JANET HOUGHMAN ADDY VRS JOHN KOJO BOAFO (C11/141/22) [2022] GHACC 328 (16 November 2022)

CORAM: HER HONOUR BERTHA ANIAGYEI (MS) SITTING AT THE CIRCUIT COURT ‘B’ OF GHANA HELD AT TEMA ON WEDNESDAY, 16TH NOVEMBER, 2022 SUIT NO. C11/141/22 JANET HOUGHMAN ADDY VRS JOHN KOJO BOAFO BEING SUED AS NEXT OF KIN AND CUSTOMARY SUCCESSOR OF NANA AKWASI ASIEDU BOAFO A. K. A EUGENE ASIEDU BOAFO --------------------------------------------------------------------------------------------------------------------- --------------------------------------------------- JUDGMENT -------------------------------------------------------------------------------------------------------------------- The plaintiff took out this writ of summons on the 26th day of May, 2022 seeking the reliefs of; (a) A declaration that the plaintiff has acquired the interest of the deceased in residential house number 104 Apple Avenue, Community 10, Tema which is also known as property number, RP/10/53/6, Tema with building thereon. (b) An order that residential house number 104 Apple Avenue, Community 10, Tema which is also known as property number, RP/10/53/6, Tema with building thereon, be transferred by TDC Company Ltd into the name of the plaintiff. (c) Any other reliefs that the court may deem fit under the circumstances. The plaintiff in an accompanying statement of claim, contended that the late Nana Akwasi Asiedu Boafo also known as Eugene Asiedu Boafo dies on the 9th day of May, 2021. That he was the legal and beneficial owner of property situate and, lying and Page 1 of 10 consisted of residential house number 104 Apple Avenue, Community 10, Tema which is also known as property number, RP/10/53/6, Tema. That the deceased sold his interest in the said property to her on the 29th day of January, 2021 for the sum of two hundred and forty thousand United States Dollars (USD$ 240,000). That after she made full payment, the deceased put her into immediate possession of the said property and she has occupied same without any form of interference. That the deceased authorized the TDC to effect a formal transfer of the property into her name and the process of changing ownership was set in motion by the TDC. However, the deceased passed on at the final stage of the process where she and the deceased had to sign to the transfer declaration form. That as a result of the demise, the TDC has failed or refused to effect the transfer into her name unless the administrators of the deceased so appointed by a court of competent jurisdiction come to sign the final document or a court order directs them to so do. That the deceased died intestate and attempts by his children who live in the USA have been stalled with a caveat. That the defendant is the elder brother and customary successor of the deceased. The defendant was served with the writ of summons and statement of claim and he entered appearance. Defendant did not file a statement of defence. Plaintiff filed an application for interlocutory judgment in default of defence and same was granted on the 13th day of July, 2022. The defendant was present in court and indicated that he was Page 2 of 10 not contesting the application. The matter was set down for trial for the plaintiff to prove her case. CASE OF PLAINTIFF In her evidence in chief, the plaintiff tendered in evidence a certificate of cause of death, coroners inquest and obituary of the brother of defendant; the late Nana Akwasi Asiedu. Same were admitted into evidence and marked as EXHIBIT A series. She testified that the deceased brother of defendant was the owner of house number 104, Apple Avenue, Community 10 Tema. She tendered in evidence EXHIBIT B series an annual rent demand notice, statement of account and receipt of payment of ground rent as proof of ownership. She continued to say that per a sale and purchase agreement dated the 29th day of January, 2021, the deceased sold his interest in the property to her for the sum of two hundred and forty thousand United States Dollars (USD$ 240,000). She tendered in evidence a copy of the sale and purchase agreement as EXHIBIT C. That she made full payment by two instalments via cheques she issued to the deceased. That the first cheque was issued before they entered into the sale and purchase agreement. It is dated the 8th of December, 2020 and was for the sum of three hundred and eighty five thousand Ghana cedis (Ghs 385,000). The second cheque dated the 8th of December, 2020 was for the sum of three hundred thousand Ghana cedis (Ghs 300,000) which she handed over to the deceased on the 29th day of January, 2021 pursuant to the terms of their agreement. She tendered copies of the said cheques in evidence as EXHIBIT D series. Page 3 of 10 Plaintiff continued that after the cheques cleared through the deceased’s bank, he issued her with receipts of payment dated the 8th and 29th of December, 2021 respectively. She tendered in copies of same as EXHIBIT E series. That the deceased immediately put her into possession and she has since been in possession without any interference, objections or challenge from anyone including the defendant and his family. Further that on the 1st of February, 2021, the deceased wrote a letter and executed a statutory declaration dated the 3rd of February, 2021 authorizing TDC Development Company Ltd. to cause a formal transfer of the property into her name. She tendered copies in evidence as EXHIBIT F series. That she also wrote an acceptance letter and executed a statutory declaration dated the 1st and 3rd of February, 2021 to TDC Development Company Ltd for the transfer of the property into her name. She tendered copies in evidence as EXHIBIT G series. That she presented these documents to the TDC and the process of transfer was commenced. That she and the deceased went for a first interview where they submitted their passport pictures and signed the necessary documents for the process to begin. That the deceased made himself available at all stages of the process until it reached the final stage which is for the parties to sign their final signatures on the transfer declaration form. That the deceased passed on at this stage on the 9th day of May, 2021. She tendered in evidence a copy of the transfer declaration form as EXHIBIT H. That as a result of the demise of the deceased, TDC has failed or refused to effect the transfer into her name until the administrators of the estate of the deceased sign the final document or a court order is obtained compelling them to so so. Page 4 of 10 That the deceased died intestate and attempts by his children who live in the USA to obtain letter of administration have been stalled by a caveat. That the defendant is the elder brother and family appointed customary successor of the deceased. She prayed the court to grant the reliefs as endorsed on her writ of summons and statement of claim. CONSIDERATION BY COURT The learned Appau JSC, in delivering the decision of the Supreme Court held in Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. K. Mbeah & 2 Others, Civil Appeal No. J4/61/2017, dated 11th July 2018, S. C. (Unreported) as follows: “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - {See sections 11 (4) and 12 of the Evidence Act, 1975, Act 323 and the decision of this Court in Adwubeng v. Domfeh [1996-97] SCGLR 660 at p. 662”. The requirements of what would constitute cogent and credible evidence that would meet the test of a balance of probabilities is succinctly contained in the case of Emmanuel Osei Amoako v. Standford Edward Osei [2016] DLSC 2830. Here again, the erudite Appau JSC speaking for the Supreme Court held: “It is trite learning that a bare assertion by a party of his pleadings in the witness box without more is no proof. Proof in law has been authoritatively defined as the establishment of facts by proper legal means. As the celebrated Ollenu, J (as he then was) stated in his judgment in the case of Khoury and Another v Richter, which he delivered on 8th December 1958 (unreported), on the question of proof, which he repeated in the case of Majolagbe v Larbi & Anor [1959] GLR 190 at 192; “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 Page 5 of 10 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 …”. See also the cases of International Rom Ltd. v. Vodafone Ghana Ltd. & Another [2016] DLSC 2791. The defendant in this case, entered appearance to the writ of summons and statement of claim but failed to file a defence. When the motion for judgment in default of defence was served on him, he did not file any process in opposition to the motion. Indeed, he was present in court when the motion was moved. He was also present in court when the plaintiff testified and he indicated that he had no questions to ask her by way of cross examination. The Court of Appeal also in the case of Ghana Consolidated Diamonds Ltd. v. Tantuo [2001-2002] 2 GLR 150 held at holding 4:“A party who was aware of the hearing of a case but chose to stay away out of his own decision could not, if the judgment went against him complain that he was not given a hearing”. See also the case of Accra Hearts of Oak Sporting Club v. Ghana Football Association [1982-83] GLR 111 at page 117. Again, it is elementary that where a party is given an opportunity to challenge his opponent and he fails to do so, he is deemed to have admitted the claims of the opponent. His silence or failure to cross examine amounts to an admission of all that the plaintiff said. In the case of In Re Presidential Election Petition: Akufo-Addo & 2 Ors. (No. 4) v. Mahama & 2 Ors. (No. 4) [2013] SCGLR (Special Edition) 73, Anin Yeboah JSC (as he then was) held at page 425: “I accept the proposition of law that when evidence led against a party is unchallenged under cross-examination, the court is bound to accept that evidence”. See the cases of Takoradi Flour Mills v. Samir Paris [2005-2006] SCGLR 882 at page 890 and Agnes Tuffour alias Serwaa v. Akwasi Adu & Yaa Konadu [2018] DLCA 4432. Page 6 of 10 Plaintiff relied on documentary evidence to prove her claim. The law is settled that where documentary evidence exists, the courts prefer same over inconsistent oral testimony. Pwamang JSC held in the case of Nana Asiamah Aboagye v. Abusuapanyin Kwaku Apau Asiam [2018] DLSC 2486 “… the settled principle of the law of evidence is that where oral evidence conflicts with documentary evidence which is authentic, then the documentary evidence ought to be preferred over and above the oral evidence.” See also the cases Ofori Agyekum v. Madam Akua Bio [2016] DLSC 2858 per Benin JSC and Agnes Tuffour alias Serwaa v. Akwasi Adu & Yaa Konadu [2018] DLCA 4432 per Dzamefe JA. The plaintiff’s EXHIBIT C is a sale and purchase agreement dated the 29th day of January, 2021. It is between Eugene Asiedu Boafo of H/NO 104, Apple Avenue,(also identified as RP/10/53/6 ) Community 10, Tema and the plaintiff herein. The said Eugene Asiedu Boafo is the vendor and the plaintiff herein is the purchaser. The vendor is the legal and beneficial owner of house no 102, Apple Avenue, community 10, Tema and he agreed to sell the said house to the plaintiff subject to the payment of USD$ 240,000. The sale price was to be paid in two instalments before the 31st day of January, 2021. EXHIBIT D series are Absa bank cheques dated the 3rd of December, 2020 and 8th December 2020. The cheques were drawn out in the name of Nana Asiedu Boafo. EXHIBIT E series are receipts of payment. In same, Eugene Asiedu Boafo indicates that he has received an amount of one hundred and twenty thousand United States Dollars from the plaintiff herein as part payment on one hand and as full part payment on the other hand in respect of the purchase of house number 104, Apple Avenue, Community 10, Tema. They are dated the 8th of December, 2020 and 29th day of January, 2021. Page 7 of 10 EXHIBIT G series are G series are statutory declarations by Eugene Asiedu Boafo and the plaintiff herein. In EXHIBIT G, Eugene Asiedu Boafo declared that he had divested his interest in the property to the plaintiff herein. He gave his consent and authority to the TDC Development Company Ltd to transfer the property into the name of the plaintiff. In EXHIBIT G1, the plaintiff accepted for TDC to transfer the said property into her name. To prove that the property belonged to the said Eugene Boafo Asiedu and that he had a valid lease with the TDC Development Company Ltd. the plaintiff tendered in evidence EXHIBIT B series. EXHIBIT B and B1 are an annual rent demand notice and statement of account dated 20th of February, 2020 and an official receipt dated the 27th of February, 2020. The customer code and name in EXHIBIT B and B 2J0311 and Eugene Asiedu Boafo. The property number is RP/10/53/6 and the right of entry date is 15th August, 1986 for an area measuring 0.36 acers. The rent demanded was six hundred and seventy eight Ghana cedis, eighty four pesewas (Ghs 678.84). Per EXHIBIT B1, the amount demanded, less eighty four pesewas was paid to the TDC Development Company Ltd and a receipt issued in acknowledgement of the payment as ground rent for balance for 2020. It is evident without a shroud of controversy, from an examination of EXHIBIT C through to EXHIBIT G series, that Eugene Boafo Asiedu sometimes referred to Nana Akwasi Asiedu had transferred his legal and beneficial interest in house no 104, Apple Avenue, Community 10, Tema to the plaintiff herein for valuable consideration as at the 29th day of January, 2021. He had not only transferred his interest, but notified his lessors; being TDC Development Company Ltd of the fact that he had divested himself Page 8 of 10 of his interest in the property and so they should transfer same into the name of the plaintiff. EXHIBIT J is an unsigned TDC Development Company Limited Transfer Declaration Form. It indicates the voluntary vacation of Tenancy by Eugene Asedu Boafo of the said property on the grounds that he has relinquished his interest to the plaintiff. It is an unsigned document. According to the plaintiff, it was at this stage that the vendor died. She tendered in evidence EXHIBIT A series as an obituary, burial permit issued by the District court, Tema and cause of death of the said vendor. The preparation of EXHIBIT J is evidence that the deceased and the plaintiff had gone through TDC’s own procedures for the transfer of an interest in a residential property of which TDC were the head lessors. The deceased died two days after the TDC had prepared that document for execution. I have no cause to doubt the evidence of the plaintiff that the TDC has since refused and or failed to permit the execution of EXHIBIT J. As a public entity, the TDC had a duty to ensure that the right persons appear before it for the execution of legally binding documents. Since the vendor was dead, TDC could not continue with the process until depending on whether the deceased executed a will or not, the executors or personal representatives of the deceased who had been so appointed by a Court appeared to continue with the process. The plaintiff on the other hand, cannot be expected to wait in perpetuity until such is done when she has complied with all the terms of the sale and purchase agreement. To the extent that she had a valid agreement with the deceased for the sale of the property and the deceased during his lifetime acknowledged that the plaintiff had performed her Page 9 of 10 obligations under the contract and he on the other hand instructed the TDC Development Company Ltd to transfer his interest to the plaintiff, I hereby find that the plaintiff is entitled to her claims. Judgment is hereby entered for the plaintiff on her reliefs ‘a’ and ‘b’ as endorsed on her writ of summons. She is hereby declared as having acquired the interest of the late Eugene Boafo Asiedu also known as Nana Akwasi Asiedu Boafo in residential house number 104 Apple Avenue, Community 10, Tema which is also known as property number, RP/10/53/6, Tema with building thereon. The Tema Development Company Ltd is hereby ordered to transfer the interest of the late Eugene Boafo Asiedu also known as Nana Akwasi Asiedu Boafo into the name of the plaintiff. (SGD) H/H BERTHA ANIAGYEI (MS) (CIRCUIT COURT JUDGE) JAMES ENU FOR THE PLAINTIFF PRESENT Page 10 of 10