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JUDGMENT
BY COURT:
The Plaintiffs, who claim to be
the beneficiaries of the estate
of Madam Norkai Nortey also
known as Mrs. Marian Torsu,
claimed the following reliefs
which have been quoted as
presented:
1.
Declaration of this title to
State Housing Company, Dansoman
Estate House No.14, 31st
close, Dansoman.
2.
Damages for trespass.
3.
Recovery of possession.
4.
Perpetual injunction to restrain
the Defendant, his customary
successors, agents, servants,
and all those claiming title
from interfering with the
Plaintiff’s title and possession
of Estate No. 14, 31st
close, Dansoman.
The Defendant filed a defence to
the action on 22nd
May, 2008. The Plaintiffs filed
a reply to this defence on 15th
August, 2008. On 19th
February, 2009, the suit was
adjourned for the Defendant to
put his house in order, but this
was not done until 8th
December, 2009 when Defence
Counsel filed Amended Statement
of Defence without leave of the
Court.
Since no leave was obtained
before filing the 2nd
Amended Defence, and the
plaintiff has not taken any step
on it, the two Amended Defence
filed after the close of
pleadings, and without leave of
the Court will be ignored. This
Judgment has therefore been
written on the original
Statement of Defence filed on 22nd
May, 2008.
On 20th July, 2009,
the Plaintiff filed Application
for Direction and included
issues 3 and 4 as follows:
3.
Whether or not by operation of
law, the husband who died after
the death of the wife is
entitled absolutely to the
leased Housing Estate house No.
14, 31st Close,
Dansoman.
4.
Whether or not the Housing
Company of Ghana has the legal
right to vest the Estate in the
Plaintiffs.
Even though these and other
issues had then not been
formally set down as the issues
for trial, Counsel for plaintiff
filed legal argument on them.
On 11th December,
2009, the Court found that the
application for directions filed
on 20th July, 2009
had not been taken. The Court
therefore set down the issues
contained in the application for
directions for trial on 11th
December, 2009 and admitted
plaintiff’s Counsel’s
submissions on issues 3 and 4,
and asked Defence Counsel to
file his written submissions on
his original statement of
Defence by 18th
December, 2009.
From the pleadings, the parties
admit that Madam Norkai Nortey
also known as Mrs. Marian Torsu
was married to Mr. Torsu under
the marriage ordinance. That
Mrs. Marian Torsu died intestate
on 12th March, 2001
whereas Mr. Torsu also died
intestate on 7th
June, 2001.
The Plaintiff says on 30th
March, 2007, they applied for
letter of Administration from
the High Court, Accra, to
administer the properties of
Mrs. Marian Torsu, and that
application was granted. On
the basis of the grant of
Letters of Administration, they
had State Housing Company Ltd
transfer the house into their
name. As the Defendant was then
in occupation, they sued him for
recovery of possession and for
other reliefs.
The issues to be resolved first
is since Mrs. Torsu died
intestate on 12th
March, 2001 before the husband
died on 7th June,
2001, what became of house No.
14, 31st Close,
Dansoman after the death of Mrs.
Torsu.
Section 4 of Intestate
Succession Law, 1985, P.N.D.C.L.
111 states as follows “Not
withstanding the provisions of
this law
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
tenant in common.”
It is admitted by the parties
that Mrs. Torsu had no child.
Since Mrs. Torsu had no child,
but a husband this house, by
operation of law goes to Mr.
Torsu who was the husband at the
time of the death of Mrs. Torsu.
Even though Mr. Torsu also died
few months after the death of
Mrs. Torsu, the house remained
his at the time of his death.
It therefore formed part of the
Estate of Mr. Torsu.
In Agyentoa vrs. Owusu and
Another (2005-06) SCGLR 383, the
Supreme Court held that Section
4(1) of P.N.D.C.L 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, the children of the
intestate deceased father, are
entitled to his share of the
disputed house and not his
sister as was the law prior to
1985.
In this case Mrs. Marian Torsu
died on 12th March,
2001 and was survived by Mr.
Torsu. Even though Mr. Torsu
died thereafter, the house
formed part of his estate.
Again in Essilfie and Another
vrs. Quarcoo, (1992) 2 GLR 180,
where one Theophilia Alaba
Codjoe died intestate her mother
and sister applied for letters
of Administration to administer
her estate. The defendant, who
claimed to be the husband, filed
a caveat.
A writ was subsequently issued
to determine who was the proper
person to be granted letters of
Administration to administer the
estate. Lutterodt J. as she
then was, considered Section 4
(a) of the Intestate Succession
Law 1985 (P.N.D.C.L. 111) and
held that Section 4(a) provided
that if only one house was
included in the estate the
surviving spouse and/or the
children would be entitled to
that property. Accordingly the
defendant (the husband) had an
interest in the deceased’s
property whereas the plaintiffs
(mother and sister) had none.
Since the Estate of Mrs. Marian
Torsu consisted of only one
house the plaintiffs who claim
to be the administrators of her
estate cannot be the
beneficiaries as they have no
interest in the house. As the
administrators of her estate,
they should have asked State
Housing Company to vest the
house in Mr. Torsu or the
administrators of Mr. Torsu but
not in themselves. The
Defendant has no counter claim
before this Court. Since the
Plaintiff’s claim to be the
administrators of Mrs. Marian
Torsu and the house stood in her
name at the time of her death,
the Plaintiffs will hold the
house in trust for the estate of
Mr. Torsu, as by operation of
law the Housing Company of Ghana
has no legal right to vest
Estate House Number 14, 31st
Close, Dansoman, Accra in the
Plaintiffs. The Plaintiffs
claim is therefore dismissed.
The defendant is awarded cost
of GH¢500.00.
Counsel: Mr. Gideon Quaye
for plaintiff absent.
Mr.
Michael Anokye hold’s Mr.
Novor’s brief for Defendant.
(SGD.) MR. JUSTICE
S.H. OCRAN
Justice of the High
Court
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