HIGH COURT, ACCRA
DATE: 24TH APRIL, 1962
BEFORE: OLLENNU, J.
CASES REFERRED TO
(1) Prudential Assurance Co. v. Edmonds (1877) 2 App.Cas. 487
(2) Chard v. Chard (otherwise Northcott) [1956] P. 259; [1955] 3 All E.R. 721
NATURE OF PROCEEDINGS
ACTION by beneficiary for money alleged due on a life policy.
COUNSEL
E. N. Moore for the plaintiff.
E. O. Asafu-Adjaye for the defendants.
JUDGMENT OF OLLENNU J.
A man who gave his name as John Kofi took from the defendant-company an insurance policy on his life for £G15,000. The policy was issued on the 27th November, 1959, and it is exhibit D. The said man had, on the 24th August, 1959, made a will. The plaintiff is the sole beneficiary and the sole executrix under the said will. It being represented to the High Court that the said testator had died on the 10th April, 1960, the court on the 7th June, 1960, granted probate of the said will to the plaintiff.
That probate is exhibit A. The plaintiff made claim upon the defendant-company for payment under the said policy and upon their failure to meet the claim she instituted this action claiming £G15,000 as benefit accruing to her in terms of the said policy.
The defence in short is that John Kofi is not dead, and that if a John Kofi is dead, he was not the assured. In short the defence put the
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plaintiff to prove strictly that the assured John Kofi is dead. The question the court is therefore called upon to answer is: Is John Kofi dead?
Counsel for both sides referred the court to Halsbury’s Laws of England (3rd ed.) Vol.15, pages 344—346, paras. 623—625, dealing with presumptions of life and death. The principle is briefly stated in paragraph 623 as follows: “There is no presumption of law by which the fact that a particular person was alive on a given date can be established, it being in every case a question of fact for the jury or judge sitting alone … Where no statute lays down an applicable rule, the issue whether a person is dead generally speaking is one of fact and not subject to presumption of law. To this there is one exception, namely, that, if there is no acceptable affirmative evidence that a person was alive at some time during a continuous period of seven years or more, then, if it can be proved that there are persons who would be likely to have heard of him over the period if he were alive, that those persons have not heard of him, and (it seems) that all due enquiries have been made appropriate to the circumstances, there arises a legal presumption that he is dead.”
In his speech delivered in Prudential Assurance Co. v. Edmonds1(1) Lord Blackburn, discussing the presumption of death, said: “in order to raise a presumption that a man is dead from his not having been heard of for seven years, you must inquire among those who, if he was alive, would be likely to hear of him, and see whether or not there has been such an absence of hearing of him as would raise the presumption that he was dead.”
See also Chard v. Chard (otherwise Northcott).2(2) That presumption of death upon absence for seven or more years has no relevance to this case. We have had to refer to it only as providing a guide in determining the circumstances under which absence generally could be a proper basis for presumption of death, and the nature and extent of enquiries which when made for a person missing would be sufficient to raise a presumption that he is dead.
If, for example, a man fell off the deck of a moving ship at mid-sea many miles away from shore and this body is not found, it would be proper to presume that he is dead, because the probability or even the possibility of his having swum ashore is very remote. Each case depends upon its own facts. In this case the onus is upon the plaintiff to show upon the balance of probabilities that John Kofi is dead. We shall now examine the evidence relating to the said John Kofi and his disappearance and see what the result will be.
A man whose personal effects, including a pocket diary exhibit B, have been identified as those of a John Kofi, appeared at Winneba Road beach, James Town, Accra, on the morning of Sunday, the 10th April, 1960, chatted with P.W.1, William Kwadjo Hodo, left his personal effects in a paper bag for P.W.1 to look after for him, and went to have his bath in the sea. At that time P.W.1 was engaged assisting some fishermen in dragging seine nets. P.W.1 said he saw the man come out of the sea, scrub himself with sand, and go back into the sea. Among other things P.W.1 said that the day in question was the first time in his life that he met the said man. But from the evidence of P.W.4, Armah Foli, which I believe, it is quite clear that P.W.1 knew the said man quite well before that day, the 10th April, 1960.
In the statement exhibit 1 which P.W.1 made to the police on the 10th April, 1960, he said that in the course of drawing the nets he and the
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others had to move about here and there along the beach. P.W.4 also said the same, but he also said that he as the owner of the nets, sat in one place watching the men work. In those circumstances P.W.1 could not have concentrated his attention on the movements of the man. The man could have walked away without him, P.W. 1, seeing him.
On the 11th April, 1960, the police at James Town telephoned to the police at Somanya to contact the plaintiff, whose name they had seen in the diary exhibit B and to request her to report to James Town police in connection with the mysterious disappearance of John Kofi. In compliance with that message the police at Somanya promptly contacted the plaintiff, but for three days she did not report at James Town police station. Upon the plaintiff’s failure to report, P.W.6, then a police inspector, went all the way to Somanya to see the plaintiff. He said: “I went up to Somanya myself and saw the plaintiff and asked her whether police, Somanya had not requested her to come to the police station, James Town, Accra, and why she had not reported. She told me that she had the message but at that time she had to attend some funeral at Winneba and that was why she had not come to see me; she promised to come the next day.” If the funeral of someone at Winneba was more important to the plaintiff than the disappearance of John Kofi, it is most doubtful whether the John Kofi was a person of some importance to the plaintiff at that date.
In the statement she made to the police on the 13th April, 1960, the plaintiff said she did not actually know where John Kofi came from in Togoland, that John Kofi was a druggist, and that she had lived with him for one and a half years but had not been married to him in accordance with custom. But in her evidence she would have the court believe that she had been married to John Kofi for upwards of seven years, and that John Kofi was trading in dried salted fish. The plaintiff could not be talking of one and the same person, otherwise, why this great divergence between her statement and her evidence?
John Kofi was said to be an Ewe from Avatime. There is an Ewe headman at Somanya. By custom the plaintiff, her family and her chief could not perform funeral rites for John Kofi if he died, without the Ewe headman of Somanya taking part, and it is only through the headman of the Ewe community of Somanya that the plaintiff could properly go to the chief of Avatime to make enquiries about John Kofi. In this case the customary procedure was not followed. P.W.2, Mantse Tei Agbei, the plaintiff’s chief, gave evidence on that point as follows: “The custom is that in such a case I should first send for the head and elders of the tribe of the deceased stranger in my town and all the customary rites should be performed in their presence. No, in this case I did not send for the headman of the Ewe community in Somanya and his elders because the plaintiff and her family told me that the deceased never lived at Somanya and so nobody knew him there. The plaintiff and her relatives told me that the deceased lived at Accra.”
The fact that the plaintiff knew quite well that the man in question lived in Accra is further proved by her answers to the defendants’ interrogatories. To the question: “At what address did John Kofi reside when he was in Accra?” the plaintiff replied: “House No. C.281/1, Kwame Nkrumah Avenue up to 1959, and thereafter at C.868/4 Kokomlemle”. In spite of that knowledge the plaintiff never took her chief, P.W.2, to Accra to make enquiries about John Kofi in the houses where he used to be. She rather took the chief all the way to Avatime even though she did
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not know whether or not John Kofi had ever lived there. That in my opinion shows clearly that if John Kofi had really disappeared no search has been made for him in the proper places or from the proper persons. Again within ten days of the fateful day we find the plaintiff going to her solicitor, taking with her the will and the insurance policy and instructing the solicitor to make a claim on the defendant-company.
But according to the evidence given by the plaintiff and the chief, P.W.2, the will, the policy and the other documents were not discovered until the 23rd May, 1960. These are conflicting facts. The only circumstances under which these two facts can together be reconciled so that they can be true is that the plaintiff put the documents back into the box after she had shown them to the solicitor in order that the persons invited by her to witness the opening of the box might find those documents locked up in the box. To put it in another way, it means that the discovery of these documents and papers in the box was staged. While on this point, the income tax return form exhibit E should be mentioned. It is dated the 22nd April, 1960, and the envelope in which it was, shows that it was posted on the 24th April, 1960, as evidenced by the date stamp on the envelope. It was addressed to John Kofi, Somanya.
That document must have been received by the said John Kofi who after reading it put it into the box purposely that the witnesses invited might see it in the box when the box was opened. The impression the plaintiff created on the court is that it was only after the memorial service that the box was opened by her for the first time. If then John Kofi received exhibit E which was posted on the 24th April, 1960, then that John Kofi did not drown in the sea on Sunday, the 10th April, 1960.
In exhibit F, the publication in the issue of the Daily Graphic dated the 20th May, 1960, announcing the memorial service, the persons whose names were given as “Chief Mourners” are Kofi Saki, Lily Williams (wife) and Sangmor Nyakor. There is a very strong vague idea as to who this Kofi Saki is.
As the principal chief mourner he must have some close relationship with John Kofi. He may be a blood relation, a close friend or a business associate. He has not come forward to tell the court anything about John Kofi.
Then there is a gentleman, S. O. Wilson, whose name has figured prominently in these proceedings.
According to exhibit 4 he was the person who introduced John Kofi to the Bank of West Africa for the bank to open a current account for him. The first cheque drawn on the account when it was opened, was to pay a solicitor for services rendered to the said S. O. Wilson. The said S. O. Wilson and John Kofi had the same postal address: P.O. Box 3026, Accra. He, the said S. O. Wilson, was the person who witnessed the signature of John Kofi on exhibit 7, the insurance proposal form, and the said S. O. Wilson and J. S. Williams, brother of the plaintiff, were the attesting witnesses to the execution of the will by the said John Kofi. The relationship between such a person and John Kofi must be very close. He must have been at least a business associate of John Kofi. According to the diary exhibit B, John Kofi arrived in Accra on Wednesday the 6th April, 1960. S. O. Wilson or some other person who knew him very well must have seen him between the Wednesday, the 6th April, and the fateful Sunday, the 10th April, 1960. Again, John Kofi owned a private car, an Opel car, which is now being used by J. S. Williams, a brother of the plaintiff. John Kofi must have lodged in his usual place of abode in Accra, House No. C.868/4
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Kokomlemle, during those days and he must have left the car in that house or somewhere else or with someone during all those four days. Why were the police not told about John Kofi’s stay in Accra and about his associate? Why is it that in this case the story of John Kofi was made to start with Hodo, P.W.1 at the beach in Accra on the morning of Sunday, the 10th April, 1960? Why have his stay in Accra and his movements in Accra been left out of the picture? If John Kofi disappeared from the house where he lived in Accra would not the landlord or the inmates with whom he lived in the house miss him, and would they not report to the police? Those facts about John Kofi’s stay in Accra would be well known to the plaintiff. Why did she elect to keep them away from the court? The facts as presented make John Kofi mysterious. The plaintiff has created the impression that she did not want the court to go outside the confines of the narrow circles she has drawn round the said John Kofi, for if the court did, it would surely find that the mysterious John Kofi is not dead. On the contrary that he is a person very much alive, and very actively concerned with concealing his identity.
The plaintiff has failed to satisfy the court that the John Kofi who took the insurance policy exhibit D is dead and her claim must fail. The plaintiff’s claim is dismissed and judgment entered thereon for the defendants with costs fixed at 1,000 guineas inclusive.
DECISION
Action dismissed.
