ADWOA BOAKYEWAA, KWAME GYIMAH, AKUA KYEREWAA AND AMA SERWAA (PLAINTIFF) vs. ABENA ACHIAA @ HANNA MENSAH (DEFENDANT) [2006]DLHC7089

ADWOA BOAKYEWAA, KWAME GYIMAH, AKUA KYEREWAA AND AMA SERWAA (PLAINTIFF) vs. ABEN... [2006]DLHC7089

Date	2006-07-18
Suit No.	SUIT NO. E.5/27/2004
Citation No.	[2006]DLHC7089

HIS LORDSHIP J.K. ABRAHAMS

[2006]DLHC7089
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													<main id="main" class="content" style="min-height: 60rem" >ADWOA BOAKYEWAA, KWAME GYIMAH, AKUA KYEREWAA AND AMA SERWAA<o:p></o:p>(PLAINTIFF)<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>ABENA ACHIAA @ HANNA MENSAH<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP J.K. ABRAHAMS<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;
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</div>On
5th February 2004, the plaintiffs herein commenced this action against the
defendant for the following reliefs endorsed on the writ of summons: <o:p></o:p>1.
A declaration that the 1st plaintiff as the spouse of Kwadwo Mensah (deceased)
has interest in the title to House No. D.47, Asawasi, Kumasi, which was
acquired during the subsistence of the marriage between 1st plaintiff and the
deceased and which acquisition was contributed to substantially by 1st
plaintiff. <o:p></o:p>2.
That the deceased lacked capacity to devise the said House No. D.47, Asawasi in
his Will dated 27th November 2001. <o:p></o:p>3.
A declaration that the Will dated 27th November 2001 is a forgery or in the
alternative not the Will of the deceased. <o:p></o:p>4.
An order of perpetual injunction restraining the defendant and all who claim
through her from interfering with the subject-matter. <o:p></o:p>At
the close of pleadings, the following were set down as the issues for the trial
and determination of the Court: <o:p></o:p>1.
Whether House No. D.47 of Asawasi was acquired during the subsistence of the
marriage between the deceased and the 1st plaintiff. <o:p></o:p>2.
Whether the 1st plaintiff made substantial or any contribution to the
acquisition of the said house. <o:p></o:p>3.
Whether with or without any contribution, the 1st plaintiff as the widow is
entitled to a share of the said house. <o:p></o:p>4.
Whether the deceased had capacity to devise the whole house in his Will. <o:p></o:p>5.
Whether the Will dated 27th November 2001 is a forgery or in the alternative
not the Will of the deceased. <o:p></o:p>6.
Whether the plaintiffs are estopped from denying the validity of the Will. <o:p></o:p>7.
Any other issue raised by the pleadings. <o:p></o:p>The
case of the plaintiffs, who are the widow and children of the deceased, the late
Kwadwo Mensah @ Emmanuel Nsiah, who died on 1st August 2003, is that the 1st
plaintiff was married to the deceased for over 60 years and that during the
subsistence of the marriage, the deceased acquired House No. D.47, Asawasi,
with substantial financial contribution from the 1st plaintiff. However, after
the death of the deceased, it was discovered that he had devised the said
property, House No.3.47, Asawasi to only the defendant, who is also a daughter
of the 1st plaintiff and the deceased in a Will dated 27th November 2001. The
plaintiffs contended that the Will is a forgery and not the deed of the
deceased and that the deceased lacked capacity to devise the whole property.
The plaintiffs called one (1) witness. <o:p></o:p>The
defendant resisted the claim of the plaintiffs and asserted that the property
in dispute was acquired solely by the deceased. The defendant testified that
about fifteen (15) years ago, 1st plaintiff decided not to marry the deceased
any more; that when 1st plaintiff refused to change her mind after several
people had appealed to her, the deceased accepted the situation and that since
then the 1st plaintiff and the deceased had not been married even though they
both lived under the same roof. She stated that as a result of the dissolution of
the marriage, the deceased made the Will dated 27th November 2001, in which he
described the 1st plaintiff as his ex-wife. The defendant called three (3)
witnesses and tendered in evidence three (3) Exhibits. <o:p></o:p>Even
though the first issue for the determination of this Court is whether or not
House No. D.47, Asawasi, was acquired during the subsistence of the marriage
between the deceased and the 1st plaintiff, from the evidence on record, there
is no doubt whatsoever that the property in dispute was acquired during the
subsistence of the marriage, The 1st and 3rd plaintiffs testified that the
deceased initially acquired the property in dispute and according to defendant
and DW3, Kwaku Ofori, the Estate Officer of State Housing Company, Kumasi, the
property, which was acquired in 1964, is in the name of the deceased, J.K.
Mensah @ John Kwadwo Mensah @ Kwadwo Mensah @ Emmanuel Nsiah. I, therefore,
hold that the house was acquired by the deceased during the subsistence of the
marriage. <o:p></o:p>The
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