PREMPEH vs. AGYEPONG [1993]DLSC821

Date	1993-01-26
Suit No.
Citation No.	[1993]DLSC821

FRANCOIS WUAKU JSC

AMUA-SEKYI JSC

AIKINS JSC

BAMFORD-ADDO JSC

MONICA QUAYSON (MRS) FOR THE APPELLANT.

DJABANOR (WITH HIM W A N ADUMUA-BOSSMAN) FOR THE RESPONDENT.

[1993]DLSC821
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">PREMPEH<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AGYEPONG<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1993-94] 1 GLR 255<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 26
JANUARY 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MONICA QUAYSON (MRS) 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">

DJABANOR (WITH HIM W A N ADUMUA-BOSSMAN) FOR THE RESPONDENT. <o:p></o:p>

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

</div>JUDGMENT OF FRANCIOS JSC.<o:p></o:p>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. Two other matters have
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 a 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, as 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><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">“I find that 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
the 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... [T]he
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 that she did not cross appeal: see Prempeh v Agyepong [1989-90] 2
GLR 407, CA. Indeed, to invoke the Intestate Succession Law, 1985 (PNDCL 111)
to reap a benefit derived from a deceased spouse’s estate or even to claim
under samansiw is to acknowledge a lack of proprietary interest in oneself, and
amounts to an acquiescence in the trial judge’s findings. As this aspect of the
matter was not reagitated 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 girlfriend of the deceased who at
the time was lawfully married to one Christie. There was no cross-examination
of this. The appellant herself, in paragraph (4) of her amended statement of
defence, did not put her relationship with the deceased higher than that of
“friends’’, which made no attempt to answer the averment in paragraph (3) of
the statement of claim that the relationship had never “ripened into marriage
either under the customary law or under the Marriage Ordinance, Cap 127 (1951
Rev).’’<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.’’ 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. 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, ie 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 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’s 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>