ACCRA - A.D 2017
YEMOKAI LARYEA -(Plaintiff/Respondent)
ERNESTINA SERWAH SIAW - (Defendant /Appellant)

DATE:  1ST JUNE, 2017
CIVIL SUIT NO:  H1/67/2016


On 9th May, 2014, the High Court, Accra gave judgment for the plaintiff declaring title in property No. B15/17, Otanten, Accra in her favour. The court then dismissed the defendant’s counterclaim as not proved and accordingly granted an injunction against the defendant, her agents, privies and assigns from dealing in any manner with the said property.


Dissatisfied with the decision of the Court, the defendant filed an appeal before the Court of Appeal on the following grounds:


The judgment is not supported by the weight of evidence adduced on record.


Other grounds may be filed upon receipt of the record.


The relief sought from the Court of Appeal is to set aside the judgment of the trial court and enter judgment for the defendant.


At this stage, let me put it on record that the defendant did not file any additional ground of appeal.


Before dealing with the arguments advanced in support and against this appeal, I will give a brief background of the case.


The parties are uterine sisters. Their mother is Elizabeth Larteley Larkai (deceased). The plaintiff per her writ of summons claims the following reliefs:


Declaration of title to all that property known as House No. 15/17, Otaten, Accra.


Perpetual injunction restraining the defendant, her agents, workers, servants, privies, assigns and all persons claiming through, from or under her from entering, occupying or dealing in any way whatsoever with the plaintiff’s property.


Damages for trespass.




In the 18 paragraph statement of claim which accompanied the writ of summons, the plaintiff averred among other things that, House No. 15/17 which is owned by the plaintiff was formerly the property of Elizabeth Larteley Larkai (deceased), the mother of both the plaintiff and defendant. The plaintiff averred further that, their late mother devised House No. B15/17, Otanten, Accra to her in her last Will and Testament.


She continued that, the defendant is also a beneficiary of their mother’s Will. It is the case of the plaintiff that the High Court, Accra granted probate to the Executors of the Will in contention and subsequently vested the property by Vesting Assent dated 2nd March, 2010 in the plaintiff. It is the case of the plaintiff that, the defendant was present at a family meeting convened for the purpose of distributing the Estate of their mother in accordance with the testamentary wishes of the deceased testator following the grant of probate.


The plaintiff concluded that, over a year after the grant of probate to the Executors named in the Will and after the Estate of the deceased had been distributed in accordance with the Will, the defendant caused her solicitors to serve Notice on the Executors of the Will on 12th August, 2008 to prove the Will in Solemn Form. Thereafter, the defendant entered the disputed premises, took away the bunch of keys on the main door of the plaintiff’s house as well as the padlocks in the absence of the plaintiff to frustrate the plaintiff in the enjoyment of the property devised to her under the Will, hence this action.


On receipt of the plaintiff’s writ of summons and statement of claim, the defendant reacted by filing her statement of defence denying plaintiff’s claim and put the latter to strict proof of her averments.


In particular, the defendant averred that House No. 15/17 Otanten, Odorkor, Accra is her bonafide property having procured a building permit No. J95/1988 dated 30th May, 1988 from the City Engineer, Accra. The defendant averred further that she has been a business woman for a long time prior to 1988 and she built H/No. 15/17, Otanten, Odorkor, Accra from her own resources.


She continued that, after building the disputed house and when the plaintiff returned from Canada, she settled in defendant’s already furnished apartment in the disputed house for which the latter charged plaintiff rent of ¢1.00 per month and plaintiff paid her 10 years rent advance. It is the case of the defendant that, when the 10 years expired and she wanted to return to her property, the plaintiff refused and started quarrelling with her.


The defendant concluded that their mother, Elizabeth Larteley Larkai did not execute the Will in contention as she died at the age of about 87 years after she suffered memory loss and could not recollect anything. She could also not communicate with anyone and could not walk without support. Therefore, the deceased could not have at that age, dictated the detailed and rather complicated Will running into eight foolscap pages.


Consequently, the deceased did not sign nor thumbprint the document and as such know nothing about the Will. The defendant maintained that even when the late Elizabeth Larteley Larkai was alive, she dealt with the property as landlady and rented portions of the premises to a law firm. Again, her deceased mother shared all her properties in her life time about 20 to 40 years before her death and every child knew and enjoyed same before their mother’s death and that she the defendant had a gift of a house over 20 years before her mother’s death and therefore the alleged Will was forged.


Similarly, the so called vesting assent was unlawfully prepared by the so called executors on 2nd March, 2010 and same is null and void as she was not notified of any application for probate by the executors and knew nothing about the procurement of the probate by the executor else she would have entered a caveat. Therefore, the plaintiff is not entitled to her claims and counterclaimed as follows:


Declaration of title to H/No. 15/17 Otanten, Odorkor-Accra.


An order declaring the pretended/forged Will of the late Elizabeth Larteley Larkai illegal and null and void for all purposes.


An order cancelling/setting aside the probate of the pretended/forged Will of late Elizabeth Larteley Larkai as illegal.


An order setting aside/cancelling the so-called “commercial agreement” or lease on H/No. 15/17 Otanten, Odorkor to a so-called reputable bank referred to in paragraph (18) of the statement of claim.


Recovery of possession


Perpetual injunction restraining plaintiff, her agents, solicitors and estate agents, etc from entering H/No.


15/17 Otanten, Odorkor for any purposes whatsoever.


Damages for trespass.


Further or other orders as to the Honourable Court may deed fit.


See paragraphs 1 – 34 of the Amended Statement of Defence and Counterclaim pursuant to Leave granted on 10th June, 2013 and filed on the 5th July, 2013.


At the trial, the plaintiff testified and called three (3) witnesses. Defendant also testified and called two (2) witnesses.


As stated supra, the defendant counterclaim was dismissed as not proved and judgment entered for the plaintiff on the reliefs she claimed.


In arguing the only ground of appeal, that is, “the judgment is against the weight of evidence adduced at the trial”, counsel for the appellant referred to the cases of Attorney General Vs. Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271 and Djin Vs. Musah Baak [2007-2008] SCGLR 684.


He then submitted that by the reliefs sought by both parties, they were both under the legal burden to provide sufficient evidence to avoid a ruling against them. Counsel also referred to Sections 11 (1) and 14 of the Evidence Act, 1975, (NRCD 323).


Counsel for the appellant continued that, having sought for a declaratory relief the respondent was not only to rely on the Will of the deceased but also to produce evidence to show that the property actually belongs to the deceased and thereby entitling her to dispose of same in her Will. Equally, the appellant who sought a declaratory relief and challenged the testatrix’s right to make any devise of House No. 15/17, Otanten Accra had the burden to prove that the disputed house is for the appellant and not the testatrix.


He continued that, the trial Judge failed to properly apportion the burden as set out in the Evidence Act. According to counsel, by Section 17 (1) of the Evidence Act, the burden of producing evidence of the fact of ownership of the property the subject matter of the dispute was equally placed on the two parties and each was to satisfy the court by the production of cogent and relevant evidence to avoid a ruling against her.


Therefore, he argued, the trial Judge should have warned or reminded himself that the case before him was not a matter of “Proof of Will in Solemn Form”. He referred to the case of Yankah & Others Vs. Administrator-General [1971] 2 GLR 186 and submitted that, the trial Judge misled himself in not properly apportioning the burden of proof of title and hence came to the wrong conclusion.


Counsel continued that, reading the testimonies of the witnesses the plaintiff called, confirmed the confusion raised in the mind of the court. This is because, the plaintiff had come to court for a declaration of title to the property but provided no proof of title except the Will and the Vesting Assent. But looking at the case before the court, it required a proof more than just that when the defendant had put in issue the claim to ownership by the Testatrix. He submitted that, the closest the plaintiff came to was the production of Exhibits D, E, F and G that related to tenancy by only one company between 1991 to 1996.


Against this, the defendant produced a Tenancy Agreement, Exhibit 1 dated 2003 which described her as the landlady. Exhibit 1 was interpreted and explained to her by the plaintiff who is literate. Nonetheless, the import of this document did not receive any weight in the eyes of the trial Judge. Again, the defendant tendered Exhibits 4 and 4a dated 2003. These exhibits according to counsel show that the plaintiff received rents on behalf of the defendant and confirmed the defendant’s claim to title as against the testatrix.


Furthermore, after the death of Elizabeth Larteley Larkai in 2007, the solicitors who had occupied the premises as tenants wrote to the defendant as landlady to terminate the tenancy. Consequently, Exhibit ‘5’ leaves no doubt of the position of the appellant.


In addition to these pieces of evidence, counsel argued, the defendant insisted that the respondent paid a pepper-corn rent of one cedi to her for the 1st floor she came to occupy on her return from Canada. This assertion was not denied by the plaintiff and this dented the plaintiff’s case. Counsel submitted that, unlike the plaintiff, the defendant’s witnesses confirmed the latter’s case.


For instance, DW1 said he supplied sand and stone to the site of the disputed property when it was under construction and payment was made by the defendant. Similarly, DW2, the witness from Town and Country Planning Department of A.M.A. tendered Exhibit 11 the building permit which bore the name of the defendant.


Counsel for the defendant concluded that, there is ample evidence on record in favour of the defendant’s claim as against what the plaintiff proferred. On the balance of probabilities therefore, the trial court should have found for the defendant and not the plaintiff. In the circumstance of the evidence adduced before the trial court, he urged us to set aside the judgment of the High Court and enter judgment for the defendant.


In response to the above submissions, counsel for the plaintiff, canvassed a preliminary point addressed by the defendant. He argued that, a substantial portion of the statement of defence was devoted to pleading that the parties’ mother, Elizabeth Larteley Larkai had suffered memory loss and could not have executed the Will under which the plaintiff acquired interests in the subject-matter.


Indeed, the defendant pleaded that the Will was forged and sought reliefs setting aside the said Will. However, at the trial, the defendant failed to provide any credible evidence to back the assertions of forgery of her mother’s Will. He continued that, having failed to substantiate the allegation of a forged Will at the trial, the defendant in her submissions before this court argues that, the instant action is not a probate action or an action requiring a proof of a Will in Solemn Form. That being the case, the implication is that the last Will and Testament of Elizabeth Larteley Larkai which has been admitted to probate is competent and valid.


On the burden of proof, counsel for the plaintiff submitted that the burden of proof does not remain equally placed throughout the pendency of the case. He continued that, in the course of the trial and in the light of the evidence adduced, the burden shifted to the defendant who was unable to adduce sufficient evidence to avoid an adverse ruling.


In contrast, the plaintiff in support of her claim to be owner of the property as devisee, indicated in her evidence that the property was for her mother who devised same to her by her Will. The plaintiff tendered a Probate and Vesting Assent in her favour to demonstrate the transfer to her of legal title to the property.


In addition, the defendant herself also led evidence by means of a Search Report to confirm that her mother acquired the land including the disputed property by means of a Conveyance dated 18th December, 1955. Again, the defendant testified that she acquired the disputed land as a gift from her mother. That being the case, both parties agree that the land at least at some point belonged to the parties’ mother. So the question is, did the parties’ mother retain ownership of the land till her death or did she convey it to the defendant by way of gift during her life time.


On this score, it was for the defendant to demonstrate that she acquired the property by way of a gift or conveyance else her claim should fail. Counsel for the plaintiff argued that whilst owing to the counterclaim, each party may have borne an equal burden from the onset, the evidence of a gift meant that the burden shifted onto the defendant to prove a gift to her. This she failed to prove and the trial Judge made a finding of fact, to that effect. Counsel also referred to Sections 11, (1); 14 and 17 of the Evidence Act as well as the case of Faibi Vs. State Hotels Corporation [1968] GLR 471.


In addition to the above evidential burden, the claim of the defendant against the mother who devised the property, is unavailable to testify personally as to her ownership of the property. The law is that evidence against a deceased person ought always to be viewed with suspicion and only on clear and convincing cases.


Counsel referred us to the cases of In Re Ohene (deceased); Adiyia Vs. Kyere [1975] 2 GLR 89-99 and In Re Garrett, Gandy Vs. Macaulay [1885] 32 Ch. D 1 at p9 CA.


On the 5 pieces of evidence defendant argued were wrongly evaluated against her, counsel for the plaintiff submitted that, Exhibit ‘1’ in which defendant was described as landlady of the 2nd floor was explained by PW1 who said the parties mother told him that upon her demise, the 2nd floor would be given to the defendant.


Thus, although the testatrix collected the rent, she permitted the name of the defendant to be used. This piece of evidence according to counsel for plaintiff was not challenged by way of cross-examination and this constitutes an admission of the facts. Secondly, Exhibit ‘D’ is a lease between the Testatrix and General Electrical Engineering Company Limited dated 1991. This clearly negates the defendant’s assertion of a gift made to her in 1983.


Therefore, the very existence of Exhibit ‘D’ negates Exhibit ‘1’, (the Tenancy Agreement) relied on by the defendant. In Exhibit ‘D’, the Testatrix is described as Lessor which compare to landlady suggests a superior title. In addition, Exhibit ‘D’ was witnessed by the defendant herself thus raising estoppel as to the issue of ownership between the defendant and the Testatrix. Thirdly, Exhibits ‘4’ and ‘4a’ relate to rent for 4 years. This is against the evidence of PW1 who said rents for the last 7 years were paid to the Testatrix. Apart from Exhibit ‘1’, the defendant was not able to produce any evidence of rent received in respect of other portions of the Testatrix building. The only receipt tendered relates to the 2nd floor and this has been explained.


On the alleged payment of the pepper-corn rent of ¢1.00 to the defendant for the occupation of a portion of the disputed property, counsel for the plaintiff submitted that, the defendant was unable to lead any credible evidence to substantiate same. The alleged uncle who suggested the defendant charged pepper-corn rent was not called, neither was the woman, Meletse, called to testify on this issue. Counsel referred to the case of Zabrama Vs. Segbedzi [1991-92] GLR 221 and submitted that pleadings do not amount to proof of same?


On the alleged evidence of supply of sand and stone, counsel for the plaintiff referred to the testimony of DW1 and submitted that the latter admitted he did not know whose money was used to pay him although it was the defendant who handed the money to him. This piece of evidence should be weighed against that of the plaintiff who said when she visited home in 1986, her mother told her that she had collected rents from her other properties to put up this building. She said at that time, the building had been roofed and the ceiling and the floor were yet to be done. Counsel for the plaintiff submitted that this pieces of evidence were not controverted or cross examined on.


On the building permit, counsel for the plaintiff submitted that, DW2 brought a different permit application from the number quoted on the subpoena. Whilst the subpoena requested the witness to bring an approved plan and a permit, the witness indicated that he had brought a permit in respect of a different application and that it was issued by his Department.


Based on his testimony, the trial Judge found as a fact that DW2’s testimony is not credible not to talk about the fact that, it was a photocopy attached to defendant’s affidavit in a previous proceedings. When proceedings was adjourned to enable DW2 tender the original copy, after a series of adjournments, it was announced to the court that the witness was unable to produce the original which he said he procured from the file ordered by the Director of Metro Works Department. But more importantly, from the defendant’s own evidence, the building permit was in respect of plot number ‘F’ as appears on the Search Report and not in respect of the disputed land. Consequently, the trial Judge was right in not placing much weight on the building permit as evidence of the defendant’s ownership of the property.


From the foregoing, counsel for the plaintiff submitted that, the pieces of evidence relied upon by the defendant as basis for the instant appeal were all discredited and or watered down and could not amount to sufficient evidence in proof of the allegation that the property in dispute was built by her. She did not tender any formal lease indicating a conveyance of the land in question to her. All the other gifts (plots A – F) which together with the disputed area formed one big parcel were properly and formally conveyed and registered.


Quite apart from the above, counsel for the plaintiff submitted that there were a lot of inconsistencies in the defendant’s case which inconsistencies were not explained and same should be held against her. For example, the defendant tendered Exhibits ‘3’, ‘3A’ and 3B’ as her source of funds in constructing the disputed house.


However, Exhibit ‘3’ is a letter from the Commissioner of Internal Revenue and addressed to one Madam Agnes Ocherewa Siaw. The contents of Exhibit ‘3’ suggests that Madam Agnes Ocherewa Siaw sold her property at South Odorkor to one Paul Kwame Yeboah contrary to the assertion by defendant that she sold her property at Darkuman junction to build the house in dispute. The defendant has not offered any explanation for this disparity and same should be held against her.


Counsel continued that the defendant placed a lot of reliance on property rates and tendered Exhibit ‘9’. She however admitted Exhibit ‘9’ related to another building. On Exhibits ‘8’, ‘8A’ and ‘8B’, counsel submitted, these Exhibits are self-serving as the payments were made at a time the Testatrix was deceased. Secondly, all the payments were made during the pendency of the instant suit.


Based on the foregoing, counsel for the plaintiff concluded that due consideration was given to the totality of the evidence on record. The defendant simply did not adduce sufficient evidence to merit a decision in her favour. He therefore invited us to dismiss the appeal as being unmeritorious.


In this appeal, one ground of appeal was filed to wit:

“The judgment is against the weight of evidence adduced at the trial”


By Rule 8(1) of the Court of Appeal Rules, (As amended) C. I. 19, an appeal is by way of rehearing. What this means is that, the appellate court should go through the entire Record of Appeal to ascertain whether the conclusions reached by the trial Judge were amply supported by the evidence on record. Additionally, case law abound that where an appellant appeals on the ground that a judgment is against the weight of evidence, he is implying that there are certain pieces of evidence on record if applied in his favour, would have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to pinpoint the pieces of evidence which if applied in his favour would have changed the decision in his favour or the pieces of evidence wrongly applied against him.


See the following cases:


Catherine Vs. Akuffo Addo [1992] GLR 337


Abbey & Others Vs. Antwi V. [2010] SCGLR 17


Republic Vs. Conduah; Ex parte Aaba (substituted by Asmah [2013-2014] SCGLR, 1032


In this appeal, the defendant lists five of such pieces of evidence wrongly evaluated by the trial

Judge. They are:


Exhibit ‘1’, a Tenancy Agreement dated 2003 which describes the defendant as landlady


Exhibits ‘4’ and ‘4A’, which showed that the plaintiff received rents on behalf of the defendant.


The payment of pepper-corn rent of ¢1.00 by plaintiff to defendant, when the former returned from Canada.


The evidence of DW1 which confirmed that he supplied sand and stone to the site of the disputed property when it was under construction and the defendant paid for same and lastly,


Exhibit ‘11’ the Building Permit which is in the name of the defendant.


Both counsel for the plaintiff and defendant referred to Sections 11, 14 and 17 of the Evidence Act of 1975, NRCD 323 on the burden of proof. For purposes of emphasis, I will quote the said sections.


Section 11 (1) of the Act provides:


“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 on the issue against that party.”


Section 14 of the Act which talks about the allocation of burden of persuasion provides that:

“Except as otherwise provided by law, unless 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 that party is asserting. (our emphasis)


Section 17 of the Act is on allocation of burden of producing evidence. It provides as follows:


“Except as otherwise provided by law;

a. The burden of producing evidence of a particular fact is on the party against whom a finding of that fact would be required in the absence of further proof;

b. The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.”


Explaining Sections 11 (1) and 14 of the Evidence Act, our Supreme Court held in holding (5) in the case of In Re Ashalley Botwe Lands; Adjetey Agbosu & Others Vs. Kotey & Others [2003-2004] SCGLR, 420, 421 that:


“…Under the provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case was not fixed, but shifted from party to party at various stages of the trial, depending on the issue(s) asserted and or denied. The trial Judge therefore, had rightly held that the evidential burden fell on the defendant to lead credible evidence to displace the effect of their admission of the plaintiff’s undisturbed possession of the disputed land.


Consequently, under Sections 11 and 48 of the Evidence Decree, 1975 (NRCD 323) a rebuttable presumption of ownership was raised in favour of the plaintiffs. The defendants must lead credible evidence to displace such presumption with a view to avoiding a ruling against them on the issue of ownership”.


In the words of Brobbey JSC;


“The effect of Sections 11 (1) and (14) and similar sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of fact or an issue, and that determination depends on evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing if the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour.


The logical sequel to this is that, if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff…”


In the context of this case, to the extent that the defendant counterclaimed, she equally bore the burden of prove as the plaintiff. The defendant introduced a gift to her of the disputed property, inspite of the evidence that their mother, the testatrix had a conveyance made to her at least the land on 18th December, 1955. Going through the record of appeal, the defendant did not prove the alleged gift to her. The trial Judge in his evidence made a finding to that effect when he held that:


“Firstly, the defendant needs evidence to convince this court that the mother indeed gifted the land on which the property stands to her and secondly, that she went ahead to build the said property. Convincingly absent is any evidence of a gift to her whether customary or common law gift. (our emphasis)


The trial Judge concluded on the defendant’s ownership of the disputed property, this way:


“It is surprising that the defendant called no witness to her ownership of this building to have erected a whole storey building on the mother’s land which she claimed was gifted to her without any family member’s knowledge is to say the least, mystifying. Constructing a storey building will take months if not years. Is it that the defendant did not mention this gift of the land and the construction from her own resources to anyone?


I think the defendant needs more convincing evidence than what she put before the court to establish her claim to personal financing of this property. Cases like Majolagbe Vrs. Larbi [1959] GLR 190 and Zambram Vs. Sebedzi [1991-1992] GLR 221 will find the defendant’s evidence wanting in proof of her claim.”


We cannot but agree with the trial Judge on this finding of fact. This is so especially in the light of the defendant’s claim which is against a deceased person who cannot answer her claim. The law is that, “a claim against a deceased’s estate must be scrutinized with the utmost suspicion. Proof must be strict and utterly convincing as one of the protagonists was dead and could not assert his claim.”


See the Court of Appeal case of Moses & Others Vs. Anane [1989-1990] GLRD, paragraph 140 at page 279.


From the foregoing, we are satisfied that the trial Judge rightly apportioned the burden of proof and therefore properly evaluated the evidence of the defendant’s alleged gift.


The defendant had also made huge capital of Exhibit ‘1’, a Tenancy Agreement, dated 2003 and submitted that the said Exhibit described her as a landlady, and that the document was interpreted to her in Ga language by the plaintiff.


It is true Exhibit ‘1’ described the defendant as landlady, but the said Agreement relates to the 2nd Floor of the premises. The question is, what happened to the other floors? When this Exhibit is viewed alongside Exhibit ‘D’ which is a lease between the Testatrix and General Electrical Engineering Company Limited dated 1991. This clearly negates the defendant’s assertion of a gift made to her in 1983.


In addition, Exhibit ‘D’ was witnessed by the defendant herself but more importantly, PW1, the lawyers renting the 2nd floor said for the last seven (7) years, rent were paid to the Testatrix.


Having witnessed Exhibit ‘D’, the defendant is estopped from raising the issue of ownership of the disputed property as hers. The defendant tendered Exhibit ‘6’ a Search Report from the Lands


Commission which showed that the whole land was conveyed to the Testatrix sometime 18th December, 1955. With the defendant’s failure to prove the alleged gift, then it can safely be said that the disputed property belonged to the late Madam Elizabeth Larteley Larkai. Since Exhibit ‘6’ was tendered by the defendant, this piece of evidence corroborated the plaintiff’s case that the land in dispute was acquired by the Testatrix.


The law is that; “where the evidence of one party on an issue in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one, unless for some good reason (which must appear on the face of the judgment) the court finds the corroborated version incredible or impossible.”


See the case of Asante Vs. Mogyabi [1966] GLR 232.


On the issue of the payment of the pepper-corn rent of ¢1.00 by the plaintiff to the defendant. This was not proved. The alleged uncle who advised the defendant to charge the said rent was not called and we are not told he is deceased.


Proof in law means more than just reciting one’s pleadings. See the cases of Majolagbe Vs. Larbi [1959] GLR 190 and Zabrama Vs. Segbedzi [1991-1992] GLR 221.


On the issue of the building permit the least said about it, the better. DW2, the official from Metro Works Department, his testimony was found not to be credible by the trial Judge. But more importantly, he produced a photocopy of a document he was subpoenaed to produce. When asked to produce the original, he failed to produce same saying the original cannot be traced.


With regards to Exhibit ‘3’, series which the defendant said she sold her other property to finance the disputed property, these exhibits were in the name of Agnes Ocherewaa Siaw and not the defendant.


On Exhibit ‘9’ and ‘8’ series, the property rates, we agree with counsel for plaintiff that these are self-serving. This is because. The payments were made when the Testatrix had died and the present case is pending. Besides, authorities are abound that payment of property rates are not conclusive of ownership of a property. See the case of Tonado Enterprises & Others Vs. Chou Sen Lin [2007-2008] SCGLR 135, holding (1) where the Supreme Court held that:


“The payment of ground rent may be some evidence of ownership. It is, however, not an invariable rule that any payment of any ground rent should be construed as evidence of ownership because caretakers and tenants can pay ground rents and when that happens, it will be wrong to interpret the payment as conclusive of ownership.”


But more importantly, the defendant devoted about fifteen (15) of her thirty paragraph statement of defence on the fact that the will of their mother, Elizabeth Larteley Larkai was forged. But at the trial, not a single evidence was led on the allegation of forgery. The import is that the last Will and Testament of the Testator was validly made. That being the case, the probate and Vesting Assent was rightly obtained and the property rightly vested in the plaintiff.


From the foregoing, the plaintiff proved her case and judgment was rightly entered in her favour.


The appeal lacks merit and it is accordingly dismissed. Cost of Gh¢3,000.00 for plaintiff/respondent against defendant/appellant.







Welbourne, (J.A.)                        I agree      MARGARET WELBOURNE




Sowah, (J.A.)                            I also agree        CECILIA H. SOWAH