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JUDGMENT
By a writ of summons issued on
the 29th October,
2004 the plaintiff claims
against the defendant:
1.
‘A declaration that upon
the death intestate of Edward
Kwabena Kwaisi Bentil on 1st
April 2002 his estate must be
distributed in accordance with
the Intestate Succession Law
1985 (PNDC 111)
2.
A further declaration
that the plaintiff, being the
surviving daughter of the
intestate, Edward Kwabena Kwaisi
Bentil , has a share in her
father’s estate in accordance
with the Intestate Succession
Law, 1985 (PNDCL 111)
3.
An order that the estate
should be distributed in
accordance with the Intestate
Succession Law ,1985 (PNDCL 111)
4.
A further declaration
that any disposition and
distribution of the estate
aforementioned by the defendant
is null and void and of no legal
consequence.
5.
An order for accounts for
her unlawful and unilateral
dealings in the estate.
6.
Any further order(s) as
the justice case demands.
7.
Costs including
solicitor’s professional fees’.
After the service on the
defendant of the writ together
with its accompanying statement
of claim, an appearance was
caused to be entered after which
the defendant filed a statement
of defence in which she also
counterclaimed against the
plaintiff:
(a)
‘An order that the plaintiff
returns to the matrimonial home
situate at East Legon the
following:
(i)
Dodge Van with registration
number GR 8892 R
(ii)
shot gun
(iii)
Television set
(iv)
Video Deck
(v)
Plastic tables and chairs
(vi)
Pressing iron
(vii)
Telephone
(viii)
Deceased’s mobile phone
(Motorola Model)
(ix)
Electric kettle
(x)
Various Iace fabrics of decease
(b)
An order compelling the
Plaintiff to refund to the
Defendant the cost of the front
entrance door leading to the
matrimonial home.
(c)
An order compelling the
Plaintiff to refund to the
Defendant all utility bills,
cost of repairing the air
conditioning unit destroyed as a
result of the Plaintiff leaving
the said unit on and locking up
the said room over a period of
time.
(d)
An order compelling the
plaintiff to refund to the
Defendant ¼ of all debts of the
deceased paid by the Defendant
for and on behalf of the estate.
(e)
Any further order or orders as
this Honourable Court may deem
fit.
(f) Costs’
After the filing of a Reply, the
following issues set out in the
application for directions were
adopted for trial by the court.
These are:
i.
‘Whether or not the Plaintiff is
the eldest child of the
intestate and a beneficiary of
his estate.
ii.
Whether or not the Defendant is
the surviving spouse of the
intestate
iii.
Whether or not on the 7th
June, 2002 the court granted
the parties Letters of
Administration to administer the
estate of the intestate.
iv.
Whether or not the Defendant has
made any payments in respect of
the estate of the late father of
the Plaintiff.
v.
Whether or not the Defendant
maneuvered to change the land
instrument in the name of the
intestate into her personal
name.
vi.
Whether or not the Defendant has
embezzled monies in the name of
the Plaintiff’s father, Edward
Kwabena Kwaisi Bentil, which
were deposited in various bank
in Ghana when the estate had not
been distributed in accordance
with the law.
vii.
Whether or not the Defendant
refused to render accounts in
respect of the estate.
viii.
Whether or not Plaintiff has at
any point in time refused to
enter into discussions with the
Defendant for the purpose of
liquidating the debts owed by
the intestate.
ix.
Whether or not the Plaintiff
ever taken out of the
matrimonial home various
household items and the vehicle
belonging to the intestate.
x.
Whether or not the Plaintiff
ever caused destruction to the
matrimonial home which was
repaired by the Defendant’.
From paragraphs 2, 3, and 4 of
the statement of claim as well
as paragraphs 3 of the statement
of defence I find as a fact that
one Edward Kwabena Kwaisi Bentil
died intestate on the 1st
day of April 2002. I also find
that the plaintiff herein is the
eldest child of the deceased.
It is also admitted by the
parties that the plaintiff and
the defendant are the
administratrix of the estate of
the deceased having on the 7th
day of June 2002 been issued
with letters of administration
to administer the estate of the
deceased. Again the parties
agree that the defendant is the
surviving spouse of the herein
named deceased.
The fourth issue on the
application for direction is
whether or not the defendant has
made any payments in respect of
the estate of the late father of
the plaintiff. This issue sprang
out of an averment by the
defendant to the effect that the
estate of the deceased was
inundated with debts and since
the plaintiff was not
co-operating with the defendant
to service those debts, the
defendant who is resident in
Ghana as against the plaintiff
who is resident abroad, had no
alternative but to service those
debts. The plaintiff has denied
these averments made by the
defendant.
The defendant gave evidence in
respect of various debts that
the intestate owed at the time
of his death. These debts
included that owing to Unique
Trust Financial Services, Global
Hiring Association, BRG Ghana
Limited, Buildaf Company Limited
and Akwapo Electricals among
others. The defendant tendered
in evidence exhibit 2 which is a
receipt evidencing the payment
of an amount of ¢88 million to
Unique Trust Financial Services
Limited, exhibit 3 a receipt
evidencing the payment of
¢500.000 to Global Hiring
Association on the 21st
November 2003; right up to
exhibit 11.
All these receipts evidenced the
payment of various sums of money
to various entities in respect
of debts owed by the deceased.
Indeed, apart from suggesting to
the defendant that the receipts
tendered by the defendant bears
no connection with the estate of
the deceased person, the
exhibits remain virtually
unchallenged. There is evidence
on record that the intestate was
indebted to various creditors
who were pursuing the defendant
for the payment of the debts. I
take notice of the fact that in
this country it is rare for a
creditor to state on a receipt
evidencing the payment of a debt
owed by a deceased person the
fact that the payment made was
on behalf of a deceased person.
Nevertheless, in view of the
serious allegation made by the
plaintiff in paragraph 5 of the
Reply to Defence and Defence to
Counter claim filed on the 14th
day of July 2006 to the effect
that ‘most of the persons named
as creditors of the deceased
husband were persons arranged by
the defendant’ and thus imputing
criminality bothering on fraud
against the defendant, the
burden was cast on the plaintiff
to lead evidence to prove that
allegation beyond reasonable
doubt. See the case of
Okofoh Estates Ltd vs. Modern
Signs Ltd & Anor. [1995-1996] 1
GLR 310.
It is sad commentary however to
note that the plaintiff failed
miserably to lead evidence in
proof of that rather serious
allegation against the
defendant. As it is, I am
satisfied with the evidence on
this issue and I find that the
defendant truly made payments in
respect of the estate of the
late father of the plaintiff who
was also the husband of the
defendant herein.
Issues 5 and 6 are hereby
discussed together are whether
or not the defendant maneuvered
to change the land instrument in
the name of the intestate into
her personal name and whether or
not the defendant has embezzled
monies in the name of the
plaintiff’s father, Edward
Kwabena kwaisi Bentil, which
were deposited in various banks
in Ghana when the estate had not
been distributed in accordance
with law. To manoeuvre to
change a name on a document is
to commit forgery and to
embezzle money is to steal.
These are serious criminal
offences with serious sanctions
under the Criminal Offences Act
of 1960, (Act 29). These
allegations of forgery and
embezzlement were made by the
plaintiff in paragraphs 10 and
11 of her statement of claim
against the defendant herein.
Sections 13(1) of the Evidence
Act of 1975 NRCD 323 provides
that:
13. Proof of crime
(1) In a civil or criminal
action, the burden of persuasion
as to the commission by a party
of a crime which is directly in
issue requires proof beyond a
reasonable doubt.
And section 15 also states that:
15. Burden of persuasion in
particular cases
Unless it is shifted,
(a) the party claiming
that a person has committed a
crime or wrongdoing has the
burden of persuasion on that
issue.
in the case of ….(quote case)
the court held that once an
allegation of criminality has
been made that allegation ought
to be proved beyond reasonable
doubt……………….
Sadly, no where in the evidence
of the plaintiff’s attorney did
he mention the above allegation
let alone proving it. It seems
to me that the plaintiff took
delight in making rather wild
allegations against the wife of
her deceased father without
leading the requisite evidence
to prove these allegations. I
hold that the allegations that
the defendant had embezzled
money belonging to the estate of
her deceased husband and that
she also attempted to change the
names on certain documents of
the deceased husband into her
own name have not been proved at
all and beyond reasonable doubt
by the plaintiff. They are
therefore dismissed.
The defendant has averred that
after the death of her husband,
the plaintiff who is the eldest
child of the deceased entered
the matrimonial home after she
had returned from London and
collected or carried away
various household chattels and a
vehicle belonging to the
deceased. The defendant gave
evidence to the effect that she
was, one day, out of the house
when the house boy called her to
tell her that the plaintiff had
come to the house to collect the
household items including
electrical appliances. At
another time, while the
defendant was out of the house,
according to the defendant, the
plaintiff came into the house
and caused damage to portions of
the house including the tiles
and doors. Eventually the
defendant reported this incident
to the police whereupon the
carpenter who caused the damage,
upon the instructions of the
plaintiff, together with the
plaintiff herself were arrested
by the Nima police.
The plaintiff had denied these
allegations made by the
defendant. It has always been
the law that the party who makes
an affirmative averment has the
burden of leading evidence to
prove those allegations or
claims particularly where the
allegations are denied by the
opposing party. See sections 14
and 17 of the Evidence Act 1975
NRCD 323 and the case of Bank of
West Africa vs. Ackun…
In respect of the allegation of
carrying away of household
chattels by the plaintiff, the
evidence suggest that the
incident happened when the
defendant was absent from the
house. Nevertheless, the
defendant failed to invite the
house boy, whom according to the
defendant, was present when the
alleged incident happened, to
come and give evidence in
corroboration of the
allegation. This is
particularly important in view
of the denial of the allegation
by the plaintiff. Again the
alleged destruction of certain
portions of the house by the
plaintiff, according to the
defendant, took place in her
absence. Yet, despite the
denial of the incident by the
plaintiff, the defendant failed
to invite the houseboy to come
and testify in corroboration of
the incident. Again the
defendant failed to invite the
police to come to court and
testify to the incident.
As it is, these allegations have
not been proved by the defendant
on the balance of probabilities
against the plaintiff. I will
therefore dismiss claims (a) and
(b) indorsed on the counterclaim
of the defendant. Even in
respect of counterclaim (b) in
which the defendant is asking
for an order to compel the
plaintiff to refund to the
defendant the cost of the front
entrance door leading to the
matrimonial home, the plaintiff
woefully failed to give evidence
as to the alleged cost of the
front entrance door and that to
me, is also fatal to that claim
which is hereby dismissed as
already indicated.
The next issue is whether or not
the plaintiff has, at any point
in time, refused to enter into
discussions with the defendant
for the purpose of liquidating
the debts owed by the
intestate. The evidence on
record shows that both parties
agree that the intestate left
behind various amounts of debt.
The testimony of the defendant
on this issue is to the effect
that after the grant of the
letters of administration to the
parties, three meetings were
scheduled to discuss the
modalities in respect of the
management of the estate of the
intestate. The plaintiff,
according to the defendant,
attended the first two meetings
but on the third occasion, the
plaintiff failed to attend. It
came to the notice of the
defendant later that the
plaintiff had travelled abroad
to her place of ordinary
residence in the United Kingdom.
Although the plaintiff has,
through her attorney denied this
allegation, I take notice of the
fact that since the beginning of
this trial, the plaintiff has
never shown up in court and that
she has prosecuted this case
through her appointed attorney.
It is also admitted by the
attorney that the plaintiff is
ordinarily resident in the
United Kingdom. Again no
evidence has been proffered as
to the appointment of an
attorney by the plaintiff to
join the defendant to administer
the estate of the deceased. The
court therefore believes the
allegation that the plaintiff
has not co-operated with the
defendant to manage the estate
including the debt left behind
by the intestate. The defendant
who was the surviving wife of
the intestate had no option but
to manage the estate in the face
of the pressure mounted on her
by the numerous creditors of her
deceased husband. The court
will therefore refuse the claim
by the plaintiff for an order
declaring as null and void any
distribution of the estate of
the deceased by the defendant.
Admittedly, once Edward Kwabena
kwaisi Bentil died intestate,
his estate ought to be
distributed in accordance with
the Intestate Succession Act of
1985 (PNDCL 111). However, the
distribution of the estate is
subject to the payment of the
just debt of the deceased. The
plaintiff being a daughter of
the deceased is entitled to a
share of the estate in
accordance with the law.
The defendant has admitted
administering the estate of the
deceased in the absence of the
plaintiff. It is therefore fair
and reasonable to order the
defendant to file an account of
her management of the estate
which the court so order. The
account must be filed within 30
days of this judgment. The
claim by the defendant for an
order upon the plaintiff to pay
to the defendant a quarter of
the debt paid by the defendant
will be refused.
Each party is ordered to bear
her own costs of the action.
(SGD)
SAMUEL K. A. ASIEDU
JUSTICE OF THE HIGH COURT
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