PETERS vs. PETERS [1962]DLHC1612

Date	1962-01-29
Suit No.
Citation No.	[1962]DLHC1612

OLLENNU J.

NELSON COFIE FOR THE PLAINTIFF.

KOI LARBI FOR THE DEFENDANT.

[1962]DLHC1612
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">PETERS <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">PETERS <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1962] 1 GLR 34<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 29TH JANUARY, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

NELSON
COFIE FOR THE PLAINTIFF.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
OLLENNU J.<o:p></o:p>A man by the name of Alfred George Peters, late of Accra, had four
children, namely: Mary Adeline Addo (nee Peters), George James Peters, John
Archibold Biala Peters and Robert Alexander Gaskin Peters. The first two, Mary
Adeline and George James had different mothers, but the last two, John
Archibold Biala and Robert Alexander Gaskin had one mother. The plaintiff is
the daughter of George James Peters.<o:p></o:p><o:p>&nbsp;</o:p>Robert Alexander Gaskin Peters left home in 1923, and their father
died on the 19th August, 1924. By his will, probate of which, exhibit A, was
granted on the 11th October, 1924, to the executors named therein, Alfred
George Peters devised, among other real properties, a piece of land situate on
Club Road, Accra, to all his four children in equal shares. George James, the
father of the plaintiff died on the 11th October, 1952.<o:p></o:p><o:p>&nbsp;</o:p>By a deed dated the 11th November, 1955, Mary Adeline, John
Archibold Biala on behalf of themselves, and the plaintiff as personal
representative and successor by customary law to her late father George James,
demised the said Club Road property to one Mouhamed Aid Traboulsi, a Lebanese
trader. It was recited in the said deed that Robert Alexander Gaskin “left the
Gold Coast (now Ghana) for Europe over 30 years ago without leaving any address
nor has been heard of ever since his departure and his death can safety be
presumed and without leaving any issue after him surviving to succeed to his
individual share.”<o:p></o:p><o:p>&nbsp;</o:p>In accordance with the terms of the said lease, the tenant paid an
amount of £G6,120 to the landlords as rents in advance. The defendant paid
one-fourth of that amount to the plaintiff as her father’s share. The
plaintiff, however, claims that she is entitled to one-third and not one fourth
share of the said estate, and has now sued the defendant claiming an amount of
£G510 the difference between one-third and one-fourth share of the rents paid
in advance. The claim of the plaintiff is based upon a contention that Robert
Alexander Gaskin having died, the property vested in only three children of the
testator and not four.<o:p></o:p><o:p>&nbsp;</o:p>In support of her claim it was submitted on behalf of the
plaintiff that the recital in the lease, exhibit B, that Robert Alexander
Gaskin left home about 30 years before the date of the lease, that is November
11, 1955, and has not been seen or heard of since and so must be presumed dead,
is binding upon the parties to this suit who are also parties to the lease, and
that the said recital should be accepted as conclusive evidence that he, the
said Robert Alexander Gaskin, predeceased the testator. Simple mathematical calculation
shows that the said submission of counsel is quite wrong. Thirty years prior to
1955 takes us back to 1925 which is one year after 1924 the year in which the
testator died. At common law presumption of death does not arise until seven
years after the year when a person was last seen or heard of. It follows that
even without further evidence the presumption that Robert Alexander is dead
could not have arisen until seven years after 1925 the year when according to
the recital in the lease, he was last seen and heard of. Therefore far from the
recital relied upon by the plaintiff being conclusive that Robert Alexander
Gaskin predeceased his father, the testator, it is definitely conclusive
evidence that he survived his said father the testator.<o:p></o:p><o:p>&nbsp;</o:p>But quite apart from the recital, there is the oral evidence given
by D.W.1, the only daughter of the testator, that her brother Robert Alexander
Gaskin came home in 1935. There is also exhibit C. a letter dated the 19th
February, 1936, undisputedly written by him in his own handwriting to his
sister, showing that he</main>