2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Plaintiffs appealed against a High Court judgment dismissing their claim based on a gift inter vivos and upholding the counter-claim of the defendant. The testator allegedly gifted two rooms and a store to them as compensation but later devised these in his Will to his new wife and children. The plaintiffs' evidence was found insufficient to prove the alleged gift according to customary law. The additional grounds of appeal were dismissed as they were filed without leave when no appeal was pending. The trial judge's reliance on proof of gift and the validity of the Will was affirmed.
AYEBI, JA
1. This is an appeal against the judgment of a Kumasi High Court in which the trial judge dismissed the claim of the plaintiffs/appellants based on a gift inter vivos and upheld the counter-claim of the defendant, an executor of the Will of the testator.
2. The testator Yaw Anim Asabere (deceased), was the father of the plaintiffs.
The testator and plaintiff’s mother (PW1) were divorced.
The case of the plaintiffs is that, their father squandered huge sums of their mother’s money on the pretext that the money was stolen.
When their father’s dishonesty was found out and exposed, he promised to gift to the plaintiffs two rooms and a store as a compensation in the building he was putting up at Dompoase, Kumasi.
3. Indeed on completion of the building, their father fulfilled the promise by giving them a room each and a store to the 2nd plaintiff who is a seamstress.
Immediately they gave an aseda and took possession of the rooms and the store.
The 2nd plaintiff had since been using the store for her sewing business for the past fifteen years without let or hindrance.
4. It is the case of the plaintiffs that their father passed away on 29th July 2011. During the funeral, their attention was drawn to a Will made by him.
Per paragraph one of the Will, their father devised their rooms and store to his new wife, Madam Adwoa Gyamfua and two of their children absolutely.
They protested that the Will could not have been made by their father because of the prior gift of the rooms and the store to them.
Although their step-mother intervened that the issue will be settled at home, she did nothing about the Will, hence their suit against defendant, the surviving executor of the Will.
5. By their writ, the plaintiffs claim are as follows: (a) An order for the declaration of title and recovery of possession of two rooms and one store room contained in H/No. Plot 17 Block N, Atonsu Dompoase, Kumasi-Ashanti being rooms gifted to the plaintiffs by their biological father, the late Yaw Anim Asabere during his lifetime.
b) An order declaring that Yaw Anim Asabere (deceased) as a result of the said inter vivos gift lacks the requisite testamentary capacity to devise and bequeath the disputed rooms to any beneficiary in his said last Will and testament dated 6/9/2010.
c) An order of perpetual injunction restraining the defendant, his agents, assigns, personal representatives and all manner of persons acting by them from interfering with the plaintiff’