OWUSU AND ANOTHER vs. AGYENTOA [1995-96] 1 GLR 45

CASES REFERRED TO

(1) Akosuah v Damuabah (1955) DC (Land) ‘52-’55, 287.

(2) Robertson v Fraser (1871) 6 ChApp 696; 40 LJCh 776; 19 WR 989.

(3) Nelson v Nelson 13 WACA 248.

(4) Biney v Biney [1974] 1 GLR 318, CA.

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

(6) Ray’s Will Trusts, Re, Re Rays Estate, Public Trustee v Barry [1936] Ch 520; [1936] 2 All ER 93;

105 LJCh 257.

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

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

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

NATURE OF PROCEEDINGS

APPEAL to the Court of Appeal by the appellants, the children of a [p.48] of [1995-96] 1 GLR 45 deceased intestate Akan male, from the decision of the High Court, Kumasi affirming the judgment of the district court in an action for an order of ejectment brought against them by the respondent who had purchased the house from the customary successor of their late father. The facts are sufficiently set out in the judgments of Amuah, Brobbey and Sapong JJA.

COUNSEL

A Awuku for Ofosu Asante for the appellants.

Counsel for the respondent absent.

JUDGMENT OF 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 house No OT 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 (1/2) undivided moiety of premises situate and known as Plot 77 in the Odumasi District of Kumasi.”

Clause (8) of the said will charged both the son and the daughter with the responsibility of meeting her expenses from rents collected from her portion of the house and securing for her a decent burial.

In 1959 the said Daniel Kwame 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 his 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 the recovery of the portion occupied by the defendants in their father’s lifetime and now continue to occupy. 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

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Court, it confirmed the judgment of the district court. It found no merits in the appeal and dismissed it with costs.

The defendants being aggrieved have appealed to this court urging the court to hold: “(1) 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 a 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 Akosuah v Damuabah (1955) DC (Land) ‘52- ‘55, 287 at 288 cited the principle laid down by Lord Hatherley LC in Robertson v Fraser (1871) 6 ChApp 696 at 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 occupy separate and distinct portions of half portion of the building devised to both of 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 the instrument state that the devise should be construed exclusively by English law. Kwamena Bentsi-Enchill in his book entitled Ghana Land Law at p 244 stated with delight that:

“A satisfactory position in 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

[p.50] of [1995-96] 1 GLR 45 tenure.’ “

Also see Nelson v Nelson (1951) 13 WACA 248.

From the tenor of the instrument, it is clear that the 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 exhibit good conduct.

The plaintiff before purchasing the portion occupied by the defendants should have made a search. She knew that the children were in occupation or possession and so she had constructive notice of their presence in the house. If the one who sold it to her concealed this fact it meant the person had breached the terms of the sale and the purchaser is 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 writ of summons on 12 April 1985. The Intestate Succession Law, 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.

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JUDGMENT OF BROBBEY JA.

This appeal concerns a house situated at Odumasi in Kumasi. It was originally owned by one Afua Mansah. In her lifetime she sold half of it. It was eventually renumbered as 01 177 A and 01 77 B, the latter being the half she sold.

Afua Mansah 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 (½) 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 disputed 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. 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 that;

“(1) the judgment was against the weight of evidence on the 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 basis of the judgment in the High Court was that the issue whether the late Owusu and Elizabeth Victoria Mensah (hereinafter referred to as the first plaintiff witness took the house as joint tenants or tenancy in common was “purely academic.” In fact, he did not resolve that issue in his determination of the case before him.

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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 appellants that a 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, r 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, CA where the 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, SC in which the Supreme Court held as stated in the headnote, that:

“(2) In the construction of documents the attitude of the courts in 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 is 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 and recognized only by customary law.”

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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 the first plaintiff witness 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, rules relating to succession at customary law would have applied, especially as the late Owusu 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 the first plaintiff witness. It could be either joint tenancy or tenancy in common.

The law is well settled that if the clause created a 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, the first plaintiff witness 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 descend to his or her personal representatives. In that

[p.54] of [1995-96] 1 GLR 45 event, the share of the late Owusu in the house would not automatically have gone to the first plaintiff witness 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 the first plaintiff witness from making a valid sale of the house.

This is the state of the law as enunciated in the well-known textbooks on the subject such as Cheshire’s Modern Real Property (10th ed), pp 298-309 and R Megarry and H W R Wade, The Law of Real Property (3rd ed) at pp 403-413. See also the application of the principles in Biney v Biney (supra).

To determine whether there was a 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 term of years it has been explained by Earl Jowitt in Dictionary of Law (1959 ed) at p 15 to mean, inter alia: “. . . a term of years (taking effect either 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 cesser of a determinable life interest . . .”

In In re Ray’s Will Trusts, Re Ray’s Estate, 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 by Clawson J at 526 that:

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“ ‘Absolutely’, means free of some fetter in some form . . . 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 a joint tenancy because a 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 a 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 interests or shares. In my opinion, the word “‘absolute” is a word of severance creating separate and distinct shares or interests for each devisee, even though by law each share was not physically divided. Clause (2) therefore created a tenancy in common.

What is the nature of the share or interest created by a 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 dies intestate or to his beneficiaries if he died testate: see Megarry and 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 will become 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] 2 GLR 301, CA. In the instant case, 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 once held in this court in Youhana v Abboud [1974] 2 GLR 201, 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, like an Ashanti that the late Owusu was, 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 [p.56] of [1995-96] 1 GLR 45 inherit him. Thus in Eshun v Johnfia [1984-86] 1 GLR 105, CA 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 Testate and Intestate Succession in Ghana (1st ed) at p 19, Ollennu JSC 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, the first plaintiff witness, 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, the first plaintiff witness took position 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 the first plaintiff witness by the action 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 reduced it into his possession.

My view is that even if by 1969 the first plaintiff witness had taken over the house, that take-over was challenged by the entry of the children into the house in 1975. Even if the first plaintiff witness 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 Limitation 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 the first plaintiff witness’ title to the house was already in issue. The first plaintiff witness 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 the affidavit filed by Daniel Owusu, it became apparent that what was at stake was whether the property had become the sole property of

[p.57] of [1995-96] 1 GLR 45 the first plaintiff witness 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, s 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 the first plaintiff witness. The first plaintiff witness could only have sold her own half share of the house No OT 77A.

I would dismiss the appeal in respect of the half share which was devised to the first plaintiff witness. In other words, the respondent is entitled to half of the disputed house by virtue of the sale to her by the first plaintiff witness. 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 met or heard of them in the house. If she ignored their presence, or took the word of the first plaintiff witness 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 inquire about the status and interests of those occupants. The fact of their occupation is sufficient notice to him. If she failed to inquire of their status or interest, she 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 the first plaintiff witness to find out what can be done about the extent of the house now lost to her.

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In the result, I would say that the respondent could not purchase the entire house. The authorities allow a separate indenture to be prepared to cover the half sold to the respondent by the first plaintiff witness: see Cheshire’s Modern Real Property (10th ed) at p 307.

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

JUDGMENT OF SAPONG JA.

Diana Owusu and Daniel Owusu are the children of the late Daniel Kwame Owusu. Daniel Kwame Owusu and Elizabeth Victoria Mensah are the children of the 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 hers.

By her will, she devised house OT 77A to her children, Victoria Mensah and Daniel Kwame Owusu, absolutely. Daniel Kwame Owusu died in 1959 and was survived by Diana Owusu and Daniel Owusu and his wife. Elizabeth Victoria Mensah inherited Daniel Kwame Owusu. She took letters of administration in November 1961. And in consequence thereof she sold house OT 77A to Akosua Agyentoa, the respondent herein. This was evidenced by an indenture dated 16 April 1984.

The respondent then took steps to eject the appellants, the children of the late Daniel Owusu, from the house for she had bought the house. The children resisted this action, fought at the District Court, Kumasi. They lost and appealed to the High Court, Kumasi and there too lost again. They are now in this court, being aggrieved by the decision of the High Court, Kumasi.

In this court the interpretation of clause (2) of the will of Afua Mansah became apparent. Clause 2 says: “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 (½) undivided moiety of premises situate and known as Plot No 77 in the Odumasi District of Kumasi.”

I do say that everything depends on the word absolutely. Does this mean that Elizabeth Victoria Mensah and the late Owusu were joint tenants or tenants in common? If they were joint tenants, then on the death of Owusu, Elizabeth became solely possessed of the estate. But if they were tenants in common, then on the death of Owusu his

[p.59] of [1995-96] 1 GLR 45 interest in the house passed on to his family. Owusu and Elizabeth being all Akans and from the same womb will be governed by Akan customary law.

Therefore be it tenants in common or joint tenancy, the successor of the late Owusu inherits his property. Well absolutely as defined by Earl Jowitt in Dictionary of law (1959 ed) at p 15 does not include any term of years determinable with life or lives or with the cesser of a determinable life interest.

Thus I would say that the tenancy created by clause (2) of the will in question is nothing but a tenancy in common. That is to say on the death of the late Owusu, his interest would not pass on to Elizabeth. And if that was so, Elizabeth could not have dealt with it the way she did. But being an Akan and the fact that she succeeded Owusu who died intestate she could. Nevertheless, with the passage of the Intestate Succession Law, 1985 (PNDCL 111) the situation becomes different. This Law came into effect on 5 July 1985 and it affected all cases pending in the courts.

Was this case pending in court when this Law was passed? I do say yes. The action was commenced in the District Court, Kumasi on 12 April 1985. When did it end at the district court? Judgment was delivered on 19 May 1986. Clearly, therefore, the matter was pending and not disposed of when PNDCL 111 was passed. Thus the half share of the late Owusu belongs to his children and wife by virtue of section 21 of PNDCL 111.

Thus the sale of the late Owusu’s half share in the house by Elizabeth to the respondent is wrong in law. I therefore allow the appeal in so far as the half share of the late Daniel Owusu is concerned.

DECISION

Appeal allowed.

DRKS