondent out
of their father's estate while
young".
It also went on as follows:
"... where the children were sui
juris as the applicants were,
earning their living by petty
trading, and could in fact look
after themselves, the question
of maintenance was out and their
only right that was left was
their right to stay in their
father's house, and on their own
showing the Respondent had never
denied them that right. Manu v.
Kuma (1963) 1 GLR 464 at 469 SC
cited."
In 1975 Owusu's children were
living in their fathers' house
rent-free till 1984 when Owusu's
sister Elizabeth Victoria
Mensah, Pw1, sold the house to
Appellant herein having
perfected all her documents on
the house. Thereafter appellant
sought to eject Respondents from
the house, as she claimed
ownership of the same. When the
Respondents refused to leave the
Appellant then issued a Writ
against them at the District
Court. She won the case and
Owusu's children appealed to the
High Court, which affirmed the
decision of the District Court.
They again appealed to the Court
of Appeal and partly won the
appeal resulting in the present
appeal before us.
The Law which was applied by the
Court of Appeal to come to its
decision was the intestate
Succession Law 1985 (PNDC Law
111) which was passed during the
course of hearing this case; on
the 5th July 1985.. PNDC Law 111
Section 21 thereof stipulated
that the provisions of the said
statute was to be applied to any
case of succession pending
before the Courts after its
passage. This case was pending
on the 5th July 1985 the case
having commenced on 12/4/85 and
the Court of Appeal had to apply
the provisions of that Law.
Section 4(1) PNDC Law 111
stipulated that on the death
intestate of any person, his
wife and children should inherit
his property. It follows that in
this case the Respondents,
children of late Owusu, are
entitled to his share of the
house O.T. 77A and not to his
sister as was the law prior to
1985. She could not
therefore sell the whole house
but only ½ part of the property
ie. her ½ share of
ouse
Hou House No. 77A. The
other ½ share of that house goes
to Owusu's children ie.
Respondents in this case. The
judgment of the Court of Appeal
is therefore affirmed.
This appeal succeeds in part and
is dismissed in part.
J. A. BAMFORD-ADDO (MRS)
JUSTICE OF THE SUPREME COURT
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
G. T. WOOD (MRS)
JUSTICE OF THE SUPREME COURT
S. G. BADDOO
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. David Boafo for Appellant.
Mr. Lutterodt for Respondent.
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