FELIX KWAME DZAKOBO VRS FELICIA SERWAA AMPONSAH & 2 OTHERS

JUDGEMENT

The Plaintiffs claim against the Defendants in their Writ of Summons filed on 26th May, 2015 for a declaration that:

i]       1st Plaintiff Comfort Gifty Odamea also known as Comfort Gifty Dzakobo Mrs. was one and only wife of Emmanuel Rapheal Dzakobo [deceased ] during his lifetime and hence his only lawful widow.

ii]      1st Plaintiff as the lawful widow of Emmanuel Raphael Dzakobo [deceased] of Avetile Peki and Nkawkaw is entitled to benefit from her late husband‟s estate .

iii]    The purported marriage celebrated between the late Emmanuel Raphael Dzakobo [deceased] and 1st Defendant Felicia Serwaa Amponsah is fraudulent and hence illegal and same declared void .

iv]    The purported Marriage certificate No.MO29/09 dated 03/04/2009 certifying the alleged marriage between the deceased the late Emmanuel Raphael Dzakobo and the 1st defendant Felicia Serwaa Amponsah apart from lacking the essentials/particulars of a marriage certificate was procured through fraud and same declared void ab initio.

v]     1st defendant Felicia Serwaa Amponsah shall cease holding herself as a widow of the said deceased.

vi]    The purported last will and testament of Emmanuel Raphael Dzakobo [deceased] Lacks the true and proper signature/Mark of the said testator and same declared void, 2nd and 3rd defendants must thus cease holding themselves as prospective executors to the said Will and last Testament of Emmanuel Raphael Dzakobo [deceased] vii] Defendants especially the first defendant return all properties of the deceased in their [her] custody to plaintiffs.

vii]  Defendants to be mulched in the cost of the suit.

 

The Defendants resisted the action. They entered appearance and filed their statement of defence on 18th June, 2015. A reply was filed by the plaintiffs on the 2-7-15. The Defendants subsequently, amended their statement of defence per an order of this court differently constituted dated 27/10/19.

At the close of pleadings, the following issues were set down for trial.

 

1) Whether or not Comfort Gifty Odamea was the one and only wife of late Emmanuel Raphael Dzakobo during his lifetime and hence the said deceased only lawful widow.

2) Whether or not the 1st Plaintiff as the lawful widow of deceased Emmanuel Raphael Dzakobo is entitled to benefit from the estate of her late husband.

3) Whether or not the purported marriage contracted between Emmanuel Raphael Dzakobo [deceased] and Felicia Serwaa Amponsah on the 03/04/2009 under the ordinance was a valid marriage in the face of the laws of Ghana.

4) Whether or not the purported marriage between the 1st Defendants and the said deceased was contracted through fraud and hence the 1st defendant must cease considering herself as the widow of the said deceased.

5) Whether or not the signature on the last Will and Testament of Emmanuel Raphael Dzakobo [deceased] is his mark and or signature and whether or not the said will must be declared void ab initio.

6] Whether or not the defendants especially the 1st defendant must continue keeping in her custody properties of the deceased or return them to the plaintiffs and or the family of the deceased.

7] Whether or not plaintiffs are entitled to the claims endorsed on the writ of summons

 

8] Any issue raised by the pleadings.

 

During the trial the plaintiffs testified in evidence and called two witnesses in support of their case.

All the defendants also testified and called two witnesses I wish to summarize the Evidence of the parties:

The 1st plaintiff who died in the course of the trial after her testimony and cross examination testified via her witness statement as follows:

Her name is Comfort Gifty Odamea also known and called Comfort Gifty Dzakobo (Mrs.) upon her marriage to the late Emmanuel Raphael Dzakobo. She became the widow of the late Emmanuel Raphael Dzakobo (deceased) of Avetile Peki in the Volta Region of the Republic of Ghana. Accoding to her, Raphael Dzakobo stayed and worked in Nkawkaw where he died. She was not resident in any gainful employment because of her poor health. Second plaintiff is the eldest child of the five children she had with the said deceased.

She continued that, 1st defendant is a lady falsely claiming to be the widow of her said husband and the 2nd and 3rd Defendants are the executors of a purported Last Will and Testament allegedly executed by her late husband.

She said, the last two Defendants are also persons who filed a joint affidavit to oppose the "Affidavit of Interest" filed by Togbe Seth Adenutsi and her in connection with their interest in the estate of the said deceased upon caveating against the grant of probate.

She narrated that, she was customarily married to her deceased husband in 1973 or thereabout in Anum in the Eastern Region of the Republic of Ghana, where she hails from.

She said as a wife, she accompanied her husband during his lifetime to whichever station he was transferred to, as he worked with the Quality Control Division of Cocoa Marketing Board (COCOBOD). Some of the stations he worked were in Tema, Takoradi, Sefwi and Nkawkaw all in Ghana.

She said though a housewife, she undertook a lot of income yielding ventures to support her late husband financially.

She testified that, with a solid support and encouragement to her late husband in all areas, he succeeded in putting up two houses - one in his hometown, Avetile Peki, and the other in Nkawkaw as their matrimonial homes. Her support also enabled her late husband to acquire several assets, among others such as vehicle spare - parts container- shop in Nkawkaw etc.

According to the 1st plaintiff, she moved along with her late husband wherever he went. Consequently, when he settled in Nkawkaw she moved in with him. Unfortunately no sooner had they settled in Nkawkaw than she noticed their marital relationship started deteriorating.

She narrated that, hiccups in the marriage rose to a point that the deceased threw her out of the matrimonial home. However shortly, she and her children discovered that the first Defendant was the cause of many of the problems in the marriage since she had accepted to be the deceased's paramour and influencing him in many of the negative issues affecting the marriage.

According to her, the impasse worsened in 2007 or thereabout when she could no longer tolerate her late deceased husband and 1st Defendants' cruelty to her. It was her case that, her late husband unsuccessfully took steps to dissolve the marriage between them.

It was her further case that, at a point first Defendant moved into the matrimonial home and was sharing the matrimonial bed and room where she had her personal effects with her husband. According to her, First Defendant was engaged in this wicked and mischievous relationship at the time she was very much aware that she was married to the deceased herein.

She continued that, this unacceptable and infuriating behavior of first Defendant compelled her parents and family members to invite the deceased for discussions concerning the state of the marriage but the deceased refused to respond favourable to their calls.

Accordingly, she unsuccessfully took steps to dissolve the marriage. She filed a petition before this Honourable Court differently constituted in July 3, 2009. This suit unfortunately was not determined before the deceased passed on to eternity.

She said, despite her relationship with the deceased as a wife, 1st defendant managed to coerce him to take steps illegally to marry her. She got wind of this and protested yet she preserved in her resolve and managed to entice her late husband to illegally embrace her

into his fold, despite her protest and that of some churches in Nkawkaw.

She said, some others made known to the 1st defendant and the late Dzakobo that their preparations to bring their relationship under the Marriage Ordinance when her marriage with the deceased subsisted was not only immoral but illegal but they persisted and fraudulently conducted their marriage against the law. she denied that the marriage between them was dissolved on 14/06/09. Their marriage was facing problems but she continued to be the deceased's wife until his death.She added that, consequently upon her late husband's death, she joined his family in all necessary activities to give him a befitting burial and performed and continue to perform all necessary rites as a widow to the deceased to date. She said, this can be attested to by all members of her family and that of her late husband. Being a wife to the deceased, at the time he and first Defendant were taking steps to illegally marry under the ordinance, she protested and even caveated.

It was her further case that, her late husband and first Defendant from the commencement of their immoral and illegal relationship based their acts on fraud and mischief. Again at all material times, the 1st defendant was aware of her status as an illegal wife and hence on the deceased's funeral she could not present herself to the deceased family unlike her, to perform any rite in accordance with custom. She added that, the Defendants' allegation that the deceased took steps to delete her name from the record of his employers were all ideas of Defendants in collusion with the deceased to perpetuate the fraudulent moves to support their plot against her, because the fact that her marriage was never dissolved by the deceased was known to all . All correspondence in connection with such purported changes was occasioned by malice, fraud and same must be declared void ab initio.

She said, Her late husband during the evening of his life was inflicted with serious sickness/ill-health and first Defendant whom the deceased was keeping as his paramour, took advantage of the deceased's poor health to put him under threat and under undue influence to the extent that the deceased was compelled to do whatever first defendant told the deceased to do. She added that, First Defendant even threatened her late husband not to communicate with his children. Hence in the absence of first defendant, the deceased will never talk or communicate with his children.

Again, first Defendant extended this hostile attitude towards the children and her to the extent that soon after the death of her late husband, she took custody and possession of all the properties/assets of the deceased without her consent, knowledge and authority of the deceased's family or according to the custom and traditions of the deceased; and to date all the items/properties of the deceased are with first defendant and she aberrantly repulses anyone who attempts to enquire or take custody of them.

She maintained that, the house in Nkawkaw is the matrimonial home for her, her husband and their children and not for first defendant. She said, the fact that the Petition was discontinued was a clear indication that the marriage between them was not dissolved before his death. It was only death which separated them as husband and wife.

According to her, purported marriage of 1st defendant was tainted with fraud and she puts 1st Defendant to prove otherwise in the light of her averments. She added that, the reading of the purported Will was at the instance of the first defendant and the names of all those invited as per the attached exhibit, was on the instructions of 1st Defendant.

She maintained that, the deceased was afflicted with illness which immobilized him for some time before his death.

 

She continued that, Bismark and Akorfa, acted on the instructions of the family and went for some items of the deceased to use for its burial as by the custom of where the deceased hailed from demanded, and it was never true that her said two children came with a vehicle to convey the belongings of the deceased, which in any case, in no way belong to first defendant. For ease of reference the 1st Plaintiff tendered the following Documents at the trial:

 

•     Exhibit A - Caveat By Togbe Seth Adenutsi And Comfort Gifty Dzakobo

•     Exhibit B - In The Matter Of Emmanuel Raphaeal Dzakobo [Affidavit of Samuel Osafo]

•     Exhibit B1 - Plan Of Land For Emmanuel Dzakobo

•     Exhibit B2 - Dissolution Of Customary Marriage Between Emmmmauel Raphael Dzakobo And Comfort Gifty Dzakobo

•     Exhibit B3 - Certificate Of Marriage No.Kwdmc 029/09

•     Exhibit B4 - Quality Control Division[Cocobod] Letter From Ofosuhene, Deputy HR Manager to Emmanuel R. Dzakobo dated 11/03/2009

•     Exhibit B5 - Statutory Declaration Confirming Dissolution Of Customary Marriage By Emmanuel R. Dzakobo Declared On 28/11/2008

•     Exhibit C - Letter From Seth Addo [Head of Family] Dated 02/02/2008 to Emmanuel R. Dzakobo

•     Exhibit C1 - Letter from Seth Addo dated 02/02/2008 to Emmanuel Raphael Dzakobo.

•     Exhibit D - D2 Certified True copy of Pleadings and Cover Notes. Comfort Odamea V. Emmanuel Dzakobo In Suit No. E6/3/09

•     Exhibit D3 - Notice of Petition

•     Exhibit D4 - D4a [25 Paragraph Petition of Comfort Odamea filed 03/07/09].

•     Exhibit D5 - Affidavit of Verification [filed 03/07/09]

•     Exhibit D6 -    Kromanni & Co Ltd. Affidavit of Service dated 29/09/2010

•     Exhibit D7 - Comfort Odamea V. Emmanuel Dzakobo [Setting Down Case for Trial dated 17/08/09].

•     Exhibit D8 - Notice of Entry of Appearance by Emmanuel Dzakobo [Filed 09/07/09].

•     Exhibit D9 - Suit No. E6/3/09 [Notice of Discontinuance] filed on 22/09/2010.

•     Exhibit D10 - Suit No. E6/03/09 Answer filed on 07/07/09

•     Exhibit D11 - Suit No. E6/03/09 Reply filed on 27/07/09

•     Exhibit E - Notice of Caveat

•     Exhibit F - Letter from the Presbyterian Church of Ghana dated 24/03/09.

•     Exhibit G - Marriage Certificate No.M029/09 dated 03/04/09

•     Exhibit H - Funeral Programme for the Late Emmanuel Dzakobo

•     Exhibit I – Reading of the Last Will and Testament of Emmanuel Rapheal Dzakobo.

 

In cross-examination, the 1st Plaintiff stated that she left the matrimonial home on the 7th December 2007 and prior to that, she was staying with her late husband in a bungalow near the nurses Quarters Nkawkaw. She said, her late husband worked with Quality Control Division of COCOBOD. She admitted that, she did not get the opportunity to live together with her late husband under the same roof again after she left the matrimonial home because he refused to accept her back, even though they tried to settle. She asserted that, the marriage was not dissolved. She admitted that, she has never lived in the disputed Nkawkaw house before and that she visited the place after the demise of her husband. She again asserted that, her children used to visit their father in the Nkawkaw house. She insisted that, she agreed with the deceased to buy a land in Nkawkaw in 2007 to put up the said house and that the deceased started building when she left in December 2007, to take care of her health. She also asserted that, the Nkawkaw house was mentioned as a property acquired during the marriage when she filed a petition in this court in 2009. She insisted that, her marriage was not dissolved at the time the deceased entered into the second marriage. She insisted that, the deceased told lies to the Presbyterian Church to get the second marriage blessed in 2011. She asserted that, whatever the Presbyterian Church did was null and void. She said, she discontinued the Petition she filed but the Marriage between her and the deceased was never dissolved. She again asserted that, the Peki House is on the deceased family land granted to her late husband and so it is a family house. She also maintained that, she assisted her husband to put up the Peki house which is a 6 bedroom house. She also said, the last will of the late Dzakobo was forged. She insisted that, she is the widow of the late Dzakobo known by his family.

2nd Plaintiff gave evidence out of turn via his witness statement which is akin to that of the 1st plaintiff. In summary he testified for himself and his siblings as follows: His mother was the only wife of the late Dzakobo and never got divorced. That the Nkawkaw property was acquired by both parents. He said, 1st defendant refused to mingle with the family of the deceased during his late father‟s funeral. It is his further case that, the 1st defendant took advantage of the ill-health of their late father and unduly influenced him to take several decisions. The 1st defendant was a paramour of his late father. He added that, the 1st defendant widen the gap between their parents and influenced his father to deny his children paternal love. He said, the Will is fraudulent because the signature differs from his father‟s actual signature.It is his further case that, apart from the fact that the Will is fraudulent, its contents are also misleading because the first Defendant was referred to in the will as a Wife. The head and senior members of the deceased family did not take any marriage for him aside that of his mother. He said, marriages in the Deceased‟s tradition are usually done in elaborate custom considering the fact that his late father comes from a Royal family. Mr. Asiamah influenced his late father in many ways. Those who claim to have accompanied his father to take the 1st defendant as a wife are not known by the family neither were they sent to perform any such role.

In cross examination, he confirmed that the 1st Plaintiff left the matrimonial home on the 6th of December 2007 and that she left in the absence of her late husband because she was unwell. He asserted that, 1st defendant linked up with the son of his Aunt called Bright Kobina Appiah to initiate spiritual disease against the 1st plaintiff. He said his mother returned to meet the 1st defendant in the house in 2008. He denied that, his mother did not accompany her late husband to Takoradi.He asserted that, he is aware that his father married the 1st defendant at the District court. Her mother protested the marriage at the Presbyterian Church. He denied that, the marriage between her parents was dissolved.

He admitted that, he knows all the defendants but denied that he was not on speaking terms with his late father. He admitted he was not staying with his father when he got married to 1st defendant but some of his siblings were with him. He denied that, some of his siblings threatened to kill the late Dzakobo even though there was an allegation against them at the police station. He asserted that, the land at Peki was acquired through Mr.Adenutsi the head of family.

He also maintained that, the land at Nkawkaw was acquired by 1st plaintiff and the deceased when they were living in an official bungalow between 2006-2008. He said he visited Nkawkaw house when late Dzakobo was sick. He denied the Nkawkaw house was acquired by the late Dzakobo and the 1st Defendant. He again denied that, the 1st defendant was prevented to participate in the funeral of the late Dzakobo.

PW1 Seth Bosomtwe Addo (Mr.) testifies via his witness statement as follows: He hails from Anum Amanfro in the Eastern Region of the Republic of Ghana; He is the Head of Boamina Family of Amanfro Anum in the Eastern Region of the Republic of Ghana, a family from which Gifty

Comfort Odamea also known as Gifty Comfort Dzakobo (Mrs.) belongs to. He is aware that first Plaintiff herein, is the widow of Mr. Emmanuel Raphael Dzakobo (deceased) who hailed from the Dzakobo family of Avetile Peki in the Volta Region of the Republic of Ghana.

According to him, Gifty was customarily married to the said deceased; and the family members of the deceased came to seek her hand in marriage from their family. The marriage has been blessed with five children.

He is aware that at a point in time, the marriage between the couple faced difficulties to the point that the widow was compelled to move out of the matrimonial home and attempts to convince her to go back to her marital home was frustrated by the fact that the deceased brought in a woman i.e. first defendant, to co-habit with him in the matrimonial home.

He said their family through him invited the deceased and advised him to desist from his acts of unlawfully harboring a woman in their matrimonial home, but he failed and refused to take their advice.

The deceased actually told some others that he will be dissolving the marriage but never had the courage to inform the elders of his family who contracted the marriage to come and dissolve same.

Consequently until his death, no member of his family ever approached them in connection with the dissolution of the said marriage.

According to him, upon the demise of the late Dzakobo their family was informed by the deceased's family and they joined the family of the deceased to give the departed a befitting burial. They also ensured that their daughter, Gifty, performed all rights that she needed to perform as a wife to her late husband.

He added that, by their custom and tradition, the one who comes to marry is the same person who goes to dissolve the marriage and hands over their daughter. He said, the deceased's family to date never returned their daughter to them as a divorcee. According to him, it is only when she is formally returned to them after her widowhood rites that they may know her as a single woman brought back to them.

He said, to the best of his knowledge, and that of his family as well as that of all members of the deceased's family, Comfort Gifty Dzakobo (Mrs) was a wife to Mr. Emmanuel Raphael Dzakobo (deceased) until his death.

In cross examination he asserted that, Mr.Martin Larbi Awuku his uncle was the one who came to ask for the hand of Gifty for the late Dzakobo. He asserted that, the late Dzakobo did not come to see him on the dissolution but it was rather1st plaintiff who brought complaint to him and eventually the late Dzakobo came to see the family, but the marriage was not dissolved. He denied that, the family took a bottle of schnapps from the late Dzakobo to signify the dissolution of the marriage. He asserted that, the compensation of GH¢3,000 that he demanded from the late Dzakobo is a compensation he sought from Dzakobo for abandoning the 1st plaintiff and for the 4 charges leveled against him for the purposes of settlement, which he could not answer. He is not aware of the petition filed by the 1st plaintiff. He is not aware of the deceased marriage to 1st defendant. He said the Presbyterian Church did not conduct investigation from the family.

PW2, Seth Adenutsi testified via his witness statement as follows: He is a retired employee of Ghana Education Service and hails from Avetile Peki in the Volta Region of the Republic of Ghana. He is the Head of Dzakobo family and he comes from the same house and descent with Emmanuel Raphael Kwasi Dzakobo.

According to him, he is aware that the deceased during his life time was customarily married to the first plaintiff herein. He added that, by their custom and tradition it is the parents especially from the paternal side and other elderly family members who contract marriages for their male children as well as give their daughter‟s hand in marriage.

He continued that, he is aware that his kinsmen from his family went to Anum in the Eastern Region to marry First Plaintiff for his cousin, the deceased herein. He further said that, 1st plaintiff to date is known and accepted by their family as the widow of the deceased. He added that, the 1st plaintiff and her family joined theirs to participate in any family activity and they do likewise - as by the dictates of custom.

It is his further case that, the late Dzakobo‟s parents and other elderly uncles and aunties passed on to eternity long ago thus transferring family responsibilities to their children who are alive. He said, consequently when Raphael passed on to eternity he as the Head of Family was the one who superintended over the burial and funeral activities of the deceased. Their family customarily informed the family of First Plaintiff of the passing on of their son-in- law or the husband of their daughter who is with them .The widow's family responded as custom demanded and assisted to ensure that the deceased was given a befitting burial to join their ancestors. Therefore, First Plaintiff was recognized as the widow of the deceased and she performed all roles demanded of her as such.

He added that, to the best of his knowledge and belief on no occasion has his late uncles, that is Raphael's father and siblings, himself and or any relevant Dzakobo family member accompanied the said deceased or went on his behalf to the First Plaintiff's parents or family to dissolve the marriage between the deceased and First Plaintiff.

He continued that, upon the ill health and death of their kinsman in issue, First Plaintiff and the children came to inform them at home.

According to him, First Defendant who claimed to be a wife was never at home to give them any information about the ill-health and death of their kinsman.

He said, 1st Defendant never participated in their funeral arrangements and neither she nor her family was represented in any activity concerning the funeral. He further added that, as family members, they were aware that before the death of Raphael he resided in Nkawkaw.

He narrated that consequently, upon his death, the family sent his children to his home in Nkawkaw for some of his items to be used in the burial, but to their surprise First Defendant turned them away and never bothered to inform the deceased's family of the reason for her acts.

He said, it is never true that First Defendant was prevented from participating in the funeral of the deceased. He added that, granted without admitting that she was personally not allowed by the deceased's son to be present at the funeral, she could have drawn the attention of the elders gathered for the funeral. He said that, even if she could not do that, any member of her family could have done that on her behalf, but no one ever did that because her claim is untrue and she has no legal link with their family by marriage or otherwise.

It is his case that, the day after Raphael's burial, the entire family including other related families sat in the family house, where the deceased was laid in state prior to his burial. This is done after every burial in their community to take stock of the events concerning the funeral. According to him, at such gatherings everyone is allowed to comment and or report on any aspect of the burial and funeral ceremonies.

He continued that, first Defendant never associated herself with the family to take advantage of bringing to the fore any issue against the children of the deceased and or anyone. He added that, he was aware of amorous relationship between the deceased and First Defendant, but on no occasion had deceased drawn the attention of his good self and or any material family member to customarily assist him to marry or engage in any type of marriage between himself and the First Defendant.

According to him, none of the material family members of their family was informed and or represented in the alleged Ordinance Marriage and he put First Defendant and all other Defendants to strict proof to identify any of their family members who was present to purportedly dissolve First Plaintiff's marriage with the deceased and or participated in anyway in contracting any type of the purported marriage between the deceased and First Defendant. He concluded that, the one and only widow that he and the family know (with whom the deceased had all his five children) is 1st Plaintiff.

In cross-examination, the PW2 insisted that, the 1st plaintiff and the deceased were engaged in a customary marriage. He admitted that he met the 1st defendant few months prior to his death. He said, the late Dzakobo got sick and together with the 1st defendant, they paid him a visit at Peki, at that time, he was excited because he lived alone. He gave them a room to sleep together. He denied that, the 1st defendant was introduced to him by the deceased as his wife. He asserted that, he had no idea about their marriage. 1st defendant was introduced to him as a maid of the late Dzakobo‟s master and the one assisting him since the deceased‟s wife and children had deserted him.

He observed that there was an amorous relationship between them due to the way they were interacting. He asserted that, when they visited he sent them to a herbalist across the road. He denied introducing 1st defendant to his kinsmen as the late Dzakobo‟s wife.

He asserted that, even if the 1st defendant sat on his lap, it was not a sign of acceptance in their culture. He admitted that, he flared up with the 1st defendant because he refused to give out the deceased suit cases and also allow the body to be taken home, when he sent for the body and his suit cases. He denied preventing 1st defendant to participate in the funeral together with the 2nd plaintiff.

He also asserted that the 1st defendant is not known to the Dzakobo family as a wife of the late Dzakobo.

The 1st defendant also testified by relying on her amended witness statement. The summary of her evidence is as follows:

Her name is Felicia Serwaa Amponsah, widow of Emmanuel Raphael

Dzakobo (deceased). By virtue of her marriage to the late Dzakobo, also known as Mrs. Felicia Serwaa Dzakobo. She is a trader and a native of Koforidua but now lives in Nkawkaw as a result of her marriage to the late Dzakobo. She did not know the 1st Plaintiff until the death of her late husband but knew the 2nd Plaintiff and his siblings.

She knows the 2nd and 3rd Defendants. They were friends of her late husband and they often paid him a visit in his residence during his lifetime. She met her late husband in 2008 and they married customarily in 2009 at Koforidua.

They then proceeded to the Nkawkaw Magistrate Court for the ordinance marriage in April two thousand and nine (2009). She is not aware that there was any objection to the marriage as none was brought to her attention.

Before she got married to the late Dzakobo, he told her that his first wife, the 1st Plaintiff herein parked her belongings and moved out of their matrimonial home in December 2007 when he attended a workshop outside Nkawkaw. He then took steps to dissolve the marriage between him and 1st Plaintiff and he requested his employers to delete the name of 1st Plaintiff from his records as a wife, which they complied with.

After the marriage, they lived together at Asubone Bungalow No. 2 at Nkawkaw. In the course of the marriage, no woman be it the 1st Plaintiff or any other woman ever showed up as wife of her late Husband. They however stayed with some of his children in the bungalow.

She added that, the marriage with the late Dzakobo was later blessed at the Presbyterian Church at Nkawkaw Grace congregation in a mass wedding in August two thousand and eleven (2011).

She said, when her late husband was later transferred to Takoradi, he suggested they build their own house as they had moved from the bungalow and rented a private accommodation.

It is her case that upon this advice therefore, they acquired a plot of land at Nanchia Nkawkaw. Together, they put up a four-bedroom house. She was also responsible for engagement of the workers and supervision of the work with assistance from a friend of her husband, Samuel Asiamah. The house was completed in the year two thousand and eleven (2011).The assertion by the 1st Plaintiff to the extent that the Nkawkaw house is her matrimonial home is rather strange as she does not know how the house was built, nor has she or any of her children stayed in the house before. She is aware though, that the deceased put up a house at his hometown before he married her. She did not make any contribution towards the building of the Peki House.

According to her, her late husband went on retirement in March two thousand and twelve (2012), and they moved in to live in their own house though it was not fully completed at the time. It is her case that, the 1st Plaintiff issued a petition against her husband at the High Court claiming, among others, compensation of five thousand cedis (GH¢5,000.00) but she later discontinued the suit herself in two thousand and ten (2010). The late Dzakobo died in two thousand and fourteen (2014). It is therefore not true that the suit was not concluded because of the demise of the late Dzakobo.

It is her case that, her late husband got sick in December two thousand and twelve (2012) and fully recovered. He fell sick again in two thousand and fourteen (2014) and unfortunately died in October two thousand and fourteen (2014). All this while, her husband had already prepared his will.

She continued that, during the ill health of her late husband, the Plaintiffs never showed up and had nothing to do with him until his death. While the body was still in the morgue, Bismark and Akorfa Dzakobo together with a niece of her husband called Mawusi brought a truck from COCOBOD to convey the belongings of the deceased which she vehemently opposed. She denied that the children were there to pick some items needed for the burial since it would not require a whole truck to do this.

It is her further case that, she did not refuse to mingle with the deceased family. It is rather her case that the 2nd Plaintiff teamed up with some family members and stopped her from performing her customary role as a widow. They refused to recognize her as widow and therefore did not even include her name on the funeral poster.

She added that, when she reported the matter to the Head of family of the deceased through her uncle Emmanuel Ofosu and the 3rd Defendant, the head of family told her through her uncle that the funeral posters were done by her late husband's children. The items she submitted for the burial were rejected and they also refused to allow her to play any meaningful role at the burial and the funeral of her beloved husband. She continued that, she was physically prevented, abused and cursed even at the time she was paying her last respect to her beloved husband, just to support their agenda and portray the 1st Plaintiff as the widow though she is not.

She further said, she does not recognize the 1st Plaintiff as widow of the late Dzakobo. She added that, just because she submitted the name of the 1St plaintiff to the Registrar of the Court for the reading of the will of her husband does not mean she recognized her as a wife. She denied that the Will was forged. She said the signature on the said will is the known signature of her late husband. She did not in any way put the deceased under any threat or undue influence throughout his life or at any point in his life and the deceased was not suffering from any sort of ill health at the time he made the will as is being alleged.

She denied that Presbyterian Church warned them against their intention to get married. She is not aware of any purported caveat that was brought to their notice to stop them from getting married as the marriage was officiated by the court itself.

She further added that, she got married to the deceased customarily in February, 2009. That marriage was not dissolved at any time, which means that she was wife of the late Dzakobo at the time of his death. The 1st Plaintiff was not. From the documents submitted by the 1st Plaintiff (Exhibit

"D"), there is indication that her late husband took steps to divorce her in 2007. Per the exhibits, the late Dzakobo had also stated that the marriage was dissolved in June two thousand and nine (2009).

She narrated that, the marriage was effectively dissolved between the 1st Plaintiff and her late husband. The only thing that was left was the quantum of money to be paid to her as compensation. This is because, the 1st Plaintiff refused to accept the five hundred Ghana cedis (GHC500.00) offered by her late husband. The 1st Plaintiff only went to court the following month (July) with her petition because she was not satisfied with the money that was offered her at the divorce and later chose to discontinue the case because she realized she had no case at all.

She said, granted that there was any problem with the marriage between the late husband and her in April, 2009 and with the certificate issued, it was the responsibility of the court to enter the necessary details on the document and not the parties. In any case, they were already married under customary law and it was the same Presbyterian Church at Nkawkaw which again married and blessed the marriage in 2011 without any objection from anybody.

She denied that her husband perpetuated any fraud regarding the marriage or the will.

 

She denied threatening her late husband not to communicate with his children or extended any hostilities to them. Due to the insubordination of the children towards their father, her husband on one occasion had to cause the arrest of Stella and Bismark Dzakobo through the police. On their release, they were given the option of conducting themselves properly or to quit the house. They opted to quit the house and therefore left. The other children also had serious problems with her husband and they were not on speaking terms with him for several years until his death. Even in the case of the 2nd Plaintiff, he was not on speaking terms with her husband about eight (8) years before she got married to him and at a time the 1st Plaintiff was the wife. She said, because of the way the 2nd plaintiff treated his late husband, he issued a warning that none of the children should attend his funeral upon his death. She denied that, she had any hand in this as it was due to their own conduct with the support of the 1st Plaintiff.

She denied the statement of 2nd Plaintiff to the effect that if she expended any money on the house at all, it was refunded to her by her late husband. She committed over ten thousand Ghana cedis (GHC10,000.00) of her personal resources to the project which was supposed to be beneficial to both of them and therefore there was no issue of any refund.

She denied Mr. Adenutui's statement that he did not know her as wife of the late Dzakobo. Though he did not attend the marriage ceremony, she went with her husband to Peki and she was introduced to Mr. Adenutsi who was very pleased with the marriage to the late Dzakobo. They actually lodged in his house on two different occasions when they paid a visit to Peki before they moved into the deceased's own house. She was responsible for preparing the meals for the household in Mr. Adenutsi's house on those occasions.

After she was introduced to Mr. Adenutsi on the first occasion, he put her on his lap and asked her if she understood the meaning of that gesture. He explained that it was a sign of acceptance of her marriage to his kinsman and promised to introduce her to the larger family which he did the following day. Mr. Adenutsi then assured them of his support and blessing.

For the avoidance of doubt, the exhibits the 1st defendant tendered are as follows:

•     Exhibit- "1" , "1A", "1B", "1C", "1D, "1E, - Pictures of her customary marriage ceremony.

•     Exhibit „2‟ and 2A - Copies of the letter to the employers and the response from the employers.

•     Exhibit „3‟ - Copy of the Marriage certificate.

•     Exhibit „4‟. Copy of the notice of discontinuance is annexed.

 

In cross examination she gave her age as 44 years. She said she has been married twice but she has not been a maid to Mr. Atsu. She admitted that she was legally married to the late Dzakobo in the year 2009.

She asserted that, one Mr. Bright Appiah and the deceased nephew called Joyce and others were the family members of the deceased who attended her marriage. She again asserted that, they were engaged in Mass wedding in 2011 and an ordinance wedding in 2009. She insisted that the deceased told him he had legally divorced the 1st plaintiff and one Comfort Kuma Ansah his sister confirmed it as well as Mr. Adenutsi [head of his family].

Again, she said the dissolution of the marriage of the deceased to the 1st plaintiff took place in 2008. She did not see any female items in the house she occupied. She denied the allegation that the 1st defendant protested her marriage at the Presbyterian church Nkawkaw. She admitted that the Peki House was completed before she got married to the late Dzakobo.

She asserted that, the deceased told her that all his siblings and the elderly members of his family were dead and it was left with his nephew and nieces and for that reason, Mr.Adenutsi gave permission for the nephew and niece to go for the marriage. She asserted that, it was the registrar who served the 1st plaintiff due to earlier processes from the court posted at her premises, which included the name of the 1st plaintiff.

She denied that, exhibit 2 is a self-serving document. She admitted that, Mr. Dzakobo died in the house he built by himself. She asserted that, she was not given prior information about the carting of the deceased personal items that explains why she did not hand over the items to the two children of the deceased who came to her before the burial. She again asserted that per her checks, they came without the knowledge of the head of family. She said, the children of the deceased prevented her from participating in the funeral and items sent through one Comfort Kumah Ansah deceased sister as custom demanded, was rejected by the family.

She also asserted that in 2013, she attended a funeral at Peki with the late Dzakobo and he got to know one Jubilantey a family member.

She further asserted that, there were misunderstandings between the deceased and his children prior to his death. She maintained that, she was part of a meeting leading to the one week celebration at Peki and was asked to collaborate with the deceased children to plan the funeral but Stella one of the children of the deceased insulted her.

She admitted not being present during the Sunday meeting because she was not aware of the meeting. According to her, there was a key to the Peki house but the children locked it up so she lodged in a hotel to the Knowledge of the head of family during the funeral. She said, the late Dzakobo died 5 years after the marriage. She said, she was engaged in the supply of maize to organizations which generated income for her.

She insisted that, the deceased informed her that he was not on talking terms with his first born. She also asserted that, she had no knowledge of the deceased Will until deceased friend one Michael Dzamesi disclosed to her, when she drew his attention of a notice posted and titled next of kin at her residence.

She asserted that, 2012 when the Will was made, the deceased was healthy. She added that, she got to know the date of the will after it was read. She denied that Will was faked. She got to know Mr. Emmanuel Asare and Frank Asare after the reading of the Will. She indicated that, the house in Nkawkaw started in 2010, because it was jointly done by both resources by 2011 they were done with it.

She maintained that, the land was bought in 2010 and she went with the Late Dzakobo to purchase same. She denied that, it was between 2006 2012 that the building was completed. She again asserted that, the land was purchased from Mr. Amofa and the size is 60by 80by

100. She denied the deceased had chairs and block moulding machine for hiring. She indicated that she spent an amount of GH¢ 10,000 on the Nkawkaw house.

She denied that 1st plaintiff assisted the late Dzakobo to put up the Nkawkaw house.

 

2nd Defendant who also died in the course of the trial after his evidence and cross examination testified via his witness statement as follows:

He is Osafo Samuel. He knows the 1st and 3rd Defendants. The 1st Defendant was the wife of the late Emmanuel Dzakobo and the 3rd Defendant was a friend of the deceased. On 23rd day of November 2007, he came to settle at Nkawkaw where he retired from the Police Service on 1st day of January 2008. He said, he met the late Dzakobo in the same year in town. He showed him his residence and he often paid him a visit. The late Dzakobo told him that his first wife (1st Plaintiff) left her matrimonial home when he had gone on a course in December 2007.

He further stated that, in the year 2008, the late Dzakobo met the 1st defendant at Koforidua and entered into a relationship with her. They got married under the customary law in February 2009 at Koforidua and later followed it up with ordinance marriage at Nkawkaw. The 1st Defendant and her late husband lived in Nkawkaw after the marriage.

He said, the late Dzakobo was later transferred to Takoradi and the 1st defendant stayed behind developing a piece of land the couple acquired at

Nanchia, Nkawkaw. When the late Dzakobo went on retirement, he and the 1st Defendant settled in their own house at Nanchia. The deceased was down with stroke in December 2012 and recovered fully. Unfortunately, in October 2014 the sickness resurfaced and he could not withstand it and died. When his last Will was read in the High Court after the burial, he was mentioned as one of the executors.

He continued that, 1st Plaintiff was not a wife of the late Dzakobo at the time of his death. The deceased told him that he divorced the 1st Plaintiff in accordance with custom and persons who accompanied him for the divorce included Samuel Asiamah, Kofi Wiafe (deceased) and Owusu Sekyere. He said, it is not true that he or any of the other Defendants colluded with the deceased to delete the name of the 1st Plaintiff from the records with his former employers as a wife. He said, it is also not true that the will of the late Dzakobo is fraudulent.

In cross examination, He asserted that Mr. Dzakobo was his friend for 6 years. He asserted that, the deceased told him they met in Anum about the issue between the 1st plaintiff and him but that the 1st plaintiff wanted some compensation and because he did not get it, she brought the matter to court.

He said, he is not in the position to tell whether the marriage between the 1st plaintiff and the deceased was dissolved. He asserted that, the deceased Dzakobo told him he had prepared his last Will after retirement.

He said, the late Dzakobo informed him that he is one of the executors of his Will. He insisted that, some departments of the Ghana Police Service performed their functions well others do not.

He also asserted that, he is not in a position to tell who divorced who as between Dzakobo and the 1st plaintiff and was not present during the divorce. One Opanin Kissi told him that he bought a land at Nanchia Nkawkaw for the deceased.

3rd Defendant testified via his witness statement as follows: 

His name is Michael Dzamvivie. He lives at Nkawkaw Nsuta and a pensioner. He does not know the Plaintiffs until the death of Mr. Dzakobo. He knows the 1st Defendant as widow of the late Dzakobo and the 2nd Defendant as friend of the deceased.

He happened to know the late Emmanuel Dzakoto in December 2008 when the deceased was then the District Officer in-charge of the Produce Inspection Division of Ghana COCOBOD at Nkawkaw. It happened that, they were from the same traditional area of Peki in the Volta Region and therefore became like real brothers. When he met the late Dzakobo, he was in a relationship with the 1st Defendant. The late Dzakobo later explained to him that his former wife the 1st Plaintiff had deserted him and the marriage between them had been dissolved. The late Dzakobo later got married to the 1st Defendant under the customary procedure in Koforidua in February 2009 and later followed it up with ordinance marriage at Nkawkaw. Sometime in 2010, the late Dzakobo expressed the desire to put up a house in Nkawkaw to settle in after retirement.

According to him, in the same year he was transferred to Takoradi and his wife the 1st Defendant with the support of another friend of his, Samuel Asiamah supervised the construction of the house at Nanchia, a suburb of Nkawkaw. In the year 2012, the late Dzakobo was retired from active service and he settled at their newly built residence and used to pay him a visit occasionally.

He further stated that their close relationship was interrupted when the late Dzakobo was taken ill and the 1st Defendant accompanied him out of Nkawkaw for medical attention.

He added that, while at Peki in October 2014, he was informed about the seriousness of the sickness of the late Emmanuel Dzakobo and of his subsequent demise. At the burial and funeral of the deceased, the Plaintiffs sidelined the 1st Defendant and even made it impossible for her to play any role in the activities.

He narrated that, he remember accompanying Emmanuel Ofosu, uncle of the 1st Defendant to complain to the Head of family when her name was not included on the funeral poster. His response was that the poster was not done by the family but the children. After the burial ceremonies at Peki in January 2015, he was later told by the 1st Defendant that, the last will and testament of the late Dzakobo had been read at the Nkawkaw High Court and he was nominated as one of the executors of his Will. He stated that, 1st Plaintiff was not the wife of the late Dzakobo at the time of his death. The marriage had been effectively dissolved between them.

He said he did not collude with the deceased to delete the name of the 1st Plaintiff from the records with his former employers as a wife.

He tendered the Last will of the late Testator Mr. Emmanuel Raphael Dzakobo as Exhibit 5.

In cross examination, He gave his age out as 75 years .He said, he retired in 2007 from the Lands Valuation Board. He admitted that, he signed all the documents presented to court on his behalf. He further asserted that he got to know the deceased in 2010.He insisted that

, the children of the deceased did not cooperate with the 1st defendant in the planning of the funeral and the head of family „s attention was drawn to it .He is not aware of the marriage between 1st plaintiff and the late Dzakobo.

DW1 testified as follows:

His name is Samuel Asiamah. He lives at Nkawkaw Adoagyiri and a Mechanic. He does not know the Plaintiffs but knows the Defendants. He knows the 1st Defendant as wife of the late Emmanuel Dzakobo. He got to know the late Emmanuel Dzakobo in Nkawkaw due to the nature of his work. He also attended the same church with him, the Grace Presbyterian church at Nkawkaw.

He often visited his bungalow and met some of his children. He told him his wife had deserted him. The deceased informed him he had seen a lady at Koforidua he intended to marry.

He narrated that, he was among members of the Presbyterian Church who attended the customary marriage ceremony at Koforidua between the late Dzakobo and the 1st Defendant in February 2009.

He said, the marriage was later solemnized and the couple stayed in Nkawkaw and later had the marriage blessed in a mass wedding at the Nkawkaw Grace Presbyterian Church. He recalls accompanying the late Dzakobo to Anum Apapam near Suhum upon invitation by the family of the 1st Plaintiff. They tried reconciliation between him and the 1st Plaintiff but it did not work. They went there for the second time and the deceased presented a bottle of schnapps and an amount of five hundred Ghana cedis (GHC500.00) to signify the dissolution of the marriage.

According to him, the marriage was therefore effectively dissolved on that day. He said, the only issue that was left was the quantum of money to be paid as customary send off, as the 1st Plaintiff refused to accept the

GH¢500.00 offered and demanded three thousand cedis (GH¢3,000) instead. He said, this was in June 2009. Those who were also present with them included Op. Kofi Wiafe (deceased) and Owusu Sekyere.

He continued that, the 1st Plaintiff‟s family then suggested that they would speak with the 1st Plaintiff if she would change her mind and accept the money offered. Consequently, the following month, the 1st Plaintiff issued a petition at the Nkawkaw High Court against the late Dzakobo claiming, among others, the sum of five thousand cedis (GH¢5,000.00) as compensation. He added that, the matter was however discontinued.

He stated that, the 1st Defendant and the late Dzakobo subsequently acquired a land at Nanchia, Nkawkaw and as the deceased had then been transferred to Takoradi at the time, he and the 1st Defendant supervised the building until it was completed.

In cross examination, he asserted that he got to know the 1st defendant in the life time of deceased Efo Emma. He also used to church with 2nd Defendant Samuel Osafo. He once met 3rd defendant in Efo Emma‟s office. Efo Emma regarded him as a son. He asserted that, the case has been in court for quite a long time so he does not remember dates. He again asserted that he escorted Efo Emma to perform his marriage rites.

He maintained that the marriage between the 1st plaintiff and Efo Emma was dissolved on their second visit to the 1st plaintiff‟s family after reconciliation failed and he was present. He asserted that Efo Emma was sending money through 1st defendant to purchase Building materials for the Nkawkaw house. He admitted that, the marriage of the 1st defendant was done earlier than when the marriage to the 1st plaintiff was dissolved. He admitted he attended the customary marriage between the late Dzakobo and 1st defendant in Koforidua. He asserted that one Seth Addo said he was the head of family of 1st plaintiff during the dissolution. He asserted that the 1st plaintiff‟s Petition was in respect of the compensation.

DW2 testified via his witness statement as follows:

His name is Frank Asare. He is a pensioner and lives at Mpraeso. He used to work with the Judicial Service at the Abetifi District Court. On or about 30th May, 2012 he was in the office when the deceased, Emmanuel Raphael Dzakobo approached him and pleaded with him to be a witness to his Will for him and he agreed. He also spoke to another colleague called Emmanuel Asare who also agreed to be a witness. Together, they went to the office of the Registrar, Mr. Addo who explained the process to them. The deceased then proceeded to sign his part in their presence, after which they also signed their part.

He said he can state emphatically that, the testator signed his part in the presence of both witnesses being present at the same time after which they also signed their part, in the presence of the deceased and Mr. Addo the court Regisrar. He reiterated that, the signature of the late Dzakobo which appears on the last Will and testament was signed by the late Dzakobo in his presence and in the presence of Emmanuel Asare the other witness.

In cross examination, he gave his age to be 68 years old. He got to know Felicia the 1st Defendant in court but knows Mr. Dzakobo. He does not know the 2nd and 3rd defendants. He said he has forgotten the day he witnessed the said will. He asserted that, the registrar did not play any role in the execution of the Will. He again asserted that, two witnesses signed the will.

It should be noted that upon a prayer made to the court, the 1st Defendant was recalled to tender the Witness statement of Emmanuel Asare, one of the witnesses to the last will of the Testator as Hearsay. The said witness to the Will was said to have been transferred out of the jurisdiction of the court and could not be traced. The said Hearsay Evidence was put in by the 1st defendant and marked Exhibit 6. The Contents of Exhibit 6 is akin to that of DW2 another witness to the signature of the last Will of the Testator.

It should also be recalled that on the 20-11-2017 upon a prayer made to the court by the plaintiffs‟ counsel, the signature of the Will of the Late Dzakobo was sent for Forensic Examination. In fact, both lawyers eventually reached a consensus that the Will be sent for Forensic examination. As a result, the Last Will of the Late Emmanuel Raphael Dzakobo was sent to Forensic office of the Ghana Police service Accra together with other documents the deceased had ever signed in his lifetime to assist in the exercise and probably for comparison purposes. The said forensic examination was conducted and the same received and marked as Exhibit CE1.

It is also on record that the court differently constituted upon an application made by plaintiffs, appointed an Administrator Pendente lite on the 31/ 05/2017 to manage the estate of the late Mr. Emmanuel Dzakobo. These are 2nd Plaintiff, 1st Defendant and the Registrar of this court.

It is also worth knowing that, the 1st plaintiff and the Head of family of the late Dzakobo, one Mr. Adenutsi caveated, when the two executors who were sued together with the 1st defendant initiated a probate application in this court differently constituted. Mr Adenutsi however did not join this present action but was invited as a witness of the plaintiffs.

Counsel for both plaintiffs and defendants filed their respective addresses and I have thoroughly read through.

Counsel for plaintiffs in his address argued that the plaintiffs have proved their case against the defendants and should therefore be entitled to the reliefs they are seeking in this case, whilst counsel for the defendants contended otherwise that the plaintiffs have been unable to prove their claim.

 

 

 

BURDEN OF PROOF

I wish to state that this case being a civil matter, the standard of proof (that is, the burden of persuasion) is by preponderance of probabilities. This means the party whose case brought out the issues in the case is to produce sufficient evidence so that in all the evidence, a reasonable mind could conclude that its existence is more probable than its non- existence.

See:

 

•     Tuakwa V. Bosom [2001-2002] SCGLR 61

•     Gihoc Refrigeration and Household Products Ltd V. Hanna Assi [2005-2006] SCGLR 458

In this case, the defendants did not counterclaim for any relief. The plaintiffs are alleging that the 1st plaintiff is the lawful wife of the late Emmanuel Raphael Dzakobo, that the 1st Defendant is not a wife of the deceased, that the marriage celebrated between the 1st Defendant and the late Dakobo under the ordinance is fraudulent and be declared void.

It is also the case of the plaintiffs that, the 1ST defendant shall cease to hold herself as the widow of the late Dzakobo and return all properties in her possession. Finally, the last Will of the Late Dzakobo must be declared void. Therefore, they bear the burden of proof to lead such evidence so that the court will be convinced about the existence of what they are alleging.

ADDRESSING THE ISSUES: ISSUE 1

Whether or not Comfort Gifty Odamea was the one and only wife of late Emmanuel Raphael Dzakobo during his lifetime and hence the said deceased only lawful widow.

To prove the above issue, 1st plaintiff narrated how she has been married to the late Emmanuel Raphael Dzakobo customarily since the 1970s and had 5 children with him. On no Occasion was the marriage dissolved.

1st plaintiff disclosed that just like all marriages, their marriage had challenges. Plaintiff said in 2007, she had to move out of the matrimonial home in the absence of his late husband due to ill health. She added that, her late husband approached his family for the dissolution of the marriage, but he could not meet the condition even when he approached the family for the 2nd occasion.

She also filed a Divorce petition in court but discontinued same due to her health challenges. In the lifetime of her deceased husband, when it got to her attention that he wanted to marry another woman that is the 1st defendant, she put in a caveat and warned that her customary marriage is still pending. Furthermore, after the demise of her late husband she was the one recognised by his family as the widow and she performed all the relevant rites as by custom. 2nd plaintiff testified to corroborate the 1st plaintiff‟s assertion. Plaintiffs also called PW1, the head of her family and PW2 the head of the late Dzakobo‟s family to buttress her case. 1st Plaintiff did not stop there, she tendered in the following Exhibits to establish her case on the above issue.

•     Exhibit C - Letter from Seth Addo [Head of Family] dated 02/02/2008 to Emmanuel R. Dzakobo

•     Exhibit C1 - Letter from Seth Addo dated 02/02/2008 to Emmanuel Raphael Dzakobo.

•     Exhibit D - D2 Certified True Copy of Pleadings and Cover Notes Comfort Odamea V. Emmanuel Dzakobo in Suit No. E6/3/09.

•     Exhibit D3 - Notice of Petition

•     Exhibit D4-D4a - 25 Paragraph Petition of Comfort Odamea [Filed 03/07/09].

•     Exhibit D5 - Affidavit of Verification [Filed 03/07/09]

•     Exhibit D6 - Kromanni & Co Ltd. Affidavit of Service dated 29/09/2010.

•     Exhibit D7 - Comfort Odamea V. Emmanuel Dzakobo [setting down case for trial] dated 17/08/09.

•     Exhibit D8 - Notice of Entry of Appearance by Emmanuel Dzakobo [filed 09/07/09].

•     Exhibit D9 - Suit No. E6/3/09 Notice of Discontinuance [filed 22/09/2010].

•     Exhibit D10 - Suit No. E6/03/09 Answer filed on 07/07/09.

•     Exhibit D11 - Suit No. E6/03/09 Reply filed on 27/07/09

•     Exhibit E    - Notice of Caveat

•     Exhibit F - Letter from the Presbyterian Church of Ghana dated 24/03/09.

•     Exhibit G - Marriage Certificate No. M029/09 dated 03/04/09.

•     Exhibit H - Funeral Programme for the late Emmanuel Dzakobo

•     Exhibit I – Reading of the Last Will and Testament of Emmanuel Raphael Dzakobo.

At this stage, it is evident that the Plaintiffs have been able to establish to some extent the above issue, if the Defendants are unable to raise any doubt to whittle down the evidence, this issue will be decided on behalf of the plaintiffs.

Going by the dictum of Brobby JSC in the case In Re Ashalley Botwe Lands, Agbosu & Others v. Kotey & Others [2003-2004] SCGLR 420.

“The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows; a litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if a court has to make a determination of a fact or an issue and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour.''

Hence, it is necessary for this court to also look at the nature of the evidence produced by the defendants and evaluate if same satisfies the requirement of the law.

I now wish to proceed to analyse the case of the Defendants as per the above issue.

 

On this issue, 1st defendant testified that she is the widow of the deceased Emmanuel Raphael Dzakobo. He got married to her customarily in 2009 and followed up with a District Court Ordinance Registration in 2009 and subsequently a church solemnization of her marriage through a mass wedding in 2011. They lived together in their matrimonial home in Nkawkaw until he died in 2014. No woman visited their Matrimonial home in his life time. The deceased in his lifetime also showed her evidence of dissolution of his previous marriage to 1st plaintiff. His marriage to her was no secret to the deceased family, and even his children who once lived with them. The deceased head of family is aware of their marriage. Upon the demise of her husband, his family and children intentionally prevented her from participating in the funeral. She was also prevented to pay her last respect to her late husband. According to her, things sent to them as required by custom were rejected and her name did not appear in the funeral brochure as a wife even though their attention was drawn to it. Her story was corroborated by the two other defendants and DW1 who testified that he attended both her customary and the ordinance marriage ceremonies. DW1 also claimed to have witnessed the alleged dissolution of the customary marriage of 1st plaintiff.

She tendered the following documents in respect of this issue

 

•     Exhibit "1" , "1a", "1b", "1c", "1d‟‟, "1e‟‟, - Pictures of Defendant‟s customary marriage

•     Exhibit „2‟ and „2A‟ - Copies of the letter to the employers and the response from the employers.

•     Exhibit „3‟ - Copy of the Marriage certificate.

•     Exhibit „4‟ - Copy of the notice of discontinuance is annexed.

 

It is now my take to make a determination on this issue. In the first place, there are some undisputed facts in this case pertaining to this issue which I wish to state.

It is undisputed that the 1st plaintiff got married to the Deceased Dzakobo customarily in the 1970s. It is also undisputed that the late Emmanuel Raphael Dzakobo once took steps to have the marriage dissolved. Also, it is not in dispute that the 1st plaintiff also took steps to dissolve the marriage which was later discontinued by her. It is also not in dispute that upon the death of the late Dzakobo, it is the 1st plaintiff who was recognized by the deceased family as the wife of the Deceased. It is not in dispute that the alleged marriage between the 1st Defendant and the deceased was somehow registered as an ordinance marriage.

It should be noted that, the marriage between the 1st plaintiff and the late Dzakobo was a customary Marriage. In law, customary marriage is potentiality polygamous. Thus one may decide to marry only one woman for the rest of his life, but that will not make the marriage monogamous. It is still a potentially polygamous marriage. See Family Law in Ghana by William E. Offei 2nd Ed. Published in 1998 pg. 34.

There is however, no doubt that there is cultural diversity in Ghana. Every traditional area has their culture of how marriages are received and dissolved. Each of the ethnic groups in Ghana has its own unique culture and tradition.

The said customary marriage between the 1st plaintiff and the late Dzakobo could have been registered under PNDC Law 112 however, the court of Appeal decided in the case of Adade v. Dade and Another [1991] 1 GLR 267 that, „registration of customary marriage is not mandatory‟.

Therefore was the said marriage between the 1st plaintiff and the late Dzakobo dissolved? The evidence of the 1st and 2nd plaintiffs and that of all her witnesses is to the effect that, the marriage between the late Dzakobo and the 1st Plaintiff was not dissolved. It should be noted that, the 1st and 2nd witnesses of the plaintiff are the head of family of the 1st plaintiff and head of family of the deceased Dzakobo respectively. In spite of their corroborative evidence, the defendants denied same.

As earlier noted, each of the ethnic groups in Ghana has its own unique culture and tradition. Therefore, if the head of the 1st plaintiff‟s family who is supposed know the culture of the Anum people maintains that the Marriage was not dissolved as required by custom even though the deceased approached them, then the court must tend to other evidence from the Plaintiffs if any, in the face of the denial by the defendants to determine this issue one way or the other, pertaining to the dissolution of the customary marriage.

It is trite law that, a party whose averment is denied must prove it with other things such as descriptions, documents etc. for the court to know that what he avers is true. The burden is not discharged by repeating the averment on oath or having it repeated by the party‟s witness.

See:

•     Majolabe V. Larbi & Ors (1959) GLR 190.

•     Faroe Atlantic Co. Limited V. Aflorney General (2005-2006) SCGLR 271.

 

Amidst the denial, the 1st plaintiff tendered some exhibits also listed elsewhere in this judgement including Exhibit „E‟, a caveat from the 1st Plaintiff and Exhibit „F‟, a letter from Rev. Kwesi Kumi to the Presbyterian church, disclosing that there was a subsisting marriage between the 1st plaintiff and the late Dzakobo. Exhibit D series are the Petition, answer and subsequent documents. Exhibit H series which is the Brochure, prepared posthumously by the family of the deceased also had the 1st plaintiff recognized as the wife of the deceased by his family.

It should however be noted that, Exhibits „E‟ , „F‟ and „D series‟ took place in the life time of the deceased yet, the deceased did nothing to bring to finality the question of the contention of the dissolution of his marriage to 1st plaintiff.

After all, there is no evidence of the outcome of the investigation of Exhibit „F‟. It is worrying that even in his answer to the petition, the deceased insisted that the marriage has been dissolved whilst the Petitioner contended otherwise. I am minded that claims against a deceased person must be received with the greatest caution and scrutinized carefully before any weight is attached to it. See; Kusi & Kusi v. Bonsu [2010] SCGLR 60 at 73.

 

If in the life time of the deceased the contention from the plaintiff was that, the marriage had not been dissolved and for that reason, the 1st plaintiff took steps to caveat his marriage to the 1st defendant and even filed a Petition among others for the dissolution of the said marriage, the deceased could have cross petitioned for a declaration that the marriage had been dissolved. This could have settled the contention regarding the dissolution of the marriage. The 1st Plaintiff however, discontinued same still keeping the issue of the dissolution in limbo. However, what is revealing is that, in his answer to the petition even though the deceased contended that the marriage had been dissolved, in the same answer, he prayed the court to dissolve the marriage between them. See his answer in Exhibit „D series‟

[para. 27 of D 10] even though same did not come out as cross petition. Thus, in one breath the late Dzakobo insisted that the marriage has been dissolved in another breath he prayed the court to dissolve the marriage.

See Exhibit „D10‟.

 

Per Exhibit „E‟, „F‟ and „D series‟, there is no doubt that as at 2009, it was in contention that the marriage between the 1st plaintiff and the deceased had been dissolved.

Is there any weight to be attached to Exhibit 2 and 2A of the defendants? I must admit that these exhibits are affidavit of the late Dzakobo and letters to the deceased employers and response thereon. These letters cite the date of dissolution as 7th January 2007 whilst the date of Dissolution cited in „The Answer‟ Exhibit D10 is 14/06/09. This shows that the deceased himself was uncertain about when the dissolution of his marriage to 1st plaintiff took place in his lifetime granted it took place at all.

Besides, it is very difficult to place much weight on the evidence of DW1 Samuel Asiamah, who claims to have witnessed the dissolution of the marriage. This is because, his evidence was denied on plausible grounds. It should be noted that the parties were first married customarily and according to the head of family of the 1st plaintiff, per their custom there was no dissolution of the marriage between the two and that he did not receive any drinks, rather what he requested for being an amount of 3000 Ghana cedis was not presented. To him, in spite of whatever the DW1 witnessed which was denied, same does not signify or constitute dissolution in their custom and that explains why the 1st plaintiff went to court again for the dissolution of the same marriage among other reliefs sought.

In my mind, the 1st plaintiff has been able to prove that her marriage to Mr Dzakobo subsisted without formal dissolution. Therefore, with the discontinuation of her action at the High Court, the marriage between the 1st Plaintiff and the late Dzakobo subsisted during their life time. She was therefore a surviving wife of the deceased.

Another important sub issue which will assist settle the entirety of the 1st issue is whether the 1st plaintiff was the only wife of the deceased in his lifetime and as such the only widow?

As I earlier indicated, customary marriage is potentially polygamous. Therefore, nothing stops a man married under customary law to take on another wife. The evidence on record is that, the 1st defendant was married to the late Dzakobo customarily; See Exhibit 1 Series and then the conversion. According to the plaintiffs, the so called Marriage was celebrated contrary to custom and at their blind side. On the totality of the evidence of the plaintiffs and their witnesses together with the exhibits, they are challenging the marriage of the 1st defendant not because they contend that there was no marriage celebrated between the late Dzakobo and the 1st Defendant but their contention is that the marriage is null and void among other reasons, due to the subsistence of the 1st Plaintiff‟s marriage. I believe one of the reasons being that even if any marriage subsisted between the 1st defendant and the late Dzakobo same was not celebrated in accordance with custom. Besides, Ordinance marriage is Monogamous. The preceding suggests fine argument, because it is trite that marriage under Cap 127 is Monogamous. It should be noted that, even in the 1st plaintiff‟s exhibit D series [D4] she disclosed that, the late Dzakobo had gotten married in spite of the subsistence of their marriage.

However, before the 1st defendant marriage was converted into the ordinance Marriage either in 2009 or 2011, there was some form of customary marriage, and so granted the ordinance marriage was even null and void which shall be discussed later, the question which begs for answers is that, what about the condition of the then subsisting customary marriage between the 1st defendant and the late Dzakobo? If indeed there was a customary marriage. Was it also null and void after the conversion? The court shall discuss the status of a wife in a failed conversion later in this judgement to conclude its take on issue one. Until then, I hereby settle issue one partly for the 1st plaintiff that, she was the widow of the deceased prior to his death. The issue of whether the 1st plaintiff was the only surviving wife will be resolved subsequently.

 

 

 

 

 

 

ISSUE 2

 

Whether or not the 1st Plaintiff as the lawful widow of deceased Emmanuel Raphael Dzakobo is entitled to benefit from the estate of her late husband.

The above question does not demand any elaborate discussion. As per the PNDC Law 111 which came into force on 14th June 1985, a spouse is entitled to benefit from the estate of her deceased spouse who dies intestate just like the children of the deceased and all persons or beneficiary named in the said Law, in accordance with the fractions or proportion quoted in the said law.

However, the turn of events is different when the deceased or spouse dies testate or leaves behind a Will. Then the Will of the testator as pronounced in his last will must take effect unless the court decides otherwise.

Therefore, in this case once the court has declared the 1st plaintiff as a wife, the deceased having died testate, unless the Will is declared Void or invalid and unless there is a special Application before the court to make provisions for the 1st plaintiff, it is the beneficiaries of the will who will benefit under the will. However, if the Will is invalidated then PNDC Law 111 will govern the distribution of his estate since the deceased will be deemed to have died intestate. Under that circumstances, the beneficiaries as stated in the said PNDC Law 111 will benefit, which includes the Wife and therefore the 1st plaintiff will be entitled to benefit from the estate of the deceased.

I will therefore resolve this issue completely after the court is done with the discussion or decision on the validity of the last will of the late Mr.

Emmanuel Raphael Dzakobo.

 

 

ISSUE 3

 

Whether or not the purported marriage contracted between Emmanuel Raphael Dzakobo[ deceased] and Felicia Serwaah Amponsah on the 03/04/2009 under the ordinance was a valid marriage in the face of the laws of Ghana .

Before discussing the above issue, it is also pertinent that this court sets the record straight as to whether there was a valid customary marriage between the late Dzakobo and the 1st Defendant

As earlier indicated, nobody is alleging that the 1st Defendant and the late Dzakobo never got married. All that the plaintiffs are alleging is that the marriage contracted under the customary marriage and same converted into an ordinance marriage is no marriage at all and that the ordinance marriage is invalid.

I will reiterate that, before the Ordinance Marriage at the District Court Nkawkaw, or at the Presbyterian Church Ordinance Marriage in 2011, the late Dzakobo and the 1st defendant herein were engaged in a Customary marriage as depicted by exhibit 1 series which has not been denied except the contention that there were no elders of the deceased family present to take the marriage, which is contrary to the custom of the Peki People. The 1st plaintiff confirmed a form of marriage between the deceased and the 1st defendant in paragraph 14 of Exhibit „D4‟ [Petition]. Besides, Dw1 emphatically said that he was a witness to the said customary marriage which has not been refuted.

The bone of contention however is that, no family member of the deceased was present to take the marriage and so whatever happened at Koforidua in 2009 or 2011 be it customary or ordinance marriage is no marriage at all.

The law is that, he who asserts should prove and the burden of proof as we know, is not static but shift from party to party depending on the facts asserted. See; In Re -Ashalley Botwe Lands case [2003-2004] SCGLR 42 since it is the plaintiffs who are asserting that, the customary marriage and the conversion into an Ordinance Marriage is no marriage at all, the onus is on them to prove that there was no marriage between the deceased and the 1st defendant.

To prove their case, apart from the evidence of 1st and 2nd plaintiffs, the plaintiffs invited the head of family of the Late Dzakobo to testify in court. The witness corroborated the evidence of the plaintiffs and told the court that he has not performed any marriage ceremony between the 1st defendant and the late Dzakobo, neither did he seek the 1st Defendant hand in marriage or sent anybody to take 1st defendant hand for his kinsman the late Dzakobo as by custom. Plaintiffs also contended that during the Funeral of the late Dzakobo it was the 1st plaintiff who showed up as the wife of the deceased and performed all the customary rites see Exhibit „H‟ Series. It is also the case of the plaintiffs that, the subsistence of the customary marriage between the 1st plaintiff and the late Dzakobo made any other marriage null and void.

It should be noted that, the fact that elderly persons in the deceased family or the head of family of the deceased family did not accompany the deceased to conduct the customary marriage between the 1st Defendant and the late Dzakobo did not invalidate the customary marriage between the two per se. This is because traditionally it is the woman‟s custom that prevails at the said customary marriage and not that of the man in a customary marriage ceremony. However, in almost all the diverse Ghanaian tradition and custom, it is a man who takes the hand of a woman in marriage, see JB Danquah‟s Akan Laws and Customs pp. 148-151.

Granted in the cultural practices of the Peki Avetile people, it is the head of family who ought to have taken the marriage for the late Dzakobo, the family of the 1st defendant will not know neither would they be in the position to know whether whoever accompanied the deceased is in fact his head of family or not. There is no doubt, that Ewes are of patrilineal descent and therefore all things being equal, it is the father side that should have taken the customary marriage for the late Dzakobo. However, granted that the customary married was taken by other persons who cannot be traced to the male line in the deceased family as it appears in this case, this will not invalidate a customary marriage taken by the late Dzakobo in his lifetime. Besides, customary law evolves, and nobody could have compelled the late Dzakobo to go strictly by custom by involving his elders.

What is rather revealing is that two nephews of the deceased from the deceased maternal side accompanied him to take his customary marriage and that should suffice. Whether or not these two nephews or any other person who accompanied the late Dzakobo to take the marriage such as DW1, were not family members, did nothing to invalidate the customary marriage of the parties to the marriage. It should be noted that, the 1st defendant was present at the funeral of the late Dzakobo to participate fully however, the evidence has it that her items brought to the funeral and burial were rejected and the family of the deceased made it impossible for her to fully partake in the funeral. I am tempted to believe that probably, the family of the deceased indeed rejected the 1st defendant as a wife to perform any rites because of her failure to allow them access to the deceased personal effect after his demise, see the cross examination of Mr Adenutsi the head of family of the late Dzakobo at pg. 107 of the proceedings which confirms his fury as the head of family against the 1st defendant as follows;

Q] I suggest to that you were later angry with 1st defendant just because she refused to allow some people to convey all the property of the deceased to his hometown in a truck, at the time of his death?

A] When my brother died, I asked that the body should be conveyed to Peki Government Hospital with one or two of his suitcases and 1st defendant refused to give out the suitcases and I flared up because of her refusal to allow Dzakobo‟s body to come home. 1st defendant also refused anything to be taken out of the house.

Besides, per the evidence of the Plaintiffs, it has always been their case that 1st Defendant is the one responsible for the coarse in the marriage of the late Dzakobo and the 1st plaintiff as well as between the deceased and his children even though same was denied. There was also an admission from 2nd plaintiff that a criminal case of threat of death was initiated by the police in respect of a complaint made against some of the children by the late Dzakobo in his lifetime. To the plaintiffs, all the hullabaloo was orchestrated by the 1st defendant. It is therefore not surprising that, she was unwelcomed during the funeral and not because she was not a wife under customary law per se.

The evidence of the customary marriage has been well corroborated by the defendants and their witness [DW1] who was present at the ceremony which has not been denunciated satisfactorily. And more especially Exhibit 1 series [Pictures of the customary marriage].

The law is that, however credible a witness may be, his bare affirmation on oath or the repetition of his averments in the witness box cannot constitute prove, see Majolarbi v Larbi [Supra].

Moreover, the burden of proof rest on the plaintiffs who are denying the existence of any marriage between the 1st defendant and the late Dzakobo and therefore the defendants are not obliged to provide any further evidence to show that the customary marriage was performed in accordance with custom. I therefore hold that there was a valid customary marriage between the late Dzakobo and the 1st Defendant.

Again, customary marriage is potentially polygamous and so no one could have faulted the late Dzakobo for picking another wife when the 1st marriage had not been customarily dissolved.

Another leg of this issue has to do with the supposed ordinance marriage conducted in 2009 and in 2011. The court had already decided that the 1st Plaintiff‟s marriage subsisted in the lifetime of the deceased. Again, the customary marriage between the late Dzakobo and the 1st defendant is valid since the Plaintiffs could not proof otherwise.

What about the ordinance marriage or the conversion of the customary marriage between the deceased and 1st defendant into an ordinance marriage?

Conversion here means the change of marriage from one category to another category. Can a marriage change from being a polygamous marriage to become a monogamous one or vice versa one? The authorities say it is unquestionable that a marriage can change in such a manner. In the case of Parkasho v. Singh [1967] 1 Aller 737 at 748 it was decided that, the change can be brought about by legislation or by change of Domicile or Religion.

In Ghana, customary marriage can be converted by Ordinances namely; Marriage Ordinance [Cap 127] of 1884 [Revised in1951] and

Marriage of Mohammedans Ordinance [Cap 129] of 1907. Those Ordinances provide that, „persons married under Customary Law can again

be married under those ordinances‟. However, marriage under Cap 127 is Monogamous.

 

The question is what happened to the first marriage when the second marriage under the Ordinance took place? I will answer in a jiffy.

The position of the law is that, when conversion takes place and it is successful, the rights and privileges attached to the earlier marriage ceases to exist, the earlier marriage is extinguished by the new one. This is so irrespective of the mode of conversion be it by legislation, Domicile or by Religion. See; Graham v. Graham [1965] GLR 407, Ramia v. Ramia [1981]GLR 275 CA. Also see; Family Law in Ghana by William E. Offei 2nd Edition pg. 137.

It should also be noted that, there could be unsuccessful attempt of conversion by legislation. Just like in this case, the court has decided that the first marriage between the 1St plaintiff and the deceased was subsisting when the deceased entered into a customary marriage with the 1st Defendant. With the solemnisation of the second marriage be it marriage under the ordinance at the District Court or the Church, can the conversion be successful under Ordinance Marriage [cap127] which is a Monogamous marriage? Certainly not!

Therefore, the marriage contracted by the Late Dzakobo under the Ordinance in the District court evidenced by the marriage certificate No. M029/09 dated 03/04/2009 and at the Presbyterian Church GPC/ML/11/2011 cannot be successful in the prevailing polygamous marriage that the late Dzakobo was saddled with. I hereby invalidate these certificates since under the laws of Ghana these certificates do not hold, the necessary formalities for conversion were not complied with. The 3rd issue is determined on behalf of the Plaintiffs.

As to whether the nullification of the certificates Exhibit G and Exhibit 3 will affect the customary marriage that existed between the late Dzakobo and the 1st defendant [See Exhibit 1 series} will be discussed later.

ISSUE 4

 

Whether or not the purported marriage between the 1st Defendant and the said deceased was contracted through fraud and hence the 1st defendant must cease considering herself as the widow of the said deceased.

It should be noted that, the Plaintiffs pleaded fraud in the statement of claim. Again, in the witness statement of the 1st Plaintiff, she testified to establish fraud among others as follows:

According to her, 1st Defendant and the deceased's joint-fraud is bottomed on the fact that they managed to mislead, deceived and or connived with the Registrar of Marriages to wrongly accept the deceased and first Defendant to be qualified to be married and same were allowed to mistakenly or illegally marry under the Marriage Ordinance and issued with marriage certificate No. M029/09 - a certificate 1st defendant and her then accomplice were not entitled to under the laws of Ghana. Further the purported certificate of marriage no.029/09 and dated 03/04/2009 itself is tainted with fraud and same faked. According to her, particulars on same do not disclose the following:

a)  The status of the parties before the marriage; which to all intents and purposes was to cover-up the true status of particularly the deceased; who knew very well that the 1st plaintiff‟s marriage was still subsisting at the time, lied he had no wife prior to marrying 1st Defendant.

b)  Except the first person who thumb-printed without a jurat, no name is attached to the purported other three witnesses signature/mark.

She tendered a copy of the alleged illegal marriage Certificate as Exh. G.

 

It should be noted that at most, the 1st defendant has denied that the marriage between the 1st plaintiff and the late Dzakobo had not been dissolved at the time that she got married to the late Dzakobo. She has also denied that exhibits E and F were brought to her attention. She maintained that she did not even know the 1st plaintiff in person prior to this action. She intimated that the deceased made her know that the 1st plaintiff‟s marriage had been dissolved. She tendered Exhibit 2 and 2A being an Affidavit from the late Dzakobo and Letters from his employers

The Plaintiffs alleged fraud which is a crime against the Defendants. Therefore, they are to prove it beyond reasonable doubt.

See: 

•     Section 13 (1) of NRCD 323.

•     Aryeh & Akakpo V. Ayaa Iddrisu (2010) SCGLR 891

•     Fenuku V. John-Teye (2001-2002) SCGLR 985

 

The law is that, ignorance of the law is no excuse however mistake of facts is an excuse, see the case of Nyameneba & Others v. State [1965] DLSC 1835, Foli and Others v. The Republic [1968] GLR7 68-773.

In the case of Bobie V. 21st Century Construction Co. Ltd. and Others [J4/5/2014] [2016] Unreported SC [09/03/2016], Pwamang JSC widely acknowledged the definition of fraud in the case of Derry v. Peak [1889] 14 AC 337 at 374 citing Lord Hershell where he said:

“Fraud is proved when it is shown that a false representation has been made knowingly , without believe in its truth, recklessly, careless whether it be true or false to prevent a false statement being fraudulent, there must I think always be an honest believe in the truth and this probably covers the whole ground for one who knowingly alleges that which is false has obviously no such honest belief “.

It is also the law that, “when an attempt is made to charge a dead person in a matter in which if he were alive he might have answered the charge, the evidence ought to be looked at with great care the evidence ought to be thoroughly sifted, and the mind of any judge who hears it ought to be first of all in a state of suspicion; but if in the end the truthfulness of the witness is made perfectly clear and apparent and the tribunal which had to act on the evidence believes them, the suggested doctrine of corroboration becomes absurd …‟‟ See In Re Garnefl; Gandy v. Macauly [1885] 31 CH D1.

It is therefore incumbent on the Plaintiffs to prove the said allegation that, the marriage between the late Dzakobo and the 1st defendant was contracted through fraud and that both the 1st Defendant and the late Dzakobo did not honestly belief in the truth of their actions.

Plaintiffs are to prove that, the late Dzakobo knowingly entered into the ordinance marriage when the former marriage had not been fully dissolved. Also that, the 1st defendant was fully aware that the marriage between the Late Dzakobo and the 1st plaintiff was still in place prior to the Ordinance marriage. The question is how sure are we that the late Dzakobo and the 1st Defendant received a copy of Exhibits; E [Caveat] and [F] Letter from the Presbyterian church?

Plaintiffs made reference to the date given by the late Dzakobo in his answer exhibit D10 to be 14/06/09, which shows the date of the alleged dissolution was late to the purported Ordinance marriage in 2009 and as such the Ordinance marriage was recklessly done.

It should however be noted that, the deceased cited another date of Dissolution of the 1st Plaintiff‟s Customary marriage as 7/1/07 in Exhibit 2.

Does this not suggest a genuine mistake or believe in the truth of his action?

Besides, it should also be noted that the deceased earlier went to the 1st Plaintiff‟s family for the purposes of Dissolution prior to 14/06/09.

It is also case of the plaintiffs that the late Dzakobo and 1st defendant fraudulently and without believe in its truth thought they could go ahead to convert the customary marriage to ordinance marriage irrespective of the previous marriage.? As earlier discussed, cases that involve a deceased person ought to be properly patiently scrutinised and that is exactly what the court is minded to do. Is it not possible that the deceased honestly believed that his visit to the 1st plaintiff‟s family on two occasions ended the marriage as disclosed in his answer to the petition?

Besides, the certificate received in 2009 Exhibit G was a work produced from the District court Nkawkaw. Section 37 [1] of NRCD 323 “reads it is presumed that an official duty has been regularly performed”.

 

I wonder how one will blame the late Dzakobo and the 1st Defendant for the lapses regarding the said document .

The Law is that, fraud is not fraud merely because it has so been stated in the writ to excite the feeling of the courts. Ansong and Another v. Ghana Airports Company [j4/24/2012[2013] Unreported SC Jan. 23 /2013] Sophia Adinyira [Mrs.] JSC.

Apart from presenting themselves for the ceremonies, which plaintiffs have been unable to prove that it was done knowingly without believe in its truth, What role did the parties play in the registration of those marriage certificates to show that they were fraudulent in their dealings ?

In my mind, the plaintiffs have not been able to prove to the hilt the ingredients of the offence of fraud as listed in the case of Derry v. Peak [supra].

I am of the opinion that, in spite of the invalidity of exhibit „G‟ and same being null and void, I do not see any fraudulent dealing in the conduct of the parties mentioned in the document. What I see is a failed conversion of marriage. However, both Exhibits G and 3 are null and void due to the subsistence of the first marriage.

What about the position of the 1st Defendant‟s customary marriage to the late Dzakobo?

 

It should however be noted that, this court will be unable to nullify the customary marriage celebrated between the late Dzakobo and the 1st defendant. This is because the law is that, when an attempt to convert a marriage into Ordinance fails, the earlier marriage subsists. See page 129 of William Offei‟s book, also see the case of Setse V. Setse [1959] GLR 155. Therefore the customary marriage of the 1st Defendant still subsists due to the unsuccessful attempt at conversion. This is because customary marriage is potentially polygamous.

So the above answers the other part of issue one in that, the Late Dzakobo died survived by two widows and not one widow as the family of the late Dzakobo made it appear. It is the ordinance marriage which could not stand the test of time and not the customary marriage per se. Besides the nonrecognition of the 1st defendant at the deceased funeral posthumously as in Exhibit H series did nothing to change the status of the customary marriage which the late Dzakobo went to the family of the 1st defendant to create. Save that, the Ordinance marriage and the certificates are void, the fourth issue is determined in favour of the 1st defendant. There were no fraudulent deals, therefore the 1st defendant can still hold herself as the widow of the last Dzakobo, being a wife under customary Law.

ISSUE 5:

 

Whether or not the signature on the last will and Testament of the Emmanuel Raphael Dzakobo deceased] is his mark or signature and whether or not the said will must be declared void ab initio.

PNDCL 111 stipulates that on the death intestate of any person, his wife and children are among persons who should inherit his property unless he has no wife/ wives and children. It follows that, it is likely that a person may also die testate. To die testate is when a person leaves behind a will upon his death.

Section 1 [1] & 2 of The Will‟s Act 1971 [Act 360] states the power to make a Will as follows:

 „A person who is 18 years old or above and who does not suffer from insanity or infirmity of mind so as to be incapable of understanding the nature or effect of a Will, is entitled to make a Will.‟

It should also be noted that, the Will should be voluntarily made, therefore fraud, Duress, or undue influence will vitiate a Will. See Section 1 [3].

Again, the Will should be signed by the testator or by some other person at his direction, see section 2[1] of Act 360. The signature must be at the end of the disposition. Any disposition or direction which comes after the signature is void unless there is another signature beneath any additional disposition. See Sec 2[2] of Act 360.

Also see, Order 82 of CI 47 which defines signature to include a thumbprint.

 

The Will must also be signed in the presence of at least two witnesses and at most 4 witnesses who must also sign it in the presence of each other.

See Sec 2 [3] of Act 360.

 

On the above issue „5‟, the case of the plaintiffs is that, the late Dzakobo at the evening of his life was saddled with serious sickness and the 1st defendant who was with her, took advantage of the deceased poor health and subjected him under threat and undue influence, to the extent that the deceased was compelled to do whatever the 1st defendant told him to do.

Plaintiffs said, the purported last will of the late Emmanuel Raphael Dzakobo was tainted with fraud since the signature was never that of the testator.

In response, the Defendants said in 2012 when the Will was made, the late Dzakobo was healthy but later fell sick in the later part of the year 2012 and fully recovered but relapsed in 2014 leading to his death, and that at the time when the Will was made, he was in his clear mind. The defendants called one of the witnesses to the signature of the Will DW2 who attested that the deceased was in his clear mind and together with the another witness one Emmanuel Asare whose evidence was tendered as hearsay, they were invited by the testator to witness his signature in the presence of each other and in the presence of the testator.

It should be noted that, the Plaintiffs alleged forgery of the testator‟s signature and undue influence on the testator as the bases for challenging the validity of the Will is untenable. If undue influence was exerted on the testator by the 1st defendant then, it was the testator who executed the Will except that he was pressurized to do so. If the testator‟s signature was forged or he was so sick that he could not make a Will then the testator did not sign the will. Someone else must have signed the Will purporting to be the testator.

Therefore Undue influence on a testator and forgery of the signature of the testator are mutually exclusive. It is either one or the other. You cannot have the two as the basis for challenging the validity of the testator‟s signature on a Will. See; Mr. Senti Michael V. Rev. Father Mon Kwame & Anor. [2020] 170 G.M.J.

The implication of the plaintiffs pleadings in paragraph 26 and 27 of their statement of claim is that in one breath, the signature of the testator was alleged to have been forged on the Will and in another breath the same was signed by the testator under undue influence. As noted in the Mr Senti Michael‟s case [supra] no tribunal of fact will give weight to this smack of contradiction. The rule of litigation is evidence. You cannot put a multitude of suspicions together and make proof out of it see Irvin & Johnson Ltd. v. Gelcer & Co. Ltd [1958] 2 SA.L.R 59 at 62.

 

Apart from the plaintiffs testimony that the late Dzakobo signed the Will under Duress and under undue influence by the 1st defendant , the head of the Deceased family and the 1st plaintiff also filed a caveat disputing the Will see Exhibit A.

However, the defendants disputed the allegation. There is therefore no prove of the undue influence or Duress meted out to the Testator or fraud or forgery whatsoever.

The compelling evidence is the document marked CE1 which was an expert opinion. In summary, the said report confirmed that per the Expert Analysis and in comparison with the earlier signed documents of the deceased agreed on and submitted for forensic analysis purposes, the supposed signature of the last Will of the Testator Mr. Emmanuel Raphael Dzakobo could not have been authored by him as in exhibit‟ 5‟.

As a general rule, the final decision on the authenticity of a document or signature rests with the court. However, the court cannot just conjure that decision without strong and cogent reasons and in many cases without the assistance of an aid. In the absence of clear evidence, expert forensic evidence is relevant to assist the court to make a determination one way or the other. However, that is not to say that the expert opinion is binding on the court. The expert opinion is to guide the court in making a just determination and where it is accepted or rejected it is the duty of the court to give reasons for its preference. See Mr Senti Michael case [supra]. Also See;

•     Sasu V. White Cross Insurance Co. Ltd [1960] GLR 4 CA.

•     Tefleh & Another V Hayford (Substituted By) Larbi And Decker [2012] 1 SCGLR 417.

 

I have good reasons to reject the opinion expressed in Exhibit CE1.

 

In the first place, the law is that a hand writing expert is not required to state definitely that a particular writing was by a particular person. His functions were to point out similarities or differences in two or more specimens of handwriting submitted to him and leave the court to draw its conclusions. See „An Application for the Grant of Leflers of Administration with Will and Codicil Annex by Mary Quarcoo & Nii Kojo Armah II SC J4/41/2012.‟

In Exhibit CE1, the Expert after examining the similarities and differences concluded in his last paragraph of his report as follows: “this means there are no indications to suggest that Emmanuel Raphael Dzakobo authored the signature representing him on the last Will and Testament of Emmanuel Raphael Dzakobo made the 30th day of May 2012.‟‟ This opinion sins against the point of law earlier expressed. This is because, the hand writing expert took the wind out of the sail of the court to determine that the hand writing examined by him ought not be assigned to the testator .

Secondly, there is no doubt that no two signatures look alike even though it signed within a short space of time. This is because, it is not in doubt that the late Dzakobo battled with stroke in his lifetime in and around 2012 recovered and relapsed going forward. It should be noted that, the Will was prepared by him around that time. This can have impact on his signature. It is therefore not surprising that, his later signature may significantly be different from signatures signed during his hay days when he was in active employment or when he was very healthy.

I am convinced by the side of the story of the 1st defendant that, the testator was healthy but was down with stroke in and around December 2012, recovered and relapsed in 2014 leading to his death. This is because according to PW2, he saw the late Dzakobo few months before his death and from what he told the court under cross examination. See pg. 106107 of the proceedings, the court can deduce that the late Dzakobo even though sick with stroke could communicate intelligibly and at length with him, telling him about the 1st defendant being a maid to his boss Mr. Atsu and the fact that he has been abandoned by the 1st wife and so Mr. Atsu sent the maid [the 1st defendant herein] to accompany him etc. He even added that, the way the deceased and the 1st defendant were behaving he suspected that they were in an amorous relationship. The statement of PW2 shows that the testator was unwell but could communicate intelligently. The preceding information is in conflict with PW2‟s assertion that, 1st defendant did not inform him about the ill-health of the deceased.

Moreover, as decided in the Senti case [supra] by the Apex Court, the law currently in force in this jurisdiction in resolving signature disputes in a Will is not the differences in signature compared to the usual signature of a person which matters. The determining factor is whether the testator acknowledged the mark that was made to be his. See Ashong v. Sackitey [1982-83] GLR 1196, where Asare- Kwapong J decided that “a testator who was weak could be assisted to hold a pen to sign his will there is nothing legally wrong with a person being assisted in signing his name if his fingers were neither strong nor mobile enough to hold and manipulate a pen provided he accepted it as his signature “.

On the part of the defendants, they were able to raise doubt in respect of the allegation of the plaintiffs by calling Dw2 a witness to the Testator‟s Signature on the will. They also put in the witness statement of another witness to the Will, one Emmanuel Asare who has since been transferred and could not be traced.

Again, the Plaintiffs contend that, the late Emmanuel Dzakobo was not himself at the time he made Exhibit 5 and that he was put under duress and undue Influence to execute same. This was denied by the Defendants and their counsel. Granted that the Testator or the Late Dzakobo was even of unsound mind, the Plaintiffs had the burden to prove same. Section 15 (c) of NRCD 323 provides.

“Unless it is shifted, the party claiming that a person including himself is or was insane or of unsound mind has the burden of persuasion on that issue”

See: Armah V. Boye & Ors (2012) 44 GMJ 186 CA.

 

This was not proved.

 

The plaintiffs alleged fraud and therefore the onus was also on them to prove fraud since fraud vitiates everything. See Okofo Estates V. Modern Signs [1996] DLSC 587. However, they were unable to prove Fraud to the hilt. The plaintiffs did not prove how the 1st defendant perpetuated the alleged fraudulent activities leading to the execution of the Will apart from mere narration that the 1st defendant prevented his children from getting access to him, in law that is not proof.

The document in contention in this case was tendered as Exhibit 5 dated 30th May 2012. The heading states that it is the last Will and Testament of Mr Emmanuel Raphael Dzakobo of Peki Avetile within the Volta region. Examining the Exhibit 5, the document has been signed by the Testator and witnessed by two persons. One of the two persons who witnessed the Testator‟s signature said he was present together with another witness at the same time and in their presence saw the testator signing the Will before appending their signatures to the will. The evidence of the other witness was tendered as hearsay having been transferred outside the jurisdiction, and the content of the said hearsay evidence is akin to that of the DW2.

I have no reason to disbelieve or doubt the evidence of DW2 and another witness whose evidence was tendered as hearsay which corroborate that of DW2. Besides, The 3rd Defendant who hails from the same traditional area with the Late Dzakobo and a friend of the deceased said he was informed by him that he prepared a Will. The 3rd defendant and the witnesses to Exhibit 5 are not beneficiaries under the Will. Therefore, they have no interest as to the outcome of the case. The law enjoins the court to place much more weight on the evidence of such witnesses as being material and germane to the resolution of the main issue before the court as to whether Emmanuel Raphael Dzakobo made a Will or not.

See:

•     Boateng V. Boateng (2009) 5 GMJ 58 CA

•     Manukure V. Agyekum & Ors (1992-93) 2 GBR 888 CA

 

It is therefore my finding, that exhibit 5 is the last Will of the late Mr Rahael Dzakobo and the signature of the late Raphael Dzakobo in the evening of his life with health challenges is what is on exhibit „5‟

The Plaintiffs in their case, had issue about the manner the devises were made in the Will. They contended that the late Mr Emmanuel Raphael Dzakobo was influenced in that direction. See Exh. A [Affidavit of interest]

The law is however settled that, a testator of a Will is free to make his Will and distribute his estate as he pleases. He is not bound to leave any fixed part of his estate to any particular person. Therefore, he is permitted to be capricious and improvident. It is not surprising that, the deceased did not bequeath anything to the 1st Plaintiff considering the sour relationship which nearly led to break up of the marriage.

See: Akua Marfoa V. Madam Akosua Agyeiwaa (2017) 107 GMJ 165 SC, and Armah V. Boye & Ors (2012) 44 GMJ 186 CA.

Furthermore, I reiterate that a party whose averment is denied must prove it with things such as descriptions, documents etc. for the court to know that what he avers is true. The burden is not discharged by repeating the averment on oath or having it repeated by the party‟s witness.

See:

•     Majolabe V. Larbi & Ors (1959) GLR 190

•     Faroe Atlantic Co. Limited V. Aflorney General (2005-2006) SCGLR 271

 

I therefore find as a fact that, the late Emmanuel Rapheal Dzakobo was of himself and of sound mind when exhibit „5‟ was executed.

Again, the courts have always been cautious not to allow any person for whatever reason to discredit a Will. Therefore, where there is proper attestation clause, and due execution of a Will, it is presumed to be valid unless there is strong evidence in rebuttal.

See: In Re Okine (Deceased) Dodoo & Anor V. Okine & Ors (20032004) SCGLR 582.

 

The law is also settled that, a Will is a special and solemn legal document in which a person declares his wishes as to how his property should be shared, managed or distributed after his death. Consequently, the greatest respect due the deceased person is to give effect to his last Will and testament unless there are compelling reasons against it.

See: In Re Afla (Deceasd) Kwako V. Tawiah (2001-2002) SCGLR 461.

It has therefore been the policy of the courts to give effect to the last wishes of a deceased person by upholding them, unless there are compelling legal hurdles against the contents of the Will.

See: In Re Mensah (Deceased); Barnieh V. Mensah (1978) GLR 255 CA.

 

Consequently, the courts have a duty to be extraordinarily slow in interfering with the Will of a deceased person. This is because, it constitutes a hallowed ground and no one should tread upon it, unless there are strong legal reasons, such as mental incapacity, forgery etc. which may render the contents of the Will or portion of it void.

See: In Re Arthur (Deceased) Abakah & Anor V. Aflah-Hagan & Anor (1972) 1 GLR 435 CA.

In Agyekum V. Tacket (2006) 2 GMLR 134, the Supreme Court held at page138 that, “the courts have a duty to sustain the depositions the deceased person made in a Will which prima facie satisfies the statutory requirements of due preparation and execution.” See also:

•     In Re Kotei (Deceased) Kotei & Ors V Ollennu And Others (1975)2 GLR 107

•     Thomas Tata Atanley Kofigah & Anor V Kofigah Francis Atanley & Anor (2020) 159 GMJ 1 SC

It is presumed that; a testator will always devise or bequeath his selfacquired properties in his Will. Therefore, any person who intends to rebut such presumption must lead cogent evidence to the contrary. The evidence must also be strong because, it is against a deceased person who is not alive to answer. Consequently, such evidence should be scrutinized thoroughly. This means, in this case, it is the Plaintiffs who are to rebut the presumption if the court is to rule against the Defendants.

See:

 • Tanoh V. Abban-Mensah And Another (1992-1993)1 GBR 303 CA   

Fosua & Adu Poku V. Dufie (Deceased) & Adu-Poku Mensah (2009) SCGLR 310.

I hold as a fact that, the late Emmanuel Raphael Dzakobo made a valid Will dated 30th May, 2012.It was tendered, admitted and marked as Exhibit „5‟.

I will therefore resolve the 5th issue in favour of the Defendants against the Plaintiffs.

 

ISSUE 6:

 

Whether or not the Defendants especially the 1st Defendant must continue keeping properties of the deceased in her custody or return them to the plaintiffs and family of the deceased.

On the above issue, the 1st plaintiff narrated among others that, from the resources from her trading together with her late husband, they started buying building material for the construction of the Nkawkaw house. According to her, that was before she left the matrimonial home which was an official bungalow in Nkawkaw. It was her case that, her late husband continued the building after she left the matrimonial home. She also indicated that the Peki house is on a Family land of the deceased. She admitted in cross examination that the Nkawkaw property was listed as one of the properties she laid claim to as a joint property in her discontinued petition. Her story was corroborated by 2nd plaintiff.

On the part of the 1st defendant she also narrated how together with the late Dzakobo, acquired the land on which the Nkawkaw house was situated in 2010 and completed in 2011. She testified that, she expended over GH¢10,000 on the Nkawkaw building but admitted that, she has no share in the Peki building because it was acquired before she came into the life of the deceased. She however admitted that, the late Dzakobo died in his own house. This indicates that, she is not asking for a share per se. Her story was corroborated by DW1.

It should be noted that, the burden of proof rested on the 1st plaintiff who is asserting that she is a joint owner of the Nkawkaw house to prove so. See Section 11 and 12 of Evidence Act. This is because same was denied. It was incumbent on the 1st plaintiff to prove the joint acquisition of the Nkawkaw House by some other means when her narration in respective of joint acquisition was denied.

See the case of Majolarbi v. Larbi [supra] where proof was defined. However, apart from mere narration, 1st plaintiff who seems to be claiming to be a joint owner of the disputed house at Nkawkaw could not demonstrate her assertion by other means. Rather, the evidence such as her Exhibits D series, Petition for Divorce which was filed in 2009 and discontinued was not helpful in this regard.

In fact, in Exhibit D series, it was the Peki house that the 1st plaintiff petitioned or contended as jointly acquired property but not the Nkawkaw house which was built at the time that she was facing challenges in the marriage, and had left the matrimonial home, an official Bangalow. 1st Plaintiff was totally silent on the Nkawkaw house in her Petition Exhibit D series. If indeed the land and the building materials were acquired by her late husband and her in 2006 or 2007 as claimed, before she left the matrimonial home in 2007, then at least she could have put in a claim for her share in the land when she filed for divorce, just as she did in the Peki House. Nonetheless, that was not the case. Unfortunately, the Plaintiffs now contend that, the Peki house is on a family land.

However, it has been determined that, the deceased last Will and Testament is valid and so nothing prevented the late Dzakobo from bequeathing to the 1st plaintiff any portion of his estate if that was his intention.

Unfortunately, that was not what is seen in the Testator‟s last Will. Therefore, by her failure to demonstrate that it was wrongly bequeathed because she had a share in it, the devises made as in the Last Will and Testament of the late Dzakobo will take effect as it is.

On the part of the 1st defendant, even though she narrated that the said Nkawkaw property was jointly acquired because she lived with the deceased since 2009 as a wife, and assisted in the construction of the said house with her resources, she admitted that the house belongs to the deceased and he died in his house meaning, she is not laying claim to a portion as a joint owner per se. Therefore, this court having held that the Will is valid, the wishes of the testator as in his last will and Testament Will prevail.

In respect of the Peki house, apart from the caveat, Exhibit A. No family member joined the action to contest the said Peki house and to demonstrate that, the deceased willed a family property to the beneficiaries in the said Will. However, evidence of the 1st plaintiff was that, the said house was built on a family land and so same belongs to the family. The evidence regarding the alleged family house was also narrated by 2nd Plaintiff and corroborated PW2 Mr Adenutsi the head of family of the deceased. In any case, the family chose to make their case through the plaintiffs and their witnesses. The narration is not enough to prove the ownership of the family to the said Peki House. Plaintiffs own Exhibit

„B1‟ does not show any claim of family ownership since the said plan is in the name of the deceased. The law is that, Receipt/building permits, building plans, title documents etc. do not confer titles on their holders per se, but are nevertheless strong acts of ownership. See Osei v. Korang [2013] 58 GMJ 1 pg. 30 and Kakraba v. Kwofie [1966] GLR 229.

 

Consequently, granted the house is on a family land, we do not know as to what terms the land was given to the Late Dzakobo. The law is that when a member of a family builds on a vacant family land which has been granted by the head with the concurrence of the principal members of the family same is treated as a self-acquired property and that he can devise it in his Will, see Amissah-Abadoo v. Abaddoo [1973]1 GLR 490. It is only when a member of a family built on a family land which the family has taken possession of, that the member has only life interest. It is trite that, the courts have been warned to scrutinise critically evidence that has to do with a deceased person .I hereby declare that for now, no one has been able to prove that the Peki house indeed belongs to the deceased family when same was denied by the defendants.

Now on the issue of the properties/estate of the late Dzakobo it should be recalled that, the court appointed an Administrator Pendente lite to manage the estate of the late Dzakobo while the case was on-going.

From the record, there was a caveat filed in this suit when the executors filed processes to take probate, I hereby remove the said caveat if same is still in force.

The court has observed that the 1stplaintiff and the 2nd defendant died in course of the suit.

 

The court has taken notice that, the 3rd Defendant is now the sole Executor of the said Will of the late Djakobo. If he is still alive and of sound mind, he should take steps to have the Will admitted to probate.

This action is hereby determined in relation to the plaintiffs‟ reliefs on their writ of summons as follows:

•     Plaintiff‟s Relief [i] succeeds in part in that 1st plaintiff was one of the widows of the late Dzakobo.

•     Plaintiff‟s Relief [ii] fails and is hereby dismissed.

•     Plaintiff‟s Relief [iii] fails and it is hereby dismissed.

•     Plaintiff‟s Relief [iv] succeeds in part, in that the Ordinance marriage and the certificates thereon are void but not fraudulently acquired.

•     Plaintiff‟s Relief [v] fails and is hereby dismissed.

•     Plaintiff‟s Relief [vi] fails and it is hereby dismissed.

•     Plaintiff‟s Reliefs [vii] fails and is hereby dismissed.

 

I make no order as to cost to any of the parties, this is due to the nature of the case at hand and for the fact that it borders on the estate of the deceased person.

(SGD.)

JUSTICE CYNTHIA MARTINSON

(MRS) HIGH COURT JUDGE