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J U D G M
E N T
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Per an amended statement of
claim filed on 29th
May 2009, plaintiff, who sued
defendant in their capacity as
beneficiaries of the estate of
Jacob Michael Wilson, prayed
for:-
(a)
Declaration of title to all
that piece or parcel of land
situate and lying at Kuku
Hill, Christianburg, Accra
bounded on the North by land 135
feet more or less, on the South
by the property of Tetteh Quaye
measuring 135 feet more or less,
on the East by Kuku Road,
measuring 100 feet more or less,
on the West by property
belonging to Margaret Odorkor
Ankrah measuring 100 feet more
or less and covering an
approximate area of 0.30 acre
and the building thereon as
being the property of the late
Jacob Michael Wilson to the
exclusion of the late Samuel
Ocquaye Wilson.
(b)
Declaration that the defendant
is not a direct descendant of
Jacob Michael Wilson and hence
is not a beneficiary of his
estate.
(c)
Recovery of possession of the
rooms occupied by her in the
said house, and also the part
trespassed on
(d)
Damages for the destruction, and
the demolition of part of the
said house.
(e)
An order to demolish the
unauthorized structure the
defendant is putting on the said
land.
(f)
An order for perpetual
injunction to restrain the
defendant her assigns agents
workers and all who claim or may
claim from her, from interfering
with the said land and building
thereon.
The case of plaintiffs has it
that their grandfather Jacob
Michael Wilson was the owner of
all that land and the building
thereon, situate at Kuku Hill,
Osu identified in this
proceedings as H/No. F571/1, Osu
and that the grandfather died in
1937 intestate possessed of this
self-acquired property.
This property, which is the
subject matter in dispute
devolved on the two daughters of
the said Jacob Michael Wilson.
These daughters were mentioned
as Joana Wilson and Dora Wilson.
The plaintiffs contend that the
property having devolved on the
daughters of Jacob Michael
Wilson and the said daughters
having died intestate, the
property has devolved on them as
children of the daughters of
Jacob Michael Wilson, that is,
Dora and Joana.
Plaintiffs therefore instituted
the instant action as surviving
beneficiaries of this property
against defendant whose recent
dealings with the
property, plaintiffs
regard as subversive of their
beneficial interest.
Defendant joined issues with
plaintiffs and averred that the
property in dispute was jointly
acquired by both plaintiffs
father Jacob Michael Wilson and
her (defendant’s) father Samuel
Ocquaye Wilson who were brothers
of one father and one mother.
Besides, defendant attacked the
capacity of plaintiffs in suing
and also contended that
plaintiff’s action is statute
barred.
In these premises, defendant
also instituted cross action and
prayed for:-
(a)
General damages for trespass
unto a portion of H/no. F571/1
Osu belonging to the defendant.
(b)
Perpetual injunction restraining
the plaintiffs by themselves,
agents and servants and from any
further entry unto the
defendant’s portion of H/No.
F571/1 Osu.
(c)
A declaration that F571/1 Osu is
the joint property of Samuel
Ocquaye Wilson and Jacob Michael
Wilson.
One issue that appears pertinent
and worthy of determination from
the onset has to do with whether
the property in dispute is the
self-acquired property of Jacob
Michael Wilson or it is jointly
acquired as between Jacob
Michael Wilson and his brother
Samuel Ocquaye Wilson
(defendant’s father).
1st and 2nd
plaintiffs testified for
themselves and on behalf of the
others apart from calling one
witness and defendant also
testified and called three
witnesses respectively in their
bid to prove their respective
cases.
Without the least reservation, I
would want to state that the
totality of the evidence on
record as to the ownership of
the property in dispute
overwhelmingly tilts in favour
of Jacob Michael Wilson.
Plaintiffs established that
their late grandfather Jacob
Michael Wilson acquired this
property, built on the land and
in his lifetime he exercised
overt acts as the sole owner of
the property.
One undisputable overt act of
ownership can be gleaned from
Exhibit ‘B’ which is a Deed of
Mortgage made by Jacob Michael
Wilson on the 18th
August 1915. Examining Exhibit
‘B’ in particular and Exhibits
‘C’ and ‘D’ in general, one
comes to the inescapable
conclusion that the ownership of
the property therein stated
which happens to be the subject
matter in dispute cannot be
placed anywhere other than the
head of Jacob Michael Wilson.
For instance Exhibit ‘C’ which
is an affidavit sworn to by
Jacob Michael Wilson stated that
he was the absolute owner of the
property (the land and the
building), emphasizing that it
is his self–acquired property as
against being family or joint
property.
Against this background, the
conflicting oral evidence cannot
be preferred to the documentary
evidence.
The Court of Appeal held in the
case of YORKWA Vs. DUAH
(1992-93) GBR 278 that whenever
there was in existence a written
document and conflicting oral
evidence, the practice of the
court was to lean favourably
towards the documentary
evidence, especially if it was
authentic and the oral evidence
was conflicting.
Exhibit ‘A’ is an indenture
whereby one Jonas George
Coleman, acting Mankralo of
(Osu) Christiansburg Accra
granted a piece of land to
Samuel Ocquaye Wilson, the
defendant’s father. It is
instructive to note however that
the description of the subject
matter of this grant shows
unambiguously that the land
shares boundary with that of his
brother Jacob Michael Wilson
(plaintiff’s grand father). The
site plan attached to Exhibit
‘A’ depicts that this land
shares boundary with that of
Jacob Michael Wilson (written
therein as J. M. Wilson’s Land).
Furthermore, the evidence showed
that this land has not been
developed and it is indeed a
subject matter of litigation
between defendant and one
Lebanese mentioned as Musbak
Captan.
I am therefore satisfied that
both brothers acquired their
respective pieces of land and
while Jacob Michael Wilson
developed his, Samuel Ocquaye
Wilson did not develop his. As
far as the land acquired by
Jacob Michael Wilson was
concerned, I find that he
singularly developed it and this
developed land shares boundary
with Samuel Ocquaye Wilson’s
land which remains undeveloped.
The unchallenged evidence
established on record is that
the late Jacob Michael Wilson in
his lifetime gave birth to two
children. These children are
Dora Wilson and Joana Wilson,
all deceased.
It is also evident that the
surviving children of Dora
Wilson and Joana Wilson are the
plaintiffs herein. Indeed, 1st
and 2nd plaintiffs
testified to this fact and same
was corroborated by PW1 who is
the head of family and even the
defendant herself in her
evidence indicated that
plaintiffs are her nieces and
nephews whose mothers were her
cousins. Furthermore, defendant
indicated that the plaintiff’s
mothers were Dora Wilson and
Joana Wilson, children of her
late uncle Jacob Michael Wilson.
The question deserving of an
answer at this stage is whether
or not upon the death of Jacob
Michael Wilson, the subject
matter in dispute found to be
his self-acquired property
devolved on his children, the
mothers of plaintiffs and they
are entitled to absolute benefit
as the direct descendant of
Jacob Michael Wilson.
The evidence on record shows
that Jacob Michael Wilson’s
father was a Sierra Leonean
Merchant who migrated to Ghana
and found himself married to an
Osu, Accra woman with whom he
had Jacob Michael Wilson and
Samuel Ocquaye Wilson. The
father returned to Sierra Leone
and that was the end of his
sojourn in Ghana. His children
however were assimilated into
their mother’s family at Osu
which family now appears to be
headed by PW1.
Then Jacob Michael Wilson also
gave birth to Dora and Joana as
stated earlier. Jacob Michael
Wilson subsequently passed away
in Sokoto, Nigeria in the year
1937.
Samuel Ocquaye Wilson, the
junior brother of Jacob M.
Wilson also married and gave
birth to many children, one of
whom is the defendant herein.
Before Jacob Michael Wilson’s
death in 1937, the overwhelming
evidence before the court, as
alluded to supra was that he had
personally acquired the subject
matter in this case, built on
same and had exercised overt
acts of possession and
ownership.
Upon his death in 1937 however,
the defendant’s father Samuel
Ocquaye Wilson who was his
younger brother was appointed
customary successor and
caretaker of his estate in
accordance with custom.
Thus in his capacity as
customary successor to his
brother, Samuel Ocquaye Wilson
did not become the owner of the
estate of the deceased brother.
It cannot be gainsaid that the
customary law applicable in Osu
where Jacob Michael Wilson was
absorbed and assimilated to and
for that matter his personal law
was patrilineal, a system of
inheritance whereby upon the
death of a deceased intestate
his self-acquired properties
devolve unto the family he
originates when he had child or
children, and do not become or
merge into a wider family
property so long as there are
direct off springs through the
male line to succeed the
property.
In the instant case the deceased
owner of this property was
survived by two female children
whose children are the
plaintiffs herein. Upon his
death the customary successor
who is the defendant’s father
was to take care of the property
as the caretaker and also take
care of the needs of the
children of the intestate and
not as owner.
It may follow that legal
ownership devolved unto the
children of Jacob Michael Wilson
immediately their father died,
but temporarily held in trust
for them by the defendant’s
father by reason of being minors
then.
These two children therefore
became the beneficiaries and
upon their death having been
survived by their children, the
plaintiffs herein, legal and
beneficial interest in the said
property devolve on these
children (plaintiffs) to the
exclusion of all others.
In the case of AMERLEY Vs.
TINKORANG AND ANOTHER (1965) GLR
656, the Supreme Court per
Sarkodee-Addo C. J. held
unanimously that under Teshie
customary law which is
patrilineal (and Osu customary
law is no different), properties
that devolve on patrilineal
family go to the children of the
intestate and the head of family
or the customary successor has
no title to such properties.
The holding in AMERLEY case
supra was followed by the court
of appeal in the case of ADDO
AND ANOTHER VS. MANKO (1976) 2
GLR 454. Annan
j. a.
speaking for the court put it
thus:-
“If there is anything like a
general rule for patrilineal
areas then
the decided cases, ranging over
different areas of the
patrilineal societies
countrywide, support the rule
that succession to the immediate
beneficial enjoyment is by the
children of the male intestate.
That this is so in the
particular areas with which the
decided cases were concerned
cannot now be doubted and this
must be the accepted rule for
those particular areas. One such
area is the Guan area (and here
I may be permitted to put in my
own words “Osu area”) from where
the present case comes”
The learned judge then drew a
distinction between an
intestate’s immediate family as
at birth, that is the family he
or she was born into, and his or
her own immediate family, that
is the family that he or she
originates when he or she has
issue.
He said “I think it right and
proper and in accord with common
sense and logic that the family
a person originates should be
the one most proximate to that
person for the purpose of the
immediate beneficial enjoyment
of what has been acquired by
individual effort. And if that
be the case the eventual
position would be the same for a
patrilineal area, namely, the
man’s children would inherit
immediately to the exclusion of
the family of his father into
which he was born”
This whole thing said by Annan
J.A. was succinctly
summarized in the head note of
the report thus:-
“if there was anything like a
general rule for patrilineal
societies it was that the
self-acquired property of a male
person dying intestate in a
patrilineal community devolved
not on the whole patrilineage,
but on his immediate family,
both as to title and as to
rights of beneficial enjoyment.
But a distinction should be
drawn between the family he was
born into and the one he
originated when he had issued.
The group which was generally
regarded as being the group
which was most proximate,
namely, his children”.
It may also be observed that as
recent as 2008, the Supreme
Court in the case of FIANKO
VS. AGGREY (2007-2008) SCGLR
1137 had an occasion to draw
distinction between inheritance
as against succession and
emphasized that in a patrilineal
system, it is the children of a
deceased intestate who inherit
his or her self-acquired
properties irrespective of
whether the children are male of
female
I therefore hold that the family
originated by Jacob Michael
Wilson in his life time was his
two daughters, Joana and Dora
and their offspring who are
plaintiffs in this action.
By the authority of the cases
referred to above, plaintiffs
are held as entitled to title
and benefits of H/No. F571/1,
Osu, the self-acquired property
of Jacob Michael Wilson.
It appears that the parties had
lived comfortably and peacefully
without any wrangling over this
property until sometime in 2007
when defendant attempted to stop
the 1st plaintiff
from placing a container on part
of the land whilst she attempted
to break and remodel some part
of the house without the express
consent and authorization of the
plaintiffs who are the legal and
beneficial owners of the
property.
When the plaintiff challenged
the defendant on her actions, it
was then that defendant
purported to deny the plaintiffs
beneficial ownership by saying
that the house was owned by her
father and plaintiffs
grandfather.
It was this state of affair that
occasioned the institution of
this action by plaintiffs
against defendant in 2007.
With this set of facts, under no
stretch of imagination can it be
said that the action is statute
barred. Indeed the application
of the provisions of the
Limitations Decree, 1972 (NRCD
54) is most inapposite having
regard to the evidence on
record.
In the address of learned lawyer
for defendant he raised the
issue of capacity of plaintiffs
just as he attacked the capacity
of plaintiffs in the amended
statement of defence and in his
cross-examination. He argued
that to the extend that upon the
death of Jacob Michael Wilson,
defendant’s father Samuel
Ocquaye Wilson became the
customary successor the land of
Jacob Wilson whether developed
or not became the property of
Samuel Ocquaye Wilson. No wonder
learned lawyer for defendant did
not support this rather weird
legal submission with any
authority.
This submission deserves
dismissal in limine. It has no
substance whatsoever. Learned
lawyer for defendant was
confused as to capacity to sue
and right to title to a
property.
Furthermore, learned lawyer for
defendant’s argument that
plaintiffs did not state their
capacity on the writ of summons
and the statement of claim can
hardly be appreciated. According
to learned lawyer for defendant,
because plaintiffs did not sue
as administrators of the estate
of their grandfather nor as
customary successors, they have
no capacity to sue. This
argument, with all due
deference, has no basis in law.
It is not only misplaced but
unmeritorious.
Plaintiffs disclosed their
capacity by stating that they
were suing as beneficial owners
of the property in dispute and
in my view their capacity as
beneficial owners of the
disputed property is
unimpeachable, having regard to
the evidence on record as a
whole.
It is instructive to observe
that in paragraph 4 of the
further amended statement of
defence filed on 17th
November 2009, defendant pleaded
that there is an indenture in
the joint names of the
defendant’s father and
plaintiffs grandfather dated 29th
August 1946, no such indenture
was tendered before the court,
the denial of plaintiffs as to
the existence of any such
indenture notwithstanding.
At any rate, the overwhelming
evidence was that Jacob Michael
Wilson died in Sokoto, Nigeria
in 1937. Therefore he could not
have been alive in 1946 to
execute any such indenture.
Exhibit ‘1’ is an indenture
whereby Samuel Ocquaye Wilson is
stated as grantee of a certain
piece of land. Significantly,
this indenture executed between
Narh Yebuah, acting Mankralo of
Ashanti quarter of
Christiansburg Accra on one hand
and Samuel Ocquaye Wilson on the
other hand was duly executed in
1946, at a time that Jacob
Michael Wilson was no more. A
study of the two site plans
attached to Exhibit ‘1’ reveals
that Samuel Ocquaye Wilson took
advantage of the death of his
brother Jacob Michael Wilson and
purported to annex and include
Jacob’s land to his. In my view,
any information contained in
Exhibit ‘1’ relating to the
property acquired by Jacob
Michael Wilson cannot be correct
as Samuel Ocquaye Wilson
deliberately gave incorrect
information in his covetous
attempt to appropriate and annex
Jacob’s property to his, Jacob
having been dead and not capable
of stating his side of the
story.
Samuel Ocquaye Wilson thought
having become a customary
successor to Jacob, Jacob’s
property had become his hence
the motivation to cause Exhibit
‘1’ to be executed in his
favour.
At any rate, Exhibit ‘1’ which
is an instrument affecting land
is not registered. Therefore its
effect is set at naught.
In paragraph 5 of the statement
of defence (as further amended),
defendant conceded that Exhibit
‘1’ was never registered and the
reason for the non-registration
was attributed to the fact that
at that time, that is, in 1946
land registration had not been
introduced in the Gold Coast.
I can only describe this reason
as preposterous. Perhaps the
indenture exhibit ‘1’ remain
unregistered as a way of
covering up the gross
misinformation it contained.
It is a notorious fact that in
this country there was once a
CDR secretariat created during
the PNDC era. They exercised
adjudicatory roles, among other
functions. They had letter heads
and they recorded their
proceedings. Defendants
contended that the property in
dispute was once shared among
the beneficiaries and plaintiffs
vehemently denied that no such
sharing has ever taken place.
Nevertheless, defendant failed
to produce any of the CDR
records. Neither did she call
any of the panel members thereof
to prove that any such sharing
took place. DW1 and DW2 who
claimed to be tenants under
cross-examination said that they
were never witnesses to any such
sharing, though they said they
heard about the sharing. Their
evidence in this regard was
hearsay and cannot be regarded
as corroborative of the
assertion that the property was
shared by the CDR.
In my view, the defendant never
discharged the burden of proving
that the CDR secretariat shared
the property.
At any rate, the CDR could not
have given any part of the
property to any one who is not
entitled in law as a beneficiary
thereof.
On the evidence as a whole, it
is my opinion that defendant is
not entitled to her counterclaim
and same is dismissed.
Plaintiff on the other hand are
entitled to their claim.
Accordingly, judgment is entered
for plaintiffs, granting all the
reliefs prayed for. For
demolishing part of H/No. F
571/1, Osu without seeking nor
obtaining the consent of
plaintiffs, I will award
general damages of GH¢5,000
against defendant in favour of
plaintiffs.
Plaintiffs are awarded costs of
GH¢5,000 against defendant.
(SGD)ANTHONY OPPONG J.
JUSTICE OF THE HIGH
COURT.
LAWYERS:
PAUL K. OPOKU,
COUNSEL FOR PLAINTIFFS
B. B. QUAYE, COUNSEL
FOR DEFENDANT. |
