Tawiah Vrs Osei Tutu (A1/71/22) [2023] GHACC 938 (1 June 2023)

IN THE CIRCUIT COURT HELD IN KUMASI ON THURSDAY THE 1ST DAY OF JUNE, 2023 BEFORE HER LADYSHIP JUSTICE PRISCILLA DAPAAH MIREKU (MRS.), SITTING AS ADDITIONAL CIRCUIT COURT JUDGE. SUIT NO. A1/71/22 KWAKU TAWIAH VRS: MERCY OSEI TUTU AKA SERWA KETEWA ---------------------------------------------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------------------------------------------- The Plaintiff instituted this action against the defendant for the following reliefs; a. A declaration that the decision of the Arbitration Committee is final and binding on parties. b. A declaration title to all that piece or parcel of land (half plot) situate and being at Santasi Apire forms part of the estate of the late Osei Yaw Akoto Ahwereng. c. Recovery of possession from the Defendant. d. Special damages of seventy two thousand being the cost of the foundation that th.e defendant has unlawfully destroyed. e. General Damages. f. An order of Perpetual injunction restraining the Defendant whether by herself, her assigns, agents, workmen, labourers or anyone claiming through her from in anyway interfering with the plaintiff’s possession and control of the land in dispute. The defendant was served with the writ of summons and statement of claim by substitution but failed to enter appearance or file any defence. the court ordered the plaintiff to proceed with the case as if the defendant had entered appearance as stated atb Order 10 rule 6(1) of the High Court Civil Procedure Rules (C. I. 47). The issues that were set down for trial are as follows; 1. Whether or not the decision of the Arbitration Committee is final and binding on the parties. 2. Whether or not the half plot of land in dispute that is half of plot number 28 Santasi Apire forms part of the Estate of the late Osei Yaw Akoto Ahwereng. 3. Whether or not the plaintiff is entitled to his claim. In the case of Aryee v. Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] 1 SCGLR 721 @ 724 the Supreme Court at Holding 4 stated; In every civil trial the proof required was by preponderance of probabilities in accordance with Section 12 of NRCD 323 and the amount of evidence required to sustain that standard of proof was dependent on the nature of the issue to be resolved. Accordingly the court could rely on the evidence of a single witness in proof of the point in issue provided the witness was credible and had knowledge of the subject matter. Therefore, even the failure by a party himself to give evidence could not be used against him by the court in assessing his case. Section 12 of the Evidence Act, 1975 (NRCD 323) provides that, “Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities” and Section 11 of NRCD 323 states, “For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Also in the case of Zabrama v. Segbedzi [1991] 2 GLR 221 @ 246, it was held that, “A person who makes an averment or assertion, which denied by his opponent has a burden to establish that his averment 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 plaintiff was called to prove his case and gave testimony on his own behalf and called one other witness by name Amos Opoku Sarfo (PW1) The case of the plaintiff is that, he is the customary successor of his late father Osei Yaw Akoto Ahwereng a.k.a. Nana Yaw who passed on sometime August 2010 and instituted this action in that capacity. That the defendant is his maternal aunt. According to the plaintiff his late father purchased the subject matter from the defendant and constructed a two bedroom structure on it through PW1 his brother. That upon the demise of his father he was chosen by the family to be his customary successor and and administer his estate. He decided to develop the remaining portion of the land and the defendant instituted an action against him and the mother of his late father. The matter was struck out by the High Court but both parties submitted to the elders of the family for amicable settlement of the dispute in which the defendant prayed for half of the land and they agreed to same. The land was equally distributed between them but the defendant has entered on his portion of the and destroyed the construction he made on same. The plaintiff is suing in the capacity as the customary successor of the late Ahwereng a.k.a Nana Yaw. The plaintiff has not indicated to the court whether letters of administration has been taken in respect of the estate of the deceased. Even though he is a son of the deceased, he is suing in the capacity as a customary successor and not as a beneficiary. The issue to consider before I go into the substance of the case is whether or not the plaintiff has capacity to institute this action as a customary successor. One of the declarations the plaintiff is seeking is that, the subject matter forms part of the estate of the deceased aforementioned. In the case of Okyere (Deceaded) v. Appenteng & Adoma [2012] 1 SCGLR 65 this statement was made, “the import of the judgment in this case is this: when a person dies testate or intestate, his estate devovlves on the executor or personal representative respectively until vesting assent been executed to the beneficiaries and devises have no title or locus standi over any portion of the estate.” The Supreme Court stated in the case of Adisa Boya v. Zenaby Mohammed (substituted by Adam Mohammed) and Mujeeb Civil Appeal N0. J4/44/2017) DATED 14TH February, 2018 that, the above statement was made obiter and that it was important to determine which party owned the disputed land put to rest once and for all. The Supreme Court also stated that as judges we are enjoined to avoid multiplicity of actions by the very clear words of Order 1 rule 2 of the High Court (Civil Procedure) Rules, 2004, C. I 47. The Supreme Court in the above mentioned case Adisa Boya v. Zenaby Mohammed (substituted by Adam Mohammed) and Mujeeb supra further held that, Proceeding further, we are of the view that by virtue of the rules in intestacy contained in section4(1)(a) of the Intestate Succession Law, PNDC Law 112, following the death of the father of the defendants and their mother- the original 1st defendant, the property devolved upon the children and as such they had an immediate legal interest in the property that they are competent to defend and sue in rest of and in any such case either the children acting together or any of them acting on behalf of the others may seek and or have an order of declaration of title made in their favour. In the instant case, the plaintiff sued in his capacity as the customary successor and not as a beneficiary of the estate of his late father. He is also seeking a declaration that, the subject matter form part of the estate of his late father Osei Yaw Akoto Ahwereng. The defendant was served with all the processes filed by the plaintiff and the defendant has not filed anything to challenge the capacity or assertions of the plaintiff. Even if the plaintiff could not sue as a customary successor, he had capacity as a beneficiary of his late father’s estate. Thus had capacity to institute this action. With the issue of capacity dealt with, the first issue for consideration is whether or not the decision of the Arbitration Committee is final and binding on the parties. The plaintiff testified that the defendant herein instituted an action against his grandmother and himself in respect of the subject matter at the High Court which same was struck out by the court for want of prosecution and tendered a copy of the ruling in court marked as Exhibit ‘B’. That after the case was struck out, his grandmother who is also mother of the defendant admonished the parties refer the dispute to some elders in the family for a peaceful and final resolution of the issues. That the arties herein voluntarily submitted the didpute to a panel or committee made up of members of the Asenie family, Oyoko family of Apeaso, Sekyedumase and the Queen of Sekyedumase, Nana Anteabea II. According to the plaintiff, the committee resolved that the land be divided equally between the parties which both parties accepted and the defendant presented a carton of soft drinks as ‘aseda’. This claim was corroborated by PW1 his brother who also claim to be present when the said arbitration took place. Section 1 of the Alternative Dispute Resolution Act, 2010 (Act 798) provides that, This Act applies to matters other than those that relate to (a) the national or public interest; (b) the environment; (c) the enforcement and interpretation of the Constitution; or (d) any other matter that by law cannot be settled by an alternative dispute resolution method. Chapter three of the Act aforementioned deals with Customary Arbitration. According to Section 89(1) of Act 798, “A party to a dispute may submit the dispute to customary arbitration under this Part.” For there to be a valid customary arbitration there must be; 1. Voluntary submission of parties to the arbitration committee. 2. A pronouncement of an award by the committee 3. Publication of the award 4. Thanksgiving also known as ‘aseda’. The evidence show the ingredients aforementioned thus there was a valid arbitration and the defendant choosing the lefy potion of the land facing the property from the street in front of the land in dispute has no business trespassing on the other half. The second issue is whether or not the half plot of land in dispute that is half of plot number 28 Santasi Apire forms part of the Estate of the late Osei Yaw Akoto Ahwereng. The plaintiff has led evidence to show that the late Osei Yaw Akoto Ahwereng bought the subject matter from the defendant his sister and upon his death it became a subject of arbitration and the arbitration panel came out with their award. Thus the subject matter falls under his estate especially so when there is no evidence to the contrary. The plaintiff alleges the defendant has trespassed on their side of the land and caused damages to their late father’s structure thereon and tendered a picture of same as proof marked as Exhibit ‘A’. The plaintiff is therefore praying recovery of possession and for special damages of seventy two thousand being the cost of the foundation that the defendant has unlawfully destroyed. The plaintiff give particulars of special damage as follows; a. 2000 concrete blocks - GH₵10,000.00 b. Cement - GH₵20,000.00 c. Workmanship for mason (labour) - GH₵22,000.00 d. Iron rods TOTAL - GH₵20,000.00 - GH₵72,000.00 The plaintiff did not lead any evidence as to how he came by these figures. In a recent case of Equity Assurance v. Palmers Green Int’l Ltd [2019] 134 GMJ 57, proof in civil trials were stated as follows; Section 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) require a plaintiff in a civil matter to prove his case on a balance of probabilities. Based on section11(4( and 12 of Evidence Act (NRCD 323), the Supreme Court in the case of Awubeng v. Domfeh [1996-97] SCGLR 660 held that standard of proof in all civil action was proof by the preponderance of probabilities and there is no exception to this rule. On the award of special damages, the law is clear that is must be specifically pleaded and proven (see the case of Margaret Dampare v. BSD Mining Company Ltd. (Suit No. H1/52/2021, 10th February,2021). Just stating figures as cost for damages caused to the structure on the subject matter is not enough. The plaintiff failed to proof that claim by the preponderance of probabilities. The claim for special damages is hereby dismissed. In conclusion of this case, this court enters judgment for the plaintiff against the defendant for the following reliefs; a. A declaration that the decision of the Arbitration Committee is final and binding on parties. b. A declaration title to all that piece or parcel of land (half plot) situate and being at Santasi Apire forms part of the estate of the late Osei Yaw Akoto Ahwereng. c. Recovery of possession from the Defendant. d. General Damages of GH₵30,000.00 e. An order of Perpetual injunction restraining the Defendant whether by herself, her assigns, agents, workmen, labourers or anyone claiming through her from in anyway interfering with the plaintiff’s possession and control of the land in dispute. f. Cost of GH₵10,000.00 SGD. H/L PRISCILLA DAPAAH MIREKU J. CIRCUIT COURT 2, ADUM 9