Nuako & Anor V Serwaa & 3 Ors (C1/205/17) [2024] GHAHC 425 (6 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE ASHANTI REGION, KUMASI HELD ON WEDNESDAY THE 6TH DAY OF NOVEMBER, 2024BEFOREHER LADYSHIPJUSTICE HANNAHTAYLOR (MRS). SUITNo: C1/205/17 1. GLADYSASANTEWAANUAKO …PLAINTIFFS 2. MAUDNTIRIWAA ADJEI TESHIELEKMA 7PRIMARY SCHOOL TESHIE,ACCRA VRS 1. AKUASERWAA …DEFENDANTS OF NEW ADUBIASE,ASHANTI 2. KWABENAWASSA 3. ABAYAA 4. FRANK YEBOAH ALLOF H/NO. 2,YAA ABAWASTREET DUASI,NEAR KUMASI _________________________________________________ JUDGMENT 1 The 1st and 2nd plaintiffs describing themselves as the widow and child respectively of Nelson Kwaku Adjei Donkor alias Adjei Twum (deceased) pray the court for the following reliefs against thedefendants; - i. Declarationoftitle toHouse number 2,Yaa Ababawa Street,Duasinear Kumasi. ii. Alternatively; declaration that 1st plaintiff as a spouse of the late Nelson Kwaku Adjei Donkor alias Twum at the time of the acquisition and or building of the house number 2, Yaa Ababawa street, Duasi near Kumasi is entitled to the said house inequal share withthe deceased. iii. A declaration that interest of the late Nelson Kwaku Adjei Donkor alias Adjei Twum in house number 2, Yaa Ababawa street, Duasi near Kumasi ought to be distributed in accordance with the Intestate SuccessionLaw1985,PNDC Law 111. iv. Recovery of possession of the land house number 2, Yaa Ababawa Street, Duasi nearKumasi. v. Perpetual Injunction restraining the defendants’ their agents, servants, workmen, relatives or any persons or person claiming through them from in any manner interfering and/ordealing withthe house in dispute. vi. Anyotherrelief asthis court,may be deemed just andequitable. PLAINTIFFS’CASE The plaintiffs statethat NelsonKwakuAdjeiDonkordied intestate on8thNumber, 1998. On 27th April, 2017, 1st plaintiff was granted Letters of Administration and she 2 subsequently, prepared a vesting assent in respect of the disputed property vesting same in the plaintiffs as beneficiaries. The 2nd defendant who was a mason during the construction of the property was put in the property to take care of same until its completion. The plaintiffs had lived in the house with the 2nd defendant in 1996 when the house was completed. In the year 2004, plaintiffs went to stay in Accra to seek medical attentionfor the 1stplaintiffand havecontinued tolive there. However, after the issuance of the vesting assent, it was noted that 3rd defendant and one Elder Adomako have moved to stay in the house. The plaintiffs caused their solicitor to write a letter inviting them for a discussion on their stay in the house. They did not heed to the invitation. Consequently, 2nd and 3rd defendants were asked to vacatethe house but onlythe said Elder Adomakoleft. The 1st defendant, a sibling of the deceased sent the 4th defendant, another sibling of the deceased to live in the house and he (4th defendant) over the rooms occupied by Elder Adomako. When the plaintiffs attempted to take over the room occupied by Elder Adomako from 4th defendant he reported the matter to the police, contending that the property belonged to the (1st and 4th defendants) brother, the deceased Nelson Kwaku AdjeiDonkor. Hence, the institutionofthe presentaction. 3 DEFENDANTS’ CASE The defendants admit that 2nd plaintiff is the child of the late Nelson Kwaku Adjei, however, 1st defendant who was a wife had long been divorced by the deceased before his demise. The 1st plaintiff however, took an action in the High Court against the deceased and the brother, Ernest Owusu Donkor regarding the state of the marriage and the property, the subject matter of this case and same was struck out for want of prosecution. The deceased also have two other children resident in the United Kingdom. They further contended that the notice of the application for letters of Administration was never brought to their attention and for that matter, the purported Letters of Administration granted and the vesting assent are a nullity as the 1st defendant is not a widowofthe deceased. The 2nd defendant, according to the defendants was put in possession of the disputed propertyby the deceased’sstepfather withthe deceased’s consent. In 1996, the deceased permitted the 1st plaintiff and 2nd plaintiff to live in a room in the disputed house because she had been evicted from her rented apartment and that 1st plaintiff did not live in the house as a wife. They contend that plaintiffs left the house a week afterthe deathofNelson KwakuAdjeiDonkor. 4 The 3rd defendant and the Elder Adomako were tenants in the house and the 4th defendant is a brother of the deceased who occasionally visits the house to ensure that everything is in order. The defendants then counterclaimed for the following reliefs against the1stplaintiff; - i). A declaration that 1st plaintiff is not the widow of the deceased since the marriage between 1st plaintiff and deceased had been dissolved long before the demise ofthe deceased. ii) An order nullifying the proposed Letters of Administration obtained by the 1st plaintiff bythe Honourable Courtforlack ofcapacity. iii) Costincluding solicitor’s fees. REPLYANDISSUES FORTRIAL The plaintiffs joined issues with the defendants on their statement of defence and denied their counterclaim. The essential issues agreed onfordeterminationare asfollows: - 1. Whether or not the 1st plaintiff’s marriage with Nelson Kwaku Adjei Donkor aliasAdjeiTwum was subsisting at thetime ofhis death. 2. Whether or not the defendant had notice of the application by 1st plaintiff for Letters of Administration over the estate of the late Nelson Kwaku Adjei Donkor aliasAdjeiTwum. 5 3. Whether or not the Letters of Administration over the estate of the late Nelson Kwaku Adjei Donkor alias Adjei Twum granted by the High Court, Kumasi to the1stplaintiff is valid and subsisting. 4. Whether or not it was the 1st plaintiff who put the 2nd defendant in occupation of thehouse indispute. 5. Whether or not the defendants have the requisite capacity to set up the counterclaim. BURDENOF PROOF It is trite learning that a person who alleges the existence of a fact bears the burden to leadthe requisite credible evidence in proving same before thecourt. Thus, under section 10(1) of the Evidence Act, 1975 (NRCD 323) a party who alleges the existence of a fact bears the burden of persuasion. The section 10(1) of NRCD 323 provides: - “For the purposes of this Act the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact orthe court.” Section11(1) and (4) ofNRCD323also provide; - 11. Burdenofproducing evidence 6 (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against him onthe issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind conclude thatthe existence ofthefact was moreprobable thanitsnonexistence” Thus, the onus is on the party making assertions which have been denied to discharge theburdens ofpersuasionand ofproducing evidence. In DON ACKAH V. PERGAH TRANSPORT [2011] 31 GMJ 174,[2010] SCGLR 728 at 736 Adinyira JSCtherefore held: - “It is a basic principle of law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. It is trite that matters that are capable of proof must be proved by sufficient evidence so that on all the evidence a reasonable mind can conclude thatthe existence ofthefact is moreprobable thanitsnon-existence.” In this case, where the defendants have counterclaimed, they bear the same burden as theplaintiff. Foracounterclaimis anindependent action. In OSEI V. KORANG [2013] 58 GMJ [2013-2014] SCGLR 221, it was espoused that “a counterclaimant is as good as a plaintiff in respect of a property which she or he assays 7 to make his or her own. Also, a defendant who files a counterclaim assumes the same burden as a plaintiff 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 tothe same standard ofproof required under sections11 and14of NRCD323 ofthe Evidence Act, 1975”. DETERMINATION OFISSUES Whether or not the 1st plaintiff’s marriage with Nelson Kwaku Adjei Donkor alias Adjei Twum was subsisting at the time of his death. From the pleaded case of the parties, they do not contest the fact that 1st plaintiff and the deceased got married. The question is, did this marriage subsist till the deathofNelson KwakuAdjeiDonkor? From the evidence, the marriage between the parties was a customary marriage and the marriage ceremony was performed in the year 1987. After the marriage was contracted, she went to the United Kingdom to be with the husband and returned to Ghana pregnant with the 2nd plaintiff. It is the 1st plaintiff testimony that, this marriage subsisted till the deathofNelsonKwakuAdjeiDonkor. Undercrossexamination, 1stplaintiff answered as follows: - Q. Right from 1988 when you came back to Ghana till, he died in 1998, the deceased had no maritalrelationship with you. A. He was married tome. 8 However, under cross examination, the 1st plaintiff admitted that she had instituted an action before the High Court in May, 1997 against the deceased and his elder brother and among the reliefs sought were as she answered are as follows: - Q. In that suit, the first relief you were seeking from the court was a declaration that the house in issue in this instant case should be declared as a joint property of yourself,2nd plaintiff andthe deceased. A. That iscorrect. Q. You also sought a relief from the court to make a declaration that the marriage betweenyouandthe deceased was subsisting. Isthat correct? A. That iscorrect. In fact, the suit instituted by the 1st plaintiff was titled; GLADYS ASANTEWA NUAKO V 1. KWAKU ADJEI TWUM 2.ERNEST OWUSU DONKOR, Suit No. LS/103/97 asperthe Exhibit “1”tenderedby the 1stdefendant. The second reliefsought in theSuit No. LS/103/97was asfollows:- “Declarationthat the marriage betweenthe plaintiffand 1stdefendant is subsisting”. From the accompanying statement of claim of 1st plaintiff’s suit per the foregoing it discloses that there was a claim of the dissolution of her marriage that prompted the stepshe took foradeclarationthat the marriage subsists. 9 However, the evidence is that the case was never determined. Though the plaintiff states the case was not pursued because the named defendants died, the defendants herein state that the case was struck out for want of prosecution. Whether the case was struck out is a matter that is capable of proof. A simple search at the registry where the Exhibit “1’’ was filed could have given the answer. What is gathered is that the suit was not determined on its merits. What this earlier suit suggests is that there was a claim of dissolution of marriage for which 1st plaintiff protested. Therefore, the issue of whether the1stplaintiff’smarriage has beendissolved was not determined. It is to be noted that the existence of a customary marriage and subsequent divorce are matterswhichare determined by aCourtoflaw. In his book “Family Law in Ghana”, fifth edition, William E. Offei (of blessed memory) from pages 171 – 179 presented that under customary law, dissolution of customary marriage differs from one traditional area to another. Also, it depends on the customary law of the parties, even among Ashanti’s. At page 172 of the book however, he discussed the method of dissolution as follows; - “The relatives of the two (2) parties meet and when all efforts at reconciliation fail, those assembled, known as “Baguafo” ask the parties which of them has lent anything to the other party. Any borrowed item must be returned to the partner who lent it, except that the man may say that even though he lent a particular item or items to the wife, he does not intend to claim it or themback” 10 Whatis significant isthat thereis themeeting ofthe twofamilies. Divorce in customary law, may be judicial or extra judicial. Judicial divorce is obtainable by applying to the Court with jurisdiction to adjudicate divorce proceedings. Indeed section 41 of the Matrimonial Causes Act 1971, (Act 367) which deals with divorce, makes the Act applicable to polygamous marriages “subject to the requirement ofjustice, equityand good conscience”. An extra judicial divorce can be obtained if one party takes a unilateral action to dissolve the marriage such divorce will be granted by the family and tribal elders after all efforts to reconcile the parties have failed. In the case of ATTAH V. ANNAN [1975] 1 GLR 366, Baidoo J described the mode of termination of customary marriage persuasivelyas follows: - “Even though a man normally goes to the father of the woman he intends marrying to formally ask for her hand in marriage, that does not mean that the father or any relation of the wife can unilaterally and capriciously terminate the marriage. The marriage can be terminated only after an arbitration (to which must be invited members of the family of each spouse and neutral persons) has been conducted to find an offence proved. It is the duty of the arbitrators to try their utmost to effect reconciliation between the spouses in a genuine attempt to salvage the marriage. Dissolution or divorce is resorted to as a last measure when the circumstances of the case either show a total breakdown of the marriage or warrant it. After the arbitrators have ruled that the situation calls for 11 divorce, the spouses must be given an opportunity to show whether the other spouse owesany amount orhasany propertybelonging tohim orher. After settling all legitimate accounts between the spouses, the final act of divorce is then performed by the husband releasing her from conjugal obligation, either by chalking her or saying so in the presence of the gathering. The growing practice of writing a letter commonly referred to as “a free note” to terminate a customary marriage is absolutely repugnanttonative customand totally ineffective”. On what took place and counted by the defendants as a dissolution of the marriage is found in the testimony of the 1st defendant, the uterine sister of Nelson Adjei Donkor. Her testimony is as found at paragraphs 11, 12, 13 and 14 of her witness statement as follows; 11. In or about 1997, the deceased sent me a letter and complained that the 1st plaintiff has been engaging in adulterous behaviour since she paid him a visit to theUnited Kingdom. 12. He mentioned the name of the 1st plaintiff’s paramour as Gyedu Kotua and he once met themin their own matrimonialbed. 13. About a month or so thereafter, the family tasked us to go and divorce the 1st plaintiff. Mr. Donkor (the deceased late father), the wife of Mr. Donkor by name Aunt Adwoa Gyakyiwaa and I went to Ofoase – Kokoben to present a drink to the1stPlaintiff’s fatherby name Mr. Nuakohtodivorce the1stplaintiff. 12 14. The father of the 1st plaintiff received the drinks and promised to inform the 1st plaintiff and therest oftheir family”. From the 1st defendant’s testimony, it is suggestive that the decision to divorce the 1st plaintiff is the decision ofthefamily otherthanthe decision ofthedeceased husband. Under cross examination, 1st defendant was questioned about the where about of the letterallegedly writtenby the brother and she stated that her things got burnt so has the letterbeenburnt by inference. Based on the letter which could not be produced, drinks were provided and the items were sent to 1st plaintiff’s father. On the persons who were present at the time the drinks were allegedlypresented,the 1stdefendant testified; - Q. Name every personwho were presentwhen the drinks were presented. A. Myself, my father, mother and her family head. We also went with two others fromKokoben. Q. Name those who were present when you allegedly sat down to discuss the dissolutionofthe marriage? A. Myself,my father,my mother,my sister and two othermen. Q. You agree that on that occasion your brother, Nelson Agyei Twum and the 1st plaintiff werenot present.Isthat so. A. Yes, theywere notpresent. 13 On the persons who were present from the 1st defendant’s family it seems the 1st defendant is uncertain. She under cross examination makes additions and subtracts from same when her answers are considered with her witness statement on who presentedthe drinks. Clearly, what 1st defendant described as dissolution of a customary marriage falls short of the incidents of customary marriage arbitration for dissolution of customary marriage. The person (1st plaintiff) against whom an allegation has been made as testified by 1st defendant was not at the meeting. As it were, the 1st plaintiff’s father alone is alleged to havereceived drinksand nothing more. The 1st plaintiff’s father, Kwaku Addai was listed to testify and a witness statement was filed on his behalf, Unfortunately, he died during the pendency of the case. His witness statement has been admitted into evidence as hearsay evidence. In his witness statement he denied receiving any drinks from the deceased’s family and added that the marriage between 1st plaintiff and Nelson Kwaku Adjei Donkor was subsisting at thetime ofhis death. Though, the allegation levelled against the 1st plaintiff could be a ground for customary divorce, no proper customary dissolution took place. In the eyes of the law, the customarymarriage has notbeendissolved. Accordingly, the Court makes a finding that the customary marriage between the 1st plaintiffand Nelson KwakuAdjeiDonkorsubsisted tillhis death on8th November, 1998. 14 On the death of Nelson Kwaku Adjei outside Ghana the burial ceremony was held outside Ghana. The 1st defendant did not attend the burial ceremony neither did she attend the funeral held in Ghana. This transpired under cross examination of the 1st plaintiff: - Q. Youdid not attendthe final funeralrites thatwas held for thedeceased. A. Yes, I did not attend but I have an explanation he died whiles in London in the year 1998. In the year 1999 his brother Ernest Owusu Donkor informed me that my husband is deceased and the funeral is at New Efiduase. I was not feeling well at the time so my family and the 2nd plaintiff who is my daughter attended thefuneral. Q. I am suggesting to you that you refused to attend the funeral rites of the deceased because there wasno marriage betweenthe two ofyou. A. Itisnot so. Q. I am putting it to you that you did not perform any widowhood rite at the burial ofthe deceased. A. I did not do it but he died on 8th November, 1998 and was buried in London. A yearlater,his funeralriteswere performed. Q. If you were indeed the widow at the time the deceased died, you would have flowntoLondontoperform thenecessary ritesrequired as awidow. A. Itisnot so. 15 I do take judicial notice of the fact that in Ghana, there is an elaborate funeral ceremony that is held whenever a person passes and it is expected that surviving spouses perform some rites thoughtheremay be differences in theformit takes. Obviously, where a person performs the rites, it amply supports an assertion that the person is a spouse. It is also common knowledge that there are instances where the family will deny the spouse the opportunity to perform the rites for one reason or the otheror evenwhere items arepresented same arerefused. I dare to ask where a person does not perform funeral rites whether it does translate to “nosubsisting marriage”. I do not think so. The incidents of a customary divorce are distinct and subject to proof. It is the view of the Court, taken into consideration the circumstance of this case, where the defendants allege that there was adissolution ofthe marriage, they must prove with all the denials. The evidence provided does not support a dissolution of a customary marriage. It is therefore emphasized that the customary marriage between the 1st plaintiff and NelsonKwakuAdjeiDonkorsubsisted till hisdeath. WHETHER OR NOT THE LETTERS OF ADMINISTRATION OVER THE ESTATE OF NELSON KWAKU ADJEI DONKOR ALIAS ADJEI TWUM GRANTED BY THE HIGH COURT, KUMASITOTHE 1ST PLAINTIFF IS VALIDANDSUBSISTING. 16 On the death of a person intestate, his personal properties being movable or immovable isdistributed in accordance withthe provisionsofIntestateSuccession LawPNDCL 111. Onpersons entitled to agrant ofLetters of Administration to administer the estate of an intestate in order of priority is provided under Order 66 Rule 13 o the High Court (Civil Procedure) Rules CI 47 which states “Where a person dies intestate on or after 14th June 1985, the persons who have beneficial interest in the estate of the deceased shall be entitled toagrant ofLettersofAdministration in the following order priority a) any surviving spouse b) any surviving children c) any surviving parents d) thecustomarysuccessor ofthe deceased. Thus, with a finding that the 1st plaintiff is a surviving spouse due to the failure ofproof a claim of dissolution of the customary marriage as found is entitled to the grant of LettersofAdministrationas granted bythe HighCourt, Kumasi perthe Exhibit “A”. Issues have been raised about the propriety of the 1st plaintiff resorting to the Court for the grantof Letters ofAdministration after 20 yearsof the death ofNelson KwakuAdjei Donkor. The answer lies within the applicability of the Intestate Succession Law 1985, PNDC Law 111. The law applies to those who die after 14th June, 1985 and also those who died before 14th June, 1985 if, according to section 21 of the law, issues of the 17 distribution of the estate was pending before a chief, head of family, court or any adjudicating bodyon14th June, 1985when the lawtook effect. Once, there is no evidence of an earlier grant to any persons who is entitled to a grant under the law, time lapsed notwithstanding, the Court could make a grant. Therefore, thegrant ofLettersofAdministration tothe 1stplaintiffis valid and subsisting. WHETHER OR NOT THE DEFENDANTS HAD NOTICE OF THE APPLICATION BY THE 1ST PLAINTIFF FOR LETTERS OF ADMINISTRATION OVER THE ESTATEOF THE LATE NELSONKWAKUADJEI DONKOR ALIAS TWUM. It is provided by the rules for the grant of Letters of Administration to issue to give notice of grant under Order 66 Rule 10 of the High Court (Civil Procedure) Rules 2004, CI 47 for a period of not less than 21 days or such other period as the Court may order. The notice istobe posted at:- a. inthe Courtwhere theapplication forthe grantwas made. b. in any public place within the jurisdiction of the Court where it is likely that the notice willbe seen by thosewho may havean interest in the estate;and c. at the last known place of abode of the deceased in respect of whose estate the granthasbeen made. 18 In allowing any grant of Letters of Administration to issue, the Court makes enquires and when answered to its satisfaction grants the prayer. Therefore, where Letters of Administration is issued, the presumption is that there is regularity of the grant. Where the defendants allege that no notice was brought to their attention, it is for them to state theyhave aninterestinthe estate and provethat theyneverreceived notice. Indeed, to verify whether notices were posted, the proper step to take is to conduct a search at the registry of the Court, which granted the Letters of Administration to find answers. The bare assertionofno notice givenwill nothold. Undercrossexamination ofthe 1stdefendant however, she testified asfollows: - Q. When the plaintiffs applied for Letters of Administration you did not caveat. Not so. A. Idid notcaveat. Q. And no member ofyour family also caveated? A. Mybrotherwho was apolice officer but nowdeceased caveated. Q. Iput it toyouthat your brothernevercaveated? A. Mybrothercaveated. Q. Whereis thecopy ofthe caveat. A. Whenmy brother died, his documentsremained inAccra. Q. Youhave not applied foracopy ofthecaveat fromthe Court? A. Ihave not written. 19 Considering 1st defendant’s answers, she portrays that the brother a Policeman caveated when the 1st plaintiff prayed for the grant of Letters ofAdministration. Ifthat is the case, thentheclaim that theyhadno notice ofthe grantcannot be acorrect statement. WiththeLettersofAdministration giventhereis regularity withits grant. WHETHER 1ST PLAINTIFF SUPERVISED THE CONSTRUCTION OF THE DISPUTEDPROPERTY. The 1st plaintiff in her pleaded case and evidence has suggested that she played arole in the construction of the disputed property for which reason she imputes a claim of jointly acquiring the disputed property with Nelson Kwaku Adjei Donkor alias Adjei Twum. I think that this evidence amounts to approbating and reprobating. This is so because from her own pleaded case, she pleads that as an administrator she issued a vesting assent in respect of the property and vested same in the plaintiffs as beneficiaries of the deceased’s estate. This pleaded case, largely suggests that the disputed property belongstothe deceased NelsonKwakuAdjeiDonkor. Additionally, 1st plaintiff tendered Exhibit “C” to support the plaintiffs’ claim to have written to defendants for a discussion which they refused to attend. The Exhibit “C” is 20 dated 25th November, 2017 and same addressed to the 1st plaintiff, Elder Adomako and 2nd defendant. The Exhibit “C” was written under the subject “RE HOUSE NO. 2 YAA ABABAWA STREET, DUASI, KUMASI. The first three paragraphs of the Exhibit “C” isreproduced as follows: - “We are writing to you for and on behalf of our clients Gladys Asantewaa Nuako and MaudNtriwaa ofDote, near Sepe Timpomu Kumasi. Ourclients are theowners ofthe forementioned house, being thebeneficiaries in respect of the house after the death of Nelson Kwaku Adjei Donkor alias Adjei Twum. They hold Letters of Administration and vesting assent in respect of the deceased’s estate. The house has thereforebeen vestedinthem”. The vesting assent was tendered as Exhibit “B” and in it, the plaintiffs state they as administrators on 31st day of August 2017 assent to the vesting of H/No. 2 Yaa Ababaawa Street, Duasi Kumasi to Gladys Asantewaa Nuako and Maud Ntiriwa Adjei absolutely. It is noted that the 2nd plaintiff has been presented as an administrator but this is erroneous for per Exhibit “A”, the Letters of Administration granted, she is not an administrator. However, the vesting assents discloses that the disputed house was vested in the plaintiffs as beneficiaries of the estate of the deceased. The position of the law as established is that, the owner of a property who makes a declaration against his 21 interest is estopped from subsequently claiming the property as his own. In the case of WOOD SUBSTITUTED BY ASANTE KORANTENG V. TAMAKLOE AND DERBAN[2007 –2008] 2 SCGLR 852, it was held that if House No. 647/10 were in truth and in fact owned by the defendant then having knowingly and without any coercion made a declaration against her proprietary interest in the said house she could not be heard tobe saying lateronthatthe house was hers. In effect laying a claim of joint ownership is rather too late. The evidence of PW1, Kwame Sekyere on how the land was acquired in the circumstance will not change the character of the property as that of the deceased for which she had obtained Letters of Administration, prepared vesting assent and caused a letter to be written to the effect that she became a beneficiary of the property after the death of Nelson Kwaku Adjei Donkoralias AdjeiTwum. Accordingly, I find that the house in contention forms part of the estate of the deceased. The claim ofjoint ownershiprejected. A related issue is the entitlement of the plaintiffs to the disputed property. With the promulgation of the Intestate Succession Law, 1985, PNDC L 111, it provides per its section4(1)(a) (b) as follows: - “4.Spouse,child orbothentitled toone house: - 1. (a) Where the estate consists of only one house, the surviving spouse or the child or both of them as the case may be, shall be entitled to that house and 22 where it devolves to both the spouse and child, they shall hold it as tenants in common. (b) Where the estate includes more than one house, the surviving spouse or child or both of them, shall determine which of those houses shall devolve to the spouse or the child or both of them and where it devolves to both the spouse and child, theyshall hold the house astenantsin common.” By the foregoing provision, where the deceased’s estate includes only one house, the surviving spouse and thechildren areentitled tothat onehouse. In this case there is no evidence of several houses except the house in contention. The 1st plaintiff as a surviving spouse, 2nd plaintiff as a child will be entitled to this house as of right under the law. However, there is an undeniable fact that the deceased also had two other children. These children with the plaintiffs therefore, will hold the disputed propertyastenantsincommon. The issue of who placed the 2nd defendant in the disputed house is irrelevant in the determination of the issues raised in this suit. On the demise of a person, intestate it is the law on succession that prevails. All persons in occupation of the disputed property willcontinue tolivethere atthe discretion ofthe beneficiaries. 23 The capacity of the defendants to counterclaim for the reliefs have been raised. The 1st and 4th defendants are siblings of the deceased except the 1st defendant describes herself as the customary successor of the deceased as well. But when cross examining the 1st Plaintiff, it was impressed upon her that Ernest Owusu Donkor was the customary successor of the deceased. Her claim of being the deceased’s customary is doubtful. The 2nd defendant is described as a family friend and caretaker of the property and 3rd defendant is a tenant in property in dispute. The defendants do not have any vested interestinthe propertyand do nothave thecapacity tomount acounterclaim. CONCLUSION From the findings and conclusion reached that 1st plaintiff is a surviving wife of the deceased Nelson Kwaku Adjei Donkor alias Twum, the court enters judgement for the plaintiffs as follows: - i) A declaration that the estate of the late Nelson Kwaku Adjei Donkor alias Adjei Twum inclusive of House number 2, Yaa Ababawa Street Duasi near Kumasi ought to be distributed in accordance with the Intestate Succession Law 1985 PNDCL 111. ii) Declaration of title to House number 2, Yaa Ababawa, Duasi near Kumasi in exercise of their right under the Intestate Succession Law PDNCL 111 with the twootherchildren ofthedeceased NelsonKwakuAdjeiDonkor@ Twum. 24 iii) Recovery of possession of the said House number 2, Yaa Ababawa Street, Duasi nearKumasi. iv) Perpetual injunction, restraining the defendants, their agents, servants, workmen, relatives or any persons or person claiming through them from in any manner interfering and/ordealing withthe house in dispute. The court also makesthese furtherorders: - (v) An order that 1st plaintiff prepares a vesting assent, vesting the property in the plaintiffs and the two other children of the deceased. The vesting assent as per theExhibit “B”is herebyset aside. Further, to ensure a peaceful co-existence, where the two other children are disinterested in theestate, thenthe plaintiffs take the entire property. Where however, the other children are interested in the estate, the property be valued and the plaintiffs to buy out the interest of the two other children. Where within a reasonable lapse of time of three months from date of valuation, the plaintiffs are unable to buy the interest of the two other children, plaintiffs’ interest be bought by the twootherchildren. The otherreliefs sought by theplaintiffs aredismissed. The counterclaim of the defendants, in the circumstance is hereby refused as same is dismissed. CostofGH¢15,000.00against the defendants. 25 JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT LAWYERS KWAME BOAFOFOR PLAINTIFFS KWAME MENSAH ASENSO HOLDING PATRICK ASANTE NNURO’S BRIEF FOR THE DEFENDANTS 26