TANOH vs. ABBAN-MENSAH AND ANOTHER [1992]DLCA4289

Date	1992-12-10
Suit No.
Citation No.	[1992]DLCA4289

LAMPTEY JA

KPEGAH JA

FORSTER JA

GWIRA FOR THE APPELLANT.

WINNEY FOR THE RESPONDENT

[1992]DLCA4289
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													<main id="main" class="content" style="min-height: 60rem" >TANOH<o:p></o:p>vs.<o:p></o:p>ABBAN-MENSAH AND ANOTHER<o:p></o:p>[COURT
OF APPEAL, SEKONDI]<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 282 – 292&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; &nbsp; &nbsp; &nbsp; DATE: 10 DECEMBER 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>GWIRA
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">

WINNEY
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">

</div>FORSTER
JA. This is an appeal by the plaintiff-appellant (hereinafter called “the
plaintiff”) from the judgment of Adjabeng J (as he then was) sitting at the
High Court, Sekondi, dated 30 November 1987 whereby he dismissed the
plaintiff’s claim for declaration of title. The plaintiff is the son of Kobina
Tandoh of Ekuasi, near Sekondi. He died testate on 12 July 1979. The
defendants-respondents (hereinafter called “the defendants”) were the executors
of the will of the deceased Kobina Tandoh. The deceased had three houses, of
these House No 63/29 was the subject-matter of the suit. By his said will the
deceased left the houses to his nephews and nieces. On 18 March 1982 the
plaintiff by his writ sued for “a declaration that houses Nos. 62/29 and 63/29
are the joint properties of Kodwo Tandoh (deceased) and Ebow Kobina Tandoh, and
therefore not the subject of disposition in the will of Kodwo Tandoh”.<o:p></o:p>In
his statement of claim, the plaintiff averred that he substantially contributed
to the construction of House No 63/29 and therefore the property was not
subject to disposition under the will. The defendants on the other hand claimed
that the property was wholly constructed by the deceased and without any
assistance from the plaintiff and other children of the deceased.<o:p></o:p>In
his grounds of appeal the plaintiff contends that:<o:p></o:p>“1. The court was wrong in its
interpretation of the customary law on joint ownership of property between
father and son.<o:p></o:p>2. The court erred in believing defendants
that the plaintiff collected documents under a false pretence when available
evidence including defendants’ point to the contrary.<o:p></o:p>3. Failure by the defendants to call a
material witness, i.e. Efua Grant, was fatal to their case.<o:p></o:p>4. Trial court erred in holding that
the plaintiff and his brothers and sisters did not contribute substantially to
the building of House No. 63/29 and that the judgment is unreasonable having
regard to the evidence adduced.”<o:p></o:p>Arguing
the first ground of appeal, counsel for the plaintiff submitted that the judge
erred when he failed to correctly interpret the customary law on joint
ownership, in this case between father and son. It is evident from the judgment
that the trial judge did accept the soundness of the proposition that joint
ownership was known to customary law. He however cautioned that evidence
tendered to prove an intention to hold property jointly “... must be quite
strong so as to leave the court in no doubt that the parties indeed intended
that the customary law principle should not apply”.<o:p></o:p>That
was no mis-statement of the customary law. In Yeboah v Yeboah [1974] 2 GLR 114,
a case which counsel himself relied on before us, Hayfron-Benjamin J (as he
then was) having stated that joint ownership between persons who are not
connected by blood was recognised by customary law, held at page 115, that the
law would give effect to such intention “where there was clear evidence that
the parties intended to hold the property as joint tenants”. See also Abebreseh
v Kaah [1976] 2 GLR 46.<o:p></o:p>The
quality of the evidence must be necessarily clear since primarily at customary
law there seems to be a presumption against joint ownership. The position of
the early cases on the subject was stated by Ollenu J in Adjabeng v Kwabla
[1960] GLR 37 at p 41 where he said in a passage which has become well known:<o:p></o:p>“... where a son or ward works with
his father or guardian and out of the proceeds of that joint labour the father
or guardian acquired property, the son or ward does not become joint owner of
that property with the father or guardian.”<o:p></o:p>See
also Adom v Kwarley [1962] 1 GLR 112.<o:p></o:p>It
is therefore settled law that at customary law the proponent of an intention to
hold property as joint tenants, must satisfy the court by clear and strong evidence
that the parties so intended, otherwise customary law would hold the parties to
the contrary that there was no such intention. <o:p></o:p>In
the instant case where the title deeds were in the name of Kobina Tandoh who
had, subsequent to the alleged oral declaration of intention, willed the
disputed property to a person other than the plaintiff, and especially, where
Kobina Tandoh’s lips are forever sealed in death, the evidence proffered to
prove the alleged intention must be very strong indeed. The additional factor
of the death of the declarant makes such assertion rather suspect. As rightly
held by the Court of Appeal in Moses v Anane [1989-90] 2 GLR 694.<o:p></o:p>“a claim against a deceased’s estate
must be scrutinised with the utmost suspicion. Proof must be strict and utterly
convincing as one of the protagonists was dead and could not assert his claim.”<o:p></o:p>This
therefore is the quality of the degree of proof required of the plaintiff if he
should succeed in the instant case.<o:p></o:p>The
case of the plaintiff was that when he returned to the country from overseas in
1965, his father called him and suggested that he and the other children should
contribute towards the construction of the disputed house, hereinafter referred
to as </main>