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J U D G M E N T
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The endorsement on the writ of
summons reads:-
(a)
Declaration that the outhouse
on the compound
of H/NO. B. 126/20, Kwashieman
Official Town (Odorkor), Accra
was solely put up by her and as
such it does not form part of
the estate.
(b)
A declaration that she is the
joint owner of H/No. B. 126/20
Kwashieman Official Town,
Odorkor, Accra.
(c)
A further declaration that as a
widow of the deceased, she is
entitled to a reasonable portion
of the estate.
(d)
An order of injunction
restraining the defendant from
vesting the property in dispute
to either himself or in
Josephine Khair Cabalan.
(e)
Any further order or orders as
the court deem meet.
The plaintiff died in the course
of the pendency of this case and
her death rendered reliefs ‘C’
otiose. Upon her death Dr.
Maroun Khair Cabalan was
substituted.
It must also be mentioned that
since defendant, a son of the
original plaintiff was showing
signs of compromising the
interest of Josephine Khair
Cabalan, the latter had to come
in and on an application she was
joined to this suit as 2nd
defendant.
Upon joining the case, 2nd
defendant counterclaimed
for:-
1.
Declaration that the outhouse of
H/No. B 126/20 Kwashieman
Official town is the bonafide
property of the late Harry Khair
Cabalan.
2.
An order for recovery of
possession of the outhouse of
H/No. B. 126/20, Kwashieman
Official Town, Accra.
3.
An order for the sole executor
to vest the outhouse of H/No.
126/20 Kwashieman Official Town
in the 2nd defendant.
Or in the alternative an order
for the Adminstrator-general to
assume responsibility for the
administration of the estate of
Harry Khair Cabalan (deceased).
4.
An order for the plaintiff to
render account for rents
collected in respect of the
outhouse.
5.
An order for the plaintiff to
pay to the 2nd
defendant rents collected in
respect of the outhouse.
6.
Pepertual injunction restraining
the plaintiff her servants,
assigns, privies etc; from
interfering with the quiet
enjoyment of the 2nd
defendant of her gift of the
outhouse of H/No. B 126/20,
Kwashieman Official town, Accra.
In the pleading, plaintiff
stated that she is a joint owner
of H/No. B 126/20, Kwashieman
Official Town, Odorkor. However,
in giving evidence, the attorney
of plaintiff testified that this
house was solely acquired by his
late mother Mrs. Christiana
Khair Cabalan, the original
plaintiff solely.
I take cognizance of
thefact that the statement of
claim which showed that the
house in controversy was jointly
acquired by Harry and Christiana
was prepared by a lawyer who was
instructed by Christiana in her
lifetime. Yet, Charbel Khair
Cabalan, the plaintiff’s
attorney and a son of Christiana
could come to court and throw
dust into the eyes of the court
by insisting that her mother
acquired the house solely by her
own resources. This attorney
would not even recognize 2nd
defendant as his half sister.
Besides, he could speak so
disrespectfully of his deceased
father by saying of him: “Ever
since I grew up to know my late
father I never saw him in any
gainful employment. He was
working for various companies as
an ordinary worker, a labourer”.
The attorney portrayed himself
as someone who is consumed with
morbid hatred for 2nd
defendant such that he was
blinded to the truth.
In effect, I find
that the house in dispute was
not the sole property of Mrs.
Christiana Khair Cabalan. Rather
it was acquired by Harry Khair
Cabalan. Therefore it was within
his testamentary capacity to
devise the property in Exhibit
‘3’ his Will. Indeed Exhibit
‘1’, the building permit speaks
volumes as to the credibility of
the ownership of the Odorkor
house in Harry Khair Cabalan.
Plaintiff relied on
Exhibit ‘B’ series to show that
the disputed house was acquired
by Mrs. Christiana Khair
Cabalan. However, 2nd
defendant’s explanation as to
how Christiana obtained those
receipts is worth referring to
for its reasonableness and
effect. She said:
“When my late father
was building the house, I was
visiting him on Saturdays
at the shop where he was
working; several times the wife
would come to the
shop on those Saturdays to take
money to buy building materials
and those receipts
she obtained she put her name
on them. When the money was
quite big, my father
would go himself and purchase
them and Mrs. Christiana Khair
Cabalan would take charge of the
shop”.
This evidence was not challenged
in cross-examination and I
accept same as showing
that the mere fact of those
receipts being in the name of
Christiana could not constitute
sufficient proof of ownership in
Christiana having regard to the
peculiar facts in this case.
Exhibit ‘C’ is
self-serving and does not merit
any probative value as to its
contents.
To the extent that
there is no clear description of
the land as far as Exhibit ‘D’
is concerned, it can not be the
reason for one to come to an
irrebuttable conclusion that the
property in dispute was acquired
by Christiana. That is to say
the intended grant contained in
Exhibit ‘D’ could be in respect
of a plot of land at Kwashieman
but different from the land on
which the property in dispute
stands.
It is trite that a
claim against a deceased’s
estate must be viewed with
suspicion. Proof must be strict
and utterly convincing, as one
of the protagonists is dead and
cannot assert his claim.
Plaintiff’s claim
was asserted against the estate
of Harry. Therefore plaintiff
was required to produce cogent
sufficient and convincing
evidence to prove ownership of
the estate in Christiana and in
my view plaintiff failed to
discharge that burden.
On the other hand, 2nd
defendant vive voce evidence
together with the Exhibits she
tendered which plaintiff
disabled himself from
challenging, the opportunities
offered to him notwithstanding,
I hold that the outhouse and the
main house of H/No. B 126/20,
Kwashieman Official Town,
Odorkor were properties acquired
by Harry Khair Cabalan and he
died possessed of those
properties. Accordingly it was
within his testamentary
competency to devise the
properties as done in exhibit
‘3’.
Plaintiff’s action
is accordingly dismissed.
Judgment is entered for 2nd
defendant in terms of her
counterclaim. Accordingly it is
hereby declared that the
outhouse of H/No. B 126/20
Kwashieman Official Town is the
bonafide property of the late
Harry Khair Cabalan. I order
recovery of possession of the
outhouse of H/No. B 126/20,
Kwashieman Official Town, Accra
in favour of 2nd
defendant. Since the sole
executor of the Will is
deceased, I direct the registrar
of this court to vest the
outhouse of H/No. B 126/20
Kwashieman Official Town in the
2nd defendant. I
order plaintiff to render
account of all rents collected
from the renting of the outhouse
from the date when the outhouse
was first rented and pay same to
2nd defendant. I
order perpetual injunction
restraining plaintiff either by
himself, his attorney and
Charbel Khair Cabalan, his
servants, assigns, privies etc;
from interfering with the quiet
enjoyment of 2nd
defendant of the device of the
outhouse of H/No. B 126/20,
Kwashieman official Town, Accra.
2nd defendant is
awarded costs of GH¢10,000.
(SGD) ANTHONY OPPONG J.
JUSTICE OF THE HIGH COURT.
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