BISI AND OTHERS vs. TABIRI ALIAS ASARE [1987]DLSC727

Date	1987-07-28
Suit No.
Citation No.	[1987]DLSC727

TAYLOR JSC

FRANCOIS JS.C.

OSEI-HWERE JA

WUAKU JA

AMUA-SEKYI J.A

ENOCH D KOM FOR THE DEFENDANT-APPELLANTS.

A. A. OWUSU (WITH HIM W N OPPONG) FOR THE RESPONDENT.

[1987]DLSC727
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													<main id="main" class="content" style="min-height: 60rem" >BISI AND OTHERS <o:p></o:p>vs. <o:p></o:p>TABIRI ALIAS ASARE <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1987-88] 1 GLR 360<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
28 JULY 1987<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">

ENOCH D KOM FOR THE DEFENDANT-APPELLANTS. <o:p></o:p>

A. A. OWUSU (WITH HIM W N OPPONG) FOR 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">

TAYLOR, FRANCOIS JJS.C. OSEI-HWERE, WUAKU
AND AMUA-SEKYI JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>Osei-Hwere
J.A. delivered the first judgment at the invitation of Taylor J.S.C. By a
majority verdict of this court we dismissed the defendants’ appeal on 25 June
1987 but reserved our reasons which I proceed to give now. The appeal that came
before us sought, in effect, to challenge the concurrent findings of the High
Court and the Court of Appeal that house No SW 52 with its extensions is family
property. In order to settle any confusion about nomenclature it has to be
noted that the house with its extensions straddles two plots which, from the
records of the Lands Department, bears the composite name of plot No SW 66,
Area No 3, Sunyani. At the trial the main building, comprising two completed
floors, was referred to as SW 52 whilst the uncompleted extensions were
referred to as SW 66.<o:p></o:p><o:p>&nbsp;</o:p>The late
Asare Adjabeng was the uterine junior brother of the plaintiff. After his death
his alleged will in which he devised house No 52 including plot No SW 66 to his
five children by his first deceased wife was unearthed. This galvanised the
plaintiff into action. He issued his writ seeking a declaration that houses Nos
SW 52 and 66 are the property of the plaintiff’s family and also that the
alleged will of the late Asare Adjabeng is null and void.<o:p></o:p><o:p>&nbsp;</o:p>By the
said will the late Asare Adjabeng completely cut off his remaining seventeen
children by his other wives—a most unlikely attitude any fair minded Akan
father would adopt. The alleged will was prepared and executed not at Sunyani
where the late Asare Adjabeng resided but in Accra. For some one year after the
alleged execution of the will it was kept in the drawer of the lawyer who
prepared it; and it was lodged in the registry of the High Court, Accra, as if
by the testator himself five days after his death. In spite of all these
suspicious circumstances the trial judge pronounced for the validity of the
will.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s claim that house No.52 or houses Nos.52 and 66 are family
properties was sustained by the learned trial judge who found that although the
late Asare Adjabeng acquired the plot the plaintiff contributed in money and
building materials in the construction of the building. He also found that the
deceased Asare Adjabeng had succeeded to two family farms before the start of
the development on the plot. As he neither accounted to any member of his
family in respect of the proceeds of those farms nor was there any evidence to
show how he utilised the proceeds, the judge concluded that the late Asare Adjabeng
used the proceeds of the farms together with his own income as contribution
towards the building. On the totality of the evidence he found that the
contribution by the plaintiff and his family was real and substantial and he
consequently felt justified in law to pronounce the said house to be family
property.<o:p></o:p><o:p>&nbsp;</o:p>Aggrieved
by this decision the defendants appealed to the Court of Appeal on no less than
eleven grounds which, as sifted by the Court of Appeal, reduced themselves into
four grounds of appeal. These were:<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">“(a) that
the plaintiff failed to prove his case on the facts;<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">(b) That
in the absence of evidence of the cost of the house, the trial court was in no
position to say that the plaintiff’s contributions were substantial. The said
finding is erroneous and cannot be supported; (c) that even if the plaintiff
contributed substantially towards the building of the house, there was no proof
in law that the parties intended to put up a family house; and (d) that the
trial court substituted a new case for the plaintiff, contrary to and
inconsistent with the one put forward by the plaintiff himself.”<o:p></o:p>