Nyanor Vrs Poku [2022] GHADC 118 (4 November 2022)

IN THE DISTRICT MAGISTRATE COURT CENTRAL REGION, DIASO, HELD ON TUESDAY 4TH DAY OF NOVEMBER, 2022 BEFORE HIS WORSHIP BERNARD DEBRAH BINEY ESQ. - MAGISTRATE SUIT NO. A1/05/2022 KOFI NYANOR ..... PLAINTIFF (SUING FOR HIMSELF AND ON BEHALF OF ATTA PANIN AND ATTA KAKRA). H/NO. D 231, DOMINASE VRS KWAME POKU …. DEFENDANT OF H/NO. A.58 ASAWASE, KUMASI JUDGMENT The Plaintiff issued out writ of summons which was filed in the registry of this court on 20/05/2022 praying this honorable to grant the reliefs endorsed thereon. The reliefs contained in the writ of summons filed by the Plaintiff in this present action against the Defendants are as follows; (a) A declaration that the Plaintiff and his two sisters namely; Atta Panin and Atta Kakra are the sole owners of the remaining piece of building plot in issue, which said property is at Dunkwa-Dominase and is bounded by the properties of Yaa Duku, one Yaw, Mr. Alfred and the road from Dominase town to Offin river. (b) An order of perpetual injunction restraining the defendant herein, his agents, servants, etc from having anything to do with the said plot. The Defendant upon being served with the writ and on their first day of appearance in court and the court realizing that parties are brothers from the same parents, introduced the concept of Court Connected ADR to them and admonished them to take advantage of same and submit their dispute for amicable settlement. Parties reluctantly consented and availed themselves to ADR but expectedly, returned later with the report that settlement was unsuccessful and much as the court tried to dispose off their dispute summarily, it still did not work and same had to be taken through the process of trial. The court therefore in line with Order 18 of C. I. 59 ordered parties to file their written statements which was complied with, and Plaintiff filed his written statement of claim and served same on the Defendant who upon receipt of it filed his written statement of defence without a counterclaim. Parties were further ordered and they accordingly filed their witness statement and served copies on each other to set the stage for trial to start. At the close of pleadings, the court set the following issues for determination; 1. Whether or not plaintiff has capacity to mount this action. 2. Whether or not defendant dealings with the estate of their deceased father is lawful. 3. Whether or not plaintiff is entitled to his relief. The case of the Plaintiff is simply that he has filed this action for himself and on behalf of his two siblings, namely Atta Panin and Atta Kakra, and that he is the senior brother of the defendant with five other siblings all from one father late Opanin Kwadwo Nyanor. That their father died some 24 years ago and left his children some landed properties made up of the following; one store room at Doctor Mensah, Kumasi, one and half acre building plot at Dominase near Diaso, one bedroom house at Asawase, Kumasi, three acres of Cocoa farm at Womaso Offinagya near Bepotenten in Ashanti Region. According to the Plaintiff, in line with his late father’s wishes these properties came to the children. However, about one and half years ago, the Defendant together with Naana, Akosua Nimako and Kwaku Appiah connived together and sold the Kumasi store and one half of the Dominase plot for themselves only without the knowledge and consent of the Plaintiff and his two sisters Atta Panin and Atta Kakra. The defendant and his accomplices again sold three acres cocoa farm at Bepotenten to some small scale miners and kept the proceeds to themselves. As regards the one bedroom at Asawase, Kumasi, this same siblings have ganged up and rented it out and kept the proceeds to themselves. The Plaintiff stated that defendant and his three accomplices have virtually taken over the entire properties their late father left for them and they are now left with only one half of the Dominase building plot which makes plaintiff believes that defendant and his three accomplices have cheated plaintiff and his two sisters supra and therefore prays the court to order the remaining half building plot at Dominase to be for Plaintiff and his two sisters namely Atta Kakra and Atta Panyin. Plaintiff concluded his case by praying that Defendant and his agents, servants, assigns etc be perpetually injuncted from peaceful enjoyment of the land in this dispute and order the defendant to render accounts of the Bepotenten cocoa farm he and his accomplices sold to small scale miners. The Plaintiff did not call any witness. The following cross examination ensued from the Plaintiff’s testimony by the defendant on 7-9-22 at the end of his evidence in chief; Q. When our father died, he left behind two rooms at Asawase- Kumasi, which you took one and six of the siblings left took one? A. That is not true, but I built my own house, I cannot take one room and let six of you take one. Q. The cocoa farm at Anwomaso was gifted to our mother by our uncle? A. That is not correct, it was my grandfather who gifted the land to our mother and our father cultivated it for our mother. Q. Do you remember that when you brought me to court, you accused me of selling 7 acres of our mother’s cocoa farm for GHC 7 billion and have pocketed the proceeds? A. That is not correct, my relief is what is stated on the writ of summons. Q. Do you remember that at Dunkwa court, you accused me of selling your farm of 7 acres and I have collected and pocketed Ghc 7billion? A. That is not true, I have not taken you to any court at Dunkwa. Q. Do you remember that, you arrested my nephew Joe that he has threatened to kill you at Dunkwa, which arrest concerned the same farm? A. That case was about Joe and not you the Defendant. By Defendant; my lord that will be all for the Plaintiff. But strangely, the Defendant was so fixated on the cocoa farm at Anwomaso that he ended his cross examination and not even a single question was asked about the building plot at Dominase, which is the subject matter of plaintiff’s present action. In so doing, Defendant chose to be silent and ignored or rejected his right to cross examine plaintiff on his averments on the claims and same would be deemed to be his admission to the claims of the plaintiff. See the case of Ayiwa & ors v Badu & ors [1963] GLR 86- 101, in which the Supreme Court held in holding 3 that; “there is no rule of law providing that in no instance and under no circumstances whatsoever can the court accept the evidence of a single witness merely because his testimony was contradicted by the evidence of another witness. Circumstances here entitling the trial judge to accept the second plaintiff’s evidence include the fact she deposed to a number of occurrences in respect of which her testimony was not challenged by the defendant in cross examination and the fact that the first defendant substantially accepted her testimony impugning the accuracy of the mortgage deed”. Accordingly, on the authority of the above, the defendant’s failure to cross examine plaintiff on his testimony on the plot of land at Dominase would be taken by the court to be his admission of that piece of evidence from Plaintiff. The Defendant gave his evidence-in- chief and called two witnesses namely Samuel Kwaku Asamoah and Kwaku Donkor to end his case. In his testimony Defendant said that Plaintiff is his biological senior brother. That the ownership and possession of the land in dispute is in the hands of my sisters with me as the supervisor. That one of my nephew acts as caretaker to the farm for my sisters. That I supervise the activities of the caretaker to ensure that the farm management is in order. That the land in dispute was a gift from my late uncle Kojo Tikwa to my late mother (Akua Gyasiwa) in 1984. That the land in dispute is situated at Asuogya Anwomaso on Nana Akwamuhene of Ashanti Bekwai stool lands and is bounded by Akwasi Agyei (deceased), Mame Yaa Bode (deceased) Cecelia and Mensah respectively. That my late mother (Akua Gyasiwa) during her lifetime granted the land in dispute to one Sotoro (deceased) to cultivate cocoa on “Abunu” sharing basis. That my mother died about 18 years ago and that Sotoro had not completed cultivating the land in cocoa fully. That two years after the death of my mother I and my elder sister Adwoa Boatemaa went to Sotoro the “Abunu” tenant farmer for the sharing of the cocoa farm she cultivated on abunu basis. That Sotoro told us that she was not well and was going to her hometown for treatment but died in her hometown. That after the death of Sotoro myself, my three sisters and my brother Appiah Kusi went to Cecilia the daughter of Sotoro for the sharing of the cocoa farm. That we went there on several occasions but Cecilia did not allow us to share the cocoa farm on abunu basis and harvested the cocoa for 17 years without giving us our share. That I on behalf of my other siblings summoned Cecilia before the chief of Ashanti Bekwai. The matter went through full trial and Cecilia was found liable by the Chiefdom who sat on the case. That the chief of Ashanti Bekwai compelled Cecelia to share the cocoa farm with me and my siblings and same was done and I paid GHC1, 200.00 before the farm was shared. That in 2017 I handed over the entire cocoa farm to my sisters (Adwoa Boatemaa, Akosua Anima, and Ataa Akosua) for them to use the proceeds of the cocoa farm to put up the house for themselves. That my sisters have harvested the cocoa farm for about two years now. That three months ago the caretaker called Joe Asibey called me on phone that the plaintiff has come to inform him that he is the rightful owner of the cocoa farm. That I told the caretaker that I will be in Dominase the next day later that same day the caretaker called me again that the plaintiff has caused his arrest by the Police of Dunkwa Offin for the offence of threat of death. That I came to Dunkwa Offin the following day the caretaker was arrested and I stood as surety when he was granted bail and I told the Police that I gave the cocoa farm to the caretaker to harvest. That I was served with the writ of summons from this honorable court that same day after the caretaker was granted Police enquiry bail. That the matter before Police at Dunkwa Offin is still pending when I was served with the writ of summons. This is the end of Defendant’s testimony. It would be observed that while plaintiff’s relief is about half plot of their late father’s land at Denkyira- Dominase, defendant’s whole testimony as well as that of his two witnesses were all about the cocoa farm situated at Asuogya Anwomaso in Ashanti Bekwai. The following is an excerpt of relevant portion of Plaintiff’s cross examination on defendant’s evidence-in-chief on 9-09-22: Q. Do you remember that initially you sold our fathers store at Dr. Mensah, Kumasi and I sued you at Ashtown Court? A. That is not correct. Q. Do you remember Opanin Koo Pong the successor of our father came to intervene and took the matter to settle it out of court? A. That is not correct. Q. Do you remember that after that settlement, you rented our father’s house at Asawase? A. that is not correct, you brought me to court about cocoa farm. Q. Do you remember that you sold part of our father’s land at Dominase to one Mahama A. That is not correct. Q. Do you remember that you gave the remaining portion to Ama Ketewa and they are doing galamsey activities on the land? A. Yes it is true, Mahama was taking over the land, you saw it but never questioned him, so I came in to retrieve it from Mahama and gave it to Ama Ketewa to be a caretaker. Q. When the committee sat and Mahama was invited, he came to say that you sold the land to him. A. It is not true, Mahama is dead. Q. Mahama said he has built a house on the land because you sold it to him, A. It is not true, the committee came to share the land between me and Mahama. Q. You remember I came to meet you and Mahama at Kumasi, and when I enquired about the land Mahama said he has paid you money for the cost of the land? A. That is not true. Q. Do you remember that our father’s cocoa farm that was left for us at Anwomaso, you and Joe have mined gold on it? A. It is not true, that cocoa farm you are talking about is the same cocoa at Anwomaso but the gold was not mined from the cultivated land, it was only on a small portion that was not cultivated. Q. I am putting it to you that, you actually mined gold on all 3 acres of the land and not a small portion. A. That is not true, the person I mined the gold and realized Ghc 8,000.00 is still there. From the above cross examination, the defendant admitted and corroborated Plaintiff’s evidence that he defendant has virtually taken over the entire property of their father’s estate to the exclusion of Plaintiff and his two sisters. It is trite that when an adversary corroborate an issue advantageous to plaintiff’s case, as in the instant case, same is deemed to be a proof which relieves the burden on the claimant to further proof his assertions. Though defendant admitted dealing a lot with the estate of their late father, his pleadings and testimony in court does not disclose his source of authority, inspite of his admission that their parents are dead. In further admission of the fact that he has been dealing with the estate of their deceased father, defendant admitted in paragraphs 13, 14, 15, and16 and finally pleaded in paragraph 17 of his statement of defence filed on record, “17, That the above cited half plot is now vested in the bosom of our three sisters to use the proceed from the cocoa farm to construct a house on and possess same on their favor”. As to how and on which basis the plot and the cocoa farm of their deceased parent got to the three sisters to the exclusion of other siblings, the defendant did not indicate. Section 1 of Administration of Estates Act, 1961 (Act 63) provides; “(1) The movable and immovable property of a deceased person shall devolve on his representatives with effect from his death (2) in the absence of an executor the estate shall, until a personal representative is appointed follows: (a) if the entire estate devolves under customary law- in the successor; (b) in any other case- in the chief justice By the law quoted above, both movable and immovable property (estate) of the deceased parents of parties must necessarily vest in the customary successors of these parents until personal representatives are appointed. This is because parties themselves agree, that none of them has obtained letters of administration to administer the estates of neither of their parents. Defendant has also failed to indicate that he is the customary successor of any of his parents for the estate to devolve on him. The implications of defendant conduct would be addressed later in this judgment, but now the court will want to consider the issue of whether or not Plaintiff has the capacity to mount this action. It is trite that capacity is very fundamental in every action and it is that which empowers a plaintiff in an action to be heard by the court. An action may be dismissed without going into the merits of the case merely if plaintiff is unable to proof or establish his capacity to institute the action. Though Plaintiff’s capacity in the instant case, has not been challenged by the Defendant, but due to the circumstance of the case and the nature of the reliefs being sought, the court deems it appropriate to determine Plaintiffs capacity at this point before proceeding with the judgment. In the case of Evelyn Asiedu offei v. YawAsamoah & anor (Civil Appeal No. J4/64/2016) unreported delivered on 25th April, 2018, the court stated that “whether or not a party has capacity to institute action is a question of law that could be determined after factual evaluation of the evidence on record.as a legal question, it can be raised any time at all by any of the parties in litigation or even by the court suo motu when the circumstances call for its invocation” Therefore, from the above, plaintiff’s capacity in bringing this action could have been challenged by the Defendant if he had legal representation or if defendant is well vest in legal issues, but that notwithstanding, the court suo motu wish to raise it since capacity can be raised at any time of the proceedings or even on appeal. The parties are agreeable that though these parents of theirs died intestate, for some years now, none of them have applied and or obtained letters of administration to administer the estates left behind by any of the parent. The circumstances of the case is one that requires plaintiff’s capacity to be well established in order to invoke the jurisdiction of the court. In that regard, the Plaintiff may be said to lack the requisite capacity to litigate or institute this action, which is about the estates of his father Opanin Kwadwo Nyanor who passed away about 27 years ago, and the plaintiff has not obtained letters of administration or vesting assent about any of the properties left behind by their father. Plaintiff is again not the customary successor of his late father, so in what capacity is he bringing this action to be declared as owner of the building plot belonging to his dead father? Though the Defendant and the other siblings as well the plaintiff being children of the deceased are capable and qualify to be personal representative of their late father, the general rule was that an Administrator derived his authority entirely from the appointment of the court, a party who was entitled to administration could not do anything as an administrator before letters of administration were granted to him by the court, therefore all those who have been dealing with these property in the estate of their deceased parents may all be guilty for the offence of intermeddling for the same reason as stated above. See holding 3 and 4 of the decision in case of In re Apau (Deceased) Apau v. Ocansey 1993-94 1GLR 146-159. In the unreported case of Adisa Boya (substituted by Adama Mohammed) (substituted by Zenabu Mohammed Adama Mohammed) Mujeeb Civil Appeal No. J4/44/2017 14th February,2018 the Supreme Court per Gbadegbe JSC held that “ Proceeding further, we are of the view that by virtue of rules of intestacy contained in section4(1) (a) of the Intestate Succession Law, PNDC Law 111, following the death of the father of the defendants and their mother- the original 1st defendant, the property devolved upon the children and as such they had and immediate legal interest in the property that they are competent to defend and or sue in respect of and in any such case either the children acting together or any of them acting on behalf of others may seek and or have an order for declaration of title in their favor.” Therefore, since parties are all children of their deceased father and by the provisions of PNDCL 111, they are all beneficiaries to the estate of their father, it is my view that Plaintiff has capacity and can bring this action to protect his interest and the interest of his two sisters. In all civil cases, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof. The same principle applies if the Defendant makes counterclaim. The failure of the Defendant to plead such a vital piece of evidence to convince the court to tilt the scale of justice in his favor spells doom for the success of his case and would have a difficult task carrying the day in court. The Evidence Act, 1975 (NRCD 323) uses the expression “burden of persuasion” to describe the duty imposed on a party who makes an assertion to prove his case ,and in section 14 of the Evidence Act supra, that expression has been defined as relating to “Each fact the existence or non-existence of which is essential to the claim or defence he is asserting” The onus of proof in a civil case is that the Plaintiff is to prove his case on a balance of probabilities within the meaning of the law. As stated in this quotation by Ollenu in the case of Majolagbe V Larbi [1959] GLR 190 and re-echoed in the case of: Klah .v. Phoenix Insurance Company Ltd. [2012] 2 SGCLR page 1139 at page 1151; it was held that: “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to some 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” The Plaintiff in this case is therefore required to prove sufficiently his averment against the Defendant to succeed in this action on balance of probabilities. Parties are ad idem on the fact that the assets that has brought this instant dispute were acquired by their both parent who are all deceased. Section 26 of the Evidence Decree NRCD 323 OF 1975 provides; “except as otherwise provided by law, including a rule of equity, when a party has by his own statement, act, or omission intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest”. This position has clearly been stated by the Superior Courts in a plethora of cases and one of such cases is the case of Akotia Oworsika III (substituted by Laryea AyikuIII v. Nikoi Okai Amontia IV Substituted by Tafo Amon II) Chieftanicy Appeal No. 1/2003 delivered on 26th January, 2005 unreported where the Supreme Court per Dr. Twum JSC held that “In my view this type of proof is a salutary rule of evidence based on common sense and expediency. Where an adversary has admitted fact advantageous to your cause, what better evidence do you need to establish that fact than by relying on his own admission. This is really an example of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts which he had formerly asserted” Again, at page 376 of the book Practise & Procedure of Trial Courts & Tribunals In Ghana, authored by retired Supreme Court Judge His Lordship Justice S. A. Brobbey, he opined thus; “Where evidence of the opponent or opponent’s witness supports that of the party. In such a case the rule is that where the evidence of one party on an issue is corroborated by the evidence of the opponent or opponent’s witness, while that of the opponent on the same issue stands uncorroborated, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some reason (which must appear on the face of the record) the court finds the corroborated one incredible or impossible. This was first enunciated in the dictum of Ollenu J (as he then was) in Tsirifo V v Dua VIII [1959] GLR 63 a 64-65 which was approved in Osei Yaw v Domfeh [1965] GLR 418, SC.” In the instant case, the Defendant himself admitted under cross examination that he mined gold on a small portion of the cocoa farm at Anwomaso and realized Ghc 8000.00 and he gave the Plot in dispute to Ama Ketewa to be a caretaker and he together with his brother Appiah Kusi have vested the land in dispute in their three sisters. Defendant further said in his evidence-in-chief that “That in 2017 I handed over the entire cocoa farm to my sisters (Adwoa Boatemaa, Akosua Anima, and Ataa Akosua) for them to use the proceeds of the cocoa farm to put up the house for themselves”. This pieces of evidence from Defendant corroborates Plaintiff’s evidence or tends to show that the evidence led by the Plaintiff was true, therefore the Plaintiff’s testimony which has been corroborated by the Defendant ought to be accepted and preferred against the uncorroborated version of the Defendants as per the authority above cited. Order 31 3 of District Court Rules,2009 ( C. I.59) provides “ where a person who is not the executor of a will or appointed by the Court to administer the estate of a deceased person, takes possession of and administers or otherwise deals with the property of a deceased person, that person (a) Is subject to the same obligations and liabilities as an executor or an administrator, (b) Commits the offence of intermeddling, and (c) Is liable on summary conviction to a fine of not more than five hundred penalty units or twice the value of the estate intermeddled with or to imprisonment for a term more than two years or both. Accordingly, it is the view of this court that defendant who has neither been appointed as personal representative nor customary successor of Opanin Kojo Nyanor, cannot take over their late father’s estate, deal with it and vest same in some of the sisters to the exclusion of Plaintiff and his two sisters. That act of the Defendant is unlawful, offensive, has no legal basis and same is hereby declared null, void and of no legal effect. The plaintiff is therefore entitled to some relief, but, granting plaintiff’s reliefs as per the endorsement on the writ of summons, would mean that the court is giving tacit approval to the unlawful manner in which the estate of the parties father has been handled by the defendant and his accomplices, and therefore, taking a cue from the Supreme Court in the decision in the case of Gihoc Refrigeration & Household Products Ltd vrs Jean Hanna Assi, Civil Appeal N. J4/11/2005, and as trial magistrate properly seised with the action and the defence raised, and based on the pleadings and the circumstance of the case, and in the interest of justice, this court will like to amend the reliefs sought by the Plaintiff to make it more appropriate and grant same accordingly. On the basis of the above analysis and authorities, it is the view of this court that plaintiff has succeeded in proving that Defendant has hijacked or taken over the estate of his father to the exclusion of the Plaintiff and his two sisters. The court in the circumstances and as per section 4 and 5 of PNDC Law 111 of 1985 declare that as children of Opanin Kwadwo Nyanor, Plaintiff and his two sisters are beneficiaries to the estate of their deceased father and are entitled to their fair share of the said estate. The court as required by law would intervene and in line with sections 1and 2 of Administration of Estates Act, 1963(Act 63) order as follows; (1) All movable and immovable property of Opanin Kwadwo Nyanor (deceased) father of the parties be handed over to his customary successor forthwith. (2) Defendant is hereby ordered to render accounts of all proceeds he realized from the mining activities he undertook on the cocoa farm at Anwomaso, the harvesting of the cocoa farm since 2017, renting of the stores at Asawase, and selling of a portion of the building plot at Dominase to the customary successors. (3) Parties must meet with their siblings and elect one of their own and together with the respective customary successors of their parents, apply and obtain letters of administration within three months and thereafter distribute the property in the estate and vest same in all beneficiaries in accordance with PNDC Law 111. (4) Defendant, his agents, assigns, workmen, and all those claiming through defendant are hereby perpetually restrained from having anything to do with the estates of their deceased father until it is properly distributed and vested in the various beneficiaries. Cost of GHC 3000.00 is awarded in favor of the Plaintiff against the Defendant. ………………………… Bernard D. Biney (Magistrate)