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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