ADZRAKU VS ADRZKU & ANOR (PA/487/2020) [2023] GHAHC 530 (15 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX, PROBATE AND L/A DIVISION, COURT ‘1’ HELD IN ACCRA ON 15TH DECEMBER 2023 BEFORE HER LADYSHIP JUSTICE EUDORA CHRISTINA DADSON. -------------------------------------------------------------------------------------------------------------------- SUIT NO: PA/487/2020 MABEL DOMPREH ADZRAKU (Customary Successor of both Stephen } } Tsifodze Adzraku and Victoria Ami Setrana, }…… PLAINTIFF for and on her own behalf) Nungua, Accra. VS 1. WINSTON ADZRAKU H/NO. UNKNOWN, NUNGUA. } } } } 2. WISDOM KORSI ADZRAKU H/NO. UNKNOWN, ASHALLEY BOTWE } } }….. DEFENDANTS --------------------------------------------------------------------------------------------------------------------- PARTIES: PLAINTIFF PRESENT 1ST DEFENDANT REPRESENTED BY EUGINIA ADZRAKU 2ND DEFENDANT DECEASED COUNSEL: JOCELYN EDZIE FOR KORBLA HLORTSI-AKAKPO FOR THE PLAINTIFF PRESENT SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT RICHMOND KORLEY FOR THE DEFENDANTS PRESENT -------------------------------------------------------------------------------------------------------------------- JUDGMENT --------------------------------------------------------------------------------------------------------------------- [1] Introduction and summary of facts It is apposite to rely on the erudite exposition of the law by Her Ladyship Mensa-Bonsu, JSC in KASSEKE AKOTO DUGBATEY SAPPOR & 2 ORS (SUBSTITUTED BY ATTEHSAPPOR) VRS VERY REV. SOLOMON DUGBARTEY SAPPOR (SUBST. BY EBENEZER TEKPETEY AKWETEY SAPPOR) AND 4 ORS. [2021] DLSC 10042 at page 14-15. Her Ladyship stated thus: “As a local proverb loosely translated goes, “However long a fallen tree trunk stays submerged in a stream, it does not thereby become a crocodile.” This simply means that long association with a family does not render one a member without more. A person who has not been formally adopted into a family cannot claim rights of membership…However, there is a difference between ‘fostering’ and ‘adoption’, and while the former transplants a child from one family into another, the latter does not. Therefore, there must be evidence of such adoption where it forms the basis of one’s claim to membership of a family and not merely one’s say so. It is common for members of a family to foster the children of vulnerable children of poor members of the family by taking them in and raising them as their own, but this neither alters the child’s parentage nor divests the original parent of parental rights over the child. Where the child by customary law belongs to the family of the non-custodial parent, care and support from the custodial family does not extinguish membership of the original family. Therefore, the length of stay or association with a family does not make one a member unless definite steps are taken to effect customary adoption…A mere statement that his grandfather adopted him and added the ‘Dugbartey Sappor’ to his name was not sufficient to establish his membership of that family.” SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT [1.1] The Action The Plaintiff issued a Writ of Summons and an accompanying Statement of Claim on 14th January, 2020 against the Defendants and same was amended on 7th December, 2021 for the following reliefs: a. “A declaration that the Will purportedly executed on 19th April, 2016 by the late Stephen, fraudulent as the said Will had not made reasonable provisions for the late VICTORIA nor PLAINTIFF HEREIN. b. Declaration that the properties, the subject-matter of the instant action is a property jointly owned by the late STEPHEN, late VICTORIA and Plaintiff herein. c. An order of the Honourable court making reasonable provisions for the Deceased VICTORIA and PLAINTIFF herein out of the properties aforementioned. d. Perpetual injunction restraining the Defendant herein, their servants, agents, assigns or privies and customary successors from entering or having anything whatsoever to do with the said properties, until final determination of the instant action. e. General damages. f. Cost, including Solicitor’s fees. g. Any further or other reliefs as the Honourable court may deem fit.” The Defendants entered appearance on 29th January, 2020 and filed their Statement of Defence on 21st May, 2020. The 2nd Defendant subsequently died and he was not substituted. [2] The Plaintiff’s Case The Plaintiff testified through her lawful attorney under oath that he has been a very close Associate of the family of the late Stephen Kofi Tsifodze Adzraku and his wife, the late Victoria Ami Setrana and their child the Plaintiff. It is the case of the Plaintiff that she is the customarily adopted daughter of the late Stephen having been adopted by the late Stephen when he married the late Victoria. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT It is the case of the Plaintiff that she is the customary successor of her deceased parents. The late Stephen added the name Adzraku to the Plaintiff’s name before enrolling and caring for Plaintiff through various schools. The Plaintiff’s lawful attorney further testified on oath that the late Stephen’s conduct towards the Plaintiff’s husband and children showed that he considered the Plaintiff his daughter, husband, son-in-law, and children, grand-children and in the obituary notice the above designations was reflected on it. The obituary notice was tendered in evidence by Plaintiff’s Lawful Attorney as Exhibit D. According to the Plaintiff’s Lawful Attorney when the Plaintiff started the process of obtaining Letters of Administration in respect of the estate of her parents she was handed a Will purportedly executed by the late Stephen on 19th April 2016. Probate had been granted to the Executor and Trustee. The 1st Defendant was the Executor of the estate of the deceased. The Will and Probate was tendered in evidence as Exhibit E. The Plaintiff’s Lawful Attorney testified on oath as follows: “I must state that the plaintiff nor her late mother have not been reasonably provided for in the purported will afore-mentioned. The Plaintiff found the said purported Will very unreasonable and on account of having not provided for Victoria whom he married for 23 years and whom he had predeceased.” According to Plaintiff’s Lawful Attorney two parcels of land labelled as H/No A. 490/1, Tabora, Accra with houses on it have been devised in the Will. The properties are jointly owned by three persons namely the Plaintiff, late Stephen and late Victoria. It is the further case of the Plaintiff that the late Stephen suffered a stroke which had disabled both hands and he could neither read nor write or sign any document until his demise on 22nd August 2016 aged 64 years. [3] The Defendant’s Case SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT The 1st Defendant testifying per his adopted witness statement stated that the Plaintiff, late mother Victoria Ami Setrana and his late brother Stephen Adzraku cohabited for some years. The 2nd Defendant(deceased) was their head of family. It is the case of the Defendants that they hail from Anloga and under Anlo custom after the funeral of a deceased person the family convenes a meeting to render accounts and appoint a customary successor. After the funeral of his late brother, the family did not appoint Plaintiff as the customary successor of the deceased and she therefore lacked capacity to sue. It is the further case of the Defendants that the Plaintiff was not customarily adopted by the deceased Stephen Adzraku. Plaintiff’s parents are Mr. Dompreh and Victoria Ami Setrana. The Defendants states that their late brother and Plaintiff’s late mother never got married and the inclusion of Plaintiff’s name (Mrs Mabel Dompreh Botchway) as a child in his late brother’s obituary does not confer the status of a child on her. The 1st Defendant contend that with the exception of the metal container all the properties listed as joint properties are the self-acquired property of the late Stephen Adzraku. It is the case of the 1st Defendant that a customary mediation was held in 2015 which was presided over by Torgbui Duho II, Plaintiff’s lawful attorney. It was found out that properties listed in paragraph 13 with the exception of the metal container were the self- acquired properties of the deceased. The 1st Defendant tendered in evidence Exhibit 1 – decision of the alleged customary arbitration. It is the further case of the 1st Defendant that the deceased did not die of stroke but a heart condition, was of a sound mind and could recognize the people who visited him. According to the 1st Defendant the Will was prepared by Lawyer Ebenezer Ahumah Djietror. The 1st Defendant testified per his adopted witness statement as follows: SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT “My brother acquired the land at Chantan near Lapaz and had gone far with the construction of the house before he met and cohabited with Plaintiff’s mother (Victoria Ami Setrana). The house at Chantan is the self-acquired property of my late brother and not a joint/family property as Plaintiff has stated”. [4] Issues At the close of pleadings on 16th June, 2022 the following issues were set down by the Court for determination of the controversy between the parties: a. “Whether or not the disputed property is the property acquired during the pendency of marriage between the late STEPHEN KOFI TSIFODZE ADZRAKU and the late VICTORIA AMI SETRANA. b. Whether or not the purported will of the late STEPHEN KOFI TSIFODZE ADZRAKU dated 19/04/16 has made reasonable provision for the late VICTORIA AMI SETRANA. c. Whether or not the Plaintiff herein is a customarily adopted child of the late STEPHEN KOFI TSIFODZE ADZRAKU. d. Whether or not the purported Will of the late STEPHEN KOFI TSIFODZE ADZRAKU dated 19/04/16 has made reasonable provision for MABEL DOMPREH ADZRAKU.” After setting down the above issues, the Court ordered the parties to file their respective witness statements and attach all documents they intended to rely on. The parties duly complied and after the mandatory Case Management Conference the matter was set down for trial. Plaintiff’s lawful attorney testified and called one witness Gilbert Kofi Ametame. The Defendant’s evidence was proffered by the 1st Defendant and Mrs Justine Aku Awudetsey. [5] Standard of proof and burden of proof SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT The law is trite and same supported by statute that for a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the court to the standard prescribed by law. This position is supported by various provisions of the Evidence Act 1975 (NRCD 323). Section 14 of NRCD 323 provides as follows: “(14). Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. The burden of producing evidence by the Plaintiff in the suit as well as the burden of persuasion is one to be determined on the preponderance of probabilities as defined by Section 12(2) of the Evidence Act, 1975 (NRCD 323). The law on proof is, in civil cases like the instant quite clearly stated in sections 10(1) (2) (b), 11(1) (4), 14 and 17 of the Evidence Act, 1975, NRCD 323. In Okudzeto Ablakwa (No. 2) vs. Attorney General & Attorney [2012] 2 SCGLR 845 At 867 the Court explained the law governing proof when it stated that: “If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…” It is also trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case; See Sections 10 – 17 of the Evidence Act, 1975 (NRCD 323). I note that there is no paucity of case law interpreting the provisions of NRCD 323. In Ababio v. Akwasi IV [1994-95] GBR, PART 11, 74 the Court stated that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. Also see in Re Ashalley Botwe Lands: Adjetey Agbosu & Ors v Kotey & Ors [2003-04] SCGLR 420 which further elucidate the burden of proof as statutorily provided. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT The law is thus clear that in circumstances such as the instant one, the Plaintiff is under obligation to introduce and lead credible evidence in proof of her claim. In this regard, the Plaintiff bears the burden of proof and must persuade the Court by establishing a requisite degree of belief in the mind of the Court that her claims are legitimate and should be granted. The degree of proof required is proof on the preponderance of probabilities. I shall now proceed to examine the evidence adduced in support of the Parties case and will relate same in the context of the standard of proof I have already set out in this judgment. [6] The Court’s evaluation of the evidence The Court shall determine the main issues as set out above based on the facts and evidence adduced at the trial. Indeed, it is the policy of the law that only those issues that are germane to the determination of a case must be decided by the Court and not irrelevant issues although the parties might have led evidence on them. See the case of DOMFE v ADU (1984-86) 1 GLR 653. [6.1] Issue c - Whether the Plaintiff herein is a customarily adopted child of the late Stephen Kofi Tsifodze Adzraku. The Plaintiff has pleaded that the late Stephen customarily adopted her when she was about 10 years old soon after late Stephen was married customarily to her mother and which marriage lasted for about 23 years. Plaintiff further averred that after the said adoption, late Stephen added the name Adzraku to her name before enrolling and caring for her through various schools and the schools are Zion College, Anloga, Social Advance Institute, Accra and Grace Secretariat School, Accra. The Plaintiff asseverated as follows: “Plaintiff avers that when Plaintiff was to be married in 2006, it was the late Stephen who received and kept the Dowry presented by Plaintiff’s would-be husband and family, all in the capacity as SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Plaintiff’s father. Plaintiff says that Plaintiff’s name was also included in the obituary of the late Stephen as his daughter and Plaintiff’s children were also included as the late Stephen’s grandchildren.” The Defendants have categorially denied the issue of the customary law adoption and pleaded in their Statement of Defence filed on 21st May 2020 that the Plaintiff was never adopted at custom as a child of Stephen Adzraku(deceased)1. The Defendants averred that the mere inclusion of Plaintiff’s name as a child of the deceased in the obituary does not confer on the Plaintiff the status of a child. In the instant matter, Plaintiff’s claim to being an adopted child of the late Stephen is traced through customary law. Her claim is denied by the Defendants. A duty is thereby imposed on Plaintiff’s to establish the claim that she was customarily adopted by the deceased. What is customary law adoption? Adoption may be either by customary law or under statute. See the Children’s (Amendment) Act, 2016 (Act 937). My present analysis is however limited to the customary law requirements for a person to qualify as having been adopted. There is a clear distinction between a foster child and an adopted child. An appreciation of the distinction between the two spells out the rights and benefits to be derived in either situation and the obligations by law imposed on the adopted or foster parent. Authority on what constitutes customary law adoption is not lacking as our jurisprudence is replete with decisions of the courts on the issue. In Poh vs Konamba (1957) 3 W. A. L. R. 74, the point was emphasized that by custom, the effect of adoption is that of assimilating the adopted person for all purposes into the adopting family and in Tanor vs Akosua Koko [1974] 1 GLR 451 the Court of Appeal held that the “essential requirements for the 1 Paragraph 5 of the Statement of Defence filed on 21st May 2020 SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT adoption of an infant into a family in accordance with customary law were the consent of the child's parents and the expression of the adopter's intention to adopt the infant before witnesses2”. The learned Author W. C. E. Daniels in his authoritative text/book, The Law of Family Relation in Ghana3 posited on customary law adoption as follows: “Before the Adoption Act the law recognised adoption at customary law only. To make adoption valid, it must be done publicly, and the person who wishes to adopt must not only get the consent of the family and the parents whose child is about to be adopted, but he must clearly state before witness his desire and intention”. In the case of Kasseke Akoto Dugbatey Sappor & 2 Ors (Substituted by Attehsappor) vrs Very Rev. Solomon Dugbartey Sappor (Subst. By Ebenezer Tekpetey Akwetey Sappor) and 4 Ors. [2021] DLSC 10042 at page 14-15. Her Ladyship Mensa-Bonsu JSC opined as follows: “How can a person who is acknowledged to be a member of a family not be qualified to inherit property from the family, but can fight to protect it? As a local proverb loosely translated goes, “However long a fallen tree trunk stays submerged in a stream, it does not thereby become a crocodile.” This simply means that long association with a family does not render one a member without more. A person who has not been formally adopted into a family cannot claim rights of membership. Adoption is known to customary law as cases such as Poh v Konamba (1957) 3 W. A. L. R. 74; Tanor v Akosua Koko [1974] 1 GLR 451’ ; Plange v Plange (1968) CC 88; as well as Saakyi Mami v Dede Paulina [2005-2006] SCGLR 1116, all affirm. However, there is a difference between ‘fostering’ and ‘adoption’, and while the former transplants a child from one family into another, the latter does not. Therefore, there must be evidence of such 2 PLANGE v. PLANGE [1977] 1 GLR 312: “The essential requirement for a valid adoption, were the expression of the adopter’s intention to adopt the infant before witnesses and the consent of the child’s natural parents and family to the proposed adoption- such consent to be objectively ascertained or inferred from either their express words or conduct”. 3 Page 274 SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT adoption where it forms the basis of one’s claim to membership of a family and not merely one’s say so. It is common for members of a family to foster the children of vulnerable children of poor members of the family by taking them in and raising them as their own, but this neither alters the child’s parentage nor divests the original parent of parental rights over the child. Where the child by customary law belongs to the family of the non-custodial parent, care and support from the custodial family does not extinguish membership of the original family. Therefore, the length of stay or association with a family does not make one a member of the family unless definite steps are taken to effect customary adoption. Not having led any evidence to establish his locus in the family, he must have known that he was on slippery ground and that his capacity risked being jeopardized if the two new co- plaintiffs decided to opt out.” The consent of the child’s parent and the expression of the adopter’s intention to adopt the child before witnesses i.e. publicity is essential to prove customary law adoption. Also see the following cases on customary law adoption: - Abdul Rahman Osumanu Giwah Alhaji Ali Adamu Giwah and Hajia Fatima Alhassan [2013] DLSC 2745 - Patrick Ankomayi and Gyimiamah Ankomayi vs Hannah Buchman and 2 other dated 26th February 2014 Therefore the Plaintiff’s having lived with the deceased and her late mother does not translate into customary law adoption if the requirements under the cases stated supra for a valid customary law adoption are not complied with. The Plaintiff essentially reiterated her pleadings in the witness statement of her lawful attorney. Plaintiff’s lawful attorney tendered in evidence Exhibit C which is a photograph and Exhibit D. Exhibit D is the Obituary Notice of the late Stephen where the Plaintiff is listed as one of the children of the deceased Stephen and her children Nandy and Nannett Botchway listed as grandchildren. The Plaintiff’s husband is also listed as Son-in-law. Does Exhibit C and D amount to proof that the Plaintiff is the customarily adopted SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT daughter/child of the late Stephen? I do not think so particularly if no evidence is led by the Plaintiff to show the definite steps taken to effect customary law adoption. In the Kasseke Akoto Dugbatey Sappor & 2 Ors (Substituted by Atteh Sappor) case stated supra, Her Ladyship Prof Mensa-Bonsu stated inter alia “Therefore, the length of stay or association with a family does not make one a member of the family unless definite steps are taken to effect customary adoption… A mere statement that his grandfather adopted him and added the ‘Dugbartey Sappor’ to his name was not sufficient to establish his membership of that family.” PW1 was Gilbert Kofi Ametame who states he had a long-standing cordial relationship with the late Victoria. He did not lead any direct evidence on the steps the late Stephen allegedly took to customarily adopt the Plaintiff. A crucial element in customary law adoption is publicity. Is Plaintiff saying that no family member of the deceased Stephen witnessed the public/private ceremony where she was customarily adopted? Plaintiff’s lawful attorney only repeated his averments under oath. Does adding the family name of the deceased to the Plaintiff’s name amount to customary law adoption? I do not think so. Turning to the instant suit and scanning the facts within the crucible of the requirements to satisfy, for customary adoption to be established, it is evident Plaintiff introduced no evidence to prove her claim. The 1st Defendant has rather admitted under cross – examination that there has never been any occasion when Plaintiff was adopted by deceased. Excerpts from the cross-examination 1st Defendant by Counsel for Plaintiff on 7th June 2023 is relevant and same has been reproduced below for ease of reference: “Q: The obituary and program for the burial of the late Stephen was put together by the late Stephen’s family not so? A: I disagree, the obituary was compiled not by the whole family. Q: Were you involved in putting together the obituary and the program for the funeral? A: No My Lady, I was not involved. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Q: The section of the family which compiled the obituary included or stated the late Victoria A: Q: A: Q: as a widow of the late Stephen I put it to you. I agree but that was a mistake. In the same obituary, the Plaintiff was included as a child of the deceased, I put that to you. I agree but it was a mistake. I put it to you that because the family knew the Plaintiff and the late Victoria were the daughter and wife of the late Stephen, they included them in all the phases of the planning and the burial. A: I disagree. I earlier stated that it was a mistake and the time the family got to know the names were included, it was too late and they could not go back to reprint it. Q: A: I put it to you that all that you just said is an afterthought. I strongly disagree it is not an afterthought.” Excerpts from the cross-examination of Plaintiff’s lawful Attorney by Counsel for Defendants on 1st June 2023 is relevant: “Q: Per your power of attorney the Plaintiff’s name is Mabel Dompreh and not Mabel Adzraku. A: Mabel’s full name is Mabel Dompreh Adzraku. Q: A: I put it to you that per your own power of attorney Plaintiff’s name is Mabel Dompreh. It might have been a typographic error because all along in the documents Adzraku is added to Mabel. Q: Per your own Exhibit D the obituary the Plaintiff’s name is Mrs Mabel Dompreh Botchway. A: That is very true because Mabel got married to Botchway so under the circumstance Adzraku got missing from her initial name. Q: You will agree with me that there is no Adzraku in the name but the name Dompreh is there. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT A: As I have already said her name was Mabel Adzraku Dompreh but when she got married, she changed her name to her husband’s name that is the Botchway so the Adzraku got missing. Q: A: I put it to you that Adzraku has never been part of her names. There are some areas in the documents where Adzraku is added to Mabel’s name so therefore if in a case of the obituary where Adzraku was changed to Botchway to the best of my knowledge that does not mean Mabel never used Adzraku as her surname. Q: I put it to you that there is no official document before the court bearing the name Adzraku. I do not agree with you. You claim Mabel was adopted at custom not so? Yes my lady. A: Q: A: Q: Were you presented when she was adopted? A: Q: A: Q: A: Q: A: Q: No my lady. I am putting it to you that she was never adopted at custom. I strongly disagree. Do you know the origin of the Dompreh in the Plaintiff’s name? No my lady. Are you aware that is her biological father’s name? No my lady, the late Stephen Adzraku did not tell me that. I put it to you that Dompreh is the biological father of Mabel and that is why she bears that name. A: As I have already said the late Stephen Adzraku did not mention that to me he only introduced Mabel to me as child adopted at custom known and called Mabel Dompreh Adzraku Q: A: I put it to you that what you have just told the court is not correct. It is nothing but the truth. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Q: You claim to be a very close associate of the family, where you present at the Plaintiff’s A: Q: A: Q: marriage ceremony? No my lady. Has it come to your attention that Plaintiff’s biological father was present at the marriage ceremony? No my lady. Has it also come to your attention that the customary items due a father was given to Mr Dompreh during the marriage ceremony of Mable Dompreh? A: No lady, according to an information to me by the late Stephen Adzraku he Stephen Adzraku received the dowry from Mabel’s husband in the capacity as the father. Q: I put it to you that the customary items due a father were handed over to Mr Dompreh A: Q: and not Mr Adzraku. That is not correct. As a season traditional ruler you want this court to believe that after Plaintiff’s adoption she continued using the name of her biological father “Dompreh”. A: If that is what the late Stephen Adzraku liked because I never knew the Dompreh to be the Plaintiff’s biological father’s name, all that I know is the late Stephen Adzraku being Mabel’s father by customary adoption introduced to me by name Mabel Dompreh Adzraku. Q: As the Dufia of Glidzi in the Volta Region, you will agree with me that the name Dompreh is not part of the Adzraku family.” From the cross-examination above the Plaintiff’s lawful attorney does not know when and where the customary adoption ceremony took place for the late Stephen to formally adopt the Plaintiff in accordance with customary law. Defendants’ only witness was Mrs Justine Aku Awudetsey. She appeared in Court pursuant to a subpoena. She stated that she was the younger sister of the deceased and testified under oath that the Plaintiff was not adopted by her deceased brother. Below is extract of her evidence-in-chief on 13th June 2023: SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT “Q: Do you know Mabel Dompreh? A: Q: A: Yes I know her. How do you know her? She was a young girl who came with her mother to Chantan Stephen’s house. Q: Mabel claims to be an adopted child of your brother, what do you have to say about that? A: Mabel has never been adopted by my brother Stephen Adzraku, however, Stephen took care of her in school. He sent her to secondary school at Zion Collage of Education Ghana now is Zion Senior High School Angloga. When she completed school she came to Accra and went to Social Advance Institute in Accra. After some years she got married and at her traditional marriage I was not present but my brother Stephen was there and two of our nephews were present. I knew she was marrying that time so after the ceremony I asked my nephew how the ceremony went about and they told me it was fine and her father Mr Dompreh was there who collected her dowry. Stephen did not collect the dowry.” The Defendant and his witness are siblings of the deceased and they have denied that the late Stephen adopted the Plaintiff. Regrettable as it is, the evidence of the Plaintiff’s lawful attorney and PW1 under cross- examination does not assist the Court in the determination that the ingredients to establish customary law adoption has been satisfied. A key feature of customary law adoption is publicity. If indeed a ceremony of some sorts had been undertaken in respect of the customary law adoption are there not members, principal or otherwise of the deceased’ family who could be invited to give evidence to that fact? The Plaintiff’s lawful attorney merely repeated his averments on oath. Date-Bah JSC as he then was held in the case of T. K. Serbeh & Co Ltd v Mensah [2005-2006] SCGLR 341 at 360-361 that for, however credible a witness may be his bare affirmation on oath or the repetition of his averments in the witness box cannot constitute proof. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT I therefore find that the Plaintiff was not the customarily adopted daughter of the late Stephen. I resolve issue C against the Plaintiff. I shall proceed to deal with issues b and d since they are interrelated. [6.2] Issue b - Whether or not the purported will of the late STEPHEN KOFI TSIFODZE ADZRAKU dated 19/04/16 has made reasonable provision for the late VICTORIA AMI SETRRANA. Issue d - Whether or not the purported Will of the late STEPHEN KOFI TSIFODZE ADZRAKU dated 19th April 2016 has made reasonable provision for MABEL DOMPREH ADZRAKU [6.2.1] Mode of instituting action for reasonable provision under Section 13 of the Will’s Act By law and practice, there are three main modes by which a civil action is commenced in court namely; a. An Originating Notice of Motion; b. A Petition; and c. A Writ of Summons together with Statement of Claim. An action is commenced by an Originating Notice of Motion where a statute prescribed that it can by commenced by an application. In commencing the action, the applicant states the specific provision of the law or statute prescribing such action in the motion paper, the parties to the action, etc. accompanied by an affidavit in support. A petition just like an Originating Notice of Motion is used to commence an action where a statute provides that mode as a means of commencing an action in court. Any other action is commenced by a Writ of Summons and Statement of Claim. See Order 2 rule 2 of C. I. 47. It will be fatal for a party to choose the wrong mode in commencing an action than that prescribed by law. See the cases of The Republic v. The High Court, Winneba Ex parte SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT University Teachers Association of Ghana (UTAG) Winneba Chapter; Supi Kofi Kwayera and 2 Others (Interested Parties) Civil Motion No. J5/65/2017 by the Supreme Court, and The Republic v. High Court, Koforidua; Ex-parte Asare (Baba Jamal & Others Interested Parties) [2009] SCGLR 460. In the Ex-parte University Teachers Association of Ghana (UTAG) case, the Supreme Court did not hesitate to quash a decision of the High Court, Winneba refusing an application to set aside an originating Notice of Motion where the action ought to have been commenced by a Writ of Summons. Commencing an action therefore is an unforgivable offence. There is no discretion whatsoever to cure an action commenced by a wrong mode. Section 13 of Act 360 provides as follows. (1) If, on an application made, not later than three years from the date on which probate of the will is granted, the High Court is of the opinion The Act mentions application and not Writ of Summons. The deceased died on 22nd August 2016. Probate was granted to the 1st Defendant on 19th April 2018 and the Writ of Summons was issued on 14th January 2020. It is only relief C which borders on reasonable provision under S13 of the Wills Act. The relief is therefore competent. The scope of an application for reasonable provision under S 13 of the Wills Act, 1971, Act 360 Reginald Nii Odoi in his paper Contested Wills and Testaments In Ghana: Exploring The Legal Claim for Reasonable Provision For Dependants, UCC Law Journal, Volume 1 Issue 2, Dec 2021, Page 289 – 314 opined as follows: “It is very common to find in Wills that a testator may decide to dispose of his properties in a Will and in the process leave out one or more persons that others would have presumed the testator should make a disposition of property to. This mostly becomes glaring when a testator makes a Will and decides to leave little or no provision for dependants such as a spouse, child, parent and the like. An investigation into what may have accounted for the testator’s decision to leave out SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT some dependants may reveal elements of deliberateness on the part of the testator or forgetfulness in some other cases. The general rule, however, is that a testator is under no obligation to leave any fixed portion of his estate to his family. Thus, in the case of Banks v Goodfellow, Cockburn C. J. stated that: The law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion or power of the new ties, or artful contrivance or sinister influences, may lead to the neglect of claims that ought to be attended to, yet, instincts, affections and common sentiments of mankind may be safely trusted to secure on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, that could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law. The learned Chief Justice continued by saying that: It is obvious…that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties… The above legal position, notwithstanding, Ghanaian law does not leave dependants without a remedy. To relieve the family of the testator of unwarranted hardship36, the Republican Constitution of Ghana37 provides that “a spouse shall not be deprived of a reasonable provision of the estate of a spouse whether or not the spouse died having made a Will.” Similarly, the Republican Constitution of Ghana further provides that: (1) Parliament shall enact such laws as are necessary to ensure that – (b) every child, whether or not born in wedlock, shall be entitled to reasonable provision out of the estate of its parents; By these provisions, a duty is imposed on Parliament to ensure that a spouse or a child of a deceased testator is adequately provided for in the Will of deceased testator. Once such provision in the testator’s Will is absent, the law allows the spouse or child to seek redress from the Court for an order making reasonable provision out of the estate of the deceased spouse or parent. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT The Wills Act defines “a spouse” to mean “the wife or husband of a deceased person” and a “child” to include “a person adopted under any enactment for the time being in force relating to adoption, any person recognized by the person in question to be his child or to whom he stands in loco parentis, and in the case of a Ghanaian, includes also any person recognized by customary law to be the child of such person.” S13 of the Wills Act, 1971, Act 360 provides as follows: 13. Provision for dependants (1) If, on an application made, not later than three years from the date on which probate of the will is granted, the High Court is of the opinion (a) that a testator has not made reasonable provision whether in life or by will of the testator for the maintenance of a father, mother, spouse or child under eighteen years of age of the testator, and (b) that hardship will be caused, the High Court may, taking account of the relevant circumstances, despite the provisions of the Will, make reasonable provision for the needs of the father, mother, spouse or child out of the estate of the deceased. (2) Without prejudice to the generality of subsection (1), the reasonable provision may include (a) payment of a lump sum, whether immediate or deferred, or grant of an annuity or a series of payments, and (b) grant of an estate or interest in immovable property for life or a lesser period. The general rule therefore, is that the Court has no power to redraft a Will, or add words to it. The duty of the Court is to construe the Testator’s Will in accordance with the established rules of construction and not to make a new Will for him. To relieve the family of the testator from unwanted hardship, Section 13 of the Wills Act, 1971, Act 360 was enacted. This section confers a limited power on the court, “notwithstanding the SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT provisions of the Will”, to make a reasonable provision for the needs of the testator’s parents, spouse or children under 18 years of age out of his estate, where the testator had failed to make adequate provision for them. Before exercising this special power, however, the Court must be satisfied: a) That the applicant is a dependant of the testator; b) That the application has been brought within three years after the granting of probate of the will c) That the testator failed, either during his lifetime, or by his will, to make reasonable provision for the applicant; d) That the applicant is suffering, or likely to suffer hardship; and e) That having regard to all the relevant circumstances the applicant is entitled to support out of the estate of the testator. In the case of In Re Anim-Addo (Decd); Nkansah Alias Anane and Another v. Amomah-Addo And Another [1989-90] 2 GLR 67, the scope of S13 of the Wills Act was discussed: “S 13 of the Wills Act, 1971 (Act 360) provides that: 13.(1)If, upon application being made, not later than three years from the date upon which probate of the will is granted, the High Court is of the opinion that a testator has not made reasonable provision whether during his lifetime or by his will, for the maintenance of any father, mother, spouse or child under 18 years of age of the testator, and that hardship will thereby be caused, the High Court may, taking account of all relevant circumstances, notwithstanding the provisions of the will, make reasonable provision for the needs of such father, mother, spouse or child out of the estate of the deceased.” The widow of the testator brought a motion under section 13 (1) of the Wills Act, 1971 (Act 360) in the High Court, Accra praying the court for an order for financial provision to be made for herself and for her infant son aged eight. Counsel for the executors of the estate, the respondents, raised a preliminary objection that the application was not properly before the court because it SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT could only be brought under section 13 (1) of the Act when probate had been granted and that was yet to be done. It was also contended that as the executors had no access to the properties to enable them execute any orders that the court might make, the application was premature and the court had no power to consider the application. Held, dismissing the preliminary objection: when an executor was appointed by a will, he derived title from the will and the property of the deceased vested in him from the moment of the testator’s death, so that probate was said to have relation to the time of the testator’s death. Section 13 of the Wills Act, 1971 (Act 360), had its purpose: it was to warn beneficiaries and other persons claiming any interest in the estate of the testator or under the will to come forward within three years before the estate was shared out. Executors, unlike administrators, derived their power under the will and not from the grant of probate or letters of administration. The instant application for reasonable provision under section 13 (1) of the Act was therefore properly before the court and the court had power to entertain it even before the grant of probate. In the case of IN RE: ALLOTEY (DECD); ALLOTEY & ANOR. V OTOO & ANOR {1981} GLR 393 the court held as follows: On 9 September 1965, A made a nomination under the Pensions Ordinance, Cap. 30 (1951) Rev.), by which he apportioned his gratuity equitably amongst his three children born at the time. Subsequently he had two children with a second wife. The deceased made no alteration or amendment in the nomination paper. In the instant application for an order of variation of the nomination to enable all the five children to share the gratuity equally, counsel argued on behalf of the applicants that an analogy should be drawn between a nomination paper and a will since both were to take effect after death. He argued that since the court was empowered under section 13 (1) of the Wills Act, 1971 to make reasonable provision for the maintenance of dependants who had not been catered for, the nomination paper should be varied to include the two children left out. The three nominated SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT children resisted the application on the ground that such an order for maintenance should be made from other estate of the deceased. Held, dismissing the application: (1) the Pensions Ordinance, Cap. 30, under which a public officer had a discretion to make nominations in respect of his gratuity, did not give any discretion to the court to tamper with or vary the specific nominations of the deceased public officer. The applicants should therefore seek relief under section 17 of the Ordinance as amended by section 10 of the Pensions and Social Security (Amendment) Decree, 1975 (S. M. C. D. 8). (2) Where a court found out under the discretionary powers given it by the Wills Act, 1971 (Act 360), that no reasonable provision had been made for the maintenance of the dependants of a deceased person, the liability to make such provision for maintenance was in the same position as any other charge lawfully imposed on the estate. But where specific bequests had been made and there was residue then it would be ideal to make such statutory provision from the residue. A gratuity did not form part of the estate upon which the provision for maintenance under Act 360, s. 13 (1) could be charged. The position of an applicant under section 13 (1) of Act 360 was the same as any other creditor of the estate. The amount should be levied upon a fund which was attachable; a gratuity was not attachable. In the view of the court the exception made for maintenance under Cap. 30, s. 12 (2) should be in respect of gratuity which had not been granted to anyone by the deceased and had been paid to a successor or an administrator. Dictum of Vaisey J. in In re Simson (Decd.); Simson v. National Provincial Bank Ltd. [1950] Ch. 38 at pp. 44-45 cited. In the case of Akua Marfoa V. Margaret Akosua Agyeiwaa, Civil Appeal NO. J4/42/2012, 9TH NOVEMBER 2016, (unreported) Justice Yaw Appau delivered himself thus: The testator did not make any provision at all for one of his two wives in the said will though he did provide for the three children he begat with the said wife. This wife happens to be the Appellant herein. Being aggrieved after she had unsuccessfully challenged the validity of the will in the High SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Court, Appellant applied to the High Court, praying the court to make reasonable provision for her out of the estate of her late husband since she was not mentioned at all in the will. She did so on the authority of the Wills Act, 1971 [Act 360], particularly section 13(1) and then article 22 (1) of the 1992 Constitution... Article 22. (1) of our Constitution, 1992 also provides: “A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.” {Emphasis mine} From the above provisions of the Constitution, 1992, there is no doubt to the fact that the principles governing actions for claims under article 22 (3) are different from those governing actions under section 13 (1) of the Wills Act and article 22 (1) of the 1992 Constitution. While a claimant under article 22 (3) (a) and (b) must establish that the property in question was jointly acquired during the marriage without the need to prove contribution in any form in order to succeed, an applicant under section 13 (1) of Act 360/71 and article 22 (1) of the 1992 Constitution need not do so. What such an applicant needs to do is to show or establish that: 1. he/she was a surviving spouse; 2. he/she was dependent on the deceased spouse during the deceased’s lifetime; 3. the deceased spouse died testate but made no provision for him/her either in his/her lifetime or in the will; 4. he/she is likely to suffer hardship as a result of the testator’s failure to make any provision for him/her. There is no need for such a spouse to establish that the property, from which the reasonable provision is made, was jointly acquired during the marriage The Appellant, in her application before the trial court, did not indicate where she lives or stays to make a living, the work she does, her age, whether she is in any other difficulty apart from where to live or stay any time she goes to Akokoaso, etc. As the Court of Appeal rightly found, not much was placed before the trial court in the form of affidavit evidence to merit the orders the court made. The trial court, during its ruling, did not demonstrate that it considered any relevant SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT circumstances arising out of the application before it as the basis or foundation for its orders. To borrow the words of Gbadegbe, JA (as he then was), it appeared the trial judge proceeded with the matter, “as though the mere absence of a testamentary provision for the applicant in a case where her rival was provided for justified him in making an intervention under the law”. The trial court had it all wrong. The jurisdiction conferred on the Court in Ghana by Section 13 of the Wills Act is limited, and it is to be exercised with circumspection, for the court is required “to take account of all relevant circumstances notwithstanding the provisions of the will”. a) That the applicant is a dependant of the testator; b) That the application has been brought within three years after the granting of probate of the will c) That the testator failed, either during his lifetime, or by his will, to make reasonable provision for the applicant; d) That the applicant is suffering, or likely to suffer hardship; and e) That having regard to all the relevant circumstances the applicant is entitled to support out of the estate of the testator. Is the Plaintiff a child of the deceased, below 18 years and a dependant of the deceased? Regarding the Plaintiff, I have found supra that she is not a customarily adopted daughter of the deceased and she therefore does not qualify as a child of the deceased for reasonable provision out of the last Will and Testament of the late Stephen. The Plaintiff is above 18 years. The evidence does not directly state her age however her lawful attorney testified that Plaintiff got married in or around 2006 and that sometime in 2003 when Plaintiff was 22 the late Stephen secured a job for her. As the year 2020 when the case was instituted the Plaintiff had been married for 14 years. The Plaintiff’s lawful attorney has testified that the Plaintiff is a businesswoman. She is therefore not a dependant of the late Stephen. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT The inference I draw is that the Plaintiff is around 40 years and in terms of Act 360 does not qualify for reasonable provision out of the Last Will and Testament of the late Stephen K. T. Adzraku. Reasonable provision cannot be made from the estate of the late Stephen for Plaintiff because she is not a child biological or customarily adopted by the deceased, she is above 18years old and is also not a dependant of the late Stephen as she is said to gainfully employed. I therefore find that the Plaintiff is not entitled to reasonable provision out of the estate of the deceased. I resolve issue d against the Plaintiff. [6.2.2] Issue b is whether the purported Will of the late Stephen Kofi Tsifodze Adzraku made reasonable provision for the late Victoria Ami Setrana. Issue b raised an issue whether the application for reasonable provision is a cause of action which survives the death of a deceased person. In the case of Hammond v Odoi [1982-83] GLR 1215-1313 SC, Crabbe JSC at page 1233 defined a cause of action as “the facts or a combination of facts which gives rise to a right to sue”. It is also a settled rule of law which is often captured in the Latin maxim actio personalis moritur cum persona which literally means a personal right of action dies with the person. It must be pointed out that, this maxim does not only apply to actions in the nature of personal contracts and torts, but also actions of a criminal nature. The rule of law is that, no right or liability of a purely personal nature, dependent on the skill or qualification of one party, can be assigned by operation of law. In the case of Millicent Asare Boafo Vrs. Peter Ababio [2017-2020] 1 SCGLR 654 at pages 660-662 the Supreme Court dealing with whether actions in personam survived the parties to the action stated that, the case their position that the instant action against the original defendants is an action in personam and it terminated with the death of those Defendants. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT An application or relief for reasonable provision requires the Applicant to show that she is a dependant of the deceased, was not provided for either during the lifetime or per his Will suffering hardship or likely to suffer hardship. Section 13(2) of Act 360 provides the orders the Court can make: (2) Without prejudice to the generality of subsection (1), the reasonable provision may include (a) payment of a lump sum, whether immediate or deferred, or grant of an annuity or a series of payments, and (b) grant of an estate or interest in immovable property for life or a lesser period. If the Court is to make a grant of estate or interest in immovable property it is for life or a lesser period. If the grant is not in perpetuity, is this Court seized with jurisdiction to make an order for reasonable provision in respect of a dead person i.e. the Late Victoria? The answer is no. All this point to the irresistible conclusion that an application for reasonable provision is an action in personam and does not survive the death of the deceased. The date of death of the late Victoria is not clear from the evidence before the Court however Plaintiff’s lawful attorney testified under oath that “for the late Victoria whom the late Stephen had predeceased” (emphasis mine). I therefore draw the inference that the late Victoria died after the Late Stephen died on 19th April 2016. How can a dead person be dependant on the Late Stephen estate. At the time this action was instituted the late Victoria had died. I therefore find that an application for reasonable provision being an action in personam is a cause of action which does not survive the death of an intending applicant. I therefore resolve issue b against the Plaintiff. [6.3] Issue a: Whether or not the disputed property is the property acquired during SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT the pendency of the marriage between the late Stephen Kofi Tsifodze Adzraku and the late Victoria Ami Setrana Plaintiff relief C is for a declaration that the properties the subject-matter of the instant action is property jointly owned by the late Stephen, late Victoria and the Plaintiff. This relief is essentially an action for declaration of title to immovable property and same must be proven. Ghanaian law recognises ownership of the same piece of real property by two or more persons. Article 18 of the 1992 Republican Constitution of Ghana states that: “(1) Every person has the right to own property either alone or in association with others”. Section 40(3) of the Land Act, 2020, Act 1036 also acknowledges the legal position that two or more persons may jointly hold property as owners thereof. Nowhere in the law is there a requirement that such co-owners must in a position of consanguinity or affinity. Good title has been stated in Section 64(1) (c) of the Land Act 2020, Act 1036 to inter alia derive from a final judgement of a court of competent jurisdiction and Section 64 (2) of the Land Act (supra) provides the caveat that S64(1)(c) does not apply where there are conflicting judgments of courts of coordinate jurisdiction in respect of the same subject matter. Yaw Appau JSC (as he then was) in the Akua Marfoa’s case drew a distinction between Article 22(1) of the 1992 Constitution and Article 22(3). Yaw Appau JSC delivered himself thus: Article 22. (1) of our Constitution, 1992 also provides: “A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.” {Emphasis mine} SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT A proper reading of the whole of article 22 of the Constitution quoted above shows clearly that the legislative intent with regard to the provisions under clause (1) of the article in question is different from the one in respect of the provisions under clause (3). Though the two clauses fall under the same article; i.e. article 22, they speak different languages. There is nothing ambiguous about that. Clause (1) gives constitutional backing to section 13 (1) of the Wills Act, 1971 [Act 360] on the power of the court to make reasonable provision out of the estate of a deceased spouse in favour of a surviving spouse where the deceased spouse died testate but made no such provision. The rationale behind this provision is to avoid hardship being caused to a spouse who wholly depended on the testator during his/her lifetime, but in whose favour no provision was made by the testator either in his lifetime or in his last will and testament. The section does not talk about reasonable provision out of ‘matrimonial property’, or ‘marital property’, or ‘spousal property’, or property jointly acquired during the subsistence of the marriage. It talks about; ‘reasonable provision out of the ‘estate of a spouse’, which presupposes that the estate from which the provision is to be made belongs solely to the deceased spouse. The cardinal principle underlying this section is therefore that the estate must be that of the deceased spouse but not a joint estate acquired by the two. Clause (3), on the other hand, talks about distribution of property jointly acquired during marriage upon the dissolution of the marriage. It talks of distribution of property acquired during marriage upon dissolution of marriage but not upon death. Such property that is to be distributed is called; ‘spousal property’ or ‘marital property’ since it was jointly acquired during the subsistence of the marriage, irrespective of who contributes what or not. The major yardstick for equitable distribution is that the property was acquired by the two spouses in the course of their marriage. What article 22 (3) means was amply stated by this Court in Mensah v Mensah (supra) at page 393 thus; “it was quite clear that the provisions in article 22 (3) (a) and (b) of the 1992 Constitution had espoused the principle of having equal access to property jointly acquired during marriage and that of equitable distribution of such property upon divorce”. {Emphasis mine} SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT From the above provisions of the Constitution, 1992, there is no doubt to the fact that the principles governing actions for claims under article 22 (3) are different from those governing actions under section 13 (1) of the Wills Act and article 22 (1) of the 1992 Constitution. While a claimant under article 22 (3) (a) and (b) must establish that the property in question was jointly acquired during the marriage without the need to prove contribution in any form in order to succeed, an applicant under section 13 (1) of Act 360/71 and article 22 (1) of the 1992 Constitution need not do so. What such an applicant needs to do is to show or establish that: 1. he/she was a surviving spouse; 2. he/she was dependent on the deceased spouse during the deceased’s lifetime; 3. the deceased spouse died testate but made no provision for him/her either in his/her lifetime or in the will; 4. he/she is likely to suffer hardship as a result of the testator’s failure to make any provision for him/her. There is no need for such a spouse to establish that the property, from which the reasonable provision is made, was jointly acquired during the marriage.” This is a claim under Article 22(3) (a) and (b) of the 1992 Constitution and therefore the Plaintiff must establish that the properties in question was jointly acquired during the marriage in order to succeed without the need to prove contribution in any form in order to succeed. How did the Plaintiff prove this? Plaintiff’s lawful attorney repeated the averments under oath. The Plaintiff’s lawful attorney stated as follows: “It is the case of the Plaintiff that the said houses/properties as stated in the purported Will and located on the two adjoining parcels of land mentioned above were jointly owned or together by three (3 persons namely the Plaintiff herein the late Stepen and late Victoria). On both parcels of land there are a number of buildings on it4.” 4 Paragraph 17 and 18 of Plaintiff’s lawful attorney witness statement SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT The Defendants challenge Plaintiff’s assertion and testified that their late brother acquired the land at Chantan near Lapaz and had gone far with the construction of the house before he met and cohabited with the Plaintiff’s mother, late Victoria. The 1st Defendant testified that at a customary mediation held in 2015 presided over by Plaintiff’s lawful attorney Exhibit 1, it was found out that the properties listed in paragraph 13 except for the metal containers were the self-acquired property of the deceased. Exhibit 1 does not satisfy the requirement of terms of settlement emanating from a successful mediation because it was only one party I.e. Madam Victoria who signed the document. To be a valid settlement document all the parties to the mediation should sign. This Court in the case of Victor Adophus Tetteh vs Anna Lankai Mills [Suit No: PA/935/2019] 20th December 2022 faced with a similar issue held as follows per Eudora C. Dadson J: “This Court however finds that in the light of the legal provision of tenancy in common and joint persons the deceased Victor Adolphus Tettey, the deceased Edith Kai Tettey and Anna Mills Tettey, 1st Defendant herein hold Property known and numbered H/No.3, Garden/Mango Street and H/No. 4 Water Melon Street at East Legon, Accra as tenants in common and not joint tenants. Section 48(2) of the Evidence Act provides as follows: “A person who exercises acts of ownership over property is presumed to be the owner of it.” Section 35 of the Evidence Act provides as follows: “The owner of the legal title to property is presumed to be the owner of the full beneficial title”. I accordingly hold in the absence of evidence to the contrary that the deceased Victor Adolphus Tettey, the deceased Edith Kai Tettey and Anna Mills Tettey, 1st Defendant herein held Property known and numbered H/No.3, Garden/Mango Street and H/No. 4 Water Melon Street at East Legon, Accra in equal shares. Therefore, the late Victor Adolphus Tettey 1/3 share forms part of his estate. The late Edith Kai Tettey 1/3 share devolves unto her estate and the 1st Defendant is also entitled to 1/3 share. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT The difference between the Victor Adolphus Tettey case (supra) and this case is that there was a lease bearing the names of the deceased husband, deceased wife and the wife’s daughter. The burden was discharged. There is no documentary proof proffered by the Plaintiff in this case. Plaintiff’s lawful attorney testified per her adopted witness statement that “The Plaintiff and the late Stephen had had a strong father and child bond to the extent that the relevant documents respecting the land was kept in the custody of the Plaintiff herein. The Plaintiff also had on several occasions represented the late Stephen at Association of Residents/Landlords’ meetings at Chantan”. If the Plaintiff had the title documents in her custody why was same not placed before the Court by way of evidence? If the Plaintiff was indeed attending the meetings of the Association of Residents/Landlords Associations why no extrinsic evidence was not forthcoming from that angle as well? Was the land acquired during the subsistence of the marriage between the late Stephen and Late Victoria?. The Defendants tendered in evidence Exhibit 3 which is a site plan. It is titled “Property of Mr. Stephen Edgar Kofi Adzraku”. It has no date but signed by a licensed Surveyor”. This supports the contention of the Defendants that the property was acquired by the late Stephen solely. When did construction of the property start and complete? Is there no document covering the property in the joint names of the two deceased persons Stephen and Victoria? Are there no workers who can testify that the construction of the property was a joint enterprise between the deceased couple and the Plaintiff? Did the Plaintiff not obtain receipts for some of the purchases she allegedly make in respect of building materials and why was same not placed before the Court or reasons assigned for its non-production? Unfortunately the gaps in the Plaintiff’s evidence is screaming for attention. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Regrettably the evidence adduced on record did not meet the test as set out in the Marfoa’s case. The erudite judgment of Ollenu J (as he then was) in Majolagbe vs Larbi [1959] GLR 190 always gives guidance to the courts on how the burden of proof is discharged: “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 proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” The general position of the law is that he who alleges must prove same. In the case of Ababio v Akwasi III [1994-95] GBR 774 at 777 Aikins JSC (as he then was) expounded the position as follows: “The general principle of law is that it is the duty of a Plaintiff to prove his case, i.e., he must prove what he alleges. In order words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins; if not, he loses on that particular size.” Kpegah JA (as he then was) in the case of Zabrama v Segbedzi [1991]2 GLR 221 at page 246 stated as follows: “ a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averments or assertion is true. And, he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT The Plaintiff’s lawful attorney and witness merely mounted the witness box and repeated his averments under oath. I find that the properties the subject matter of the instant action is not jointly owned by the late Stephen, late Victoria and Plaintiff. I resolve issue a against the Plaintiff. [6.4] Issue e: Any other issue(s) arising from the pleadings in the instant suit Whether the Will of late Stephen Kofi Tsifodze Adzraku was fraudulent because reasonable provision was not made for the late Victoria or Plaintiff herein This issue was not set down by any of the parties and yet it emanates from the evidence before the Court and I shall therefore proceed to discuss same. As an issue, it does not raise any complex matters. But in determining the issue, one must look at the guidance laid down by case-law as to what burdens the parties carry and which particular burden is assumed by either of the parties. In the 1951 decision of the West African Court of Appeal of Johnson v. Maja (1951) 13 W. A. C. A. 290 at 292 it was stated: “Where there is a dispute as to a will, those who propound it must clearly show by evidence that, prima facie, all is in order; that is to say, that there has been due execution, and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the Court, prima facie, as to these matters.... the burden is then cast upon those who attack the will, and that they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence, and so forth.” The Plaintiff’s lawful attorney testified per his adopted witness statement as follows: “On or about 19th April 2016 I was informed about the fact that the late Stephen was so critically ill. When I visited him I noted that he suffered a condition generally known as stroke. As a result, he had disabled arms whilst both his hands were shaking and uncoordinated. In that case the late Stephen could not hold anything such as a writing pen. Therefore from my observation he could SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT not write nor read and thus he could not reasonably be expected to read nor write nor sign any document, till he sadly passed away on or about 22nd August 2016 at age 64.” Accordingly, as I see it, the evidential burden assumed by each side in view of the positions taken by the parties, is that the Defendants must show that the purported Last Will and Testament, is the testamentary wish of the Deceased Testator; that he was compos mentis at the date of its execution and was a free agent; and, lastly, that it was executed and attested in accordance with the requirement laid down in section 2 of the Wills Act, 1971 (Act 360). Upon showing this, the burden then shifts to the Plaintiff to prove the fraud and undue influence he alleges5. Sections 2 of the Wills Act are the relevant sections of the Act that will help us resolve this issue. It provides as follows: (1) No will shall be valid unless it is in writing and signed by the testator or by some other person at his direction. (2) No signature shall be operative to give effect to any disposition or direction which is underneath or which follows it, or which is inserted after the signature has been made. (3) The signature of the testator shall be made or acknowledged by him in the presence of two or more witnesses present at the same time. (4) A signature by some other person at the direction of the testator shall be made by that other person in the presence of the testator and two or more witnesses present at the same time. (5) The witnesses shall attest and sign the will in the presence of the testator, but no form of attestation shall be necessary. 5 AKENTEN II AND ANOTHER V OSEI [1984-86]2 GLR 437 SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT (6) Where the testator is blind or illiterate, a competent person shall carefully read over and explain to him the contents of the will before it is executed and shall declare in writing upon the will that he had so read over and explained its contents to the testator and that the testator appeared perfectly to understand it before it was executed. The relevant sub-sections for the purpose of this case are subsections 1 and 3. The main elements for a valid execution of a will per these subsections are that the will must be: i. Signed by the testator; and ii. The signature of the testator must be made or acknowledged by him in the presence of two or more witnesses present at the same time. These provisions of the Wills Act have been the subject of litigation before the Courts and Courts have time and again emphasized the relevance of these provisions with respect to the validity of a will. Cases such as In re Okine (Decd); Dodoo v Okine [2003-2004] SCGLR 582, In re Agyekum (Decd); Agyekum v Tackie & Brown [2005-2006] SCGLR 851 and In re Blay-Miezah (Decd); Ako Adjei v Kells [2001-2002] SCGLR 339 are in point. In re Blay-Miezah (Decd); Ako Adjei v Kells case, the Supreme Court held inter alia that Sections 2(1), (3) and (5) of the Wills Act are mandatory requirements without which the Court cannot hold the Will valid. In the case of Akua Prempeh & 3 Ors Vs. S. D. A. Oddai; Civil Appeal No. 5/2000, 14th May, 2003 the burden of proof in Wills was discussed. The Court stated as follows: “The rule enunciated by Parke B is that in every case the onus lies on the propounders of the Will to satisfy the Court that the instrument is the Last Will of a free and capable testator, must, however, be taken, I think, to refer to the first stage so to speak, of the onus for, the onus does not necessarily remain fixed; it shifts. Where there is a dispute as to a Will those who propound it must clearly show by evidence that prima facie, all is in order, that is to say, there has been due execution and that the testator had the necessary mental capacity and was a free agent. Once they have SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT satisfied the Court, prima facie, as to these matters, it seems to me the burden is then cast upon those who attack the Will and they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence and so forth.” In the case of In Re Ayayee (Decd); Kukubor and Another vs Ayayee [1982-83] GLR 866: “Since in the instant case, there was evidence casting suspicion around the execution of the will, the court would apply the rule in Barry v Butlin, namely, that a party propounding a will prepared by a person who took a benefit under it, had the burden of showing that the paper propounded expressed the true will of the deceased. That rule was not confined to the single case where a will was prepared by or on the instructions of one taking large benefits under it, but extended to all cases where circumstances excited the suspicion of the court. In such event, those propounding the will (as in the instant case) were obliged to remove the suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document. Once this was done, the onus was thrown on the opponents to prove fraud or undue influence or whatever else they relied on to displace the case made in proving the will”. Burden of Proof For the Will in issue to be valid, it must be established first, that Will was signed by the testator and second, that the testator signed the said signature in the presence of two or more witnesses present at the same time. Under our Evidence Act, 1975 (NRCD 323), the person who usually asserts the positive has the burden of proving that assertion on a balance of probabilities. With respect to establishing the validity of a Will, this duty is placed on the propounder of the Will to establish on a balance of probabilities that the Will was duly executed by the Testator. Usually where there is an attestation clause as in this case, it raises a presumption of due execution, and the burden is shifted onto the one challenging the validity of the Will to lead evidence to rebut that presumption failing which the will shall be admitted to probate. In the case of In re Okine (deceased), the Supreme Court in dealing with the issue of the burden of proof in probate matters held that it is the duty of the propounder of the Will SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT to establish the capacity of the Testator and the due execution of the Will. This is what the Court held at holding (7) of the headnote: “The burden lay on the propounder of a will to satisfy the court that the document presented for probate was the freely executed will of a competent testator. If the proof provided by the propounder left the court in doubt, the will might be denied probate. Therefore, in the instant case, the Plaintiffs assumed the onus probandi under which they must prove both capacity of the testator and due execution of the will.” The authorities have however held that where the validity of the Will has been challenged on the grounds of forgery, the propounder has the duty to establish the validity of the Will on a balance of probability and no presumption of due execution is raised in favour of such a Will. In the case of In re Blay-Miezah (Decd), the Supreme Court made the following observation at holding (1) of the headnotes on this issue: “For where the validity of a Will is challenged, especially on grounds of forgery, the proof of due execution in such an action, demands a proof of all the elements thereof. This proof comprises: i) Proof of the genuineness of the disputed Will: McDonald vs. McDonald 142 Ind. 55, 41 NE 336. In this wise evidence must be established to remove all suspicious circumstances negativing the genuineness of the will ii) Proof of the genuineness of the testator's signature: Weber vs. Storobel. Mo. Sup, 194 SW 272. iii) Proof of the authorization by the testator of another to sign for him when that method of signing is employed: McCoy vrs Conrad, 64 Neb. 150, 89 NW 665. iv) Proof of the presence of the entire instrument at the time of execution: In re Maginn's Estate, 278 Pa 89, 30 ALR 418, and SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT v) Proof of the attestation of the Will in the presence of the testator: Clarkson vrs Kirtright, 291 111 609, 126 NE 541. Of course, where the opposing party by his pleadings admits any of the above elements, the proponents of the will are relieved from proving that element. But short of any admission, proof of due execution in a contentious probate action requires proof of all the elements of validity of the Will in dispute. For in such a case, there is no presumption that the subscribing witnesses told the truth in testifying that they saw the will executed. Indeed, the Court will not apply the maxim omnia praesumuntur rites es solemniter esse acta (all things are presumed to be correctly and solemnly done) where there are circumstances that excite the suspicion of the Court that there must be something wrong with the Will. The burden of the Plaintiffs or those who propound the Will is to lead credible evidence to remove such suspicion and to prove affirmatively that the Will is indeed that of the testator. As Lindley L. J. explained in Tyrell vs. Painton (1894) 151 P 157 CA, in all cases: "in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the Will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the Will to prove fraud, or undue influence, or whatever else they rely on to displace the case made for proving the Will." In this wise, as held in Baird vs. Shaffer 101 Kan. 585: "The testimony of subscribing witnesses to a Will may be overcome by any probative facts and circumstances admissible under the ordinary rules of evidence." Indeed in the unbiased search for the truth, the law has no favorites by presumption. Silent circumstances, without power to change their attitude, or to make explanations, or to commit perjury, may speak as truthfully in Court as animated witnesses. Accordingly when an issue of forgery in a civil case is raised by pleadings and contested by evidence on both sides, there is no presumption either in favour of witnesses or in favour of circumstances. All of the evidential facts, which throw light on the issue, must be considered in connection with the allegation of proponents that the Will is genuine and with the charge of contestants that the document offered for probate is a forgery. If the truth is found in oral testimony, it must determine the issue, but it is equally potent if found in circumstances. As Rose SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT J at the Nebraska Supreme Court said in In Re O'Connor's Estate, 179 NW 401 at 406: "In a civil case, when there is substantial proof in support of the plea that the Will offered for probate is a forgery, all presumptions in flavor of genuineness fall. Thereafter the truth must be found in the evidence itself, and every item of proof must stand on its own footing in connection with each evidential fact considered in its proper light. In this test presumption creates no advantage one- way or the other. In such a situation persons who declare themselves to be subscribing witnesses and boldly speak from the witness stand as such, though not directly impeached, are subject to the same impartial and penetrating scrutiny as the mute instrument ascribed by them to the dead." ascribed by them to the dead." The doctrine of suspicious circumstance is designed to prevent fraud by a third party drawing up a Will. It is usually invoked in cases where the party drawing up the Will takes the whole or part of the Testator’s estate6. It was held in the case of Barry v Butlin (1838)2 Moo PC 480) that if a party writes or prepares a Will under which he takes a benefit “that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and jealous in examining evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed.” By the principle in Tyrrell v. Painton (1894) P 151) suspicious circumstance is created where a will is prepared by a close relative of a substantial beneficiary. In the case of Andrew v Fulton (1875) LR HL 488) a will was made in the handwriting of one of the executors leaving gifts to that executor and another. Evidence showed discrepancies between the testator’s actual instructions and the terms of the will. It was held that the executors had failed to alleviate the court’s suspicion. 6 N. A. JOSIAH-ARYEH, GHANA LAW OF WILLS Page 52 SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Prima facie therefore, the Defendants had a duty to establish the validity of the will on a balance of probabilities and more so when the validity of the will has been challenged on the ground of forgery. How did the Defendants prove due execution of the Will? The 1st Defendant who is also one of the named Executors in the Will of Late Stephen testified per his adopted witness statement as follows: “My brother died of a heart condition and not stroke as stated by Plaintiff. Attached as Exhibit 2 is a copy of the entry in the Register of Deaths. Up to the day of his death, my brother was of sound mind and could recognize the people who visited him. I am aware that my brother had a strained relationship with Victoria at the time the Will made. The Will was prepared by Lawyer Ebenezer Ahumah Djietror who will testify during the trial. One of the witnesses to the signing of the will Justine Aku Awudetsey will also testify during the trial. The allegation of fraud is vehemently denied.” DW1, Justine Aku Awudetsey was subpoenaed and on 13th June 2023 she testified and was cross-examined. I have reproduced below the evidence of DW1 in extenso: “Q: Please give your full name to the court. A: My name is Mrs Justine Aku Awudetsey. … Q: Your brother’s Will is before this court and your name is on the Will as a witness. Can you tell the court what you know about the Will? A: I am aware of the Will. I was there in Cape Coast when my brother called me to inform me that he is doing a Will and he wants me to be a witness and I told him that anytime he is ready he should call me. After some days he called back and gave me a day to come to Chantan and when I am coming I should come with Lucky Tudzi. On the day the Will was done I came to meet Lucky and we went together to Stephen’s house. Q: What happened at Stephen’s house on the day the Will was made? SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT A: We were there with Stephen and then the lawyer came and read the Will and made Stephen sign. I also signed after him and then Lucky also signed after that the lawyer left. Q: What was your brother’s state of health when the read was made? A: Q: He was fine. It is in evidence before this court that your brother was sick and his hands were shaking that he could not have signed the Will. What is your response? A: He was well and he signed the Will, his hand was not shaking.” Cross-examination of Plaintiff’s lawful attorney on 1st June 2023 demonstrates the basis of the Plaintiff’s claim that the Will of late Stephen is a nullity. Below is the extract of the cross-examination: “Q: It is your case that the Will of Stephen Adzraku is invalid or that the Will did not make provision for Victoria? A: The Will in my case is invalid because there is no provision in it for Victoria and Mabel who jointly acquired the land and the properties in it. Q: Apart from your claim that the Will did not make provision for Victoria and Mabel did you have anything else to show that the Will is invalid? A: Q: A: Yes my lady. I am putting it to you that the Will is valid. I strongly disagree.” The cross-examination of PW1 Gilbert Kofi Ametame on 5th June 2023 by Counsel for Defendants is relevant to these proceedings. Below is an extract of the proceedings: “Q: Can you tell the court when the late Stephen became ill? A: Q: In the year 2015/2016 thereabout. You told the court that he was so sick that he could not write is that correct? A: What I said was that he could not shake someone nor write because his hand was shaking. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Q: I am putting it to you that your testimony that the late Stephen could not write is not correct. A: What I am saying is the truth. Q: I am putting it to you that on 19th April, 2016, the late Stephen duly signed a Will in the presence of witnesses. A: I was not present and I cannot also believe it.” I have looked at Exhibit 2 certified copy of entry in register of deaths where the cause of death has been stated as Bilateral Pulmonary Thromboembolism and the date of death was 22nd August 2016. The alleged impugned Will has been tendered in evidence by the Plaintiff as Exhibit E. I have closely examined Exhibit E and it was dated 19th April 2016. There is evidence of due execution of the Will, i.e., the deceased Testator duly signed the Will and there are two attesting witnesses who duly attested the Will, one of them being DW1 who has testified in these proceedings to the due execution of the Will. There is no attestation clause however that is not fatal to the issue of due execution. See Section 2 of the Wills Act. The Defendant having propounded the due execution of the Will the burden is now cast on the Plaintiff to prove the fraud that she alleges. Plaintiff’s lawful attorney under cross-examination testified that it was because reasonable provision was not made for the Plaintiff and her late mother in the last Will and Testament of the late Stephen that is why the Will was fraudulently obtained. PW1 testified that he cannot speak to the due execution of the Will because he was not there however, he reiterated that the deceased was sick with shaking hands. Even if the deceased could not sign the Will himself, someone can sign at his direction. If the deceased Testator was indeed suffering from stroke and other health challenges at the time of the execution of the Will there should have been a scintilla of extrinsic evidence i.e. medical evidence in support of those assertions. However save the repetition of the Plaintiff’s lawful attorney and his witness averments under oath there was no evidence in support of these assertions. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT The erudite judgment of Ollenu J (as he then was) in Majolagbe vs Larbi [1959] GLR 190 always gives guidance to the courts on how the burden of proof is discharged: “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 proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” See the following cases: Ababio v Akwasi III [1994-95] GBR 774 at 777 Zabrama v Segbedzi [1991]2 GLR 221 at page 246 The Defendants having propounded the Will in solemn form the Plaintiff was not able to discharge the burden on her that the Will was a nullity as same was fraudulent. In any event the Plaintiff cannot approbate and reprobate. You cannot claim that a Will is invalid and at the same time claim reasonable provision under the same Will. I find that the Last Will and Testament of the late Stephen Tsifodze Adzraku dated 19th April 2016 is valid and I therefore resolve this issue in favour of the Defendant. [6.5] Issue f: Any other issue(s) arising from the pleadings in the instant suit Whether the late Stepen Tsifodze Adzraku married the Late Victoria The position of the law as stated in Ababio vs Akwasi III supra is that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such an issue and that the burden sometimes shifts depending on the particular issues so central to the success or otherwise of the case. The same principle applies to a Defendant who makes a counterclaim. In Faibi vs State Hotels Corporation [1968] GLR 471 at 473 Ollenu J. A (as he then was) had this to say on the onus of proof: SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT “Onus in law lies upon the party who would lose if no evidence is led in the case…” Again, the law is that he who asserts carries the burden of proof. The one who asserts the negative does not have to prove anything. That is expressed in the Latin maxim ei incumbit probantio probation, qui dicit, non qui negat, cum per rerum naturam factum negantis probation nulla sit, which means that the “proof lies on him who affirms, not upon him who denies, since by the nature of things, he who denies a fact cannot produce proof”. In Takoradi Flour Mills vs Samir Faris [2005-2006] SCGLR 882, @ 896 the Court held that “It is the duty of the party who asserts the affirmative to prove the point in issue”. Since it is the Defendants assertion that the late Victoria Ami Setrana is not the surviving spouse of the late Stephen he had the onus to prove that the assertions is true on the balance of probabilities and not the Plaintiff who have denied same. So how did the 1st Defendant prove his assertion? The 1st Defendant who testified for himself stated as follows: “My late brother, Stephen Adzraku cohabited with Plaintiff’s late mother Victoria Ami Setrana but the two never got married. They also had no child of their own” DW1 (Mrs Justine Aku Awudetsey) testifying on this issue stated as follows: “Q: Do you know Victoria Ami Setrana? A: Q: Yes I know her as a woman who lived with my brother Stephen at Chantan. Victoria claims to be the wife of your brother, what do you have to say about that? A: What I know about her was she came to stay at my brother’s house at Chantan around 95 and my brother has never married her as a wife and I also know to confirm that nobody in the family is aware of the marriage.” The cross-examination of DW1 by Counsel for Plaintiff is relevant to the issue at stake. Below is the extract of the cross-examination: “Q: How many times did you visit the late Stephen and Victoria in their matrimonial home? A: It was not a matrimonial home, they stayed there as cohabitants and at the time sister Ami came there Stephen was not staying there. Stephen taught at Aquinas and had a flat where he stayed until he retired. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Q: After Stephen and Victoria married under the customary law they rented an apartment around Chantan I put that to you. A: I disagree because Victoria came to Stephen’s house at Chantan when Stephen had completed a 4bedroom building and had a single storey at another side of the house and they were never married. Q: When did Stephen and Victoria moved into the same house? A: I said Stephen was at Aquinas and it was Victoria and Mabel who moved there around 1995. Q: So it is your testimony before this court that as at 1995 Stephen had a complete 4bedroom A: Q: A: Q: … Q: building and another single storey on the Chantan land not so? Yes my lady. I put it to you that Stephen and Victoria after marrying under the customary law sometime in 1991 lived in a rented apartment as husband and wife. They were not married and never lived in a rented apartment. I also put it to you that when Stephen and Victoria met and got married, Stephen only had a bare plot of land at Chantan. Stephen and Victoria lived together as husband and wife even till the time of Stephen’s death. A: I disagree I said they were not husband and wife but Ami was there before Stephen came with Eugenia and the children. Q: Victoria was named a wife on the obituary of Stephen and she consequently performed rites at the funeral of the late Stephen not so? A: We saw those things on the obituary but when it was brought it was late and the family said it was a mistake and it was late to make changes. Q: Who prepared the information of the obituary? A: I cannot tell. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Q: I put it to you that it was the family of the late Stephen who gave the information for the preparation of the obituary. A: I was not there when it was prepared so I do not know who prepared it.” Per the evidence above, has the Defendants discharged the burden on them? A critical feature of a customary law marriage is that it is potentially polygamous. The Defendants admit that the late Victoria allegedly cohabited with the deceased Stephen for over 20 years. The late Victoria name was on the obituary notice -Exhibit D as one of the surviving spouse. The Plaintiff’s lawful attorney testified per his adopted witness statement that “the late Stephen customarily adopted the Plaintiff herein when the plaintiff was about 10years old and soon after the late Stephen was married customarily to Plaintiff’s mother, namely the late Victoria and which marriage lasted for about 23 years.” The Plaintiff’s lawful attorney under cross-examination testified to the place the marriage ceremony took place and the witnesses present. During the cross examination of the Plaintiff’s Lawful attorney, Counsel for Defendant claims the deceased was married under Ordinance to Eugenia. When did that alleged Ordinance marriage take place, was it after the late Victoria marriage to the deceased? Where is a copy of the marriage certificate? There is no scintilla of evidence in support of this assertion. The cross-examination of Defendant by Counsel for Plaintiff on 7th June 2023 is illuminating. The extract is below: Q: “During the lifetime of Stephen and Victoria, they attended family and other social programs together not so? Yes my lady. The late Victoria also performed rites at the funeral ceremony of the late Stephen Adzraku A: Q: not so? A: I am not aware. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Q: The late Victoria also performed widowhood rites after the demise of the late Stephen A: Q: A: Q: Adzraku not so? That is not correct. I put it to you that the late Victoria performed rites at the funeral ceremony of the late Stephen Adzraku and thereafter performed widowhood rites as demanded by custom. I disagree. The late Victoria and Stephen lived together as husband and wife in the same household at the time of Stephen’s death not so? A: I disagree. At the time of the death of my late brother he had only one wife Eugenia Akligoh and two biological children who are children of my late brother and Eugenia Akligoh. Q: The late Victoria lived together with the late Stephen at the time of his death, I put it to you. A: I disagree. At the time of my late brother’s death, he was living with his wife Eugenia Akligoh together with his two biological children. Q: After the burial ceremony of the late Stephen, Victoria and her entourage held a thanksgiving service at their matrimonial home at Chantan, I put it to you. A: Q: I was not aware of that. The obituary and program for the burial of the late Stephen was put together by the late Stephen’s family not so? A: I disagree, the obituary was compiled not by the whole family. Q: Were you involved in putting together the obituary and the program for the funeral? A: Q: No my lady I was not involved. The section of the family which compiled the obituary included or stated the late Victoria as a widow of the late Stephen I put it to you. A: I agree but that was a mistake.” SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Rebuttable presumption is one that the Court must make unless evidence is adduced to the contrary7. In rebuttable presumptions, when the basic fact is proved, the presumed fact must be accepted as proved as well, until evidence is led in rebuttal. Section 31 of the Evidence Act, 1975, NRCD 323 is on validity of marriages. By Section 31 of Evidence Act 1973, (NRCD 323), a marriage celebrated between witnesses, is presumed to be valid. "Section 31 of Evidence Act Marriage (1) A marriage which has been celebrated before witnesses is presumed to be valid. (2) Subsection (1) applies whether or not the witnesses to the marriage are called as witnesses in the action. (3) This section applies both to monogamous and polygamous marriages." Defendant’s Exhibit 1 states that the deceased had two wives Madam Victoria and Madam Eugenia. The Defendants are estopped by their conduct from denying the Late Victoria was a wife of the deceased per Section 26 of the Evidence Act that: “26. Estoppel by own statement or conduct Except as otherwise provided by law, including a rule of equity, when a party has, by that party’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between (a) (b) that party or the successors in interest of that party, and the relying person or successors in interest of that person.” 7 GPHA v NOVA COMPLEX LTD [2007-2008] 2 SCGLR 806, The case described rebuttable presumptions as “conditional, inconclusive and disputable presumptions”. SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT Marriages in Ghana are presumed to be valid on proof of two conditions, namely the celebration of the marriage and in the presence of witnesses8. Does the rebuttable presumption arise in respect of this case? In the considered view of the court the presumption arises. Under the Marriages Act 1884-1985, three forms of marriages are recognised in Ghana namely, Customary Marriage (Part one), Marriage of Mohammedans (Part two formerly Cap 129) and Christian and other marriages (Part three Cap 127). Delivering the unanimous judgment of the Court of Appeal in Apomasu vs. Bremawuo {1980} GLR 278 At 280 Apaloo CJ (as he then was) analysed the nature of marriage in Ghana thus: “a number of decided cases show that there are, broadly speaking, two types of marriage recognised by law in this country. They are the pure customary union and the monogamous one” In practical terms therefore Customary Marriage and marriage under the Mohammedans Ordinance are potentially polygamous, whilst Christian and other marriages are monogamous. What then constitutes a valid customary marriage, because from the 1st Defendant’s evidence-in-chief she is contending that there was no performance of any marriage rites. His lawyer through cross-examination sets up a case different from the defendants pleading by making reference to Eugenia alleged ordinance marriage. In the case of Yoatey vs Quaye [1961] GLR 573, Ollennu J as he then was reiterated the essential features of a customary marriage in Ghana regardless of the ethnic grouping9 as follows: 8 Brobbey S. A., Essentials of the Ghana Law of Evidence, Page 387 9 See also the case of RE CAVEAT BY CLARA SACKITEY [1962] 1 GLR 180 SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT “The essentials of a valid customary marriage are: (a) agreement by the parties to live together as man and wife; (b) consent of the families of the man and the woman to the marriage. Such consent may be implied from the conduct, e.g. acknowledging the parties as man and wife, or accepting drink from the man or his family; (c) consummation of the marriage, i.e. the parties living together openly as man and wife. On the evidence these essentials were all satisfied in the relationship between the Defendant and Robert. The Defendant was therefore a customary wife of Robert”; The Defendants do not discharge the legal and evidential burden of proof merely by mounting the witness box and repeating their averments under oath10. I therefore find that the late Victoria was married under customary law to the deceased. I resolve issue one in favour of the Plaintiff. [7] Conclusion It is not uncommon anywhere to find the case of a testator, who either through forgetfulness or deliberately omitted to make provisions for persons with expectations reasonable or otherwise of partaking in his estate. The testator is of course, not bound to make any devises to his family11. For as Knight Bruce said in Bird v. Luckie: “No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise or the good. A testator is permitted to be capricious and improvident, and is more at liberty to conceal the circumstances and the motives by which he has been actuated in his 10 MOJOLAGBE v. LARBI [1959] GLR 190 11 Crabbe S. A., Law of Wills in Ghana, 1998 SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT dispositions. Many a testamentary provision may seem to the world arbitrary, capricious and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily12.” From the totality of the evidence led, I hold that the Plaintiff’s claim fails entirely specifically reliefs a) to g) and same is accordingly dismissed. Nominal cost of GHC2,000.00 awarded in favour of the Defendant. (SGD.) H/L EUDORA CHRISTINA DADSON (MRS.) (JUSTICE OF THE HIGH COURT) Cases referred to: 1. Kasseke Akoto Dugbatey Sappor & 2 Ors (Substituted by Atteh Sappor) vrs Very Rev. Solomon Dugbartey Sappor (Subst. By Ebenezer Tekpetey Akwetey Sappor) and 4 Ors. [2021] DLSC 10042 at page 14-15 2. Okudzeto Ablakwa (No. 2) vs. Attorney General & Attorney [2012] 2 SCGLR 845 At 867 3. Ababio v. Akwasi IV [1994-95] GBR, PART 11, 74 4. Re Ashalley Botwe Lands: Adjetey Agbosu & Ors v Kotey & Ors [2003-04] SCGLR 5. Poh vs Konamba (1957) 3 W. A. L. R. 74 6. Tanor vs Akosua Koko [1974] 1 GLR 451 7. Plange v Plange (1968) CC 88 8. Saakyi Mami v Dede Paulina [2005-2006] SCGLR 1116 9. Abdul Rahman Osumanu Giwah Alhaji Ali Adamu Giwah and Hajia Fatima Alhassan [2013] DLSC 2745 12 Bird v. Luckie: [1850] 8 Hare 306 SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT 10. Patrick Ankomayi and Gyimiamah Ankomayi vs Hannah Buchman and 2 other dated 26th February 2014 11. T. K. Serbeh & Co Ltd v Mensah [2005-2006] SCGLR 341 at 360-361 12. The Republic v. The High Court, Winneba Ex parte University Teachers Association of Ghana (UTAG) Winneba Chapter; Supi Kofi Kwayera and 2 Others (Interested Parties) Civil Motion No. J5/65/2017 13. The Republic v. High Court, Koforidua; Ex-parte Asare (Baba Jamal & Others Interested Parties) [2009] SCGLR 460. 14. In Re Anim-Addo (Decd); Nkansah Alias Anane and Another v. Amomah-Addo And Another [1989-90] 2 GLR 67 15. In Re: Allotey (Decd); Allotey & Anor. vs Otoo & Anor {1981} GLR 393 16. Akua Marfoa V. Margaret Akosua Agyeiwaa, Civil Appeal NO. J4/42/2012, 9/11/2016 17. Hammond v Odoi [1982-83] GLR 1215-1313 SC, Crabbe JSC at page 1233 18. Millicent Asare Boafo Vrs. Peter Ababio [2017-2020] 1 SCGLR 654 19. Victor Adophus Tetteh vs Anna Lankai Mills [Suit No: PA/935/2019] 20th December 2022, HCT 20. Majolagbe vs Larbi [1959] GLR 190 21. Zabrama v Segbedzi [1991]2 GLR 221 at page 246 22. Johnson v. Maja (1951) 13 W. A. C. A. 290 at 292 23. In re Okine (Decd); Dodoo v Okine [2003-2004] SCGLR 582, 24. In re Agyekum (Decd); Agyekum v Tackie & Brown [2005-2006] SCGLR 851 25. In re Blay-Miezah (Decd); Ako Adjei v Kells [2001-2002] SCGLR 339 26. Akua Prempeh & 3 Ors Vs. S. D. A. Oddai; Civil Appeal No. 5/2000, 14th May, 2003 27. In Re Ayayee (Decd); Kukubor and Another vs Ayayee [1982-83] GLR 866 28. Barry v Butlin (1838)2 Moo PC 480) 29. Tyrrell v. Painton (1894) P 151) 30. Andrew v Fulton (1875) LR HL 488) 31. Faibi vs State Hotels Corporation [1968] GLR 471 at 473 32. Takoradi Flour Mills vs Samir Faris [2005-2006] SCGLR 882, @ 896 33. Apomasu vs. Bremawuo {1980} GLR 278 At 280 SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT 34. Apomasu vs. Bremawuo {1980} GLR 278 At 280 SUIT NO: PA/487/2020 – MABEL DOMPREH ADZRAKU VS WINSTON ADZRAKU, WISDOM K. ADZRAKU -JUDGMENT