APPLICATION FOR REASONABLE PROVISION OUT OF THE ESTATE OF GEORGE NITIM (DECEASED) AKUA MARFOA vs. MARGARET AKOSUA AGYEIWAA []DLSC4468

APPLICATION FOR REASONABLE PROVISION OUT OF THE ESTATE OF GEORGE NITIM (DECEASED... []DLSC4468

Date
Suit No.	CIVIL APPEAL: NO. J4/42/2012
Citation No.	[]DLSC4468

BAFFOE - BONNIE JSC (PRESIDING)

AKOTO – BAMFO (MRS) JSC

BENIN JSC

APPAU JSC

PWAMANG JSC

FRANK DONKOR FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

HARUNA MAAMAH WITH HIM JERRY JOHN ASIEDU FOR THE DEFENDANT/ APPELLANT/RESPONDENT.

[]DLSC4468
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													<main id="main" class="content" style="min-height: 60rem" >APPLICATION FOR
REASONABLE PROVISION OUT OF THE ESTATE OF GEORGE NITIM (DECEASED) AKUA MARFOA<o:p></o:p>(APPELLANT/ RESPONDENT/ APPELLANT)<o:p></o:p>vs.<o:p></o:p>MARGARET AKOSUA AGYEIWAA<o:p></o:p>(RESPONDENT/ APPELLANT/RESPONDENT)<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. J4/42/2012 <o:p></o:p>

</div>&nbsp;COUNSEL:<o:p></o:p>FRANK
DONKOR FOR THE PLAINTIFF/RESPONDENT/APPELLANT.<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">

HARUNA
MAAMAH WITH HIM JERRY JOHN ASIEDU FOR THE DEFENDANT/ APPELLANT/RESPONDENT.<o:p></o:p>

</div>BAFFOE-BONNIE JSC: <o:p></o:p>This
is an appeal by the Appellant/ Respondent/ Appellant (hereinafter, Appellant)
against the decision of the Court of Appeal, allowing the appeal from the
judgment of the High Court in Accra, dated the 25th day of February, 2006.&nbsp; The judgment against which this appeal is
brought was delivered on 31st March 2006. <o:p></o:p>The
facts are fairly simple and generally uncontroverted.<o:p></o:p>The
Appellant and the Respondent were both married to the late George Asare Ntim
who died testate on 15th July, 1995. The will of the deceased was read in 1995.
Under the will, the testator gave the respondent and her six children, jointly,
a house at Mateheko in Accra known as Number B262/15 West Abossey Okai; two
thirds of his farm at Odwaa near Akokoaso and a portion of his house also at
Odwaa. The testator also gave three rooms in his house at Odwaa and a third of
his farm at Odwaa to his three children which he had with the appellant. The
testator did not make any provision for the appellant under his will.<o:p></o:p>The
executors that were named in the will renounced their right to executorship. On
10th June, 2002, Letters of Administration with Will annexed, was granted by
the High Court to the respondent. The appellant took an action by originating
summons&nbsp;&nbsp;&nbsp; to the High Court on 6th July,
2002 for reasonable provision out of the estate of the testator. The High Court
granted the application and made the following orders:<o:p></o:p>1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; One plot of the Testator’s land known
as House Number B262/15, West Abossey Okai, Accra.<o:p></o:p>2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; One room in the house of the testator
at Odwaa near Akokoaso for life.<o:p></o:p>3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The testator’s farmland at Odwaa near
Akokoaso should be divided into equal parts and one portion to go to appliacant
(Akua Marfoa ) and her children Nancy Abena Pokua, Rosina Yaa Gyanmea and Andrews
Kwabena Nti.<o:p></o:p>The
respondent appealed against the ruling of the High Court. The Court of Appeal
set aside the ruling of the High Court and in place of it, substituted an order
refusing the application. The reasons for reversing the decision of the High Court
by the Court of Appeal, which were essentially procedural lapses are captured
in the statement by Gbadegbe JA(as he then was)as follows; <o:p></o:p>“In this regard, the requirement of
placing all the facts before the court that might indicate the Appellant’s needs
in terms of bare necessities and other requirements of a decent standard of
living become relevant in order to assist the court to consider the extent and
mode of its interference as provided in sub-section 2 of section 13. Where,
however, these vital facts are absent as was the case in the court below then
the court is precluded from a fair determination of the discretion available to
it. We venture to say that on the materials before the court below on which the
decision on appeal is based the determination made was without regard to the
“relevant circumstances” and may thus be said to be based purely on speculation
and or conjecture, a situation that defeats the clear statutory intention
discernible from the enabling section”.<o:p></o:p>Grounds
of Appeal:<o:p></o:p>Before
us the appellant has argued as follows;<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That, the Court of Appeal erred by
placing excessive burden of proof on the Appellant/ Respondent/ Appellant
regarding her dependence on the testator in his life-time and the likelihood of
hardship without reasonable provision.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the Court of Appeal erred in
making findings of fact not borne out by the affidavit – evidence.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the Court of Appeal erred in not
ordering a re-trial in the light of the findings made by itself.<o:p></o:p>d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Court of Appeal erred by not
looking at the merits of the case but dwelt on the technicalities which led to
miscarriage of justice.<o:p></o:p>