Wills
-
Probate and administration -
Ownership of portions of the
estate – Deed of Gift -
Testamentary capacity - Fraud
- Whether or not Exhibits
‘‘I’’, ‘‘C’’ and ‘‘E’’ and the
conduct of the 2nd
and 3rd Defendants
were fraudulent - whether the
testator had testamentary
capacity for the sixteen stores
- section 13(1) of the Evidence
Act, 1975 (NRCD323).
HEADNOTES
The
testator in the case died
sometime in 1998. His Will was
admitted to probate on 10th
March, 2005. The estate
comprised land and buildings
known and described as House No.
229/19, Darkuman-Kokompe,
Accra. On the said land were
two constituent buildings, a
large storey building, and
sixteen stores A major
beneficiary of the Will was his
widow, the Plaintiff and her
children. When by 2011 the
Plaintiff was dissatisfied with
the administration of the estate
by the 1st Defendant,
the executor and the
intermeddling in the estate by
the 2nd and 3rd
Defendants, the Plaintiff
instituted action in the High
Court seeking the following
Account of all the proceeds from
the renting of the 13 stores
since 1995.
Account of the stewardship of
the estate to the beneficiaries,
Distribution of the parts of the
estate to the beneficiaries,
Provision of the original copy
of the probate, Cost of
litigation. In her defence, the
2nd Defendant claimed
that the testator had gifted a
portion of the land to her
before his death. She tendered
a Deed of Gift dated 16th
December 1997, The 3rd
Defendant in his defence claimed
that he is the beneficial owner
of the whole property described
as House No.229/16,
Darkuman-Kokompe, Accra. He
alleged that the testator had in
fact purchased the land in his
name for him soon after his
birth and that at all material
times the testator was holding
the property in trust for him
The learned trial judge
therefore granted all the
reliefs being sought by the
Plaintiff and dismissed the
counterclaim of the 3rd
Defendant. Dissatisfied with the
decision of the trial High
Court, the Defendants appealed
to the Court of Appeal.
The Court of Appeal in its
judgment of 24th May,
2018 varied the judgment of the
trial High Court by affirming
one of the findings of the High
Court but allowing the appeal
and setting aside other findings
of the High Court. Aggrieved by
the decision of the Court of
Appeal, the Plaintiff has
appealed to this court
HELD
The
Defendants must swim or sink
together. The 2nd
and 3rd Defendants
sought to steal their father’s
land and to disinherit and eject
their father’s widow (their step
mother) and her children (their
half siblings) from his bona
fide property. They have failed
and must end with nothing.
Furthermore, in view of the
dishonesty of the 2nd
and 3rd Defendant and
the false testimony that they
proffered to the court, this
court finds them untrustworthy
and views their evidence in
relation to the construction of
the sixteen stores with
suspicion. We therefore reverse
the finding of the Court of
Appeal that the sixteen stores
were constructed and owned by
the 2nd and 3rd
defendants and their brother
Korankye and affirm the finding
of the trial High Court that the
sixteen stores were constructed
and owned by the testator.
In light of the foregoing, the
appeal is allowed in its
entirety. We reverse the
findings of the Court of Appeal
overturning the decisions and
orders of the trial High Court
and restore the findings and
orders of the trial High Court
in their entirety.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act, 1975 (NRCD323).
High Court (Civil Procedure)
Rules, 2004 (C.I.41)
Land Title Registration Act,
1985 (PNDCL 152)
CASES
REFERRED TO IN JUDGMENT
Republic
v
Conduah exparte Aaba
(substituted by Asmah)
[2013-2014] 2 SCGLR 1032
Tuakwa V
Bosom [2001-2002] SCGLR 61,
Quarcoopome
v Sanyo Electric
Trading Co. Ltd. [2009]
SCGLR 213,
Nartey (No.2)
v African Institute of
Journalism and Communication &
Ors (No. 2) [2013 -2014] 1
SCGLR 703
Oppong
v Anarfi [2011-2012] 2
SCGLR 556.
Achoro
v Akanfella [1996-97]
SCGLR 207, Fosua & Adu-Poku
v Dufie & Adu-Poku Mensah
[2009] SCGLR 310 and Gregory v
Tandoh IV & Hanson [2010] SCGLR
975.
Nti
V Anima [1984-86] GLR
134.
Amuzu
v Oklikah [1998-99] SCGLR
141 and Ecobank Nigeria Plc
v Hiss Hands Housing Agency
[2017-2018] 1 SCGLR 355
SA Turqui & Brothers
v Daliabieh [1987-88] GLR
486
BOOKS
REFERRED TO IN JUDGMENT
Kerr on the Law of Fraud and
Mistake, 7th edition,
by Denis McDonnel and John
Munroe
DELIVERING
THE LEADING JUDGMENT
KOTEY JSC
COUNSEL
EMMANUEL
BRIGHT ATOKOH FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
KWAME
YANKYERA FOR THE 1ST
AND 2ND
DEFENDANTS/APPELLANTS/RESPONDENTS.
CHARLES
BAWADUAH FOR THE 3RD
DEFENDANT/APPELLANT/RESPONDENT.
JUDGMENT
THE UNANIMOUS
JUDGMENT OF THE COURT IS READ BY
KOTEY JSC,
AS FOLLOWS:-
BACKGROUND
Before us is an appeal against
the judgment of the Court of
Appeal partially reversing the
decision of the trial High
Court. This appeal is asking
this court to overturn those
aspects of the decision that
reversed the trial High Court
and to fully restore the
findings of the High Court.
This is essentially a
probate
and administration matter
interspersed with issues of
ownership
of portions of the estate.
The testator in the case died
sometime in 1998. His Will was
admitted to probate on 10th
March, 2005. The estate
comprised land and buildings
known and described as House No.
229/19, Darkuman-Kokompe,
Accra. On the said land were
two constituent buildings, a
large storey building, and
sixteen stores.
A major
beneficiary of the Will was his
widow, the Plaintiff and her
children. When by 2011 the
Plaintiff was dissatisfied with
the administration of the estate
by the 1st Defendant,
the executor and the
intermeddling in the estate by
the 2nd and 3rd
Defendants, the Plaintiff
instituted action in the High
Court seeking the following
reliefs;
-
Account
of all the proceeds from the
renting of the 13 stores
since 1995.
-
Account
of the stewardship of the
estate to the beneficiaries.
-
Distribution of the parts of
the estate to the
beneficiaries.
-
Provision
of the original copy of the
probate.
-
Cost of
litigation.
The Plaintiff is the widow of
the testator. The 1st
Defendant is the executor of the
Will of the testator,
husband
of
the 2nd Defendant and
son-in-law of the testator. The
2nd Defendant is a
daughter of the testator and
wife of the 1st
Defendant. The 3rd
Defendant is a son of the
testator and brother of the 2nd
Defendant. The 2nd
and 3rd Defendant are
children of the testator by a
previous wife, Agnes Ama Serwaa
who features in the case as DW1.
In her defence, the 2nd
Defendant claimed that the
testator had gifted a portion of
the land to her before his
death. She tendered a
Deed of Gift
dated 16th December
1997, Exhibit ‘‘I’’,
in support of her claim.
The 3rd Defendant in
his defence claimed that he is
the beneficial owner of the
whole property described as
House No.229/16,
Darkuman-Kokompe, Accra. He
alleged that the testator had in
fact purchased the land in his
name for him soon after his
birth and that at all material
times the testator was holding
the property in trust for him
and therefore the testator had
no
testamentary capacity over
the property. He tendered
Exhibit ‘‘C’’ in support of his
claim. The 3rd
Defendant therefore
counterclaimed as follows;
-
A
declaration that the late
Samuel Kwabena Affram had no
testamentary capacity over
H/No.229/16,
Darkuman-Kokompe, Accra.
-
An order
deleting the said house from
the devise in the Will of
the late Kwabena Affram as
well as the probate covering
the property.
-
An order
of ejectment of the
Plaintiff from House
No.229/16, Darkuman-Kokompe,
Accra.
After a full blown trial and on
the totality of the evidence
adduced, the trial High Court
found that Exhibits ‘‘I’’, ‘‘C’’
and ‘‘E’’ were fraudulent, that
the 3rd Defendant’s
story of the purchase of House
No.229/16 Darkuman-Kokompe,
Accra in his name, and for him
was a crude concoction and that
the sixteen stores were
constructed by the testator.
The
learned trial judge therefore
granted all the reliefs being
sought by the Plaintiff and
dismissed the counterclaim of
the 3rd Defendant.
Dissatisfied with the decision
of the trial High Court, the
Defendants appealed to the Court
of Appeal.
The Court of Appeal in its
judgment of 24th May,
2018 varied the judgment of the
trial High Court by affirming
one of the findings of the High
Court but allowing the appeal
and setting aside other findings
of the High Court.
Specifically, the Court of
Appeal held as follows;
-
Affirmed
the findings of the trial
High Court that the land on
which House No.229/16,
Darkuman-Kokompe stands was
acquired by the testator and
was not in the name of and/or
for the benefit of the 3rd
Defendant.
-
That
contrary to the findings of
the trial High Court,
Exhibits ‘‘I’’, ‘‘C’’ and
‘‘E’’ and the conduct of the
2nd and 3rd
Defendant were not
fraudulent and should not be
cancelled.
-
That
contrary to the finding of
the trial High Court the 16
stores were not constructed
by the testator but by the 2nd
and 3rd Defendant
s and their deceased
brother, Korankye.
GROUNDS OF APPEAL
Aggrieved by the decision of the
Court of Appeal, the Plaintiff
has appealed to this court
on the following grounds;
i.
The
learned judges of the Court of
Appeal erred when they
overturned the decision of the
trial judge and held that the
stores in House No.229/16,
Darkuman-Kokompe, Accra were
constructed by 2nd
and 3rd Appellants
and their deceased brother,
Korankye when same is not
supported by the evidence on
record.
ii.
The
learned judges of the Court of
Appeal erred when they concluded
that the late Samuel Kwabena
Affram, the testator had by his
conduct altered or changed his
Will dated the 21st
day of March, 1989, in allowing
2nd and 3rd
Defendant
s/appellants/respondents and
their deceased brother Korankye
to develop H/No.229/16
Darkuman-Kokompe, Accra and thus
had no testamentary capacity to
devise the stores in the said
property to the Appellant and
her children.
iii.
The
learned judges of the Court of
Appeal erred when they set aside
the finding of fraud against 2nd
and 3rd respondents
made by the trial judge contrary
to the evidence on record and
upheld the grounds of Appeal
(a), (b), and (f) of 3rd
respondent.
iv.
The
judgment of the Court of Appeal
is against the weight of
evidence on record.
In effect the Plaintiff is
asking for a reversal of those
portions of the decision of the
Court of Appeal which overturned
the findings of the trial High
Court and a restoration of all
the findings of the trial High
Court. These relate to two
issues, namely;
-
Whether
Exhibits ‘‘I’’, ‘‘C’’ and
‘‘E’’ and the conduct of the
2nd and 3rd
Defendants were fraudulent.
-
Who was
responsible for the
construction of and
whether the testator had
testamentary capacity for
the sixteen stores on House
No.229/16 Darkuman-Kokompe,
Accra.
We have a situation where the
trial court and the first
appellate court have reached
different conclusions on the
evidence. In a situation like
this, the law is that the
proceedings before the final
appellate court are by way of
rehearing.
See
Republic v
Conduah
exparte Aaba
(substituted by Asmah)
[2013-2014] 2 SCGLR 1032. The
task of this court is to
re-examine and evaluate the
totality of the evidence adduced
at the trial and determine which
of the two rival findings of
fact is supported by the
evidence. See
Tuakwa V
Bosom [2001-2002] SCGLR 61,
Quarcoopome v Sanyo
Electric Trading Co. Ltd.
[2009] SCGLR 213, Nartey
(No.2) v African
Institute of Journalism and
Communication & Ors (No. 2)
[2013 -2014] 1 SCGLR 703 and
Oppong v Anarfi
[2011-2012] 2 SCGLR 556.
In view of the centrality of the
issue of
fraud in this case we intend
to deal with that issue first.
FRAUD
The trial High Court found that
the conduct of the 2nd
Defendant had been dishonest and
fraudulent and held that Exhibit
‘‘I’’, the alleged Deed of Gift
of the 2nd Defendant
was a forgery and Exhibit ‘‘E’’,
the resultant substituted Land
Title Certificate which the
Lands Commission had issued to
the 2nd
Defendant was procured by fraud
and ordered their cancellation.
The trial High Court also found
that Exhibit ‘‘C’’, relied upon
by the 3rd Defendant
in support of his claim that the
testator purchased the entire
Darkuman-Kokompe land for him
and in his name was fraudulent
and ordered its cancellation.
The Court of Appeal overturned
these findings of the trial High
Court. The Court of Appeal held
that fraud had not been pleaded
nor proved by the Plaintiff. It
also held that though Exhibits
‘‘I’’, ‘‘C’’ and ‘‘E’’ were not
authentic, that did not amount
to fraud.
It must be noted, that an
appellate court is not at
liberty to overturn the findings
of fact of the trial court and
to substitute its own
conclusions except in clearly
established circumstances.
The appellate court can only
vary the trial court’s findings
of fact where on the totality of
the evidence, the findings are
clearly not supported by the
evidence, are unreasonable or
perverse, are inconsistent with
important documentary evidence,
or the trial court has wrongly
applied a principle of law. See
Achoro
v Akanfella [1996-97]
SCGLR 207, Fosua & Adu-Poku
v Dufie & Adu-Poku Mensah
[2009] SCGLR 310 and Gregory v
Tandoh IV & Hanson [2010] SCGLR
975.
Counsel for the appellant has
urged us to restore the findings
of fraud made by the trial High
Court. Counsel has argued that
Exhibits ‘‘I’’, ‘‘C’’ and ‘‘E’’
were crude ex post facto and
fraudulent attempts by the 2nd
and 3rd Defendants to
establish title to the whole or
part of the testator’s land in
an attempt to deprive the
Plaintiff and her children of
their inheritance. Though
Counsel admitted that the
Plaintiff did not plead fraud,
he submitted that Plaintiff was
not aware of the existence of
the said exhibits I, C and E and
that it was only during the
trial that these were tendered
by the 2nd and 3rd
Defendants. Counsel therefore
submitted that on the peculiar
facts of this case, failure to
specifically plead fraud ought
not to be fatal.
Counsel further contended that
there was sufficient evidence of
dishonest conduct on the part of
the 2nd and 3rd
Defendants in relation to
Exhibits ‘‘I’’, ‘‘C’’ and ‘‘E’’,
and in their attempt to
establish claim to the whole or
part of the testator’s land and
deprive the Plaintiff and her
children of their inheritance to
support the trial judge’s
finding of fraud.
Counsel for both the 1st
and 2nd Defendants
and the 3rd Defendant
supported the reversal by the
Court of Appeal of the finding
of the trial court on the issue
of fraud. They both placed
great premium on the fact that
the Plaintiff did not plead nor
particularise fraud and fraud
was not set out as an issue for
trial at the application for
directions stage. For both
counsel this was fatal and the
trial judge erred in finding
fraud against the 2nd
and 3rd Defendants.
Counsel relied on a number of
authorities including
Nti
V Anima [1984-86] GLR
134.
Both counsels further argued on
the facts that the Plaintiff
failed to establish fraud beyond
a reasonable doubt as required
by
section 13(1) of the Evidence
Act, 1975 (NRCD323).
Failure to Plead or
Particularise Fraud
Dealing first with the issue of
the Plaintiff
neither
pleading nor particularizing
fraud, we agree with the
decision of the trial High
Court, that this is not fatal.
This Court has held in a number
of cases such as
Amuzu
v Oklikah [1998-99] SCGLR
141 and Ecobank Nigeria Plc
v Hiss Hands Housing Agency
[2017-2018] 1 SCGLR 355 that
though it is preferable to plead
and particularise fraud, failure
to do so is not fatal in all
circumstances. In the Oklikah
case, Atuguba JSC stated at page
183 as follows:
“In this case fraud has not
been distinctly pleaded. But in
view, especially of the
provisions of sections 5,6 and
11 of the Evidence Decree, 1975
(NRCD 323) regarding reception
of evidence not objected to, it
can be said, that where there is
clear but unpleaded evidence not
objected to, the court cannot
ignore the same, the myth
surrounding the pleading of
fraud notwithstanding”
And in the Ecobank Nigeria Plc
case (supra), Gbadegbe JSC,
after referring to the
requirement of order 11 rule 12
(1) (a) of the
High
Court (Civil Procedure) Rules,
2004 (C.I.41) that
particulars of fraud shall be
specifically pleaded, continued
at page 367;
“Although the rule is expressed
in mandatory language, our
courts have held that where a
party fails to comply with the
requirement of order 11 rule 12
(1) (a) but his opponent fails
to object to evidence in support
of the allegation of fraud, a
court of law cannot shut its
eyes to the evidence so led but
must take it into account in
deciding the dispute before the
court.”
So, in the Ecobank Nigeria Plc
case, (supra) where the court
found that funds have been
transferred into the accounts of
the first defendant improperly
and with a view to depriving the
plaintiff of the benefit of his
money, this court found that
fraud had been established.
This court held that the
dishonourable and unconscionable
conduct of the first defendant
amounted to fraud.
It must be emphasized that the
Plaintiff’s case was not based
on fraud. The Plaintiff’s
action was a simple probate and
administration action demanding
that the 1st
Defendant, the executor of the
estate, account to the
beneficiaries for his
administration and that the 2nd
and 3rd Defendants
cease intermeddling with the
estate. The Plaintiff could not
therefore have pleaded or
particularized fraud in her
pleading. It was the 2nd
and 3rd Defendants
who claimed ownership of the
whole or parts of the estate and
tendered Exhibits ‘‘I’’, ‘‘C’’
and ‘‘E’’. Fraud was found by
the trial judge on the totality
of the evidence at the
conclusion of the trial.
Fraud in this case, was used by
the Plaintiff as a shield and
not a sword. We therefore agree
with the trial High Court that
in a situation such as this, not
pleading or particularising
fraud is not fatal and did not
preclude the court from
concluding that the conduct of
the 2nd and 3rd
Defendants had been fraudulent.
The Evidence on Fraud
We now proceed to examine
whether the conduct of the 2nd
and 3rd Defendants
amounted to fraud.
As we have pointed out, our task
here is to determine whether on
the totality of the evidence,
the Court of Appeal properly
exercised its discretion in
overturning the trial court’s
finding of fraud. In other
words, on the totality of the
evidence, was the trial court’s
finding of fraud clearly not
supported by the evidence, was
it unreasonable or perverse or
was it inconsistent with
important documentary evidence.
From the totality of the
evidence adduced at the trial,
it is palpably clear that the 2nd
and 3rd Defendants
engaged in dishonest conduct and
attempted to cheat the Plaintiff
and deprive her and her children
of their inheritance. The 2nd
and 3rd Defendant by
their dishonest conduct have
also attempted to mislead the
court and pervert the course of
justice.
The 3rd Defendant
forged Exhibit “C”. He sought
to change his father’s name on
the Title Deed to the entire
property from Samuel K. Affram
to his name, Samuel Kwesi Affram;
and yet, the evidence showed
quite clearly that when his
father bought the land in 1961,
he had not been born. He was
born in 1972.
The 3rd Defendant and
his witness DW1, his mother,
also perjured themselves by
giving palpably false evidence
in connection with the purchase
of the land. The 3rd
Defendant and his mother, a
former wife of the testator,
concocted an Ananse story that
the land was bought by the
testator in the name of and for
the 3rd Defendant
with the proceeds realized from
the 3rd Defendant’s
naming ceremony. This was a
complete fabrication. The Deed
of Purchase, tendered by the 3rd
Defendant as Exhibit ‘‘C’’
recited that the land had been
purchased by the testator from
the Asere Stool in 1961 (when
the 3rd Defendant had
not been born) and the formal
indenture executed in 1973, when
the 3rd Defendant
would have been only 2 years
old.
This was a crude attempt by the
3rd Defendant and his
mother to perpetrate fraud and
we condemn it in the strongest
terms.
The 2nd Defendant on
her part claimed that the
testator gifted a part of the
land to her in 1999. But the 3rd
Defendant is claiming the entire
land by virtue of Exhibit
‘‘C’’. So whilst the 2nd
Defendant was claiming a portion
of the land on the basis of a
purported gift from the
testator, their father, the 3rd
Defendant, her brother, was
claiming the entire land by
virtue of Exhibit ‘‘C’’.
Nothing could be more
disingenuous.
The 2nd Defendant in
support of her claim of a gift
from the testator relied on a
purported Deed of gift, Exhibit
‘‘I’’ and a resultant substitute
Land Title Certificate, Exhibit
‘‘E’’. Exhibit ‘‘I’’ purports
to be a Deed of gift executed by
the testator in favour of the 2nd
Defendant in 1999, 2 years after
the construction of the 16
disputed stores by which the
testator purported to gift four
shops and one room to the 2nd
Defendant. The trial judge
noted that the 2nd
Defendant did not plead or
remotely raise Exhibits ‘‘I’’
and ‘‘E’’ and found that the
testator’s purported signature
on Exhibit ‘‘I’’ is different
from his signature on Exhibit
‘‘A’’, which is accepted and
acknowledged by all the parties
as the signature of the
testator. The trial court did
not also look favorably upon the
substituted Land Title
Certificate. The court noted
that by the
Land
Title Registration Act, 1985
(PNDCL 152) a substitute
Land Title Certificate can only
be issued by the Registrar where
a proprietor has established
that she had been issued with an
original Land Title Certificate
which is lost, and that the 2nd
Defendant had led no such
evidence. The trial court
therefore found Exhibits ‘‘E’’
and ‘‘I’’ as ex post facto
attempts by the 2nd
Defendant to mislead the court
and deprive the Plaintiff and
her children of their
inheritance.
The Court of Appeal did not
consider the conduct of the 3rd
Defendant with the same
opprobrium as the trial court.
The Court agreed with counsel
for the 3rd Defendant
that the failure of the
Plaintiff to plead and
particularise fraud was fatal.
They relied on order 11, rule 12
of C.I 41 and section 13(1) of
the Evidence Act, 1975.
On the other hand, it held that
the failure of the 3rd
Defendant to plead Exhibits
‘‘I’’ and ‘‘E’’ as the basis of
her claim was not. Furthermore,
though the Court of Appeal noted
that the trial court had found
that the purported signature on
Exhibit ‘‘I’’ was not that of
the testator, it nonetheless
found that this did not
establish fraud beyond a
reasonable doubt as required.
The 3rd Defendant
also tendered Exhibits ‘‘H’’ and
‘‘5’’. Exhibit ‘‘H’’, dated 3rd
November 2014 is a search report
issued by the Lands Commission
indicating that the land is
recorded in the name of Samuel
K. Affram at the Land Registry.
Exhibit ‘‘5’’ is a receipt
issued by the Lands Commission,
dated 17th December
2015 when a second application
for search was filed by the 3rd
Defendant. The name stated on
Exhibit ‘‘5’’ is not Samuel K.
Affram but Samuel Kwesi Affram.
The Court of Appeal, however,
explained all these untruths,
contradictions and
inconsistencies away and found
that these do not amount to
fraud. We
have considered the evidence
very carefully and cannot
support the decision of the
Court of Appeal. The 3rd
Defendant set out to steal his
father’s land and set up an
elaborate scheme of forgery,
dishonesty, perjury, misleading
of the court and perversion of
the course of justice in this
dastardly act; and the Court of
Appeal says this is not
fraudulent. The Court of
Appeal quoted with approval the
dictum of Taylor, JSC in
SA
Turqui & Brothers v
Daliabieh [1987-88] GLR 486
at pages 502-503 that:
“In my opinion a charge of fraud
in law can be taken to be
properly made against a party
who knowingly or recklessly
whether by conduct or words,
uses unfair, wrongful or
unlawful means to obtain a
material advantage to the
detriment of another party. It
is an insidious form of
corruption and it is therefore a
charge involving moral obloquy.
Bluntly put without equivocation
it is a species of dishonest
conduct.”
The Court of Appeal also
approvingly quoted
Kerr on
the Law of Fraud and Mistake, 7th
edition, by Denis McDonnel and
John Munroe, at page 18 as
follows:
“There is fraud in law if a man
makes a representation which he
knows to be false or does not
honestly believe to be true and
makes it with a view to induce
another to act on the faith of
it, he does is accordingly, and
by so doing sustains damage…”
And yet, the Court of Appeal
overturned the trial judge’s
finding of fraud. There can be
no doubt that the 2nd
and 3rd Defendants
acted dishonestly and that by
their conduct and words, sought
to secure a material advantage
to the detriment of the
Plaintiff and her children. And
these acts of dishonesty
permeated the land
administration system of the
country and sought to mislead
the court. It is in the words
of Taylor JSC, insidious
corruption involving moral
obloquy.
We have carefully re-examined
and evaluated the totality of
the evidence at the trial and
are of the considered opinion
that the trial court’s finding
of fraud was not clearly
contrary to the evidence,
unreasonable or perverse or
inconsistent with important
documentary evidence.
The Court
of Appeal therefore erred in
overturning the trial court’s
finding of fraud.
We reverse the finding of the
Court of Appeal overturning the
trial court’s
findings of fraud against the 2nd
and 3rd Defendant.
We accordingly restore the trial
High Court’s finding of fraud
against the 2nd and 3rd
Defendants and the cancellation
of Exhibits ‘‘C’’, ‘‘E’’ and
‘‘I’’.
CONCLUSION
As is well known, fraud vitiates
everything. The conduct of the 2nd
and 3rd Defendant is
dishonest and unconscionable
and
they must lose any rights they
may have acquired by building on
or contributing to build on the
testator’s land with his
permission. After all, the 3rd
Defendant, after claiming that
the land was acquired in his
name and for him by the
testator, counter-claimed for
the entirety of the testator’s
property. The 2nd
Defendant also aligned herself
with her brother, the 3rd
Defendant, even in her amended
statement of defence. At
paragraph 9 of the amended
statement,
the 2nd Defendant and
her husband, the 1st
Defendant stated;
“At all material times the facts
are that the testator held the
land and managed it in trust for
the 3rd Defendant”.
The Defendants must swim or sink
together. The 2nd
and 3rd Defendants
sought to steal their father’s
land and to disinherit and eject
their father’s widow (their step
mother) and her children (their
half siblings) from his bona
fide property. They have failed
and must end with nothing.
Furthermore, in view of the
dishonesty of the 2nd
and 3rd Defendant and
the false testimony that they
proffered to the court, this
court finds them untrustworthy
and views their evidence in
relation to the construction of
the sixteen stores with
suspicion.
We therefore reverse the finding
of the Court of Appeal that the
sixteen stores were constructed
and owned by the 2nd
and 3rd defendants
and their brother Korankye and
affirm the finding of the trial
High Court that the sixteen
stores were constructed and
owned by the testator.
In light of the foregoing, the
appeal is allowed in its
entirety. We reverse the
findings of the Court of Appeal
overturning the decisions and
orders of the trial High Court
and restore the findings and
orders of the trial High Court
in their entirety.
SGD.
PROF. N. A. KOTEY
(JUSTICE OF
THE SUPREME COURT)
SGD.
N. S. GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
SGD.
S. K. MARFUL-SAU
(JUSTICE OF
THE SUPREME COURT)
SGD.
A.M. A. DORDZIE
(JUSTICE OF
THE SUPREME COURT)
SGD.
N. A. AMEGATCHER
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
EMMANUEL
BRIGHT ATOKOH FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
KWAME
YANKYERA FOR THE 1ST
AND 2ND
DEFENDANTS/APPELLANTS/
RESPONDENTS.
CHARLES
BAWADUAH FOR THE 3RD
DEFENDANT/APPELLANT/RESPONDENT.
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