Gakpo & 2 Others Vrs Ntibrey & Another [2022] GHAHC 97 (18 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HOHOE, HELD ON WEDNESDAY THE 18TH DAY OF NOVEMBER 2022 BEFORE HIS LORDSHIP JUSTICE AYITEY ARMAH-TETTEH 1. MRS. GRACE NTIBREY GAKPO 2. WILLIAM NTIBREY --- 3. AUGUSTINE NTIBREY PLAINTIFF SUIT NO: E12/15/2017 VRS 1. FRANCIS NTIBREY 2. MARY NTIBREY --- DEFENDANTS - PARTIES: 3rd PLAINTIFFS WHO ARE ABSENT 2nd PLAINTIFF PRESENT AND REPRESENTS 1st PLAINTIFF AND DEFENDANTS PRESENT COUNSEL: - MR. ERNEST DELA AKATEY FOR PLAINTIFFS MR. KOMLA ONNY FOR DEFENDANTS _____________________________________________________________ JUDGMENT By way of background, one R. K. B. Ntibrey (deceased) of Kpando died intestate on 28 August 2014, leaving behind a widow and 8 children from different mothers. On 26 May 2017, the Plaintiffs brought the present action against the defendants for certain reliefs which will be reproduced later in this judgment. The 1st Plaintiff is the widow of the deceased and the 2nd and 3rd Plaintiffs and the defendants are all children of the deceased. The defendants entered appearance and filed a defence accusing the plaintiffs also of intermeddling in the estate of the deceased and further accused them of thwarting all efforts to apply for and obtain letters of administration to administer the estate of the Page 1 of 25 deceased. Defendants then counter -claimed against the defendants. On 10 April 2018 the plaintiffs filed an Ex-parte application for the grant of letters of administration to enable them to administer the estate of the deceased. The application was granted but before the certificate could be issued the 1st defendant filed caveat. In the events that followed, when the parties failed to agree on who is entitled to be granted letters of administration, the court differently constituted on 3 July 2019 ordered the Applicants therein to issue a writ against the caveator to determine who is entitled to the grant of letters of administration to administer the estate of the deceased. Pursuant to that order the Plaintiffs then filed Suit No E12/31/19 asking for the following reliefs: a) Grant of letters of Administration should be given to plaintiffs to administer the estate of R. K. B. Ntibery (deceased). b) Cost. Pursuant to Order 31 Rule 2 of the High Court (Civil Procedure) Rules C. I. 47, this court on 18 November 2020 consolidated the present Suit No. E12/15/2017 with Suit No E12/31/19 as in the opinion of the Court some common question of law and fact arises in both cases and further ordered that both cases be tried at the same time. By their writ of summons dated 26 May 2017, the Plaintiffs claim against the defendants for: a. An Order directed at the Defendant to stop intermeddling in the deceased R. K. B Ntibrey’s property. b. An order directed at the 1st Defendant to account for the five (5) rooms rented to tenants after the demise of R. K. B Ntibrey. Page 2 of 25 c. An order of perpetual injunction restraining the 1st Defendant from using the other shop next to Paradise Pharmacy and the cement Block factory behind the Pharmacy for his personal use. d. An order directed at the 1st Defendant to revert to depositing sales from the Pharmacy in account No. 5051320000292761 at Weto Rural Bank, Kpando. e. An order to punish the Defendants for intermeddling in the estate of R. K. B Ntibrey (deceased). f. Cost(s) including Solicitors fees. In their statement of defence, the defendants denied the claim of the plaintiffs and counter – claimed as follows: (a) An order directed at the Plaintiffs, particularly William Ntibrey and Augustine Ntibrey to account for the monies taken for tenancy renewals and rent taken from the new occupant of Fati’s room. (b) An order directed at 2nd and 3rd Plaintiffs to account for monies forcibly taken from the till of Paradise Pharmacy Limited to pay for their personal Electricity and Water bills. (c) A declaration that Paradise Pharmacy Limited is a limited liability company which has shareholders and Directors responsible for the day to day running of the company. Page 3 of 25 (d) A declaration that Paradise Pharmacy limited is not a sole proprietorship and therefore not the personal property of the deceased RKB Ntibrey save for the shares he held in the company. (e) An order restricting the Plaintiffs from dealing in any way with the operations of Paradise Pharmacy limited as they are not members of the company. (f) Cost(s) including Lawyer’s fees. PLAINTIFFS’ CASE According to the Plaintiffs since the death of the deceased, the defendants have been enjoying and benefiting from the estate of the deceased to the exclusion of all other children. Plaintiffs contend that the 1st defendant has refused to deposit sales from Paradise Pharmacy shop which was owned by the deceased into a designated bank account. According to the Plaintiffs, the Defendants have appointed themselves as Directors of the Paradise Pharmacy without any resolution or any extraordinary meeting to appoint them as such. Plaintiffs allege that the 1st defendant has been using a vacant place behind the Paradise Pharmacy shop for his cement blocks business and also renting rooms belonging to the estate. According to the Plaintiffs the defendants have not obtained letters of administration and as such their conduct amount to intermeddling in the estate of the deceased and should be punished. DEFENDANTS’ CASE The defendants denied the claim of the plaintiffs and said that Paradise Pharmacy is a Limited Liability Company and not a personal property of the deceased and as such dealing with a limited liability company which the deceased had interest by way of shares in cannot amount to intermeddling in the estate of the deceased. According to defendants Page 4 of 25 it is rather the Plaintiffs who were intermeddling in the estate of the deceased. According to the Defendants, the Plaintiffs have been receiving rent payments from tenants in respect of one of the properties of the deceased located at Kpando . The defendants that the plaintiffs forcibly took money from the tills of the Paradise Pharmacy shop to pay for their personal water and electricity bills. At the Application for Directions stage the court differently constituted adopted the issues contained in the Application for Directions and the issues contained in the additional issues for directions filed by defendants, for the determination of the suit. The issues as contained in the application for directions were: a. Whether or not Paradise Pharmacy is a Limited Liability Company controlled by its shareholders and Directors. b. Whether or not defendants have filed regulations and Returns of Particulars of Paradise Pharmacy according to the Companies Code. c. Whether or not Defendants have intermeddled in the estate of RKB Ntibrey (deceased). d. Whether or not the purported appointment of 2nd Defendant as a Director of Paradise Pharmacy is in accordance with Companies Code. And the issues found in the additional issues for directions filed by the defendant are as follows: a. Whether or not Plaintiffs have intermeddled in the estate of RKB Ntibrey (deceased). Page 5 of 25 b. Whether or not Plaintiffs forcibly take (sic) money from the till of Paradise Pharmacy Limited to pay their electricity and water bills and to pay allowances to their mother the 1st Plaintiff. c. Whether or not the Pharmacy Council of Ghana licenses sole proprietorships as pharmacy entities. d. Whether or not Paradise Pharmacy Limited was personal property of RKB Ntibrey (deceased) at the time of his death. e. Whether or a non-member of a company can determine how and where a company’s accounts are operated. f. Whether or not the store next to Paradise Pharmacy and the space behind paradise pharmacy were given to 1st defendant by his late father long before his demise and that 1st Defendant has been in occupation and possession of same since then. In my view, issues (b) found in the application for directions and issue (c) of the additional issues are unnecessary for the determination of the issues before this court. I will therefore not discuss them. I will discuss issues ( a) and (d) of the issues in the application for directions and issues (d) and ( e )of the additional issues together as all are for the determination of the legal status of Paradise Pharmacy Limited which was included in the estate of the deceased. And the other main issues in view to be discussed will be (1) whether or not the deceased made a gift inter vivos of the shop and the space behind the shop where the 1st Defendant operates his business and the space behind it to the 1st defendant and (2) whether or not both parties have intermeddled in the estate of the deceased. Page 6 of 25 In proof of their case the 2nd Plaintiff testified for himself and on behalf of the other Plaintiffs. They did not call any witness. The 1st defendant also testified for himself and on behalf of the 2nd defendant and they also did not call any witness. The plaintiffs pleaded at paragraph 5 and 8 of their statement of claim as follows: “5. Plaintiffs says(sic) R. K. B. Ntibrey (deceased) had swathes of property viz, Pharmacy shop trading under the style name Paradise Pharmacy Kpando, House at Kpando, House at Aveme and shops at Hohoe. 8. Plaintiff say until the death of R. K. B Ntibrey (deceased) he was the sole Director of the Paradise Pharmacy Kpando whereas the 2nd and 3rd Plaintiffs together with the 1st Defendant have been working in the Pharmacy till the demise of R. K. B. Ntibrey.” In his evidence in chief the 2nd Plaintiff testified as follows: 3. Raphael Kwami Bostoe Ntibery left behind a house at Kpando Tsakpe, a house at Aveme Beme, Pharmacy Shop trading under the name and style Paradise Pharmacy at Kpando, shops at Hohoe and building plots on Sovie- Kpando Road and several personal effects. 8. The Paradise Pharmacy was given certificate to commence business on 9th April 1998 and attached herewith and marked as “Exhibit WN1” the certificate to commence business. 17. The 1st defendant has never exhibited any returns of Paradise Pharmacy in its regulations showing the shareholding structure of its members and whether or not they are paid up members or a mere Company Limited by its shareholders on shelf.” 2nd Plaintiff tendered in evidence, the certificate to commence business of Paradise Pharmacy as exhibit A and the Regulations of the company as exhibit ‘D’. Page 7 of 25 The 1st defendant on the legal status of the Paradise Pharmacy testified as follows: “2.0 I have run Paradise Pharmacy ( then registered under Act 151) Limited with my late father R. K. B. Ntibrey until the year 1998 when he took steps to convert same into a Limited Liability Company because the Pharmacy Council was refusing to renew licenses of Pharmacies that were not limited liability Companies any longer. 3.0 Paradise Pharmacy Limited was thus converted into a Limited Liability Company in 1998 with certificate numbered C-79218 and thereafter issued certificate to commence business on 9th April 1998.” The defendants basically, did not deny the existence of Paradise Pharmacy but said it was a Limited liability Company and being a Limited liability company it was not the personal property of the deceased and that it is the shares in the company that forms part of the estate of the deceased. The 2nd Plaintiff under cross examination admitted that Paradise Pharmacy was a limited liability company even though he had said earlier that it was a sole proprietorship. Under cross examination of the 2nd Plaintiff tis what ensued: Q. By exhibit ‘D’ what is the status of Paradise Pharmacy, is it Limited Liability Company or a sole proprietorship? A. Limited liability Company. Q. Was R. K. B Ntibery, your late father alive in 1998? A. Yes. Q. Look at exhibit ‘A’. What is it? A. Certificate to commence business of Paradise Pharmacy. Page 8 of 25 Q. Which year was it issued? A. 9 April 1998. Q. Was your father alive at the time? A. Yes Q. So you will agree with me that at the time your father was alive, his company was a limited liability company. A. Yes. The law is that where the evidence of one party on an issue in a suit is corroborated by the evidence of his opponent, whilst that of his opponent on the same issue stood uncorroborated even by his own witness, a court ought not to accept the uncorroborated one in preference of the corroborated one unless for some good and apparent reason the court finds the corroborated version incredible, impossible or unacceptable. In the case of AGYEIWAA v P & T CORPORATION (2007 -2008) SCGLR 985 at 990 Georgina Wood CJ had this to say on the rule: “The law is that where the evidence of an opponent corroborates the evidence of the opposite party, and that opponent’s remain uncorroborated, the court is bound to accept the corroborated evidence unless there are compelling reasons to the contrary.” The Plaintiffs evidence corroborates the evidence of the Defendants that at the time of the death of R. K. B. Ntibrey Paradise Pharmacy was a Limited Liability Company. And I accept the corroborated evidence of the Defendants on the legal status of Paradise Page 9 of 25 Pharmacy that it was Limited Liability Company. Indeed exhibits A and ‘D’ clearly shows that Paradise Pharmacy was a Limited liability company at the time of the death of the deceased. From the evidence on record I am satisfied that the deceased set up Paradise Pharmacy as Sole proprietorship but in the course of time the business was converted into a Limited Liability Company to meet the demands of law. I find and hold that at the time of the death of R. K. B. Ntibrey, Paradise Pharmacy Limed was a limited liability company with R. K. B. Ntibrey as the sole shareholder. The next issue to be discussed is whether or not the Defendants have intermeddled in the estate of the deceased. It is the claim of the Plaintiffs that, the defendants have taken over the running of Paradise and as such have intermeddled in the estate of the deceased. Order 66 rue 3 of the High Court (Civil Procedure) Rules CI 47 provides as follows: “Where any person, other that the person named as executor in a will or appointed by Court to administer the estate of a deceased person , takes possession of and administers or otherwise deals with the property of a deceased person, the person shall be subject to the same obligations and liabilities as an executor or administrator and shall in addition be guilty of the offence of intermeddling and liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or to both.” In Impraim v Baffoe [1980] GLR 520 Okunor J. held as follows: “2) Any person who, not having been appointed executor of a will, either expressly or by implication, intermeddled with the goods of the deceased in such a manner as to show an intention of exercising the authority of an executor, might make himself liable as an executor de son tort. Very slight acts of intermeddling would make a person executor de son tort, for example receiving debts due to the estate. In the present case, the defendant Page 10 of 25 confessed to collecting rents due to the estate. The executor de son tort was liable to be sued by the rightful executor or administrator or by a legatee. He had to account to the personal representatives and would thus put an end to his liability except as regarded outstanding legal actions.” Intermeddling is a criminal offence, and the standard of proof is proof beyond reasonable doubt. The elements of intermeddling in my view are (1) the persons is not an administrator of the estate of a deceased person or a named executor (2) and he takes possession of and administers or otherwise deals with the property of a deceased person. In the instant case there is no doubt that neither of the parties have obtained letters of Administration in respect of the estate of R. K. B Ntibrey, so the other element of anyone taking possession of and administering or otherwise dealing with the property of the deceased R. K. B. Ntibrey needs to be proved beyond reasonable doubt by the party who makes an allegation of intermeddling. The question is have the defendants intermeddled in the estate of the deceased by their running of the Paradise Pharmacy after the death of the deceased? I do not think so. It is trite law that a company is a separate legal entity as distinct from its members, therefore it is separate at law from its shareholders and directors. See the case of Morkor v Kuma (1998-99) SC GLR 620 at page 632 where the Supreme Court per Sophia Akuffo JSC (as she then was ) stated as follows: “A company is, thus a legal entity with a capacity separate, independent and distinct from the persons constituting it or employed by it. From the time the House of Lords clarified this cardinal principle more than a century ago in the celebrated case of Salomond v Salomond & Co [1897] AC22, it has, subject to certain exceptions, remained the same in all common law countries and is the foundation on which our Companies Code, 1963 is grounded.” . Page 11 of 25 The members of a company own the company, but the company has a separate legal existence and the company’s assets belong to the company. Shares in a business confers on its holder with interest, rights and liability with respect to that company. The deceased at the time of his death was the sole shareholder of Paradise Pharmacy and his interest in the Company was in the shares of the company and any benefits that may accrue to the shares he owns. After the death of the deceased his shares in the company devolves onto his personal representatives. Section 102 (1) of the Companies Act, 2019 (Acct 992) provides that in the case of the death of a shareholder the survivor or survivors where the deceased was a joint holder and the legal representatives of the deceased where the deceased was sole shareholder shall be the only person recognized by the company as shareholder: “102 (1) In the case of the death of a shareholder or debenture holder (a) The survivor or survivors, where the deceased was a joint holder, and (b) The legal personal representatives of the deceased, where the deceased was a sole holder or last survivor of joint holders, shall be the only persons recognized by the company as shareholders or debenture holders.” The Plaintiffs allege that the defendants having taken over the running of the Paradise Pharmacy has intermeddled in the estate of the deceased. Shareholders do not run a company; it is the directors of the company that runs it. The day to day running of a company is the responsibility of its directors. Even though a shareholder may be a director of the company he runs the company in his capacity as a director and not as a shareholder. In Okudjeto v Irani Brothers [1974] GLR at 381 opined as follows: Page 12 of 25 “The conduct of a company’s business is the responsibility of the board of directors.” Section 170(1) of Act 992 defines directors of companies as those who direct and administer the business of the company. The directors of Paradise Pharmacy Limited at the time of the deceased were two (2). They were the deceased and the 1st defendant. Upon the death of the deceased a casual vacancy in the directorship of the Company occurred and needed to be filled. Section 172 (5) and (6) of the Act 992 provides that a casual vacancy in the board of directors may be filled by continuing director(s) or by ordinary resolution. And it provides as follows: (5) Despite a provision to the contrary in the constitution of a company, a casual vacancy in the number of directors may be filled by, (a) the continuing directors or director although the number of directors may have been reduced below that fixed as the necessary quorum of directors; or (b) an ordinary resolution of the company in a general meeting. (6) in exercising the power to fill a vacancy under subsection (5), the directors shall observe the rules laid down in sections 190 and 191 and shall not appoint a person to be director unless the directors have taken reasonable steps to satisfy themselves of the integrity and suitability of the person to be a director of the company. In the instant case the deceased and the 1st defendant were the two directors of Paradise Pharmacy Limited and upon the death of the deceased the surviving director who was the 1st defendant under the provisions of the Section 172(5) supra was legally obliged Page 13 of 25 appoint another director for the running of the company. And he did appoint Mary Ntibrey the 2nd defendant as a director to fill the vacancy so created by the demise of R. B. K. Ntibrey. The 1st defendant did no wrong in appointing the 2nd defendant as a director of the company. He cannot be faulted for appointing the 2nd defendant as a director of Paradise Pharmacy after the death of the co-director R. B. K. Ntibrey. In the circumstance, the defendants as directors of Paradise Pharmacy Limited are the persons permitted by law to operate, run , manage and direct affairs of the Pharmacy and cannot be said to have intermeddled in the estate of the deceased if they operate, run, manage and direct affairs of Paradise Pharmacy as a going concern and I so hold. The Plaintiffs again allege that after the death of the deceased the 1st defendant has taken over a shop besides Pharmacy shop as his own and by that he is meddling in the estate of the deceased. Plaintiffs pleaded as follows: 12. Plaintiffs say 1st Defendant has appropriated a store next to paradise pharmacy and have been using same to sell hardware and cement. 13. Plaintiffs say on 1st defendant has also been using a vacant place behind Paradise Pharmacy for his block business and also renting five (5) rooms to tenants, the said rooms belonging to R. B. K. Ntibrey. In support of this allegation 2nd Plaintiff testified as follows: “The 1st Defendant who has never worked at anywhere in his life apart from the Pharmacy started acquiring properties viz using the shop beside the pharmacy as his own hardware shop, selling cement in front of the pharmacy, lumber shop, cement shop and block factory “ Page 14 of 25 In response to these allegations the defendants pleaded in their statement of defence as follows: 13. Defendants say in answer to paragraphs 12 and 13 of the Plaintiffs’ statement of claim that the allegation is false as that store and the space belong to the Pharmacy and was given to 1st Defendant by the late R. K. B. Ntibrey during his life time and also add that the late R. K. B. Ntibrey borrowed 210 cement bags from the cement being sold in the said store by the 1st defendant for the construction of the Hohoe property which Plaintiffs have conveniently failed or refused to disclose in their writ .” The 1st Defendant then testified as follows: “Due to my working with my father I received training in trading, and I began on a small scale trading hardware, building materials, cement paint etc. As my business grew my late father gifted me one of the shop spaces and the rear of the building for block making out of broken cement bags, which have been in my possession and occupation for over 20 years now.” The defendants in their statement of defence said the store in which the 1st defendant sells the hardware and cement and the space at its rear were given to him by the deceased but in his evidence, he said it was gifted to him by the deceased. Did the deceased make a gift of those properties to the 1st Defendant? There is no doubt that the building housing the Paradise Pharmacy shop was a self-acquired property of the deceased and it is also not in doubt that the 1st defendant was operating his hardware business in a shop in the Paradise Pharmacy building. . Under cross examination of the 1st Defendant the following ensued: Q. Who is the owner of the shop that houses Paradise Pharmacy? Page 15 of 25 A. The house belongs to my father. Q. You also do business in one of the shops beside Paradise Pharmacy? A. Yes Q. And that building also belongs to your father? A. That is so. And this is what ensued during the cross examination of 2nd Plaintiff: Q. In the life time of your father Francis Ntibrey the defendant was running a hardware shop and a block factory? A. He did not run a block factory nor a hardware shop he was only selling cement. Q. Cement is hardware will you agree? A. Yes Q. So you will agree with me he had started running a shop before your father died. A. Yes. From the above there is no doubt that at the time of death of the deceased, the 1st defendant was operating his business in the shop and on the space behind the shop. There is no evidence to support Plaintiffs claim that 1st defendant took over those properties after the death of the deceased. The Defendants substantially accepted the claim of the Plaintiffs that the shop and the space belong to the deceased but raised an additional issue that the said shop and the space were gifted to him by the deceased, a claim the Plaintiffs deny. The defendants in these circumstances where the Plaintiffs deny such claim have the burden to prove the existence of the gift of the shop and the space made to him. Page 16 of 25 BURDEN OF PROOF Section 14 of the Evidence Act, 1975, (NRCD) 323 provides as follows: - ‘Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that he is asserting. ‘ Section 10 (1) of the Act explains ‘burden of persuasion” as follows: “For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.” In civil cases, it is trite law that the parties are required to prove their respective cases on the preponderance of probabilities. Section 12 (1) of the Act provides as follows: ‘Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.’ Section 12(2) of the same Act explains what ‘preponderance of probabilities’ is as follows: ‘Preponderance of probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.’ Page 17 of 25 In Gihoc Refrigeration & Household Products Ltd v. Hanna Assi [2005-2006] SCGLR 458 the Supreme Court held thus: “Since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by preponderance of probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue..” Again, in the case of Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 at 900, the Supreme Court on burden of proof, stated as follows: “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on preponderance of probabilities, as defined in Section 12(2) of the Evidence Act, 1975 (NRCD 323). Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all evidence, be that of the plaintiff or the Defendant, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favourable verdict.”’ It is the claim of the 1st defendant that the deceased made a gift of the shop in which he sells his hardware and the space behind the building to him. The defendant who alleges that a gift was made to him by the deceased bears or carries the burden of proof and he must do so with credible and reliable evidence. In Barko v. Mustapha and Another [1964] GLR 78 the court held as follows: “Since the appellant claimed, the land was given to her as a gift, failure to prove the customary ingredients of a gift, which are publicity, acceptance and placing the donee in possession, rendered her claim untenable. She did not discharge the onus of proving that the land was hers. What are the essential elements or ingredients of a valid customary law gift? Page 18 of 25 In Yaguo and Another v. Agyeman and Others [1966] GLR 482, the court held as follows: “The plaintiffs failed to prove all the essential ingredients of a valid customary gift of the house to them, namely (a) ceremony of transfer of property in the house to the plaintiffs; (b) publication to the living and the dead that ownership in the house had as from that date moved from the donor to the plaintiffs.” Again, in Abdul Rahman v. Baba Ladi ; Civil Appeal . No. J4/36/2013, 29thJULY 2013, the Supreme Court gave the essential validities of a gift inter vivos when it held as follows: “On proof of gift inter vivos, Counsel for the appellant cited three relevant decisions of this court. These are Mahama Hausa v Baako Hausa [1972] 2 GLR 469; Asare v Kumoji [2000] SCGLR 298; Akunsah v Botchway & Jei River Farm Ltd.[2011] 1 SCGLR 288. The most important element of a customary gift that runs through these authorities and several others is that the gift must be offered and accepted and must be witnessed by somebody else other than the donor and donee. Thus, when the fact that a gift has been made is challenged, it will not be sufficient to state barely that a gift was made; you have to go on to show the occasion, if any, on which the gift was made, the date, the time, if possible, the venue and most importantly in whose presence it was made. From the legal decisional authorities, the important elements or ingredients of a valid customary law gift inter vivos are (i) the Donor must be the owner of the property; (ii) there must be publicity or in the presence of witnesses;(iii) and acceptance by the done which may include the taking possession of the property or treating it as his or hers even before the death of the donor. In the instant case, in support his claim of the alleged gift to him by the deceased, the 1st defendant testified as follows: Page 19 of 25 “Due to my working with my father I received training in trading, and I began on a small scale trading hardware, building materials, cement paint etc. As my business grew my late father gifted me one of the shop spaces and the rear of the building for block making out of broken cement bags, which have been in my possession and occupation for over 20 years now.” As has been said earlier there is no doubt that the house in which the Paradise Pharmacy and the shop in question are located was the self-acquired property of the deceased. It is also not in doubt that the 1st defendant was in possession of the shop and the space behind the house carrying on his hardware business before the death of the deceased, but was he able to prove all the essential ingredients of a valid gift? I do not think so. The 1st defendant under cross examination the 1st defendant testified that he did not give any thanks for the alleged gift given to him by his father and no one also witnessed it apart from the alleged donor and donee. This is what ensued when 1st defendant was cross examined: Q. Was the shop gifted to you or you leased it from your father? A. He gave it to me to use and I was not paying anything to him. Q. Are your siblings and 1st Plaintiff aware that your father gifted the shop to you? A. Yes they are. Q. Can you tell the court those who were present when the shop was gifted to you? A. It was between me and father. Q. I put it to you that your father never gifted that shop to you. A. He gifted the shop to me. Q. You took over that shop after the death of your father. A. That is not true. I was using it before the death of my father. Page 20 of 25 Q. I further put it to you that if indeed your father gifted the shop to you, he would have done so in the presence of your siblings or others. A. I am his son. I requested for it. He is not obliged to give it to me in the presence of others. Q. Did you give thanks for the gift of the shop to you? A. I did not give thanks. From the evidence of 1st defendant, no one else apart from him and his father (the deceased) no one else witnessed the alleged gift, and he did not also give. In fact the 1st defendant himself was not sure whether his father gave him the shop to use, or it was a gift. The 1st defendant was not able to prove all the essential elements of valid gift I am satisfied that the deceased did not make a gift of the shop and the space behind to the 1st Defendant. I find that the deceased did not make a gift of the hop to the 1st defendant. The deceased only allowed the 1st defendant to use the shop and the space for his hardware business. The fact that the deceased allowed 1st Defendant to operate his business there does not make it his own, as to exclude it from the estate of the deceased. And since it was the deceased that allowed the 1st defendant to use the shop and the space behind for 1st defendant’s business the 1st defendant cannot be said to have intermeddled in the estate of the deceased and I so hold. Plaintiffs also alleged that the 1st defendant have also rented five (5) rooms in the Kpando house and one (1) room in the Aveme house and has been collecting rent without accounting for same. The 1st defendant denied all these allegations. Page 21 of 25 With respect to these allegations, the plaintiffs repeated just repeated them on oath when he mounted the witness box and nothing more. No further evidence was led in proof of these allegations. The law is that, where a party makes an averment, and his averment is denied by his opponent, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness box, and repeating the averment on oath. In the case of Mojalagbe v. Larbi & Ors (1959) GLR 190 Ollenu J.(as he then was) stated as follows: “Proof in law is the establishment of facts by proper legal means; Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” I find that the Plaintiff have been unable to prove that the defendants collected rents form the Kpando and Aveme houses and the allegation of intermeddling against the defendants for collecting rents from the deceased houses in Kpando and Aveme stand unproven. The defendants equally made allegations of intermeddling against the Plaintiffs but were also not able to prove same. The defendants alleged in paragraph 4 of their statement of defence as follows: Page 22 of 25 a. Paragraph 6 of the plaintiffs’ statement of claim is denied and defendants say that apart from Plaintiffs living in and enjoying one of the properties of the late R. K. B Ntibrey, they have also been receiving rent from tenants living in the said property located at Kpando and 2nd defendant (plaintiff) has placed a container on the frontage of the said Kpando house doing a trading business for himself after the demise of R. K. B. Ntibrey. b. Defendants also say Plaintiffs have received rent paid to them by the new occupier of a room occupied by a former tenant called Fati.” The defendants repeated these allegations on oath when he mounted the witness box as follows: 15.0 Together with Cletus Ntibrey and John Ntibrey (self-styled family head) the Plaintiffs have been intermeddling in the estate of the deceased and are thwarting all efforts to take letters of administration to administer the deceased estate because they survive forcibly on the sales of Paradise Pharmacy. 16.0 It is my contention that the plaintiffs particularly Aggustine Ntibrey (an ex-convict) who was goaled for fraudulently withdrawing money from our late father’s bank account with GCB bank and William Ntibrey to account for tenancy renewals and particularly rent taken from new occupants of Fati’s room. The defendants also just repeated the averments in their statement of defence when 1st defendant mounted the witness box. He did nothing more than repeating the averments they made in their pleading on oath. The Defendants will be deemed not have been able to prove the allegation of intermeddling against the Plaintiffs. See Modjalabi v Larbie supra. . In conclusion I enter judgment as follows: Page 23 of 25 1. A declaration that Paradise Pharmacy is a Limited Liability Company and was so at the time of the death of R. K. B Ntibrey. 2. A declaration that R. K. B Ntibrey was the sole shareholder of the company at the time of his death and his 100% shareholding forms part of the movable properties of his estate. 3. An order that the 1st Defendant transfers the 100 % shares in Paradise pharmacy which is in his personal name to the administrators and administratrixes appointed by this court in suit No E12/31/19. 4. The first defendant was a director of Paradise Pharmacy Limited at the time of the death of the deceased and upon the death of R. K. B . Ntibrey the co-director the 1st defendant being the sole surviving director, under section 172(5) of the Companies Act 2019 (Act 992) had the right to appoint a new director to fill the vacancy. 5. The 1st defendant was unable to prove that the deceased made a gift of the shop to him during the lifetime of the deceased so the shop excluding its content being the merchandise of the 1st defendant forms part of the estate of the deceased. 6. The defendants being a directors of the Paradise Pharmacy cannot be held for intermeddling in the estate of the deceased by their running and administering the business of Paradise Pharmacy Limited. 7. The Plaintiffs were not able to prove that the defendants have intermeddled in the estate of the deceased. 8. The defendants were not able to prove that the plaintiffs have intermeddled in the estate of the deceased. 9. The following properties of the deceased: a. 100 % shareholding in Paradise Pharmacy b. Building in which Paradise Pharmacy is located. c. House at kpando Page 24 of 25 d. House at Aveme e. Shops at Hohoe f. 3 shops including the one that the 1st defendant operates his hardware business. g. 12 building plots at Kpando- Sovie Road h. Plot in front of House at Kpando All forms part of the estate of the deceased and should be distributed in accordance with the Intestate Succession Act PNDCL 111. 10. I will dismiss all the reliefs of the plaintiffs except relief (d). 11. I will also dismiss reliefs (a), (b) and ( e ) of defendants’ counter claim. 12. I make no order as to costs (SGD) Ayitey Armah-Tetteh J. (Justice of The High Court) Page 25 of 25