OSEI YAW AND ANOTHER vs. DOMFEH [1965]DLSC1844

Date	1965-05-31
Suit No.
Citation No.	[1965]DLSC1844

MILLS-ODOI JSC

APALOO JSC

BRUCE-LYLE J.S.C.

B. J. DA ROCHA (WITH HIM PUPLAMPU) FOR THE APPELLANTS.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1965]DLSC1844
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													<main id="main" class="content" style="min-height: 60rem" >OSEI YAW AND ANOTHER <o:p></o:p>vs. <o:p></o:p>DOMFEH <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 418<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
31 MAY 1965.<o:p></o:p>

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

B. J. DA ROCHA (WITH HIM PUPLAMPU) FOR THE
APPELLANTS.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.<o:p></o:p>

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

MILLS-ODOI, APALOO AND BRUCE-LYLE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>This is
an appeal from the judgment of Djabanor J. delivered in the High Court, Kumasi,
on 22 April 1963. That judgment sustained a claim by the respondent
(hereinafter called the plaintiff) against the appellants (hereinafter called
the defendants) for a declaration of title to two cocoa farms said to be
situate at Sukubiri and Dentemen on Offinso stool land. The plaintiff’s claim
of title to a dwelling-house described as No. NU 204, Nkenkassu, was
disallowed.<o:p></o:p><o:p>&nbsp;</o:p>This case
has no comprehensive history and the facts are as simple as the issues sought
to be determined. The plaintiff was one of the nephews of the late Kwadwo
Addai. The evidence shows that Addai died at Nkoranza on 1 July 1961. The
plaintiff claimed that the deceased died leaving a will in which all his
properties were devised to him. The defendants were apparently unaware of the
execution of a will by the deceased. They denied that there was any such will.
But they took the position that even if such a will existed, it did not operate
to vest title to these properties in the plaintiff as they were family
properties. The plaintiff replied that the properties to which he laid claim,
belonged to the deceased in his own right and that he was entitled to make a
valid testamentary disposition of them in his, that is the plaintiff’s favour
and he so disposed of them. That being the stand taken by the parties, only two
issues were submitted to the learned trial judge for determination. They were
formulated in the summons for directions as follows:<o:p></o:p><o:p>&nbsp;</o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(1)
Whether or not the properties in dispute were the self-acquired properties of
the late Kwadwo Addai, and<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">&nbsp;(2) Whether or not the late Kwadwo Addai made
a will disposing of his properties both real and personal to the plaintiff.”<o:p></o:p><o:p>&nbsp;</o:p>At the
trial, a probate copy of the will was tendered in evidence and its preparation
was independently proved by one Mr. J. E. Adu, a letter writer. The learned
trial judge therefore accepted it as the genuine will of the deceased and thus
determined the second issue in favour of the plaintiff. The first issue thus
turned out to be the most serious and controversial one during the trial. After
considering the oral testimony of the witnesses and weighing what he said were
the probabilities, the learned judge substantially decided the first issue also
in favour of the plaintiff. I use the word “substantially” deliberately because
the learned judge sustained the contention of the defendants that in so far as
the house was concerned, it was erected on family land and that the deceased
had no right to dispose of it by will.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants aggrieved by some of the findings of the learned judge appealed to
this court. Although paragraph (2) of the notice of appeal complains against
the whole judgment, the grounds of appeal make it plain that the defendants’
complaint relates only to the learned judge’s finding about the two cocoa
farms. When hearing of this appeal commenced before us on 11 May last, the
argument addressed to us in support of the appeal was limited to the two said
cocoa farms, and was brief and to the point.<o:p></o:p><o:p>&nbsp;</o:p>It was
submitted on behalf of the defendants that the onus was on the plaintiff to
show that the farms in question were the self-acquired properties of the late
Addai. It was said that not only did the plaintiff fail to show this, but that
he produced witnesses whose evidence shows that the farms belonged to the
family. Counsel referred us in particular to the evidence of Osei Kwam</main>