IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (3)
KUMASI - A.D 2018
OPANIN OSEI KOFI SUBSTITUTED BY EMMANAUEL OWUSU - (Plaintiff)
MRS CHARLOTTE OWUSU MENSAH AND KWAME ASAMOAH -(Defendants)
DATE: 13 TH MARCH, 2018
SUIT NO: E1/15/2005
JUDGES: FRANCIS OBIRI (HIGH COURT JUDGE)
KWAKU YEBOAH APPIAH FOR PLAINTIFF
KWAME AWUAH FOR DEFENDANTS
On 28th May 2015, the original plaintiff issued writ of summons and claimed against the defendants as follows:
a) A declaration that house No. plot 41 Block “A” Tarkwa Maakro Layout-Suame Kumasi, is the self – acquired property of the Plaintiff and that, the testator was not competent to devise same to his children in his Will.
b) An order that the devise made by the testator in respect of House No. plot 41 Block “A” Tarkwa Maakro Layout-Suame Kumasi, be declared null and void.
c) An order for perpetual injunction restraining the defendants, their executors, agents, workmen and assigns and any other person or persons dealing with or interfering with the property the subject matter of this suit.
d) Recovery of possession.
The defendants filed their defence to the action and resisted the claim.
At the application for directions stage, the following issues were set down for trial:
Whether or not the plaintiff acquired plot No. 41 Block “A” Suame Tarkwa Maakro Kumasi and developed same with his own resources.
Whether or not the testator acquired Plot No. 41 Block “A” Suame Tarkwa Maakro Kumasi.
Whether or not the testator was legally competent to devise part of House No. Plot 41 Block “A” Suame-Tarkwa Maakro to his wife and children in his last Will and testament.
Whether or not the plaintiff is entitled to his claim as endorsed on the writ of summons.
Any other issues raised in the pleadings.
During the trial, the plaintiff testified on oath and called one witness. The defendants also testified and called two witnesses in support of their case.
I now wish to discuss the evidence of the parties and their witnesses. The summary of the plaintiff evidence is as follows: He knows the original plaintiff who was his father. The defendants are the executors of the last Will of the late Owusu Mensah alias John Owusu Mensah who was the elder brother of the original plaintiff.
According to him, the original plaintiff is the owner of House No. Plot 41 Block “A” Tarkwa Maakro. He continued that, his late father acquired the plot from the Kumasi City Council in 1963. He stated that, there was an error in the name used in the allocation paper and the original plaintiff wrote to the Kumasi City Council to have it corrected. Plaintiff said the original plaintiff (deceased) obtained a building permit to build on the land. He added that, the plot in dispute was formerly No. 63 Block “A” Suame Tarkwa Maakro but was changed to Plot No. 41 Block “A” Suame Tarkwa Maakro. The plaintiff said further that, the original plaintiff solely built on the land with his own resources. And upon the retirement of the testator from the Ghana Police Service, the original plaintiff allowed him (the testator) to stay in the house in dispute.
He added that, the original plaintiff applied and obtained lease and land title certificate over the land. The plaintiff stated that, the testator had no authority to devise the property in dispute in his last Will since it is not for him. He also denied that, the plot in dispute was granted to the testator by the Nkofehene on behalf of the Nkofe Stool.
The plaintiff denied that the original plaintiff was not a wealthy man. He added that the original plaintiff even bought a car for the testator. The plaintiff further testified that, the original plaintiff constructed stores in front of the house in dispute without any let or hindrance since the plot belongs to him. He denied that the lease and the land title certificate were obtained by recourse to fraud.
The plaintiff ended his evidence that, the second defendant submitted to judgment in this case. He was cross-examined by the defendants counsel. He insisted in cross-examination that, it was the original plaintiff who built the house in dispute and allowed the testator to stay therein during his lifetime. He also admitted in cross-examination that, the original plaintiff did not live in the house in dispute during his lifetime. He again answered in cross-examination that, the mechanics who are on the land are squatters. The plaintiff tendered various documents which were admitted and marked as exhibits. PW1 was Isaac Osei Tutu. He knows the testator as his late father. His evidence was that, the testator told him that the house in dispute is for the original plaintiff. He added that, the original plaintiff permitted his father to stay in the house in dispute upon his retirement from the Ghana Police Service. PW1 further stated that, the original plaintiff allowed him to place his corn-mill machine in front of the house in dispute. He added that, the original plaintiff allowed the first defendant to operate a drinking spot inside the garage in the house. He further stated that, the children of his step sister called Ataa came to stay in the house in dispute before the testator died and are still staying in the house. He was cross-examined. PW1 admitted in cross-examination that, his step mother Martha Yeboah and her children stayed in the house during the lifetime of the testator. He also admitted in cross-examination that, he wanted to put his corn-mill machine in the house but the testator refused. However, PW1 had stated in his witness statement that, it was the original plaintiff who allowed him to place his corn-mill machine in front of the house in dispute. He insisted in cross-examination that, the testator has no share in the property in dispute.
When the defendants opened their case, each of them testified on oath and they called two witnesses. The first defendant testified as follows: She is a professional midwife and one of the executors of the last Will of the testator. The second defendant is also an executor of the last Will of the testator. The testator was his father who died on 1st March 2004. He made a Will dated 7th June 1989 which she tendered a copy in evidence which was admitted and marked as exhibit “1”. The first defendant continued that, the testator acquired the land in dispute from the Nkofe Stool in 1956. She stated that, her late father built boys quarters on a portion of the land and lived in it with his wife and children without any let or hindrance during his lifetime.
The first defendant again stated that, the testator allowed the original plaintiff to build store rooms on a portion of the plot in dispute. She stated further that, neither the original plaintiff nor his children has ever lived in the house in dispute. She added that, when the testator’s wife Martha Yeboah died, she was laid in state in the boys’ quarters and the funeral was also performed in the house without permission from the original plaintiff. She continued that, the testator was operating a drinking spot in the house. The testator also rented out the open space in front of the boys quarters and the tenants paid rent to him during his lifetime. She said, it was after the death of the testator who became totally blind before his death that the original plaintiff started claiming ownership of the house in dispute. She said, the testator refused to allow PW1 to place a corn-mill machine in front of the house in dispute. The first defendant ended her evidence that, the testator had testamentary capacity to devise the property which is House No. 41 Block “A” at Tarkwa Maakro, Suame–Kumasi in his last Will. She insisted in cross-examination that, the land was acquired by the testator in 1956 and he allowed the original plaintiff to keep the documents over the property since he trusted him. She again insisted that, it was when the testator became blind that the original plaintiff clandestinely prepared the lease over the house in dispute. She denied in cross-examination that, the house in dispute is for the original plaintiff. The second defendant also testified as follows: He is one of the Executors of the testator. He used to visit the testator in the house in dispute during his lifetime. The testator lived there with his wife and children. The testator used to operate a drinking spot in the house. And after his death, it is been managed by one of his grandchildren. The second defendant said the testator gave a portion of the land to mechanics to occupy and they paid rent to him (the testator).
According to him, the testator only allowed the original plaintiff to build stores on a portion of the land. The second defendant was cross-examined. He insisted in cross-examination that, the property in dispute belongs to the testator which he acquired from Nkofehene. He denied that the land is a State land. He also denied that, he instructed his lawyers to submit to judgment in this case. DW1 was Opanin Kwaku Manu. He is the head of the Ekuona family. That is the family the original plaintiff and the testator belong. He also stated that, he succeeded the original plaintiff. According to him, he used to visit the testator, his wife and children in the house in dispute during the lifetime of the testator. He added that, the original plaintiff did not ever inform him that he owns the boys quarters during his lifetime. He added that, it was during the 40th day celebration after the death of the testator that, he got to know that the original plaintiff had obtained lease over the property in his own name. He was also cross-examined. DW2 was Ntim Gyakari. He is a mechanic. He knows the house in dispute. He has a mechanic workshop in front of the house in dispute. It was rented out to his superior (master) by the testator. He stated that, he joined his superior (master) now deceased on the land in 1971. They paid rent to the testator until his death.
According to DW2, the testator used to operate a drinking bar in a garage in the house which is still been operated by one of his grandchildren. He added that, the testator once introduced the original plaintiff to him as his brother. In cross-examination, DW2 stated that, his superior (master) used to pay the rent to the testator because he was the owner of the house. At the conclusion of the case, counsel for both parties filed their respective addresses. Counsel for plaintiff prayed that, his action must succeed as a result of the following. First, the plaintiff produced both oral and documentary evidence to prove that the property in dispute was acquired by the original plaintiff. For example, the exhibits the plaintiff tendered in evidence. Counsel cited Wood (substituted by) Asante-Koranteng V Tamakloe & Anor (2007-2008) 2 SCGLR 852 and Section 35 of the Evidence Act 1975 NRCD 323 in support. He added that, since the plaintiff holds the legal title documents, it means the property in dispute is for him. Counsel cited Edward Danso V Moses Adjei (2013) 58 GMJ 71 CA and Kusi & Kusi V Bonsu (2010) SCGLR 60 in support of this argument. Secondly, apart from the oral evidence, the defendants offered, they could not produce any document to indicate that the property belongs to the testator. However, with respect to plaintiff’s counsel, it is not only documents which are used to prove ownership of a property. Thirdly, the defendants failed to call the Nkofehene as the grantor of the land for the testator. Therefore, the defendants’ case must fail. Counsel cited Tetteh V Hayford (2012) 1 SCGLR 417 in support of this argument. Counsel added that, the purported letter from the Nkofehene which is exhibit “2” is doubtful and cannot be relied on by the court.
Counsel further contended that, the defendants’ documentary evidence which is authentic evidence. oral evidence cannot override the plaintiff He cited Agyei Osae V Adjeifio (2007-2008) SCGLR 499 and Fosua & Adu -Poku V Dufie (deceased) & Adu-Poku Mensah (2009) SCGLR 310 in support of his position.
Counsel again submitted that, the defendants pleading of fraud in respect of the lease was not proved. Again, the defendant’s evidence departed from their pleadings. He cited the following cases in support of his arguments. Aryeh & Akakpo V Ayaa Iddrisu (2010) SCGLR 891 Nyamaah V Amponsah (2009) SCGLR 361 Counsel also submitted that, the allegation of fraud by the defendants should have been proved beyond reasonable doubt as required by law. Counsel cited section 13 (1) of NRCD 323 and Fenuku V John Teye (2001-2002) SCGLR 985 in support of this submission. Counsel again submitted that, the evidence of PW1 who is a son of the testator is very crucial. Plaintiff counsel urged the court to place much value on the evidence of PW1 because he said his late father (the testator) told him that, the house in dispute is for the original plaintiff. Counsel for plaintiff also submitted that, there are inconsistencies between the evidence of the defendants and their witnesses which go to the root of the matter. Therefore, the court should give judgment for the plaintiff in this case. On the part of the defendants, their counsel prayed that the plaintiff case be dismissed on the following grounds.
First, the plaintiff was challenged that, the land in dispute is a Stool land while he contended that, it is a Public or State Land but he did not lead any evidence to prove that it is Public land. Counsel submitted that, the plaintiff therefore did not prove that, his land is a State or Public land. Therefore, the lease is of no legal significance. Counsel for defendants therefore submitted that, the plaintiff has not been able to prove conclusively his method of acquisition of the disputed land. Counsel cited the following cases in support of his submissions.
Majolagbe V Larbi (1959) 1 GLR 190 Essah V Boadu (2006) 4 MLRG 223 CA, and Section 12 (1) Of NRCD 323
Secondly, he submitted that building permit is not evidence of title. He added that, the plaintiff failed to establish that the land is a Public Land and not a Stool land. Again, exhibit ‘3’, shows that the land in dispute was acquired from Nkofehene acting on behalf of the Nkofe Stool. According to defendants counsel, this was corroborated by DW1 who is the customary successor of the original plaintiff. Counsel therefore, urged the court to accept Nkofehene’s letter which is exhibit ‘3’ as authentic.
Thirdly, the court cannot rely on exhibit ‘K to enter judgment against the defendants since; the purported submission to judgment was not entered or adopted by the court. Counsel ended his submission that the Testator had capacity to devise the property in his last Will.
Before I will make my findings in respect of the issues before the court, I wish to discuss the burden of proof on each of the parties. It is a basic principle of law of evidence that a party who bears the burden of proof is to produce the required evidence of facts in issue that has the quality of credibility short of which his claim may fail. It is also trite that, matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of the fact is more probable than is non-existence.
See: Sections 11 (4) of NRCD 323
See also Ackah V Pergah Transport Ltd. & Ors (2010) SCGLR 728 Yorkwah V Duah (1992-93) GBR 278 CA
Gihoc V Jean Hanna Assih (2005-2006) SCGLR 458
In re Presidential Election Petition (NO 4),Akufo Addo & 2 Ors V Mahama & 2 Ors(NO 4) (2013)
SCGLR 73 (Special Edition)
When it comes to the standard of proof of allegations in civil cases, it is proof by preponderance of probabilities. It is only when crime is pleaded or raised that the allegation sought to be proved must be proved beyond reasonable doubt.
See: Aryeh & Akakpo V Ayaa Iddrisu (Supra) Fenuku V John Teye (Supra)
This means that, it is the party who alleges who must proof, which in most cases is the plaintiff.
However, a different standard is used if the defendant counterclaim to the plaintiff’s action. This is because, if there is a counter-claim, the counter-claimant is deemed to be the plaintiff in respect of the counter-claim.
The Supreme Court in the case of Gbedema V Awoonor Williams (1970) C. C. 12 threw some light on the nature of a counter-claim as follows: “a counter-claim is to all intends and purposes an action by the respondent against the applicant. It is an independent and separate action”.
The Court relied on the case of Winterfield V Bradnum 3 QBD 324 in which Bret L. J. said at page 326 as follows: “A counter-claim is sometimes a mere set off; sometimes it is in a nature of cross action; sometimes it is in respect of a wholly independent transaction. I think the true mode of considering the claim and counter-claim is that they are wholly independent suits which for convenience of procedure are continued in one action”.
Lord Esher M.R. In Stumore V Campbell & Co. (1892) 1 QBD 314 At Page 317 said “For all purposes except of execution, a claim and counter-claim are two independent actions”.
From the above authorities, it is settled that a counter-claim is in law a separate and independent action which is tried together with the original claim of the plaintiff.
Therefore, if in the course of an action in which there is a counter-claim, the plaintiff action is struck out, dismissed, discontinued or stayed, the defendant can proceed to prosecute his counter-claim.
See: Fosuhene V Atta Wusu (2011) 1 SCGLR 273.
In Re Will of Bremasu; Akonu-Baffoe & Ors V Buaku & Vandyke (Substituted By) Bremasu (2012) 2 SCGLR 1313.
Chantel & Anor V Koi & Anor (2010) 34 MLRG 150 C.A
Osei Subst.by Gilard V Korang (2013-2014) SCGLR 221
It is therefore, the plaintiff who generally must prove his case on the preponderance of probabilities. However where the defendant files a counterclaim, then the same burden of proof would be used in evaluating and assessing his case just as is used to evaluate or assess the case of the plaintiff against the defendants.
See: Yeboah V Ahele (2012) 44 GMJ 37 C.A
Jass Co. Ltd. & Ors V Apau & Anor (2009) SCGLR 265
In this case however, the defendants did not counter-claim. Therefore, it is the plaintiff who is to prove his case on preponderance of probabilities under section 11(4) of NRCD 323.
Back to the case before me, it is not in dispute that, there are two separate buildings on the land in dispute. There is boys quarters and stores. There is no dispute about the stores. The parties are in agreement that, the stores were constructed by the original plaintiff. However, while the plaintiff contends that, the original plaintiff built the stores in his own right, the defendants contend that, he built the stores with permission from the testator. The main issue in dispute is about the ownership of the boys’ quarters. In proving the root of title to the land in dispute by the plaintiff and the defendants, various documents were tendered in favour of each of them.
The plaintiff tendered various letters from the original plaintiff to the Lands Secretariat Kumasi as well as other documents. Exhibit ‘A’ is dated 30th October 1963, and has been signed by the original plaintiff. It was addressed to the City Engineer, Kumasi, City Council. It is in respect of plot No. 63 Block “A” Suame-Tarkwa Maakro. Exhibit “B” is a letter from the Lands Secretariat to the original plaintiff in respect of the land in dispute. It is dated 11th September 1964. Exhibit ‘D’ is application for lease in respect of the plot in dispute. It is dated 17th June 1964 and signed by the original plaintiff. It was addressed to the Senior Lands Officer, Lands Department, Kumasi. Exhibit ‘E’ is signed by the original plaintiff to the Senior Officer, Ministry of Lands, Kumasi. It is dated 20th September 1968. It is to the effect that, the plot in dispute was originally Plot No. 63 Block ‘A’, Tarkwa-Maakro but was later changed to plot No. 41’ Block “A” Tarkwa Maakro.
Let me state at this juncture that, the identity of the plot in dispute is not in issue. Exhibit “E1” is application for lease dated 3rd October 1964. It has been signed by the original plaintiff and addressed to the Senior Lands Officer, Lands Secretariat; Kumasi.Exhibit “E2” is a completed form for the application for lease which has been signed by the original plaintiff. All these are documents or instruments affecting the land in dispute but none of them has been stamped in accordance with the Stamp Duty Act, 2005 (Act 689). In the case of Lizori Ltd V Boye & School of Domestic Science and Catering (2013-2014) 2 SCGLR 889, the Supreme Court held per Benin JSC at page 903 as follows “The provision in section 32 of Act 689 is so clear and unambiguous and requires no interpretation. Either the document has been stamped and appropriate duty paid in accordance with the law in force at the time it was executed or it should not be admitted in evidence. There is no discretion to admit it in the first place and order a party to pay the duty and penalty after judgment”.
See also Wood House Ltd. V Airtel Ghana Ltd (2017) 114 GMJ 96 CA
The legal effect is that these exhibits stated above ought not to have been admitted in evidence in the first place, with or without objection. This court however has the right to exclude them since they are inadmissible perse. In Phipson on Evidence (10th Edition) at page 855 paragraph 2053, the learned authors stated thus “if inadmissible evidence has been received (whether with or without objection), it is the duty of the judge to reject it when giving judgment and if he has not done so, it will be rejected on appeal, as it is the duty of a court to arrive at their decisions upon legal evidence only”.
See: Frimpong & Anor V Rome (2013) 58 GMJ 131 CA.
Amoah V Arthur (1987-88) 2 GLR 87
Tormekpe V Ahiable (1975) 2 GLR 452 CA
Juxson Smith V Klm Dutch Airlines (2005-2006) SCGLR 438
Thompson V Total Ghana (2011) 34 GMJ 16 SC
From the above authorities, I hereby exclude those exhibits tendered by the plaintiff. Exhibit ‘C’ is a building permit. It has also not been stamped in accordance with Act 689 and same is hereby excluded. Again, building permit does not confer title over a land. In fact, it has been stated expressly as a third condition on the face of the building permit as follows: “This permission does not confer any right or title to the premises, lands or building described in the plans annexed hereto or the right to occupy”.
Exhibit ‘F’ is a lease which have been stamped and registered. However, it has its own defects. First, the lease was executed on 28th January 2000 but it was to take effect from 1st January 1997. Again, the application for the lease was made on 3rd October 1964 as per exhibit “E1” but it was not executed until 28th January 2000 which is a period of 36 years. It is surprising how an application for lease can be made but will take 36 years before the lease is executed. The plaintiff did not explain the delay in the execution of the lease.
Furthermore, the lease is registered but there is no oath of proof as required under section 5 of the Land Registry Act 1962, (Act 122). Section 5 (1) of Act 122 provides “an instrument presented for registration shall be proved to have been duly executed by the grantor by the oath; (a) of the grantor or one of the grantors (b) of the grantee or one of the grantee or one of the subscribing witnesses”. This is a statutory requirement which was not complied with by the plaintiff. The plaintiff also failed to attach a site plan which has been drawn or certified by a licensed Surveyor or official Surveyor in accordance with Section 6 of the Survey Act, 1962 (Act 127) and Section 4 (1) (2) and 16 of Act 122. I am therefore unable to place any legal value on the lease document. In anyway, when the plaintiff was challenged by the defendant that the area in dispute is not a Public or State Land or vested land, he did not lead any contrary evidence to establish otherwise. The law is settled that, when a party makes an assertion and same is denied, he has to prove it by other evidence for the court to know that his assertion is true and not merely repeating it in a witness box or having it repeated by his witness.
See: Abbey and Ors. V Antwi (2010) SCGLR 17
T. K. Serbeh & Co. Ltd V Mensah (2005-2006) SCGLR 341
In the Lands Commission Act, 1994, (Act 483) there are different roles played by the Commission in the grant of a State Land and Stool Land. The Lands Commission is the custodian and manager of Public Lands, lands vested in the President and in the Commission itself, under section 2 (1) (a) of Act
Therefore, the Lands Commission can only validly grant a lease of plot to an applicant if the plot is indeed a public land. As regards a stool land, the grantor must be the Stool and the lease from the Lands Commission will only be a matter of consent and concurrence strictly speaking to the grant. This means that, the Lands Commission cannot grant a valid lease to a Stool Land without recourse to the Stool as the allodial owner of the land.
See: Barnie V The Mo Traditional Council (2017) 105 GMJ 295 CA
I have also examined exhibit ‘G’ which is a land title certificate in the name of the original plaintiff. It is in respect of parcel No. 26 Block 40, Tarkwa Maakro. However, the plot in dispute is now plot No. 41 Block “A” Tarkwa Maakro. The plaintiff did not explain why the discrepancies between the plots number as endorsed on the writ of summons and as shown on exhibit G. This means that, exhibit ‘G’ has no bearing on the plot in dispute and same will not have any legal weight. In respect of the will, it is not in dispute that a Will need not be registered and Stamped for it to have legal effect under section 24(1) of Act 122. On the part of the defendants, exhibit ‘3’ which is a letter from the Nkofe Stool Lands has also not been stamped and same will be excluded. From the evidence however, the testator was in possession of the disputed boys’ quarters with his wife and children before 1971. This is because; DW2 led uncontroverted evidence that, he joined his superior (master) in their mechanic shop in 1971. And the testator, his wife and children were staying in the house at that time. There is also clear evidence from DW2 that, the testator rented a portion of the land in dispute to them and nobody complained about it. The testator took rents from them during his lifetime. He added that, the original plaintiff did not challenge the testator as to the receipt of the rent during the lifetime of the testator. He also operated a drinking bar from the garage of the house without any let or hindrance.
From the evidence of DW2, the testator exercised total control and ownership over the boys’ quarters and the land in dispute. The law is settled under section 48 (2) of NRCD 323 as follows:
“A person who exercises acts of ownership over property is presumed to be the owner of it”.
See:Ofori Agyekum V Madam Akua Bio (Substituted By) Agyartha Amoah (2017) 114 GMJ 1 SC.
Possession in law is deemed to be nine out of ten points in law and a person in possession has a good title against the whole world except one with a better title.
See: Osei (Substituted By) Gilard V Korang (supra)
It is also settled that, long peaceful, undisturbed possession over a considerable period of time, is long enough to raise presumption of ownership.
See: Nartey V Mechanical Lloyd Assembly Plant Ltd (1987-88) 2 GLR 314.
I do not think the plaintiff has been able to rebut this presumption in this case. DW2 evidence is very relevant in this case. This is because; he is not a member of the family of the parties. He does not relate to any of the parties in anyway. He has no legal interest in the property. He is just a tenant. Therefore, his evidence is very crucial. He does not gain anything directly from the outcome of the case.
The courts have held the evidence of such independent witnesses in high esteem. In the case of Boateng V Boateng (2009) 5 GMJ 58 at 64, the Court of Appeal held that, “where the evidence of the only independent witness on a vital issue corroborates the evidence of one party or the other, a court is bound to accept the case of the party so corroborated by the independent witness (emphasize mine) unless, there are good reasons for discrediting the independent witness in which case, the reasons must be clearly stated in the judgment”.(emphasis mine)
See also the case of Asare V Donkor and Serwaa (1962) 2 GLR 176 Manukure V Agyemang (1992-93) 2 GBR 888 CA
In this case, I have no reason to doubt the evidence of DW2. It was unshaken during cross-examination. The plaintiff and his witness evidence could not surmount the hurdle DW2 evidence placed before this court.
I am also unable to place any weight on the evidence of PW1. This is because of the following:
He was not permitted by the testator to fix his corn mill machine on the land in dispute during the lifetime of the testator. The testator devised the property in dispute to his step mother (his mother’s rival) and the step mother’s children excluding himself and his biological siblings if any. There is evidence that, the testator divorced his mother before his death. Therefore, the inference one can make is that, he is peeved that the testator devised the property to his step mother and her children.
Section 18 (2) of NRCD 323 defines inference as the “deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action”.
The factors which can discredit the evidence of a witness are:
intense hatred or dislike of a party by a witness
A committed or perverted interest in the outcome of the case.
The desire to get a favourable decision either for himself or the party calling him as a witness.
See: Republic V Nana Osei Kwadjo II (2008) 1 GMJ 42 SC
Again, PW1 said the testator told him that the disputed property is for the plaintiff. I am unable to accept this evidence. The law is that, evidence or assertion against a dead person must be scrutinized with the outmost suspicion. This is because; the person is not alive to answer. This is based on plain good sense.
See:Moses V Anane (1989-90) 2 GLR 694 CA
Margaret Osei Asibbey V Gbomittah (2012) 47 GMJ 61 SC
Fosua & Adu-Poku V Dufie (Deceased) Adu Poku Mensah (Supra)
Yakubu V Yakubu (2013) 55 GMJ 97 CA
Poku V Abosi (1982-83) GLR 254
I am therefore unable to place any legal weight on the evidence of PW1.
On the purported submission of the 2nd defendant to judgment as per exhibit “K”, the law is settled that it would only act as estoppel and binding after the contents have been adopted or approved by the court as consent judgment.
In the absence of that, it does not act as estoppel.
See: Republic V High Court, Accra, Ex-Parte Danso & Ors (New Patriotic Party, Electoral
Commission & Ors Interested Parties) (2015-2016) 1 SCGLR 760
There is no evidence that the contents of exhibit “K” were adopted or approved by the court.
I am therefore unable to conclude that exhibit “K” acts as estoppel against the defendants.
From the above analysis; I am of the view that, the plaintiff has not been able to prove his case on the preponderance of probabilities. The defendant did not counter-claim.
It is the policy of the courts to give effect to the last wishes of the deceased and uphold them unless there are overriding legal obstacles.
See:In re Mensah (Deceased), Barnieh V Mensah (1978) GLR 225
The courts also have a duty to sustain the depositions of the deceased person made in a Will which prima facie satisfies the statutory requirement of preparation and due execution.
See: Agyekum V Tacket (2006) 2 GMLR 134 SC.
Again, a Will is a special and solemn legal document in which a testator gives his wishes as to how his properties should be distributed or managed after his death. The greatest respect due to the deceased is to give effect to his last Will unless there are compelling reasons militating against it.
See: In Re Atta (Deceased) Kwako V Tawiah (2001-2002) 461
I will therefore make the following findings in respect of the issues
The plaintiff has not been able to prove that he acquired plot No. 41 Block “A” Suame Tarkwa Maakro.
The evidence shows that, the plot in dispute was acquired by the testator and he permitted the original plaintiff to build stores on a portion of it.
The testator therefore is legally competent to devise part of the house that is the boys’ quarters on the plot in dispute to his wife Yaa Adansi and her children in his last Will.
The plaintiff is therefore not entitled to any of the reliefs endorsed on the writ of summons.
All his claims are dismissed. I will restrain the plaintiff perpetually either by himself, his assigns, workmen, servants, privies from interfering with the use or occupation of the boy’s quarters in anyway.
Although, perpetual injunction was not specifically asked for by the defendants, however, the facts before me do support same. I will fortify myself with the following authorities.
In Re Gomoa Ajumako Paramount Stool, Acquah V Apaa & Anor (1998-99) SCGLR 312 Republic V High Court Kumasi, Exparte Boateng (2007-2008) 1 SCGLR 404
In conclusion, the plaintiff action is dismissed in its entirety
(HIGH COURT JUDGE)