Sam and Others Vrs Sagoe and Another [2023] GHAHC 135 (15 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WINNEBA, HELD ON WEDNESDAY THE 15TH DAY OF MARCH, 2023, BEFORE HIS LORDSHIP, JUSTICE ABOAGYE TANDOH, HIGH COURT JUDGE. ____________________________________________________________ SUIT NO. E11/001/22 DATE: 15TH MARCH, 2023 1. FREDA SAM ---- PLAINTIFFS/APPELLANTS 2. ABA AKWA 3. EMMA QUARSHIE ALL OF HOUSE NO. KS 43/4, KOJO BEEDU-WINNEBA. VRS. 1. SAMUEL SAGOE ---- DEFENDANTS/RESPONDENTS 2. KOJO DUM ALL OF WINNEBA. ______________________________________________________________ ___________________JUDGMENT____________________ On the 7th day of June, 2021 the Plaintiffs/Appellants filed a Notice of Appeal against the Judgment of the District Court, Winneba, which Judgment was delivered on the 26th day of March 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 at the court below, then Plaintiffs in their action against the Respondents, per their Writ sought for the following reliefs: a) Declaration that the one storey building numbered PK 55/13 sited at Penkye in Winneba is the property of the female children of the late Aunt Koraima the material grandmother of the Plaintiffs. b)Perpetual injunction restraining the Defendants their assigns, workman, agents, servants or by whoever described from holding themselves as joint owners of house numbered P. K 55/13 Penkye. c) An order from his court directed at the Defendants, their assigns, workmen, agents, servants or by so ever described to stop the student and any other person have placed in house numbered PK 55/13 Penkye. However, just before Judgment, the Plaintiffs filed a motion to amend the above Particulars of Claim with the leave of the court pursuant ORDER 19 RULE 1 OF (1)(A) OF THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C. I 47) but same was opposed by the Defendants. According to the Appellant the amendment became necessary because at the time of issuing the Writ of Summons, the Plaintiffs were not represented by a Counsel for which reason the reliefs endorsed thereon was improperly settled. The Plaintiffs therein argued that the amendment was to delete the original reliefs and replace same with two reliefs which do not in any way depart from the case so far advanced by the Plaintiffs therein per page 151 of the records. The said two new reliefs to replace the original reliefs were thus: a. Declaration that the one storey building numbered PK 55/13 sited at Penkye in Winneba is the property of the late Obaapanyin Efua Yaabe , the direct ancestress of Plaintiffs b. Perpetual injunction restraining the Defendants, their agents workmen, agents, servants or by whoever described, from holding themselves as joint owners of house numbered PK 55/13 As rightly argued for and in support of the Plaintiff therein, amendment can be allowed no matter how late if it will help determine the issues between the parties. See ADJELEY V SOWA AND ANOTHER¹. This position was also rightly supported by the view expressed by the trial court when he indicated that the case is contested on the basis of its pleadings which was also consistent with the amendment the Plaintiff therein was seeking to do in his prayer for amendment. Indeed after the oral legal submissions for and on behalf of the respective parties, it would been more prudent for the court below to have ruled on the motion and proceeded to render its judgment instead of doing so as part of his judgment. That notwithstanding, the amendment sought did not raise any new critical issue except to align the reliefs with the pleadings _________________ ¹{1966} GLR 754 @ 757 and evidence led and that was therefore not fatal to the matter under consideration. See:KAMA HEALTH SERVICES LTD V UNILIVER GHANA LIMITED, CIVIL APPEAL NO. J4/24/2013 DATED 19TH JULY 2013(THEN UNREPORTED)as quoted by the trial Court per page 155 of the Appeal records. THE BACKGROUND OF THE CASE According to the Plaintiffs, they are the direct descendants of ObaapanyinKorama (deceased) while the Defendants also traces their ancestry to one ObaapanyinNkumade (deceased). The Plaintiffs aver that the ObaapanyinKorama and ObaapanyinNkumade were of the Anona family of Winneba during their lifetime. The Plaintiffs further stated that ObaapanyinKorama during her lifetime gave birth to Oguaamena, EfuahYaaba, Kwesi Ahenkow and Maame Esaabe, who are all dead. According to the Plaintiffs, the land on which the disputed house stands was acquired by Efuah Yaabe in the early 1900’s and she thereafter constructed the disputed house and has been controlled by the descendants of Yaabe and not that of Nkumade per page 10 of the record of appeal. In denying the claims of the Plaintiffs, the Defendants said they and the Plaintiffs trace their ancestry to one Opanyin/Neenyi Oguamena whose uterine sisters were Obaapanyin Aya Koroma, Maame, Efaa Yaabe and Maame Ekua Esaabe. The Defendants also contended that the property in dispute (House No. PK 55/13), was the self acquired property of Opanyin/Neenyi Oguamena of the Anona Kusubentsir Ebusua(family) of Winneba who was an illiterate fisherman. The Defendants further stated that Opanyin Oguamena then bequeathed the property to his sisters. As a result, the Defendants also counter claimed thus: a. An order directed at the Plaintiffs, their assigns, workman, or by howsoever described from lying claim to the property described House No. PK55/13 Penkye. b. an order directed at Teacher Sackey to account for all monies he had received during his period of trusteeship to the Ebusuapanyin of the Anona Kusubentsir Family of Winneba. c. A court appointed Receiver/Manager to administer the said property until the final determination of this suit. d. Costs incidental to the instant suit. THE JUDGMENT OF THE TRIAL COURT The trial court after evaluating the evidence adduced by the parties rendered its judgment on the 26th day of March 2021 at the District Court Winneba. The trial court in his decision held thus; “I conclude that the property in dispute belongs to the Anona Okusebentsir family of Winneba which was headed by Ebusuapanyin Kow Nkensen during his lifetime.” THE GROUND OF APPEALS The grounds of appeal filed on the 7th day of June 2021 per page 169 - 170 of the record of appeal were as follows: i. The judgment was against the weight of evidence ii. The trial Magistrate erred when he held that the parties did not lead evidence on any division or distinct branches in the family iii. The trial Magistrate erred when he held that the property in dispute belongs to the Anona Okusubentsir family of Winneba instead of Obaapanyin Efua Yaabe iv. 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 grounds (i), (ii), (iii)together and failed to file any additional grounds as earlier indicated. The main issue in contention is whether or not the property in dispute belongs to the larger family of the Anona Okusubentsir family of Winneba which Obaapanyin Efua Yaabe belongs to, or solely for Obaapanyin Efua Yaabe and her direct descendants. Indeed all the three grounds of appeal revolves around the issue of whether or not the judgment of the court below was against the weight of the evidence adduced, and will be considered in that regard. 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 which led to the judgment in favour of the Respondents. The Supreme Court speaking through Adinyira JSC on the primary duty of the appellate court in the case of ACKAH V PERGAH TRANSPORT LTD & OTHERS ² AND AT PAGES 737 – 739 OF THE REPORT,held that it is the primary duty of the appellate court to examine the record of proceedings in order to be satisfied that the findings of the court below are supported by the evidence on record. The Supreme Court further stated that the appellate courtin so doing is in the same position as a trial court to _______________ ²[2010] SCGLR 728 make its own inference from the established facts as an appeal is by way of re-hearing. See also: KOGLES LTD ( NO.2 ) V FIELD³ AND GIHOC V HANNAH ASSI⁴. 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 AGYAPONG⁵and 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”. SEE ALSO : TUAKWA VRS. BOSOM (2001-2002) SCGLR 61. THE BURDEN OF PROOF The burden on the Plaintiffs therein and the Appellant herein, at the court below was 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. _________________ ³[2000] 175 ⁴[ 2005 – 2006 ] 458 ⁵(2018) 122 G. M. J 186 S. C ⁶(2001-2002) SCGLR 61. 1. GIHOC REFRIGERATION & HOUSEHOLD VRS. JEAN HANNA ASSI⁷. 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 the Defendants at the trial court, and having counter – claimed, had the same burden to establish their counter – claim on the balance of the probabilities. This was 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. _____________ ⁷[2005 – 2006] SCGLR 458 First of all, I will deal with the issue of the capacity of the Appellants to have mounted this action argued by Counsel for the Respondents that the head of family as representatives of the family was the proper person to institute this action as a general rule. It was further argued on behalf of the Respondents that where the authority of a person to a suit in a representative capacity was challenged, the onus was upon him to prove that he has been duly authorized, and proceeded to quote the case of NYAMEKYE V ANSAH [ 1989 – 90 ] 2 GLR 152 – 163 AND FOSUA & ADU – POKU V DUFIE ( DECEASED) & ADU – POKU MENSAH. 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 _____________ ⁸(1963) 1 GLR 176. matter of law and could be raised at any stage of the proceedings even on appeal….” See:MANU VRS. INSIAH⁹. From the evidence on record, the Appellants though acknowledge the existence of a head of family for the larger family in the person of Kow Nkensen. However, the Appellants are challenging his authority over the property belonging to Yaabe and that same is not a family property. I therefore hold the view that the Appellants have identified themselves as members who had brought the action under the exception in the case of KWAN VRS. NYIENI & ANOTHER¹⁰ – 74 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 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: ________________ ⁹[2005 – 2005] SCGLR 25 – 31. ¹⁰[1959] GLR 67 (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 authorized 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 action mounted by the Appellants falls within the exceptions in the KWAN V NYIENIcase. The key witness for the Plaintiffs/Appellants, George Hanson Sackey(PW1), also known as Kojo Sakyi a teacher by profession. According to PW1, he was born in the house in dispute where he also grew up. In his evidence before this court, PW1 said he is a customary son of the Anona family of Winneba particularly Kojo Nnekyi who is amember of the said family. He further stated that his grandmother Efua Yaabe built the property in dispute ably supported by Oguamena who is also her brother. According to PW1, several years ago, there lived Obaapayin Koroma and Obaapanyin Nkumade who were both members of the Anona Family of Winneba and that the Plaintiffs were direct descendants Koroma whiles the Defendants trace their ancestry to Nkumade. Also, PW1 testifying for and on behalf of the Plaintiffs said Obaapanyin Koroma gave birth to Oguamena, Efua Yaabe, Kwesi Ahenkow and Naane all currently deceased. The Respondents denied the Plaintiffs assertion that they trace their ancestry to Nkumade and further insisted in their evidence that the property in dispute was built by Opanyin Oguamena whose sisters were Koroma, Maame Efua Yaaba and Maame Ekua Esaaba. The 2nd Respondent in his evidence traced his lineage to Oguamena a sibling of Efua Yaaba. Indeed, there is ample evidence on record to show that the parties belong to the same family as described by the Respondents and the Appellants. Under cross examination, the star witness of the Plaintiffs (PW1) answered the following: Q. It is the case that Efua Yaabe acquired the land in early 1900 A. That is true Q. Can you tell the court how Yaabe and Oguamena acquired the land in dispute. A. I cannot tell Q. I put it to you that Oguamena bought the land and built the house. A. That is not accurate. Oguamena was in partnership with biological sister Efua Yaabe in acquiring the property in dispute. This piece of evidence by PW1 is in tandem with paragraph 9 of his Evidence-In-Chief where he stated that the land in dispute was acquired by Oguamena and Yaabe from where the 2nd Respondent and the Plaintiffs sought to trace their ancestry within the largerfamily. From the foregoing, can one then say that the property in dispute were jointly acquired by Oguamena and Yaabe or is it right to say that the property was solely acquired by Yaabe? From the evidence on record, it will be difficult for anyone to believe that the land was solely acquired by Yaabe where the Plaintiffs trace their lineage within the family. This is because the evidence rightly points to the fact that the property in dispute had a family character and thereby makes the view of the Respondents more probable as against that of the Appellants. I therefore find that the property in dispute was acquired for the family use, particularly the siblings of Oguamena and Yaabe. Also under cross examination, PW1 stated thus: Q. You have stated that one Ebusuapanyin put you in charge A. That is so, but by giving me that role is not based on his power as Ebusuapanyin but as the last son of Efua Yaabe, through direct inheritance. Indeed, the said Ebusuapanyin was the head of family of the entire Anona family of Winneba which both parties belong. Also, the current Ebusuapanyin filed a witness statement to challenge the Plaintiffs claim when this matter was then pending before this court belowbut age and his health condition affected his ability to fully testify and later passed on per pages 41 and 158 of the appeal records. In his bid to persuade the court to believe that the property in dispute belongs to Yaabe and her descendants, PW1 who testified o behalf of the Plaintiffs, PW1 tendered in evidence receipts of property rates paid per pages 53 – 59. I critically examined Exhibits A and A1, A2 and A3 being receipts of property rates paid on 14th day of September 2015, 31st August 2016, 29th September, 2014, 12th September, 2013, 12th September 2012, Year 2010 – 2011. It was observed that the hand writing of the person who received the payment was the same but the signatures were different. I equally observed the name of Yaabe sometimes written as Yarberor Yawabey. Also the capacity of the person in the Municipality who received the payment was never revealed as there was no name and title of the person. In fact, one cannot therefore tell whether the payment was received by a revenue collector, cashier or a designated Officer within the Municipal Assembly for that purpose. Even though we all make mistakes in writing, but when writes like ‘ Being payman of property rate for the year 2015’ , then one has to re-examine what has been written. Again the receipt for property rate paid for 2010 – 2011 had no specific date when the payment was made. Interestingly, the receipts for the payment of the electricity bills bore the name of W. K Sackey which are completely different from that for the alleged property rates being that of Yaabe, sometimes written as Yarberor or Yawabey. In the same house without individual electricity meters but a common one bears a different name to that of the property rates raises a serious doubt as to authenticity. As rightly argued by Counsel for and behalf of the Respondents, the receipts for the alleged property rates and that of the electricity, from 2007 – 2016 and 1999 – 2004 which raises a question as to what happened before 1999 with respect to the payment of bills but no affirmative answer was provided to that effect. From the foregoing, I find the receipts per Exhibits A, A1, A2 and A3unauthentic andwere deliberately created by the Plaintiffs to create the erroneous impression in the mind of the court that recent activities of the Appellants makes their view of the property in dispute solely belonging to Yaabe more probable. Though, I do agree with the view agued by Counsel for and on behalf of the Appellants that the best way of testing traditional history was to examine same in the light of more recent facts, however in the instant appeal before this court, the evidence on record was not solely traditional. But cogent evidence together with exhibits were also tendered in evidence. See:ADJEIBI – KOJO BONSIE AND ANOTHER [1957] 3 WAR 25, AND ACHORO V AKANFELA ¹¹also quoted on behalf of the Appellants. The two witnesses who testified for the Appellants were tenants and their knowledge as to the ownership of the land in dispute was remote as all they knew was the caretaker of the house then and nothing more. ________________ ¹¹[1996 – 1997] SCGLR 209. There is also evidence on record to show that the 2nd Defendant has a room in the disputed property. It must be noted that living in a property or not living in same does not necessarily show that you are a beneficiary of the property in disputed. However, in the instant appeal, most the rooms have been rented out which occasioned the appointment of a care taker. In the instant appeal, it has been established that the property in dispute was jointly acquired by Oguamena and Yaabe for the benefit of the siblings and generally the Anona family of Winneba. In the case ofNKONNUA V. ANAAFI¹²the court at holding 2 in determining the status of a family property held thus: (2) where a person acquires property with the assistance of a member of his family, that property becomes family property. Therefore if an occupant of a stool acquires property with the assistance of a member of his family the property is not stool property but the family property of the stool occupant. It has been observed that the Appellants fiercely attempted to create the impression that the property was solely acquired by Yaabe when their own ________________ ¹²[1961] GLR 559-566 evidence proves the contrary. Because the Appellants stated clearly that the said property was jointly acquired by both Yaabe and Oguamena but built by Yaabe with the support of Oguamena in line with the case of NKONNUA V. ANAAFI. It is therefore not surprising when the Appellants then as Plaintiffs even amended their writ at the end of the hearing awaiting for judgment, to tie their evidence to Yaabe when the real intention was to take the property from the larger family. From the foregoing, I find that the decision of the trial court in giving judgment in favour of the Respondents was supported with the evidence on record. The issue of not giving sufficient evidence on the distinct divisions in the family was not fatal to the issue for determination as argued on behalf of the Appellants. The core issue therefore was whether or not the property in dispute was acquired solely acquired by Yaabe and for her descendants or was a family property which decision was rightly determined by the trial court. In the case of JASS CO. LTD. & ANOR¹³of the report, 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 _________________ ¹³[2009] SCGLR 265 AT PAGE 275 appellate court save where those findings are clearly unsupportable, having regard to the evidence on record. Plaintiffs/Appellants failed to establish their case by the balance of preponderance of the probabilities whilst the Defendants/Respondents succeed in their counterclaim. This court will therefore not disturb the judgment of the trial court that “the property in dispute belongs to the Anona Okusebentsir family of Winneba which was headed by Ebusuapanyin Kow Nkensen during his lifetime.” Having examined the records of appeal, the totality of the evidence adduced at the court below, the law and legal submission submitted by the respective Counsel, and on behalf of the Appellants and the Respondent, I hold the candid view that the judgment of the court below (District Court, Winneba) is consistent with the evidence on record at the Appellants failed to establish their case on the balance of the probabilities. I will therefore not to interfere with the decision or judgment of the court below and same is affirmed. Accordingly, the appeal fails and is dismissed. Cost of Fifteen Thousand Ghana Cedis (GH¢15,000.00) is awarded again the Applicants in favour of the Respondents. JUSTICE ABOAGYE TANDOH HIGH COURT JUDGE (SGD) COUNSEL FRANK SAGOE, ESQUIRE, FOR THE DEFENDANTS/RESPONDENTS PRESENT. B. B. SIMPSON ESQUIRE, FOR THE PLAINTIFFS/APPLICANTS (ABSENT) 18