BADU AND OTHERS vs. SAH AND ANOTHER [1999-2000] 2 GLR 139

CASES REFERRED TO

(1) Ampoma (Decd); Oppong v Oppong [1989-90] 1 GLR 83.

(2) Armah (Decd), In re; Armah v Armah [1991] 2 GLR 53, CA; affirmed sub nom Armah (Decd); In re; Armah v Armah [1991] 2 GLR 53, CA.

(3) Kyei v Afriyie [1992] 1 GLR 257.

(4) Quaye v Mariamu [1961] GLR 93, SC.

ACTION by the spouse and children of deceased intestate against customary successor and head of family for, inter alia, an order for the distribution of the estate of the deceased in accordance with the provisions of the Intestate Succession Law, 1985 (PNDCL 111). The facts are sufficiently set out in the judgment of the court delivered by Owusu-Ansah JA.

Adumua Bossman (with him Heward Mills) for the respondent.

No representation for the appellant.

Owusu-Ansah JA. Delivered the first judgment of the court at the invitation of Essilfie-Bondzie JA. This is an appeal against the judgment of Her Lordship Justice Sophia Adinyira sitting at the High Court, Koforidua on 25 April 1999.

In brief, the facts of the case are that the plaintiff-appellants (hereinafter referred to as the plaintiffs) are the surviving spouse and sons respectively of the late Nana Okru Barning, known in private life as Nana Kwame Owusu-Ansah, chief of Old Tafo in

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Akim Abuakwa. He died intestate on 14 May 1984. The first defendant-respondent and the second defendant-respondent (hereinafter referred to as the first and second defendants respectively) are customary successor and head of family respectively of the deceased.

The plaintiffs’ writ stated as follows:

“The plaintiffs’ claim as the spouse and children of the late Nana Okru Barning alias Kwesi Owusu-Ansah against the defendants as the customary successor and head of family respectively, jointly and severally is for:

(1) A declaration that the plaintiffs are entitled to a portion of the estate of the late Okru Barning alias Kwasi Ansah of Old Tafo.

(2) An order for the distribution of the estate of the deceased in accordance with the provisions of the Intestate Succesion Law, 1985 (PNDCL 111).

(3) An order for accounts of all the cocoa and all other produce on the deceased’s land situate at Odwaa near New Tafo.”

The plaintiffs based their claim on the assertion that the deceased who died intestate on the 14 May 1984 left behind four houses at Old Tafo and a large cocoa farm at Odwaa. They claimed the first defendant had taken possession of these properties and distributed them among members of the family excluding the plaintiffs. They claimed that as spouse and children of the deceased they were entitled to a substantial portion of the estate which they are demanding in accordance with the provisions of the Intestate Succession Law, 1985 (PNDCL 111).

The defendants denied the plaintiffs’ claim on the basis that Nana Okru Barning died on 14 May 1984, before PNDCL 111 came into force, and therefore they, the family, have an interest in the estate; adding that the wife and children have no statutory interest in the estate. At the summons for directions a number of issues were set down for trial.

After the first defendant had been appointed customary successor to the late Okru Barning, he applied to the High Court, Koforidua for letters of administration. Three persons, namely Nana Yeboah Akosah, Opanin Kwadwo Appiakorang and Kwame Boateng filed caveats against the application. The dispute as to

[p.143] of [1999-2000] 2 GLR 139 who was entitled to the grant of letters of administration could not be resolved. The court ordered that a writ of summons should be issued for the determination of that matter. The defendants filed a writ of summons on 1 February 1985. The case, suit No C 39/85, is still pending.

The plaintiff filed a caveat in 1986 when they became aware of the pendency of the application for letters of administration. On the 24 July 1991 the plaintiffs filed this writ. The case was heard and judgment was given on 25 April 1996.

It is against this judgment that this appeal has been brought. The ground of Appeal reads: “The learned judge erred in her judgment when she held that the Intestate Succession Law (PNDCL 111) was inapplicable to this case.”

Here I can do no better than to quote verbatim the relevant portion of the judgment which is now under attack, as it neatly summaries the matter. The learned judge observed:

“The plaintiffs herein, the wife and children of the deceased, were not parties to this suit No C 39/85 which was admittedly pending before PNDCL 111 came into force. The only part the plaintiffs played was to file a caveat on 11 April 1986, almost two years after the notification of the grant of letters of administration . . . I am of the opinion that this caveat filed late and out of time was of no legal consequence as it ought to have been filed within 21 days of the date of notification of the letters of administration on 19 November 1984.”

She continued:

“In any case the issue involved in suit No C 39/85 was as to successorship and not to the administration or distribution of the estate of the intestate. Even at the time the plaintiffs filed their caveat, Nana Yeboah Akosah and Opanin Kwadwo Appeakorang the family members had filed a notice of discontinuance of their caveat on 13 August 1985.”

The basic issue in this appeal is whether section 21(1) of the transitional provisions could apply to the facts of this case. For ease of reference, I quote section 21 (1) of PNDC L 111:

“21. (1) Notwithstanding the provisions of section 1 of this Law, or any other enactment the provisions of this Law shall

[p.144] of [1999-2000] 2 GLR 139 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 or distribution of the estate of an intestate who died before such commencement, and for the 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.”

It is true that the law now seeks to remove the anomalies in the customary law to enable the surviving spouse and children to be compensated for their services as it were. Yet the law has to be applied the way it is, not what it ought to be.

In the instant case, as has been pointed out by counsel for the defendants, paragraphs (9) and (10) of the statement of claim pleaded the pendency of suit No C 39/85 filed in the High Court, Koforidua on 1 February 1985 by order of the court. This was because the first defendant, as applicant for the grant of letters of administration, could not agree with the three caveators, namely Nana Yeboah Akosah, Opanin Kwadwo Appiakorang and Nana Kwame Boatemg, who filed the caveat on 28 November 1984. But it is significant to note (and here I share the trial judge’s view) that the issue in that case was as to who was to take the letters of administration so as to be qualified to administer and distribute the estate. It was indeed not a dispute as to the way and manner of administration or distribution of the estate. At all events the case was pending before PNDCL 111. On 14 June 1985, it was settled out of court and the caveats were withdrawn on 13 August 1985 by the three caveators, although the suit remained on the list until the caveat was ultimately formally struck out in 1992.

It is not disputed that Nana Okru Barning died on 14 May 1984 and that PNDCL 111 came into force on 5 July 1985. It is clear therefore that at the time of the commencement of PNDCL 111 Nana Okru Barring had died and so section 1 of the PNDCL 111 was inapplicable to his estate. The only question for the

[p.145] of [1999-2000] 2 GLR 139 determination of this court, as already indicated, is whether section 21(1) should or could be invoked on the facts of this case.

The instant case was instituted on 24 July 1991, six years after the commencement of PNDCL 111. I share the view of the trial judge that having regard to the facts; the evidence and the surrounding circumstances of this case section 21(1) is not applicable. I am fortified in. this view by the case of Ampoma (Decd); Opong v Oppong [1989-90] 1 GLR 83 before Ampiah JA (as he then was). In that case the applicants were the children of the deceased, OA, and the respondents were the administrators of the estate of OA. OA died intestate on 12 May 1984. Letters of administration in respect of the estate were taken by the respondents on 3 March 1986. An initial writ of summons taken by the applicants against the administrators was abandoned. Subsequently, the applicants took out summons against the administrators under Order 60, r 40 of the High Court (Civil Procedure Rules), 1954 (LN 140A) on the ground that the law applicable to the estate was the law existing before the coming into force of PNDCL 111; ie the customary law of succession under matrilineal system of inheritance. The respondents in opposing the action argued that the law applicable was PNDCL 111 and that in any case distribution had already been completed under that law.

The court held, in granting the application, that PNDCL 111 came into force on 5 July 1985; that the deceased died on 12 May 1984 and that at the time of the commencement of PNDCL 111, OA was dead and section 1 of PNDCL 111 was inapplicable to the estate. The only action or claim pending was before the High Court. Although indisputably that claim was in respect of the administration and distribution of the estate of the deceased, it was later abandoned. And since the instant summons was taken on 9 July 1986 it was obvious that on 5 July 1985, when PNDCL III commenced, there was no settlement claim or adjudication pending either in court or before a chief or head of family under customary law. Therefore the law applicable to the estate was customary law obtaining before the coming into force of PNDC law 111. Accordingly all the previous distribution made under PNDC law 111 would be set aside.

This case is clearly on all fours with the case before the court; I have no hesitation in following this precedent and to accord it the due recognition it deserves. Admittedly, there is a Court of Appeal

[p.146] of [1999-2000] 2 GLR 139 decision the other way. That is the ease of In re Armah (Decd); Armah v Armah [1991] 2 GLR 53, CA wherein the court held that the provisions of PNDCL 111 were applicable to the distribution of the estate of the deceased because, even though he died before the commencement of PNDCL 111, the fact that the estate had not been distributed before the law commenced constituted a matter pending within the terms of section 21(1). Furthermore, once the property had not been distributed among those entitled thereto, then at least in the eyes of the customary law, matters pertaining to the distribution of those properties constituted a matter pending before the deceased’s head of family.

The Court of Appeal is bound by its own decisions. However there is an obvious and crucial distinction between the Amarh case and the case before this court where evidently distributions had taken place according to the evidence. Be that as it may, the Court of Appeal must have had the patrilineal system of inheritance in mind where it might take a considerable length of time to find all the children of the deceased for the purpose of sharing or distributing the property of the deceased. By contrast, under the matrilineal system, the property vests in the customary successor immediately upon his appointment or election as such. Normally there is no distribution as such under the matrilineal system. Since customary law is no longer a matter of fact but of law, the court can take judicial notice of the differences between the two systems which, prior to PNDCL 111 in 1985, operated side by side (running parallel) but whose waters never mixed.

The judgment of Lutterodt J (as she then was) in Re Armah (Decd); Armah v Armah [1991] 1 GLR 140 at 141 makes interesting reading. The learned judge said, inter alia, as stated in the headnote, holding (2)) that:

“(2) A strict, literal and grammatical interpretation of the words in section 21 (2) of the Intestate Succession Law, 1985 (PNDC L 111) making the provisions of that Law applicable in the settlement of any ‘claim or adjudication pending before the court . . . at the commencement of this law’ to mean only actions actually, physically pending in the courts at the commencement of PNDCL 111 would lead to an unjust and absurd situation.”

This would mean in effect that anybody could institute proceeding now in respect of the estate of a person who died

[p.147] of [1999-2000] 2 GLR 139 intestate at any time before 1985 regardless of whether the estate has been distributed or not, and regardless also of whether there was any claim or adjudication pending before the coming into force of PNDCL 111. In my judgment that would surely be a legitimate extension of the long arm of the law almost to a breaking point.

To my mind, the meaning of that section is clear and admits of no ambiguity, so as to make room for the introduction of words that the legislature, in the fullness of its wisdom, had not used for good measure. It is not the function of the court to amend or make laws but to interpret and apply the law as it is, not what it should be, which is idealistic. I find myself respectfully unable to agree with that judgment. The liberal or purposive approach or interpretation in this context would simply open the floodgates as it offers an open-ended opportunity to litigants to resurrect cases that are decades old and have been long dead and buried, and which ultimately might not be in the best interests of society, especially where in good faith the estate has been distributed.

I prefer the interpretation of Lartey J in Kyei v Afriyie [1992] 1 GLR 257 at 258 (holding (3)) where the learned judge held that section 21(1) PNDCL 111 would not be applicable “because at the time of the commencement of the Law in 1985, the claim which was pending before the court was for maintenance and had nothing to do with any dispute involving administration or distribution of the estate of A.” That interpretation can only be right.

Finally there is the question of the findings of the court and the distribution of the estate. It was held by the Supreme Court in Quaye v Mariamu [1961] (Pt)GLR 93 that it is the duty of the trial judge to resolve the primary facts. If he fails to do so, this court in some instances is not debarred from reaching its own conclusions since an appeal operates as a rehearing. In the instant case the court made some relevant findings from which this court can reach its own conclusions. The plaintiffs pleaded in paragraph (13) of their statement of claim that “the first defendants has been using the items of clothing and other chattels, and he and the defendant have distributed some of these items among the members of the family for their personal use.” The plaintiffs also pleaded that “the first defendant has taken possession of the land at Odwaa and as appropriated the proceeds from cocoa and other farms” “as well as) collecting rents from tenants” etc.

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The second defendant said the first defendant was appointed customary successor of the deceased eight days after the death of Nana Okru Barning to enable the family raise funds for the funeral so that as the customary successor, the properties of the deceased immediately vested in him upon his appointment. Having evaluated the evidence in this case in the light of the relevant provisions of law, the learned judge took the view that:

“It is highly frivolous and vexatious for the plaintiff, after forcibly taking over the Odwaa farm in 1986 (after PNDCL 111 had come into force), to turn round to issue this suit in 1991, and then ask for an account and a share of a farm in their own possession.”

It can be inferred that the administration or distribution of the estate of Nana Okru Barning had already become a fait accompli before, the institution of these proceedings.

In my judgment, this appeal must be dismissed, and it is accordingly dismissed. The judgment of the court below is hereby affirmed.

Essilfie-Bondzie JA. I agree.

Ansah JA. I also agree.

Appeal dismissed.

SA