AKOSUA DUFIE VRS.pdf - Judicial Training Institute

More documents

Recommendations

Info

volition ever accounted to the family for the proceeds from the cocoa farm or for the Amakom property. All these pieces of evidence lead to one irresistible conclusion that the property was not family property. WEAKNESSES IN PLAINTIFFS CASE i. 2 nd Plaintiff also gave evidence that it was his sister the 1 st Plaintiff who connected utility services to the property in Amakom. P.W 3 also testified that he was responsible for connecting electricity to the house. In his testimony, he informed the Landlord Kwaku Poku and this was before 1 st Plaintiff came to live in the house. He also testified that 1 st Plaintiff refunded the money to him but does this refund of the money convert the property to family property? I don’t think so. Indeed in Ghana, it is not unreasonable nor uncommon for tenants to make certain improvements to properties they have rented to make conditions favourable for them. It is therefore not unreasonable for the 1 st Plaintiff to pay for the water connection to the house. Afterall, she was living in the house at the time and did it to make life easier for herself. Since the deceased was not living there himself at the time I would think that it certainly was not on his list of priorities. ii. Again, in the testimony of PW5, he claims the cocoa farm at Abompe was acquired around 1949, this was a full three years before the 2 nd Plaintiff left for his sojourn in the UK. The evidence that it was ₤100 realised from the sale of the beer bar that was used to cultivate the farm therefore cannot be correct. This is because from the evidence, the beer bar was sold much later. PW5 further testified that he helped in the cultivation of the farm during vacations from school, however PW1 contradicts this as she said no member of the family helped in the cultivation. PW 2 also testified that so far as he knew the cocoa farm belonged to Kwaku Poku. In my opinion, these are the inconsistencies and conflicts in the Plaintiffs case which are weaknesses inherent in their entire story. In this regard, if 32
one considers the restatement of the principle in KODILINYE v ODU (1935) 2 WACA 336 in the case of ODAMETEY v CLOCUH already referred to supra, it would mean that the Plaintiffs had not met the standard of proof required on a balance of probabilities to require a consideration of the weaknesses if any in the Defendant’s case. Obeng v Bempomaa [1992-93] GBR 1027, held that inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. iii. Furthermore, in the Statement of Claim of the Plaintiffs, they pleaded that it was the proceeds from their father’s cocoa farm which was used to acquire the farms at Abompe and Siiso. They alleged that their father died testate but they put Kwaku Poku in charge as he was the eldest among the siblings. The question one may be tempted to ask is why the deceased will want to engage in the arduous task of cultivating virgin land when he already had three cocoa farms to take care of. Again, no evidence was led as to what happened to the cocoa farms bequeathed to them by their father. The only reasonable inference to draw here is that Kwaku Poku went to all that trouble to acquire the two new farms because he intended it for himself and not as family property. In any case, the Plaintiffs did not lead any credible evidence to prove that the Deceased used the proceeds from his father’s estate to enrich himself. As has already been stated, the glaring inconsistencies should not have been glossed over by the court below as “minor discrepancies” but should have been put under the strictest of scrutiny as they leave gaping holes in the evidence proffered by the Plaintiffs. Besides, as the deceased himself could not be brought to testify, the learned trial judge should have gone through the evidence with a fine toothed comb to untangle all the knots. See the English case of Garnett, In re; Gandy v Macaulay (1886) 31 Ch D 1 @ 9 where Brett MR stated as follows “The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive he might have 33
Page 1 and 2: IN THE SUPERIOR COURT OF JUDICATURE
Page 3 and 4: the high probability that the dispu
Page 5 and 6: Again the evidence of PW1 on this i
Page 7 and 8: the Abompe farm. It therefore follo
Page 9 and 10: ANSAH, JSC: W. A. ATUGUBA (JUSTICE
Page 11 and 12: (4) In other circumstances the burd
Page 13 and 14: conclusively, either by traditional
Page 15 and 16: “The generally accepted principle
Page 17 and 18: witnesses, would not be entirely fr
Page 19 and 20: Grounds 3 and 4 of appeal touching
Page 21 and 22: 12 Whether or not the plaintiffs ar
Page 23 and 24: “Whilst it is true that customary
Page 25 and 26: DOTSE, JSC: FACTS The Plaintiffs/Re
Page 27 and 28: Whilst it was the 2 nd Plaintiff wh
Page 29 and 30: 1. MADAM AKOSUA DUFIE PLAINTIFFS 2.
Page 31: that indeed the properties were the
Page 35 and 36: 1. THOMAS v THOMAS [1947] All ER 58
Page 37 and 38: This is because she claimed she was
Page 39 and 40: In the instant case, the Defendants
Page 41: TOTOE LEGAL SERVICE FOR THE APPELLA

AKOSUA DUFIE VRS.pdf - Judicial Training Institute

Create successful ePaper yourself

Delete template?

Save as template?