ZOGLIE VRS ZOGLIE (PA/869/2020) [2024] GHAHC 34 (25 January 2024)

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 25TH JANUARY 2024 BEFORE HER LADYSHIP JUSTICE EUDORA CHRISTINA DADSON. -------------------------------------------------------------------------------------------------------------------- KENNEDY FRANCIS ZOGLIE H/NO. AM 057 AMASAMAN VS PAUL KWESI ZOGLIE AMASAMAN SUIT NO. PA/869/2020 } } ... PLAINTIFF } } ... DEFENDANTS } --------------------------------------------------------------------------------------------------------------------- PARTIES: PLAINTIFF ABSENT DEFENDANT PRESENT COUNSEL: J. K. YEBOAH FOR THE PLAINTIFF ABSENT EDEM AMADZOR FOR THE DEFENDANT PRESENT -------------------------------------------------------------------------------------------------------------------- JUDGMENT --------------------------------------------------------------------------------------------------------------------- [1] Introduction SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 1 of 27 This case brings to fore issues of death and succession to a grandfather’s estate by his grandchildren. The Plaintiff issued a Writ of Summons and an accompanying Statement of Claim on 30th April, 2020 for the following reliefs; a. “A declaration by the Court that upon the death interest(sic) of their father he and his other siblings are entitled to inherit their father’s estate which included the chamber and hall and a porch, the spot, and the two shops their late father inherited on the death of their late grandfather. b. Perpetual injunction against the defendant, his agents, workers, privies, or any other person or entity that claims through the defendant from in anyway interfering with the house built by plaintiff’s late father. c. Any other reliefs that the court may consider appropriate. d. Cost.” The Defendant entered conditional appearance on 11th May 2020 and filed his Statement of Defence on 24th August 2020. The Defendant filed counterclaimed as follows: i. “A declaration that Defendant and his 7 other siblings are beneficiaries in equal share in the estate of the late Victus Kudoto Zoglie being House No. 71, Amasaman. ii. An order that Defendant should proceed to obtain the Letters of Administration from the Court to Administer the estate of the late Victus Kudoto Zoglie being House No. 71, Amasaman. iii. An Order that upon the grant of the Letters of Administration, the Defendant should immediately demolish the existing structures on the land and redevelop the land in a way that all the 8 children of Victus Kudoto Zoglie will benefit equally from the state. iv. An Oder directed at the Defendant to vest each beneficiary’s share in them by executing a vesting assent in their respective favour. v. Costs.” [2] The Plaintiff’s Case SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 2 of 27 The Plaintiff testified per his adopted witness statement that the father of his late father Simon Kofi Zoglie was Victus Kudoto Zoglie who died several years ago. According to the Plaintiff his late Grandfather put up a mud house otherwise known as swish house at Amasaman numbered H/No 071. It is the further case of the Plaintiff that his late grandfather gave the land to his late father, the frontage of which the Plaintiff has his drinking Bar at the moment. According to the Plaintiff after the death of his late grandfather the house which he built that is the mud house at Amasaman was shared among his children. The Plaintiff continues his testimony as follows: “On the same day that they shared the house, that they shared the house, that of my grandmother three chamber and halls were also added to that of my late grandmother and shared among their children who were eight in number. Five women and three men. My late father was given a chamber and hall and Kwaku Zoglie was also given a chamber and hall. Florence Zoglie, Bertha Zoglie and Veronica Zoglie all got a chamber and hall. Felicia was given two single rooms and Comfort one. I was given one room because of the expenses I incurred for the renovation of my grandfather’s house.” [3] Defendant’s Case The Defendant testified per his adopted witness statement that his late father Victus Kudoto Zoglie acquired the property the subject-matter of the suit during his lifetime and built 4 single rooms and 3 chamber and halls on it and the size of the land was about 100 feet more or less. It is Defendant’s case that his father died on 10th September 1979 at Akefe in the Republic of Togo without a Will. According to the Defendant his late father had eight (8) children out of which six (6) children are deceased and their names are Joseph Kwaku, Simon Kofi, SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 3 of 27 Felicia, Comfort, Bertha and Veronica Koglie. The only children alive are Florence Koglie and the Defendant. It is the further case of the Defendant that since his father died his property being H/No. 073 Amasaman has not been officially shared among the beneficiaries because no one applied for Letters of Administration to administer the estate of the late Victus K. Zoglie and to distribute and vest same in the beneficiaries. According to the Defendant because the deceased estate has not been officially distributed among the beneficiaries some of the beneficiaries including the defendant have on their own taken portions of the house leading to a situation where some beneficiaries have taken more than others while some beneficiaries have got nothing at all. An instance is the sibling Veronica who did not get a share of the estate and her children are agitating for their mother’s share. It is the case of the Defendant that Florence Zoglie and himself were granted letters of administration in respect of the estate of their deceased father. The Defendant’s evidence was that Plaintiff’s late father built a chamber and hall and store on the land in issue. He also built 5 single rooms which have now been converted into chamber and hall with porch and distributed among the 5 women with whom Plaintiff’s late father bore children. Plaintiff’s late brother Anthony Zoglie also built a chamber and hall with porch on the land. The Defendant states that the Plaintiff demolished his grandmother’s corn mill after her death and built a drinking spot in place of the corn mill at the frontage of the house from where he has been operating his business. The Defendant contends that in his estimation the Plaintiff and his late father alone have occupied about 80% of the land left behind by his late father, and that his late father never gifted the portion of land on which the Plaintiff’s father built his house to him. SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 4 of 27 According to Defendant the land he put his building on his self-acquired property acquired from the Chief of Pokuase Nii Otto Kwame II. [4] The Issues At the close of pleadings, the following issues were set down by the Court for determination of the controversy between the parties: 1. “Whether or not the property in issue forms part of the estate of the late Victus Kudoto Zoglie, father of Defendant and grandfather of Plaintiff. 2. Whether or not Defendant’s land was given to him by Plaintiff’s late grandfather. 3. Whether or not Plaintiff’s father had the right to give a portion of the land to Plaintiff to build his spot. 4. Whether or not Letters of Administration were obtained in respect of the estate of Victus Kudoto Zoglie. 5. Whether or not the estate left behind by the late Victus Kudoto Zoglie was distributed and vested in the beneficiaries of the estate. 6. Whether or not it is the place of the Plaintiff to determine which particular portion of the estate of his grandfather should be given to him and his siblings. 7. Whether or not the Defendant is entitled to his counterclaim.” 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. The Plaintiff testified and called one witness Regina Yaa Zoglie a.k.a Awotor. The Defendant’s evidence was proffered by himself and also called one witness Micheal Zoglie Jnr. [5] The burden of proof, burden of persuasion SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 5 of 27 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”. 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 his pleadings with a counterclaim, also carry the burden of proving the facts alleged in his Defence and Counterclaim to the same degree as the burden the Plaintiff carries in proving his claim against him. 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 vs Akwasi 111 [1994-95] Ghana Bar Report, 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 SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 6 of 27 support of the Plaintiff’s 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 Plaintiff bears the evidential burden to adduce sufficient evidence if he is to secure a ruling on the existence or non-existence of the fact that the Plaintiff is entitled to a share of the estate of his late grandfather’s estate which devolves unto his father. In the case of Ackah v 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…” However, a different standard is used if the Defendant counterclaims to the Plaintiff’s action. Order 12 rule 1 of CI 47 states “a defendant who alleges that he has a claim or is entitled to a relief or remedy against the plaintiff in an action in respect of any matter, whenever and however arising, may instead of bringing a separate action make a counter-claim in respect of that matter”. Therefore, a counterclaimant is deemed to be the Plaintiff in respect of the counterclaim. The Supreme Court in the case of Gbedema vs Awoonor Williams (1970) CC 12 discussed the nature of a counterclaim as follows: “a counterclaim is to all intents and purposes an action by a respondent against the applicant. It is an independent and separate action”. The Court relied on the case of Winterfield v Bradnum 3 QBD 324 in which Bret L.J. said at page 326 as follows: “A counterclaim is sometimes a mere set off: sometimes it is in a nature of cross action, sometimes it is in respect of a wholly independent transaction. I think the true mode of considering the claim SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 7 of 27 and counter-claim is that they are wholly independent suits which for convenience of procedure are continued in one action”. Lord Esher M. R. in Stumore vs Campbell & Co (1892) 1 QBD 314 at page 317 said “For all purposes except execution, a claim and counterclaim are two independent actions”. Therefore, it is settled that a counterclaim is in law a separate and independent action which is tried together with the original claim of the Plaintiff. This means that, if in the course of an action in which there is a counterclaim, the Plaintiff action is struck out, dismissed, discontinued or stayed, the Defendant can proceed to prosecute his counterclaim. See Fosuhene vs Atta Wusu [2011] SCGLR 273B and, In Re Will of Bremansu Akonu-Baffoe & ors vs Buaku & Vabdeyke (Substituted by) Bremansu (2012) 2 SCGLR 1 313 The law is thus clear that in circumstances such as the instant one, both Plaintiff 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. See Yeboah vs Ahele [2012] 44 GMJ 37 CA. The degree of proof required is proof on the preponderance of probabilities. [6] The Court’s Evaluation of the Evidence The Plaintiff’s came to Court and dragged the Defendant along in respect of this issue it is the Plaintiff’s who will lose first, and therefore has the duty or obligation to lead evidence to forestall a ruling being made against him. Has the Plaintiff adduced sufficient evidence on this issue to forestall a ruling being made against him? It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 8 of 27 on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. 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 her bare affirmation on oath or the repetition of her averments in the witness box cannot constitute proof. 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 vs Adu (1984-86) 1 GLR 653. I shall now proceed to determine issue one. ]6.1] Issue one: Whether the property in issue forms part of the estate of the late Victus Kudoto Zoglie, father of Defendant and grandfather of Plaintiff. How did the Plaintiff prove this? The Plaintiff testified per his adopted witness statement that “my grandfather put up a mud house otherwise known as Swiss house at Amasaman. The house is numbered as H/No. 071…After the death of my grandfather, the house which he built that is the mud house at Amasaman was shared among his children. On the same day that they shared the house, that of my grandmother three chamber and halls were also added to that of my late grandfather and shared among their children who were eight in number. Five women and three men.” What properties constitute the property in dispute? The Plaintiff has testified that where his father built his chamber and hall with a porch was not among the properties of his late grandfather and it remained his personal SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 9 of 27 property with House No. 073 which is different from that the late Victus K. Zoglie which was 071. From the evidence of the Plaintiff, the estate of the late grandfather has been described as H/No. 71, Amasaman and when the Plaintiff was cross-examined by Counsel for Defendant on 15th November 2021 he described the land as numbered 071 and described further that it consisted of 3 single rooms and 4 chamber and hall. Below is an extract of the said cross-examination: Q: “It is your claim that your grandfather acquired a parcel of land at Amasaman, what is the size of this land? A: I cannot describe the size of the land because is a big land. Q: Has your grandfather’s property been numbered. A: My grandfather built a house on the land and is being numbered as 071. Q: How many building did your grandfather put up on this said land? A: He built 3 single rooms and 4 chamber and hall.” The Defendant had this to say on the issue what constituted the property of his late father: “My late father Victus Kudoto Zoglie acquired the property the subject-matter of this suit during his lifetime and built 4 single rooms and 3 chamber and halls on it. The size of the land is about 100 by 100 feet more or less…Since my father died his property being Hse No. 073, Amasaman has not been officially shared …”. Pleadings are the pegs on which the party’s evidence hangs. The Defendant has pleaded in paragraph 16 of his Statement of Defence that “Defendant says that the land in issue is House No. 71 Amasaman, which contains 8 single rooms built by Plaintiff’s late grandfather, the chamber and hall built by Plaintiff’s late father and the drinking bar built by the Plaintiff.” The Defendant in his witness statement which was adopted as his evidence-in-chief stated that “since my father died his property being Hse No. 073 Amasaman has not been officially shared”. Defendant has described the late father’s property as H/No. 73 SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 10 of 27 Amasaman. The issue is what is the property number of the property left behind by Victus K. Zoglie (deceased)? The Defendant during cross-examination by Counsel for Plaintiff on 13th February 2022 explained that the change in the House Number maybe due to an error. Below is the extract of the cross-examination for the day relevant to these proceedings: Q. A. “I am putting it to you that H/No. 073 is the house number of the Plaintiff’s late father. That is why I explained that the houses are close and may be there has been some mistake somewhere that is why it happened like that. (emphasis mine) Q. I am also putting it to you that H/No.071 is the house number of the mud house your late father put up at Amasaman. A. Yes My Lady”. The Plaintiff from the reliefs sought is seeking a share of his father’s estate which he also inherited from his deceased father. Both parties to the suit are ad idem that the late Victus Kudoto Zoglie had property at Amasaman on which there was a certain level of development on it. The Defendant cannot approbate and reprobate in the teeth of his own admission in his pleading. The Defendant has admitted per his pleadings and evidence that his late father died possessed of H/No. 71, Amasaman. In Re: Asere Stool Affairs (2005-2006) SCGLR 637 the law was stated that where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission. I therefore find that the property in dispute in this case is H/No. 71, Amasaman and it forms part of the Estate of Victus Kudoto Zoglie. I therefore resolve Issue 1 in favour of the Plaintiff. I shall now proceed to resolve Issues 4, 5 and 6 since they are interrelated. [6.2] Issue 4: Whether or not Letters of Administration were obtained in Respect of the estate of Victus Kudoto Zoglie. SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 11 of 27 Issue 5: Whether or not the estate left behind by the late Victus Kudoto Zoglie was distributed and vested in the beneficiaries of the estate. Issue 6: Whether or not it is the place of the Plaintiff to determine which particular portion of the estate of his grandfather should be given to him and his siblings. The Defendant testified under oath that in the year 2020 he applied for the grant of letters of administration in respect of the estate of his deceased father together with his sister Florence Zoglie. However the grant made was yet to be sealed by the Court. The Defendant testified as follows on this issue: “I have since been appointed together with Florence Zoglie by the family to apply for and obtain letters of administration to administer the estate of my late father which estate is solely comprised of House No. 073, Amasaman. On 28th of July 2020 the High Court, Probate and Administration Division, Accra granted Letters of Administration to Florence Zoglie and I subject to posting of the notice of next of kin on the property of my late father’s estate for 21 days but we are yet to comply with the directive of the Court”. Counsel for the Plaintiff when cross-examining Defendant on 13th February 2023 suggested to him that since he could not produce the Letters of Administration certificate the grant had not been made. What proof did the Plaintiff produce that the grant of letters of administration had not been made save to suggest same under cross-examination by his lawyer? Below is the extract of the cross-examination conducted on 13th February 2023: “Q: You have also stated by your witness statement that the family of your late father has nominated you and Florence Zoglie to apply for Letters of Administration to administer the house of your late father. A: Yes My lady. The whole thing started when we had a family meeting including my son that he wanted some renovation of the house. SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 12 of 27 Q: The decision to apply for Letters of Administration was in 2020, not so? A: Q: A: Q: Yes My Lady. As you sit here, February 2023, can you produce a copy of the Letters of Administration according you were mandated to apply for in respect of the estate of your late father. No. I am putting it to you that you have not obtained Letters of Administration in respect of the estate of your late father as you sit here, not so. A: Yes as at now I cannot produce any Letters of Administration because we never thought this issue will pop up.” From Defendant’s evidence after the grant the notices have not even been posted. Definitely he cannot produce the Letters of Administration certificate however court notes for the day of the grant could have been applied for and produce however this Court does not deem the absence of the Letters of Administration certificate fatal to the case of the Defendant. [6.2.1] Necessity to apply for Letters of Administration An administrator is a person appointed by a court of competent jurisdiction to administer the property of a deceased person and are accountable to the Court in the exercise of their duties. The office of the administrator is said to be dative because it derives from such grant. The administrator derives his title entirely from the grant of letters of administration and the deceased’s property does not vest in him until the grant, so he cannot make a lease or other disposition before the grant1. See the case of Republic vs High Court, Sekondi, Exparte Mensah [1994-95] GBR 491. Section 79 of the Administration of Estate Act, 1961, Act 63 reads as follows: “Discretion as to grant of administration 1 D. Adu-Gyamfi, Handbook on Probate & Administration Practice in Ghana (with Precedents) page 90 SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 13 of 27 (1) Subject to this section, the selection of a personal representative is within the discretion of the Court. (2) In granting administration the Court shall consider the rights of the persons interested in the estate, and, in particular, administration with the will annexed may be granted to a devisee or legatee and the administration may be limited in the way that the Court thinks fit. (3) The Court may, (a) where the deceased person died wholly intestate, grant administration to one or more persons interested in the residuary estate of the deceased person, if they make an application for the purpose; and (b) if by reason of the insolvency of the estate of the deceased person, or of any other special circumstances, it appears to the Court that it is necessary or expedient to appoint as administrator a person other than the person who, but for this provision, would by law have been entitled to the grant of administration, despite anything in this Act, appoint as administrator the person who the Court thinks expedient, and an administration granted under this provision may be limited in the way that the Court thinks fit. (4) Where it appears to the Court that an estate vested in the successor of the deceased person under customary law is being duly dealt with, the Court may refuse to grant an application for administration not made by or with the concurrence of the successor”. The Court had jurisdiction under Section 79 to make a grant of letters of administration to those entitled. Letters of administration of the estate of a deceased person are granted where the deceased died wholly intestate. The grant is usually required to enable the estate of the deceased to be realized and administered, but a grant may also be made where the deceased left no estate2. 2 Tristam and Coote’s Probate Practice,23rd Edition, J.E.N Russell, W.J Pickering & G. F Dawe, page 179 SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 14 of 27 In terms of the order of priority under Order 66 rule 13 (a) to (d) for grant of letters of administration the Defendant as a son of the late Vitus Kudoto Zoglie qualify for the grant of letters of administration in respect of his estate and not the Plaintiff. I find that the Defendant and Florence Zoglie have been granted letters of administration in respect of the estate of Victus Kudoto Zoglie. I resolve Issue 4 in favour of the Defendant. [6.2.2] I now turn my attention to issue 5: Issue 5: Whether or not the estate left behind by the late Victus Kudoto Zoglie was distributed and vested in the beneficiaries of the estate. The nagging question is, when a person dies intestate is it mandatory to obtain letters of administration before his estate is distributed? How did the Plaintiff prove this? According to the Plaintiff after the death of his late grandfather the house which he built that is the mud house at Amasaman was shared among his children. The Plaintiff continues his testimony as follows: “ On the same day that they shared the house, that they shared the house, that of my grandmother three chamber and halls were also added to that of my late grandmother and shared among their children who were eight in number. Five women and three men. My late father was given a chamber and hall and Kwaku Zoglie was also given a chamber and hall. Florence Zoglie, Bertha Zoglie and Veronica Zoglie all got a chamber and hall. Felicia was given two single rooms and Comfort one. I was given one room because of the expenses I incurred for the renovation of my grandfather’s house.” It is the further case of the Plaintiff that all the properties of his late grandfather were shared upon his death in accordance with Ewe customary law. Therefore the recent grant SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 15 of 27 of Letters of Administration to the Defendant was of no effect since the properties of his late grandfather had long been shared or distributed as aforesaid. This evidence is countered by the Defendant who testified per his adopted witness statement that since his father died his property being H/No. 073 Amasaman has not been officially shared among the beneficiaries because no one applied for Letters of Administration to administer the estate of the late Victus K. Zoglie, to distribute and vest same in the beneficiaries. This Court has found that the property Number is 071 is the property of the late Victus Kudoto Zoglie. According to the Defendant because the deceased estate has not been officially distributed among the beneficiaries some of the beneficiaries including the Defendant have on their own taken portions of the house leading to a situation where some beneficiaries have taken more than others while some beneficiaries have got nothing at all. The evidence of both parties to the suit establish a certain pattern that though Letters of Administration had not been obtained in respect of the estate of the deceased there was some distribution of the estate done. Clearly the distribution done was not warranted by law since letters of administration had not been granted. The Defendant admit that Letters of Administration has been granted to Florence Zoglie and his goodself yet 4 years down the line yet no effort has been made to have the grant sealed. If whatever distribution made has been is set aside are the beneficiaries to wait on clearly indolent Administrators to take their own sweet time to post the notices, pay the estate duty and get the Letters of Administration Certificate sealed? The conduct of Defendant in this regard has been very tardy. I find that more 45 years after the demise of the late Victus Kudoto Zoglie his estate has not been distributed in accordance with law and vested in the beneficiaries. I therefore resolve issue 5 in favour of the Defendant. SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 16 of 27 [6.2.3] I now turn my attention to issue 6: “Whether or not it is the place of the Plaintiff to determine which particular portion of the estate of his grandfather should be given to him and his siblings”. This Court having made a finding that the property in dispute (H/No. 71 Amasaman) was the self-acquired property of the late Victus Kudoto Zoglie, what was the law governing the succession to his estate in 1979 when he died intestate? In the invaluable book, The Law on Family Relations in Ghana by Ekow Daniels pages 408 to 410 the learned writer states as follows: “The concept of individual succession to the property of a deceased member of a family during the infancy of Ghanaian society was virtually non-existent partly because individual ownership of property was a rare phenomenon and partly because family relations in the early days were organized on communal lines… A similar view was expressed by Sarbah in his book, Fanti Customary Laws, page 1003: The customary beliefs of the people in the distant past formed the basis of the rule of succession. Thus, in Lankai v Amorkor (1933) 1 W.A.C.A 323 at 329, Deane CJ said: “Now the presumption of law on the Gold Coast is that property held by an individual becomes family property on his death intestate, and that presumption can only be displaced by satisfactory evidence that during his lifetime he parted with the property by giving it to another” The Honourable Justice Ollennu’s restatement of this presumption was even more emphatic. He wrote thus: “Therefore upon the death of a person control and authority over his person and property vest absolutely in his family”. …After June 1985 The rationale behind the rule of distribution of the estate of an individual member of a family on his death intestate after June 15, 1985 was to reverse the presumption of the law prevailing in the country to the effect that “property held by an individual becomes family property on his death 3 J.M. Sarbah, Fanti Customary Laws (London, 1968, third edition) SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 17 of 27 intestate4” as a result of which his family “comes and immediately sweep away all, not leaving the widow or widows the least part thereof”5 and to substitute in its place a statutory system of distribution which abolishes the claim of the family to the entire self-acquired property of its member by a provision “aimed at giving a larger portion of the estate of the deceased to his spouse and children than is normally the case at present.”6 What is family? In the Ghanaian context the family consist of a group of persons tracing their ancestry through either males or females from a common male or female ancestor. Where the ancestry is traced through males from a common male ancestor the family is said to be patrilineal. Where it is traced through females from a common female ancestor, it is said to be matrilineal. It is usual to draw a distinction between the immediate and wider family. See the case of Amponsah and Others v. Budu {1989-90}2 GLR 291 at 293 SC The facts of that case are as follows: The plaintiffs, the grandchildren of the deceased, i.e. the children of the deceased’s surviving three daughters, and the defendant, son of the uterine brother of the deceased, were all members of the patrilineal Guan community. The plaintiff’s case was that on the death intestate of the deceased, his self-acquired property devolved upon them. They sued at the High Court for a declaration that they were entitled to the administration and enjoyment of that property. The defendant counterclaimed for the property as family property. The trial High Court held that the plaintiffs were the rightful persons to inherit the deceased’s property. The defendant appealed to the Court of Appeal against that decision and the court reversed the High Court decision and upheld the defendant’s counterclaim. The plaintiffs in the instant 4 Lankai v Amorkor (1933) 1 W.A.C.A 323at 329 5 Bosman, Description of the Coasts of North and South Guinea (London, 1735) 248 6 Memorandum, accompanying the Intestate Succession Act, 1985; W. C. Ekow Daniels: “Recent reforms in Ghana’s family law” [1967] J.A.L. 93-106 at 96. SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 18 of 27 proceedings appealed to the Supreme Court against that decision. The Supreme Court held, allowing the appeal: the self-acquired property of the deceased, a member of the patrilineal Guan community, became by operation of law the property of the family to which he belonged on his death intestate. All children, male and female, of the deceased were treated and regarded as members of his family and were as such entitled to the beneficial enjoyment of his self-acquired property. The grandchildren of the deceased by his surviving daughters, the plaintiffs in the instant case, were not members of his family but members of their respective fathers’ families7. The learned Author, Yaw D. Oppong in his book Contemporary trends in the law of Immovable property in Ghana, 2019 at page 474 to 475 stated as follows: Generally, a person belongs to either of his or her parents’ families, depending on the family system that the parents belong to. However, there are instances where a person can be said to belong to the family of both parents at the same time. This is further explained in the case of Agyekum & Anor v Salomey (Unreported, Suit No BFA 47/2014) HC outlined further criteria as follows: “the children of male members of matrilineal families do not belong to their fathers’ families, children of female members of patrilineal families do not belong to their mothers’ families. It follows obviously that children of female members of matrilineal families belong to their mothers’ families and children of male members of patrilineal families belong to their fathers’ families. There is also the interesting situation where the child is born to a father who belongs to a patrilineal family and a mother who belongs to a matrilineal family. In such a situation, the child belongs to both families, namely the father’s patrilineal family and the mother’s matrilineal family. 7 See also pages 140-141 of the book, Principles of Customary Land Law in Ghana, by Justice A.N. Ollennu (1962) SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 19 of 27 From the evidence on record the personal law of the deceased was the matrilineal system of inheritance and therefore the 1st Defendant being the son of the younger sister of the late Robert Osae Kwaku is a member of the immediate matrilineal family of the deceased. In the case of Welbeck v Okaikai Okine (J4/20/2011)[2014] GHASC 158 (7 May 2014) the Supreme Court speaking through Atuguba JSC (as he then was) delivered itself thus: “However over the years the courts have clearly established the principle that in a matrilineal system of inheritance the self-acquired property of a deceased intestate is inherited by his immediate family and that family has the right to dispose of the same. The matter has been exhaustively dealt with in the illuminating judgment of Lartey J (as he then was) in Doudu v. Kwasi (1992) 1 GLR 109 …It is clear from the foregoing that where a person dies intestate, his self-acquired property becomes that of the family as a whole; the immediate and the wider family. But the immediate enjoyment of the property together with its control, use and possession vests solely in the immediate or branch family alone, not the extended or wider family. Other authorities cited by both sides in support of this proposition included the following: Busumafie v Hydecooper (1946) DC (Land) ’38-’47, 245; Kwakye v Tuba [1961] GLR 535 and Arthur v Ayensu (1957) 2 WALR 357.” See also the case of Augustine Yaw Manu Vs. Madam Elizabeth Amma Nsiah [2005] DLSC2403 where the Supreme Court stated that: “In the case of DOTWAAH vs. AFRIYIE [1965] G.L.R. 257 it was emphatically stated by the Supreme Court that by customary law the self-acquired property of a deceased member of a family vests in the successor for and on behalf of the family, and thus clothing the successor with responsibility to litigate the family’s title to such property. Similarly the same principle was reiterated by the Supreme Court in AKRONG V. BULLEY [1965] G.L.R. 469”. In the case of Madam Akosua Agyentoa vs. Diana Owusu, Civil Appeal [2004] DLSC 2397 per Bamford-Addo JSC (as she then was) SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 20 of 27 “Prior to 1985, the customary law was that on the death intestate of an Akan like late Owusu his successor, being the next of Kin, was the person entitled to inherit him not his children.” See the case of Eshun v. Jonfia (1984-86) GLR D P.13 which held in that case dismissing an appeal that: "(1) the appellants as children has no right to any specific portion of the estate, neither did they have any right to share the rents accruing from the properties with the Respondent. Their right was limited to occupation of their father's house and also to be maintained by the Respondent out of their father's estate while young". It also went on as follows: "... where the children were sui juris as the applicants were, earning their living by petty trading, and could in fact look after themselves, the question of maintenance was out and their only right that was left was their right to stay in their father's house, and on their own showing the Respondent had never denied them that right. Manu v. Kuma (1963) 1 GLR 464 at 469 SC cited." …The Law which was applied by the Court of Appeal to come to its decision was the intestate Succession Law 1985 (PNDC Law 111) which was passed during the course of hearing this case; on the 5th July 1985.. PNDC Law 111 Section 21 thereof stipulated that the provisions of the said statute was to be applied to any case of succession pending before the Courts after its passage. This case was pending on the 5th July 1985 the case having commenced on 12/4/85 and the Court of Appeal had to apply the provisions of that Law. Section 4(1) PNDC Law 111 stipulated that on the death intestate of any person, his wife and children should inherit his property. It follows that in this case the Respondents, children of late Owusu, are entitled to his share of the house O.T. 77A and not to his sister as was the law prior to 1985. She could not therefore sell the whole house but only ½ part of the property i.e. her ½ share of House No. 77A. The other ½ share of that house SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 21 of 27 goes to Owusu's children i.e. Respondents in this case. The judgment of the Court of Appeal is therefore affirmed. In the case of Clerk vs Okai [2007-2008] 1 SCGLR 636 @ 641-642 per SA Brobbey JSC (as he then was): “The entire sale was irremediably flawed. On the death intestate of George Mark Okai, the house became family property. Ownership which reflected interests in the house were vested in the family of the late Okai as well as all his children. N. T. Clerk took action against some, not all, of the children.” In line with the plethora of authorities both case-law particularly the decisions of the Supreme Court and text-writers there is no gainsaying the fact that when the deceased Victus Kudoto Zoglie died in 1979, his estate devolved in accordance with the applicable customary law of the system of inheritance in the year 1979 i.e. patrilineal system of inheritance. Therefore, the personal law of the deceased being Ewe and patrilineal, the deceased estate devolved unto his immediate family which were all the deceased children including the Defendant and Plaintiff’s father. Flowing from the above the Plaintiff who is the deceased grandson can only inherit the part of the estate of the late Victus Kudoto Zoglie which devolves to the estate of his late father Simon. I therefore find that the Plaintiff as a grandson cannot determine which particular portion of the estate of his grandfather should be given to him and his siblings. I therefore resolve issue 6 against the Plaintiff. [6.5] I finally turn my attention to issue 3: Issue 3 Whether or not Plaintiff’s father had the right to give a portion of the land to Plaintiff to build his spot SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 22 of 27 Having resolved issue 1 that H/No. 71 Amasaman constitutes part of the estate of Victus Zoglie and there being no doubt that the portion of land granted to the Plaintiff to build his ‘Spot’ constitutes part of H/No. 71 and the Plaintiff’s father lacks the right to give a portion of the land to Plaintiff. Plaintiff’s right to the estate of his late grandfather is limited to the portion which devolves unto his late father after same has been distributed in accordance with law. [6.6] Issue 2 Whether or not Defendant’s land was given to him by Plaintiff’s late grandfather The Plaintiff pleaded that besides the Plaintiff’s late grandfather giving a portion of the land he acquired to his late father, Plaintiff’s late grandfather also gave portion of the land he acquired at Amasaman to the Defendant who is Plaintiff’s Uncle and that the Defendant has put up a house on the portion of the land his late grandfather gave to him where he is currently staying. This is countered by the Defendant who pleaded that the land on which he has put up his building was acquired by himself from the chief of Pokuase, Nii Otto Kwame II and that his piece of land has never been owned by his father. In his testimony before the Court the Defendant reiterated his pleadings and tendered in evidence Exhibits 1 and 1(i). Exhibit 1(i) was rejected due to admissibility issue. Exhibit 1 is a letter date 12th February 1998 from Nii Otto Kwame III to the Management Board of Ga Community Bank. Nii Otto Kwame III states the family has granted the Defendant a piece of land at Amasaman. The land is not identified, dimensions unknown etc in the letter. Apart from the mere allegations contained in the Plaintiff’s pleadings and the statements quoted above, no evidence was led to substantiate the allegation. It has long been held in the case of Bank of West Africa Limited v Ackun [1963] 1 GLR 176@181 that the party SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 23 of 27 who asserts the positive carries the burden to lead evidence in proof of his claim or assertion. This principle is clearly captured in Sections 11(4) and 17 of the Evidence Act, 1975, NRCD 323 which states as follows: “(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. 17. Allocation of burden of producing evidence Except as otherwise provided by law, (a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.” See also the Supreme Court decision in the case of Okudzeto Ablakwa (No. 2) v Attorney General & Another [2012] 2 SCGLR 845. I cannot make any findings in respect of the Defendant on this issue because he also failed to clearly identify the land he allegedly acquired from the Pokuase Chief. I resolve issue 8 against the Defendant. [6] Conclusion Having reviewed all the evidence and taking into consideration my analysis above, it is my conclusion that the Plaintiff has adduced evidence to persuade the Court to grant him some of the reliefs he seeks. I therefore enter judgment on some of Plaintiff’s Claim as follows: 1. I therefore grant relief a in the following terms: A declaration that upon death intestate of Simon Kofi Zoglie (deceased) Plaintiff’s father, all the children of the SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 24 of 27 deceased who survived him are entitled to inherit his portion of the estate of the late Victus Kudoto Zoglie. a. I therefore grant relief b in the following terms: Relief (B) is granted as follows: I grant perpetual injunction restraining the Defendant from interfering with the Plaintiff and his siblings enjoyment of their share of the late Victus Kudoto Zoglie’s Estate which shall devolve on them. 2. From the totality of the evidence led, I hold that one of Defendant’s Counterclaim fails entirely specifically reliefs iii and same is accordingly dismissed. 3. Defendant’s Counterclaim: i. I therefore grant relief I in the following terms: A declaration that the Defendant and his 7 siblings are beneficiaries in equal share in the entire estate of the late Victus Kudoto Zoglie including House No. 71, Amasaman. ii. I therefore grant relief ii in the following terms: The Court orders that the Defendant and Florence Zoglie have two months from the date of this Judgment to take the necessary steps to ensure that the Letters of Administration granted in 2020 is sealed. iii. Relief iii is dismissed. iv. I therefore grant relief iv in the following terms: The Court orders that the Defendant and Florence Zoglie have three months from the date of this Judgment to gather in the entire estate of Victus Kudoto Zoglie, administer, distribute same and vest particularly the immovable property (ies) including H/No. 71 in the beneficiaries. Considering the circumstances of this case, the parties are to bear their own legal expenses. (SGD.) SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 25 of 27 EUDORA CHRISTINA DADSON (MRS.) (JUSTICE OF THE HIGH COURT) CASS REFERRED TO: 1. ABABIO VS AKWASI 111 [1994-95] GHANA BAR REPORT, PART 11, 74 2. ACKAH V PERGAH TRANSPORT LTD [2010] SCGLR 728 AT PAGE 736 ADINYIRA JSC 3. GBEDEMA VS AWOONOR WILLIAMS (1970) CC 12 4. WINTERFIELD V BRADNUM 3 QBD 324 5. LORD ESHER M. R. IN STUMORE VS CAMPBELL & CO (1892) 1 QBD 314 AT PAGE 317 6. FOSUHENE VS ATTA WUSU [2011] SCGLR 273B 7. IN RE WILL OF BREMANSU AKONU-BAFFOE & ORS VS BUAKU & VABDEYKE (SUBSTITUTED BY) BREMANSU (2012) 2 SCGLR 1 313 8. YEBOAH VS AHELE [2012] 44 GMJ 37 CA. 9. T. K. SERBEH & CO LTD V MENSAH [2005-2006] SCGLR 341 AT 360-361 10. DOMFE VS ADU (1984-86) 1 GLR 653. 11. IN RE: ASERE STOOL AFFAIRS (2005-2006) SCGLR 637 12. REPUBLIC VS HIGH COURT, SEKONDI, EXPARTE MENSAH [1994-95] GBR 491. 13. LANKAI V AMORKOR (1933) 1 W.A.C.A 323 AT 329 14. AMPONSAH AND OTHERS V. BUDU {1989-90}2 GLR 291 AT 293 SC 15. AGYEKUM & ANOR V SALOMEY (UNREPORTED, SUIT NO BFA 47/2014) HC 16. WELBECK V OKAIKAI OKINE (J4/20/2011)[2014] GHASC 158 (7 MAY 2014) 17. BUSUMAFIE V HYDECOOPER (1946) DC (LAND) ’38-’47, 245 18. KWAKYE V TUBA [1961] GLR 535 SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 26 of 27 19. ARTHUR V AYENSU (1957) 2 WALR 357.” 20. AUGUSTINE YAW MANU VS. MADAM ELIZABETH AMMA NSIAH [2005] DLSC2403 21. MADAM AKOSUA AGYENTOA VS. DIANA OWUSU, CIVIL APPEAL [2004] DLSC 2397 PER BAMFORD-ADDO JSC (AS SHE THEN WAS) 22. DOTWAAH VS. AFRIYIE [1965] G.L.R. 257 23. ESHUN V. JONFIA (1984-86) GLR D P.13 24. MANU V. KUMA (1963) 1 GLR 464 AT 469 SC 25. CLERK VS OKAI [2007-2008] 1 SCGLR 636 @ 641-642 PER SA BROBBEY JSC 26. BANK OF WEST AFRICA LIMITED V ACKUN [1963] 1 GLR 176@181 27. OKUDZETO ABLAKWA (NO. 2) V ATTORNEY GENERAL & ANOTHER [2012] 2 SCGLR 845. BOOKS REFERRED TO: 1. THE LAW ON FAMILY RELATIONS IN GHANA 2. FANTI CUSTOMARY LAWS, PAGE 1008: 3. CONTEMPORARY TRENDS IN THE LAW OF IMMOVABLE PROPERTY IN GHANA, 2019 AT PAGE 474 TO 475 8 J.M. Sarbah, Fanti Customary Laws (London, 1968, third edition) SUIT NO: PA/869/2020 – KENNEDY FRANCIS ZOGLIE VS PAUL KWASHIE ZOGLIE – JUDGMENT Page 27 of 27