Oyibi and Others Vrs Borteley and Others [2022] GHAHC 40 (12 December 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WINNEBA, HELD ON MONDAY THE 12TH DAY OF DECEMBER, 2022, BEFORE HIS LORDSHIP, JUSTICE ABOAGYE TANDOH, HIGH COURT JUDGE. SUIT NO. E11/004/2022 DATE: 12 DECEMBER, 2022 1. ABENA OYIBI ---- PLAINTIFFS/APPELANTS 2. AMA ADOMA 3. EBUS. KWESI BORSTIE VRS. 1. ELIZABETH BORTELEY ---- DEFENDANTS/RESPONDENTS 2. KWAME KWANSAH 3. KWEKU KAKRA JUDGMENT The Plaintiffs/Appellants on the 25th day of August, 2021 filed a Notice of Appeal against the Judgment of the District Court, Winneba, in the Central Region delivered on the 19th day of June 2021 in favour of the Defendants/Respondents against the Plaintiffs/Appellants. For ease of reference the Plaintiffs/Appellants will also be referred to, as the Appellants whilst the Defendants/Respondents will also be referred to, as the Respondents. The Appellants’ action against the Respondents at the court below and per the Writ, was for the following reliefs: (1) An order of the court for recovery of Possession and restraining the Defendants/Squatters from interfering with the Property of the Plaintiffs Plot 295, Victoria Road. (2) Order of the court for ejection of the Defendants /squatters from the premises (3) Cost against Defendants/Squatters. The Defendants on the other hand denied the Plaintiffs claim in their Statement of Defence and counter – claimed thus: (a) Defendants of title to the subject-matter property. (b) Recovery of possession. THE BRIEF FACTS OF THE CASE It is the case of the Plaintiffs that the property in dispute was previously numbered as House No. 295/12 but now re-numbered House No. JO16/12 Victoria Road, Winneba, belonged to their grandfather Opanyin Kwaku Bainyi which was given to their grandmother before the death of their grandfather. Thereafter, the Plaintiffs averred that, their grandmother in turn handed over the property to her children with the 2nd Plaintiff being the eldest. The Plaintiffs also stated that the 3rd Plaintiff has been their Head of Family for the past ten years. Plaintiffs further said they are in possession of the document covering the land in dispute and that the 1st and 2nd Plaintiffs have been paying the property rates in respect of the property. According to the Plaintiffs, it was the mother of one Kow Amoquandoh who came to plead for him to be given a place to stay because he had then been ejected from home, as a result of which she gave him one of the vacant room to stay. The Plaintiffs further contended that, the 2nd Plaintiff travelled to Takoradi and upon her return, she realized that the said Kow Amoquandoh had brought in the 2nd Defendant to live with him. The Plaintiffs stated that when the 2nd Plaintiff enquired about the presence of the 2nd Defendant in the house, the said Kow Amoquandoh informed her that they were making arrangements to relocate but have failed to relocate despite several demands so to do. The Defendants denied the assertion made by the Plaintiffs and contended in their statement of defence that they are the bona fide owners in possession of the subject- matter land whilst the Plaintiffs are rather the squatters, having being on the subject- matter land at the will of the Defendants and ought to be ejected having challenged the Defendants who are the rightful owners of the subject-matter. According to the Defendants, the maternal grandfather of the 2nd Plaintiff committed adultery and was, in consequence, fined by a court of competent jurisdiction and unable to pay, he sold his house No. 281/12 at Victoria Road, Winneba to one Ibrahim Braimah Wangara. The Defendants contended that it was when the 2nd Plaintiff lived in Takoradi that her grandfather’s house was sold. According to the Defendants, when the 2nd Plaintiff and her daughter (1st Plaintiff) came to Winneba, they rented a room in the property in dispute and was atoning tenancy to one Kojo Mensah , the successor to one Kojo Afer the owner of the property in dispute and have lived in the said room to date. At the end of the trial, the court below dismissed the Plaintiffs’ action, and in granting the counterclaim of the Defendants concluded thus. It will therefore not be proper for the court to make a declaration of title in favour of the Defendants. Rather this court declares proprietary rights over the disputed property in favour of the Twidan family of the Defendants. So long as the Plaintiffs deny any ties with that family, they could be treated as strangers on the disputed property. It is however expected of the Plaintiffs especially 3rd Plaintiff to use his leadership skills to broker unity among the parties as far as the disputed property is concerned. The Appellants, dissatisfied with the Judgment of the court below, have mounted this appeal. THE GROUND OF APPEALS The grounds of appeal filed per page 147 of the record of appeal were as follows: i. The judgment was against the weight of evidence ii. Further grounds of Appeal would be filed upon receipt of the record of proceedings. The above grounds of appeal notwithstanding, the Appellants only argued on ground (i) and failed to file any additional grounds as earlier indicated. I will therefore proceed to make a determination as to whether or not the judgment of the court below was against the weight of the evidence adduced. This has become necessary because the Appellants have put in doubt the evaluation of the evidence by the trial court in arriving at its conclusion in entering judgment in favour of the Respondents. It is also trite that an Appeal is by way of re-hearing. This principle was reaffirmed by the Supreme Court speaking through Appau JSC in the case of Evelyn Asiedu Offei v Yaw Asamoah Odeshe Kwaku Agyapong (2018) 122 G. M. J 186 S. C stated thus: “… An appeal is by way of rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court was against the weight of evidence. In such a case, it is the duty of the appellate court to analyze the entire record of appeal, take into account the testimonies…it is immaterial whether the appeal is a second one from the Court of Appeal to the Supreme Court.” SEE : TUAKWA VRS. BOSOM (2001-2002) SCGLR 61. As rightly argued on behalf of the Appellants, the Appellants and Plaintiffs therein at the court below had the burden to establish their case by the preponderance of the probabilities as provided under section 11(4), 12 and 14 of the Evidence Act, 1975 NRCD 323. Counsel for the Appellant further referred to the cases of : 1. GIHOC REFRIGERATION & HOUSEHOLD VRS. JEAN HANNA ASSI [2005 – 2006] SCGLR 458. 2. BARIMA GYAMFI VRS. AMA BADU [ 1963] 2 GLR 596. 3. ARYEH &AKAKPO VRS. AYAN IDDRISU [2010] SCGLR 891 AT 901. SEE ALSO : 1. FOSUA & ADU – POKU VRS. DUFIE ( DECEASED) & ADU POKU – MENSAH [ 2009] SCGLR 310 @ 325 – 327. 2. SARKODIE VRS. FKA COMPANY LTD. [2009} SCGLR 65. 3. ZABRAMA VRS. SEGBEDZI[1991] 2 GLR 223. Also, the Respondents who were then Defendants at the trial court, counter – claimed and had the same burden to establish their counter – claim on the balance of the probabilities because the failure of the Plaintiffs to establish their case would not automatically lead to grant of their counter – claim. See:BANK OF WEST AFRICA LTD. VRS. ACKUN (1963) 1 GLR 176. In the evidence of the 1st and 2nd Plaintiffs per pages 19-21 of the record of appeal as well as that of the 3rd Plaintiff per pages 58 – 59 of the record of appeal respectively, they averred that the land in dispute belonged to their maternal grandfather Opanyin Kweku Bainyi and tendered in evidence a ‘Property Demand Notice’ for the period 1st January – 31st December 2017 per page 22 of the record of appeal and ‘Demand Note’ for the period 1st January – 31st December 2006 issued in the name of Opanyin Kweku Bainyi to prove that the property belonged to Opanyin Kweku Bainyi. The Plaintiffs also tendered in evidence their attempt to eject the 2nd Defendant when the matter went to the District Offices of Rent control and the Commissioner Human Rights and Administrative Justice (CHRAJ) per pages 26 and 29 of the appeal records respectively. The Plaintiffs also tendered in evidence a site plan per page 37 of the appeal records. The Defendants denied the assertion by the Plaintiffs and stated in their evidence that Opanyin Kojo Afer is the owner of the property in dispute and not Panyin Kweku Bainyin as claimed by the Plaintiffs. In fact these piece of evidence was also corroborated by the witnesses of the Defendants ( DW1, DW1 and DW3). The Defendants speaking through the evidence of the 3rd Defendants further stated that all the parties in this suit were initially part of the Twidan family or Ebusua but the third Plaintiff chose to secede to form Twidan Ebusua No.2. The Defendants further averred that the said Opanyin Kweku Bainyi only pleaded with Opanyin Kojo Afer to erect a building on the land in issue which was granted because they all belong to the Twidan family or clan. The said building of Opanyin Kweku Bainyi collapsed according to the Defendants. The 3rd Defendant further stated in his evidence that when the building erected by Opanyin Kweku Bainyi collapsed, it was the family members of the Defendants including 2nd Defendant, Kow Amanquandoh, Kow Joshua, Kojo Mensah who removed the debris, and sold some of them without the Plaintiffs involvement neither did they lay claim to ownership. The Defendants then tendered in evidence Exhibit ‘1’, a Statutory Declaration affirming the property belonging to Kojo Mensah through Opanyin Kojo Afer. From the evidence on record, I find that, the authenticity of the alleged payment of property rate by the Plaintiffs in a serious doubt. This is because ‘Demand Notice’ for the payment of property rate is not in itself a receipt or evidence of payment. Again, whilst the demand for property rate for 2017 was captured as ‘Property Rate Demand Notice’ per page 22 of the appeal records, that of 2006 per page 23 of the appeal records was captured as ‘ Demand Note’. Also whilst the name Kweku Benyah was written on the 2017 demand notice for the payment of property rate , that of 2006 was S. E. K. Benyah. Though it is possible to make mistakes in spelling out names of people, I find the ‘property rate demand notice’ or ‘demand note’ as captured, as a creation of the Plaintiffs and not emanating from the Effutu Municipal Assembly but was created to strengthen their case. This position is supported by the fact that receipts for the payment of property rates before 2006 and also before 2017, were never provided or submitted. See ACKAH VRS. PERGAH TRANSPORT LTD & OTHERS [2010] SCGLR 728 @ 737 – 739. I also agree with the finding of the trial court that the purported alteration of Exhibit 1 with respect to the name of Kojo Mensah was not sufficient enough to doubt its authenticity. A careful look at the name would reveal that Kojo is clearly written and if anything, any attempt to alter would have been from Kojo Afer to Kojo Mensah and not from Kweku Bainyi to Kojo Mensah as claimed by the Plaintiffs per pages 77 to 79 of the appeal records. I further find that the property erected by the said Opanyin Kweku Bainyi completely collapsed and the land reverted to the family of Opanyin Afer. Also, the fact that the parties belong to the same family is supported by the evidence on record per pages 101 – 104 and 144 – 145. In fact the 3rd Plaintiff who is now the Ebusuapayin (Head of Family) of the Plaintiffs was also once the Ebusuapanyin of both the Plaintiffs and the Defendants until the 3rd Plaintiff seceded to form his own family of which the Plaintiffs are now members. Also, the leaning of the Plaintiffs to Opanyin Kweku Bainyi as owner of the property in dispute did not itself help matters for the parties as a family as this was manifested in the judgment of the trial court per page 145 of the record. Unfortunately, the evidence of the Plaintiffs including that of the 3rd Plaintiff (Ebusapanyin of the Plaintiffs) crumbled as their own account of being Supi Kwaama Twidan family of Opanyin Kweku Bainyi to lay claim to the property was scanty. The 3rd Plaintiff and Ebusuapanyin could not even mention the names of the parents of Opanyin Kweku Bainyi whose property he is claiming as Ebusuapanyin. I further find that contrary to the view agued on behalf of the Plaintiffs that the best way of testing traditional history was to examine same in the light of more recent facts, that the evidence of the Defendants was cogent, supported by evidence and exhibits and not solely traditional. Especially when the reliance of the payment of property rates were found to be a creation of the Plaintiffs to satisfy the view expressed in the case of Adjeibi – Kojo Bonsie and Another [1957] 3 WAR 25, and same is rejected. Indeed, the complaints to the District offices of the Rent Control and the Commissioner Human Rights and Administrative Justice (CHRAJ) by the Plaintiffs were calculated to meet the threshold of the case of Adjeibi – Kojo (SUPRA) but failed. SEE ALSO: IN RE TAHYEN & ASAAGO STOOLS; KUMANINI II (SUBSTITUTED) OPPON VRS. ANIN [1998 – 99] SCGLR so quoted on behalf of the Appellant. From the foregoing I agree with the view of the trial court that Supi Kwaama Twidan Family is not a different entity from the Defendants family. I find from the evidence on record that the secession of the 3rd Plaintiff to form his own family and lay claim to the property in issue was for his own interest and not that of the entire family which the 3rd Plaintiff and the other Plaintiffs belong. Counsel on behalf of the Appellants raised a fundamental issue of capacity of the Defendants to institute a counter – claim that needs to be addressed. In the case of FOSUA & ADU – POKU VRS. DUFIE ( DECEASED) & ADU POKU – MENSAH [2009] SCGLR 310 - 344, the Supreme Court at page 337 of the report stressed on the importance of the capacity of a party to initiate an action and the need for the trial court to consider same, and stated thus: “It is therefore unfortunate the trial judge failed to consider the issue of capacity anywhere in his entire judgment. When he considered whether or not the properties in dispute were for the family, he should have gone forward to also consider if they are family properties; then whether or not the Plaintiffs were clothed with the requisite capacity to sue in respect thereof. That was irrespective of whether or not the parties made that an issue for trial. Capacity to sue was a matter of law and could be raised at any stage of the proceedings even on appeal….” See:MANU VRS. INSIAH [2005 – 2005] SCGLR 25 – 31 It was argued on behalf of the Appellants that the Defendants were not the head of family neither did they identified themselves as members who had brought the action under the exception in the case of KWAN VRS. NYIENI & ANOTHER [1959] GLR 67 - 74, and was therefore not proper for the court to make a declaration in their favour when they did not have the capacity to merit same. For the avoidance of doubt, it is important to examine the principle in the case of KWAN VRS. NYIENI as well as the exceptions. The general principle in KWAN VRS. NYIENI is that it is the head of family who disposes or alienates family lands and other properties and has the capacity to sue and be sued on behalf of the family property. The exceptions in the KWAN VRS. NYIENI case was spelt out in holding 2 at page 69 of the report when the court held thus; (2) To this general rule there are exceptions in certain special circumstances, such as: (i) Where family property is in danger of being lost to the family, and it is shown that the head, either out of personal interest or otherwise, will not make a move to save or preserve it; or (ii) Where, owing to a division in the family, the head and some of the principal members will not take any steps; or (iii) Where the head and the principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole. In any such special circumstances the Courts will entertain an action by any member of the family, either upon proof that he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property….” The principle as established in the KWAN VRS. NYIENI case is not exhaustive and any member of the family given the special circumstance of the matter may sue to recover a family property left to decay. In the instant Appeal before this court, the counter – claim squarely falls within the exceptions in the Kwan v Nyieni case. Indeed, if you have a family member such as the 3rd Plaintiff who was once the head of their family gone to join forces with others to appropriate the family property at their exclusion, then rightly, they have the capacity to redeem the family property. Indeed, redeeming a family property does not in itself confer unto you solely the automatic right to title or ownership to the property in any form especially when the objective was to maintain the family character of the property as in the instant Appeal before this court. Therefore anybody appointed as the head of family operates as the caretaker of the property on behalf of the family. Even in exceptional circumstances that the family seek to gift the property, it must expressly be done with the consent of all the beneficiaries whose interest in the property is undisputable. SEE: MENSAH VRS. LARTEY [1963] 2 GLR 92-97 PER ADUMUA- BOSSMAN, BLAY AND AKUFO-ADDO JJ. S. C. The trial court rightly made the finding that the redeemed property was not for their personal interest but in the interest of the Defendants family which they belong. In the case of JASS CO. LTD. & ANOR [2009] SCGLR 265 AT 275 the Supreme Court speaking through DOTSE JSC stated thus:. “ Findings made by a trial Judge who heard and observed the witness when they testified before him or her are generally not departed from by the appellate court save where those findings are clearly unsupportable, having regard to the evidence on record; or as has been stated by the Supreme Court in the case of Achoro v Akanfela [1996-97] SCGLR 209, holding (2) where the principle was reemphasize as follows: ‘(2) in an appeal against findings of fact to a second appellate Court like [the Supreme Court], where the lower appellate Court had occurred in the findings of the trial court, especially in a dispute, the subject-matter of which was peculiarly within the bosom of the two lower courts or tribunals, this court would not interfere with the concurrent findings of the two lower courts unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice was apparent in the way in which the [page276] lower tribunal had dealt with the facts. It must be established, e.g., that the lower courts had clearly erred in the face of a crucial documentary evidence, or that a principle of evidence had not been properly applied; or that the findings was so based on erroneous proposition of the law that proposition be corrected, the findings would disappear …. It must be demonstrated that the judgments of the courts below were clearly wrong”. … we are of the firm opinion that an appellant court should be slow in dismissing findings and conclusions reached by trial court based on the observations made during the trial of the case as a result of the advantages enjoyed in seeing, hearing and observing the demeanor of the witnesses by the trial court. Any attempt by an appellate court such as ours to come to different conclusions on the facts, and not on the law, must be based on strong evidence which is apparent from the appeal record. See: GREGORY VRS. TANDOH IV & HANSON (2010) SCGLR 971 @ 985-987. From the foregoing and in the instant Appeal, I agree with the finding of the trial court with respect to the counter claim of the Defendants as their evidence is more probable than that of the Plaintiffs. The property therefore belongs to the family of the Defendants as rightly decided by the court below. As a result, the Defendants and members of their family are owners of the land in dispute and are entitled to recover possession of same. Upon consideration of the record of appeal , the totality of the evidence led, the law and legal submission filed for and on behalf of the Appellants the judgment of the Court below is consistent with the evidence on record and the finding thereof. I will therefore not interfere with the judgment of the Court below and same is affirmed, and accordingly, the appeal is dismissed. Cost of Ten Thousand Ghana Cedis (GH¢10,000.00) is awarded against the Appellants/Plaintiffs in favour of the Defendants/Respondents. (SGD) JUSTICE ABOAGYE TANDOH HIGH COURT JUDGE. COUNSEL MR. JOHN KWAKU OPPONG Esq, HOLDI NG THE BRIEF OF MR. B. B. SIMPSON Esq, FOR THE PLAINTIFFS/APPLICANTS PRESENT. MR. THEOPHILUS ADEPOJU Esq, FOR THE DEFENDANTS/RESPONDENTS PRESENT. /MK/ 15