2004
SUPREME COURT
CORAM
AI Generated Summary
This Supreme Court of Ghana case arose from a dispute over two rent‑free rooms in House No. O.T.77A, Ashanti New Town, Kumasi, occupied by the children of the late Daniel Owusu, Dina and Daniel. The property was built by Madam Afua Mensah, who sold half to A.D. Agboloso, leaving O.T.77A to herself. In Exhibit B, her will, she bequeathed her one‑half moiety “absolutely” to her children, Daniel and Elizabeth Victoria Mensah. Daniel died intestate in 1959; his uterine sister Elizabeth obtained letters of administration, a lease, and changed ownership into her name, and in 1984 sold the whole house to Madam Akosua Agyentoa, who sued to recover possession. The Court held the will created a tenancy in common. Applying PNDC Law 111 to this pending case, the Court ruled that Daniel’s children inherit his half share, so Elizabeth could sell only her half; the other half belongs to Daniel’s children. The Court affirmed the Court of Appeal; the appeal succeeds in part and is dismissed in part.
J U D G ME N T
BAMFORD-ADDO(MRS) JSC:
The appeal before us is against the Judgment of the Court of Appeal dated 19th January 1995. This case originated form the District Court Kumasi when the Appellant herein as Plaintiff issued a writ of summons against the Respondents herein as Defendants for the recovery of possession of two rooms in House No. O.T.77A Ashanti New Town Kumasi which they occupied rent free. The District Court gave judgment on the 19th May 1986 for the Plaintiff and the Defendants appealed that decision to the High Court Kumasi which Court affirmed the District Court's judgment dated 28th July 1987. The Defendants again appealed to the Court of Appeal and the court reversed the High Courts judgment in part, hence this appeal.
The simple facts of the case are that House No. O.T.77 Kumasi was built by one Madam Afua Mensah, who had two children namely Elizabeth Victoria Mensah and Daniel Owusu. During Madam Afua Mensah's lifetime she sold half of the house to one A.D. Agboloso. After the sale the house was numbered as O.T. 77A and O.T.77B and Afua Mensah retained that part numbered O.T. 77A. Madam Afua Mensah died in 1950 leaving a will which was tendered in evidence and marked Exhibit "B". In the will she bequeathed to her son Daniel Owusu and he daughter, Elizabeth Victoria Mensah her portion of the said house. In par 2 of Exh. 'B' the Will she said as follows:
"I give and bequeath to my son Daniel Kwame Owusu and my Daughter Elizabeth Victoria Mensah for their use absolutely my share of one-half (1/2)
undivided moiety of premises situate and known as Plot No 77 in the Odomasi District of Kumasi".
The defendants in the case are the children of Daniel Owusu namely Dina Owusu and Daniel Owusu. After the death of Daniel Owusu's mother i.e Afua Mensah he lived in the house with his wife and children. When Daniel Owusu also died in 1959 intestate, he was succeeded by his uterine sister Elizabeth Victoria Mausah PW1. The latter obtained Letters of Administration in respect of the estate of her deceased brother and also a lease in respect of the house. She also took steps to have the ownership of the house changed into her name at the Kumasi City Council.
When Daniel Owusu died his children i.e. the defendants were too young and so left to live with relatives, but after 16 years they returned to live in their father's house and occupied two rooms which their father had occupied in his lifetime rent free.
In 1984 the plaintiff Madam Akos