AKOSUA DUFIE VRS.pdf - Judicial Training Institute

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From the above authorities, the principle might be stated that an appellate court such as this court may interfere with the findings of fact of a trial court where the latter failed properly to evaluate the evidence or make the proper use of the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from the accepted evidence or where its findings are shown to be perverse. In the instant case, it must be noted that one of the principal characters, Opanyin Kwaku Poku had died. 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 cases of In re Krah (Decd) Yankyeraah & Ors v Osei-Tutu & Anor [1989-90]1GLR 638 @ 662, Bisi v Tabiri [1987-88] 1 GLR, 360 @ 409, where the principle was stated that; “The well-known rule is that claims against a deceased’s estate must be scrutinized with circumspection” Secondly, if the trial court and the Court of Appeal had adverted their minds to the fact that the Plaintiffs by their common desire to claim the property as family property needed to produce very cogent, reliable, credible and convincing evidence that the properties in dispute did not belong to the deceased, they would have been more cautious in their evaluation of the case. This is especially crucial and important in view of the overwhelming documentary evidence proffered by the Defendants to support their contention that the properties were self-acquired by the deceased, Kwaku Poku. This has been further buttressed by the many overt acts of possession and ownership exhibited by the deceased in his lifetime without challenge by the Plaintiffs and their collaborators. What must be equally noted is that the evidence of PW1 AFUA MUNU, the divorced wife of the deceased should have been evaluated and assessed with circumspection. 36
This is because she claimed she was married to the deceased before the widow, 1 st Defendant was married to the deceased. However, as at the time of the deceased’s death, PW1 was no longer married to him. The evidence of this witness PW1 differed materially from that of the 2 nd Plaintiff and in some instances exposed herself as someone who is bitter against the deceased and the Defendants. The 2 nd Plaintiff in his evidence-in-chief testified thus: “In respect of the replacement plot, I directed my mother to tell Kwaku Poku to use the proceeds from my store to clear the plot and sell the beer bar and the provisions shop for ₤400 and use all these proceeds to put up a house on the plot. I further directed that the balance be used to cultivate cocoa farm at Abompe” However, PW1 in her testimony told the court that one day in the company of the deceased to Kumasi, she heard 2 nd Plaintiff inform the deceased that he had acquired a plot at Krofofrom and that he 2 nd Plaintiff had come to see the deceased for the purposes of the latter building a house on the plot for him. This meant that the 2 nd Plaintiff was in Kumasi when he gave those instructions. There was no indication that he had traveled or had planned to travel. As between the deceased who was reputed to be living in the cottage and the 2 nd Plaintiff who lived in Kumasi who had the better chance to supervise a house if indeed the 2 nd Plaintiff wanted to build a house? Secondly, PW1 stated that the 2 nd Plaintiff sent money to the deceased but she was unable to say whether that was the money used for the construction of the house. Thirdly, PW1 stated in clear terms that the deceased cultivated the Abompe farms first, and with the proceeds from the said farms, went on to cultivate the farm at Siiso. 37
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 and 32: that indeed the properties were the
Page 33 and 34: one considers the restatement of th
Page 35: 1. THOMAS v THOMAS [1947] All ER 58
Page 39 and 40: In the instant case, the Defendants
Page 41: TOTOE LEGAL SERVICE FOR THE APPELLA

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