Fosuaa V Okyere & Anor (C1/38/18) [2024] GHAHC 419 (14 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE ASHANTI REGION, KUMASI HELD ON THURSDAY THE 14TH DAY OF NOVEMBER, 2024BEFOREHER LADYSHIPHANNAH TAYLOR (MRS)J. SUITNO: C1/38/18 AKUAFOSUAA …PLAINTIFF SUINGFOR HERSELF ANDONBEHALF OF HERUTRINE SIBLINGS H/NO. BE 167 BONWIRE –ASHANTI VRS. 1. ASONAHENE KWAMEOKYERE …DEFENDANTS ABABIOOF FIAKOMA 2. AFUAPOKUAA BEPOASE _____________________________________________________ JUDGMENT _____________________________________________________ 1 The plaintiff, a sister of Kwabena Baah the testator, sues the 1st defendant a named executor in his Will and the 2nd defendant the testator’s wife and named beneficiary of his Will. Plaintiff prays for an order to set aside the testator’s Will dated 9th November, 2012contending thatthe properties; - i. Cocoa farm lying and being at Kyimkyimso and bounded by the farms of AgyaBoakye, Opanin Frimpong andAgyaAbebrese, ii. House numberN.K.18, Kyimkyimso, iii. Aplot ofland situated at Bonwire, iv. A parcel of land situated at Gyempe near Kyimkyimso bounded by Agya Ntiamoahand MadamYiwaa, v. A parcel of land situated at Kyimkyimso on Nkanie Stool land bounded by the properties of Agya Boakye, Agya Sakyi and the Asuo-Addai stream are not the self-acquired properties of Kwabena Baah, the deceased testator and same could notformpartofthe propertiesofthe testator. PLAINTIFF’S CASE The properties in contention, the plaintiff averred were the self-acquired properties of their late father Opanin Kwaku Attakora and he had gifted all to his children and wife. The wife and children were stated as Ama Nsiah (wife), Akua Fosuaa, Afua Yaamoah, Afia Baama, Yaa Boatemaa, Akua Kwatemaa, Kwaku Agyeibi, Clement Baah and 2 Kwabena Baah (the testator) of the gift made, the family and the wife on her behalf and thechildren offered ‘aseda’to Opanin KwakuAttakora. Kwabena Baah, the testator being the eldest male sibling was made to manage and take care of the farm and the properties mentioned in this suit. However, the testator enjoyed the proceeds of the cocoa farm without rendering proper accounts to the other beneficiaries. The house numbered N.K. 18 Kyimkyimso was built before the testator was born and has been occupied by Akua Kwartemaa and herself during the life time of the testator and theyare stillinoccupation. Of the house at Bonwire, plaintiff stated that their mother Ama Nsiah acquired the propertyin the name oftheir late brother,Peter Baah. With the consent of the other siblings the testator was allowed to give the land at Gyempe to one Agya Kyinkyinga Buasanga on “abunu tenancy”to cultivate cocoa farm. The siblings and herself have taken their portion of the said farm and same is being managed by theplaintiff. 3 DEFENDANTS’ CASE The defendants admit that plaintiff and her siblings are the children of Ama Nsiah and OpaninKwaku Attakora and that Kwabena Baahhad died testate devising the disputed propertiesin hisWill. The defendants however, denied the claim of gift of the disputed properties by Opanin Kwaku Attakora to his children. They contended that Opanin Kwaku Attakora gifted the cocoa farm at Kyimkyimso to the 2nd defendant’s husband, Kwabena Baah in his Will dated 17th December, 1999. Opanin Kwaku Attakora did also gift the H/No. NK 18 Kyimkyimso exclusively to Kwabena Baah in the presence of witnesses and aseda was offeredby Kwabena Baah. In the life time of Kwabena Baah, 2nd defendant rehabilitated one bedroom without any objection from anyone. However, during the life time of Opanin Kwaku Attakora, plaintiff came to settle in a room in the disputed house and at a point, Kwabena Baah had wanted to eject herbut forherpleas she was allowed tolive in thehouse. Akua Kwartema also came to settle in the house, after the death of Ama Nsiah, their mother. Denying all other claims of the plaintiffs, defendant counterclaimed for the following reliefs against theplaintiff: - i) Adeclaration thatthe Willdated 9th November, 2012is valid. 4 ii) A declaration that the devises in the Will are the personal properties of the deceased. iii) Perpetual injunction restraining the plaintiffs, their agents, and servants from havingany dealings withthe said properties. THEISSUES FORTRIAL The plaintiff joined issues with the defendants on their statement of defence and denied their counterclaim. On the issues for determination, they are set here thereunder as follows: - a) whether or not the late Opanin Kwaku Attakora in his lifetime gifted the following propertiesto allhischildren: - i) The cocoa farm lying and being at Kyimkyimso and bounded by the properties ofAgya Boakye Frimpongand Agya Abebrese. ii) House numberKN18, Kyimkyimso. iii) Anunnumbered plotofland situated atBonwire. iv) Anunnumbered parcelofland situated at Gyempe nearKyimkyimso. v) A parcel of land situated at Kyimkyimso bounded by the properties of Agya Boakye, Agya Sakyiand Asuo AddaiStream. b) Whether or not the following properties were the self-acquired properties of the late Kwabena Baah. 5 i) The cocoa farm lying and being at Kyimkyimso and bounded by the properties ofAgya Boakye Frimpongand Agya Abebrese. ii) Ahouse situated at Kyimkyimso withhouse number NK18. iii) Aplot ofland situated at Bonwire. iv) Aparcel ofland situated atGyempe nearKyimkyimso. v) A parcel of land situated at Kyimkyimso bounded by the land of Agya Boakye, AgyaSakyiand the Asuo Addai. c) Whether or not the late Kwabena Baah could devise the properties mentioned at paragraph(b) supra to the2nd defendant under his Will dated9th November, 2012. d) Whetherornot theWill dated9th November, 2012isvalid. BURDENOF PROOF Section 10 (1), 11 (1) and 12 of the Evidence Act, 1975, NRCD 323 provide as follows: - 10 (1) For the purposes of this decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of thetribunaloffact orthe court”. 11 (1) For the purposes of this decree, the burden of producing evidence means an obligation of a party to introduce sufficient evidence to avoid a ruling against himonthe issue. 6 12 (1) Except as provided by law, the burden of persuasion requires proof by a preponderance ofprobabilities. (2) “Preponderance of probabilities” means the degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence ofafact is moreprobable thanits non-existence”. On the bounden duty on a party who desires to succeed in a civil case, Kulendi JSC, in the case ofKWADWO FOSU V. NANA OSEI & KOJO VI [2023] 182GMJ at334 at 359 held “For a party in a civil case to succeed, that party must adduce sufficient evidence such that on the preponderance of probabilities the existence of the fact upon which his claim is premised is moreprobable thanits non-existence”. It is thus, required of the plaintiff, to prove the facts asserted with credible, cogent and admissible evidence, sufficient to lead the Court to conclude that the existence of the facts asserted by her are more probable than their non-existence as provided under Sections 10and 11oftheEvidence Act, 1975,NRCD 323. In cases like DON ACKAH V. PERGAH TRANSPORT [2011] 31 GMJ 174 and YORKWA V. DUAH [1992 – 1993] GBR 278, it was emphasized that the basic principle of evidence has been that a party who bears the burden of proof is to produce the 7 required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. Matters that are capable of proof must be proved by producing sufficient evidence so that the existence of the fact is more probable than its non- existence. In this case, where the defendants have a counterclaim, they are the plaintiffs in relation to the reliefs they seek. So, defendants bear a similar burden of proof as claimants. In OSEI V. KORANG [2013] 58 GMJ, it was espoused that “a counterclaimant is as good as a plaintiff in respect of a property which she or he assays to make his or her own. Also, adefendant who files acounterclaim assumesthe same burden asaplaintiff in the substantive action if he or she is to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof required under section 11 and 14 of NRCD 323 of the Evidence Act, 1975. In 2000 LIMITED V. FRANCIS OTOO [2018] DLSC 3300 at page 5, Appau JSC reiterated that the counterclaimant could only succeed in his counterclaim on the strength of his evidence, “the standard of proof required that for appellant to succeed on his counterclaim, he must lead satisfactory evidence, either by himself or otherwise whichonthe balance ofthe probability, makeshiscase moreprobable thannot. 8 DETERMINATION OFISSUES From the pleaded case of the parties and evidence, the central issue is the ownership of the disputed properties and whether the deceased Kwabena Baah can devise the disputed properties inhis Will. It is obvious as well that it is the devises in the Will which have generated this dispute. The Will of Kwabena Baah was tendered by 2nd defendant and was admitted into evidence and marked as Exhibit “1”. The relevant portion generating this litigation is reproduced asfollows: - 3. My late father, Opanin Kwaku Attakora gifted to me a cocoa farm at Kyimkyimso and bounded by the properties of Agya Boakye, Frimpong and Agya Abebrese, I give and devise one-half (½) of my said cocoa farm unto and to the use of my wife Akua Pokuaa and the remaining half unto all my children absolutely. 4. I own and possess No. NK 18 containing five (5) rooms and having kitchen and bathrooms situate and being at Kyimkyimso. This I devise and bequeath unto and tothe use ofmy wife Afua Pokuaaand all my childrenabsolutely. 5. I own all that piece or parcel of land situate and being at Kyimkyimso on Nkanie stool land and bounded by the properties of Agya Boakye, Agya Sakyi and the 9 streamAsuo-Addai. Igive and devise my said piece orparcel ofland unto and to theuse ofmy wife Afua Pokuaa and allmy children absolutely. 6. I own and possess a house at Bonwire. This I give and device to my son Kwame Kyereabsolutely and forever. 7. I have granted all that piece of land situate and being at Gyempe at Kyimkyimso and bounded by the properties of Agya Ntiamoah, Yaw Ohene and Madam Yiwaa unto Kyinkyinga Busanga to cultivate cocoa thereon on abunu basis. I give and devise my share of the cocoa farm unto and to the use of my niece Abena Konadu of Bonwire. I direct that my said niece shall give a portion of the proceeds of the cocoa farm to my deceased brother Kwaku Attakora’s son also called KwakuAttakora” The ownershipofthe disputed propertieswill be determined one afterthe other. OWNERSHIP OF COCOA FARM AT KYMKYIMSO It is the case of the plaintiff that this cocoa farm at Kyimkyimso belonged to their father Opanin Kwaku Attakora and same gifted to all his children inclusive of the Kwabena Baah and aseda was offered. In Exhibit “1”, the testator acknowledges that the farm belongstohis fatherwhen he gifted same tohim alone. 10 On when this gift was made, 2nd defendant testified in paragraph 11 of her witness statementas follows: - “I maintain that the Kyimkyimso cocoa farm was originally acquired by Opanin Kwaku Attakorawhich was devised to his sonOpanin Kwabena Baah, my husband”. Under cross examination 2nd defendant insisted on a gift to his deceased husband, Kwabena Baah and answered as follows: - Q. At the last date you mentioned that the cocoa farm at Kyimkyimso was gifted to yourlate husband. Isthat correct? A. That iscorrect. Q. Whenwas the “aseda”performed? A. He did not perform “aseda” but his father told him he will prepare a document onsame. Q. Wasthis document ever prepared. A. That isso. Q. Haveyoubroughtthis document asanExhibit to court? A. Ibrought it to court. From the evidence, the only documents tendered by the 2nd defendant are Exhibit “1” the Will of Kwabena Baah, Exhibit “2” Letters of Administration with Will annexed granted to Afua Pokuaa as a beneficiary and Kwame Okyere and Exhibit “3” a vesting 11 assent in which properties devised in Exhibit “1” have been vested in Afua Pokuaa and children. There is no document presented to the court evidencing a gift made to Kwabena Baah. In 2nd defendant’s testimony she further stated that the document was among her documents given to her lawyer and she does not know why the lawyer did not make themavailable tothe court. Listening to 2nd defendant, she does not allude to a customary gift. In ASARE V. KUMOJI [2000] SCGLR at 298 at 302, the Supreme Court, speaking through Aikins JSC acknowledged that there are two ways of making a valid gift, either by a conveyance where adeed ofgift is granted to evidence the transaction ororally where it is governed by customarylaw. With respect to customary law 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 tokenofacknowledgement and gratitude in the presence ofwitnesses. Where the 2nd defendant alludes that there was a document prepared to cover the gift, this assertion is capable ofproof by the production of document which will be sufficient evidence. The failure to produce the document and merely repeating a claim of a gift will not suffice to establish the existence of the fact being probable than its non- 12 existence. The law frowns on bare assertions without more as espoused in the oft-cited case MAJOLAGBE V.LARBI & ORS. [1959]GLR190. Thus, in the case of KLAH V. PHOENIX INSURANCE [2012] 2 SCGLR 1139, the Supreme Court held that where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating the averment onoathor having it repeated onoathby his witness. He proves it by producing other evidence of facts and circumstances from whichthe courtcan be satisfied thatwhat he aversistrue”. HOUSENo. NK18KYIMKYIMSO. The plaintiff has testified that this property was also acquired by their father Opanin Attakora. The 2nd defendant did not deny that this property was owned by Opanin Attakora but she pleaded and testified that the property was gifted to Kwabena Baah. In her pleaded case per the statement of defence per the paragraph 5 and 6 she averred asfollows: - “5. In further reaction to paragraphs 15 and 16 of the statement of claim the 2nd defendant states that the late Opanin Kwaku Attakora gifted the house NK 18 Kyimkyimso exclusively to his son, the late Kwabena in the presence of witnesses. 13 6. Repeating paragraph 5 supra the 2nd defendant says that the late Opanin Kwabena Baah offeredaseda tohis late fatherOpanin KwakuAttakorah.” With these averments, 2nd defendant alludes to a customary gift. However, under cross examination 2nddefendant testified as follows: - Q. Howdid youcome intopossessionofthis house? A. Myfather in lawmade aWill and devised the propertytomy husband. Q. Do youhave acopy ofthe alleged Willofyourfather in law,OpaninAttakora. A. Ihave acopy. Q. Youhave acopy ofthevesting assent inrespect ofthe propertytoyourhusband. A. That isso. Q. Werethey exhibited in this court? A. Igavethemtomy lawyer. Q. Iput it toyouthat Opanin KwakuAttakora neverinhis lifetime made any Will. A. He made aWilland Ihave the original copy ofthe Will. Once again, 2nd defendant testified that the original copy of the Will and vesting assent arewithher lawyer. From the foregoing, 2nd defendant abandoned her pleaded case on customary gift in respect of the house in contention. In fact, in her witness statement, she led no evidence on how the house was acquired as pleaded but now only stated there exist a Will of her 14 father in law and a vesting assent executed for the benefit of her husband without tendering them. It is trite learning that pleadings do not constitute evidence. Evidence is required to establish theexistence ofthe facts allegedbeing probable than their non-existence. LANDONNKANIE STOOL LAND In respect of the land at Nkanie, the plaintiff maintained that same was acquired by their father and he gifted same to allhis children. 2nd defendant led no evidence onthis property. Itispresumed thatshe hasabandoned her pleaded case. PLOTOF LANDAT GYEMPE Plaintiff’s testimony is that their father, Opanin Kwaku Attakora owned a cocoa farm at Gyempe which farm land in its virgin state was given to Yiniha Bonzanga on abunu basis. The cocoa farm at Gyempe has been divided between Yiniha Bonsanga and she is in possession of the other half. Therefore, the land does not form part of the self- acquired properties of Kwabena Baah’s estate. She however, added that Kwabena Baah wasonly allowed by their fathertomonitorthe workofYiniha Bonzanga. 15 PW1, Hayford Oppong, testified on Opanin Kwaku Attakora giving the land to Yiniha Bonzanga to cultivate and also supervised the sharing of the cocoa farm cultivated by Yiniha Bonzanga. PW2, Agyemang Duah testified that the properties in dispute belong to Opanin Kwaku Attakora. He testified that when the land at Gyempe cultivated by Yiniha Bonzanga was being divided he was present and same was divided between Nyini-ha Bonzanga and the Opanin Kwaku Attakora’s children. The properties have never been the propertiesofKwabena Baah. PW1 and PW2 were subjected to cross examination on a Will made by Opanin Kwaku Attakorahwhich theybothdenied. The 2nd defendant though she has pleaded that the disputed properties belonged to his husband, in her witness statement, she did not testify on how the testator Kwabena Baahacquired the propertyat Gyempe. Under cross examination, she disputed the claim of Agyeman Duah (PW2) being present when the land was divided because Agyemang Duah (PW2) was not on speaking terms with her father in law. However, under further cross examination, 2nd defendant answered; - Q. You know Nyini-ha Bonzanga was the caretaker of your father in law’s cocoa farmatKyimkyimso. A. That isso. 16 Q. His duty was to render accounts to your father in law whiles he was there togetherwithyourlate husband. A. That is not correct. When we went there the Gyempe land given Yini-ha Bonzangaonabunu basis. The land at Kyimkyimso was giventomy husband. Considering the 2nd defendant’s failure to lead evidence on how the husband came by the Gyempe land, it is suggestive that she has abandoned her pleaded case of ownershipby the husband. In addition, her answer under cross examination admits that Nyini-ha Bonzanga was given land at Gyempe on abunu basis. Under this head, her claim of her husband’s ownership of the Gyempe land is dismissed and the Court will uphold the claim of plaintiff’s father’s ownership of same. The evidence led on gift by Opanin Kwaku Attakorafor allhis childrenincluding Kwabena Baahwill be upheld. BONWIRE PROPERTY The plaintiff once again asserts and testifies that the property at Bonwire was acquired by her late mother but she used the name of Peter Baah in preparation of the site plan whichshe tendered intoevidence and same admitted and markedas Exhibit “A”. Exhibit “A” is on land at Bonwire near Ejisu described as Block “K” plot No. 7 for Peter Baah. 17 Undercrossexamination she answered: - Q. Can you confirm to the court if you are aware that your late brother had a house atBonwire. A. The property is not the property of Kwabena Baah. The land was bought by our mother at 5 pounds. My mother had two sons with the name Baah. That is Peter Baahand Kwabena Baahand it is PeterBaahwho is in possession ofthe property atBonwire as we speak but he is nowdeceased. Q. Do youknowKwame Kyere, sonofyourlatebrother. A. Yes, Iknowhim. Q. I am putting it to you that the said house at Bonwire was devised to Kwame Kyereinthe last Will ofKwabena Baah. A. Ido not agreewith you. Itdoes notbelong tohimfor himto devise same. Under further cross examination, the plaintiff was asked the following questions and she answered:- Q, And doyouknowCharlesAttakorahalso knownasAkwasiGyabaa. A. Yes, Iknowhim. He isthe one also knownasPeter Baah. Though it was suggested to the plaintiff that Peter Baah is the same person as Kwabena Baah, she denied same and added that Kwabena Baah was rather known as Clement Baah. 18 The 2nd defendant in her testimony per the witness statement did not testify on how the deceased Kwabena Baah came by the property at Bonwire. All that she said of the Bonwire property is as found at paragraph 12 of the witness statement after testifying onthe Will andvesting assent asfollows: - 12. I again maintain that the house at Bonwire is the property of my son, Kwame Kyere. Under cross examination the 2nd defendant testified that Peter Baah refers to Kwabena Baah and that Akwasi Gyabaa is rather known as Charles Attakora. The Exhibit “A” evidently suggests that the Bonwire property is in the name of Peter Baah. But amongst the children of Opanin Kwaku Attakora, who is Peter Baah? The evidence that Kwabena Baah is also known as Peter Baah having been challenged, the 2nd defendant ought to have led cogent evidence to establish same. Merely repeating that the testator is also known as Peter Baah is not sufficient in the circumstance of this case. More particularlywhen thetestator neveralluded to being called Peter Baahin his Will. In all, I find that credible and sufficient evidence were not led by the defendants to establish the testator’s ownership of the devised properties, particularly, where the defendants admit that the properties were owned by Opanin Kwaku Attakora. The defendants’ claims are denied. 19 I find therefore that indeed the cocoa farm at Kyimkyimso, house number N.K. 18 Kyimkyimso, land at Gyempe, Bonwire and land at Kyimkyimso on Nkanie stool are not the self-acquired properties of the testator. The plaintiff’s claim that properties excluding the Bonwire land are properties of Opanin Attakora and the claim of he havinggifted same to allhis childrenis probable. Accordingly, the testator cannot devise the properties in his Will. Section 1 of the Wills Act, 1971, Act 360 provides that a person of or above the age of 18 years may in writing and inaccordance withthe Actmake aWill disposing offthe property; - a) ofthat person b) towhichthat personwill be entitled at thetime ofdeath. c) To which thatpersonmay be entitled afterdeath. With the finding that Kwabena Baah does not own the contested properties, the effect is that all devises found in paragraphs 3, 4, 5, 7 and 8 of his Will, Exhibit “1” dated 9th day of November, 2012 affecting the properties found for Opanin Kwaku Attakora’s childrenare struck out. Does this finding make the Will of Kwabena Baah invalid. On validity of Will, the Supreme Court in the case of IN RE KUMI (DECEASED) KUMI V NARTEY [2007 – 2008] 1 SCGLR 623 held that a challenge to a specific devise in a Will does not affect the 20 validity of a Will. Such a Will could be admitted to probate whilst an action is taken to determine the ownership ofsuchproperty. Therefore, the fact of the devised properties being struck out does not make the Will invalid if there are other devises that have not been contested. In this case however, apart from the contested properties there are no other devises neither is there is a residuaryclause. Exhibit “1”therefore, becomesan emptydocument. CONCLUSION The plaintiff’s claim, having been found probable on the balance of probabilities, judgement will be entered for the plaintiff with a declaration that the contested properties, cocoa farm lying and situate at Kyimkyimso and bounded by the properties of Agya Boakye, Opanin Frimpong and Agya Abebrese, House number NK18 situated at Kyimkyimso, plot of land situate at Bonwire, parcel of land situated at Gyempe at Kyimkyimso and parcel of land situated at Kyimkyimso on Nkanie Stool bounded by the properties of Agya Boakye, Agya Sakyi and Asuo Addai are not the self-acquired properties of the testator, Kwabena Baah but same gifted by Opanin Kwaku Attakora to allhischildren. The devices affecting the disputed properties in Kwabena Baah’s Will are hereby set aside. 21 Cost of GH¢5,000.00 awarded against the defendant having regard to the relationship betweenthe plaintiff and the 2nddefendant. [SGD] JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT LAWYERS PATRICK ASANTE NNURO WITH JOYCELYN FRIMPONG BONA FOR THE PLAINTIFF RAPHAEL DARKOFORTHE DEFENDANTS 22