ABDUL RAHMAN OSUMANU GIWAH AND 2 OTHERS vs. BABA LADI [2013]DLSC6122

Date	2013-07-29
Suit No.	CIVIL APPEAL. No J4/36/2013
Citation No.	[2013]DLSC6122

G. T. WOOD (MRS) C. J (PRESIDING)

J. V. M. DOTSE JSC

ANIN-YEBOAH JSC

A. A BENIN JSC

J. B. AKAMBA JSC

JAMES OWURA MENSAH. FOR THE DEFENDANT/APPELLANT/APPELLANT.

JOSEPH KAPONDE FOR THE PLAINTIFFS/RESPONDENTS/RESPONDANTS

[2013]DLSC6122
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													<main id="main" class="content" style="min-height: 60rem" >ABDUL RAHMAN OSUMANU GIWAH AND 2 OTHERS<o:p></o:p>{PLAINTIFFS/
RESPONDENTS/ RESPONDENTS}<o:p></o:p>vs.<o:p></o:p>BABA LADI<o:p></o:p>{DEFENDANT/APPELLANT/APPELLANT}<o:p></o:p>[SUPREME
COURT, 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">

CIVIL
APPEAL. No J4/36/2013&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: 29TH JULY, 2013<o:p></o:p>

JOSEPH
KAPONDE FOR THE PLAINTIFFS/RESPONDENTS/RESPONDANTS<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>BENIN,
JSC<o:p></o:p>By an amended writ of
summons filed at the High Court, Accra, the plaintiffs/respondents/respondents,
hereinafter called the respondents, sought the under listed reliefs against the
defendant/appellant/appellant, hereinafter called the appellant:<o:p></o:p>a)
A declaration that both plaintiffs and defendant are great grand children of
Fatima Suka (deceased).<o:p></o:p>b)
An order for the parties to jointly take letters of administration to administer
the estate of Fatima Suka.<o:p></o:p>c)
An order for the distribution of the estate of the late Fatima Suka among
legitimate beneficiaries.<o:p></o:p>d)
An order to set aside the judgment of the Islamic Judicial Committee.<o:p></o:p>The respondents claimed
that Fatima Suka who died in 1954 was the great grandmother of both parties in this
case. At the hearing the family tree was traced and from the record it was
clearly so established, as there was no contrary evidence. Whilst the
respondents are the grandchildren of Ramatu Osumanu Fulani, the only female
child of Fatima Suka, the appellant is the grandson of Mallam Ibrahim Osumanu Fulani,
the only male child of Fatima Suka. Hence all the parties are the direct
descendants of Fatima Suka. The estate of the late Fatima Suka which the
parties are fighting over comprises three houses situate at various parts of
Accra, according to the respondents’ case as stated in paragraph 4 of the statement
of claim, precisely at Cow Lane, Tudu and New Town. The appellant partially
admitted this specific averment, by paragraph 3 of his statement of defence. The
respondents contended that the late Fatima Suka gifted the Tudu house to her
daughter Ramatu in her lifetime. They further posited that in respect of the
Cow Lane house the appellant and his family have been in occupation all these
years. In respect of the New Town house the rooms were shared out by Fatima among
her four grandchildren. The respondents have been in uninterrupted possession
of the Tudu house until 2008 when the appellant laid adverse claim to all the
three houses claiming sole ownership thereof. The basis of appellant’s adverse claim
was that in Islamic law inheritance to deceased intestate estate is through the
male line and thus females do not inherit property. This position was affirmed
by the Islamic Judicial Committee (IJC) when the matter of the distribution of
the estate went before the said Committee. The record at page 131 shows that
only the house at Cow Lane was the subject before the IJC whose decision was
handed down on 27th March 2008. The appellant also made adverse claim to the
New Town house saying it was owned by his father only.<o:p></o:p>The High Court gave
judgment for the respondents. It set aside the decision of the IJC on ground
that it sinned against the provisions of Article 17(2) and (3) of the 1992
Constitution of Ghana. The trial court found as a fact that all three houses
were owned by late Fatima Suka. Also that the houses at Tudu and New Town were
not part of the IJC decision. It found that all the parties herein are the
descendants of the late Fatima Suka. The court also found that the deceased
gifted the Tudu house to her only daughter Ramatu. The court also found that
the deceased distributed the rooms in the New Town house among her four
grandchildren. Consequently the court held that the houses at Tudu and New Town
did not form part of the deceased’s estate and are thus unavailable for
distribution. In effect the only house that was available for distribution was
the one situate at Cow Lane. The trial court upheld all the reliefs sought by the
respondents. After due consideration of the case in terms of the facts and
applicable law/s, the Court of Appeal upheld the High Court’s judgment and
dismissed the appeal accordingly. The appellant was not satisfied with the
Court of Appeal’s decision and has appealed to this court on four grounds
namely:<o:p></o:p>a)
The judgment of the Court of Appeal is against the weight of evidence.<o:p></o:p>b)
The learned justices erred by holding that the estate of Fatima Suka (deceased)
was pending before the family when no evidence of that fact was led or adduced
at the trial.<o:p></o:p>c)
The learned justices erred in affirming the decision of the court that the
Intestate Succession Law, 1985 (P.N.D.C.L. 111) should apply to the distribution
of the estate of Fatima Suka (deceased).<o:p></o:p>d)
The learned justices failed to apply the binding decision of the Supreme Court
in Agyentoa v. Owusu (2005-2006) SCGLR 383.<o:p></o:p>Counsel for the Appellant
argued the omnibus ground that the judgment is against the weight of evidence,
to begin with. He made reference to the decision of this court in the case of TUAKWA v. BOSOM (2001-2002) SCGLR 61 on
what it means when an appeal is said to be by way of re-hearing.<o:p></o:p>He submitted that the
Respondents who bore the burden of</main>