MENSAH VRS AGYA & ANOTHER (A1/07/2022) [2024] GHACC 120 (19 February 2024)

IN THE CIRCUIT COURT HELD AT GOASO IN THE AHAFO REGION ON MONDAY THE 19TH DAY OF FEBRUARY 2024 BEFORE HIS HONOUR CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE A1/07/2022 KWABENA MENSAH --- PLAINTIFF VRS. 1. AGYA KWABENA 2. AGNES CHRISTIANA AGYEI --- DEFENDANT JUDGMENT This action was instituted by Plaintiff on the 16th of September 2021 originally against the 1st Defendant alone by which Plaintiff sought, inter alia, half share of the cocoa farm in dispute which was cultivated by the 1st Defendant. The basis for the action was that in January 2008 Plaintiff gave a piece of land to 1st Defendant for the latter to cultivate same on Abunu basis within a period of seven (7) years, however despite cultivating a portion of the land and the lapse of the period granted 1st Defendant for cultivation, the 1st Defendant rather started granting out portions of the land to other persons to cultivate ginger and had refused to permit the sharing of the portion he had cultivated with the Plaintiff. The 1st Defendant by his Statement of Defence filed on the 8th of October 2021, admitted that it was Plaintiff who gave him the land to cultivate on Abunu basis but that subsequent to that, Plaintiff introduced one Agnes Christiana Agyei as the true owner and landlord of the land in dispute hence Plaintiff lacked capacity to institute the present action. Following 1st Defendant‘s contention, it was thus not surprising when the said Agnes Christiana Agyei applied to be joined to the suit as a party which application was granted 1 on the 17th of December 2021. It was upon her joinder that Plaintiff alleged for the first time in his amended statement of claim filed on the 10th of January 2022 that the land came into his possession by way of gift. In her Statement of Defence filed on the 20th of January 2022 Agnes Christiana Agyei, now the 2nd Defendant, disputed Plaintiff‘s claim and alleged that the land in dispute was gifted to her by her grandfather the late Paul Agyei. She alleged that the Plaintiff acting on her behalf, granted to 1st Defendant the land in dispute to cultivate same with cocoa on abunu basis. She contended that pursuant to this, Plaintiff introduced her to the 1st Defendant as the true owner of the land and landlord for which reason, Plaintiff lacked capacity to institute the action since he was not the owner of the land in question. At the end of pleadings two issues were set down which were; i. Whether or not the land in dispute is the bona fide property of Plaintiff by way of gift to him? ii. Whether or not the land in dispute is the bona fide property of 2nd Defendant by way of gift to her? It is trite that in civil cases, a party who comes to court must prove his/her case on the balance of probabilities, that is, on the preponderance of probabilities. Thus, the Supreme Court in the case of Adwubeng vrs Domfeh [1996-97] SCGLR 660 in crystallizing the standard of proof required in all civil actions held that, ―section 11 (4) and 12 of the Evidence Decree [1975] NRCD 323 which came into force on 1st October 1979) have provided that the standard of proof in all civil actions was proof by preponderance of probabilities no exceptions were made.‖ (See: Effisah vrs Ansah [2005-2006] SCGLR 943). This position of the law was further rehashed in the case of Jass Co. Ltd. & other vs. Appau & another [2009] SCGLR 265, where it was held that; 2 "The burden of proof is always put on the plaintiff to satisfy the court on a balance of probabilities in an action for declaration of title to land. Where the defendant has not counterclaimed, and the plaintiff has not been able to make a sufficient case against the defendant, then the plaintiff‘s claims would be dismissed..." Flowing from the above, it means that, if a Defendant has counterclaimed, as in this case, she is also saddled with the same burden of proof as held in the case of Aryeh & Akakpo vrs. Ayaa Iddrisu [2010] SCGLR 891 as follows: ―A party who counterclaims bears the burden of proving his counterclaim on the preponderance of probabilities and would not win on that issue only because the original claim had failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent‘s case‖. Hence both parties are expected to establish their respective alleged gifts on the balance of probabilities. Since Plaintiff adduced no documentary evidence in support of the alleged gift to him, one can rightly presume that Plaintiff‘s assertion of a gift related to a customary gift. However, the existence of a customary law gift can only be established by a party upon proof of the following incidences; i. Publicity ii. Acceptance by the Donee iii. Placing the Donee in possession. These essential requirements were brought to the fore in the case of Yoguo & Anr. V. Agyekum & Ors. [1966] GLR 482, where is Lordship Ollennu JSC took pains to explain the incidences of a valid customary gift as follows: 3 ―A valid gift, under customary law, is an unequivocal transfer of ownership by the donor to the donee, made with the widest publicity which the circumstances of the case may permit. For 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 of the family of the donee who also would succeed to the property upon the death of the donee on intestacy. The gift is acknowledged by the donee by the presentation of drink or other articles to the donor; the drink or articles are handed to one of the witnesses — preferably a member of the donee's family, who in turn delivers it to one of the witnesses attending on behalf of the donor; libation is then poured declaring the transfer and the witnesses share a portion of the drink or other articles. Another form of publicity is exclusive possession and the exercise of overt acts of ownership by the donee after the ceremony…‖ The above holding was quoted with approval in the case of Akunsah vrs. Botchway & Jei River Farm Ltd. [2011]1 SCGLR 288, where the Supreme Court observed; ―…it must be emphasized that there is a distinction between a gift from an individual owner of land to a beneficiary and a gift of stool land by an occupant of a stool, which is more appropriately described as a grant. In the case of a personal gift the owner‘s decision is not subject to approval or consent from anyone. The only condition is that it should not be done in secret. It should be witnessed by others, preferably by members of the immediate family of the donor who are not entitled to question his decision provided they have no interest in the property 4 which he intends to give away. It does not end there. The beneficiary of the gift expresses his acceptance and gratitude for the gift by payment of ―aseda‖ in any form depending on the circumstances of each case...‖ Consequently, where any one of the above essential requirements is not established, no customary law gift can be said to exist in law. In the instant suit, a perusal of Plaintiff‘s testimony in support of his contention about the alleged gift made to him, fell short of the requirements of the law. In his evidence in chief, he simply testified as follows; ―…the land in dispute was gifted to me by my grandmother, Yaa Mpontuaa… This was a rehash of his pleading as captured in paragraph 3 of his Reply filed on the 2nd of February 2022. Plaintiff personally led no evidence in proof of the following; i. When the gift took place; ii. Who were present during the gifting ceremony; iii. Whether he performed Aseda following the alleged gift made to him; and iv. Whether he was placed in possession subsequently. It was Plaintiff‘s mother who attempted to repair the lacunae in the testimony of Plaintiff. According to Maame Afia Bio (Pw1), the land in dispute was gifted to Plaintiff by her mother called Yaa Ampontua. She alleged that following the said gift, Plaintiff performed Aseda in the presence of witnesses. She further indicated that the persons who witnessed the ceremony were Kwame Boakye, Kofi Kyere, Afia Bour and Kwabena Nsoah who were all her siblings. 5 A critical assessment of Pw1‘s testimony however makes her evidence fall short of the required evidential proof necessary to discharge the burden on Plaintiff. Firstly, the nature of this Aseda allegedly presented by Plaintiff is not known. Pw1 fell short in stating the manner of the Aseda performed by Plaintiff after the alleged gift. Simply stating that Aseda was performed is insufficient as it is expected that evidence of the nature and character of the Aseda would be provided. Aseda may take the form of the presentation of alcoholic drinks (usually schnapps) or the payment of a small monetary token to the donor. In the case of Mr. Peter Osei Afriyie V. Pastor Osei Agyemang and Janet Osei Agyemang the Court observed that, ―the incidents of a customary gift include the acceptance of the gift and acknowledgment of the same by the timely presentation of the customary ―aseda‖. The Aseda is usually a customary drink or a sheep‖. However, other forms of Aseda are recognized by the Courts such as the payment of the debt of the Donor. (See: Anaman v. Eyeduwa [1978] 1GLR 114). The Courts have thus been flexible in recognizing other non-conventional acts as sufficient towards the fulfillment of the Aseda requirement. In fact, in the case of Opanyin Kwabena Agyei & Ors V. Opanin Kwadwo Wiredu & Anor (2006) JELR 92094 (SC) the Supreme Court indicate that; ―We fully accept the validity of the alternatives or substitutes for Aseda in the requirements of a valid customary law gift‖ This goes a long way to suggest that a person seeking to establish the existence of a customary gift must go beyond simply stating that he/she performed Aseda but must proof the nature and character of the Aseda he/she allegedly performed. In this case, the testimony of Plaintiff and his witness fell short in that regard. Secondly, Pw1 clearly was not part of those who allegedly witnessed the alleged gift as she never stated that she witnessed the gift ceremony personally. She rather named 6 certain persons as the witnesses to the alleged gift. These witnesses were however not called by Plaintiff to corroborate his assertions despite the fact that they were material witnesses. The effect of a failure to call material witnesses was succinctly captured in the case of Yeboah Richard vrs. Opanin Yaw Manu and Opanin Kofi Boadi of Jankufa (2017) JELR 63707 (CA) as follows; ―The Supreme Court in the case of GLIGAH & ATISO v. THE REPUBLIC [2010] SCGLR 870 held that it is the quality of the witnesses called and whether they have succeeded in proving the ingredients required in a particular case to the required standard that is important and not the quantity of the witnesses. What this decision teaches us is that a party to a suit needs to call material witnesses in a matter in order to establish his/her claim. A material witness, therefore, is an indispensable witness without which a party‘s claim fails. In other words, a material witness is someone who has adequate or sufficient information on the matter which would cause the court to tilt to one side.‖ Consequently, this Court holds that due to Plaintiff‘s failure to adequately prove the performance of Aseda coupled with his failure to call material witnesses who were necessary to corroborate his assertion, Plaintiff had failed to establish any customary gift made to him by his grandmother Yaa Ampontuaa. In any case, under cross examination, Pw1 admitted that the land in dispute, was gifted to Yaa Ampontua‘s descendants and children of 2nd Defendant‘s father. This is what transpired; Q. I suggest to you that the land was subsequently divided into three portions. The first portion belonged to Kwadwo Paul while the remaining two lands belonged to Yaa Ampontua? 7 A. It is true that the land was divided into three portions. One portion was given to the children of Kwadwo Paul while the remaining two portions were given to my mother Yaa Ampontua. This admission confirmed 2nd Defendant‘s position and totally scuttled Plaintiff‘s case in the sense that the land in contrary to Plaintiff‘s contention, the land in dispute was not gifted to him by his grandmother but rather gifted by Paul Agyei to the descendants of Yaa Ampontua and Paul (the late Paul Agyei‘s son). In fact, if there was any gift of any land to Plaintiff by his grandmother Yaa Ampontua as he alleged, that alleged gift did not concern the land in dispute. It is therefore the holding of this Court that Plaintiff‘s claim that the land in dispute was gifted to him by Yaa Ampontua was unsubstantiated. 2nd Defendant on her part alleged that the land in dispute was gifted to her and her sister, one Comfort Agyei, by their grandfather Paul Agyei after which they performed Aseda to seal the gift. She called one Nana Gyamfi Kumanini (Dw1) to testify in support of her case. According to Dw1, about 30 years ago, the late Paul Agyei invited him and other community elders to a meeting at which meeting Paul Agyei indicated that he was gifting the land in dispute the descendants of Yaa Ampontua and the children of his late son also called Paul. Dw1 alleged that according to Paul Agyei the land in dispute was to be demarcated into three portions with two-thirds going to the descendants of Yaa Ampontua while the remaining one-third part of the land was be given to the children of his late son also called Paul. According to Dw1 he and certain elders went onto the land in dispute to demarcate same but could not do so due to interference by Plaintiff as well as time constraints. He alleged that nevertheless Paul Agyei sealed the gift he had made by presenting customary drinks to the gathering. It was under cross examination of Dw1 that he revealed that when this gift was made by Paul Agyei both Yaa Ampontua and Paul (Paul Agyei‘s son) were deceased and that was why the gift was made to the descendants and children of the Yaa Ampontua and Paul respectively. He further indicated that the 8 descendants of Yaa Ampontua included Plaintiff while the children of Paul (Paul Agyei‘s son) included the 2nd Defendant. He insisted that till date the land in dispute could not be demarcated and shared according to the dictates of Paul Agyei. Plaintiff duly cross examined Dw1 but his cross examination fell short of challenging and/or denying various essential evidence led by the witness. Some of these relevant pieces of testimony included; i. That Dw1 was part of a meeting called by Paul Agyei at which meeting the latter gifted the land in dispute to the descendants of Yaa Ampontua and the children of Paul (Paul Agyei‘s son). ii. That Paul Agyei presented drinks at the gathering to seal the gift he had made. iii. That the land in dispute was to be shared into three portions with two-thirds going to the descendants of Yaa Ampontua while onethird going to the descendants of Paul (Paul Agyei‘s son). iv. That at the time of the gift both Yaa Ampontua and Paul (Paul Agyei‘s son) were deceased. v. The land in dispute has however not been demarcated and shared till date. Having assessed the testimony of Dw1, I found no reason to doubt his averments. He appeared to be very credible and spoke to facts which he personally witnessed. Furthermore, the earlier admission by Pw1 with regards to the gift made by Paul Agyei further confirmed and corroborated not only the testimony of 2nd Defendant but that of Dw1 as well. This is a case where the testimony of a party‘s witness corroborated that of his opponent and in that situation the Courts have long held the view that, the corroborated version ought to be relied upon by the Court. The case of Tsirifo v. Dua VIII [1959] GLR 63 is instructive in that regard. In that case, the Court observed; 9 ―Where the evidence of one party on an issue in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a Court ought not to accept the uncorroborated version in preference to the corroborated one, unless for some good reason (which must appear on the face of the judgment) the Court finds the corroborated version incredible or impossible‖. [See also: Asante v. Bogyabi [1966] GLR 232, Nana Fredua Agyemang Vrs. Nii Akotey Iv & 2 Others (2013) JELR 67165 (HC)]. In any case, as noted earlier, Plaintiff failed to deny or challenge these salient facts under cross examination. His failure to do so amounts to an admission of the truth of those assertions. In the case of Isaac K Kobi & 24 Ors Vrs. Ghana Manganese Company Ltd. (2004) JELR 67944 (CA) the Court of Appeal observed that; ―The law is quite succinct that where a party leads evidence and his opponent fails to take him on, shake or puncture the claims or allegations of fact he has made, then there is a presumption in law that the opponent who has failed to cross examine on the fact, has conceded that the correctness of the fact alleged‖. Consequently, this Court finds as established 2nd Defendant‘s contention that the a one- third proportion of the land in dispute was gifted to her and her sister Comfort Agyei who are the children of Paul (Paul Agyei‘s son). The evidence led by 2nd Defendant further established that the late Paul Agyei during his life time gifted a two-third proportion of the land in dispute to the descendants of Yaa Ampontua who was by then deceased. By the above finding, one observes that the gift referred to by 2nd 10 Defendant was not a customary gift in the strict sense. Had it been so, 2nd Defendant would have failed to establish the alleged gift made to her and her sister Comfort Agyei by virtue of she being a child of Paul (Paul Agyei‘s son). This is because, she did not personally perform Aseda when the gift was made. According to Dw1, the Aseda was performed by Paul Agyei himself and not the beneficiaries. So, what kind of gift took place about 30 years ago as indicated by Dw1? It is the considered view of this Court that the gift which took place about 30 years ago as narrated by Dw1 was nothing else but a nuncupative will, popularly known in Akan as Samansiw. In the case of Abudu Atuahene vrs. Kwabena Amofa [Court of Appeal, 4th Agust 1969, unreported, digested in (1969) C.C 154], Akuffo-Addo, C.J (as he then was) explained as follows; ―Samansiw, as the name implies (it is an Akan expression which literally means ‗a ghost behest‘) is a disposition of property which takes effect after death and it is the customary law mode of testamentary disposition…In its origin it is akin to donation mortis causa in English Law. Like all customary transactions, samansiw is a verbal disposition and required publication for the purpose of perpetuating the testimony thereof‖ The law regarding the validity of a nuncupative will has gone through a number of reforms. (See: Summey vrs. Yohuno [1960] GLR 68, Mahama Hausa vrs. Baaku Hausa [1972]2 GLR 469, In re Armah Dec‘d; Awotwi vrs. Abadoo [1977] 2 GLR 375 CA, Prempeh vrs. Agyepong [1993-94]1 GLR 255). In the case of Buckman & Ors. vrs. Ankomayi & Anor. [2013-2014] 2 SCGLR 1372 at 1383 the Supreme Court observed; ―…the pristine formulations of Sarbah, Rattary and Ollennu have had to yield to three simple rules, namely self-acquired ownership in the testator, his sanity at the time of 11 the declaration and attestation by credible, disinterested witnesses, two at least in normal circumstances, but one permissible in extreme exigencies. After the modification of the principles referred to above, these 3 essentials emerged; 1. The property must be self acquired 2. The testator must be sound in mind 3. The declaration must be attested to by 2 credible disinterested witnesses‖ Confirming the above holding, the Supreme Court again in Solomon Tackie & Anor. Vrs. John Nettey & Anor. (Civil Appeal No. J4/44/2019 – 24TH March 2021) [unreported] observed that; ―we have also considered the pioneering works of Ollenny, Kwabena Bentsi- Enchill, A.K. P Kludze, Gordon Woodman and W.C Ekow Daniels and agree that the three essential criteria set out supra [Buckman case] should be the guiding essentials or characteristics to determine the validity of a customary law will, samansiw‖ (Emphasis mine). Consequently, presently for a nuncupative will to be considered valid the following essential incidences but be present; a. The property in question must be the self-acquired property of the Donor. b. The testator must be of sound mind. c. The must be disinterested credible witnesses. In this case, none of the parties disputed the fact that the land in dispute was the self- acquired property of Paul Agyei. In fact at a point in time Plaintiff in cross examining Dw1 alluded to that fact when he alleged that it was the late Paul Agyei himself that demarcated the land in dispute an assertion that Dw1 denied. Furthermore, Pw1‘s 12 admission that the land in dispute was gifted to the descendants of Yaa Ampontua and Paul clearly confirms that the land in dispute belonged to Paul Agyei upon which authority he could make the said gifts. Again, Dw1 indicated that it was Paul Agyei who invited him and other elders of the community for the meeting at which meeting the said gift was done. This establishes the presence of credible witnesses during the ceremony which included Dw1 and for Paul Agyei to convene such a meeting which involved respectable persons in the community he must have been of sound mind. Under cross examination, Dw1 further indicated that not only were elders of the community present but members of Paul Agyei‘s family were also present when the said gift was made. In his evidence in chief, Dw1 testified to the effect that Paul Agyei after his pronouncements regarding the distribution of his land, presented drinks to the gathering. This was described as Aseda. It is instructive to note that this Aseda was not performed by any of the beneficiaries but Paul Agyei himself. As noted earlier, a customary gift in its strict sense requires the performance of Aseda by the Donee, but in this case, the presentation of drinks was made by the Donor, Paul Agyei. It must however be noted that the presentation of drinks in the form of Aseda is not an essential requirement to the validity of a nuncupative will it merely seeks to confirm the presence of the witnesses. All these features which were testified to by Dw1 which were established in the course of trial bore the hallmarks of a nuncupative will or samansiw rather than a customary law gift. Furthermore, as noted earlier, this form of gift usually takes effect upon the death of the Donor and from the testimony of Dw1 some of the beneficiaries were asked to take possession of the land gifted to them only after the death of Paul Agyei. This was confirmed during the cross examination of Dw1 upon enquiry by the Court as follows; Q. Were Yaa Ampontua and the said son Paul, present during this gift? 13 A. No. They were deceased. Q. If they were deceased, who were to benefit from the said gifting? A. It was to benefit the descendants of Yaa Ampontua and the children of Paul. Q. Were the descendants of Yaa Ampontua and the children of Paul present during this gifting? A. Some of the descendants of Yaa Ampontuah were present however the children of Paul were not present. So during the period of accounts we informed the children of Paul about the gift made to them. Q. Whose period of account are you referring to? A. I am referring to the account that took place during the funeral of Nana Paul Agyei…” Again, even though not an essential requirement, it appears the late Paul Agyei made the samansiw in contemplation of his death since Dw1 further indicated during his cross examination that the ceremony took place about three to four months prior to the death of Paul Agyei. It can therefore be rightly presumed that Paul Agyei knowing very well that his time to transcend into the land of his ancestors was due, decided to put his house in order by distributing his land while alive to those he deemed worthy. It is for the above established facts that this Court concludes that the events which transpired at a meeting about 30 years ago was the making of a nuncupative will by Paul Agyei. From the above answers given by Dw1, one notes a particular question posed by the Court which elicited an interesting answer. Dw1 was asked; 14 Q. Were Yaa Ampontua and the said son, Paul, present during this gift? A. No. They were deceased. The above answer was to the effect that at the time Paul Agyei made the gift to the descendants of Yaa Ampontua and the children of his son Paul, both Yaa Ampontua and Paul were already deceased. This fact was not disputed neither challenged by Plaintiff in the course of trial. He is therefore deemed to have admitted the truth of same. (See: Adams). If that is the case, then there was no way the said Yaa Ampontua could have gifted any land to Plaintiff as he alleged. It is thus no wonder that Plaintiff could not establish any such gift made to him by Yaa Ampontua since no such gift ever took place in the first place. Plaintiff‘s assertion of the alleged gift was a blatant falsehood. By his nuncupative will, Paul Agyei gifted the land in dispute to the descendants of Yaa Ampontua and the children of Paul (Paul Agyei‘s son) which was to be shared as follows; two-thirds to the descendants of Yaa Ampontua and one-third to the children of Paul Agyei. Unfortunately, however the evidence on record indicates that this land was never demarcated and shared in accordance with the dictates of Paul Agyei. Armed with this knowledge and possibly given the advanced age of 2nd Defendant, Plaintiff, a grandchild of Yaa Ampontuaa, purported to deal with the land in dispute to the exclusion of the children of Paul (Paul Agyei‘s son) despite the fact that the children of Paul (Paul Agyei‘s son) were also entitled to a one-third portion or interest in the land in dispute. From the evidence on record, the land in dispute was granted to 1st Defendant by Plaintiff to cultivate same with cocoa on Abunu basis as evidenced by Exhibit E. 2nd Defendant insisted that when the said grant was made to 1st Defendant by Plaintiff, Plaintiff introduced the 1st Defendant to her and acknowledged her as the true owner of the land. Plaintiff denied vehemently ever making such introduction or admitting that 2nd Defendant was the true owner of the land it was therefore incumbent upon 2nd Defendant 15 to prove her assertion on the balance of probabilities. Unfortunately for 2nd Defendant, she could not discharge that burden as she neither called witnesses to corroborate her assertion nor get 1st Defendant to testify in the suit. The effect of this finding is that, Plaintiff unilaterally entered into an Abunu tenancy with 1st Defendant to the exclusion of 2nd Defendant. Plaintiff perpetuated that act under the premise that the land in dispute was gifted to him by his grandmother a fact he very well knew to be false. The conduct of Plaintiff is not only unconscionable but fraudulent as well. Since the Abunu tenancy was procured by fraud same cannot be allowed to stand. Accordingly, the Abunu tenancy entered into between Plaintiff and 1st Defendant to the exclusion of 2nd Defendant in respect of the land in dispute which is evidenced by Exhibit E is hereby set aside as fraudulent. Nevertheless, given the fact that the land in dispute has been cultivated by 1st Defendant with cocoa and taking into consideration the fact that 2nd Defendant is not materially opposed to the cultivation of the land by 1st Defendant on Abunu terms, this Court deems it just and expedient to redistribute the respective shares of the parties taking into consideration the proportionate interest established in this judgment. Accordingly, it is only proper for 1st Defendant to maintain half share in the land cultivated by him with the remaining half shared between the descendants of Yaa Ampontua and the children of Paul (Paul Agyei‘s son) in the proportion of 2 is to 1, that is two-third share to the descendants of Yaa Ampontua and one-third share to the children of Paul (Paul Agyei‘s son). It is of interest to note that Plaintiff is not the only surviving descendant of Yaa Ampontua. In fact, Maam Afia Bio (Pw1) is a direct descendant of Yaa Ampontua as she was a daughter. In her evidence in chief Pw1 further named the following persons as her siblings; Kwame Boakye, Kofi Kyere, Afia Bour and Kwabena Nsoah. It is not known 16 whether these siblings of Pw1 are still alive however, the fact is that Plaintiff is not the only or sole descendant of Yaa Ampontua. Nonetheless, Plaintiff instituted the action in his own name without offering any evidence to suggest that he had sued in a representative capacity. Being a descendant of Yaa Ampontua Plaintiff was certainly a beneficiary to the estate of Yaa Ampontua, however his interest compared to that of Pw1 was remote since he was a grandchild. Plaintiff therefore ought to have sued in a representative capacity and not in the manner as he did. This made his writ defective. On the whole Plaintiff‘s action is dismissed for failing to establish the existence of any gift made to him by his grandmother with regards to the land in dispute as well as his defective capacity. 2nd Defendant on the other hand succeeds as her evidence duly establishes a nuncupative will made by Paul Agyei in her favour as well as that of her sister Comfort Agyei. Given the fraudulent manner by which Plaintiff sought to claim the entire land to the exclusion of Plaintiff and her sister Comfort Agyei and considering the length of time that has passed since this matter commenced and the volume of processes filed by 2nd Defendant in the course of trial, this Court deems it just to impose, punitive cost on the Plaintiff aimed at registering the Court‘s displeasure for his unwholesome act. Judgment is therefore entered in favour of Plaintiff in part as follows; i. It is declared that 2nd Defendant and her sister Comfort Agyei being the children of Paul (Paul Agyei‘s son) are entitled to onethird portion of the land in dispute while the descendants of Yaa Ampontua are entitled to two-third portion of the land in dispute. ii. It is further ordered that the land cultivated by 1st Defendant and described as land situate at Goagya on Mim stool land which is bounded by the properties of Kwaku Appiah a.k.a Osofo, Kwabena Frimpong a.k.a Paul and a Stream, shall be shared on Abunu basis with 1st Defendant receiving half share and the remaining half shared between the descendants of Yaa Ampontua on the one hand and the children 17 of Paul (Paul Agyei‘s son) namely 2nd Defendant and her sister Comfort Agyei on the other hand. The descendants of Yaa Ampontua shall be entitled to two-thirds while the 2nd Defendant and her sister Comfort Agyei shall be entitled to one-third. iii. Cost of GH₵12,000.00 is awarded against Plaintiff. SGD H/H CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE – GOASO 18