JOANA NYARKO vs MAXWELL TETTEH & 2 ORS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2018
JOANA NYARKO - (Plaintiff/Respondent)
MAXWELL TETTEH & 2 ORS -(Defendants/Appellants)

DATE:  24 TH MAY, 2018
CIVIL APPEAL SUIT NO:  H1/10/2018
JUDGES:  OFOE J.A. (PRESIDING), ACKAH-YENSU (MS.) J.A., SUURBAAREH J.A.
LAWYERS:  CHARLES BAWADUAH FOR 3RD DEFENDANT/APPELLANT
KWAME ANSAH YANKYERA FOR 1S & 2ND DEFENDANT/APPELLANT
EMMANUEL BRIGHT ATOKOH WITH GODWIN KOBLAH ATSYOR FOR PLAINTIFF/RESPONDENT
JUDGMENT

SUURBAAREH, J.A.:

This is an appeal against the judgment of the High Court, Accra (Financial and Economic Division) dated 9th June, 2016 in which judgment was entered for the plaintiff/respondent, called respondent hereafter, whilst dismissing the counterclaims of the defendants/appellants, simply called appellants hereinafter.

 

The facts giving rise to the action resulting in the present appeal are not in any dispute. One Samuel Kwabena Afram who died in 1998, had on 21st March, 1989 made a Will in which he appointed the 1st appellant and one Daniel Owiredu Baidoo as his trustees and executors. In the Will, the testator made certain devises in respect of House No. 229/16, Darkuman Korkompe, Accra in which the respondent and her children were beneficiaries of majority of the rooms/stores. As at the time of his death, Daniel Owiredu Baidoo had died so the 1st appellant, as the sole surviving executor, applied and obtained probate but was unable to distribute the estate as a result of a challenge by the 3rd appellant.

 

Not satisfied with the conduct of the executor, the respondent issued out a writ against the appellants, claiming the following reliefs:

“(a) Account of all the proceeds from the renting of the 13 stores since 1995

(b) Account of stewardship of the estate to the beneficiaries

(c) Distribution of parts of the estate to the beneficiaries

(d) Provision of the original copy of the probate

(e) Cost of litigation.”

 

The 1st and 2nd appellants, who initially filed a joint statement of defence with the 3rd  appellant, subsequently filed a separate statement of defence on 11th December, 2012 upon an application to amend their defence.

 

It is necessary to state here that while the respondent is the wife of the testator, Samuel Kwabena Afram, the 2nd and 3rd appellants are children of the testator by different women. The respondent took out the action as she alleged that the 1st appellant had failed to distribute the estate despite the probate and that the estate was under the control and enjoyment of the appellants.

 

The 1st and 2nd appellants, whilst admitting that probate has been taken of the Will, denied being in control and enjoyment of the estate and went on to contend that the property did not belong to the testator and that even if it was, it was subject to the portion given to the 2nd appellant for the construction of stores. On his part, the 3rd appellant, who contended that the land on which House No. 229/16 is built was acquired for him, and further that the rooms/stores referred to in the Will were not properties of the testator that he could devise in his Will. He further contended that the stores were constructed by him and his siblings including the 2nd appellant. The 3rd defendant went on to counterclaim for a declaration that the testator had no testamentary capacity over House No. 229/16 Darkuman-Kokompe, Accra; an order deleting same from the devise in the Will as well as the probate covering same, and an order ejecting the respondent from the said house.

 

Despite the amendment granted resulting in the 1st and 2nd appellants filing a separate statement of

defence, it is clear from the record of proceedings that the issues filed on 17th February, 2012 alongside with the reply to the joint statement of defence and counterclaim field by the 3 appellants, remain the issues for determination in the action. See pages 15 and 16 of the record of appeal. These issues were:

“a. Whether or not the properties divested in the Will of Kwabena Afram (deceased) were the self-acquired properties of the testator.

b. Whether or not the property identified as Hse. No. 229/16 Darkuman-Kokompe, Accra was built by the late Kwabena Afram himself.

c. Whether or not the land on which House No. 299/16 Darkuman-Kokompe, Accra was acquired by the late Kwabena Afram for the 3rd defendant.

d. Whether or not stores in House NO. 229/16 Darkuman-Kokompe, Accra were built by the testator.

e. Whether or not the Will of Kwabena Afram (deceased) is valid and of effect.

f. Whether or not the defendant are entitled to their claim (sic).

g. Whether or not the plaintiff is entitled to her claim.”

 

The trial judge, after hearing the parties and their witnesses, and upon an examination of the oral and documentary evidence led at the trial, and guided by the submissions on the law, found that, House NO. 229/16 Darkuman-Kokompe, Accra was not acquired for the 3rd appellant; that the disputed house was constructed by the testator and that the stores, even if constructed by the 2nd and 3rd appellants and their deceased brother, was with the licence of the testator. The trial judge also found that the Will was valid and effective and proceeded to grant the respondent all her reliefs whilst dismissing the counterclaim of the appellants.

 

Dissatisfied with the judgment, the appellants have mounted the present appeal on various grounds of appeal. Whilst the notice of appeal, with grounds of appeal on behalf of the 1st and 2nd appellants were field on 27th June, 2016 and appearing at pages 485 and 486 of the record of appeal, those of the 3rd appellant, filed on 28th July, 2016 appear at pages 494(a) and (b) of the record.

 

The grounds of appeal on behalf of the appellants essentially complain about the judgment being against the weight of evidence; error on the part of the trial judge in finding fraud against the 2nd and 3rd appellants, when non was pleaded, and, without consideration of how such an allegation is discharged; misdirection on the part of the trial judge concerning the acquisition of the property in dispute; error in finding as to who built the stores; and, error in finding that the 1st appellant had reneged in his duty as an executor.

 

Although separate submissions were filed by the 1st and 2nd appellants as well as by the 3rd appellant, on the issue of fraud, the appellants submitted that contrary to the requirement that allegation of fraud must be specifically pleaded with the particulars and then proved beyond reasonable doubt, the respondent herein neither pleaded fraud nor set out fraud as an issue for determination and did not also lead such evidence as proved the allegation, yet the trial judge found fraud proved against the 2nd appellant regarding her deed of gift, and also against the 3rd appellant about the disputed property being in his name. Whilst counsel for the 1st and 2nd appellants referred to the case of Okwei Mensah (Dec’d) acting by Adumuah Okwei vrs. Laryea (Dec’d) acting by Asheteye Laryea [2011] 1 S.C.G.L.R. 317 at holding (1) in the headnote, the 3rd appellant, in his submissions, cited order 11 r. 7 of C.I.47 as well as the case of Randolph v. Captan and 1 Or. [1959] G.L.R. 347 at 351.

 

Whilst admitting the assertions about not having pleaded fraud, it was contended on behalf of the respondent, on the authority of Frimpong vrs. Nyarko [1998-99] S.C.G.L.R. 734 at 743 that, if from the proceedings, fraud was visibly established, the court could not overlook it. In respect of the 2nd appellant’s claim of gift, the respondent also went on to contend that not only did she fail to plead the gift, but also that her decision to discover her documents after the respondent had closed her case was an attempt to overreach. It was further submitted on behalf of the appellant that, apart from failure to offer an explanation for the substituted certificate, an examination of the signature on the deed of gift was quite different from that of the testator in the Will.

 

With regard to the claim of the 3rd appellant, it was contended on behalf of the respondent that apart from the assertion about documents in respect of the disputed property having been stolen, that exhibit D series, bearing the name of the testator, constitute proof that he owned the property. It was also pointed out that the 3rd appellant’s own evidence shows that whatever construction he carried out was with the permission of the testator. It was further submitted that the difference in the names contained in the search reports in 2014 and 2015 also tend to support the fact that the testator was the owner of the property and that the 3rd appellant took advantage of the similarities in the names to alter the name in the indenture in exhibits C and 1 as belonging to the 3rd appellant.

 

The trial judge, who decided to deal first with issue (c) about whether or not the land on which House No. 229/16, Darkuman-Kokompe, Accra was acquired by the late Kwabena Afram for the 3rd appellant, after a consideration of the evidence, at page 8 of her judgment appearing at page 463 of the record, quoted from the recitals in the indenture about the acquisition being in 1961, and also after reference to excerpts from the proceedings held thus at page 464 of the record (page 9 of her judgment) on the money used for the acquisition:

“It is very palpably obvious from the Indenture tendered by the 3rd defendant himself that this piece of evidence is entirely false. How could his father have decided to use the proceeds of his naming ceremony when the 3rd defendant was born in August 1970 to purchase the property in dispute when the property had already been purchased as far back as 1961 and was already being enjoyed peaceably by the testator.”

 

After finding that the 3rd appellant had failed to prove that the property in dispute was purchased in his name and for his benefit, and that exhibit D3 in respect of water bills, issued on 31st August, 2008 and 31st

December, 2010 were in the name of the testator Kwabena Afram, the judge held at page 465 as follows:

“It would appear that the assertion made by the plaintiff that her late husband’s documents were stolen whilst she was in hospital with him would have some merit. I have also seen the Search report dated 3rd November, 2014, exhibit H which shows that the land belongs to Samuel K. Afram. On the other hand the one dated 14th December, 2015, tendered as exhibit 5 for the 3rd defendant now has the name Samuel Kwasi Afram. He explained that he had first a search report with just the middle initial but his lawyer had instructed him to go to Lands Commission and get one with the name Samuel Kwasi Afram.”

 

The above findings about the search results being in the name of Samuel K. Afram, is not only supported by the evidence of Pw1, Samuel Amakye Frimpong at page 257 of the record, but also the explanation given by the 3rd appellant at page 347 when he was being cross-examined by counsel for the respondent:

“Q. Finally this search report that your discovered but fail (sic) to tender, the Land Commission issued a report saying that Samuel K. Afram, I am putting it to you that, you sought to suppress this document and rather chose to bring the one that says Samuel Kwasi Afram.

A. My Lord it is true that I applied for it and when they were typing at that (sic) Lands Commission that they typed Samuel K. Afram, so when I show it to my lawyer, my lawyer said I should make sure that they type my full name on the document that is why I applied for another one and they now type my full name there as Samuel Kwasi Afram.”

 

Apart from the fact that a search report is deemed to contain the correct information being demanded, and therefore exhibit “H” is the genuine information as testified by Pw1, the explanation of the 3rd appellant shows that exhibit 5 was issued after a request to have his full name put on the document. No evidence was led to show that what was contained in the initial report, exhibit H, was a mistake.

 

Even though the appellant in his evidence at page 338 of the record said that the late father confessed to him that he had been pressurised by the respondent to make a Will, and that he even went with the father to see the lawyer who prepared the Will, there is nothing to show that he did anything when the 1st appellant applied for probate. It is true that he took an action against the 1st appellant and the respondent in respect of the disputed house but the processes have not been put in evidence to show what was in contention between the parties. In any case, if as the 3rd appellant alleges, the land was bought in his name and for his benefit, why will it be necessary for him to get permission from his late father for the developments he carried out with the siblings? Why will he also stand by and allow his siblings to undertake the development on the land belonging to him?

 

From the indenture, the 3rd appellant, who was only a minor of 2 or 5 years, from the face of the documents, is not only the purchaser, but is also said to have been present and witnessed same. So the submission on his behalf that the testator merely initialled for him cannot be correct. The 3rd appellant also never challenged the 2nd appellant about the gift to her despite his claim that the property was bought for him.

 

As submitted on behalf of the respondent, the 2nd appellant never pleaded the gift. The evidence does not also show that she even raised the issue when the 3rd appellant was in litigation with the 1st appellant (her husband) and the respondent over the property. She cannot claim that she was not aware of what the claim of the 3rd appellant was. The evidence of Pw1, the head of family of the testator, also shows that neither the 2nd or 3rd appellants informed him of having any documents or interest relating to the property of the testator after the funeral. As also pointed out in the submissions on behalf of the respondent, per the proceedings at pages 330 and 331 of the record, whilst the late Samuel Kwabena Afram signed other documents, the deed of gift in this case to the 2nd appellant, was thumb-printed. The trial judge also wondered why the testator, after allowing three children to carry out development on his land, would choose to make a gift of a portion to only one of them. See page 467 of the record of appeal.

 

The duty of the appellate court is to examine the record of appeal to find out if the findings made by the trial judge are supported by the evidence led at the trial. From the analysis given above, this court is satisfied that the findings of the trial judge on the acquisition and ownership of House No. 229/16, Darkuman-Kokompe, Accra is amply supported by the evidence. It is true that the respondent never pleaded fraud or set out the particulars, however, from the evidence led and conclusions reached by the trial judge, the claim by the 2nd appellant through deed of gift, and the 3rd appellant on the ground that the property was acquired for him and in his name, has been shown to be spurious and were accordingly, rightly rejected by the trial judge.

 

The findings of the trial judge on the issue of acquisition and ownership in respect of House No. 229/16 Darkuman-Kokompe, Accra effectively disposed of issues (b) and (c) of the issues adopted for trial. As this court has come to the conclusion, based on examination of the record of proceedings and the evidence led at the trial that the finding is amply supported, grounds (a), (b), (d) and (f) of the grounds of appeal, filed on behalf of the 1st and 2nd appellants, have thereby been shown to be without merit and are therefore dismissed. The same result goes as far as grounds (II) and (III) of the grounds of appeal filed on behalf of the 3rd appellant are concerned. The court is also of the view that the ground of appeal about the judgment being against the weight of the evidence, as far as the issue of acquisition and ownership of House No. 229/16, Darkuman-Kokompe, Accra is concerned, is without any merit.

 

The court will next move on to consider the issue as to whether or not the stores in House No. 229/16 Darkuman-Kokompe, Accra were built by the testator or not . This was issue (d) set out and adopted for determination. The trial judge chose to classify development of the property in three stages/parts and upon her conclusion that the land was acquired by Samuel Kwabena Afram, stated thus at page 466 of the record of appeal:

“There is also no doubt or controversy that with the exception of the shops being claimed by the 2nd and 3rd defendants, and the apartment put up allegedly by the 3rd defendant, all the other buildings were constructed by the late Samuel Kwabena Afram.”

 

The trial judge, after an analysis of the evidence, and pointing out in particular the fact that the 2nd appellant never pleaded the deed of gift, and wondering why she alone would be gifted part of property she was allowed to develop with her other siblings, found at page 472 that the respondent’s account as to who built the stores was more credible, when pitched against that of the appellants, and went on to conclude, like on issue of acquisition and ownership of House No. 229/16, Darkuman-Kokompe, Accra that the stores were built by the testator (see page 472). The trial judge, at the same page 472 however, went on to state as follows:

“In the alternative, and in any case, it would appear that even if the 2nd and 3rd defendants had put up the buildings that they claim, it would by operation of law, only amount to a licence. In fact, this is borne out by their own testimonies as well as that of Dw2 for the 3rd defendant…”

 

The findings on who built the stores gave rise to the ground of appeal in ground (c) of the grounds of appeal filed on behalf of the 1st and 2nd appellants as well as ground (iv) filed on behalf of the 3rd appellant.

 

It is true that before the construction of the stores, the testator had written to the AMA, per exhibit D, informing them of his intention to demolish wooden structures on his land. As early as 1989, when he made the Will, he also had the intention of constructing a two-storey building on the land. It is also not in any doubt that it was he who permitted the 2nd and 3rd appellants and Korankye, deceased, to carry out the construction. The evidence, especially that of the 2nd and 3rd appellants, which was corroborated by Dw2 for the 3rd appellant, leaves this court in no doubt that the construction of the stores was carried out by the 2nd and 3rd appellants and Korankye, deceased, and not by the testator as held by the trial judge at page 472 of the record.

 

As far as the issue of who constructed the stores on House No. 229/16, Darkuman-Kokompe, Accra is concerned, it is the view of this court that the trial judge’s findings cannot be supported having regard to all the circumstances and evidence led at the trial. It was this fact of lack of evidence in support of her conclusion about Samuel Kwabena Afram having built the stores that was pricking the conscience of the trial judge that made her state what she said was the alternative quoted above. This ground of appeal therefore succeeds and the court finds that the stores were built by the 2nd and 3rd appellants and their deceased brother Korankye, with the permission of the testator. On the issue of who built the stores, the ground of appeal about the judgment being against the weight of the evidence succeeds.

 

The other issue that arose for determination was whether or not the Will of Samuel Kwabena Afram was valid and of effect. On this issue, the trial judge, at page 474 of the record of appeal held that apart from the fact that the appellants did not challenge the Will but only sought to say that same had lapsed upon the gift to the 2nd and 3rd appellants, that upon the grant of probate the validity of the Will could no longer be challenged.

 

Even though there is no specific ground of appeal filed in respect of the findings as to the validity of the Will, under the ground of appeal about an error in finding that the stores were built by the testator, it was submitted on behalf of the 3rd appellant that having invited the 2nd and 3rd appellants and their late brother Korankye to invest their monies on the property, believing that it belonged to them and would remain theirs, that the testator was precluded from devising the property to the respondent and her children, without any compensation to the appellants. The case of Quagraine v. Adams [1981] G.L.R. 599 at 606 to 608 was cited, and upon which, it was submitted that an appellate court, in its rehearing function, was enjoined to give a judgment based on the merits and justice of the case.

 

In reaction, it was submitted on behalf of the respondent that the case cited was inapplicable and only meant to throw dust into the eyes of the court since they did not agree that the evidence about who built the stores went on challenged. As indicated earlier, this court is of the view that the trial judge’s findings on who built the stores cannot be supported and has thus been set aside. The issue raised by the appellants as to the circumstances in which they came to build the stores, and upon which the case of Quagraine v. Adams (supra) was cited, was never considered by the court even though in the view of this court, that it is a genuine one. There is no doubt that the Will, as found by the trial judge, is valid and effect is to be given to it. Be that as it may, it must be realised that a Will, being ambulatory, may be altered or changed by the testator. This is succinctly brought out in the following Latin phrase:

“Ambulatoria est voluntas de funti usque ad vitae supremum exitum”

 

To wit, The Will of a deceased is ambulatory until the latest moment of life.

 

The expression Ambulatoria voluntas denotes the power inherent in a testator to alter his will during his life time (See page 74 of the Black’s Law Dictionary with Pronunciation (5th Edition).

 

In the instant case, having come to the conclusion that the evidence clearly shows that the stores were built by the 2nd and 3rd defendants and their late brother Korankye, and further that this was carried out with the tacit permission and encouragement of the testator, an issue of what interest the two appellants acquired in the developments carried out fell for determination. As held by the trial judge, they became licensees whose licences in law will die with the testator the licensor. Will this however be just having regard to all the circumstances of the case, especially the fact that the testator permitted them to carry out the development, conscious of the fact that he had made a will devising the house to beneficiaries, the huge financial outlay involved in the development and the fact that the 2 appellants went into occupation of the other structures carried out on the land before the testator’s demise?

 

Since a Will is ambulatory, it is only properties in existence at the time of the death of the testator that will be distributed under the will, the court will hold that having regard to all the circumstances in which the testator allowed the 2nd and 3rd appellants, and their late brother, to carry out development on House No. 229/16, Darkuman-Kokompe, Accra, the testator has by conduct altered or changed his Will.

 

Unlike the Quagraine case cited (supra), the testator in this case is not said to have promised the 2nd and 3rd appellants and their deceased brother any special interest in the development being carried out. There is also no evidence that the parties had agreed on any terms concerning the developments that were being undertaken. This court cannot however lose sight of the principle enunciated therein about the need to give judgments based on the merits and justice of the case. It is in that light that this court is of the view that, having regard to all the circumstances in which the developments were carried out, with the 2nd and 3rd appellants moving into occupation in the life time of the testator, it is a clear case in which the testator has, by conduct, exercised his right to alter his Will. Accordingly, the portions of the property developed and occupied by the 2nd and 3rd appellants, with his permission, were not available or in existence at the time of his death to be distributed under the Will.

 

With this conclusion, whilst the 2nd and 3rd appellants are declared entitled to, and owners of the properties developed and occupied by them, the respondent is declared entitled, under the Will, to the other portion of House No. 229/16, Darkuman-Kokompe, Accra and thus entitled to an order for account in respect of that portion as per her relief (c).

 

Ground (e) of the grounds of appeal filed on behalf of the 1st and 2nd appellant is to the effect that the finding by the trial judge that the 1st appellant reneged on his duty as executor is not borne out by the evidence. In the submissions in support of this ground, they made reference to the fact that probate had been taken and further that the 1st appellant did not relent when the 3rd appellant instituted the action against him and the respondent and the personal expenses he incurred in that regard. They concluded that as a prudent executor, and in order not to saddle the estate with avoidable debts, he discontinued the litigation upon being satisfied that the house was in the name of the 3rd appellant.

 

The trial judge, at page 474 of the record of appeal in dealing with the issue whether or not the will is valid and of effect said:

“Yet another matter to mention in passing is the status of the probate granted by the High Court, Accra on 10th March, 2003 to the 1st defendant as the Sole Executor of the estate of the late Samuel Kwabena Afram…”

 

Despite the above finding, the trial judge, without assigning any reason in the next paragraph said:

“Order 66 of the High Court (Civil Procedure) Rules 2004, is very clear on the modalities of the administration of testate estate and how it should be carried out. In the instant case, without going into further detail, it would seem that the 1st defendant has reneged on his duties as an administrator merely because the 2nd and 3rd defendants waived some documents at him.”

 

With due respect to the learned trial judge, not only is the above not supported by the evidence, but not fair to the 1st appellant considering the evidence that he and the respondent were in court with the 3rd appellant for close to 15 years. Even though this court has upon an evaluation of the evidence concluded that the documents being relied upon by the 2nd and 3rd appellant were not genuine, it cannot in truth be said that the 1st appellant gave up his duty upon those documents being waived at him.

 

The appeal is therefore allowed in part.

 

OFOE, J.A:

Samuel Kwabena Afram was the father of the 2nd and 3rd defendants who are from different mothers.

The 1st defendant is the husband of the 2nd defendant. The plaintiff is the widow of Samuel Kwabena Afram. The parties are embroiled in a dispute over properties located in Darkuman which are a subject of testamentary disposition by Samuel Kwabena Afram. While the plaintiff widow contended that the will made by the deceased husband, disposing off all the properties as he wished, is valid and therefore should guide the distribution of the properties, his children, the 2nd and 3rd defendants contended that the properties are not for the testator but for them in different shares as will be stated soon in this judgment. Plaintiff is in court against the defendants alleging that since the death of the deceased husband, the 2nd and 3rd defendants have wrongly taken charge of the properties of the deceased, including shops attached to the residential property, and are accounting to no one. The 1st defendant, in law of the deceased, who was made an executor with one Daniel Owuredu Baidoo (deceased) has also refused to carry out the directives in the will.

 

The 3rd defendant claims to be the owner of not only the residential part of the property, because the land was purchase for him and in his name by the father when he was born in 1972, but also that the shops were built by the joint contribution of himself, 2nd defendant and their deceased brother, Korankyie.

 

The 2nd defendant lays claim to part of the residential property she put up on the permission of the father and that she jointly built the shops with the brothers, as claimed by the 3rd defendant.

The 1st defendant’s case is that he proceeded to take probate as demanded of him by law but stopped short of distributing the property His reason for such inaction is that he in the course of carrying out his duty as an executor, the 3rd defendant made claim to the whole of the residential property and the shops. When he went to the Land Registry to investigate this claim of the 3rd defendant he found the name of the 3rd defendant registered as the owner of the property. The 3rd defendant claiming as the owner of the property even issued a writ against him and the plaintiff claiming the properties. The head of family for the children stepped in and called for settlement out of court and this was done. It was for these reasons he had to halt the process of administration.

 

For resolution of these disagreements the plaintiff sued the defendants claiming:

“a. Account of all the proceeds from the renting of the 13 stores since 1995

b. Account of the stewardship of the estate to the beneficiaries

c. Distribution of the parts of the estates to beneficiaries

d. Provision of the original copy of the probate

e. Cost of litigation”.

 

The 3rd defendant filed a counterclaim asking for

“1. A declaration that the late Samuel Kwabena Afram had no testamentary capacity over House No. 229/16 Dakuman- Kokompe, Accra

2. An order deleting the said house from the devise in the will of the late Kwabena Afram as well as the probate covering that property

3. An order of ejectment of the plaintiff from House No. 229/16 Darkuman-Kokompe, Accra”

 

The trial judge entered judgment for the plaintiff on all the reliefs she sought for and dismissed the counterclaim of the 3rd defendant. All defendants have appealed: 1st and 2nd defendants filed 7 grounds of appeal and the 3rd defendant filed 4 grounds of appeal praying we set aside the trial judgment and substitute in its place judgment in their favour upholding their counterclaim. The grounds of appeal of the 1st and 2nd defendant I reproduce as follows:

That the trial judge erred when she held that the 2nd defendant’s deed of gift which she received from her father is fraudulent

 

The trial judge erred when she did not consider the burden imposed on the plaintiff in respect of an allegation of fraud against the 2nd defendant

 

The trial judge erred in the allocation of the burden proof in respect of the building of the stores

 

The trial judge misdirected herself in the consideration of the acquisition of the land in dispute by treating it as a customary gift inter vivos

 

The findings made against the 1st defendant that he reneged on his duty as an executor is not based on the evidence on record

 

That the trial judge erred when she made a finding of fraud against the 3rd defendant by ignoring the fact that the evidence of title presented by the 3rd defendant was acquired by his father in 1972 and further registered in 1975

 

The judgment is against the weight of evidence that was before the court”.

 

The grounds of appeal filed by the 3rd defendant is as follows:

 

The judgment is against the weight of evidence

 

The trial judge erred in law when she made a case of fraud against the 3rd defendant when the plaintiff did not plead fraud against the 3rd defendant.

 

The trial judge misdirected herself in the consideration of the acquisition of the land in dispute by treating it as a customary gift inter vivos.

 

The trial judge erred in making a finding that the stores were built by the testator when the evidence on that matter was never challenged by the plaintiff’s counsel”.

 

I think there is some affinity between grounds of appeal a, b and f of the 1st and 2nd defendant’s grounds of appeal and the 2nd grounds of appeal of the 3rd defendant. They are all questioning the trial judge’s findings of fraud against them. I will consider them together.

 

Before then let me mention that we are compelled by Rule8(1) of the Court of Appeal Rules to conduct a rehearing, which by law is what an appeal is all about, in disposing off this appeal. And where the appellant complains that the judgment is against the weight of evidence we are compelled to conduct a review of all the evidence on record and determine whether the trail judge had given appropriate weight to the evidence placed before him and applied the relevant laws, as he was bound to do in coming to his conclusions in the case. The cases of Djin vrs Musah Baako(2007-2008)SCGLR686 and Aryeh vrs Ayaa Iddrisu(2010) SCGLR89 emphasis this duty of an appellate court. Very critical also in this duty of an appellate court in the review exercise is to be slow in questioning findings of fact made by the trial court. An appellate court is permitted in setting aside any findings of fact made by a trial court but only in situations where the appeal court is convinced the trial court’s finding are not supported by evidence on record. For case authority on this principle the cases of In re Okine vrs Okine(2003-2004)SCGLR582, Achoro vrs Akanfela (1996-97) SCGLR 209 should be appropriate reference.

 

The trial judge, after assessing the evidence of the 2nd and 3rd defendant on their claim to the properties came to the conclusion that the basis of their claim to the properties was fraudulent. We take the case of the 2nd defendant first whether the trial judge had justification for making such findings against her.

 

To back her claim that the father gifted her the plot on which she has put up her residential property on the land, the 2nd defendant tendered exhibit 1, an indenture dated the 16th Of December 1997. There was also in evidence a substituted Land Title Certificate also tendered through her as exhibit E.

 

The trial judge expressed doubt how the deceased father, after he had allowed the 1st and 2nd defendants to put up the shops, as they claim, will grant the plot of land to the 2nd defendant alone. She found also surprising that the 2nd defendant could fail to plead such Deed of Gift or Title Certificate when her whole claim to ownership of the plot of land on which she has put up a dwelling house was based on such documents. She noted that the Certificate is even a substituted certificate which by section 53 of the Land Title Registration Law 1986, PNDCL 152, could be issued by the Registrar only when the original is lost. According to the trial judge no such evidence was given by the 2nd defendant explaining the circumstances under which she secured this substituted certificate.

She was of the view that, for the 2nd defendant to have also departed from her pleadings was a deviation from case law authorities it should be frowned upon. On the basis of these she concluded

In the circumstances I find as a fact and hold that that both the Deed of Gift and the substituted Land Certificate are fraudulent and I accordingly cancel both documents”.

 

Of course failing to convince the trial judge why the substituted certificate and none pleading of the deed of gift and the Land Certificate cannot by any stretch of imagination amount to fraud. Departure from one’s pleadings, which in any case was not what happened in this case, cannot also respond to the description of fraud. The trial judge had found earlier that the signature on this exhibit 1 was different from that on the undisputed will. On review of the evidence, I find the submission of counsel for the 1st and 2nd defendants supportable. Tersely put, it is his contention that not only was fraud not pleaded but that there wasn’t that evidence led by the plaintiff that can amount to fraud. It is because an allegation of fraud is considered a major indictment that is why the rules of court, specifically Order 11 rule 12 demands that where the allegation is made the party is bound to provide the particulars of the fraud clearly to enable the other party know exactly what the allegation made against him is all about and offer an appropriate answer and defence. Apart from the rules of court which demands a higher duty in the pleadings placed before the court statute also demands a higher standard of prove. This is provided for by section 13(1) of the Evidence Act, NRCD323.

 

Let us be clear what the legal authorities mean when they mention fraud. We can then make a determination whether the acts of the plaintiff and Bediako in the procurement and the registration processes were in any way fraudulent. Kerr on the Law of Fraud and Mistake, 7th Edition by Denis Mc Donnel and John Monroe has a lot to offer us in our search for legal understanding on what is fraud. At page one of the book it states that:

“Fraud in the contemplation of the civil court of justice may be said to include properly all acts, omission and concealment which involves a breach of legal or equitable duty, trust or confidence, justly reposed and are injurious to another, or by which an undue or unconscientious advantage is taken of another. All surprise, tricks, cunning, dissembling and other unfair way that is used to cheat anyone is considered fraud. Fraud in all cases implies a willful act on the part of any one, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to”

 

On the authority of Derry vrs Peek (1889) 14 Appeal Cases 337 there appears to be some certainty in the legal position that one of the elements of fraud is the intention to deceive though the motive is immaterial. It is also accepted that negligence is not fraud but may be evidence of fraud if it is so gross as to be incompatible with the idea of honesty. Tarkey vrs Mc Bain(1912) AC 186 is authority that an intention to deceive being a necessary element or ingredient of fraud, a false representation does not amount to fraud at law unless it be made with a fraudulent intention and there is a fraudulent intention if a man, with the view of misleading another into a course of action which may be injurious to him, makes a representation which he knows to be false, or which he does not believe to be true.

 

At page 18 of the book Kerr on the Law of Fraud and Mistake (supra) the authors state:

“There is fraud in law if a man makes a representation which he knows to be false, or does not honestly believe to be true, and makes it with the view to induce another to act on the faith of it, he does so accordingly, and by so doing sustains damage although he may have had no dishonest purpose in making the representation. It is immaterial that there may have been no intention on his part to benefit himself or to injure the person to whom the representation was made. It is enough that it be made willfully and with the view to induce another to act upon it, who does so accordingly to his prejudice….”

 

What appears to run through the meaning assigned to fraud by these authorities is that there should be some representation which should be fraudulent, there should be some dishonesty and the third party to whom the representation was made should have acted on it to his detriment or prejudice.

 

Taylor JSC had this to say of fraud in the case of S.A. Turqui & Brothers vrs Dahabieh(1987-88)2 GLR 486.

“In my opinion a charge of fraud in law can be taken to be properly made against a party who knowingly or recklessly whether by conduct or words, uses unfair, wrongful or unlawful means to obtain a material advantage to the detriment of another party. It is an insidious form of corruption and it is therefore a charge involving moral obloquy. Bluntly put without equivocation, it is a species of dishonest conduct…”

 

His Lordship Justice Twum relying on Derry vrs Peek and Lord Esher in the case of Le Lievre vrs Gould (1893)1QB 491 in our Ghanaian case of Brown vrs Quashigah (2003-2004) SCGLR 930 at 943 said that fraud, in short, is dishonesty.

 

On review of the evidence the only evidence that has any resemblance of fraud is the purported signature of the testator on exhibit 1 which the trial judge found unreliable and therefore not the signature of the testator. But I don’t think that in every situation where there are competing signatures and the court finds in favour of one then fraud should necessarily be imputed. As explained by the authorities, allegation fraud should be sparingly made and when made there should be evidence to prove it beyond reasonable doubt. In this case before us fraud was not pleaded and therefore no particulars were provided.

 

For a finding of fraud in the circumstances of this case where the fraud will have to be siphoned from the records and not fetched from the particularized pleadings there should be evidence manifesting the fraud clearly and poignantly on the record as was the case in Amuzu vrs Oklika(1998-99)SCGLR141 provided there is evidence to that effect on the records. I will set aside the findings of fraud made by the trial judge against the 2nd defendant Similar findings of fraud was made against the 3rd defendant. The 3rd defendant tendered exhibits C the indenture he claimed was given the father when he bought the land for him. Also in evidence were exhibits H and 5. Exhibit H, dated 3rd November 2014 is a search report indicating that the land is recorded in the name Samuel K. Afram at the Lands Registry. Exhibit 5 is a receipt issued when application for search was filed with the Land Registry dated the 17th December 2015.

 

The name stated on this exhibit 5 is not Samuel K. Afram but Samuel Kwesi Afram. Reading the trial judgment carefully, the reason she found fraud against the 3rd defendant was firstly because the indenture, exhibit C(same as exhibit 1 for 3rd defendant) which the 3rd defendant relied on for his claim that the father bought the land for him and in his name exposed the untruth in his claim. Untruth because the indenture made reference to purchase of the land by the father in 1961 when the 3rd defendant was not born. He was born 1972.But that a party or his witness’s evidence may be contradictory of some other evidence or a written document may not necessarily amount to fraud. Strictures could be made of indentures which outcome may be unfavourable to the party relying on such indenture but that alone will not suffice for a charge of fraud against the tendering party. In this case before us a lot of questions may be asked about the dates on the indenture, the oath of proof, signatures etc. but more evidence is needed if fraud is to be imputed.

 

That there are conflicting dates and seemingly questionable signatures on indentures will not necessarily ground an allegation of fraud. The second reason the trial judge found the 3rd defendant fraudulent was because he had altered the portions of his father’s documents to make it appear the father bought the property for him. We found no such clear evidence of alteration by the 3rd defendant neither do we find fraud because the 3rd defendant gave contrary evidence to that contained in the indenture exhibit C. It is true exhibit H tendered by the plaintiff mentioned the owner of the property as Samuel K. Afram and exhibit 5 tendered by the 3rd defendant mentioned Samuel Kwesi Afram as the owner of the same property but the 3rd defendant explained that when he first approached the Land Registry for search as to whose name is registered as the owner of the property he was given the result with the name Samuel K. Afram but his lawyer told him the full name should be on the search to clarify the ‘K’. The K could mean Kwabena, the 3rd defendant’s father or Kwesi the 3rd defendant. The Registry understood him and gave him the search result with the name Samuel Kwesi Afram. It was for the trial judge to believe this evidence of the 3rd defendant or reject it. To have gone further to consider this evidence as supportive of fraud by the 3rd defendant I with all respect, disagree. I will uphold the grounds of appeal a, b and f of the 1st and 2nd defendants and grounds 2 of the 3rd defendant.

 

The other ground of appeal which we find common to the appellants is their disagreement with the trial judge on the finding that the house was for the deceased and the stores were built by him. Evidence led by the plaintiff was that the residential property as well as the stores were built by the husband. She tendered exhibit A, the will of the deceased which had devised the properties in the house mainly to the plaintiff and children. It was made 21st March 1989. As evidence of the ownership of the property by the deceased husband, she tendered exhibits D,D1 to D4. In all the first three exhibits he wrote and signed as the owner of the property letters addressed to the Accra Metropolitan Assembly to demolish the wooden structures housing the stores ( January 1996), notice to the tenants in the wooden shops to evacuate for the demolishing(March 1996), and a tenancy agreement (December 1988). The remaining exhibits were water rate payments for August 2008 and December 2010. Asked whether when the stores were put up the husband was working plaintiff said no but that he was collecting rents and had a bank account. She could not be firm in her answers who were the tenants who came to pay rents because they came to pay when she had gone on her trading business. Sometimes the husband went for the rent and sometimes the tenants brought the rents to him. She testified that the 3rd defendant came to the house a year before the husband died and it was the husband who gave him the room to make the extensions to it. As to the masons who put up the property and the shops she cannot remember the name of any of them.

 

The 1st defendant, the husband of the 2nd defendant told the court that originally there were 8 wooden apartments and he was occupying one with his master. He recollects the deceased instructed the children to demolish and replace with sandcrete, which they did at the time he was married to the 2nd defendant.

 

In respect of the 2nd defendant she testified that she and the two brothers put up the shops on the agreement of their father. They put up the shops between the year March 1996 and March 1997 and were in occupation when their father died in 1998. The father also gave her a plot just behind the shop to put up a chamber and a hall. This grant according to the 2nd defendant was evidenced in writing and tendered as exhibit 1. As evidence that they constructed the shops, she tendered exhibits 2, 3, 4,5and 6. In respect of exhibit 6 she said the plaintiff even signed that document. This according to 2nd defendant was evidence the plaintiff knew about their construction of the shops. The plaintiff denied this. Asked why she prepared exhibit 6 and got the plaintiff to sign she said the father had 6 wives and did not want any trouble. On rent collection she said the father collected rents when the stores were wooden but after their conversion he stopped.

 

3rd defendant maintained that the father bought the property for him and in his name. The father did this because he was pleased the mother had given him another son to replace their 15 year old son who died. He was so special for the father he had him baptized in a church and that is why he had the name Samuel Kwesi Afram similar name to the father, Samuel Kwabena Afram. It was the proceeds of the church service that day that the father used to buy the land for him. He tendered the indenture he claimed the father was given by the chiefs as exhibit 1(same as exhibit C). Also tendered were exhibits 2,3,4 and 5 all in his name Samuel Kwesi Afram. Exhibit 2 is a receipt given by the Lands Registry when the land document was being registered in 1975. Exhibit 3 is another receipt from the Accra Metropolitan Assembly for property rate, exhibit 4 Ground Rent Note from the Administrator for Stool Lands and exhibit 5, a search report from the Lands Registry. He testified that he stayed with his parents until he completed secondary school but had to leave to stay with a maternal uncle because the father divorced the mother.

 

In 1995 he returned to the house and was allowed by the father to break a chamber and hall in the house and replaced it with a two bed room self-contained and that is where he lived. He told the court he never saw the document, exhibit 1, the 2nd defendant is claiming the father executed giving her the land she has built on until after the issue of the father’s will arose. He however confirmed the evidence that the three of them, he the 2nd defendant and their deceased brother Korankye put up the shops. He sought to explain exhibit D series which were documents relating to the property in the name of the father tendered by the plaintiff. In respect of exhibit D2 the receipt is in the name of the father because he allowed the father to collect the rents because he was still alive and for his upkeep. In respect to exhibit D, the letter to AMA they allowed their father to use his name because of the respect they had for him and the fact that he was still alive. His explanation in respect of exhibit 3D is noteworthy and deserves quoting:

“With the exhibit D which is the Ghana Water Company receipts as I intimated because my father was an elderly and respected man any Ghana and Water official who came to the house knew that he was the landlord and his name was in the documents, I remember very well that when I was very young I remember that the name of the Ghana Water receipt was Samuel Kwasi Afram and my father decided to change the name to his name Samuel Kwabena Afram because to avert any misunderstanding that may arise because of the number of children he had in the house and that is why the name change from Samuel Kwasi Afram to Samuel Kwabena Afram”.

 

There was this witness called by the defendants whose evidence was to confirm that the defendants and their deceased brother put up the stores. He testified that he was the mason who put up the stores for the 2nd, 3rd defendants and their deceased brother Korankye and the residential extensions they made in the house. He put up the residential extensions in the house on the request of the 2nd, 3rd defendant and Korankye at different times on their request. His evidence covered also how he got to know the three siblings and their father and how he got to know they were funding the construction of the stores. He told the court that by then the 2nd defendant and the husband had tipper truck which provided them sand and stones anytime they were needed. He testified that it was their father, then very old, who pointed out to him where the shops should be erected.

 

It is from these pieces of evidence as summarized above that the trial judge made her findings as to the owner of the land, the residential buildings thereon, the owner of the stores and the capacity of the testator to will the properties in contention.

 

In respect of the claim by the 3rd defendant to ownership of the land based on the exhibit 1 (for the 3rd defendant) the trial judge reasoned that even if the evidence is considered in the light of a gift it was ineffective because there was no publicity of the gift as required by the case law authorities. Granted that there was a valid gift, she concluded that there was evidence the father revoked the gift since he still considered the property as his by the possession and control he had over the property. To the trial judge the will was clear evidence of the revocation of any alleged will. For this conclusion the trial judge relied on the case of Sese vrs Sese (1984-86) 2 GLR166. In negating the documentary evidence of the 3rd defendant, exhibit 1, (for the 3rd defendant) that the property was bought for him, the trial judge resorted to the recitals in the said exhibit. The recitals clearly stated that the land was purchased in 1961 at 40 cedis and the indenture which was being made in 1972 was only to get a deed of conveyance to regularize the 1961 purchase. Since the land was purchased and paid for in 1961 it could not be true that the land was purchased with any monies from church collection in 1972 as the 3rd defendant contended, argued the trial judge. On this issue of whether the father bought the land for the 3rd defendant she concluded

“I find as a fact therefore that the land on which House No. 229/16 Darkuman-Kokompe-Accra was not acquired by the late Kwabena Afram for the 3rd defendant. I also find that even if it had been acquired for the 3rd defendant the gift would have been revoked by the provisions of the will of the late Samuel Kwabena Afram…”

 

Both counsel for the defendants have queried why the trial judge considered the basis of the 3rd defendant’s reliance on exhibit 1(for the 3rd defendant) as a gift inter vivos under customary law, which gift can be revoked by the donor. This is a query that cannot be ignored. For if the transaction the 3rd defendant is relying on is not a customary law gift then different legal considerations may follow. Firstly, let me say that I have examined closely exhibit 1(for the 3rd defendant) which is the same as exhibit C, tendered by the plaintiff. What the recitals convey in fact, is that in 1961 the Mr. Samuel Kwabena approached the Asere Stool for a plot of land. This was given him and he entered into peaceful occupation. For this grant he paid C40.00. He was however not given any conveyance in writing. It was in 1972 he approached the stool for the indenture and same was granted him but in the name of the 3rd defendant. This practice is not unknown in conveyancing circles. Exhibit C or 1 is documentary evidence which is preferable to any oral evidence stating the contrary. The evidence of the 3rd defendant and the mother that the father had to use money from church collection to buy the land for him shortly after he was born in 1972 is clearly not credible and cannot be preferred to this exhibit C, a written document. If the father contacted the Asere Stool in 1961 then it cannot be true, as found by the trial judge that the land was purchased in 1972 with church collection. I will, just like the trial judge, reject the oral evidence in preference to that of exhibit C.

 

It is necessary we note that there exists oral gift that can be made at customary law with the requisites for its validity being witnesses to the transaction/event and publicity of the gift. There is also gift that can be made in writing with witnesses attesting to the gift. Purchase by a father in the name of the son can also be described as a gift even though its legal ramifications vary from the other two modes of making gifts. In fact the authorities refer to such gift as advancement, a specie which evolved from the largess of equity. The existence of certain special relationship between the person who provides the purchase money or who transfers the property and the person in whose name the property is conveyed or transferred gives rise to a presumption of advancement.

 

The father and the son or daughter falls within this special relationship and it is presumed that the father who paid the purchase money and caused its transfer to the son or daughter intended a gift to him or her. It has been held by the authorities that the presumption can be rebutted to show that the purchaser father did not intend any advancement but then the evidence for such rebuttal will have to be contemporaneous to the transaction. Refer to the case of Kwantreng vrs Amassah (1962) 1GLR 241, Ramia vrs Ramia (1981) GLR275. The question then is, in which category do we place the transaction evidenced in exhibit C or 1?. From the recitals the father bought the property in 1961 when the 3rd defendant was not born. It will be an impossible assertion that the father made the purchase for him and in his name in 1961 when he did not exist. The document exhibit 1 does not also show that the father caused what he had already purchased to be transferred in the name of the 3rd defendant after his birth. Advancement and its legal presumptions appear therefore not applicable. The circumstances and the evidence we have in this case is such that exhibit C or 1 can only be described as a gift by the father to the 3rd defendant. By the legal authorities, gifts made by a parent to his child can be recalled at any time depending upon certain circumstances. A quotation from His Lordship Abban in the Sese case is appropriate for my guidance.

“I think it ought to be made clear that what was in the deed of gift, exhibit B, was only the record of a transaction appertaining to a customary gift from father to son. That is, a customary gift which had been evidenced in writing. Thus the mere recording of the gift on writing could not affect its customary nature. It still remained a customary gift and it continued to be subject to the incidents of customary law. Some of such incidents being that:

 

“Every gift when completed is irrevocable, except in gifts between parent and child, which can be recalled or exchanged at any time by the parent in his or her lifetime, or by his will or dying declaration”.

 

See Sabah’s Fanti Customary Laws(3rd ed) at 80-82. In the circumstances, the so called gift, even if it was valid, could still be revoked by the plaintiff’s late father by adopting one of the means stated above. The father did not need any special deed of revocation, specially prepared and couched in any strong language as advocated by learned counsel, before the gift could be revoked. So long as the intention to revoke is clearly and unequivocally expressed by the parent, be it orally or in writing or in a will, the revocation would be effective and would be in accord with customary law. The plaintiff’s late father could therefore revoke the supposed deed of gift by his will; and in my opinion he effectively did so in clause 3 of his will dated 22 July 1979 and admitted to probate by the High Court, Ho on 25 January 1982.

 

Consequently, as I have said, even if it had been held that there was an intention to make an absolute customary gift and the transaction which took place between the plaintiff and his late father was a valid customary gift, that gift was effectively and decisively revoked by the father by his said will”.

 

In the instant case Mr. Samuel Kwabena Afram since the purchase of the land and erecting buildings on it had been in full occupation and control of the property. He considered and described himself as landlord of the house and utility bills were also in his name. When the stores were to be erected his approval was sought. Indeed, it was he who wrote to the AMA for permission to erect the shops.

When the 2nd and 3rd defendants wanted to build their residence on the compound they sought his permission before the construction. The 3rd defendant when he returned from Kanda to settle in the father’s house he was given permission by the father to demolish an existing structure and replace with his two bed room self- contained. And to cap his intention that he did not intend a gift really to the 3rd defendant and that he had recalled it, he willed the properties on the said land as he deemed fit. The 3rd defendant in his evidence told the court that in his early days in the house the father told him he had to change the name with the water company back into his name from that of the 3rd defendant because according to the father, he did not want to create any confusion amongst the children. I believe these are clear acts of the father negating any intention to gift the property to the 3rd defendant or retracting the gift as it were. Having retracted the gift the property re-vest in him to be dealt with as he deemed fit. But there is clear evidence that he permitted the 2nd and 3rd defendants to put up their residences on the land and they have been there since. Being aware that the structures the defendants are erecting were permanent structures it will lie ill in his mouth to terminate their occupation as he deemed fit. These structures shall continue to be in the occupation of the defendants until destroyed. That being the case Mr. Samuel Kwabena Affram has no testamentary capacity to will these properties out to any other persons than the owners. It follows that an order to expunge these properties from the will is the most appropriate which I support we do.

 

One other contested issue which the trial judge found for the plaintiff was who constructed the shops. The trial judge after examining the receipts exhibits 4,5 and 6 tendered by the defendants as evidence of some expenditures they made in the construction of the stores found them not reliable and rejected same. One would have expected the plaintiff, a wife of the house to know much more of the construction of this property than she told the court. Probably she couldn’t because she was always busy on her private trading. We need to recollect that she was not able to tell who and when rents were paid to the husband because she was always busy on her trading. We have evidence that at the time the stores were put up the testator, Mr. Samuel Kwabena Affram was not doing any work but according to the plaintiff he was collecting rents from tenants in the property and he also had a bank account. No evidence was led on how much was in this bank account.

 

Whether she recollects the masons who put up the shops the plaintiff said she could not but she would be able to recognize them if she met them. The mason, Musa Issaka, who was called by the defendants to testify to the fact that he put up all the stores and the residential properties for the defendants mentioned that he knew the plaintiff as the wife of the testator and at the time of the construction of the stores the plaintiff had kids with the testator he wondered why the testator at his age could still have such small kids who will come playing around where he was doing his cement works. Could the testator have maintained the household including these kids from rents he collected from tenants and still constructed this number of shops? On reading the evidence of the mason, Musa Issaka, I found him credible and convincing it was not a surprise he stood at the end of his cross examination unscathed. Pitching the receipts exhibit 4, 5, and 6 to the evidence of the mason I think I will find contrary to what the trial judge did and hold that the stores were built by the 2nd, 3rd defendants and their deceased brother. The evidence on record is that the testator had a lot of children with 6 wives. What could be the reason for him giving these shops to the 2nd, 3rd and their deceased brother Korankyie when he had other children? And as testified by the 2nd defendant, without any challenge, they were not paying any rents to their father. On the evidence in totality it is more probable that it was because the defendants put up the stores that is why they are and were in occupation during the life time of their father. I will set aside the trial judge’s findings that the shops were put up by the testator and in its place make a finding that it was the 2nd, 3rd and Korankyie who put up the stores. The trial judge’s conclusion is not supportable on the facts, hence the need to interfere with it as permitted by the authorities mentioned earlier in this opinion.

 

The trial judge considered the grant made by the testator, if any such grant was made at all, as a licence to the 2nd and 3rd defendants which licence terminated on the death of their father. It is true that the defendants put up the buildings on the land on the permission of their father but to consider this permission as mere licence that can be terminated at any time and on the death of the testator I find not a correct statement of the law. We should be able to distinguish licenses granted for agricultural lands or such similar ventures from grants, call them licenses, made for the construction of permanent structures like buildings. The grantee enters the land and constructs his building and so long as the building remains on the land, it is the expectation that the grantee is entitled to use the land till times unend. It is this type of grant that was made by the father when he allowed them to spend money to put up not only the permanent residential buildings but also the stores, 13 in all.

 

Having come to this conclusion the 1st defendant can now find his way clear in administering the properties of the testator according to his will. I will grant the plaintiff her claim asking the 1st defendant to account for his stewardship so far in the administration to the beneficiaries. The testator, Mr. Samuel Kwabena Afram has the testamentary capacity to Will out all his properties save those we have found were put up by the 2nd, 3rd defendant and their brother Korankyie i.e. the stores and the residential properties they put up during the life time of their father. An order to eject the plaintiff sought for by the 3rd defendant is refused.