ALBERT OWUSU BAAH (SUBSTITUTED BY JOSEPH AKOTO ANSAH – HEAD OF FAMILY ) VRS MRS. AGNES OWUSU ASARE, ALEX OWUSU ASARE, SYLVESTER OWUSU ASARE & THERESAH ASARE OWUSU CIVIL APPEAL NO. J4/35/2025 29TH JULY, 2026

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D 2026

 

                   CORAM:       BAFFOE-BONNIE CJ (PRESIDING)

                                         ASIEDU JSC

                                       GAEWU JSC

                                       AMALEBOBA JSC

                                         ACKAAH-BOAFO JSC

CIVIL APPEAL

1. J4/35/2025

29TH JULY, 2026

ALBERT OWUSU BAAH (SUBSTITUTED BY           PLAINTIFF/RESPONDENT/

 JOSEPH AKOTO ANSAH – HEAD OF FAMILY )                     APPELLANT

 

VRS

1. MRS. AGNES OWUSU ASARE
2. ALEX OWUSU ASARE      DEFENDANTS/APPELLANTS/               
3. SYLVESTER OWUSU ASARE  RESPONDENTS
4. THERESAH ASARE OWUSU

  

JUDGMENT

ACKAAH-BOAFO JSC:

1. Overview:

[1]     My Lords, the property which forms the subject matter of this appeal is situate at Kumasi and is described as No. 63 Mbrom, Kumasi. The said property was the self-acquired property of the late Baffour Owusu Amankwatia IV, also known as Anthony Asare Owusu (A. A. Owusu), who, at the time of his demise, was the Bantamahene. The property was devised under the last Will and Testament of the late Baffour Owusu Amankwatia IV in 1978. However, in 1979, it was confiscated by the then Government of the Armed Forces Revolutionary Council (AFRC).

 

[2]     The late Baffour Owusu Amankwatia IV passed away in 1985. Probate of his Will was subsequently granted by the High Court in 1991, and the property was thereafter de-confiscated in April 1992. The dispute as to who was entitled to ownership of the property upon its release by the Government is what precipitated the present litigation. The action was commenced at the High Court, Kumasi, in August 2006, but has since remained within the corridors of the administration of justice, sadly witnessing the deaths of both the original Plaintiff and the first Defendant in the course of its pendency.

 

[3]     My Lords, it has taken close to two decades for this simple matter to finally come before this Honourable Court, the apex court of the land. A review of the record reveals that many of the reasons assigned for the delays and adjournments were wholly unsatisfactory. It is my considered view that litigants and the justice delivery system must take deliberate steps to prevent such unwarranted delays and to manage the business of the courts in a manner that avoids any recurrence of the circumstances presented in this case, thereby ensuring the timely delivery of justice.

 

1. The Suit at the High Court:

[4]     The Plaintiff/Respondent/Appellant herein (hereinafter referred to simply as “the Appellant”) commenced an action at the High Court, Kumasi, seeking certain declaratory reliefs and an order for the cancellation of the Letters of Administration (LA) granted in respect of the estate of the late Baffour Owusu Amankwatia IV. Specifically, the reliefs endorsed on the Appellant’s Writ of Summons against the Defendants/Appellants/Respondents herein (hereinafter, for the sake of brevity, referred to as “the Respondents”) are as follows:

1. A declaration that the Letters of Administration obtained by the Defendants herein in respect of the estate of the late Baffour Owusu Amankwatia alias A. A. Owusu was fraudulently obtained.
2. A declaration that the Defendants fraudulently used the said Letters of Administration of the Baffour Owusu Amankwatia @ A. A. Owusu to acquire legal ownership in Plot No. 63 Mbrom-Kumasi.
3. An order for the cancellation of Letters of Administration of the Baffour Owusu Amankwatia a.k.a A. A. Owusu.
4. An order for the cancellation of the title deeds which were fraudulently procured by the Defendants.
5. An order pronouncing ownership of H/No. 63 Mbrom on the Plaintiff’s family.
6. Recovery of possession.
7. An order for accounts.
8. Damages for trespass.
9. An order for perpetual injunction restraining the Defendants, their agents, servants, and any person claiming title through them from interfering with the disputed house.

 

[5]     The facts of this case appeared not to have been seriously controverted at either the trial High Court or the Court of Appeal. The suit was originally instituted by the Appellant in the name of the Head of Family, one Albert Owusu Baah. He was subsequently substituted by Joseph Akoto Ansah after the late Owusu Baah was destooled as Head of Family on health grounds, in the action against the Respondents herein. The first Respondent, the wife of the late Baffour Owusu Amankwatia IV, has also passed away. The case nevertheless proceeded to trial after the Appellant elected not to substitute the deceased first Respondent.

 

[6]     The Appellant, in his statement of claim, pleaded that he is the head of family and the customary successor to the late Baffour Owusu Amankwatia IV. He further averred that the 1st Defendant is the spouse, whilst the 2nd to 4th Defendants are the children of the said deceased. The Appellant also pleaded that the property, which is the subject matter of the dispute, namely No. 63 Mbrom, Kumasi, was the self-acquired property of the late Baffour Owusu Amankwatia IV during his lifetime.

 

[7]     It was further the case of the Appellant that the late Baffour Owusu Amankwatia IV died testate on 13th February 1985, having devised the said property to his family in his last Will and Testament. The Appellant additionally pleaded that the AFRC Government confiscated almost all the properties of the late Baffour Owusu Amankwatia IV, including House No. 63 Mbrom, Kumasi.

 

[8]     The Appellant further pleaded that the executors of the estate of the late Baffour Owusu Amankwatia IV applied for and were granted probate, and that the family thereafter petitioned the PNDC Government, which deconfiscated the property and released same to the family of the deceased. The Appellant also averred that the deconfiscation was duly published in the Government Bulletin and the Daily Graphic newspaper.

 

[9]     Notwithstanding the foregoing, the Appellant contended that the Respondents fraudulently held themselves out as members of the family of the late Baffour Owusu Amankwatia IV, without the knowledge or consent of the maternal family, and thereby procured the release of the property to themselves. It was further the case of the Appellant that the Respondents subsequently applied for Letters of Administration in respect of the subject matter property by misrepresenting that the deceased died intestate in respect of the property in dispute, and thereafter proceeded to rent out the property and appropriate the rents therefrom without recourse to the family.

 

[10]   The Respondents, in response to the Appellant’s claim, by the statement of defence filed, admitted that the disputed property was acquired by the late Baffour Owusu Amankwatia IV during his lifetime, but averred that the said property was subsequently confiscated by the AFRC government. The Respondents contended that the disputed property could not have been the subject of a valid devise under the Will of the late Baffour Owusu Amankwatia IV, because at the time of his demise, the property did not form part of his estate. They maintained that, if indeed the property had formed part of the Testator’s estate, the Appellant would not have been required to seek its deconfiscation.

 

[11]   The Respondents also averred that they submitted several petitions to the PNDC government for the deconfiscation of the disputed property in their favour. They stated that the Ashanti Region Confiscated Assets Sub-Committee, by a letter referenced ASHCAC/C.P/13/Vol. 2 dated 13 May 1992, directed that the property be restored to them. It was further averred that the occupants of the disputed property were copied on the said letter.

 

[12]   It was the further case of the Respondents that, following the restoration of the property to them, they took steps to regularise their title. In that regard, they asserted that they contacted the Lands Commission Department in Kumasi, which required them to provide Letters of Administration to facilitate the process. The Respondents stated that they accordingly applied for and were granted Letters of Administration on 20 July 2004, after which the property was registered under Title No. 25552 and Serial No. 601/94. They contended that they thereafter exercised acts of ownership over the disputed property and therefore counterclaimed for a declaration in their favour. They prayed the Court to dismiss the Appellant’s claim.

 

[13]   The learned trial judge at the High Court, Kumasi, entered judgment in favour of the Appellant and against the Respondents, who subsequently appealed to the Court of Appeal, seeking a reversal of the trial judge’s decision. On 9 May 2024, the Court of Appeal reversed the judgment and granted the Respondents’ counterclaim after evaluating the evidence, while dismissing the Appellant’s claim. The Appellant has now lodged this appeal before this Court, seeking a reversal of the judgment of the Court of Appeal. Before this Court, the Appellant’s grounds of appeal as set out in the notice of appeal are as follows:

1. The Court erred when it stated the word family in ‘Exhibit E’ did not mean the family of the late Baffour Amankwatia, under customary law.
2. The Court erred when it held the Respondents’ claim to the property was based on the release note when there was a valid Will and probate in existence.

 

• The Court erred when it held the Letters of Administration obtained by the nuclear family of the late Baffour Owusu Amankwatia was based on a request from Lands Commission.

1. The judgment is against the weight of evidence on record.
2. Additional grounds to be filled on receipt of the record of proceedings.

See pages 114-115 of the ROA, Volume 2

 

iii.      Issues for determination:

[14]    My Lords, the Appellant did not file any additional grounds of appeal as indicated. As the foregoing grounds of appeal demonstrate, the Appellant’s case rests on five grounds.

 

[15]   Before proceeding to the substantive merits of the appeal, it is necessary to determine whether the Appellant’s grounds of appeal comply with the mandatory requirements of Rule 6(2)(f) of C.I. 16. The Rule requires that, where misdirection or error of law is alleged, the particulars thereof must be distinctly and expressly stated. It further enjoins that grounds of appeal be concise, framed under separate heads, and free from argument, narrative, vagueness, or generality, save only for the omnibus ground that the judgment is against the weight of the evidence.

 

[16]   In underscoring the importance of adherence to the Rules of Court, this Court in F.K.A. Company Ltd. v. Nii Teiko Okine (Substituted by Nii Tackie Amoah VI) Civil Appeal No. J4/1/2016 dated 13th April 2016 observed, per Akamba JSC, that the appellate process is wholly statutory in character, and that any failure by the courts to insist upon compliance with procedural rules would undermine the integrity of the adjudicatory process itself.

 

[17]   My Lords, these rules are not, as has at times been suggested in argument before this Court, mere matters of forensic etiquette. They embody substantive principles of fair process, requiring that an appellant give to both the respondent and the Court fair and sufficient notice of the case to be met, so that neither judicial time nor forensic effort is expended in the pursuit of irrelevant grounds of appeal.

 

[18]   In the instant appeal, grounds (i, ii and iii) fail to disclose with sufficient clarity whether the alleged errors are errors of law or of fact, and further fail adequately to identify either the nature of the complaints advanced or the basis upon which the court below is alleged to have erred. In consequence, the grounds offend the applicable procedural requirements and are, to that extent, defective.

 

[19]   It is noted that the jurisprudence of this Court has consistently insisted upon observance of those requirements whilst, at the same time, tempering strict procedural compliance with considerations of substantial justice. Consequently, notwithstanding the non-compliance, I am satisfied that the substance of the Appellant’s case is reasonably discernible from the Statement of Case and the Record of Appeal before us, and that the Respondent has been able to address the complaints without any demonstrable prejudice. I therefore propose to consider the substance of the appeal, albeit under the umbrella of the omnibus ground that the judgment is against the weight of the evidence.

 

[20]    In my respectful view, the omnibus ground of appeal is capable of disposing of the appeal on a single issue for determination, namely: whether the Court of Appeal erred in reversing the judgment of the trial High Court on the basis that the interest of the late Baffour Owusu Amankwatia in the disputed property became extinguished pursuant to the confiscation by the AFRC government.

 

1. Submissions of Counsel:

Appellant’s Submission:

[21]   The Appellant, who appealed on five grounds — including the omnibus ground that the judgment of the Court of Appeal was against the weight of the evidence adduced at trial, principally anchored her submissions on grounds 1 and 2 set out above.

 

[22]   In respect of ground 1 of the Notice of Appeal, learned Counsel submitted that Exhibit E, a letter dated 17th April 1992 and titled “Confiscated Assets – Releases,” constitutes a formal communication by the PNDC Government conveying its decisions on petitions lodged by persons affected by asset confiscations. Counsel contended that the said letter, emanating from the PNDC and copied to relevant state authorities, expressly provides in paragraph 4 that House No. 63, Mbrom, Kumasi is to be released to the “family” of the late Baffour Owusu Amankwatia IV (the Deceased).

 

[23]   Counsel further submitted that the said letter from the PNDC Government was given public effect through its publication in the Ghana Voice Newspaper (Exhibit E1) and the People’s Daily Graphic (Exhibit H). Counsel emphasised that these publications unequivocally communicated the Government’s decision that the disputed property had been restored to the family of the Deceased. Of particular significance, according to Counsel, is the consistent drafting pattern discernible across Exhibits E, E1, and H. In Counsel’s view, where the Government intended a release to a narrower category, namely, the wife and children, it expressly so stated. Counsel argued that the absence of such limiting language in relation to the present property is both deliberate and legally significant.

 

[24]   Relying on settled principles of interpretation, Counsel submits that the exhibits must be construed holistically to ascertain the true intention of their maker. Citing Manu v Emmeruwa [1971] I GLR 442 and Reliance Personnel v National Labour Commission [2023] GHACA 107, Counsel further submits that, when the documents are so read, they admit of only one reasonable conclusion — namely, that the property was released to the broader “family” of the deceased, and not confined to his wife and children.

 

[25]   Counsel further contends that, even on the assumption (without admission) that ambiguity exists in the term “family,” the Court of Appeal erred in failing to consider the entirety of the deconfiscation records, particularly Exhibit CW1 A, which could have shed light on the intended scope of that term. Instead, the Court of Appeal concluded that Exhibit E’s reference to “family” was clarified by Exhibit 1, a subsequent letter dated 13th May 1992 addressed to the 1st Defendant and her children.

 

[26]   Counsel submits that the Court of Appeal fell into error in treating Exhibit 1 as a clarificatory instrument, thereby improperly narrowing the scope of the original release. In essence, the argument is that Exhibit 1 cannot override or redefine the clear and unqualified language of Exhibit E, particularly when read in conjunction with Exhibits E1 and H, all of which consistently point to a release in favour of the Deceased’s family in its broader sense.

 

[27]   According to Counsel, Exhibit 1, a letter dated 13th May 1992 and addressed to the 1st Respondent and the other Respondents, conveyed a directive from the PNDC Chairman for the restoration of the disputed property following petitions submitted by the Respondents. On its face, the letter was merely a response to those petitions and an invitation to further discussions with the relevant committee. To that extent, Counsel submitted that there is nothing in Exhibit 1 to indicate that it was intended to clarify or vary the earlier public release announcements contained in Exhibits E, E1, and H. Counsel again contended that the record rather suggests that the Respondents may have misrepresented themselves as beneficiaries of the property, thereby prompting the issuance of the letter.

 

[28]   In any event, according to Counsel, the language of Exhibit 1 itself implies that outstanding issues remained to be clarified and resolved. It cannot, therefore, be regarded as a conclusive expression of the intention of the Confiscated Assets Committee, particularly in light of the subsequent meetings and discussions that followed its issuance.

 

[29]   The further submission of the Appellant is that the correspondence on record, particularly Exhibit CW1A at page 270 of the ROA (Vol. 1), establishes that although the disputed property had initially been confiscated pursuant to PNDC Law 325, the effect of its subsequent deconfiscation was to restore the property to its original status and ownership, subject to compliance with the requisite lawful procedures governing any subsequent transaction.

 

[30]   According to the Appellant, the Regional Lands Secretary directed that the beneficiaries of the Estate of the late Baffour Owusu Amankwatia IV furnish Letters of Administration for purposes of registration. Consequently, Counsel submits that, in construing Exhibits E, E1, and H, the Court ought to have considered the totality of the correspondence exchanged between the Confiscation Committee and the Respondents, particularly the final communications dated 2nd October and 12th November 1993, wherein both parties unequivocally acknowledged the late Baffour Owusu Amankwatia IV as the original owner of the disputed property.

 

[31]   Counsel further submits that, having regard to the fact that the deceased had predeceased the deconfiscation, the disputed property necessarily devolved into and formed part of his estate. Therefore, the Court of Appeal was under a duty to affirm the finding of the trial High Court that the disputed property belonged to the Appellant’s family and not the Respondents.

 

[32]   Learned Counsel for the Appellant further submitted that the Deceased died testate, having left behind a Will dated 22nd August, 1978, tendered in evidence as Exhibit B at page 81 of the Record of Appeal (Vol. 1), and admitted by the 2nd Defendant during cross-examination on 22nd June, 2022 as the valid Will of the Deceased.

 

[33]   According to Counsel, the reference to “my family” in Exhibit B ought to be construed in accordance with the intention of the Testator, namely, his family under native law and custom, represented by the Appellant. Consequently, the Appellant submits that, but for the confiscation of the disputed property, the Executors would have vested the property in the Appellant’s family as the beneficiaries named under paragraph 9 of the Will, wherein the Deceased bequeathed the disputed property to his family. Accordingly, the Appellant, as head of the family, traces his root of title to the valid Will of the Deceased tendered as Exhibit B and admitted in evidence by the learned trial Judge.

 

[34]   Based on the foregoing, and the additional arguments canvassed in the Statement of Case, the Appellant submits that the Court of Appeal erred in reversing the decision of the trial High Court. The Appellant therefore prays this Honourable Court to set aside the judgment of the Court of Appeal and restore the decision of the trial High Court.

 

Respondents’ Submission:

[35]   The Respondents, on their part, challenge the interpretation placed by the Appellant and the trial High Court on the word “family” as used in the notice releasing the disputed property following its de-confiscation by the State. The Respondents contend that the Court of Appeal was correct in rejecting the narrow customary-law interpretation adopted by the Appellant and the trial judge.

 

[36]   It is the contention of the Respondents that the Court of Appeal correctly observed that the release notice and related publications tendered as Exhibits “E”, “E1” and “H” merely stated that the property was released to the “family” of the late Baffour Owusu Amankwatia IV, without specifying which family was intended. According to the Respondents, the central issue throughout the litigation was the proper meaning of the word “family” within the context of the release notice.

 

[37]   The Respondents submit that the Appellant consistently argued that “family” referred exclusively to the deceased’s customary matrilineal family under Akan customary law, which the Appellant claimed to represent. According to Counsel for the Respondents, this wrong interpretation was based on the fact that the deceased, in his Last Will and Testament, had used the word “family” to refer to his customary family, and that same was consistent with the context of the release notice.

 

[38]   The Respondents further submit that the trial judge accepted the Appellant’s interpretation and reasoning and concluded that, because the parties are Akan and the late Baffour Owusu Amankwatia IV was a chief or traditional leader, the parties ought to have understood that “family” referred to the deceased’s matrilineal customary family rather than his wife and children. The Respondents submit that the trial High Court’s conclusion was legally erroneous and absurd.

 

[39]   According to the Respondents, the interpretation of words must be confined to the context of the particular document in which they appear. Thus, while the deceased was free to define “family” in his Will as meaning his customary family, that definition could not automatically be imported into unrelated documents authored by entirely different persons. Counsel further contends that the release notice and associated correspondence were official government communications issued by government officials and committees, and not by the deceased himself. Consequently, the deceased’s ethnicity, status as a chief, or personal usage of the word “family” in his Will were irrelevant considerations in interpreting those official documents.

 

[40]   The Respondents further argue that the trial court’s interpretation led to the absurd implication that the term “family” excluded the wife and children of the deceased. They maintain that such a restrictive interpretation offends basic principles of legal interpretation.

 

[41]   The Respondents’ counsel further argued that all parties agreed that the property originally belonged to the deceased. However, he submits that the deceased’s ownership interest was extinguished when the State confiscated the property during his lifetime. Therefore, according to Counsel, at the time of the death of the late Baffour Owusu Amankwatia IV, and even at the time probate was granted in respect of his Will, the property remained vested in the State. Consequently, any claim to the property necessarily derived from the State and not directly from the deceased’s estate.

 

[42]   Counsel further contended that the Court of Appeal undertook a detailed analysis of the release notice and the related documentary evidence, and found that the de-confiscation process arose from petitions submitted to the government by certain persons challenging the confiscation, and that the government acted upon recommendations made by a committee established to review such petitions.

 

[43]   According to Counsel, a key piece of evidence relied upon was Exhibit 1, a letter dated 13 May 1992 from the Confiscated Assets Committee to the 1st Defendant. Counsel submitted that the letter expressly stated that the Chairman of the PNDC had directed that the property be restored to the 1st Defendant “and the children of the late Baffour Owusu Amankwatia IV.” The Respondents emphasise that the authenticity, authority, and source of this document were never challenged at trial.

 

[44]   Counsel further submitted that the Court of Appeal rightly concluded that the documentary evidence, taken as a whole, showed that the release of the property resulted from petitions submitted by the Respondents, and that Exhibit 1 clarified the meaning of “family” as used in Exhibit E. It further held, rightly in Counsel’s view, that it would be absurd to interpret “family” as excluding the deceased’s wife and children or limiting it solely to the customary family.

 

[45]   The Respondents’ Counsel criticised the trial court for rejecting Exhibit 1 and other documentary evidence, including a wireless communication from the Confiscated Assets Committee. According to learned Counsel, the trial judge discounted these documents on the basis that they were uncertified or allegedly inconsistent with Exhibit E. The Respondents contend that this approach was wrong, as the documents constituted official records tendered from proper custody through the Lands Commission without objection, and their probative value could not be diminished merely on the ground that they were uncertified.

 

[46]   Finally, the Respondents argue that the Appellant’s conduct undermines the credibility of their claim. They point out that although the release notice was issued in 1992, the Appellant took no action until 2006, a delay of fourteen years during which the Defendants openly possessed and controlled the property. According to the Respondents, this prolonged inaction demonstrates that the Appellant either knew of or acquiesced in the fact that the property had been de-confiscated specifically in favour of the Respondents.

 

[47]   On this basis, the Respondents contend that the Appellant’s claim is barred by the equitable doctrines of laches and acquiescence, as well as by statutory limitation under sections 4(3) and 10(1) and (6) of the Limitation Act, 1972 (NRCD 54). Counsel further argues that, even if the Appellant once had a valid claim, the Respondents’ open, continuous, and hostile possession of the property from 1992 to 2006 amounted to adverse possession, thereby extinguishing any rights the Appellant may have had and estopping them from asserting ownership.

 

[48]   Based on all of the above and the other arguments canvassed in the statement of case filed, Counsel accordingly prays this Honourable Court to dismiss the appeal.

 

1. The Law, Analysis & my Opinion:

[49]   My Lords, by contending that the judgment is against the weight of evidence, the Appellant has effectively invited this Honourable Court to undertake a fresh evaluation of the entire body of evidence on record. In substance, this Court, sitting as the final appellate court, is being urged to place itself in the position of both the trial court and the first appellate court in order to determine whether the conclusions reached by the Court of Appeal were justified on the evidence before it. Stated differently, an appeal founded on the omnibus ground that the judgment is against the weight of evidence necessarily calls for a re-examination of the record to ascertain whether the findings and conclusions of the trial court, but reversed by the Court of Appeal, are supported by the evidence adduced, or whether such findings are perverse and incapable of support on the record.

 

[50]   The law on the omnibus ground of appeal is well settled and admits of no controversy. This Court has, in a long line of authorities, expounded the scope and effect of such a ground of appeal. Notable among these decisions are Republic v. Conduah; Ex Parte Aaba (substituted by) Asmah [2013–2014] 2 SCGLR 1032 and Owusu Domena v. Amoah [2015–2016] SCGLR 790, where this Court reiterated that:

“Where the sole ground of appeal is that the judgment is against the weight of evidence, it calls for a fresh evaluation of all the facts and the applicable law by the appellate court. Thus, when an appeal is founded on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments may properly be advanced, provided that the legal arguments serve to assist or facilitate the determination of the factual issues.”

 

[51]   My Lords, it is also now well settled that appeals are, generally, by way of rehearing. Consequently, an appellate court, such as this Honourable Court, is duty-bound to reconsider and re-evaluate the whole of the evidence, both oral and documentary, adduced before the trial court, together with the applicable law, in order to ascertain whether the conclusions reached by that court are borne out by the evidence and accord with the law. This principle has been firmly reiterated in a long line of authorities, including Tuakwa v. Bosom [2001–2002] SCGLR 61, Djin v. Musah Baako [2007–2008] SCGLR 686, Adu Bediako v. Kwame Acheampong (unreported), Civil Appeal No. J4/42/2018 dated 28th November 2018, and, more recently, Mrs. Abena Pokua v. Yaw Kwakye, Civil Appeal No. J4/17/2025.

 

[52]   In my respectful view, the issue arising for our determination lies within a very narrow compass. The central question is who, following the de-confiscation, became entitled to the property which forms the subject matter of this litigation.

 

[53]   In resolving this question, I am of the considered opinion that the proper starting point is to restate those matters which are not in controversy, the parties being ad idem on those facts. It is common ground that the late Baffour Owusu Amankwatia IV personally acquired the property known as No. 63 Mbrom, Kumasi. It is equally undisputed that the late Baffour Owusu Amankwatia IV executed a Will in 1978 by which he devised the said property to his maternal family.

 

[54]   The record further establishes, without controversy, that in 1979 the property was confiscated by the AFRC government. The late Baffour Owusu Amankwatia IV  subsequently died in 1985 at a time when the property remained under confiscation. Thereafter, probate of his Will was granted by the High Court, Kumasi, on 13 May 1991, and the Executors proceeded to distribute the various interests bequeathed to the beneficiaries. However, No. 63 Mbrom, Kumasi, was excluded from the distribution because it was still under confiscation at the material time.

 

[55]   It is also not disputed that the property, together with others, was subsequently released by the PNDC government pursuant to a Notice of Release dated 17 April 1992.

 

[56]   With the foregoing uncontroverted matters disposed of, it is observed that the parties, particularly the Respondents, have framed the legal issue for determination as the meaning to be ascribed to the word “family” in the Notice of Release. Their contention, which found favour with the Court of Appeal, is that the interest of the late Baffour Owusu Amankwatia IV in the property was extinguished upon its confiscation.

 

[57]   To my mind, however, the critical question is whether the framed issue by the Respondents is indeed the proper issue for determination, and further, whether the first appellate court was right in concluding that the Testator’s interest in the property was extinguished merely by reason of the confiscation of the property.

 

[58]   From the Record of Appeal, it is evident that the High Court and the Court of Appeal reached divergent conclusions on the question of who became entitled to the property following the de-confiscation. Whereas the High Court held that the property devolved on the maternal family, the Court of Appeal disagreed and, among other findings, held that the Testator’s interest in the property was “extinguished” upon the confiscation. The first appellate court further held that the reference to “family” in the Notice of Release, when construed together with the other relevant documents, including Exhibit 1, referred to the Respondents and not the maternal family.

 

[59]   For the avoidance of doubt, I deem it necessary to refer to portions of the judgment of the Court of Appeal and the reasoning advanced by the learned Justices of Appeal. At pages 110 – 111 of the ROA (Vol. 2), the court speaking through Suurbaareh J.A. (as he then was) stated:

“From our evaluation of the evidence and consideration of the submissions in this appeal, we are of the view that the issue for resolution in this appeal is, for whose benefit was the property in dispute de confiscated? In other words, was it to the maternal family of Baffour Owusu Amankwatia, as contended by the plaintiff, or to the defendants, as contended by the defendants?

There is no doubt that the disputed property was personally acquired by the late Baffour Owusu Amankwatia. There is also no dispute that in 1978 he made a Will in which the said property was devised to his maternal family. The evidence however shows that in 1979, the property was confiscated by the AFRC government. With the confiscation, the interest of the late Baffour Owusu Amankwatia in respect of the property became extinguished. The late Baffour Owusu Amankwatia died on 13th February, 1985, and at the time of his death the property was still under confiscation and did not form part of his estate. It is also not in dispute that at the time probate of the Will of the late Baffour Owusu Amankwatia was granted on 13th May, 1991, per Exhibit D, the said property was still under confiscation and thus not part of his estate. Upon the grant of the probate, the devises in his Will, which he dies possessed of, were distributed to the various beneficiaries.

From the evidence, about a year after probate had be (sic) granted in respect of the Will of the late Baffour Owusu Amankwatia, precisely on 17th April, 1992, the PNDC government, decided to release some properties, which had been confiscated, including the disputed property to various persons based on petitions submitted to the government”. [Emphasis Mine]

 

[60]   The first appellate court further stated at page 111 of the ROA (Vol. 2), after addressing the Notice of Release, the use of the term “family,” and Exhibits E, E1 and H, stated as follows:

“From Exhibits E and H, the release of the confiscated properties was said to be as a result of petitions submitted by certain persons, against the confiscation, and based on the recommendations of a committee that had been set up by the government to review the cases of those who had petitioned against the confiscation. The properties were therefore released, based on petitions received from various persons affected by the confiscation order (s).

Who were the persons, in response to whose petitions, the disputed property was released to the “family” of the late Baffour Owusu Amankwatia, per Exhibit E, and publications made in Exhibits E1 and H? Exhibit E, the notice of de confiscation and release, merely indicated that the property had been released to the family without specifying whether it was the nuclear or maternal family under customary law. Although both parties pleaded that they had petitioned the PNDC government resulting in the release of the property in dispute to them, neither party produced any petition(s) submitted to the PNDC government. What is however clear is that, from Exhibits E and H, the release of the disputed property was based upon petitions sent to the government by certain persons affected by the confiscation.

 

The question is, upon whose petition(s) was the property in question released? A clue can be found in Exhibit 1, appearing at page 105 of Volume 1 of the record of appeal, and which also appears in Exhibit CW1A, at pages 284 and 285, a document tendered by an officer of the Lands Commission who was subpoenaed by the trial Court. This document is dated 13th May, 1992, and was written within a month of the release in Exhibit E, which released the property to the “family” of the late Baffour Owusu Amankwatia. Exhibit 1, written after the release in Exhibit E, clarified who the “family” referred to in Exhibit E is. Exhibit 1 also shows that the petitions resulting in the release, was by the defendants. It was in the light of these pieces of evidence that Counsel for the defendants submitted that Exhibit 1 came to clarify the referred to in Exhibit E, which view is supported by various correspondence written on behalf of the defendants, contained in Exhibit CW1A.

 

The plaintiff, unlike the defendants, has not demonstrated in any way that it was the family on behalf of which he instituted the action that submitted petitions resulting in the release of the property in question. Unlike the defendants, who from the evidence referred to earlier, had many letters written on their behalf, soon after the release, resulting in Exhibit 1, the plaintiff, who from his pleadings is aware of the release and publication of same, have not done anything to assert his family right to the property. On the totality of the evidence therefore, it is more probable than not that it was upon the petitions submitted by the defendants, that the property was released, and that Exhibit 1 was written to clarify the “family” meant in Exhibit E”.

 

[61]   My Lords, I understand the lengthy quotation from the judgment of the Court of Appeal above in simple terms to mean that the Learned Justices of Appeal considered the central issue to be who benefited from the de-confiscation of the disputed property, namely, whether it reverted to the maternal family of the late Baffour Owusu Amankwatia IV under his 1978 Will or accrued to the Respondents through the de-confiscation process. Although the Court accepted that the property originally belonged personally to the deceased and had been devised to his maternal family under his Will, it held that the 1979 confiscation by the AFRC government “extinguished” his ownership interest. Consequently, at the time of his death in 1985 and the grant of probate in 1991, the property no longer formed part of his estate.

 

[62]   The Court further held that the property was subsequently released in 1992 under a separate de-confiscation process, thereby making the decisive issue one of identifying who pursued the petitions that led to the release. Referring to Exhibit E, (Notice of Release), the Court took the position that the property was released to the “family” of the deceased, but the document did not specify whether that reference was to the nuclear family or the maternal family under customary law. According to the Court, since neither side produced the petitions allegedly submitted to the authorities, it relied heavily on Exhibit 1 and related correspondence, which, in its view, clarified that the “family” referred to in Exhibit E was the Respondents’ family. The Court therefore concluded that the Respondents were the persons who actively pursued the release of the property, whereas the Appellant failed to adduce evidence showing that his family had taken steps to secure or assert ownership of the property after the de-confiscation.

 

[63]   My Lords, having reviewed the Record of Appeal and the judgment of the court, it is my opinion that the judgment of the Court of Appeal does not explain the basis for its conclusion that the late Baffour Owusu Amankwatia’s interest in the disputed property was “extinguished” upon confiscation.

 

[64]   The Black’s Law Dictionary, 11th Edition, edited by Bryan A. Garner, defines “confiscation” as the “seizure of property for the public treasury” or the “seizure of property by actual or supposed authority.” The same dictionary defines “confiscate” as “to seize (property) by authority of law.”

 

[65]   From the Record of Appeal, although it is not disputed that the AFRC “confiscated” House No. 63 Mbrom, Kumasi, no evidence was placed before the court that the AFRC confiscation law under which the property was seized expressly vested absolute ownership permanently in the State and extinguished all prior proprietary or beneficial interests of the owner, the late Baffour Owusu Amankwatia IV, without any possibility of restoration. In my respectful opinion, the fact that the PNDC Government issued the “release” or “deconfiscation” letter dated April 17, 1992, is extremely significant. In my view, the release strongly suggests that the State itself treated the confiscation as temporary or reversible, rather than as an absolute extinguishment of the title of the late Baffour Owusu Amankwatia IV. To my mind, his interest was merely suspended, or there was a divestment of the enjoyment of his interest in the property during the confiscation and nothing more.

 

[66]   It is my opinion that the Government’s subsequent release of the property back to the “family” indicates that the underlying beneficial interest of the owner was not permanently destroyed or extinguished. Even though the late Baffour Owusu Amankwatia IV could not enjoy or possess the property during the period of confiscation, he nevertheless retained a residual or reversionary beneficial interest capable of transmission upon restoration. If the interest of the deceased had truly been extinguished absolutely in 1979 upon confiscation, there would ordinarily have been nothing capable of restoration to the family in 1992. To that extent, it is my opinion that the conclusion of the Court of Appeal that the interest of the late Baffour Owusu Amankwatia IV had been extinguished was without any legal basis. It was erroneous.

 

[67]   My Lords, in my view, the late Baffour Owusu Amankwatia’s interest was not extinguished merely because the property was confiscated, as there is no evidence that the confiscation destroyed all prior proprietary or beneficial interests of the owner. In this case, it is my opinion that the Respondents themselves recognised that the original owner’s interest was not extinguished despite their pleading to the contrary. This is because, in the application for Letters of Administration filed in respect of the estate of the late Baffour Owusu Amankwatia IV, the property, No. 63 Mbrom, Kumasi, was listed as part of his estate. Thus, if indeed his interest had been extinguished, why and on what basis did the Respondents indicate that the property belonged to him? That certainly was a contradiction in terms because the listing of the property as belonging to the deceased, coupled with the obtaining of Letters of Administration, speaks to the ownership interest of the late Baffour Owusu Amankwatia IV and those to whom he devised the property.

 

[68]   Having concluded that the interest of the owner of the property was not extinguished, the question then becomes: upon the release of the property, who became entitled to it? It is my view that, upon the release of the property, it reverted to the person or persons legally entitled through the original owner. In this case, the late Baffour Owusu Amankwatia IV devised the property to his maternal family.

 

[69]   Further, I note that the Court of Appeal stated that, at the time probate was granted, the property was still under confiscation “and thus not part of his estate.” In my opinion, and with all due deference to the learned Justices of Appeal, the grant of probate in 1991, prior to the de-confiscation in 1992, does not defeat the interests of the devisees. This is because the grant of probate merely authenticated the Will and authorised the executors to administer the estate. Since the Will beneficially vested the property in the maternal family, the executors generally held the property in trust for those beneficiaries and, upon the de-confiscation, were obliged to transfer the same to them.

 

[70]   Further, the question is: who did the Government intend to benefit when it released the property in 1992? And, could the PNDC Government have intended to gift the property to the “wife and children,” as suggested by Exhibit 1, which was accepted by the learned Justices of Appeal as clarifying the meaning of “family” in the release letter? In my view, the PNDC government could not have “gifted” same to any group of persons but to the original owner. The release instrument used the words “released to the family.” In my view, although the meaning of “family” as used in the release letter was crucial, the interpretation adopted by the first appellate court was unnecessary because the property was effectively restored to the original owner, who retained the beneficial or reversionary interest therein.

 

[71]   As earlier stated, the parties agree that the original owner was the late Baffour Owusu Amankwatia IV. It is also not contested that, in his Will, the late Baffour Owusu Amankwatia IV devised the property beneficially to his maternal family. The release to the “family,” in my view, referred to the beneficiaries under the Will. Therefore, to my mind, the maternal family, being the beneficiaries under the Will, became entitled to the property upon restoration. The mere fact that probate had already been granted before the release does not mean that the beneficiaries lost their entitlement. The Probate merely enabled the estate to be legally represented and did not nullify the rights of the devisees or family beneficiaries under the Will.

 

[72]   In my view, therefore, once the property was subsequently restored, it fell back into the estate and devolved in accordance with the Will, since the release document of April 17, 1992, did not specifically displace the Will or vest the property in any person other than those to whom it had been devised. There was no legal basis for the interpretative journey embarked upon by the Court of Appeal.

 

[73]   Since the parties are ad idem that the property was the personal property of the late Baffour Owusu Amankwatia IV, and having held that, upon de-confiscation, the property reverted to him (his estate) as the original owner, it is my view that the manner in which he dealt with the property ought to guide the determination of who is entitled to it.

 

[74]   Since a Will speaks from death, it is important to consider what the Testator is alleged to have said about the property prior to his demise, particularly as both parties agree that the Testator, the late Baffour Owusu Amankwatia IV, made a Will and spoke about the property at the centre of the litigation, in order to determine the merits or otherwise of the parties’ claims.

 

[75]   At clause 9 of the Last Will and Testament of the late Baffour Owusu Amankwatia IV, it is stated as follows:

“I GIVE AND BEQUEATH my self-acquired house No. 63 situate at Mbrom Kumasi where I now reside to my family”

See page 82 of ROA – Vol 1

 

[76]   It is instructive to note that in clause 2 of the same Will, the Testator, after making certain monetary devises under clause 1, stated as follows:

“Subject to the above-sanctioned devisees, I give and bequeath 50 percent of any cash at Bank to my family according to native law and custom (hereinafter referred to simply as “my family”). I give and bequeath the 50 per cent to all my children”

See page 81 of ROA, Vol 1

 

[77]   It is a trite canon of interpretation that, in construing documents, the document must be read as a whole. In relation to Wills specifically, it is generally accepted by learned text writers that the overriding principle governing the construction of a Will is that, as far as possible, effect must be given to the intention of the testator, such intention being ascertainable from the words employed in the Will itself. The learned author A. K. P. Kludze in his book Modern Law of Succession in Ghana states at page 81, Chapter 5 as follows:

“The cardinal rule in the construction of a will is that the intention of the testator, as declared by him and apparent in the words of his will, must be given effect, so far as, and as nearly as may be, consistent with law”.

See also the Samuel Azu Crabbe in “Laws of Will in Ghana (2^nd Printing, Chapter 12 (page 226-231).

 

[78]   In the old English case of Lucas-Tooth v Lucas-Tooth, reported in [1921] 1 A.C. 594 at page 601, Lord Birkenhead, L.C., in articulating the golden rule governing the interpretation of Wills, opined as follows:

“Indeed, in approaching a problem of this kind it is important never to lose sight of the true principle of construction in such cases, that it is the duty of the Court to discover the meaning of the words used by the Testator, and from them and from such surrounding circumstances as it is permissible in the particular case to take into account to ascertain his intention. For this purpose, it is important to have regard not only to the whole of the clause which is in question, but to the Will as a whole which forms the context to the clause. Unless this is done, there is a grave danger that the canons of construction will be applied without due regard to the Testator’s intention, tending thereby to ascertain his wishes by rules which in particular case, may produce consequences contrary to that intention”. [emphasis Mine].

 

[79]   Further, the statement of the law by Adzoe JSC (as he then was), delivering the unanimous opinion of the Court in In Re: Atta (Decd); Kwako v. Tawiah [2001–2002] SCGLR 461, accords with the foregoing proposition and remains good law. See also Otoo (No. 1) & Others v. Otoo (No. 1) & Others (2013–2014) 2 SCGLR 777.

 

[80]   From the foregoing jurisprudential analysis, the settled position of the law is that the intention of a testator is to be ascertained from a holistic consideration of the Will together with the surrounding circumstances. In undertaking this exercise, the court places itself in the position of the testator at the time the Will was executed. See Trezzi v. Trezzi, 2019 ONCA 978, 150 O.R. (3d) 663, at para. 13, and Ross v. Canada Trust Company, 2021 ONCA 161, 458 D.L.R. (4th) 3, at paras. 35-41.

 

[81]   My Lords, having reviewed the specific devises set out above and the entirety of the Will (at pages 81–82 of the ROA, Vol. 1), and applying the law as I understand it, I am of the view that this is a case in which the wishes of the Testator ought to be respected. It is clear that the Testator intended that the house at the centre of the dispute be settled on his maternal family through his Will.

 

[82]   I do not think the evidence establishes, on a balance of probabilities, that the Testator intended the property to be given to the Respondents, namely, his late wife and children. His definition of “my family” was clear and unequivocal. Even though the Respondents’ witness who testified at trial contended that he only became aware of the Will when the writ of summons was issued, and further equivocated when it was suggested to him that the Respondents had benefited from the same Will, and that the Executors had settled the property, House No. K.E. 96 situate at Kwadaso, on the 1st Respondent, the Testator’s wife, that should not change anything.

 

[83]   It is clear that the Court of Appeal embarked on an interpretation of the Notice of Release and the use of the term “family” in that notice and Exhibit 1 because of its erroneous position that the Testator’s interest in the property had been extinguished by the confiscation. As I have found, the Testator’s interest was not extinguished. Consequently, I am of the view that those to whom the property, House No. 63, Mbrom, Kumasi, was devised are entitled to it, namely, the maternal family represented by the Appellant.

 

[84]   My Lords, before bringing this opinion to a close, I deem it necessary to comment briefly on the part of the submissions of the Respondents concerning whether the Appellant’s action was statute-barred and whether the Appellant was consequently estopped from instituting the present action. In their Statement of Defence and Counterclaim, the Respondents pleaded at paragraph 9 that “The defendant say (sic) that the plaintiff’s action is statute barred.” See page 11 of the Record of Appeal (Vol. 10).

 

[85]   Further, in the witness statement filed in the name of Alex Asare Owusu, the 2nd Respondent, it was deposed at paragraph 10 that “The Plaintiff has been aware of the status of the property but has never challenged same.” He thereafter contended that the writ was misconceived and that the Plaintiff was not entitled to the reliefs sought.

 

[86]   In addressing the issue, the learned trial High Court Judge observed that there was no evidence before the Court establishing that the Respondents had been in possession of the property since 1992. The Court further held that there was no evidence that the Respondents had challenged the validity of the Will of the late Baffour Owusu Amankwatia IV or the subsequent grant of probate. Consequently, the Appellant was not estopped from “denying the defendants’ title and the possession of the property in dispute.” See page 61 of the Record of Appeal (Vol. 2).

 

[87]   It is noteworthy that, upon the Respondents appealing to the Court of Appeal, Ground 2 of their grounds of appeal stated that “The learned trial judge misdirected himself when he held that the Statute of Limitation does not apply to the matter.” See page 63 of the Record of Appeal (Vol. 2).

 

[88]   However, the first appellate court, in the judgment which is the subject matter of the present appeal, did not directly determine the issue at all. Consequently, the matter does not form part of the grounds of appeal contained in the Notice of Appeal invoking the appellate jurisdiction of this Court. The Appellant, therefore, made no submissions on the issue in the Statement of Case, whilst the Respondents merely made a terse reference to it in their submissions.

 

[89]   My Lords, it is trite learning that matters such as limitation, laches, and acquiescence must be specifically pleaded. In Dolphine v Speedline Stevedoring Co. Ltd [1996-97] SCGLR 515, the Supreme Court, applying the law under the repealed High Court (Civil Procedure) Rules, 1954 (L.N. 140A), held that Order 19 rule 16 of L.N. 140A requires statutes of limitation, including the Limitation Decree, 1972 (NRCD 54), to be specifically pleaded, and that a court cannot suo motu invoke such a defence for the benefit of a party.

 

[90]   The same principle was reaffirmed by the Supreme Court in Armah v Hydrafoam Estates (Gh) Ltd [2013-2014] 2 SCGLR 1551, where Benin JSC (as he then was), at page 1568, stated as follows:

“These matters like laches, acquiescence and limitation are all to be pleaded since a party who is entitled to rely on them may decide not to do so; the other party should not be taken by surprise and is therefore entitled to notice in the pleadings in order to raise any answer he may have on these claims …”

The apex Court further emphasised that such matters must be disclosed in the pleadings and cannot, as a general rule, be raised for the first time on appeal.

 

[91]   In the instant case, it is evident that the Respondents indeed raised the issue in their pleadings, and the trial High Court considered and dismissed it. Although the issue was subsequently raised as a ground of appeal before the Court of Appeal, that Court ultimately resolved the appeal on entirely different grounds. In the present appeal, the issue of limitation does not arise from any of the grounds of appeal before this Court, and the Respondents appear only to have referred to it in passing as a fallback position in their Statement of Case. In my considered view, therefore, the issue does not properly arise for determination before this Court and cannot be entertained or discussed as a ground of appeal.

 

1. Conclusion & Disposition:

[92]   My Lords, upon a careful consideration of the foregoing analysis, it is my respectful opinion and conclusion that the reasoning of the Court of Appeal, to the effect that the late Baffour Owusu Amankwatia’s interest in the property had been extinguished by reason of the confiscation and, further, that at the time probate was granted the property remained under confiscation and therefore did not constitute part of his estate, amounted, in my considered view, to a fundamental misapprehension of the law.

 

[93]   Moreover, the interpretation placed on the term “family”, founded on the Notice of Release and the other documentary exhibits, including Exhibit 1, without due regard to the meaning ascribed to “family” by the Testator himself in his Will, also constituted a misapprehension of the evidence on record.

 

[94]   Consequently, I am firmly of the considered opinion that the judgment of the Court of Appeal was against the weight of the evidence, and that the Learned Justices of Appeal erred in setting aside the orders of the trial High Court. The Appellant, representing the maternal family of the deceased, is entitled to House No. 63 Mbrom, Kumasi, in accordance with the devise contained in the Will of the late Baffour Owusu Amankwatia IV.

 

[95]   Accordingly, I would allow the appeal, set aside the judgment of the Court of Appeal dated 9th May 2024, and restore the judgment and orders of the High Court dated 12th January 2023.

 

 

 

(SGD.)                     K. T. ACKAAH-BOAFO

                                                                  (JUSTICE OF THE SUPREME COURT)

 

 

            

 

                     (SGD.)                        P. BAFFOE-BONNIE

                      (CHIEF JUSTICE)

 

 

 

 

                (SGD.)                           S. K. A. ASIEDU

                                                                  (JUSTICE OF THE SUPREME COURT)

 

 

 

 

                                              (SGD.)                               E. Y. GAEWU

                                                                  (JUSTICE OF THE SUPREME COURT)

 

 

 

 

                            (SGD.)                            H. AMALEBOBA

                                                                  (JUSTICE OF THE SUPREME COURT)

 

 

COUNSEL

 

KWADWO DEI-KWARTENG ESQ. FOR THE DEFENDANTS/APPELLANTS/

RESPONDENTS WITH CLAUDIA ADWOA OSEI-FOSU ESQ.  AND ROBERTA LARIBA-LONGI ESQ.

 

1. VIVIAN MFODWAA GYAN ESQ. FOR THE PLAINTIFF/RESPONDENT/

APPELLANT WITH JOSHUA BOOWURO ESQ.