ADOMA & ANOR V MENSAH (C1/240/21) [2024] GHAHC 418 (4 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ASHANTI REGION KUMASI HELD ON FRIDAY THE 4TH DAY OF DECEMBER, 2024 BEFORE HER LADYSHIP HANNAH TAYLOR (MRS) J. SUIT NO:C1/240/21 1. ABENA ADOMA 2. ABENA ATAA H/NO. FEI, FEYIASE – KUMASI VRS. RICHARD OWUSU MENSAH ASUYEBOAH - KUMASI … PLAINTIFFS … DEFENDANT _____________________________________________________ JUDGMENT _____________________________________________________ The plaintiffs suing for themselves and their siblings, seek for the following reliefs against the defendant, a businessman: - a) A declaration that the property in dispute and any development thereon belongs to plaintiff and their siblings as beneficiaries of the last Will and testament of Opanin Joseph Charles Owusu. b) A declaration that the defendant has spent and exceeded the period agreed for him to remain and benefit from the property in issue having done so for more than 20 years. c) An order of the court compelling defendant to yield vacant possession of the property in dispute to the plaintiffs and siblings. Cost of the litigation including solicitors’ fees. Any order(s) the honourable Court deems fit in the circumstance. d) e) PLAINTIFFS’ CASE The plaintiffs lay a claim of title to the vacant land in front of House H16 North Suntreso through a devise made by their deceased father in his Will dated 2nd February 1999. The names of the beneficiary children with plaintiffs inclusive were stated as Kofi Acheampong, Akwasi Owusu, Kwabena Owusu, Adwoa Akyaa, Kwadwo Owusu, Kofi Owusu, Abena Ataa Kakra, Abena Adoma and Abena Ataa. However, sometime after their father’s death, they realized that defendant had trespassed unto their share of their father’s estate and commenced development of same. Upon confronting him and demanding that he cease further development, defendant indicated that their sibling Kofi Acheampong gave him the permission to build stores on the land and to possess same for twenty (20) years. Initially, they objected to the permission given to the defendant by their brother as he could not unilaterally deal with the land in issue. However, upon the pleas of the defendant who had invested heavily in the development, they out of genuine human empathy agreed to allow the defendant to build the stores, remain on the property for twenty years and thereafter same revert to the plaintiffs. The defendant having completed the construction of the stores and has been on the land since 1999, twenty (20) years have lapsed but, the defendant has failed to yield vacant possession of the property to them, despite several demands made to him. The plaintiffs therefore, instituted the present action to protect the property and for the defendant to yield vacant possession. DEFENDANT’S CASE The defendant admits that the land in front of the Plot H16 North Suntreso is for the plaintiffs and their siblings as same was devised to them in their father’s Will. However, defendant contends that it was when the plaintiffs’ father Opanin Joseph Charles Owusu was alive, that Kofi Acheampong intimated to him the desire to develop the bare land infront of Plot No. H16 North Suntreso. Opanin Joseph Charles Owusu, having confirmed Kofi Acheampong’s claim, he commenced development of the land after Opanin Joseph Charles Owusu accepted to lease out the land to him. However, following his pleas after the death of Opanin Joseph Charles Owusu, a new agreement was drawn up between the defendant and all beneficiaries and executed by the parties. This time round the defendant paid an extra sum of 10 million old Ghana cedis to the plaintiffs and their siblings and defendant’s stay on the land extended from 20 years to 30 years. For this reason, another level was to be added to the storey building. Therefore, going by the new agreement, the plaintiffs and other beneficiaries of the property have taken several monies from him even assuring him of selling the property to him but never accounted for same. Defendant then counterclaimed against the plaintiffs for: - a) An order for the enforcement of agreement made between the plaintiffs and the defendant dated 4th of February, 2024. b) An order for injunction restraining the plaintiffs, their agents, workmen, servants and assigns from in any manner interfering with the stores situated in front of property number H16 North Suntreso until the expiration of the time period stated in the said agreement. REPLY, DEFENCE TO COUNTERCLAIM AND SETTLED ISSUES FOR TRIAL The plaintiffs joined issues with the defendant on his statement of defence and denied his counterclaim. The settled issues for determination are as follows: - I) Whether or not the defendant has exceeded the 20 years period agreed with the plaintiffs in respect of the property in dispute. II) Whether or not the plaintiffs as beneficiaries of the property in dispute executed any 30 years tenancy in favour of the defendant. III) Whether or not the plaintiffs are entitled to recovery of the property in dispute. IV) Any other issue(s) raised by the pleadings. BURDEN OF PROOF It is trite learning that a person who alleges the existence of a fact bears the burden to lead the requisite credible evidence in proving same before the court. Thus, under section 10(1) of the Evidence Act, 1975 (NRCD 323) it is provided that a party who alleges the existence of a fact bears the burden of persuasion. The section 10(1) of NRCD 323 states as follows: - “For the purposes of this Act the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.” Section 11 (1) and (4) of NRCD 323 also provide; - 11. Burden of producing evidence (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against him. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind can conclude that the existence of the fact was more probable than its non-existence” Thus, the onus is on the party making assertions which have been denied to discharge the burdens of persuasion and of producing evidence. In DON ACKAH V. PERGAH TRANSPORT [2011] 31 GMJ 174, [2010] SCGLR 728 at 736, ADINYIRA JSC therefore held: - “It is a basic principle of law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. It is trite that matters that are capable of proof must be proved by sufficient evidence so that on all the evidence a reasonable mind can conclude that the existence of the fact is more probable than its non-existence.” In this case, where the defendant has counterclaimed, he bears the same burden as the plaintiff. For a counterclaim is an independent action. In OSEI V. KORANG [2013] 58 GMJ [2013-2014] SCGLR 221, it was espoused that “a counterclaimant is as good as a plaintiff in respect of a property which she or he assays to make his or her own. Also, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he or she is to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof required under sections 11 and 14 of NRCD 323 of the Evidence Act, 1975”. DETERMINATION OF ISSUES WHETHER OR NOT THE DEFENDANT HAS EXCEEDED THE 20 YEARS PERIOD AGREED WITH THE PLAINTIFFS IN RESPECT OF THE PROPERTY IN DISPUTE From the plaintiffs’ pleaded case and evidence, they have been consistent that though they were not part of the initial arrangement allowing the defendant to develop the disputed land, they allowed the arrangement to stand. That the initial arrangement was for 20 years, both parties do not contest same. In 1st plaintiff’s evidence as per her witness statement in paragraph 9 she reiterated that “herself and siblings agreed to allow the defendant to build the stores and remain thereon for the said 20 years as he had agreed with the said Acheampong after which the property and everything thereon shall revert to the plaintiffs” In paragraph 10 of the witness statement, 1st plaintiff testified: - “That based on the said agreement aforementioned defendant completed the stores and has possessed and benefited from same since 1999”. Under cross examination, the 1st plaintiff also testified as follows: - Q. I am putting it to you that the defendant completed the construction of the property located on the land that belonged to your late father in 1999. A. Q. A. It is not in 1999, I have documents in respect of that. And he moved into the premises in the year 2000. It is not correct. The document tendered by the 1st plaintiff in making out a case on the arrangement between the defendant and his sibling Kofi Acheampong is the Exhibit “B”. The Exhibit “B” reads; - 4. That for his consideration, and upon the completion of the said project, the contractor shall absolutely be entitled to the free and undisturbed use of five of the said store rooms for a period of TWENTY YEARS certain beginning from the month next after that in which the project was thus completed”. From the defendant’s testimony per the paragraph 5 of his witness statement, he testified that “Kofi Acheampong on the instructions of his father gave me an agreement to build, operate and transfer a two-storey building 20 years starting from 1999.” Where the agreement was for twenty years, then calculating from 1999, the agreement ought to lapse by the year 2019. Per the terms, as found in Exhibit “B” the agreement shall be renewed for a further period of ten years upon terms agreed upon by the parties. By the plaintiffs’ account they orally agreed to 20 years presence on the land by the defendant. On such terms, the 20 years have lapsed and one can conclude that defendant has exceeded the 20-year agreement. This conclusion is found in defendant’s answer under cross examination when he answered; - Q. The agreement with Kofi Acheampong was done in 1997 and its terms were to be effective from 1999. Not so. A. That was so. If that agreement was not cancelled. Q. And in that agreement with Kofi Acheampong you were to develop the property in issue and hold same for 20 years beginning from 1999. Not so. A. If the agreement was not cancelled Q. So I am right to say that per the agreement with Kofi Owusu Acheampong your occupation of the property in issue has long expired in 2019. A. No. It would have been so if it was not cancelled. So, was the 20-year period replaced with a 30-year period of occupation? The search for an answer takes me to the next issue. WHETHER THE PLAINTIFFS AS BENEFICIARIES OF THE PROPERTY EXECUTED ANY 30 YEARS TENANCY IN FAVOUR OF THE DEFENDANT? The plaintiffs have denied the existence of a 30-year agreement between them and the defendant in respect of the disputed property. With this denial the defendant who asserted that there is a 30-year agreement testified that when he started developing the property, he overheard some women arguing with Kofi Acheampong who introduced themselves as Kofi Acheampong’s siblings who wanted their share of the sale money. After listening to them, they concluded that a new agreement be drawn up between the beneficiaries and himself. An additional 10 million cedis was to be paid to plaintiffs and the siblings of which he also demanded that the period of occupation be extended to 30 years. Consequently, he caused his lawyer to prepare the agreement. However, before he could pay the 10 million cedis, the father of the plaintiffs died. The plaintiffs approached him demanding part payment for the funeral preparation of their father. He paid 2.6 million cedis to them and after the funeral the plaintiffs came to him for a further part payment of the 10 million cedis because they incurred some expenses and he paid the family 1.4 million cedis. In 2004, an agreement was entered into with Elizabeth Nyarko, the widow of Opanin Joseph Charles Owusu, S. K. Oppong, customary successor of the deceased and Adwoa Akyaa as representative of the siblings. The agreement is per the Exhibit “1”. From Exhibit “1”, the agreement now offered the defendant a 30 years absolute use of the commercial premises commencing, 1st January, 2000. From the Exhibit “1” the persons who executed the document as landlords are Elizabeth Nyarko and S. K. Oppong with Adwoa Achaah signing as a witness to the landlords. Clearly, plaintiffs did not execute the Exhibit “1” as landlords, neither did Kofi Acheampong sign Exhibit “1”. In fact, defendant under cross examination admitted that Kofi Acheampong did not sign the Exhibit “1” when he answered as follows: - Q. A. And your alleged “Exhibit “1” the said Kofi Owusu Acheampong never signed it. It is correct. At the time he had travelled to London but he was aware of it. Kofi Acheampong testified as DW1. He gave his full name as Joseph Kofi Owusu Acheampong. In the paragraphs 7 to 16 of his witness statement, he testified as follows: - “7. After the agreement was concluded, I informed my siblings but they disagreed with the terms of the agreement. So, they approached the defendant to renegotiate the price with him. 8. My siblings decided to increase the price to 10 million old Ghana cedis which I informed the defendant. 9. The defendant agreed to pay the 10 million old Ghana cedis proposed by my siblings on condition that the 20 years tenor be extended to 30 years. 10. My siblings including the plaintiffs and defendant agreed that a new agreement of 30 years for an extra amount of 10 million old Ghana cedis was to be executed by the parties. 11. Before the new agreement was prepared, my father Opanin Joseph Charles Owusu died and at that time I was preparing to leave the country. 12. We needed some money for the funeral preparations amongst others so the defendant made several payments to some of the family members including me for the funeral expenses. 13. After the funeral I was leaving the country for greener pastures so I advised the defendant to make sure a written agreement was given to him by my siblings before he pays the outstanding balance for the land. 14. The defendant made his lawyer prepare a Development agreement which was signed by my mother Elizabeth Nyarko, my late father’s customary successor (S. K. Oppong) and Adwoa Akyaa who represented all the siblings (Attached is a copy of the indenture). 15. The extension of the duration of the tenancy from 20 years to 30 years was indicated to all the siblings and Adwoa Akyaa (Achaa) received the share of the siblings on their behalf. 16. It is never correct that the agreement was for a period of 20 years.” Under cross examination, DW1 testified that he executed the 20-year transaction with the defendant but knows nothing about the 30-year agreement as he had travelled. However, he was emphatic that there was an extension of the agreement to 30 years as per the paragraph 15 of his witness statement when he answered Q. A. Q. I am putting it to you that paragraph 15 of your evidence before this court is not correct. My statement in paragraph 15 is true. Will you be surprised to know that contrary to paragraph 8 of your evidence, the defendant alleges that you never informed him about the ten million increase in price. A. I was not the one who informed the defendant about the ten million increase. It was my siblings and the defendant who negotiated that price. From the defendant’s case he states that the earlier agreement is no longer applicable to the development he has carried out on the land but it is the Exhibit “1” which is of binding effect. This is to suggest that there is a discharge of the Exhibit “B”. It is trite that the obligations that come about by an agreement may be varied or terminated by agreement. The Court in FISH & MEAT CO. LTD. V ICHNUSA LTD [1963] 1 GLR 314, AT 317, noted that, it is a general rule of law that one of the models in which an existing contract may be discharged is by the same process and in the same form as that in which it was made, that is by mutual consent of the parties. In the FISH & MEAT CASE, Prempeh J, persuasively stressed that an existing contract can only be discharged by mutual agreement and expressly by the parties by another contract or agreement in which clear intention to discharge the previous contract is shown. Under cross examination of the defendant, the subject of cancellation of the earlier agreement was focused on with the following questions; - Q. You admit that you had an agreement with one Kofi Acheampong relative to the property in dispute. A. That is so, but I have an explanation. The agreement I had with Kofi Acheampong initially was later cancelled. Q. And that agreement with Kofi Owusu Acheampong was written. Not so. A. That is so. Q. So that any cancellation of that agreement with Kofi Owusu Acheampong will equally be in writing. A. It is not correct. In the case of BOYE V. ACHIMOTA BREWERY CO. LTD [1982 – 1983] GLR 955 AT 960 Hayfron J also explained that: - “Of course, the parties to a contract may effect a variation of the contract by modifying or altering its terms by mutual agreement. when this happens the contract arrived at is the original contract with the variation or modification written in place of the term that is varied or modified. There is no new contract but the original one.” It must be noted that it is not only by a written agreement that an existing contract can be varied or discharged. In SOWAH V. BANK OF HOUSING AND CONSTRUCTION [1982 – 1983] 2 GLR 1324 at 1346, the Supreme Court per Taylor JSC, recognized the principle that “in spite of a deed, parties can enter into a parol contract supplementary to a contract under seal” and that the parties’ earlier contract can be varied by parol agreement. The Court of Appeal in the case of GHANA RUBBER PRODUCTS V. CRITERION CO. LTD. [1984 – 1986] 2 GLR 56 maintained the proposition that parties can vary a written agreement by an oral agreement. However, on the facts of that case, there was found to be no variation of the written agreement by the oral one. In this case listening to DW1, there was an oral decision to have the agreement by Exhibit “B” discharged as DW1 puts it in his evidence per the paragraphs “8” and “10” of his witness statement as earlier reproduced. But this new arrangement clearly does not involve DW1. Philip Ebow Bondzi-Simpson in his book “Law of Contract; with Special Reference to the Law of Ghana” 2nd Edition at page 99 noted that “Novation” is a specie of discharge of contract by agreement to substitute at least one of the parties or the contractual terms”. Abban J (as he then was) in JAPAN MOTORS V. RANDOLPH [1982 – 1983] GLR 536, defined novation as “a transaction by which, with the consent of all the parties involved, a new contract is adopted in place of another which is already in existence”. The eminent judge, Abban J (as he then was) held “novation primarily involves the discharge of the original obligation under an existing contract and the creation of a new one in its place “Citing Lord Selborne’s explanation of novation in SCARF V JARDINE [1882] with approval; Lord Selborne said; “In the court of first instance the case was treated really as one of what is called novation which as I understand it means this – the term being derived from the Civil Law – that there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties, the consideration mutually being the discharge of the old contract”. Therefore, regardless of the change in parties, as per the Exhibit “1” there is novation with the payment of additional 10 million old cedis as part of the responsibility of the defendant. It is worth pointing out that it is the same means of novation that plaintiffs who were not parties to Exhibit “B” orally sought to set aside Exhibit “B” with its 10-year renewal provision after the expiration of the 20-year term. In a bid to deny defendant’s claim of providing money for their deceased father’s funeral, 1st plaintiff has testified that their brother brought money from the UK for the funeral. DW1 corroborated the evidence of the defendant that they took monies for the funeral of their deceased father and also disclosing that he left after the funeral for greener pastures. Therefore, where he provided money for the funeral, the probability is that the money came from the defendant. Thus, DW1’s evidence displaces the 1st plaintiff’s claim that he brought money for the funeral. The conduct of receiving money for the funeral which the defendant paid as the plaintiffs and family considered same as part payment of the additional 10 million cedis constitute an express consent given by their conduct for the new arrangement. Thus, re-enforcing novation. On the Exhibit “1” as well, the persons who signed the document with the defendant, S. K. Oppong and Elizabeth Nyarko are the named administrators of the deceased estate. The Exhibit “SK1” attached to the witness statement of S. K Oppong whose evidence was adopted as hearsay evidence by virtue of the fact that he died during the pendency of case, is a copy of Letters of Administration with Will annexed dated 19th October, 1999. The Exhibit “SK1” discloses that Joseph Charles Owusu died on 12th February, 1999. Looking at Exhibit “B” which is dated 1997, it largely suggests that when the earlier arrangement was made, the plaintiffs and the siblings had no interest in the property. The Will of their father was tendered by the 1st plaintiff as Exhibit “A”. Exhibit “A” provides per the paragraphs 2 as follows: - 1) I give, bequeath and devise my house on Plot H16, North Suntreso, Kumasi to my wife Elizabeth Nyarko and all her children by me absolutely. 2) Apart from the portion of Plot No. H16 on which the House is actually built, there is a remaining portion of the same Plot No. H16 which is vacant. I give, bequeath and devise the said vacant portion of Plot No. H16 North Suntreso Kumasi to all other children begotten by me except those by my wife Elizabeth Nyarko.” A Will is ambulatory, taking effect only after the death of the testator. In the case of CONNEY V BENTUM – WILLIAMS [1984 – 86] 2 GLR 301, the Court of Appeal held that it is only after probate had been granted to the executor that the provisions of the Will could be carried out. And after the grant of probate, a beneficiary of any real estate under the will must have a vesting assent... Until that is done any purported sale of the property by a beneficiary or devisee would have no legal consequence” In this case therefore, at the time of their father’s death, the property was the subject of an arrangement. This arrangement will affect any immediate interest in the property even when the property is vested in them. Further, in 1999, it was found that the named executors were deceased as disclosed in the Exhibit “SK1”. The property at the time of grant of Letters of Administration became vested in the Administrators. For the Administration of Estate Act, 1961, (Act 63). Section 1(1) of Act 63 reads “the movable and immovable property of a deceased person devolve on his personal representatives with effect from death.” By section 108 of Act 63, “personal representative” meant executor, original or by representation, or administrator for the time being of a deceased person” All the foregoing means that in dealing with the estate of the deceased the administrators become the proper persons to be dealt with. Indeed, in the case of WRANGLER GHANA LTD V SPECTRUM INDUSTRIES PVT, LTD & ANO. [2023] 183 GMJ 258 the Supreme Court observed that administrators could alienate immovable properties over which they have been granted letters of administration with reference to section 97(1) of Act 63 which gives administrators the free hand to alienate properties over which they have control without a vesting assent in their favour. Section 97 (1) of Act 63 provides; - 97 Validity of conveyance and revocation of representation (1) A conveyance of an interest in movable or immovable property made to a purchaser before or after the commencement of this Act by a person to whom probate or letters of administration have been granted is valid despite a subsequent revocation or variation before or after the commencement of this Act of the probate or letters of administration. To be clothed with power to alienate, the administrators ought to have vested the properties in the plaintiffs’ and their siblings after the grant of the letters of administration with Will annexed in accordance with dictates of Exhibit “A”. It seems this has not been done. Considering the fact that the plaintiffs and their siblings encouraged the defendant to provide funds for the funeral as part of the variation of the terms that existed, before the death of their father, they cannot complain now when doing substantial justice to parties. WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO RECOVERY OF THE PROPERTY The plaintiff claiming for recovery of possession puts their title to the property in dispute. In ASANTE APPIAH V. AMPONSAH [2009] SCGLR 90, at 98, the Supreme Court speaking through Brobbey JSC held: - ” The law is well established that where a party’s claims are for possession and perpetual injunction, he puts his title in issue. He therefore, has the burden of proving his title to the land by the preponderance of probabilities”. As earlier pointed out the plaintiffs and siblings rely on a devise in a Will to lay a claim of title per the Exhibit “A’’ earlier reproduced. The principle of law is that a devise cannot vest in a beneficiary of a Will until a vesting assent vest same in the beneficiary. In the case of OKYERE (DECEASED) V (SUBSTITUTED BY) PEPRAH V APPENTENG & ADOMA [2012]1 SCGLR 65 reiterated that when a person died testate or intestate no property passes to the beneficiaries without a vesting assent for the estate devolves on the executor or the personal representative until vesting assent have been executed to the beneficiaries or the devisees. What this means is that the plaintiffs and their siblings cannot claim recovery of possession. In fact, at the time they claimed they allowed the defendant to stay on the land for 20years, they were not vested with the property and had no capacity to do so. It is noted that the Supreme Court in the case OF BOYA V MOHAMMED (SUBSTITUTED BY) MOHAMMED & MUJEED [2017-2020] 1 SCGLR 997 conferred capacity on beneficiaries of an estate who have not obtained letters of administration or a vesting assent. It was thought that, by extension, the decision would embolden beneficiaries of an estate to be able to deal with the property and even have the power to alienate it prior to obtaining a vesting assent, but that was not to be. For the Supreme Court in the case of Wrangler Ghana Ltd supra at page 277 then explained that “The decision in BOYA V MOHAMMED… cannot be said to have laid down a general proposition to the effect that beneficiaries of estates can alienate the properties concerned before a vesting assent executed in their favour.” The plaintiffs remain the beneficiaries of the estate (the disputed property) awaiting a vesting assent to make their claim of title inviolable and after the expiration of the 30-year arrangement in the circumstance of this case. CONCLUSION The court has been minded to do substantial justice to the parties and having weighed the evidence of the parties on the preponderance of probabilities, finds the scale tilting in favour of the defendant’s rival version of the facts. In the circumstance, the court dismisses the claims of the plaintiff and enters judgement for the defendant on his counterclaim by granting the following: - a) b) An order for the enforcement of agreement made dated 4th of February, 2004. An order for injunction restraining the plaintiffs, their agents, workmen in any manner interfering with stores situated in front of property number H16 North Suntreso until the expiration of the time period stated in the said agreement. Cost of GH¢10,000.00 against the plaintiffs. [SGD] JUSTICE HANNAH TAYLOR (MRS) JUSTICE OF THE HIGH COURT LAWYERS KWAMI DORGBLEY FOR THE PLAINTIFFS K. A. ASANTE KROBEA FOR THE DEFENDANT 19