Mpiani & 2 Ors V Kumah (C1/2016/21) [2024] GHAHC 423 (13 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ASHANTI REGION KUMASI HELD ON FRIDAY THE 13TH DAY OF DECEMBER, 2024BEFOREHER LADYSHIPHANNAH TAYLOR(MRS) J. SUITNO: C1/206/21 1. BEATRICEMPIANI …PLAINTIFFS H/NO. PLOT 11BLOCK P TAFO–NYIAESO 2. COMFORT KYEIWAA KODIE 3. AKUAKWAKYEWAA SUINGFOR HERSELFANDON BEHALF OF HERSIBLINGS, KODIE VRS. KWABENAKUMAH …DEFENDANT SUEDAS ADMINISTRATOR OF THEESTATE OF THE LATENANA KWADWOMPIANI, H/NO. B57,BREMAN –KUMASI _____________________________________________________ JUDGMENT _____________________________________________________ The plaintiffs; a surviving spouse, sibling and niece of the deceased, Nana Kwadwo Mpiani respectively, seek the following reliefs against the defendant, the administrator ofthe deceased’sestate:- a) A declaration that all that house situates at Tafo Nhyiaeso and numbered H/No. 11 Block “P” is the property of the 1st plaintiff and her deceased husband, Nana Kwadwo Mpiani having gifted his share of the said property to her during his lifetime. b) A declaration that all that house situate at Kodie/Ashanti and numbered H/No. 5 Block R is the joint property of the 2nd plaintiff and one Akua Mansah (now deceased) same having been gifted to them by the 1st plaintiff and the deceased Nana Kwadwo Mpiani during his life time. c) A declaration that all that storey building containing commercial store rooms situate atKodie/Ashanti is thepropertyofthe 1stplaintiff. d) A declaration that the property mentioned in (a) (b) and (c) supra do not form partofthe estateofthe deceased, Nana Kwadwo Mpiani. PLAINTIFFS’CASE The plaintiffs contend that the defendant, the administrator of the estate ofthe deceased during the application for Letters of Administration at the High Court, Kumasi, listed thefollowing properties as partoftheestate ofthedeceased: - a) House at Tafo Nhyiaeso number as H/No. 11 Block “P” erroneously stated as H/No. 76. b) House at Kodie “P”(erroneouslystated asH/No 76). c) Storesat Kodie. These properties, the plaintiffs state, do not form part of the estate of the deceased. The 1st plaintiff who was married to the deceased for over 48 years acquired a number of properties with the deceased including 3 plots of land at Kodie, a house at Tafo Nhyiaeso and apick up. With the consent of the 1st plaintiff, the deceased gifted one of the vacant plots at Kodie to deceased’s children born to other women. Also gifted is a house jointly constructed on one of the Kodie plots to deceased’s sisters, the 2nd plaintiff and the mother of the 3rd defendant, one Akua Mansah, deceased. According to the plaintiffs, “aseda” was presented to the deceased and the 1st plaintiff. The children of the deceased born to other women also went into possession of their gifted portionand constructed adetached single unit clusterofhouses onit. The matrimonial house, which is the Tafo Nhyiaeso property, the deceased gifted his portion/shareto the 1stplaintiffand she also presented “aseda”tothe deceased. Inthe year 2014,1st plaintiff and her deceased husband developedthe remaining land at Kodie into a storey building for commercial stores. Of these commercial stores, the 1st plaintiff exclusively financed the project as the deceased husband was then unemployed and one Atta Kakra provided the sum of GHC 8,800.00 as a loan. Initially, one Collins Takyi under took to do the construction of the stores but 1st plaintiff had to payoff theexpenditure incurred. Apart from the foregoing, 1st plaintiff had to exclusively bear the deceased husband’s hospital fees, mortuary fees and funeral expenses. Hence, plaintiffs’ entitlement to the reliefs sought. DEFENDANT’SCASE The defendant doesnot contest the relationship between the plaintiffs and the deceased, save stating that 1st plaintiff was the only surviving wife but the deceased did marry six (6) wives. The defendant, denied the claims of gifted properties to the plaintiffs and emphasized that the properties are the self-acquired properties of Kwadwo Mpiani, deceased. Of the house No. Plot 11 Block “P” (H/No. 76) Tafo Nhyiaeso, insisted that same was duly acquired by the deceased from his own resources without any assistance or contribution from anyone. The allocation note at the time of purchase of the building plot and construction of the house was in the name of the deceased and he, at that time wasmarried toone Ama Dapaah. However, when the Tafo chief was enstooled, he requested land owners to submit their respective old allocation notes for replacement. It was at this stage that 1st Plaintiff’s daughter, Loretta Bosompem took advantage and surreptitiously and fraudulently added 1stplaintiff’sname tothe new allocationnote asco-owner. On the stores at Kodie, the defendant averred that it is the children of the deceased intestate, namely, Atta Yaw and Joyce who pulled their resources together to undertake theconstruction with1stplaintiffcontributing only thesum ofGH¢10.000.00. The Kodie house was solelyput up by thedeceased. On caring for the deceased, the defendant averred that it was the children who paid all the medical bills and expenses on Nana Kwadwo Mpiani whilst the 1st plaintiff opted to engageinher plantationbusiness at the market. On the funeral, the children of the deceased excluding 1st plaintiff’s children paid a total of GH¢22,500.00 as their contribution towards the funeral expenses to be incurred to thefamily. Dismissing the claims of the plaintiffs, the defendant described the present action as craftlymanufactured toover reachand achieve undeserved purposes. ISSUESFOR TRIAL Plaintiffs joined issues with the defendant on his statement of defence and at the close ofpleadings the following issueswere set downfordetermination; - (I) Whether or not the property H/No. 5 Block “R” was jointly acquired by the 1st plaintiff and thedeceased, Nana Kwadwo Mpiani. (II) Whether or not the property H/No. 5 Block R was gifted by the 1st plaintiff and the deceased, Nana Kwadwo Mpiani to the 2nd plaintiff and the mother of the 3rd defendant, Akua Mansahdeceased? (III) Whether or not the 1st plaintiff jointly acquired the property H/No 11 Block “P” Tafo Nhyiaeso withthe deceased Nana Kwadwo Mpiani. (IV) Whether or not the deceased Nana Kwadwo Mpiani in his life time gifted his share ofthe propertyH/No 11Block “P”Tafo Nyiaeso to the1stplaintiff. (V) Whether or not the storey building containing commercial stores at Kodie in the AshantiRegionwas acquired solely by the1stplaintiff. (VI) Whether the disputed properties form part of the estate of the deceased, Nana Kwadwo Mpiani. BURDENOF PROOF The plaintiffs’ assertions having been denied, they are enjoined to lead evidence to establish thefacts asserted by them. The law settled on the burden of proof require parties who appear before the Court of lawto establish their claims withsufficient, credible, cogent andadmissible evidence. Undersection11(1) (4) oftheEvidence Act,1975,NRCD323the law statesthat; (1) “the burden of producing evidence means the obligation of a party to introduce sufficient evidence toavoid aruling onthe issue against that party. (4) In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. In his book, “Essentials of Ghana Law of Evidence at page 32, the learned Justice S.A. Brobbey explains the burden of producing evidence and states that “the burden to produce evidence is the duty that lies on a party to adduce sufficient evidence to support his case regarding the issue at stakein ordertoavoid aruling against him.” In Jass Company Limited v. Appau [2009] SCGLR 265, the Supreme Court held that “the burden of proof is always on the plaintiff to satisfy the court on a balance of probabilities in an action for a declaration of title to land. Where the defendant has not counterclaimed and the plaintiff has not been able to make out a sufficient case against thedefendant, theplaintiff’sclaims would be dismissed.” In effect the plaintiff bears the burden or responsibility, generally to prove his case so that on the totality of the evidence, presented, the reasonable mind will conclude that theexistence ofthe fact alleged is more probable thatitsnon-existence. In asserting a gift, the plaintiffs should also prove the ingredients of a valid customary gift. In Yoguo Agyekum [1966] GLR 482 at 493–494 the Supreme Court discussed the requirements ofavalid customary gift where it held;- “A valid gift under customary law, is an unequivocal transfer of ownership by the donor to the donee, made with widest publicity which the circumstances of the case may permit. For the purposes of the required publicity, the gift is made in the presence of independent witnesses, some of whom should be members of the family of the donor who would have succeeded to the property if the donor had died intestate and, also, in the presence of members offamily ofthe donee who also would succeed tothe property upondeathofthe doneeonintestacy. The gift is acknowledged by the donee by the presentation of drink or other articles to the donor …. Another form of publicity is exclusive possession and the exercise of overt actsofownershipby the donee afterthe ceremony.’’ Furthermore, in the case of ASARE v KUMOJI [2000] SCGLR 298 at 302 Aikins JSC stated;- ‘’with regard to customary gifts inter vivos, our Courts have stressed that the acceptance of gift especially land must be made by the presentation to the donor of some tokenacknowledgement and gratitude in the presence ofwitnesses.’’ Earlier on, in the case of Barko v. Mustapha [1964] GLR 78, the Supreme Court held among other things that the burden of proof is on the alleged donee to prove the existence ofacustomarygift whichhas thefollowing ingredients; - (i) publicity(ii) acceptance (iii) placing the donee in possession. DETERMINATION OFISSUES Before considering the issues set for determination, I wish to comment on the relationship between the 1st plaintiff and the deceased Nana Kwadwo Mpiani. It has been the plaintiffs’ pleaded case that the 1st plaintiff is the surviving wife of the deceased. Inparagraph1ofthe statement ofclaim, it was pleaded asfollows: - 1. The 1st plaintiff is the surviving widow of the late Kwadwo Mpiani (hereinafter referred to as “the deceased) and the deputy chief plantain seller at the Bantama –Race Course Marketin Kumasi”. To this averment the defendant in his statement of defence pleaded in paragraph 1asfollows: - 1. The defendant admits the averment contained at paragraph 1 of the plaintiff’s statement of claim except that the defendant is not privy to the fact that 1st plaintiff is the deputy chief plantain seller at Bantama Race Course Market in Kumasi.” This pleaded case of the defendant largely admits the fact of the 1st plaintiff being a surviving wife of the deceased Nana Kwadwo Mpiani. With this admission, there was no burden placed on the plaintiffs to prove that 1st plaintiff was the wife of the deceased asno issue was joined betweenthe parties onthis subject. In Kusi and Kusi v. Bonsu [2010] SCGLR 60 at 78, Wood CJ (as she then was) held that it is an elementary principle of law that in Civil litigation, where no issue was joined as between parties on a specific question, issue or fact, no duty was cast on the party asserting it to lead evidence in proof of that fact or issue …… when a party had made an averment and that averment was not denied, no issue was joined and no evidence be ledonthataverment”. In his witness statement, defendant admitted that 1st plaintiff was a surviving widow. However, during cross examination of the defendant he sought to deny that there was a marriage between the deceased and the 1stplaintiff. He seems to suggest that 1stplaintiff was one of the other women who had children with the deceased and there was no marriage. Undercrossexamination ofthe defendant, he testified asfollows: - Q. It is your case that the deceased married six women but it was the 1st plaintiff who survived him. Isthatcorrect? A. That iscorrect. Q. Should this court understand that to mean that to you the 1st plaintiff is the last wife ofthe deceased? A. That iscorrect. Q. Did youattendthe marriage ceremonybetween thedeceased and the plaintiff? A. No.He did notmarryher so I did notattend. Q. I believe you did not attend the marriage ceremony between your deceased fatherand the otherfive wives? A. Idid notattendtheir marriage ceremonies. Q. I am putting it to you that apart from one Ama Dapaah and the 1st plaintiff, your deceased father nevermarried any otherwoman? A. That isnot correct. He married only Ama Dapaah. The restwere concubines. Q. So, then your statement in paragraph 7 of your witness statement that your deceased father during his life time married six women but only 1st plaintiff survived aswidow isfalse. A. What I stated is correct. In Akan custom if you do not perform the customary rites, she is not your wife that is why I stated that it was only my mother he married. Q. You knew this yet you stated in your witness statement that your deceased fatherhad six women. A. Because he lived with them and had children with them that is why I said he had six wives. The defendant is bound by his pleaded case. The attempt to deny the averment he has made and testified on that 1st plaintiff was a wife of the deceased at this stage of the proceedingsis anafterthought. I will therefore, find that 1st plaintiff was a wife of the deceased and a wife who survived him. The plaintiffs’ case has been that deceased had married Ama Dapaah the defendant’s mother and it was after that marriage has been dissolved that he married the 1st plaintiff. The claim of the deceased having six (6) wives is dismissed though he had children withotherwomen. WHETHER OF NOT PROPERTY H/NO 5 BLOCK R WAS ACQUIRED BY THE 1ST PLAINTIFFANDTHEDECEACEDNANA KWADWOMPIANI. It is the case of the plaintiffs that the property H/No. 5 block R was acquired by the 1st plaintiff and thedeceased Nana Kwadwo Mpiani. Fromthe evidence ofthe plaintiffs, 1st plaintiff got married to the deceased in the year 1977. Where they assert that the property was acquired by 1st plaintiff and the deceased, then evidence should be led on whenthe propertywas acquired and howit was acquired. In the testimony of the 1st plaintiff she testified per the paragraphs 10 and 11 of the witness statementas follows: - 10. Sometimes in the 1980s, the deceased and I acquired two large plots at Kodie for a poultry farm, we later decided to construct a residential building on a portion of one of the plots. The said building was constructed on property Plot No. 5 Block “R”Kodie. 11. Although the intention was for us to live in the said property after its construction, we decided to give it out for rent as its location was too far from ourplace ofbusiness”. There is no document presented to show that 1st plaintiff and the deceased jointly acquired the property. PW1, John Ashford Badu also known as Nana Badu Kaakyire, Dwatoahene of Kodie stool, with both deceased as sub chiefs under the Kodie stool. PW1 described deceased as his maternal uncle. His testimony per the paragraph 12 of his witness statement is that, the deceased and the wife, the 1st plaintiff acquired two (2) large building plots 1st atKodie, with bothplotsnumbered asplot 5Block“R”. In his testimony as well, PW1 testified that deceased constructed a residential property on half of the building plot and also the deceased informed him that he wanted to build onhalf plot acommercial property. The deceased engaged someone to developsame on a “build, operate and transfer” basis. However, when a misunderstanding ensured between the deceased and the developer, it was the 1st plaintiff who paid for the sum of GH¢12,000.00 being the sum expended on the project, which the Rent Control Department,Bompata when he wasordered topay. With the testimony of PW1, he affirms the acquisition of the land at Kodie by 1st plaintiff and the deceased. However, on the residential structure built, he does not allude to the structure being put up by the 1st plaintiff and the deceased but states same wasbuilt by the deceased. PW2, Michael Boakye, testified. He described the deceased as his grandfather and had lived with him and the 1st plaintiff when he was aged 14 years for 15 years. PW1, testified that the Kodie property was jointly acquired by 1st plaintiff and the deceased, so washe told by the deceased. He also testified on the 1st plaintiff paying off the developer (Collins Takyi) the sum of GH¢12,000.00 when the matter went before the Rent Control at Bompata. From the evidence of both PW1 and PW2, the largely affirm that the cost of putting up the commercial property on the Kodie land was borne by the 1st plaintiff when she paid off thedeveloper. To support the claim of the difference between the deceased Collins Takyi going to the Rent Control and the subsequent payment, 1st plaintiff tendered the Exhibit “B” an invitation by the Senior Rent Officer Ashanti to Nana Mpeanin to appear before him on 15th January, 2019 the subject of “REFUND” and the complaint lodged by Collins Takyi forpayment ofthe sum ofGH¢13,737spent onthe construction ofstorewhichwas tobe converted into rent dated 10th January, 2019. Also tendered by the plaintiff is the Exhibit “C” a receipt issued by the Rent Control Department, Kumasi – Ashanti Region dated 14th March, 2019 acknowledging the payment of the sum of Twelve Thousand Ghana cedis (GH¢12,000.00) as full payment of rent advance balance to Collins Takyi by Nana Mpeanin. 1st plaintiff’s testimony is that she paid off the amount on behalf of the deceased and thereforecontinued with the constructionofthe stores toits completion. Also, tendered by the 1st plaintiff is Exhibit “D” and “D1” pictures of the commercial stores. From the evidence, the parties admit that Nana Mpiani become totally blind and was not doing his vulcanizing work. The 1st plaintiff testified that she was the sole breadwinner of the family. Her claim of paying off the refund to Collins Takyi is probable. In fact, PW2 testified that the 1st plaintiff paid Takyi and the payment was made toTakyiby him at Bompata. On the Kodie stores (commercial property) defendant testified that 1st plaintiff’s contribution was only GH¢10,000.00 but for the residential property, it was solely constructed by the deceased. Defendant did not testify on how the land at Kodie was acquired. It seems he does not know how the land was acquired neither did he challenged the claim ofjoint acquisitionby 1stplaintiff and the deceased I will on the evidence find that the land at Kodie was jointly acquired by the plaintiff and her deceased husband, the residential structure was put upby the deceased and the commercial property put up by the 1st plaintiff and the deceased. Thus, the properties at Kodie were jointly acquired by the 1st plaintiff and the deceased during the subsistence oftheir marriage. OWNERSHIP OF NHYIAESOPROPERTY The issue to be addressed is whether or not the 1st plaintiff jointly acquired the H/No. 11 Block ‘P’Tafo Nhyiaeso with thedeceased. 1st plaintiff in her testimony, she testified in paragraphs 12 and 13 of her witness statementas follows: - “12. Sometimes in the year 1988 we acquired Plot No. 11 Block “P” Tafo Nhyiaeso from the Tafo Stool after we have paid valuable consideration to the stool (attached hereto and marked as Exhibit “A” series are copies of receipts and site planevidencing our joint acquisition). 13. We constructed a four-bedroom house on the said parcel of land we obtained fromthe Tafo Stooloutour joint resources”. The Exhibit “A” is a receipt dated 30th November, 2010 acknowledging payment made in the name of Mr. and Mrs. Samuel Kumah as plot registration fee of GH¢20.00 in respect of Plot 11A Block “P” Nyiaeso. The Exhibit “A1” is also a receipt dated 9th August, 2011 issued by the Tafo stool in the name of Mr. and Mrs. Samuel Kumah for the sum of GH¢500.00 being full payment of re-zoning fees on Plot 9 Block RX Tafo Nhyiaeso. The Exhibit “A2” is a plan delineating Plot No. “A” Block “P” for Mr. Samuel Kuma and Mad. Beatrice Donkor, which is endorsed by one Emmanuel Atsu Kobla, a licensed surveyor on 1st August, 2009. What the Exhibits “A”, “A1” and “A2” present is that though the area was delineated for Samuel Kuma and Beatrice Donkor on 1st August, 2009, the payments per Exhibits “A” and “A1” were made thereafter, with the Exhibit “A2”in particular suggesting thatthere was are-zoning ofthearea. The testimony of the parties suggest that Samuel Kuma refers to the deceased and the Beatrice Donkoris the1stplaintiff. The defendant on the other hand, testified that the Nhyiaeso property (land) was acquired with its structure put up by the deceased without any assistance from anyone. He added that the allocation note on the property is in the name of the deceased and at the time ofits constructionthe deceased was married tohis mother Ama Dapaah who is also deceased. It was only when the Tafo chief was enstooled and he had requested for various owners to submit their old allocation note for a replacement that 1st plaintiff’s name was fraudulently inserted, he tendered Exhibit “1”tobuttresshis claims. The Exhibit “1” is an affidavit of interest deposed to by the 1st plaintiff when she caveated the grant of Letters of Administration to the defendant to administer the deceased’sestate. Inparagraphs7and 8ofExhibit “1”,1stplaintiff deposed as follows: - “7. That in respect of the house at Tafo Nhyiaeso H/No. 76 with ongoing construction, the property was jointly acquired by me and the deceased during his life time (find attached a copy of allocation note and site plan bearing the joint names of the deceased and the caveatrix Exhibit “AB”and “CD”). “8. That further to the immediate, preceding paragraph, the said stores under constructionweresolely financed by me”. The Exhibits referred to as “AB” was marked as the Exhibit “1A”. This exhibit is an allocation note dated 29th April, 2021 in the name of Mr. and Mrs. Samuel Kumah. The Exhibit “CD” marked as Exhibit “1B” by the Court is a site plan, a replica of 1st plaintiff’s Exhibit “A2”in the namesofthe SamuelKuma and Mad.Beatrice Donkor. What these exhibits show is that though a site plan is in the name of the deceased and 1st plaintiff prepared in the year 2009, the allocation note is dated 29th April, 2021 and in the name of Mr. and Mrs. Kumah. With the evidence that Ama Dapaah died before deceased married the1st plaintiff in 1977,then Mr.and Mrs. SamuelKumah is referrable tothe deceased and 1stplaintiff. It seems to me that the defendant’s suspicion is heightened by the fact that the Nana Kwadwo Mpiani also known asSamuel Kuma died on16th August, 2020 yet, the Exhibit “1A”,the allocation noteis dated29th April, 2021. Obviously, this will be difficult to accept for the dead cannot acquire property with the livingafter hisdeath. Also, I wondered why an allocation note which I dare to say is prepared earlier in time was prepared after a site plan was prepared. Can this be a fraudulent act? The evidence of a new chief requesting for previous allottees to produce their old allocation note for replacement could lead to Exhibit “1A” being provided. But the site plan positively makes a claim of joint ownership probable. In effect, defendant’s reliance on the Exhibit “1” to support his claim that the plot was acquired solely by the deceased and at a time whendeceased was married toAma Dapaahis flawed. Defendant has insinuated that the Exhibits “A” series were fraudulently procured to include the 1stplaintiff’s name. Though the defendant alleged fraud, on the acquisition of the Exhibits “A” series, “1” and “B”,he did notprovide the original allocation note in the sole name ofthe deceased. Undercrossexamination, he answered; - Q. Do youhave acopy ofthe original allocation note youallegebears only thename ofyourlate father? A. Ido not havethe original. Q. I am putting it to you that there was no allocation note concerning this property asat thetime the case wasfiled inthis court. A. There wasan allocationnote concerning thepropertyit was givenby the chief. Q. Because there was no allocation note that is why you have failed to produce one tothis court? A.That is not correct. Q. I am putting it to you that all documents concerning the said property some dating as far back as 2009 were in the joint names of your deceased father and 1st plaintiff? A. That isnot correct. With defendant’s failure to produce documents disclosing his deceased’s father’s sole ownership of the property, the only document placed before the Court are the Exhibits “A” series and Exhibit “1” with attachment Exhibit “A” and “1B” which the Court has considered. Further, it is required of a person who alleges fraud to give particulars of the alleged fraud but none was givenin this case. Order 11 rule 8 of the High Court [Civil Procedure] Rules 2004, CI 47 on matters to be specifically pleaded provide asfollows: - (1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud orany fact showing illegality. In the case of Mence Mensah v E. Asiama [2011] 38 GMJ 174, the Supreme Court reiterated “Forgery of a document, fraud, ought to be specifically pleaded with particularsand at thetrial oughttobe specifically proved”. Where fraud is not specifically pleaded, but evidence is admitted on record, the Court cannot ignore unless it will result in miscarriage of justice, a direction given in the case ofEdward Kwasi Santeng v.Dr. Edward Acquah &3ors[2020] 175GMJ 479at505. Additionally, to allege fraud, requires proof beyond reasonable doubt. Section 13(1) of the Evidence Act, 1975, NRCD 323 provides that “in any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proofbeyondreasonable doubt”. In the circumstance of this case, the allegation of fraudulent acquisition of the plaintiff’s Exhibit “A” series is without merit and same fails as the defendant did not discharge the burden of proof placed on him beyond reasonable. The allegation of fraud is hereby dismissed. The propertyis jointly owned by the deceased and the1stplaintiff. WHETHER OR NOT THE PROPERTY H/NO. 5 BLOCK R WAS GIFTED BY THE 1ST PLANTIFF AND THE DECEASED, NANA KWADWO MPIANI TO THE 2ND PLAINTIFF AND AKUA MANSAH AND WHETHER THE DECEASED’S PORTION OF NHYIAESOHOUSE WAS GIFTEDTO1ST PLAINTIFF The Court has already found that the property H/No. Block R was jointly acquired by the 1st plaintiff and the deceased husband. In 1st plaintiff’s testimony per the paragraphs 14to21of her witness statementis to theeffect that in the year1993, thedeceased called for his late uncle Kofi Amankwaa also known as Akentola to make a gift to her. In the presence of his uncle, were one Yaw Boakye (deceased) a nephew of his husband, Nana Kwaku Tabi (deceased) customary successor of his late husband’s father, the deceased and herself, the deceased gifted his half share ofthepropertyat Tafo Nhyiaeso toher. According to1stplaintiff, at the same gathering she and thedeceased husband gifted the outhouse at Kodie to the deceased’s surviving sisters being the 2nd plaintiff and Akua Mansah, the mother of 3rd plaintiff. Her uncle thanked the deceased husband on her behalf and Yaw Boakye also thanked her and the deceased husband on behalf of the sisters. Days later 2nd plaintiff and Akua Mansah presented a bottle of schnapps to them (deceased and 1st plaintiff) as “aseda” for the gift they made to team. Her, uncle Kofi Amankwah also presented a ram, piece of Kente cloth, a pair of native sandals, twenty thousand old cedis (¢20,000)as “aseda”onherbehalf. Under cross examination the plaintiff was unwavering in her testimony when she testified; - Q. You stated at paragraph 16 of your witness statement, that the deceased informed the gathering, that he was giving his share of the property to you. Is thatthe case? A. That isso. Q. And what was the deceased’s said share of the property at Tafo Nhyiaeso given toyou. A. We acquired the property together. We each had a half share. He gave his half share. The 2nd plaintiff on the gift of the Kodie property, testified that the gift was made in the absence of her sister and herself but were informed by the deceased and “aseda” was provided. She added that she was present when 1st plaintiff’s uncle presented “aseda” tothe deceased. PW1 also testified that, the deceased informed him about the gift of the Kodie house to his siblings aspleaded by the plaintiffs. Defendant and his witnesses Akosua Pokua (DW1) and Ebenezer Kusi Mpiani (DW2) disputed the gifts to the plaintiffs as testified by them. Largely, they suggested that deceased built a house at Kodie for the 1st plaintiff and also renovated the family house for 2nd plaintiff and family and even distributed the property amongst the family members. To them, by these acts of the deceased, there cannot be any further gift to the plaintiffs. In the evidence of the plaintiffs, essential elements of a valid customary gift are found. However, no evidence was led to disclose that after the gift of the Kodie house to the 2nd plaintiff and 3rd defendant’s mother, they took control of the property. Having found that the Kodie property belongs to the 1st plaintiff and the deceased, then when one of themstatesthatsame is gifted, cansame be challenged? In the circumstance of this case, I have wondered whether the testimonies of the plaintiffs on the two gifts can be what is described as “scratch my back as I also scratch yours”. In focusing my mind on the Exhibit “1” again, the affidavit of interest 1st plaintiff filed when she had the first opportunity to object to the grant of Letters of Administration, I am compelled to produce the depositions in paragraphs 7, 8, 9, 10, 11 and 12 of the Exhibit “1”asfollows: - 7. That in respect of the house at Tafo Nhyiaeso, H/No. 76, with ongoing construction this property was jointly acquired by me and the deceased during his life time, find attached acopy of allocation note and site plan bearing the joint names ofthedeceased and the caveatrix as Exhibit “AB”and“CD”. 8. That further to the immediate preceding paragraph, the said stores under constructionwasalso solely financed by me. 9. That in respect of the house at Kodie, H/No. 30 same was jointly acquired and developedby bothme and the deceased, hence cannot be anexclusively acquired propertyofthe deceased. 10. That to the immediate preceding paragraph, there are stores at the front view of the said house No. 30 which was exclusively financed by me with the assistance ofmoney lenders. 11. That I pray that these two properties indicated above be excluded from my deceased husband’s estates and grant the application in respect of other propertiesuntil the determination oftheissues concerning these properties. 12. That I have documents to prove and established that the said identified properties are not the exclusive acquired property of my deceased husband for same tobe included inhis estatestobe administeredby law”. Per the foregoing, there was not a single statement of a gift of these properties and it was entirely a claim of joint ownership. The wording of the depositions also suggest that 1st plaintiff recounted what her claims on the disputed properties were and same used toprepare theaffidavit ofinterestfor her,undoubtedly byalawyer. It cannot be said that 1st plaintiff forgot the gift to her and the 2nd and 3rd plaintiff’s mother considering the fine details of a gift she has now presented to the court to assert anentitlement for herselfand the 2ndplaintiff and sister. The evidence on the decision to make a gift by the deceased constitute statement attributed to the dead and all who witnessed the alleged gift are deceased. The court’s mind is first put in a state of suspicion as cautioned by case law. The settled principle of law on claims against the estate of a deceased person is that such a claim should be scrutinized with the utmost or close scrutiny. The caution that such claims must be weighed carefully is based on plain good sense. In Re Garnett: Gandy v. Macauley [1885]31 Chan DIV. 1 applied in Moses v Anane [1989-90] 2 GLR 694 where Brett M. R. said; - ‘The law is that when an attempt is made to charge adead personin amanner, in which if he were alive, he might have answered the charge, the evidence ought to be thoroughly sifted, and the mind of any judge who hears it ought to be first of all, in a state of suspicion, but if in the end the truthfulness of the witnesses is made perfectly clear and apparent, and the tribunal which has to act on their evidence believes them thesuggested doctrine [ofcorroboration]becomes absurd” In the case of Elizabeth Osei v. Mad. Alice Afua Korang [2013] 58 GMJ 1 at 20, Ansah JSC, explained Brett M, R.’s statement in relation to the factors taken into consideration in assessing the credibility of a witness as provided in S. 80 of the Evidence Act, 1975, (NRCD 323). He observed that the statement does not mean that the claim against a dead person should be rejected outright because it was made against a deceased but rather the claim should be scrutinized and carefully weighed for inherent probative value because the dead person cannot speak or be available to challenge the claim. That is why in invariably all such cases, the Court in its wisdom looks for pieces of evidence tocorroborate theclaim. Thus, in this case, I find it strange that when PW1 testified that deceased told him about the gift to the 2nd plaintiff and 3rd plaintiff’s mother, he did not tell him about the gift to the 1st plaintiff of his half share of the Tafo Nhyiaeso house since both gifts were made onthe same day. Furthermore, from the account on how the gift of the Kodie property was made, same suggests a spur-of-the-moment decision. Interestingly, the donees of the Kodie property werenot eveninvited tobe part ofthemeeting. Having weighed the sudden U-turn from joint ownership to no vested interest in deceased of the disputed properties, I will dismiss the claim of a gift, consider same as anafterthought andtotake anundue advantage overthe deceased’s estate.The claim of giftis accordinglydismissed. CONCLUSION From the findings and conclusions made, I find that 1st plaintiff’s interest in the disputed properties is made out, but not in the form she seeks. In the circumstance, the Courtentersjudgement in thefollowing terms: - a. A declaration that all that house situate at Tafo Nhyiaeso H/No. 11 Block P is the property of 1st plaintiff and her deceased husband Nana Kwadwo Mpiani holding same in equalshare. b. A declaration that all that house situate at Kodie/Ashanti and number H/No 5, Block R is the joint property of the 1st plaintiff and the deceased Nana Kwadwo Mpiani. c. A declaration that all the building containing commercial store rooms situate at Kodie, Ashanti was jointly acquired by the 1st plaintiff and the deceased Nana Kwadwo Mpiani. However, the interest of the couple be 30% for deceased and 70% forthe 1stplaintiff. d. A declaration that the half share (50%) of the properties mentioned in (a) and (b) above and 30% of the property in (c) above do form part of the estate of Nana Kwadwo Mpiani for all inclusive of the 1st plaintiff as the law provides under P.N.D.C L.111,the IntestateSuccessionLaw, 1985. Noorderasto cost. JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT LAWYERS ALBERTGYAMFI FOR THE PLAINTIFFS SARFOGYAMFI FORTHE DEFENDANT