CECILIA OSEI OWUSU vs. AKOSUA MANSAH & JAMES OSEI AKWASI [2004]DLCA6679

Date	2004-07-23
Suit No.	HI/155/2004
Citation No.	[2004]DLCA6679

P.K. TWUMASI J.A (PRESIDING)

A. ASARE KORANG J.A

E.K. PIESARE J.A

R.V.C. ADDAI FOR APPELLANTS.

E.C. ANNAN FOR RESPONDENTS.

[2004]DLCA6679
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													<main id="main" class="content" style="min-height: 60rem" >CECILIA OSEI OWUSU<o:p></o:p>vs.<o:p></o:p>AKOSUA MANSAH &amp; JAMES OSEI AKWASI<o:p></o:p>[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">

HI/155/2004&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; DATE: 23RD JULY 2004<o:p></o:p>

E.C.
ANNAN FOR RESPONDENTS.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ASARE-KORANG,
J.A. <o:p></o:p>In the court below, the
plaintiff/respondent (the plaintiff for short) who said she presently resides
at 92 Higham Hill Road E176ES, London England, sued the defendants/appellants
(1st and 2nd defendants for short) in the circuit court for <o:p></o:p>1.
An order for the revocation of <o:p></o:p>2.
Letters of Administration granted to the defendants in respect of the estate of
James Osei-Owusu (deceased) on grounds of fraud <o:p></o:p>3.
General Damages. <o:p></o:p>The 1st and 2nd defendants
jointly filed a Statement of Defence after entering appearance and counter
claimed for: <o:p></o:p>"(a) A Declaration
that 1st Defendant is the only lawful spouse of the said James Osei-Owusu
(deceased) and as such the grant of Letters of Administration was lawful <o:p></o:p>(b) Perpetual injunction
restraining the plaintiff, her agents, heirs, workmen, privies, personal representatives
from interfering with the Defendants right to administer the said estate. The
plaintiff testified that she got married to James Osei-Owusu (deceased) in
London on 17th June 1989 under the marriage Act of 1949. A certified copy of an
entry of marriage in proof of the marriage was issued. <o:p></o:p>Plaintiff stated that the
original of the marriage certificate got lost and upon an application, she was
issued with another one. The original of the new certificate and a photocopy of
the lost one were tendered in evidence as Exhibits A and B respectively. <o:p></o:p>Plaintiff lived with the
deceased in London but occasionally paid visits to Ghana after her marriage
with her deceased husband. <o:p></o:p>Plaintiff said while in
London, she used to correspond in writing with the 2nd defendant whom she knew
as the son of her late husband. Of the 1st defendant, she stated that she had
heard that she had a female child with the deceased. <o:p></o:p>It was the case of the 1st
defendant that she was customarily married to the deceased and during the
subsistence of the customary marriage had a child—a daughter, who has now
attained the age of majority, with him. After the marriage, she moved from her
hometown, Nkawie-Mim to stay with her late husband at Nkawie in a house
belonging to the family of her husband. <o:p></o:p>According to the 1st
defendant, before the deceased travelled to live in London, their customary
marriage was registered at the Nkawie District Assembly and a certificate
marked Exhibit 1 was issued. <o:p></o:p>1st defendant said she did
not know the plaintiff and considered herself as the only surviving spouse of
the deceased. <o:p></o:p>2nd defendant also gave
evidence and denied that the plaintiff was the spouse of the deceased. He said
at the time of the death the deceased who was his father, he knew the 1st
defendant as the only woman to whom the deceased was married. <o:p></o:p>In essence, the defendants
denied that they had obtained by fraud Letters of Administration to administer
the estate of the deceased. They explained that the deceased could be said to
be living both in Ghana and the United Kingdom and that whenever he was in
Ghana, he lived at H/No. AA/6 Community 11, Tema, or H/No. 3A/35B Tabora,
Accra. <o:p></o:p>In both her statement of
claim and her reply to the defendants statement of defence, the plaintiff
positively asserted that the 1st defendant is the divorced wife of the
deceased. And while testifying plaintiff said she could not tell if ever there
was any marriage between the deceased and the 1st defendant. All that she knew
was that the 1st defendant had a child with the deceased. <o:p></o:p>The learned trial judge, having
noted in his judgment that the plaintiff had stated that she resides at 92
Higham Hill Road E176ES, London, England and also at H/No. 3A/35B, Tabora,
Accra, rightly observed that the plaintiff gave no indication before the court
that the marriage between her and the deceased was Published in Ghana as having
been celebrated in the U.K, making it extremely difficult for relatives and
associates of the deceased, James Osei-Owusu to know about it. Having so neatly
and flawlessly found on the evidence, the learned trial judge curiously held
that he was inclined to believe that the plaintiff was lawfully married to the
deceased and for that matter she falls within rule 7 of the Probate and
Administration Rules, 1991, L.I. 1515. <o:p></o:p>The trial judge proceeded
from there to revoke the Letters of Administration obtained by the 1st and 2nd
defendants on 7th July 2000 and to dismiss the plaintiff's claim for general
damages and the defendants counter claim. The defendants have appealed against
that judgment to this court, the original grounds of appeal being: <o:p></o:p>"(a) That the trial judge failed
to adequately evaluate the evid</main>