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ANSAH AND ANOTHER v. JOE AND ANOTHER


  • appeal
  • 1961-06-26
  • SUPREME COURT
  • GLR 395-401
  • Print

KORSAH C.J., SARKODEE-ADDO AND AKIWUMI JJ.S.C.


Summary

Wills?-Claim by beneficiary under will?-Allegation by defendants that will disregarded with acquiescence of plaintiffs?-Whether will suppressed.Administration of estates?-Letters of administration of deceased's personal property obtained?-Will known to have been executed?-Purported assignment by administrator of leasehold property bequeathed to second plaintiff?-Whether second plaintiff entitled to declaration of title.Customary law?-Appointment of successor?-Capacity of successor to assign family property.

Headnotes

The deceased, J.E. Ansah, made a will dated the 3rd March 1946, appointing the first plaintiff, his son, W.W. Ansah his successor, "to look after my affairs on demise and it is my desire that he is not obstructed in this respect". In his will J.E. Ansah bequeathed leasehold property, plot No. 42 John Sarbah Road, to his customary wife Intsitsi, the second plaint J.E. Ansah died on the 26th April, 1946, and in June that year the will which had been deposited in court by the testator was read to the relatives. Thereafter the will was left in court until 1951. Letters of administration of the personal property of the deceased were granted to one J.A. Simons, his maternal brother, and to the deceased's son, the said W.W. Ansah on the 14th August, 1946. J.A. Simons died in February, 1947, and letters of administration of his personal property were granted on the 16th June, 1947, to Atta Kwami, his cousin and the original first defendant in his suit. Thereafter Kwami purported to control the personal properties of both Simons and J.E. Ansah, and had himself substituted as lessee of plot No. 42, [p.396] John Sarbah Road, which, with the permission of the Lands Department he assigned to the second defendant for valuable consideration sometime in 1950.On the 22nd November, 1952, the court recalled the original grant of letters of administration of the personal property of J.E. Ansah deceased and ordered letters of administration with will annexed to issue in place therefor to W.W. Ansah "to administer the estate in accordance with the terms of the will". In these proceedings Atta Kwami did not file any defence.Atta Kwami died in August, 1958, and was substituted by his cousin, Kwesi Joe, the head of the family, as the first defendant; W.W. Ansah died on the 10th August, 1959, and was succeeded by his brother I. B. Ansah as first plaintiff.The plaintiffs claimed as beneficiary and administrator of the will respectively a declaration of title to plot No. 42 John Sarbah Road in favour of the second plaintiff, the widow of J.E. Ansah, an account of the rents and profits thereof and damages for trespass. The defendants alleged that the will was never acted upon "to the knowledge and with the acquiescence of the plaintiffs". The defendants, however, ignored a request for further and better particulars with regard to this allegation.In the High Court, Smith, J. found for the defendants. On the evidence, he could "only assume that there was some agreement to leave the will in the High Court". Further, he could not hold that the assignment of plot No. 42 John Sarbah Road to the second defendant was void because there was no proof that he was not a bona fide purchaser for value, there was no evidence that he know of the existence of the will, and the assignment to him was made by a person who had been appointed successor by the family, although "Atta Kwame was never held out by them to the second defendant or for that matter to anyone else as the absolute owner of the property". Smith J. concluded "The only remedy for the widow would appear to be against the successor's estate".On appeal,

Judgement

APPEAL from a judgment of Smith J. in the Land Court, Sekondi delivered on the 20th May, 1960 (unreported) which had dismissed the claims of the plaintiffs as administrator of the personal property and beneficiary respectively under the will of J.E. Ansah deceased, for declaration of title to certain leasehold property in favour of the second plaintiff, account for rents and profits thereof and damages for trespass. The facts as set out in the headnote are taken from the judgment of Smith J. and were substantially adopted by the Supreme Court.

JUDGMENT OF SARKODEE-ADOO J.S.C.

He delivered the judgment of the court. This is an appeal from the judgment of the Land Court, Sekondi, dated the 20th May, 1960, with respect to leasehold premises known as plot No. 42, John Sarbah Road, in the African Township of Takoradi, bequeathed to the second plaintiff by the late John Essel Ansah who died on the 26th April, 1946, in his last will and testament bearing date the 3rd March, 1946, and deposited in the High Court, Sekondi on the 16th April, 1946. The said plot is comprised in a lease dated 17th December, 1943, and made between the then Governor of the Gold Coast Colony for the government as lessor of the one part and the said John Essel Ansah as lessee of the other part whereby the premises therein contained were vested in the lessee for the term of 98 years and six months from the 1st October, 1943, subject as therein appearing.

The plaintiffs' claim as administrators of the personal property and beneficiary of the will respectively of the said John Essel Ansah, deceased, against the defendants jointly and severally is for a declaration of title to the said leasehold premises in favour of the second plaintiff; an account of the rents and profits thereof; and damages for trespass as per the particulars annexed to the claim.

The defence to this claim is set out in the defendants' statement of defence and reads:

"1. The will referred to in paragraph 2,3 and 4 of the particulars of claim was disregarded and never acted upon at the time of John Essel Ansah's death to the knowledge of and with the acquiescence of the plaintiffs.

2. James Alfonso Simons (deceased) was the customary successor of John Essel Ansah (deceased) and was appointed administrator (not with will annexed) with the approval and acquiescence of the plaintiffs and the family (according to custom) of John Essel Ansah (deceased).

3. On the death of James Alfonso Simons the first defendant was appointed customary successor and granted letters of administration.

4. The 1st defendant as administrator and customary successor administered in good faith the estate of James Alfonso Simons (deceased) including the estate of John Essel Ansah (deceased) which was family property.

5. The 1st defendant denies all allegations of fraud and false statement contained in the statement of claim and the particulars thereto. [p.398]

6. The 2nd defendant was a bona fide purchaser for value without notice of fraud and dishonesty.

7. The 1st defendant will contend that the assignment of Plot No. 42 John Sarbah Road, Takoradi, to the 2nd defendant was valid and not affected by the order of 22nd November, 1952.

8. The defendants will content that the plaintiffs are barred by laches and acquiescence".

Subsequent to filing and service of the defence the plaintiffs by their solicitors requested the defendants to furnish further and better particulars in the terms following:

"You are requested to provide further and better particulars of the several matters and things hereunder stated arising out of the defendant's statement of defence filed herein.

"1.(a) As to the circumstances in which the will of John Essel Ansah (deceased) was disregarded as averred in paragraph 1 of the statement of defence.

(b) As to whether and if so, in what circumstances it is alleged that the said will was disregarded lawfully.

(c) Of the alleged knowledge and acquiescence thereof of the plaintiffs.

2. (a) Of the approval and acquiescence of the plaintiffs alleged in paragraph 2 of the statement of defence in relation to the appointment of James Alfonso Simons the administrator of the deceased estate.

(b) Of the custom relied on in the said paragraph.

3. In what circumstances is it alleged in paragraph 4 of the statement of defence that the estate of John Essel Ansah (deceased) was family property and at what time and in what manner is it claimed that the same became family property.

4. Of the general denial contained in paragraph 5 of the statement of defence (vide O.19 rr. 18 8 20).

5. Of the general allegation of laches and acquiescence made in paragraph 8 of the statement of defence".

The request for further and better particulars was ignored by the defendants, and the case proceeded to trial without supplying the plaintiffs with the particulars of the points raised by the defence as to the will being disregarded and never acted upon to the knowledge of and with the acquiescence of the plaintiffs, and also the allegation of laches.

No family settlement was pleaded nor proved. The allegation by counsel for the defence in cross-examination of the first plaintiff that "it was agreed that the Ashanti Road house (with lorry and gun) should be the property of the children of the deceased - and that the John Sarbah Road property should become the property of the family" was rejected.

At the hearing of the appeal counsel for the respondents applied for leave to amend paragraph 1 of the statement of defence to read thus:

"There was a family settlement of the apportionment of the properties at which the plaintiffs were present and all the members including the plaintiffs accepted".

This application was refused as untenable at that stage before this court. The will was made known to the family as is clearly borne out by exhibit E (letter dated the 11th May, 1946, from Mr. C.E.M.

Abbensetts to the Registrar, Divisional Court, Sekondi) which reads as follows: [p.399]

"Dear Sir,

In re J.E. Ansah (Deceased)

"I have been retained by the relatives of the deceased to act for the estate. I understand that the deceased made a will and I am sending the relatives together with Mr. J.A. Winney who was a personal friend of the deceased.

Will you kindly open up the will and read it to them and read it to them and at the same time let me have a certified copy of it to enable me to apply for Probate.

Yours faithfully,

(Sgd.) C.E.M. Abbensetts".

The first original plaintiff and the first original defendant in this suit which commenced sometime in 1956 have died and have been substituted, but a careful perusal of the record of the proceedings makes it abundantly clear that the family suppressed the will wherein the testator appointed his son William Wilfred Ansah alias Esson Kadebi as his "lawful successor" and made a bequest of the property in dispute to his wife Intsitsi, the second plaintiff whom he married by native custom.

The manoeuvres of the family, headed by Atta Kwami alias Ngather Kwame, to defeat the wishes and intentions of the testator culminated in the sale of the property to John Wilson Gyamfi, the second defendant; and on the facts as admitted and proved, at no time was Ataa Kwami held out as the owner of the property to deal with it as he did nor was the sale with the knowledge and approval of the beneficiary, the second plaintiff who is still alive.

On the 14th August, 1946, letters of administration of the personal property of the deceased were granted to one J.A. Simons who held himself out as successor and head of the family of the deceased and the said W.W. Ansah, the maternal brother and son respectively of the deceased. J.A. Simons died in February, 1947, and letters of administration of his personal property were granted on the 16th June, 1947, to Atta Kwami his cousin (the original first defendant in this suit) and he purported to control the properties of Simons and J.E. Ansah. Atta Kwami thereafter fraudulently represented to the Lands Department that he was the successor of both his deceased cousins J.E. Ansah and J.A. Simons and was substituted as lessee; and he was thereafter granted permission to assign the John Sarbah Road property which he had developed to the second defendant sometime in 1950.

On the 22nd November, 1952, the court recalled the original grant of letters of administration of the personal property of J.E. Ansah and ordered letters of administration with will annexed to issue in place therefor to W.W. Ansah "to administer the estate in accordance with the terms of the will". In these proceedings Atta Kwami did not file any defence. There was no opposition.

Atta Kwami died in August, 1958, and was substituted by his cousin Kwesi Joe?-the head of the family?-as first defendant. W.W. Ansah died on the 10th August, 1959; he was substituted by his brother Isaac Brandford Ansah as first plaintiff to whom letters of administration of the personal property of W.W. Ansah had been granted. [p.400] J.A. Simons died leaving W.W. Ansah the co-administrator as sole administrator, so that Atta Kwami could not administer the personal estate of J.E. Ansah even if there was intestacy; but in this case there was a will which in law speaks upon the death of the testator.

The deceased in his will requested his said lawful successor to look after his affairs on demise and it was his desire that "he should not be obstructed in this respect".

It is a settled rule of law that the grant of letters of administration applies to personalty only and that no real property vests in the person to whom letters are granted?-See Victoria Gorleku v. George Gorleku1: Obuobi v. Yar Borley12. (1934) 2 W.A.C.A. 46 at p.512.

In Ghana, a leasehold interest in land is still personal property, not real property, and as such can be administered by a person holding letters of administration - see Nsiah v. Union Trading Company, Ltd.3

In the instant case however, these considerations are inapplicable as neither J.A. Simons nor Atta Kwami could administer the estate of J.E. Ansah the deceased who died testate; in any event, under native customary law a successor alone cannot part with family property, nor in law would an alleged family settlement be tenable unless a waiver could be proved upon consideration in respect of the will.

On the evidence we are of the opinion that the learned judge misdirected himself and erred in assuming that there was some agreement to leave the will in the High Court and for letters of administration to be taken out as if there was an intestacy; and further that in view of the fact that the allegation of fraud has not been proved coupled with the absence of proof to the contrary that the second defendant was a bone fide purchaser for value, it is not possible to grant the plaintiffs' claim for declaration of ownership. No one can give that which is not his: nemo dat quod non habet.

It is an erroneous view of the law to hold as the learned judge did that notwithstanding total lack of title in Atta Kwami, he could vest the property in the second defendant who bought from him following upon fraudulent representations to the Lands Department.

A purchaser must look out for himself: caveat emptor. He must take precautions for his own protection - if he does not he "asks for it" and cannot complain if he "gets it". It follows that any transaction by the defendants relating to the property is void.

In all the circumstances, we are satisfied that the learned judge erred in his findings and conclusions and his judgment dismissing the plaintiffs' case must be set aside. [p.401]

The appeal is accordingly allowed and the judgment together with the order as to costs set aside. In lieu thereof there will be judgment for the plaintiffs against the defendants jointly and severally in the terms following:

(a) A declaration of ownership of the John Sarbah Road property in dispute in favour of the second plaintiff.

(b) An account of the rents and profits of the said property up to the date of the rendering of such accounts, and payment of the total amount to the second plaintiff in whom title to the property vested as from the death of the testator;

(c) As to damages in view of the fact that the second plaintiff is illiterate and had been deprived of her bequest for over fifteen years (since April, 1946) through no fault of hers she is awarded G300 as general damages.

Decision

<P>Appeal allowed.</P> <P>Judgment for the plaintiffs.</P>

Plaintiff / Appellant

E. Akufo-Addo with him Gwira

Defendant / Respondent

S. Baidoo

Referals

(1) Gorleku v. Gorleku (1934) 2 W.A.C.A. 82.

(2) Obuobi v. Borley (1934) 2 W.A.C.A. 176.

(3) Nsiah v. Union Trading Co. Ltd. [1959] G.L.R. 79, C.A.

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