MOSES AND OTHERS vs. ANANE [1988]DLCA643

Date	1988-01-20
Suit No.
Citation No.	[1988]DLCA643

APALOO C.J

FRANCOIS JA

EDWARD WIREDU J.A

OPPONG FOR THE APPELLANTS.

NO APPEARANCE BY OR FOR THE RESPONDENTS

[1988]DLCA643
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													<main id="main" class="content" style="min-height: 60rem" >MOSES AND OTHERS <o:p></o:p>vs. <o:p></o:p>ANANE<o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1989-90] 2 GLR 694<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 1988<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">

OPPONG FOR THE APPELLANTS.<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">

APALOO C.J, FRANCOIS AND EDWARD WIREDU
JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.A.<o:p></o:p>Francois
J.A. delivered the judgment of the court. On 14 November 1983 we reversed the
decision of the High Court, Sunyani in this appeal and reserved our reasons for
a later date. We now proceed to give those reasons.<o:p></o:p><o:p>&nbsp;</o:p>The
simple issue in this matter was the determination of the ownership of a
storey-house situate on plot No 88, Area 4, Sunyani. This plot of land was
leased to the late Kwadwo Mensah by the Ghana Government on a 99-year lease in
June 1966. Though there is not much evidence about the actual construction of
the building or the manner in which rates, rents and other tax liabilities were
levied or discharged, the late Kwadwo Mensah in his lifetime treated the
property as his own, absolutely. The plaintiff-respondent had to concede that
the late Kwadwo Mensah put in tenants as he pleased and enjoyed exclusively the
rents accruing from the house. Further, in his lifetime no protest or challenge
to the proprietary nature of his administration of the property was remotely
advanced. Thanks to the help Kwadwo Mensah received from his patrilineal
family, he made something of his life and did not waste away at home. At Kumasi
and Bawku, his thrift, business acumen and high sense of responsibility bore
fruit.<o:p></o:p><o:p>&nbsp;</o:p>Kwadwo
Mensah died on 1 January 1974. In devises and bequests in his will he
apportioned the Sunyani house and other personality to his children and his
matrilineal family in what he described as customary shares. Probate of his will
was obtained on 15 May 1974. There has never been an issue or dispute as to the
validity of this will.<o:p></o:p><o:p>&nbsp;</o:p>After a
lapse of two years, the executors must have appeared tardy to the
plaintiff-respondent over the honouring of the deceased’s wishes to the matrilineal
family. Consequently she, as head of that family, sought by an originating
summons a determination of the family’s rights to the immediate enjoyment of
the properties bequeathed to the family including their portion of the Sunyani
house. The plaintiff’s avowed aim of proceeding by summons was set out in an
affidavit of 14 September 1974, which complained in paragraphs 5-11 thereof of
the discrimination exercised by the executors of the will in failing to
discharge their duty towards the plaintiff-respondent’s family while performing
promptly their obligations to the other beneficiaries. The summons was heard
and a determination in favour of the plaintiff-respondent pronounced on 9
December 1976, and she in due course received the family’s share of the devises
mentioned in the will.<o:p></o:p><o:p>&nbsp;</o:p>Not
satisfied with half a cake, two years later on 4 April 1978 the
plaintiff-respondent issued a writ claiming the whole of the Sunyani house as
family property. To prop up the family character of the house and deny it a
self-acquired status, she urged that she contributed £6,000 (¢12,000) from
family funds towards its construction. She maintained that the acquisition of
the government lease was a joint effort with Kwadwo Mensah, but the latter
being a male had his name solely entered in the document, exhibit X. Any force
this contention may have had was completely eroded by her admission that she
built another family house, SNT 12A, at Sunyani from family funds in which
Kwadwo Mensah seems to have played no part. To the bare assertion of a family
contribution of £6,000 nothing was added of the slightest persuasive hue to
give the house a family colouring. The sole witness the plaintiff-respondent
called betrayed her ignorance of the matter in dispute and her need to confer
with the plaintiff-respondent while still in the box incurred the displeasure
of the trial judge which culminated in the ultimate sanction of sending the
plaintiff-respondent out of court. If the witness had been knowledgeable about
the house, the obvious conflict about the amount the family was alleged to have
contributed, £5,000 or £6,000, could have been excused, but the picture which
emerged was of a witness who was poorly coached and who performed even worse.<o:p></o:p><o:p>&nbsp;</o:p>On the
totality of the evidence led on the plaintiff-respondent’s behalf therefore, a
simple claim to title could not have succeeded. Compounded therefore with
issues of estoppel and a claim against a deceased person’s estate which we
shall consider presently, the pr</main>