IN RE ARMAH (DECD); ARMAH vs. ARMAH [1991]DLCA2253

Date	1991-05-30
Suit No.
Citation No.	[1991]DLCA2253

ESSIEM JA

AMUAH JA

ADJABENG JJA

GEORGE BROWN FOR THE APPELLANT.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1991]DLCA2253
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													<main id="main" class="content" style="min-height: 60rem" >IN RE
ARMAH (DECD); ARMAH<o:p></o:p>vs.<o:p></o:p>ARMAH<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 53<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:<o:p></o:p>GEORGE
BROWN FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

NO
APPEARANCE BY OR FOR THE RESPONDENT. <o:p></o:p>

ESSIEM,
AMUAH AND ADJABENG JJA<o:p></o:p>

</div>JUDGMENT
OF ADJABENG J.<o:p></o:p>The plaintiff-appellant
(hereinafter referred to as the appellant) is the only child of Wallace Amako
Cofie Armah who died intestate in Accra on 5 December 1980. The
defendant-respondent (hereinafter referred to as the respondent) is the widow
of the said deceased and the stepmother of the appellant. The respondent had
been married under the Marriage Ordinance, Cap 127 (1951 Rev). on or about 23
June 1986 the appellant applied for letters of administration to administer the
estate of his late father. The respondent caveated. As the parties had failed
to come to an agreement as to who should be granted the letters of
administration,’the High Court, Accra acting under Order 60, r 21(2) of the
High Court (Civil Procedure) Rules, 1954 (LN 140A), ordered that the appellant
should issue a writ of summons for the determination of the issue. He did.<o:p></o:p>At the
trial of the action the court was called upon to determine not only the main
issue of who should be granted the letters of administration, but also two
other very important issues. These are whether or not the deceased died
possessed of only one house - or two houses, and also whether or not the law
applicable to the distribution of the deceased’s properties is the Intestate
Succession Law, 1985 (PNDCL 111) or Cap 127. The trial judge decided that the
deceased died possessed of only one house and not two. She also decided that it
was PNDCL 111 which should be applied in the distribution of the deceased’s
properties. In respect of the main issue, the judge decided that in view of
“the bitter feud between the parties, the unhealthy rivalry characterised by
accusations and counter accusations,” she would not make a grant to either of
them. The trial judge felt that a neutral person would be more appropriate in
the circumstances, and so appointed the Administrator-General to do the job.
The appellant was dissatisfied and accordingly appealed to this court against
the decision.<o:p></o:p>Three
grounds of appeal were argued on behalf of the appellant. These are, firstly,
that the trial judge erred in law in applying the Provisions of PNDCL 111 to
the devolution and distribution of the estate of the late W A C Armah who died
intestate on 5 December 1980. Secondly, that the judge erred in law and in fact
in deciding that the two buildings which the late W A C Armah died possessed of
were or constituted one house in his estate in terms of Section 4(a) of PNDCL
111 instead of two houses in terms of section 4(b) of the said PNDCL 111. And,
thirdly, that the trial judge erred in law in granting a relief which none of
the parties to the suit had asked for, ie giving the administration suo motu to
the Administrator-General. It must be mentioned here that the respondent was
neither present nor represented at the hearing of the appeal.<o:p></o:p>In
respect of the first ground of appeal state above, the appellant’s counsel
submitted that the trial judge was wrong in her interpretation of sections I
and 21(1) of PNDCL 111. Counsel argued tha since the deceased had died before
the commencement of the it could not apply in the matter as nothing was pending
within th meaning of section 21(1) of the said Law. The judge was there fore
wrong in holding that this Law was applicable, and in refusing to use the
interpretation placed on this section by Ampiah JA, sitting as an additional
judge of the High Court in the case of Ampom (Decd), In re; Oppong v Oppong,
High Court, Accra, 8 January 1987 digested in [1989-90] GLRD 4. The
interpretation Ampiah JA us is the strict literal interpretation. The trial
judge used what she term the “purposive approach” based on Lord Denning’s
decision in the cases of Seaford Court Estates Ltd v Asher 1949 2 KB 481, and
Nothnian v Barnet London Borough Council [1978] 1 WLR 2 Counsel submitted that
this “purposive approach” was criticised the House of Lords in the case of
Magor and St Mellons Rural Diocesan Council v Newport Corporation [1952] AC
189, HL and therefore no good law.<o:p></o:p>The
simple question which this court is called upon to answer here is whether the
trial judge was right in holding that the p visions of PNDCL 111 were
applicable to the distribution of the properties of the deceased, W A C Armah,
even though he had d before the commencement of the Law. This calls for the
interpretation of the provisions of section 21(1) of PNDCL111. This subsection
provides that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“21. (1)
Notwithstanding the provisions of section,. of th Law or any other enactment
the provisions of this Law shall b applicable in the settlement of any claim or
adjudication 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 p sions of the Customary Marriage and
Divorce (Registration) 1985 (PNDCL 112) and the Administration of Estates Act,
1961 63) as amended by the Administration of Estates (Amendment) 1985 (PNDCL
113) shall be deemed to be applicable to such cla or adjudication.”<o:p></o:p>