Fosu Vrs Gyan [2022] GHADC 93 (27 October 2022)

IN THE DISTRICT COURT HELD AT BEREKUM ON THURSDAY THE 27TH DAY OF OCTOBER, 2022 BEFORE H/H SIMON GAGA CIRCUIT JUDGE SITTING AS ADDITIONAL MAGISTRATE SUIT NO. A9/12/2019 YAW FOSU H/NO. I, 48, AMANGOASE, BEREKUM VRS: YAA GYAN H/NO. I. 59, AMANGOASE, BEREKUM J U D G E M E N T:- In this suit, the plaintiff claims against the defendant for the following reliefs:- “An order of the court to eject the defendant from one of the three rooms she is occupying in H/No. I. 59, Amangoase, Berekum which the plaintiff built on his late father Op. Kwasi Bour’s land during his lifetime which the defendant has forcibly opened the said room when the plaintiff had locked same and is occupying same”. APPOINTMENT OF ATTORNEYS Both parties, in the course of the trial, appointed attorneys to prosecute their respective cases for them. The defendant on the 2nd December, 2019 appointed one Kwadwo Charles of H/No. I. 59, Amangoase as her attorney. The plaintiff also on the 9th of June, 2020 appointed one James Owusu of House No. AT. 161, Berekum as his attorney. THE CASE OF THE PLAINTIFF The plaintiff, through his attorney in his evidence in chief before the court averred that he put up three bedrooms on the plot of House No. I. 59, Amangoase and that the plot belongs to his father Op. Kwasi Bour (now deceased). While his father was alive the father gave his blessings to the plaintiff before he put up the three bedrooms on the plot. By then the father had some rooms on the same land. According to the plaintiff/Attorney, the plaintiff used his own resources in putting up the said three rooms. After he completed the rooms, he gave one of the rooms to his brother Kwame Serebour, now deceased. He also allowed his half-brother Kwadwo Charles to occupy one of them after his father asked one Nana Akrasi Yeboah, to plead with plaintiff to allow the said Kwadwo Charles to be sleeping in one of the three rooms which he agreed to. Plaintiff averred that after the death of his younger brother Kwame Serebour, the plaintiff locked the room. However, the defendant on her own broke the lock of the room and took occupation of same without the plaintiff’s consent. According to the plaintiff all efforts to let the defendant vacate the room have proved futile. The plaintiff therefore prays the court to grant his reliefs as endorsed on the writ of summons. The plaintiff called one witness to buttress his claim. THE CASE OF THE DEFENDANT One Kwadwo Charles alias Charles Amankwaa testified as Lawful Attorney for the defendant. According to defendant, the disputed house No. I. 59, Amangoase, Berekum was constructed by their father Kwasi Obour aka Edward Effah, (now deceased). Her late father gifted the disputed house to her mother Yaa Bogyabi in the presence of witnesses and her mother provided “Aseda” in the form of a fowl and a bottle of schnapp and twenty five (25) pounds. She averred that after her mother provided äseda” and same was accepted by the donor, her mother and her children took possession of the disputed house. She further stated that the plaintiff herein took an action against the defendant at this court in respect of the same subject matter. According to the defendant the court on the 18th day of December, 2015 entered judgment in favour of the defendant. She rendered a copy of the said judgment which is marked as Exhibit 1. Defendant averred that his late father had three wives including the plaintiff’s mother before his death. She said that all the other wives of her father had their share of the estate of their late father and her mother was gifted the disputed house. The defendant further stated that before the plaintiff took this present action, the plaintiff and his other two brothers instituted a suit against the defendant, her mother Yaa Bogyabi, Yaa Bour (deceased) and Afia Nyamekye at the High Court, Sunyani. She said that the suit was later withdrawn for settlement out of court by Nana Akrasi Kyere Yeboah (Tumtumhene of Berekum) and settlement was later filed on 14th of November, 2016. She attached a copy of the writ of summons from the High Court and a copy of the settlement as Exhibits 2 and 3. She therefore prayed the court to dismiss the reliefs of the plaintiff. She did not call any witness but told the court that she was relying on her witness statement and the attached exhibits as her defence. ISSUES:- Flowing from the above evidence, the following issues, were set down for trial (a) Whether or not this District Court had given judgment in this case before. (b) Whether or not the parties entered into terms of settlement after the judgment. APPLICABLE LAW The general position of the law is that the Burden of proof is always on the party asserting the existence of a fact. For instance, in the case of Ababio V. Akwasi III {1994/95} GBR 775 it was held that a party whose pleadings raise an issue essential to the success of his case assumes the burden of proving such issue and the burden only shifts to the defendant when the plaintiff has adduced evidence to establish the claim. SEE also the case of Tetteh V. Hayford {2012) 1 SCGLR 417 -420 Also, sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) have provided that the standard of proof in all civil cases is proof by preponderance of probabilities. EVALUATION I have decided to evaluate the issues before me seriatim. ISSUE ONE On issue one, the main issue for one to ask is this, has there been an earlier judgment by this court in respect of the same subject matter: The plaintiff in his evidence in chief averred that with the consent of his father, Op. Kwasi Bour, he put up three bedrooms on House No. I 59, Amangoase, Berekum. This land or plot belongs to the plaintiff’s father Kwasi Bour (deceased). According to the plaintiff, he used his own resources in putting up the said three rooms on the said plot. He claimed that the defendant forcibly occupied one of the room without his consent. He therefore prayed the court to eject the defendant from the room. The defendant in her evidence averred that the plaintiff never put up three rooms on Plot No. I. 59 and that the house was put up by their father Kwasi Bour, now deceased. That after their father put up the house, he gifted same to her mother Yaa Bogyabi who provided an “aseda” in a form of a fowl, a bottle of schnapp and 25 pounds which Kwasi Bour accepted in the presence of witnesses. She further averred that the plaintiff sued her in this court and the court delivered judgment in favour of the defendant on the 18th day of December, 2015. She tendered the said judgment in evidence which is marked as Exhibit ‘1’. After I have closely examined the said judgment, it was delivered by the then sitting District Magistrate, H/W Narh Awah on 18th December, 2015. The court in its judgment stated that the three rooms where put up by the plaintiff. However, the exclusive development of the house by the plaintiff does not make him the absolute owner of the property. It went further to state that the plaintiff only has life interest in the property and upon by death, the property will remain family property. The judgment further stated that, since the defendant has been in one of the room for relatively a longer period, even though the plaintiff solely put up the three rooms on their father’s land, the plaintiff is restrained from ejecting the defendant from the room in house No. I. 59 Amangoase, Berekum. In fact, there has been a judgment in this same case. ISSUE TWO With regard to issue two, the question for one to ask is this, after the 18th December, 2015 judgment has there been any fallout from the judgment. The defendant in her evidence told the court in paragraph 8 of her witness statement as follows:- “That before the institution of the action against me by the plaintiff he and his two brothers instituted a suit against me, my mother Yaa Bogyabi, Yaa Bour (deceased) and Afia Nyamekye at the High Court, in Sunyani and the suit was later withdrawn for settlement out of court by Nana Akrasi Kyere Yeboah (Tuntumhene of Berekum) and settlement was later filed on 14th of November, 2016 a copy of the writ of summons from the High Court and a copy of the settlement are attached to this witness statement and marked as exhibits “2” and “3” respectively”. A closer look at Exhibit “2” indicates that the plaintiff filed the writ of summons at the High Court, Sunyani on the 21st October, 2016 with the following parties The reliefs were as follows:- The plaintiff’s claim against the defendants jointly and severally is for:- (a) A Declaration that Plot No. H/No. K. 76/1, alias H/No. K. 6/1, formerly H/No. I. 59, Berekum is the property of the plaintiffs and all their brothers and sisters being the children of their late father Edwin K. Effah alias Op. Kwasi Bour (deceased) of Berekum. (b) A. Declaration that it is unfair for the defendants to continue to occupy/maintain the structures in dispute while some of the children of the plaintiffs’ late father by other women have no place to occupy on the plot or in the house. (c) An order compelling the 1st defendant to move out of/leave the said H/No. K. 76/1, alias H/No. K. 6/1, Berekum formerly H/No. I. 59, Berekum and give vacant possession of the room she occupies therein to the plaintiffs for occupation by the 1st plaintiff who is the one entitled to occupy same. (d) An order compelling the 2nd, 3rd and 4th defendants to remove the unapproved dwarf bathroom structure and wooden kiosk respectively put up by them on the undeveloped portion of the disputed plot to give way to the construction of the approved bedrooms, toilet and bath structures thereon. (e) An order of perpetual injunction restraining the defendants from continuing to occupy/maintain the structures in dispute. The defendant further averred in her evidence that the case was withdrawn to be settled out of court. This leads us to Exhibit “3”. A closer look at Exhibit “3” indicates that it was filed on the 14th November, 2016 which is addressed to the High Court Registrar, Sunyani. The contents of the settlement is as follows:- REPORT OF SETTLEMENT IN RE: JOHN HARRISON OKRAH & OTHERS VRS: MADAM YAA BOGYABI & OTHERS. “I wish to report result of settlement on the above mentioned case. The above case has been settled between the mentioned persons i.e plaintiffs and the defendants in my presence.” “It was resolved that all the children should take any property they have developed on the said plot in dispute. There was no cost awarded against anybody at the settlement”. This terms of settlement was what the court adopted as consent judgment of the court. The defendant in her evidence before the court averred that the disputed house which includes the three room that the plaintiff is claiming was gifted to her mother, Yaa Bogyabi by her father, Kwasi Bour. This Yaa Bogyabi is the mother of the defendant and also the disputed house No. I. 59 in the District Court judgment is the same house which was in issue before the High Court. Since the parties agreed to settle the case out of court, in my view they have compromised the judgment of the District Court delivered on the 18th of December, 2018. It is trite law that when a judgment of a court is compromised by settlement, it means that the judgment is of no effect. It is rather the terms of settlement which binds the parties. See the case of OKANTEY V KWADDEY {1975} 1 GLR 193-201 CA. In this case, the court speaking through Archer (JA). Anin (JA) and Francios (JA) as they then were, state that a litigant in whose favour judgment was pronounced was at liberty not to pursue the judgment. After judgment had been delivered, it was often to a successful party to compromise his rights under the judgment and made whatever arrangements he wished with the unsuccessful party without the courts approval or blessings. In the instant case also, the District Court on 18th December, 2015 delivered judgement to the effect that even though the plaintiff put up the three rooms on house No. I. 59, which is their fathers land, the plaintiff has life interest in the property but does not own it absolutely. And also the plaintiff is restrained from ejecting the defendant from one of the three rooms since the defendant had stayed in it for several years. However by the content of the settlement which the defendant exhibited before this court, each of the children of the late Kwasi Bour is to take any property each one has put up on the disputed land which is house No. I. 59, Amangoase, Berekum. This therefore in any view means that the plaintiff is to take over the three rooms he put up on hose No. I. 59, Amangoase-Berekum as others are to take whatever property they put on the land. In conclusion therefore it is an established fact that there was a judgement in respect of the disputed house No. I. 59, and the same judgment has been compromised by the parties themselves. The defendant is therefore to vacate the room which is one of the three rooms the plaintiff put up as part of the settlement they filed at the High Court, Sunyani. I award cost of GH₵1,000.00 against the defendant. SGD. H/H SIMON GAGA CIRCUIT JUDGE (SITTING AS ADDITIONAL MAGISTRATE) PARTIES:- 1. PLAINTIFF/ ATTORNEY - PRESENT 2. DEFENDANT/ATTORNEY - PRESENT 11