AGYAPONG vs. PREMPEH [1993]DLSC4316

Date	1993-01-26
Suit No.	[1992-93] 2 G B R 710 – 732
Citation No.	[1993]DLSC4316

FRANCOIS JSC

WUAKU JSC

AMUA-SEKYI JSC

AIKINS JSC

BAMFORD-ADDO JSC

MONICA QUAYSON FOR THE DEFENDANT-APPELLANT.

G L A DJABANOR WITH HIM W A N ADUMUA-BOSSMAN FOR THE PLAINTIFF-RESPONDENT.

[1993]DLSC4316
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													<main id="main" class="content" style="min-height: 60rem" >AGYAPONG<o:p></o:p>vs.<o:p></o:p>PREMPEH<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1992-93] 2 G B R 710 – 732&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 26 JANUARY 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MONICA
QUAYSON FOR THE DEFENDANT-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">

G
L A DJABANOR, WITH HIM, W A N ADUMUA-BOSSMAN FOR THE PLAINTIFF-RESPONDENT.<o:p></o:p>

</div>CORAM:<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">

FRANCOIS
JSC, WUAKU JSC, AMUA-SEKYI JSC, AIKINS JSC, BAMFORD-ADDO JSC<o:p></o:p>

</div>FRANCOIS
JSC. There is only one issue of importance in this matter and that is whether
the appellant is entitled to the disputed house No 24 Block B, Asokwa, Kumasi
under the beneficial dispensation of samansiw.<o:p></o:p>Two
other matters have however been debated but they are inconsequential and may be
dismissed briefly. First, is the appellant’s proprietary claim to the disputed
house with the correlated request that the court treat the deceased as trustee
acting in her interest whenever title was in issue. The facts belie such a
claim. The trial judge made a clear and decisive finding that the vendor-owner
sold the property to the deceased who purchased it in his own right. The judge
was amply supported by the appellant’s own witness, and also the claim pressed
by the deceased himself in exhibit C. The rejection of the appellant’s claim in
the court’s conclusion, which I quote below, cannot be successfully impugned.
The judge said:<o:p></o:p>“I find from the totality of the
evidence, that the offer for sale of the house in dispute was made to the late
Joseph Kwasi Prempeh and that he negotiated with the First Ghana Building
Society in his own right and not as agent of the defendant. I also find as a
fact that the late Joseph Kwasi Prempeh financed the purchase of the house from
his own resources… The house in dispute was the self-acquired property of the
late Joseph Kwasi Prempeh.”<o:p></o:p>If
the appellant was dissatisfied with this conclusion, it is perplexing she did
not cross-appeal. Indeed to invoke PNDCL 111 to reap a benefit derived from a
deceased spouse’s estate or even to claim under samansiw is to acknowledge lack
of proprietary interest in oneself, and amounts to acquiescence in the trial
judge’s findings.<o:p></o:p>As
this aspect of the matter was not re-agitated in a cross-appeal, it must be
deemed abandoned. It cannot be resurrected now.<o:p></o:p>The
second issue, arising from the statutory effect of PNDCL 111, derives its
viability from proof of a recognised marriage. The respondent, at the trial,
described the appellant as a mere girl friend of the deceased who at the time
was lawfully married to one Christie. There was no cross-examination of this.
The appellant herself did not put her relationship with the deceased higher
than that of “friends” - see para 4 of her amended statement of defence, which
made no attempt to answer the averment in para 3 of the claim that the
relationship had never “ripened into marriage either under the customary law or
under the Marriage Ordinance”.<o:p></o:p>When
she had the opportunity to put the record straight, the appellant stated under
oath that the deceased was a family friend; she and the deceased “became
friends and later lived as man and wife”.<o:p></o:p>The
expression “living as man and wife” is as loose and inconclusive as can be
imagined. It covers a multitude of relationships and only describes an
existence of cohabitation rather than connubiality. The description is equally
apt in describing the relationship of paramours as also those bonded in holy
wedlock. It is colourless.<o:p></o:p>The
issue of marriage vel non was however never a critical one at the trial court,
where all at stake was title to a disputed house. It would be wrong for the
court therefore to foreclose any future attempts at a proper definition of the
appellant’s marital status. That aspect of the matter must remain open to be
determined in an appropriate forum.<o:p></o:p>A
claim under statute, i.e. PNDCL 111 cannot be summarily dismissed. It must be
seriously debated. The issue of marriage was only referred to, purely to reject
it as an issue of no consequence in the determination of this appeal. It
follows that the attempt to halt the proceedings in this appeal, and to compel
a pronouncement on PNDCL 111 as to the rights of members of the deceased family
under that law, at this late stage, must fail.<o:p></o:p>It
is not denied that the deceased had children, who may have a statutory claim
under PNDCL 111. They cannot be prevented from urging their claims elsewhere.
It follows further from this that the judgment of the Court of Appeal declaring
title in the disputed house in the respondent, has jumped the gun and cannot be
legally sustained. The existence of children of the deceased totally undermines
the legal viability of such a declaration. I would set it aside.<o:p></o:p>Finally
I turn to the only question of relevance in this appeal; namely the viability
of the samansiw alleged to have been made by the late Joseph Kwasi Prempeh.<o:p></o:p>A
brief survey of the facts needs to be made. The appellant and the deceased were
close friends living in the most intimate relationship. The deceased attempted
to make a will when he had premonitions about his future. That will failed for
not fulfilling the requirement of the Wills Act 1970 (Act 360) in a number of
particulars. It is however being suggested by the appellant that the intentions
of the testator, as gleaned from his inchoate will dictated to his clerk,
should be honoured as a valid samansiw.<o:p></o:p>The
Court of Appeal roundly rejected any attempt to rescue a failed will on the
wings of a samansiw. That is a stance I endorse. From tradition and history the
two are different. An oral declaration before witnesses is the start of
samansiw.<o:p></o:p>The
witnesses to a samansiw must necessarily be privy to the deceased’s wishes
regarding the distribution of his estate, to enable them attest fully to the
devises in the future, whereas witnesses to a will are completely ignorant of
its c</main>