QUANSAH vs. ADADEIWA [1966]DLHC1744

Date	1966-02-16
Suit No.
Citation No.	[1966]DLHC1744

ARCHER J.

POLLEY FOR THE PLAINTIFF.

ESSILFIE-BONDZIE FOR THE DEFENDANT.

[1966]DLHC1744
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													<main id="main" class="content" style="min-height: 60rem" >QUANSAH<o:p></o:p>&nbsp;vs. <o:p></o:p>ADADEIWA <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1966] GLR 184<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:
16 FEBRUARY
1966.<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">

POLLEY 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 windowtext 1.5pt;
padding:0in 0in 0in 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>The
plaintiff as customary successor of his late brother J. E. Quansah claims
against the defendant, the widow of the said late brother, a declaration of
title to that piece or parcel of land with the buildings thereon, situate at
Aboom, Cape Coast, and known as Plot 95. The plaintiff also claims an account
of all rents collected by the defendant from tenants occupying the building on
the said land and also payment to the plaintiff of the amount that may be found
due and owing.<o:p></o:p><o:p>&nbsp;</o:p>The facts
of the case are that by an indenture dated 5 May 1947 tendered as exhibit B,
one William Essuman-Gwira Sekyi as vendor conveyed the land in question to
Madam Effua Atta, the mother of the plaintiff and his deceased brother, J. E.
Quansah, for the consideration of the sum of £G85 paid by the purchaser.
According to the plaintiff in his evidence, he had a transaction with his late
brother in relation to this piece of land, and the two of them purchased the
land in the name of their mother, Madam Effua Atta. After exhibit B had been
executed, Madam Effua Atta did nothing about the land and the plaintiff and his
deceased brother put up a building on the land supervised by the plaintiff. The
plaintiff also testified that his late brother approached their mother and
explained to her that owing to unforeseen circumstances, the land should be
conveyed to the deceased brother. As a result of this approach, a deed of gift
was made by their mother. This deed of gift was tendered as exhibit C and it is
dated 7 August 1955. The plaintiff’s brother died on 15 July 1962 when the
building had not been completed. After the brother’s death, the defendant
occupied the house together with her tenants. The plaintiff claims to have been
appointed customary successor of his late brother who died intestate and claims
the house, now occupied by the defendant and the other tenants, as family
property.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant disputes that the plaintiff has ever been appointed customary
successor and claims that the house was devised by Madam Effua Atta. who died
on 7 February 1964 to the defendant’s children by the deceased brother, J. E.
Quansah. The original probate with copy of the will attached was tendered as exhibit
1. The defendant has challenged the validity of the deed of gift—exhibit C. The
questions to be decided by the court appears to me to be:<o:p></o:p>(1) Whether
the plaintiff is the customary successor of the late J. E. Quansah, and (2)
whether at the date of the death of Madam Effua Atta, the house in question was
her property by virtue of the deed of conveyance, exhibit B, over which she had
the testamentary power to dispose. I shall attempt to answer the first question
by dealing with facts in the second question because if I am able to do so then
I may consider whether it is necessary to pursue the second question. To prove
the due execution of the deed of gift, exhibit B, the plaintiff brought two
witnesses. One was Kweku Mensah who claimed to belong to the Aburadzie family
of which the plaintiff is a member. When exhibit B was shown to him, he
remembered that he signed the deed as a witness. I consider the evidence of
this witness as of vital importance as he appears to be the only person who has
given evidence out of the persons who signed the document as parties and
witnesses. The following are his words in evidence on oath: “I remember during
her lifetime, she made some document. I signed that document, exhibit C, and I
see my signature on it. The document was not read to her while I was there. I
was present when she made her mark but I was not present when it was read to
her.”<o:p></o:p><o:p>&nbsp;</o:p>The court
heard another witness Kwamina Onyibi Essiam for the plaintiff. He was not a
witness to the deed but claimed to be very conversant with the signature of one
Kwesi Asaam who was his paternal cousin now dead. Essiam said he and Asaam were
law clerks in the same lawyer’s office for about 22 years. He identified four
signatures of Kwesi Asaam on the deed of gift. Kwesi Asaam according to the
concluding clause was the one who read over and interpreted to the donor Madam
Effua Atta in the Fante language, the contents of the deed. Kwesi Asaam also
signed as witness to the mark of the donor. Later the same Kwesi Asaam proved
on oath the due execution of the instrument before the High Court registrar,
Cape Coast. Kwesi Asaam is dead.<o:p></o:p>Learned
counsel for the defendant has submitted that as Madam Effua Atta was an
illiterate, the deed of gift was not her act as there is no presumption that an
illiterate person is presumed to have appreciated the meaning and effect of a</main>