VICTORIA MENSAH & ANOTHER -VRS- ELIZABETH MENSAH & ANOTHER [2024] GHACA 8 (16 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA – GHANA AD – 2024 CORAM: - E. KYEI-BAFFOUR, J. A (PRESIDING) N. ARYENE (MRS.), J. A. S. OPPONG, J. A. SUIT NO. H1/75/2021 DATE: 2024 MRS. VICTORIA MENSAH & ANOR === DEFENDANTS/APPELLANTS VRS. MRS. ELIZABETH MENSAH & ANOR === PLAINTIFFS/ RESPONDENTS ============================================================================== JUDGMENT - DRAFT ============================================================================== STEPHEN OPPONG, JA This is an appeal against the Judgment of the High Court Accra, Labour Division delivered on the 31st day of October 2016. Dissatisfied with the Judgement, the Defendants/Appellants herein launched the present appeal against the judgment on the 30th day of January 2017 on the following grounds; a. That the judgment is against the weight of evidence. 1 | P a g e b. The Court erred when it held that the 2nd property containing 6 stores was constructed with 80 million cedis from prospective tenants when the evidence could not be supported when challenged. c. The Court erred when it shared the 2nd property constructed after the demise of the 1st Defendant’s husband by resort to the provisions of the Intestate Succession Act 1985 PNDC Law 111. d. The Court erred when it held that the 1st Defendant the surviving parent had no capacity to institute an action in respect of the estate of her daughter who died intestate. e. The Court erred when it dismissed the 1st Defendant’s counterclaim for lack of capacity. f. In the alternative the Court having restored (s.i.c) to the provisions of the Intestate Succession Law 1985 PNDCL 111 in respect of the two properties failed to share the properties properly in accordance to (s.i.c) the provisions of the said law. The undisputed facts upon which this whole case turn are that, sometime after the death of the late Nathaniel Nikoi Mensah, a dispute arose between the 1st Defendant/Appellant and one N. A. Okraku over the ownership of the disputed property i.e House number C577/22 New Achimota. This matter terminated in favour of the 1st Defendant/Appellant with an authoritative pronouncement by the court that the 1st Defendant and her children which said children include the Plaintiffs/Respondents herein, are absolutely entitled to the aforesaid disputed property by virtue of PNDCL 111. Following the aforesaid judgment, the 1st Plaintiff/ Respondent and the 1st Defendant/Appellant applied for and were granted Letters of Administration to administer the estate of the late Nathaniel Nikoi Mensah. 2 | P a g e It is at this stage that the points of departure occurred relative to facts. The Plaintiffs/Respondents maintain that the 1stDefendant/Appellant has sidelined the 1st Plaintiff/Respondent in the administration of the estate after having closed down the two bank accounts of the late Nathaniel Nikoi Mensah and realised all the money therein. It is the further case of the Plaintiffs/Respondents that the 1st Defendant/Appellant collected monies which were deposited in court for the benefit of the estate as well as rent advance from prospective tenants to develop some portions of the disputed house. It is also the case of the Plaintiffs/Respondents that the estate of the late Nathaniel Nikoi Mensah has not been distributed in accordance with PNDCL 111 hence their action against the Defendants/Appellants for the reliefs they sought at the High Court which has culminated in this appeal before us. The Defendants/Appellants per their Amended Statement of Defence averred that the estate of the late Nathaniel Nikoi Mensah comprised of one storey building and it was the 1st Defendant/Respondent who constructed the second building on the vacant portion of the property in dispute with income from her property at Kotobaabi, assistance from her child resident in London as well as goodwill collected from tenants. It is also the case of the Defendants/Appellants that the estate of the late Nathaniel Nikoi Mensah has been distributed. The Defendants/Appellants averred that the 1st Plaintiff/Respondent upon the demise of one of her siblings who was also the daughter of the 1st Defendant/Appellant took over her container which was stocked with assorted drinks without accounting to anybody and that it is the 1st Defendant/Appellant who has been looking after her deceased daughter’s children as well as the Plaintiffs and therefore counterclaimed for the reliefs endorsed on their counterclaim. 3 | P a g e We shall determine this appeal in accordance with the submissions filed by Counsel for the Defendants/Appellants. The first ground which was argued by Counsel for the Defendants/Appellants is as follows; THAT THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE. Under this ground, Counsel for the Defendants/Appellants argued that they have an issue with the finding by the trial court that the estate of the late Nathaniel Nikoi Mensah consist of only one house. It is their contention that there is evidence on record that another structure was built on a vacant space of the disputed property and therefore to the extent that another structure was constructed on a portion of the disputed property, albeit on the same piece of land, the court was wrong in making this finding. In accordance with Rule 8(1) of the Court of Appeal Rules, 1997 (C. I 19) and the existing authorities, an appeal is by way of rehearing and an appellate Court in determining an appeal must evaluate the entire record of appeal of the trial Court including testimonies and documentary evidence adduced at the trial. This is to ensure that on a preponderance of the probabilities the conclusions of the trial Court could be judiciously or sufficiently sustained having regard to the evidence. See Tuakwa v. Bosom [2001-2002] SC GLR 61; Djin v Musah Baako [2007-2008] SCGLR 686; Agyeiwaa v. P & T Corporation [2007-2008] 2 SCGLR 985 at 989; Charity v. EMS 2007/2008 SCGLR, 985, Owusu Domena v. Amoah [2015 -2016] 1 SCGLR, 790. In the case of Akufo-Addo v. Catheline [1992] 1 GLR 377 at p. 391, the apex Court explained what it means to say that an appeal is by way of rehearing when it stated that: “It must be pointed out that the phrase does not mean that the parties address the court in the same order as in the court below, or that the witnesses are heard afresh. What it does 4 | P a g e however indicate is that the appeal is not limited to a consideration whether the misdirection, misreception of evidence, or other alleged defect in the trial has taken place, so that a new trial should be ordered. It does also mean, as was pointed out by Jessel M. R. in Purnell v. Great Western Rail Co. (1876) 1 Q. B. D. 636 at 640, C. A. that the Court of Appeal is not to be confined only to the points mentioned in the notice of appeal but will consider (so far as may be relevant) the whole of the evidence given in the trial court, and also the whole course of the trial.” The Supreme Court in the case of Asamoah & Another v. Offei [2018-2019] 1 GLR 655 speaking through Appau JSC reiterated the law at p.660 thus: “The authorities are legion that an appeal is by way of rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court was against the weight of evidence. In such a case, it is the duty of the appellate court to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence on record. And it is immaterial whether the appeal is a second one from the Court of Appeal to the Supreme Court.” The above position of the law has been affirmed by the Supreme Court in the recent case of Kofi Kyei Yamoah-Ponkoh, Andrews Okyere, Amoako Blankson And All Shop Owners Of Anomanye Stores Complex For Themselves And On Behalf of 29 Others v. Asomdwe House Co. Ltd (2021) DLSC 10686. Consequently, an appellate court in hearing an appeal must consider all the evidence on record in reaching a conclusion as to whether the decision of the trial court can reasonably be supported by the evidence so considered on the preponderance of probabilities. 5 | P a g e Further, as espoused in the Supreme Court case of Naa Lamiley Amoah vs. Gloria Quartey, The Chief Registrar (Land Title Registry, Accra) v. Sensations Limited (Unreported) Civil Appeal No. J4/20/2010, 10th February 2011, “the appellate court can only interfere with the findings of the trial court if they are wrong because (a) the court has taken into account matters which were irrelevant in law, (b) the court excluded matters which were critically necessary for consideration, (c) the court has come to a conclusion which no court properly instructing itself would have reached and (d) the court’s findings were not proper inferences drawn from the facts. ……….” Applying the principles enunciated above to the present appeal before us, we are of the considered view that indeed the estate of the late Nathaniel Nikoi Mensah consists of only one house i.e House Number C 577/22 New Achimota. The Appellants have not been able to demonstrate before us any evidence in the record of appeal which shows that there was another property or house forming part of the estate apart from the above numbered House. The fact that another structure was built on the same plot of land will not make it two houses. The other argument canvassed under this ground is that the finding of the trial court relating to the six shops erected after the demise of the deceased was wrong as their position that those shops were constructed by the 1st Defendant/Appellant was supported by evidence on record. We have examined the pieces of evidence on record and we are satisfied that the finding of the trial court is supported by evidence on record. There is evidence on record that the only property which was the subject of litigation between the 1st Defendant/Appellant was House number C.577/22. It is this same property which is the subject of this litigation. There is evidence on record that after the demise of the deceased, the 1st Defendant/Appellant collected the monies standing to the credit of the late Nathaniel Nikoi Mensah from two different the banks. There is also evidence on record which the 1st Defendant/Appellant admitted under cross examination to the effect that she collected 6 | P a g e monies deposited in court for the benefit of the estate. Further, there is evidence on record that the 1st Defendant collected goodwill from prospective tenants. The evidence on record shows that all these monies were applied in the construction of the stores as against the failure of the Defendants/Appellants to substantiate their claim that the stores were built from 1st Defendant’s own resources. In the circumstances, we find no reason to disturb the findings made by the trial court as the Defendants/Appellants failed to bring their case under any of the situations espoused by the extant authorities cited above. Consequently, we find no merit in this ground of appeal and same is accordingly dismissed. The next ground which was argued by Counsel for the Appellants is as follows: THE COURT ERRED WHEN IT SHARED THE 2ND PROPERTY CONSTRUCTED AFTER THE DEMISE OF THE 1ST DEFENDANT’S HUSBAND BY RESORT TO PROVISION OF THE INTESTATE SUCCESSION ACT. Under this ground, Counsel for the Defendants/Appellant argued that the estate of the late Nathaniel Nikoi Mensah consists of only one house, as such the distribution which the court made, which included the stores constructed after the demise of the deceased was done in error. We have considered the submissions and in view of the conclusions reached supra that the estate consisted of only one house and that the additions to the same property or for that matter any improvement on that house will not detract from the fact that the estate of the late Nathaniel Nikoi Mensah comprised only one house, We find no merit in this ground also and proceed to dismiss same accordingly. The next ground argued by Counsel for the Appellant is as follows: THE COURT ERRED WHEN IT DISMISSED THE 1ST DEFENDANT’S COUNTERCLAIM FOR LACK OF CAPACITY. 7 | P a g e Clearly, there is actually no submission properly so called by Counsel for the Defendants/Appellant on this ground and as the authorities go, they are deemed to have abandoned this ground of appeal as such this ground of appeal is dismissed as abandoned. Indeed all the other grounds not argued are deemed abandoned see the case of OWUSU & ANOR VRS. ANANE & ORS (1994/95) 2 GBR 716. In conclusion, we find no merits in the appeal and therefore proceed to dismiss same as unmeritorious. STEPHEN OPPONG, JA 8 | P a g e