IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
LESLIE NARTEY MARBELL AND DUDLEY NARTEY MARBELL - (Plaintiffs/Appellants) vs.
SALAMATU MARBELL - (Defendants/Respondents)
DATE: 24 TH JULY, 2018
CIVIL APPEAL NO: H1/151/2018
JUDGES: SAMUEL MARFUL-SAU J.A. (PRESIDING), AVRIL LOVELACE-JOHNSON J.A., HENRY A. KWOFIE J.A.
TETTEH JOSIAH FOR THE PLAINTIFFS/APPELLANTS
ALI GOMDA ABDUL SAMAD FOR THE DEFENDANTS/RESPONDENTS
HENRY KWOFIE J.A
This appeal is against the judgment of the High Court Accra delivered on 27th day of January 2015. The trial judge dismissed the claim of the plaintiffs and entered judgement in favour of the defendant on her counter claim in respect of the disputed house No. 29, Mensah Wood Road, Ambassadorial Enclave, East Legon, Accra.
The facts leading to this appeal are that Victor Adolphus Tatse Marbell (deceased) was a Commissioner of Police in the Ghana Police Service and Director of Special Branch, Ghana. He left Ghana on 4th January 1982 for the United Kingdom whilst still in active service and did not return to Ghana until his death on 7th February 2009 in the United Kingdom where he was buried. The two plaintiffs are the children of the late Victor Adolphus Tatse Marbell whom he had with different mothers prior to marrying the defendant in June, 1971. The defendant was a Chief Superintendent of Police in the Ghana Police Service and had 2 children with the deceased. The defendant with her two young children also left Ghana in March 1982 and joined the deceased husband and they lived together at No. 128 Elizabeth House, Gasbrook, Reading, U.K. The deceased Victor Marbell and his wife the defendant and their two children never set foot in Ghana until the deceased died on 7th February 2009 and was buried in the U.K. Prior to their departure from Ghana, the couple had a joint lease agreement in respect of plot No. 29, Mensah Wood Street, Ambassadorial enclave, East Legon, Accra the subject of dispute in this action. The property had an uncompleted outhouse and a foundation for the main building prior to the couple departing to the United Kingdom. It is the case of the plaintiffs that upon the death of their father Victor Adolphus Tatse Marbell, the defendant his widow gave a Power of Attorney to someone to apply for letters of administration in respect of the East Legon property without recourse to them and or the family of the deceased Victor Marbell. The plaintiffs accordingly instituted the action in the Registry of the High Court, Accra against the defendant claiming the following reliefs:
1. A declaration that defendant’s application for Letters of Administration without notice to the plaintiffs nor the head of the deceased family contravenes the law on the administration of Estates.
2. An order revoking the Letters of Administration granted to the defendant.
3. A declaration that the plaintiffs together with the defendant and her children are beneficiaries of the estate of the late Victor Adolphus Tatse Marbell.
4. An order of injunction to restrain the defendant either by herself or her agents, assigns and heirs from dealing with House No. 29, Mensah Wood Street Ambassadorial Enclave in whatever manner to the exclusion of the plaintiffs.
Upon service of the Writ on the defendant outside the jurisdiction, she filed a statement of defence and denied the plaintiffs claim. She averred that she jointly owned the East Legon property and the House No. 128 Elizabeth House, Reading, U.K. with the late Mr. Marbell before his death. It is the case of the defendant that House No.128 Elizabeth House, Reading U.K. was the subject of a mortgage arrangement between herself and her late husband and Santander Bank (Formerly Abbey National Bank) and after the death of her husband she became the sole mortgagor by operation of English law. The defendant further stated that since 1993 she was the sole bread winner for the family as Mr. Marbell ceased to work and she assumed full care and nursing of the deceased who was diagnosed with a terminal ailment until his death. It is her case that by operation of English law, she became the absolute owner of the East Legon property as the late Victor Marbell had his domicile changed from Ghana to England. Further the defendant contended that she had become the absolute owner of the East Legon house by way of a deathbed gift by late Mr. Marbell to her in or around September 2008 with her (the defendant) subsequently assuming full control of the property including paying the ground rent. The defendant accordingly counterclaimed against the plaintiffs for the following reliefs:
a. A declaration that the late Mr Marbell had made a deathbed donation of his interest in the house with Number 29 Mensah Wood Street, East Legon Accra to the defendant.
b. A further or an alternative declaration that the estate of late Mr Marbell and the defendant are jointly liable to pay 100,000 British Pound Sterling being a Mortgage debt in respect of flat with Number 128, Elizabeth House, Gasbrook Road, Reading in the U.K. to Santander Bank.
c. A further or in the alternative declaration that the late Mr. Marbell had ceased to be of Ghanaian domicile and therefore the intestate succession Act, 1985 (PNDC L111) does not apply to his estate if any.
d. A further or alternative declaration that by operation of English law, the defendant is entitled to the house with No. 29 Mensah Wood Road, Ambassadorial Enclave, East Legon, Accra absolutely.
e. A further or an alternative declaration that the defendant by operation of English law was entitled to £125,000 Pounds Sterling from the estate of late Mr. Marbell if any, with that amount attracting interest at 6% per annum from the date of death of late Mr. Marbell.
f.) Perpetual injunction to restrain the plaintiffs, their agents, assigns, personal representatives and any person claiming through them from interfering with the ownership, possession and/or interest and /or in any manner dealing with the house with No. 29, Mensah Wood Road, Ambassadorial Enclave, East Legon, Accra.
g.) Costs including legal fees.
Dissatisfied with the said judgment, the plaintiffs/appellants filed the instant appeal per a Notice of Appeal filed on 20th April 2015. The Notice of Appeal contains three grounds of appeal that is: -
a) The learned trial judge erred in holding that the fact that defendant had custody of the title Deeds in respect of House No. 20, Mensah Wood Street confirms donation of the late Victor Adolphus Marbell’s interest in the said property to her.
b) The learned trial judge erred in holding that defendant is the absolute owner of House No. 29 Mensah Wood Street based on the doctrine of “donatio mortis causa”.
c) The learned judge erred in failing to join plaintiffs to the defendant to administer the estate of the late Victor Adolphus Marbell.
The relief sought from the Court of Appeal is that the judgment of the trial Court entered in favour of the defendant and cost awarded be set aside and for judgment to be entered in favour of the plaintiffs for the reliefs endorsed on the writ of summons.
The judgment appealed against is at pages 354 to 381 of the Record of Appeal.
First, I will deal with a preliminary issue raised by counsel for the defendant/respondent. Even though I agree that the grounds of appeal did not contain the particulars of the errors complained of, the grounds as formulated are very clear about the nature of errors alleged. The said grounds will therefore be admitted and addressed in this judgment.
Counsel for the appellant argued grounds (a) and (b) together. Arguing these grounds, counsel submitted that the case of the defendant is that the interest of the late Victor Adolphus Tatse Marbell was gifted to her by the deceased before he died in contemplation of death. Counsel referred to the trial judge’s view that the defendant has successfully proved the three elements of the doctrine of donatio mortis causa and submitted that the trial judge erred in that respect. He further referred to the evidence of the defendant’s attorney with regard to the title deeds covering the property and submitted that the defendant having custody of the title deeds covering the property is not conclusive that the deceased handed same over to her and that he gifted his interest in the property to her.
Counsel submitted that nowhere in the defendant lawful Attorney’s evidence did she say that the deceased handed over the title deeds to her. Counsel referred to the cases of Asante Vs. University of Ghana (1972) 2 GLR 86 and Sen Vs. Headley (1991) 2 ALL ER 636 and submitted that in his view Sen Vs. Headley (Supra) was the more appropriate authority. He asserted that the reference by the trial judge to a Deed of Assignment executed by the deceased for the plaintiffs in respect of his land at Mataheko in Accra was irrelevant and had no bearing on the instant suit.
In reaction to the above arguments, counsel for the respondent submitted that the deed of lease of the said East Legon property was issued jointly to the deceased Mr. Marbell and Mrs. Marbell; they equally had the same level of control over the said document. He asserted that Mr. Marbell did not need to hand the deed of lease to Mrs. Marbell because he had no more interest in it than her. He submitted that in this case, there could not have been delivery of the title deeds to the beneficiary of the deathbed gift, the defendant herein because the title deed was jointly owned by the deceased and the defendant. He said the trial judge’s finding that the defendant proved all the three elements of the doctrine of donatio mortis causa cannot be faulted.
An appeal is by way of re-hearing and thus in considering the appeal, this court is enjoined to examine the entire record to ascertain if a party’s case is reasonably probable than not.
Also, the primary duty of an appellate Court in respect of a judgment based on findings of facts is to examine the record of proceedings to satisfy itself that the said findings are supported by the evidence on record. See the cases of Oppong Kofi Vs. Attibrukusu III (2011) 1 SCGLR 176 and Koglex No 2 Vrs. Field (2000) SCGLR 175.
Also in the case of Aidoo and Another Vs. Gyasi (1975) 1 GLR 267 at 275, Francois J.A. as he then was stated the duty imposed on an appellate Court where he stated as follows:
“The appellate Court is entitled to review the evidence of the primary facts and the inferences and conclusions arising therefrom and draw its own conclusion. In the process, if the lower Courts conclusions are not based on legitimate deductions on the evidence, this Court should not shrink from reconsidering the evidence and though approaching the trial court’s conclusions with respect and circumspection, must not shirk its duty of rejecting any unwarrantable findings”.
A perusal of the record of appeal shows that essentially the claim of the plaintiffs was for a declaration that they and the defendant and her children are the beneficiaries of the estate of the late Victor Adolphus Tatse Marbell, particularly the deceased one-half (1/2) 50% interest in House No. 29, Mensah Wood Street, Ambassadorial enclave, East Legon (hereinafter referred to simply as the East Legon property). On the other hand, the defendant contended that the deceased in his life time had by way of deathbed gift donated his interest in the said house to her. In his judgment, the trial judge stated at page 365 of the record of appeal as follows:
“In the instant case, it is with respect as aforementioned, wrong for the learned counsel to say that the defendant has failed to prove the third ingredient of donatio mortis causa. I think all the elements of the doctrine has been successfully proved by the defendant. This is because the defendant indeed has taken possession of the East Legon property, she paid the ground rent for several years and rightly asked Mrs. Sophia Hughes time to vacate the disputed house”.
What in law constitutes a donatio mortis causa? In the case of Sen Vrs. Headley (1991) Ch 425 the deceased was a close friend of the claimant, Mrs. Sen. Some three days before his death, Mrs. Sen asked him what she should do about the house were he to die. His reply was “The house is yours, Margaret, you have the keys. They are in your bag. The deeds are in the Steel box”. Shortly thereafter, the deceased died intestate and the question arose whether there had been a valid donatio mortis causa.
The necessary ingredients of a donatio mortis causa were summarized by Nourse LJ on appeal in Sen Vrs. Headley (Supra) at page 431 of the Report as follows:
“a) First, the gift must be made in contemplation, although not necessarily in expectation of impending death;
b) Secondly, the gift must be made upon the condition that it is to be absolute and perfected only on the donor’s death, being revocable until that event occurs and ineffective if it does not
c) Thirdly, there must be delivery of the subject matter of the gift, or the essential indicia of title thereto which amounts to a parting with dominion and not mere physical possession over the subject matter”.
With regard to the third requirement, it was recognized that title deeds are the essential indicia of title to an unregistered land and that the handover of the deeds could amount to a parting with the dominion over the land. See also the case of Vallee Vs. Birchwood (2013) EWHC 1449 CL. In the local Ghanaian case of Asante Vs. University of Ghana (1972) 2 GLR 86, Abban J held in holding 3 thereof as follows:
“To constitute a donatio mortis causa certain essertial requirements must be present:
a) The gift must have been delivered by the donor to the donee;
b) The gift must have been made in contemplation of death or in fear of a pending peril; and
c) In order to make the gift valid, it must be made so as to take complete effect on the donor’s death. In the present case, the gift was not delivered to the donees”
In his judgment, the trial judge stated that he preferred the decision in Asante Vs. University of Ghana (Supra) to that in Sen Vs. Headley (Supra). It seems to me that the essential requirements of a donatio mortis causa in the 2 cases are the same. Both decisions emphasise the need for the gift to be delivered to the donee(s). What was the evidence of the defendant in respect of the donatio mortis causa in this case? The evidence of the defendant’s attorney with regard to the gift or donation in her evidence in chief was as follows at page 172 and 173 of the Record of Appeal:
“Q. In respect of the East Legon property do you know if the late Victor Marbell has done something in respect of the house before his death?
A. Yes my lord, he told the defendant that he was giving her his interest in the land at East Legon.
Q. When was this made?
A. It was in September 2008.
Q. Do you know whether or not the defendant after this donation has done anything in relation to the property at East Legon?
A. Yes, the defendant and the deceased had asked ……………. to leave (sic) there, rent free in lieu of taking care of the property. After the donation was made the defendant continued to deal with her.
Q. Beyond this dealing, do you know whether the defendant did any other thing in respect of the property.
A. My lord the defendant and the tenant had discussed when it will be appropriate for her to vacate the property. Also, the defendant and the deceased had decided to sell that property in order to help them pay off their bank loan in Reading. And the defendant continued to pursue this even after his death but several years after his death she continued to pursue it”.
It is obvious that the evidence of the defendant’s attorney with regard to the purported donation was extremely limited and short on detail and very unsatisfactory.
The evidence of the defendant’s attorney does not show that the gift was delivered by the donor to the donee. Obviously the two parties being outside the jurisdiction and the subject matter of the gift being land, same could not be physically delivered to the donee but nothing was said by the attorney of the essential indicia of title or the means of getting the property. The evidence of the plaintiff’s attorney does not show that the deceased handed over the title deeds to the defendant. Earlier in her evidence the defendant’s attorney had stated with regard to how the defendant had possession of the deceased certificate of naturalization at page 169/170 of the Record.
Q. And how did this come to your knowledge?
A. My lord the defendant and the deceased were married and they lived together and shared the same space and when he died his document became available to her”.
In respect of the document of title of the said East Legon property, the defendant did not say anything about how she came into possession of the title deeds, even though it is conceded that the said title deed was in the joint name of the deceased and the defendant.
In my view, only two essential requirements of donatio mortis causa viz that it was made in contemplation of death and secondly that it was to take effect and perfected only on the donor’s death were satisfied or complied with in this case. The third requirement of delivery of the subject matter of the gift was not complied with.
The trial judge dismissed the issue of the absence of title deeds when he stated as follows at page 366 of the Record as follows:
“In any event, our courts have consistently held that the absence of title deeds of donatio mortis causa is not fatal to the gift.
See Aidoo and Another Vs. Gyasi (1975) 1 GLR 267 holding 1 and Quarshie Vs. Baidoo; Court of Appeal 5th August 1969 unreported; digested in 1969 C.C. 153 applied. I am aware that these cases relate to gift intervivos but the ratio is the same”
To suggest as the trial judge did, that a gift intervivos and a donatio mortis causa are the same is clearly a mistaken view of the law.
In Aidoo and Another Vs. Gyasi (Supra) which the trial judge relied the deceased had in his lifetime gifted some farms and a house to his children. The children had taken possession of the farms and lived in the house during the lifetime of their father. After the death of their father, his customary successor did not interfere with the children’s possession of their farms and the disputed house. On the death of the first customary successor, his successor, the respondent sued for a declaration that the said farms and house were not those gifted to the appellants, the children of the deceased.
He based his claim on the fact that if the appellant’s father had gifted the properties to them, he would have surrendered the title deeds relating to the properties. The appellants in their defence submitted that the retention of the title deeds to the gifted properties by their father and thereafter by his successor was for purely security reasons, since they were able to call for the documents at any time they needed them. They also adduced evidence to establish the validity of the gifts made and also produced witnesses who were boundary owners to the disputed farms and who confirmed that the appellants had cultivated the land for over 30 years from the time of their father, through the tenure of the first successor without hindrance until the commencement of the action by the second successor. The trial Court gave judgment for the respondent. On appeal, the Court of Appeal allowed the appeal and held that the deceased’s dealing with the property including the retention of the title deeds, did not ipso facto detract from a prior gift to his children.
I think the essential difference between a gift intervivos and a donatio mortis causa is that invariably, gifts intervivos are made in the presence of witnesses whilst a donatio mortis causa by contrast as stated by Patten L.J in King Vrs. Chiltern Dog Rescue (2015) EWCA CIV 581
“………………..Will usually occur privately between the donor and the donee in circumstances where the potential for fabrication and invention by the donee is high and the prospect of disproving an alleged donatio mortis causa correspondingly low”
The law clearly therefore requires that all the three elements or requirements of a valid donatio mortis causa are strictly complied with. With this in mind, I have considered the evidence on record as a whole and I am of the view that the third requirement of a valid donatio mortis causa specifically delivery of the subject-matter of the gift to the donee was not complied with. Accordingly, I find that there was no valid donatio mortis causa in respect of the disputed East Legon property.
In my view, the execution of the deed of assignment (Exhibit 3) by the deceased Victor Marbell transferring his plot situate at Mataheko Accra to the plaintiffs in April 2008 is irrelevant to the determination of the issue whether or not there was a valid donatio mortis causa in respect of the East Legon property.
The fact that the deceased died intestate is indeed buttressed by the fact that after the death of the deceased Victor Adolphus Tatse Marbell, the defendant by her lawful attorney applied for and was granted letters of administration by the High Court Accra in respect of this property. The application by the defendant for letters of Administration clearly shows that the deceased died and owned one half (1/2) of the interest in House No. 29 Ambassadorial enclave, East Legon. If the said property had been donated to the defendant and the said donation became absolute on the death of the deceased, then what was the basis for the application for letters of administration by the defendant to administer same?
I accordingly hold that the deceased Victor Adolphus Tatse Marbell died intestate in respect of his 50% interest in the East Legon property No. 29 Ambassadorial Enclave
Having decided that the deceased Victor Marbell owned one-half (1/2) interest in the East Legon property, and died intestate, the question that arises is which law governs the devolution of the deceased property. The evidence shows that per a certificate of Naturalisation Exhibit 8 (See page 170 of the Record of Appeal) the deceased, originally a Ghanaian citizen acquired a British nationality. The personal law of the deceased was therefore the domiciliary law which is British law.
As the trial judge rightly stated, ordinarily it is the provisions of the Inheritance (Provision for Family and Dependants) Act 1975 of England which ought to govern the devolution of the property of the deceased having regard to the change in his nationality. However, given that the disputed property is situate in Ghana, it is the lex situs which should govern the devolution and in this case the Intestate Succession Law 1985 (PNDC Law 111) is the applicable law. See the case of Omane and Another Vs. Poku and Another (1972) 1 GLR 295 Grounds (a) and b) of the appeal succeeds.
I shall now deal with ground (c) of the appeal which is that the learned trial judge erred in failing to join plaintiffs to the defendant to administer the estate of Victor Adolphus Tatse Marbell. In arguing this ground of appeal, counsel for the appellants referred to Section 79(2) of the Administration of Estates Act 1961 (Act 63) and Order 66 rule 13 of the High Court (Civil Procedure) Rules 2004 (C.I. 47) and stated that the defendant gave a power of Attorney to someone after the death of the deceased to apply for letters of Administration without recourse to the plaintiffs or any family member of the deceased. Counsel asserted that the trial judge ought to have joined the plaintiffs and the customary successor to the defendant for the purpose of administering the estate of the deceased.
On the other hand, counsel for the respondent thinks otherwise. Counsel submitted that ground (c) of the appeal is inconsistent with the reliefs the plaintiffs endorsed on the writ of summons.
He asserted that the plaintiffs are approbating and reprobating as in one breadth they seek to have the letters of administration granted to the defendant to be annulled and in another breadth, seek to be joined to the grant as joint administrators.
Section 79 of the Administration of Estates Act 1961 gives a discretion to the Court as to the selection of a personal representative of a deceased. It provides in sub-section (1) and (2) as follows: -
“79(1) Subject to this section the selection of a personal representative is within the discretion of the Court.
(2) In granting administration, the Court shall consider the rights of all persons interested in the estate, and in particular, administration with will annexed may be granted to a devisee or legatee and the administration may be limited in the way that the Court thinks fit”
Order 66 rule 13 of C.I. 47 provides with regard to the order of priority of grant after the enactment of the Intestate Succession Law 1985 (PNDC Law 111) as follows:
“13. Where a person dies intestate on or after 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
d) the customary successor.
In his judgment, the trial judge stated with regard to the letters of administration granted to the defendant as follows at page 412:
“In the instant case, I have considered whether or not to vacate the letters of administration (a copy this Court has not seen). As aforementioned, what purpose will it serve if I cancel the letters of administration already granted to the defendant? what is left to be administered? And distributed.”
Further on at page 413 the trial judge stated:
“Ordinarily the defendant could not take letters of administration without recourse to the plaintiffs and head of the Marbell family, however given the unique and peculiar circumstances of this case, it would not be necessary to have the members joined. But the notice ought to have been given to the family”.
This statement by the trial judge is not true in the light of the provisions of the Intestate Succession Law 1985 (PNDC Law 111) and Order 66 of C.I.47 which has provided the order of priority with regard to the grant of Letters of Administration.
Having regard to the view I have taken that the plaintiffs have an interest in the East Legon property, I have considered whether the plaintiffs or at least one of them should be joined to the grant. Although the evidence and the pleadings is clear that letters of administration in respect of the deceased estate was granted by the High Court Accra to the defendant the said letters of Administration was not tendered in evidence at the Court below. Having taken all relevant factors including the need to ensure the smooth administration of the estate in consideration, I would hereby refuse to grant the order to join the plaintiffs as joint administrators of the estate of Victor Adolphus Marbell. I however order that the deceased’s 50% interest in the East Legon property be distributed in accordance with the Intestate Succession Law 1985 (PNDC Law 111).
Save for this order ground (c) of the appeal fails and is accordingly dismissed.