YALLEY JNR vs. KELL AND ANOTHER [1995]DLCA632

Date	1995-03-30
Suit No.
Citation No.	[1995]DLCA632

LAMPTEY JA

LUTTERODT JA

BENIN JA

EBOW QUASHIE FOR THE DEFENDANT-APPELLANT.

STEVEN HERBERT OCRAN FOR THE PLAINTIFF-RESPONDENTS.

[1995]DLCA632
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">YALLEY JNR<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KELL AND ANOTHER<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1995-96] 1 GLR 91<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 30 MARCH
1995<o:p></o:p>

</div>COUNSEL:<o:p></o:p>EBOW QUASHIE FOR THE DEFENDANT-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">

STEVEN HERBERT OCRAN FOR THE
PLAINTIFF-RESPONDENTS. <o:p></o:p>

LAMPTEY, LUTTERODT AND BENIN
JJA<o:p></o:p>

</div>JUDGMENT OF LUTTERODT JA.<o:p></o:p>The late Amos Thomas Yalley, by his will, disposed of house No
27/2, Ahanta Road, Takoradi as his personal property. This sparked off a legal
dispute between the plaintiff-respondents (hereinafter referred to as the
respondents), who are his head of family and sister respectively, on the one
hand and the defendant-appellant (hereinafter referred to as the appellant),
his son executor-beneficiary under the said will on the other hand. The
respondents had, in the court below sought a declaration that the said property
is family property and prayed for a further order “detaching the said property
from the estate of the deceased.”<o:p></o:p>The only major common ground between the parties had been this,
that the land on which the building stood, was originally leased to Ekua
Inkuntomponyi, the mother of both the second respondent and the late Yalley.
She died in 1939 and the lease expired in 1954.<o:p></o:p>The case of the respondents was that when upon the death of their
mother the land together with a swish building on it became family property,
the second respondent and other siblings, Yalley included, pulled their
resources together, demolished the swish structure and created in its place the
property in dispute. Their further claim is that it was upon the death of
Yalley when his will came to be read that they learned to their dismay that he
had fraudulently caused the Lands Department to change the documents covering
the property into his personal name.<o:p></o:p>The appellant did not merely deny the allegation of fraud but
maintained that the testator acquired a lawful lease from the Government of
Ghana in respect of the land and constructed the said property without any
assistance from any quarter.<o:p></o:p>After hearing evidence, the learned trial judge found as a fact
that the said house was built by the deceased alone, but on land belonging to
the family. Consequently, he held that the deceased had only a life interest in
the said property and so gave judgment for the respondents. Aggrieved by this
decision, the appellant has appealed on the number of grounds contained in (a)
the notice of appeal, (b) additional ground of appeal, and (c) further
additional ground of appeal.<o:p></o:p>The matters were urged in respect of the further additional ground
of appeal dated 28 November 1994 and which reads as follows: “The learned judge
misconstrued the evidence on the record.” It was first submitted that the
holding that exhibits B1 and B2 were not made by the persons whose thumb prints
appear thereon is erroneous. Counsel based his submission on the fact that
there was no evidence on the record that the authors were illiterates. His
further argument is that assuming even that these persons were illiterates, the
learned trial judge proceeded on the wrong principle of law by placing the
burden of proving that the authors appreciated the meaning and import of these
documents on the appellant, who did not tender them.<o:p></o:p>Secondly, counsel contended that yet again the learned trial
judge, fell into another serious error of law when he placed the burden of
proving the validity of these exhibits on the appellant. It was urged that it
was this which led him to misapply the principle enunciated in Kwamin v Kufuor
(1914) PC ‘74-’28, 28.<o:p></o:p>Now, in paragraph (7) of their statement of claim, the respondents
had alleged that the late Yalley had fraudulently changed the papers covering
the land which originally belonged to their mother, and which took on the
character of family property upon her death, into his name. They had gone on to
particularise the fraud as such:<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">“After swearing that the late Ekua Inkuntomponyi gifted the house
to him and that he is the customary successor to the late Ekua Inkuntomponyi
though he was not the successor, and that the said house was not gifted to
him.”<o:p></o:p>In order to prove their assertion that it</main>