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ADWOA KYEREWAA v AKOSUA AKYAA AND ANOR. KOFI BOATENG [24/6/2004]

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA - GHANA, A.D. 2004.

________________________

Coram :— Farkye, J.A. [Presiding]

Akamba, J.A.

Dotse, J.A.

H/1 42/2004

24th June,2004

ADWOA KYEREWAA       }—PLAINTIFF/RESPONDENT

versus

1.  AKOSUA AKYAA         }

2.  KOFI BOATENG           }—DEFENDANTS/APPELLANTS

3.  BERNARD AGYAKO    }   

4.  KWAKU ABROKWA    }

_____________________________________________________________________

 

JUDGMENT

DOTSE, J.A.

The facts of this case admit of no complexity whatsoever. Briefly stated, the facts of this Appeal are that, the Plaintiff/Respondent, hereinafter referred to as the Plaintiff, commenced action in the High Court, Koforidua against the Defendants/Appellants, hereinafter referred to as the Defendants.

The reliefs which the Plaintiff claimed against the Defendants in the trial court are as follows:—

(a) "A declaration that the uncompleted house at Adweso-Koforidua and the house at Kwabeng known as House No. B/107 the property of the late Afua Nkrumah alias Beatrice Asantewa is now the property of all her five children namely Adwoa Kyerewa alias Susuana Tufour Mrs.

Akosua Akyaa,

Kofi Boateng,

Kwasi Osei, and

Yaw Gyetua."

(b) An order of the court restraining the Defendants from dealing with the said houses as though they were the only owners."

(c) "An order of the court for the estate of the late Afua Nkrumah alias Beatrice Asantewa to be shared among all her five children namely Adwoa Kyerewa alias Susuana Tufour Mrs.

Akosua Akyaa,

Kofi Boateng,

Kwasi Osei, and

Yaw Gyetua."

It must be noted that, the Plaintiff herein and the 1st and 2nd Defendants are all children of one BEATRICE ASANTEWA—Deceased and OPANIN KWAME OPOKU also Deceased. In effect, what this means is that, Plaintiff, 1st and 2nd Defendants are all sisters and brother of the full blood.

The 3rd Defendant was sued because he was reputed to be the head of family of Beatrice Asantewa—Deceased, whilst 4th Defendant was sued as the customary successor of Opanin Kwame Opoku Deceased father of Plaintiff and the 1st and 2nd Defendants.

Whilst Opanin Kwame Opoku is reputed to have died in or about 1993 and was a cocoa farmer at the time of his death, Beatrice Asantewa died on 13-11-1998.

The facts further disclosed that, after the death of Asantewa, there was a family meeting at which the 1st Defendant was alleged to have informed the family that her Deceased mother had gifted to her the house at Koforidua as a result of which she was made to give "aseda."

However, the Defendants as per their amended Defence averred in paragraph 5 as follows:—

"Paragraphs 9 and 10 are all denied.

The Defendants admit, however that after the death of Beatrice Asantewaa the family confirmed the gift and the family, at a meeting at Kwabeng including the Plaintiff, accepted that there was in fact a gift of the house in dispute by Beatrice Asantewaa to the first defendant herein"

6. "And at Kwabeng the first Defendant stamped the proceedings by providing ¢40,000 and a bottle of Schnapps which Plaintiff took part of the ¢40,000 whereby the gift was confirmed by the family of the parties herein."

It is the acceptance of this purported 'gift' of the house by Asantewa to the lst Defendant by the family of the Deceased—Asantewaa that has triggered off the suit at the High Court, Koforidua.

Whilst the Plaintiff contended that the house was financed with the proceeds of their fathers cocoa farm and compensation from same and had been built by their Deceased mother, the 1st Defendant contended otherwise and concluded that in any case the Koforidua-Adweso house had been gifted to her by her Deceased mother.

The Plaintiff testified and called one witness, Kwasi Osei (P.W.1.) who is a brother to the Plaintiff and 1st and 2nd Defendants.

The 1st Defendant testified for herself and the 2nd Defendant and after that called four witnesses, namely:—

D. W. 1—NELSON COFFIE alleged to be a mason.

D. W. 2—KWAME ADJEI reputed to be a family friend of the Plaintiff, 1st and 2nd   Defendants.

D. W. 3—KWAKU AGYAPONG who is reputed to be a carpenter

D. W. 4—ADWOA F1—a sister of the half blood of Asantewaa - paternally.

The third defendant however testified for and on behalf of the 4th Defendant as well. At the end of the addresses by both Counsel, the Learned Trial Judge delivered judgment in favour of the Plaintiff thus:—

'I find from the evidence that the Plaintiff did not accept the decision of the family and did not take part in the 1st Defendants aseda to the family. I hold therefore that the Plaintiff is not estopped by conduct from instituting this action.

Even though the Plaintiffs claim included House No.B/107 Kwabeng and the house at Adweso - Koforidua, none of the parties nor witnesses led evidence on the former so I make no determination in respect of the Kwabeng House."

"Save that, I find from the evidence adduced in this court that the Plaintiff is entitled to the reliefs she seeks."

(a) I declare that the house on the plot of land at Adweso, Koforidua the subject matter of the document Land Registry Number 2353/1984 is the property of all the five children of Afua Nkrumah alias Beatrice Asantewaa, namely, Adwoa, Kyerewaa alias Susana Tuffour, Akosua Akyaa, Kofi Boateng, Kwasi Osei and Yaw Gyetua."

(b) "I order interim injunction against the Defendants especially the 1st defendant restraining them from dealing with the said house as if they are the only owners."

(c) "I order the Registrar of the High Court, Koforidua to distribute the estate of the late Afua Nkrumah alias Beatrice Asantewaa among her children."

It is the above judgment delivered on 23-7-2002 that has been appealed against by the Defendants.

Originally, only one ground of appeal was filed namely:—

1. 'The Judgment cannot be supported having regard to the evidence adduced."

Four additional grounds of appeal were later added as follows

2. "The failure of the Plaintiff to endorse the writ of summons and statement of claim to reflect that the action was a representative one makes the action and the judgment that was delivered bad in law.'

3. "The Learned Judge's finding that apart from the 1st Defendant, none of the other defendants testified as to the "aseda" given by the 1st Defendant is perverse and cannot in law stand as a finding of fact."

4. 'The Learned trial Judge was wrong in holding that no gift of the property in dispute was made to the Defendant."

5. "The Learned Trial Judge was wrong in law in holding that the property in dispute was put up and roofed by P.W.1 and his mother with proceeds accruing from the Plaintiffs fathers cocoa farm."

For purposes of this appeal, I will take additional ground 1, now ground two supra first, and depending upon how that ground is decided then proceed to tackle additional grounds 2 and 3 together, now grounds 3 and 4, and then take additional ground 4, now ground 5 and the original ground of appeal together.

ADDITIONAL GROUND "1", BUT GROUND "2" SUPRA.

Learned Counsel for the Defendants S. K. Amoah, in his written submissions argued that since the Plaintiff sued in a representative capacity but failed to endorse her writ to indicate that capacity, this made the writ of summons a nullity and upon which no judgment can stand.

Learned counsel referred to the cases of:—

(1)   AKRONG vrs. BULLEY [1965] G.L.R. S.C. 469 at 473.

[2] GHANA MUSLIM REPRESENTATIVE COUNCIL vrs. SALIFU [1975] 2 GLR.246 holding 3.

Learned Counsel submitted further that upon the demise of the mother of the Plaintiff and the 1st and 2nd Defendants, the Estate of Asantewaa had devolved on her customary successors and or personal representatives, the commencement of the suit against persons who are not vested with the administration of the said estate is bad and the entire judgment should be set aside.

On his part, Learned counsel for the Plaintiff, Raphael Aboagye, contended that the submissions on additional ground one cannot be supported having regard to the facts of the case, pleadings and the law and justice of the case.

Learned Counsel also submitted that, a quick reference to the writ of summons gives a clear indication that the Plaintiff had sued in a representative capacity and was claiming the house not for herself alone, but all the children of her Deceased mother, the 1st and 2nd Defendants inclusive.

On my part, I find as a fact that the Plaintiff in her endorsement on the writ of summons is seeking a declaration that the uncompleted house at Adweso Koforidua and another house at Kwabeng is the property of her late mother, Asantswaa and has become the property of all the children of their Deceased mother following her death.

It must be noted that, the Plaintiff did not stop there, but went ahead to name all the children including herself the Plaintiff, the 1st Defendant, 2nd Defendant, Kwasi Osie, P.W.1 and Yaw Gyetua.

It is therefore clear that the Plaintiff has stated in very clear terms that the property is being claimed for the benefit of all the children of their Deceased mother.

It is therefore clear that the Plaintiff has stated in very clear terms that the property is being claimed for the benefit of all the children of their deceased mother.

As a matter of fact, to accede to the submission of Learned Counsel for the Defendant would lead to really incongruous results.

This is so because the Plaintiff would then have endorsed the writ as follows:—

"ADWOA KYEREWA, suing for and on behalf of the children of Beatrice Asantewa Deceased, namely:—

Adwoa Kyerewa

Akosua Akyaa

Kofi Boateng

Kwasi-Osei and

Yaw Gyetua."

Then in another instance, the writ will disclose that the suit is against some of the very persons the Plaintiff had endoresed the writ as having instituted the writ on their behalf. There is no doubt in my mind that the 1st and 2nd Defendants would quickly have denied ever clothing the Plaintiff to have instituted the writ on their behalf in a representative action.

It must therefore be noted that where, as in the instant appeal, the facts indicate that the 1st Defendant is claiming the house indispute as her own property, it would have been suicidal and nonsensical for the Plaintiff to have gone the extra mile to do what she is accused of not doing i.e. endorsing the writ in a representative capacity to include her.

Furthermore, I am of the firm view that the entire contents of an endorsement on a writ of summons must be read together in order for the true and proper intendment of the endorsement to be understood. If the above is done, it would have left no one in doubt that the writ the Plaintiff issued had satisfied the said criteria albeit in an inelegant fashion due to improper drafting. However, once the true intendment can be gathered from the combined effect of the words used, then it does not really matter if special and technical words like "suing for and on behalf of .………or personal representatives of ………............. " are not used.

I have observed that, Learned Counsel for the Defendants has referred to the cases mentioned supra.

Needless to say that the facts in the AKRONG case already referred to supra are not applicable to the circumstances of this case.

In the AKRONG case, it was made clear that the Plaintiff had not got the capacity in which she described herself as per her amended writ of summons. Personal representative is a legal term meant to describe the existence of a legal Capacity. However as the facts disclosed, at the time the Plaintiff added the words " personal representative in describing herself, she had not clothed herself with the Legal qualification of a personal representative.

In order to appreciate the distinction being made between the facts of the AKRONG case and the instant appeal, it is necessary to quote holding one of the AKRONG case.

"Since at the time the Plaintiff issued her writ she had not taken out letters of administration, she lacked capacity to sue under the Fatal Accidents Act, 1846-64. This lack of capacity was not cured by the fact that she eventually took out letters of administration since this took place after the period of limitation of twelve calendar months prescribed by section 3 of the Fatal Accidents Acts, had run out. The Plaintiffs writ was thus a nullity and so were the proceedings and the Judgment founded upon it."

I believe Learned Counsel for the Defendants got himself carried away by the decision in the AKRONG case.

What must be noted is that the Plaintiff was and has remained at all material times a daughter and or child of Beatrice Asantewa Deceased. That capacity and or relationship existed at the commencement of the writ till to date of this appeal. The Akrong case therefore has no bearing on this appeal.

The Court of Appeal in the Ghana Muslims Representative Council case already referred to held as follows:—

"In a representative action it was necessary, both in the writ and in all subsequent pleadings to state clearly that the parties were suing or were being sued in their representative capacity, on behalf of members of a defined class. The representative capacity should also be stated in the title of both the writ and the statement of claim and not merely in the endorsement of the writ or the body of the pleading. However, where it appeared in a trial in a representative action that the Plaintiff had failed to state the representative capacity of the parties the court would give leave even at this late stage as in the instant case, to amend either the writ or subsequent pleadings by adding a statement that the Plaintiff had sued on behalf of himself and all others of the defined class and the capacity in which the Plaintiffs. Sued and the defendants were sued." Emphasis mine.

Even though I agree with the above decision of the court of Appeal and in any case bound to follow it, I think with respect, the special circumstances of this appeal make it clear that the G.M.R.C. vrs. SALIFU case cannot be automatically applied in this appeal. This is because, to do so would lead to really absurd results as I had indicated much earlier on in this judgment.

To conclude the discussions on this ground of appeal, it is necessary to dismiss the second limb of the arguments of Learned Counsel for the Defendant on this aspect.

The fact of the matter is that, upon the demise of their mother, the 1st Defendant claimed she was the owner of the Adweso-Koforidua House and in the process relied on a gift. The other defendants as the pleadings and the evidence disclosed support the 1st defendant in her bid to claim the house alone.

It would have been improper for the Plaintiff to institute the action against her mothers customary successors or personal representatives knowing very well that the disputed house is not in the hands of either the customary successors or personal representatives if any.

Furthermore, there is also no evidence on record to suggest that Letters of administration had been obtained for and in respect of the Estate of Beatrice Asantewaa Deceased. Since the house had become vested in the 1st defendant with the tacit support and or connivance of the other defendants I hold the view that the Plaintiff was right in suing those she had taken action against.

Finally, it must be noted that the courts are now moving away from strict reliance on technicalities since this undermines the desire of the courts to do justice in all cases.

The Supreme Court has found occasion in several cases to echo this fact that the courts had a duty to ensure that justice was done in cases before them and should not let that duty be circumvented by mere technicalities. Cases such as the following reiterate this fact.

1.  GHANA PORTS AND HARBOURS AUTHORITY

- Versus -

ISSOUFOU [1993-94] 1 G.L.R. 24

2.  OKOFOH ESTATES vrs. MODERN SIGNS LTD. [1996-97] S.C.G.L.R. 224, AT 230 PER Sophia Akuffo, J.S.C.

[Having Disposed off this ground of appeal against the Defendant, I now feel emboldened to proceed with the resolution of the other grounds of appeal.]

ADDITIONAL GROUNDS 2 AND 3 NOW GROUNDS 3 AND 4 SUPRA. The combined effect of these grounds of appeal deal with the issue of whether there was a valid gift of the house to the 1st Defendant by her deceased mother and whether this point had been properly proved by the Defendants before the trial court.

In the present appeal, Learned Counsel for the Defendants, S. K. Amoah submitted on this issue of gift as follows that, since there was ample evidence by the Defendants and their witnesses that a valid gift inter vivos had been made by the mother of the Plaintiff to the 1st Defendant, and that is why at a family meeting at Kwabeng after the death of their mother, it was concluded by the family that the house in dispute is for the 1st Defendant and confirm or affirmed the gift, it was therefore wrong for the trial court to have held otherwise.

On the other hand, Learned Counsel for the Plaintiff in his written submissions contended that the conclusion reached by the trial judge on the question of gift is right.

This, Learned counsel sought to do by making the necessary references to the pleadings eg. Defence of the Defendants and the evidence of the 1st defendant and drew the courts attention to the conflicts in the Defence case.

Evaluating the question of valid gift or otherwise, this is how the Learned trial Judge delivered himself on the topic on page 103 of the record.

"In Re Appiah (Deceased) Yeboah vrs. Appiah [1976] 1 G.L.R. 223 it was held that a widow and her children were entitled to a possessory right of occupation and exclusive possession of the self acquired matrimonial home of a deceased husband and father. The family therefore did not have the right to treat a deceased members self acquired property any way they liked. In this case, it has been found that the disputed house was put up with the proceeds from the cocoa farm of the father. On the death of the father and mother, the disputed house became the property of all the children. Even if one takes the view that the disputed house was the self acquired property of the mother Beatrice Asantewaa, on her death in November, 1998 section 4 of the Intestate succession Law PNDC Law 111 would operate to vest the disputed house in the children.

I therefore reject Counsel for the Defendants submission that on the death of a Deceased member the family can deal with her property anyhow by selling or gifting same' emphasis mine.

This is the Judgment that has been attacked in this appeal.

The Defendants first pleaded the incident of the gift in paragraphs 4, 5 and 9 of the amended Defence on pages 40 and 41 of the record.

These pleadings show that the house was gifted to the 1st Defendant by her mother Asantewa and she the 1st Defendant provided "aseda" before witnesses in or about 1984 or thereabout.

The pleadings also indicate that thereafter, the family of their Deceased mother confirmed the gift after the latters death. According to the Defendants therefore, there was a valid gift of the house to the 1st Defendant by her mother.

The 15th Defendant testified on this issue and I would want to refer to bits and pieces from her evidence. This is what she said,

"I know House No. AK.2 which is the house in dispute. It belongs to me. When my mother vas alive she bought the plot on which the house stands. I paid half the purchase price and my mother also paid the other half. The plot was bought for ¢40,000 so I paid ¢20,000 and my Mother paid ¢20,000.00. This was in 1990.

In 1991, I started building the house". Emphasis mine.

The above piece of evidence is a shift or change in the pleadings of the Defendants. Whereas the Defendants contended that the house was gifted to the 1st Defendant and for which reason she gave "aseda" in the presence of witnesses in or about 1984, the evidence shows that the land upon which the house was put up was jointly paid for by the 1st Defendant and her mother Asantewa in 1990.

Throughout the evidence of the 1st Defendant, she rather gave the impression that she single handedly built the house from her own resources in contra distinction, to the averments that the house was gifted to her by her mother. Hear the 1st Defendant on this matter as follows:—

"Before my mother died on 13-11-98 she told me to put up the building and take it so when I completed the house I took it. This arrangement took place at Kwabeng. This took place in the presence of all members of the family including my fathers successor Agyarko, Abrokwa, Kwame Agyei alias Ogyatuo. They demanded one foreign schnapps and ¢40,000.00". emphasis mine.

Is the demand for the schnapps and the ¢40,000.00 part of the "aseda" or what?

It should be noted that compulsory imposition of items to seal a gift has never been one of the accepted and recognised essentials of a valid gift at customary law.

Elsewhere in her testimony the 1st Defendant again contradicted herself and stated that the ¢40,000.00 and the schnapps were demanded by the family on the first anniversary of her mothers death, when the Plaintiff laid adverse claim to the house as belonging to her mothers Estate and the family held that it was not the case.

The following piece of evidence towards the end of the testimony of the 1st Defendant on page 54 of the record actually exposed her as an inconsistent person. Hear the 1st Defendant as follows:—

"It is true during the gift Plaintiff objected but it is not true that as a result one Kwame Agyei assaulted her. Kwame Agyei only said that what the Plaintiff was saying is not true." emphasis mine.

This clearly shows that it was after the death of their mother and during the first anniversary celebration at Kwabeng that the family of the deceased purported to gift the house to the 1st Defendant.

The reference to the objection by the Plaintiff came about during the first anniversary meeting at Kwabeng and that reference could only be to that particular meeting.

The 1st Defendant in an answer to a question during cross-examination by Counsel for Plaintiff stated that she could not tell the level the constructional works on the building had reached as at 1993.

It appears to me sufficiently that since the mother of the Plaintiff and the 1st and 2nd Defendants, did not personally gift away the disputed house to the 1st Defendant during her lifetime, the family of the Deceased woman could not have legally gifted the house to only the 1st Defendant after the latters death.

This is because since there was no gift before Asantewa's death, the disputed property forms part of the Estate of the Deceased that has fallen into Intestacy and ought to be distributed according to the Intestate Succession Law, P.N.D.C. Law 111.

Furthermore, it is preposterous for the 1st Defendant who claimed to have constructed the house not to have known the level the—construction of the house reached in 1993.

There have been series of conflicting pieces of evidence by all the Defence witnesses on whether there was a gift of this disputed house to the 1st Defendant or not.

Even though D.W.1 and D.W.2 also led conflicting pieces of evidence, in order to out a long story short, it is not necessary to recount these here.

I will however deal with the evidence of D.W.3 on the construction of this disputed house. This is what he said in his evidence in chief;

"It was the 1st Defendant who engaged and negotiated the price with me. It was the Plaintiff’s mother who brought the board from Asamanna and deposited them in the house of the Plaintiff and 1st Defendants fathers house where I stay. When I ready to roof, P. w. 1 brought them to the site. I live in the same house with P.W.1 so he was bringing me the roofing sheets." Emphasis mine.

From the above, it is clear that even though it was the 1st Defendant who negotiated the price with D.W.3 in respect of the roofing of the building, the Plaintiffs mother and brother P.W.1 all played leading roles. This therefore lends credence to the Plaintiffs contention that the building was put up by their mother.

By far, the most concise and cogent evidence on the issue of gift of the house came from the 3rd Defendant, Bernard Amaning Agyako.

After narrating now the family met on the first anniversary of the death of Asantewa at Kwabeng to resolve a dispute as to which of the Plaintiff and the 1st Defendant owned the disputed house, this is what the 3rd Defendant said.

"All of us who were there went into the dispute and found out that the land on which the house is situate was bought by their mother Maame Efua Nkrumah. She intended giving it to the Plaintiff and the 1st Defendant but realised there was friction between the two so she gave the land to the 1st Defendant the younger of the two."

"…………… After listening to both sides i.e. Plaintiff and 1st Defendant and their witnesses we went into consultation and came to announce that the house belonged to the 1st Defendant. We asked the 1st Defendant to thank us with a bottle of schnapps and ¢40,000 which she did."

It is therefore clear that the 1st Defendant did not provide the bottle of schnapps and ¢40,000.00 to seal the gift during the lifetime of her mother.

This also confirms the fact that it was the Plaintiffs mother who bought the land and not the joint purchase that the 1st Defendant would want the court to believe.

If the house did not belong to their mother, then clearly therefore she would not be competent to deal with it by gifting it away.

It does appear to me conclusively after a critical appraisal of the decided cases such as

        1.             YOGUO vrs. AGYEKUM (1966) G.L.R. 482 S.C., and

        2.             In Re OHENE (Deceased) ADIYIA vrs. KYERE (1975) 2 G.L.R. 89 C.A., that the Learned trial judge properly evaluated the evidence on the issue of GIFT and dismissed same.

This is because, on the facts, the 1st Defendant did not satisfy any requirement, essential to proof of a valid gift inter vivos.

For example, it was held by the Curt of Appeal in the In Re Ohene case referred to supra as follows:—

"consent by members of a family to a gift inter vivos of the self—acquired property of a donor or the presence of witness from the donors family was no longer necessary. What was essential was proof by the donee of formal acceptance and due publicity of the gift." Emphasis mine.

In this appeal, there has been no evidence led what-soever to establish that a gift of the house and or land had been made by the Deceased Asantewa to the 1st Defendant.

There has also been no evidence whatsoever by the 1st Defendant that having made the gift to her she formally accepted the gift.

Finally, there has been no publicity whatsoever about the purported gift.

Taking into consideration the evidence of the 3rd Defendant, I am of the opinion that there ought to have been adequate publicity about the said gift if at all. This is because, if the Deceased had intended as 3rd defendant said to gift the house to the Plaintiff and the 1st Defendant but changed her mind, then there ought to have been very wide publicity about the gift—such as would leave no one in doubt about the incident of a gift.

As it turned out in this appeal, the family gathering purported to have accepted the aseda after the death of the Deceased, Asantewa. There is a saying that "Dead men tell no tales" and since Asantewa the mother of the Plaintiff and the 1st Defendant cannot resurrect to testify on whether she gifted the house or not to the 1st Defendant, a court of law must be very slow in accepting such an evidence.

In this respect, I cannot but adopt this dictum from the judgment of the Court of Appeal in the case of In Re Ohene (Deceased) Adiyia vrs. Kyere already referred to supra.

"It is true that a claim of a gift from a deceased person must always be approached with caution if not suspicion. In this respect the customary law is no different from the common law. For as was said by BRETT M.R. in In Re-GARNETT, Grandy vrs. Macaulay [1885] 31 Ch. D.1 at p. 9 C.A.

"The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the evidence ought to be looked at with great care the evidence ought to be thoroughly sifted, and the mind of any Judge who hears it ought to be, first of all, in a state of suspicion, but if in the end the truthfulness of the witnesses is made perfectly clear and apparent, and the tribunal which has to act on their evidence believes them, the suggested doctrine of (corroboration) becomes absurd."

I am satisfied that the Learned Trial Judge adopted the right approach and applied the relevant tests, thoroughly sifted the wild and unsubstantiated claims of the 1st Defendant and came to the right conclusions that there was no gift of the house by the Deceased to the 1st Defendant—As a matter of fact, a reference to the evidence of D.W.4, Adwoa Fi a paternal half sister of the Deceased Asantewa shows quite clearly that the property in dispute was not gifted with the necessary publicity that is required by law.

What transpired at the first anniversary of the death of Asantewa could be described as an attempt to settle differences between the Plaintiff and the 1st Defendant which Plaintiff rejected.

What then happened is an open secret. The Plaintiff rejected the claims of the 1st Defendant and also the decisions if any that were reached when the elders retired for consultations.

It is therefore clear that, it was at that family meeting at Kwabeng on the first anniversary of the death of Asantewa that the family held that the disputed house had been gifted to the 1st Defendant. In order to give a semblance of respectability to the purported gift, the family decided that the 1st Defendant should provide drink and money. Was this intended to be aseda or what?

In any case, the evidence of D.W.4 has created more doubts and conflicts in the case of the Defence that the Learned trial Judge was right in dismissing same that there was no valid gift.

I therefore hold and rule that the Defendants have not been able to sustain these grounds of appeal as well. They are accordingly dismissed.

ADDITIONAL GROUND 4 NOW GROUND 5 AND ORIGINAL GROUND OF APPEAL.

In these grounds, let me refer to the oft quoted statement from the celebrated case of TSRIFO vrs. DUA VIII, [1959] G.L.R. 63 at p.64—65 which was approved and affirmed by the supreme Court in the case of OSEI YAW vrs. DOMFEH (1965) G.L.R.418 at p.423 where it was stated as follows;—

"Where the evidence of one party on an issue in a suit is corroborated by witnesses of his opponent whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a Court ought not to accept the uncorroborated version in preference to the corroborated one, unless for some cook reason (which must appear on the judgment) the court finds the corroborated version incredible or impossible." emphasis mine.

As I have already pointed out, the evidence of D.W.3 the carpenter who is reputed to have roofed the building really corroborates the evidence of the Plaintiff and her sole witness P.W.1 so also is the evidence of D.W.1.

It must be borne in mind that the combined and total effect of the evidence of D.W.3 is to the effect that the roofing was done by the mother of the Plaintiff, P.W.1 and the 1st Defendant. The attempt by the 1st Defendant to claim the works as having been executed solely by herself in contra distinction to roles played by her other siblings and mother has not been proven.

This will therefore qualify the disputed house as a property that has fallen into intestacy following the death of the Deceased owner, Asantewa.

I therefore agree with the findings of fact made by the Learned trial Judge on all essential points.

I have not been impressed with the lame and somewhat doubtful claims by the 1st Defendant to the house.

Since the 1st Defendant has woefully failed to establish the incidence of a gift, and on the contrary, the Plaintiff has conclusively proved that the house was built by their mother, there is no need to disturb the judgment of the trial court.

The only aspect of the judgment to be varied is the order labelled as (c) on page 104 of the appeal record; wherein the Learned trial Judge directed the Registrar of the High Court, Koforidua to distribute the Estate of the Deceased Beatrice Asantewaa to the children of the Deceased. With the greatest respect, I think this court will substitute a varied order and direct as follows:—

'Having held that the Estate of Beatrice Asantewaa has fallen into intestacy I will direct that Letters of Administration be obtained by those qualified to obtain it and thereafter the Estate would be distributed according to P. N.D. C. Law 111 ".

Save as varied above, the Judgment of the High Court, Koforidua dated 23-7-2002 is hereby affirmed.

The appeal herein dated 29-7-2002 is accordingly dismissed save for the orders for variation made in the distribution of the Estate of the Deceased, Beatrice Asantewaa. Costs of ¢2 Million to Plaintiff/Respondent against the Defendants/ Appellants.

JONES DOTSE

JUSTICE OF APPEAL

FARKYE, J.A.

I Agree.

S.T. FARKYE

JUSTICE OF APPEAL

AKAMBA, J.A.

I also agree.

J.B. AKAMBA

JUSTICE OF APPEAL

COUNSEL

S.K Amoah for the Defendants/Appellant.

Raphael Aboagye for Plaintiff/Respondent.

 

 
 

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