ANSAH vs. KOFI [1992]DLCA4227

Date	1992-05-28
Suit No.
Citation No.	[1992]DLCA4227

ESSIEM JA

ADJABENG JA

FORSTER JA

I K BOAKYE FOR THE APPELLANT.

ANTHONY FORSON FOR THE RESPONDENT

[1992]DLCA4227
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													<main id="main" class="content" style="min-height: 60rem" >ANSAH<o:p></o:p>vs.<o:p></o:p>KOFI<o:p></o:p>[COURT
OF APPEAL, TAKORADI]<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">

[1993 - 4] 1 GBR 309 – 316&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 28 MAY 1992.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>I
K BOAKYE FOR THE APPELLANT.<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">

ANTHONY
FORSON 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 1.0pt 0in">

ESSIEM
JA, ADJABENG JA, FORSTER JA<o:p></o:p>

</div>ADJABENG
JA. The plaintiff-respondent, Kofi Arthiabah, the elder brother of Francis
Tayee Arthiabah, the late husband of the defendant-appellant, took action
against the defendant after the death of her husband, at the High Court,
Sekondi. By his amended writ of summons, the plaintiff sought a declaration
that House No 23/7, Liberation Road, Takoradi, is the property of the plaintiff
and not the self-acquired property of the late Francis Tayee Arthiabah. The
action was prompted by the fact that the said late husband of the defendant
purported in his will to dispose of this property as if it was his
self-acquired property. The plaintiff contended that the house was rather his
own self-acquired property and not the property of his late younger brother. He
later caused to be joined the executors of the will of the late F T Arthiabah
but they neither appeared nor took part in the proceedings.<o:p></o:p>The
plaintiff adduced evidence in support of his acquisition of the property and
also of his acts of ownership thereof. The trial judge was satisfied with this
evidence. He did not believe the story put up by the defendant that the
property was assigned to the plaintiff as her late husband’s nominee and that
the plaintiff later re-assigned this property to her late husband. The trial
judge accordingly entered judgment in favour of the plaintiff. The defendant,
dissatisfied with this, appealed to this court.<o:p></o:p>The
defendant originally appealed on two grounds. They are:<o:p></o:p>(1)
that the learned trial judge erred in law in holding that the deed of
assignment made between the plaintiff, Kofi Arthiabah, and the late Francis
Tayee Arthiabah was void; and<o:p></o:p>(2)
that the learned trial judge erred in law in holding that the late Francis
Tayee Arthiabah had no title to the property in dispute of which he could make
a testamentary disposition.<o:p></o:p>Later,
in this court, the defendant filed one additional ground of appeal, namely,
that:<o:p></o:p>“the plaintiff-respondent failed to
prove his title to the dwelling house situate on Plot No 23/7, Liberation Road,
Takoradi, which formed part of the estate of F T Arthiabah in that he failed to
satisfy the court that his assertion was literally true.”<o:p></o:p>Arguing
the two original grounds of appeal together, counsel for the defendant first
observed that the plaintiff’s notice to amend the indorsement on the writ of
summons by deleting the words “and other members of his family” had not been
dealt with, and so the amendment never took place. He submitted therefore that
the plaintiff did not discharge the onus of proving that the house in dispute
was his own family property. Counsel also submitted that the trial judge was
wrong in not considering exhibits B and C, and that since exhibit B had been
prepared by a lawyer, the judge was wrong in holding that the Illiterates
Protection Ordinance, Cap 262 was not complied with. Counsel cited in support
Owusu v Kumah [1984-86] 2 GLR 29. Counsel invited us to consider section 9 of
Cap 262 and to hold that exhibit B is a valid document and therefore the
defendant’s husband was the lessee of the property in dispute.<o:p></o:p>As
regards the additional ground of appeal filed, counsel for the defendant argued
that since it was the property of a deceased person that was being claimed in
this matter, the standard of proof that the plaintiff was required to satisfy
was higher than the normal standard required in a civil matter. Counsel
submitted therefore that it was not enough for the plaintiff to enter the
witness-box and say that exhibit B had not been interpreted to him before he
thumbprinted it. Counsel cited in support the following authorities: Morris v
Monrovia (1930) 1 WACA 70 at page 74; Wood v Robert Hammond Neizer, dated 16
December 1987, CA and In re Agyepong (deceased); Poku v Abosi &amp; Anor
[1982-83] GLR 254, holding (5) at page 256. We were invited therefore to allow
the appeal and declare the defendant’s husband the lessee of the land in
dispute.<o:p></o:p>Counsel
for the plaintiff in his reply argued that there was no evidence that the
plaintiff went together with the late F T Arthiabah to the lawyer for the
preparation of exhibit B. Counsel submitted therefore that the case of Owusu v
Kumah, supra was inapplicable here. Counsel tried to distinguish that case by
saying that in that case it was an illiterate who was trying to take a benefit
through the document whereas in the present case before us it is a literate,
the late F T Arthiabah, who wanted to take a benefit through exhibit B at the
expense of his illiterate brother, the plaintiff. It is the contention of the
plaintiff’s counsel that since the plaintiff denied that exhibit B had been
read over and interpreted to him, it was the duty of the defendant to call the
one who had interpreted the document to the plaintiff and, if possible, the lawyer
who had prepared it. Since the defendant failed to call these witnesses or any
of them, submitted counsel, the trial judge was right in holding that the
defendant had failed to discharge the burden imposed on her. Counsel submitted
that the trial judge considered all the issues raised in this case, and that
his findings are supported by the evidence on the record. He invited us,
therefore, not to disturb the judgment.<o:p></o:p>It
must be said at once that the observation made by the defendant’s counsel that
the notice of amendment filed by the plaintiff seeking to amend the indorsement
by deleting some words therefrom was not dealt with by the court is not borne
out by the record. At page 55 lines 10 to 17 of the record can be found the
following notes and order:<o:p></o:p>“Forson moves amendment to the writ.
It only deletes the words ‘and other members of his family’.<o:p></o:p>Forson: I had informed my friend about
this amendment.<o:p></o:p>