WILLIAM ARTHUR vs. MRS. ELIZABETH DE-HEER AMISSAH AND DR. ERIC SAM ARTHUR [2011]DLCA4862

Date	2011-01-27
Suit No.	CIVIL APPEAL NO.H1/140/08
Citation No.	[2011]DLCA4862

AKAMBA JA (PRESIDING)

MARFUL-SAU JA

HONYENUGA JA

KWABENA OWUSU FOR DEFENDANT/APPELLANT

GEORGE ESHUN FOR PLAINTIFF/RESPONDENT

[2011]DLCA4862
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													<main id="main" class="content" style="min-height: 60rem" >WILLIAM ARTHUR<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>MRS. ELIZABETH DE-HEER AMISSAH AND DR. ERIC SAM ARTHUR<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<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;
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CIVIL APPEAL NO.H1/140/08&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;27TH
JANUARY, 2011<o:p></o:p>

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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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>MARFUL-SAU,
JA: - The fundamental issue raised in this
appeal relates to the nature, scope and effect of entitlement of children under
the provisions of the Intestate Succession Law (PNDCL 111) of 1985.&nbsp; The parties in this appeal are all children
of the late Ebenezer Mensah Arthur who died intestate in 1993. The
plaintiffs/respondents are from the same biological mother and the
defendant/appellant is from a different mother. The subject matter of this
dispute is the distribution of House No. E148/3A,&nbsp; Anachin Street Cape Coast. The plaintiffs/
respondents issued a writ at the High Court, Cape Coast on the 15- 3- 96, for
the following reliefs:-<o:p></o:p>‘’1.A declaration that
only the children of Mr. and Mrs. Ebenezer Mensah Arthur (deceased) who lived
with their parents in the matrimonial home, House&nbsp; No. E 148/3A, Anachin Street, Cape Coast,
while they were alive are entitled on the death of their parents to live in the
said House No. E148/3A, Anachin Street,Cape Coast.<o:p></o:p>&nbsp;2. Return of Audi Saloon car<o:p></o:p>&nbsp;3. Injunction.’’<o:p></o:p>The
brief facts of the case are that the late E.M. Arthur died intestate in 1993
possessed of House No. E148/3A, &nbsp;Anachin
Street, Cape Coast. The estate of the late E.M. Arthur apart from the house
included an Audi saloon car which was allegedly removed and taken away by the
appellant herein. The respondents as already observed had the same biological
mother who predeceased the husband the late E.M. Arthur in 1983. The contention
between the parties is who should own House No. E 148/3A, Anachin Street, Cape
Coast, hereinafter referred to as the house. Before the action commenced the
parties had jointly applied for and obtained Letters of Administration to
administer the estate of the late E.M. Arthur. The respondents contended that
since the appellant never lived in the house with Mr. And Mrs. Arthur, he was
not entitled to a share in the house. The trial court entered judgment for the
respondents on the 31st of May, 2001. In its judgment the trial
court granted all the reliefs of the respondents and particularly declared that
only the children of Mr. and Mrs. Ebenezer Mensah Arthur, who lived with their
parents in the house while they were alive are entitled on the death of the
parents to live in the house. The appellant aggrieved by the said judgment thus
appealed to this court.<o:p></o:p>The
Notice of Appeal filed on the 4-6- 2001 had two main grounds namely:-<o:p></o:p>‘’ a) The judgment is
against the weight of evidence.<o:p></o:p>&nbsp;&nbsp; b) The trial court erred in law by decreeing
that the defendant as a beneficiary under the estate of Ebenezer Mensah Arthur
and an Administrator of the said estate is a trespasser despite the express
provisions of PNDC Law 111 more particularly sections 3, 4 and 18.’’<o:p></o:p>No
additional grounds were filed as indicated in the Notice of Appeal and Counsel
for the appellant argued only ground (b) in his statement of case filed on the
9-2- 2009 pursuant to leave granted by this court. In this appeal I shall address
ground (a), which is that the judgment is against the weight of evidence. The
reason is that whether or not the court erred in restraining the appellant from
having anything to do with the house depended on the evidence adduced at the
trial. At the trial itself the respondents filed three issues for determination
and these were:-<o:p></o:p>‘’1.Whether the building
House No. E 148/3A Anachin Street, Cape Coast was the matrimonial home where
the plaintiffs’ parents lived with plaintiffs and their other sisters;<o:p></o:p>&nbsp;2. Whether the defendant ever lived in the
said house as a member of the household;<o:p></o:p>&nbsp;3.Whether the Audi saloon car is not part of
the late E. M. Arthur’s estate and whether the said car should not be brought
by the defendant.’’<o:p></o:p><o:p>&nbsp;</o:p>The
appellant, then the defendant also filed two additional issues namely:-<o:p></o:p>