MARY HOGGAT & ANOR VRS FLORENCE AKLAYIKOE (C8/03/2017) [2023] GHACC 1094 (27 June 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON TUESDAY, 27TH DAY OF JUNE 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. C8/03/2017 MARY HOGGAR FRED AKLAYIKOE VRS FLORENCE AKLAYIKOE JUDGEMENT The Plaintiff per an Amended Writ of Summons and Statement of Claim issued from the registry of this Court against the defendant, dated 23/07/2018, per an order of the court dated 10th July 2018 claiming the following: 1. 2. 3. Recovery of possession of the premises at Lashibi, community 16. Declaration of title to premises at Lashibi community 16 in Laurence (sic) Aklayikoe, deceased, and his successor. Perpetual injunction to restrain defendant, her agents, assigns and others from interfering with the Plaintiff’s enjoyment of property rightfully theirs upon the death of their father/husband. 4. Any other relief. THE CASE OF THE PLAINTIFFS The case of the plaintiffs, who are the widow and eldest son of the deceased, is that they are the administrators of the estate of Laurence Kofi Aklayikoe, late of Bubuashie by virtue of grant of letters of administration from the Circuit Court, Amasaman, on the 21st November 2016, (instead of the 23rd November, 2016 as stated per paragraph 1 of the Plaintiffs amended statement of claim) and they stated that part of the deceased estate was the property at Lashibi, Community 16 which at the time of his death had an uncompleted five bedroom structure on it. The plaintiffs said they were being compelled to vacate the rented premises that is their matrimonial home after the demise of the deceased and decided to tidy up the property in dispute and move in there. The plaintiffs say the workers they sent unto the premises were stopped from working by one Paul Assong, Isaac Bako and Noah Asamani and they added a letter from Counsel, which their Counsel also responded. It is the case of the Plaintiffs, that, the deceased bought the land in or about 1993 and started building soon thereafter and gave one of the two plots he bought to his sister, the defendant, who was domiciled out of the jurisdiction. The plaintiffs say, the deceased started working on the portion he kept for himself and when he got to the lintel level of his structure, the defendant started to build on her land, quickly finished her building and fenced it and constructed a gate between her property and that of the deceased. It is the case of the plaintiffs, that in the lifetime of the deceased, the defendant never laid claim to the brother’s land, till the agents laid claim on her behalf after his death. Plaintiffs says the rooms were rented on the instructions of the deceased to help generate some money to finish the house. Plaintiffs say further that, the defendant never owned the portion of the land the deceased built his property and hence she is not the owner of the property and that it is the deceased who purchased two plots and gave his sister one, and the defendant is determined to wrestle their property from them the rightful successors, now that her brother is dead and claimed per their amended writ of summons. THE CASE OF THE DEFENDANT The case of the defendant is that the property in dispute does not form part of the estate of the late Laurence Kofi Aklayikoe because the deceased was only a caretaker of the property for his sister the defendant. It is the case of the defendant that the plaintiffs have received all the entitlements under the estate of the deceased and that the plaintiffs are making up stories to elicit pity. It is the case of the defendant that the property in dispute does not form part of the estate of the deceased and that is why the Plaintiffs were stopped when they attempted to take over the property under the mistaken belief that it formed part of the estate of the deceased. The case of the defendant is that the land was never purchased by the deceased but rather the defendant who purchased the land for herself somewhere in 1993 from the Nungua Stool and was issued with a receipt, she also has TDC certification, and development on the land started around 1999-2000 and the deceased was to supervise the work for the defendant. It is the case of the defendant, that all monies for the project, including specific building plans and designs were sent to the deceased, but the building did not meet their specification, she and the husband, and the deceased abandoned the project at a point as it almost resulted in a misunderstanding between the deceased and her sister. The defendant say she did not pull down the structure as it would have been waste of resources, she decided to build a new house with the better plan on the remaining plot behind the first structure and rather decided to rent out the first structure when it is completed in order to recoup the funds invested. The defendant avers further that she indeed fenced the new structure in order to give her privacy from the tenants who will occupy the rented rooms in the earlier building in front, but she installed a gate to connect the two compounds for easy access. The defendant says further that the deceased while alive never claimed ownership of the said property. The defendant says after roofing the building she directed the rooms to be rented out and the rents were paid to one Noah Asamani for onward transmission to her the defendant. The defendant says this has been the situation all along and there has not been any knew arrangement which has been put in place for rent collection as the property is not for deceased and his death occasioned no new arrangement. The defendant stated further that during the lifetime of the deceased he continued to live at his Bubuashie rented apartment and even when she the defendant asked him at a point to occupy some of the rooms of the uncompleted building as the deceased asked the defendant to rent it out in order to get back her investment. The defendant concluded, indicating, the property does not form part of the estate of the deceased and the plaintiffs’ are not entitled to the reliefs being sort before the court. The Defendant per the statement of defence, then repeated paragraphs 1-22 of her statement of defence Counterclaimed against the Plaintiffs jointly and severally as follows: a) Declaration of title to all that piece or parcel of land and property situate, and being at Community 16, Tema measuring 77 feet by 110 feet more or less and containing an approximate area of 0.20 acre more or less. b) An order setting aside the letter of administration granted to the Plaintiffs with respect to the property in dispute as since the property does not form part of the estate of the deceased. c) Perpetual injunction restraining the Plaintiffs, their agents, assigns workmen from ever dealing with the land or building the subject matter of this dispute. d) Any other relief or reliefs as the Court may deem just. e) Costs including legal fees. ISSUE FOR TRIAL The plaintiffs after they were served filed their reply and defence to counterclaim and generally joined issues with the defendant and stated that the defendant is not entitled to her counterclaim. The plaintiffs later filed their issues and the defendant filed additional issues. At the application for directions on 14/12/2018 the court order was, the issues filed be the issues for trial. These were the issues filed by the plaintiff and the additional issues filed by the defendant. These were the issues set down by the court differently constituted for trial: 1. Whether or not the premises in dispute was in fact the property of Laurence Aklayikoe or the property of the Defendant herein. 2. Whether or not the property was bought by Laurence Aklayikoe or by Defendant herein. 3. Whether or not Plaintiffs are entitled to their claim. A. Whether or not the Plaintiffs have any legitimate claim to the land in dispute. B. Whether or not the Defendant has exercised full ownership and possessory rights over the property since acquisition. C. Whether or not Laurence Aklayikoe ever laid claim of ownership to the land and property in dispute during his lifetime. D. Whether or not the Defendant is entitled to her counter claim. In the case of Armah v Hydroform Estates (GH) Ltd (2013/14) 2 SCGLR 1551 @ 1560 it was held as follows, “at the summons for directions the trial judge is required to identify the core issues for trial… the Judge is required to examine the pleadings carefully and to determine what issue(s) will completely determine the case before him. Also, in the case of Fidelity Investments Advisors v Aboagye Atta (2003/04) 2 GLR 188 where the court held that what issues are relevant and essential was a matter of law entirely for the judge to determine. From the case before the court and looking at the pleadings that were filed, it is obvious that issue (1) subsumes all the other issues that were set down and resolving issue (1) will completely determine the case before the court. Therefore, the court will set down issue 1 as the issue for determination by the court. EXHIBITS OF THE PLAINTIFFS During the trial, after case management conference (CMC), the Plaintiffs gave evidence for themselves, and 1st Plaintiff called witnesses in support of her case before the court. The 1st Plaintiff, tendered exhibits A - G before the Court. Exhibit A was the Letters of Administration the plaintiffs obtained from the Court covering the estate of the deceased. B, letter from Counsel of the defendant addressed to the Counsel of the Plaintiffs dated 28/09/2017, B1 was the response of Counsel for the Plaintiffs to the Defendant. Exhibit C was a letter without an address dated 12/03/1993 written by Maxwell Agudey with the Lashibi Police and the Registrar of the Circuit Court, Tema copied. Exhibit D was a 4-page document with the caption “Application for Relief Credit Facility” which had the signature of the deceased. The next was exhibit D1 with the title “Application for Project Loan, exhibit E was a picture of an uncompleted building and exhibit F was a picture of heap of sand whiles exhibit G was a statutory declaration by the deceased. PW1, the witness for the 1st Plaintiff who testified before the court tendered exhibit 1 and 1 A which were architectural drawings of a building. EXHIBITS OF THE DEFENDANT The defendant also had these exhibits which were made available before the court. The defendant gave evidence before the court through an attorney, one Mr. Isaac Bako. The exhibits of the defendant was the power of attorney donated to the attorney by the defendant. Exhibit 2 and 2A were official receipts from the Nungua Traditional Council dated 20/03/91 and 15/05/91 respectively. The defendant also tendered exhibit 3 series which were proposed building plan of the defendant, exhibit 4, allocation of plot letter from the Nungua Traditional Council addressed to the Chief Estate Officer, Tema Development Corporation (TDC) together with filled TDC application for residential plot documents and filled Nungua Traditional Stool Lands title deed authentication form. Exhibit 5 was confirmation of allocation from TDC and exhibit 6 was an offer for residential plot from the TDC with an attached site plan. The last exhibit of the defendant was exhibit 7 which was the right of entry letter from the TDC addressed to the defendant. EVIDENCE OF THE PLAINTIFFS DURING TRIAL 1st Plaintiff Evidence During the trial 1st Plaintiff testified for herself, by relying on the witness statement, which was filed on her behalf, and tendered the various exhibits as indicated above. The 1st Plaintiff gave evidence that she is the administratrix, and together with the son, they have obtain letters of administration (exhibit A). The 1st plaintiff testified that part of the deceased’s estate was a property at Lashibi, Community 16 which at the time of his death had an uncompleted five-bedroom structure on it. The 1st plaintiff testified of how their workers they sent to the site were stopped from working on the land and they were given a letter from the lawyers of the defendant. The 1st plaintiff said her uncle one Sam Aggudey directed the deceased to owners of land at Lashibi and her deceased husband was sold two plots of land. She said the husband put in a caretaker, called Maxwell Aggudey, to protect his land who was on day beaten by thugs from Nungua in or about 1991 when the purchase process was on going which was completed by the year 2023 and he received documents on the land. The 1st plaintiff said the deceased assigned one plot to his younger sister and he kept one for himself. The 1st plaintiff said in 2004 her husband put in another caretaker called Noah Asamani who she said has defected to the defendant. The 1st plaintiff said in 2011 her husband roofed the structure, and his husband instructed the caretaker Noah Asamani to rent out the place and use the proceeds to complete parts of the project. The 1st plaintiff testify of application for loan by the husband in 2015 and 2016 which he obtained to continue the house and the sand they put on the land to commence work in about October 2017, and she also testify of a statutory declaration the husband made before his death which was tendered and concluded her testimony by saying she knows the premises in dispute belong to her late husband and not the defendant. 2nd Plaintiff Evidence The 2nd Plaintiff testified before the court and gave evidence. The evidence of the 2nd plaintiff was generally what the deceased father had been telling him. He said the father told him he was building a 5-bedroom house at Lashibi and also told him that a half plot was for his sister Florence. 2nd Plaintiff said he went to see the land with one Brother TT Dayan Aggudey who lived close by the land. All his other evidence was what his father told him. He said when he was in polytechnic, he asked his father about the land, and he told him that he should keep praying for him, and they will soon leave, and he said the father made it clear to him about his frustration about living in a compound house and he complained bitterly about that. Evidence of Plaintiffs 1st witness (PW1) The plaintiffs 1st witness (PW1) was Dayan Tetteh Aggudey who testified that he is a businessman, and the 1st Plaintiff was his mother’s sister. PW1 said his father called him and asked him to take the deceased to Tetteh Obeyie who was in charge of lands at Lashibi together with Sgt Anane and Mr. Yeboah and he took him to them. PW1 said they asked for one bottle of schnapps and three hundred old cedis and they gave it on behalf of the deceased and he was eventually given a plot belonging to Sergeant Anane which they showed the land to them. The money was given to the brother to pay to the group and some documents were given to him and he said when he moved to Lashibi in 1992 the deceased gave the documents to him which were exhibit 1 and 1A. PW 1 said he help in the filling of the foundation and later in time the deceased told him that he has given one of his plots to the sister. PW 1 concluded that he knows of certainty that the land belongs to Aklayikoe and not his siter. Evidence of 2nd Plaintiffs witness (PW2) The plaintiffs called a second witness Maxwell Aggudey as PW2. PW2 said he was living in Lashibi when the deceased came to buy land there and he accompanied him to purchase from one Tetteh Obeyie and they were engage afterwards to take care of the land. PW 2 said it was two plots the deceased bought, and he was a carpenter, so he made the corner pillars when the footings was done, and it was about 1993. PW2 said he was on the land one day and some people from Nungua attacked him on the land and beat him up and he reported the matter to the Sakumono Police, and they were arrested. PW2 said he was threatened so he ran away to Bolga for fear of his life. Later the deceased sent words that the people had paid for the items stolen so he came back, and he wrote a letter to the police which same was tendered before the court. After the evidence of PW2 the plaintiffs closed their case. EVIDENCE OF THE DEFENDANT DURING TRIAL Evidence of Defendant’s Attorney The Defendant herself did not appeared before the court but relied on the evidence of her attorney that she appointed and a witness to testify on her behalf. The evidence of the Attorney who testified on behalf of the defendant was that the defendant is mostly resident outside the country but comes home very often and he together with the deceased used to handle most of the defendant property issues and due to that he had personal knowledge of the issues regarding the property in dispute located at Lashibi. The Attorney said that the property in dispute is an uncompleted 5-bedroom house at House Number F/58, Community 16, Lashibi, Accra and it does not form part of the estate of the deceased being claimed by the widow and the son of the deceased. The Attorney said the deceased was a caretaker of the property for his sister like the way he was also a caretaker. The Attorney said the land at Lashibi was acquired by the defendant in the year 1991 from the rightful owners, the Nungua Traditional Council for valuable consideration and she paid in two instalments. The Attorney tendered exhibits before the court. The Attorney said the Defendant began development on the land around 1999-2000 at which time the deceased was tasked to supervise the work for the defendant. The defendant attorney said further that the defendant provided all monies for the project including specific plans and designs which were sent to the deceased to use. The attorney testified further that during the construction he was in charge of buying and carting building materials like stones and building blocks to the construction site and he worked under the instructions of the deceased and the building reached an advance stage. The witness said the defendant later had to abandoned the building as it did not meet the specifications she and the husband envisaged. The witness said the Defendant then decided to build a new house with the better design on the remaining plot behind the first structure and planned to rent out the first structure in order to recoup the funds invested in same. The witness testified further that no dispute arose between the defendant and the deceased as he knew the property was for the defendant. The attorney gave further evidence to say that the defendant applied to the “Tema Development Company as a group together with other developers to reduce cost as the land falls in their jurisdiction for permit. The witness said it started somewhere in 2015 and so they were provided with the necessary documents executed in favour of the Defendant by the Nungua Traditional Council in respect of the lands purchased in 1991, which were tendered before the court, in order to register at TDC. The witness testified that the TDC issued the Defendant with a note confirming the allocation of Plot No. RPL/C16/F/58 Community 16 to the defendant. The said document was tendered before the court. The witness also tendered a formal contract by TDC which is a formal offer note to the defendant. The witness said the TDC being satisfied with the various requirement by the defendant including payment of ground rent, issued her with a formal confirmation letter for Defendant’s right of entry which was also tendered before the court. The witness said the defendant had legitimate documentations in respect of the land and the plaintiffs do not have any legitimate documentation. The witness also testified of that Noah Asamani who was placed on the land well known to the deceased somewhere in the year 2004 as a caretaker. The witness said the defendant directed that the room should be rented out to tenants on behalf of the defendant and all rents were accordingly paid to Noah Asamani for onward transmission to the defendant and stated further that at no point did the deceased attempt to collect rent from any tenant. The attorney concluded his evidence by saying deceased during his lifetime continued to live at Bubuashie rented place and even the defendant asked him to occupy some of the rooms the deceased declined and rather asked the defendant to continue to rent it out in order to get back her investment. After the attorney of the defendant, the defendant called Paul Assong as DW1 to testify before the court. Evidence of the defendant Witness (DW1) DW1 said he was a businessman and the head of the Aklayikoe-Assong Family of Anfoega in the Volta Region of the Republic of Ghana, and the defendant and the deceased are his blood siblings and also know the property in dispute. DW1 said he knows the Defendant acquired two plots and his brother the deceased was also aware of this fact and assisted the defendant in various ways in respect of that land and construction of the property on it. DW1 testified that the defendant was tasked to be in charge of the construction of a dwelling house, the defendant provided finances and a specific design, but the defendant and husband were later disappointed in the building as it did not have car garage and the kitchen was not to the modern standard and they complained about the entire construction which generated misunderstanding, but they were able to resolve matters. DW1 said the defendant agreed that no landed property is a waste so decided she will rather rent the said building out but will construct a new building on the remaining property. DW1 said no point did the deceased ever lay claim of ownership to the property in dispute and the claim by the plaintiffs that it forms part of the estate of the deceased is not true, as if it were to be true, he would have ensured that the plaintiff had full benefit of same. The defendant closed her case after the evidence of DW1 and the suit was adjourned for judgment. LEGAL PRINCIPLES In civil cases the plaintiff has a burden to prove his or her case by the preponderance of probabilities and this is indicated in sections 11(4) and 12(1) of the evidence Act 1975 (NRCD) 323. Section 11(4) provides that: “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.” Section 12(1) also provides that: “except as otherwise provided by law, the burden of persuasion requires proof by preponderance of the probabilities”. See the case of Adwubeng v Domfeh (1996-97) SCGLR 660 Also, the basic principle of proof in civil suits, a party whose positive assertions are denied by his opponent bears the onus of proof of those assertions. See: Agbesi v Ghana Ports & Harbours Authority (2009) 20 MGLR 109 @ 137. Zabrama v Segbedzi [1991] 2 GLR 221: “A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of the averment or assertion determines the degree and nature of that burden.” See also Gihoc Refrigeration & Household Products Ltd v Hanna Assi (2005-06) SCGLR 458, Good News Co-operative v France Amoyaw and Frederick Amoyaw (2019) 131 GMJ 220 @ 241 which deals with the burden of proof. In the case of JAAS Company Limited and another v Appau and Another (2009) SCGLR 263 at page 270 the Supreme Court speaking through Dotse, JSC, stated, “We wish to observe that the burden of proof is always on the Plaintiff to satisfy the court on a balance of probabilities in cases like this. Thus, where in a situation, the Defendant has not counterclaimed; and the plaintiff has not been able to make out a sufficient case against the defendant, then the Plaintiff’s claims be dismissed. The same standard will be used for the defendant, if the defendant counterclaims”. In land litigation the Supreme Court in the case of Mondial Veneer (GH) Limited v Amuah Gyebu XV (2011) 1 SCGLR 466 (475) the Court per Georgina Wood CJ as she then was delivered herself in the following terms: “In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls, as in the instant case, to prove the root of title, mode of acquisition and various acts of possession exercised over the subject-matter of litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities that the party would be entitled to the claim”. ANALYSIS OF THE EVIDENCE Now the case before the court will be resolved by consideration of the issue one as stated supra. And the issue one is: 1. Whether or not the premises in dispute was in fact the property of Laurence Aklayikoe or the property of the Defendant herein. In this case, the plaintiff issue the writ against the defendant and the defendant also counter claimed which means both parties had a responsibility to prove their case before the court. That plaintiff is to win his case on the preponderance of probabilities. See: Yorkwah v Duah (1992-93) GBR 278 CA, Takoradi Floor Mills v Samira Faris (2005- 2006) SCGLR 985. And for a counterclaimant, as is in this case, is as good as the plaintiff which she asserts to make his own case. See: Brimpong v Bawuah (1994-95) GBR, page 837. That is where the Defendant counterclaim, she is also to prove her counterclaim on the preponderance of probabilities since she is the Plaintiff in respect of the counterclaim. See: Fosuhene v Atta Wusu (2011) 1 SCGLR 273 The plaintiffs in their evidence per the 1st plaintiff was the fact that part of the deceased’s estate was property at Lashibi which is a 5-bedroom structure. In paragraph 5 of her evidence the 1st plaintiff said his husband was eventually sold two plots and also received documents on the land. The first plaintiff tendered exhibit G which was a statutory declaration by the deceased. A statutory declaration, by its nature, is a self-serving document which binds none but its maker. In this statutory declaration document, the deceased as deponent, deposed in paragraph 3 and 4 that he had inspected a plot of land and that plot of land belongs to one Sergeant Anane. This together with other pieces of evidence before the court clearly shows that the deceased did not acquire two plots of land as claimed by the plaintiffs in their statement of claim and therefore could not have gifted one of the plots to his sister who, initially, said the place was bushy, and later came to build, and was able to build fast and complete same whiles the deceased was at the lintel level and was later roofed. This was firmed up in an answer by the defendant representative during cross examination. During the cross examination of the Defendant representative this question was asked: Q18. It is your case before this court that if the 1st plaintiff says her late husband bought 2 plots of land, it is untrue. A. Yes The 1st plaintiff then referenced the two witnesses she called which were PW1 and PW2. The 1st plaintiff said PW2 was put in the land as caretaker, but this cannot be supported from the evidence before the court as from the evidence and from PW2 own testimony, said after the land was purchased, he was engaged to take care of the land and he lived in his father’s house and kept an eye on the land. Clearly PW2 was not in occupation of the land. The 1st plaintiffs witness PW1 who testified that he led the deceased to acquired the property testified in paragraph 3 of his witness statement that the deceased was given another plot belonging to Sergeant Anane as a plot nearby by Mr. Tetteh was claimed by somebody else. So, this witness who led the deceased to acquire the land testified that the deceased acquired only one plot whiles the plaintiffs and their other witness testified that the deceased acquired two plots. The 1st plaintiff and PW1 testified that the deceased was given documents covering the land but no such document covering the land was tendered before the court. All the documents tendered by the 1st plaintiff clearly had nothing to do with the land in dispute and does not establish the deceased as owner of the land and does not link the deceased to the land in dispute in any form. PW1 claimed the deceased gave him the document he had on the land and same was tendered as exhibit 1 and 1 a. These were architectural drawings and not land documents as claimed by the witness PW1. During cross examination this is what transpired: Q4. You then indicated in paragraph 4 of your witness statement that the deceased husband of the 1st Plaintiff gave you his document covering the land since 1992, is that right. A. That is right. Q5. This documents you refer to is. (1) An artistic plan or drawing of some building (2) A sight plan, that is all. A. Yes Q6. You agree with me that neither of these 2 documents is a document in proof of ownership of the land in dispute. A. Yes, …. Q7. You are aware that the property in dispute herein is a 5-bedroom property at Lashibi. A. Yes Q8. You are also aware that exhibit 1, which is the drawing that you are showing to the court is in respect of a 3-bedroom property. A. Yes, during the process then Col. Topa of TMA/TDC and his team were breaking down houses at Lashibi. So, the 2nd Plaintiff’s father came in and was to build a boys quarter on the 2 plots that changed the plan of the whole building instead of secret roofing he had to change it to normal roofing. So as time went on, he came and changed the whole plan to a 5-bedroom house with normal roofing. Q9. What you have just narrated to the court is a clear afterthought because it never formed part of the case of the Plaintiff herein or your evidence before the court. A. It is part, but I did not put it into my witness statement Q10. You agree therefore with me that your exhibit 1 therefore is irrelevant because it does not refer to the property in dispute or cover it. A. It is relevant. Q11. Your exhibit 1A which is a site plan has no date on same, is that right. A. Yes, I have not observed it before, but I see there is no date. From the evidence before the court, these document which were tendered by the witness PW1 on behalf of the plaintiffs has nothing to do with the land ownership and whiles the drawing was for a three-bedroom house but the house in dispute is a five-bedroom house, contradicting the evidence of the 1st Plaintiff. It is also obvious that the plaintiffs aside not providing any documentation of their proof of title as well as their mode of acquisition, they were not able to provide any evidence of their own personal involvement in the acquisition of the property or their involvement during the construction of the structure itself especially since they are the widow and the son of the deceased. The plaintiffs in their capacity could not demonstrate any personal knowledge with respect to this estate of the deceased. All that the 1st plaintiff did was to repeat her averments and reference PW1 and PW2 whose evidence could not support her claim and they were also contradictory. The 2nd plaintiff gave evidence of things he claimed were told him by his father and contradicted himself with respect to where the deceased died and the value of the estate as per the letters of administration. During his cross examination these were his responses: Q9. You stated in that application for letters of administration that the entire Estate of your father amounted to ten thousand Ghana cedis (GH¢10,000) is that right? A. No, my lord. Q11. Look at Exhibit “A” and tell the court the amount stated and sworn to? A. The amount is ten thousand Ghana cedis (GH¢10.000). Q12. So, you agree with me that the five-bedroom house located at Lashibi cannot be said to be ten thousand Ghana cedis? A. No, my lord. Q13. I am suggesting to you that a five-bedroom house at Lashibi in Tema cannot be ten thousand Ghana cedis? A. Yes, my lord. From the evidence before the court there were contradictions in the evidence of the plaintiffs during their cross examination. And from exhibit A which was the letters of administration which were obtained by the plaintiffs, looking at the value of the estate per the letters of administration it was GHC 10,000. It is obvious that this said property was not part of the estate of the deceased per the inventory that the plaintiffs must have presented before the court to obtain the letters of administration. This also goes to buttress the point that the plaintiffs themselves knew that the property in dispute does not belong to the deceased else they would have added to the inventory of the estate of the deceased. The plaintiffs in their pleadings stated that the property was part of the estate of the deceased which they have obtained letters of administration. From the evidence and the value of the estate with respect to the letters of administration, that cannot be the case. The principle is that where there was a departure from the pleadings at the trial by one party whereas the other’s evidence accorded with his pleadings, the latter was a rule preferable. See Appiah v Takyi (1982-83) GLR 1 (CA), Mahama v Issa (2001-2002) 1 GLR 94, Adom v Marfo (2012) 38 MLRG 68. Also, a party cannot at the trial set up a case inconsistent with his pleadings. See Yungdong Industries v Roro Services (2005-06) SCGLR 816. This is what Kpegah JA as he then was in Zabrama v Segbedzi (1991) 2 GLR 22, said, “It is trite learning that where a party’s evidence is inconsistent with his pleaded case, whilst that of his opponent is consistent with his pleadings, the opponent’s case is preferable to the one who departs from his pleadings”. Again, from the evidence of the plaintiff there is also no evidence that the deceased until his demise had any act of possession or act of control of this property. The plaintiff complained about their rented home all along but from the evidence even after the property was built and roofed, there was no effort from the deceased or the plaintiffs to move to this property. It is on record that the property was rented out to various tenants and one Noah Asamani is in charge, who the plaintiffs claim has defected to the defendant. From the records there is no evidence that the rent which were collected by him were given to the deceased and was used to help in the completion of the building as is the case of the plaintiffs. From the evidence on record before the court, the plaintiffs were not able to prove their case, with respect to the premises in dispute, was infact, the property of the deceased as they could not prove his root of title, mode of acquisition and various act of possession. see: Adjei v Acquah (1991) 1 GLR 13, In Re Taagyen and Assago Stools; Kumanin II (Substituted by ) Oppon v Anin (1998-1999) SCGLR 399. From the evidence, the defendant was consistent with his case before the court during the trial and the cross examination. The defendant attorney testified of how the defendant acquired the property from the Nungua Traditional Council and the various documents that were given to the defendant. The defendant attorney exhibited these documents which indicated the plot number of the property in dispute and the necessary steps taking to complete the regularization of the documentation at the Tema Development Corporation (TDC) that had jurisdiction with respect to the location of the land. The defendant attorney testified how he was involved personally in the construction of the property together with the deceased and they were doing it in favour of the defendant. The defendant attorney also testified to the reason why the defendant did not complete the property and decided to build a new one on the other plot to complete same. The attorney evidence on the misunderstanding that occurred, as a result of the property not being built to specification and the design of the defendant and the husband, which led them to abandoned the property and build a new one to completion. This evidence was corroborated by the witness of the defendant, DW1. From the record before the court and the evidence of the defendant attorney and witness, the defendant has been in control and possession of the property and testified of the fact that the defendant put one Noah Asamani, in charge as a caretaker of the house since 2004. This evidence of the said Noah Asamani being in the house as caretaker has been admitted by the Plaintiffs just that to the plaintiffs, he has defected to the defendant. See In Re: Ansere Stool; Nii Okai Amontia IV (Substituted by Tafo Amon Li) v Oworsika Li (Substituted by Laryea Ayiku III) (2005-2006) SCGLR 637 where the court delivered itself per the following words: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish the facts than by relying on such admission which is an example of estopels. And from the evidence of the defendant this Noah Asamani has all along been renting the place to tenants and has been collecting rent which has been transmitted onward to the defendant. This evidence was also corroborated by DW1 that the rent was collected on behalf of the defendant, which was sent to her, and it was to be used by her the defendant to recoup her investment. Where a party’s evidence is corroborated by that of his opponent while the opponent’s evidence is uncorroborated, the court must prefer the corroborated evidence. See Asante v Bogyabi and Others (1966) GLR 232 (SC), Osei Yaw and Another v Domfeh (1965) GLR 418 (SC), Barclays Bank Ghana Ltd v Sakari (1996-97) SCGLR 639 @ 652, Agyeiwah v P & T Corporation (2007-08) 2 SCGLR 985. This evidence was given by the defendant attorney in paragraph 28 and 29 in his witness statement, but this evidence was not challenged by the plaintiff during the cross examination. I am of the humble opinion that the defendant has been in control and has demonstrated various acts of possession and is still in possession. The tenants who are in occupation pay rent with respect to the property to the defendant. CONCLUSION In conclusion the defendant on the preponderance of probability has been able to prove that the property is the property of the defendant and not the deceased and the issue will be resolved in favour of the defendant. Therefore, the counterclaim of the defendant succeeds except relief (b) “an order setting aside the letter of administration granted to the plaintiffs with respect to the property in dispute as since the property does not form part of the estate of the deceased”. This will not be granted as the court has come to the conclusion that per the letters of administration in evidence, exhibit A, the property in dispute is not part of the estate for which letters of administration was granted. SUMMARY In summary as per the Practice Direction of the Supreme Court in the case of Ken Kwame Asamoah v State Insurance Company (2022) DLSC 11430, Declaration of title of the property in dispute, House No. F/58, Community 16, Tema, measuring 77 feet by 110 feet more or less an approximate area of 0.2 acre more or less, will be made in favour of the defendant as per relief 1 of the counterclaim. A perpetual injunction order will be made against the Plaintiffs and all who claim ownership through them, from interfering in any way manner whatsoever with the defendant ownership, occupation, possession and or control of the said property. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. 22