DZAMEFE JA

This is an appeal against the judgment of the Circuit Court Nkawie dated 22nd June 2011.

The plaintiff issued this writ for the following claims: -

1. Declaration of title, ownership and possession of all that piece of lands gave, bequeath and deviced to them in the Last Will of OpaninKwame Tuah being bounded by the properties of:

a. Yaw Kyem, YaaAmponsah, Yaw Bediako, AmaduGrushie, Kofi Dum and AdwoaBaako.

b. Kwadwo Nkrumah, AkuaMansah, Kofi Gyamera, KwadwoOwusu, Koo Boye, Yaw Bediako, Op. KwasiOpoku, Yaw Amponsem.

2. General damagesfor trespass.

3. Perpetual injunction.

The plaintiff/respondent simply referred to as plaintiff is a farmer who stays in Kumasi. The defendant/appellant, also a farmer, lives at Pakyi No.2. The land the subject matter of this suit belongs to one Opanin Kwame Tuah, deceased, who died on 6th August 2006. The plaintiff averin his pleadingsthat the land in dispute was gifted to them by their late father in his last Will read on the 20thof November 2007 by the High Court to which probate was issued. It is their case that the defendant has trespassed onto the land despite several warnings hence this suit.

The defendant in her defence aver the land in dispute is her bonafide property gifted to her absolutely by the late father AkwasiOpoku. It is her case that the land in issue does not belong to the plaintiff’s late father and therefore not entitled to his claims.

In reply to the defence, the plaintiff avers that her late father has been on the disputed land throughout his lifetime but the defendant never litigated with him. He also averred that the defendant, Gyimah and all the children were served by the High Court for the last Will of Opanin Kwame Tuah to be read but they failed to turn up.

Issues for trial

Issues for trial were:

1. Whether or not the land in dispute is the bonafide property of the late Opanin Kwame

Tuah

2. Whether or not the late Opanin Kwame KwameTuah gifted the said landed property to the plaintiffs as per the late Kwame Tuah’s Will.

3. Whether or not the plaintiffs are entitled to their claim.

4. Any other pleadings

5. Costs

Judgment

The trial judge in his judgment said from the evidence adduced before him it is clear thatplaintiff relies on the Will while the defendant sought to challenge the gift made in the Will even though she has not put it in a counter claim.

At the end of the trial the court found that the lands in dispute have been gifted to the plaintiff and his siblings by their late father Kwame Tuah in his last Will and testament and for which probate was granted on 20thdayof November 2007.

The court entered judgment in favour of the plaintiff. Consequently, title in the said lands at Beposo and Gyesua are declared in favour of the plaintiff and his siblings. They shall recover possession accordingly.

The trial court ordered defendant to account for proceeds of cocoa she has harvested from Beposo from the time of Kwame Tuah’s death till date of the judgment. The court also restrained 2nd defendant and all his assigns from dealing with the said lands.

The appellant dissatisfied with this judgment filed this appeal against the whole judgment on the following grounds: a. That the judgment is against the weight of evidence.

b. Additional grounds to be filed on receipt of the record of appeal.

The relief sought is for this judgment to be reversed and set aside and judgment entered in favour of the appellant.

Additional grounds

1. That the plaintiff/respondent had no capacity to institute this action in his personal capacity.

2. That the Will dated 15/04/94 is a forged document and consequently invalid.

3. That the Will was not the deed of Kwame Tuah.

4. That the plaintiff/respondent claimed land that was not devised to him.

Submissions

Counsel’s submission was on the 1st additional ground challenging the capacity of the plaintiff/respondent to institute this action. It is his submission that the Testator appointed two executors, Opanin Kwabena Yentumi and Mr. Eric Kwakye, but it was only the later who applied and was granted probate. He submits further that there is no evidence that the beneficiaries were granted vesting assents. In view of the failure of the executors to vest title in the beneficiaries the plaintiff/respondent had no capacity to institute the said action.

In buttressing his point, counsel referred this court to the Supreme Court case of Nkua vrs Konadu& Boateng [2009] SC GLR 134 where the court held that “any Will whose provisions affected any land in Ghana should be registered after the death of the testator as required by the Land Registry Act 1962 (Act 122) S.26 (3) and that a vesting assent of land as required by the Administration of Estates, Act 1961 (Act 63) S.96 (1) in favour of a beneficiary would be legally effective only on registration of the Will”.

We shall consider the omnibus ground of judgment against the weight of evidence.

When an appellant’s ground of appeal says so, then it is the duty of such appellant to demonstrate to the appellate court the lapses in the judgment appealed against. – Djin vrs Musah Baako [2007-08] SC GLR 686.

Essentially, the effect of that ground of appeal was to invite the appellate Court to review the whole of the evidence, documentary and oral adduced at the trial and come out with a pronouncement on the weight of evidence in support of the judgment of the trial court or otherwise. Where findings were based on established facts, the appellate court was in the same position as the trial court to draw its own inferences from the established facts. – Oppong Kofi &Ors vrs. Atibrukusu III [2011] 1 SCGLR 176.

Counsel for the appellant in his submission on this ground of appeal said the plaintiff/respondent has a duty to prove his case on the preponderance of probabilities as required by Section 11(1), 4 and 12 of the Evidence Act 1975 (NRCD 323).

The plaintiff assumed the onus and burden of proof of title to the disputed land by the preponderance of probabilities as required by Section 11 and 12 of the Evidence Act 1975 (NRCD 323) or risk the prospect of losing his case. It is his submission the plaintiff in the instant appeal failed to call any witness in support of his case unlike the defendant/appellant. It is his submission that the plaintiff/respondent woefully failed to satisfy the requirement of Sections 11&12 of the Act 323 and his case must fail.

We are of the opinion that while it is desirable to call witnesses to support or corroborate one’s case, corroboration unless required by law, is not a sine qua non to establishing a case. The courtrelies on quality of evidence andnot quantity. A party can rely on the quality evidence of one witness to establisha case. Proof was no more than credible evidence of a fact in issue. It did not matter that the evidence was given by one or several witnesses, the important thing was the quality of the evidence. – Akrofi vrs Oteng & Anor [1989-90] 2 GLR 244.

Ground 1:

The trial court held that the lands in dispute have been gifted to the plaintiff and the siblings by their deceased father Kwame Tuah in his last Will and testament for which probate was granted and therefore entered judgment in favour of the plaintiff. The court went on “consequently title on the said lands at Beposo and Gyasua is declared in favour of plaintiff and his siblings.”

The crux of the appellants case on this ground of appeal is that the plaintiff/respondent, a beneficiary of the Will was not granted any vesting assent and therefore lacked capacity to institute this action involving the lands so bequeathed by the testator.

What is a vesting assent? It is the instrument whereby a personal representative, after the death of a tenant for life or statutory, owner, vests settled land in a person entitled as tenant for life or statutory owner – Osborn Concise Law Dictionary 8th Edition.

From the Record of Appeal, there is no evidence that the Executors had granted vesting assents to the beneficiaries like the plaintiff. There is also no evidence of any vesting orders from the court. The law is certain that a devisee cannot sue nor be sued in relation to the devised property before a vesting assent has been executed in his or her favour. Accordingly, in the absence of a vesting assent executed in favour of the plaintiff in the instant case, he could neither sue nor be sued on his devise.

When a person dies testate or interstate, his estate devolves on the executor or personal representative respectively; until a vesting assent has been executed to the beneficiaries or devisees; until that grant the beneficiaries or devisees have no title or locus standi over any portion of the estates – Okyere (decd.) substituted by Peprahvrs. Appenteng&Adomaa [2012] SCGLR 65.

After the grant of probate, a beneficiary of any real estate under the Will must have a vesting assent executed in his favour by the executors under the Administrator of Estate Act (Act 63) Section 1 (1), 2(1) and 96(1). Until that is done any dealings with the property by the beneficiaries would be of no legal consequence.

A beneficiary cannot sue or be sued in respect of a property devolved unto him under a Will or intestacy for which vesting assent has not been registered on his behalf in accordance with Sections 1 (1), 2 (1) and 96 (1) of the Administration of Estates, Act. Anyalienation by a beneficiary under a Will or intestate estate without a valid registered vesting assent is void for want of capacity.

Capacity goes to the root of every case and where the capacity of a party is challenged especially the plaintiff such as in the instant appeal, the court must first resolve that issue because a person without capacity cannot be given a hearing even though he may have an iron cast case. Capacity to institute an action is a precondition to the institution of an action in court. See Yorkwa vrs Duah [1992/3] GBR 278.

The trial court erred in holding that the Will devised the lands in issue to the plaintiff and the siblings and therefore they own those lands. The court failed to see whether the devisees have the vesting assent given them by the executors to be able to assume title.

After coming into force of the Administration of Estates Act, 1961, (Act 63) on 7th June, 1961, the gifts of properties by testators in Wills do not vest automatically in the devisees and the legatees. The personal representatives of the deceased must assent to the vesting of the devises in the beneficiaries before such beneficiaries can deal with the gifts as they like. Even after the vesting assent had been executed, it would still not have any legal efficacy until after it had been registered under the Land Registry Act, 1962 (Act 122).

In the instant appeal there is no evidence that the vesting assents were executed by the executors of the Will to the beneficiaries including the plaintiff nor was same done and registered as required by the Administration of Estates Act. This is a creature of statute and must be strictly adhered to.

The plaintiff/respondent therefore lacks capacity to institute this action. That ground of appeal succeeds. Once he lacks that capacity, the whole trial is a nullity and same is set aside.

There was no counterclaim before the trial court and so we cannot enter any judgment for the defendant/appellant.

There is also no need going into the other grounds of appeal since it will constitute an exercise in futility.

This appeal succeeds. The trial courts’ judgment and all consequential orders are hereby set aside.

SGD

SENYO DZAMEFE

[JUSTICE OF APPEAL]

SGD

I AGREE                                                      K. N. ADUAMA OSEI

[JUSTICE OF APPEAL]

{PRESIDING}

SGD

I ALSO AGREE                                         MARGARET WELBOURNE (MRS.)

[JUSTICE OF APPEAL]