WEMAKOR VS JOHNSON (BFA 91/2012) [2023] GHAHC 528 (11 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, PROBATE AND L/A DIVISION, COURT ‘1’ HELD IN ACCRA ON 11TH DECEMBER 2023, BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON, HIGH COURT JUDGE. --------------------------------------------------------------------------------------------------------------------- SUIT NO. BFA 91/2012 MRS JOSEPHINE ABLA WEMAKOR SYLVANUS YAO WEMAKOR } } SUING AS ADMINISTRATORS OF THE } ESTATE OF THE LATE ANTHONY FELIX WEMAKOR } …PLAINTIFFS H/NO. 700/1B SEMPE NEWTOWN - ACCRA VS MADAM EVELYN JOHNSON H/NO. 700/1B SEMPE NEWTOWN -ACCRA } } } } }…DEFENDANT --------------------------------------------------------------------------------------------------------------------- PARTIES: PLAINTIFFS PRESENT DEFENDANT ABSENT COUNSEL: PETER HAYIBOR THE PLAINTIF PRESENT MCDONALD AYITEY FOR DEFENDANT ABSENT --------------------------------------------------------------------------------------------------------------------- Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT JUDGMENT --------------------------------------------------------------------------------------------------------------------- [1] Introduction It is apposite to preface this Judgment with the words of my brother Justice Kweku T. Ackaah-Boafo J (as he then was) in the case Grace Adu & 1 other vs Martin Anaglate & 2 others, delivered on 5th April 2019, Suit No. BFA 103/2009: “It is often said that Justice is like a river. Because all rivers are not the same so is justice. Some rivers run off quickly to their ultimate destinations whilst others take time, a long time to travel, winding to their ultimate destination with many twists and turns. The justice for the parties in this case has seen many twists including a change of venue from the Brong Ahafo Region to the Greater Accra and change of Counsel. This case has taken many years to reach its final destination; but today, finally, the end is here. For the parties it is judgment day. I am of the respectful opinion that the history of this case makes it appropriate to prefix this judgment with the quote by the respected former Chief Justice of this Republic, Wood CJ (as she then was) in the case of AGYEMANG (Substituted by BANAHENE & OTHERS v. ANANE [2013-2014] 1 SCGLR 241 when she stated: “The oft quoted legal maxim “Justice delayed is justice denied”, coined by the British politician, William Gladstone (1809-1898), is no mere cliché. The right to fair trial in a timely manner is neither a courtesy nor a favour, but a fundamental right. Protracted delays in the administration of justice, impact negatively not only on those who access the courts, such as the victims of crime, accused persons who are acquitted at the end of their trial, parties in civil proceedings and their privies, lawyers who practice before the courts but indeed the entire justice system. The judicial history of this relatively simple family related land matter, which was commenced in the High Court Kumasi, as far back as the 4th of April 1974, provides an insight into the harmful effects of systemic delays in the administration of justice. Regrettably, it has taken forty long years, a whole generation, Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT for this case to finally find its way into this court; the court of last appeal. We hope court business shall always be managed in ways that will not occasion a repeat of this parody of justice” This suit was instituted on 8th May 2012 it has taken 11 years for judgment to be delivered. Judges have been advised to look with suspicion when claims are made against deceased persons. In the case of Kusi & Kusi vs. Bonsu [2010] SCGLR page 60 at page 73, 82-84 the Supreme Court stated the principle succinctly as follows: “…the claims the plaintiff family made against the deceased Asante in respect of the property, were all critical assertions against the deceased, in whose favour the presumption of ownership stood. These claims belong to the class of evidence that must first be received with the greatest caution and scrutinized carefully before being given the requisite weight. It is however clear from the evidence that the plaintiff family acquitted themselves creditably, by discharging satisfactorily, the legal burdens placed on them… The main argument is that the respondents, i.e. the plaintiff’s family, failed to provide the requisite corroboration to the claim that Asante signed the petition exhibit A. There is no intractable rule of law that charges or claims against a dead person could not succeed without corroboration. To the contrary, the discernible principle was that a court could proceed on the uncorroborated evidence if satisfied about its truthfulness. The only rider or caution was that the court must examine the evidence critically, with utmost care, weighing or sifting it thoroughly, to ensure there were no loopholes or that the charge or claim did not suffer from any absurdities or the like. A judge in receipt of uncorroborated evidence consisting in the main of charges against a deceased person would not swallow the story lock, stock and barrel, but would first view it from a suspicious standpoint. If the story as presented was neither incongruous, preposterous, unreasonable, illogical, nor incredible, then the judge might proceed to give it the Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT weight it deserved. The exercise would relate to the cogency or the weight to be attached to the evidence given…1” Dotse JSC (as he then was) has postulated in the case of Fosua & Adu-Poku v Dufie (Deceased) & Adu Poku-Mensah [2009] SCGLR 310 at 316 & 349 that: “ It is also to be borne in mind that claims against the estate of a deceased person are to be viewed with caution and very cogent evidence is necessary to sustain the same…The law is settled that whenever issues touching the estate of a person who is deceased comes into play, the courts must be very slow in construing evidence against the dead person. See In re Krah (Decd); Yankyerah & Ors v Osei-Tutu [1989-90]1 GLR 638 at 662, SC and Bisi v Tabiri alias Asare [1987-88] 1 GLR, 360 at 409, where the principle was stated that “The well-known rule is that claims against a deceased’s estate must be scrutinized with circumspection.2” This case brings into question what constitutes void marriages. One Anthony Felix Wemakor was allegedly married to both 1st Plaintiff and Defendant, the 1st Plaintiff under Ordinance, the Defendant under customary law. Does the earlier in time ordinance marriage renders the customary marriage contracted during the pendency of the Ordinance Marriage void? This and other questions are the main issues facing this Court in this Judgment. [2] The Amended Statement of Claim 1 See also the case of GANDY V. MACAULY(1885) 31 CH D 1, “where it was held that when an attempt is made to charge a dead man in a matter, in which if he were alive he might have answered the charge, the evidence ought to be thoroughly sifted, and the mind of any Judge who hears it ought to be, first of all in a state of suspicion; but if in the end the truthfulness of the witnesses is made perfectly clear and apparent, and the tribunal which has to act on their evidence believes them, the suggested doctrine [of corroboration] becomes absurd” 2 See also the case of OSEI SUBSTITUTED BY GILARD V KORANG [2013-14] 1 SCGLR 221 “whatever the statement by Brett MR in the English case of In Re Garnett; Gandy v MacCauley (1885) 3 Ch D 1 at 9 meant in the latter part of the nineteenth century, might not wholly apply in Ghana today where section 80 of the Evidence Act 1975 (NRCD 323), states how witnesses are evaluated for the assessment of their credibility. A statement that creates the impression that a claim against the estate of a deceased must be viewed with suspicion does not provide a useful criterion for assessing the credibility of witnesses in court in the administration of justice in our courts. However one looks at it, Brett MR did not say or was to construed as meaning that the evidence in a case of a claim against the estate of a deceased person must be rejected outright on the ground of his death per se. We agree with him that in such cases, the entire claim ought to be scrutinized meticulously and carefully weighed for its inherent probative value. Of course, that the person is dead and therefore cannot contradict, explain or give evidence on his version of the case may be considered.2” Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT The Plaintiffs instituted this action on 8th May 2012 for the reliefs stated below. The Plaintiffs sought a declaration that the Defendant was never married to the late Anthony Felix Wemakor who died on 8th September, 2010. The Plaintiff contends that the Defendant is the mother of a daughter of the 1st Plaintiff’s deceased husband called Fiawolorm Wemakor. It was by virtue of this child that the Defendant was permitted by the deceased to live in the matrimonial home put up by the deceased with substantial assistance from the 1st Plaintiff. It is the contention of 1st Plaintiff that the deceased married her under Ewe Custom in 1952 and on 19th December 1970 went through Holy Matrimony at the Holy Spirit Cathedral in accordance with the Marriage Ordinance Cap 127 and was issued with Marriage Certificate No. 16/70. According to the Plaintiff the deceased worked with UAC and later with GB Olivant and retired in 1984. The deceased had a total of ten (10) children, seven (7) by the 1st Plaintiff and during the subsistence of the marriage the deceased was transferred to various places where he lived with the 1st Plaintiff at places such as Dunkwa, Cape-Coast, Kumasi, Koforidua, Accra and Tamale. The Plaintiff averred that during the subsistence of the marriage the deceased acquired a piece of land in 1969 in Accra from one Emmanuel Quarshie Ahia evidenced by a conveyance dated 29th October 1969 and registered at the Lands Registry as No. 1265/1991 and situate at North-West Kwale Gonno. According to the Plaintiffs with the assistance of the 1st Plaintiff a very successful and prosperous trader, the parties jointly put up their matrimonial home on the said land at North-West Kwale Gonno and lived in that house with all the children. It is the case of the Plaintiffs that the Defendant was a trader who obtained supply of her goods from where the deceased worked in Accra, got into a relationship with the deceased and had a child with him, being his last child. Due to the Defendant forcing her way to stay in the matrimonial home the Plaintiffs averred that the 1st Plaintiff who has Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT acquired her own land and started building her own house at Zabrama Lane, Accra left the matrimonial home and went first to live in a rented premises at Kaneshie with her children and later on completion moved to live in her own house at Zabrama Lane. It is the further case of the Plaintiffs the deceased left Ghana and went to settle permanently in Lome in the Republic of Togo and left the Defendant and her daughter in the matrimonial home together with some of the adult children of the 1st Plaintiff. The deceased visited the 1st Plaintiff and the children regularly. The deceased died on 8th September 2020 intestate in Lome, Togo and was cremated in Lome. It is the further case of the Plaintiffs that the Defendant during the lifetime of the deceased never interfered with any part of the matrimonial home but occupied only the room the deceased permitted her to occupy with her daughter. After the death and funeral of the deceased the Defendant without any authorization whatsoever engaged services of some workmen to construct wooden structures on the premises and has proceeded to rent rooms in the matrimonial home to various unknown persons and pocketed the rent proceeds without accounting to anyone. It is the contention of the 1st Plaintiff that the construction of the matrimonial home took place during the pendency of the mariage between her and the deceased and that the Defendant who was never married to the deceased is not entitled to stay in the property. [2.1] The Defence of the Defendant It is the case of the Defendant that she largely assisted in may diverse ways to the building of the matrimonial home and also that at a time when cement was scare and increasingly difficult to come by on the open market, it was through her instrumentality that cement bags and other building materials were purchased for the construction of the matrimonial home. The Defendant averred that she was married under customary law to the late Anthony Felix Wemakor and they lived happily together as husband and wife in the matrimonial home for over thirty-seven years before he passed on. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT It is the case of the Defendant that the deceased came for her hand in marriage from her father after they has been in a relationship for two (2) years. Initially, Defendant refused the marriage proposal but after a lot of convincing by her father and the deceased, she accepted the marriage proposal and later gave birth to Defendant’s daughter. After the marriage the relationship between 1st Plaintiff and deceased went sour to the extent that, they were unable to reconcile their differences, but since they were staunch members of the Catholic Church they opted for separation rather than a divorce. The Defendant averred that she was compelled to come and live with her late husband in the matrimonial home (due to overtures from her late husband’s sister Evelyn Asante), after 1st Plaintiff deserted their late husband in the matrimonial home to an unknown destination at Kaneshie, and at a time the late husband had been taken ill. The Defendant further averred that it was the deceased who allowed the 1st Plaintiff to occupy the property at Zabrama Lane which was then vacant. The deceased never settled permanently in Lome but on the contrary was coming in and out of Ghana and it was after one of those visits that he died, one week after returning to Togo. [3] The Claim and Counterclaim The Plaintiffs issued Writ of Summons with an accompanying Statement of Claim on 8th May 2012. The Statement of Claim was amended on 18th May 2012. Specifically, the Plaintiffs’ claim is for the following reliefs: i. “Declaration that the Defendant was never married to the late Anthony Felix Wemakor who died on 8th September, 2010. ii. Declaration that the Defendant is not a beneficiary of the estate of the deceased. iii. Declaration that the Defendant’s conduct and activities with the deceased; H. No. 700/1B Sempe New Town constitute intermeddling with the estate. iv. An order for accounts in respect of the three rooms rented by the Defendant to tenants. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT v. An order for recovery of vacant possession of the rooms being occupied by the Defendant in the said H/NO. 700/1B Sempe New Town, Accra. vi. Perpetual injunction restraining the Defendant, her agents, assigns, tenants, workmen, and successors from interfering with or entering the said house No. 700/1B Sempe New Town, Accra.” The claim of the Plaintiffs’ claim was met with a Statement of Defence by the Defendant in which the Plaintiffs’ claim was vehemently denied. The Defendant entered appearance on 7th June 2012 and filed her Statement of Defence on 24th July 2012 and counterclaimed against the Plaintiffs as follows: i. “A declaration that 1st and 2nd Plaintiffs obtained the letters of administration to administer the estate of the late Anthony Felix Wemakor by fraudulent misrepresentation. ii. An order to set aside the grant of the letters of administration. iii. Further or other reliefs as in the circumstances of this case may be just, fit or proper”. [4] The Issues The Plaintiffs’ Counsel filed Reply and defence to Counterclaim on 20th December 2012 and on 20th December 2012 also filed an application for directions setting out seven issues for trial. At the close of pleading the following issues were set down by the Court for the determination of the controversy between the parties: 1. “Whether or not the 1st Plaintiff was married to the deceased under the Marriage Ordinance 2. Whether or not the Defendant was married under Customary law to the deceased. 3. Whether or not the Defendant alleged marriage is null and void. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT 4. Whether or not the Defendant assisted in any way in the building of the 1st Plaintiff’s matrimonial home. 5. Whether or not the deceased left Ghana and permanently settled in Lome. 6. Whether or not the Defendant was in full control of the matrimonial home and rented part of it during the lifetime of the deceased. 7. Whether the Letters of Administration granted to the Plaintiffs was obtained by fraud and misrepresentation”. 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. Both Plaintiffs testified and called no witness. The Defendant’s evidence was proffered by the Defendant alone. [5] Evaluation of the Evidence, Analysis and the Court’s Opinion: Now, in resolving the dispute among the parties, I believe the issues to be determined are both legal and factual. The factual issues are to be determined by credible evidence adduced before the court. However, in the determination of the factual issues, the court applies tests based on legal principles to arrive at a conclusion as to whether any of the parties has proved his case to the standard required by law. This is because 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. The above legal position is supported by various provisions of the Evidence Act, 1975 (NRCD 323). Section 14 of the Act for instance provides: “(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”. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT The burden of producing evidence by both sides 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 Defendant, having endorsed her pleadings with a counterclaim, also carry the burden of proving the facts alleged in her Defence and Counterclaim to the same degree as the burden the Plaintiff carries in proving his claim against them. 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 111 [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. I shall now proceed to examine the evidence adduced in support of the Plaintiffs’ case and will relate same in the context of the standard of proof I have already set out in this judgment. It is trite learning, the Plaintiffs bear the evidential burden to adduce sufficient evidence if they are to secure a ruling on that the marriage between the Defendant and the deceased was void. In the case of Ackah vs Pergah Transport Ltd [2010] SCGLR 728 at Page 736 Adinyira JSC (as she then was) held as follows: “It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…” The Plaintiffs’ came to Court and dragged the Defendant along in respect of this issue it is the Plaintiffs’ who will lose first, and therefore have the duty or obligation to lead evidence in order to forestall a ruling being made against them. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT The law is thus clear that in circumstances such as the instant one, both Plaintiffs and Defendant are under obligation to introduce and lead credible evidence in proof of their respective claim and counterclaim. In this regard, they both bear the burden of proof and must persuade the Court by establishing a requisite degree of belief in the mind of the Court that their claims are legitimate and should be granted. The degree of proof required is proof on the preponderance of probabilities. I proceed to determine the issues - Issues 1, 2 & 3. Have the Plaintiffs’ adduced sufficient evidence on this issue to forestall a ruling being made against them? It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. In proceeding to evaluate the nature of the evidence adduced at the trial in respect of issues 1, 2 and 3, I need to caution myself that this suit concerns Mr. Felix Wemakor (deceased) who is now deceased and is unavailable as a witness in terms of S. 116(e) (iii) of the Evidence Act, 1975 (NRCD 323) and therefore cannot appear to tell his side of the story as to whether he indeed married 1st Plaintiff’s and the Defendant and the nature of the marriages to the two women. The settled rule of law is that the evidence involving a deceased person is always received and treated with extreme circumspection and suspicion. The policy rationale is that the deceased, unlike the Biblical Lazarus, cannot come out of his grave to tell his side of the story, to assert any claim or disprove one. Proof must therefore be strict and utterly convincing from the living witnesses. See the following cases: Moses vs Anane (1989-90) 2 GLR 694 C/A as adopted and applied by Brobbey JSC in Apea vs Asamoah (2003-2004) SCGLR 226 at 241. See also Grace Asantewaah vs Mark Amankwah Addo [2008] 1 GMJ 2009 @ page 212. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT In the considered view of the Court resolution of issue 3 is crucial because a determination of whether the Defendant’s marriage to the deceased is null and void would make the resolution of issue two moot. - Issue 1 Whether or not the 1st Plaintiff was married to the deceased under the Marriage Ordinance - Issue 2 Whether or not the Defendant was married under Customary law to the deceased. - Issue 3 Whether or not the Defendant alleged marriage is null and void [5.1] Issue 3 - Whether or not the Defendant alleged marriage is null and void What constitutes a void marriage: In the case of De Reneville v De Reneville [1948] P. 100 at 111 Lord Greene defined void marriage as follows: “A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is the issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling.” The Black’s Law Dictionary, 8th Edition page 994 has defined void marriage as follows: “A marriage that is invalid from its inception, that cannot be made valid and that can be terminated by either party without obtaining a divorce or annulment. For example, a marriage is void if the parties are closely related or if either party is already married. A void marriage does not exist, has never existed and need no formal act to be dissolved”. One of the grounds on which a marriage in Ghana can be void is where either of the parties at the time of the celebration of the marriage under Part Three of the Marriages Act is married under applicable customary law to a person other than the person with whom the marriage is celebrated. Section 74 of Marriages Act, 1884-1985, CAP.127 provides as follows: Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT “(1) A marriage may be lawfully celebrated under this Part between a man and the sister or niece of the deceased wife, but a marriage is not valid, (a) which if celebrated in England, would be void on the ground of kindred or affinity, or (b) where either of the parties, at the time of the celebration of the marriage is married under the applicable customary law to a person other that the person with whom the marriage is celebrated.” Also see the following cases: Genfi II vs Genfi II [1964] GLR 548 and Coleman v Shang [1959] GLR 390. In the case of Coleman vs Shang Case, the converse is also true that where there is a validly subsisting monogamous marriage celebrated under the Marriages Ordinance (CAP 127) neither party to the marriage could contract any other valid marriage unless the monogamous marriage was dissolved. Section 76 of Marriages Act, 1884-1985, CAP.127 provides as follows: (1) “A person who is married under this Part, or whose before the commencement of this Part is declared by this Part to be valid, shall not during the continuance of that marriage contract a valid marriage under an applicable customary law.” In the case of Ernestina Boateng vs Phyllis Serwah, Boampong Nyamekye and Mark Adu Prempeh Jnr [2021] DLSC 101165 the Supreme Court per Pwamang JSC at page 6 delivered himself thus: “The customary marriage in this case is held to be void because Section 44 of the Marriage Ordinance 1951, (Cap 127) provides under Part 5 on Invalid Marriages as follows; “Any person who is married under this Ordinance, or whose marriage before the commencement of this Ordinance is declared by this Ordinance to be valid, shall be incapable during the continuance of such marriage of contracting a valid marriage under any native law or custom, but save as aforesaid, nothing in this Ordinance contained shall affect the validity of any marriage Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT contracted under or in accordance with any native law or custom or in any manner apply to marriages so contracted.” The validity of a marriage contracted under the Marriage Ordinance is determined in accordance with the provisions of the Ordinance and not Act 29. In Family Law a marriage is either valid or invalid and there is no third category of “marriages of convenience” or “connection marriages” which are partly valid for some purposes and partly invalid for others. The trial judge therefore was in error when he failed to treat the “connection marriage” as a valid marriage and the Court of Appeal rightly reversed him on that point. Under Cap 127, once both parties to a marriage entered into as a monogamous marriage have capacity to marry and satisfy the statutory conditions under Part 5 of the Ordinance, they voluntarily consent and go through the ceremony of marriage and sign the register, it is a valid marriage and cannot be terminated except through matrimonial proceedings in court. In this case, the monogamous “connection marriage” was not dissolved by a court of law before the customary marriage involving the plaintiff so the customary marriage was void.” Section 44 of CAP 127 is in pari materia to Section 76 of Marriages Act, 1884-1985, CAP 127. In the case of Mrs Nana Ama Twumasi vs Brenya Akosua Twumasi & 1 other; Suit No: H1/127/2022, 10th November 2022 CA, Kyei Baffour JA discussing void marriages delivered himself thus: “Under common law where a party to the celebration of a marriage is already married the second marriage would be deemed to be a void marriage as exemplified in this case where there was no evidence that the first marriage of the late Prof. Patrick Twumasi with the late Maria Sleggers was dissolved before Prof. Patrick Twumasi married the appellant under customary law and later under the Marriage Ordinance, Cap 127. In addition to what would constitute a void marriage under common law, section 42 of the Marriage Ordinance, (Cap 127) also add to the list of incidents whose occurrence would make a marriage void. Among these are where both parties to the marriage Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT knowingly and wilfully acquiesce in the celebration in any place other than the office of a Marriage Registrar or a licensed place of worship save under special license. Two, where the marriage was celebrated under a false name or names. Three, where the parties married without the certificate of a Registrar or the certificate of the Registrar of Marriage. And four where the marriage was solemnised by a person who is not recognised as a Registrar of marriage or a recognised minister of some religious denomination. All these incidents would make marriage void. By section 13(4) of the Matrimonial Causes Act, 1971, Act 367, as long as the marriage of the late Prof. Patrick Twumasi to the late Maria Theresa Sleggers had not been dissolved despite the fact that they lived apart since 1981 and conducted their affairs as divorced couple, the second marriage of the late Prof Patrick Twumasi to the appellant would be deemed to be a void marriage. Being a void marriage there was no need for any action to have been taken towards the annulment of that marriage. In other words, a void marriage would always remain a void marriage and it was only superfluous for an action to have been taken towards its annulment. For the law do not recognise that any such marriage ever existed at all. Besides, it does not matter that it was not the parties to that void marriage themselves that put that matter in issue. It could be raised by a non-party to that void marriage. And it also does not matter whether in the course of the void marriage, Maria Sleggers died for one to think that the void marriage between the late Patrick Twumasi and the appellant would automatically be converted into a legal marriage. For what remains void would also be void. That termination would not be enough to breathe life into the void marriage of the appellant to the late Patrick Twumasi.” The Respondent has admitted in paragraph 9 of her Statement of Defence filed on 24th July 2012 that the deceased and 1st Plaintiff were married. Paragraph 9 provides as follows: “After the marriage, the relationship between 1st Plaintiff and the deceased went sour to the extent that they were unable to reconcile their differences, but since they were staunch members of the Catholic Church they opted for separation rather than a divorce.” Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT There is no better proof of an assertion than an admission by party, that the fact is indeed as asserted by the opposing party making the said assertion. In the case of In Re; Asere Stool; Nikoi Olai vs Amontia IV. (Substituted By Nii Tafo Amon II) V. Akortia Oworsika III (Substituted by Laryea Ayiku III [2005 -2006] SCGLR 637, the Supreme Court held in part, as follows (Holding 2): "Where an adversary has admitted a fact advantageous to the cause of the party, the party does not need any better evidence to establish the fact, than by relying on the admission, which is an example of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts formerly asserted. That type of proof is a salutary rule of evidence based on common sense and expediency." Notwithstanding this admission by the Defendant, and to establish her case, the 1st Plaintiff produced documentary evidence, Exhibits C and D, being the Registrar’s Certificate issued on 5th December 1970 and Certificate of Marriage dated 19th December 1970. Exhibit D evidencing the marriage between Felix Komla Lucky Anthony Wemakor (deceased) and Josephine Abra (1st Plaintiff). The said Exhibit D, which was not challenged by the Defendant confirms the fact that the said two persons were married on 19th December 1970 at the Holy Trinity Cathedral. The 1st Plaintiff therefore succeeded in adducing credible evidence to establish the ordinance marriage between the herself and the deceased. Furthermore, there is a presumption of regularity of the said marriage officiated by Registrar of Marriages by virtue of the provision of section 37 of the Evidence Act 1973, (NRCD 323), which presumes official duty as regularly performed. Additionally, by Section 31 of Evidence Act 1973, (NRCD 323), a marriage celebrated between witnesses, is presumed to be valid. "Section 31 of Evidence Act Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT 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." I therefore find that the 1st Plaintiff was married under ordinance to the deceased. I resolve issue one in favour of the Plaintiffs. The Defendant admits that the deceased and 1st Plaintiff did not divorce but were rather separated. The evidence shows that the 1st Plaintiff’s ordinance marriage to the deceased predates that of the Defendant’s alleged customary marriage to the deceased. Although the Defendant did not provide the exact date of her customary marriage to the deceased the following evidence crucial and relevant to the issue under discussion was elicited during the cross-examination of the Defendant on 11th July 2023: “Q. At the time you got to know Mr. Wemakor, he was married. A. Q. He was not married by then. Mr. Wemakor said that his wife has asked him out. I put it to you that at the time you met Mr. Wemakor you knew that Mr. Wemakor was married with children. A. I did not know. Q. When did you get to know that Mr. Wemakor was married and had children? A. I got to know that Mr. Wemakor was married and had children, he told me that he loves me and that he wants to get married to me and I asked him if he was married and that was when he told me that his wife has asked him out of the marriage. Q. So you knew that Mr. Wemakor was married. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT A. Mr. Wemakor told me that he had a wife but she has driven him out of the marriage. So I told him that if the wife has done this then is because he Mr. Wemakor has done something which is inappropriate. I declined his love proposal to me and he said that he will not agree to that. Mr. Wemakor proceeded by going to my father to talk to him that he loves me and my father asked him if he has no wife. So my father and Mr. Wemakor engaged in conversation for a while but I was not present during that time. My father called me and told me of Mr. Wemakor’s intention getting married to me. So I asked my father what Mr. Wemakor did for his wife to ask him out of the marriage. My father told me that he had engaged Mr. Wemakor in a lengthy conversation, so as to what he did for his wife to ask him out marriage is not my concern and my father added that he is also a man and what I am asking him does not concern me because women can sometimes be troublesome. So my father pleaded with me that Mr. Wemakor had been told what to do and he is pleading with me to accept the proposal because I was young by then and I had also be in a marriage before and left the marriage for 10 years, that is why my father advised that I accept Mr. Wemakor proposal. Q. I am putting it to you that at time you met Mr. Wemakor working at GB Oliver, he was married with children and was living with the wife and children. A. I have not said that Mr. Wemakor was not having a wife at that time. What I said was that Mr. Wemakor told me that he had a wife but she has asked him out of the marriage.” This piece of evidence supports the assertion of the 1st Plaintiff that there was a pre- existing ordinance marriage before the deceased married the Defendant under customary law. I therefore find that the customary marriage contracted between the deceased and the Defendant is void because of the ordinance marriage between the 1st Plaintiff and the deceased which subsisted until the deceased death in the year 2010. Ernestina Boateng case (supra) applied. I therefore resolved issue three in favour of the Plaintiffs. The resolution of issues 1 and 3 renders the consideration of issue 2 moot. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT [5. 2] I shall now proceed to consider issues 4, 5 and 7 since they are interrelated Issue 4 – Whether or not the Defendant assisted in any way in the building of the 1st Plaintiff’s matrimonial home? Issue 5 - Whether or not the Defendant forced herself into the 1st Plaintiff matrimonial home. Issue 7- Whether or not the Defendant was in full control of the matrimonial home and rented part of it during the lifetime of the deceased How did the Defendant prove that she assisted the deceased in the construction of the matrimonial home situate at North West Korle Gonno? The Defendant testified per adopted witness statement that: “I was at my rented apartment when the late Anthony Felix Wemakor sister by name Evelyn Asante (because she is also Evelyn she likes me a lot) came and informed me that, his brother Anthony Felix Wemakor is unwell and the 1st wife had abandoned the man in the house so she is begging me to come and take care of my husband since am also his wife now and because she is his sister the man could not tell him everything he need to be done for him.” The Defendant continued her testimony by stating that she visited the deceased and saw he was sick and looked after him but when she sought to leave, he invited her to sleep over and so she came to stay in the house at the request of Evelyn Asante. The Defendant testifying on contribution towards the construction of the matrimonial home stated that the deceased came to her shop and informed her that he had been given a plot of land at Latebiokorshie and he needed cement but same was in short supply. The Defendant states she offered to go to Ghacem Tema which she did the next day and arranged for the purchase of 500 bags of cement which she paid for and transported to Accra. It is the further case of the Defendant that this was the cement used in building the matrimonial home. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT The evidence elicited from the cross-examination of the 1st Plaintiff by Counsel for the Defendant on 31st May 2023 is relevant to the issues under consideration. The relevant part of the cross-examination is as follows: “Q. I am putting it to you that it was the Defendant who aided Mr Wemakor to put up the A. Q. A. Q. matrimonial home at Soko. It is not true. The purchase of cement for the entire house was done through the Defendant who had a friend at Ghacem. It is not true. I am also putting it to you that when the cements were brought it was kept somewhere behind Plaza at Korle Gonno. A. During those time I was living there with my husband behind Plaza at Korle Gonne, so if Defendant is saying that cement were brought there before moving some to site I am not sure it is true. Q. I am putting it to you that the cements were brought to a place behind Plaza and not A. Q. A. Q. where you and your husband were living. I do not know anything about this. And from there cements were taken to the site in Soko to work. I do not know anything about this movement despite I stayed there with my husband. I am also putting it to you that you do not know anything about it clearly shows that you did not help the man in building that house but rather the Defendant helped him. A. I helped my husband in putting up this house and where we even bought the cement I know there and the one who was engaged as a mason.” The 1st Plaintiff denied the Defendant’s suggestion that she bought cement from Tema and assisted in the construction of the matrimonial home. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT Exhibit E is an lease dated 1969 between Emmanuel Quarshie Ahia and the deceased. Clearly the property in dispute was acquired by the deceased before his void customary marriage to the Defendant. If the Defendant had indeed purchased the cement for the matrimonial home as she would want the Court to believe at least the waybill to take the cement from the warehouse would have sufficed to support her assertion. The case of 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.” Simply put, to proof a fact is more than merely rehashing an allegation either by the party himself/herself or his/her witnesses on oath. See the case of Klah vs Phoenix Insurance Co Ltd [2012] 2 SCGLR 1139. The party alleging an issue must produce sufficient evidence of facts, which on the whole, leads to the reasonable inference of the existence or non-existence of the fact alleged. From the above analysis I find that the Defendant has not discharged the burden on her regarding the assistance to the deceased to build the matrimonial home. I resolve issue 4 against the Defendant. Flowing from the holding that the Defendant’s marriage to the deceased is void how she came into Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT the matrimonial home is inconsequential. I consider issue 5 moot. Presently the Defendant is not a beneficiary of the estate of the deceased although her daughter is a beneficiary. The Defendant has pleaded that she was in absolute control of the running and maintenance of the matrimonial home. She pleads further that the deceased permitted her to rent two (2) outer rooms in the matrimonial home to cater for the maintenance of the property. There is no better proof of an assertion than an admission by party, that the fact is indeed as asserted by the opposing party making the said assertion. I therefore find that the Defendant was in full control of the matrimonial home and rented part of it during the lifetime of the deceased. I therefore resolve issue 7 against the Defendant. The case of In Re; Asere Stool; Nikoi Olai vs Amontia IV applied. [5.3] Whether or not the deceased left Ghana and permanently settled in Lome This issue is not germane to the resolution of the main issues raised by the Claim and Counterclaim. Both the Plaintiffs and Defendant have testified that the deceased moved to stay in Togo. The point of departure is whether he settled there permanently visiting Ghana occasionally or he never settled permanently in Lome but was rather visiting Lome from time to time. [5.4] Jurisdiction of the Court in relation to Plaintiffs’ relief iii The Plaintiffs’ relief iii is for a declaration that the Defendant’s conduct and activities with the deceased H/No. 700/1B Sempe New Town constitute intermeddling with the estate. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT What constitutes intermeddling? Order 66 rule 3 of CI 47 is the written law that defines the offence of intermeddling. Order 66 rule 3 reads as follows: “Intermeddling with property 1. Where any person, other than the person named as executor in a will or appointed by Court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator and shall in addition be guilty of the offence of intermeddling and liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or to both.” Rule 3 charges anyone other than an executor or an administrator who takes possession of properties of a deceased person with the responsibilities and obligations of an executor or administrator and in addition be punished if he or she breaches any of the obligations. See the case of IN RE APPAU (DECD); APPAU v. OCANSEY [1993-94] 1 GLR 146 the court of appeal per Brobbey JA (as he then was) held as follows: “the general rule was that since an administrator derived his authority entirely from the appointment of the court, a party who was entitled to administration could not do anything as an administrator before letters of administration were granted to him. Accordingly, a subsequent obtention of letters of administration could not exonerate him from liability for intermeddling in the estate, unless the doctrine of relation back was applied to make the grant of the letters of administration retroactive from the date of death of the deceased so as to validate acts performed on behalf of the estate after his death. But the doctrine of relation back only operated where the Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT action of the intermeddler was for the benefit of the estate. Since the sale of the two vehicles by the respondent was not for the benefit of the estate of the deceased, the doctrine of relation back was inapplicable in the instant case. Consequently, that doctrine could not be invoked as a defence for the respondent’s intermeddling in the estate of the deceased. (2) Order 60, r 3 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) was explicit that a person who merely took possession of or administered the estate or asset of a deceased person was liable for intermeddling so long as that person was not an administrator. Accordingly, since it was clear that at the time the respondent took the vehicles and entirely disposed of them he was neither an administrator appointed by the court nor even a successor appointed by the family of the deceased, he was a fortiori liable for intermeddling in the estate within the terms of Order 60, r 3 of LN 140A”. Given that intermeddling is now a criminal offence and must be prosecuted per the Supreme Court decision in The Republic vs High Court(Commercial Division), Accra Exparte Yvonne Amponsah Brobbey (Applicant) and Gladys Nkrumah (Interested Party), Civil Motion No. J5/82/2022, 1st February 20233, the issue of intermeddling may be taken up in the appropriate forum in terms of proof and the requisite remedies in case it is made out. [5.5] Plaintiffs reliefs iv and vi The Plaintiffs prayed for an order for the Defendant to account in respect of the three rooms rented by the Defendant to Tenants per their relief iv. Timeframe has not been stated. The deceased died in 2011. 3 “…The default procedure for the trial of the offence under section 17 of PNDCL 111 would be the procedure prescribed under section 1(2) of Act 30…furthermore article 88(3) of the Constitution is clear about who may institute criminal proceedings.” Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT The prayer for the order of accounts goes beyond the period set out in the Section 4(3) of the Limitation Act,1972, Act 54. The Limitation Act provides as follows: “4. Actions barred after six years … (2) A person shall not bring an action for an account in respect of a matter which arose more than six years before the commencement of the action. (emphasis mine)” It would create an absurdity to injunct the Defendant from entering H/No. 700/1B Sempe New Town when her daughter might be a beneficiary of part of the property. I shall turn my attention to Issue 9 which is whether the Defendant is entitled to her Counterclaim. [6] Whether the Defendant is entitled to her Counterclaim Where in an action, the parties claim and counterclaim for declaration of title to the same piece of land, each party bears the onus of proof as to which side has a better claim of title against his/her adversary, for a counter claimant is as good as a Plaintiff in respect of a property which she/he assays to make his /her own. Also a Defendant who files a counterclaim assumes the same burden as a Plaintiff in the substantive action if he or she is to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof required by sections 11 and 14 of NRCD 323 of Evidence Act, 1975. See Osei v Korang [2013]58 GMJ 1 SC at page 22 per Ansah JSC See also Abed Nortey v African Institute of Journalism [2014] 77 GMJ 1 SC. The nature of the Defendant’s burden in the Counterclaim which is a suit on its own has been more appropriately captured by the dictum of Brobbey JSC (as he then was) in In Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT Re Ashalley Botwe Farms Adjetey Agbosu & Ors. vs Kotey & Ors. (2003 – 2004) SCGLR 420 where he stated thus: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything; the Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence, the defendant must realize that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose…..” The Defendant counterclaimed for the following reliefs: i. “A declaration that 1st and 2nd Plaintiffs obtained the letters of administration to administer the estate of the late Anthony Felix Wemakor by fraudulent misrepresentation. ii. An order to set aside the grant of the letters of administration. iii. Further or other reliefs as in the circumstances of this case may be just, fit or proper”. The Defendant therefore bears the onus of proof in respect of her counterclaim. However, before proceeding to consider the Counterclaim on its merits there is a procedural hurdle that Defendant has to overcome. Defendant relief ii is for the revocation of the letters of administration granted to the Plaintiffs. [6.1] The competence of the Defendant relief ii Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT Is the Defendant relief ii of her Counterclaim because is incompetent it fails to fulfil a mandatory rule of Court- Order 66 rule 33(3) of High Court (Civil Procedure) Rules, 2004, C. I. 47 and S67 of the Administration of Estates Act, 1963, Act 63. Order 66 rule 33 of High Court (Civil Procedure) Rules, 2004, C. I. 47, provides as follows: (1) “A probate action shall be commenced by writ. (2) The writ must be indorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased. (3) Before a writ for revocation of the grant of probate of a will or letters of administration of the estate of a deceased person is issued out, notice shall be given under rule 37, unless the probate or letters of administration has or have been lodged in the registry of the Court. (emphasis mine)” Order 66 rule 37 of High Court (Civil Procedure) Rules, 2004, C. I. 47, provides as follows: “Notice to bring in grant (1) Where an action is brought for the revocation of a grant of probate or letters of administration of the estate of a deceased person, the plaintiff shall serve a notice on the person to whom the probate or letters of administration is granted requiring the person to bring and leave at the registry of the Court the probate or letters of administration. (emphasis mine) (2) A person on whom a notice is served under subrule (1) shall comply with the notice not later than four days from the date of service of the notice. (3) Where a person served with a notice under subrule (1) does not comply with it within the time specified, the plaintiff may apply to the Court for an order directing that the probate or letters of administration shall be brought and left at the registry of the Court within such time as the Court may specify”. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT Section 67 of the Administration of Estates Act, 1961, Act 63 provides as follows: “Where administration is granted in respect of an estate of a deceased person, a person shall not bring an action or otherwise act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant is recalled or revoked.4” A citation must be filed before an action to revoke letters of Administration/Probate is commenced or at the time the Writ of Summons/Counterclaim is filed. In the case of Mary Okailey Welbeck vs Simon Tackie Welbeck, SC, Civil Appeal No. J4/45/2014. Justice Akamba JSC (as he then was) held as follows: “It is also important to stress that any action initiated under Order 66 rules 25 to 29 must comply with rules 32 to 43. This does not appear to have been the case when the appellant embarked on her initiative.” In the Case of Heward-Mills Vs. Heward-Mills [1992] 1 GLR 153 the Court of Appeal held as follows: “Where a statutory condition must be complied with before a court could have jurisdiction to make an order, failure to comply with such a condition would leave the court with no discretion to make any order or orders in the matter. Order 4, R 5(1) and (2) and Order 6 R 2(3) and 6(1) of the Probate and Administration Rules, 1991 (L. I 1515) made it clear that before a person could cause the issue of a writ to revoke a grant of probate he should first have served a notice on the person to whom the probate had been granted, requiring him to bring and leave at the registry of the court, the probate that had been granted to him.5” 4 Bonsu vs Eyifah and Another [2001-2002] 1 GLR 9 5 THE REPUBLIC vs HIGH COURT (PROBATE & ADMINISTRATIVE 2) ACCRA, EX PARTE ELIZABETH DARKO, TRACY OPOKU DARKO & 3 OTHERS, INTERESTED PARTIES, CIVIL MOTION NO. J5/31/2021. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT Relief ii of Defendant’s Counterclaim is one undoubtedly regulated by the provisions of Order 66 rules 33(3) and 37(1) of C. I. 47. The combined effect of the provisions of Order 66 rules 33(3) and 37(1) of C. I. 47 is that before a Writ/Counterclaim for the revocation of the grant of letters of administration is issued notice must be given under rule 37, to the person to whom the letters of administration is granted requiring the person to bring and deposit at the registry of the Court, the Letters of Administration. The question provoked by this situation is this: whether the Defendant complied with Order 66 rule 33(3) of CI 47 and Section 67 of Administration of Estates Act, 1961, Act 63? The only way to answer the question posed is a careful study of all processes filed by the Parties to ascertain if she complied with the condition precedent, before or at the time of Defendant filing her Counterclaim. The Defendant filed her Statement of Defence and Counterclaim on 20th December 2012. No citation was filed before the filing of the Statement of Defence and Counterclaim. I shall therefore proceed to strike out relief “ii” of the Defendant’s Counterclaim as a nullity due to Defendant’s failure to satisfy the condition precedent as determined above. [6.2] Issue 8: Whether the Letters of Administration granted to the Plaintiffs was obtained by fraud and misrepresentation Order 11 rule 8(1) of CI 47 requires the Defendant to plead fraud. Order 11 rule (8) of CI 47 provides as follows: (1) A party shall in any pleadings subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality. The Defendant in paragraphs 18 and 19 of her Statement of Defence pleaded as follows: “18. In further answer to paragraph 21 of the Statement of Defence Defendant maintains that, if letters of administration was ever granted to 1st & 2nd Plaintiffs to administer the estate Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT of the deceased it was done without notice to her daughter and the two (2) other children. Albeit, there was no publication of notices at the last known place of abode of the deceased to enable the lodgment of a caveat. 19. By reason of the matters aforesaid, defendant will contend that the letters of administration granted 1st and 2nd Plaintiffs to administer the estate of the deceased was procured by fraudulent misrepresentation and the same must be set aside.” The Plaintiffs have contested the Defendant’s pleadings on the allegation of fraud as substantially inaccurate. They submit in paragraph 18 of their Reply that the Defendant was aware of the letters of administration. Bailiff from the High Court came to the house and pasted notices for 21 days and in the full glare of the Defendant. Defendant’s daughter was also contacted but she insulted the Head of family who informed her about it. Though the Defendant pleaded fraud she was silent on her allegation of fraud in her adopted witness statement which constituted her evidence-in-chief before the Court. Thus in the case of Re Agyepong (Decd) Poku v Abosi [1982-83] GLR 254 CA the Court of Appeal decided that fraud is a ground for the revocation of grant of probate or letters of administration. The Court held that: “A grant obtained by fraud, mala fide, or by concealing information which should have been disclosed to the court might also be revoked…The circumstances surrounding the fraud must be inconsistent with any other view but that of the fraud”. In the case of In re Caesar (Decd); Ceasar and another v Kwapong and Another [1974] 2 GLR 248 the court held that revocation could only be for just cause, e.g., where a grant had been obtained fraudulently and mala fide by making a false suggestion or by concealing from the court something material to the case, which should have been disclosed. On the facts the conduct of K was not fraudulent. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT From the evidence adduced was the Defendant able to establish that the grant of letters of administration made to the Plaintiffs on 12th September 2011 was made fraudulently?. There is no doubt that the Plaintiffs are the surviving spouse and child of the deceased and qualify for grant of Letters of Administration in terms of the order of priority outlined in Order 66 rule 13(a) & (b) of CI 47 because the deceased died intestate after the enactment of PNDCL111. Order 66 rule 14(2) of CI 47 states that “where two or more persons are entitled to a grant in the same degree, the Court may make a grant to any one of them without joining the others.” The Court has discretion per Section 79 of Act 63 to make grants of Letters of Administration. Therefore if the High Court then in its discretion granted Letters of Administration to the Plaintiffs without joining of the three other children of the deceased in the considered view of this Court does not amount to fraud. 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: Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT “ 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.” The Defendant has failed to sufficiently discharge its statutory burden which is proof beyond a reasonable doubt as required under Section 13(1) of the Evidence Act, NRCD323. See the case of Fenuku vs John Teye [2001-2002] SCGLR. Merely pleading that there was no publication of Notice at the deceased last known place of abode and no notice was given to deceased three other children does not constitute fraud. See Order 66 rule 10(2) of CI 476. As Lord Herschell said in Derry vs Peek to make a case of false misrepresentation against the Plaintiffs “fraud is proved when it is shown that a false representation has been made (1) knowingly or (2) without belief in its truth or (3) recklessly, careless whether it be true or false… to prevent a false statement being fraudulent, there must be, I think always be an honest belief in its truth and this probably covers the whole ground for one who knowingly alleges that which is false has no such honest belief.” I find that the letters of administration granted on 12th September 2011 to the Plaintiffs was not obtained fraudulently. I resolve issue 8 against the Defendant. From the totality of the evidence led, I hold that the Defendant’s Counterclaim fails entirely 6 Order 66 rule 10(2) of CI 47: Where the grant is in respect of the estate of a person who died intestate, notice must be given whenever practicable to all persons entitled to a share of the estate of the deceased under the Intestate Succession Law, 1985 (P. N. D. C. L111); the Court may, however dispense with such notice to beneficiaries if it considers it expedient to do so. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT specifically reliefs I and iii and same is accordingly dismissed. [7] Conclusion Having reviewed all the evidence and taking into consideration my analysis above, it is my conclusion that the Plaintiffs have adduced evidence to persuade the Court to grant them the reliefs they seek. I therefore enter judgment on the Plaintiffs’ Claim as follows: 1. Relief I – The Defendant’s customary law marriage to the late Anthony Felix Wemakor is void. 2. Relief ii - I grant declaratory relief ii that the Defendant is not a beneficiary of the estate of the late Anthony Felix Wemakor. 3. Relief iii – Relief iii is dismissed. 4. Relief iv – I order the Defendant to render Account in respect of the three rooms she has rented to the Administrators of the Estate of the deceased from the year 2017 to date within 30 days from today and pay any monies if any due the estate of the deceased after the accounts have been made. 5. Relief v - I order recovery of vacant possession of the rooms being occupied by the Defendant in H/No. 700/1B Sempe New Town, Accra in favour of the estate of the deceased, forthwith. 6. Relief vi - I grant perpetual injunction restraining the Defendant, her agents, assigns, and workmen from interfering with all beneficiaries of H/No. 700/1B Sempe New Town, Accra, quit enjoyment of same. Cost of GH¢5,000.00 awarded in favour of Plaintiffs. Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT (SGD.) H/L EUDORA CHRISTINA DADSON (MRS) JUSTICE OF THE HIGH COURT Suit No: BFA 91/2012 – MRS JOSEPHINE WEMAKOR & 1 OTHER VRS MADAM EVELYN JOHNSON - JUDGMENT