In Re Sasu-Twum (Decd.); Sasu-Twum v. Twum [1976] 1 GLR 23.

JUDGMENT OF ABBAN J

Abban J. The plaintiff, by her originating summons, submitted six questions for determination, and prayed that the court may make declarations as to her rights and those of her children in respect of certain properties of which her deceased husband died intestate. She also asked for directions on the distribution of the said estate of her husband.

The facts of the case which were not in dispute are as follows: The plaintiff and her husband, the late Solomon Sasu-Twum, were on 24 July 1958 married under the Marriage Ordinance, Cap. 127 (1951 Rev.), at the Holy Trinity Cathedral, Accra. After the marriage they set up their matrimonial home in Accra. The husband died intestate on 4 August 1973. He was survived by both parents, four sons of the marriage and the plaintiff. The father, who claimed to have been appointed the customary successor of his deceased son, is the defendant in the present proceedings.

As at the date when the originating summons herein was filed, that is 13 February 1975 the eldest of the four sons, called Daniel Sasu-Twum was sixteen years old while the youngest was six. It can therefore be seen that all the children are still infants. The parties, who had been apparently on friendly terms before the dispute arose, applied to this court for letters of administration in respect of the estate of the deceased: and accordingly, on 16 September 1974 the court issued to them joint letters to administer the estate.

At the time of his death, the deceased was running a shop at house No. D.827/4 Kojo Thompson Road, Accra. The shop contained a lot of goods valued at several thousands of cedis. He also left six dwelling-houses, all in Accra. It was in the course of sharing those properties among those legally entitled to them, that the present dispute reared its ugly head. So that the questions in the originating summons and the declarations sought are mainly in respect of the shares which the plaintiff and her four sons are entitled to so far as the said goods and the six houses are concerned.

In her affidavits and in her oral evidence the plaintiff alleged that she was a certificated teacher (certificate B) before her marriage to the deceased. She continued to teach until 31 July 1970 when the deceased asked her to stop. She did stop and collected her marriage gratuity of ¢816. According to her, she gave this amount to the deceased, at the request of the deceased, as her contribution towards the purchase price of the goods in the shop. She and the deceased then entered into a partnership agreement. Under that agreement, they were to run the shop together as partners and share equally the profits accruing therefrom. The said partnership agreement was exhibited and marked A. In paragraph (7) of her affidavit filed on 13 February 1975 the plaintiff stated:

“Having read the said agreement and purport thereof explained to me, in substance, as the two of us entering into a partnership to carry on the business of importers and traders as equal partners who would share all profits equally, my husband and I signed the said

agreement and my husband’s said friend also then signed his name and the said agreement was dated 17 September 1970.”

By virtue of this agreement, exhibit A, the plaintiff contended that she was entitled to half share of the goods in the shop in her own right, and the remaining half share was to be considered as belonging to the estate of her deceased husband; and being the lawful wife of the deceased, having been married under the Marriage Ordinance, Cap. 127 (1951 Rev.), she and her four sons together were entitled to two-thirds share of the remaining half; while the family of her deceased husband, represented by the defendant, were entitled to one-third share of the said remaining half.

As I have stated, the deceased left six houses; and it was the further contention of the plaintiff that two of the said six houses should not form part of the estate of the deceased for the purpose of distribution. Because the deceased, during his lifetime, showed every intention that those two houses should be regarded as belonging to his eldest son, Daniel Sasu-Twum. One of the two houses was built by the deceased on plot No. C.32, Ring Road Extension North (at times described as North Labone), and it is a government plot. The other house was apparently built on a private land at Kotobabi. These two houses will, hereinafter, be referred to as “Ring Road house” and “Kotobabi house,” respectively.

The defendant, unlike the plaintiff, did not lead oral evidence. In his affidavit, the defendant denied that the goods in the shop were jointly owned by the plaintiff and the deceased. He contended that the partnership alleged by the plaintiff was never registered and was therefore of no legal validity. He also denied that the two houses were advanced to the eldest son, and contended that those two houses and all the goods in the shop should be regarded as forming part and parcel of the estate of the deceased.

Out of the six questions set out in the originating summons, I think only two of them are very important. The remaining four are really subsidiaries and they would only arise if all those two questions were to be answered in the plaintiff’s favour. The said two questions can be found in paragraphs 1 (i) and (iv) of the originating summons. They are as follows:

“1 (i) Whether or not the partnership agreement dated 17 September 1970 and made between the plaintiff’s deceased husband, Solomon Sasu-Twum, of the one part and the plaintiff of the other part confers upon the plaintiff one moeity in the business of trading carried
on by her said deceased husband and herself during his lifetime and continued by her for some time after the death of her husband.

(iv) Whether or not in distributing the immovable property forming part of the intestate’s estate regard should be had to those in respect of which there exists a strong presumption of a trust in favour of the eldest child of the intestate . . .”

I will first consider question 1 (i) which, obviously, is in respect of the goods in the shop. It should be borne in mind that it is not the shop itself

which is in dispute. The deceased carried on the business of buying and selling in the shop numbered D.827/4 Kojo Thompson Road, which is owned by someone else; and the deceased, according to the evidence, was only a tenant of that shop. It is the business which the deceased carried on in that shop which is in dispute.

On the plaintiff’s own showing, at the time the deceased bought the business on 26 June 1970, she was still teaching. She had not resigned and had not therefore got her marriage gratuity of ¢816.00. So that the amount of ¢816.00 could not have formed part of the purchase price of the business. I therefore find that the business was bought by the deceased alone without any financial contribution from the plaintiff; and the deceased became the sole owner of the business long before the plaintiff resigned from the Teaching Service. Indeed, at the time the deceased purchased the business, he was already owning houses from which he was collecting rents. He was, from all indications, affluent at that time and I do not believe that the plaintiff did advance the deceased any money in connection with the business.

However, did the plaintiff and her deceased husband ever carry out the terms of the partnership agreement at all? The partnership agreement is a very simple document, consisting only of three clauses. I will set them out in extenso. They are as follows:

“This indenture made the 17th day of September, 1970 between Solomon Sasu-Twum of House Number C. 1304/12 Kotobabi, Accra of the first part, Mrs. Evelyn Sasu-Twum of House Number C. 1304/12 Kotobabi, Accra of the second part, whereby it is agreed that the parties hereto (hereinafter together called the partners) shall be partners in thecbusiness of general merchants, importers and exporters and manufacturers’ representatives upon the termschereinafter contained namely:

1. The partnership business shall be carried on under the firm name of S. S. Twum & Sons at Accra or such other place or places as the partners may approve.

2. The partners shall open and maintain accounts in the partnership name at Ghana Commercial Bank, Accra, Barclays Bank or such other Banks that the partners may from time to time determine.

3. In all other respects the provisions of section 35 of the Incorporated Private Partnerships Act, 1962, (Act 152) shall apply to the partnership. This witness the hands of the parties hereto the day and the year first above written.”

(The emphasis is mine.) On 17 September 1970 when the above agreement was entered into, the deceased, as I have found, was the sole owner of the business and had been owning the business for some time. The agreement did not refer specifically to this particular business of the deceased. Nevertheless, the plaintiff said it was in respect of this very business that they entered into the partnership agreement and they were to share profits equally. But, from the evidence, I find that from the time the business was

bought up to the time the husband died, the business was never, at any time, ran in or under the partnership name of S. S. Twum & Sons. The business was carried on in the name of another company of which the plaintiff was neither a member nor a shareholder; and that other company sent annual returns on the business to the Registrar-General: see exhibit E.

Furthermore, no partnership account was ever opened and maintained in the name of any partnership in any bank in Ghana as stipulated in clause (2) of the agreement. The evidence of the plaintiff, again, showed that the profits accruing from the business were never shared between the plaintiff and the deceased in accordance with clause (3) of the partnership agreement or at all. In fact, the plaintiff was never paid any portion of the profits and she never insisted or demanded that she should be paid a share of the profits. I think the plaintiff did not demand a share of the profits from the business because she knew herself that she was not part-owner of the business. In my view, the deceased and the plaintiff, even though they executed the partnership agreement, exhibit A, never intended to carry out its terms and they, in fact, never carried out the said terms. The so-called partnership, for all practical purposes, was non-existent. I therefore hold that no partnership business was ever carried out by the plaintiff and the deceased in connection with the business bought by the deceased; and that the goods in the shop never belonged to any partnership.

It is true that the plaintiff assisted the deceased in selling the goods in the shop; but the fact still remained that she had no interest, financial or otherwise, in the goods and that the trading business was never carried out in the name of, or as belonging to, any partnership, called S. S. Twum & Sons. She started assisting in July 1970 after she had resigned from the Teaching Service. Practically a year after that date the deceased put up a house in the plaintiff’s home town and donated it to her. This piece of evidence came from the plaintiff herself. One cannot therefore say that the plaintiff did not derive any benefit from the helping hand which she gave to her deceased husband in the running of the business.

I must say that the contents of the inventory, which both the plaintiff and the defendant filed when they applied for the letters of administration, have convinced me beyond every doubt that the deceased continued to be the sole owner of the business up to the time of his death, notwithstanding the partnership agreement. It was upon that inventory that the court granted the parties joint letters of administration. A glance at the inventory revealed that the goods in dispute were listed in the said inventory “as stock in trade.” The plaintiff, in an affidavit attached to the said inventory, swore that all the properties itemised in the inventory including the “stock in trade,” were the self-acquired properties of the deceased. Is this not a clear admission on the plaintiff’s part that she never, at any time during the lifetime of the deceased, considered herself and was never also considered by the deceased - as part-owner of the business?
Both counsel argued out exhaustively, the legal implications of the failure of the deceased to register the partnership under the Incorporated

Private Partnerships Act, 1962 (Act 152), and cited a number of authorities. I will refer to some of those authorities in due course. I do not think it is necessary to set out in detail the arguments of both counsel in view of my findings above.

In brief, learned counsel for the defendant submitted that since S. S. Twum & Sons was never registered under Act 152, it was unlawful for it to engage in business of any kind, and that the rights of any of the parties under the partnership agreement, exhibit A, could not be enforced. Thus, the plaintiff, submitted counsel, was not entitled, under section 9 of Act 152, to enforce any of the terms of the partnership agreement. Learned counsel for the plaintiff conceded that the partnership was never registered. The deceased had hoped to register it; but, in the long run, his said hope never materialised. All the same, learned counsel for the plaintiff submitted that irrespective of the absence of registration, the partnership existed and did business, and the partnership agreement was not illegal. So its terms were enforceable as between the parties to the agreement.

I should remark that the plaintiff is an educated person and she was aware of the existence of the Incorporated Private Partnerships Act, 1962 (Act 152), and must be taken to have been aware of its provisions. The plaintiff and the deceased, in fact, referred to some of the provisions of the said Act in the partnership agreement. So that the plaintiff and the deceased knew all the time that it was unlawful, under Act 152, to carry on business in the name of S. S. Twum & Sons without first registering it; and it is clear to me that because they did not want to take any risk, they never intended, and never attempted, to put into operation any of the terms of the partnership agreement until the partnership itself was duly registered. If that was not the case, then why is it that they did not, after executing the agreement, change the sign board on the shop from S. S. Twum & Sons Ltd. to S. S. Twum & Sons but allowed the old sign board of S. S. Twum & Sons Ltd. to remain on the shop up to the time of the death of the husband and even up to today? Or why did they not, for the time being, open partnership account in the name of S. S. Twum & Sons or share the profits accruing from the business as specified in clauses (2) and (3) of the agreement, while waiting for the registration to go through?

In my opinion, this conduct on the part of the plaintiff and the deceased is a clear proof that they never intended the said partnership agreement to be operative until and unless the name, S. S. Twum & Sons, was duly and properly registered as a partnership under Act 152. Since the partnership was never in fact registered, the terms of the partnership agreement never also came into operation. Consequently, the rights and the obligations of any of the parties thereto could not and cannot be enforced. If, on the other hand, the partnership agreement really took effect from 17 September 1970, the date of its execution, and its terms were put into operation by the plaintiff and the deceased by carrying on business in the name of S. S. Twum & Sons, despite their failure to register S. S. Twum & Sons as a partnership, then I am afraid, the plaintiff and the

deceased wilfully conducted themselves in direct breach of the provisions of section 4 of Act 152; and in that case, I agree with learned counsel for the defendant that this court should not lend its aid to the plaintiff. Section 4 (1) of the Incorporated Private Partnerships Act, 1962 (Act 152), provides that:

“After the expiration of three months from the commencement of this Act, it shall not be lawful for a partnership to carry on business unless the firm shall have been duly registered in accordance with section 5 of this Act and not struck off the register under section 51, 52 or 53 of this Act.”

(The emphasis is mine.) A contract to engage in a partnership business, like exhibit A, is ostensibly a valid contract. But an illegality may defeat such a contract. The illegality may arise by statute or by virtue of the principles of common law.

In the present case, the illegality which exhibit A faced arose from the contravention of the provisions of section 4 (1) of Act 152 as stated above. The plaintiff and the deceased failed to register the partnership and the plaintiff’s story, if accepted, meant that they carried out the terms of the agreement when they knew they had not registered the partnership. On the true construction of the provisions of Act 152, partnership business is statutorily forbidden unless the partnership is registered in accordance with the provisions of the said Act. That is to say, the plaintiff and the deceased were statutorily forbidden to carry out the terms of the agreement and generally perform the agreement, exhibit A, without first complying with the provisions and the conditions as regards registration.

Thus, as I have already said, if the plaintiff’s evidence is true then, on her own showing, she and the deceased committed an illegal act. They contravened the provisions of Act 152; and, in my view, the contravention concerned an act essential to the contemplated execution of the agreement. In other words, their failure to comply with the requirements of Act 152 made the performance of the agreement illegal, and the illegality affected the very core of the agreement. The agreement was therefore unenforceable: see the statement of Scrutton L.J. in Anderson Ltd. v. Daniel [1924] 1 K.B. 138 at p. 149, C.A. In any case, the consequences of contravening the provisions of Act 152 have been spelt out in section 9 of the said
Act which states as follows:

“9. (1) In the event of default in complying with section 4, 5, 7 or 8 of this Act,

(a) every partner shall be liable to a fine not exceeding five pounds [ten cedis] for each day during which the default continues;

(b) the rights of the firm concerned and of the partners therein arising out of any contract made during such time as the default continues shall not be enforceable by action or other legal proceedings.”

(The emphasis is mine.)

The proviso to section 9 (1) of Act 152 does not apply to the present

case. The implications of the above provisions are clear. If the plaintiff and the deceased did carry on business in partnership under the name S. S. Twum & Sons as stipulated in clause (1) of the agreement, exhibit A, then they were in breach of section 4 (1) of the said Act and were therefore subject to the penalties and the disabilities prescribed by section 9 (1) of Act 152; and also neither the plaintiff nor her husband could enforce his or her rights arising out of the said agreement, so long as the name of the partnership, S. S. Twum & Sons, continued to be unregistered. In the circumstances, I hold that the plaintiff cannot rely on the partnership agreement to claim a half share of the goods in the shop.

I now come to the houses. The deceased built six houses during his lifetime. But as I have already indicated, the dispute is about only two of them - the Kotobabi house and the Ring Road house. The Kotobabi house was built in 1967. In the case of the Ring Road house, construction began in January 1972 and was completed in May 1973. The husband died barely two months after its completion and the certificate of habitation was collected by the plaintiff after the death of the husband.

The plot on which stands the Ring Road house is a government land, and the plot was leased out to the deceased by the Lands Department. The plaintiff could not produce the original application which the deceased made and as a result of which the said plot was granted, because the Lands Department, according to their letter, exhibit C, could not trace their file on this plot. However, there was overwhelming evidence that the deceased applied for the plot in the name of his eldest son, Daniel Sasu Twum alias Daniel Koranteng. Exhibit B was of particular interest. It was a letter, dated 12 May 1961, which the Lands Department addressed to “Daniel Koranteng, P.O. Box 5684, Accra.” The letter referred to an application supposed to have been made by Daniel Koranteng and stated as follows:

“Sir,

Accra Ring Road Extension North Residential Area Plot No. C.32

I have the honour to refer your above-quoted application for a lease of a plot in a Government Residential Area in Accra. The enclosed plan No. LD.4691/34702 shows by red verge the location of the plot under consideration for leasing to you. The terms proposed for the lease of this plot will be as follows: [After outlining the terms of the proposed lease, the letter concluded]: Please complete the appropriate part of the attached Form A and return it by registered post to reach me not later than 1st June, 1961 informing me whether this proposal is accepted to you or not. If I do not hear from you by that date I shall assume that you are not interested.

I have the honour to be
Sir,
Your obedient servant.
(Sgd.) K. R. Quist
Senior Lands Officer.

Daniel Koranteng,
Post Office Box 5684, Accra.”

It is to be noted that the name of the deceased never appeared anywhere in the above letter, even though it was he who in fact made the application for the plot. Thus, the only conclusion that I could come to was that the deceased used the name of his son, Daniel Koranteng, in making the application for the grant of the plot, and the Lands Department offered or granted the lease to the deceased in the name of Daniel Koranteng. I find from the receipt, exhibit F, that the deceased paid to the Lands Department a development fee of ¢400 also in the name of Daniel Koranteng. Again, the building plans of the house were all caused to be made in the name of Daniel Koranteng; and the Accra City Council issued the building permit, exhibit L in respect of those plans in the name of that son. On the completion of the house, the deceased obtained a certificate of habitation in the name of the son.

The Kotobabi house was also put up in the name of that son. Hitherto, every necessary document about that house was prepared in the name of Daniel Sasu Twum, the other name of Daniel Koranteng: see exhibit K. On the top of the site plan of the land the following words were written: “Site plan. Property of Daniel Sasu Twum situate at Kotobabi, Accra.” The building plans, submitted to the Accra City Council for approval, were captioned as follows: “Proposed building plans for Daniel Sasu Twum to be built at Kotobabi.” The deceased eventually applied for and got the building permit for that Kotobabi house also in the name of Daniel Sasu Twum.

On these facts, learned counsel for the plaintiff contended that the father, immediately before his death in 1973, held the two houses in question in trust for Daniel Koranteng alias Daniel Sasu Twum; and that no resulting trust could be inferred on behalf of the father. Relying on several authorities, learned counsel submitted that a presumption of advancement arose in favour of the son and that no subsequent acts or declarations of the father should be allowed to rebut the said presumption. Learned counsel for the defendant thought otherwise. He argued that for the trust to be enforceable, the father should have expressly declared himself a trustee of those two houses in favour of the son; and the absence of such express declaration by the father negatived any intention on his part to advance the two houses to the son as a gift.

The law as to presumption of advancement and resulting trust is well established. It is the settled principle of law that where one purchases a property and causes the legal estate in that property to be conveyed in the name of another who provided none of the purchase price, there is a rebuttable presumption that the purchaser of the property intended that that other person should not enjoy the beneficial interest, but should hold the legal estate as a trustee for the purchaser. In the absence of evidence indicating an intention on the purchaser’s part of not appropriating to himself the beneficial interest, the law will presume that the purchaser intended to keep the beneficial interest for himself and a resulting trust will be
declared in his favour. In Dyer v. Dyer (1788) 2 Cox Eq.Cas. 92, Eyre C.B. at p. 93 said: “The clear result of all the cases . . . is, that the trust of a legal estate....results to the man who

advances the purchase-money.” The same view was expressed in the Australian case of Wirth v. Wirth (1956) 98 C.L.R. 228. At p. 235, Dixon C.J. said:

“It is or may be important to bear in mind that we are not dealing with a purchase in the name of another person. Where a purchase was made in the name of a stranger who provided none of the purchase money the law was clear from a very early time that a resulting trust was presumed and the stranger could take beneficially only if he proved affirmatively that it was so intended.”

However, the presumption is the other way round in the case where the person in whose name the legal estate was conveyed is the wife or the child of the purchaser or a person to whom the purchaser stands in loco parentis. A father is under an obligation to support or make provision for his child. So where the father takes a conveyance of property in the name of his child, as in the present case, there will be a presumption of advancement in favour of the child. In other words, there will be a presumption that the father intended to part with both his legal and beneficial interest in the property to the child and that the property was intended to be a gift to the child: see Shephard v. Cartwright [1955] A.C. 431, H.L. and Quist v. George [1974] 1 G.L.R. 1.

In the instant case, after a careful examination of the evidence, I find that the deceased deliberately and intentionally put those two houses in the two names of his eldest son, and he did not do so merely for convenience. In my view, the father’s conduct raised a very strong presumption of advancement in favour of that son. That is the father put those two houses in the name of the son because he intended to make provision for that son; and the defendant had been unable to offer any other reason why the father should have done so. It was suggested by learned counsel for the defendant, in the course of his address, that since the father had three other infant children, even younger than Daniel, it was not only unlikely but was also most unreasonable that the father would provide for only Daniel to the exclusion of the other three; and that the court must put an equitable construction on the conduct of the father and in such a way that all the four children will benefit from the two houses.

I think this is not a bad suggestion at all, but unfortunately I cannot accept it; because, in the first place, any such construction as suggested will be wholly against the weight of evidence. The father lived for years after he had caused the documents on the two houses to be prepared in the name of Daniel; and so he had every opportunity to effect any change and have the houses transferred into the joint names of all the four children. Yet he did not do so. He must therefore be taken to have deter- mined that they should stand in the name of Daniel only and to be enjoyed solely by him. Secondly, in law there is nothing to prevent a father advancing one child at the expense of the other children, so long as there has been no duress, fraud or undue influence; and furthermore, the law does not put it upon the child or on the person alleging the presumption of advancement to prove the reasonableness of the gift. The act of

advancement is one within the father’s right, however unreasonable or unjust towards the others it may appear: see Northern Canadian Trust Co. v. Smith [1947] 3 D.L.R. 135, C.A.

The burden of rebutting the presumption of advancement in favour of a child lies on the party who disputes the advancement; and in the present case, the defendant who disputed the presumption failed to rebut it. There was no evidence that the father, at the time he caused the houses to be put in Daniel’s name, made any statements which tended to indicate that he never really intended to advance those houses to Daniel. Of course, there was evidence that on the completion of the Kotobabi house, the father occupied it with the plaintiff and the children, but he later moved out and let it out to tenants. He collected the rents and made use of the same; but in my opinion, those subsequent acts and dealings of the father in relation to the house were inadmissible to rebut the presumption.

At any rate, they cannot be looked upon or regarded as evidence sufficient to rebut the presumption. Evidence in rebuttal of presumption of advancement must be strong, such as a contemporaneous – not subsequent - declaration or act of the father manifesting a clear intention that the child was to hold as a trustee: see Re Gooch; Gooch v. Gooch (1890) 62 L.T. 384 and Warren v. Gurney [1944] 2 All E.R. 472, C.A. So that even if the said subsequent acts of the deceased were admissible, they would be of no value and would have no weight sufficient to offset the presumption, especially because they could not be a guide to his intentions. In Northern Canadian Trust Co. v. Smith (supra) at p. 146, William C.J.K.B. whose judgment was affirmed on appeal said:

“If I had found that Walter John Smith had bought the house property with his own money and caused the title to be taken in the son’s name, the presumption would be that he intended to advance the son – especially if he were an infant, as he was when the house was bought in 1939 - and there would have been no resulting trust in favour of the father: 17 Hals., 2nd ed., p. 677, s. 1403. Such a presumption may be rebutted by evidence of a contrary intention, but there is no such evidence before me. The facts that Smith and his family occupied the premises rent free, that Smith improved the property, that Mrs. Smith - as she said – spent money on decorating the house, are not evidence to rebut the presumption . . .”

(The emphasis is mine.)

I therefore hold that the presumption of advancement ought to prevail. In the circumstances, I am of the opinion that the deceased intended that his eldest son, Daniel, should take the two houses as a gift and, accordingly, I declare him the beneficial owner in respect of those two houses. Consequently, the two houses should not form part of the estate of the deceased for the purpose of distribution. Daniel is still an infant and since the death of the father the plaintiff, who is Daniel’s natural guardian, has been looking after Daniel and the other three children. From all indications, the plaintiff appears to be a responsible mother. I therefore order that the plaintiff should take the two houses and hold them as a trustee for
Daniel.

In view of the above findings, the properties which will form part of the estate of the deceased, for the purpose of distribution are: the four remaining houses, all the goods in the shop, any money in any bank or elsewhere and any other property, personal or real, left by the deceased and some of which were disclosed in the inventory which I have already made mention of. The distribution should be among the plaintiff, the four children and the family of the deceased, represented by the defendant. Since the deceased was married under the Marriage Ordinance, Cap. 127 (1951 Rev.), the

“devolution of his estate must be as laid down in section 48 of the Marriage Ordinance: that is, one-third devolves according to the native customary law, and two-thirds is to be distributed according to the law in force in England on the 19th November, 1884,” namely, the Statute of Distribution, 1670 (22 & 23 Cha. 2, c. 10): see Coleman v. Shang [1959] G.L.R. 390 at p. 409, C.A.

I therefore declare that the defendant is entitled to one-third share of the properties described above, and he takes it on behalf of the family of the deceased. The plaintiff is entitled to one-third of the remaining two-thirds, that is two-ninths, in her own right as a widow of the deceased; and her four infant children are entitled to four-ninths in equal shares. Again, I order that the plaintiff, after the distribution, should take the four-ninths belonging to the children and hold the same in trust for them.

I will at this stage, make the following very important observations. The plaintiff in paragraphs (10), (11) and (12) of her affidavit, filed on 13 February 1975, stated, inter alia, that after the death of her husband, she and a relative of the defendant, carried on the trading business in respect of those goods with the consent of the defendant; and they managed “not only to pay to suppliers of goods in settlement of goods supplied to the intestate, the sum of ¢107,000.00, but also paid out of the proceeds of the sale of goods at the request of the defendant various sums including ¢1,000.00 to the defendant, ¢1,500. 00 to Dr. Twum, the intestate’s brother ... and again, ¢500.00 to the defendant” allegedly “for expenses in connection with the memorial service and commemoration of the first anniversary of the death of the intestate.” The defendant in paragraphs (4) and (5) of his affidavit filed on 18 March 1975 unequivocally admitted the plaintiff’s said paragraphs (10), (11) and (12). The following is precisely what the defendant stated in his said paragraphs (4) and (5):

“(4) Paragraphs (1), (2), (3), (4), (9), (10), (11), (12), (14), (15), (17) (18), (19) and (21) of the plaintiff’s affidavit are not disputed.

(5) With regard to paragraph (10), I agreed together with plaintiff that she should run the shop with the assistance of Yaw Twum so that the shop’s suppliers be paid.”

(The emphasis is mine.) In all fairness to the other beneficiaries of the estate, the defendant must account for the amount, for neither he nor any member of the family of the deceased was entitled to take moneys from the shop in the way it was done. The total amount was ¢3,000.00 and

I order that the defendant should refund to the estate, forthwith, the said amount with interest, which I assess at five per cent per annum, calculated from June 1974 up to the date of this judgment.

My next observation is about the closure of the shop. I find that in the early part of July 1974, despite the profits which were accruing from the sales of the goods, the defendant demanded from the plaintiff the keys to the shop and the wholesale. When the plaintiff refused to hand them over, the defendant placed extra padlocks on the doors of both the shop and the wholesale, making it impossible for the plaintiff and the defendant’s relative to enter. The defendant by paragraph (4) of his affidavit, already referred to, admitted that he was written to by the plaintiff’s solicitor in “a polite and conciliatory language and tone urging” him to “remove his padlocks to enable” the plaintiff “run the shop for the benefit of all concerned.” Surprisingly, the defendant refused to accede to those entreaties, and the shop remained closed and has remained closed up to date.

I think the defendant’s conduct of locking the shop was uncalled for. The shop could have made a lot of profit, having regard to the fact that within a few months in which the plaintiff and the defendant’s said relative managed the shop they were able to pay ¢107,000.00 to those who had supplied goods to the intestate and ¢3,000.00 to the defendant himself and his relative. I find that the shop, and for that matter the estate, has incurred financial loss due to the unreasonable conduct of the defendant, who is a co-administrator, and that that loss must be borne by the defendant or charged to his account.

The plaintiff in paragraphs (3) and (4) of the originating summons asked for directions on various matters. I will set out those paragraphs:

“(3) Further that this honourable court may give directions on the distribution of the four immovable properties forming part of the intestate’s estate in accordance with valuations of the said properties carried out by a chartered surveyor appointed by the joint administrators of the estate of the intestate, namely, the plaintiff and the defendant, as the said administrators are unable to agree on the distribution of the said properties among the persons entitled under the said intestacy.

(4) That this honourable court should give such further order or orders as to it may seem fit.”

The parties are administrator and administratrix of the estate, and from the evidence it is clear that they do not see eye to eye with each other. There is already bad blood between them; and I can foresee the situation becoming worse after the present proceedings. From my experience in these administration matters and from what I have gathered from the various affidavits filed in the proceedings, the present dispute appears to be just the beginning of long and expensive litigation between the parties concerning the estate; and, in the long run, it will be the children who will

suffer most. Such a situation must be prevented by all means, and the estate ought to be expeditiously wound up; but that objective cannot be achieved if its administration remains in the hands of the parties herein.

I have given anxious and careful consideration to the whole case and I have come to the conclusion that the best solution to the problem, and especially to safeguard the interest of the children, is to revoke the letters of administration granted to the parties and then appoint a neutral person to take over the administration and distribute the estate. Section 79 (3) (ii) of the Administration of Estates Act, 1961 (Act 63), provides that:

“(3) The court may— . . .

(ii) if by reason of the insolvency of the estate of the deceased or of any other special circumstances, it appears to the court to be necessary or expedient to appoint as administrator some person other than the person who, but for this provision would by law have been entitled to the grant of administration, notwithstanding anything in this Act, appoint as administrator such person as it thinks expedient, and any administration granted under this provision may be limited in any way the court thinks fit.”

(The emphasis is mine.)

I consider the situation here as a special case and I will, accordingly, exercise my discretion under the above section and appoint another person to administer the estate. In the circumstances, I revoke the joint letters of administration granted to the plaintiff and the defendant on 7 May 1974. The senior registrar of this court, Mr. T. G. Awuku, is hereby appointed the administrator of the estate with full powers to distribute the assets according to the terms of this judgment and generally to wind up the estate.

The plaintiff and the defendant should file their statement of account in respect of their administration within two months and must hand over to the administrator all papers, documents, assets or moneys belonging to the estate and which have so far come into their possession. The administrator should open savings account in the name of the estate at the Ghana Commercial Bank, High Street, Accra; and pending the distribution, all moneys belonging to or forming part of the estate must be paid into that account. I also direct that the administrator should remove all the padlocks on the doors of the shop and the wholesale and replace them with new ones. He must, without delay whatsoever, appoint a competent accountant to value the goods in the shop and any of them found damaged, or depreciated in value as a result of the closure of the shop, should be made good by the defendant or charged to the defendant’s account. After the goods have been so valued and before distribution takes place, the plaintiff and one representative of the defendant should operate the shop and account for the proceeds thereof to the administrator.

I further order that the administrator should, as soon as practicable and after paying off all the creditors of the estate, share the goods in the shop. The children’s share should go to the plaintiff who must hold them

in trust for them. Since the share of the plaintiff and the children, when put together, is greater than that of the defendant, I order that after the distribution, the defendant should take away his one-third share of the goods from the shop so that the plaintiff and the children can have the use of the shop.

Two of the four houses have already been valued by a valuer appointed by both parties and the valuation reports are on the court’s docket. The administrator must cause the other two houses also to be valued. After the valuation has been completed, all the four houses must be sold with a view to sharing the proceeds thereof and in the manner I have already indicated. However the sale should be subject to the following important condition. That is, the children, whose interest in the estate is greater than any of the parties herein, should be given the first option to purchase any two of the four houses and pay for them with the amount which they are entitled to from the estate. If the value of the two houses which the children will choose happens to be more than the amount they are entitled to from the estate, the administrator should give them a reasonable time and opportunity to make up the difference. In all these exercises, the plaintiff should act for and on behalf of the children. After the children have made their choice, the parties - the plaintiff and the defendant - must also be given option to buy any of the remaining two houses. The administrator is at liberty to apply to the court for further directions; but he must wind up the estate within six months from this date.

Finally, the administrator will be entitled to his expenses, chargeable on the estate, and also to a remuneration of two and a half per cent of the value of the estate upon which the court on 7 May 1974 granted joint letters of administration to the parties. Each party has partly succeeded in his or her contention and will therefore be entitled to costs. I award each of the parties costs assessed at ¢750, inclusive of a fee to counsel.

This is an administration suit and I think it is a proper case to order that the costs awarded be paid out of the estate and I do so order.