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I
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J U D G M E N T
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Per the amended writ of summons
filed on 1st
February, 2008 plaintiff a
German and ordinarily resident
in Germany, sued the defendants,
a mother and a son who are the
wife and a son of one Isaac
Ofori Atta (deceased)
respectively. Her claim was for
declaration of title to house
number E24 A South Kweikuma and
the house situated on plot
number 133 Fijai Hills;
perpetual injunction restraining
the defendants from interfering
with plaitiff’s enjoyment of the
two properties and an account of
all sums of money that have been
received in respect of the
houses since the death of Isaac
Ofori Atta.
According to the case of
plaintiff, she met Isaac Ofori
Atta in Germany and the two
became lovers. In fact, the two,
in the course of the
relationship, stayed together as
if they were husband and wife
both in Germany when they were
there and in Ghana when the two
were in Ghana, notwithstanding
that 1st defendant
was the wife of Isaac Ofori Atta.
Some where along the line,
plaintiff expressed interest in
relocating to Ghana, the country
of origin of Isaac Ofori Atta.
In pursuit of this intention,
plaintiff provided the financial
wherewithal for the acquisition
of the two houses in dispute.
Nevertheless, the documents
covering the two houses were
obtained in the name of Isaac
Ofori Atta.
After the completion of the
Kweikuma house, plaintiff who
had come to Ghana to join Isaac
Ofori Atta stayed in that house
as husband and wife without any
question from 1st
defendant, the wife of Isaac
Ofori Atta who now claims that
that house was her matrimonial
home!
Unfortunately, Isaac Ofori Atta
fell sick and did not come out
of it; he died. After his death,
1st defendant, the
wife, perhaps belabouring under
the understanding of the
provisions of PNDCL 111, asserts
adverse claim to the houses in
dispute.
According to plaintiff, when
Isaac Ofori Atta was taken ill
and was moved out of the house
at Kweikuma for medical
attention, 1st
defendant rented the properties
to tenants and collected rents.
Defendants traversed the claim
of plaintiff and alleged that
the properties under reference
were the self-acquired
properties of the late Isaac
Ofori Atta. 1st
defendant maintained that H/No.
E 24 A, South Kweikuma at all
material times was her
matrimonial home. She admitted
however that after Isaac Ofori
Atta had been taken away from
the matrimonial home for medical
attention or treatment of his
sickness, she rented two rooms
of her late husband’s house to
“maintain” herself and 2nd
defendant while they occupied
one bedroom. Defendants
therefore contended in
paragraphs 8, 9 and 10 thus:-
“8. The
defendant would contend that
plaintiff
is not a beneficial owner of the
said houses
and she is not accountable to
the plaintiff in
any manner.
9.
defendant would therefore
contend that the
plaintiff has no cause of action
against her
that plaintiff’s action is most
frivolous, vexations
and unmaintainable and ought to
be dismissed in limine.
10. The plaintiff’s claim
discloses no reasonable cause
of action
against them”
Defendants averred further that
plaintiff with the aid of some
family members of the deceased’s
family removed all the household
chattels, furniture and
belongings of the deceased to an
unknown place.
In the premises,
defendants counterclaimed for:-
“1. An order ejecting the
plaintiff from H/No. E24
A south Kweikuma Estates,
Sekondi and
2. An
order directing the plaintiff
her agents assigns
and persons claiming through her
to return all the household
chattels, furniture and other
belongings of the deceased to
the matrimonial home.
At the close of the pleadings
the issues that merited
determination were
whether or not H/No. E24 A,
Kweikuma Estates as well as the
house on plot No. 133 Fijai are
the properties of plaintiff or
they are the self –acquired
properties of Isaac Ofori Atta
(deceased); whether or not the
claim of plaintiff discloses a
reasonable cause of action;
whether or not H/No. E24 A
Kweikuma Etate, Sekondi was the
matrimonial home of the late
Isaac Ofori Atta and the 1st
defendant and whether or not
plaintiff is entitled to her
claim and whether or not the
defendants are entitled to their
counterclaim.
The court of appeal
in the case of MOSES VS.
ANANE (1989-90) 2 GLR 694
cautioned that a claim of title
to a property by someone against
another person who by virtue of
death is incapable of stating
his side of the story as to the
acquisition of the property
ought to be subjected to
critical scrutiny. Such a claim
could only be upheld if it is
strictly proved.
In this case
plaintiff is claiming to be the
owner of two properties, that
is, the Fijai house and the
Kweikuma house. Her claim is not
against defendants, strictly
speaking or in substance. It is
a claim against Isaac Ofori Atta
who is dead and therefore he is
incapable of telling the court
anything about the story of the
acquisition of these two houses.
In the circumstance,
it behoves the court to put on
the lens of scrutiny as far as
the claim of plaintiff is
concerned.
The evidence showed
that Isaac Ofori Atta at the
time he met plaintiff was
unemployed in Germany.
Apparently, Isaac Ofori Atta had
sojourned in Germany and had
been granted refugee status.
PW2’s evidence was quite
instructive. He narrated in
clear terms when Isaac Ofori
Atta migrated to Germany and his
life there. He emphasized that
“when he came to Germany, he (
Isaac Ofori Atta) had no
documents to stay and because of
that he could not get job to do
in Germany. When the late Isaac
Ofori Atta came to Germany, he
lived with us in “Seaman House”
for sometime and later moved to
political refugee home
(Asylum)”. Furthermore, PW2
stressed that for all the period
that he knew Isaac Ofori Atta he
never worked as he (Isaac Ofori
Atta) had no valid stay
documents to enable him work in
Germany. The witness stated the
obvious that for a seaman to
work in Germany he has to obtain
valid documents.
The fact that Isaac
Ofori Atta had no such valid
documents to legitimately stay
and work in Germany was
corroborated by plaintiff, who
struck me as plain and truthful
person. Plaintiff said she
decided to support Isaac Ofori
Atta in Ghana by developing the
Kweikuma house. Plaintiff
indicated that she single
handedly provided the money for
the purchase of the plot and the
subsequent development.
Plaintiff however emphasized
that documents on the houses she
financed were made in the name
of Isaac Ofori Atta because she
“had full trust” in Isaac Ofori
Atta.
Plaintiff also
showed how she got that much of
money for the sponsorship of the
acquisition of the properties
under reference. She was on
pension and her pension
entitlement was one source of
the money she employed in the
acquisition of the houses. She
also obtained money from the
estate of three relatives who
died and from whom plaintiff
inherited some fortune.
Above all, Exhibit
‘B’ series pose eloquent and
overwhelming evidence as to the
huge sum of money plaintiff
remitted Isaac Ofori Atta for
purposes of developing the
properties in dispute. The sum
total of the weight of the
evidence on record in general
and what I have alluded to in
particular lead me to believe
strongly that it was plaintiff
who provided the money required
for the acquisition of the
properties in dispute.
As I have already
alluded to, the authorities
require that a claim against a
deceased person should be
scrutinized with the utmost
suspicion. However, I discern a
different situation in this
case. Indeed, the evidence of
plaintiff strongly corroborated
by PW1 and Pw2 in particular
coupled with the conduct of
Isaac Ofori Atta when he was
alive namely giving instructions
to the effect that documents
over the houses be handed over
to plaintiff when he
contemplated death destroyed any
possible suspicion entertainable
against plaintiff’s claim.
Another point worthy
of comment is that apart from
living and staying together with
plaintiff and at other occasions
with 1st defendant
whenever plaintiff was away in
Germany, there is no evidence as
to any overt act of ownership
exercised by Isaac Ofori Atta
when he was alive. For instance,
there is no evidence as to using
the property as collateral for a
loan, leasing same to tenants or
doing anything expressive of
ownership rights of Isaac Ofori
Atta.
Francois J. A. (as
he then was) threw out the
caution in the case of MOSES
VS. ANANE (SUPRA) against
the backdrop that in that case
the deceased whose property was
in dispute as to its ownership
had, during his lifetime,
exercised overt acts of
ownership. For instance he had
put tenants as he pleased and
enjoyed exclusively the rents
accruing from the disputed
house. Therefore when he died
and a challenge arose as to his
ownership the court could only
consider the challenge with
utmost suspicion.
The facts of that
case that excited the suspicion
by the court are completely
absent from the instant case.
I therefore find
that the two houses in dispute
were acquired by plaintiff whom
I consider as legal owner and
that Isaac Ofori Atta had no
proprietory interest to be
enjoyed by defendants as
administrators/beneficiaries of
his estate.
I have every reason
to believe that both Isaac Ofori
Atta and 1st
defendant kept the fact of their
marriage from plaintiff. I can
reasonably deduce that if
plaintiff had had the least
inkling that Isaac Ofori Atta
was married to 1st
defendant she would not have
spent that much of money so as
to settle here in Ghana with
Isaac Ofori Atta. In effect this
non-disclosure encouraged
plaintiff to spend money to
acquire these properties in
Ghana and the court would be
lending its support to such a
deceit perpetuated on plaintiff
by Isaac Ofori Atta and 1st
defendant if 1st
defendant were to be held to
benefit from such
non-disclosure. Indeed the law
will not permit a person to make
a certain representation for
someone else to act on that
representation to his detriment
only for the one to purport to
detract from that
representation.
Indeed this court
would be lending support to
deceit if the court were to hold
that the Kweikuma house was a
matrimonial home. I have every
reason to believe that 1st
defendant’s husband and
plaintiff were lovers to the
knowledge of 1st
defendant. Nevertheless, 1st
defendant would come to live in
the Kweikuma’s house only when
the plaintiff was away in
Germany. The evidence was that
after completion of the Kweikuma
house, plaintiff and Isaac Ofori
Atta moved to live in that
house. Yet, 1st
defendant wanted the court to
believe that the Kweikuma house
was their matrimonial home. I
wonder how a wife of a man would
allow the man to live and sleep
with his lover (another woman)
under the same roof. Such a
situation appears incredible but
by 1st defendant’s
showing that was exactly what
was happening. This
representation led plaintiff to
believe that 1st
defendant was a mere relative of
Isaac Ofori Atta. That is
perhaps why plaintiff and 1st
defendant, rivals as it were,
could go out and even take
photographs as depicted in
Exhibit ‘C’.
I conclude that the
evidence on record as a whole
demonstrates that the purchase
and the construction of the
properties in question were
financed by the plaintiff. I
therefore hold that the legal
and beneficial title vests in
plaintiff. In other words, the
properties in contention are not
the self acquired properties of
Isaac Ofori Atta. Even Isaac
Ofori Atta in his life time
seemed to have acknowledged
this fact when he handed over
the documents covering the
properties to PW1’s husband to
be given to plaintiff.
I cannot end this
judgment without commenting on
the legal issue raised by
learned lawyer for defendants,
namely whether plaintiff’s
action discloses a cause of
action or same is frivolous and
vexations.
I have carefully
considered the brilliant
submission by learned lawyer for
defendants on the issue and I do
not share his view, with all due
deference.
We are talking about
properties over which defendants
have applied and obtained
letters of administration,
connoting that these properties
were the self-acquired
properties of Isaac Ofori Atta
(deceased).
Plaintiff who claims
that the properties in issue
were not acquired by Isaac Ofori
Atta but are her properties sued
defendants, the wife and son of
Isaac Ofori Atta, administrators
and beneficiaries of the estate
of Isaac Ofori Atta to vindicate
her legal title to the
properties under controversy. In
this scenario, I do believe that
plaintiff’s case discloses a
cause of action as against the
defendants.
It must be
acknowledged that in the
lifetime of Isaac Ofori Atta he
never claimed exclusive
ownership of these properties to
the knowledge of plaintiff. If
he had done so and plaintiff did
not challenge him, it would have
rendered her claim quite
difficult to believe. But as
alluded to supra, in the
lifetime of Isaac Ofori Atta, he
gave the title documents in his
name to the husband of PW1 to be
given to plaintiff with the word
that the properties belonged to
plaintiff.
It stands to reason
that Isaac Ofori Atta and 1st
defendant agreed to keep their
marriage as a secret from
plaintiff so they could get
plaintiff to provide not only
the money for the development of
the properties but also for
their very livelihood. The
evidence was that Isaac Ofori
Atta while in Ghana for all
material time never worked. Be
that as it may, would one not be
correct to say that he could
maintain himself, 1st
defendant and even 2nd
defendant through the pocket of
plaintiff?.
For once, Isaac
Ofori Atta showed that he was a
man of conscience when he gave
out the title documents to be
given to plaintiff as the owner
of the properties.
From the foregoing,
I am convinced that plaintiff
single handedly financed the
acquisition of the properties in
dispute and Isaac Ofori Atta
whose name was used for purposes
of the title documents covering
the properties held and enjoyed
the properties in trust for and
as a lover partner of plaintiff.
Accordingly, I enter
judgment in favour of plaintiff
and declare that plaintiff is
the owner of H/No. E24 A South
Kweikuma and the house situate
on plot number 133, Fijai Hills.
Defendants by
themselves, their agents assigns
etc; are hereby restrained from
interfering with plaintiff’s
enjoyment of the two properties.
I further order 1st
defendant to account for all
sums of money she had received
in respect of the house since
the death of Isaac Ofori Atta.
It follows that 1st
defendant’s counterclaim stands
dismissed.
Plaintiff is awarded
costs of GH¢1,000.
(SGD)
ANTHONY OPPONG
JUSTICE OF THE HIGH COURT.
LAWYERS:
ANTHONY FORSON (JNR) ESQ; FOR
PLAINTIFF.
CONSTATINE KUDZEDU ESQ; FOR
DEFENDANTS.
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