NANA WADIE ASSIM II VRS. SERWAA AND ANOTHER (C7/78/2015) [2023] GHAHC 605 (10 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘6’ – GENERAL JURISDICTION – HELD IN KUMASI IN THE ASHANTI REGION BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON FRIDAY THE 10TH OF NOVEMBER 2023. ________________________________________________________________ SUIT NO. C7/78/2015 NANA WADIE ASSIM II WADIE ADWUMAKASEHENE FOR HIMSELF AND ON PLAINTIFF BEHALF OF HIS STOOL FAMILY OF WADIE ADWUMAKASE ASHANTI VRS 1. MAAME YAA SERWAA SUBSTITUTED BY OPANIN ADU BOAHENE OF H/NO: O. I. 156, ASHANTI NEW TOWN KUMASI 2. MAAME AMA BADU OF H/NO. O. I. 156, ASHANTI NEW TOWN KUMASI DEFENDANTS ________________________________________________________________ JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR PLAINTIFF PRESENT 1ST DEFENDANT REPRESENTED BY AKWASI ADU BOAHENE 2ND DEFENDANT REPRESENTED BY KWADWO NYANTAKYI ________________________________________________________________ JUDGMENT A. THE CASE FOR THE PLAINTIFF [1] According to the Plaintiff, he is the Chief of Wadie Adwumakase and brings this action for himself and on behalf of the stool as well as on behalf of the members of the family of the said stool. [2] Per the Plaintiff, his grand uncle, the late Nana Akwasi Asamoah was the Chief of Wadie Adwumakase and during his tenure as a Chief, he acquired property no. O. I. 156 Ashanti New Town (now the disputed property) for the stool, using the resources of the stool. Since Nana Akwasi Asamoah was at the time the occupant of the stool, the lease in respect of H/No. O. I. 156 was executed in the name of Nana Kwasi Asamoah, for and on behalf of the stool. Nana Kwasi Asamoah died intestate sometime in 1964 and he was succeeded by his nephew, Nana Tieku Ababio as the Chief of Wadie Adwumakase. Following the enstoolment of Nana Tieku Ababio, an inventory was taken of JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR all stool properties belonging to the Wadie Adwumakase stool, including H/No. O. I. 156 and the list of all the properties together with the properties were handed over to Nana Tieku Ababio. [3] Nana Teiku Ababio however abdicated in 1970 and Nana Osei Hwedie, the older brother of the Plaintiff was enstooled as the Chief of Wadie Adwumakase. The stool properties were thereafter handed over Nana Osei Hwedie, together with H/No. O. I. 156. The Plaintiff added that during the tenure of Nana Osei Hwedie as the chief of Wadie Adwumakase, he even lived in H/No. O. I. 156 with the Defendants, who are the children of the late Nana Akwasi Asamoah. [4] Since H/No. O. I. 156 was stool property, the Plaintiff contended that Nana Osei Hwedie rented some of the rooms in the house to tenants and later ejected those tenants when he decided to pull down property no. O. I. 156 for reconstruction. The Defendants, who are the children of the family of the Plaintiff and were living in the disputed property at the sufferance of the family, the Plaintiff continued, and so they were not ejected but rather, granted the opportunity to look for alternative accommodation, to pave way for the pulling down and reconstruction of the house. [5] Nana Osei Hwedie however passed away before he could get the house pulled down and reconstructed. The Plaintiff thus succeeded Nana Osei Hwedie and it was after the enstoolment of the Plaintiff herein sometime in 2012 that it came to the Plaintiff’s attention that whilst living in the disputed house, the Defendants had taken letters of administration to administer the estate of the JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR late Nana Akwasi Asamoah without recourse to the then Chief, Nana Osei Hwedie or any member of his family. [6] The Plaintiff thus contended that the Defendants fraudulently took out the letters of administration and particularised the Defendants’ fraudulent acts as follows: PARTICULARS OF FRAUD i. The Defendants deposing in the affidavit accompanying the application for Letters of Administration that they are sisters to the late Nana Kwasi Asamoah even though they are his children. ii. The Defendants deposing that they are members of family of the late Kwasi Asamoah when they knew that was not true. iii. The 1st Defendant posing as the head of family of the late Nana Kwasi Asamoah when she was not even a member of his family. [7] Based upon the above fraudulent representations by the Defendants, the Plaintiff stated that the Defendants succeeded in obtaining letters of administration and have since vested the disputed properties in themselves. According to the Plaintiff, the fraudulent conduct of the Defendants came to his attention when he became the Chief of Wadie Adwumakase sometime in 2011 and so the Plaintiff caused his lawyers to serve on the Defendants a citation to deposit the said letters of administration at the Registry of the High Court, for same to be cancelled. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR [8] The Plaintiff concluded by stating that the disputed property no. O. I. 156 Ashanti New Town, Kumasi is the property of the stool of Wadie Adwumakase and not the personal property of Nana Akwasi Asamoah. As such, the Defendants could not obtain letters of administration for the disputed property and so the letters of Administration which the Defendants fraudulently obtained and anything done there under ought to be brought up for cancellation. [9] The Plaintiff thus prayed the Court for the following reliefs: B. RELIEFS SOUGHT BY THE PLAINTIFF (a) An order annulling/cancelling the Letters of Administration obtained by the Defendants from the High Court as well as any act, process or conduct done thereunder. (b) A declaration that the property numbered O.l. 156, Ashanti New Town, Kumasi is the property of the family of the Plaintiff. (c) An order for recovery of possession. (d) An order of injunction restraining the Defendants, their agents, assigns and servants from interfering with the Plaintiff's family’s title and ownership to the said property. C. DEFENCE PUT FORTH BY THE DEFENDANTS JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR [10] In their defence, the Defendants admitted that they were the children of the late chief of Wadie Adwumakase, Nana Akwasi Asamoah. They however vehemently denied the claims and averments of the Plaintiff herein, contending instead that even though their father never acquired the disputed property for the Wadie Adwumakase stool. [11] Rather the property was personally acquired by Nana Akwasi Asamoah for the use of his family, specifically, for his wife called Yaa Manu and her children including the Defendants herein. The lease to the disputed property was thus indeed executed in the name of Nana Kwasi Asamoah as the Plaintiff contended; but it was the personal property of Nana Akwasi Asamoah and not stool property. The Defendants continued to aver that whoever made the inventory the Plaintiff spoke about probably did not know that Nana Akwasi Asamoah was the owner of the disputed property. [12] Again, it is correct that Nana Osei Hwedie lived in the disputed house during his tenure as the chief of Wadie Adwumakase, but the Defendants stated that it was one Obaapanin of the town, Afia Fia, who pleaded with the 1st Defendant and Akua Donkor to permit the new chief, Nana Osei Hwedie to live in the house. The Defendants further denied that Nana Osei Hwedie put tenants in the disputed house, adding that even when the Defendants collected rent and gave the money to Nana Osei Hwedie to pay the property rate, he squandered the money. [13] Since the disputed property was the self-acquired property of Nana Akwasi Asamoah, the Defendants stated that they indeed obtained letters of administration for the disputed property and the disputed property was lawfully vested in them; but they were ordered to deposit the letters of administration at the High Court at the instance of the Plaintiff herein. They thus denied fraudulently obtaining the letters of administration, adding that JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR Nana Akwasi Asamoah, during his lifetime, married two women, one Konadu and Yaa Manu. Before he was enstooled as chief, Akwasi Asamoah went to Beposo near Nkawie to cultivate cocoa with Yaa Manu and their children and it was upon their return to the Kumasi that Akwasi Asamoah used the proceeds from the sale of cocoa that his wife and children had cultivated to purchase the disputed property 0. I. 156 Ashanti New Town from one Kwaku Sarpong of Ahodwo Antoa. The property was purchased in 1946, the Defendants stated and Akwasi Asamoah settled his family therein. Thus, apart from his wife and children, Akwasi Asamoah also allowed his brother, Kwadwo Baafi, together with Baafi’s wife and children to live in the disputed house. [14] Akwasi Asamoah then put his daughter the 1st Defendant in occupation of the disputed house, and subsequently, other children like Yaa Kobi and Adwoa Asafo also lived in the house, throughout all their lives and even gave birth to all their respective children in the disputed house. Indeed, the 1st Defendant, Yaa Serwaa, Yaa Kobi and Adwoa Nsafoa, all children of Akwasi Asamoah, have always been in possession and in charge of the disputed house and paid all the rates and outgoings in respect of the said house. The Defendants averred that at the time of ascending the throne, the said house had been acquired and it was in the control of the Defendants; but Akwasi Asamoah himself never lived in the disputed property in his private life and even as a chief. [15] Per the Defendants, when Akwasi Asamoah became the Chief of Wadie Adwumakase in 1948, he built a house at Wadie Adwumakase and used it as his palace. That is where he lived and called it Akofrena Ahenfie, the Defendants continued. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR [16] After the death of Nana Akwasi Asamoah, the Defendants stated that two chiefs came after their father, but none of them lived in the disputed house. It was only Nana Osei Hwere, who was allowed to live in the house upon the plea of Nana Afia Fofie, the queen-mother of Wadie Adwumakase. The said Nana Osei Hwere was allowed to live in the disputed house but after a year or two, the said Nana Osei Hwere vacated the house after he took the water and light bills from other members of the house and appropriated it to himself. [17] The Defendants averred that before the letters of administration granted to the Defendants were deposited at the Registry of the Court, the Defendants had already had the property vested in them and applied for a lease in respect of the said property. The said lease has been engrossed in the names of Yaa Serwaa, Ama Badu and Adwoa Safoa in trust for themselves and on behalf of the children of the late Akwasi Asamoah. The disputed property is not a stool property and never has been, and so the Defendants prayed the Court to dismiss the Plaintiff’s claims and the reliefs sought. D. PLAINTIFF’S REPLY TO THE STATEMENT OF DEFENCE [18] The Plaintiff filed a reply, joining issues with the Defendants and materially denying the averments in the defence filed. The Plaintiff reiterated, among others that he was entitled to the reliefs sought in order that he would protect the disputed property, being the property of the Wadie Adwumakase stool. Pleadings closed thereafter. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR E. APPLICATION FOR DIRECTIONS [19] At the Directions stage, the following legal issues were set down for the trial: 1. Whether or not property numbered O. I. 156 Ashanti New Town, Kumasi is the property of the stool family of the Plaintiff. 2. Whether or not upon the death of Nana Akwasi Asamoah, property numbered O. I. 156, Ashanti New Town was listed as part of the stool properties that were handed over to his successor. 3. Whether or not Nana Osei Hwedie who subsequently became the chief of Wadie Adwumakase occupied property number O. I. 156 Ashanti New Town, Kumasi with the permission of the Defendants. 4. Whether or not Nana Osei Hwedie occupied the subject property in his capacity as the chief of Wadie Adwumakase and a successor to Nana Akwasi Asamoah. 5. Whether or not Nana Akwasi Asamoah acquired the subject property for the benefit of his wife Yaw Manu and her children. 6. Whether or not the late Nana Akwasi Asamoah married two women. 7. Whether or not the late Nana Asamoah married six (6) women in his lifetime. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 8. Whether or not the late Akwasi Asamoah gave birth to thirteen (13) children. 9. Whether or not the late Nana Asamoah give birth to twenty-six (26) children. 10. Whether or not the Chiefs of Wadie Adwumakase who ascended the stool after the death of Nana Akwasi Asamoah lived in the subject house. 11. Whether or not title to the subject property has ever been decreed in the Defendants. 12. Whether or not the application for letters of administration by the Defendants was done fraudulently. 13. Whether or not the Plaintiff is entitled to his claim. 14. Any other issue raised from the pleadings. The parties were then ordered to file their respective witness statements and they did. F. WITNESS STATEMENTS OF THE PLAINTIFF AND HIS WITNESSES [20] The Plaintiff, in his witness statement, reiterated the averments in his pleadings, stating that the disputed property was acquired by Nana Akwasi Asamoah, the father of the Defendants, for the stool, at the time Nana Akwasi Asamoah was the chief of Wadie Adwumakase. The Plaintiff, who stated he was the current chief of Wadie Adwumakase added that an inventory of the properties of the Wadie Adwumakase stool was JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 10 undertaken and the disputed property was listed as the property of the stool and not the personal property of Nana Kwasi Asamoah. [21] Furthermore, during his lifetime, Nana Kwasi Asamoah acquired a cocoa farm at Beposo with the assistance of all his wives, his children and members of his family including Yaw Barima and Kwaku Dabo; and Nana Kwasi Asamoah gifted portions of this farm to his children. It was thus during his tenure as a Chief that Nana Kwasi Asamoah acquired property number O. I. 156 Ashanti New Town from one Kwaku Sarpong for the Wadie Adwumakase Stool using the resources of the stool. The said property was consequently acquired for the Wadie Adwumakase Stool as the Wadie Adwumakase stool house. [22] The Plaintiff continued to state that although Nana Asamoah lived in the disputed house with some of his children including Kwaku Badu, Kwadwo Gyamera, Yaa Kobi and Adwoa Asafo; as well as his brother Kwadwo Baafi and some members of his family including his nephew Kwadwo Tawiah, the lease in respect of the disputed house was executed in the name of Nana Kwasi Asamoah as the occupant of the stool at that time. [23] After Nana Akwasi Asamoah died sometime in 1962, he was succeeded by his nephew Nana Tieku Ababio and the properties in the inventory taken, including the disputed property were all handed over to Nana Tieku Ababio as the chief of Wadie Adwumakase. All Chiefs who were subsequently enstooled were given custody of the properties of the stool including the disputed property, the Plaintiff continued to state. The chief, Nana Osei Hwedie therefore even occupied the property in dispute in his capacity as the occupant of the Wadie Adwumakase stool and he lived therein with the JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 11 Defendants. He thus paid property rates of the said house, but in the name of Nana Akwasi Asamoah. [24] The Plaintiff reiterated that Nana Osei Hwedie also let some of the rooms in the house out to tenants and he later ejected them when he decided to pull down the structure for reconstruction. The Defendants were however never ejected from the house because they were the children of the Plaintiff’s family and were living in the disputed house at the instance of the family and so they were rather advised to look for alternative accommodation, but they failed to do so. The Defendants lived in the disputed house till the death of Nana Osei Hwedie and even after the Plaintiff herein was enstooled as the successor of Nana Osei Hwedie, the Defendants have failed and/or refused to move out of the disputed house and have now applied for letters of administration with respect to the disputed property, purporting to administer the estate of the late Nana Akwasi Asamoah, their late father. [25] The Plaintiff finally pleaded fraud against the Defendants in the acquisition of the letters of administration and prayed for a recovery of the disputed property as the property of the Wadie Adwumakase stool. [26] The Plaintiff called Nana Kwartemaa Nyiano Ababio, who stated she was the Queen mother of Wadie Adwumakase as PW1, and she also confirmed that Nana Kwasi Asamoah acquired the disputed house in 1962. Under cross- examination however, PW1 stated the house was acquired in 1946 as follows: Q: But according to you, this house was acquired in 1962? A: No, my Lord. It was rather acquired in 1946, my Lord. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 12 Q: Who told you the house was acquired in 1946? A: My grandmother, Afia Fofie (Afia Serwaa) whom I succeeded told me, my Lord [27] Further, in support of the Plaintiff’s contentions, PW1 informed the Court that Nana Kwasi Asamoah acquired the house primarily for the stool, so the stool would have a residence in Kumasi to house the chief of Wadie Adwumakase and his elders anytime they came to Kumasi to grace a ceremonial event organized by the Asantehene. The disputed house thus became the property of the Wadie Adwumakase stool, and any chief of Wadie Adwumakase, who was enstooled was given charge and control of the disputed house during his tenure. It would therefore be unfounded for any of the children of Nana Akwasi Asamoah to lay claim to the house in dispute because these children of the late Nana Kwasi Asamoah lived in the house in contention at the sufferance of the stool. They lived in the said house together with all the children of the chiefs of Wadie Adwumakase who ascended the stool, PW1 concluded. [28] PW2 was Nana Owusu Achiaw, the Akwamuhene of Wadie Adwumakase as he described himself; and in his witness statement, he also stated that the disputed property was acquired for the Wadie Adwumakase stool. PW2 further gave an account of how and why the disputed property was acquired for the stool, basically, for the then Chief, Nana Kwasi Asamoah and his subjects to lodge when ever they had to come to Kumasi from Wadie Adwumakase to attend an event at the Otumfuor’s palace. When the disputed property was acquired therefore, Nana Akwasi Asamoah allowed his younger brother to come and live in the house, and the said younger brother lived in the disputed house with his wife and children. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 13 The 1st Defendant also came to live in the disputed house with her husband as well. PW2 reiterated that the chiefs who ascended the Wadie Adwumakase stool were given charge of the disputed premises and so that property was acquired for the stool, but the Defendants are now laying unfounded claims to the house in dispute. [29] PW3, Yaw Asamoah Acheampong, who stated he was a son of Nana Akwasi Asamoah, was brought to testify in Court. He also repeated the averments of the Plaintiff and his witnesses, that the disputed house was acquired for the Wadie Adwumakase stool but confirmed that Nana Akwasi Asamoah brought his brother and nephew to live in the said house, and the 1st Defendant and another daughter of Nana Akwasi Asamoah, Yaa Kobi also came to live therein. In his lifetime therefore, he never saw or heard that his father had gifted the disputed property to the Defendants because after the death of his father, all the chiefs of Wadie Adwumakase who ascended the throne lived in the disputed house. It was also not correct, that the disputed house was the self- acquired property of Nana Akwasi Asamoah, PW3 concluded. The Plaintiff closed his case after the cross-examination of PW3. G. WITNESS STATEMENT OF THE 1ST DEFENDANT FOR AND ON BEHALF OF THE DEFENDANTS [30] During the pendency of the matter before the Court, the 1st Defendant passed away and she was substituted by her son, Opanin Adu Boahene as the 1st Defendant. The 1st Defendant stated he was a grandson of Nana Akwasi Asamoah and he testified for and on behalf of the Defendants. He reiterated the Defendants’ assertions that the disputed property was personally acquired from the proceeds of a cocoa farm cultivated by Nana Akwasi Asamoah and JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 14 his wives and children. After the property was purchased, Nana Akwasi Asamoah was said to have immediately put his children, including the original 1st Defendant, in possession of the disputed property and subsequently granted the disputed house to his wife Yaa Manu and her children. It was thereafter that Nana Akwasi Asamoah was enstooled as a chief, the 1st Defendant continued. D1 added that during his reign as a chief of Wadie Adwumakase, Nana Akwasi Asamoah built a palace at Wadie Adwumakase and further acquired a house there at Wadie Adwumakase for another of his wives and her children. Nana Kwasi Asamosh himself never resided in the disputed property; and the chiefs who succeeded him also never laid any adverse claims to the house except the Plaintiff herein and his predecessor, Nana Osei Hwedie. [31] Per the 1st Defendant, the Defendants are the rightful owners of the disputed property because they have always been in possession and control of the disputed property; and also pay the property rates and other tolls on the house in their names. DW1 tendered in evidence one such receipt of property rate paid by the Defendants to the Kumasi Metropolitan Assembly and these were marked as Exhibit 2. The disputed property has also been transferred to the Defendants and an indenture issued in their names, and DW1 further tendered in evidence a copy of the covering letter and the said indenture as Exhibits 3 and 3A. [32] DW1 went on to state that the Plaintiff’s predecessor instituted an action against the Defendants but same was struck out and a copy of that Court’s proceedings was further tendered in evidence. All in all, the disputed property belonged to the Defendants and was not a property of the stool of Wadie Adwumakase, DW1 concluded. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 15 H. INTERVENING MATTERS [33] After the 1st Defendant had been cross-examined, the Plaintiff’s Counsel prayed the Court to recall the Plaintiff to tender in evidence an application made by the Defendants for the grant of letters of administration and a ruling of the High Court dated the 28th of January 2023. This Court found the documents relevant and essential in assisting the Court to effectively and finally determine all issues in controversy and so leave was granted for the Plaintiff to be recalled and the documents tendered in evidence. The Defendants’ Counsel was also granted the opportunity to cross-examine the Plaintiff on the documents tendered and the Plaintiff was discharged. Thereafter, the Defendants also made an application to have an officer from the Lands Commission, Kumasi appear before the Court to testify; and same was granted. I. WITNESS STATEMENT OF THE DEFENDANTS’ SUPOENAED WITNESS FROM THE LANDS COMMISSION, KUMASI – DW1 [34] DW1 thus appeared and tendered in evidence all documents relating to how Akwasi Asamoah originally acquired the disputed property, no. O. I. 156, Odumase up to the current ownership at the time of the trial in 2015; as well as any search reports filed on the records/file of the Lands Commission. DW1 gave the answers below in his examination-in-chief: JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 16 Q: The Exhibit 9 series, who is the present owner of this house, no. O. I. 156 Odumase? A: The present owners are Yaa Serwaa, Ama Badu and Adwoa Sarfoa in trust for themselves and as trustees on behalf of the children of Kwasi Asamoah. Q: Can you briefly look at Exhibit 9 series and tell the Court how these persons became owners? A: There was an annual tenancy agreement from the Asantehene to Kwasi Asamoah for a yearly tenancy from 1st February 1946. This was registered on the 5th July 1946. Then there was a deed of mortgage on the 20th of December 1946 from Kwasi Asamoah and Joseph Adusei Safo to the United Africa Company Limited, and this Deed of Mortgage was registered on the 19th February 1947. Then there was a deed of re – assignment dated 30th October 1947 from the United Africa Limited back to Kwasi Asamoah and which was also registered on the 16th January 1948. Then another mortgage dated 31st May 1948 from Kwasi Asamoah and John Adusei Safo to the Swiss African Trading Company Limited. Further in his examination-in-chief, DW1 stated: JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 17 Q: You have stated there was an annual tenancy between the Asantehene and Akwasi Asamoah. Did Akwasi Asamoah sign for himself or he signed in a representative capacity? A: It was between Akwasi Asamoah and the Asantehene; and per the records, it was thumb printed by Akwasi Asamoah himself, not for and on behalf of anyone else. He therefore signed for himself, my Lord. [35] DW1 therefore tendered in evidence Exhibits 9, 10, 11 to 18, made up of the original lease on the disputed property made out to Akwasi Asamoah as well as some mortgages taken out by Akwasi Asamoah with the disputed property, then a record of the letters of administration taken by the Defendants and a lease and vesting assent of the disputed property in the name of the Defendants. Counsel for the Plaintiff opted not to cross-examine DW1, the Officer from the Lands Commission so the Defendants closed their case, and the trial came to an end. J. THE LEGAL INCIDENCE OF THE BURDEN OF PROOF [36] This being a civil case, the burden of proof on a party is on a balance of probabilities, as was held in the case of Serwah v Kesse [1960] GLR pgs 227 – 228 and also in sections 11(4) and 12 of the Evidence Decree, 1975, NRCD 323. Section 12 of NRCD 323 provides: JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 18 (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non- existence. This was confirmed by the Supreme Court in the case of Adwubeng v Domfeh [1997 - 98] 1 GLR 282, which added that there was no exception to this rule. [37] Also, in the case of Dzaisu v Ghana Breweries Limited [2007-2008] SCGLR 539, the Supreme Court, per Adinyira JSC (as she then was) held, in expounding on section 14 of NRCD 323, as follows: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim.” The Learned Justice of the Supreme Court went on to state: It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden onto the other party. [38] The case of Ackah v Pergah Transport Limited [2010] SCGLR 728 also espoused section 10 of NRCD 323, thus: JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 19 It is a basic principle of the law on 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. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree. The above is sometimes expressed as ‘the party who asserts the affirmative of an issue has the incidence of the legal burden’. Applying the above principles to the case herein, after the close of the trial, the Plaintiff must satisfy this burden by adducing sufficient evidence to demonstrate to the Court that he is entitled to the reliefs he seeks. K. EVALUATION OF THE LAW AND THE EVIDENCE ADDUCED [39] I will now proceed to discuss and evaluate the legal issues raised vis-à-vis the evidence adduced during the trial and the law applicable to the instant case. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 20 The parties before me are all ad idem on the fact that Akwasi Asamoah or Nana Akwasi Asamoah, as he became known after he was enstooled as the chief of Wadie Adwumakase originally acquired the disputed house no. O. I. 156, Ashanti New Town, Kumasi. There are differing dates from both sides as to when the disputed property was purchased; and the Plaintiff himself and his witnesses even gave varying dates as to when exactly the disputed property was acquired. [40] The Plaintiff, under cross-examination, stated that the disputed property was acquired by Nana Kwasi Asamoah after he had become a chief when he gave the answers below: Q: If he knew it formed part of this inventory, he would have objected because he acquired this property before he became the chief of Wadie Adwumakaase. A: That is not correct. He became a chief before acquiring the property. Q: When did he purchase the house? A: In 1962, my Lord. Q: When was he made a chief? A: I was young when he was enstooled so I cannot remember. PW1, Nana Kwartemaa Nyiano Ababio, testified in her witness statement, at paragraph 4 thus: JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 21 4. My granduncle, Nana Akwasi Asamoah acquired the house in dispute from one Opanin Osei Kwaku around 1962. Under cross-examination, however, PW1 changed the narrative and answered: Q: But according to you, this house was acquired in 1962? A: No, my Lord. It was rather acquired in 1946, my Lord. Q: Who told you the house was acquired in 1946? A: My grandmother, Afia Fofie (Afia Serwaa) whom I succeeded told me, my Lord. PW2 also gave the answers below under cross-examination: Q: You told this Court, in your witness statement that Nana Akwasi Asamoah purchased this property with his personal money. A: That is correct, my Lord. He became the chief in 1944; and he bought the property in 1948. [41] From the above, it is obvious that none of the parties was present or even old enough to know exactly when the disputed property was acquired and whether or not it was acquired before or after Nana Akwasi Asamoah had been enstooled as chief. Nonetheless, the Plaintiff and PW2 sought to state that the JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 22 disputed property was acquired after Nana Akwasi Asamoah had been enstooled as chief of Wadie Adwumakase from the answers they gave above. [42] On the other hand, PW3, who stated he was a son of Nana Akwasi Asamoah gave a contrary answer when he stated under cross-examination: Q: Do you know which year your father acquired the house? A: I do not know but at the time I was born, it had already been acquired. Q: Do you know the time your father was enstooled? A: No, my Lord, because he was enstooled before I was born. Q: So you will agree with me that you cannot testify as to when this house was acquired? A: What I heard from my brothers was that it was acquired in 1946 and I was born in 1948. Q: I am putting it to you that your father acquired this house before he was enstooled as chief of Wadie Adwumakaase. (Emphasis is mine) A: That is true, my Lord. [43] Again, from Exhibits 9 and 9A, tendered in evidence by the officer from the Lands Commission, there is proof that there was a lease in favour of Akwasi JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 23 Asamoah dated the 1st February 1946 and from which an annual tenancy was commenced; and this lease was registered on the 5th of July 1946. It is therefore more probable than not that the disputed property was acquired in or around 1946, as PW3 stated and as further confirmed by Exhibits 9 and 9A. [44] Again, since PW3 was the only one who appeared to get the date of the acquisition of the disputed property right, it follows therefrom that the disputed property was acquired before Nana Akwasi was enstooled as chief of Wadie Adwumakase, as confirmed by PW3 above. There is also sufficient evidence to establish that during the reign of Nana Akwasi Asamoah, he built a palace for the Wadie Adwumakase stool and the Plaintiff; and his witnesses admit that the palace is still in use by the current chief of Wadie Adwumakase, the Plaintiff herein. [45] The gravamen of the entire dispute before this Court is whether or not the disputed property, house no. O. I. 156 Ashanti New Town was acquired by Nana Akwasi Asamoah for the Wadie Adwumakase stool or the property was personally acquired for the use of the wife/wives and children of Nana Akwasi Asamoah. In that regard, I proceed to deal with the legal issues set down for the trial; but I shall first deal with the following because they are so inconsequential to the contentions surrounding the disputed house. 1. ISSUES SIX (6), SEVEN (7), EIGHT (8) & NINE (9) 6. Whether or not the late Nana Akwasi Asamoah married two women. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 24 7. 8. 9. Whether or not the late Nana Asamoah married six (6) women in his lifetime. Whether or not the late Akwasi Asamoah gave birth to thirteen (13) children. Whether or not the late Nana Asamoah give birth to twenty-six (26) children. [46] The only piece of evidence adduced by the parties to even closely resemble the need to know the number of wives and children of the late Nana Akwasi Asamoah was the fact that both parties were able to confirm that during his lifetime, Nana Akwasi Asamoah acquired three distinct properties: a house in Wadie Adwumakase which was said to have been granted to his first wife and her children with him, then the Palace for the Wadie Adwumakase stool and finally the disputed property. Whilst the Defendants’ Counsel was cross-examining the Plaintiff and his witnesses, he sought to state that the stool had already been granted the palace and so the disputed house was meant for the children of Nana Akwasi Asamoah, just like the house granted to the first wife and her children at Wadie Adwumakase. Apart from that, I do not see the relevance at all of discussing the number of wives and children of the late Nana Akwasi Asamoah and so I hold that the above issues are irrelevant to the determination of the matter before this Court. I proceed to deal with the following issues: JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 25 2. ISSUES ONE (1) & TWO (2) 1. 2. Whether or not property numbered O. I. 156 Ashanti New Town, Kumasi is the property of the stool family of the Plaintiff. Whether or not upon the death of Nana Akwasi Asamoah property numbered O. I. 156, Ashanti New Town was listed as part of the stool property (sic) that were handed over to his successor. [47] With respect to the second issue, (as to whether or not upon the death of Nana Akwasi Asamoah, property number O. I. 156, Ashanti New Town was listed as part of the stool properties that were handed over to his successor); that is not in controversy because that is the Plaintiff’s whole contention. It is the Plaintiff’s case that after the death of Nana Akwasi Asamoah, an inventory was made with regard to the stool properties, to be handed over to the successor of the late Nana Akwasi Asamoah, and the disputed property was added as one of the properties of the stool in the inventory. The Plaintiff thus tendered in evidence the said inventory as Exhibit A. There is therefore no doubt that the disputed property was listed in the inventory said to have been submitted to the stool. The issue for determination is whether or not the disputed property is entitled to stay on the list of the inventory of stool properties of the Wadie Adwumakase stool. Under cross-examination, the Plaintiff gave the following answers in connection with the preparation of the said inventory: JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 26 Q: You have relied heavily on an inventory from archives to state that the disputed property is for the stool, not so? A: That is correct, my Lord. Q: Who prepared the said inventory? A: I wrote and listed them out, my Lord. The Otumfour’s linguist came to cross – check and verify all the items on the list. (Emphasis is mine) Q: Are you sure of what you are saying? A: I am speaking the truth, my Lord. Under further cross-examination however, the Plaintiff stated: Q: In what year did you write out the inventory? A: When I ascended the stool, it was already written and at the palace. Q: So you are now saying you are not the one who compiled it? A: Yes, my Lord. I came to meet it as properties of the stool. (Emphasis is mine) Q: You will also agree with me that it was not Nana Akwasi Asamoah who made out the list. A: It was him. He made the list, my Lord; and I am also included. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 27 Q: Per your own exhibit, the inventory was prepared by one Stephen Arthur, who is not even a native of Wadie Adwumakaase. A: The said Stephen Arthur was an educated man in the town and he made the inventory. I was included. Q: After the list was prepared, Nana Kwasi Asamoah did not sign to show he accepted that those were the properties of the stool. A: He signed, my lord. Q: Take a look at Exhibit A and tell the Court where Nana Akwasi Asamoah signed. A: It is not there, my Lord. There is no signature of Nana Akwasi Asamoah. Q: This inventory was prepared in 1963? A: Yes, my Lord. Q: And per Exhibit A, Nana Oppong Wadie was the occupant of the stool? A: No, my Lord. Nana Oppong Wadie was the occupant of a different stool and not the occupant of our Wadie Adwumakaase stool. Q: And the inventory was addressed to Nana Oppong Wadie? JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 28 A: No, my Lord. Nana Oppong Wadie was the older brother of Nana Akwasi Asamoah so Nana Akwasi Asamoah went to show the inventory to him. [48] The Plaintiff, I find, was unable to tell who had the inventory prepared or even who authorized its preparation. In one breath, the Plaintiff stated he prepared the inventory himself, then in another breath, the Plaintiff stated it was his grandfather, Nana Akwasi Asamoah; and yet in another breath, the Plaintiff admitted it was Stephen Arthur who prepared the inventory; but once again, there is no indication of who authorized the preparation of the inventory and no evidence in support of same. The Plaintiff gave further contradictory answers when he again stated under cross-examination: Q: So you are claiming the inventory is the stool’s properties? A: Yes, my Lord. Q: Who prepared this inventory? Plaintiff’s Counsel: - This is a repeat question. By Court: - I would like the witness to answer. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 29 A: The Otumfour’s Secretaries came to supervise it and it was prepared. They inspected the properties before it was compiled. Q: I am putting it to you that by your own exhibit, the inventory, one Comrade Arthur prepared it. A: He is the Gentleman/Secretary of the Stool; but I prepared it myself and he wrote it out. Plaintiff’s Counsel: - The question is repetitive because all these have been asked. By Court: - Upheld. Q: In 1963, you were not the occupant of the Wadie Adwumakaase stool. A: That is correct, my Lord. It was my grandfather who was occupying the Stool. Q: And at the time, Stephen Arthur was not the secretary of the stool. A: That is correct, he was not the secretary; but when my grandfather received any letters or correspondence, he would read them for my grandfather, so I also used him when I occupied the stool. Q: In 1963, how old were you? JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 30 A: About 8 years, my Lord. Q: And you want this Court to believe that at 8 years, you compiled the stool’s properties? A: No, my Lord. my grandfather did the inventory. I succeeded my older brother, who succeeded my grandfather, so I saw the inventory my grandfather did and I inherited. Q: So you are now telling the Court you did not compile it? A: No, my Lord. I was young and my grandfather did so I saw it and inherited the inventory. [49] In view of the contradictions of who had that inventory, Exhibit A made, I am left in doubt as to whether or not that inventory was properly authorized and whether it was prepared by a person who knew the actual properties of the Wadie Adwumakse stool. It is nonetheless the Plaintiff’s contention that the disputed property was acquired for the Wadie Adwumakase stool by Nana Akwasi Asamoah. The reasons the Plaintiff and his witnesses canvassed included the fact that even though Nana Akwasi Asamoah was the chief of Wadie Adwumakase, he needed a house in Kumasi where he can lodge and dress in the event that there was a ceremony at the Otumfour’s palace in Kumasi that he and his entourage needed to attend. PW2 succinctly put it at paragraphs 5, 6, 7 and 10 of his witness statement as follows: JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 31 5. The said Nana Akwasi Asamoah owes allegiances (sic) to the Asantehene. For this reason, the presence of the Wadie Adwumakasehene is needed anytime the Asantehene organizes a major ceremonial event. 6. Such events are usually characterized by the allegiant stools fully represented with their servants. This necessitated the need to have a place in Kumasi where the respective stools will stay upon their arrival in Kumasi in order to house the numerous servants they bring along and to have a place where the chiefs and their servants can comfortably dress and prepare to grace His Majesty Otumfuor Asantehene’s presence. 7. The Late Nana Akwasi Asamoah was faced with this challenge and therefore urgently needed a house in Kumasi. 10. Nana Akwasi Asamoah acquired the house in dispute for the stool which henceforth became the house in which the household of the Adwumakase stool came to dwell anytime they came to Kumasi to grace ceremonial events organized by the Asantehene. [50] In spite of the above averments, neither the Plaintiff nor any of his witnesses was able to give even one instance when either Nana Akwasi Asamoah or any of the succeeding chiefs ever used the disputed property during any ceremony at the Otumfuor’s palace. There is also adequate proof that Nana Akwasi Asamoah himself never lived in the disputed house; and that it was the original 1st Defendant as well as the JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 32 brother of Nana Akwasi Asamoah and also Nana Akwasi Asamoah’s nephew, together with their families who lived in the disputed house. It therefore appears to me that the house was filled with the relatives of Nana Akwasi Asamoah, whom he had put in occupation of the premises himself, right at the onset of the acquisition of the disputed property; and none of the chiefs who succeeded Nana Akwasi Asamoah appeared to complain. Under cross-examination, the Plaintiff admitted as below: Q: Are you aware or not that during the lifetime of Nana Kwasi Asamoah, his wives and children were living in the house? A: I am aware, my Lord. They were living there. The Plaintiff additionally stated: Q: I am putting it to you that this house in dispute is the self – acquired property of Nana Akwasi Asamoah. A: That is true; but he gifted it to the stool and asked all relatives to come and stay in it if they wanted. [51] There is again no iota of evidence that a gift of the disputed house was ever made to the stool; and neither the Plaintiff nor any of his witnesses led any evidence to establish this so-called gift. In the case of KOJO v. ANANE AND ANOTHER [1956] 1 WALR 131, Benson J. held: JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 33 One of the essential elements of a valid gift of immovable property in native custom is publicity: in the case of gifts to a stool this publicity should be established by evidence from the elders of the stool. The Plaintiff, I find, did not call any elder(s) of the stool. Therefore, the only act which I found any of the chiefs exercised to demonstrate some form of authority over the disputed property was when the Plaintiff contended that Nana Osei Hwedie, attempted to eject everyone in the house in order to renovate same; but he did not appear to have succeeded in that venture because the Defendants herein were said to have resisted that attempt. PW3 categorically informed the Court that his father acquired the disputed house before he ascended the throne. There is therefore no evidence before this Court to establish that the disputed property was acquired by Akwasi Asamoah for the Wadie Adwumakase stool. [52] I rely on the case of ADJUBI v. MENSAH [1974] 1 GLR 93-100, where the Court of Appeal, per Lassey JA (as he then was) held: I think that in the absence of any evidence that the common ancestor of the parties intended to make a customary gift or did make an outright gift of these properties to the customary office he created in the family, it seems no principle of law can divest his family of the ownership of the properties after his death. The learned Justice continued to state: The rigid application of the rule of customary law relating to a stool occupant's self-acquired properties after death has been found to reveal JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 34 disturbing features and worked great injustice in practical cases, and so the courts have felt the need to impose some qualification in its application in certain respects. Thus, in a case in which it can be shown that the new chief has by word or conduct indicated that he intends to keep his privately-owned properties, effect is now given to the evidence as a matter of fact, instead of the court acting on a general principle of customary law that property belonging to a chief while on the stool belongs to the stool upon his death or deposition. It seems that the view of the courts now as shown in some of the decided cases such as Yamuah IV v. Sekyi (1936) 3 W. A. C. A. 57, Acquah III v. Ababio (1948) 12 W. A. C. A. 343 and Serwah v. Kesse [1960] G. L. R. 227, S. C. is that henceforth the courts must seek to dismiss the stringent application of the rule, in favour of attaching much importance to the weight of the evidence, and make a finding of fact as to whether the intention is to keep the properties in the family or give them up to the traditional office or stool. (Emphasis is mine) [53] Relying on the above, I find that the Plaintiff was unable to establish that any occupant of the stool, after Nana Akwasi Asamoah took absolute control of the disputed property, even though it was listed in an inventory of the stool. The listing of the disputed property alone, in an inventory made after the death of Nana Akwasi Asamoah, is unfortunately not substantial proof that the disputed property is stool property, especially where it has been established that the property was acquired by Akwasi Asamoah before he ascended the JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 35 throne and that at all material times, individual members of his family and his children lived therein, even after other occupants had succeeded the throne. [54] Furthermore, I find that some of the exhibits in the Exhibit 9 to 12 series demonstrate expressly that the late Akwasi Asamoah registered deeds of mortgage with the disputed property on the 19th December 1946, the 19th of February 1947 and the 31st of May 1948 among others, and further reassignment into the name of Akwasi Asamoah. Before he became chief therefore and even afterwards, it is clear that Nana Akwasi Asamoah dealt with the disputed property as his self-acquired property, and there is indeed no iota of evidence that the disputed property was transferred to the Wadie Adwumakase stool. [55] Indeed, section 44 of the Chieftaincy Act, 2008, Act 759 defines stool property as follows: Stool property consists of the following (a) the stool itself and all the insignia of that stool, (b) any other movable and immovable property handed over or declared as stool property to the chief on installation; and (c) any property movable or immovable acquired as stool property or with stool resources after the installation of the chief. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 36 In the case of ANIN v. ABABIO AND OTHERS [1973] 1 GLR 509-517, the Court held that From the definition of stool property in Act 370, … it followed that what a stool occupant acquired not as stool property might be his own, and the criterion for adjudication was whether there was proof that it was his self-acquired property. Thus, if there was any presumption that property acquired whilst on the stool was stool property, it was no more than a rule of evidence. Further, the Plaintiff herein did not also adduce even one iota of evidence to establish that the disputed property was acquired with resources of the stool. Acquiring the disputed property with stool resources is very easily capable of positive proof; but I find that the Plaintiff and none of his witnesses were able to establish that the disputed property was acquired for the Wadie Adwumakase stool. I therefore hold that insufficient evidence has been adduced to enable this Court arrive at the conclusion, even on a balance of probabilities that the disputed property, H/No. O. I. 156, Ashanti New Town is the property of the stool family of the Plaintiff. [56] I proceed to deal with the following issues: 3. ISSUES THREE (3), FOUR (4) & TEN (10) JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 37 3. Whether or not Nana Osei Hwedie who subsequently became the chief of Wadie Adwumakase occupied property number O. I. 156 Ashanti New Town, Kumasi at the permission of the Defendants. 4. Whether or not Nana Osei Hwedie occupied the subject property in his capacity as the chief of Wadie Adwumakase and a successor to Nana Akwasi Asamoah. 10. Whether or not the Chiefs of Wadie Adwumakase who ascended the stool after the death of Nana Akwasi Asamoah lived in the subject house. [57] Once I have found that the disputed property has never been and is not the stool property of the Wadie Adwumakase stool, it is immaterial now to determine the capacity in which any chief resided in the disputed property. This is because even if Nana Osei Hwedie did reside in the disputed property, he clearly resided therein under the erroneous impression that the disputed property was stool property. Further, apart from Nana Osei Hwedie whom the Defendants admit stayed in the disputed house for a couple of years, I find that the Plaintiff led no evidence to support his oral averments that any of the chiefs who succeeded Nana Akwasi Asamoah ever lived in the disputed property. Indeed, I wonder if any of the chiefs did because the stool was in Wadie Adwumakase and the disputed property in is Kumasi. The evidence is also clear that Nana Akwasi Asamoah acquired a palace for the stool in Wadie Adwumakase. It is therefore more probable than not that it was because Nana Osei Hwedie was a teacher and needed a place to stay in Kumasi to facilitate JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 38 his teaching; and that was why he went to stay in the disputed house, as the Defendants contended; and not because the disputed house was acquired for the stool. [58] From the totality of the evidence adduced before me therefore, the Plaintiff, I hold, was not able to satisfactorily establish to this Court that the disputed property was acquired after Nana Akwasi Asamoah had ascended the throne and further that it was acquired for the Wadie Adwumakase stool with stool resources. I am thus unable to hold that the disputed property is the property of the Wadie Adwumakase stool. I deal with the final set of issues thus: 4. ISSUES ELEVEN (11), TWELVE (12) & THIRTEEN (13) 11. Whether or not title to the subject property has ever been decreed in the Defendants. 12. Whether or not the application for Letters of Administration by the Defendants was done fraudulently. 13. Whether or not the Plaintiff is entitled to his claim. 14. Any other issue raised from the pleadings. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 39 [59] The above issues, I find, are not worth discussing now as a result of the conclusion arrived at by this Court, that the disputed property cannot be said by this Court to be stool property of the Wadie Adwumakase stool. Once I have found the disputed property is the personal and self-acquired property of Akwasi Asamoah or Nana Akwasi Asamoah, and it is clear that he died intestate, the disputed property falls into intestacy, and it is only the immediate family of the late Nana Akwasi Asamoah who are entitled to apply for letters of administration in respect of the disputed property. [60] Order 66 of the High Court (Civil Procedure) Rules, 2004, CI 47, provides at rule 13 thus: Rule 13—Order of Priority of grant where a Person Dies Intestate after Enactment of P. N. D. C. L. 111 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 to a grant of letters of administration in the following order of priority (a) any surviving spouse; (b) any surviving children; (c) any surviving parents; (d) the customary successor of the deceased. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 40 [61] The Plaintiff herein has not been able to demonstrate to this Court that he is a member of the immediate family of Nana Akwasi Asamoah or that he falls within the category of persons entitled to a grant of letters of administration with respect to the disputed property. The Defendants are clearly the children of Nana Akwasi Asamoah; and it was upon her death that the 1st Defendant was substituted by her son. I am therefore reluctant to deal with the Plaintiff’s issue of whether or not the letters of administration obtained by the Defendants in respect of the disputed property was fraudulently obtained because in my candid opinion, the Defendants appear to be in the category of persons entitled to a grant. Therefore, having concluded that the disputed property is not stool property and until the Plaintiff herein is able to establish his capacity to challenge the letters of administration, I do not deem it necessary to dwell on the letters of administration obtained by the Defendants, be it fraudulent or otherwise. [62] Indeed, the particulars of fraud laid out by the Plaintiff were as follows: i. The Defendants deposing in the affidavit accompanying the application for Letters of Administration that they are sisters to the late Nana Kwasi Asamoah even though they are his children. ii. The Defendants deposing that they are members of family of the late Kwasi Asamoah when they knew that was not true. iii. The 1st Defendant posing as the head of family of the late Nana Kwasi Asamoah when she was not even a member of his family. JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 41 The Plaintiff thus admits that the Defendants are the children of Nana Akwasi Asamoah, and they are obviously entitled to a grant of letters of administration. It also does not appear that any of the other surviving children have challenged the Defendants herein, and until then, it could only be the case that the Defendants, children of the deceased, are entitled to the grant. L. CONCLUSION [63] For the above reasons, I find that the Plaintiff has not been able to establish, even on a balance of probabilities that he is entitled to the reliefs he seeks. I would therefore have to dismiss the entirety of the Plaintiff’s claims and they are hereby dismissed. I will award nominal costs of Gh¢10,000.00 against the Plaintiff herein and in favour of the Defendants, considering the circumstances of this case and the relationship between the parties. SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘6’ GENERAL JURISDICTION KUMASI, ASHANTI REGION. 10TH NOVEMBER 2023. COUNSEL: JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 42 ASANTE KROBEA ESQ WITH STEPHEN WEREKO BROBBEY FOR THE PLAINTIFF ASAMOAH FRIMPONG RICHMOND HOLDING WILLIAM KUSI’S BRIEF FOR THE DEFENDANTS JUDGMENT - NANA WADIE ASSIM II V YAA SERWAA & 1 OR 43