Osei-Bonsu and Another v Ansaa and Others (A5/01/24) [2024] GHADC 783 (20 September 2024)

INTHE DISTRICT COURT HELDATOSINO ON FRIDAY THE20TH SEPTEMBER 2024BEFOREHIS WORSHIP AYAGIBA SALIFUBUGRI, DISTRICT MAGISTRATE SUITNO.: A5/01/24 1. DR. KWABENA OSEI-BONSU 2. YAWADU-GYAMFI ………… PLAINTIFFS 3. KWASI ATTAHKONADU ALLOF AKYEM DWENASE VS 1. YAAANSAA 2. AMAANKA 3. KYEIWA …...…. DEFENDANTS 4. AKOR 5. KWAMEKYEI 6. KONADU ALLOF AKYEM DWENASE JUDGEMENT Reliefs Sought: 1. Cashthe sum ofGHC20,000 being the cost ofdefamationofcharacteragainst plaintiff by1stdefendant, YaaAnsaa 2. Anorder(s)for perpetualinjunctionagainst the defendants their agents, assigns, workmenetcfromhaving anything doing withthe plaintiff’s quiet enjoymentof theAsene family house in dispute 3. Orderto eject the5th and 6th defendants fromthe disputed house/land. 4. Costs 1 Brief Facts: Plaintiff isthe family head ofthe Asene family ofAkyemDwenase.1stto4th defendants arebiological childrenofOpanyin YawGyasi Opare, aformerprisons officer and plaintiff’s uncle (Deceased). According tothe plaintiff, OpanyinYawGyasi Opare(his uncle) had two wivesnamely; Maame Dede and Maame Afia Kyerewaa.Opanyin Yaw GyasiOpare was asonof achief ofDwenase and also acted as achief of Dwenase to wit, Sanaahene.OpanyinYawGyasi Oparewas verysick andgaveapower ofattorneyto his wife Maame Dede and her childrento receive his monthlypension salaryonhis behalf. YawGyasiafterrealizing thathis lawfulattorneywas not faithfulas expected, revokedthe powerofattorneyand made his 2nd wife Maame Afia Kyerewaa and her childrenhis lawfulattorneys.After YawGyasiOpare’s deathin 2022afuneral committeewas set up bythe chief ofDwenase to seeto theburial ofthedeceased. During the planning ofthe funeralofhis uncle, thedeceased’s2ndwife and herchildren offeredsome ofthe pensionmoney to beused in theperformance ofhis funeralwhich the1stwife and herchildren werenot happy about. Plaintiff adds thatbecause the deceased was afamily head oftheAsene clanof Dwenase he had the opportunityto use Asene clan house as hisproperty. Plaintiff furtheraversthat beforethe deathofOpanyinYaw GyasiOpare,therewere four tenantsin the house who duly paid their respective rentto thedeceased. However, the deceased children arenowtaking rent without theconsent and consulting ofthe Plaintiff asthe newHead offamily, and have notaccounted forallthe rentthey have obtained since the deathoftheir father. Plaintiff sayshe confronted the childrenofthe 1stwife ofthe deceased fortheir conduct and Yaa Ansaa (1stdefendant) without any provocationused defamatory wordsagainst 2 plaintiff thatplaintiff is aslaveand notamember ofthe family. The childrenofYaw GyasiOparehave takenthe Asene family house astheir bonafide property. ISSUESFOR DETERMINATION Whetheror not1stdefendantused wordsagainstthe plaintiffwhich aredefamatory under customarylaw Whetheror nottheproperty under litigation isfamily property orwasgifted to Opanyin YawGyasiOpare The instant case involvesparties who are closelyrelated.Inordertomaintain the unity ofthe family, anattemptfor amicable settlementwas attempted twice but bothattempts wereunsuccessful. Plaintiffs were no longerinterestedinany further attemptsat settlement,and attheir instance, the courthad nooption thantocommence hearing and determine the suit onmerit ofthe evidencesadduced. The purpose for thedevelopmentofthe tortofdefamationis forthe protectionofthe reputationofindividuals fromunjustified attacksbymembers ofthe society. Defamationcan be described asanything that isdone to lowerthe integrity, status, pride, perception, ofanotherpersonin the estimationofareasonable man. Customarylaw is animportantsource ofthe lawondefamationin theGhanaian context. Section54ofthecourtsact as amended statesthat in adispute betweentwo personsinGhana, the choice oflawshall be their personallaws, which is the systemof customarylaw thatthe personissubject. Defamationunder customarylawprotectsbothreputationand injured feeling. Slander under customary lawisactionable withoutproofofactual damage provided the slanderousstatement isfalse. Truththoughasolid defense incommon lawis not 3 alwaysadefense incustomarylaw. Also, mere insults and vituperations areactionable under customary law. InWankyiwaa v Wereduwaa [1963]GLR; the defendant inthe course ofaquarrelwith plaintiff insulted her thather vagina stinks. The court Held, allowing anappeal that: Even though the words spoken constituted mere vituperation which is not redressible at common law, at customary law, such insult per se was a civil wrong and for which damagesmay be awarded. In the case of Nkrumah v Manu [1971] GLR, the plaintiff was the one who provoked the defendant into an altercation. When defendant insulted her back, she took an action fordefamation. The learnedtrial judgeheld that; "The evidence shows that the plaintiff provoked the slander by the use of slanderous words ofand towards the defendant, and now that she has got the worst of the not very elegant language used she is virtuously indignant and comes to Court to ask £25. I think that if defendants pay 1s. to plaintiff, justice will be done and each party must pay itsowncostshere and, in theCourt,below." “When two persons are engaged in insulting each other freely, surely the law cannot be serious if it undertakes the invidious task of weighing and deciding on the quantum of the insults on each side and penalizing the side that tipped the scale by the preponderance of its vituperation. The common law did not allow it and it is amazing that the yardstick of "natural justice, equity and good conscience" provided by the 4 legislature as a measure of the limits of acceptable customary law was not boldly utilized by the earlyinterpretersofourlaw toput anend to this anachronism”. In the instant case, even though the plaintiff alleged that he was insulted by D1 by the use of certain words to wit “you are a slave and we don’t know you as a member of the family”, enough evidence has not been adduced to substantiate or prove the allegation. As stated above the onus is on the plaintiff to wit D1 to lead evidence to prove that he was indeed insulted and the words used by D1 has injured his pride and lowered his statusinthe communityand amongpeople orreasonable men. The evidence adduced in the instant case in respect of defamation is scanty and not corroborated by a witness or P2. The closest evidence to the defamatory words allegedly said by D1 is by D4 and her witnesses to wit, “we don’t know you as a member of our family”. However, it is not preceded or followed by the words preceding thatstatement towit, “youare aslave”. However, to the extent that the reliefs sought by the plaintiffs were read in open court to the hearing of D1 against whom the specific relief is sought for making the said defamatory statement, it was incumbent on D1 to either admit or deny the allegation by way ofcrossexamination orfiling astatementofdefense in thatrespect. Itistrite law thathe who alleges must prove theallegation. Intheinstant case the onus liesonplaintiff toprove thathe has beendefamed by D1 by herutterances. There isno evidence the parties were engaged inany altercationprior toorduring whichduring whichorprior tothe defamatorystatementwas made. Accordingly, tothe extentthat D1 provided no defense ordenial, it is an admittance ofliabilitythat she spoke the defamatorywords alleged. Section 14ofAct 323 5 Exceptas otherwise provided by law, unless anduntilit is shifted apartyhas the burdenofpersuasion astoeach fact, the existence or non-existence ofwhich is essential tothe claim ordefence he is asserting. In Faibiv State HotelsCorporation [1968] GLR471 Itwas Held: (1) onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no furtherevidence was led. In the case ofBank ofWest Africa Limited vAckun [1963]1GLR 176,itwas held: (2) The onusofproofin civilcases depends uponthe pleadings. The party who in his pleadingsraises anissue essentialtothe success ofhis case assumes the burdenofproof. In Majolagbe vLarbi&Others [1959] GLR192,it was held: 4) that where corroborative evidence must exist, the Court expects a party who makes an averment (which the other side denies) to call such corroborative evidence in support ofhis own. “Proof in law is the establishment of facts by proper legal means. 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, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He 6 proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he aversis true.” The standard of proof in all civil cases, including landcases is by preponderance ofprobabilities. Barimah Gyamfiv AmaBadu [1963]vol2 GLR596 It was held; where the plaintiff’s case is as doubtful as the defendant’s case, the position ofthe law is that “he who assertsmust lose”. (1) in a claim made by a plaintiff, there is no onus on the defendant to disprove the claim so that however unsatisfactory or conflicting the defendant's evidence may be, it cannot avail the plaintiff. The evidence of the defence only becomes important if it can upset the balance of probabilities which the plaintiff’s evidence might have created in the plaintiff's favor or if it tends to corroborate the plaintiff's evidence or tends to show thatevidence led onbehalf oftheplaintiff was true. (5) In acase where the only witnesses who can give oralevidence in support of a party's case are his opponents, the court should not regard his failure to call such persons as failing to adduce available evidence to prove his case, but the court should rather look at other available and material evidence on the record, and if those are sufficient to establish theaverment, uphold it. In Ayiwah &another v Badu[1963] GLR, it washeld that; 7 3) There is no rule of law providing that in no instance and under no circumstances whatsoever can the court accept the evidence of a single witness merely because his testimony iscontradicted by the evidence ofanotherwitness. Onthesecond issue fordetermination, plaintiff claims that thepropertyunder litigation isafamily property, whereasthe defendantscontend that it wasgifted totheir late father(Opanin YawGyasiOpare)by their maternalgrandfather (Opanin Abankwa). According tothedefendants, the reasonthe said maternalgrandfatherbequeathed the propertyunder litigation totheir deceased fatherwas because ofhis gooddeeds, and service rendered to the said OpaninAbankwa. Plaintiffscalled PW1to testify ontheir behalf, howeverhis testimony was in relationto anunsuccessfulattemptat amicable settlement thatthe instant courthad granted a mediatorwho made the said application inopencourt. PW1’s testimony had no bearing onthe determinationofthe instant suit. Ontheotherhand, PW2 is the second and youngerwife ofthe deceased Opanin Yaw GyasiOpare.According toPW2, she tookcare ofthe deceased when he was frail andin his deathbed. The witness said she asked OpaninYawGyasi Opare;“Who willown yourfamily house whenhe is deceased”,and he replied that;“it willbelong toEmma”. According tothewitness, the said Emma is oneofthe deceased’smother’ssiblings. The witness added thatshe again asked herhusband; ….who will be his next-of- king when he is deceased, and, he replied “OseiBonsu….OseiBonsu is the Doctorat Koforidua”, (i.e. Plaintiff-P1) PW2 says she did notknowP1at the time. Itisevident fromPW2’stestimony that she referred tothe propertyunder litigationas family house. Ordinarily, awife is in aposition toknowwhether ornot herhusband’s property, and inthis case the propertyunder litigationisthe self-acquired propertyof 8 OpaninYawGyasiOpare (herhusband), agifted propertytothe said husband or family property. Intheinstant case, tothe extentthatthe rivals ofthedeceased areonopposite sidesby inference fromthenature ofthe suit, the has noreasontodoubt the testimony ofPW2. Especially so,when PW2’s rival(defendants’ mother)was notcalled totestify byher ownchildren. D4 challenged PW2’stestimony to the extentthat the deceased had also told them (defendants and childrenofhis first wife) thatthe propertyunder litigationis not family property. Q.Are youaware ourfather toldus the house is notafamily house? A.I am notaware Q.I put it toyouthatourfather told us, the house isagift tohim by his grandfather and not family property. A.That is not true, what he told me is what Ihave toldthe court D4 furtherreiterated thatit is because thesaid propertyis agift toherfather thathe wasable tobuild anadditional structureattached toit. PW2 refutedthat suggestionand insistedthat what she knowsis what she hastold the court. According toPW3,she was married toKwasiFenim (aka KwasiAsirifi)and theyhad seven(7) children but lost one. Shementioned KwasiFenim’ssiblings as; Kwasi Bamfo, Afia Anka, Ohenewaa and KwasiAddo. 9 One Opanin Abankwa was KwasiFenim’s uncle whose childrenwere; Kwaa Pobi, Atta Panin, Obuom,and Akosua Asiama. The witness averredthat, oneYawOparei.e. plaintiff’s uncle and also the defendant’sbiological father, demolished partofthe old structureofthe house they wereliving inand put upanotherstructureonthe same piece ofland. She adds that,since the oldstructure belonged toOpanin YawGyasi Opare’sgrandfather(Nana orPapa Abankwa), therewas nothing she could say ordo aboutit since she wasonly married to the family. Eventhoughshe wasno longer married toher husband at the time thenew structurewas built by thesaid OpaninYaw GyasiOpare,she witnessed itsconstruction. The witness admitted during cross- examination that,YawOpare(deceased) plaintiff’suncle and D1-D4’s fatherwas Kwasi Fenim’snephew. Q.What is Afia Ankato Papa Abankwa? A.Papa Abankwa’s sistergavebirthto Afia Ankaand her siblings The witness denied that KwasiFenim lived in thehouse afterthe deathofhis uncle PapaAbankwa. She furtherdenied thatKwasi Fenim movedout ofthehouse under litigationintohis self-acquired propertybecause it did notbelongto him. The witness howeveradmitsthat KwasiAddo lived inthe house untilhe moved toOsino due to some disturbances. The witness denied thatshe is not aware thatthe house was gifted toOpaninYawGyasi Opare. However, thewitness admitsthatthe house belonged to theAsene family at the time she was married into thehouse. The Asene family is same asthe plaintiff’s lineage. The witness averredthat she had no idea that the said propertyin dispute was gifted to YawOpareby his grandfatherOpanin Abankwa. To the extentthat the witness testified thatshe wasno longermarried to KwasiFenim at the time YawOpare built the new 10 structureonthe land, it is understood bythe court thatshe was no longeramember of thefamily by marriage, hence could nottestify tothe gift. There is no doubt atthis stage that Afia Anka(Yaw Opare’smother)is asibling of KwasiFenim (Kwasi Asirifi), KwasiBamfo, Kwasi Addoand Ohenewaa. Accordingy, YawOpareis anephew ofthe aforementioned. Ontheotherhand, in the absence ofevidence tothe contrarythatit was Opanin Abankwa’ssister who gavebirthtoAfia Anka, it is established as amatteroffact that OpaninAbankwa was Afia Anka aswell asthe aforementioned’suncle. Customarily, YawOparereferedtoOpanin Abankwa as his grandfatherbecause Afia Anka’s mother(Opanin Abankwa’s sister)ishis maternalgrandmother. Itisevident fromthewitness’stestimony thatat thetime she was married toKwesi Fenim theylived inthe propertyunder litigation. Additionally, she witnessed the demolitionofthe old structureby YawGyasi Opare but hadmoved outofthe property and out ofthemarriage withKwasi Fenim at thetime YawOparebuilt the new structurein place ofthe old one. The court hasnoted thatD4 made reference tothe additional structurethat PW3 testified toasconfirmationthat the propertyunder litigationwas gifted toher father, otherwise he could nothave done so. Itistrite law thatanybody who builds onfamily land onlyenjoysthe interesthe has in thefamily land in his life-time. The said family member cannot bequeath thatproperty tohis childrenordispose ofit without the consent ofthe family. The propertytakesthe characterofafamily property whenthe family member is deceased. In otherwords, the landreverts tothefamily. Since the property orbuildingcannot be lifted orseparated 11 fromthe land, it goeswiththe land by extension. What is notclear in thewitness’s testimony iswhether YawGyasi Opare demolished and built the newstructure at the time his grandfatherwas stillalive. Inanycase, granted OpaninAbankwa wasalive when the oldstructure was demolished and anewone built toreplace it,the fact ofthe gift ofthe said propertyto YawGyasiOpare must be established as matteroffact. Per thewitness’stestimony, YawGyasiOpare wasOpanin Abankwa’s grandson/child. It is trite thatthe systemof inheritance among theAkansocietyis matrilineal. By this systemofinheritance, it is possible forKwesiAddo, KwasiBamfo and Kwasi Fenim toinherit or succeed Opanin Abankwa because theyare his sisters’ childrenand nephews forthat matter.Hence, the evidence adduced by P1thatthe twoaforementioned were atsome point intime Head offamily responsible forthe propertyunderlitigationis credible. AsHeads ofFamily perAkanCustomand having inherited Opanin Abankwa, it was their duty tomaintain and administer the inherited propertywhichis theproperty under litigation asfamily property and nottheir individualself acquired property. To this extent, YawOparebeing the sonofAfia Anka, aniece ofOpaninAbankwa was a grandchild oftheOpanin Abankwa per theevidences adduced and perAkancustomit notpossible forYaw Opare toinherit orsucceed thesaid Opanin Abankwa unless by a giftas D4 wants thecourt tobelieve. D4 opened defense onbehalf ofher siblingstowit D1-D3 and D5 andD6 who are tenantsaccording toplaintiffs’ evidence. Sheaverred that,the originalowner ofthe propertyunder litigation is OpaninAbankwa, hergrand-motherAfia Anka’suncle. According toD4, OpaninAbankwa gifted the house under litigationto herfather 12 OpaninYawGyasiOpare (his nephew) forthe goodservice he rendered tohim when he was frailand sick. Shementioned one OdikroGyasi (Dwenase chief) and OpaninKwasi Addoasthe witnesses tothe gift.She adds thatthe twopresented schnapps, asheepand 200cedis at thetime. Eventhoughplaintiff disagreed,D4 said plaintiff hadnotbeen bornat the time and by extensionis notin apositiontodeny that thattook place. Asked whetherthe propertywas herfather’spropertyat thetime Kwasi Addo succeeded Kwasi Fenim andlived in thehouse under litigationasfamily Head, D4 respondedthat KwasiAddo and allthe otherhead offamily lived inthe house in the name ofherfather OpaninYawOpare because theywere hisuncles. EventhoughP1 reiterated thatcustomarily, it is anephew thatinheritshis uncle under theAkanmatrilineal inheritance system, D4 disagreedand instead insistedthat because thehouse under litigationwas gifted to herfather atthe time he was veryyoung, his uncles lived in it until her fathergained the ageofmaturity. Intheopinionofthe court,granted that wasso,that KwasiFenim and KwasiAddo held the propertyin trust forYawOpareafterthe gift, therewilldefinitely be a ceremonyofputting Yaw Oparein possessionofthe said propertyafterhe attained the ageofmaturity. Inthe opinionofthecourt, because customarylaw doesnot know writing ordocumentation, ceremonies and ritestakethe stead ofwriting and documentation. Suchrites andceremonies are,witnessed and passedonfor evidential purposes. By extension, if Nana Abankwa gifted the propertyunderlitigation toYaw Opareatatender age,and there wasan implied trust in the HeadsofFamily, there wouldhave beenacustomaryeventtocreating that implied trust inthe presence of witnesses. 13 Ontheotherhand, D4admitted thatNana Abankwa’ssister’s children inherited/succeeded him. Thus, Kwasi Fenim succeeded him Nana Abankwa. Plaintiff suggestedthat therewere previous Heads ofFamily beforeit became her father’s turn but D4 denied that. D4 denied that the property under contentionisafamily property, themore reasonher fatherwas able tobuild additionalrooms tothe old structure.Moreover, she admits thather fatherdid notsucceed or inherit anybody excepthis uncle. Obviously, thereare inconsistencies fromdenying thatYawOpare did notinherit anyboby exceptNana Abankwa and admitting thatNana Abankwa’s sisters’ children inheritedhim. D4 also admitted that Nana Abankwa owned acertain Ntisuland fromwhich Opanin YawGyasiOpare weaned sand, felled palmtrees and also used proceedsofhiscocoa farmtogetmoney torepair the saidpropertyunder litigation. She also denied that OpaninYawOparewas questioned by his sistersforusing proceedsoffamily property torepair the house under litigation. Ordinarily, it is the case that proceedsfromthe said farm,if it is family property be used torepair thehouse under litigationif it is alsofamily property. Onthe otherhand, it is proceedsoffamily propertythatcannot be used torepair aself-acquired or individualproperty. It is the opinionofthis courtthat, granted thatYawOpare’ssisters questioned himas earlier indicated, it isan admissionby YawOparethat theproperty under litigation is family property, hence he administeredthe proceedsofthe farmto maintainthe propertyunder litigation. D4 furtheradded thatAfia Anka, hergrandmother had toldthem thatplaintiff’sfamily and her family aretwo separatefamilies, therefore OpaninKwabena Anin was the head 14 offamily ofthe plaintiff’s family and Opanin YawGyasiOparethe head offamily of their family. Fromthe testimony ofD4, therewas aseeming misunderstanding between plaintiffs’ mother(Christian)and defendant’sgrandmother (a traditionalist). According toD4 whenplaintiffs lost their grandmother, hergrandmother was inline to succeed hercustomarily but plaintiff’s motheropposed that because ofthe differences in religiousbelief systems, hence D4’s grandmother(Afia Anka)decreedthat theyhave nothing todo withplaintiffs’family and thus cut any linesofinheritance withplaintiffs’ family. Accordingly, whenthereis afuneralconcerning members ofD4’sfamily, plaintiffs’ family do notattend orassist in theperformance ofthatfuneral. D4averred thather grandmotherhad three sonsand noneofthe plaintiffs is any ofher sons. During crossexamination D4 admitted thatOpaninAgya Abankwa isthe head ofthe Asene family. She admitted thatshe knows Adjoa Fra whose childrenare Agya Abankwa, Dombire and Fobiaa. She said she had no knowledgethat Adjoa Fra hada daughtercalled Abankwaa but lateragreed when pressed by the subsequent question towit: Q.Have youeverheard ofAdjoa Fra? A.She gavebirthtoAgyaAbankwa Q.Did Adjoa Frahaveotherchildren? A.Yes, Dombire, and Fobiaa Q.Are youaware Adjoa Fra had a daughtercalled Abankwaa? A.I have no idea 15 Q.I put it toyouthatAdjoa Frahad four children; Abankwa, Abankwaa, Fobia, and Dombire A.That is so D4 disagreed thatAdjoa Fra’sfamily could inherit family property. Plaintiff furthersuggested thatAdjoa Frahwasthe one who acquired the land, and built the house under litigation onthe said land with the assistance of her son Abankwa, but D4 disagreed withhim. D4 added that she knows thefamily treeor descendants by virtue ofwhat hergrandmother Afia Anka toldthem. D4 disagreed thatby Akan customthe male children arenot membersofthe family, since they take careofthe family house. D4 furtherdenied thatby Akancustomsuccessionis fromthe son ofthe eldest sister beforeit trickles down. D4 admitted thatNana Fobia is her greatgrandmother.D4 eventuallyagreed thatshe has noidea about the family lineage and succession. DW1 corroborated D4’stestimony bysaying that,the propertyunderlitigation was built by Abankwa and gifted to hisgrandmother Afia Ankawhen she wasdue toget married. Fromthe witness’snarrative, Abankwa wasAfia Anka’s uncle. He took care of Afia Anka and her siblingsfollowing theloss oftheir biological mother,his sister.When Afia Anka wasdue formarriage, Opanin Abankwa built ahouse for her.Subsequently Afia Anka bequeathed thesaid propertytoYawOpareher son(his father). The witness saysasfar as he knows, the property belongstothe descendants ofAfia Anka and not family property. 16 By inference ofthe witness’s testimony the propertydoes notassume the incidence ofa family propertysince it was agift toAfia Anka. Obviously, thereis inconsistency in between D4’stestimony and DW1’stestimony because, whereasD4 saysthe propertyunder litigationwas gifted by OpaninAbankwa tohis grandchild YawGyasi Opare,the witness testifies thatit wasinstead gifted to Afia Anka bythe same OpaninAbankwa. He added thatone OpaninGyasi, who is thefather ofYawOpare thanked Opanin Abankwa by the presentation ofaRam, schnapps and amount ofmoneythat he didnot specify.He furthercorroborated D4’stestimony that hisgrandmother toldthemthat onlyher descendantscouldinherit her andnotany member ofher family when she is deceased. He added that Afia Anka had three male children namely; Opanin Kofi Gyasi, OpaninYawOpareand KwasiAsare (akaKwasi Nsiah). Itis evident fromtheevidence adduced thatthe witness haslittle idea about hisgrandmother’slineage aside what he wastoldby thesaid grandmother. Aside having littleidea ofthe family lineage whichhe alluded toduring cross- examination, DW1’sanswer toaquestion wasat variance withtheevidence ofD4. Q.“who werethe witnesses when the property wasgifted by Abankwa”? A.“Kwasi Addo and KwasiFenim WhereasD4testified thatthe witnesses to thegift were KwasiAddo and OdikroGyasi, DW1 testified that thewitnesses wereKwasi Addoand KwasiFenim, hence inconsistent withD4’sdefense. Anotherinconsistentstatement by DW1was that whereasD4 testified that Opanin (Odikro)Gyasi presentedaram, schnapps and 200 17 cedis atthe time tothank Opanin Abankwa forthe gift, DW1 testified that it was OpaninGyasiwho did so. The inconsistent statementsraised doubt in the mind ofthe courtas tothe credibilityof DW1’sevidence. It is also highly probable thathis narrative is adistorted chronologyof eventsor story,told byword ofmouththathas sufferedthe blisters ofexaggeration. According toDW2, the onewho built the propertyunder litigation is OpaninAbankwa. He averredthat thesaid Opanin Abankwa built the house forhis junior sister called Afra.The said Afra had two childrennamely; Dombire and Fobiaa. Dombire had a child called Ansaa and Fobiaa’s childrenwere namely; Afia Anka, KodjoBamfo, Kwasi Asirifiand Kwame Addo. The witness added that, it is Fobiaa’s threemale children thathave takencare ofthe propertyunder litigation in succession. Ontheotherhand, Ansaa hadamale child called KofiBoateng whilst Afia Ankahad threemale children namely; KofiGyasi, YawOpareand Kwasi Nsiah. Plaintiff’s lineage thathe knows ofareNyanta and Kwabena Anin. Nyantahad many childrenincluding the plaintiffs. Because Afia Anka was the onlyfemale in thatfamily herchildren succeeded. He averred thatAfia Anka their grandmother hadtoldthem thateventhoughshe is relatedto Nyanta,theydo notsucceed eachother. To confirm herstatement, whenAfia Ankadied, it was her ownsonKofiGyasiwho succeeded her. WhenKwasi Addodied and theyattended the funeral, they weretoldthattheywere notpartofthat family hence were notallowed tohandle his corps. When KwasiAddo died, YawOparesucceeded him and took care ofthepropertyunder litigation. Thus, as theone who performed the funerals ofallhis uncles, plaintiffs nevercontributed tothe performance ofthose funerals. Hence, plaintiffs cannot claimany part ofhis property 18 by inheritance orsuccession. Byhis understanding, Nana Nyantaand Nana Kwabena’s lineageis different fromNana Afra and Nana Bamfo’slineage. Therefore,since Afia Ankawas alone, herdescendants arethe oneswho are customarily entitled tosucceed her. Plaintiffsestablished the fact that Opanin Abankwa had asistercalled Abankwaa and it washer sonKofiGyamera who succeeded/inherited Opanin Abankwa but the witness refutedthat it was Kwasi Fenim who succeeded him ashe was told by Afia Anka. DW2 corroborated the fact thatYawOpare served Opanin Abankwa but unaware ofthe giftofthe propertyunder litigationtohim. Inanswer toacategorical statementtothe witness thatYawOparenevertook care ofOpanin Abankwa, the witness admitted that inthose dayswriting and documentationwere not common. Thus, what heknows aboutthe family lineage is what he has beentold throughstoriesand what his grandmotherAfia Anka had told themaside his personalknowledge and experience withthe family. There isno doubt that withthe passage oftime, these stories and narrativesare distorted, andexaggerated. His answer was; “in those daysdocumentationand writtenrecordswere not common. Weall relied onhistorypassed onby wordofmouthorstorytelling”.Itis obviousthat thateventhoughthe witness seemingly gaveavivid narrative ofwhat he knowsabout thefamily lineages, it is probable thatthere aredistortions and notentirely credible. DW3 who is also D4’shusband corroboratedD4’stestimony that his fatherin-law OpaninYawOparehad told himthat the property under litigation wasgifted tohim by his grandfather(Opanin Abankwa) because ofhis gooddeeds andservice to him. According tothewitness, his fatherin-law used to send him onerrands. Since his wife D4 was responsible forcollecting rentfromtenantsonhis in-law’sbehalf, the said in- 19 lawoftenasked him toreceive same fromD4and hand it tohim. This caused him to ask ifthe propertyis his self-acquired propertyandhe answered inthe affirmative.The said in-law toldhimit is because the propertyunder litigationis his property thathe built an additionalstructure onthesame piece ofland. He added thathis father in-law said he thanked his grandfatherfor the gift. The witness sayshe asked his fatherin-law who will inherit him following thedeathofhis eldersiblings towit KofiGyasiand KwasiNsiah and he responded that since he hasno siblingsorasister and byextension nonephews, hisown childrenwill look forsomeone toinherit him. The witness saidhis in-law toldhim thatP2 is not his relative but anative ofTafo hence, P2’s family do not contributeorattend funerals ofhis in-law’sfamily. P1and P2vehementlydenied and challenged the witness thattherewas no way his fatherin-law willdivulge such informationto him when he hadotherdaughterswho wereequally married. EventhoughDW3’stestimony could be described ashearsay, it is also first-hand hearsay.I have noreasontodoubt the credibility ofDW3’stestimony eventhoughit is possible thatsome ofit have beenexaggerated ordistorted. Fromallthe evidences adduced by theparties and their witnesses, one irrefutable fact thatthe courthas established isthat OpaninAbankwa wasthe original owner ofthe propertyunder litigation. Whetherornothe built it forhis sister Afrahas notbeen determined as amatteroffact. Ontheotherhand, whetherornot Opanin Abankwa had asister called Abankwaa, whose sonKofiBoateng would have beeneligible toinherit OpaninAbankwa as his nephew has notalso beenestablished asamatteroffact. The fact thatthe propertywas gifted to YawOparehas alsonot beenestablished as amatter offact. 20 Itisobvious that thefamily tree orlineage hasbeendistorted either forthe sake ofthe instant case or theparties themselveshave sufferedfromadistorted historyas aresult ofanarrative that hasbeentold byword ofmouthover theyears. Notwithstanding thenarrative’s the issue thatthe courthas set todetermine inrespect ofthe propertyunder litigationis whetheror notthe propertywas indeed gifted to Yaw Opareorit is afamily propertythathasbeen administeredassuch bythe successive HeadsofFamily. Forthepurpose ofclarity, the courtsought todistinguish between agift made inter vivos(gift made betweentwo living individuals) and gift by samansiw (deathbed wish made inanticipationofdeath) "Gift consistsin therelinquishment ofone'sownright and thecreation ofthe right of another,in lands, goods, orchattels, which creationis onlycompleted by theacceptance ofthe offer ofthe gift by that other. To constituteavalid gift, anintentionofgiving or passing thepropertyinthe thing giventothe donee by thedonor, who haspowerso todo,is necessary. The giving and acceptance must be proved and evidenced by such deliveryor conveyanceas the natureofthe gift admits of." Agift ofland inter vivosis avoluntary transfer oftitle by the owner ofthe propertyto anotherpersonfor no valuable consideration. The donormust be the ownerofthe property, havethe competence totransfer the gift and fully intend andpurporttodoso, and thedonee must accept the gift. Accordingly,the following must be presenttoconstitute avalid gift; 21 a. aparticular interest in land which is topass fromthe donortothedonee b. anintentionofthe donortomake agift tothe donee c. anacceptance ofthe gift by the donee in thelifetime ofthe donor d. deliveryoftheland tothedonee e. publicityofthe gift “Acceptance plays averyimportantroleinthe validity ofcustomarygifts. Thus, it is normallynecessaryto proveacceptance inordertoestablish that avalid gift hasbeen made. The mereproofofuse oftheland by anallegeddonee is notsufficient to establish agift”. In ollenu’sPrinciples of Customary Land Lawin Ghana at page1,he describes land as: “The term land as understood in Customary Law has a wide application. It includes the land itself, i.e. the surface soil, the things on the soil which are enjoyed with it as being part of the land by nature e.g. Rivers, streams, lakes, lagoons, and creeks, growing trees like palm trees or being artificially fixed on the land like houses, estates, interests or riget in, toorover theland”. Thus, in respect of the instant case, even though the above authority is in reference to land, it isalso in respect ofabuilding asper Ollenuas quotedabove. In the case ofYoguo and Another vAgyekum and others[1966] GLR428-520 Itwas held that; “A valid gift, under customarylaw, is anunequivocal transferof ownershipby the donortothe donee,made withthe widest publicity whichthe 22 circumstances ofthecase may permit. Forpurposesofthe required publicity, thegift is made inthe presence ofindependent witnesses, some ofwhomshould be members of thefamily ofthedonorwho wouldhave succeeded tothe propertyif the donorhad died intestateand, also,in the presence ofmembers ofthe family ofthe donee who also wouldsucceed tothepropertyupon the deathofthe doneeonintestacy. The gift is acknowledged by thedonee by thepresentation ofdrink orotherarticles tothe donor; thedrink orarticles arehanded toone ofthe witnesses —preferablyamember ofthe donee'sfamily, who in turndeliversit to oneofthe witnesses attending onbehalf ofthe donor; libationis thenpoureddeclaring the transfer and the witnesses share aportion ofthe drink orotherarticles. Anotherformofpublicity isexclusive possession and the exercise ofovert actsofownership by the donee afterthe ceremony. Intheinstant case the elementsofavalid customarylaw gift asstipulated inthe case laware thatthe property under litigationis the propertyofOpanin Abankwa. The other essential elementofpublicity ofthegift hasnot beendetermined asamatteroffact per theevidences adduced. Noneofthe witnesses to thegift was invited toadduce evidence inthatrespect. Granted thesaid witnesses aredeceased, PW3Kwasi Fenims wife is inaposition toattesttothis fact but denied thatit wasgifted to YawOpare and forthatmatter nopublicity ofthe gift. Inthe opinion ofthecourt having been married toKwasi Fenim beforeshe left subsequently she is in thatposition toattesttothe fact of publicityofthe giftif it is indeed so.Secondly, PW3is no longermarried tothe family and may notnecessarily be aligned toany ofthe parties in thelitigation, hence the court hasno reasontodoubt thecredibility ofher testimony. Ontheotherhand, PW2 is YawOpare thesubject matterofthe gift’ssecond wife. Inthe opinionofthecourt PW2is in aposition toknowwhether the propertyunder litigation wasgifted toher husband and iftherewas publicity ofthegift. The witness however 23 failed toadduce evidence inthat respect. Shemaintained thatthe propertyis afamily property. PW2’srival, thefirst wife ofYawOpare, who is also in aposition toadduce evidence in thatrespect was notinvited todo so by thedefendants eventhoughshe is their mother. There is also no evidence ofdeliveryand acceptance ofthegift toYawOpareas none of thewitnesses wereinvited toattesttothat asamatteroffact. Ontheotherhand, customarylaw will is commonly knownand referred toas samansiw. Itisaway by which apersonmay make atestamentarydisposition ofhis selfacquired propertythereby creating asituationoftestacysimilar tothe makingofa willunder the Wills Act. The effect is thatit prescribesapost mortemdevolutionor destinationofthe property. Asarule, it is limited toself-acquired property. Therefore, thehead offamily cannot make asamansiw for devolutionoffamily propertyand the occupant ofaStoolorskin cannot make asamansiw covering stoolor skin property. Apersonhas the capacity todispose ofself-acquired property. This meansapersonhas nocapacity todispose ofgroup property orstoolorskinpropertyinhis samansiw. The testatormust be ofsoundmind and at thetime he makesthedevolution must be able to appreciatethe nature ofwhat he is doing. Therefore,apersonofunsound cannot make awillthat will be regardedas valid. The essentials ofcustomarylawwill: 1. The samansiw is not recognized inall communities in Ghana 2. Itisadead bed declaration 24 3. Onlyself- acquired propertymay bethe subjectmatter ofadisposition. This is manifestedofthe doctrine ofnemo dat non-quod habet 4. There appearstobe no restrictionsontestamentaryfreedom 5. Publicity is only ofevidential value and notalegalrequirement 6. One credible witness isenoughand need not be amember ofthe family 7. The consent ofthe family is no longernecessary 8. Aseda is not necessary for thevalidity ofthe customarylaw will. Asthanks giving is only evidence ofthegift. A gift maybe accepted by moving into possessionandusing it in thecharacter ofthe owner.The validity cannot be attackedonthegrounds that nothanksgiving wasgiven Intheinstant case thereis no evidence thatOpaninAbankwa made adeathbed wish to wit samansiw by gifting the property under litigationtoYawOparethat afterhis death thepropertybelongs tohim. Ifthat washis intention thenit did notmeet the requirements ofavalid customary lawwill. Inthatcase whetheror nottherewas no aseda orpresentationofitemsto thankOpanin Abankwa would nothave beeninjurious tothe validity ofthegift. In the case ofSummey v Yohuno[1960]GLR 68,itwas held: (2)the essential requirementsofawill valid by customarylaw, are, (a) that the disposition must be made in the presence of witnesses, who must hear what thedeclaration is and must knowitscontents; (b) that the member of the family who would have succeeded the person making the will, had the latter died intestate, must be among the witnesses in whose presence the declarationis made, and 25 (e) that there must be an acceptance, by or on behalf of the beneficiaries, indicated by thegiving and receiving of"drinks." (3) although there was not sufficient evidence that the gift inter vivos was made with the publicity which customary law requires to make such a gift valid, the donor shortly after the making of the gift had published the fact to the principal members of the family. This fact taken with the other evidence of possession by the plaintiff ………. affordedsufficient proofofthe gift; In the case ofAbadoo vAwotwi [1973]1GLR, itwas held: (1). The essentialrequirements ofa valid samansiw were thatthe declaration must: (a)Be made in anticipationofdeath, i.e. it must be adeath-bed declarationorthe declarantmust be in immediate fear ofdeath (b) Be in respect ofthe self-acquired propertyofthedeclarant and (c) Be made in the presence of witnesses (preferably including some members of the declarant's family) who might be of any number depending upon the particular circumstances, and who must hear the subject-matter of the declaration and understand it as representing the dying wishes of the declarant, and be able to know who received what inordertotestify aboutthe same. (2) Aseda was therefore not essential to the validity of a samansiw and since samansiw took effect after death, aseda became necessary, if at all only when the beneficiary was givenpossessionofthe bequest. 26 Thus, the need for aseda to validate samansiw was in the twentieth century far-fetched and not countenanced by customary law which was presumed to recognise only that whichwas reasonable in the circumstances oftheparticular occasion. (3) There was no law which enjoined a plaintiff to an action such as the instant case to call all material witnesses if she knew that the interest of such witnesses was at variance withhersand that theywere notlikely totestify onher behalf. (4) Consequently, on the evidence, the declaration made by the deceased constituted a valid samansiw and theplaintiff was thereforeentitled toher claim. (2) It was competent for a court to accept the evidence of a single witness and found judgment on it even though his testimony was contradicted by his or her opponent. Ayiwah v.Badu [1963]1G.L.R. 86,S.C. applied. (3) It was also now well-settled that the owner of self-acquired property had a right to alienate his property without reference to his family during his lifetime. Atuahene v. Amofa (supra)cited. Abenyewa v.Marfo(supra)criticized. There arethreemain differences betweengiftinter vivosi.e. gift made betweentwo livingindividuals and agift by samansiw i.e. giftmade inanticipationofdeath; a. Inthecase ofsamansiw there isno inspection ordemarcationofthe land b. The beneficiaryis not placed inpossessionofthe land c. ‘Aseda’ items arenotpresented by the donee tothedonorapart fromthe drinks givenby oronbehalf ofthebeneficiary atthe time ofthe declaration 27 The evidencesadduced by PW2 and PW3 oneofwhomis YawOpare’swife andthe OtherKwasiFenim’sex-wife suggest thatthe house is afamily propertyas faras they areconcerned having beenmarried tothe aforementioned headsoffamily and livedin thesaid propertywiththeir respective husbands. Itisevident fromtheevidences adduced thatthe saidpropertyaccomodated members ofOpanin Abankwa’sfamily and his ownnucleusfamily. Thus, the evidence by plaintiff (P2) thatthe land was originally acquired by Afrah, Opanin Abankwa’smother and OpaninAbankwa built onit is highly probable. That canbe theonly explanationto thereasonallofthe saiduncles lived in thesaid house and, succeeded eachotheras family heads. Itisalso in evidence thateach lived in thesaid property, tookcare and administeredsame as family property. Inthe absence ofevidence tothe contrary,it is highly probablethat Afia Ankalived with Opanin Abankwa following the deathofher motherata tender age. Inthelight ofthe aboveit is evident that the said propertyassumed thecharacter ofa family propertyhence allwho succeeded OpaninAbankwa administered it assuch. Intheinstant case eventhoughD4 mentioned three personsaswitnesses tothe gift of thepropertyunder litigationtoYaw Opareandtheypresented itemsas ‘aseda’ to OpaninAbankwa, none was invited to testify to corroboratethatevidence. It is obvious thattheyare deceased but it cannot be true thatthey didnot divulge the witnessing of thegift toathird party who could have beeninvited totestify to that. Ontheotherhand, grantedthe propertyunder litigationwas gifted toYawOpare, thereis no evidence that hemoved intoit soonas thegift was made. Moreover, granted YawOparewas too young totakepossessionofthe gifted property,this fact isnot knowntoany member ofthe family who could testify tothat. WhereasD4saysthe 28 house was gifted toYawOparedue tohis good deeds and service to Opanin Abankwa, DW3 says he agreesthat YawOpare served Opanin Abankwa but has no idea ofthe gift. Considering that DW3 is theone who performed thefunerals ofallhis uncles, this fact should be knownby him, whether ornotas acustomarysuccessor. The evidence adduced by D4 andher witnesses arefull ofinconsistencies. Uponevaluating and analyzing the evidences adduced onbalance ofprobabilities, I determine that in the absence ofany denial ofthe defamatory statementby D1, D1 is liable for thedefamation ofP1.Accordingly,I award generaldamagesoffive thousand Ghana Cedis (GHC5000) against D1. Ontheotherhand, Idetermine thatthe propertyunder litigationis family propertyand notthe propertyofYawOpare by way ofagift. However, whetherornot P1is the personto succeed YawOpareis notamatterfor determination by theinstant court even thoughPW2 adduced evidence to the effect thatYawOparenominated P1 ashis Next- of-Kin before hedied. Orderfor costswaived by the plaintiffs. -SGD- HIS WORSHIP 29 AYAGIBASALIFU BUGRI, DISTRICT MAGISTRATE 30