Ama Agyeiwaa, Yaw Boafo and Opanin Kwame Baffoe v Charles Kwabena Effah

PLAINTIFFS’ CASE

The 1st Plaintiff is one of the children of the late Ben Agyei Fofie and brings this action for herself and on behalf of all her siblings born to her mother Abena Weadaa and Ben Agyei Fofie (deceased). The 2nd Plaintiff is one of the children of the late Ben Agyei Fofie and brings this action for himself and on behalf of his brother Kwaku Ofori. The 3rd Plaintiff is the head of the maternal family of the late Ben Agyei Fofie and brings this action in his capacity as the head of the maternal family of the late Ben Agyei Fofie. The Defendant is one of the children of the late Ben Agyei Fofie. The Plaintiffs’ case is that Ben Agyei Fofie (deceased) acquired properties during his lifetime including the property in dispute being a cocoa farm at a place commonly known and called Nsumama on Sienkyiem stool land bounded by the properties of Peter Manu, Kwabena Abu alias Peter Arthur, Kwaku Kumah, Buadu Kyeremanteng, Awuku, Issifu, Amma Fosuaa, Kwadwo Num and the Aboabo stream.

According to the Plaintiffs, the late Ben Agyei Fofie died on 18th June, 2013 and executed his last Will during his lifetime on 14th June, 2012. The deceased appointed Opanin Kwasi Nsiah and Yaw Buraimah Kramo as Executors of the Will. In the said Will, the deceased devised the disputed cocoa farm among other properties to beneficiaries including the Plaintiffs and the Defendant. The Plaintiffs’ case is that Opanin Kwasi Nsiah successfully applied for probate on 12th November, 2014 at the High Court, Sunyani to administer the estate of the late Ben Agyei Fofie because the other executor Braimah Kramo was indisposed. Opanin Kwasi Nsiah executed a vesting assent and vested the properties in the various beneficiaries of the Will including the disputed cocoa farm. The Plaintiffs contend that the Defendant being one of the children of the deceased and beneficiary of the Will of the deceased is claiming the entire cocoa farm but he is not the only beneficiary. According to the Plaintiffs, they mounted this action because all their attempts made for the Defendant to abide by the provisions of the Will proved futile. The Plaintiffs therefore claim the following reliefs against the Defendant;

a) A declaration that, the disputed cocoa farm forms an integral part of the estate of the late Ben Agyei Fofie.

b) A declaration that the last Will and Testament executed by the late Ben Agyei Fofie on the 14th day of June 2012 is valid.

c) An order of the Court compelling the Defendant to render accounts for all the proceeds he has realized from the disputed cocoa farm and for further order restraining the defendant from laying claim to the entire cocoa farm.

In their reply to the Defendant’s statement of defence and counterclaim filed on 3rd September, 2020, the Plaintiffs denied the Defendant’s counterclaim and stated that Ben Agyei Fofie was the nephew of Opanin Kwaku Ababio (deceased). Opanin Kwaku

Ababio was the Defendant’s grandfather and Ben Agyei Fofie was the customary successor of Opanin Kwaku Ababio. Ben Agyei Fofie married Afia Donkor, mother of the Defendant and daughter of Kwaku Ababio. The Plaintiffs contend that Ben Agyei Fofie gave the Apesika cocoa farm which he inherited by succession, as gift to his wife Afia Donkor and the Defendant with the consent of his immediate maternal family. The Defendant and his siblings Kwaku Agyei and Wofa Yaw sold their portion of the Apesika cocoa farm outright to one Kwabena Abu.

The Plaintiffs contend that the farmland situate at Gyaegya on Sienkyem Stool Land was acquired by the 1st Plaintiff’s deceased grandmother Adwoa Nsiah and she gifted it to the 1st Plaintiff’s mother who further gifted it to her mother Abena Weadaa who cultivated cocoa on it with their deceased father’s assistance. The farmland at Gyaeagya was never Ben Agyei Fofie’s self – acquired property. It is the Plaintiff’s case that during the life time of Ben Agyei Fofie in the year 2003, he carved out and gave a portion of the farm at Nsumama extending inland through the old pit latrine to the Defendant and his siblings and the Defendant offered “aseda” of Fifty Ghana Cedis (Ghs 50.00) to his father. A deed of gift was executed to confirm the customary gift and the said gift is confirmed in the last Will of Ben Agyei Fofie. The Plaintiffs contend that they sent a plea through the Catholic church elders to the Defendant to carve out their portion of the farm as described in the Will of Ben Agyei Fofie to them but they refused to accept what the Defendant carved out for them because it was contrary to the description in the Will.

The 3rd Plaintiff mounted the witness box under oath for and on his own behalf and on behalf of the 1st and 2nd Plaintiffs and stated that the late Ben Agyei Fofie is his maternal uncle, the 1st and 2nd Plaintiffs and the Defendant are children of his deceased uncle Ben Agyei Fofie. He repeated the averments of the Plaintiffs in the statement of claim and noted that the Will of Ben Agyei Fofie was admitted to probate without a caveat. That it was after the depositions of the Will were vested in the beneficiaries by vesting assent that the Defendant without legal justification took over the entire farm. He tendered the last Will and testament of Ben Agyei Fofie dated the 14th day of June 2012 as exhibit “A”. Probate of the Will of Ben Agyei Fofie granted at the High Court, Sunyani on 12th November, 2014 as exhibit “B”. The Plaintiffs attached Deed of Gift dated 16th July, 2003 as exhibit “C”. Per a supplementary witness statement filed on 30th March, 2022 the Plaintiffs attached the vesting assent as exhibit “D”. The Plaintiffs prayed the Court to dismiss the Defendant’s Counterclaim and grant their reliefs.

EVIDENCE OF PLAINTIFFS’ WITNESS

Nana Boffour Benin III, Chief of Seinkyiemu testified as the Plaintiffs’ witness. He knows the parties, the late Kwaku Ababio also known as Kwaku Nkoranza and the late Ben Agyei Fofie. He confirmed that the 1st and 2nd Plaintiffs and the Defendant are children of Ben Agyei Fofie deceased. According to him during the lifetime of Kwaku Ababio he acquired a farmland at a place called Apesika from Nana Boffour Benin I and

carved out a portion of the forest land at Apesika to Ben Agyei Fofie. With the assistance of his wife, Afia Donkor daughter of Kwaku Ababio, Ben Agyei Fofie cultivated cocoa on the farm which he gave as a gift to Afia Donkor and her children including the Defendant but the Defendant and his siblings sold the said farm to a settler farmer called Abu. PW1 noted that Ben Agyei Fofie (deceased) personally acquired a farmland at Nsumama and cultivated cocoa on it which is the farm in dispute and that the deceased exclusively possessed and enjoyed the proceeds of the said farm until his last days that he handed over the management of the farm to the Defendant herein. He noted that the disputed cocoa farm situate at Nsumama on Senkyiemu Stool Land is different from the land Kwaku Ababio deceased carved out to Ben Agyei Fofie at Apesika on Seinkyiemu Stool Land. PW1 noted that the disputed cocoa farm is the bonafide property of the deceased, Ben Agyei Fofie and he therefore had authority to bequeath it in his last Will and testament.

THE DEFENDANT’S DEFENCE

The Defendant contends that his grandfather Kwaku Ababio being his mother Afia Donkor’s father acquired the disputed cocoa farm from one Kwame Kontor and gifted it to his daughter Afia Donkor and her children and that the disputed cocoa farm is not a self - acquired property of Ben Agyei Fofie deceased. According to the Defendant, the deceased acquired a parcel of land at Gyaegya on Sienkyem Stool Land on which he made a cocoa farm and gave it to his wife Abena Weadaa and her children. The Defendant stated that Ben Agyei Fofie had Kwame Ofori with Afia Nkrumah and the deceased acquired a land at Nsumama and made a cocoa farm for the benefit of Afia Nkrumah and the children she had with Ben Agyei Fofie. The Defendant contends that during his lifetime Ben Agyei Fofie attempted to carve out a portion of the disputed farm as a gift to Abena Weadaa and her children which the Defendant, his siblings and mother resisted. When they confronted Ben Agyei Fofie he denied in the presence of credible witnesses that he was going to do so and he admitted the fact that the disputed cocoa farm is for the Defendant, his siblings and their mother.

The Defendant stated that following their resistance the deceased acquired another land for the benefit of Abena Weadaa and her children and made another farm for Kwaku Ofori and his mother. He denied that the deceased executed the Will, exhibit “A” tendered by the Plaintiffs because the deceased was not of sound mind when he was alleged to have executed the said Will. The Defendant’s case is that he filed a caveat against the grant of probate to the alleged Will of the deceased but he was not served with any warning and for some unexplained reasons probate was granted. According to the Defendant the grant of probate to the Will of Ben Agyei Fofie and subsequent actions on it are wrong in law and therefore should be revoked and set aside. The Defendant claims that he mounted an action against the executor of the alleged Will of the deceased for the probate to be revoked but before the case could proceed the Plaintiffs mounted this action. The Defendant contends that after the commencement of the action the 1st Plaintiff and her siblings appealed through elders of the Catholic church to him and his siblings to carve out a portion of the farm for them.

He and his siblings agreed to the plea of the 1st Plaintiff and her siblings on condition that a loan that was procured with the farm as collateral would be paid. They carved out portions of the land to the 1st Plaintiff and her siblings but they refused to accept it. The Defendant further contends that upon the death of his father the family head, Akwasi Kumah told him and his siblings to use the farm as collateral for a loan for the funeral of their father because there was no money. They secured a loan of Ghs 15,000.00 from one Stephen Ofori and used the farm as collateral. Stephen Ofori was to take possession of the farm and harvest the proceeds for ten years and after that the farm would revert to the Defendant and his siblings. The ten years expires in December 2023. According to the Defendant the Plaintiffs’ claim before the Court is frivolous and that the Plaintiffs are not entitled to their reliefs sought. The Defendant counterclaimed for an order to revoke the grant of probate of the alleged Will and testament of Ben Agyei Fofie regarding the disputed farm.

EVALUATION OF THE FACTS, EVIDENCE AND APPLICATION OF THE LAW

In the case of Awuku – Sao v. Ghana Supply Company Limited [2009] Supreme Court of Ghana Law Report (SCGLR) 710 at 720 and 722 the Court held that;

“The phrase ‘to act fairly and reasonably’ in my opinion necessarily imports a duty to observe the common law maxim of audi alteram partem and other principles of natural justice which is very much part of our jurisprudence and are implicit in the constitutional provisions in article

23. Because I cannot contemplate how a person could be said to have acted fairly and reasonably if he did not give notice or hearing to another who was entitled to such notice or hearing before taking a decision which adversely affects his rights…”

“It is trite law and a cardinal principle of natural justice that no man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard”

The Defendant had notice of the suit. He engaged Counsel who entered appearance for him and subsequently filed statement of defence and witness statement for himself and two witnesses. The Defendant was present during the initial stages of the case but subsequently stopped attending Court and personal service on him became difficult because the affidavit of non – service indicated that attempts to serve him personally failed because he was said to have travelled outside the country. His Counsel informed the Court that he had lost touch with his client and subsequently at the Court’s instance Counsel for the Defendant filed notice of withdrawal of his representation for the Defendant. The Court ensured that the Defendant was served with hearing notice at every stage of the trial by substituted service but he failed to attend Court. Although the Defendant was given ample opportunity to appear to cross – examine the Plaintiffs and their witness he failed to do so.

The Court therefore heard the Plaintiffs and adjourned the matter with notice to the Defendant for judgment. In delivering this judgment the Court accordingly dismisses the Defendant’s counterclaim and delivers its judgment based on the Plaintiffs’ evidence in accordance with Order 36 rule 1 sub rule 2 (a) of the High Court (Civil Procedure)

Rules, 2004 (C.I 47) which provides that;

(2) “Where an action is called for trial and a party fails to attend, the trial Judge may

(a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim;”

Furthermore, in the light of the Awuku – Sao case cited supra the Court is of a maximum conviction that it adhered to the audi alteram partem rule and gave the Defendant ample opportunity to be heard but the Defendant refused to be heard. The Plaintiffs filed application for directions on 26th April, 2021. The Court differently constituted on 12th May, 2021 set down issues (a) to (j) discussed below as the issues for trial.

ISSUE (A)

Whether the disputed land was acquired by the late Ben Agyei Fofie by and for himself

The Plaintiffs testified that the father of the 1st and 2nd Plaintiffs and the Defendant acquired the land on which the disputed cocoa farm is situate during his life time. He cultivated the cocoa together with his children and exercised overt acts of ownership on the farm without interference by anybody. PW1 the deceased’s nephew who is the chief of Seinkyiemu corroborated the evidence of the Plaintiffs that the disputed cocoa farm is the self – acquired property of the deceased. The Defendant claims the disputed cocoa farm does not belong to his deceased father but rather to his deceased grandfather Kwaku Ababio. He however did not attend Court to substantiate his claim. In the light of evidence led by the Plaintiffs and affirmed by PW1 the Court is convinced that the Plaintiffs’ allegation regarding their deceased father Ben Agyei Fofie’s ownership of the disputed cocoa farm is true.

In an address Counsel for Plaintiff filed on behalf of the Plaintiffs in support of their case, Counsel referred to authorities on burden of proof and stated that much as the Plaintiffs are obliged to establish their burden of proof, the Defendant has the same duty to adduce the requisite evidence to establish his counterclaim. Counsel argued that the identity of the disputed farm is not in issue and therefore the Plaintiffs were relieved from calling boundary owners. According to Counsel, the Plaintiffs’ witness PW1, affirmed the Plaintiffs’ evidence that the disputed cocoa farm belongs to their deceased father, Ben Agyei Fofie. That PW1 affirmed the fact that the deceased acquired the disputed farmland, cultivated cocoa on it and exclusively possessed and enjoyed the proceeds of the farm.

In the Court’s view therefore, the Plaintiffs established their burden of proof regarding their deceased father’s ownership of the disputed cocoa farm in the light of the Defendant’s failure to mount the witness box to challenge the Plaintiffs claim on oath.

ISSUE (B)

Whether the late Kwaku Ababio acquired the disputed land from Kwame Kontor, and gifted same to the Defendant’s mother, Afia Donkor

The Defendant contends that his grandfather Kwaku Ababio acquired the disputed farm from one Kwame Kontor and he gifted it to his mother, Afia Donkor. However, the evidence led by the Plaintiffs buttressed by the evidence of PW1 shows that the land Kwaku Ababio acquired was a land at Apesika which is different from the land Ben Agyei Fofie the father of the Plaintiffs and the Defendant acquired at Nsumama on Sienkyiem stool land. According to the evidence the Plaintiffs and their witness PW1 proffered, Ben Agyei Fofie became the customary successor of Kwaku Ababio and by virtue of that he inherited the said Apesika land for himself and for his wife and children. He distributed this land to the Defendant, his siblings and his mother but the Defendant and his siblings sold their portion of the land to a settler farmer called Abu but the disputed farm is the self – acquired property of Ben Agyei Fofie. In the light of the evidence led by the Plaintiffs and their witness which the Defendant did not controvert following his failure to mount the witness box to establish his defence, I hereby resolve the above issue in favour of the Plaintiffs that the land Kwaku Ababio deceased acquired from Kwame Kontor and gifted to the Defendant’s mother Afia Donkor is different from the disputed cocoa farm which Ben Agyei Fofie acquired at Nsumama on Sienkyiem Stool Land.

ISSUES (C) AND (D)

C) Whether the late Ben Agyei Fofie during his lifetime exercised overt acts of ownership in respect of the disputed land

D) Whether Ben Agyei Fofie made a gift intervivos of a portion of the disputed land to the Defendant and his siblings

The Plaintiffs’ case is that Ben Agyei Fofie is their father and father of the Defendant. Their said father acquired various properties during his lifetime including the disputed cocoa farm situate, lying and being at a place commonly known and called Nsumama on Sienkyiem Stool Land bounded by the properties of Peter Manu, Kwabena Abu alias Peter Arthur, Kwaku Kumah, Buadu Kyeremanteng, Awuku, Issifu, Amma Fosuaa, Kwadwo Num and the Aboabo stream. According to the Plaintiffs, their late father died on 18th June, 2013 and executed his last Will and Testament during his lifetime on 14th June, 2012. They tendered the said Will as exhibit “A’. The deceased appointed Opanin Kwasi Nsiah and Yaw Buraimah Kramo as Executors of his Will. The deceased devised the disputed cocoa farm among other properties to his beneficiaries including the Plaintiffs and the Defendant.

The Plaintiffs’ case is that Opanin Kwasi Nsiah successfully applied for probate of the Will on 12th November, 2014 at the High Court Sunyani to administer the estate of the late Ben Agyei Fofie because the other executor Braimah Kramo was indisposed. They tendered a certified true copy of the said probate dated 12th November, 2014 as exhibit “B” which indicates that the Court granted probate of the Will of Ben Agyei Fofie @ Kofi Fofie to Opanin Kwasi Nsiah one of the executors named in his Will by the High Court Sunyani. According to the Plaintiffs, upon procurement of probate Opanin Kwasi Nsiah executed a vesting assent and vested the properties in the various beneficiaries of the Will including the disputed cocoa farm. They attached the vesting assent as exhibit “D”. The Vesting Assent is duly stamped and dated 27th January, 2015 and made by Opanin Kwasi Nsiah one of the executors of the deceased’s Will. Opanin Kwasi Nsiah vested the deceased properties including the disputed cocoa farm which the deceased mentioned in paragraph (4) of the Will to the named beneficiaries in the last Will of the deceased.

The Plaintiffs contend that the Defendant being one of the children of the deceased and beneficiary of the Will of the deceased is laying claim to the entire cocoa farm but he is not the only beneficiary. According to the Plaintiffs they mounted this action because all their attempts made for the Defendant to abide by the provisions of the Will proved futile. They therefore claim the above reliefs against the Defendant. PW1 noted that Ben Agyei Fofie deceased personally acquired a farmland at Nsumama and cultivated cocoa on it which is the farm in dispute and that the deceased exclusively enjoyed the proceeds of the said farm until his last days that he handed over the management of the farm to the Defendant herein. He noted that the disputed cocoa farm situated at Nsumama on Senkyiemu Stool Land is different from the land Kwaku Ababio deceased carved out to Ben Agyei Fofie at Apesika on Seinkyiemu Stool Land. PW1 noted that the disputed cocoa farm is the bonafide property of the deceased, Ben Agyei Fofie and he therefore had authority to bequeath it in his last Will and testament.

The Plaintiffs led evidence to the effect that the late Ben Agyei Fofie during his life time made a gift of a portion of the disputed land to the Defendant and his siblings and the Defendant and his siblings gave the deceased “aseda” in the presence of witnesses. Ben Agyei Fofie (deceased) repeated this gift intervivos in his last Will and Testament dated 14th June, 2012. The Court finds that the deceased stated in paragraph 1 (a) of his last Will and Testament as follows;

(1) I DIRECT that my cocoa farm at a place commonly known and called “Nsumama” on Sienkyiem stool land which is bounded by the properties of Peter Manu, Kwabena Abu @ Peter Arthur, Kwaku Kumah, Boadu Kyeremanten, Kwabena Abu @ Peter Arthur again,

Awuku, Issifu, Amma Fosuaa, Awuku again and Kwadwo Num (the boundary feature being the “Aboabo” stream) be shared as follows;

(a) I have already carved a portion of the farm extending from the boundary, with Boadu Kyeremanten, Kwaku Kumah, Kwabena Abu @ Peter Arthur and Peter Manu extending inland through the old pit latrine to a point where I have planted teak trees and along the old cocoa farm and back to the boundary with Boadu Kyeremanten for my children begotten of me by my ex – wife Afia Donkor. I have shown and pointed out the said portion to my said children the eldest of whom is Charles Kwabena Effah and I executed a Memorandum / Deed of Gift dated July 16, 2003 to that effect. I HEREBY CONFIRM the said gift.

The Plaintiffs tendered a duly stamped Memorandum of Gift, exhibit “C” in respect of a cocoa farm lying and situate at a place commonly known and called Nsumama on Sienkyiem Stool Land dated 16th July, 2003. The deceased stated in the said memorandum as follows;

THIS MEMORANDUM SHOWETH THAT on the 16th day of July 2003 the undersigned /marked Ben Agyei Fofie, of Pinihi near Nkoranza but now resident at Sienkyiem near Goaso both in the Brong Ahafo Region of the Republic of Ghana, in consideration of his natural love and affection for his children, namely Charles Kwabena Effah, Agyei Bernasko, Bennet Agyei Ababio, Sampson Yaw Kusi, Amma Henewaa, Akosua Awuah Donkor, made a customary GIFT of and expressed himself to GIVE and GAVE to the said children, all that cocoa farm lying and situate at a place commonly known and called “Nsumama” on Sienkyiem stool land and bounded by the properties of Boadu Kyeremanteng, Kwame Kumah, Peter Manu and the

remaining portion of Donor’s cocoa farm is the property of the donor.

AND THAT the Donee, acting by Charles Kwabena Effah accepted the GIFT and gave the necessary customary “ASEDA” of one (1) bottle schnapps, one (1) crate minerals and five hundred thousand cedis (₵500,000.00) in the presence of witnesses.

AND FURTHER THAT the said cocoa farm was clearly pointed out and shown to the donee and that the donee has taken possession of the said property.

The deceased, Ben Agyei Fofie signed the Memorandum of Gift and the Defendant Charles Kwabena Effah signed on behalf of himself and the other donees in the presence of their witnesses. The latter part of the first paragraph of the memorandum of gift shows that the deceased did not give the whole cocoa farm to the Defendant and his siblings as follows; “and the remaining portion of the donor’s cocoa farm is the

property of the donor”. This gives credence to paragraph 1(a) of the last Will and Testament of the deceased where he stated that; “I have already carved a portion of the farm extending from the boundary with Boadu Kyeremanteng…and back to the boundary with Boadu Kyeremanteng …I have shown and pointed out the said portion to my said children the eldest of whom is Charles Kwabena Effah.

Paragraph (c) of the Will states as follows;

“I direct that the remaining portions of my said cocoa farm be divided into two and shared between my immediate family on one hand and my children by my wife Abena Weadaa, the eldest of whom is Amma Agyeiwaa in equal share. However, I direct that my family be given the portion in which my cottage is located”.

The above paragraph (c) in the last Will and Testament of Ben Agyei Fofie confirm the Plaintiffs’ evidence that the deceased carved out a portion of the disputed cocoa farm to the Defendant during his lifetime but the Defendant is laying claim to the entire cocoa farm which does not belong to him alone. In the light of the above, the disputed cocoa farm therefore belongs to the Defendant and his siblings of his mother Afia Donkor, the Plaintiffs and the maternal family of the deceased. PW1 affirmed the Plaintiffs’ claim that Ben Agyei Fofie deceased acquired the disputed farmland at Nsumama as his self - acquired property and cultivated cocoa on it which is the farm in dispute. That the deceased exclusively possessed and enjoyed the proceeds of the said farm until his last days that he handed over the management of the farm to the Defendant herein.

In the light of the evidence of the Plaintiffs and their witness which the Defendant did not controvert by his failure to mount the witness box, the Court is convinced that the evidence of the Plaintiffs confirm paragraph 1 (a) of the last Will and Testament of Ben Agyei Fofie and together with the evidence of PW1, issue (c), Whether the late Ben Agyei Fofie during his lifetime exercised overt acts of ownership in respect of the disputed land and issue (d), Whether Ben Agyei Fofie made a gift intervivos of a portion of the disputed land to the Defendant and his siblings are hereby resolved in the affirmative.

ISSUE (E)

E) Whether or not the disputed land forms part of the estate of the late Ben Agyei Fofie

Having concluded above that the disputed cocoa farm is the self - acquired property of the deceased, Ben Agyei Fofie, the fact is therefore established that the disputed land forms part of the estate of the deceased, Ben Agyei Fofie.

ISSUE (F)

F) Whether or not the late Ben Agyei Fofie had the requisite testamentary capacity to bequeath the disputed land to the named beneficiaries including the Defendant in his last Will and Testament

Based on the evidence adduced by the Plaintiffs and their witness, there is no evidence before the Court to establish that the late Ben Agyei Fofie lacked testamentary capacity to write his will. The Defendant merely alleged in paragraphs (11), (12) and (13) of his statement of defence and paragraphs (12), (13) and (14) of his witness statement that exhibit “A”, the Will is not his deceased father’s deed and that his father lacked testamentary capacity and was not sound in mind and body to make the Will. The Defendant denied the probate granted by the Sunyani High Court to one of the executors of the Will, Opanin Kwasi Nsiah but he failed to mount the witness box to substantiate his allegations. He claimed he filed a caveat against issuance of probate of the said Will without being warned but he did not file any said caveat for the Court’s consideration. He also claimed that he initiated an action against the executors of the Will of the deceased but he did not tender a copy of the said suit to convince the Court. Having perused the last Will and Testament of the deceased which came from the custody of the Court and duly stamped under the Stamp Duty Act, the Court has no reason to doubt the validity of the Will in the absence of cogent evidence by the Defendant to the contrary.

The Defendant claimed that himself, his siblings and mother resisted attempt by Ben Agyei Fofie to carve out interest in the disputed cocoa farm to his children and the deceased admitted before credible witnesses that the land belongs to the Defendant, his siblings and mother. The Defendant did not attend Court to give further evidence on this. He also did not attend Court to call the supposed witnesses to convince the Court. His evidence therefore in the Court’s view amounts to mere assertions which he did not substantiate by his failure to mount the witness box to prove his counterclaim. The case of Majolagbe v. Larbi & Others [1959] Ghana Law Report (GLR) 190 – 195 refers.

ISSUE (G)

G) Whether the Will is the act and deed of the late Ben Agyei Fofie

In the light of the foregoing discussion the Court reiterates the fact that in the absence of cogent evidence led by the Defendant on oath regarding the validity or otherwise of the Will, and the Defendant’s allegation that the disputed cocoa farm is not a self – acquired property of Ben Agyei Fofie, the Court is satisfied with the evidence proffered by the Plaintiffs and their witness that the Will dated 14th June, 2012 is the act and deed of the deceased Ben Ayei Fofie. The Court is further satisfied that the disputed cocoa farm is a self – acquired property of Ben Agyei Fofie.

Counsel for Plaintiffs cited applicable authorities on burden of proof and noted that since the Defendant was given opportunity to appear to participate in the trial and to cross – examine the Plaintiffs and their witness and he failed to do so, the Court is bound to accept the Plaintiffs’ unchallenged evidence because it is deemed to be admitted by the Defendant. Counsel submitted that the Plaintiffs are required to produce the required evidence to persuade the Court which the Plaintiffs have discharged both by mounting the witness box to give evidence on oath and produced documents to support their evidence. Counsel prayed the Court that since the Defendant failed to attend Court to prosecute his counterclaim the Court should accordingly dismiss his counterclaim and grant the Plaintiffs the reliefs indorsed on their writ of summons.

In the light of the foregoing the Court is satisfied and convinced that the Plaintiffs have discharged their burden of proof in the light of the case of Ackah v. Pergah Transport Limited & Others [2010] SCGLR 728 at 736 and 737 which held that;

It is a basic principle of the law on 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 method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. 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. This is a requirement on the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323). The said sections, which are relevant for our purposes, state respectively as follows;

“10 (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court.

(2) The burden of persuasion may require a party

(a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or

(b) establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. “

“11(1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.

(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.

ISSUE (H)

H) Whether the Plaintiffs are entitled to the reliefs being sought

This not an issue because that is the reason why the Plaintiffs are in Court. The Court therefore strikes out the said issue as an issue for trial. In the case of Dalex Finance and Leasing Company Limited v. Ebenezer Denzel Amanor L.G.G Company Limited and Huawei Technologies (GH) SA Limited Civil Appeal No. J4/02/2020 dated 14th April, 2021 , the Supreme Court held that since the whole aim of the case is to determine whether or not the Plaintiff and or Defendant are entitled to their claims, the issue regarding whether or not the Plaintiff and or the Defendant are entitled to their claims should not be set down as an issue for trial. The Supreme Court admonished trial courts not to be lazy in setting down such issues as separate and distinct issues because the whole purpose of the trial is for that. In the light of the foregoing the Court is of a considered view that the Plaintiffs having established their burden of proof to the Court’s satisfaction are entitled to their reliefs indorsed on the writ of summons.

ISSUE (I)

Consequently issue (I) on whether the Defendant is entitled to his counterclaim is also discarded as an issue set down for trial in the light of the Dalex Finance case cited supra. It is however useful to note that the Court dismissed the Defendant’s counterclaim pursuant to Order 36 rule 1 sub rule 2 (a) of C. I 47 cited supra following the Defendant’s failure to attend Court to establish his counterclaim although he was served with several hearing notices.

ISSUE (J)

I) Any other issue(s) arising out of the pleadings

There are no other issues arising from the pleadings since the above issues have captured all possible issues emanating from the pleadings of the parties.

COST

In awarding cost to the Plaintiffs, the Court takes notice of the length of the trial being nine years, the fact that the Plaintiffs engaged Counsel to prosecute the case on their behalf and the fact that the Plaintiffs filed processes in Court and incurred reasonable transport expenses in prosecuting this case. The Court further considers cost already awarded in the Plaintiffs’ favour during the trial and also the fact that the Defendant also incurred some cost in filing processes in accordance with Order 74 of the High

Court (Civil Procedure) Rules, 2004 (C.I 47).

CONCLUSION

In the light of the foregoing the Court holds a fervent view that the Plaintiffs established their burden of proof against the Defendant to the Court’s satisfaction that what they alleged in their pleadings and evidence before the Court are true and therefore, they are entitled to the reliefs claimed from the Court. Consequently, the Court holds in favour of the Plaintiffs as follows;

a) The Court hereby declares that, the disputed cocoa farm situate at a place commonly known and called Nsumama on Sienkyiem stool land bounded by the properties of Peter Manu, Kwabena Abu alias Peter Arthur, Kwaku Kumah, Buadu Kyeremanteng, Awuku, Issifu, Amma Fosuaa, Kwadwo Num and the Aboabo stream forms an integral part of the estate of the late Ben Agyei Fofie.

b) The Court further declares that the last Will and Testament executed by the late Ben Agyei Fofie on the 14th day of June 2012 is valid.

c) The Defendant is hereby ordered to render accounts for all the proceeds he has realized from the disputed cocoa farm apart from the portion carved out by Ben Agyei Fofie to him and his siblings, to the Plaintiffs from the date the Plaintiffs mounted this action on 20th June, 2016 to the date of final judgment that is today the 18th day of February 2025.

d) The Defendant is hereby perpetually restrained from laying claim to the remaining portion of the disputed cocoa farm which the deceased Ben Agyei Fofie did not carve out for him and his siblings per the memorandum of Gift and the last Will of Ben Agyei Fofie discussed supra.

e) Cost of Ghs 40,000.00 is awarded in favour of the Plaintiffs.