Mavis Biribi Vrs Mohammed Gariba & Anor. [2022] GHACC 80 (29 December 2022)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON MONDAY, THE 29TH DAY OF DECEMBER 2022, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C11/13/22 MAVIS BIRIBI ---- PLAINTIFF VRS. MOHAMMED GARIBA ---- 1ST DEFENDANT SALIFU GARIBA ---- 2ND DEFENDANT PARTIES PRESENT MARTIN OWUSU, ESQ. HOLDING THE BRIEF OF EDWIN KUSI- APPIAH, ESQ. FOR THE PLAINTIFF ABSENT YAW PAINTSIL, ESQ. FOR THE DEFENDANTS PRESENT JUDGMENT FACTS On 17th February, 2022, the Plaintiff caused a writ of summons to issue against the defendants for the following reliefs; a. An eviction order directed at the Defendants to immediately vacate the property situate at Adjei Kojo and adjacent to the school for the blind in the Tema West Municipality. b. An order restraining the Defendants, their privies, assigns, agents and all persons claiming through them from further interfering with the Plaintiff’s enjoyment of the said property. c. Cost of legal fees. d. Any further order(s) as this Honourable Court may deem just. The defendants entered appearance on 7th April, 2022, and filed a statement of defence and counterclaim on 20th April, 2022, after the plaintiff had filed a motion on notice for Judgment in default of appearance on 9th March, 2022. Based on the appearance filed, on 11th April 2022, Counsel for the Plaintiff made an oral application to withdraw the motion for judgment in default of appearance and same was granted by the court. The material facts of the case which are not in dispute are that on 12th October, 2019, one Yakubu Gariba, died intestate at the 37 Military Hospital, Accra. The deceased was survived by a wife, the plaintiff herein, and four minor children aged between 8 years and one and a half years old at the time of instituting the action. Upon an application by the plaintiff herein and the customary successor of the deceased, the High Court, Tema, on 13th February, 2020, granted Letters of Administration to the plaintiff, in her capacity as the surviving spouse of the deceased and one Mr. Samuel Adorku in his capacity as the customary successor to administer the estate of the deceased. The plaintiff contends that the estate of her late husband has been equitably distributed in accordance with the Intestate Succession Law (1985), PNDCL 111. According to the plaintiff, the defendants who are the siblings of her late husband received their share of the estate i.e., a workshop at Tulaku, three (3) containers, a motorbike and two plots of land situate at Otsebleku. The plaintiff states that the deceased left one house and she, being the surviving spouse with four children, the house, subject matter of the instant suit located at Adjei Kojo, was granted to her and the four children. However, the defendants are in occupation of the said property and denying the named beneficiaries their right to peaceful enjoyment of the property. According to the plaintiff, all efforts to get the defendants to vacate the said property have proved futile. Consequently, On 21st November, 2021, the plaintiff caused her lawyers to write a Demand Notice to the defendants asking them to vacate the said property but they have blatantly refused to do so. According to the plaintiff, she offered to support the defendants with money to rent an apartment but they refused same. Till date, the defendants are still in occupation of the said property and unless compelled by this Honourable Court, the Defendants will continue to interfere with the plaintiff’s peaceful enjoyment of the property to which she is entitled to by law. The defendants on the other hand contend in their statement of defence that even though the estate of their late brother was equitably distributed among all the beneficiaries according to PNDCL 111, they have still not received some of the properties they are entitled to. According to them, they were given the workshop at Tulaku which comprises three (3) containers and documents covering the two plots of land at Otsebleku but the plaintiff has not shown them the land. The defendants state further that they are ready to vacate the said property once the plaintiff physically shows them the two plots of land at Otsebleku. The defendants state that they received the Demand Notice and the documents covering the land from counsel for the plaintiff but also insisted that their equitable share of the estate of their brother be given to them in full to enable them vacate but plaintiff is still holding on to the motor bike and unwilling to show them the land which is keeping them in occupation of the property. The defendant states that they are still in occupation because the plaintiff has not complied fully with the distribution of the estate. At the application for directions stage, the court set down the following issues for determination. LEGAL ISSUES 1. Whether or not the Plaintiff and the children of the late Yakubu Gariba are entitled to the house situated at Adjei Kojo adjacent to the School of the Blind. 2. Whether or not the plaintiff’s late husband’s properties were equitably distributed. 3. Whether or not the Plaintiff has the responsibility of taking the defendants to the land at Otsebleku after giving the defendants the documents to the said lands. 4. Whether or not the Plaintiff has handed over the motorbike to the defendants. 5. Any other issue(s) raised by the pleadings. BURDEN OF PROOF It is trite learning that in civil case, the party who asserts must prove that which he asserts on a preponderance of probabilities. In the case of Bisi v. Tabiri alias Asare [1987-88] 1 G. L. R. 360 SC held in holding 2 as follows: “The standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier’s belief in the preponderance of probability. But “probability” denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected.” Also, in the case of Ashalley Botwe Lands; Adjetey Agbosu & Others v. Kotey and Others (2003-2004) SCGLR 420, 464, per Brobbey JSC (as he then was) stated 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 evaluation of facts and evidence, the defendant must realise that it cannot be based on nothing. If the defendant desires the 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. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant. In the light of the statutory provisions, literally relying on the common law principle that the defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve the best interest of the litigant even if he is a defendant.” ANALYSIS ISSUE 1: Whether or not the Plaintiff and the children of the late Yakubu Gariba are entitled to the house situated at Adjei Kojo adjacent to the School of the Blind. Article 22(1) of the 1992 Constitution provides that: “A spouse shall not be deprived a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.” In the instant case, the deceased died intestate and as such, the law applicable to the devolution of his estate is the Intestate Succession Act 1985, PNDC Law 111. Section 4(a) of the PNDC Law 111 provides that: “Despite this Act, where the estate includes only one house, the surviving spouse or the child or both of them is or are entitled to that house and where it devolves to both the spouse and the child, they shall hold the house as tenants in common.” The purpose of PNDCL 111 in succinctly stated in the Memorandum to the Act which is to cater for spouses and children of a deceased intestate who were hitherto afforded little or no protection upon the death intestate of a spouse or parent. The Memorandum also states that: “The growing importance of the nuclear family brings with it its own logic of mora justice. Simply put, this argus that a surviving spouse be compensated for his or her services to the deceased spouse; that a spouse is more likely to look after the children on the death of the other partner than anybody else; and that expectation of the spouses are probably best satisfied by giving the property of one to the other on the former’s death.” The plaintiff in this case testified that she is the surviving spouse of the late Yakubu Gariba who died intestate on 12th October, 2019 at the 37 Military Hospital, Accra. According to her, her deceased husband was survived by four minor children namely; Elikem Nana Yaw Gariba, 8 years, Louisa Afia Dola Gariba, aged 6 years, Elorm Yao Gariba, aged 4 years and Gabriel Yola Kofi Gariba, 1 year and 6 months old. In support, she tendered in evidence the birth certificates of the four children admitted and marked as Exhibit “A” series. The four birth certificates bear the names of the plaintiff herein and the deceased as the parents of the four children. There is also no challenge that the plaintiff was legally married to the deceased at the time of his death. This fact is corroborated by Exhibit “B”, the Letters of Administration granted by the High Court Tema, to the plaintiff in her capacity as the widow of the deceased and one Samuel Adorku, the customary successor, evidencing the fact that indeed the plaintiff is a surviving spouse of the deceased. The plaintiff further testified that after the High Court granted the Letters of Administration to them, the estate was equitably distributed. According to her testimony, the house, the subject matter of the suit located at Adjei Kojo being the only house left by the deceased, was given to her as the surviving spouse and the four (4) children. However, the defendants who are siblings of the deceased are currently in occupation of the said house thereby denying them of the right to peaceful enjoyment of the property as beneficial owners. According to her she has made strenuous efforts for the defendants to vacate the said property yet the efforts have yielded no positive results. She states further that the property in dispute which is being occupied by the defendants also serves as a commercial property which is meant to be given out for rent to cater for the educational needs of the surviving children of the deceased who are all minor and of school going age. It is noteworthy that, the defendants who filed a defence consistently failed to file witness statements when ordered by the court to do so and as such the defence was struck out and by implication, they did not lead evidence at the trial. The essence of the cross-examination conducted by the defendants of the plaintiff is that they are prepared to leave the house once the plaintiff hands over a motorbike they received and physically takes them to the land they received when the estate was distributed, if not, they will not give vacant possession of the property in dispute. In my view, section 4 of PNDCL 111 which grants the only house left by a deceased to the surviving spouse and children does not make it contingent upon the other beneficiaries having received their share of the estate. Thus, it will be a travesty of justice to allow the defendants who are brothers of the deceased to continue depriving the surviving spouse and children of what they are legally entitled to. In fact, it is to deal with such situations where a surviving spouse and children are deprived of a share in the estate that the law was enacted. It is desirable that the family of the deceased continue to perform their duties under customary law to support the maintenance and education of their deceased member but the buck stops with the surviving spouse to cater for the needs of the four children. The court will therefore not countenance any attempt to deprive them of what they are legally entitled to. I therefore hold that the deceased having left behind only one house located at Adjei Kojo, the Plaintiff and the four children of the deceased are entitled to the house under PNDCL Law 111. ISSUE 2: Whether or not the plaintiff’s late husband’s properties were equitably distributed. In dealing with the issue of whether or not the estate of a deceased person has been equitably distributed, regard must be given to the position of the law on the distribution of such properties. The provisions in the PNDCL 111 are clear on how the property should be distributed. Sections 3 and 4 provides for what should go to the surviving spouse and children exclusively and the law further provides the fractions for distributing the residue of the estate after taking out the household chattels and the only house which devolves exclusively on the surviving spouse and children. The law provides that three-sixteenth of the residue shall devolve on the surviving spouse, nine- sixteenth to his child, one-eight to his surviving parent and one-eight will devolve on the persons who are entitled according to customary law applicable to the disposition of the property of the deceased. Again, the rationale for giving the surviving spouse a greater part of the residue as stated in the Memorandum to the Act is that it is expected that a greater part of the responsibility for the maintenance, care and education of the surviving spouse and children which was hitherto the responsibility of the customary successor in his representative capacity will now be shifted to the wife and children. In the instant case, apart from the property in dispute which is the only house of the deceased which by law belongs to the surviving spouse and the children, there is no evidence on the extent of the residue of the estate. All that the plaintiff testified to was that the defendants, as siblings of the deceased, received a workshop at Tulaku, three (3) containers, a motorbike and two (2) plots of land situate at Otsebleku which the defendants have since taken possession of. According to the plaintiff, the defendants also received an amount of One Thousand and Five Hundred Ghana Cedis (GH₵1,500) being rent collected from persons occupying the three containers they received. The defendants are also in control of the workshop of their late brother and all proceeds emanating from the workshop go to them. In the instant case, the defendants have not raised any issue about the equitable distribution of the property. Technically speaking, what the defendants, as siblings are entitled to is the part of the portion that devolves on the customary family represented by the customary successor. The parties not having led evidence on the extent of the residue and how it was shared; the court is disabled from making a firm determination on the fairness or otherwise of the distribution of the residue of the estate of the deceased. Moreover, that issue is not germane to the court’s determination on property in issue since that being the only house belongs the plaintiff and the children together with the household chattels. The defendants have also not challenged how equitable the distribution was and have not led evidence to the contrary. ISSUE 3: Whether or not the Plaintiff has the responsibility of taking the defendants to the land at Otsebleku after giving the defendants the documents to the said lands. The plaintiff testified that when her late husband purchased the two (2) plots of land at Otsebleku, he went to the land with the 1st defendant to mount poles on the land. Also, her late husband periodically went unto the land to weed same with the defendants. The defendants therefore know the exact location of the land in dispute. She therefore maintains that she has discharged her obligations by handing over documents covering the land to the defendants. Under cross-examination of the plaintiff by the 2nd defendant, the following ensued; Q: I am putting it to you that we do not have an issue all we want is for you to hand over the land you said you have given and the said motorbike. A: My Lord, I did exactly what the 2nd defendant said. I have handed over the documents covering the land and the documents covering the motorbike to them. Q: I am putting it to you that the said documents covering the land and the motorbike you gave it but we do not have possession of the land? A: I stated earlier that I do not know where the land is located. The one my deceased husband showed the land is Mohammed. 1st defendant knows where the land is located. Q: I am putting it to you, you do not have the land so how do we get possession. A: My Lord, I have given him the documents and the location of the land is in the document. So long as they have possession of the documents, they can locate the land. Counsel for the Plaintiff in his written address cites a legion of authorities to conclude that the defendants having admitted that the plaintiff gave them the documents covering the land and the motorbike, she has performed her duty as an administrator and is not obliged to take the defendants to the physical location of the land particularly when the defendants are very much aware of where the land is situated. Counsel further refers the court to section 108 and section 69 of the Administration of Estate Act 1961, (Act 63). Section 96 of Act 63 imposes an obligation on Administrators of an estate to prepare vesting assents in respect of the immovable properties of the deceased distributed. In the case of Yaw v. Apenteng and Anor [2011] GHASC 33, the Supreme Court underscored the need for Administrators of an Estate to prepare a formal vesting assent transferring the ownership of the property to the beneficiaries. The Supreme Court after referencing sections 1(1), 2(1) and 96(1) of Act 63 held that: “It is therefore necessary that before carrying out the intentions of the testator, the will must first be admitted to probate and thereafter a beneficiary of any real estate under the will must have a vesting assent executed in his favour by the executors to whom probate has been granted. Until this is done, any purported sale of the real estate will be of no legal consequence and the purchaser thereof will not have a valid title.” Thus, the Plaintiff being one of the administrators of the estate jointly with the customary successor of the deceased, have an obligation to prepare a vesting assent vesting in the beneficiaries the real estate distributed. The administrators having distributed the estate of the deceased which the manner of distribution is not challenged and having handed over documents to the land which has the location of the said property indicated, which is a way of giving them possession, I cannot think of any rule of law that requires the plaintiff to physically take them to the land when the evidence shows that the deceased was visiting the site with the 1st defendant but the plaintiff never visited the land. Moreover, the existence or non-existence of the two plots of land does not affect the right of the plaintiff and the children to the house in issue neither is their enjoyment of the property contingent upon the defendants having received their share of the estate. The administrators must however comply with the statutory provisions to execute a vesting assent in respect of the immovable properties distributed. ISSUE 4: Whether or not the Plaintiff has handed over the motorbike to the defendants. On the evidence, the defendants having admitted that the plaintiff gave them the documents covering the motorbike, this issue does not fall for discussion. CONCLUSION In conclusion, I hold that the plaintiff proved her claim on a balance of probabilities that the property in dispute devolves on her and the four children of the deceased in accordance with the PNDCL 111. I accordingly enter judgment for the plaintiff in the following terms; 1. I hereby order for the immediate eviction of the defendants from the property situate at Adjei Kojo and adjacent to the School for the Blind in the Tema West Municipality, which the plaintiff and her four minor children hold as tenants in common. 2. The Defendants, their privies, assigns, agents and all persons claiming through them are restrained from further interfering with the Plaintiff’s enjoyment of the said property. 3. Cost of Four Thousand Ghana Cedis against the defendants. 4. The Plaintiff and the co-administrator of the estate shall prepare vesting assent to vest the properties distributed in the beneficiaries within one (1) month from the date of this judgment. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) (SGD) 13