Agbleke Vrs Agbleke and Another [2022] GHAHC 25 (18 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION COURT 5) HELD IN ACCRA ON THURSDAY THE 18TH DAY OF NOVEMBER, 2022 BEFORE HIS LORDSHIP JUSTICE WILLIAM BOAMPONG, HIGH COURT JUDGE SOPHIA AGBLEKE 37 POLICE SERVICE WORKSHOP BARRACKS, ACCRA VS 1. CHARLES AGBLEKE PIG FARM ACCRA 2. DENNIS AMBROSE AGBLEKE ACCRA SUIT NO: GJ/216/2016 PLAINTIFF DEFENDANTS J U D G M E N T The Plaintiff herein issued her Writ of Summons against the Defendants claiming against them as follows:- 1. A declaration that the Plaintiff is the surviving spouse of the late Inspector John Kwame Agbleke. 2. An order setting aside the Letters of Administration granted by the High Court on 7th December, 2015. 3. An order from this Honourable Court mandating the surviving spouse and any other person this Court may deem fit to apply for fresh Letters of Administration in respect of the estate of the late Inspector John Kwame Agbleke. 4. An order compelling the Defendants herein to account for the proceeds of their stewardship of the estate of the late John Kwame Agbleke. 5. An order for all administration monies including entitlements and account of rent of the estate of late John Kwame Agbleke to be paid into Court pending the final determination of the present suit. 6. General Damages. 7. Cost. 8. Any order(s) the Honourable Court deem fit. PLAINTIFF’S CASE: The Plaintiff gave evidence that she is the surviving spouse of the late Mr. John Agbleke, 1st Defendant is the younger brother of her late husband and 2nd Defendant is his nephew. The Plaintiff states that the deceased customarily married her after which they lived together at the 37 Police Service Workshop Barracks Block G from 2005 until his demise on the 8th July 2015. According to the Plaintiff, during the subsistence of the said marriage, she jointly acquired four houses at various locations in Accra and three vehicles with her late husband. Plaintiff further states that, when the deceased suffered from stroke in 2012, she was the one who took care of him without any assistance from her late husband‘s family members. Her late husband later got well but later suffered from another stroke attack in 2015 and died on the 8th July 2015. After the death of her husband, her husband’s family made her to perform the widowhood rites. They later informed her that her name was not included in the obituary due to a typographical mistake. They promised to correct the typographical mistake but they never did. After the funeral of the Plaintiff’s late husband, the Police administration invited the family of the deceased and the Plaintiff to the Police Headquarters to fill a form for the deceased entitlements and they were advised there to apply for the Letters of Administration in Court. The Letters of Administration was applied for by the Defendants but unknown to the Plaintiff, she was not made an administrator of the deceased’s estate because the Defendants wrongfully presented to the Court that the deceased died without a wife. The Plaintiff learnt about this and caveated the Letters of Administration whereupon Court ordered the Plaintiff to issue a writ against the Defendants hence this action. DEFENDANTS’ CASE: The Defendants state their case per the Witness Statement of the 2nd Defendant. Their case is that the deceased’s relative never married the Plaintiff and the deceased’s family never knew the Plaintiff. It is their case that the Plaintiff is Sophia Amoah and not Sophia Agbleke. Defendants state that in 2005 the deceased was living with his late wife Mrs. Bernice Aku Agbleke at the 37 Police Barracks till her demise in 2009. The deceased also had never been down with stroke as alleged by the Plaintiff. The deceased was driving after work and had heart seizure on the 8th July 2015. He was rushed to the Police Hospital but could not survive. After the death of the deceased, the Defendants observed that the deceased had two concubines Andaratu Mahama and the Plaintiff. The deceased family could not therefore consider them as wives on the obituary. The Defendants admit that when the Plaintiff’s mother died, the 1st Defendant, One Charles Agbleke and 3 other Policemen accompanied the deceased to the Plaintiff’s mother funeral. Defendants state that even the Plaintiff’s family including PW1 told the Defendants and their family that, the deceased performed no marriage customary rite of the Plaintiff. ISSUES: At the close of the pleadings, the following issues were set down for trial. 1. Whether or not the Plaintiff was customarily married to the deceased. 2. Whether or not the properties of the deceased has to be shared to all lawful beneficiaries including the Plaintiff in accordance with the intestate succession law. 3. Whether or not the Plaintiff should be added as one of the administrator in respect of the estate of the deceased. 4. Whether or not the Defendants have intermeddled with the estate of the deceased. 5. Whether or not the Plaintiff is entitled to the reliefs endorsed on the Writ of Summons and finally any other issues arising from the pleadings. The major issue for determination in this suit is issue 1, to wit:- “Whether or not the Plaintiff was customarily married to the deceased”. I hold same to be the major issue for determination because the determination of issue (1) would definitely determine the fate of the other issues. The real contest between the parties in respect of issue (1) is that whereas the Plaintiff saw herself as the wife of late John Kwame Agbleke, the Defendants saw the Plaintiff as the concubine of their late relative John Kwame Agbleke. The version of the Plaintiff PW1 (Michael Narh) is that the late John Kwame Agbleke approached the family of the Plaintiff for the items he was to use to perform the customary marriage rites. The list was given to late John Kwame Agbleke but no sooner than that, and before the Kwame Agbleke could perform the marriage rites, the Plaintiff’s mother died. According to the Plaintiff and PW1, after the death of the Plaintiff’s mother, the late Kwame Agbleke and another man went to see the family of the Plaintiff to ascertain what role Kwame Agbleke has to play during the burial and funeral of the Plaintiff’s mother since Keame Agbleke had gone for the list of items to be used for the performance of the customary marriage rites of the Plaintiff. There and then the family of the Plaintiff informed Kwame Agbleke that he has to perform the customary rites before he can perform the burial rites. The family of the Plaintiff then informed Kwame Agbleke to bring Three Thousand Ghana Cedis (GH¢3,000.00) and a bottle of schnapps to perform the customary marriage rites of the Plaintiff. Kwame Agbleke being accompanied by four men including 1st Defendant Charles Agbleke presented the said sum and the schnapps to the Plaintiff’s family and performed the customary marriage rite of the Plaintiff. The Defendants do not challenge the payment of the GH¢3,000.00 and the bottle of schnapps which their relative Kwame Agbleke presented to the Plaintiff’s family but they interprete same as financial assistance Kwame Agbleke gave to the Plaintiff’s family as a concubine of the Plaintiff, to help finance the Plaintiff’s mother’s funeral. This is an excerpt of the Cross-examination of the 2nd Defendant. Q. Was your late uncle present at the funeral rites of the Plaintiff’s mother? A. Yes. Q. A. Q. A. Did he attend the funeral alone? He attended with two other colleagues and a nephew and a brother. In what capacity did he attend the Plaintiff’s mother’s funeral? He attended the funeral of the mother of his concubine and that is the capacity in which he was. Q. Are you telling the Court that the GH¢3,000.00 and the bottle of schnapps that he gave to the family was just because of concubinage with the Plaintiff? A. Yes, my uncle gave an amount to them to buy the coffin for the burial of the mother of his concubine but not to the tune of GH¢3,000.00 as being quoted…” Assuming without admitting that the Court do not accept that the late Kwame Agbleke performed the customarily marriage rites of the Plaintiff. The Court do not doubt the occurrence of the following event during the relationship between the late Kwame Agbleke and the Plaintiff. 1. During the life time of Kwame Agbleke, he lived together with the Plaintiff at 37 Military Barracks and also at the deceased’s house at Awoshie to the knowledge of their respective families. 2. The Plaintiff and Kwame Agbleke had properties together – it is the Plaintiff who even disclosed some of the properties to Kwame Agbleke’s family of which properties they knew nothing about. 3. The Plaintiff change her name to Sophia Agbleke – thus adopting the surname of Kwame Agbleke – this was known to the family members of Kwame Agbleke. 4. When the Plaintiff’s mother died, Kwame Agbleke and his family attended the funeral to perform the rites as expected of a son-in-law. 5. 1st Defendant had admitted that on the death of the Plaintiff’s mother, Kwame Agbleke solely provided a coffin for the burial. 6. On the death of Kwame Agbleke, the deceased family confined the Plaintiff’s indoors as part of the widowhood rite. 7. On the death of Kwame Agbleke, the Plaintiff donated GH¢200.00 and a bottle of schnapps for the burial of Kwame Agbleke as required of a widow. 8. One year after the death of Kwame Agbleke, the 1st Defendant gave GH¢100.00 to the Plaintiff for Plaintiff to use same to buy a white cloth to wear to signify the end of her widowhood rites. 9. The relatives of Kwame Agbleke even invited the Plaintiff to Court for the Application of Letters of Administration. They however excluded her name. 10. The late Kwame Agbleke and the Plaintiff during the life time of Kwame Agbleke held themselves to the eyes of the public as man and wife and so did the public and the community they live and their respective families observe them. With all these occurrences, events and observation not doubted by the Court in the relationship between the Plaintiff and the deceased even if the deceased did not perform the customary rite of the Plaintiff. I will still hold them as man and wife. See the case of:- Irene Gorleku vrs Justice Pobee [2012] 42 GMJ 71 Per Yaw Appau J. A (as he then was) “the existence of customary law marriage could be determined from the conduct of the parties involved without the necessary performance of any formal customary rites like the presentation of drinks by the man’s family to the woman family… …there are two major forms of customary marriage. One involves the presentation of drinks. In the case of the first, which is the ordinary case, the presentation of drinks and other items by the man’s family to the woman’s family (both paternal and maternal) and their acceptance by the woman’s family aforesaid constitutes the express consent of both families to the marriage that their family members had agreed to indulge in such organized ceremonies normally involve young persons who are getting married for the first time, though adults who are indulging in second or third marriages could decide to go formal. The second case involves the existence of a valid customary marriage between a man and a woman without the express consent of the families manifested by the presentation and acceptance of drinks and other presents like in the example above. In this second case the consent of the families is implied by their conduct. Such conduct includes but not limited to the following: Attending funerals involving families of either party together and making donations in the eyes of the public as a man and a wife without any hindrance, paying visit to relatives on both sides during occasions and other festivities acquiring properties in joint names as man and wife, attending public functions together in the eyes of the world as man and wife, long cohabitation with or without children in the eyes of the public as man and wife without any interference from any quarters (including both families) and express written statements acknowledged by both parties to that effect. It is instructive to note that noninterference by family members in the long cohabitation of any of their members with another person of the opposite sex as man and wife in the eyes of the public constitutes implied consent. In my view therefore the agreement of a man and the woman to live as man and wife and the fact that they live as such is more paramount than the consent of their families either express or implied, when it comes to the determination as to whether or not they were legally married in a situation like the one before us, when one of the persons involved is no more alive and particularly where the issues involved concern property sharing, in fact it is the deciding factor”. I am inclined to believe that from the pieces of evidence adduced on the records, if even the Court do not accept the fact that John Agbleke performed the customary marriage rites of the Plaintiff at all, the fact that they held themselves as man and wife in the eyes of the public in the community they live, and in the eyes of their respective families, same constitutes a marriage relationship, as the second type of marriage as cited in the case of Irene Gorleku vrs Justice Pobee’s case cited supra. 1) I hereby therefore declare that the Plaintiff is the surviving spouse of the late John Agbleke. Having declared so, 2) I hereby set aside the Letters of Administration granted the Defendants by the High Court on the 7th December, 2015. 3) I hereby order the Plaintiff to join the other Applicants for the application for the Letters of Administration. 4) I order that after the application of the said Letters of Administration, the estate of deceased be shared in accordance of PNDCL111 (The intestate succession Law 1995. 5) It is in evidence that when the late Kwame Agbleke died the Defendants drove away his three cars. They have also been collecting rents in respect of his houses. This is a clear case of intermeddling. I order the Defendants to account for all the proceeds they have accrued from the estate of Kwame Agbleke. I will decline to award General Damages in this suit. In effect as I grant all the reliefs as endorsed in Plaintiff’s Writ of Summons against Defendants. Cost: No issue as to cost. (SGD) WILLIAM BOAMPONG (JUSTICE OF THE HIGH COURT) COUNSEL: KEZIA KENNETH AZUMAH (MRS), FOR THE PLAINTIFF JOSEPH TURKSON ESQ, FOR THE DEFENDANTS 12