Kofua Vrs Brookman And Another (H1/188/07) [2007] GHACA 4 (17 January 2007);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL - A C C R A
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CORAM: HENRIETTA ABBAN (MRS.)
YAW APPAU
DUOSE, JJA.
SUIT NO. H1/188/07
17TH JANUARY 2007
NANA EKUA KOFUA … PLAINTIFF/APPELLANT
V E R S U S
1. CHRISTOPHER BROOKMAN ] .. DEFENDANTS/
2. LILIAN ATOWOROH ] RESPONDES
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J U D G M E N T
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For the purposes of this appeal, the appellant who was the plaintiff in the court below would be referred to simply as the plaintiff while the respondents who were the defendants in the case would also be referred to as the defendants.
The facts leading to this appeal as disclosed in the record of appeal are that one Yaw Budukuma died testate. This Yaw Budukuma was married to one Tsetsewa and they had three children, namely; Aba Amoakowaa @ Cecilia Brookman, Kwabena Bosu @ Lawyer Ewusie Brookman and Mary Brookman. Mary Brookman, however pre-deceased her father.
In his last will and testament, Yaw Budukuma devised his self-acquired house in Kumasi to all his children including Mary Brookman who had died earlier on before the will breathed life. Since Mary Brookman died childless and had no dependants, her interest in her father’s estate became extinguished. The whole house that the testator devised to his children thus became the property of the remaining two children, i.e. Aba Amoakowaa @ Cecilia Brookman and Lawyer Ewusie Brookman after the testator’s death.
When the two children took possession of the house, which is a one-storey house, Lawyer Ewusie Brookman exclusively occupied the top floor while his sister Aba Amoakowaa also occupied the ground floor. There were three store-rooms in the house. Lawyer Ewusie Brookman took two while his sister took one. They rented these stores and were enjoying the proceeds without accounting to anybody. Lawyer Ewusie Brookman died in the year 2000 and his wife and children continued to occupy and control the portion occupied by him, including the two stores. Two years after the death of Lawyer Ewusie Brookman, (i.e. in 2002), his surviving sister Aba Amoakowaa also died.
After the death of Aba Amoakowaa, the defendants who are the children of the late Lawyer Ewusie Brookman, applied for letters of administration to administer their late father’s estate, which they had not done two years after his death. The plaintiff who is the niece of defendants’ father consequently took this action claiming that the whole house belonged to her family, (i.e. the family of Lawyer Ewusie Brookman and Aba Amoakowaa). She sued as the head of family. The defendants also counter-claimed for title to the whole house among others.
The claim of the plaintiff was that by a proper interpretation of the Will of the late Yaw Budukuma made in 1941, the testator’s intention in bequeathing the house to his children was for them to hold same as joint tenants but not tenants in common. As a result, after the death of defendants’ father in 2002, his share or interest in the house devolved to his surviving sister Aba Amoakowaa and since Aba Amoakowaa died childless in 2002, the whole house has devolved unto her family. She contended that the defendants had no interest whatsoever in the property which was jointly owned by their father and his only sister Aba Amoakowaa because the whole property devolved on Aba Amoakowaa after their father’s death.
The court below did not find this argument of the plaintiff convincing and dismissed her claim. The trial court held that the tenancy created was a tenancy in common and not a joint tenancy. It then gave judgment in part to the defendants on their counter-claim and went ahead and made further orders in favour of persons who were not parties in the action. The plaintiff has now come before us praying this Court to set aside the judgment of the court below on the following grounds: -
i. The trial judge erred in law when he used the Conveyancing Decree, NRCD 175/73 to interpret a Will made in 1941.
ii. The trial judge erred in law when he suo motu invoked the Intestate Succession Law PNDC Law 111 and granted a relief which neither of the parties sought for.
iii. The trial judge erred when he disregarded the abundance evidence on record that the house was not partitioned by the late Aba Amoakowaa and held that the house was partitioned.
iv. The judgment was against the weight of evidence.
In his statement of case filed in this Court, the plaintiff argued ground (i) first. He then moved on to grounds (iii) and (iv), which he took together and then ended with ground (ii). We do not want to follow this pattern.
Our simple contention in this appeal is that while we agree with the appellant that it was wrong on the part of the court below to suo motu invoke PNDC Law 111 and make an order in favour of persons not parties in the action, we do not find anything wrong with the findings of the court below that the property in dispute belonged exclusively to the late Ewusie-Brookman and his late sister Aba Amoakowaa and that the two of them partitioned same during their life time. There was convincing evidence on record to support this finding.
The argument the appellant seemed to be advancing, judging from some of the questions suggested to defendants’ witnesses was that, Ewusie Brookman being a lawyer, there should have been a legal document to witness such a partition, and without such a document, it could not be said that there was a partition. Here are some of the questions and answers the appellant asked the late Aba Amoakowaa’s grandson who testified as D.W.2:
“Q. I am putting it to you that Ewusie Brookman and Aba Amoakowaa never partitioned nor shared the house in dispute?
A. That is not true.
Q. You are here to give evidence in anticipation that you may benefit from the outcome of this judgment.
A. That is not true.
Q. To the best of your knowledge is there any existing document confirming the alleged partition of the house?
A. Not as I know of.
Q. And you know as a fact that Ewusie Brookman was a renowned legal practitioner in Kumasi?
A. That is so.
Q. I am further putting it to you that Ewusie Brookman never took the first floor as his part of the property?
A. It wasn’t documented, but so far as I know, it was shared because I was visiting them from time to time.
Q. So you want the Court to believe that Ewusie Brookman had seven bedrooms and two stores whereas Aba Amoakowaa had six bedrooms and one store. Is that the case?
A. Yes.”
The fact is that the house belonged exclusively to Lawyer Ewusie Brookman and his only sister Aba Amoakowaa. From the Will, they could have sold it and shared the proceeds as they wished. Nobody could question their mode of distribution. If the two of them decided that the man should take the seven rooms upstairs plus two store rooms and the woman the six rooms downstairs and one store room, nobody could question that. It was their prerogative.
Again it is not only legal documentation that could connote sharing. The plaintiff could not challenge the fact that the two beneficiaries were enjoying separate portions of the property exclusively. On the preponderance of probabilities, their conduct in how they handled their respective portions or premises showed that they had partitioned the house between themselves. The conclusion of the court below that the property had been partitioned between the two was therefore proper and should not be disturbed.
The court below was also right in finding that the share of Aba Amoakowaa devolved onto her grandchildren who depended upon her during her life time, despite the fact that she died without a surviving child.
From the record, Aba Amoakowaa had only one child but he predeceased her. This child left behind children who were dependent on their grand mother Aba Amoakowaa at the time of her death in 2002. By virtue of section 16 of P.N.D.C. Law 111, the whole of Aba Amoakowaa’s share or a portion of it devolves on the said grandchildren. It does not become family property in anyway. This section reads:
“Where a child of the intestate who has predeceased him is survived by a child being the grandchild of the intestate, the grandchild is entitled, if that child is dependent on the intestate at the time of death, to the whole or a portion of the estate which would otherwise have devolved to the parent if that child had not predeceased the intestate.”
This Court is also of the view that the court below only made reference to the Conveyancing Decree (NRCD 175) to draw attention to the position of the law in Ghana with regard to properties granted to more than one person jointly. As the judge rightly pointed out, where a grant of land is made to two or more persons, it is presumed to be made to them as tenants in common unless a contrary intention is expressed. This in effect did not mean that the court below was interpreting a Will with the provisions of the Conveyancing Decree. The fact is that with regard to Wills, where the disposition is silent on the type of joint ownership, the presumption is that the beneficiaries own the property in equal shares with a right of severance.
In the 1941 Will under reference, what the testator stated in the Will with regard to the disputed house was as follows:
“I give, bequeath and devise unto my children…my house or building situate at…., freely to be enjoyed and used to collect all rents thereon, to mortgage or to sell, if necessary, subject only to the payment of rent. But they shall permit my nephews to live in the said house until they can build a house for themselves”.
From the above, there is no question to the fact that the disputed house exclusively belonged to the defendants’ late father Ewusie Brookman and his only sister. It was bequeathed to them absolutely. The plaintiff was not one of the nephews or nieces of the testator whom he exhorted his children to permit to stay in the house until they could acquire their own. She was only a relation of the defendants’ father.
A proper reading of the above disposition shows clearly that the testator did not intend to create a joint tenancy in favour of his children as the plaintiff was contending. In fact, he gave the whole house to them freely with even the right to sell it. If they had chosen or preferred to sell the house, they would have shared the proceeds between themselves. Instead, they chose to maintain it and to partition it into two with the man occupying the top floor exclusively with his wife and children and the woman occupying the ground floor also exclusively with her grandchildren and other family members.
Lawyer Ewusie Brookman was said to have rented a room upstairs and enjoyed the rent accruing from that room without sharing it with his sister Aba Amoakowaa. Aba Amoakowaa also did the same with regard to the ground floor without any interference from her brother. The plaintiffs could not challenge this.
This case seems to be on all fours with the Supreme Court case of AGYENTOA v. OWUSU and Another [2005-2006] SCGLR, 383. In that case property was devised in a Will made in 1950 to two children ‘absolutely’, just like the instant case. This Court interpreted the interest so created as one of tenancy in common and not joint tenancy. On appeal to the Supreme Court, the highest court of the land affirmed the decision of this Court. This was what the Supreme Court said at holding (1): -
“The Court of Appeal has ruled correctly that the interest created in the will of the testatrix in favour of the children by the use of the word ‘absolutely’, was that of tenancy in common and not joint tenancy”.
From the holding of the Supreme Court quoted above, the words used in the Will of the testator Yaw Budukuma; i.e. “freely to be enjoyed and used, to collect all rents thereon, to mortgage or to sell, if necessary….”, indicate clearly that the property was devised to his children ‘absolutely’.
This means that the wife and children of Lawyer Ewusie Brookman, by virtue of our intestate succession law P.N.D.C. Law 111 as amended by Intestate Succession (Amendment) Law, 1991 [P.N.D.C. Law 264], are the exclusive owners of the portion of their late husband and father, i.e. the whole of the top floor and the two store rooms while the grandchildren of Aba Amoakowaa own exclusively her portion after her death, which is the ground floor and the one store room. The court below was therefore faultless when it dismissed plaintiff’s claim and upheld the counter claim of the defendants in part, restricting them to the portion possessed by their father during his life time.
It was, however wrong on the part of the court below to have made an order in favour of the grandchildren of Aba Amoakowaa when they were not parties in the suit. That issue is a matter between the said grandchildren who were not known to the court below and the plaintiff. Apart from the reversal of that order by this Court, the
appeal fails. It is accordingly dismissed.
YAW APPAU
JUSTICE OF APPEAL
I agree. H. ABBAN [MRS.]
JUSTICE OF APPEAL
I also agree. I.D. DUOSE
JUSTICE OF APPEAL
COUNSEL - SIR DENNIS ADJEI FOR PLAINTIFF/APPELLANT.
PAAPA DADSON FOR THE DEFENDANTS/RESPONDENTS
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