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On 1st April
2008, the Plaintiff caused Writ
of Summons to be issued against
the Defendant for a declaration
that having been customarily
adopted by the deceased, Mercy
Amitor Agbeko Plaintiff is
entitled to succeed deceased's
estate according to PNDC LAW
111. The Defendant entered
appearance on 24th April 2008
and went on to file his
Statement of Defence in which he
denied the claim of the
Plaintiff that she was adopted
by the deceased. She is,
therefore, not entitled to
succeed the estate of the
deceased. Pursuant to an order
of the Court, the Plaintiff
filed an Amended Statement of
Claim on 3rd March 2010 and on
12th March, the Defendant filed
Statement of Defence to the
Amended Statement of Claim. In
the Amended Statement of Claim
the Plaintiff avers that the
Defendant is her uncle. She says
she was born to Mansah Dzisah
and Livingstone Kudzordzi on 1st
April 1977 and six months after
her birth she was customarily
adopted by Mercy Amitor Agbeko
(deceased) who was the maternal
sister of her mother. She avers
that the deceased who had no
children of her own expressed
interest in adopting her to her
parents who consented to her
adoption. She claims that
relatives of her adopter and her
own parents were present at her
adoption ceremony. According to
her at the adoption ceremony,
two bottles of schnapps were
provided by her adopter which
was symbolically presented to
Plaintiff's grandfather. The
Plaintiff claims that during her
marriage ceremony somewhere in
December 2000, her adopter was
introduced as her mother even
though Plaintiff's biological
mother was present. Also her
adopter instead of her
biological mother was given the
cloth and scarf which are
symbolically presented to
mothers during such ceremonies.
Being the adopted child of the
deceased, she allowed the
Plaintiff and her husband to
stay with her after the marriage
ceremony. She says she had lived
with the deceased since her
infancy till her death in
January 2005. She claims that at
the time of her death, the
deceased was married to one
Stephen Nuworku of Mamobi,
Accra. Plaintiff states that she
took charge of deceased's burial
and funeral ceremony and
provided money, coffin and other
logistics for the funeral. Also
being the adopted child of the
deceased a Unity Association
which the deceased was a member
presented GH¢500.00 to her when
the deceased died. She avers
that the deceased had more
property than it was declared by
Defendant in form No. 68
accompanying the Letters of
Administration she caveated. She
claims that at the time of her
death the deceased had the
following properties:- a. Houses
at Klikor and Chantan. b. 3
plots of land at Ashaiman. c. A
residential property in the St.
Theresa JSS — North Kaneshie
neighbourhood. d. One urvan bus,
one long passenger bus and a
Toyota saloon car. e. Three
rental stores at Okaishie Accra
Central. She claims that one of
the stores was given to her by
the deceased to operate, the
other is occupied by Defendant's
wife and the deceased's elder
sister Charlotte Dzisam operates
the last store. She says most of
the goods in the store at the
time of the death of the
deceased were credited goods so
creditors went for their goods
when they heard of the death of
the deceased. The Plaintiff,
therefore, claims as per the
endorsement on her writ of
summons. The Defendant on the
other hand denies Plaintiff's
claim in his Statement of
Defence filed in reaction to the
Amended Statement of Claim. The
Defendant denies that the
Plaintiff was adopted by the
deceased as alleged by her. He
claims that at age 8 the
Plaintiff was sent by her Mother
to stay with the deceased. The
Defendant adds that the deceased
had 13 other family members'
children living with her at
various times until her demise.
He further denies that at the
time of her death the deceased
was married to the said Stephen
Nuworku. He claims the Plaintiff
was just assisting the deceased
as a shop assistant or
storekeeper so she has no
interest in the stores. She is,
therefore, not entitled to her
claim. The following issues were
set down by the Court as issues
to be tried:- a. Whether or not
Plaintiff is the adopted child
of the deceased Madam Mercy
Amitor Agbeko. b. Whether or not
deceased was married to Stephen
Nuworku of Mamobi, Accra. c.
Whether or not deceased had more
property than was declared by
Defendant in form No. 68
accompanying the application for
the letters of administration.
d. Whether or not Plaintiff is
entitled to her claim. At the
trial the Plaintiff's case was
presented to Court by the
Plaintiff herself and two others
made up of the said Stephen
Nuworku and her father
Livingstone Kudzordzie. The
Defendant on the other hand had
his case presented to Court by
the Defendant himself and three
others made up of his wife, Mrs.
Fidelia Agbeko, Torgbui Amane Il
and Afedomega Francis Agbeko.
The case of the Plaintiff given
in Court was essentially a
repetition of the averments in
the Amended Statement of Claim.
She confirmed that she was
adopted by Mercy Amitor Agbeko
(Deceased) when she was six
months old. She claims that the
deceased told her that there was
a ceremony for the adoption
during which she presented two
bottles of schnapps. According
to the Plaintiff she was told
that those who witnessed the
ceremony for her adoption
included her maternal
grandfather and grandmother as
well as her biological mother
and father. She claims that at
the time of her marriage, even
though her biological father and
mother were present it was the
deceased who collected her bride
price. She tendered in evidence
a CD on the marriage ceremony.
She confirms that the deceased
was presented with a piece of
cloth and a headgear as a
mother. She says that during the
burial and the funeral of the
deceased she did all that was
expected of her as a child. For
example she bought the coffin.
She tendered in evidence
receipts on the coffin as
Exhibit A, A1 and A2 and the key
to the coffin as Exhibit B. she
also tendered in evidence the
obituary and the brochure as
Exhibits C and D respectively.
She claims that it was she who
also spent on the food served at
the funeral. She mentioned the
properties of the deceased that
she knows to the Court. She
concluded her evidence by
tendering in evidence the CD on
her marriage ceremony as Exhibit
F. The Plaintiff told the Court
under cross examination that it
was the deceased who sponsored
her education through nursery,
kindergarten, through primary
school to J.S.S and to catering
school and when she realized
that the Plaintiff was not
performing well she asked her to
stop schooling and assist her
with her business. The evidence
of the Plaintiff that she was
adopted by the deceased when she
was six months old was
corroborated by her father
Livingstone Kudzordzie. He told
the Court that the deceased was
a sister to his wife Mansah
Dzisah. He went on to say that
the deceased had no child of her
own so when the Plaintiff was
six months old the deceased went
to see him and his wife that
they should give the Plaintiff
to her and they obliged. He says
that there was a ceremony to
seal the adoption and those
present at the ceremony included
himself, his father Sentely
Kudzordzie, his wife and
biological mother of the
Plaintiff, Mansah Dzisah, his
mother- in-law, Dzenawo Klutse
and the late Mercy Amitor Agbeko.
He said the deceased presented
two bottles of schnapps at the
ceremony. They opened one of it,
mashed corn flour in water and
poured libation and the
remaining drinks taking away by
his father. The deceased then
took the Plaintiff to Accra. She
took complete care for the
Plaintiff including her
education. The Plaintiff,
therefore, lived with the
deceased whilst she was six
months old till her death. He
also told the Court that at the
marriage ceremony of the
Plaintiff, even though her
biological mother was present,
it was the deceased who was
introduced as her mother and a
gift was made to her as such. He
also confirmed that when the
deceased died the Plaintiff
bought the coffin, food and
drinks. Stephen Nuworku also
told the Court that the deceased
was his wife at the time of her
death and that the Plaintiff was
her daughter. He says that he
performed the necessary marriage
rites to marry the deceased at
her hometown, Agbozume. He
claims the deceased was her
second wife so she was living at
Pigfarm whilst he lived with his
first wife at Maamobi. He,
however, alternated his sleeping
places with them. That is he was
with each of them in any other
week. He also said he was at the
marriage ceremony of the
Plaintiff and that it was the
deceased who was introduced as
the mother of the Plaintiff. He
claims that at the time of the
burial and funeral of the
deceased he was sick so he could
not personally attend. He,
however, sent his brother who
performed the necessary custom
as a husband on his behalf. In
his evidence in Court the
Defendant denied that the
Plaintiff was adopted by Mercy
Amitor Agbeko He claims that he
stayed with the deceased since
1974 until she had her own plot
at Chantan. The Plaintiff was
sent to her by her mother when
she was 8 years old. He goes on
to say that it is a taboo and
abomination in the Klikor
Traditional Area where they come
from and in their family to
adopt. According to him after
the burial of the late Mercy
Agbeko he assembled the elders
of Dzisa and Agbeko families and
the issue of adoption never came
up from any quarters. The
Plaintiff is, therefore, not an
adopted daughter of the
deceased. He claims adoption is
not part of their custom. The
Defendant says that he was with
the deceased in the same house
at Pigfarm when the Plaintiff's
mother took her to the deceased
and she told the deceased that
she was in financial
difficulties as a result of
which she could not cater for
the Plaintiff so the deceased
should stay with her.The
Defendant denies the evidence of
Livingstone Kudzordzie that he
gave the Plaintiff out for
adoption. He says that when the
issue came up he sent the family
to him to confirm the adoption
and Livingstone said he had not
given out his daughter for any
adoption. Also if truly the
Plaintiff had been adopted she
would not have continued to use
her father's name. It was,
therefore, shocking when the
father of the Plaintiff
confirmed the said adoption in
Court. The Defendant told the
Court that the deceased was
staying with 13 other dependants
including the Plaintiffs mother
and none of them was adopted by
het. He also denied that at the
time of the death of Mercy
Agbeko she was the wife of
Stephen Nuworku. He says that
they were just friends and it
was because they were not
married that they did not
involve him in the burial of
Mercy Agbeko. His name was not
included in the obituary and the
brochure prepared in. connection
with the burial and funeral of
the deceased. He also denied
that the said Stephen Nuworku
sent somebody to perform some
rites at the burial and funeral
of the deceased as a husband.
The Defendant went on to say
that whatever money the
Plaintiff might have spent on
the burial and the funeral of
Mercy Agbeko was not her own
money but it was the deceased's
own money. Also the coffin for
the burial was purchased by all
the 13 people who were staying
with the deceased at the time of
her death. In respect of the
properties which-were not listed
in the application for the
letters of administration, he
told the Court that when they
met after the funeral those
properties were not brought to
his knowledge so when the
application is granted they
would consider all those
properties. The Defendant
concluded his evidence by saying
that Plaintiff is no entitled to
his claim. The evidence of the
Defendant that the deceased did
not adopt the Plaintiff as a
child and that at the time her
mother sent her to live with the
deceased she was 8 years old was
corroborated by his wife Fidelia
Agbeko who confirmed that she
and her husband were living in
the same house at Pigfarm when
the Plaintiff was brought by her
mother. She claims that when the
Plaintiff was brought it was
their room that the mother of
the Plaintiff had a discussion
on the Plaintiff and that she
acted as the linguist. According
to her the mother of the
Plaintiff pleaded with the
deceased to allow the Plaintiff
to live with her. At that time
the Plaintiff was 8 years old.
Torgbui Amahe II, chief of
Klikor Horme gave evidence as
DW2. He claims that he
accompanied the Defendant and
other family members to Accra
after the death of the deceased.
They took inventory of all her
properties and gave the
Defendant power of attorney to
apply for letters of
administration. He said the
Plaintiff was at the said
meeting and she mentioned the
properties in her care. He
denied that the Plaintiff was
adopted by the deceased in the
sense that at the said meeting
of the family the Plaintiff
never told them that she was
adopted by the deceased. He
claims that if she had told them
of the adoption they would not
have given the power of attorney
to the Defendant to apply for
letters of administration. He
also said that adoption is not
allowed in the Klikor area. The
Head of the family of the
deceased Afedomega Francis
Agbeko also denied that the
Plaintiff was adopted by the
deceased. He also denied that
the said Stephen Nuworku was the
husband of the deceased. From
the pleadings and the evidence
before the Court, the main issue
before the Court is whether or
not the Plaintiff was adopted by
the deceased Mercy Amitor Agbeko.
Whilst the Plaintiff claims she
was adopted by the deceased, the
Defendant has denied that
assertion. There is, therefore,
the need for this Court to
carefully examine the pleadings
and the evidence before the
Court in order to determine
which of the evidence is more
probable. This is because civil
cases are determined on a
balance of probabilities as
shown in the case of Serwah v.
Kesse [1960] 227 at 229 where it
was held that in all civil cases
the preponderance of probability
in favour of a party may
constitute sufficient ground for
a judgment in favour of that
party. In the current case, the
Defendant and his witnesses
denied that the Plaintiff was
adopted by the deceased in the
sense that in the Klikor area
where they come from adoption is
a taboo. They claim that due to
the presence of a powerful
shrine by name Torgbui Adzima
adoption is not allowed in that
area. Also after the burial and
funeral of the deceased, the
family, met and took inventory
of the properties of the
deceased and the issue of
adoption never came up for
discussion. In his address
counsel for the Defendant states
that the law on adoption at
customary law is not uniform
across the country. He referred
the Court to the book, Family
law in Ghana by William E. Offei,
Third Edition at page 341 and
submitted that the book only
discussed cases on adoption in
respect of the Akans. It did not
discuss the position of the law
in respect of Ewe customary law
on adoption. He claims that
since parties involved in the
current case are Ewes, the law
on adoption as discussed in the
book is not applicable to this
case. On Ewe customary adoption,
he referred the Court to the
series, Restatement of African
Law, Ghana Vol. 6, Ewe Law of
Property by Dr. A. K. P. Kludze
(as he then was), 1973 published
by Sweet & Maxwell Limited. The
learned author states at page 67
as follows:- "Adoption in the
modern sense is unknown to Ewe
Law. A couple or an individual
may take over another person's
child and maintain him for an
unlimited period; but this
cannot legally change the
child's paternity or maternity.
It cannot alter or even merely
affect the child's membership of
his family of origin." Counsel
for the Defendant submits that
the position of Kludze reflects
the position at Customary Law on
adoption among the Ewes. So the
question is should the Court
accept the position of the
Defendant that adoption is a
taboo in the area concerned? The
issue of adoption was raised by
the Plaintiff in her Statement
of Claim filed on 1st April 2008
and subsequently in her Amended
Statement of Claim filed on 3rd
March 2010. In fact that was the
main issue in both pleadings. In
his Statement of Defence filed
on 24th April 2008 and in his
Statement of Defence to the
Amended Statement of Claim filed
on 12th March 2010, the
Defendant never stated that
customary adoption is a taboo in
the Klikor area. Even though the
Defendant denied that the
Plaintiff was adopted by the
deceased in the said pleadings
it never stated that because of
the presence of a powerful
shrine in Klikor area adoption
was a taboo in that area. All
that he states in the pleadings
is that it was at age 8 that the
Plaintiff was sent by her mother
to go and live with the deceased
because she was finding it
difficult to care for her. She
was, therefore, not adopted by
the deceased. The evidence of
the Defendant and his witnesses
on the issue that adoption is a
taboo is as a result at variance
with his pleadings. The
principle on such evidence is
found in the case of Appiah v.
Takyi [1982-83] GLR 1 in which
it was held by the Court of
Appeal that where one party's
evidence amounts to a departure
from his pleadings and the
evidence of the other party is
consistent with the pleadings,
the latter is to be preferred.
It is, therefore, my belief that
if truly, adoption is a taboo in
the area because of the presence
of a powerful shrine by name
Adzima as the Defendant wants
this Court to believe, he would
have stated that in his
pleadings since that is a
material fact that ought to have
been pleaded. The Court also
takes notice of the fact that
the Defendant was talking about
atonement which is different
from adoption. According to him
if one offends the shrine, the
said person sends his daughter
to serve the shrine as atonement
for the offence. I do not see
how this relates to adoption.
The evidence before the Court on
the issue of adoption,
therefore, shows that whilst
Plaintiff's evidence given in
Court is consistent with her
pleadings, the evidence of the
Defendant on the issue in Court
is a departure from his
pleadings. It is, therefore, my
opinion that even though the
Defendant has denied that the
Plaintiff was adopted by the
deceased the issue that adoption
is a taboo in the area is an
afterthought which cannot be
accepted by this Court. As has
been stated elsewhere in this
judgment, Kludze states that
adoption in the modern sense is
unknown to Ewe Law. He did not
go on to explain why adoption is
unknown to Ewe Law. He never
said that it is a taboo to
adopt. If adoption is a taboo in
Ewe area as the Defendant wants
the Court to believe Kludze
would have made it clear in his
assertion. So his assertion that
adoption in the modern sense is
unknown to Ewe law does not mean
one cannot be customarily
adopted and it cannot bind this
Court. I, therefore, do not
agree with counsel for the
Defendant that by that assertion
there can be no customary
adoption in the Ewe land. The
question then is can it be said
from the evidence before the
Court that the Plaintiff was
customarily adopted by the
deceased? The evidence before
the Court shows that the fact
that the Plaintiff lived with
the late Mercy Agbeko until her
death is not in doubt, what is
in contention is whether or not
she was customarily adopted by
her. The essential requirements
of customary adoption are given
in the case of Planqe v. Planqe
(1977) 1 GLR 312 In that case
the Court of Appeal held that
the essential requirements for a
valid customary adoption were
the expression of the adopter's
intention to adopt the infant
before witnesses and the consent
of the child's natural parents
and family to the proposed
adoption - such consent, to be
objectively ascertained or
inferred from either their
express words or conduct.
Consequently the consent of the
adopter's own family and the
previous joint meeting of the
families of the child and the
adopter were unnecessary. The
said case goes on to state that
the legal effect of customary
adoption is: a) That the adopted
child acquires the status of a
child of the marriage and
enjoy-the same bundle of rights
including rights of inheritance,
duties, privileges and
obligations as the natural child
and; .b) The rights and
liabilities of the natural
parents of the adoptee become
permanently extinguished and
devolve on the adopting pa rents
See also the case of Tanor and
Another v. Akosua Koko (1974) 1
GLR 451 in which the Court of
Appeal set out the essential
requirements for the adoption of
an infant into a family in
accordance with customary law as
follows: "the consent of the
child's parents and the
expression of the adopter's
intention to adopt the infant
before witnesses." On the
essentials of customary
adoption, Sarbah wrote in 1896
that: “To make adoption valid,
it must be done publicly, and
the person who wishes to adopt
must not only get the consent of
the family and parents whose
child is to be adopted, but he
must clearly state before
witnesses his desire and
intention." See Sarbah, Fanti
Customary Laws (3rd ed.), p.34.
From the authorities referred to
above for a customary adoption
to be valid the adopter must
show that he had the intention
to adopt and this can only be
inferred from either his express
words or conduct, it must also
have the consent of the natural
parents which must also be
inferred from either their
express words or conduct. This
implies that the consent of the
family of the adopter is not
essential requirement for
adoption. While there may be
local variation in the
formalities or actual ceremony
of customary adoption, the
essential requirements and legal
effects are the same in both
matrilineal and patrilineal
communities - the consent of the
natural parents and family of
the infant adoptee and the
expression of the adopter's
intention to adopt the infant
before witnesses, being two
crucial prerequisites. See
Planqe v. Planqe (supra). It is
observed that these conditions
were laid down in Sarbah's Fanti
Customary Laws in 1896 and
followed by the Court of Appeal
in the case of Tanor v. Akosua
Koko (supra), in 1974, both of
them having particular reference
to Akan custom. The Court of
Appeal in the case of Planqe v.
Planqe (supra) which had
reference to Ga custom in 1977
followed the same principles on
customary adoption. In the
current case, the Defendant
challenged the said adoption of
the Plaintiff on ground that
because of the presence of a
powerful shrine in the Klikor
area adoption is a taboo.
However, the Court observed
that, because the Defendant
failed to plead that material
fact in his pleadings, the Court
considers that assertion of the
Defendant as an afterthought;
that cannot be accepted by this
Court. In view of that this
Court holds that the essential
requirements for customary
adoption identified in the
authorities referred to are
equally applicable to the
current case. These are the
public declaration of the
adopter's intention to adopt the
infant and the consent of the
natural parents of the infant to
be adopted. It is observed from
the evidence before the Court in
the current case that the said
Mercy Agbeko, is not alive to
tell the Court whether she
customarily adopted the
Plaintiff or not. So that can
only be known from her conduct
whilst she was alive and also
from witnesses who were
allegedly privy to the said
adoption. The evidence before
the Court as presented by
Livingstone Kudzordzie, the
father of the Plaintiff shows
that Mercy Amitor Agbeko
(deceased) did not have a child
of her own. So she approached
the parents of the Plaintiff
when she was six months old to
be allowed to adopt her. The
parents of the Plaintiff
consented to the request of the
deceased as a result of which
the deceased presented two
bottles of schnapps in the
presence of witnesses to them.
The witnesses present included
the parents of the Plaintiff,
the deceased, the paternal
grandfather of the Plaintiff,
Sentley Kudzordzie who was the
father of Livingstone Kudzordzie,
the father of the Plaintiff.
Also present was the maternal
grandmother of the Plaintiff,
Dzenawo Klutse who was the
mother of Mansah Dzisa the
biological mother of the
Plaintiff. According to the
father of the Plaintiff, they
opened one of the two bottles of
schnapps presented and with
mashed corn flour in water, they
poured libation to signify the
adoption. After that the
grandfather of the Plaintiff
took away the remaining drinks.
According to Livingstone
Kudzordzie, after the ceremony
the deceased took the Plaintiff
to Accra and took care of her.
She sent her to a nursery school
through to JSS. He never took
part in caring for the
Plaintiff. She continued to live
with the deceased till her
death. The Court goes on to
observe that even though at the
time the Plaintiff went to live
with the late Mercy Agbeko,
although her father who was then
a staff of the Ghana Army was
alive, he never became
responsible for the Plaintiff.
This implies that she was now
completely under the care of the
late Mercy Agbeko with her
father taking no part in her
care. Counsel for Defendant
could not seriously discredit
the evidence of Livingstone
Kudzordzie during cross
examination. Even the nature of
cross examination of Livingstone
Kudzordzie confirms the
adoption. In the said cross
examination Mr. Isaac Aidoo who
held the brief of the actual
counsel for the Defendant
suggested to the witness that
the Plaintiff was adopted at the
age of 8 years which the witness
denied. He went on to suggest
that Josephine Agbeko was also
adopted by the late Mercy Agbeko.
The said cross examination shows
that even though the Plaintiff
was adopted she was 8 years at
the time of adoption and not six
months. Also she was not the
only person adopted by the
deceased, but also Josephine
Agbeko was adopted. It,
therefore, confirms the
adoption; the only difference
being that whilst the Plaintiff
claims she was adopted whilst
she was six months old, counsel
says she was eight years old
when she was adopted by the
deceased. The evidence goes on
to show that even at the time
the Plaintiff got married, the
deceased was introduced as the
mother of the Plaintiff in spite
of the fact that at that time
her biological mother was
present. Also a presentation was
made to the deceased as the
mother of the Plaintiff. The
evidence also shows that the
deceased instructed a society
she belonged to, that is Unity
Society that on her death
whatever was due her Should be
given to the Plaintiff as a
child. So on her death, they
considered the Plaintiff as a
child of the deceased and
presented to her a piece of
cloth and GH¢500.00 without
objection from anybody. This
implies that the subsequent acts
of the deceased show that she
recognized the Plaintiff as her
child whilst she was alive. So
by the conduct of Mercy Amitor
Agbeko (deceased), she saw the
Plaintiff as her child and the
Plaintiff also considered her as
her mother. The evidence,
therefore, shows that the
parents of the Plaintiff
consented to the adoption and
the conduct of the deceased
clearly shows that she had the
intention to adopt the
Plaintiff. So from the
foregoing, it is my opinion that
the Plaintiff was customarily
adopted by the late Mercy Agbeko.
She was, therefore, her adopted
child and I so hold. From the
decision in Planqe v. Planqe
(Supra) since it has been
established that the Plaintiff
was customarily adopted by the
late Mercy Agbeko, she acquired
the status of a child of the
late Mercy Agbeko so she
acquired the right to inherit
the property of Mercy Agbeko as
her child under PNDC Law 111.
She acquired the privileges and
obligations as a natural child.
So by her status as an adopted
child of the late Mercy Agbeko
the Plaintiff has interest in
the estate of the late Mercy
Agbeko.On the issue as to
whether the deceased was the
wife of Stephen Nuworku at the
time of her death, the evidence
before the Court makes it
difficult for the Court to
accept that at the time of her
death she was married to Stephen
Nuworku. The said Stephen
Nuworku claims that he performed
the customary rites to marry the
deceased but the Defendant and
his witnesses have denied that
assertion. They claim that no
customary rites were performed
to marry her. Since it is the
Plaintiff who is alleging that
at the time of the death of
Mercy Agbeko she was married to
Stephen Nuworku, the onus lies
on her in proving that
assertion. This is because in
civil cases, the general rule is
that the party who in his
pleadings or Writ of Summons
raises issues essential to the
success of his case assumes the
onus of proof. See the case of
Faibi v. State Hotels
Corporation [1968] GLR 471. See
also the case of Bank of West
Africa Ltd. v. Ackun [1963]1 GLR
176. In the celebrated case of
Majolagbe V. Larbi [1959] GLR
190, it was held that when a
party makes an averment in his
pleading which is capable of
proof in a positive way and the
averment is denied, the averment
cannot be sufficiently proved by
just mounting the witness-box
and reciting the averment on
oath without adducing some
corroborative evidence. In the
current case the Plaintiff told
the Court in her evidence in
chief that the deceased had a
husband at the time of her death
and that person was Stephen
Nuworku. The said Stephen
Nuworku gave evidence as PW2 and
confirmed that he was the
husband of the deceased at the
time of her death. He claims he
performed the marriage rites to
marry her in 1993. According to
him the marriage rites were
performed by his brothers and
sisters. It was also one Kwame
who accepted the drinks. He goes
on to say that even on the death
of the said Mercy Agbeko,
because he was sick he sent his
brother to perform the necessary
rites as a husband. The
Defendant denied the assertion
of the said Nuworku that he
performed the marriage rites to
marry the deceased Since the
assertion has been denied and he
claims the marriage rites were
performed by his brothers and
sisters and also his brother
performed the burial rites as a
husband on his behalf, the
Plaintiff should have invited
these brothers and sisters of
Stephen Nuworku to give evidence
.to corroborate the assertion
that he was the husband of the
deceased at the time of her
death Since the said brothers
and sisters were not invited to
give evidence, the assertion
that he was the husband of the
deceased at the time of her
death stands uncorroborated. It,
therefore, makes the evidence of
the defence on that issue more
probable than that of the
Plaintiff. The Court as a result
holds that at the time of the
death of Mercy Agbeko she had no
husband. On the last issue, that
is whether or not the deceased
had more property than was
declared by the Defendant in
Form 68 accompanying letters of
administration, the evidence
before the Court shows that some
of the properties were not
listed in the application for
letters of administration. The
Defendant claims that some of
the properties were not brought
to his knowledge. Also it was a
collective decision taken by
them that as an interim measure
he should take care of those
properties identified and when
they are issued with the letters
of administration then they sit
down to see those who should be
given those properties. So from
the evidence before the Court it
is clear that the properties
were more than those stated in
the application for the letters
of administration and I so hold.
There is, therefore, the need
for all those properties to be
gathered and distributed in
accordance with PNDC LAW 111. In
conclusion, judgment is entered
for the Plaintiff as follows:-
a. That the Plaintiff was
customary adopted by the
deceased Mercy Amitor Agbeko
when she was six months old. b.
That as a child of the deceased
she is entitled to succeed her
in accordance with PNDC LAW 111.
Her costs are assessed as GH¢2,000.00.
Mr. Kofi Ahenkora for the
Plaintiff Mr. Bright Okyere
Agyekum for the Defendant
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