IN RE WIREDU (DECD.); OSEI vs. ADDAI [1980]DLHC2141

Date	1980-01-20
Suit No.
Citation No.	[1980]DLHC2141

OWUSU-ADDO J.

K. K. ATTOBRAH FOR THE PLAINTIFF.

DEI KWARTENG FOR THE DEFENDANT.

[1980]DLHC2141
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													<main id="main" class="content" style="min-height: 60rem" >IN RE WIREDU (DECD.); OSEI <o:p></o:p>vs. <o:p></o:p>ADDAI<o:p></o:p>&nbsp;[HIGH
COURT, KUMASI]<o:p></o:p>[1982-83] GLR 501<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:
20 JANUARY
1980<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">

K. K. ATTOBRAH FOR THE PLAINTIFF. <o:p></o:p>

DEI KWARTENG FOR THE DEFENDANT.<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 1.0pt 0in">

OWUSU-ADDO J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OWUSU-ADDO J.<o:p></o:p>The brief
introductory facts of this case are that after the death of one Francis Wiredu
at Mamponteng in 1965 the plaintiff, his maternal first cousin, was appointed
his customary successor. He applied for letters of administration in 1978 to
administer the deceased’s estate. Attached to the application was the usual
inventory of the deceased’s properties including an estate house No. K.39,
South Suntreso.<o:p></o:p><o:p>&nbsp;</o:p>A caveat
was entered by the defendant who contended that the estate house was not one of
the deceased’s properties but his (defendant’s) property. His reasons being
that he approached the deceased to use his influence to obtain an estate house
for him but it was agreed between him and the deceased that the deceased’s name
would appear in the State Housing Corporation’s books as tenant. The deceased
was therefore his nominee whilst he was the real owner of the estate house.<o:p></o:p><o:p>&nbsp;</o:p>On 8 May
1978 the defendant’s application for letters of administration, No. 169/78, was
placed before this court. In that application, the defendant described himself
in his supporting affidavit as the customary successor of the deceased. Having
been examined viva voce by the court the defendant admitted that he had not
been appointed the deceased’s customary successor and apologised to the court
for committing perjury. At that stage the court dismissed his application for
letters of administration upon his own admission. The contents of the
defendant’s false affidavit will be referred to at a later stage of this
judgment.<o:p></o:p>On 14
November 1978 the plaintiff’s motion brought under Order 60, r. 20 (2) of the
High Court (Civil Procedure) Rules, 1954 (LN 140A), applying for letters of
administration was granted and the court ordered a writ of summons to issue for
the determination of ownership of the estate house.<o:p></o:p><o:p>&nbsp;</o:p>The controversy
between the parties is about the ownership of the estate house No. K.39, South
Suntreso, Kumasi. The plaintiff’s claim is that as customary successor to the
late Francis Wiredu, who died intestate, he is entitled to ownership of the
deceased’s estate house. Paragraphs 4, 5 and 6 of his statement of claim read:<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">“4. The
plaintiff says that in his lifetime Francis Wiredu applied for and was
allocated estate house No.K.39, South Suntreso, Kumasi, on rental basis, he
lived there from 1953 until his death. 5. (a) The plaintiff says that as
customary successor, he took over the control of the said house; he however
permitted other members of the family to stay in the said house and saw to it
that the monthly rent was paid. (b) The plaintiff says that the defendant,
being a nephew, also lodged in the said house on his return from his trips to
Nigeria. 6. The plaintiff says that the hire-purchase instalments on the said
house was completed in April 1978, after that the family met and it was agreed
that the plaintiff, as customary successor, should have Francis Wiredu’s name
changed to his name; the plaintiff therefore found it necessary to apply for
letters of administration with a view to changing Francis Wiredu’s name to his
name as the owner of the said house.”<o:p></o:p><o:p>&nbsp;</o:p>For his
part the defendant by his counterclaim, claims a declaration of ownership in
possession of the estate house and as lessee of the State Housing Corporation
(SHC). The relevant paragraphs of his statement of defence read:<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">“6. In
1953 the defendant approached the said</main>