Ampomsah Vrs Konyoh and Another [2023] GHADC 106 (3 July 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT NEW TAFO-AKIM ON MONDAY 03-07-2023 BEFORE HER WORSHIP JOSEPHINE SARFO (MRS.) SUIT NO: A1/03/2022 ABUSUAPANIN KWAKU AMPOMSAH H/NO. TC 37 NEW TAFO-AKIM PLAINTIFF VRS 1. ATITSO KONYOH 2. JONNY TENURE NEW TAFO-AKIM DEFENDANTS PARTIES - PRESENT JUDGMENT The Plaintiff in its amended writ seeks the following reliefs: a. An order of the court compelling Defendant to account for his stewardship after the death of Opanin Kofi Appiah in the year 2015. b. An order to eject Defendant from the family farm land. c. Cost of litigation. Plaintiff avers per the statement of claim that he is the head of family of the Nyarkoa family while the 1st Defendant is the caretaker of the Nyarkoa family cocoa farms. Among the cocoa farms is a 25 acre cocoa farm situated at Anomabo, New Tafo-Akim. The Plaintiff’s late brother, Kofi Appiah cultivated this cocoa farm in his lifetime. Upon his demise, one Johnny Turner, the 2nd Defendant was appointed as the customary successor to succeed Kofi Appiah and act as caretaker for his self-acquired properties. During the lifetime of Kofi Appiah who succeeded one Abena Nyarkoa, the 1st Defendant was rendering accounts to the family however, since Plaintiff was appointed the head of family of the Nyarkoa family, the 1st Defendant has never rendered accounts to him but has rather colluded with the 2nd Defendant who has being holding himself out as the head of family to the detriment of the entire family. Plaintiff avers that the issue about the headship of the Nyarkoa Family has been settled by the Court pronouncing him as head of family. It is the case of the Plaintiff that the 1st defendant has taken advantage of the fact that 2nd Defendant is visually impaired and gives any amount to him as the family’s share from the proceeds of cocoa. That when Agric Extension officers cut down the cocoa trees and paid compensation, the Defendants took the compensation. Furthermore, when the Municipal Assembly wanted a site to construct a borehole, the defendants released the family land without consulting and seeking the consent of the family and took compensation from the Assembly. The Plaintiff avers that the 1st defendant has been summoned on several occasions by the family which went unheeded and he has also been cautioned to stop accounting to the 2nd defendant as he is not the head of family of the Nyarkoa family. According to the Plaintiff, since the cocoa trees have been cut down, the services of the 1st Defendant will no longer be needed. The 1st Defendant in his statement of defence denied the claim of the Plaintiff. He avers that he has been caretaker of the Nyarkoa family lands for six different successions, i.e. Ofosu Appiah, Gyamfua, Akoto, Abena Fio, Kofi Appiah and Johnny Turner. He avers that Kofi Appiah in his lifetime asked him to render accounts of the cocoa proceeds to the 2nd Defendant. That being a caretaker only and not a family member of the Plaintiff’s he is not in a position to know who the actual head of family is. He also states that he was summoned to a meeting by the Plaintiff’s family, however, he informed them to resolve issues surrounding the headship of the family first. That it was the 2nd Defendant who received compensation for the cutting down of the cocoa trees by the Agric Extension Officers. He also denies giving out the farm to the Assembly and receiving compensation in respect of same. The 2nd defendant who was joined to this suit per an oral application granted by this Court on 23/09/21, denied that the Plaintiff was the head of family of the Nyarkoa family. He avers that upon the death of Opanin Ofosu Appiah then head of family of the Nyarkoa family, Abena Gyamfua was appointed to succeed him. Upon her death, Abena Fio was appointed and she was also succeeded by Akua Akoto. Kofi Appiah was appointed to succeed Akua Akoto upon her demise. According to 2nd Defendant, before the aforementioned people were appointed as head of family of the Nyarkoa family, the family met at the family house, “susubiribi house” to appoint them. Equally, when he was appointed upon the death of Kofi Appiah as the head of family of the Nyarkoa family, the family again met and the Plaintiff informed the family at the meeting that, Kofi Appiah had informed him during his lifetime that, upon his demise, the 2nd Defendant should succeed him. The 2nd defendant therefore counterclaims against the Plaintiff as follows: a. An order to restrain Plaintiff from imposing himself as the Abusuapanin of Nyarkoa family. b. Costs. At the close of the pleadings, the issues which came up for determination by the Court were: 1. Whether or not the Plaintiff or the 2nd Defendant is the head of family of the Nyarkoa family? 2. Whether or not the 1st Defendant is accountable to the Plaintiff or the 2nd Defendant? 3. Whether or not 1st Defendant forfeited his caretaking duties per his denial of the Plaintiff’s title. 4. Whether or not the 1st Defendant should be ordered to give account of his stewardship from 2015 till date? 5. Whether or not 1st Defendant should be evicted from the cocoa farm as caretaker for failing to render accounts to the Plaintiff? It is instructive to point out at this stage that the Plaintiff who issued the writ in his capacity as head of family of the Nyarkoa family did not testify but called two witnesses Kwabena Asiedu-PW1 and Nancy Sarfoah Okyere-PW2 who testified on his behalf. Upon the close of the Plaintiff’s case however, and before the Defendants could open their defence, the Plaintiff gave power of attorney to Kwabena Asiedu-PW1 to conduct the case in his stead on grounds that he was indisposed and could not move around. In view of the power of attorney dated 26th January 2023, PW1 becomes the Plaintiff’s lawful attorney and PW-2 becomes PW-1 for the purposes of this judgment. ANALYSIS OF THE EVIDENCE AND EVALUATION OF THE LAW As there is a claim and a counter claim both parties have obligations to prove their claims and counter claims on the balance of probabilities. The dictum of Brobbey JSC in the case of IN RE ASHALLEY BOTWE LANDS [2003 – 2004] SCGLR 420 is instructive in this regard that: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…” In respect of the defendants’ counter claim it is to be viewed with the same scale of measurement as if they were the plaintiff. As far back as the case of AMON v BOBBETT (1889) 22 QBD 543 where Browne LJ noted that: “a counter claim is to be viewed and to be treated for all purposes for which justice requires it to be so treated as an independent action”. Dotse JSC came to the same conclusion on counter claim actions in the case of JASS CO. LTD v APPAU [2009] SCGLR 269 at 271 that: ‘whenever, a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant just as it was used to evaluate and assess the case of the plaintiff against the defendant’ The Plaintiff testified through his lawful attorney Kwabena Asiedu and PW1-Nancy Safoah Okyere. The lawful attorney testified and tendered into evidence a decision of the Circuit Court in the case of Abena Oforiwaa and 2ors vrs Opanin Kofi Appiah substituted by Opanin Kwaku Amponsah & anor suit no. C1/18/2010 which affirmed the Plaintiff as head of family of Nyarkoah family as Exh. ‘A’. The judgment of the Court of Appeal in the case of Abena Oforiwaa & 2ors vrs Opanin Kofi Appiah substituted by Opanin Kwaku Amponsah Suit no H1/09/2020 which affirmed the decision of the circuit court supra as Exh ‘B’ and a ruling of the High Court, Koforidua in the case of Opanin Kwaku Amponsah & anor vrs Adonten Community Bank Suit no. CI/52/2020 which refused the application of John Turner 2nd Defendant herein and one other to join the said suit as 2nd and 3rd Defendants as Exh, ‘C’. These exhibits were tendered into evidence without objection. The evidence of the 1st Defendant is that he has been caretaker for the Nyarkoa family for six different successions including Kofi Appiah whom the 2nd Defendant succeeded. During the lifetime of Kofi Appiah, he ordered him to render accounts on the cocoa farm to the 2nd Defendant. He was called to a meeting concerning the rendering of accounts by the family but he told the family that he was not present when they met to appoint the 2nd Defendant as the head of family and as far as he was concerned the 2nd Defendant was the head of family of the Nyarkoa family. The 2nd defendant was the one who processed the documentation when the Cocoa services Division cut down the cocoa trees which were affected by the swollen shoot disease. Furthermore, the Municipal Assembly did not pay any compensation to them for the drilling of the borehole. In the evidence of the 2nd Defendant who stated that in 2012, the late Kofi Appiah gifted the cocoa farm in dispute to the children of the late Ataa Darkoa which includes the 2nd Defendant for the reason that they had been cheated for quite some time. The late Kofi Appiah further instructed the Cocoa Buying Company to be paying the proceeds of the cocoa to the children of the late Ataa Darkoa and such has been the norm since 2012. According to the 2nd Defendant, the family met at the family house at Susubiribi house to appoint him as the head of the Nyarkoa family and the Plaintiff informed the family members at the said meeting that the Late Kofi Appiah told him during his lifetime that upon his demise, the 2nd Defendant should succeed him. His appointment was not disputed by any of the family members gathered. 2nd Defendant raised serious allegations of connivance between the Plaintiff and his lawful attorney to sell off the family properties which he was not in favour of and thus the Plaintiff and his lawful attorney have not been on talking terms with him for some time now. He alleged that they sold a family land and upon the said transaction coming to his notice he recovered the land from the buyer and the buyer instituted an action against the Plaintiff and the lawful attorney for a refund of the money in this Court. He stated that some compensation was paid when the Cocoa trees were cut down. He however denied that any compensation was paid for the drilling of a borehole by the Municipal Assembly. The Plaintiff’s lawful attorney on the other hand stated that 2nd Defendant was merely appointed the customary successor of the personal or private estate of the late Kofi Appiah i.e., his Self-acquired properties in contrast to the family properties for which Kofi Appiah was custodian for the family. It was made clear to the 2nd Defendant that he was not the head of family nor the custodian of the family properties. Therefore, 2nd Defendant was not the right person to receive rents or to be accounted to. According to the Plaintiff’s lawful attorney, 2nd Defendant colluded with the 1st Defendant using his position as successor to the personal estate of the late Kofi Appiah to dissipate properties and revenues of the family. This piece of evidence was corroborated by PW-1. Essentially the Plaintiff relied on the decisions supra to assert his position as the head of family of the Nyarkoa family as the Defendants especially the 2nd Defendant is disputing his position as the head of family and invariably his capacity to bring this action. In sounding a death knell on the issue of the capacity of the Plaintiff in the case of Abena Oforiwa & 2ors vrs Opanin Kofi Appiah substituted by Opanin Kwaku Amponsah Suit no H1/09/2020, the Court of Appeal affirmed the decision of the Circuit Court in Abena Oforiwaa and 2ors vrs Opanin Kofi Appiah substituted by Opanin Kwaku Amponsah & anor suit no. C1/18/2010 thus, “what then is the evidence in the present case to support the defendants’ capacity or lack thereof to mount their counterclaim? The uncontested evidence of Obaapanyin Yaa Akyeaa, the current second defendant, as well as that of DW1 Safoa Okyere, shows that at the time Plaintiffs filed (their) suit, the original defendants were the leaders of the immediate family of Opanin Kofi Oduro they being the eldest surviving nephew and niece respectively. According to the second Defendant, the current first defendant is now the head of that family while she was appointed in place of her deceased mother, that is the original second defendant. Considering that this case has been pending in this court for more than eight years and that no other person besides the defendants has claimed to be head of Kofi Oduro’s family or successor, I accept the above pieces of evidence which I find as facts. Having regard to the pleadings and relying on the decisions on capacity referred to, I would dare say that the defendants had capacity to sue and be sued in respect of that property that they assert to be their family property” Furthermore, per the ruling of the High Court, Koforidua in dismissing the application of the 2nd Defendant and one other to join the suit in Opanin Kwaku Amponsah & anor vrs Adonten Community Bank Suit no. CI/52/2020, the Court ruled as follows: “1st Applicant by his own showing has demonstrated that he is not the head of family of the Abena Gyamfua family to which the disputed property belong. 2nd Applicant is not the head of the Abena Gyamfua family to be clothed with capacity to sue. 1st Respondent is the head of the Abena Gyamfua family so clothed with the requisite capacity to sue. Respondents are members of the Abena Gyamfua family thus being the immediate family members of the late Opanin Kofi Oduro, they are the immediate family members envisaged per the judgment of the Court of Appeal supra and by customary law”. It is patently clear from the above-mentioned decisions that Kwaku Amponsah is the head of family of the Nyarkoa family. The defendants did not adduce any evidence to the effect that these decisions had been set aside. This Court being a lower court is bound by these decisions of the High Court and Court of Appeal supra. I find thus that Opanin Kwaku Amponsah is the head of the Nyarkoa family and any attempt by this Court to injunct him from holding himself as such will fly in the face of the aforementioned decisions of the Court of Appeal and the High Court. I further find that 2nd Defendant was appointed the customary successor of the late Kofi Appiah. His status as a customary successor is not synonymous to the status of a head of family even though one person may at a point play both roles it is not the case in respect of the 2nd Defendant herein. Was the 1st Defendant accountable to the Plaintiff or the 2nd Defendant? The 2nd Defendant stated that the cocoa farm Plaintiff is seeking to evict the 1st Defendant from was gifted to his late mother, Ataa Darkoa’s children by the late Kofi Appiah in 2012. The said Kofi Appiah per the facts died in the year 2015. Since his death 1st Defendant has refused to render accounts to the Plaintiff despite persistent demands from Plaintiff for him to do so. 1st Defendant stated that while alive, Kofi Appiah ordered him to render accounts to the 2nd Defendant so he has heeded to the said orders till date. As far as he 1st Defendant was concerned, 2nd Defendant is the head of family of Nyarkoa family. If the cocoa farm was indeed gifted to the children of the late Ataa Darkoa then 1st Defendant in rendering accounts to 2nd Defendant would be justified as the 2nd Defendant is one of the children of the late Ataa Darkoa. It is instructive to note however, that aside the 1st Defendant who himself has stated that he is not a member of the family of the Plaintiff and the 2nd Defendant i.e., Nyarkoa Family, 2nd Defendant did not call any family member or witness who was present when the Late Kofi Appiah gifted the cocoa farm to 2nd Defendant’s late mother’s children in 2012. For the law is that “In the case of a personal gift the owner’s decision is not subject to approval or consent from anyone. The only condition is that it should not be done in secret. It should be witnessed by others, preferably by members of the immediate family of the donor who are not entitled to question his decision provided they have no interest in the property which he intends to give away”. It does not end there. The beneficiary of the gift expresses his acceptance and gratitude for the payment of “aseda” in any form depending on the circumstances of each case”. SEE THE CASE OF AKUNSAH v BOTCHWAY & RIVER FARMS LTD [2011] SCGLR 288. In 2012, when the 1st Defendant was asked by Kofi Appiah to render accounts to the 2nd Defendant, who only passed on in 2015, three years after the said directive, Kofi Appiah would have informed Plaintiff who happens to be his brother about the customary gift made to 2nd Defendant and his siblings as well as the directive to 1st Defendant to begin rendering accounts to 2nd Defendant. The Cocoa farm as the 1st and 2nd Defendant has rightly stated has passed from six different successions with the 1st Defendant being the caretaker during all these successions. I gather from the facts and evidence before this court that the cocoa farm at Anomabo, New Tafo-Akim is a family property having passed from one succession to the other. It cannot be the case that the 5th successor being Kofi Appiah could have gifted the cocoa farm to the 2nd Defendant and his siblings without the knowledge and concurrence of the family. Since, it was neither the self-acquired property of the late Kofi Appiah nor the property of the 2nd Defendants and his siblings being children of the late Ataa Darkoa, the 1st Defendant had no right to account to the 2nd Defendant. This is even so when there is overwhelming evidence on record that the Plaintiff sought to cause the 1st Defendant to remedy his breach in failing to render accounts to him but the 1st Defendant refused to heed to any such calls for him to do so. The Plaintiff being the head of family of the Nyarkoa family and custodian of the cocoa farm which is a family property, he was the proper person the 1st Defendant was accountable to in respect of the cocoa farm. For his failure as a caretaker in failing to render accounts to the Plaintiff, I order the 2nd Defendant to give account of his stewardship since the death of Opanin Kofi Appiah in 2015 till the year 2019 when the cocoa trees were cut down/till date to the Plaintiff. Has the 1st Defendant forfeited his position of as caretaker of the farm per his denial of Plaintiff’s title as head of the Nyarkoa family and in failing to render accounts of his stewardship of the cocoa farm? In the case of ANTIE & ADJUWAH V OGBO 2005-2006 SCGLR 49, the Supreme Court per Georgina Wood JSC (as she then was), said as follows: “the common law rule as to forfeiture by a licensee or tenant who challenges the title of his licensor or landlord has received statutory recognition under Sections 27 and 28 of the Evidence decree 1975 (NRCD 323). The law is that a licensee or tenant who denies the title of his licensor or landlord, either by claiming that title to the subject is vested in himself or herself or someone else forfeits his or her interest. In view of the Plaintiff’s direct challenge to the defendant’s lawful claim to ownership, he has forfeited his right to remain in the premises”. The 1st defendant was accounting to the 2nd Defendant in respect of the family cocoa farm. Despite attempts by the Plaintiff to cause him to stop accounting to the 2nd Defendant, 1st Defendant continued to do so with the excuse that the predecessor of the 2nd Defendant in 2012, asked him to render accounts to 2nd Defendant during his lifetime. It is on record that Kofi Appiah died in 2015 and the 1st Defendant has since 2015 not accounted of his stewardship of the cocoa farm to the Plaintiff. The 1st Defendant in rendering accounts to 2nd Defendant and failing to recognize the Plaintiff as the head of family of the Nyarkoa family, denied the title of the Plaintiff as his licensor and therefore forfeited his stewardship duties. Accordingly, he cannot continue to perform his duties as caretaker and I hereby order his eviction from the family’s cocoa farm at Anomabo. CONCLUSION In conclusion, I dismiss the counterclaim of the 2nd defendant and grant the reliefs endorsed on the writ of the plaintiff. I accordingly order as follows: a. The 1st Defendant to account to the Plaintiff of his stewardship of the cocoa farm at Anoabo since the death of Opanin Kofi Appiah in 2015 till the year when the cocoa trees in the farm were cut down. b. Recovery of the cocoa farm of the Nyarkoa family from 1st Defendant and Ejectment of the 1st Defendant from the said cocoa farm as caretaker. c. The 2nd Defendant to refund any proceeds received in respect of the cocoa farm since the death of Opanin Kofi Appiah in 2015 till the year the cocoa trees in the farm were cut down. d. Cost of GHC 1000.00 against the Defendants in favour of the Plaintiff. SGD H/W JOSEPHINE SARFO (MRS) 12