Danso Awuah and Others v Frimpong and Others (A9/2/22) [2025] GHADC 85 (24 April 2025)

IN THE DISTRICT COURT HELD AT NEW TAFO-AKIM ON THURSDAY 24-04- 2025 BEFORE HER WORSHIP JOSEPHINE SARFO (MRS.) SUIT NO: A9/2/22 ALICE DANSO AWUAH & 2ORS VRS PLAINTIFFS YAW FRIMPONG & 2 ORS DEFENDANTS PLAINTIFFS-ABSENT 1st, 2nd & 3RD DEFENDANTS-PRESENT COUNSEL FOR PLAINTIFFS-ABSENT JUDGMENT Plaintiffs in an amended writ issued on the 08/08/2022 sought the following reliefs: a. A declaration that property numbered KA20 Kukurantumi is the self- acquired property of the Late John Oppong Awuah. b. An order evicting the defendants from the property numbered KA20 Kukurantumi. c. Perpetual injunction restraining the defendants either by themselves or their workmen, assigns, personal representatives, privies, successors in title etc from dealing or having anything to do with the estate of the deceased, John Oppong Awuah. d. An order directed at 2nd and 3rd defendants to pay rents of GHC 70.00 each as rent from March 2013 till date of vacating from the property. The plaintiffs are the personal representatives of the estate of the late John Oppong Awuah. It is the case of the plaintiffs that the late John Oppong Awuah died leaving a will made on 2nd March 2013 which was admitted to probate by the High Court of Koforidua on the 25th February, 2021 and certificate of probate granted to the plaintiffs to faithfully administer the estate of the late John Oppong Awuah. According to the plaintiffs, the late John Oppong Awuah devised Property numbered KA20 Kukurantumi to the Plaintiffs and other siblings which property is the self acquired property of the deceased, John Oppong Awuah. The late John Oppong Awuah during his lifetime worked at the Cocoa Project now COCOBOD as the Chief Technical Officer and was stationed at various places at various times in the country. That he was granted the land on which the property is situate by the chief of Kukurantumi, Nana Ampaw sometime in the 1950’s and he caused the architectural drawings of the house he was living in post-retirement to be drawn. The Plaintiffs aver that the property the late John Oppong Awuah constructed included four chamber and hall rooms, four single rooms with porch and six bedroom with hall and dining room where he lived. That John Oppong Awuah engaged his father to supervise the construction of the house due to his being away on work duties and remitted monies to the father for the construction. Upon the completion of the property long before his retirement, John Oppong Awuah permitted some family members to live in some of the rooms and also rented out some of the rooms to third parties. The Plaintiffs aver that upon the retirement of the late Joh Oppong Awuah in the 1980s, he moved with his family to live in parts of the property. Sometime later, he decided to construct some stores on the land and caused a building plan to be drawn and sought the necessary approvals from the District Assembly and relevant agencies before putting up the building. Plaintiffs aver that all utilities in the property are in John’s name and property rates in respect of the property were also paid by him or in his name. According to the Plaintiffs, John Oppong Awuah also permitted som e of his children to put up a two bedroom self contained house and single room self contained on portions of the land. that no family member ever confronted or challenged the late John Oppong Awuah over the use, control, occupation and ownership of the property. Plaintiffs aver that the defendants have been in occupation of some of the rooms without paying rent to anybody. Plaintiffs aver that they are in the process of gathering all the properties forming part of the estate of the late John Oppong Awuah and about distributing same to the intended beneficiaries. That they have decided that anyone in occupation of the property should give vacant possession of same before the distribution of the property and thus caused their lawyer to write to all occupants of the property including the defendants to yield vacant possession of the property to the plaintiffs to enable them carry out their functions as executors of the will. That the defendants upon receipt of the letter, have refused, failed and neglected to move out of the property unless compelled by this Honourable Court. The Plaintiffs further aver that the 3rd Defendant by custom is not a member of the maternal family of the deceased, John Oppong Awuah and therefore is not clothed with capacity to claim the property as family property. The Defendant resisted the claim of the Plaintiff and counter claimed for the following reliefs: i. Declaration of title and recovery of possession to property numbered KA20 Kukurantumi as a family property of Agona family of Kukurantumi. ii. Perpetual injunction restraining plaintiffs, their agents, assigns, privies, etc. from interfering with the said family property, i.e. House number KA20, Kukurantumi. iii. Punitive Cost. The Defendant contends that the disputed property belongs to their late uncle Oheneba Kwadwo Amoah and that when the Will of John Oppong Awuah was read and admitted to probate, 3rd defendant and one Akua Dora objected to the bequest of H/No. K20 Kukurantumi to the Plaintiffs because it is a family property. According to the defendants, the late John Oppong Awuah was too young in the 1950s to have even purchased a land and that it was when he succeeded their uncle Oheneba Kwadwo Amoah that John Oppong Awuah and sister Abena Animwaa used proceeds from the cutting down of their uncle’s cocoa farm to construct the house in dispute. that the daughter of the said Abena Animwaa, by name, Akua Dora and the grandmother of the 1st and 2nd Defendants lived in the property in dispute long before John Oppong Awuah retired and moved to also live in the property. The Defendants aver that John Oppong Awuah lived in the property in his capacity as the customary successor of their late uncle and not because it was his self acquired property. That due to the absence of John Oppong Awuah from Kukurantumi, it was his brother, Yaw Obour who used to take care of the uncles’s properties. The construction of the stores was done in John Oppong Awuah’s capacity as the customary successor and the construction also begun after the death of John Oppong Awuah. The Defendants aver that John Oppong Awuah held the property in trust for the family and that the 1st and 2nd Defendant do not pay rents because they are also members of the family. That upon their objection to the bequest of the subject property to the Plaintiffs, the 2nd Plaintiff wrote to the court requesting for the parties to settle amicably. That since the death of John Oppong Awuah, the family has been paying the property rate. In the course of these proceedings the only surviving plaintiff due to the demise of the 1st and 3rd Plaintiffs during the course of the trial failed to pursue their action despite several hearing notices being served on the 2nd Plaintiff and their lawyers. The court thus exercised it powers under Order 25 Rule 2(b) of the District Court Rules, 2009, C. I. 59 to dismiss the action of the Plaintiffs and proceeded to hear the Defendants on their counterclaim. For this reason, the issue for determination revolved around the counterclaim mounted by the defendants. The sole issue set down for trial is: i. whether or not the disputed property is the family property of the Agona family of Kukurantumi? ANALYSIS OF THE EVIDENCE AND EVALUATION OF THE LAW The proof required in a civil case such as this is proof by preponderance of probabilities. The Evidence Act, 1975 (NRCD 323), outlines this in sections 11(1) and 12. Section 11(1) of the Evidence Act, 1975 (NRCD 323) provides that, “for the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue” Section 12 of NRCD 323 further provides that proof must be by a preponderance of probability. “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.” Section 14 of the Evidence Act states that; “Except as otherwise provided by law, unless and until 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 he is asserting” The dictum of Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS [2003 – 2004] SCGLR 420 is very instructive that: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…” It is therefore the Plaintiff who generally must prove its case on the preponderance of probabilities. However, where the Defendant files a counterclaim, then the same burden of proof would be used in evaluating and assessing its case just as is used to evaluate or assess the case of the Plaintiff against the defendant. In this case, the defendant who assumed the position of a plaintiff on the counterclaim is to prove the case on preponderance of probabilities under section 11(4) of NRCD 323. Could the Defendant prove its case on a preponderance of probabilities? The 3rd Defendant testified on behalf of the defendants. His evidence via his witness statement and supplementary witness statement was basically a rehash of the statement of defence. He tendered into evidence receipts of property rates paid by the defendant family since the demise of John Oppong Awuah marked as exhibit 1, a copy of the caveat entered by the 3rd defendant and Dora Opoku Kodua in respect of the Will of the late John Oppong Awuah marked as exhibit 2 and a copy of the letter written by the 2nd Plaintiff addressed to the High Court Koforidua dated 27th September 2014 seeking for an amicable settlement of the disputed property between the caveators and the Plaintiff marked as Exhibit 3. Exhibit 1 series shows that the Defendant family have being paying property rates in respect of the disputed property since the demise of John Oppong Awuah. Exhibit 2 is a caveat filed by the 3rd Defendant and one other family member known as Dora Opoku Kodua. It is the case of the defendants that the Plaintiffs proceeded on their action only after the demise of this Dora Opoku Kodua. Exhibit 3 which is the letter written to the High Court, Koforidua by the 2nd Plaintiff shows that the 2nd Plaintiff sought for an amicable settlement of the dispute between this Dora Opoku Kodua who was referenced in Exhibit 3 as Akua Dora. Akua Dora lived in the disputed property during her lifetime. According to the defendants, her sons, the 1st and 2nd defendants live in the disputed property because they are members of the family who have every right to live in the family house. The actions of the 3rd defendant and late Akua Dora in filing a caveat to the Will of the late John Oppong Awuah seems to reinforce the claim of the defendants that the disputed property was not the self-acquired property of John Oppong Awuah. Moreso, seeing that there is no contrary evidence before this court to the 3rd Defendant’s claim that the disputed property belongs to the Agona family of Kukurantumi, I find and so hold that the defendants have succeeded in proving its counterclaim that the property in dispute is the Agona family of Kukurantumi’s family property. CONCLUSION The court summarizes its judgment in conclusion as follows: the defendants succeed on their counterclaim for declaration of title to the property in dispute, recovery of possession of the disputed property as well as an order of perpetual injunction to restrain the Plaintiffs and their agents and privies from claiming or interfering with defendants’ enjoyment of the property. I will award an amount of GHC 3,000.00 as costs against the plaintiffs in favour of the defendants. H/W JOSEPHINE SARFO (MRS) SGD 8