ADMINISTRATION OF ESTATES - Letters of administration - Will executed Letters of administration of deceased's personal property obtained - Will known to have
been executed - Purported assignment by administrator of leasehold property
bequeathed to plaintiff - Whether plaintiff entitled to declaration of title Ansah v. Joe
[1961] GLR 395, SC
ANSAH AND ANOTHER v. JOE AND ANOTHER [1961] GLR 395-401
IN THE SUPREME COURT
26TH JUNE, 1961
KORSAH C.J., SARKODEE-ADDO AND AKIWUMI JJ.S.C.
Wills—Claim by beneficiary under will—Allegation by defendants that will disregarded
with acquiescence of plaintiffs—Whether will suppressed.
Administration of estates—Letters of administration of deceased's personal property
obtained—Will known to have been executed—Purported assignment by administrator
of leasehold property bequeathed to second plaintiff—Whether second plaintiff entitled
to declaration of title.
Customary law—Appointment of successor—Capacity of successor to assign family
property.
HEADNOTES
The deceased, J.E. Ansah, made a will dated the 3rd March 1946, appointing the first
plaintiff, his son, W.W. Ansah his successor, "to look after my affairs on demise and it is
my desire that he is not obstructed in this respect". In his will J.E. Ansah bequeathed
leasehold property, plot No. 42 John Sarbah Road, to his customary wife Intsitsi, the
second plaint J.E. Ansah died on the 26th April, 1946, and in June that year the will
which had been deposited in court by the testator was read to the relatives. Thereafter
the will was left in court until 1951. Letters of administration of the personal property of
the deceased were granted to one J.A. Simons, his maternal brother, and to the
deceased's son, the said W.W. Ansah on the 14th August, 1946. J.A. Simons died in
February, 1947, and letters of administration of his personal property were granted on
the 16th June, 1947, to Atta Kwami, his cousin and the original first defendant in his
suit. Thereafter Kwami purported to control the personal properties of both Simons and
J.E. Ansah, and had himself substituted as lessee of plot No. 42, [p.396] John Sarbah
Road, which, with the permission of the Lands Department he assigned to the second
defendant for valuable consideration sometime in 1950.
On the 22nd November, 1952, the court recalled the original grant of letters of
administration of the personal property of J.E. Ansah deceased and ordered letters of
administration with will annexed to issue in place therefor to W.W. Ansah "to administer
the estate in accordance with the terms of the will". In these proceedings Atta Kwami
did not file any defence.
Atta Kwami died in August, 1958, and was substituted by his cousin, Kwesi Joe, the
head of the family, as the first defendant; W.W. Ansah died on the 10th August, 1959,
and was succeeded by his brother I. B. Ansah as first plaintiff.
The plaintiffs claimed as beneficiary and administrator of the will respectively a
declaration of title to plot No. 42 John Sarbah Road in favour of the second plaintiff, the
widow of J.E. Ansah, an account of the rents and profits thereof and damages for
trespass. The defendants alleged that the will was never acted upon "to the knowledge
and with the acquiescence of the plaintiffs". The defendants, however, ignored a
request for further and better particulars with regard to this allegation.
In the High Court, Smith, J. found for the defendants. On the evidence, he could "only
assume that there was some agreement to leave the will in the High Court". Further, he
could not hold that the assignment of plot No. 42 John Sarbah Road to the second
defendant was void because there was no proof that he was not a bona fide purchaser
for value, there was no evidence that he know of the existence of the will, and the
assignment to him was made by a person who had been appointed successor by the
family, although "Atta Kwame was never held out by them to the second defendant or
for that matter to anyone else as the absolute owner of the property". Smith J.
concluded "The only remedy for the widow would appear to be against the successor's
estate".
On appeal,
Held:
(1) the evidence clearly showed that there was no agreement to leave the will in the
High Court, the will was in fact suppressed by the family of the deceased. In any event,
no alleged family settlement would be tenable without proof that the beneficiary under
the will received some consideration in respect of waiving his rights;
(2) neither J.A. Simons nor Atta Kwami could administer the estate of J.E. Ansah, who
died testate; and Atta Kwami could not administer the estate even on intestacy, for on
Simons' death, W.W. Ansah, the co-administrator, became sole administrator;
(3) the plaintiffs are therefore entitled to the reliefs they seek. Under customary law a
successor alone cannot part with family property and at no time was Atta Kwami held
out as the owner of the property with the capacity to assign it. Further, the assignment
was not made with the approval of the beneficiary, the second plaintiff. The maxims
memo dat quod non habet and caveat emptor are therefore applicable to the facts of
this case and it follows that any transaction by the defendants relating to the property is
void.
Obiter: a leasehold interest in land is still in Ghana personal property and as such can
be administered by a person properly holding letters of administration. Nsiah v. Union
Trading Co. Ltd. [1959] G.LR. 79 cited.
[p.397]
CASES REFERRED TO
(1) Gorleku v. Gorleku (1934) 2 W.A.C.A. 82.
(2) Obuobi v. Borley (1934) 2 W.A.C.A. 176.
(3) Nsiah v. Union Trading Co. Ltd. [1959] G.L.R. 79, C.A.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Smith J. in the Land Court, Sekondi delivered on the 20th
May, 1960 (unreported) which had dismissed the claims of the plaintiffs as administrator
of the personal property and beneficiary respectively under the will of J.E. Ansah
deceased, for declaration of title to certain leasehold property in favour of the second
plaintiff, account for rents and profits thereof and damages for trespass. The facts as set
out in the headnote are taken from the judgment of Smith J. and were substantially
adopted by the Supreme Court.
COUNSEL
E. Akufo-Addo with him Gwira for the appellants.
S. Baidoo for the respondents.
JUDGMENT OF SARKODEE-ADOO J.S.C.
He delivered the judgment of the court. This is an appeal from the judgment of the Land
Court, Sekondi, dated the 20th May, 1960, with respect to leasehold premises known as
plot No. 42, John Sarbah Road, in the African Township of Takoradi, bequeathed to the
second plaintiff by the late John Essel Ansah who died on the 26th April, 1946, in his
last will and testament bearing date the 3rd March, 1946, and deposited in the High
Court, Sekondi on the 16th April, 1946. The said plot is comprised in a lease dated 17th
December, 1943, and made between the then Governor of the Gold Coast Colony for
the government as lessor of the one part and the said John Essel Ansah as lessee of
the other part whereby the premises therein contained were vested in the lessee for the
term of 98 years and six months from the 1st October, 1943, subject as therein
appearing.
The plaintiffs' claim as administrators of the personal property and beneficiary of the will
respectively of the said John Essel Ansah, deceased, against the defendants jointly and
severally is for a declaration of title to the said leasehold premises in favour of the
second plaintiff; an account of the rents and profits thereof; and damages for trespass
as per the particulars annexed to the claim.
The defence to this claim is set out in the defendants' statement of defence and reads:
"1. The will referred to in paragraph 2,3 and 4 of the particulars of claim was
disregarded and never acted upon at the time of John Essel Ansah's death to the
knowledge of and with the acquiescence of the plaintiffs.
2. James Alfonso Simons (deceased) was the customary successor of John Essel
Ansah (deceased) and was appointed administrator (not with will annexed) with the
approval and acquiescence of the plaintiffs and the family (according to custom) of John
Essel Ansah (deceased).
3. On the death of James Alfonso Simons the first defendant was appointed customary
successor and granted letters of administration.
4. The 1st defendant as administrator and customary successor administered in good
faith the estate of James Alfonso Simons (deceased) including the estate of John Essel
Ansah (deceased) which was family property.
5. The 1st defendant denies all allegations of fraud and false statement contained in
the statement of claim and the particulars thereto.
[p.398]
6. The 2nd defendant was a bona fide purchaser for value without notice of fraud and
dishonesty.
7. The 1st defendant will contend that the assignment of Plot No. 42 John Sarbah Road,
Takoradi, to the 2nd defendant was valid and not affected by the order of 22nd
November, 1952.
8. The defendants will content that the plaintiffs are barred by laches and
acquiescence".
Subsequent to filing and service of the defence the plaintiffs by their solicitors requested
the defendants to furnish further and better particulars in the terms following:
"You are requested to provide further and better particulars of the several matters and
things hereunder stated arising out of the defendant's statement of defence filed herein.
"1.(a) As to the circumstances in which the will of John Essel Ansah (deceased) was
disregarded as averred in paragraph 1 of the statement of defence.
(b) As to whether and if so, in what circumstances it is alleged that the said will was
disregarded lawfully.
(c) Of the alleged knowledge and acquiescence thereof of the plaintiffs.
2. (a) Of the approval and acquiescence of the plaintiffs alleged in paragraph 2 of the
statement of defence in relation to the appointment of James Alfonso Simons the
administrator of the deceased estate.
(b) Of the custom relied on in the said paragraph.
3. In what circumstances is it alleged in paragraph 4 of the statement of defence that
the estate of John Essel Ansah (deceased) was family property and at what time and in
what manner is it claimed that the same became family property.
4. Of the general denial contained in paragraph 5 of the statement of defence (vide
O.19 rr. 18 8 20).
5. Of the general allegation of laches and acquiescence made in paragraph 8 of the
statement of defence".
The request for further and better particulars was ignored by the defendants, and the
case proceeded to trial without supplying the plaintiffs with the particulars of the points
raised by the defence as to the will being disregarded and never acted upon to the
knowledge of and with the acquiescence of the plaintiffs, and also the allegation of
laches.
No family settlement was pleaded nor proved. The allegation by counsel for the defence
in cross-examination of the first plaintiff that "it was agreed that the Ashanti Road house
(with lorry and gun) should be the property of the children of the deceased - and that the
John Sarbah Road property should become the property of the family" was rejected.
At the hearing of the appeal counsel for the respondents applied for leave to amend
paragraph 1 of the statement of defence to read thus:
"There was a family settlement of the apportionment of the properties at which the
plaintiffs were present and all the members including the plaintiffs accepted".
This application was refused as untenable at that stage before this court. The will was
made known to the family as is clearly borne out by exhibit E (letter dated the 11th May,
1946, from Mr. C.E.M.
Abbensetts to the Registrar, Divisional Court, Sekondi) which reads as follows:
[p.399]
"Dear Sir,
In re J.E. Ansah (Deceased)
"I have been retained by the relatives of the deceased to act for the estate. I
understand that the deceased made a will and I am sending the relatives together with
Mr. J.A. Winney who was a personal friend of the deceased.
Will you kindly open up the will and read it to them and read it to them and at the same
time let me have a certified copy of it to enable me to apply for Probate.
Yours faithfully,
(Sgd.) C.E.M. Abbensetts".
The first original plaintiff and the first original defendant in this suit which commenced
sometime in 1956 have died and have been substituted, but a careful perusal of the
record of the proceedings makes it abundantly clear that the family suppressed the will
wherein the testator appointed his son William Wilfred Ansah alias Esson Kadebi as his
"lawful successor" and made a bequest of the property in dispute to his wife Intsitsi, the
second plaintiff whom he married by native custom.
The manoeuvres of the family, headed by Atta Kwami alias Ngather Kwame, to defeat
the wishes and intentions of the testator culminated in the sale of the property to John
Wilson Gyamfi, the second defendant; and on the facts as admitted and proved, at no
time was Ataa Kwami held out as the owner of the property to deal with it as he did nor
was the sale with the knowledge and approval of the beneficiary, the second plaintiff
who is still alive.
On the 14th August, 1946, letters of administration of the personal property of the
deceased were granted to one J.A. Simons who held himself out as successor and
head of the family of the deceased and the said W.W. Ansah, the maternal brother and
son respectively of the deceased. J.A. Simons died in February, 1947, and letters of
administration of his personal property were granted on the 16th June, 1947, to Atta
Kwami his cousin (the original first defendant in this suit) and he purported to control the
properties of Simons and J.E. Ansah. Atta Kwami thereafter fraudulently represented to
the Lands Department that he was the successor of both his deceased cousins J.E.
Ansah and J.A. Simons and was substituted as lessee; and he was thereafter granted
permission to assign the John Sarbah Road property which he had developed to the
second defendant sometime in 1950.
On the 22nd November, 1952, the court recalled the original grant of letters of
administration of the personal property of J.E. Ansah and ordered letters of
administration with will annexed to issue in place therefor to W.W. Ansah "to administer
the estate in accordance with the terms of the will". In these proceedings Atta Kwami
did not file any defence. There was no opposition.
Atta Kwami died in August, 1958, and was substituted by his cousin Kwesi Joe—the
head of the family—as first defendant. W.W. Ansah died on the 10th August, 1959; he
was substituted by his brother Isaac Brandford Ansah as first plaintiff to whom letters of
administration of the personal property of W.W. Ansah had been granted. [p.400] J.A.
Simons died leaving W.W. Ansah the co-administrator as sole administrator, so that
Atta Kwami could not administer the personal estate of J.E. Ansah even if there was
intestacy; but in this case there was a will which in law speaks upon the death of the
testator.
The deceased in his will requested his said lawful successor to look after his affairs on
demise and it was his desire that "he should not be obstructed in this respect".
It is a settled rule of law that the grant of letters of administration applies to personalty
only and that no real property vests in the person to whom letters are granted—See
Victoria Gorleku v. George Gorleku1: Obuobi v. Yar Borley12. (1934) 2 W.A.C.A. 46 at
p.512.
In Ghana, a leasehold interest in land is still personal property, not real property, and as
such can be administered by a person holding letters of administration - see Nsiah v.
Union Trading Company, Ltd.3
In the instant case however, these considerations are inapplicable as neither J.A.
Simons nor Atta Kwami could administer the estate of J.E. Ansah the deceased who
died testate; in any event, under native customary law a successor alone cannot part
with family property, nor in law would an alleged family settlement be tenable unless a
waiver could be proved upon consideration in respect of the will.
On the evidence we are of the opinion that the learned judge misdirected himself and
erred in assuming that there was some agreement to leave the will in the High Court
and for letters of administration to be taken out as if there was an intestacy; and further
that in view of the fact that the allegation of fraud has not been proved coupled with the
absence of proof to the contrary that the second defendant was a bone fide purchaser
for value, it is not possible to grant the plaintiffs' claim for declaration of ownership. No
one can give that which is not his: nemo dat quod non habet.
It is an erroneous view of the law to hold as the learned judge did that notwithstanding
total lack of title in Atta Kwami, he could vest the property in the second defendant who
bought from him following upon fraudulent representations to the Lands Department.
A purchaser must look out for himself: caveat emptor. He must take precautions for his
own protection - if he does not he "asks for it" and cannot complain if he "gets it". It
follows that any transaction by the defendants relating to the property is void.
In all the circumstances, we are satisfied that the learned judge erred in his findings and
conclusions and his judgment dismissing the plaintiffs' case must be set aside.
[p.401]
The appeal is accordingly allowed and the judgment together with the order as to costs
set aside. In lieu thereof there will be judgment for the plaintiffs against the defendants
jointly and severally in the terms following:
(a) A declaration of ownership of the John Sarbah Road property in dispute in favour of
the second plaintiff.
(b) An account of the rents and profits of the said property up to the date of the
rendering of such accounts, and payment of the total amount to the second plaintiff in
whom title to the property vested as from the death of the testator;
(c) As to damages in view of the fact that the second plaintiff is illiterate and had been
deprived of her bequest for over fifteen years (since April, 1946) through no fault of hers
she is awarded £G300 as general damages.
DECISION
Appeal allowed.
Judgment for the plaintiffs.
FOOTNOTES
1. (1934) 2 W.A.C.A. 82.
2. (1934) 2 W.A.C.A. 176.
3. [1959] G.L.R. 79.