GLADYS AKU AGBENU v. THE ESTATE OF ROBERT AGBENU(DECEASED) AND GODWIN AGBENU

JUDGMENT

ATUGUBA JSC:

This is an appeal by special leave of this court from the judgment of the Court of Appeal reversing the judgment of the Circuit Court; Accra presided over by His Honour Judge G.K.Minta

The facts of the case as stated by the Court of Appeal per Quaye J.A. are as follows:

“Robert Agbenu died intestate on 13th December, 1979. The Plaintiff/Appellant herein, claiming to be one of only two surviving children of Robert Agbanu filed an action in the Circuit Court, Accra on 15th August, 2001 against the defendant/respondent, whom he identified as the other child of his father, claiming three heads of relief. These reliefs are:-

a) a declaration that the subject- premises forms part of the estate of their deceased father, Robert Agbenu aforementioned.

b) an order appointing the Registrar of the Court to gather-in the estate and distribute it to the parties herein;

c) Defendants/respondent to render accounts of all rents and proceeds from the disputed house with effect from 1980.

The averments in the accompanying statement of claim sought to assert the plaintiff’s capacity, the blood (paternal) relationship between him and the defendant/respondent, the extent of the estate of Robert Agbenu and the attempts that had been made to call the respondent to account.

In her pleadings however, the respondent denied substantially the averments of fact made by the appellant. Apart from denying any blood relationship with the appellant, the respondent asserted ownership of the disputed house No.E 119/14 Nima and counter claimed for a declaration to that effect.

At the end of the trial, the lower court dismissed the claims of the appellant, found in favour of the respondent and made orders upholding the counterclaim”.

The plaintiff failed at the trial court but prevailed in the Court of Appeal. The defendant/respondent has appealed to this court on the following grounds:

“∙That the judgment of the Court of Appeal is against the weight of evidence addressed at the trial.

∙That the judgment of the Court of Appeal cannot be supported by evidence adduced at the trial.

∙That the learned Court of Appeal Judges erred in law when they adjudged the deceased to be the owner of the disputed land and house.

∙The Court of Appeal failed to give the appropriate weight to the Defendant’s title Deeds (Exhibit A)”.

The parties gave evidence themselves and by two witnesses each. The trial judge however took the view that once the defendant holds a registered d