PREMPEH v. AGYEPONG
1990
COURT OF APPEAL
GHANA
CORAM
- AMPIAH
- AMUAH
- ADJABENG JJ.A
Areas of Law
- Probate and Succession
- Evidence Law
- Property and Real Estate Law
- Civil Procedure
- Conflict of Laws
1990
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
On appeal from the High Court in Kumasi, the Court of Appeal addressed whether an unsigned and incomplete document (exhibit 1) constituted a valid customary will (samansiw) by the late lawyer Joseph Prempeh, who had acquired a Kumasi house in 1978 and allowed his companion, Cecilia Opoku, to occupy it rent-free. After Prempeh’s death in July 1979, Opoku claimed ownership and alternatively relied on a samansiw; the High Court accepted exhibit 1 as a customary will. The appellate court found the June draft was not made in contemplation of death, the July 15 draft was missing a page, and the clerk’s testimony was unreliable, so exhibit 1 did not evidence Prempeh’s intentions. Emphasizing the cardinal rule that wills must reflect testator intent and applying section 49(1) of the Courts Act, the court rejected converting a failed statutory will to a samansiw, refused Opoku’s late amendment to claim under PNDC Law 111, allowed the appeal, declared title and possession in the plaintiff, and ordered rent.
This is an appeal from the decision of the High Court, Kumasi. The plaintiff-appellant (hereinafter called the plaintiff) is the customary successor and the administratrix of the late Joseph Prempeh of Kumasi. While alive, the late Prempeh who was a lawyer, acquired from the First Ghana Building Society a house described as house No. Plot 24, Block B, New Amakom Extension, Kumasi. This was by a deed of assignment registered with the Lands Registry as No. 7455 SN 218/78 and dated 24 April 1978. This is the house in dispute.
The defendant-respondent (hereinafter called the defendant), a widow, was the mistress of the late Joseph Prempeh. While the late Prempeh was alive, he permitted the defendant to live in the disputed house free of charge, and even allowed her to take on tenants. After the death of Prempeh, however, the plaintiff through her lawyer wrote to the defendant requesting her to start paying rent of ¢100 per month for the house she was occupying. In effect she was told that the good days were over. The defendant replied claiming the disputed house as her own; she having bought the house with her own money but having used the late Prempeh as her agent. She said further that she had in fact requested the late Prempeh on many occasions to transfer the house from his name into hers and that, it was through the late Prempeh’s procrastination that the transfer could not be effected before his death. She claims further that in any case, the late Prempeh had in his lifetime made a samansiw in which he had left the house in dispute to her for her life and the remainder to her children.
The two major issues that came up for determination in the trial were whether or not the disputed house was the self-acquired property of the late Prempeh or the property of the defendant and, whether the document (exhibit 1) in which the disputed property was devised to the defendant and her children could be regarded as a valid samansiw capable of transferring the disputed house to the defendant.
The learned trial judge had no difficulty in finding that the disputed house was the self-acquired property of the late Prempeh. He however declared that although the document (exhibit 1) could not pass as a valid statutory will, it constituted a valid samansiw under customary law and that the late Prempeh had by that samansiw validly devised the house in dispute to the defendant. It is against the second part of the judgment that the plaintiff has appealed.
The appeal was a