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 IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT

                     OF JUSTICE (LAND COURT DIVISION) HELD IN ACCRA ON

                         THURSDAY 1ST DECEMBER, 2011. BEFORE HIS LORDSHIP    

                                           JUSTICE ANTHONY OPPONG  J.        

                                          _______________________________

 

SUIT NO.  L 85/97

                      

                        

DR. MAROUN KHAIR CABALAN                              }     PLAINTIFF

 

                             VS.

 

              PHILIP KHAIR CABALAN                                         }     DEFENDANT

 

             MRS. JUMANA HUSSEIN                                            }   CO-DEFENDANT

 

  

             ___________________________________________________________________

 

                                                            J    U    D   G   M   E   N   T

___________________________________________________________________

 

            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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