MAMA AVESI & III ORS. vs. JOANA DE-GRAFT JOHNSON [2004]DLCA6227

Date	2004-02-12
Suit No.	HI/15/2004
Citation No.	[2004]DLCA6227

LARTEY J.A.

ANSAH J.A.

AKOTO BAMFO (MRS)

[2004]DLCA6227
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >MAMA AVESI
&amp; III ORS. <o:p></o:p>(PLAINTIFFS/ APPELLANTS)<o:p></o:p>vs.<o:p></o:p>JOANA
DE-GRAFT JOHNSON <o:p></o:p>(DEFENDANTS/ RESPONDENTS)<o:p></o:p>&nbsp;<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<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" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">HI/15/2004 &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; &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: 12TH FEBRUARY, 2004<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">LARTEY J.A., ANSAH J.A., AKOTO
BAMFO (MRS)<o:p></o:p>

</div><o:p>&nbsp;</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="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;mso-outline-level:1;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>AKOTO-BAMFO
(MRS) JA <o:p></o:p>Theodore
Kwao Ahortor died intestate on the 30th of March 2000. Upon an application by
the plaintiffs, Letters of Administration was granted to them. The defendant
caveated; when the parties failed to reach an agreement, the learned judge
directed that a writ of summons be issued to determine the proper party to whom
the grant should be made. <o:p></o:p>After
a full trial the learned Judge delivered himself thus: "<o:p></o:p>I
will let the 1st plaintiff, that is a widow take out the Letters of
Administration of the late Ahortor. I will let 2 children of the late Ahotor
Herty and Charity take out Letters of Administration jointly with their mother.
Then I declare that unlike what the writ of summons said, the defendant also a
lawful widow and should take out Letters of Administration jointly with the 3
plaintiffs. She also has a locus in this case and that is taking joint Letters
of Administration with the 3 of the plaintiffs." <o:p></o:p>It
is evident that both parties felt aggrieved by the decision of the learned
Judge; for on the 14th of August 2001, the plaintiffs filed a Notice of Appeal.
They complained that:— <o:p></o:p>(1)
the judgment was against the weight of evidence <o:p></o:p>(2)
that the judgment was perverse and; <o:p></o:p>(3)
that the learned Judge erred in finding that the defendant was a widow of
Theodore Kwao Ahortor. <o:p></o:p>Similarly
and on the 27th of August 2001, the defendant also lodged an appeal. Her ground
was that "the part of the decision complained of cannot be supported
having regard to the evidence adduced." I must say that the formulation of
this ground of appeal by the defendant was deficient in elegance. <o:p></o:p>Even
though 3 grounds of appeal were filed by the plaintiff; in his submissions,
learned counsel subsumed them under one umbrella and argued that the decision
of the learned Judge that the defendant was a widow of the deceased was
perverse in so far as there was no evidence to support that finding and
therefore that the judgment was against the weight of evidence. <o:p></o:p>In
a counter argument, learned counsel for the defendant submitted that there was
sufficient evidence on record that the defendant was married to the deceased;
according to him it was rather the plaintiff who failed to lead evidence on the
existence of the marriage between her and the deceased; and therefore the
learned Judge erred in finding that the 1st plaintiff was the widow. <o:p></o:p>The
central issue confronting this court in both appeals is whether both plaintiff
and defendant were widows of the late Ahortor as found by the learned Judge or
whether the learned Judge was wrong in so finding; and therefore the proper
party to whom the grant should be made. <o:p></o:p>The
thrust of the 1st plaintiff's case was that she was married to the deceased for
about 50 years. They initially lived together in Sokpoe. Subsequently when the
deceased was employed by the Judicial Service and had to be transferred to
various parts of the country, she accompanied him. When the deceased was
eventually transferred to Tarkwa she stayed behind because she had then been
made an elder of her family; according to her, she visited the deceased, but
never met the defendant; neither was she ever introduced to her as her rival.
When the deceased Ahortor died, she provided items for the burial participated
in the funeral and underwent the widowhood rites. In support of her case, PW1,
the head of family of the deceased testified that she was the wife and
corroborated her evidence in every material particular on the issue of
widowhood. He averred that he once met the defendant in the house of the
deceased but that the latter informed him that the defendant was a girlfriend. <o:p></o:p>