AUGUSTINE YAW MANU vs. MADAM ELIZABETH AMMA NSIAH [2005]DLSC2403

Date	2005-01-12
Suit No.	CIVIL APPEAL NO. J4/32/2004
Citation No.	[2005]DLSC2403

MISS AKUFFO J.S.C. (PRESIDING

DR. TWUM J.S.C

DR. DATE0BAH J.S.C

LARTEY J.S.C

ANINAKWA J.S.C.

MR. ATTA AKYEA FOR APPELLANT.

MR. DENNIL ADJEI FOR RESPONDENT.

[2005]DLSC2403
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													<main id="main" class="content" style="min-height: 60rem" >AUGUSTINE YAW MANU<o:p></o:p>vs.<o:p></o:p>MADAM ELIZABETH AMMA NSIAH<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/32/2004<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">

DATE: 12TH JANUARY, 2005.<o:p></o:p>

&nbsp;MR. DENNIL ADJEI FOR RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

MISS
AKUFFO, J.S.C. (PRESIDING), DR. TWUM, J.S.C., DR. DATE0BAH, J.S.C., LARTEY,
J.S.C., ANINAKWA, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>&nbsp;LARTEY, J.S.C.:&nbsp;&nbsp;&nbsp;&nbsp; This is an appeal against the judgment of
the Court of Appeal reversing the judgment of the High Court, Kumasi, which
held that the appellant (hereinafter referred to is the plaintiff) had capacity
to file this action and that the disputed house is family property.&nbsp; Aggrieved by the High Court decision the
respondent (hereinafter also referred to as the defendant) successfully
appealed against the judgment of the High Court and had it overturned.<o:p></o:p>The
plaintiff issued the instant writ at the Kumasi High Court against the
defendant claiming:<o:p></o:p>“1. A declaration that House No. Z.E.
172 Zongo Extension/Kumasi-Ashanti is the property of the immediate matrilineal
family of the late Stephen Yaw Nimo.<o:p></o:p>&nbsp;<o:p></o:p>2. That the late Stephen Yaw Nimo had
no capacity to present House No. Z.E. 172 Zongo Extension, Kumasi/Ashanti
intervivos by a purported ‘Deed of Gift’ to Madam Elizabeth Amma Nsiah without
the knowledge and consent of the matrilineal family the owner thereof.<o:p></o:p>3. That the said Deed of Gift
purportedly executed between Stephen Yaw Nimo during his life time and Madam
Elizabeth Amma Nsiah dated the 30th of August, 1994 is null and void and of no
effect whatsoever and that therefore the same should be set aside.<o:p></o:p>&nbsp;4. An order of perpetual injunction
restraining the defendant, her agents, administratrixes, Executrixes,
successors according to native customary law, assigns and any other member or
members of her family from laying claim to the ownership of House no. Z.E. 172,
Zongo Extension, Kumasi/Ashanti.<o:p></o:p>&nbsp;In his amended statement of claim, the
plaintiff avers that he brought the action on behalf of the matrilineal family
of the late Yaw Nimo of which he is the head, although by the endorsement on
the writ of summons his relief for declaration of title is that the property is
for the immediate matrilineal family of the said Yaw Nimo.&nbsp; He alleges that the disputed property was the
self-acquired property of the late Kwadwo Nsiah, and upon his death intestate
he was customarily succeeded by Yaw Nimo (deceased), who applied for and was
granted Letters of Administration to administer the estate of Kwadwo Nsiah for
and on behalf of the matrilineal family.&nbsp;
It was further his averment that the late Yaw Nimo clandestinely
substituted his name for that of Kwadwo Nsiah as the assignee of the house
without the family’s knowledge and consent.&nbsp;
The plaintiff states also that after the death of Yaw Nimo a purported
will was read out at the High Court Registry, Kumasi, which will turned out to
be a deed of gift purportedly executed between the late Yaw Nimo and his widow
the defendant, by which deed the late Yaw Nimo gave the house in dispute to the
defendant.<o:p></o:p>The
defendant, admitting the grant of Letters of Administration to her late husband
Yaw Nimo, denied that he clandestinely used it to substitute his name for that
of Kwadwo Nsiah.&nbsp; She alleged that it was
the said Kwadwo Nsiah who made a gift of the house to her, and it was he who
gave her in marriage to his nephew Yaw Nimo.&nbsp;
She contended that the document which was read at the High Court was a
deed of gift executed in her favour and confirming a gift inter vivos of the
house by the predecessor of her husband Opanin Kwadwo Nsiah.&nbsp; The gift was the result of the late Kwadwo
Nsiah giving the defendant in marriage to his nephew Yaw Nimo.&nbsp; The defendant again contends that the
plaintiff is estopped from commenting on the defendant’s title to the property
as the plaintiff is in no way related to the late Yaw Nimo – the former
belonging to the Boayaase Baamu family and the latter the Abrafo family
respectively.<o:p></o:p>At
the trial, the plaintiff called four witnesses.&nbsp;
His first witness Abena Nkrumah, who described the plaintiff as her
elder sister’s son testified that the owner of the disputed house was the late
Kwadwo Nsiah who acquired it through purchase.&nbsp;
According to this witness Kwadwo Nsiah in his lifetime instructed that
whoever was to be his customary successor was to hold the property in trust for
the family.&nbsp; Kwadwo Nsiah was succeeded
by Yaw Nimo who in turn was succeeded by the Plaintiff.&nbsp; P.W.2 (Kwame Dumfeh) also testified that upon
the death of Yaw Nimo the whole family met and appointed the Plaintiff to
succeed the deceased.&nbsp; On this issue
relating to the appointment of the plaintiff as successor to Yaw Nimo, the
evidence of PWs 3 and 4 was based on what they claimed the late Yaw Krah told
them.&nbsp; PW3 (Nana Kwame Asua) claimed to
have heard through Yaw Krah that he (Yaw Krah) had been appointed “to take care
of the widow ….. as well as the children and entire estate of the deceased” and
that he (Yaw Krah) had appointed his brother the plaintiff “to sit on his lap
and act in his stead, whenever he Yaw Krah was away”.&nbsp; On his part P.W.4 (Nana Kofi Agyei IV) said
Yaw Krah told him that he (Yaw Krah) was appointed customary successor to Yaw
Nimo but he declined to accept the appointment on the ground that he had been a
successor to some of his deceased relatives, whereupon the appointment as
successor was given to the plaintiff.<o:p></o:p>It
should be noted at this stage that the testimonies of P.Ws 3 and 4 on the point
whether or not it was the Plaintiff rather than the late Yaw Krah who was
appointed successor to Yaw Nimo, both testimonies took on the colour of hearsay
evidence.&nbsp; That apart, it is doubtful to
accept these testimonies as strong corroborative evidence on the plaintiff’s
claim that he, to the exclusion of any one else, was appointed customary
successor to the late Yaw Nimo.<o:p></o:p>