IN THE MATTER OF THE ESTATE OF KODJO OYEMAN BROWN (DECEASED) AND IN THE MATTER OF AN APPLICATION FOR L/A BY: GODFREY MARTIN ESSANDOH (APPLICANTS/RESPONDENTS), BEDFORD KORSAH BROWN AND MERCY SAGOE (APPLICANT/APPELLANT) [1998]DLCA6725

IN THE MATTER OF THE ESTATE OF KODJO OYEMAN BROWN (DECEASED) AND IN THE MATTER O... [1998]DLCA6725

Date	1998-01-22
Suit No.	CIVIL APPEAL NO. 134/95
Citation No.	[1998]DLCA6725

WOOD J.A. (PRESIDING)

ESSILFIE-BONDZIE J.A.

GBADEGBE J.

[1998]DLCA6725
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													<main id="main" class="content" style="min-height: 60rem" >IN THE MATTER OF THE
ESTATE OF KODJO OYEMAN BROWN (DECEASED)<o:p></o:p>AND<o:p></o:p>IN THE MATTER OF AN
APPLICATION FOR L/A BY:<o:p></o:p>GODFREY MARTIN ESSANDOH (APPLICANTS/RESPONDENTS), BEDFORD
KORSAH BROWN AND MERCY SAGOE (APPLICANT/APPELLANT)<o:p></o:p>[COURT
OF APPEAL, 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">

CIVIL APPEAL NO. 134/95.&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; &nbsp;DATE: 22ND JANUARY,
1998.<o:p></o:p>

</div>CORAM:&nbsp; <o:p></o:p>WOOD
J.A. (PRESIDING), ESSILFIE-BONDZIE J.A., GBADEGBE J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>WOOD, J.A. <o:p></o:p>This
is an appeal from the decision of Benin, J. (as he then was) dated 11th July,
1994. The facts which gave rise to the proceedings culminating in the said
decision are very simple indeed. One Kojo Oyeman Brown died intestate on 22nd
February, 1986. He appears to have been an extremely wealthy man for he died
possessed of several houses. He was also survived by three wives and twenty one
children. Not suprisingly, it was these same factors namely, the fact of his
intestacy, the extent of his wealth as well as the sheer size of his nuclear family
which led to his family’s inability to distribute the properties among those
entitled to them, to their satisfaction. His customary successor later applied
for joint letters of administration for himself, the deceased eldest child,
Ernest Kofi Brown and the appellant, who is one of the widows. Following upon
an application subsequently brought by the appellant, the widow by name Mercy
Sagoe, the learned trial judge proceeded to distribute the assets in terms of
the intestate succession Law 1985 (PNDCL111). My own personal view is that the
learned trial judge deserves our commendation rather than condemnation. For, in
this rather extremely difficult exercise, an exercise in which it is impossible
to achieve a 100% success rating, he carefully outlined the factors he intended
to rely on to help him arrive at a just equitable and fair distribution and so
succeeded in distributing the said properties among the spouses and their
children as well as the extended family. The appellant, who as I have already
pointed out initiated the court distribution, being dissatisfied with the
result has appealed to this court on a number of grounds. At first impression,
that this by merely examining the various grounds of appeal, the impression one
gets and rightly so in my view, is that she intends to upset the apple cart,
that is to say, even as the relief endorsed on the notice of appeal clearly
stipulates, she is asking for nothing less than a setting aside of the entire
ruling and consequently the whole distribution and requesting for a
redistribution by this court, since appeals are by way of rehearing. However,
at the hearing, counsel made it plain that their only and main complaint is
with respect to the subject matter on plot No. 30 Korle Gonno. It is with
respect to this property that she has prayed for a setting aside of the order
giving part of it to her rival Diana Appiah. Her desire is that the entire
property be given to her and her children. It follows then that our decision in
this court rests only on this property, plot No. 30 Korle Gonno. <o:p></o:p>The
evidence clearly shows that there are two buildings situate on this land. First
there is what the learned trial judge described as the “main building”. Then
there is what he identified as the “Outhouse” or the boys quarters. In spite
however of these descriptive terms — “main house”, “boys quarters”, ‘outhouse’
they each comprise three rooms and a hall. Though in our culture describing one
of the houses as a boys quarters or outhouse would immediately conjure in the
mind a less superior property, inferior both in size and quality and so status
to the main building it is equally true under normal circumstances a boys
quarters cannot have the same number of rooms and facilities or conveniences as
the main house. Under these circumstances, in the absence of any evidence to
the contrary and there is none on the record to that effect, it is safe to
conclude, since they stand on the same land that they are of equal value. The
learned trial judge gave out the main house to her rival Diana Appiah and the
outhouse to the appellant. The question which readily comes to mind then is
what is wrong with this particular distribution. Why does she want us to
disturb this finding of the learned trial judge. I was able to discern four
main complaints from her counsels argument. It was first submitted that because
the learned trial judge used the alphabetical order to decide who should
exercise his choice first as to which house should go to whom the learned trial
judge erred. This error it was argued led to an inequality and injustice in the
distribution. The argument of counsel is that by S.14 of the PNDCL.111 where
two or more persons are entitled to a share in the estate, it shall be done in
accordance with customary law. It was thus contended that under customary law,
the wife with more children is entitled to more. It was argued that not only
did the wife whose name appeared first in alphabetical order unwillingly obtain
an advantage but more importantly that the grouping of the various women and
the number of children they had did not manifest in the distribution. <o:p></o:p>Secondly,
it was urged that as happened in the instant case, where the parties have
reached an agreement on who is to take what, the courts jurisdiction must be
based on the agreement of the parties. I think the implication here is that the
court failed to abide by this agreement with respect to the subject matter and
consequently the distribution ought to be set aside. <o:p></o:p>Thirdly,
it was contended that what greatly influenced the trial judge in this mode of
distribution is the fact that some of the beneficiaries have spent moneys on
the property. It was counsels contention that since they made such outlays
before the distribution they did so at their own risk and they cannot be
allowed to profit by their own wrong doing. <o:p></o:p>Fourthly,
and finally it was urged that since in none of the groupings were made to share
one property it was unjust and unequitable to make the order that he did and
the same therefore ought not to be allowed to stand. <o:p></o:p>Respondent
counsels reply to these arguments were that, firstly that the use of the names
of the widows in alphabetical order was merely for convenience, to facilitate
the identification of the various groupings. It was therefore contended that it
played no dominant role in the distribution. <o:p></o:p>Secondly
it was urged upon us that as the two properties had the same number of rooms
they were of equal value. Thirdly, and more importantly, it was urged that the
distribution was done, as far as was possible in accordance with the person who
was in occupation of which building. The contention therefore was that since
both appellant and her rival were at the time of the distribution in occupation
of the said premises, and since in any case the learned trial judge had orde</main>