In this judgment, the Plaintiffs/Appellants are referred to as “the Plaintiffs”, the 1^st and 2^nd Defendants/Appellants are referred to as “the 1^st Defendant” and “the 2^nd Defendant” respectively, and the 3^rd Defendant/Respondent is referred to as “the 3^rd Defendant”. Also, Plot Nos. 4 and 5, Block II, Bompata, Roman Hill, Kumasi, are together referred to as “the property in issue”.

This judgment is delivered in 2 appeals which are from a judgment of the High Court, Kumasi, dated the 24^th of February, 2016. In the said judgment, the High Court declared in favour of the Plaintiffs that the property in issue formed part of the estate of Rudolph Numo-Baddoo, but declared against them that a portion of the property had become subject to a proprietary interest created in favour of the 3^rd Defendant. The High Court also held the Plaintiffs and their family bound by the terms of an agreement between the 1^st Defendant on behalf of the Numo-Baddoo family and the 3^rdDefendant,  and accordingly restrained the Plaintiffs from interfering with the interest of the 3^rd Defendant in the buildings constructed by her on the property in issue, and from interfering with the quiet enjoyment of the tenants in the buildings. The High Court also rejected the claim of the 1^st and 2^nd Defendants that the building they had erected in front of Plot No. 4, which is a constituent part of the property in issue, was their property or had been validly gifted to them.

The Plaintiffs are grandchildren of the late Rudolph Numo-Baddoo, who died on the 5^th of April, 1946. The 2^nd Defendant is also a grandchild of the late Rudolph Numo-Baddoo, and the 1^st Defendant is the wife of the 2^nd Defendant. The 3^rd Defendant is said to have proprietary interest in the property in issue by virtue of an agreement entered into between her and the 1^st Defendant, acting on behalf of the Numo-Baddoo family for the development of the said property.

The facts that gave rise to the dispute in which the trial Court gave its judgment of 24^th February, 2016 are that in his lifetime, the late Rudolph Numo-Baddoo acquired a lease in respect of the property in issue and developed portions thereof. After the death of the late Rudolph Numo-Baddoo, his wife, Mercy Emelia Baddoo was on the14^th of July, 1948, granted letters of administration in respect of his estate.

Mercy Emelia Baddoo died on the 8^th of March, 1974, and while the Plaintiffs say in their pleadings that at the date of her death, she had not administered the property in issue and that following her death two successive heads of the Rudolph Numo-Baddoo family had put the 1^st and 2^nd Defendants in charge of the management of the said plots, the1st and 2^nd Defendants allege in separate statements of defence that Mercy Emelia Baddoo had given the property in issue to the children of Rudolph Numo-Baddoo, who had subsequently given the said property to them to be developed. According to the 1^st and 2^nd Defendants, in giving the property in issue to them to be developed, the children of the late Numo-Baddoo had provided them with no funds for the purpose.

The 1^st and 2^nd Defendants allege in their separate statements of defence that pursuant to a power of attorney dated 23^rd December, 1991, given them by the head of the Numo-Baddoo family, the 1^st Defendant entered into an agreement with the 3^rd Defendant to develop the property on terms. The 1^st and 2^nd Defendants state again that they also put up a two-storey building on Plot No. 4, being a constituent part of the property in issue, with the consent of the family and the family gifted the portion they had built on to them forever in recognition of their efforts in securing the property for the family.

In disagreement with the 2^nd Defendant, the Plaintiffs contend that the family heads put the 1^st and 2^nd Defendants in charge of the property in issue merely as caretakers and not as persons with authority to develop the property or any portion thereof or to contract any person to develop the property or any portion thereof. The Plaintiffs say that since the 1^st and 2^nd Defendants were put in charge of the property as caretakers, they have not rendered any accounts to the family.

On the 5^th of April, 2012, letters of administration were granted to the Plaintiffs to administer the unadministered assets of the estate of Rudolph Numo-Baddoo but the Plaintiffs allege that in spite of this, the 1^st and 2^nd Defendants have shown an intention to continue to manage the property in issue, which they consider to be part of the unadministered estate of Rudolph Numo-Baddoo. The Plaintiffs say that the 1^st and 2^ndDefendants have made the 3^rd Defendant part of their scheme, in furtherance of their purpose of continuing to manage the property in issue.

As a redress to their grievances, the Plaintiffs sought from the trial Court a declaration that the property in issue formed part of the estate of the late Rudolph Numo-Baddoo, and an order restraining the Defendants from holding themselves out as owners or administrators of the said property or seeking to deal with it in any way, and a further order for the Defendants to render accounts in respect of the said property.

On her part, the 1^st Defendant counterclaimed for declarations that the Plaintiffs are bound by the agreement she entered into with the 3^rd Defendant, that the building she and the 2^nd Defendant had put up on a portion of the property in issue had been gifted to them absolutely by the children of the late Rudolph Numo-Baddoo, and further for an order restraining the Plaintiffs from disposing of or interfering with the interest of the Defendants in the buildings constructed on the property in issue or the quiet enjoyment of the tenants in the buildings. She also claimed damages against the Plaintiffs.

The 2^nd Defendant also counterclaimed against the Plaintiffs for declarations that the two-storey building in front of Plot No. 4 is the property of the 1^st Defendant and himself, that the Plaintiffs and the Baddoo family are bound by the agreement made between the 1^st Defendant and the 3rd Defendant, and for an order restraining the Plaintiffs from enjoyment of the interfering with the tenants’ quiet defendants over the said property, and the rights of the property.

The 3^rd Defendant also filed a statement of defence in which she denied any unlawful involvement in a scheme to deprive the Plaintiffs of their right to administer the property in issue. The 3^rd Defendant stated that sometime in 1993, she was approached by the 1^st Defendant with a request to commit financial resources to a proposed commercial development on the property in issue on which she had been empowered by the 2^nd Defendant’s family to undertake a development. The oral discussion between her and the

1^st Defendant was reduced into a written agreement. In pursuance of the agreement, she caused two storey buildings to be constructed on the property. The family of Rudolph Numo-Baddoo had at all material times been aware of the construction of the building and her control over the same since 1993. She contended that the Plaintiffs were estopped from denying her interest in the property, and also that the Plaintiffs’ action was statute-barred. She also contended that the Plaintiffs were bound by the terms of the agreement she entered into with the 1^st defendant, and, again, that the 3^rd and 4^th Defendants had no capacity to maintain the action. She proceeded to counterclaim against the Plaintiffs for a declaration that the family of Fred Mensah Baddoo is bound by the terms of the agreement dated 8^th March, 1993 between the 1^st Defendant, acting on behalf of the Numo-Baddoo family, and herself, and for an order restraining the Plaintiffs from developing or in any way dealing with the land the subject matter of the action or in any way interfering with her quiet enjoyment thereof.

The Plaintiffs have filed their appeal because they are dissatisfied with the trial Court’s decision granting the 3^rd Defendant’s counterclaim as well as some of the reliefs claimed by the 1^st and 2^nd Defendants in their counterclaim, and the 1^st and 2^nd Defendants have filed their appeal because they are dissatisfied with the trial Court’s rejection of their claim to ownership of the two-storey building built by them in front of Plot No. 4. The judgment appealed from is found at page 685 to page 780 of the appeal record, and the Plaintiffs’ notice of appeal is at page 780E to page 780 G of the same record. The notice of appeal of the 1^st and 2^nd Defendants is found at page 780R to page 780T of the appeal record.

The grounds on which the Plaintiffs are appealing are that, “that part of the judgment that granted the 3^rd Defendant’s counterclaims and, thus reliefs 1 and (ii) respectively of the 1^st and 2^nd Defendant’s counterclaims, was against the weight of evidence”, and that “the trial judge erred in relying on Exhibit 14 as a basis for granting 3^rd Defendant’s counterclaims, and thus reliefs 1 and (ii) respectively of 1^st and 2^nd Defendants’ counterclaims”.

For the 1^st and 2^nd Defendants, their grounds for questioning the judgment of the trial Court are that, the finding by the trial Court that “it was Fred Mensah Baddoo who alone gifted the property customarily to the 1^st and 2^nd Defendants in his personal capacity cannot be supported having regard to the evidence on record”, that the trial Court erred “when it held that the evidence of DW2 and 1^st Defendant in respect of the gifting of the property was conflicting and unreliable having regard to the evidence on record”, and that the Court below “erred when though it admitted the 1^st Defendant had some financial interest in the property, limited it only to the construction and not the re-possession and/or occupation of the land among others having regard to the evidence on record”.

In arguing the Plaintiffs’ first ground, their Counsel reminded this Court that an appeal is by way of rehearing and that every appellate court has a duty to make its own independent examination of the record of appeal. He contended that in the present case, if this Court undertook an independent examination of the record, it was sure to come to a realisation that the record does not support the decision by the trial Court that the family of Fred Mensah Numo-Baddoo is bound by the terms of the agreement executed between the 1^st Defendant and the 3^rd Defendant, and also that it does not support the injunction order made against the Plaintiffs.

Counsel noted that the trial Court held Exhibit 14 as binding on the Numo-Baddoo family because it considered the authority for its execution as having been derived from Exhibit 9, a power of attorney executed by Fred Mensah Baddoo. In the view of Counsel, the trial Court held the terms of the agreement as binding on Fred Mensah Baddoo and the Baddoo family because the Court considered that Fred Mensah Baddoo knew about the agreement (Exhibit 14) and yet did not object to it. Counsel submitted however that an examination of the record would reveal that there is no support whatever for the trial Court’s finding to that effect. Counsel argued that in the face of the Plaintiffs’ insistence that Fred Mensah Baddoo never became aware of Exhibit 14, the 3^rd Defendant’s evidence in particular and the totality of the evidence on record failed to prove Fred Mensah Baddoo’s knowledge of Exhibit 14.

Further, Counsel considered that in arriving at its decision regarding the binding effect of Exhibit 14, the trial Court was influenced to a large extent by the testimony of the 1^st Defendant, which from examination of the record, lacked credibility. In his view, to the extent that the trial Court relied upon the 1^st Defendant’s evidence in granting the 3^rd Defendant’s counterclaim, that grant cannot be sustained, since the facts on which it was based are outweighed by the truth and the evidence on record.

Counsel also noted that the Defendants claimed that one Faustina June Yeboah, a member of the Numo-Baddoo family, used to be going to the building site of the 3^rd Defendant and sought to infer that the family knew about Exhibit 14 and was bound by it. Counsel submitted however that an examination of the evidence in the light of paragraphs 12 and 13 of the 3^rd Defendant’s amended statement of defence and counterclaim would reveal such inconsistencies as would render the Defendants’ position untenable.

Counsel for the Plantiffs contended again that apart from the fact that the trial Court’s basis for holding that Exhibit 14 is binding on the Numo-Baddoo family is not supportable from the record, there was good ground for an inference that Exhibit 14 is not a genuine document. According to Counsel, a careful examination of the record will show that the 3^rd Defendant was unable to prove her claim that she was a timber merchant and had the means to undertake the development done on the property in issue. Counsel submitted that the 3^rd Defendant’s failure in this regard is attributable to the fact that she was not the developer of the property in issue. In the view of Counsel, the entry of the 3^rd Defendant into the case was an afterthought and it was contrived by the 1^st and 2^nd Defendants to use the 3^rd Defendant as their front. In furtherance of this argument, Counsel referred to page 65 of the record and observed that there is a document from the 2^nd Defendant at that page which contains a confession that neither of the developments on the property in issue was done by the 3^rd Defendant. They were rather done by the 1^st and 2^nd Defendants. In the view of Counsel, this establishes beyond doubt that Exhibit 14 is not a genuine document and that the claims that the Baddoo family is bound by it are futile.

Moving on to ground (ii), Counsel contended on behalf of the Plaintiffs that the trial Court erred in relying on Exhibit 14 as a basis for granting the 3^rd Defendant’s counterclaim. In his supporting argument, Counsel noted that the trial Court held that alienation of family property by the head of family without the consent and concurrence of the principal members of the family is voidable and not void. Counsel contended however that, in the present case, the property in issue is not family property, but the self-acquired property of the deceased. Counsel argued that that being the case, Fred Mensah Baddoo, as successor to the immediate Rudolph Numo-Baddoo family, not being the owner of the said property, could not, through an attorney, purport to divest any portion of the said property in the terms contained in Exhibit 14, assuming that document was genuine. In the view of Counsel, assuming that Exhibit 14 was genuine, the decision in Okyere (Decd.) (Substituted by Peprah) Vs. Appenteng & Adoma [2012] SCGLR 65, would apply to the effect that the estate of Rudolph Numo-Baddoo would devolve on the personal representative and until a vesting assent was executed in favour of any beneficiaries, the beneficiaries would have no title to any part of the property. This would mean that on the principle of nemo dat quod non habet, the 3^rd Defendant could not be held to have acquired any interest in the property in issue or any part thereof.

Noting also that Exhibit 14 had not been registered, Counsel argued further that, even assuming the document was genuine, the 3^rd Defendant could not make it the basis of her claim of interest in the property in issue. In the view of Counsel, on the strength of Fianko Vs. Aggrey [2007-2008] SCGLR 1135 (1143-1145), even if it was genuine, Exhibit 14 could not validly create legal obligations.

The Plaintiffs’ view about the development of the property in issue is that the 1^st and 2^nd Defendants undertook construction of a building on portions of the property and they are entitled to reap from the investment. The Plaintiffs do not however consider the development undertaken by the 1^st and 2^nd Defendants as including any development undertaken by the 3^rd Defendant in terms of Exhibit 14. In view of this, the trial Court’s decision in favour of the 3^rd Defendant ought to be set aside while the additional construction or developments undertaken on the property in issue are held as having been undertaken by the 1^st and 2^nd Defendants.

In response to the submissions made on behalf of the Plaintiffs in support of Ground 1 of their appeal, Counsel for the 1^st and 2^nd Defendants said a critical reading of the record would reveal that Fred Mensah Baddoo knew about Exhibit 14 and also that the Baddoo family having stood by and allowed the 3^rd Defendant to develop the property, they could not deny that they had agreed to the development of the property by the Defendants. The evidence shows that Exhibit 14 was sent to Fred Mensah Baddoo and this raises a presumption that he was aware of it and ratified it. The burden was on the Plaintiffs to rebut this presumption but they failed to do so. The overwhelming evidence on record is that the development of the land by the 3^rd Defendant was based on Exhibit 14. Counsel noted that the Plaintiffs did nothing to discredit the 3^rd Defendant’s testimony that Fred Mensah Baddoo confirmed to her that the power of attorney to the 1^st and 2^nd Defendants had been executed by him and that he had personally led her to his lawyer’s office where he introduced her (3^rd Defendant) as the person who had been found to develop the land.

Counsel for the 1^st and 2^nd Defendants countered the Plaintiffs’ contention that the 3^rd Defendant’s testimony was at variance with her pleadings with the contention that the Defendants always maintained that the 3^rd Defendant was a timber merchant and had the requisite resources to finance the project. The mere inclusion of further evidence as to her financial capabilities, which was not objected to, did not set up an entirely different case.

Regarding the Plaintiffs’ contention that Exhibit 14 was not a genuine document, Counsel contended that there is no basis from the record for an inference that the Defendants caused the Plaintiffs to believe that they were the owners in possession of the property. Counsel also rejected the submission by Counsel for the Plaintiffs that Exhibit 14 is an afterthought. In his view, Exhibit 14 rather confirmed the resources secured by the Defendants in developing the plots by engaging the 3^rd Defendant to rehabilitate one of the buildings and the other building from scratch.

In respect of the submissions made by Counsel for the Plaintiffs on the principle of nemo dat quod non habet, Counsel for the 1^st and 2^nd Defendants said that the said principle did not apply in the present case. He explained that Exhibit 14 in the present case, did not convey ownership or title to the properties the subject matter of this suit to the 3^rd Defendant, but is an agreement that merely stipulated terms as to how the 3^rd Defendant was to rehabilitate the property and recoup her expenses incurred during the development of the properties.

Counsel submitted that parties to agreements are bound by the terms of their agreements. He noted that in the present case, Exhibit 14 was executed between the 1^st Defendant as the attorney of the head of family, and the 3^rd Defendant, for the development and rehabilitation of the property in issue and he contended that its terms were binding on the family.

On the question of non-registration of Exhibit 14, Counsel for the 1^st and 2^nd Defendants referred to Oppong Vs. Anarfi [2011] 1 SCGLR 556 and Amuzu Vs. Oklikah [1998-1999] SCGLR 141,and contended that Exhibit 14 was not tendered to prove the 3^rd Defendant’s title to the property but to prove that there was an agreement that authorised the 3^rd Defendant to develop the plots and collect the rents as payments for her services as well as indemnify the owners from any liability during the development. For that purpose, it did not need to be registered in order to be effective.

The 3^rd Defendant, through her Counsel, also argued for the dismissal of the Plaintiffs’ appeal. Regarding Ground 1 of that appeal, Counsel observed that an issue that could be raised under that ground was whether the construction undertaken by the 3^rd Defendant on the property in issue pursuant to Exhibit 14 had been ratified by Fred Mensah Baddoo, the then Head of Family, and was therefore binding on the Numo-Baddoo family.

Counsel noted that the fact that the power of attorney to the 1^st and 2^nd Defendants evidenced by Exhibit 9 was granted by Fred Mensah Baddoo was not in dispute, and its validity was also not in dispute. Counsel noted that Exhibit 9 authorised the 1^st and 2^nd Defendants to develop the property in issue “in whatever manner they deemed fit” and he considered that, in that respect, the power of attorney constituted a valid basis for

Exhibit 14, which was the agreement the 1^st and 2^nd Defendants entered into with the 3^rdDefendant. Counsel contended that the developments which the 3^rd Defendant undertook on the property in issue were pursuant to Exhibit 14 and so long as Exhibit 14 was within the scope of Exhibit 9, the developments were deemed to have been ratified by Fred Mensah Baddoo. Fred Mensah Baddoo did not have to do any specific act before he could be said to have ratified the developments. Counsel emphasised that, from the record, at no point in time, from the 23^rd of December, 1991, when the power of attorney was executed until 1996 when the construction was completed, did Fred Mensah Baddoo revoke Exhibit Exhibit 9 not having been revoked, all acts of development or construction done within its scope during the life of Fred Mensah Baddoo were deemed to be duly ratified by him, by virtue of the ratification clause in Exhibit 9.

Counsel contended further that since Fred Mensah Baddoo executed Exhibit 9 in his capacity as head of family and with the consent of his only sibling alive at the time, Mrs. Faustina June Yeboah, the binding act of Fred Mensah Baddoo as donor of Exhibit 9 was also binding on his successors in title as heads of family and on the Baddoo Family. In the view of Counsel, the developments having been completed before the death of Fred Mensah Baddoo in 1996, the Baddoo Family would not be relieved of their obligations under Exhibit 14.

Arguing further against Ground 1 of the Plaintiffs’ appeal, Counsel noted that at all times material to the action, the Baddoo Family and the Plaintiffs were aware of the construction of a two-storey commercial property on the property in issue from 1993 to 1996. Counsel argued that in spite of this knowledge, the family never raised any objection to the construction and the development of the property in issue. The Plaintiffs were therefore estopped by laches and acquiescence from denying the interest of the 3^rd Defendant in the property in issue.

In opposing Ground 2 of the Plaintiffs’ appeal, Counsel for the 3^rd Defendant contended that after the death of Rudolph Numo-Baddoo, the property in issue became family property, even though it had originally been a self-acquired property. Exhibit 14 was therefore binding on the Numo-Baddoo family and all descendants of Rudolph Numo-Baddoo. The trial Court was therefore not in error when it held that upon the death of Rudolph Numo-Baddoo, the propery had become family property and that Fred Mensah Baddoo, who was a son of Rudolph Numo-Baddoo and the then head of the Numo-Baddoo family, had capacity to execute Exhibit 9 and consent to Exhibit 14.

On the question of non-registration of Exhibit 14, Counsel for the 3^rd Defendant noted that that document is an instrument affecting land and acknowledged that it is a registrable instrument. He was of the view, however, that the important question to consider here is the effect of non-registration. Counsel contended that it is not the fact of registration that gives validity to an instrument that transfers an interest in land. In his view, registration may give security of title to an assignee or vendee or lessee, but it would not necessarily guarantee title to the registrant. Counsel cited the Supreme Court case of Wiafe Vs. Bortey and Another [2017] 104 GMJ 161 and contended that even though Exhibit 14 had not been registered, the non-registration did not forfeit the 3^rd Defendant’s title or interest in the commercial building she constructed.

Counsel contended further that in view of the fact that the Plaintiffs were aware of the construction of a two-storey commercial property on the property in issue by the 3^rd Defendant from 1993 to 1996 but raised no objection, on the strength of Nartey Vs. Mechanical Lloyd Assembly Plant Limited [1987-88] 2 GLR 314, equity would not permit the Plaintiffs to use registration to overreach the interest of the 3^rd Defendant. Like the 1^st and 2^nd Defendants, therefore, the 3^rd Defendant has invited this Court to dismiss the Plaintiffs’ appeal as having no merit.

As we have noted above, in the main, the Plaintiffs are in their appeal asking this Court to set aside that part of the judgment of the trial Court which granted the counterclaims of the 3^rd Defendant (which are the same as reliefs 1 and (ii) respectively of the 1^st and 2^nd Defendants). In respect of that part of the judgment, among the arguments advanced in support of the appeal was that the developments undertaken on the property in issue and attributed to the 3^rd Defendant were not in fact undertaken by the 3^rd Defendant but were done by the 1^st and 2^nd Defendants who were merely using the 3^rd Defendant as a front. My examination of the record has however not yielded any support for this argument and I reject the same on that account.

It was also part of the Plaintiffs’ contention underground (ii) of their appeal that Fred Mensah Baddoo, as head of the Baddoo family, had no capacity to grant to any person any rights or duties in respect of the property in issue because the property in issue was the self-acquired property of the late Rudolph Numo-Baddoo, and the head of family had no control over it. I do agree with the Plaintiffs that, from the facts, the property in issue was the self-acquired property of the late Rudolph Numo-Baddoo. But it is trite learning that the self-acquired property of a person who dies intestate becomes the property of his family, his immediate family being the immediate beneficiaries thereof.

In his book, The Law of Testate and Intestate Succession in Ghana, (Sweet and Maxwell, 1966), the eminent jurist, Ollennu, describes the family as “the social group into which a person is born”. This social group, Ollennu explains, consists of all persons “lineally descended from one common ancestor, male or female, who, in ancient times, together occupied the house or compound in which a child first finds itself in this mortal world”. Regarding the headship of this social group, Ollennu states that the oldest member of the family, male or female, “of the most senior generation is head”, and his formal election or appointment is not an absolute necessity.

If we accept this definition of “family” by Ollennu and his view regarding headship of the family, we cannot deny, from the settled facts in the present case, that Fred Mensah Baddoo, as a son of Rudolph Numo-Baddoo, was a member of the immediate family of Rudolph Numo-Baddoo, and as the oldest surviving member of that family at the time Exhibits 9 and 14 were made, was the head of that family.

The view that the self-acquired property of a person who dies intestate becomes family property is confirmed by Sarbah in his book, Fanti Customary Laws, where he states that any privately acquired property of a family member that “remains undisposed of at his death, descends to his successors as ancestral property”.

Regarding the nature and extent of the power or authority of the head of family over or in respect of the ancestral property, Sarbah writes in Fanti Customary Laws (supra), that the head of family, whom he calls penin, is “the guardian of every member within the family”, with capacity to sue or be sued in respect of any claims on the family possessions. According to Sarbah, the head of family commands the respect and loyalty of members of the family and they are bound to obey his lawful commands. It is he who arranges the rooms in the family residence to be allocated to each, and what portions of the family lands each is to cultivate or possess.

Sarbah writes further that without the permission of the head of family, a family member in possession of family property may not make improvement or addition to such property. He states that a person, “whether member of the family or otherwise in possession of stool, ancestral or family property, wishing to improve or make an addition thereto, must apply to or inform the stool-holder or head of the family for his permission so to do, and if no objection is raised, he acquires a right to the prior enjoyment of the improvement or addition so made, which is not liable to be sold for a stool or family debt so long as other property is available, otherwise not; for it is not lawful for persons to ignore the stool holder or the head of family and deal with the property as if it were their own absolutely”.

My conclusion on this issue is that the self-acquired property of the late Rudolph Numo-Baddoo became family property upon his death intestate. That part of the estate that was left unadministered when the administratrix of the estate, Mrs. Mercy Baddoo, died in 1974 was family property and was under the authority and control of the head of family. I accordingly reject the “self-acquired property” argument put forward by the Plaintiffs and dismiss the same.

Another argument advanced on behalf of the Plaintiffs in support of their appeal is that Exhibit 14 has not been registered and the 3^rd Defendant cannot therefore make it the basis of her claim of interest in the property in issue. Counsel for the Plaintiffs considers that section 24 (1) of the Land Registry Act (Act 122), provides support for this argument. It is to be noted however that what section 24 (1) of the Act says about an unregistered registrable instrument is that “it shall not have effect until it is registered”. Not having effect “until it is registered” does not amount to rendering the document a nullity, or useless for all purposes. If it provides evidence of a transaction which does not require registration in order to be effective, there should be no reason for its rejection on ground of non-registration. In the present case, I think Exhibit 14 provides evidence of a transaction that does not require registration in order to have effect. The Plaintiffs’ “non-registration” argument is therefore rejected.

It was also contended on behalf of the Plaintiffs that the developments said to have been undertaken by the 3^rd Defendant on the property in issue had not been subsequently ratified and could therefore not be acknowledged as acts done on proper authority. In response to this contention, Counsel for the 1^st and 2^nd Defendants has argued that the developments which the 3^rd Defendant undertook were in pursuance of Exhibit 14 and that so long as Exhibit 14 was within the scope of Exhibit 9, the developments were deemed to have been ratified by Fred Mensah Baddoo, the donor under Exhibit 9. Counsel for the 1^st and 2^nd Defendants has submitted that all acts of development or construction done within the scope of Exhibit 14 were deemed to be duly ratified by Fred Mensah Baddoo within the ratification clause in Exhibit 9.

Counsel for the 1^st and 2^nd Defendants considers that acts of development done within the scope of Exhibit 14 are binding because they are deemed to have been ratified. The way I will put it however is that, such acts are binding because they do not require ratification to be binding.

It is noted that in Exhibit 9, in four paragraphs, Fred Mensah Baddoo, as head of the Baddoo family, set out to give specific tasks and responsibilities to the 1^st and 2^nd Defendants, described therein as “true and lawful attorneys”. The powers and authorities that go with the performance of those tasks and responsibilities were also conferred on the 1^st and 2^nd Defendants. Exhibit 9 shows on its face that it was executed on 23^rd December,

1991 and this means that from the said date, the 1^st and 2^nd Defendants’ duty to perform the tasks and responsibilities and the powers and authorities necessary for their performance became operative. From that date, any act performed by the 1^st and 2^nd Defendants within the terms of the four paragraphs was an act performed by them on behalf of Fred Mensah Baddoo as head of the Baddoo family. Any such act did not require ratification in order to bind Fred Mensah Baddoo as head of the Baddoo family.

In the context of this discussion, to “ratify” an act or action is to confirm or adopt that act or action where it was not pre-approved or was not authorised. Ratification in our context, occurs in a principal – agent relationship, where the principal gives his approval to an act of his agent done without authority. Since the act of the agent was done without authority, it needs ratification or approval by the principal in order to be binding on the principal.

In the case before us therefore, it is an act done by the 1^st and 2^nd Defendants which, though lawful, is outside the terms of the four paragraphs in Exhibit 9 that would require ratification in order to be binding on Fred Mensah Baddoo and his family. In my view, it is to take care of the possibility of such an act being done that the ratification clause in Exhibit 9 has been inserted. If the agreement entered into in Exhibit 14 and the acts done thereunder were mandated by the four paragraphs in Exhibit 9, or any of them, that agreement and those acts do not need ratification in order to be binding on Fred Mensah Baddoo and his family.

In the context of this discussion, “deemed” used by Counsel for the 1^st and 2^nd Defendants in his submission means treating something as if “it were something else”, or as if “it had qualities it does not have”. (See Black’s LawDictionary, 8^th Edition). But, as observed above, the point in issue here is whether the execution of Exhibit 14 was mandated by the four paragraphs set out in Exhibit 9 or any of them. If it was, then the question is not one of the act being “deemed” to be ratified; it is a question of ratification not being required. To emphasise the point, when in the ratification clause in Exhibit 9 Fred Mensah Baddoo undertook “to ratify whatsoever my attorneys or attorney shall lawfully do or cause to be done in the premises”, he was not saying that acts done by his attorneys within the terms of Exhibit 9 would need to be ratified by him in order to be binding on him; he was talking about acts they may do which, though lawful, may fall outside their mandate under Exhibit 9.

Now, I proceed to consider the Plaintiffs’ objection to the trial Court’s decision that Exhibit 14 is binding on the Baddoo family based on what the Plaintiffs consider to be the trial Court’s unsatisfactory assessment of the evidence. Much of the evidence regarding the circumstances in which Exhibit 14 was made is gathered from the testimony of the 1^st Defendant. In her testimony, the 1^st Defendant told the trial Court that there was a period of time when the property in issue was being managed on behalf of the Baddoo family by a firm of solicitors, known as J.J. Peele & Associates. She said somewhere between 1985 and 1987, the father of the 2^nd Plaintiff who was then the head of the Baddoo family, by letters, particularly Exhibit 6, instructed J.J. Peele and Associates to enter into negotiations with her husband, the 2^nd Defendant, with a view to having her husband rehabilitate the premises and also develop the property in issue. The witness said, to meet the responsibility entrusted on him by this request, her husband started looking for financiers. None of the prospective investors he contacted was however prepared to enter into any financial arrangement with him on the basis of Exhibit 6.

Then in 1991 or thereabout, following the death of the 2^nd Plaintiff’s father, the authority of her husband to rehabilitate and develop the property in issue was reaffirmed in two letters to J.J. Peele and Associates from a principal member of the Baddoo family, Baron Baddoo. The letters were tendered and received in evidence as Exhibits 7 and 8 respectively. The 2^nd Defendant was outside the country at the time and in Exhibit 8, the witness (1^st Defendant) was introduced to J.J. Peele and Associates as the person who would carry on with the duties the 2^nd Defendant started performing in respect of the property in issue. The witness testified that, still, none of the prospective investors she contacted felt comfortable with investing in the property in issue on the basis of the contents of Exhibits 7 and 8. She said on the advice of J.J. Peele and Associates, she contacted Fred Mensah Baddoo who was the head of the Baddoo family at the time and showed him all the documents she had in respect of the mandate her husband and herself had received from previous heads of family for the rehabilitation and development of the property in issue. She said Fred Mensah Baddoo and his sister Mrs. Faustina June Yeboah then took her to J.J. Peele and Associates and formally introduced her to the solicitors and asked them to give her any necessary assistance regarding the rehabilitation and development of the property in issue. To confirm the mandate of the 2^nd Defendant and herself regarding the rehabilitation and development of the property in issue and enable them to execute that mandate, it was agreed that the head of family would execute a power of attorney in their favour. The power of attorney executed to serve this purpose is Exhibit 9.

The witness testified that with Exhibit 9, she renewed the search for prospective financiers and this renewed search eventually brought her into contact with the 3^rd Defendant, whose terms for investing in the property in issue she considered reasonable. She said after consulting with the 2^nd Defendant and Fred Mensah Baddoo, the head of family, about the terms poposed by the 3^rd Defendant, she entered into Exhibit 14 with the 3^rd defendant. She said Baron Baddoo and Mrs. Faustina June Yeboah, who were both children of the late Rudolph Numo-Baddoo, agreed to the terms contained in Exhibit 14 and she testified further that when Exhibit 14 was executed, a copy was placed at the office of the family’s solicitors and a copy was sent to the head of family, Fred Mensah Baddoo.

The witness also said the 3^rd Defendant started working on the property in issue under Exhibit 14 in early 1993 and that during the time when the 3^rd Defendant’s development activities as well as those of the 2^nd Defendant and herself on the property in issue were going on, Mrs. Faustina June Yeboah was a frequent visitor at the premises.

Apart from the 1^st Defendant’s testimony, the evidence of the Managing Partner of J.J. Peele and Associates, Oheneba Agyeman Badu, may also be considered in respect of the circumstances in which Exhibit 14 was executed. The Managing Partner testified as DW. 1, and he told the trial Court that sometime in 1975, at which time his firm was in charge of the management of the property in issue, the 1^st and 2^nd Defendants came to his office with Exhibits 6 and 7, which were letters from the late Numo-Baddoo. He said the 1^st and 2^nd Defendants introduced themselves as persons who had been authorised to manage the property in issue. He said they visited the property in issue, where they observed the presence of squatters. He explained during cross-examination by Counsel for the 3^rd Defendant that Fred Mensah Baddoo and a sister of his, whose name he could not remember, and the 1^st Defendant were the persons he visited the property in issue with. He said they saw squatters on the land on that occasion. He also testified that he received Exhibit 9, the power of attorney from Fred Mensah Baddoo to the 1^st and 2^nd Defendants, and the donees of the power of attorney, that is the 1^st and 2^nd Defendants, instructed his firm to eject the squatters from the property. He also said the 2^nd and 3^rd Defendants brought Exhibit 14 to him and the 2^nd Defendant introduced the 3^rd Defendant as a person she had entered into an agreement with for the development of the property in issue. He confirmed during his cross-examination by Counsel for the 3^rd Defendant that John Nii Armah whose name appears in Exhibit 14 as a witness for the 1^st Defendant was a clerk in his firm.

In her testimony, the 3^rd Defendant identified Exhibit 14 as embodying the agreement she reached with the 1^st Defendant for the development of the property in issue. She said before she entered into Exhibit 14 with the 1^st Defendant, Fred Mensah Baddoo had confirmed to her that Exhibit 9 had been made by him. She said Fred Mensah Baddoo personally led him to the property in issue and also to his lawyer’s office, where she was introduced as the person the 1^st Defendant had found for the development of the property in issue. She said when Exhibit 14 was made, a copy was given to Fred Mensah Baddoo, who requested that a copy be sent to his lawyer’s office. She said in compliance with the request of Fred Mensah Baddoo, a copy of Exhibit 14 was sent to the office of his lawyer. She said she started working on the property in issue in 1993 and completed the construction in 1995. She said during this period, Faustina June Yeboah came to the property in issue at least twice. She said Mrs. Faustina June Yeboah never raised any objection to the development of the property in issue by her. Rather, the first time Mrs. June Yeboah visited the construction site, she commended her for the work done.

These then are the facts as to the circumstances in which Exhibit 14 was made, and the question is, do they provide reasonable support for the trial Court’s decision that the document is binding on the Baddoo family? I have critically considered the trial Court’s assessment of the facts, particularly as they relate to the making of Exhibits 9 and 14, and I have also carefully followed the reasoning that guided the trial Court to its decision that the Baddoo family is bound by the agreement evidenced by Exhibit 14. In neither of these endeavours have I found justifiable grounds for disturbing the trial Court’s decision that the Baddoo family is bound by Exhibit 14, or the decision that the 3^rd Defendant is entitled to the reliefs claimed by her under her counterclaim.

I cannot say from the judgment that the trial Court reached its decision arbitrarily, and as cases like Martin Nortei Codjoe Vs. Emmanuel Kwatchey & Others, 2 WACA, Praka Vs. Ketewa [1964] GLR 423, and Bonney Vs. Bonney [1992-93] GBR 779, have emphasised over the years, as regards findings of fact, it is imperative that appellate courts defer to trial courts. One great advantage a trial court has over the appellate court as regards evaluation of facts is that, unlike the appellate court, the trial court has had the opportunity of witnessing the demeanour of the witnesses as they testify, and is therefore in a better position to do true justice between the parties in its assessment of the probability that a witness is being cagey or candid. The appellate court will therefore exercise great caution in deciding to disturb findings of fact made by the trial court. It will not do so unless those findings have been clearly shown to be wrong, or shown to be wrong inferences drawn from admitted facts or from the facts found by the trial court.

In the process of assessing the evidence, the court may be confronted with inconsistencies in the testimonies of witnesses. And it is obvious that in going through that process, a trial Court, before which the witnesses testified and which observed their demeanour and behaviour, will be better placed than an appellate court to sift the evidence and, in the midst of the inconsistencies, identify where the truth lies. In the present case, reading the judgment of the trial Court in the light of the evidence gave me the impression that the trial Court took proper advantage of its position as a court of first instance and drew conclusions based on the view it formed about the credibility of the witnesses. In my view, the record provides reasonable support for the trial Court’s decision that Exhibit 14 is binding on the Baddoo family and therefore that the 3^rd Defendant is entitled to the reliefs claimed under her counterclaim. It means that the Plaintiffs’ appeal lacks merit and the same is accordingly dismissed.

The appeal filed by the 1^st and 2^nd Defendants may now be considered. The contention under Ground 1 of this appeal is that the finding by the trial Court that it was Fred Mensah Baddoo alone who gifted the property customarily to the 1^st and 2^nd Defendants and did so in his personal capacity is not supported by the evidence.

Arguing this ground, Counsel for the 1^st and 2^nd Defendants noted that Fred Mensah Baddoo was at the time the head of family of the late Numo-Baddoo’s immediate family. For that reason, any gift he made would have been made in his capacity as head of family and not in his personal capacity. He said this was clear from the words used by him when the gift was being made. In his view, there is no scintilla of evidence to suggest that the gifting was done by Fred Mensah Baddoo in his personal capacity.

Ground 2 of the appeal contends that the trial Court erred when it held that the evidence of DW. 2 and that of the 1^st Defendant in respect of the gifting of the property were in conflict and were unreliable, having regard to the evidence on record. Arguing this ground, Counsel contended that contrary to what the trial Court conceived as inconsistencies between the 1^st Defendant’s evidence and that of DW.2, from the evidence, particularly Exhibits 8 and 10, the 1^st Defendant’s evidence was in line with that of DW.2.

Taking the evidence regarding the gifting of the property for example, Counsel pointed out that the evidence showed that the gifting was done in the Adabraka house of the late Numo-Baddoo, that apart from Fred Mensah Baddoo and the 1^st Defendant, Auntie Faustie, Baron Baddoo and DW.2 were also present, and that the acceptance was done in the presence of the same persons. In the view of Counsel, if there were any inconsistencies, they were minor inconsistencies which should not negate the other ingredients of a valid gift which were largely satisfied. Counsel’s submission therefore was that the evidence on record, whether that of the 1^st Defendant only or the 1^st Defendant and DW.2, or the Defendants collectively, proved the essentials of a valid customary gift.

Under Ground 3, the 1^st and 2^nd Defendants contend that the trial Court erred when, though it admitted that the 1^st Defendant had some financial interest in the property, it limited that interest to only the construction of the property. In arguing this ground, Counsel explained that it had been put forward to provide a basis for the alternative relief sought by the 1^st and 2^nd Defendants in the appeal that if the Court does not hold that there had been a gift, then an order should be made for a valuation to be made as to the time and energy expended by the 1^st Defendant on the project. Counsel noted that the valuation ordered by the trial Court was premised only on the 1^st Defendant’s financial interest in the construction of the property. Counsel considered however that apart from the fact that the Defendants had expended a lot of money on the structure which was subsequently gifted to them, the Defendants also testified as to some other expenses which were incurred and which the trial Court did not include in its further orders of valuation.

For instance, the 1^st Defendant, at some monetary and time expense, litigated to get tenants out of the property, and also paid property bills which had accrued for over 20 years. The evidence on these had not been challenged and therefore if the position of the trial Court was that there had been no gift of the property, then it should have taken account of the 1^st Defendant’s time, energy and expense during the ejection and eviction of the tenants or squatters as well as the property bills in making its valuation order. If this Court therefore takes the view that the property was not gifted to the Defendants, then it should order that the valuation of the property should include the Defendant’s time, energy and expense incurred prior to the construction of the building, which included the ejection of the squatters, the property bills, etc.

In respect of Ground 1 of the 1^st and 2^nd Defendants’ appeal, Counsel for the Plaintiffs contended that in a situation where the letters of administration had been taken in respect of the estate of Rudolph Numo-Baddoo, there could be no denying that Fred Mensah Baddoo, whether in his individual or representative capacity, had no title over any part of the property in issue. Counsel argued that, assuming therefore that the claim of a gift were true, on the principle of nemo dat quod non habet, Fred Mensah Baddoo, in whatever capacity, could not have validly made such gifting and any attempt in that respect should have been null and void.

In response to Ground 2 of the 1^st and 2^nd Defendant’s appeal, Counsel for the Plaintiffs referred to various parts of the appeal record which in his view exposed inconsistencies between the evidence of DW. 2 and that of the 1^st Defendant and submitted that there is no merit in that ground. Counsel observed that the inconsistencies identified were not just minor inconsistencies, but major inconsistencies that shattered the very foundation of the claims by the 1^st and 2^nd Defendants, and which extinguished the said claims. Counsel submitted further that the 1^st and 2^nd Defendants’ claim of gift was an afterthought which turned out to stand in conflict with all the claims which they had previously made relating to their claimed interest in the property in issue.

Regarding Ground 3 of the 1^st and 2^nd Defendants’ appeal, the view of Counsel for the Plaintiffs was that allowing that ground would amount to allowing the 1^st and 2^nd Defendants to obtain through the backdoor a relief they were not entitled to for having failed to satisfy the legal requirements for the grant of that relief. Counsel contended that the claim for expenses incurred on litigation was, in substance, a claim for damages and special damages which had been camouflaged to avoid satisfying the condition precedent for the grant of special damages. In the view of Counsel, to the extent that the 1^st and 2^nd Defendants were seeking the relief without having particularised same, they failed completely to meet the legal requirements and that claim ought to be dismissed.

By paragraph 4 (i) of their notice of appeal, the 1^st and 2^nd Defendants are seeking a reversal of the trial Court’s decision that they are not the owners of the storey building constructed by them on the property in issue, and by sub-paragraph (ii) of paragraph 4, they are seeking a reversal of the trial Court’s decision that the said property was not gifted to them by the family of Rudolph Numo-Baddoo. As an alternative to sub-paragraphs (i) and (ii) of paragraph 4, the 1^st and 2^nd Defendants are seeking an order that

“an interest and/or valuation also be made on the time, energy and expenses incurred by the 1^st Defendant during litigation over the land from squatters and reclaiming and/or repossessing of the entire land from the chief of Asem”.

Under both sub-paragraphs (i) and (ii) of paragraph 4, the 1^st and 2^nd Defendants are seeking the reversal of a decision which they say has aggrieved them by denying them a declaration as to their ownership of the storey building constructed by them. The grievance is a single grievance (the refusal of the trial Court to declare them owners of the storey building), and the relief being sought to address this single grievance is also one and the same relief of setting aside or reversing the trial Court’s unwelcome decision. In the circumstance, I find the 1^st and 2^nd Defendants’ prayer under two separate heads for one and the same relief as redress for one and the same grievance uncalled for and I will therefore merge the two sub-paragraphs. Having done so, apart from the alternative relief,

I understand the 1^st and 2^nd Defendants, in this appeal, to be praying for the setting aside of the decision of the trial Court refusing to declare them owners of the building they constructed in front of Plot No. 4.

Regarding the refusal to declare them owners of the building, it is noted from the judgment that it was based on the trial Court’s view that the evidence of DW. 2 in respect of the gift was unreliable and had to be viewed with suspicion, and its further view that, having regard to the 1^st Defendant’s testimony as to how the gift was made, Fred Mensah Baddoo did not have capacity to make the gift. In the view of the trial Court, from the testimony of the 1^st Defendant, the words attributed to Fred Mensah Baddoo while making the gift suggest that he was gifting the property in his personal capacity. In his personal capacity, however, he had no power or authority to make a gift of family property.

The trial Court noted that while the 2^nd Defendant was a member of the Baddoo family and therefore had a life interest in the building constructed, the 1^st Defendant was not a member of the family and did not have such an interest in the property. To address the injury that the 1^st Defendant stood to suffer in the circumstance, the claim by her and the 2^nd Defendant to be declared owners of the property having failed, the trial Court made an order appointing the Regional Valuer to value the property in accordance with terms specified in the judgment to enable the 1^st and 2^nd Defendants to recoup their financial investment in the property, after which the property would revert to the Numo-Baddoo family.

I have read closely the testimony of DW. 2 regarding the gift and, acknowledging that the trial Court is better placed to decide justly on facts in the midst of inconsistencies, I will defer to the trial Court’s decision holding the testimony of DW. 2 in respect of the gift as unreliable. But this still leaves the testimony of the 1^st Defendant to be considered on that issue. So, what about the decision of the trial Court that the words in which Fred Mensah

Baddoo is said to have made the gift suggest that he was giving the property to the 1^st and 2^nd Defendants in his personal capacity?

I think this Court is entitled to look at those words and make a determination whether taking all the relevant circumstances into account, Fred Mensah Baddoo is to be seen as having made the gift in his personal capacity. This, indeed, is an exercise the 1^st and 2^nd Defendants are demanding of this Court by Ground 1 of their appeal, in which they say that the decision that “it was Fred Mensah Baddoo who alone gifted the property customarily to the 1^st and 2^nd Defendants in his personal capacity cannot be supported having regard to the evidence on record”.

The words in which Fred Mensah Baddoo is said to have made the gift are: “Nursing mother, you have done well for us. I bless this for you and your husband perpetually”. Fred Mensah Baddoo was the head of family, and this statement is said to have been made by him in the presence of his siblings, except Bertha. So reading the statement in this context and bearing in mind the role and powers of the head of family, would that statement be one made in the personal capacity of Fred Mensah Baddoo? It is true that the blessing of the property for the 1^st and 2^nd Defendants was expressed in the first person singular. I do not however think that the significance of the words, “you have done well for us” should be lost on us. He clearly saw himself to be speaking for the family and not for himself, and he did so in the presence of the surviving elders of the family, except Bertha. In my view, in the context we have in the present case, the words attributed to Fred Mensah Baddoo are words in which a head of family intending to make a gift on behalf of his family can validly give effect to that intention, and I hold accordingly.

But an offer so made on behalf of the family, without more, does not constitute a valid gift under customary law. In Yoguo v. Agyekum [1966] G.L.R. 482, Ollennu described a valid gift under customary law as “an unequivocal transfer of ownership by the donor to the donee, made with the widest publicity which the circumstances of the case may permit”. Ollennu stated further in that case that the publicity required had to be made “in the presence of independent witnesses, some of whom should be members of the family of the donor who would have succeeded to the property if the donor had died intestate and, also, in the presence of members of the family of the donee who also would succeed to the property upon the death of the donee on intestacy”. It was also essential for the donee to acknowledge the gift by the presentation of drink or other articles to the donor.

This position of Ollennu has however been criticised in a number of judicial decisions and the present state of the law seems to be as expressed by the Supreme Court in the case of In re Suhyen Stool; Wiredu & Obenewa Vs. Agyei & Others [2005-2006] SCGLR 424 (435). This position is that:

i) there must be a clear intention on the part of the donor to make a gift; publicity must be given to the making of the gift; and

iii) the donee must accept the gift by himself giving thank-offering or conventional aseda, or by simply using and enjoying the gift.

From my reading of the words attributed to Fred Mensah Baddoo in the present case, the first requirement has been met. It is also my view, from the testimony of the 1^st Defendant, that the publicity requirement was met. What calls for some discussion is the third requirement. The trial Court was of the view that the donee ought to be present at the ceremony where aseda is presented. This would suggest that the trial Court considers aseda in the conventional sense to be essential. However, as is noted from In re Suhyen Stool (supra), the donee “simply using and enjoying the gift” would in an appropriate case be considered as having performed aseda.

We may also consider the case of Anaman Vs. Eyeduwa [1978] 1 GLR 114, where it had been argued on behalf of the appellant that the respondent did not accept the gift in the manner required by custom because she failed to give aseda. In that case, this Court acknowledged that the respondent did not give aseda in the conventional sense of immediately presenting a gift to the donor. This Court however took note of the fact that the donee had paid a debt owed by the donor to the local council and had, furthermore, entered possession of the farm, the subject matter of the gift and was in enjoyment of it. This Court, per Apaloo CJ observed in that case that: “The user of the gift is one of the customary modes of acceptance, and even if her payment of her husband's debt did not amount to aseda, she customarily accepted the gift by using and enjoying it”.

In the present case, by Exhibit 9, the 1^st and 2^nd Defendants were entrusted with a number

of responsibilities in respect of the property in issue and we learn from the 1^st Defendant’s testimony that on the occasion of the making of the gift, the head of family expressed the family’s appreciation for their invaluable work which had saved the family property from going waste. In other words, the head of family acknowledged the efforts of the 1^st and 2^nd Defendants in securing the property for the family.

The 1^st Defendant also testified that when it came to her attention through a newspaper advertisement that certain persons intended to sell the property, she was agitated and enquired from the 2^nd Defendant whether, to his knowledge, the family was involved in the advertised sale. To stop the advertised sale, they wrote in protest to the lawyers responsible for the advertisement and, eventually, the intended sale was abandoned.

It is obvious that it was the interest the 1^st and 2^nd Defendants knew they had in the property that moved them into taking steps to stop the advertised sale and, in my view, their reaction is indication of their acknowledgment, subsequent to the making of the gift, of the special interest they had in the property. To my mind, the first and second requirements of a gift having been met as held above, this subsequent conduct of the 1^st and 2^nd Defendants in respect of the property can only mean and demonstrate their acceptance of the gift, though not in the conventional sense. On the evidence, therefore, I find and hold that the 1^st and 2^nd Defendants are the owners of the two-storey building constructed by them in front of Plot No. 4 of the property in issue, the said building having been validly gifted to them under customary law.

From the views expressed and the determinations made above, it follows that the decision of the trial Court that Fred Mensah Baddoo gifted the property to the 1^st and 2^nd Defendants in his personal capacity is not supported by the record, and that Ground 1 of the 1^st and 2^nd Defendant’s appeal has succeeded. Ground 2 of the appeal has however failed, this Court having agreed with the trial Court that the evidence of DW. 2 is unreliable. The decision that the 1^st and 2^nd Defendants are the owners of the two-storey building constructed in front of Plot No. 4 also renders the order of the trial Court appointing the Regional Valuer to value the said property unnecessary and this in turn renders consideration of Ground 3 of the appeal unnecessary.

In conclusion, the appeal of the 1^st and 2^nd Defendants has succeeded to a large extent.

That part of the judgment of the trial Court denying the gift to the 1^st and 2^nd Defendants of the two-storey building constructed by them in front of Plot No. 4 and also denying their ownership of the said property is hereby set aside. The order of the trial Court restraining the Plaintiffs and their servants or agents or assigns from interfering with the quiet enjoyment of the tenants on the said property and the rights of the Defendants over the said property is however affirmed, save that the words, “until the same reverts to the Baddoo Family” concluding the said restraining order shall be and are hereby deleted. The order of the trial Court appointing the Regional Valuer to value the said property is hereby set aside.

{SGD}

K. N. ADUAMA OSEI

[JUSTICE OF APPEAL]

{PRESIDING}

{SGD}

I AGREE                                                                    SENYO DZAMEFE

[JUSTICE OF APPEAL]

{SGD}

I ALSO AGREE                                               MARGARET WELBOURNE (MRS.)

                [JUSTICE OF APPEAL]