ABDUL RAHMAN OSUMANU GIWAH v BABA LADI

• Jurisdiction: Ghana
• Date: 23 July 2013
• Court: Supreme Court (Ghana)

ABDUL RAHMAN OSUMANU GIWAH v BABA LADI

[CIVIL APPEAL NO J4/36/2013; 29 JULY 2013]

SUPREME COURT

ACCRA

G T WOOD (MRS) CJ (PRESIDING), J V M DOTSE, ANIN-YEBOAH, A A BENIN, J B AKAMBA JJSC

1. ABDUL RAHMAN OSUMANU GIWAH — PLAINTIFFS/

2. ALHAJI ALI ADAMU GIWAH — RESPONDENTS/

3. HAJIA FATIMA ALHASSAN GIWAH — RESPONDENTS

V

BABA LADI — DEFENDANT/APPELLANT/APPELLANT

JUDGMENT

BENIN, JSC

By an amended writ of summons filed at the High Court, Accra, the plaintiffs/respondents/respondents, hereinafter called the respondents, sought the under listed reliefs against the defendant/appellant/appellant, hereinafter called the appellant:

a) A declaration that both plaintiffs and defendant are great grand children of Fatima Suka (deceased).

b) An order for the parties to jointly take letters of administration to administer the estate of Fatima Suka.

c) An order for the distribution of the estate of the late Fatima Suka among legitimate beneficiaries.

d) An order to set aside the judgment of the Islamic Judicial Committee.

The respondents claimed that Fatima Suka who died in 1954 was the great grandmother of both parties in this case. At the hearing the family tree was traced and from the record it was clearly so established, as there was no contrary evidence. Whilst the respondents are the grandchildren of Ramatu Osumanu Fulani, the only female child of Fatima Suka, the appellant is the grandson of Mallam Ibrahim Osumanu Fulani, the only male child of Fatima Suka. Hence all the parties are the direct descendants of Fatima Suka. The estate of the late Fatima Suka which the parties are fighting over comprises three houses situate at various parts of Accra, according to the respondents’ case as stated in paragraph 4 of the statement of claim, precisely at Cow Lane, Tudu and New Town. The appellant partially admitted this specific averment, by paragraph 3 of his statement of defence. The respondents contended that the late Fatima Suka gifted the Tudu house to her daughter Ramatu in her lifetime. They further posited that in respect of the Cow Lane house the appellant and his family have been in occupation all these years. In respect of the New Town house the rooms were shared out by Fatima among her four grandchildren. The respondents have been in uninterrupted possession of the Tudu house until 2008 when the appellant laid adverse claim to all the three houses claiming sole ownership thereof. The basis of appellant’s adverse claim was that in Islamic law inheritance to deceased intestate estate is through the male line and thus females do not inherit property. This position was affirmed by the Islamic Judicial Committee (IJC) when the matter of the distribution of the estate went before the said Committee. The record at page 131 shows that only the house at Cow Lane was the subject before the IJC whose decision was handed down on 27th March 2008. The appellant also made adverse claim to the New Town house saying it was owned by his father only.

The High Court gave judgment for the respondents. It set aside the decision of the IJC on ground that it sinned against the provisions of Article 17(2) and (3) of the 1992 Constitution of Ghana. The trial court found as a fact that all three houses were owned by late Fatima Suka. Also that the houses at Tudu and New Town were not part of the IJC decision. It found that all the parties herein are the descendants of the late Fatima Suka. The court also found that the deceased gifted the Tudu house to her only daughter Ramatu. The court also found that the deceased distributed the rooms in the New Town house among her four grandchildren. Consequently the court held that the houses at Tudu and New Town did not form part of the deceased’s estate and are thus unavailable for distribution. In effect the only house that was available for distribution was the one situate at Cow Lane. The trial court upheld all the reliefs sought by the respondents. After due consideration of the case in terms of the facts and applicable law/s, the Court of Appeal upheld the High Court’s judgment and dismissed the appeal accordingly. The appellant was not satisfied with the Court of Appeal’s decision and has appealed to this court on four grounds namely:

a) The judgment of the Court of Appeal is against the weight of evidence.

b) The learned justices erred by holding that the estate of Fatima Suka (deceased) was pending before the family when no evidence of that fact was led or adduced at the trial.

c) The learned justices erred in affirming the decision of the court that the Intestate Succession Law, 1985 (P.N.D.C.L. 111) should apply to the distribution of the estate of Fatima Suka (deceased).

d) The learned justices failed to apply the binding decision of the Supreme Court in Agyentoa v. Owusu (2005-2006) SCGLR 383.

Counsel for the Appellant argued the omnibus ground that the judgment is against the weight of evidence, to begin with. He made reference to the decision of this court in the case of TUAKWA v. BOSOM (2001-2002) SCGLR 61 on what it means when an appeal is said to be by way of re-hearing. He submitted that the Respondents who bore the burden of proof by virtue of sections 10 and 11 of the Evidence Act, 1975 (N.R.C.D. 323) failed to discharge...