AYEBI, JA

 The plaintiff/respondent had a son by name Ekow Koranteng Ghunney. He passed away in 2004. In his life time he married the 1^st defendant/appellant and had two issues with her. In his Will and last testament, he gave H/No. Plot 20 Block 12 situated at Old Tafo to his wife, the 1^st defendant/appellant herein. He also gave his residuary estate to his wife and children.

Again he named the 1^st defendant/appellant, the wife and the 2^nd defendant/appellant as his executors. The Will with the probate granted to the executors is in evidence as Exhibit

3. The claim of the plaintiff/respondent against the defendants/appellants jointly and severally as executors of the Will of his son is for:

“(1) A declaration that title in all that property or land known as Plot No. 21 block 12, West Old Tafo, Kumasi is vested in the plaintiff and that the purported devise of the said property by the said late Ekow Ghunney in his said Will is null and void since he had no testamentary capacity to do so.

(2) Recovery of Possession.

(3) Any further or other orders as shall be just in the circumstances of this case and in particular an order of perpetual injunction restraining the defendants, their servants, agents, assigns or any other persons claiming through them or for and on their behalf from any way interfering with plaintiff’s exclusive title to, or possession or enjoyment or control of the said property”.

In clause 5 of the Will, the deceased stated that the vacant plot on which the house stands was gifted to him by his father but he built the house from his own sweat and toil. And in paragraph 4 of the statement of defence, the defendants/appellants denied the claim of the plaintiff/respondent because he had long gifted the plot to his late son. The defendants/appellants therefore counter-claimed for a declaration that the Will of the late Ekow Koranteng Ghanney (sic) is a valid one.

But the judge did not find the gift proved at the trial. In his judgment at page 152 of the record of appeal, the trial judge observed that:

“One essential ingredient of Akan customary gift is publicity. This is done by providing witnesses both by the Donor and the Donee. In this case the defendants have failed to prove any customary gift of the land in dispute by the plaintiff to the 1^st defendant’s husband. I find therefore that the 1^st defendant’s husband went on to the land and developed it contrary to the express warning of the plaintiff not to do so”.

Upon that finding, the trial judge dismissed the counter-claim of the defendants and entered judgment in favour of the plaintiff on all the reliefs endorsed on his writ of summons.

Dissatisfied with the judgment, the defendants appealed to us to set it aside and enter judgment in their favour. The grounds of appeal are that:

(a) The judgment is against the weight of evidence.

(b) The judge erred in relying on inadmissible evidence thereby causing miscarriage of justice.

(c) The judge erred in placing on defendant the prove (sic) of customary gift where the defendants were mere executors of the Will.

There was an indication that additional issues (sic) will be filed upon receipt of copies of the judgment and record of proceedings. But none were filed. Rather counsel for the defendants/appellants more or less abandoned ground (b) of the appeal.

The plaintiff pleaded that he acquired the plot of land and others in 1971 from the Tafo Stool then occupied by Nana Boadu Kwadwo. At the trial, he explained that he actually bought the plot with an uncompleted building on it from Moses Adjei Crowther who originally acquired it from the chief. He tendered what is more or less a letter, marked Exhibit A given to him by his said vendor.

He further explained that at the time, the land was in a remote area and so was not demarcated. From the further evidence of the plaintiff, in all he acquired four plots in the area by that document. But when exactly the land was demarcated and the disputed plot was numbered 21 Block 12, he did not tell the court. It is noticed that in the Will of the testator, he described the plot as No. 20 Block 12. And 1^st defendant/appellant explained that after her husband had developed the land, the new chief of Tafo requested all occupants of his stool land to bring their documents for regularization. When her husband went to see the chief, he was told that there was no documentation or record on the plot he had built on. In the circumstances, her husband had to pay the customary drink demanded after which the plot was allocated to him with the new number 21 Block 12.

However, the plaintiff had maintained that ever since he acquired the plot, the number he endorsed on the writ of summons has never changed. But then a file the plaintiff produced at the trial shows that it was during the trial that the number was allocated to the plot. So how the plaintiff came by the number 21 Block 12 before he instituted the action is not clear on the evidence. As I noted, in Exhibit A, the letter, the size of the plot was not given, neither was it numbered.

It is for this reason that in ground (b) of the appeal, the defendants alleged that the trial judge relied on inadmissible evidence in dismissing their counter-claim. The said ground was abandoned by counsel because it is admitted by the defendants that the plot was originally owned by the plaintiff. Additional to that, the parties are ad idem that whether referred to as plot number 20 or 21 Block 12, it is the same plot in dispute. On that basis, ground (b) of the appeal is struck out as abandoned.

Now the reason why the plaintiff/respondent sued the defendants/appellants is this: his late son was staying with him on an adjacent plot to the disputed plot. It was his intention to gift the disputed plot to all his children at the appropriate time but he did not do it. However, his late son unilaterally took over the plot and started putting up structures on it. He warned him to stop but he refused. He summoned him before some elders of Old Tafo including his uncle. Before the elders, his late son admitted his exclusive title to the plot. The elders found him guilty, yet his son persisted in his development of the plot.

Later, he heard that his son has made a Will and devised the plot with the house to his wife (1^st defendant/appellant) and others. He again invited his son before some elders. His son again admitted his (plaintiff’s) exclusive title. He was again found guilty. Not long after that confrontation, his son died. Although his son denied he had made a Will, they were invited to attend the reading of his Will. When it was confirmed that he devised the disputed plot in his Will, he caveated. He said there are 21 rooms in the house. The defendants/appellants who claim it as their property are demanding GH¢150.00 rent advance per room. By the admission of his exclusive title to the plot by his late son before the elders, plaintiff/respondent insisted that the defendants/appellants are estopped from laying any claim to the property, hence the suit.

Except for paragraph one of the plaintiff/respondent’s statement of claim, defendants/appellants denied every other averment in the statement of claim in their statement of defence and counter-claim. At the trial only the 1^st defendant/appellant appeared to contest the claim of the plaintiff/respondent. Her case as pleaded and testified to is that the plaintiff/respondent indeed gifted the plot to her late husband in his lifetime. Her late husband developed the plot before his death.

But before his death the current Tafohene invited all those who acquired plot to produce their documents. At the meeting, it turned out that the plaintiff/respondent had no valid documents on the plot. Her late husband was made to pay for re-allocation of the plot. Consequently, the plot was re-demarcated and given a new number 21 Block 12 instead of the number 20 Block 12 as stated in the Will. The 1^st defendant/appellant accused her father-in-law of purporting to revoke the Will after the death of his son, the testator.

In the first place I want to take issue with the claim of the plaintiff/respondent as endorsed on the writ of summons, that his deceased son lacked the testamentary capacity to devise the disputed plot in his Will because the plot belonged to him. Under the Wills Act, 1971 (Act 360) subject to special provisions applying to members of the armed forces and except in the case of persons who are not of sound mind, memory and understanding, a person may make a Will if he is at least eighteen years of age. So once at the time of making the Will, the person has the animus testandi, that is full and clear understanding that the document should take effect as his Will, that person has the testamentary capacity to make a Will.

The maker of a Will or testator does not lose his testamentary capacity merely because he devised in his Will a property he did not own at the time as alleged in this case. Similarly, a Will executed in compliance with the provisions of Act 360 does not become invalid because a property devised in it did not belong to the testator. Rather it is the devise of the property which is invalid and cannot be vested in the beneficiary by the executor(s) of the Will.

It is trite learning that cases are proved by the adduction of evidence. Thus the Evidence Act, 1975 (NRCD 323) in Part II captioned BURDEN OF PROOF provides variously as follows:

“S.11(1): For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

S.14: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.

S.11(4): In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

S.10(1): For the purposes of this Act, the burden of persuasion means obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court”.

The combined effect of these sections which defined the burden of persuasion and the burden of producing evidence summed up the burden on a party to establish his case in order to succeed. On the application of these sections on the burden of proof, the Supreme Court in Takoradi Flour Mills vrs Samir Faris [2005/06] SCGLR 882 at 898 stated that:

“In law, all issues of fact in dispute are proved by evidence. It is a fundamental principle in the law of evidence that he who asserts or claims an entitlement has the onus of proving the basis of that claim. According to the oft-cited case of Majolagbe vrs Larbi [1959] GLR 190, a party on whom the burden of proof lies, proves an averment in his pleadings, capable of proof in a positive way, not by merely mounting the witness box and repeating it on oath but by producing corroborative evidence that must necessarily exist if his averment were to be true”.

Then on the reminder that the burden of producing evidence is not fixed, the Supreme Court said in Re Ashalley Botwe Lands; Adjetey Agbosu vrs Kotey [2003/04] SCGLR 420 at page 444 that:

“It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case is not fixed, but shifts from party to party at various stages of the trial, depending on the issue(s) asserted or denied”.

From the pleadings the defendants/appellants have not only counter-claimed for a relief but have made a categorical assertion that the disputed plot was gifted to her deceased husband by the plaintiff/respondent. On the part of the plaintiff/respondent, having denied making any gift of the land to his late son, he asserted positively that he warned his late son to put a halt to putting up structures on the land and yet he persisted in the construction until his death. That being so, each of the parties bear the burden of producing evidence on his claim or her defence to avoid a ruling against him or her. And the burden of persuasion must satisfy the standard stipulated in S.10(1) of NRCD 323.

As I noted earlier on, counsel for the defendants/appellants has narrowed down the grounds by arguing ground (c) of the appeal under the omnibus ground of appeal in ground (a). There are several decisions of the Supreme Court which explain the ground of appeal that the judgment is against the weight of evidence, how the ground may be used by the parties and how the court should decide issues raised by the ground. The exposition of the meaning of the ground in Tuakwa vrs Bossom [2001/02] SCGLR 61 is all-embracing. It states that:

“An appeal is by way of rehearing, particularly where the appellant in his notice of appeal alleged that the decision of the trial court is against the weight of evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that on a preponderance of probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence”.

As the facts show in this case, it is a father-in-law who has sued a daughter-in-law over the estate of his own son who died testate. In the case of Mrs. Elizabeth Osei vrs Madam Alice Korang [2013] 58 GMJ 1, SC, it is a daughter-in-law who sued a mother-in-law over a house she claimed she built with her deceased husband. On the duty of the appellate court where the omnibus ground of appeal is alleged, the court observed that:

“It is trite learning that an appeal to this court is by way of a rehearing and the appellate court has the duty to study the entire record to find whether or not the judgment under appeal was justified as supported by the evidence on record. An appellate court is entitled to make up its mind on the facts and to draw inferences to the same extent as the trial court could do”.

From the judgment of the trial judge I quoted above, he dismissed the counter-claim of the defendants/appellants because the gift of the plot to the deceased husband she alleged has not been proved. On the other hand, he accepted the case of the plaintiff/respondent that he warned the deceased son to stop developing the land because it did not belong to him but he failed to heed the warning. It is these two issues which the written submission of the defendants/appellants addressed under the omnibus ground of appeal.

But I prefer to address ground (c) which faulted the trial judge for placing the onus of proof of the gift on the defendants/appellants whom he described as mere executors separately. In the first place, the party who has an obligation to prove an issue or a fact in issue or the allocation of the onus of proof on the pleadings, is a matter of law and not fact. It is therefore most inappropriate for counsel for the defendants/appellants to argue ground (c) under the omnibus ground of appeal that the judgment is against the weight of evidence – see Brown vrs Quarshigah [2003/04] SCGLR 930. This is the reason for my preference to address it separately.

I also noted that it was only the 1^st defendant who defended the action at the trial court.

She told the court that she did not know the whereabouts of the 2^nd defendant, one of her husband’s tenants. And from the Will of her husband, she is an executor beneficiary. To describe her as a mere executor is demeaning in law and choice of words.

It is also my view that ground (c) of the appeal as it is stand is not tenable on the pleadings and in law. In law, once the defendants/appellants have counter-claimed based on the gift at customary, they are duty bound to prove it, in order to avoid a ruling against them on the issue of gift – s.11(1) of NRCD 323 refers. Thus in Bank of West Africa Ltd. vrs Ackun [1963] 1 GLR 176, although defendants accepted substantially the plaintiff’s claim they raised an additional or separate issue as in the instant case. The appellate court held that the trial judge was right in placing the onus of proving this additional issue on the defendants.

That apart, it is trite learning that a Will takes effect after the death of the testator. The executors who are appointed under the Will become vested with the power to deal with the estate. They have duty not only to gather the estate, apply for grant of probate, distribute the estate thereafter and vest the devises in the beneficiaries, but also to defend the estate when sued as in the instant case. The duty to protect and defend the estate is even more compelling in the instant case because the defendants/appellants have been granted probate – see Catheline vrs Akuffo-Addo [1986/86] 1 GLR 57, CA and In Re: Anim-Addo (deceased); Nkansah alias Anane vrs Amomah-Addo [1989/90] GLRD 79.

As executors, if defendants/appellants themselves do not have personal knowledge of the gift, it is their fiduciary duty to find the evidence to disprove the claim of the plaintiff/respondent. The handicap they faced of not having personal knowledge of the gift is not a ground in law to overlook or waive the onus of proof on them. Accordingly, that ground of appeal is dismissed.

Now as regards the gift of the plot, the evidence of the 1^st defendant/appellant is bereft of all the essential requirements of a valid gift in accordance with customary law which are publicity, acceptance and the placing of the donee in possession. According to the 1^st defendant when she married the husband, he took her to two rooms on the plot and then told her that the plaintiff/respondent gifted the plot to him. The husband she continued, requested her to assist him develop the plot and she did. Again the husband told her that an elder by name Agyarko witnessed the gift but he had died.

This was all the evidence of the defendants/appellants on the gift of the plot. Plaintiff/respondent has denied that he ever gifted the plot to his late son. It is therefore not sufficient for the 1^st defendant/appellant to state barely that a gift was made. As rightly stated by the trial judge, publicity is an essential requirement of a valid customary law gift. Therefore, 1^st defendant/appellant should have gone on to show the occasion, if any, on which the gift was made, the date, the time, if possible; the venue and most importantly, in whose presence it was made – Abdul Rahman vrs Baba Ladi, Civil Appeal No. J4/36/2013, 29^th July 2013.

However, the 1^st defendant/appellant was unable to provide any such information because she did not have personal knowledge of the gift. Since the 1^st defendant/appellant lacked personal knowledge of the gift, she was unable to give direct evidence of the gift, hence the dismissal of their counter-claim. It is however permissible that in the absence of the direct evidence in proof of an issue or a fact, circumstantial evidence could be resorted to. The trial judge failed to give any such consideration to the evidence led by the 1^st defendant/appellant.

In the submission on behalf of the defendants/appellants, counsel has strongly urged on us to hold that there was indeed a gift of the plot by the plaintiff/respondent to his late son in view of pieces of evidence he discussed. In appropriate circumstances that submission is tenable in law. For in Asare vrs Teing [1960] GLR 155 at 160, Ollennu J (as he then was) said:

“In the absence, however, of publicity of the gift at the moment of its making, possession and occupation by the donee and then open exercise by him of rights over the land which is incapable of any other explanation except that the person in such possession is the owner, will be sufficient evidence and publication of a gift”.

So in that case given the fact that the donee was in possession of the land and had been exercising overts of ownership over the land, the court held that there was indeed a gift validly made at customary law. I shall return to the submission that the circumstantial evidence on the record has proved the gift. But for now I will deal with the plaintiff/respondent’s denial that he ever gifted the plot to his late son and that was the reason why he warned him to put a stop to its development.

According to the plaintiff/respondent although he intended to gift the plot to all his children, he never made the gift. From his evidence, he warned his son on two occasions to desist from developing the plot. The first occasion was when he summoned him before some elders at Tafo including his uncle, PW1. According to PW1 this warning took place during the Easter in 1988. The second occasion according to the plaintiff/respondent was in 2000 when he confronted his son that he had heard that he had devised the plot with the house to his wife and others. According to plaintiff/respondent, his son denied any such act in the presence of the elders. And not long after, he died.

In proof of the warning which the deceased defied, the uncle of the deceased testified as PW1. PW1 said he was at Bechem when the plaintiff/respondent informed him that his nephew was putting up a behaviour he was displeased with. During the 1988 Easter period, he and two others agreed at the request of the plaintiff/respondent to talk to the deceased concerning his behaviour which his father was not pleased with.

It is worth at this stage to quote the evidence of PW1 on the issue in examination-in-chief verbatim, as appears at page 87 of the record of appeal:

Q. Did you get to know the kind of behavior he was complaining of?

A. He told him to put a stop to that unruly behaviour but he refused.

Q. What was the son actually doing that he wanted him to stop?

A. He was putting up a house my Lord.

Q. Where was he putting up the said house?

A. My Lord, it was at Tafo.

Q. And why did the father want him to stop?

A. He was telling him to wait for a while but he did not agree with the father.

Q. Why did his father want him to stop?

A. I am not aware of that.

Q. Do you per chance know on whose land the son was putting the said building?

A. My Lord I don’t know.

Q. So when you talked to him what happened next?

A. My Lord, he didn’t listen to us.

Q. Now did you get to know the land on which the son was building on, did you see it.

A. Yes my Lord.

As I indicated, this evidence was given by PW1 in examination-in-chief and not cross-examination. The purpose of PW1’s evidence was meant to corroborate the case of the plaintiff/respondent that the deceased was warned to stop building on the disputed plot because the plot did not belong to him. But as can be seen, PW1’s evidence nowhere touched on ownership of the disputed plot but the unruly behaviour of the deceased. And apart from this evidence of PW1, there was no attempt by plaintiff/respondent to prove the information he heard about the Will on the second occasion of the alleged warnings in the presence of the elders he assembled.

Had the plaintiff/respondent invited the 1^st defendant/appellant, a purported beneficiary of the devise to that meeting he would have won some credit. But he told the court that he did not invite her because she is not a member of his family.

Although a trial court can base its decision on the evidence of a single witness if it finds that evidence credible and reliable on an issue, evidence called to corroborate the earlier evidence must not only be cogent but also relevant and reliable. In Faibi vrs State Hotel Corporation [1968] GLR 471, the court held that, onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led.

From the record, apart from the bare assertion of the plaintiff/respondent that his late son failed to heed his warnings to stop developing the plot because it is not his or he had not gifted it to him, there is no cogent or credible evidence to prove it. We are of the view that

the trial judge erred when he held that the 1^st defendant/appellant’s husband went on to the land and developed it contrary to the express warning of the plaintiff/respondent not to do so. The evidence of PW1, the only witness of the plaintiff/respondent proved no issue in controversy in this case.

I now return to the proof of the gift of the plot to the deceased by considering other pieces of evidence on the record but which the trial judge failed to consider. These other pieces of evidence is labelled circumstantial evidence. It is resorted to where direct evidence is not available or not easy to obtain as in the instant case. Circumstantial evidence is thus pieces or incidents of facts when put together, provide the basis for drawing a conclusion, inference or deduction of the existence or non-existence of a fact. For the inference or conclusion drawn to have validity of legal proof, as opposed to mere conjecture or speculation, it must be based on objective facts – see Nyame vrs Tarzan Tansport [1973] 1 GLR 8, especially the English authorities cited on page 15.

In his evidence, 1^st defendant/appellant told the court that her deceased husband led her into two rooms on the land when she married him. The plaintiff/respondent stated that the marriage took place in 1994. That meant that the deceased had put up the two rooms on the plot and was living in it before the marriage. The house according to 1^st defendant/appellant became her matrimonial home up to date. She said the marriage lasted for 25 years. But considering the fact that her husband died at age 37, the marriage could not be that long.

However the unchallenged evidence of the 1^st defendant/appellant is that in 2004, when her husband died they have added 19 rooms to the existing two rooms she met. She explained that they financed the additional rooms one at a time from rent advance they took from tenants. Her further case is that the plaintiff/respondent was fully aware of and seeing the development of the plot because he is more or less a neighbour living on an adjacent plot. And until her husband died, the plaintiff/respondent never raised a finger against their stay on the plot, let alone the gradual extension of the structure on it.

Finally, the 1^st defendant/appellant accused the plaintiff/respondent of trying to revoke the Will after the death of husband (his son). I note the plaintiff/respondent’s paragraph 7 of the statement of claim which accused the defendants/appellants of claiming the property after the death of his son and demanding a rent advance of GH¢150.00 from each of the twenty-one (21) tenants.

The question then is, is that the first time the 1^st defendant/appellant was taking rent advance from tenants in the house? Then why should plaintiff/respondent sue only after the death of his son and not during his lifetime since his evidence is that his son has refused to heed not only his warnings but also that of the elders he complained to? In submission of counsel for the defendants/appellants, he held the view that since a plot of land is the subject-matter of plaintiff/respondent’s complaint to the elders, the protest by way warning only is cosmetic and not concrete even if the warning were proved.

I cannot agree more with that submission since the plaintiff/respondent claimed that his son flagrantly refused to heed the warnings on all occasions. If indeed the plaintiff/respondent did not gift the plot to his son, his son’s possession and development as well as enjoyment of the plot should have provoked him to take a more drastic action in his lifetime.

This action having been launched after the death of the son, is no doubt against the estate of the deceased. It is the reason why proof of plaintiff/respondent’s claim must be strict. For the law is that such a claim should be scrutinized with the “utmost suspicion” – see In Re Garnett: Gandy vrs Macauley [1885] 31 Chan Div. 1 applied in Moses vrs Anane [1989/90] 2 GLR 694, where Brett M.R. said:

“The law is that when an attempt is made to charge a dead person in a manner, in which if he were alive he might have answered the charge, the evidence ought to be looked with great care; the evidence ought to be thoroughly sifted, and the mind of any judge who hears it ought to be, first of all, in a state of suspicion; but if in the end the truthfulness of the witnesses is made perfectly clear and apparent, and the tribunal which has to act on their evidence believes them, the suggested doctrine [of corroboration] becomes absurd”.

In Mrs. Elizabeth Osei vrs Madam Alice Efua Korang (supra), Ansah JSC explained Brett M.R’s statement in relation to the factors taken into consideration in assessing the credibility of a witness as provided in s.80 of the Evidence Act, 1975 (NRCD 323). He observed that the statement does not mean that the claim against a dead person should be rejected outright because it was made against a deceased but rather the claim should be scrutinized and carefully weighed for its inherent probative value because the dead person cannot speak or is not available to challenge the claim. That is why in invariably all such cases, the court in its wisdom looks for pieces of evidence to corroborate the claim.

Thus far, in this case, in the absence of direct evidence in proof of the gift which the 1^st defendant/appellant was unable to provide, if the trial judge had looked beyond proof by direct evidence, he would have realized that there were other pieces of evidence on the record which support the 1^st defendant/appellant’s claim of gift of the plot to her late husband by the plaintiff/respondent, his father. These pieces of evidence include the plaintiff/respondents knowledge of the possession and development of the plot over a period of at least 10 years, seeing these developments on daily basis as he lives adjacent to

the disputed plot, and failing to bring to the notice of the 1^st defendant/appellant and forewarn her that her husband had no title to the plot she was assisting him to develop and lastly failing to challenge the title to and interest of his son in the plot by way of a concrete action such as the instant one until after his death.

These matters in our view are sufficient to ground the conclusion that the plaintiff/respondent gifted the disputed plot to his late son in his lifetime. In other words, these pieces of evidence cumulatively create a strong presumption of gift of the plot to the late son but which presumption the kind of evidence led by the plaintiff/respondent was not cogent enough to rebut. We are of the view therefore that the dismissal of the defendants/appellants’ counter-claim because they could not prove the gift by direct evidence is not justified. There is also this submission by counsel for the defendants/appellants that the attitude of the plaintiff/respondent constitutes acquiescence or even laches. But that defence has not been pleaded in compliance with rules of pleading – Order 11 r.8(1) of C.I. 47.

However, the evidence on record supports that defence of acquiescence and laches and even unjust enrichment against the plaintiff/respondent. In Sasu vrs Amua-Sekyi [2003/04] 2 GLR 771, the Supreme Court upheld a defence of estoppel although it was not pleaded. In holding(1), the court stated:

“Where on the facts, an estoppel which was not pleaded, should nonetheless be obvious to the party against whom it was raised, the court may ignore the failure to plead and give effect to it. The justification for this line of thought is that the party affected is not likely to be surprised where the evidence on record makes the estoppel obvious”.

In the instant case, the circumstantial evidence point to acquiescence in the gift of the plot by plaintiff/respondent to his late son. It is the added reason why we differ from the conclusion reached by the trial judge. Accordingly, we set aside the judgment of the trial court and allow the counter-claim of the defendants/appellants. The appeal therefore is allowed.