MRS. MATILDA AKU OBENG & EMEFA YAA EGBENYA-OBENG vs ATTORNEY GENERAL & 3 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
    ACCRA - A.D 2018
MRS. MATILDA AKU OBENG AND EMEFA YAA EGBENYA-OBENG - (Plaintiffs)
ATTORNEY GENERAL AND 3 OTHERS - (Defendants)

DATE:  10 TH APRIL, 2018
SUIT NO:  GJ 1051/2016
JUDGES:  KWEKU T. ACKAAH-BOAFO JUSTICE OF THE HIGH COURT
LAWYERS:  MR. BRIGHT OKYERE ADJEKUM WITH MAAME SARPONG FOR THE PLAINTIFFS
MS. UMMU ZAKARI FOR THE DEFENDANTS
JUDGMENT

 

i. Introduction:

[1] In this case, a decision made by the Director of Estates of the Ghana Armed Forces’ Committee of Adjustment in respect of the late Air Commodore Obeng (Deceased), is the centerpiece of this litigation. The Plaintiffs contend that the Committee erred by varying the Nomination Form, DFA 400 to add persons who were not listed as beneficiaries by the deceased. The court is called upon to consider among other things, whether the Director of Estates has the right to vary the DFA 400 of the deceased.

 

[2] Per a writ of summons sealed in this registry on 26th day of September, 2016 the Plaintiffs claimed against the Defendants herein the following judicial reliefs set out here below:

a. A Declaration that the 3rd Defendant is not entitled to vary the Nomination Paper (DFA 400) of the Deceased.

b. A Declaration that 3rd Defendant’s variation of the Nomination Paper (DFA 400) of the Deceased is arbitrary, unlawful, null and void.

c. An Order directed at the Defendants to disburse the benefits of the Deceased in strict compliance with the expressed wishes of the Deceased in his Nomination Paper (DFA 400).

d. An order of perpetual injunction Restraining the Defendants, their agents, assigns, servants, howsoever described from interfering in any way with the estate of the Deceased in a manner detrimental to the interest of the Plaintiffs.

e. An Order directed at Defendants to refund to Plaintiffs within 7 days all sums of money wrongfully and/or illegally paid out of the estate of the deceased.

f. Such further or other Orders as the Court may deem fit; in particular, damages for intermeddling with the estate of the deceased.

 

[3] After the service of the writ and its accompanying statement of claim on the Defendants, Appearance was entered by an Attorney from the Attorney General’s office after which a joint 15-paragraph statement of defence was filed by the Defendants but claim to relief by way of Counterclaim.

 

ii. Issues for Trial

[4] At the close of the pleadings the Issues contained in the Application for Directions filed by the Plaintiff and adopted by the court for trial were:-

a. Whether or not the Emmanuel Kofi Obeng and Desree Naana Aisha Obeng are biological children of the Deceased.

b. Whether or not the Deceased in his lifetime acknowledged paternity of Emmanuel Kofi Obeng and Desree Naana Aisha Obemg.

c. Whether or not the Committee of Adjustment has the authority to determine the paternity of Emmanuel Kofi Obeng and Desree Naana Aisha Obeng

d. Whether or not the 3rd Defendant is entitled to vary the Nomination paper (DFA 400) by the 3rd Defendant is valid in law

 

e. Whether or not the purported variation of the Deceased’s Nomination Paper (DFA 400) by the 3rd Defendant is valid in law

f. Whether or not Plaintiffs are entitled to their Claims

g. Any other issue(s) raised by the Pleadings

 

[5] The trial of the case commenced on Monday May 22, 2017 and the evidence was completed on Tuesday October 24, 2017. I note that the trial delayed for some time because before the trial started, many interlocutory applications were filed by the Defendants to first have the suit dismissed and when that failed, other applications were also filed including one for the exhumation of the deceased. I shall later speak to this in this judgment.

 

[6] At the trial, the 1st Plaintiff gave evidence by herself and on behalf of the 2nd Plaintiff and called no other witness and closed their case. The Defendants originally filed four witness statements in the names of Wg Cdr Fred Odoi-Wellington, Anwa Mamudu, Mary Maaldeong Gbeck and Alhaji Amadu Mamudu. Unfortunately, Alhaji Mamudu passed on during the course of the trial and therefore did not testify as a witness of fact for the Defendants before they closed their case. The three other witnesses testified and the Court adopted the witness statements filed with the attached exhibits as their evidence in chief.

 

The Evidence Received by Court:

[7] The Plaintiff’s case consisted of the 1st Plaintiff’s testimony in court and the documentary evidence she submitted in support of the claim, marked in the record as Exhibits “A” to “G”. Mrs. Aku Obeng testified in terms of the statement of claim to the effect that she is the widow of Air Commodore Emmanuel Kofi Obeng (Deceased) and an administratrix of estate. A copy of the Letters of Administration dated April 21, 2016 was tendered as Exhibit “A’. Mrs. Aku Obeng further testified that the 2nd Plaintiff is her daughter and a co-administratrix of the deceased estate. The 1st Plaintiff further testified that her late husband died on August 10, 2015 leaving behind herself “as his only wife and our two biological daughters namely; Emmanuelle Abena D. Obeng and Matilda E. Obeng as well our two (2) adopted daughters namely: Joyce Addo-Appiah and the 2nd Plaintiff”.

 

[8] According to the 1st Plaintiff, the deceased on his Nomination Paper (DFA 400) nominated her and their two daughters Emmanuelle Abena D. Obeng and Matilda E. Obeng and his brother as the beneficiaries of his Military benefits. According to the Plaintiffs after the demise of the deceased, without reference to them the 3rd Defendant accepted the inclusion of two other persons alleged to be children of the deceased; allegedly on the say-so of some “in-laws at a meeting of a Committee of Adjustments which was convened without recourse to them”, in particular the 1st Plaintiff as the widow.

 

[9] Mrs. Aku Obeng testified that her husband in his life time never had any child, and also never acknowledged paternity of any child other than those he had with her and the adopted children. According to Mrs. Aku Obeng it is preposterous and false for anyone to acknowledge any child for her late husband when no paternity test has confirmed same.

 

[10] Further, the 1st Plaintiff further testified that “notwithstanding my repeated and persistent protestations, the 3rd Defendant has in a most arbitrary manner and without the establishment of any paternity proceeded to vary my husband’s Nomination Paper and admitted the alleged children by making provision for them out of my husband’s estate”. A copy of a letter dated 15th August, 2016 from the Plaintiff’s Solicitors, G.A. Sarpong & Co to the Directorate of Legal Service was tendered as Exhibit “B”.

 

[11] Mrs. Aku Obeng further told the Court that the variation made was wrong and amounts to intermeddling because the Nomination Paper filled by her late husband is in the nature of a Will and therefore the 3rd Defendant cannot vary same. According to her on July 19, 2016, the Defendants wrote to her through her lawyers inviting her and others to a meeting to settle the matter and same was scheduled for July 27, 2016. A copy of the letter was tendered as Exhibit “C”.

 

[12] The Plaintiff further testified that upon the receipt of the letter dated July 19, 2016, her lawyers wrote to the Defendants to demand a copy of her late husband’s Form 400 and a copy of the report of the Committee of Adjustment to enable them advise the her. The 1st Plaintiff testified that the Defendants refused to give her a copy of the documents requested. A copy of the lawyer’s letter dated 20th July 2016 was tendered as Exhibit “D”.

 

[13] According to Mrs. Aku Obeng on August 3rd, 2016 the Defendants wrote to her lawyers and stated inter alia that “it was within the power of the Director of Estates to include the persons they included and that my husband’s Form 400 and the Report of the Committee of Adjustment are classified information and so could not be released except by express approval from the Chief of Defence Staff”. A copy of the said letter was tendered as Exhibit “E”.

 

[14] Mrs. Aku Obeng further told the Court that at the instance of the 2nd and 3rd Defendants, the 4th Defendant “has proceeded to issue cheques to disburse the benefits of my late husband in a manner contrary to the express wishes of my late husband” as contained in the Nomination Form and thus expanded the pool of beneficiaries. Further, the Plaintiffs tendered as Exhibit “F”, the funeral brochure of the deceased to contend that the deceased’s funeral was conducted by the military who prepared the brochure and listed the members of the deceased family being the widow and the daughters. According to the Plaintiffs the alleged children were not listed in the brochure.

 

[15] Finally, Mrs. Aku Obeng testified that life has become unbearable for her as she is unable to work due to ill health and she is also unable to access her husband’s estate to take care of herself and the children. It is also the case of the Plaintiffs that the “Defendants have to date refused to pay even my widow’s allowance which has nothing to do with my husband’s estate despite several requests”. Exhibits “G” and “G1” being a correspondence from the Plaintiffs lawyers to the Defendants on the subject was tendered at trial. Based on all of the above, the Plaintiffs have prayed the Court to grant their claim.

 

The Defendants’ Case:

[16] The Defendants’ first called, Wing Commander Fred Odoi-Wellington of the Air Force Headquarters, Accra. He testified that upon the demise of the deceased the Commanding Officer of the Air Force Headquarters convened a Committee of Adjustment made up of five persons to look into the estate of the deceased. A copy of the Convening Order was tendered and marked as Exhibit “8”. Commander Fred Odoi-Wellington testified that he was a member of the Committee. According to the witness the Committee sat from 19th day of October 2015 through to the 9th of March 2016 and interviewed a total of eleven witnesses.

 

[17] Wing Commander Fred Odoi-Wellington further testified that at the end of the Committee’s work, they made a total of eighteen (18) findings after their evaluation of all of the information obtained. A copy of the Committee’s Report was tendered as Exhibit “9” at trial. According to Commander Odoi-Wellington the Committee found that apart from the two daughters of the deceased with his wife, “he also had two additional biological children with two different women, to wit, Emmanuel Kofi Obeng and Desree Naana Aisha Obeng. The mothers of Emmanuel Kofi Obeng and Desree Naana Aisha Obeng are Victoria Gbeck and Anwa Mamudu respectively”. The witness also told the Court that the Committee found that the said children’s mothers were not married to the deceased.

 

[18] The Defendants next called Ms. Anwa Mamudu as a witness. She adopted the witness statement filed on March 17, 2017 and testified that she knew the late Air Commodore Emmanuel Obeng Onwona. According to her she first met him sometime in 2001 and was in a relationship with him and “was his girlfriend until his death”. Ms. Anwa Mamudu testified that sometime in 2004 she conceived for the deceased and she accepted responsibility for same. According to Ms. Mamudu the deceased “even came to see my father to perform some customary rights acknowledging responsibility for the pregnancy. He also told my father that he was travelling outside the country and would not be around when the child would be born and so pleaded with my father to assist me with any help I would require while he was away. My father asked the Deceased if he had also informed his relatives about the pregnancy but the Deceased said that he did not want of his relatives to hear of this issue until the appropriate time because of his wife and work”.

 

[19] Ms. Mamudu further testified that she gave birth on November 13, 2004 to a baby girl and duly informed the Deceased who was outside the country at the time. According to her the deceased asked her to give the child the name they had previously agreed upon which was “Desree Naana Aisha Obeng”. A copy of the child’s birth certificate was tendered as Exhibit “1”. Ms. Mamudu also testified that the deceased continued to be responsible for her and the child during his life time, visited them at least three times a week and took care of their needs including paying for their food, clothes, utilities and the school fees of the child. Ms. Mamudu tendered copies of school fees as Exhibit “2”. According to the Defendant’s witness during the life time of the deceased she requested several times that she and the child be introduced to the deceased’s family but he always said that the time was not right. That notwithstanding, according to Ms. Mamudu some of the deceased’s friends and colleagues at work “including Group Captain (Rtd) Nkoah and Obroni were aware of the relationship between us and the fact that he had a daughter with me”.

 

[20] Further, according to Ms. Mamudu the deceased never disputed that he was her daughter’s father and the child continued to bear his name. To support her contention the witness tendered Exhibit “3” being copies of Identity Documents of the child. Ms. Mamudu further testified of how she was unable to communicate with the deceased when he fell sick and how she heard of the news of his demise. Ms. Mamudu insisted that the deceased acknowledged her daughter as a child and said “if anybody is in doubt about the paternity of Aisha, a DNA test can be conducted to confirm this”.

 

[21] The Defendants next witness was Mary Maaldedong Gbeck, the sister of the late Victoria Gbeck the mother of Emmanuel Kofi Obeng born on February 3, 1995. Per the adopted witness statement filed on March 17, 2017 the witness says she knew the deceased as the boyfriend of her late sister who met the deceased in the early 1990s. According to the Ms. Gbeck in 1994 her sister got pregnant and the Deceased was responsible for the pregnancy and took care of the late sister during the pregnancy until the delivery and after. The birth certificate of Emmanuel was tendered as Exhibit “4”. Ms. Gbeck further testified that after the delivery her father travelled from Nandom to Accra to meet with the deceased. It is the case of the Defendants per Ms. Gbeck’s testimony that she raised the child in Tamale because her later sister said “she wanted to bring Emmanuel to me to take care of him so that she could resume her sewing training”.Ms. Gbeck said it was the deceased who took the child to Tamale on an aircraft and she met him at the Tamale airport to receive Emmanuel and the deceased told her before parting “to take care of his son for him”.

 

[22] The Defendants’ witness further testified that after receiving the child from the Deceased anytime the he flew to Tamale she met him at the Tamale airport to pick up a parcel for Emmanuel. She also said that on one occasion “the Deceased flew Emmanuel Jr. and me with my two children on an aircraft from Tamale to Accra and back to visit my in-laws in Prampram”. According to Ms. Gbeck the Deceased was responsible for Emmanuel’s education from when he was first enrolled and was also updated periodically of Emmanuel’s development and progress. Copies of Emmanuel’s school reports were tendered as Exhibit “5”. Further, Ms. Gbeck testified that when the sister passed on in 2009 the “Deceased made contact with me and assured me that he will take full responsibility of his son’s welfare”.

 

[23] Ms. Gbeck further testified that Emmanuel did well at school and gained admission to Opoku Ware Senior High School in Kumasi and later to the University for Development Studies (UDS), Tamale. Exhibits “6” and “7” being the placement form, school bills and receipts from Opoku Ware School and UDS school registration forms and statement of results were tendered. Finally, the witness also testified that she got to know f the passing of the Deceased from her auntie who represented the family at the funeral and obtained the information that enabled her to contact the authorities at Burma Camp to inform them of the existence of Emmanuel as the Deceased’s son. She denied that the Deceased did not acknowledge Emmanuel as his son. Taking a page from the book of Ms. Mamudu, Ms Gbeck concluded her testimony that “if the widow is in doubt about the fact that the Deceased is the biological father of Emmanuel Jr., a paternity test can be conducted”. As indicated above, even though a witness statement was filed in the name of Mr. Mamudu, he passed on during the course of the trial and therefore did not testify. Per the statement filed though his proposed evidence was a corroboration of Ms. Mamudu’s evidence. I shall later speak to this matter. Based on all of the testimonies of the witnesses called, the Defendants have implored the Court that the Plaintiffs’ claim should be dismissed.

 

DETERMINATION OF ISSUES BY THE COURT

The Court’s Opinion, Analysis and Conclusion

[24] I proceed to evaluate the nature of the evidence adduced at the trial. I shall examine firstly the burden of the parties in this suit and relate same to the facts presented in their respective pleadings and the evidence adduced at the trial, before I make the necessary findings while determining the factual and legal issues set down. The general position of the law on proof is aptly stated by Kpegah J. A. (as he then was) in the case of ZABRAMA VRS. SEGBEDZI (1991) 2 GLR 221 at 246 as follows:

“…a person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”.

 

[25] Now, by sections 11(4) and 12 of the NRCD 323 the standard of proof in all civil cases is one on “a balance of probabilities”. The judicial approval to sections 11 and 12 of the Evidence Act has been stated by the Supreme Court in the case of ADWUBENG VRS. DOMFEH (1996 – 97) SCGLR 660 at page 662 where the court stated that:

“By SS 11(4) and 12 of the Evidence Act 1975 NRCD 323 the standard of proof in all civil cases is proof by the preponderance of probabilities no exceptions were made”.

 

[26] This general position on the burden of proof and of persuasion was also judicial approved by the Supreme Court in the case of ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 where Aikins JSC expounded the position as follows:

“The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue”.

See also the case of RE: ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS v. KOTEY & OTHERS [2003-2004] SCGLR 420.

 

[27] Admittedly, there were as many as seven issues adopted for trial. However, there were two main issues which were central to the determination of the controversy between the parties. As a matter of law, the court was not bound to consider and discuss any issue(s) which might not be of any assistance to the court. Indeed it is the policy of the law that issues which are germane to the determination of a case are those which must be decided by the court and not irrelevant issues although the parties might have led evidence on them. See the Court of Appeal case of DOMFE v ADU (1984-86) 1 GLR 653 per Sowah CJ, Abban and Osei-Hwere JJA.

 

[28] In the opinion of the court the resolution of this matter lies in the resolution of issues “D and E” which are germane to the Plaintiffs’ claim as endorsed on the writ of summons. To my mind the issues “A, B and to some extent “C” are only collateral to what this Court is called upon to determine. But, before I address the main issues and the reliefs sought by the Plaintiffs, I dare state that I deplore the manner by which the Defendants contested this case especially the various motions filed by the Defendants. This is because the Defendants’ actions are reminiscent of what occasioned the respected Dotse, JSC to lament in the case of THE REPUBLIC VS EDWARD ACQUAYE, EX PARTE CHARLES ESSEL, in Civil Appeal No J4/11/2008 of 10th December 2008 thus: “This case is a classic example of how a small issue can be glossed over by an over-zealous litigant and thereby introduce diversionary and irrelevant matters into the main body of the case.” This is because the Defendants adopted unnecessary diversionary tactics to gloss over the main issues brought before the Court; which is whether or not the variation of the DF Form 400 was legal. I note that the motions filed included an application for the exhumation of the deceased for DNA testing which was moved on November 6, 2017 at the time when all the witnesses had testified and also after the initial application for the dismissal of the suit on the grounds that the Court lacks jurisdiction and other motions.

 

[29] I shall now proceed to examine the evidence adduced in support of the Plaintiffs’ case and will relate same in the context of the standard of proof I have already set out in this judgment. Plaintiff’s evidence in this suit is both oral and documentary. The pith and substance of the Plaintiff’s case is that the deceased on his Nomination Paper (DFA 400) nominated the 1st Plaintiff and her and two of her daughters and the deceased brother as the beneficiaries of his Military benefits. It is the case of the Plaintiffs that after the demise of the deceased, without reference to them the 3rd Defendant accepted the inclusion of two other persons alleged to be children of the deceased. The Plaintiffs say the decision made was illegal and amounts to intermeddling because the 3rd Defendant is not clothed with any authority to do what he did. The Defendants’ response to the allegation is that the alleged children are the biological children of the deceased and therefore the 3rd Defendant made the right decision.

 

[30] When the Defendants’ counsel was called upon to cross – examine the 1st Plaintiff as a witness, nowhere during the cross examination was any part of Plaintiffs’ evidence in regards to the illegality of the decision made by the 3rd Defendant to set up and Committee which resulted in the variation of the Nomination Form contradicted or discredited through cross – examination. Significantly none of the exhibits tendered by Plaintiffs was impeached by cross – examination.

 

[31] From the line of cross – examination adopted by Defendants’ counsel, it seems to me that Counsel was only interested in confirming and establishing the fact that the deceased was the father of the two alleged children as concluded by the Committee of Adjustment even though that decision was not based on any scientific proof but rather what at best counts as anecdotal evidence, which will not suffice under the circumstances. As I have indicated earlier the evidence of 1st Plaintiff stood without contradiction and unchallenged as there was no cross – examination at all on the material matters supported by Exhibits ‘A’, ‘B and ‘10’.

 

[32] The law is that when an allegation of fact in a pleading is admitted by the opposing party the person alleging need not adduce evidence on the allegation - see TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-2006] SCGLR 882. So also will the principle of implied admission for failure to cross – examine apply where a party is held to have accepted without question the evidence of his opponent when he fails to cross-examine on material matters for which evidence has been adduced in the support of the case of his opponent and therefore no further evidence need be adduced by the opponent.

 

[33] The entire cross examination conducted by Defendants’ Counsel on May 22, 2017 and June 2,

2017 of the 1st Plaintiff is reproduced as follows:

“Q: Please in which year did you marry the deceased?

A: We got married in 1981

Q: What year were the two children Joyce Appiah and Emefa Egbenya Obeng (2nd Plaintiff) adopted?

A: Emefa was adopted when she was nine years and Joyce when she was 13 years

Q: Please can you mention the year?

A: I can’t remember off hand

Q: Were Joyce and Emefa legally adopted

A: No

Q: When did you get to know of the claim that your husband has two other children outside marriage?

A: It was hearsay nobody told me anything.

Q: When did you hear?

A: Like I said earlier on it was hearsay. It was last year 2016.

Q: When did you meet the committee of adjustment?

A: Last year

Q: Can you be specific

A: It should be in March or April

Q: After the meeting with Committee of Adjustment the Director of Staff Service (the leader of the adjustment committee) met you in his office is it true

A: I never met with anybody

Q: I suggest to you that he met you for the second time after the meeting with the Committee of Adjustment and that was when he informed you about the two other children

A: Is not true

Q: How many people were mentioned on the nomination form of the deceased?

A: He mentioned four names to me

Q: Can you mention them?

A: He gave me the names as myself Matilda Aku Obeng, then Emmanuelle Obeng then Matilda Obeng, Eric Jojo Bensah

Q: Do you know why the deceased failed to make provisions for Emefa and Joyce in the nomination form?

A: I know. When he was going to have surgery before his demise that is when he told me that he has apportioned Emefa and Joyce’s entitlement into my percentage because Joyce is now married in Australia with the husband and Emefa is not married and still living with us, so I should make sure Emefa has the maximum education level. And when she is to get married and is leaving home I should give her substantial amount.

Q: A Committee of Adjustment made provision for Emefa and Joyce is it true

A: I have no idea because the paper wasn’t shown to me

Q: Will you agree to the provision made to Emefa and Joyce if you are shown the paper?

A: No

Q: Do you know the names of the children who are being claimed to be your deceased husband children?

A: I don’t know because after the Committee of Adjustment meeting nobody called me to inform me of anything.

Q: What is your basis for challenging the paternity of Emmanuel Kofi Obeng and Desree Naana Aisha Obeng to be your deceased husband’s children?

A: Before my husband went into surgery he talked to me at length that in case he doesn’t come back what I should do with the estate and whatever he is leaving us. He never mentioned any children to me before he died. So after he died and names were coming out I said he never mentioned anything like that.

Q: Look at Exhibit F the cover page, whose picture is that?

A: My husband.

Q: Look at page 6 of exhibit F (the brochure) who are those in the picture?

A: I have Joyce, Emefa, Emmanuelle and Matilda.

Q: Do you see any resemblance of your deceased husband to any of those in the photograph?

A: Yes. Emmanuelle and Matilda.

Q: If it is established that Aisha and Emmanuel Kofi Obeng are the biological children of the deceased will you agree with the position made by the committee of adjustment.

A: No.

Q: Why?

A: As I have said earlier on the Committee of Adjustment never called me after their findings I was never told anything. And at the same time before my husband went into surgery and died he never told me about any existing children.

Q: As part of the recommendation of the Committee of Adjustment you were to be informed by your husband’s family about the paternity of Aisha and Emmanuel, did they do that?

A: Till today nobody has told me anything.

COUNSEL: My Lord I have no further question”.

 

[34] From the nature of Defendant’s counsel’s cross – examination two matters arise. Firstly, Defendants’ assumption is that the two children, Emmanuel and Aisha are the children of the deceased even though Plaintiffs deny same and insisted that the deceased never informed them of the existence of any other children, and also notwithstanding the fact that the Committee of Adjustment’s decision was not as a result of a DNA testing and/ or scientific proof. The second is that no effort was made to rebut the Plaintiffs’ case that the decision to set up the Committee of Adjustment whose decision resulted in the variation of the nomination form was not legal.

 

[35] As the venerable Brobbey JSC stated in his book “Practice and Procedure in the Trial Courts & Tribunals of Ghana” at page 586 paragraph 1293.

The objects of cross – examination are two told. First it is to weaken or nullify the opponent’s case and secondly, it is to establish facts which are favourable to the cross examiner. In effect cross – examination aims at testing the accuracy of the witness’s evidence and at giving the witness the chance to deal with the case of the cross examiner

With the greatest respect and due deference to Defendants’ counsel she failed in this respect.

 

[36] I now proceed to address the germane issues and shall combine issues “D” and “E”. The question is whether or not the 3rd Defendant is entitled to vary the Nomination paper (DFA 400) of the deceased and whether the variation to include the two children Emmanuel and Aisha is valid in law. It is not in any serious contention that the deceased on his own volition filed out the “Nomination Paper for Service Estate Under the Armed Forces Special Provisions (ACT, 1964 ACT 234)” Exhibit 10 in this suit dated June 18, 2012 and named four people including the 1st Plaintiff. I think from the evidence, the Defendants have led no evidence to support the positions that apart from the four persons named by the deceased other persons are entitled to be added. Therefore, upon what basis did the 3rd Defendant act to vary the form?

 

[37] Counsel for the Defendants neglected to file the closing legal submission despite adjournments granted to her to do so and therefore no legal justification has been given to support the Defendants’ action. Counsel for the Plaintiffs on his part filed a written legal submission and in my view correctly pointed out that “the specific body of law relevant to the resolution of the issue is the ‘Armed Forces Act, 1962 (Act 105) and its Regulations, The Armed Forces Regulations CI 12. The relevant provisions of the Act are Sections 101 and 102 which provide:

“101 Nomination in Respect of Services Estates:

1. An officer or a soldier in the Armed Forces may nominate in writing the person to whom, in the event of that officer or that soldier dying intestate, the service estate of that officer or soldier should be given.

2. Where the service estate includes money and the officer or soldier nominates more than one person under Subsection (1), that officer or soldier shall specify in the instrument of the nomination the share of the money that is to be given to each person.

3. Where the service estate includes movable property, other than money, and the officer or the soldier nominates more than one person under subsection (1), the officer or soldier shall specify in the instrument, the property that is to be given to each person.

4. The instrument of nomination referred to in subsection (1), (2) and (3) shall be transmitted to an officer specified for the purpose by the

Army Chief of Staff, if the Officer or Soldier is in the Army;

Chief of Naval Staff, if the Officer or Soldier is in the Navy;

Chief of Air Staff, if the Officer or Soldier is in the Air Staff

5. An Officer or a Soldier may alter the particulars in an instrument of nomination made by that Officer or Soldier under this Section and notify that fact in writing to the appropriate person specified in Subsection (4).

6. If the alterations are made and notified as mentioned, the instrument as altered shall be the instrument that shall be taken into account for the purposes of this Act.

Section 102 titled “Payment and Delivery to Nominate” also provides:

“The Chief Paymaster and financial adviser of the Armed Forces shall pay the money, or deliver any other movable property, included in the service estate of an officer or a soldier who has died intestate, to the person nominated by the officer or soldier under Section 101 in accordance with the terms of the instrument of nomination of the Officer or soldier”

The Armed Forces Regulations Volume 1 (Administration) CI 12 by Section 25.03 titled “Director of Estates” also provides:

(1) The Chief of Defence Staff shall appoint an officer of the Armed Forces to be Director of Estates.

(2) The Director of Estates shall, in exercise of his powers, duties and functions under these regulations, to the exclusion of all other authorities and persons have the same rights and powers in respect of a service estate as if he had been appointed and executor or administrator of that estate by a court of competent jurisdiction.

 

[39] In view of the law stated above, I think that the obligation to distribute and/or disburse the service estate of a deceased Soldier or Officer in accordance with the terms of the Nomination paper is mandatory and there is no room for conjecture by the Director of Estates. Both the substantive Act and the Regulation uses “shall”, therefore taking cognizance of the fact that the provision uses the word “shall” it is trite learning that it is imperative and not optional.

 

[40] In this judgment, I have made a finding that the Defendants have not provided any authority for the variation of the nomination form by the Director of Estates and I note though Group Captain Fred Odoi-Wellington, a member of the Committee of Adjustment admittedly prevaricated on the meaning of service estate, but from the Act, it is primarily money even though it may include movable property of an Officer or a Soldier.

 

[41] In view of the above findings and the reasons I have given in this judgment I resolve the main issues set out above in favour of the Plaintiffs. I find that the Director of Estates is bound by law to disburse the estate of the deceased in accordance with Exhibit “10” and therefore the variation of the form was illegal and without any basis.

 

[42] I also think that on the evidence the Committee of Adjustment lacked the authority to determine the paternity of Emmanuel and Aisha. In my opinion paternity of a child is not a physical or mental condition as the Defendants’ counsel sought to imply in her cross-examination of the 1st Plaintiff, and therefore an Armed Forces Committee of Adjustment’s recommendation cannot be used as a stepping stone to automatically entitle alleged children of a deceased to his estate. There are many family dynamics which suggest such an automatic recommendation by a Committee without more may cause serious problems going forward.

 

[43] Finally, I speak to issues “A and B”, being whether the two children Emmanuel and Aisha are the biological children of the deceased and whether he acknowledged them in his lifetime. It is conceded that under our law and jurisprudence, the CHILDREN’S ACT, 1998 (ACT 560) makes it clear that no child shall be deprived of his nationality or parentage and as Section 4 of the Act specifically provides:

No person shall deprive a child of the right from birth to a name, the right to acquire a nationality or the right as far as possible to know his natural parents and extended family subject to the provisions of Part IV, Sub-Part II of this Act.

For the avoidance of doubt, Part IV deals with fosterage and adoption.

 

[44] In my respectfully opinion even though the Court did set down the issues as raised in my respectful opinion, in view of the reliefs and the claim, the issues are needless. This is because in my opinion this Court cannot make a definitive pronouncement on the issue as to whether the children are the biological children of the deceased based on the say so of the Defendants’ witnesses. As stated above, any such adventure by the Court shall result in the introduction of diversionary and irrelevant matters into the main body of the case. The Plaintiffs’ claim mainly challenges the legal validity of the work of the Committee of Adjustment and not the paternity of the children. I also note that the Defendants do not have a Counterclaim as a cross-action.

 

[45] Further, I note that the Defendants’ witnesses’ allegations in acknowledgment of the children are against the deceased who is not here to answer and therefore this Court ought to exercise some restraint by basing its decision in resolving such an important issue as paternity on such a testimony. In the case of GRACE ASANTEWAAH v. MARK AMANKWAH ADDO [2008] 1 GMJ 2009 @ page 212 it was held that “where an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the evidence ought to be thoroughly sifted and the mind of the judge who hears it ought to be first of all, in a state of suspicion. The evidence adduced by both parties would be considered in that light”.

 

[46] Undoubtedly, scientific methods such as DNA testing today provide the answers to paternity puzzles with a modicum of inconvenience, expense, or intrusion into privacy interests. With no scientific evidence before me however, I am of the opinion that the claim as filed and the reliefs as endorsed make it clear that it would not be legitimate to make such order(s). The Defendants had all the opportunity in the world to take relevant steps first if they believed that these were necessary to justify the illegality of the variation of the Nomination Form but they failed to act. Based on the above I shall decline to make a determination of the two issues I have referred to as collateral issues.

 

Conclusion and Disposition:

[47] I should make it clear that based on my finding that the 3rd Defendant’s decision to vary the nomination form of the deceased was wrongful, I do not think that I have to repeat it all over again that the Plaintiffs have proved to the satisfaction of the Court on the balance of probabilities their claim and are therefore entitled to ALL THE RELIEFS endorsed on the Writ of Summons. Plaintiff’s cost shall be assessed at GH¢10,000.00.