Wills - Construction - Applicable law - Will in English form - English law applicable - Courts Act 1993 (Act 459), s 4(a) rule 1.

Wills - Construction - Co-ownership - Devise of house to beneficiaries absolutely - Devise resulting in tenancy in common - Sale of house by a devisee conveys devisee’s interest only.

Land law and conveyancing – Equitable interest – Notice – Purchaser omitting to investigate interests of persons in possession of property under sale – Purchaser deemed to have constructive notice.

The testator devised her moiety of the disputed house to her son and daughter absolutely. The son lived in the house with his wife and his children. Upon his death his sister took letters of administration to administer the estate and registered the property in her name. The said children left the house after their father’s death but moved in forcibly later. While they were in occupation the said sister sold the house to the respondent who sued the children successfully in the district court for ejectment. They appealed to the High Court but lost and appealed to the Court of Appeal. Counsel for the appellant argued that the High Court erred in not resolving the issue whether the son and daughter took the property under the will as joint tenants or as tenants in common.

Held: (1) Under the Courts Act 1993 (Act 459) s 4(a), rule 1 the applicable law to a transaction was determinable from the nature of the transaction. The testator having made a will in English form must be deemed to have intended English law to apply. British Bata Shoe Co Ltd v Roura & Forgas Ltd [1964] GLR 190, SC referred to.

(2) At common law where a devise created joint tenancy the last survivor took the residue. On the other hand where the devise created a tenancy in common, each devisee would hold a distinct interest or share that would devolve upon the personal representative of the holder. The wording of the devise was crucial in determining whether a joint tenancy or tenancy in common was created. Words of severance or words indicating a separate interest or holding would suggest a tenancy in common otherwise a joint tenancy would result. The word absolutely was a word of severance creating a separate and distinct share or interest for each devisee. The devisees were therefore tenants in common, each having a separate and distinct interest in the undivided property, which would pass to their personal representatives. Biney v Biney [1974] 1 GLR 318, CA, Ray’s Will Trusts, Re Public Trustee v Barry [1936] Ch 520 referred to.

(3) Prior to 1985, an intestate Akan was not inherited by the children. The said daughter was entitled to inherit her brother and take letters of administration to administer his estate. The forced entry of the children in 1975 constituted a challenge to the said daughter’s claim to the house. That dispute was pending in court when the respondent commenced the action for ejectment in 1984 till 5 July 1985 when the Intestate Succession Law PNDCL 111 was passed. Section 21 of the Law applied and the children and their mother were entitled to inherit the property in terms of section 4(1). It followed that the interest of the said son did not pass upon the sale to the respondent and the said daughter could only have sold her half share. The appeal would be dismissed in respect of the half share devised to the daughter but the other half share remained the property of the appellant. Eshun v Johnfia [1984-86] 1 GLR 105 referred to.

(4) The plaintiff ought to have conducted a search before buying the house. She knew that the children were in occupation and therefore had constructive knowledge of their interest. A person proposing to buy a house with occupants ought to investigate their interest in the house. The plaintiff having failed to do so could not claim to be a bona fide purchaser for value without notice of the children’s interest.

Cases referred to:

British Bata Shoe Co Ltd v Roura & Forgas Ltd [1964] GLR 190, SC.

Biney v Biney [1974] 1 GLR 318, CA.

Conney v Bentum-Williams [1984-86] 2 GLR 301, CA.

Eshun v Johnfia [1984-86] 1 GLR 105, CA.

Nelson v Nelson (1951) 13 WACA 248.

Ray’s Will Trusts, Re Public Trustee v Barry [1936] Ch 520, [1936] 2 All ER 93, 105 LJCh 257, 80 Sol Jo 406, 155 LT 405, 52 TLR 446.

Robertson v Fraser (1871) 6 Ch App 696, 40 LJ Ch 776, 19 WR 989.

Tandoh Akosuah v Adjuah Damuabah (1955) DC (Land) ’52-’55, 287.

Youhana v Abboud [1974] 2 GLR 201, CA.

APPEAL to the Court of Appeal against the judgment of the High Court.

Ofosu-Asante for the appellants.

AMUAH JA. This is an appeal against the decision of Berko J sitting at the High Court, Kumasi delivered on 28 July 1987. The bare facts of the case are that a testatrix, Madam Afua Mansah devised her portion in a house numbered CT 77, Odumasi District of Kumasi in her will dated 8 September 1950, as follows:

“2. I give and bequeath unto my son Daniel Kwame Owusu and my daughter Elizabeth Victoria Mensah for their use, absolutely my share of one half undivided moiety of premises situate and known as Plot 77 in the Odumasi District of Kumasi.”

Clause 8 of the said will charged both son and daughter with the responsibility of meeting her expenses from rents collected from the portion of the house and securing for her a decent burial. In 1959, the said Daniel Owusu died leaving behind two issues, Diana Owusu and Daniel Owusu who are the defendants in this instant case. Thereafter the said Daniel Kwame Owusu was succeeded by her uterine sister Elizabeth Victoria Mensah who took letters of

administration in respect of her deceased brother’s estate on 4 April 1961. She then sold the brother’s portion to the plaintiff herein in 1984. The plaintiff as a landlady has now instituted this action for recovery of the portion occupied by the defendants.

Before instituting the action she was minded to perfect her title by stamping and registering the documents of title in respect of her brother’s portion of the house. The dispute went before the district court which entered judgment in favour of the plaintiff, the landlady and purchaser for value and ordered the defendants to vacate the premises forthwith. On appeal to the High Court, it confirmed the judgment of the district court. It found no merit in the appeal and dismissed it with costs.

The defendants being aggrieved have appealed to this court urging the court to hold “that the judgment was wrong in law and in particular the learned judge misconceived the legal effect of the will.”

The starting point is to consider whether the devise in the will created a tenancy in common or a joint tenancy. Upon the death of a joint tenant her interest accrues to the surviving joint tenant. We must first consider the tenor of the instrument whether it was intended to create joint tenancy. For a person who believes in the prime mover of the universe she would like the children to avoid petty quarrels and not cheat each other. It follows that after the expenses of the deceased have been met the excess amount should be shared if not equally between them.

Dennison J in the case of Tandoh Akosuah v Adjuah Damuabah DC (Land) ’52-’55, 287 at 288 cited the principle laid down by Lord Hatherley in Robertson v Fraser (1871) 6 Ch App 696 at page 699 as follows:

“…that anything which in the slightest degree indicates an intention to divide the property must be held to abrogate the idea of a joint tenancy and to create a tenancy in common.”

The testatrix gave them equal powers over the property and required from them fairness in their dealings. No doubt the idea of tenancy in common persisted after her death. The son and daughter occupied separate and distinct portions of a half portion of the building devised to them. After the death of the son, the sister succeeded and took letters of administration in respect of the late brother’s estate. The conduct of the children and Elizabeth showed that the property was to be divided and held by a tenancy in common. Furthermore the instrument does not expressly declare the estate granted to the children for their own use without any interference from anyone to be in joint tenancy nor does it state that the devise should be construed exclusively by English law.

Kwabena Bentsi-Enchill in his book entitled, Ghana Land Law stated with delight at page 314 that: ”A satisfactory portion of the case law was reached long ago to the effect that the use by natives of a conveyance drawn up in accordance with the forms of English law does not of itself cause the land in question to cease to be held under native tenure.” Also see Nelson v Nelson (1951) 13 WACA 248.

From the tenor of the instrument it is clear that learned counsel

who drafted it held no clear conception and contemplated a mixture of customary and English law. To avoid this situation the recent Conveyancing Decree 1973 (NRCD 175) has reversed the presumption in favour of joint tenancy.

On the issue of what tenancy has been created I hold that a tenancy in common is created. It is further held that even if a joint tenancy has been created by the testatrix the survivorship of the tenancy should not take place. Having arrived at these findings, I will contend that the father died intestate as an absolute owner of the portion he occupied and the children are entitled to stay in the portion he occupied for life provided they exhibited good conduct. The plaintiff before purchasing the portion occupied by the defendants should have conducted a search. She knew that the children were in occupation or possession and so she had constructive notice of their interest in the house. If the one who sold it to her concealed this fact it meant such person had breached the terms of the sale and the purchaser was entitled to repudiate or rescind the agreement. As the case stands it is the members of the uterine family who can question the genuineness of the sale and not the defendants who can console themselves by staying in their father’s portion for life subject to good conduct.

The portion occupied by the father of the defendants was sold in 1984, the purchaser, the plaintiff, thereafter perfected her title by stamping and registering it. She filed her application for a writ of summons on 12 April 1985. PNDCL 111 came into force on 5 July 1985 when the children refused to vacate the premises. The issue whether they were entitled to stay on the premises arose and the head of family was bound to consider it. Again where the plaintiff sued the defendants for recovery of possession the issue became pending in court at the commencement of the Law. See section 21 of PNDCL 111. Consequently the defendants became the absolute owners of the portion occupied by their father which they are now occupying.

I will allow the appeal in so far as the share of Daniel Owusu is concerned.

BROBBEY JA. This appeal concerns a house situated at Odumasi in Kumasi. It was originally owned by one Afua Mensah. In her time she sold half of it. It was eventually renumbered as 01 77A and 01 77B, the latter being the half she sold. Afua Mensah died in 1950 leaving a will and two children by name Elizabeth Victoria Mensah and Daniel Kwame Owusu. In that will, she devised to the two children “for their use absolutely my share of one-half undivided moiety of premises situate and known as Plot No 77 in the Odumasi District of Kumasi.” The bequeathed house will hereafter be referred to as the disputed house.

In his lifetime, Daniel Kwame Owusu lived in the disputed house with his wife and the appellants who are his children. He died in 1959. He will hereafter be referred to as the late Owusu. After his death, his sister, Elizabeth Victoria Mensah, took letters of administration to administer his estate. In 1969, she proceeded to register a lease on the dispute house in her name. The children of the late Owusu left the house after his death. They later returned to live there rent-free in 1975.

In 1984, Elizabeth sold the house to the respondent, Akosua Agyentoa. At the time of the sale, the children were living in the house. They refused to quit after the sale. The respondent sued them in the district court for ejectment, first to repair the house and secondly for her own occupation. Judgment was given against them there. They appealed to the High Court where they lost the appeal as well. They then appealed to this court.

Two grounds were canvassed in this appeal. They were:

“(1) the judgment was against the weight of evidence on record, and

(2) the judgment was wrong in law and in particular the learned judge misconstrued the legal effect of exhibit B, the will.”

The latter was a supplementary ground. One of the bases of the judgment in the High Court was that the issue whether the late Owusu and Elizabeth Victoria Mensah (who will hereafter be referred to as “PW1”) took the house as joint tenants or tenants in common was purely academic. In fact he did not resolve that issue in his determination of the case before him.

Mr Ofosu Asante who argued the appeal for the appellants contended that the failure to resolve that issue amounted to a dereliction of duty. He submitted that a resolution of that issue was necessary for a correct determination of the appeal in the High Court and also the appeal in this court. I entirely agree with counsel for the respondent that the resolution of that issue was essential to a determination of the dispute between the parties concerning the house. The resolution of that issue however depends on the law applicable to the case.

To determine the law applicable today when the appeal is being considered, the Courts Act 1993 (Act 459), is the statute to be considered. Section 54(1) of that Act provides that:

“Rule 1. An issue arising out of a transaction shall be determined according to the system of law intended by the parties to the transaction to govern the issue or the system of law which the parties may, from the nature or form of the transaction be taken to have intended to govern the issue.”

Besides this statutory provision, there are decided cases which have settled the law that the form and nature of the transaction determine the law to be applied to the transaction. In Biney v Biney [1974] 1 GLR 318 where parties adopted a method of transaction known and recognised in English law and used terminology peculiar to English law, the erstwhile Court of Appeal held that the words of limitation in the transaction should be given their technical English meaning and not their customary law connotation. That case in fact relied on the earlier case of British Bata Shoe Co Ltd v Roura & Forgas Ltd [1964] GLR 190 in which the Supreme Court held at page 192 that:

“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 having by the strict application of the principles of (a) English law,

where the document relied on as constituting a transaction known and recognised by English law or (b) customary law, where the document is relied on as evidencing a transaction known and recognised only by customary law.”

It is quite obvious that the instant case involves, first and foremost, the estate of the late Afua Mansah. She made a will in English form using English terminology. She must therefore be deemed to have intended that English canons of construction on wills will apply if nothing at all, from the nature and form of her will. In other words, what is primarily at stake in this case is not the estate of the late Owusu. It is rather the estate of the late Afua Mansah because it was that estate which created the respective interests of PW1 and the late Owusu in the disputed house. It is therefore the law applicable to that estate which should logically be considered in determining the essential nature and characteristics of the interests created by that estate. That is why I have no doubt in my mind that the law applicable should be English law. It should be pointed out that if the house were the self-acquired property of the late Owusu, the considerations would have been different. In that event, the rules relating to succession at customary law would have applied especially as the late Owusu had died intestate. But it was not his self-acquired property. He had it through the will. I am of the opinion that the essential nature and characteristics of property bequeathed under a will are not the same as the essential nature and character of a self-acquired property. Clause 2 of the will has already been quoted. Applying English canons of construction of documents to that will made in English form, clause 2 could create only one of two tenancies for the late Owusu and PW1. It could be either joint tenancy or tenancy in common. The law is well settled that if the clause created joint tenancy for the two, the survivor took the residue of the devise on the death of the other devisee by virtue of the principle in jus accrenscendi.

In the instant case, PW1 would have taken the entire house when Owusu died if the clause were to be construed to have created a joint tenancy. She would have become the sole owner and would have been perfectly entitled to sell it if she so desired. The sale to the respondent would in that event have been unimpeachable. On the other hand, if the clause were to have been construed to have created a tenancy in common, each devisee would have held a separate and distinct interest or share which would be literally attached to him or her and would devolve to his or her personal representatives. In that event, the share of the late Owusu in the house would not automatically have gone to PW1 by virtue of her being the surviving devisee. His share or interest would have devolved to the one entitled to inherit his assets in terms of his personal law. In that event, the principle of nemo dat quod non habet would have prevented PW1 from making a valid sale of the house. This is the state of the law as enunciated in the well known text books on the subject such as Cheshire’s Modern Real Property, 10th ed pp 298-309, and The law of Real Property by R Megarry and H W R Wade, 3rd edition at pp 403-413. See also the application of the principles in Biney v Biney [1974] 1 GLR 318, CA.

To determine whether there was joint tenancy or tenancy in common the most important features are the words in the document. If there are words of severance or words indicating that each person had a separate and distinct interest or share in the disputed house, then a tenancy in common would have been created. In the absence of words of severance, joint tenancy would have been created. It is said that equity favours joint tenancy, but this case falls outside the ambit of the more common situations where the authorities have settled that joint tenancy should be preferred, those situations being joint purchasers in partnerships, joint contributors in mortgages and joint purchasers of land.

In the instant case, clause 2 bequeathed the disputed house to Daniel Kwame Owusu and Elizabeth Victoria Mensah “for their use absolutely”. Stroud’s Judicial Dictionary, 1971 ed at p 13 explained the word “absolutely” to mean unconditionally or without condition or limitation. When used in terms of years it has been explained in The Dictionary of Law by Earl Jowitt, 1959 ed at page 15 to mean inter alia “a term of years taking effect in possession or in reversion, whether or not at a rent…it does not include any term of years determinable with life or lives or with the cessatrict of a determinable life interest…”

In Ray’s Will Trusts, Re Public Trustee v Barry [1936] Ch 520 the word “absolute” was used in similar circumstances in a will which read inter alia as follows:

“I give all my property to the person who, at the time of my death, shall be or shall act as the abbess of the said convent absolutely.”

It was held that:

“… absolutely.” I think that the word not only means that the recipient will retain the full ownership, for the purposes indicated, of that which is given, but also that she is to be free from any fetter or trust which would bind her to keep the fund intact for the purposes of the community.”

What I deduce from all these authorities is that the testatrix used the word “absolutely” to convey a grant which was unconditional, unrestricted, or unfettered. In terms of years, the grant was limitless, and does not end with the death of one devisee. Such a grant could not create joint tenancy because joint tenancy is restricted to the life of the first person to die leaving the entire devise to the surviving devisee as already explained. Under tenancy in common, the scope of the grant that went into the hands of each devisee was unconditional, unrestricted or unfettered to the extent of their separate and distinct interest or shares. In my opinion, the word “absolute” is a word of severance creating a separate and distinct share or interest for each devisee even though by law each share was not physically divided. Clause 2 therefore created tenancy in common.

What is the nature of the share or interest created by tenancy in common? Besides the fact that each devisee had a separate and distinct interest or share in the physically undivided property, the share of one passed to his personal representatives if he or she died intestate or to his beneficiaries if he died testate: See Megarry & Wade: The Law of Real Property, 3rd Ed p 408 and Cheshire’s Modern Real Property 10th ed at p 307.

The will in question became operative from the date of death of the testatrix but her intentions had no legal effect until it was admitted to probate. See Conney v Bentum-Williams [1984-86] GLR 301, CA. The testatrix died in 1950 and probate was granted in the same year. The intentions of the testatrix therefore became effective in 1950. In any event the legal position in such cases is as was held by this court in Youhana v Abboud [1974] 2 GLR 211, CA that the law applicable to the succession of a deceased is the law applicable on the date of his death.

Prior to 1985, the law was that on the death intestate of an Akan, ie an Ashanti like the late Owusu, his successor being the next of kin was the person entitled to inherit his properties. More positively the children of an Akan like the appellants herein could not inherit him. Thus in Eshun v Johnfia [1984-86] 1 GLR 105 where the children of an Akan from Sekondi sued for a share of their father’s estate, this court held that they were not entitled to a share of the estate but could only be maintained from it while young or be given occupation in their father’s house subject to good behaviour.

In his book, The Law of Succession in Ghana 1st ed at p 19, Ollenu also supported the view that Akan children do not possess the right to inherit their father’s property.

On the facts of the instant case, PW1, being the sole surviving sister and next of kin of the late Owusu was the person entitled to inherit him, not the appellants who are his children. That was the position before July 1985. Indeed PW1 took positive steps to inherit her late brother when she took letters of administration in 1961, and registered the property in her name by a conveyance dated 1969. There was no vesting assent, but the intentions of PW1 by the actions she took in 1961 were explicit.

The matter did not however end there. In 1975 the children of the late Owusu moved into the house. They paid no rent. One of them was reported to have forcibly entered one room and took it into his possession.

My view is that even if by 1969 PW1 had taken over the house, such take-over was challenged by the entry of the children into the house in 1975. Even if PW1 invited Diana to live in the house, she did not pay rent, and when asked to quit for insulting behaviour she refused to budge. It should be pointed out that the move to challenge her title was not statute-barred, the relevant period being between 1969 and 1975. See the Limitations Decree 1972 (NRCD 54) s 10.

The deed of sale shows that the property was sold to the respondent in 1984. By that time it is obvious that the children’s challenge to PW1’s title to the house was already in issue. PW1 knew that the children had put on the line her claim to the disputed house.

Then followed the issue of the instant writ in 1984. Although it was originally a simple writ for ejectment from the house, when the case came to be contested as evidenced by paragraphs 3 and 4 of affidavit filed by Daniel Owusu, it became apparent that what was at stake was whether the property had become the sole property of PW1 or whether the share of the late Owusu in the property should devolve to his children. In other words by 5 July 1985 when the Intestate Succession Law 1985 (PNDCL 111) was passed an issue was pending in court concerning the distribution of the estate of the late Owusu who died intestate. By reason of section 21 of PNDCL 111, that statute was to be applied to the settlement of any such pending suit.

Applying PNDCL 111, section 21, to the instant case, the children and their mother are entitled to inherit the estate of the late Owusu by virtue of the terms of section 4(1) thereof.

It follows from the foregoing that the interest of the late Owusu could not have been properly sold by PW1. PW1 could only have sold her own half share of the house OT77A.

I would dismiss the appeal in respect of the half share which was devised to PW1. In other words, the appellant is entitled to half of the disputed house by virtue of the sale to her by PW1. The other half of the house remained the property of the children of the late Owusu who were the appellants. I would allow the appeal in respect of that latter half.

When all has been said and done, the respondent will have only herself to blame for the position in which she finds herself. The evidence showed that at the time of the sale in 1984, the children were living in the house. In fact they had been living there since 1975. The respondent surely must have heard of them in the house. If she ignored their presence, or took the word of PW1 for granted without exercising caution to know the status of the children in the house she took a precarious risk. The law is that a person who buys a house with sitting occupants therein has a duty to enquire about the status and interests of those occupants. Their occupation is sufficient notice to him. If he failed to enquire of their status or interest, he cannot later claim to be a purchaser for value without notice. In the instant case there is no evidence on record to show that the respondent did not know of the presence of the appellants in the house when she proceeded to buy it. Since the law protects the interest and status of the children in the house, her only remedy is to fall back on PW1 to find out what can be done about the extent of the house now lost to her.

In the result, I would say that the respondent could not sell the entire house. The authorities allow a separate indenture to be prepared to cover the half sold to respondent by PW1. See Cheshire’s Modern Real Property  10 ed at p 307.

I would allow the appeal in part and dismiss it in part.

SAPONG JA. Elisabeth Victoria Mensah and Daniel Owusu are the children of late Afua Mansah. This Afua Mansah owned a house on plot No OT 77 in Odumasi in Kumasi. She later sold half to a man and so OT 77 was renumbered OT 77A and OT 77B. OT 77A remained in her.

By her will she devised the house OT 77A to her children Victoria Mansah and Daniel Kwame Owusu absolutely. Daniel Kwame Owusu died in 1959 and was survived by Diana Owusu and Daniel Owusu and his sister Elizabeth Victoria Mensah inherited Daniel Kwame Owusu. She took Letters of Administration in November 1960.

And in consequence thereof she sold the house 0T 77A to Akosua Agyentoa, the respondent herein. This was evidenced by an indenture dated 16 May 1984. The respondent then took steps to eject