The Plaintiffs commenced this action against the first Defendant on 29^th September, 2017. The writ was later amended to include the second Defendant. The reliefs sought by the Plaintiffs are:

a)    A declaration by the honourable court that the indenture with Registration number 2976/1982 purporting to cover a gift in favour of Mr. Charles K. Annan is void and of no legal effect.

b)    An order of the Court to cancel the registration.

c)    Expunge the transaction

d)    Perpetual Injunction restraining the said Charles K. Annan, his assigns and representatives from dealing with the property.

e)    Damages for trespass

f)     Any other order/orders that the honourable court will deem fit.

g)    Costs

When the Defendants could not be served, the Court ordered that they be served by substituted service. The Plaintiffs applied and successfully obtained an interlocutory judgment against the two Defendants on 12^th April 2018. The Defendants were not personally served with the Plaintiff’s writ.

The case of the Plaintiff

The first and second Plaintiffs are retired educationist and army officer respectively. The Plaintiffs are siblings and the only surviving beneficiaries under their late father’s will. It is their case that their late father, Mr. Edward Oti Ankrah owned property number 361/8 Block 7 (W2), New Mamprobi in Accra. The said property was registered as number 1541/1960 with the Land Registry. Mr. Edward Oti Ankrah devised the property to the Plaintiffs and all their siblings as tenants in common in his last will and testament dated 4^th November 1983. The father of the Plaintiffs expired on 8^th March 1990. The property was vested in them as the only surviving beneficiaries. It is the case of the Plaintiffs that they have been in possession of the property in dispute since its construction by contributing to it financially. The Plaintiffs have since the death of their father rented out the property to tenants without any let or hindrance from any person including the Defendants. According to the Plaintiffs, in the year 2016 they decided to sell the property. When the prospective purchaser conducted a search at the Lands Commission to verify their title in the property, they were shocked with the results. The first Defendant who is never known to them or is associated with the property in any way has his name registered as a donee of the property from their father.

The first Defendant had allegedly mortgaged the property to Barclays Bank, Prudential Bank and NDK Financial Services.

It was revealing that the transactions allegedly undertaken in the search took place after the death of the Plaintiffs father, but their father was deemed to have partaken in them. The Plaintiffs punched the Deed of Conveyance executed for the first Defendant as containing no address of the donee. They also raised concerns that the instrument has no witness. They find the whole transfer instrument doubtful and that accounted for the commencement of the instant action. Ordinarily, the absence of the Defendants to appear in Court to refute the allegations made against them would have immensely enhanced the chances of the Plaintiffs. This is premised on the principle that the failure to deny an assertion made against a person amounted to an admission. In the case of In Re Presidential Election Petition: Akufo-Addo & 2 Ors. (No. 4) v. Mahama & 2 Ors. (No. 4) [2013] SCGLR (Special Edition) 73 at page 425, Anin Yeboah JSC held: “I accept the proposition of law that when evidence led against a party is unchallenged under cross-examination, the court is bound to accept that evidence.” See also Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 at page 890 and Amontia IV v. Akortia Oworsika [2001-2006] SCGLR 637. But we need to bear in mind that the principle is not an intractable rule. In the case of Ladi v. Giwah and Another [2013-2015] 1 GLR 54, the Supreme Court held at holding 2 thus: “The law was that failure to cross examine would not, always amount to acceptance of a witness’s testimony, for instance, if the witness had notice to the contrary beforehand, or the story itself was of an incredible character. Furthermore, the principle was that answers given in cross examination formed part of the evidence of a party and was to be considered by a court in evaluating the evidence as a whole.”

The authors of Phipson on Evidence (15^th ed), published by Sweet & Maxwell, paragraph 11-26 at page 254 stated: “Failure to cross-examine will not, however, always amount to acceptance of the witness’ testimony, for example if the witness has had notice to the contrary beforehand, or the story itself is of an incredible or romancing character.” See also Banahene v. Shell (Ghana) Ltd. (2012) 44 GMJ 77 at page 86, per Ofoe JA; Mabel Osei v. Stephen Boateng [2016] 99 GMJ 162 at page 168, C.A. and Dzaisu v. Ghana Breweries Ltd. [2007-2008] SCGLR 539. Looking at the endorsement on the writ, I realized that the Plaintiffs did not expressly ask for a declaration of title. However, the reliefs they are claiming include perpetual injunction. A claim of perpetual injunction puts in issue the title of the Plaintiff. The Supreme Court in the case of Hydrafoam Estates Ltd. v. Owusu (per lawful attorney) Okine [2013-2014] 2 SCGLR 1117 held at holding 2 as follows: “… since the plaintiffs had sought injunction against the defendant, they certainly had put their title in issue and were as such enjoined by law to have proved their title as expected of any party who had sued in court for declaration of title to land.”

Similarly, in the case of Nana Brafo Dadzie II v. John King Arthur & Ors., Civil App. No. J4/20/2016, dated 26^th January 2017, S.C. (Unreported), Appau JSC decided: “The authorities are legion that where in addition to a claim for damages for trespass, the plaintiff claims an injunction, title is automatically put in issue, because that claim postulates that the plaintiff is either the owner of the land in dispute, or has had (prior to the trespass complained of) exclusive possession of it.” See the cases of Adwubeng v. Domfeh (1996-97) SCGLR 660; Sagoe v. SSNIT (2012) 2 SCGLR 1094 at holding (1) and Yaa Kwasi v. Arhin Davis (2007-08) SCGLR 580; (2006) 2 MLRG 50. Since the Plaintiffs have sued and they want the Defendants to be perpetually restrained, it is my view that they have a duty to prove their title. It is further to be noted that in a title declaration matter the Plaintiffs have a duty to prove their own case. It is after that has been done that the burden would shift to the Defendants and where they are not present in Court suffer for their absence.

In this suit, I have painstakingly considered the case of the Plaintiff and I am afraid, they have not been able to prove their case on the preponderance of probabilities as required by sections 11 (4) and 12 of the Evidence Act, 1975 (NRCD 323). Appau JSC held in Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. K. Mbeah & 2 Others, Civil Appeal No. J4/61/2017, dated 11^th July 2018, S.C. (Unreported) as follows: “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - {See sections 11 (4) and 12 of the Evidence Act, 1975 [NRCD 323] and the decision of this Court in ADWUBENG v DOMFEH [1996-97] SCGLR 660 at p. 662}”. In the case of Nartey v. Mechanical Lloyds Assembly Plant Ltd. (1987) 2 GLR 314 at page 344, Adade JSC held: “A person who comes to Court, no matter what the claim is must be able to make a case for the court to consider otherwise he fails. But that is not to say that having succeeded in establishing some case he cannot take advantage of conflicts, admissions and other weaknesses in the defendant’s case” See the cases of Roland Kofi Dwamena v. Richard Nortey Otoo & The Regional Lands Officer [2017] 113 G.M.J. 46 at page 57 and Esseney Socrates Kwadjo v. Speedline Stevedoring Co. Ltd. [2016] 92 GMJ 66 at page 90.

The Plaintiffs traced their root of title from their deceased father, Mr. Edward Oti Ankrah. They claimed that the property was devised to them by their father in his will. It is trite learning that a beneficiary is not entitled to deal with the property until it has been vested in him. In the case of Okyere (Dec’d) (substituted by Peprah) v. Apenteng & Adomaa [2012] 1 SCGLR 65, it was held at holding 2 as follows: “The correct position was that a devisee could not sue or be sued in relation to the devised property after a vesting assent had been executed in his or her favour. Accordingly, in the absence of a vesting assent executed in favour of the second defendant, she could neither sue or be sued on her devises. In effect, the second defendant lacked the capacity to be sued in relation to her devises, not having being a beneficiary of a vesting assent.”

Although the Plaintiffs tendered a vesting assent in evidence, it seems to be a self-serving document.

The vesting assent was executed by the two Plaintiffs in their own favour. They are not the executors. At page 427 of his book ; Land Law, Practice and Conveyancing in Ghana by Sir Dennis Adjei, “A vesting assent is prepared by an executor or an administrator of letters of administration with will annexed or administrator of an intestate estate who has obtained probate or letters of administration with will annexed or letters of administration respectively to vest the property in the beneficiary of the estate. A beneficiary cannot maintain an action to protect a property devised to him in a will or property devolved unto him by intestacy unless he is an executor or administrator or the property has been vested in him”. The Plaintiffs did not provide any justification in their pleadings and evidence in Court for not allowing the executors rather to vest the property to them. It was in their vesting assent that they claimed the executors to their fathers will had pursued the journey of no return to join the silent majority.

Sections 1 & 2 of the Administration of Estates Act, 1961 (Act 63) provide:

“1(1) The movable and immovable property of a deceased person shall devolve on his personal representatives with effect from his death”.

At Section 105 of Act 63, a personal representative means “the executor, original or by representative, or administrator for the time being of a deceased person”.

Where there is no executor and for that matter a personal representative, the estate vests in the Chief Justice.

Subsection 2 of section 1 of Act 63 provides: “In the absence of an executor the estate shall, until a personal representative is appointed, vest as follows:

If the estate devolves under customary law – in the successor; In any other cause – in the Chief Justice”.

Where the estate is vested in the Chief Justice, it is for the Courts to give further directions. A person or a beneficiary under the will cannot arrogate to himself the powers of the Court or the Chief Justice and deal with the estate.

Order 66 rule 12 (1) of the High Court Civil Procedure Rules, 2004 (C.I. 47), spells out the persons in order of priority entitled to a grant of probate even in the absence of the executors. It needs reiterating the point that where the executors to a will die before administering the estate, the beneficiaries cannot take the law into their own hands and administer the estate. They would still need to go to Court for an order empowering them where the chain of persons entitled to the grant is broken.

Order 66 rule 59 (1) of C.I. 47 provides:

“Special grant in respect of unadministered assets (De-bonis non)

59 (1) Where all the persons to whom a grant of probate has been made have died without completing administration and the chain of representation has been broken, a grant with the will annexed shall be made in respect of the unadministered assets to those entitled to”.

It is evident from the above provision that what the Plaintiffs should have done was to have applied for letters of administration with will annexed to administer the estate themselves. Although the Plaintiffs are saying in Exhibit ‘C’ (being their vesting assent) that the personal representatives as executors of their father’s Will successfully proved the will on 20^th January 2009, they could not administer the estate before they died. It is unfortunate that the Plaintiffs could not tender the probate granted the executors by the Accra High Court as alleged in their evidence to prove their case. If it were even lost or unavailable, would it not have been ideal for them to explain the reason for not producing it in Court? Brobbey JSC in the case of Ablakwa v. A.G. [2012] 50 G.M.J. 1 held at page 80 thus: “The established rule is that where a person makes an allegation which is capable of proof by documentary evidence, he will not succeed in proving it by mere oral assertions or allegations: This was enunciated in the celebrated case of Majolagbe v. Larbi [1959] GLR 190 which has been applied by the courts in several cases.”

Be that as it may, I must say that the production of the probate in this Court would have made no difference for the Plaintiffs once the executors could not administer the probate by executing the vesting assent in the Plaintiffs’ favour before their death. From the above law, the vesting assent executed by the Plaintiffs in their own behalf without resort to Court is void and cannot be relied upon by this Court.

The Courts have never sanctioned the practice by which parties resort to self-help other than the law and it does not appear to me to experiment it. In the case of NDK Financial Services Ltd. v. Ahaman Enterprises Ltd. [2015] 83 GMJ 111, Dotse JSC held at page 121 thus: “. . . A court of equity will not permit a defaulting party to take advantage of its own negligent act or default … no man should be permitted to take advantage of his own wrong.”

Also, in the case of Kofi Sarpong (Dec’d) (Substituted by) Nana Kwasi Koduah v. Franklin Adubobi Jantuah; Civil Appeal No. J4/15/2015, dated 17^th February, 2016, SC (Unreported), Benin JSC held: “The plaintiff could not act in violation of the law and ask a court of equity to come to his aid”. The Plaintiffs in this case are attacking a Deed of Gift which in their view does not meet the legal requirements. Interestingly, the vesting assent too they are relying upon is also fraught with similar flaws. Another point worth discussing here is that, the property was deemed to have been devised to three persons under paragraph 7 of the will (i.e. to the Plaintiffs herein and their brother, Mr. Edward Oti Ankrah Junior) to hold as tenants in common. Where a property is granted to two or more beneficiaries to hold as tenants in common, the death of one does not pass on the property to the surviving beneficiaries. It rather passes the portion of the deceased on to his dependants.

In their book; Ghana Land Law and Conveyancing (Second Edition), BJ da Rocha and CHK Lodoh explains at page 267 thus: “There is no right of survivorship under a tenancy in common. The size of each tenant’s share is fixed once and for all times in proportion to his contribution to the acquisition of the property concerned or the share granted or gifted to him. When a tenant in common dies, his interest passes under his will or intestacy. A tenant in common may also dispose of his share in the property inter vivos. The person to whom his share is disposed steps into his shoes and becomes a tenant in common with the others.” There is nothing in evidence to indicate that the Plaintiffs’ late brother did not leave behind any spouse or a child. Granted he died without any such dependent, it would still devolve unto his residual estate. Had the grant to the Plaintiffs being one of joint tenancy, then the Plaintiffs as surviving beneficiaries would have solely benefitted under the will of their father. Should the Court declare title in favour of the Plaintiffs alone, the dependants or residual beneficiaries under their late brother’s will would have been denied their benefit.

The Court in this case finds the Plaintiffs’ action incompetent. It is pre-mature to the extent that they are in want of capacity. They should have taken their time to obtain a valid vesting assent before approaching this hallowed temple of litigation. Their rush to Court now painfully reminds me of the proverbial advice of the Nigerian movie star, Pete Edochie when he said: “A cow in haste to America may only return as a corned beef”. The vesting assent executed by the Plaintiffs all by themselves without recourse to any Court of competent jurisdiction for an authority to do so in this case is void and I declare it as such.

Consequently, since the capacity of the Plaintiff which is the foundation of their action has miserably collapsed, the superstructure being their entire claim must also crumble.

ALEXANDER OSEI TUTU J.

(JUSTICE OF THE HIGH COURT)