LOUIS ANOKWAFO & 2 ORS vs PAULINA V. ANOKWAFO

JUDGMENT

[1]              Introduction

Justice Kweku T Ackaah-Boafo J (as he then was) faced with a similar case, a claim against a dead person, stated succinctly in the case of Grace Adu & 1 other vs Martin Anaglate & 2 Others, Suit No: BFA 103/2009, 5th April 2019 as follows:

“In proceeding to evaluate the nature of the evidence adduced at the trial I need to caution myself that this suit concerns Dr. Emmanuel Anaglate who is now deceased and is unavailable as a witness in terms of S. 116(e) (iii) of the Evidence Act, 1975 (NRCD 323) and therefore cannot appear to tell his side of the story as to whether he indeed married both Plaintiffs. The settled rule of law is that the evidence involving a deceased person is always received and treated with extreme circumspection and suspicion. The policy rationale is that the deceased, unlike the Biblical Lazarus, cannot come out of his grave to tell his side of the story, to assert any claim or disprove one. Proof must therefore be strict and utterly convincing from the living witnesses.

Judges have been advised to look with suspicion when claims are made against deceased persons. In the case of Kusi & Kusi vs. Bonsu [2010] SCGLR page 60 at page 73, 82-84 the Supreme Court stated the principle succinctly as follows:

“…the claims the plaintiff family made against the deceased Asante in respect of the property, were all critical assertions against the deceased, in whose favour the presumption of ownership stood. These claims belong to the class of evidence that must first be received with the greatest caution and scrutinized carefully before being given the requisite weight. It is however clear from the evidence that the plaintiff family acquitted themselves creditably, by discharging satisfactorily, the legal burdens placed on them… The main argument is that the respondents, i.e. the plaintiff’s family, failed to provide the requisite corroboration to the claim that Asante signed the petition exhibit A. There is no intractable rule of law that charges or claims against a dead person could not succeed without corroboration. To the contrary, the discernible principle was that a court could proceed on the uncorroborated evidence if satisfied about its truthfulness. The only rider or caution was that the court must examine the evidence critically, with utmost care, weighing or sifting it thoroughly, to ensure there were no loopholes or that the charge or claim did not suffer from any absurdities or the like. A judge in receipt of uncorroborated evidence consisting in the main of charges against a deceased person would not swallow the story lock, stock and barrel, but would first view it from a suspicious standpoint. If the story as presented was neither incongruous, preposterous, unreasonable, illogical, nor incredible, then the judge might proceed to give it the weight it deserved. The exercise would relate to the cogency or the weight to be attached to the evidence given…”

Dotse JSC has postulated in the case of Fosua & Adu-Poku v Dufie (Deceased) & Adu Poku-Mensah [2009] SCGLR 310 at 349 that:

“It is also to be borne in mind that claims against the estate of a deceased person are to be viewed with caution and very cogent evidence is necessary to sustain the same…The law is settled that whenever issues touching the estate of a person who is deceased comes into play, the courts must be very slow in construing evidence against the dead person. See In re Krah (Decd); Yankyerah & Ors v Osei-Tutu [1989-90]1 GLR 638 at 662, SC and Bisi v Tabiri alias Asare [1987-88] 1 GLR, 360 at 409, where the principle was stated that “The well-known rule is that claims against a deceased’s estate must be scrutinized with circumspection.”

 

At the heart of this case is whether the estate of the Late Frank Anokwafo was subject to the presumption of joint ownership, that is whether the Defendant is entitled to half-share of the estate of the deceased before the other half is distributed in accordance with the Intestate Succession Law, 1985, PNDCL111 or whether the whole estate falls to be distributed in accordance with Intestate Succession Law, 1985, PNDCL111?

[1.1] The Claim & Counterclaim

The Plaintiffs filed a Writ of Summons with an accompanying Statement of Claim on 11th March 2022 for the following reliefs:

1.     “A declaration that the listed properties; 5-bedroom house at Adentan, 4-bedroom house at Kpetoe, 12-unit apartment at Adentan, 2 plots of land at Katamanso, 2 plots of land at Kpetoe, Toyota Land Cruiser Prado, Toyota Highlander and a Toyota Corolla as stated in the inventory/declaration form attached to the application for the grant of Letters of Administration are the self-acquired properties of Mr. Frank Anokwafo, deceased.

2.     A declaration that the Defendant’s share in the estate of her late husband is provided for under the Intestate Succession Law, PNDCL 111.

3.     A declaration that the conduct of Defendant in transferring an amount in excess of GHS 1,000,000.00 into her personal account and that of another party and the continues(sic) collection of rent from the tenants in the deceased’s 12-unit apartment constitute intermeddling.

4.     An order directed at the Defendant to return the funds she unlawfully transferred from the deceased’s account with the Zenith Bank, Head Office Branch after his death with all the interest accrued thereon.

5.     An order directed at the Defendant to pay the rent collected from the tenants at the deceased’s 12-unit apartment into the designated accounts given to the tenant by the deceased.”

The Defendant caused entry of appearance to be filed on her behalf on 22nd March 2022 and filed her Statement of Defence on 10th October 2022 and counterclaimed as follows:

a.      “A declaration that the Defendant jointly acquired the following properties with the Deceased as matrimonial properties in the course of their marriage:

i.  5-bedroom house at Adentan, Digital Address GM – 067-1370 (The matrimonial home)

ii.  4-bedroom house at Kpetoe

iii. 12-Unit Apartment at Adentan, Digital Address GM – 065-2533

iv. Two plots of land at Katamanso, Accra

v.  Two plots of land at Kpetoe,

vi. Toyota Land Cruiser Prado GT 8653-18

vii. Toyota Highlander GT 811-09

viii. Toyota Corolla GM 5590-12

b. A declaration that the listed properties not being sole properties of the Deceased, the entirety of the said properties do not fall into intestacy for the purpose of grant of Letters of Administration

c.  A declaration that aside the interest of the Defendant in the properties that she jointly acquired with the Deceased as matrimonial properties, the Defendant is further entitled to such portion of the Deceased person’s estate which is to be distributed in accordance with the Intestate Succession Act, 1981 (PNDCL 111).

d. A declaration that the Deceased having been survived by only the Defendant surviving Spouse and his three (3) children, the entire portion of the deceased in the jointly acquired matrimonial properties fall into intestacy to devolve to his surviving spouse and children as sole beneficiaries.

e. A declaration that the 3rd Plaintiff purporting to be the customary successor of the Deceased who hailed from the patrilineal society of Kpetoe lacks capacity to join in the application for Letters of Administration in respect estate of the Deceased.

f.  Any other reliefs that the Honourable Court may deem fit to grant.

g. Costs”

The antecedent contentions which necessitated the disputations before this Court can be gleaned from the respective pleadings of the parties as follows:

[2] The Plaintiffs’ Case

The Plaintiffs pleaded that they are the children of the deceased Frank Anokwafo and his customary successor whilst the Defendant is the surviving spouse of the deceased. The deceased died on 2nd March 2021.

The Plaintiffs contend that after the death of the deceased they were appointed by the family of the deceased to apply for letters of administration to administer his estate and though the Defendant was invited to join for the application for the grant of Letters of Administration the Defendant caveated the grant. The Defendant, then Caveatrix was warned in accordance with the rules of court. She filed an affidavit of interest and the Court pursuant to that ordered that the Plaintiffs to issue a Writ of Summons against the Caveatrix.

It is the case of the Plaintiffs that the deceased through his sole effort acquired some properties all in his sole name. The Plaintiffs aver that it came to their knowledge few days after the death of the deceased, a transfer was made in excess of one million Ghana cedis (GH¢1,000,000.00) from the deceased’s account with the Zenith Bank, Head Office Branch into the personal account of the Defendant and another party prior to the application for the grant of letters of administration. The Plaintiffs avers that the Defendant was not entitled to the said funds without lawful authority. The Defendant has been collecting rent from tenants in 12-unit apartments without lawful authority.

[2.2] The Defendant’s Case

It is the case of the Defendant that she was subjected to inhumane and insensitive treatment just hours after the death of the deceased and extending to the burial and final funeral rites but that the inventory of properties included jointly acquired properties which the Plaintiffs refused to take out of Judicial Form 68.

The Defendant averred that within hours of the demise of her late husband and a week after, the Head of Family and other members ransacked the matrimonial bedroom in search of things that they alone knew, and requested for the deceased person’s telephones which the Defendant refused to hand over. The said family members subsequently locked the matrimonial bedroom door, took pictures of the room and took away some of the Deceased person’s personal belongings and clothing like the bedsheets laid on the bed, suits, smocks and wrist watches. Furthermore, the 3rd Plaintiff in particular started scavenging for the estate of the deceased which included unlawfully seeking to get access to bank accounts and their balances and writing to tenants in a 12-unit matrimonial property on rental at Adenta instructing them to do certain things.

The Defendant pleaded in paragraphs 18 and 19 of her Statement of Defence as follows:

“Defendant avers that she was further humiliated during and after the funeral of the deceased and these acts of humiliation included refusing to involve her in the funeral planning, excluding her in the burial and funeral arrangements and denying her access to the matrimonial house at Kpetoe. In order to take her personal belongings from the house, she was strictly supervised. She was denied the chance to preform the solemn rites of widowhood.

The Defendant says that having ignored all the happenings to participate in the burial and funeral of her late beloved husband, Defendant was still ignored, overlooked and never invited to any family meeting either as a beneficiary of the estate or even as a widow to discuss anything relating to the aftermath of the funeral or nominations of applicants to apply for Letters of Administration.”

The Defendant further averred that when she was written to join in an application for grant of letters of administration, she caused her lawyers to write to correct the draft inventory to account for her jointly acquired interest in specific properties as well as informing them of other properties not included in the inventory. The family refused to correct the inventory and applied on notice to the High Court Adenta for the grant of Letters of Administration. Upon service, the Defendant caveated and filed the necessary processes.

It is the case of Defendant that her claim to some of the properties on the inventory is based on her joint acquisition of the said matrimonial properties with the deceased during the course of their marriage and that the said properties are not the sole properties of the deceased to fall entirely into intestacy to be distributed in accordance with the Constitution or the Intestate Succession Law, 1985, PNDCL 111.

The Defendant denied that she unlawfully transferred monies from any account of the deceased to herself or any other person.

It is the further case of the Defendant that the 3rd Plaintiff lacks capacity to join an application for letters of administration and to issue a writ in connection with the estate of a man who hailed from a patrilineal society of Kpetoe in the Volta Region and that the deceased was only survived by the Defendant spouse and three (3) biological children including a minor as the sole beneficiaries of his estate.

[3] Issues for determination

At the application for directions stage on 8th March 2022 the Court set down the following issues for determination of the case:

1. Whether or not the properties in dispute, vis (1) 5-bedroom house at Adentan, (2) 4- bedroom house at Kpetoe, (3) 12-unit apartment at Adentan, (4) 2 plots of land at Katamanso, (5) 2 plots of land at Kpetoe, (6) Toyota Land Cruiser Prado, (7) Toyota Highlander and (8) a Toyota Corolla, were jointly acquired by the deceased and the Defendant as matrimonial properties in the course of their marriage?

2.     Whether or not aside the interest of the Defendant in the jointly acquired properties, Defendant is entitled to any portion of the estate of the deceased in accordance with the Intestate Succession Act, 1985 (PNDCL 111)?

3.     Whether or not the Deceased having been survived by only the Defendant spouse and children the estate of the deceased devolves entirely unto them?

4.     Whether or not the 3rd Plaintiff purporting to be customary successor of the Deceased has capacity to join in the application for Letters of Administration of the estate?

 

 

[3.1] Case Management Conference

After setting down the above issues, the Court ordered the parties to file their respective witness statements and attach all documents they intended to rely on. The parties duly complied and after the mandatory Case Management Conference, the matter was set down for trial. The 1st Plaintiff testified and called no witness.

The Defendant testified and called one witness, Emmanuel Tome, in support of her case. Defendant also subpoenaed Dr. Edward Nasigrie Mahama of Superior Medical Center to testify on her behalf. The Plaintiff Counsel filed his written address on 23rd November 2023 and the Defendant Counsel filed his written address on 8th May 2024.

[4] Standard of Proof, Burden of Proof and Persuasion

In all forms of civil litigation and like all civil cases, the standard of proof is one of balance of probabilities or preponderance of probabilities. The proof prescribed in civil trial is provided under sections 10, 11, and 12 of the Evidence Act 1975 NRCD 323. These sections on the burden of proof, burden of persuasion and the burden of producing evidence provide thus:

“10. (1) For the purpose of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court.

(2) The burden of persuasion may require a party (a) To raise a reasonable doubt concerning the existence or non- existence of a fact, or (b) To establish the existence or non- existence of a fact by a preponderance of probabilities or by proof beyond reasonable doubt.

11.  (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party…

12. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

(2)  Preponderance of the probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non- existence.

In the case of Ackah vs Pergah Transport Ltd [2010] SCGLR 728 at page 736 Adinyira, JSC (as she then was) held that:

“It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…”

See also the case of Aryee vs Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] SCGLR 721 at 733 where the Supreme Court speaking through Benin JSC had this to say:

“It must be pointed out that in every civil trial all what the law required is proof by preponderance of probabilities: See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved”.

The general position of the law is that he who alleges must prove same.In the case of Ababio v Akwasi III [1994-95] GBR 774 at 777 Aikins JSC (as he then was) expounded the position as follows: “The general principle of law is that it is the duty of a plaintiff to prove his case, i.e., he must prove what he alleges. In order words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not, he loses on that particular size.”

The erudite judgment of Ollennu J (as he then was) in Majolagbe vs Larbi [1959] GLR 190 always gives guidance to the courts on how the burden of proof is discharged: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.”

It is essential to establish the burden of proof in this matter. As is trite learning, the Plaintiffs bear the evidential burden to evince sufficient evidence if they are to secure a ruling on the existence or non-existence of a fact. The learned Jurist S.A Brobbey JSC (Rtd), in his book, Essentials of Ghana Law of Evidence at page 28 posits as follows:

“In the normal run of affairs, since the plaintiff is the one asking for something from the defendant, he should be the one who will start the proceedings by giving his testimony. That testimony will show what he wants from the defendant and why he wants the court to order the defendant to give it to him. If he drags the defendant to the court but he fails to lead evidence to establish his claim and the basis of the claim, he cannot have the assistance of the court to get what he wants. In life, one gets nothing from nothing. So it is in law. If the party does not lead evidence to establish the claim or its basis, the court will have no grounds or reason or basis for making any order in his favour. If he leads no evidence…”.

See the following case Duah vs Yorkwa [1993-994]1 GLR 217 “1. (1)For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.”

Preponderance of probabilities which is used synonymously with “balance of probabilities” is the standard of proof required in all civil trials and very rarely in some criminal trials. The Bench Book for US District Court Judges, published by the Federal Judicial Center (March 2000 ed.) restates this principle graphically thus:

“The plaintiff has the burden of proving his (her) case by what is called preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, lead you to believe that what the Plaintiff‘s claims is more likely to be true than not. To put it differently, if you were to put the plaintiff’s and the defendant’s evidence on opposite sides of the scales, the plaintiff would have to make the scales tip somewhat on his or [her] side. If the plaintiff fails to meet this burden, the verdict must be for the defendant whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict”.

[5] The Court’s Evaluation & Analysis of the Evidence

The Court shall determine the main issues as set out above based on the facts and evidence adduced at the trial. Indeed, it is the policy of the law that only those issues that are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them. See the case of Domfe vs Adu (1984-86) 1 GLR 653.

There is an issue emanating from the evidence led before this Court, namely the time that the Defendant was validly married under customary law to the deceased. The parties agree that the Defendant is the surviving spouse of the deceased. There is no dispute over that. However, the Plaintiffs per their evidence before the Court contend that the Defendant was validly married to the Deceased in the year 2014.

The Defendant however contends that she has been married to the deceased from the year 2001. The point of departure between the parties herein is the date of the marriage. It behooved the Plaintiffs to lead evidence to prove this fact, i.e. the burden of producing evidence as well as the burden of persuasion lies squarely on the Plaintiffs and does not shift at any time to the Defendant.

 

 

 

[5.1] Issue 1 -  At what time was the Defendant validly married to the deceased?

How did the Plaintiffs prove this?

The 1st Plaintiff testifying per his adopted witness statement stated that “the Defendant married my late father quite recently in the latter part of 2014. By this time my late father had worked and saved his money for so many years and was even somewhat close to retirement. The Defendant suddenly appeared in my late father's life and is now claiming a whopping 50 percent share in the estate without prejudice to her entitlements in the remaining properties under the PNDCL111 as the surviving spouse of my late father. The 1st Plaintiff tendered in evidence Exhibit E a photograph of a paraphernalia (a face towel) depicting the date the defendant and my late father got married.”

During the cross-examination of 1st Plaintiff by Counsel for the Defendant on 16th January 2024 the following discourse ensued on the issue of the date of the marriage between the deceased and Defendant:

“Q. You have indicated that your father married your mother in 2014, do you still stick to that testimony?

A.   Yes my Lady.

Q.   Who was involved in the marriage between your father and your step mother?

A.   The family head together with other family members.

Q. I am putting it to you that there were specific individuals involved in the marriage between your father and your step mother, who are these?

A. Like I said earlier my father’s family members and the family head together with my step mother’s family members which I may not be specific with their names.

Q. I am putting it to you that you do not know the specific individuals who contracted the marriage and in fact you are incompetent to testify as to the marriage between your deceased father and your step mother.

A. As at that time I was sick so I had always been in contact with the family members who were partaking in the ceremony.

Further cross-examination of 1st Plaintiff by Counsel for Defendant on 18th January 2024.

Q. I am putting it to you that all these period from about 1998 when you were in primary school until you finished secondary school in 2007, your step mother was already living and married to your deceased father.

A.  I disagree.

Q.  You have a step sibling from the Defendant, what is her name?

A.  Isabella Anokwafo.

Q.  How old is she?

A.       She will be 15 years this year.

Q.       If she will be 15 this year, which year was she born?

A.       2010.

Q.       I am further putting it to you that at the birth of your step sibling in 2010 as you say, the Defendant was your father’s wife.

A.       I disagree.

Q.       I am further putting it to you that the Defendant did not just appear in 2014 as you allege in paragraph 34 of your witness statement but that

she was earlier married to your father.

A.       I disagree my Lady.

Q.       You say that your father married the Defendant in 2014, where did your father marry the Defendant in 2014?

A.       In Tema.

Q.       Which place in Tema?

A.       I was not there so I do not know the exact place in Tema.

Q.       You want to tell this Court that you were not present at the marriage in 2014 yet you purporting to testify that your father married your step mother only in 2014?

A.       Like I said earlier on I was sick but I was following the event through communication with the family head in the name of Rev. David Anokwafo and the other family members too.

Q.       I am putting it to you that you have no knowledge as to the marriage of your father to the Defendant and what you are telling this Court is what you have heard elsewhere.

A.       I disagree.

Q. I am putting it to you that contrary to what you have testified that your deceased father married your step mother on in 2014, your step mother was rather married earlier than that.

A.  I disagree.

Counsel for the Plaintiff in his written address filed on 16th May 2024 on the issue of the date of the marriage stated as follows:

“My Lord, on the issue of whether or not aside the interest of Defendant in the jointly acquired properties, the Defendant is entitled to any portion of the estate of the deceased in accordance with the Intestate Succession Law, 1985 (PNDCL 111), it our case that entire estate of the Deceased should be shared under the Intestate Succession Law, 985 (PNDCL111). On page 2 of the record of proceedings Mr. Emmanuel Tome (DW1) stated during cross-examination that it is correct that in the Manfi custom to say that a marriage is only sealed after payment of the Nyornu Ha custom. DW1 had earlier also stated in paragraph 4 of his witness statement that the said Nyornu Ha custom was not paid to seal the purported marriage in 2001…Her answer is an admission that the marriage ceremony was conducted in December 2014 in Bentua’s house at which place the head of family of the deceased was present, as contained in the same page 3 of the record of proceedings. My Lord, we therefore submit that the marriage was conducted in 2014, at which time the deceased had already acquired the properties in dispute.”

Counsel for Defendant in his written address filed on 29th April 2024 on this issue stated as follows:

“Plaintiffs seek to contend that the Defendant was not a wife at the time the deceased person acquired all the properties and that Defendant has no share in the disputed properties on her own and as of right as a joint owner but can do so only under the law of intestacy. 1st Plaintiff tendered in the picture of the towel showing a date in December 2014 and asserts that the Defendant was married only in 2014. Question regarding the marriage of the deceased to the Defendant preoccupied the Plaintiffs cross-examination of the Defendant. Defendant disputed the assertion of being married in 2014 and asserts to the contrary in paragraph 15 of her Witness Statement and paragraph 6 of the Supplementary Witness Statement filed on 9/6/2023 that she married the deceased in 2001. At the trial, the Defendant called Emmanuel Tome (DW1) to corroborate her marriage to the deceased in 2001. In his straightforward and clear testimony, DW1 testified that he was present in September 2001 when the deceased performed the customary marriage rites at Juapong to marry the Defendant. That after performing the “knocking” and with the permission of his family, the deceased performed the “nyↄnu ha” custom which was drink and money. That the deceased “nyↄnu ha” was accepted and in Tongu custom, that constituted the customary marriage of the Defendant to the deceased… My Lady, unlike the Defendant who convincingly testified that she was married to the deceased in 2001, the Plaintiffs have failed to substantiate the claim that the Defendant was only married in December 2014. The 1st Plaintiff did not only lack capacity to lead evidence on the marriage of his parents but was actually ignorant of the celebration of the marriage in fact and was testifying on matters that he did not have personal knowledge of. 1st Plaintiff could not give a consistent answer to the simple question of who was present at the alleged marriage. When questioned about the individuals involved in the marriage ceremony between his late father and stepmother, the 1st Plaintiff provided contradictory answers. According to him, he was not physically present at the ceremony, yet purporting to testify as to the celebration of the marriage: “

What did the Defendant have to say about the date of her marriage to her deceased husband? Testifying per adopted witness statement she stated that she was customarily married to the deceased about 22 years ago, 1999. DW1 (Emmanuel Tome) testified on the date of Defendant’s marriage. According to him, he was present in 2001 when the deceased came to Juapong to seek the hand of Defendant in marriage. He states as follows:

“The late Frank Anokwafo after performing the “knocking”, and with the permission of the family proceed to perform the “nyэnu ha” custom which was drink and money. My family accepted his “nyэnu ha” and he was then asked to pay the dowry later. In Tongu custom, the giving and acceptance of “nyэnu ha” signifies the marriage and Defendant had been customarily married to the late Frank Anokwafo since September 2001.”

Dr Mahama was subpoenaed, and he tendered in evidence Exhibit 14 and his testimony was on the date of attendance of Defendant at his hospital and the fact that his data captured the deceased as a husband of Defendant as far back as 28th September 2002.

Both Defendant and DW1 were subjected to extensive cross-examination on this issue by Counsel for Plaintiff. Counsel for Plaintiff in cross-examining DW1 suggested strongly to him that the ceremony conducted in 2001 at Juapong was a knocking ceremony and that the valid customary marriage was contracted in 2014 when the dowry was paid in the presence of both the deceased and the Defendant head of family. DW1 remained resolute in his responses that the ceremony which took place in 2001 sealed the marriage between the Deceased and Defendant.

The following is extract of the cross-examination of Defendant by Counsel for Plaintiff on the following dates:

Extract of Cross-examination of Defendant on 23rd January 2024 by Counsel for Plaintiff

“Q.     When did you and your late husband married?

A.       The year 2001 I cannot recollect the date.

Q.       Do you know anybody by the name Togbe Bentuah?

A.       Yes I do.

Q.       He is your head of family is that correct?

A.       Yes my Lady.

Q.       In December, 2014 you and your late husband had a ceremony in his house, what ceremony was it?

A.       That ceremony was when he was to bring the remaining dowry.

Q.       So you mean he did not present any dowry in December, 2001?

A.       He presented the remaining dowries.

Q.       Before you married in 2001 was the deceased given a list of dowry requirements?

A.       Yes my Lady.

Q.       But he was not able to present all the dowry on that day?

A.       Yes my Lady.

Q.       So what date was set in the year 2001 for the remaining dowry to be paid?

A.       There was no date set.

Q.       If no date was set why did he then paid the rest of the dowry in December, 2014?

A.       By then he was ready to do that.

Q.       In December, 2014 you did some souvenirs and took some pictures is that not it?

A.       Yes my Lady.

Q.       On the souvenir it was written Frank marries Paulina?

A.       Yes my Lady.

Q.       I am suggesting to you that you got married to the deceased on 14th December, 2014 and not 2001.

A.       That is not true.

Q.       If indeed you were married in 2001, you would not have had a souvenir in 2014 suggesting marriage?

A.       2001 my customary bride price were paid and that was not made public.

Q.       In 2001 who represented the family of the deceased?

A.       He was with his cousin the late Benjamin Boye Akpese.

Q.       You will agree with me that traditional marriage in the Volta Region is done between two families?

A.       Yes my Lady.

Q.       The family of the man and the family of the woman?

A.       Yes my Lady.

Q.       You will also agree with me that the groom alone cannot represent himself alone at the marriage?

A.       Yes my Lady.

Q.       You will also recall that in December, 2014, at the ceremony on Togbe Bentuah’s house the head of the deceased’ family was present?

A.       Yes my Lady.

Q.       He was present because that was the day of the marriage?

A.       My understanding is that, that date was set for the marriage but that day was when he was to present the remaining dowry that he had been asked to bring.

Q.       Was there notice to your late husband’s family that you were getting married in 2001?

A.       That I cannot tell.

Q.       Was there notice to your family that you were getting married?

A.       Yes my Lady.

Q.       Was your head of family present?

A.       No my Lady.

Q.       Why was he not present?

A.       Because the customary marriage was done at Juapong where my father was staying so the head of family was not informed.

Q.       You know by custom a single parent cannot take the bride price of a daughter?

A.       Yes my lady but my father was not alone.

Q.       Who else represented your family?

A.       Mr E.K Tome, Mrs Theresa Afetorgbor and Mr Alfred Afetorgbor, I cannot recollect the rest.

Q.       Do you have any pictures to that effect?

A.       No my Lady.

Q.  I am suggesting to you that you were able to recollect some of the people who were present in 2014 but you cannot recollect the people

present in 2001 because the marriage did not happen in 2001.

A.       I disagree.

Q.       Take a look at this towel and kindly read what is printed on it to the Court.

A.       Frank marries Paulina 13th December, 2014.

 

The towel is already in evidence as Exhibit E

 

Q.       Take a look at this picture and identify the person dressed in the beautiful kente cloth.

A.       Yes it is me.

Q. You will agree with me that if the Deceased had not performed the ceremony of December, 2014, where you claim he presented the remainder

of the dowry you will not have been then married to the Defendant?

A.  That is not true.

Q. You will agree with me that the payment of dowry is very significant in traditional marriage?

A.  Yes my Lady.

Q. And you will also agree that where dowry is not paid a marriage is said not to have been performed?

A.  Yes my Lady.”

From the answers elicited from the Defendant under cross-examination her marriage ceremony was in two parts, in 2001 when the Nyornu Ha was presented8 and 2014 when the dowry was paid. Can it be said that because the dowry was not paid in 2001, the customary marriage rites performed did not result in a valid customary marriage? The answers elicited from Defendant’s on 30th January 2024 seems to find support in the writings of some text writers.

Prof W. C. Ekow Daniels in an article Customary Family Law in Ghana – a literature Review, August 2009 page 7 to 9 delivered himself thus:

“Marriage and divorce customs vary from one traditional area to another in the Volta Region.” In the types of customary marriages in the Volta Region outlined by Prof Daniels in the Volta Region from Bowiri Traditional Area to Anlo, there is the door knocking drink and some token amount and subsequent payment of the dowry. That of Mafi/Tongu was not captured in the article which was the outcome of ascertainment and codification of customary law project.

 

In an article by Godson Ahortor, Marriage, sexuality and moral responsibility among the Tongu Mafi People of Ghana published in the Legon Journal of the Humanities page 71 at page 79, the author stated as follows: “the process and ceremonies on marriage are elaborate and take a considerable length of time. An important aspect of the marriage rites is the coming together of the families of the couple…After initial agreements between the two parties have been made, a day is set for the presentation and acceptance of drinks for the marriage. This is the sign of agreement or recognition of the marriage. Failure on the part of the man in particular to see to the presentation and acceptance of the drinks by the family of the woman would be views as unlawfully keeping the woman in his custody…Therefore to demonstrate one’s social responsibility, gain the respect and integrity accorded married persons and also demonstrate maturity, a man must consider paying his “ahaga” bride price or bride worth even before taking the woman into his custody”

The text writers emphasize on the presentation of drinks as the crucial stage in the validity of marriages of the people of Tongu. It is not the payment of the dowry. From the evidence before the Court the issue was on the year the dowry was paid by the deceased. Can it be said that the validity of the marriage stems from the date the dowry was paid? I do not think so because the requirements of a valid customary marriage as outlined by Ollenu J (as he then was) in the case of Yoatey vs Quaye and In Re Clara Sackitey had been satisfied.

The evidence of DW2 (Dr Mahama) does not satisfy the requirement that a valid customary law marriage was contracted on this date i.e. Exhibit 13.

Furthermore the 1st Plaintiff’s responses under cross-examination on the issue of the date of the marriage were vague. In the case of Giwah vs Ladi [2013-2014]2 SCGLR 1139 at p.1150 the Supreme Court speaking through Benin JSC (as he then was) delivered itself thus:

“Answers given in cross-examination form part of the evidence of a party and should be considered by a court in evaluating the evidence as a whole.”

In judgment, the Court is enjoined to take into account every material fact evident on the face of the record and this includes cross-examination of the parties. In the case of Wood (substituted by) Asante-Koranteng vs Tamakloe & Derban [2007-2008] SCGLR page 852, holding 3 the Supreme Court held that: “in an appeal, the court is required to make its determination by taking into account every material fact evident on the face of the record.”

The Plaintiffs failed to discharge the burden on them regarding this issue. The proper inference to be drawn from all the evidence on record was that apart from the bare assertion of the date of the marriage being 2014 there is no evidence to support it. I find that the deceased married the Defendant in the year 2001. I therefore resolve issue 1 against the Plaintiffs.

I will now turn my attention to Issue 1 (a).

[5.2] Issue 1 (a)

Issue 1(a) Whether or not the properties in dispute, vis (1) 5-bedroom house at Adentan, (2) 4-bedroom house at Kpetoe, (3) 12-unit apartment at Adentan, (4) 2 plots of land at Katamanso, (5) 2 plots of land at Kpetoe, (6) Toyota Land Cruiser Prado, (7) Toyota Highlander and (8) a Toyota Corolla, were jointly acquired by the deceased and the Defendant as matrimonial properties in the course of their marriage?

The real issue germane is whether upon the death intestate of a spouse, his/her estate must devolve in accordance with principles of jurisprudence of equality or under the Intestate Succession Law? That is, does the presumption of joint ownership arises in cases of intestacy? That is the main jurisprudential question to be answered in this case.

It is the Defendant’s Counterclaim that she jointly acquired the above properties with the deceased as matrimonial properties. She therefore has the burden of proof in respect of this issue.

How did the Defendant prove this? Testifying per her adopted witness statement the Defendant asserted that she was married to the deceased for about twenty-two years. They were customarily married in 1999 and at the time of the marriage the 3rd Defendant was a student who lived with them until he completed school, became employed and moved out. The parties cohabited at Madina Zongo, Kaneshie, Roman Ridge and eventually their own property at Adenta.

The Defendant testified per her adopted witness statement as follows:

“At the time we married, I was working at a hotel as a caterer but after the marriage the deceased asked that I stop working in order to concentrate on the family since he did not have the time. I stopped working at the hotel and looked after the home. In addition to managing the home and our daughter, I performed errands for my husband like his financial transactions at banks and anything that he wanted to do but did not have the time. Deceased worked to bring in the resources for the family. I was a dependable wife and my late husband did not have to worry about the home or our daughter. I kept our house clean, washed and ironed his clothing, prepared his favourite meals, satisfied his libido and catered for our daughter while the deceased concentrated on work. For family and social events like funerals and church activities, the deceased asked me to attend on his behalf when there was work pressures.”

It is the Defendant’s further testimony that the parties to the marriage decided to acquire their matrimonial home. The house was built in phases and same was completed around 2015. According to her, because of her deceased husband’s busy schedule she supervised the construction and coordinated every aspect of the building project. The property was completed by 2015 and they lived there until the death of the deceased in the year 2021.

It is the further case of the Defendant that apart from the matrimonial home, the deceased and herself acquired land on which a 12-unit apartment meant for investment was situated. Again, the Defendant was the person who supervised the project. Funds for the project were provided by the deceased, however from purchase of building materials to the supervision and coordination of the building of the apartment was supervised by the Defendant and she was not paid because she felt it was their property.

It is the further case of the Defendant that upon completion of the building she was in charge of the rental as well as maintenance and management of the apartment building. Rent due was paid into an ADB Account or directly to the Defendant. The Defendant contends that the deceased told her that her 12-year-old daughter had been made beneficiary of the ADB Account.

The Defendant stated as follows:

“My lady, my late husband comes from Kpetoe in the Volta Region which is a patrilineal society. The 3rd Plaintiff who claims to be the customary successor is not a beneficiary of any portion of the estate of my late husband. I am not aware of his appointment as customary successor of my late husband.”

The Defendant per her adopted supplementary witness statement testified that after her marriage to the deceased in 2001, it took a while for her to conceive and so sought fertility treatment at Superior Medical Center between 2001 and 2004. During treatment, she furnished the Medical Center with varied information including the relationship between the parties, that they were married and the time of the marriage was 2001 and not 1999 as earlier inadvertently stated.

The Defendant tendered the following exhibits in support of her case:

Exhibit 1                   -          Letter dated 9th March 2021

Exhibit 2                    -          Letter dated 14th April 2021

Exhibit 3                   -          Letter dated 16th March 2021

Exhibit 4 series        -          Letter dated 21st May 2021

Exhibit 5                   -          Letter dated 16th August 2021

Exhibit 6                   -          Letter dated 27th August 2021

Exhibit 7                    -          Letter dated 20th September 2021

Exhibit 8                    -          Photographs of an uncompleted building

Exhibit 9                   -          Lease between Emmanuel N. A. Tawiah and Frank Anokwafo

Exhibit 10                 -          Lease between Ishmeal Mensah and Frank Anokwafo

Exhibit 11 series       -          Receipts of purchases of building materials

Exhibit 12 series      -          Handwritten notes of estimates on the building of the flats

The Plaintiffs contend that the Defendant failed to perform any customary rites required of a spouse during the final funeral rites of the deceased which includes “sr)didi kornu”

The 1st Plaintiff testified per his adopted witness statement as follows:

“All the properties in contention herein were solely acquired by my late father. My late father had toiled for several years saving money towards the acquisition of all these properties in the later part of his life. All the properties are in the sole name of my late father. (Attached herein as EXHIBIT “C” series are copies of indentures covering some of the landed properties of my late father). My late father acquired all these properties through his sole effort and toil and that is the reason he ensured that all the properties bear his sole name. (Annexed herein and marked EXHIBIT “D” are copies of the some of the cars’ documents).

The Defendant married my late father quite recently in the latter part of 2014. By this time my late father had worked and saved his money for so many years and was even somewhat close to retirement. The Defendant suddenly appeared in my late father’s life and is now claiming a whopping 50 percent share in the estate without prejudice to her entitlements in the remaining properties under PNDC Law 111 as the surviving spouse of my late father. (Exhibit “E” herein is a photograph of a paraphernalia (a face towel) depicting the date the Defendant and my late father got married)”.

I shall focus the evaluation of the evidence adduced on whether the properties in dispute were jointly acquired by the deceased and the Defendant as matrimonial properties in the course of their marriage?

Counsel for the Defendant Nelson Atanga Ayamdoo Esq. in his written Address to the Court filed on 29th April 2024 submits that the present litigation is needless because the Defendant widow is merely insisting on her right to an equitable share in jointly acquired properties with deceased which the Plaintiffs have failed to take into account in drawing out the inventory of properties for the grant of letters of administration.

Counsel for Defendant stated as follows:

“Despite spousal property having been clarified and amplified in seminal cases such as Arthur (No. 1) v. Arthur (No. 1) [2013-2014] 1 SCGLR 543, Mensah v. Mensah [2012] 1 SCGLR 391, Adjei vrs Adjei (Civil Appeal No. J4/06/2021 delivered on 21 April 2021, Marfoa vrs Agyeiwaa, Civil Appeal Suit No.: J4/42/2012, delivered on 9 November 2016, Fynn vrs Fynn [2013-2014] 1 SCGLR 727 SC, Mensah vrs Mensah [1998-1999] SCGLR 350 and lastly Anang vrs Tagoe [1989-90] 2 GLR 8, the desperation of the Plaintiffs would not permit them to admit Defendant’s claim. Thus, in addition to the determination of whom to grant letters of administration to, the suit is to resolve whether the deceased solely acquired all the properties on the inventory during the subsistence of his marriage to the Defendant.”

Counsel proceeds to what constitutes matrimonial property as can be gleaned from the case Adjei vs Adjei (Civil Appeal No. J4/06/2021 delivered on 21 April 2021) and states that “it must be shown from the evidence adduced at the trial that the property was jointly acquired during the subsistence of the marriage. The court stated as follows: “The combined effect of the decisions referred to supra is that; any property that is acquired during the subsistence of a marriage, be it customary or under the English or Mohammedan Ordinance, is presumed to have been jointly acquired by the couple and upon divorce, should be shared between them on the equality is equity principle. This presumption of joint acquisition is, however, rebuttable upon evidence to the contrary – (See the Arthur case supra, holding (3) at page 546). What this means, in effect is that, it is not every property acquired single-handedly by any of the spouses during the subsistence of a marriage that can be termed as a ‘jointly-acquired’ property to be distributed at all cost on this equality is equity principle. Rather, it is property that has been shown from the evidence adduced during the trial, to have been jointly acquired, irrespective of whether or not there was direct, pecuniary or substantial contribution from both spouses in the acquisition. The operative term or phrase is; “property jointly acquired during the subsistence of the marriage”. So where a spouse is able to lead evidence in rebuttal or to the contrary, as was the case in Fynn v Fynn (supra), the presumption theory of joint acquisition collapses.”

Counsel further refers the Court to Appau JSC (as he then was) in his concurring opinion in the case of Marfoa vrs Agyeiwaa, Civil Appeal Suit No: J4/42/2012, delivered on 9 November 2016.

Defendant’s Counsel concludes his submission on Issue 1(a) after discussing the legal principles and case-law as follows:

“Even though most of the above-cited cases have been determined in the context of dissolution of marriage by divorce, we submit that the test may be applicable in dissolution of marriage by death as in the instant case. This is because article 22 of the 1992 Constitution which has been the penultimate authority for the distribution of matrimonial property protects the rights of spouses to property acquired during marriage … It is therefore submitted that in view of the substantial contribution of the Defendant to the acquisition of the disputed properties acquired during her marriage to the deceased, she is entitled to a half share of the said properties. Her claim for same is not out of the ordinary but well founded and grounded on the law of distribution of matrimonial property in Ghana… Having established that the Defendant was married to the deceased earlier than 2014, all contentions that Defendant is not entitled to properties acquired or developed prior to 2014 should explode in limine. From the evidence, all properties were acquired and developed during the course of the Defendant’s marriage to the deceased. Defendant is therefore entitled to an equitable share in these properties in her own right and not based on the death intestacy of the deceased under the Intestate Succession Act, 1985 (PNDC Law 111)... In applying the decision to the instant facts, the Defendant is claiming the disputed properties as her share of marital property jointly acquired in the course of marriage and having established her right to claim same as marital property, the whole estate does not devolve to intestacy for her to claim as a surviving spouse. Defendant is entitled to the disputed properties as a joint owner and it is the deceased person’s portion of the jointly acquired properties that would devolve into intestacy for her to additionally benefit as the surviving spouse of the deceased under PNDCL 111. ‘’

Counsel for Defendant further submits that “Even though most of the above-cited cases have been determined in the context of dissolution of marriage by divorce, we submit that the test may be applicable in dissolution of marriage by death as in the instant case.(emphasis mine) This is because article 22 of the 1992 Constitution which has been the penultimate authority for the distribution of matrimonial property protects the rights of spouses to property acquired during marriage.”

Counsel for Defendant submits that a marriage may be dissolved through death. Is that the legal position?

In the case of In re BA Mensah (decd) (substituted by) Bernard Mensah & Barbara Mensah vs Margaret Mensah [2013-2014] 2 SCGLR 1192 at 1212 Dotse JSC (as he then was) delivered himself thus:

“There is absolutely no doubt that the death of the original Petitioner in the matrimonial action would have brought the case to an end. This is because such a cause of action is a personal action and is generally referred to as in personam as a result does not survive the death of a party”.

See also the case of Boafo vs Ababio (substituted by) Mensah [2017-2020] 1 SCGLR 654 at pages 660-662 the Supreme Court speaking through Sophia Adinyira (as she then was) stated as follows:

“We recall that the common law rule of abatement of cause of action upon the death of either a sole plaintiff or defendant was abolished by section 23 of the Civil Liability Act, 1963 (Act 176), which provides as follows:

“23. Survival of cause of action subsisting against a deceased person shall on the death survive

against the estate of that person”

With the demise of the original respondent, the divorce petition automatically abated though whatever claims the petitioner had against the estate of the deceased subsisted. However the question that arises is whether the matrimonial court can proceed with the hearing of the case for the dissolution of the marriage in order to divide the marital property equitably?...Be as it may, our laws on testate and intestate succession either under the Wills Act, 1971 (Act 360) or the intestate Succession Act, 1985 (PNDCL 111), respectively, differ from those of the United Kingdom and the United States of America; and the nature of a claim of right by a surviving spouse to the deceased’s estate depends on whether the spouse died testate or intestate: see section 13 of Act 360, and section 4 of PNDCL111. Under both laws a surviving spouse had an interest in the deceased’s estate and is not required to prove joint ownership. We take note that the petitioner as a surviving spouse is not without a remedy…

We therefore hold that the trial judge erred in law by determining the matrimonial case as the action abated with the death of the original respondent…With due respect to their Lordships, the Matrimonial Causes Act is only applicable to matrimonial causes and other matter connected therewith; and their Lordships erred in making the settlement on the petitioner, as the divorce proceedings abated with the demise of the original respeondent.” Simply put the divorce proceedings terminated with the death of the Respondent.

Black’s Law Dictionary, defines divorce as the legal dissolution of a marriage by a court. Counsel for Plaintiffs Kwame Dei-Tutu Esq in his written Address filed on 16th May 2024 on issue 1a submitted as follows:

“It is therefore our case that the properties in dispute were not jointly acquired by the marriage couple. Rather they were acquired in the sole name of the Deceased, as conceded to by the Defendant. Besides, the indenture attached to witness statements of both Plaintiffs and Defendant clearly reveal that the landed properties were acquired 2008, 2013 and 2015 and we have led evidence to show that marriage between the deceased and the Defendant was conducted at Mr. Bentua’s house in Tema in the presence of family members of parties. The 2015 property though was acquired after marriage between the Deceased and the Defendant, the Defendant herself disclosed in part of paragraph 23 of her witness statement that her late husband built the 4- bedroom house at Kpetoe for himself and his children. My lord, clearly the properties in dispute were acquired by the Deceased before celebrated his marriage with the Defendant…My Lord, on the issue of whether or not aside the interest of Defendant in the Jointly acquired properties, the Defendant is entitled to any portion of the estate of the Deceased in accordance with Intestate Succession Law, 1985 (PNDCL 111), it is our case that entire estate of the Deceased should be shared under the Intestate Succession Law, 1985 (PNDCL 111).”

I agree with Counsel for Defendant that when it comes to issues of property jointly acquired during the pendency of the marriage and upon dissolution of the marriage non- pecuniary contribution of a spouse is considered.

In the case of Mensah vs Mensah [2012] 1 SCGLR 391 the Supreme Court per Dotse JSC (as he then was) held as follows:

“We believe that, common sense, and principles of general fundamental human rights requires that a person who is married to another, and performs various household chores for the other partner like keeping the home, washing and keeping the laundry generally clean, cooking and taking care of the partner’s catering needs as well as those of visitors, raising up of the children in a congenial atmosphere and generally supervising the home such that the other partner, has a free hand to engage in economic activities must not be discriminated against in the distribution of properties acquired during the marriage when the marriage is dissolved.

This is so because, it can safely be argued that, the acquisition of the properties were facilitated by the massive assistance that the other spouse derived from the other.

… JURISPRUDENCE OF EQUALITY PRINCIPLE (JEP)

The Jurisprudence of Equality Principle, has been defined by the International Association of Women Judges in their November, 2006 USAID Rule of Law Project in Jordan as “the application of international human rights treaties and laws to national and local domestic cases alleging discrimination and violence against women.” Such that the rights of women will no longer be discriminated against and there will be equal application of laws to the determination of women issues in all aspects of social, legal, economic and cultural affairs…

Using this principle as a guide we are of the view that it is unconstitutional for the courts in Ghana to discriminate against women in particular whenever issues pertaining to distribution of property acquired during marriage come up during divorce. There should in all appropriate cases be sharing of property on equality basis.”

Counsel for Defendant referred to the cases of Arthur vs Arthur, Adjei vs Adjei and Anang vs Tagoe among other cases. Anang vs Tagoe (1989-90), Mensah vs Mensah (2012), Arthur vs Arthur (2013-2014) and Adjei vs Adjei (2021) were cases on the distribution of spousal property upon divorce. The evolving principles on distribution of spousal property from cases such as Martey vs Quartey (1959) to principle of substantial contribution (Abebrese vs Kaah, 1976) to the principle of equality is equity (Mensah vs Mensah [1989], Boafo vs Boafo[2000] ) to the principle of jurisprudence of equality were applicable upon dissolution of marriage. In Abebrese vs Kaah though the deceased husband had died intestate that was before the passage of PNDCL111 in 1985.

In the cases cited supra, the cause of action had accrued in matrimonial causes as against the issue of intestacy in the present case. These were all matrimonial causes which were waged against the spouse for distribution of property upon dissolution of marriage.

The cases cited by Counsel for Defendant can be distinguished from the present set of facts. I respectfully disagree with Counsel for Defendant when he suggests that death can be another mode of dissolution of marriage. See in Re BA Mensah and Boafo vrs Ababio Supra.

Counsel referred extensively to the case of Marfoa vs Agyeiwaa. In the case of Akua Marfoa vs Margaret Akosua Agyeiwaa, Civil Appeal No. J4/42/2012, 9th November 2016, (unreported) Justice Yaw Appau delivered himself thus:

“Date Bah, JSC in Arthur (No. 1) v Arthur (No. 1) (supra) as follows: “Marital property is thus to be understood as property acquired by the spouses during the marriage, irrespective of whether the other spouse has made a contribution to its acquisition…It should be emphasized that in the light of the ratio decidendi in Mensah v Mensah, it is no longer essential for a spouse to prove a contribution to the acquisition of marital property. It is sufficient if the property was acquired during the subsistence of the marriage.” {Emphasis added} According to her, the above decisions applied to her case as she is entitled to a share of the marital property ex debito justitiae and by implication, the nemo dat quod principle caught up with the deceased testator as he could not have disposed of property of which she had beneficial interest. Since the testator had two wives, this Court should consider what rightly belongs to her under the law… In this light, I find it appropriate to commence our determination of the appeal by looking at the last leg of Appellant’s submissions on the distribution of ‘spousal’ or ‘marital’ property, which is a new issue altogether that the Appellant never raised in any of the two lower courts. Appellant centred all his arguments on the recent decisions of this Court on the distribution of spousal property as spelt out in the Mensah v Mensah case (supra) and later affirmed in the Arthur v Arthur case (supra). This Court derived its strength mostly from article 22 of the 1992 Constitution and other case law in arriving at its decision in Mensah v Mensah (supra) and the others that followed afterwards, which the Appellant has referred this Court to. The whole of article 22 of the 1992 Constitution provides:

(1) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.

(2) Parliament shall, as soon as practicable after the coming into force of this Constitution, enact legislation regulating the property rights of spouses.

(3) With a view to achieving the full realisation of the rights referred to in clause (2) of this article

(a)  spouses shall have equal access to property jointly acquired during marriage;

(b)  assets which are jointly acquired during marriage shall be distributed equitably between the spouses upon the dissolution of the marriage.”

A proper reading of the whole of article 22 of the Constitution quoted above shows clearly that the legislative intent with regard to the provisions under clause (1) of the article in question is different from the one in respect of the provisions under clause (3). Though the two clauses fall under the same article; i.e. article 22, they speak different languages. There is nothing ambiguous about that.

Clause (1) gives constitutional backing to section 13 (1) of the Wills Act, 1971 [Act 360] on the power of the court to make reasonable provision out of the estate of a deceased spouse in favour of a surviving spouse where the deceased spouse died testate but made no such provision. The rationale behind this provision is to avoid hardship being caused to a spouse who wholly depended on the testator during his/her lifetime, but in whose favour no provision was made by the testator either in his lifetime or in his last will and testament. The section does not talk about reasonable provision out of ‘matrimonial property’, or ‘marital property’, or ‘spousal property’, or property jointly acquired during the subsistence of the marriage. It talks about; ‘reasonable provision out of the ‘estate of a spouse’, which presupposes that the estate from which the provision is to be made belongs solely to the deceased spouse. The cardinal principle underlying this section is therefore that the estate must be that of the deceased spouse but not a joint estate acquired by the two. Clause (3), on the other hand, talks about distribution of property jointly acquired during marriage upon the dissolution of the marriage. It talks of distribution of property acquired during marriage upon dissolution of marriage but not upon death. Such property that is to be distributed is called; ‘spousal property’ or ‘marital property’ since it was jointly acquired during the subsistence of the marriage, irrespective of who contributes what or not. The major yardstick for equitable distribution is that the property was acquired by the two spouses in the course of their marriage. The Court, in the Mensah v Mensah case (supra) held: “Common sense … What the law calls ‘marital property’ or ‘spousal property’ is property acquired by a couple during the subsistence of their marriage. When a spouse acquires property solely before marriage, such property cannot be called ‘marital property’ or ‘spousal property’ stricto sensu, to be distributed under the provisions of article 22 (3) of the 1992 Constitution.

It is on record that before applying to the trial High Court for a reasonable provision to be made out of the testator’s estate, Appellant challenged the validity of the testator’s will and lost. The will was therefore declared valid by the High Court and admitted to probate upon proof in solemn form. When the Appellant therefore filed her application in the trial High court, she knew she was making a request under section 13 (1) of the Wills Act and article 22 (1) but not under article 22 (3). The Appellant’s prayer that she should be provided for on the authority of article 22 (3) and the decisions in Mensah v Mensah and Arthur v Arthur (supra), cannot therefore succeed as she has not established the necessary ingredients that call for the application of the principles laid down in those decisions.” (Emphasis mine).

Appau JSC (as he then was) drew a distinction between the principles to be established to make a claim under Article 22 (1) and Article 22 (3) of the 1992 Republican Constitution. In that case, the Appellant’s prayer was for a claim under Section 13 of the Wills Act.

HL Justice Alexander Osei Tutu in his seminal book Essential Themes in Land Law and Customary Law, writing on the scope and limitation of the provision of spousal Property rights under the Land Act at page 232 and 245 delivered himself thus:

“It is common knowledge that the applicable laws in Ghana regulating property rights of spouses in the event of death are the Wills Act of 1971, (Act 360) and the Intestate Succession Law, 1985 (PNDCL111) for person who die testate and intestate respectively. Similarly, in the event of divorce, it is the Matrimonial Causes Act, 1971, (Act 367) which regulates divorce proceedings and the rights of the parties. All these three laws were enacted prior to the coming into force of the 1992 Constitution and are yet to receive any substantial amendment to conform and bring them under the purview of the provisions of the Constitution. It can therefore be said that since Parliament is yet to enact a legislation to deal with property rights after the death of a spouse or during divorce, the raison d’etre of article 22 of the Constitution remains unaccomplished…The legislature needs to be commended for the effort in giving some effect to article 22 of the Constitution. However, it appears that a lot more has to be done to achieve the optimum objective of the constitutional provision. Parliament is still expected to enact a comprehensive legislation that would adequately cover all property rights of spouses including movable properties, and not only properties acquired during the pendency of a marriage. It should cover circumstances of divorce and death also.”

Did the Defendant have a claim pending for her equitable share of the properties in dispute prior to the death of the deceased? No such evidence has been proffered to the Court.

Defendant has testified that the properties in dispute were acquired during the pendency of the marriage, and she assisted in any way she could in the acquisition of the property by the deceased through mostly non-pecuniary means.

HL Justice Afia Serwah Asare-Botwe (JA) in an article Better Off Divorced Than Widowed? stated thus:

“The problem of the distribution of marital or spousal property upon divorce has now been ably resolved by the Courts. The fact of the distribution is not affected by whether or not the parties to the marriage had children. The same cannot be said for a couple parted by death. The distribution of property upon the death intestate of a husband, is governed primarily by the Intestate Succession Law… THE INTESTATE SUCCESSION BILL, 2018

Sections 4, 8, 9 and 10 of the Intestate Succession Bill which is yet to be laid before Parliament seems to deal quite effectively with the issue of marital property.

The said sections provide as follows;

Spouse, child or both entitled to one house

4. (1) Subject to sections 8 and 9, where the estate includes only one house, the surviving spouse is entitled to fifty percent interest in the estate.

(2) Subject to section 8, where the estate includes one house and the surviving spouse partly owns that house, the estate available for distribution shall not include the part owned by the surviving spouse.

(3) Subject to section 8, where the estate includes more than one house, the surviving spouse is entitled to one house and the children are entitled to another.

(4) Where there is disagreement as to which of the houses devolves to the surviving spouse or child, the surviving spouse has priority and the exclusive right to choose any one of the houses.

(5)  Where the surviving spouse is, or the spouse and child are unwilling or unable to make the choice, the court shall determine which of the houses devolves to the surviving spouse or child on application made to it by the administrator of the estate.

Interest of surviving spouse in matrimonial home

8. (1) Where the intestate is survived by a spouse, the surviving spouse shall have a fifty percent interest or share in the matrimonial home.

(2) Where the surviving spouse partly owns the matrimonial home, the estate available for distribution shall not include the part owned by the surviving spouse.

Option to buy out

9.    Where the estate of the intestate consists of only one house and the surviving spouse made a contribution to the acquisition of the house, the surviving spouse shall have the option to buy out the other beneficiaries.

Interest of surviving spouse who is a joint owner

10.   Where the deceased owned other property in addition to the matrimonial home and the surviving spouse owns part of that property, only that part of the property owned by the deceased spouse is available for distribution.

Clearly, the Bill does take cognisance of the fact of marital property in the distribution of intestate property.

CONCLUSION

From the above analysis of the law and the facts in question, it appears a divorced woman is more fortunate whether or not she is childless. This is because she stands to appropriate 50% of the jointly acquired property unless otherwise proven upon the dissolution of marriage which is more than what she would gain from the estate of her deceased husband which in reality may include jointly acquired property as illustrated by the facts in this article.”

The Intestate Succession Amendment Bill which is yet to see the light of day has provisions to address the concerns of spouses such as the Defendant who have a claim against the estate of a deceased spouse. Unfortunately, same has not been passed into law.

Deceased died on 2nd March 2021 so far it is not on record that the deceased died testate but rather died intestate.

Having established these facts of death and date of death it has become uncontroverted with no need for further proof of same. See Fori vs Ayirebi [1961] 1 GLR 627 at 630.

Since the deceased died intestate in the year 2021 then the applicable principle to distribution of his estate is the Intestate Succession Law, 1985 PNDCL111. This is not to say that parties to a marriage cannot jointly contribute towards the acquisition of property intending that the property belongs to both parties.

Ghanaian law recognises ownership of the same piece of real property by two or more persons. Article 1812 of the 1992 Republican Constitution of Ghana states that:“(1) Every person has the right to own property either alone or in association with others”

Section 40(3) of the Land Act, 2020, Act 1036 also acknowledges the legal position that two or more persons may jointly hold property as owners thereof.

Nowhere in the law is there a requirement that such co-owners must in a position of consanguinity or affinity.

I therefore find that the properties in dispute were not jointly acquired by the deceased and Defendant as matrimonial properties during their marriage.

I resolve issue 1a against the Defendant. On the issue whether the Plaintiff is entitled to an equitable share of the deceased; estate or 50% share of the deceased’s estate. Based on the analysis above, I hold that she is not entitled to an equitable share or 50% share of the estate save her interest accruing under the Intestate Succession Law, 1985, PNDCL111. In respect of issue I resolve same against the Plaintiff.

I will deal with issue 1b and 1c together.

 

 

[5.3] Issues 1(b) and 1(c)

Issue 1(b) Whether or not aside the interest of the Defendant in the jointly acquired properties, Defendant is entitled to any portion of the estate of the deceased in accordance with the Intestate Succession Act, 1985 (PNDCL 111)?

Issue 1(c) Whether or not the Deceased having been survived by only the Defendant spouse and children the estate of the deceased devolves entirely unto them?

The Government of Ghana in 1985 passed the Intestate Succession Law, 1985, PNDCL 111 with a view to removing the anomalies in the existing laws relating to intestate succession and to provide a uniform law that will be applicable throughout the country irrespective of whether the deceased comes from a patrilineal or matrilineal community and the type of marriage contracted. The memorandum to PNDCL 111 provides as follows:

“This Act is aimed at removing the anomalies in the present law relating to intestate succession and to provide a uniform intestate succession law that will be applicable throughout the country irrespective of the class of the intestate and the type of marriage contracted by him or her”.

The mischief that PNDCL 111 sought to cure was to provide for surviving spouses who had struggled through thick and thin to acquire properties both movable and immovable with the deceased spouses and lost out when the spouse died due to either the system of inheritance or type of marriage contracted.

The Defendant is entitled to her share of the deceased’s estate under Section 4 of PNDCL111.

Section 4 (1) (a) and section 5 PNDCL111 provides as follows:

“S4 (1) Despite this Act

(a) Where the estate includes only one house, the surviving spouse or the child or both of them is or are entitled to that house, and where it devolves to both the spouse and the child, they shall hold it as tenants in common.

I therefore find that the Defendant is entitled to her portion of the deceased’s estate under section 4 of PNDCL111.

S 5 Intestate survived by spouse and child

(1)  Where the intestate is survived by a spouse and a child the residue of the estate shall devolve in the following manner:

(a)   Three-sixteenth to the surviving spouse

(b)  Nine-sixteenth to the surviving child

(c)   One-eighth to the surviving parent

(d)  One-eighth in accordance with customary law

(2)  Where there is no surviving parent one fourth of the residue of the estate shall devolve in accordance with customary law.

Residue means that part of the intestate estate that does not devolve according to section 3 and 4”.

 

I find that the Defendant and her daughter, Plaintiffs as well as the deceased customary family are entitled to the residue of the estate under section 5 of PNDCL 111. I resolve issue 1c against the Defendant.

[5.3] Issue 1 (d)

(3)  Whether or not the 3rd Plaintiff purporting to be customary successor of the Deceased has capacity to join in the application for Letters of Administration of the estate?

Order 66 rule 13 of CI 47 provides that:

“13. Order of priority of grant where a person dies intestate after enactment of the Intestate Succession Law, 1985 (P.N.D.C.L 111).

Where a person dies intestate on or after the 14th June, 1985, the persons who have beneficial interest in the estate of the deceased shall be entitled to a grant of letters of administration in the following order of priority:

(a) any surviving spouse;

(b) any surviving children;

(c) any surviving parents; and

(d) the customary successor of the deceased”

This means that the customary successor of a deceased is the last in the order of priority for grant of letters of administration.

The Defendant’s plaint was that the 3rd Plaintiff was not the customary successor of the deceased as the deceased hailed from a patrilineal society.

In view of the provision of Order 66 rule 13 (d) of CI 47 consideration of this issue has been rendered moot.

The resolution of the issue of Plaintiffs effectively resolves the case and I do not intend to deal with the issues of capacity of 3rd Plaintiff as raised because the capacity of 1st and 2nd Plaintiffs to maintain the present action has not been impugned.

I find support in the decision of the Supreme Court in Mrs. Vicentia Mensah v. Numo Adjei Kwanko II, Civil Appeal No. J4/17/2016 (14th June 2017) where the Supreme Court speaking through Anin-Yeboah JSC (as he then was) noted at page 7 of the judgment as follows:

“It must, however, be made clear that a court of law is not bound to consider every conceivable issue arising from the pleadings and the evidence if in its opinion few of the issues could legally dispose off the case in accordance with the law.”

[5.4] Relief 3

A declaration that the conduct of Defendant in transferring an amount in excess of GH¢ 1,000,000.00 into her personal account and that of another party and the continuous (sic) collection of rent from the tenants in the deceased’s 12-unit apartment constitute intermeddling.

What constitutes intermeddling?

Order 66 rule 3 of CI 47 is the written law that defines the offence of intermeddling. Order 66 rule 3 reads as follows:

“Intermeddling with property

 1. Where any person, other than the person named as executor in a will or appointed by Court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator and shall in addition be guilty of the offence of intermeddling and liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or to both.”

Rule 3 charges anyone other than an executor or an administrator who takes possession of properties of a deceased person with the responsibilities and obligations of an executor or administrator and in addition be punished if he or she breaches any of the obligations.

See the case of In Re Appau (Decd); Appau v. Ocansey [1993-94] 1 GLR 146 the Court of Appeal per Brobbey JA (as he then was) held as follows:

“The general rule was that since an administrator derived his authority entirely from the appointment of the court, a party who was entitled to administration could not do anything as an administrator before letters of administration were granted to him. Accordingly, a subsequent obtention of letters of administration could not exonerate him from liability for intermeddling in the estate, unless the doctrine of relation back was applied to make the grant of the letters of administration retroactive from the date of death of the deceased so as to validate acts performed on behalf of the estate after his death. But the doctrine of relation back only operated where the action of the intermeddler was for the benefit of the estate. Since the sale of the two vehicles by the respondent was not for the benefit of the estate of the deceased, the doctrine of relation back was inapplicable in the instant case. Consequently, that doctrine could not be invoked as a defence for the respondent’s intermeddling in the estate of the deceased.

(2)  Order 60, r 3 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) was explicit that a person who merely took possession of or administered the estate or asset of a deceased person was liable for intermeddling so long as that person was not an administrator. Accordingly, since it was clear that at the time the respondent took the vehicles and entirely disposed of them he was neither an administrator appointed by the court nor even a successor appointed by the family of the deceased, he was a fortiori liable for intermeddling in the estate within the terms of Order 60, r 3 of LN 140A”.

Given that intermeddling is now a criminal offence and must be prosecuted per the Supreme Court decision in The Republic vs High Court (Commercial Division), Accra Ex-parte Yvonne Amponsah Brobbey (Applicant) and Gladys Nkrumah (Interested Party), Civil Motion No. J5/82/2022, 1st February 202314, the issue of intermeddling may be taken up in the appropriate forum in terms of proof and the requisite remedies in case it is made out. Consideration of the issue of intermeddling has been rendered moot.

[6] Conclusion

Having reviewed all the evidence and taking into consideration my analysis above, it is my conclusion that the Plaintiffs have adduced sufficient evidence to persuade the Court to grant them some of the reliefs they seeks.

I therefore enter judgment on four (4) of the Plaintiffs’ Claim as follows:

1.     I therefore grant Plaintiffs’ relief 1 as follows: I declare that the listed properties 5- bedroom house at Adentan, 4-bedroom house at Kpetoe, 12 unit apartment at Adentan, 2 plots of land at Katamanto, 2 plots of land at Kpetoe, Toyota Land CruiserPrado, Toyota Highlander and Toyota Corolla constitutes part of the estate of Mr. Frank Anokwafo, deceased.

2.     I therefore grant relief 2 in the following terms: I declare that the Defendant’s share in the estate of her late husband is provided for under the Intestate Succession Law, 1985, PNDC Law 111.

3.     I therefore dismiss relief 3.

4.     I dismiss relief 4.

5.     I order the Defendant to file accounts in respect of the commercial properties she has been managing on behalf of the estate of the deceased from 2021 forthwith and if there is any sums due the estate, same shall be offset against her share in the estate.

6.     I dismiss relief 4. I however order the administrators appointed by Court to carry out their duties of administering the Estate of Frank Anokwafo.

7.     I dismiss the Defendant’s Counterclaim as follows:

a.     I dismiss reliefs a, b, c and e of Defendant’s Counterclaim

b.     I grant relief d of the counterclaim in the following terms: I declare that the deceased having died intestate and being survived by the Defendant, surviving spouse, three children and his customary family the estate of the deceased shall devolve in accordance with Intestate Succession Law, 1985, PNDCL 111.

No order as to cost.

 

 

(SGD.)

JUSTICE EUDORA CHRISTINA DADSON (MRS.)

(JUSTICE OF THE HIGH COURT)

COUNSEL:

EDWARD BUGRE HOLDING BRIEF FOR KWAME DEI-TUTU FOR THE PLAINTIFFS PRESENT

PATIRCK GBAGONAH WITH MR. ERNEST ASARE-ASIEDU HOLDING BRIEF FOR NELSON ATANGA AYAMDOO FOR THE DEFENDANTS PRESENT