DARKU AND ANOTHER VRS. BLANKSON-DARKU (LD/1120/2019) [2023] GHAHC 672 (31 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE FINANCIAL & ECONOMIC DIVISION ACCRA-A. D. 2023 ON …….. THE 31st DAY OF JULY, 2023 BEFORE HIS LORDSHIP JUSTICE DR. ERNEST OWUSU-DAPAA JA SITTING AS AN ADDITIONAL HIGH COURT JUDGE SUIT NO: LD/1120/2019 1. GEORGE N. A BLANKSON DARKU ... ... PLAINTIFF H/No. B 486/4, Mount Zion Street, Mataheko. 2. MRS. VICTORIA BENEDICTA BRIGHT-DAVIES H/No. 2, North Nmenmete Link, Mataheko (suing for themselves as Administrators and Beneficiaries of the Estate of Emmanuel Mensah Blankson-Darko and also for and on the Beneficiaries of the Estate) VRS CARLIS BLANKSON-DARKU .............. DEFENDANT (alias Nana Darku Djan III) Kaneshie – Accra INTRODUCTION JUDGMENT Page 1 of 28 1, BACKGROUND FACTS 2. The Plaintiff herein commenced the instant action by a Writ of Summons issued on 19th August, 2019 claiming the following reliefs against the Defendant: a. A declaration that H/No. 13 Asafoatse Omani Street, Kaneshie was the self- acquired property of the late Emmanuel Mensah Blankson-Darku. b. An order restraining the Defendant herein from performing and or using H/No. 13 Asafoatse Omani street, kaneshie for chieftancy matters, celebration of Homowo Festival and any ritual/traditional purposes since the house is not a stool house. c. An order for Judicial sale of the said property H/No. 13 Asafoatse Omani Street be sold and the proceeds shared equally amongst the four (4) male children of the late Emmanuel Mensah Blankson-Darku or in the alternative the Defendant and his cohorts buys out the interest of the other beneficiaries. d. Perpetual injunction restraining the Defendant, his agents, assigns, privies, workmen, whosoever claiming through them from using H/No.13 Asafoatse Omani street, kaneshie as a stool house. e. costs. 2. The Defendant filed a Statement of Defence on 29th October, 2019 and also Counterclaimed for the following reliefs against the Plaintiff: i. A declaration that the kaneshie house being for all the four male children of the Testator which the Testator declared to be enjoyed by the children as Tenants-in- Page 2 of 28 common and the Male children being the only occupants of the stool of the family and the children and grandchildren not being able to build a palace for all their chiefs, the common house belonging to all of them is the Palace of Nii Djan We (Otublohom Nifa Division). ii. A Declaration that until all the beneficiaries have been able to build a separate palace for their Gyasehene the kaneshie House shall remain the palace for Nii Darku Djan We where their chiefs shall reside in peace and comfort. iii. A Declaration that the said Kaneshie House shall not be sold out at any time by any of the beneficiaries until Nii Darku Djan We is able to build a palace for the family. iv. Perpetual injunction restraining the Plaintiffs, their agents, beneficiaries of the Testator, servants, workmen or any person claiming through the plaintiffs from interfering with the peaceful stay of the Defendant in the Kaneshie House. v. Costs including legal fees. vi. The Defendant claims one plot of land from the 4 plots of the 2nd Plaintiff at Mataheko. vii. The Defendant claims for the Plaintiffs a proper account and contracts of all properties of the beneficiaries for which the 1st Plaintiff is collecting rents, e.g. a. Land situated at Dome. b. Goil Filling Station at Lartebiokoshie. The contract between 1st Plaintiff and the Goil company. c. shares in the Enterprise Insurance. d. Small plot behind the Shell Filling Station ( Abossey Okai Spare parts ) e. Total Filling Station-Kaneshie (Contract) Page 3 of 28 f. interest on land on the winneba Road near/opposite Kaneshie Market H/No. B 719/4 Kaneshie. g. First light Land leased to Denor Moolchandani 0.96 acres in 25/8/1978. 3. The Plaintiffs’ case, by the Statement of Claim and Witness Statement filed in this matter, is that the Plaintiffs are the children of the late Emmanuel Mensah Blankson-Darku and the Defendant is the grandchild of the late Emmanuel Mensah Blankson-Darku. The Plaintiffs aver that H/No. 13 Asafoatse Omani street, kaneshie was the self-acquired property of their father, the late Emmanuel Mensah Blankson- Darku. 4. The said Emmanuel Mensah Blankson-Darku died testate in April 1980 and probate was granted to three executors who have all passed away without completing the executorship. On 5th February, 1996, Letters of Administration De Bonis Non was granted to Plaintiffs and Emmanuel Blankson-Darku (now deceased) . 5. The plaintiffs say the Testator in his will bequeathed H/No. 13 Asafoatse Omani street to his four (4) male children namely; Daniel Nii Darku Blankson, Emmanuel Nii Djan Blankson-Darku, George Nii Amu Blankson-Darku and David Nii Otodin Blankson-Darku as tenants in common and out of the four (4) male children only George Nii Amu Blankkson-Darku remains alive. 6. Plaintiffs say that the Defendant has styled himself Akwamu Otublohum Nifa Gyasehene of Nii Djan We whose stool house is located at Korle Wokom but has been using the house the house the subject matter in dispute as his palace where he holds meetings pertaining to chieftaincy matters and also the celebrations of Ga Homowo festival, without reference to or the consent and concurrence of the plaintiff’s. The Plaintiff further say that there is no nexus whatsoever between the stool house at Otublohum and the self-acquired residence of the late Emmanuel Mensah Blankson- Darku at kaneshie. Page 4 of 28 7. The Plaintiffs aver that the Defendant’s father, the late Emmanuel Blankson-Darku who was a Dzasetse known as Nana Darku Djan II, never in his lifetime used the house in question for any rituals or chieftaincy matters because he restricted such matters to the family stool house in Otublohum. contrary the Defendants usage of the Kaneshie house as his palace. The Defendant currently performs deep seated rituals in the house by killing goats, sheep, fowls etc and sprinkles blood in some part of the house which has compelled many occupants to move out of the house. 8. Plaintiffs say that, the 1st Defendant has caused the house to be named Otublohum Nifa Division Nii Dzan We (DODOO PRAH). He has unlawfully taken over the property No 13 Asafoatse Omani street, Kaneshie to his exclusive use and have also given portions to his friends and cronies thereby depriving the proper beneficiaries, the legitimate use of the property. 9. Plaintiffs aver that pursuant to a meeting held at the residence of the 2nd Plaintiff on the 10th day of November 2018, the beneficiaries agreed that the said Hse No. 13 Asafoatse Omani street be sold and the proceeds be shared amongst the beneficiaries equally. The House Numbered 13 Asafoatse Omani street, Kaneshie shall hereafter be called the Kaneshie house. THE CASE OF DEFENDANT 10. The case of the Defendant, as gleaned from their pleadings and witness statement is that he was enstooled by his family as their sub-chief (Gyasehene). The Defendant avers that Gyasehene position belongs to Otubluhum Djan We to which the Plaintifffs and the Defendant belong, hence his father Emmanuel Blankson-Darku Jnr; the second son (of the late Emmanuel Mensah Blankson-Darku) , was properly and lawfully enstooled as the second Gyasehene of Otublohum Nifa Nii Djan We and that it was after his death the Defendant was properly enstooled as Gyasehene under the name Nana Darku Djan III. Page 5 of 28 11. The Defendant further avers that it is only Blankson-Darku family who can occupy the Gyasehene stool which belongs to all of them. The Defendant says that during the life time of the past Gyasehene it was the kaneshie house that was used for meetings and rites and that same has not changed during his reign. 12. The Defendant avers that the Kaneshie house was given specifically to the male children of the Testator and that the 1st Plaintiff is the only surviving male child of the Testator who has never lived in the kaneshie house since the death of the Testator but attends family meetings in the said house. 13. The Defendant claims that since the stool belongs to Nii Djan We and their chief live at the Kaneshie House, there is an important link between the stool House and Kaneshie House. And also since they do not have a separate palace for their chiefs, the Kaneshie House has become the residency of their chief. The Defendant says that he has not taken the property Kaneshie house for his exclusive use. ISSUES SET DOWN FOR TRIAL 14. The following issues were set down for trial at the end of application for direction; a. Whether or not House No. 13 Asafoatse Omani street, kaneshie was the self- acquired property of the late Emmanuel Mensah Blankson - Darku b. Whether or not the Testator in his will bequeathed House No. 13 Asafoatse omani street to his four male children as tenants in common in clause 7 of his will and Testament. c. Whether or not the Defendant has been using House No. 13 Asafoatse omani street in holding meetings pertaining to chieftaincy matters, and performing deep seated rituals in the said house. d. Whether or not the Defendant has taken over the said house to his exclusive use and has also given portions to his friends and cronies thereby depriving the proper beneficiaries the legitimate use of the property. Page 6 of 28 e. Whether or not a meeting was held on the 10th day of November 2018 wherein all the beneficiaries save the Defendant and his cohorts agreed that House No. 13 Asafoatse Omani street be sold and the proceeds be shared amongst them equally. 15. The Defendant also proposed the following additional issues to be set down for trial but only issues (ii) and (v) below were accepted by the Court in addition to all issues filed by the Plaintiffs when the court dealt with application for directions on 20th October 2022 . I have used strikethrough function on the word processor to indicate the Defendant’s issues rejected by the Court during directions. i. Whether or not the 1st Plaintiff has, for the past 39 years ever lived in H/No. 13 Asafoatse Omani street, kaneshie. ii. whether or not this Kaneshie House was used by Nana Darku Djan II for performance of Homowo celebrations, ceremonies, marriage rites etc. except rituals of the stool which must be performed at the stool House at Korle Wokon iii. Whether or not the Defendant is a beneficiary of the kaneshie House together with the children of the four (4) male children of the Testator and have allowed the Defendant as their chief to live in this house. iv. Whether or not the Defendant is the chief for Otubluhom Nifa Division, Nii Djan We. v. Whether or not the meeting of 10th day of November, 2018 excluding the Defendant is null and void. STANDARD OF PROOF, BURDEN OF PROOF AND PERSUASION 15. In all forms of civil litigation; the standard of proof is one of the preponderance of probabilities. The proof prescribed in civil trials is provided under sections 10, 11 and 12 of the Evidence Act, 1975, NRCD 323. These sections on the burden of proof, burden of persuasion and burden of producing evidence provide thus: Page 7 of 28 “Section 10 (1) For the purpose of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) To raise a reasonable doubt concerning the existence or non- existence of a fact, or (b) To establish the existence or non- existence of a fact by a preponderance of probabilities or by proof beyond reasonable doubt. Section 11 (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party… Section 12(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) Preponderance of the probabilities’ means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non- existence.” 16. As held by the Supreme Court per Adinyira, JSC in ACKAH V PERGAH TRANSPORT LTD [2010] SCGLR 728 at page 736 “It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…” See also the case of Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] SCGLR 721 At 733 where the Supreme Court speaking through Benin JSC had this to say: “It must be pointed out that in every civil trial all what the law required is proof by preponderance of probabilities: See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved”. 17. is essential to establish the burden of proof in this matter. As is trite learning, the Plaintiffs bear the evidential burden to adduce sufficient evidence if they are to secure Page 8 of 28 a ruling on the existence or non-existence of a fact crucial to the reliefs they seek. The learned jurist S. A Brobbey, in his book, ESSENTIALS OF GHANA LAW OF EVIDENCE at page 28 posits as follows: “ In the normal run of affairs, since the plaintiff is the one asking for something from the defendant, he should be the one who will start the proceedings by giving his testimony. That testimony will show what he wants from the defendant and why he wants the court to order the defendant to give it to him. If he drags the defendant to the court but he fails to lead evidence to establish his claim and the basis of the claim, he cannot have the assistance of the court to get what he wants. In life, one gets nothing from nothing. So it is in law. If the party does not lead evidence to establish the claim or its basis, the court will have no grounds or reason or basis for making any order in his favour. If he leads no evidence…”. 18. Similarly, in the case of DUAH v YORKWA [1993-94]1 GLR 217, Brobbey JA (as he then was) held as follows: “Part II of NRCD 323 which deals with the burden of proof covers on the one hand, the burden of persuasion under sections 10, 14 and 15 of NRCD 323 and on the other hand, the burden of producing evidence under sections 11, 12 and 13 of NRCD 323. Considering the wording of section 10 (1) of NRCD 323 in the light of the Commentary on the Evidence Decree at pp 14- 16, I am of the view that the expression “burden of persuasion” should be interpreted to mean the quantity, quantum, amount, degree or extent of evidence which a litigant is obligated to adduce in order to satisfy the requirement of proving a situation or a fact. The burden of persuasion differs from the burden of producing evidence. Under sections 11, 12 and 13, particularly section 11 (1) of NRCD 323 the burden of producing evidence “means the duty or obligation lying on a litigant to lead evidence.” In other words, these latter actions cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led. See also the case of Sarkodie v. FKA Co Ltd (2009) SCGLR Page 65 19. In all civil suits, the court is enjoined by section 12 of the Evidence Act, (NRCD 323) to evaluate and weigh the evidence adduced by the parties on preponderance of Page 9 of 28 probabilities. This requires a careful analyses of the entire evidence as held by Ansah JSC in the case of TAKORADI FLOUR MILLS v SAMIR FARIS (2005-2006) SCGLR 882 at 884 holding 5 as follows: “it is sufficient to state that this being a civil suit, the rules of evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Act, 1975 (NRCD 323). In assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict”. 19. It is obvious that if the evidence adduced is such that the scales are evenly balanced, the burden of proof on the plaintiff would not have been satisfied. In that event, the case of the plaintiff should fail. See S. A. Brobbey, Essentials of the Ghana Law of Evidence (2014) page 42 THE COURT’S EVALUATION OF THE EVIDENCE AND RESOLUTION OF TRIABLE ISSUES: 20. I shall determine the main issues as set out above based on the facts and evidence adduced at the trial. The law is trite and same supported by statute that for a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the court to the standard prescribed by law. This position is supported by various provisions of the Evidence Act 1975 (NRCD 323). Section 14 of NRCD 323 provides as follows: “(14). Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. Page 10 of 28 The burden of producing evidence by both sides in the suit as well as the burden of persuasion is one to be determined on the preponderance of probabilities as defined by Section 12(2) of the Evidence Act 1975 (NRCD 323). ISSUE (A) WHETHER OR NOT HOUSE NO. 13 ASAFOATSE OMANI STREET, KANESHIE WAS THE SELF-ACQUIRED PROPERTY OF THE LATE EMMANUEL MENSAH BLANKSON – DARKU 21. The plaintiffs pleaded in paragraph 3 of their Statement of Claim that the House No. 13 Asafoatse Omani Street, Kaneshie was the self-acquired property of the Late Emmanuel Mensah Blankson-Darku. Ordinarily, the Plaintiffs bore burden of proof in respect of this assertion or affirmation. In it was stated in Sagoe v. SSNIT (2011) 30 GMJ 133; (2012) 52 GMJ 47 @ 58 CA “The party who asserts the affirmative of an issue has the incidence of the legal burden . . . “ Also in Poku v. Poku [2008] 18 M. L. R. G. 1 @ 30, S. C. Wood (CJ) stated that: “Generally, the burden of proof is therefore on the party asserting the facts, with the evidential burden shifting as the justice of the case demands. The standard of degree must also necessarily be proof on the preponderance of the probabilities.” 22. Similarly, in DANSO-DAPAAH V. FALCON CREST INVESTMENT LTD. & 4 ORS. [2015] 89 GMJ 148 @ 171 Dzamefe JA stated that: “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. He does not discharge his burden unless he leads admissible or credible evidence from which the facts he asserts can be properly and safely inferred. Failure of which the assertion is not true.” 23. Fortunately for the Plaintiffs, the Defendant by paragraph 2 of his Statement of Defence admitted this averment of Plaintiffs. A party does not have to dissipate scarce judicial resources of time by adducing evidence on a matter not in contention. I agree with learned counsel for Plaintiff that that a party need not prove facts which has been admitted by his opponent. He rightly cited the Supreme Court decision in the case of Tondo Enterprise and Ors vs Chou Sen Lin [2007-2008] wherein it was held that: Page 11 of 28 ʺthe law is that where the evidence of a party is corroborated by the evidence of his opponent, the Court ought to accept the evidence. ʺ In the case of Re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II v Akotia Oworsika III substituted by laryea Ayiku III (2005-2006) SCGLR 637, Dr Twum J. S. C delivery the Judgement of the court stated at page 8 that: “In my view this type of proof is a salutary rule of evidence based on common-sense and expediency. Where your adversary has admitted a fact advantageous to your cause, what better evidence do you need to establish that fact than relying on his own admission. This is really an example of estoppel conduct. it is a rule whereby a party is precluded from denying the existence of some state of facts which he had formerly asserted”. Notwithstanding admission of the assertion by defendants, Plaintiffs tendered probate in respect of the last Will of Emmanuel Mansah Blankson-Darku. This probate was admitted into evidence without objection and same was marked as Exhibit A. Counsel for Defendant in his Written Address stated “that there is no need for asking this Court to declare the property as self-acquired property of the testator because it is a known fact that Kaneshie Estate houses were built by Government and sold to individuals.” 24. I hereby make a finding of a fact that the House No. 13 Asafoatse Omani Street, Kaneshie Was the Self-Acquired Property Of The Late Emmanuel Mensah Blankson – Darku and accordingly resolve Issue (a) in favour of Plaintiff. See the case of Re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II v Akotia Oworsika III substituted by Laryea Ayiku III (2005-2006) SCGLR 637. Relief (a) endorse on the writ of summons is what generated issue (a) so in the light of the favourable finding just made the court proceeds to grant a declaration that H/No. 13 Asafoatse Omani Street, Kaneshie was the self-acquired property of the late Emmanuel Mensah Blankson-Darku. Page 12 of 28 ISSUE (B): WHETHER OR NOT THE TESTATOR IN HIS WILL BEQUEATHED HOUSE NO. 13 ASAFOATSE OMANI STREET TO HIS FOUR MALE CHILDREN AS TENANTS IN COMMON IN CLAUSE 7 OF HIS WILL AND TESTAMENT. 24. This issue too is not contentious and ought not to have been raised in the first place. For the sake of dealing with triable issues the court differently constituted adopted, I shall nevertheless deal with it. The Plaintiffs in paragraph 7 of their Statement of Claim averred that the Kaneshie the subject matter of this dispute was bequeathed to the 4 male children namely; Daniel Nii Darku Blankson, Emmanuel Nii Djan Blankson Darku, George Nii Amu Blankson-Darku and David Nii Otodin Blankson Darku in the Will of the late Emmanuel Mensah Blankson Darku. 25. This averment of the Plaintiffs in this Statement of Claim was admitted by the Defendant in paragraph 2 of the Statement of Defence. As the court has already held above matters not controverted does not impose evidential burden on anyone. Notwithstanding the lack of controversy on this aspect of the suit, the Will of the late Emmanuel Mensa Blankson-Darku attached to the Probate ( Exhibit A) by Clause 7 thereof clearly devised House No. 13 Asafoatse Omani Street To His Four Male Children As Tenants In Common. This was further established reinforced during cross examination of 1st Plaintiff by Counsel for Defendant on 15th May 2023: Q: A: Q: A: Q: A: The late Emmanuel Mensah Blankson-Darku made a Will, is that correct? That is correct my Lord. This house was willed to 4 male of his children? That is correct my Lord. You are the only surviving child of the Testator, is that correct? That is correct my Lord. 26. I make a finding on basis of Exhibit A and the evidence gleaned from the above cross examination that the Testator In His Will devised House No. 13 Asafoatse Page 13 of 28 Omani Street To His Four Male Children As Tenants In Common In Clause 7 Of His Will And Testament. The Plaintiffs in their pleadings wrongly used the word “bequeath” instead of “devise”. The proper usage is to say devise where the property being willed is real property ( that is immovable property). However, where the subject matter being given in the will is personal property (movable property) then we say devise. See Bryan A Garner, Black’s Law Dictionary ( 11th edition). ISSUE (C) WHETHER OR NOT THE DEFENDANT HAS BEEN USING HOUSE NO. 13 ASAFOATSE OMANI STREET IN HOLDING MEETINGS PERTAINING TO CHIEFTAINCY MATTERS, AND PERFORMING DEEP SEATED RITUALS IN THE SAID HOUSE. & ISSUE (II) WHETHER OR NOT THIS KANESHIE HOUSE WAS USED BY NANA DARKU DJAN II FOR PERFORMANCE OF HOMOWO CELEBRATIONS, CEREMONIES, MARRIAGE RITES ETC. EXCEPT RITUALS OF THE STOOL WHICH MUST BE PERFORMED AT THE STOOL HOUSE AT KORLE WOKON 27. At paragraph 9 of their statement of claim , Plaintiffs made averment that the Defendant has styled himself Akwamu Otublohum Nifa Gyasehene of Nii Djan We and has been using the said house to hold meetings pertaining to Chieftaincy matters and also the celebrations of Ga Homowo Festival, without reference to or the consent and concurrence of the plaintiffs or the other beneficiaries of the Kaneshie house. 28. They further added at paragraph 14 of their Statement of Claim that the Defendant currently perform deep seated rituals in the house by killing goats, sheep, fowls, etc and sprinkle the blood in some parts of the house and pouring of libation. Page 14 of 28 29. To proof their case, the Plaintiffs by way of evidence annexed to the Witness Statement of the 1st Plaintiff Exhibit C which is an invitation brochure of the 2019 Homowo celebration and exhibit D series which are pictures of the Defendants and his cronies performing bloody rituals in H/No. 13 Asafoatse Omani street to support their claim. 30. The Defendants denied this claim and stated that all ritual of the stool were done at the stool house located at Korle Wokon. He stated further that no animal rituals were made at the kaneshie house but failed to provide any evidence to that effect. 31. During cross examination of 1st Plaintiff by learned counsel for Defendant this is what transpired: Q: At this Kaneshie house all Homowo, marriages, outdoorings, funerals and meetings by the family took place at Kaneshie, is that right during the time of Nii DJan II? A: No not all family outdoorings and the things he mentioned were performed in the house but the ones pertaining to my nuclear family (my father) were done there. 32. The evidence of 1st Plaintiff that only cultural activities of the the nuclear family of Nii Djan II were forcefully corroborated by other witnesses. On 16th May 2023 during cross examination of PW1 ( Norbert Blankson-Darku) by counsel for Defendant this is what transpired: Q: Your father was a chief is that correct under the name Nana Darku Djan II? A: Q: No my Lord he was a Dzasetse. A chief kingmaker and not a chief. Your father Nana Darku Djan II lived in this Kaneshie house when he was installed as a Dzasetse. A: Q: A: Q: Yes my Lord. Your mother also lives in this house up to today is that correct? Yes my Lord. All activities which took place during your father’s time in Kaneshie house are the same activities of the family which are taking place now? A: My Lord a big no. Page 15 of 28 Q: Activities at Kaneshie house are performed by members of the family is that correct? A: My Lord if Counsel could be specific on the activities so that I can know. Q: I can mention funerals, Homowo, outdoorings, meetings of the family are performed at the Kaneshie house. A: Naming ceremony for those living in the house are done in the house. The last to my best of knowledge was 2015 specifically 13th October, my daughter to be emphatic my first daughter because I have other daughters. Funerals that also for those living in the house should there be the need where someone from the extended family wants to host or have a funeral in the house, there is a meeting that is called and our permission is sought and this is very rare. In my life time there, I lived there for 34 years not more than 3. Homowo so Homowo my father as Dzasetse when he was alive goes to the stool house in Accra to host the family or lead the family in the Homowo celebration. Then we stay in the Kaneshie house collectively have our own small cooking to bring us together of the same Kpoikpoi so there is a distinction between what he does as a Dzasetse at the family house and when I say family house I mean the stool house in Accra and the one E. M. Blankson children in the house. Probably that is the clear distinction between the two. 33. It is instructive to note that on 18th May 2023 when Defendant was being cross examined by Counsel for Plaintiff he was not forth coming with material evidence needed to persuade the court that he is not the first person to use the Kaneshie house for chieftaincy related rituals. He could not provide any concrete proof beyond mere repetition of his averment from his pleadings in the witness box contrary to the principle of law in MAJOLAGBE V LARBI [1959] GLR 190. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist. Page 16 of 28 This is what transpired during cross examination of Defendant on 18th May 2023: Q:You have alleged that in your father’s life time you used to hold meetings and other ceremonies in the Kaneshie house is that correct? A: Q: That is correct. Do you have any document or picture to support that assertion since you lived with him in that house? A: Q: Yes my Lord I can get a photograph to come and show to the Court. On the 5th day of May 2021 this Honourable Court ordered the parties to file their Witness Statement which is more than two years now. Didn’t you think it will be fit to have added that picture? A: The reason why I did not add that photograph was that my father met all of us that is myself, my siblings and my mother and we all appeared in that photograph. Q: You are alleging that your father performed certain rites in the house and I am asking why you didn’t provide a photograph to support your assertion and not pictures of your mother and siblings. A: Q: No my Lord I did not bring any photograph to support my assertion. Now as a traditionalist when libation is being poured, what do you use in pouring the libation? A: We use water or drink. Q: What type of drink? A: Q: Either Schnapps, Castle Bridge or Kasapreko. In paragraph 15 of your Witness Statement (Counsel reads in open Court) do you still maintain that? A: My Lord the Asafo group normally works on festive occasions. They can work either in the morning, at noon or in the night. Q: Are you now saying as against our Witness Statement that Asafo group can operate around the clock? Page 17 of 28 A: The Asafo group operates in the night when there is a funeral because they are responsible to go and bring the body. Q: But still on your paragraph 15 you have stated “I do not need the Asafo group in the night” do you still stand by that? A: My Lord that is so because there is no funeral. 34. Defendant was extremely economical with the truth from the above testimony. I find the above testimony of the 1st Plaintiff and PW1 as credible and rely on same to make a finding that during life time of Nii Djan Blankson-Darku II ( one of the sons of the original owner of Kaneshie house) despite being made Dzasetse purely traditional rituals relating to chieftaincy were not performed at Kaneshie house and mainly ordinary cultural activities including naming ceremony or allowing extended family to use the house for funerals were performed in the house. 35. Indeed, if it ever happened that Nii Darku II organized some of the activities pertaining to the office of Dzasetse that ipso facto could not have rendered the Kaneshie house a palace, stool house or create any right for any person appointed to the position of Dzasetse to continue to use the house for such Dzasetse related rituals and ceremonies. I accordingly resolve Issues (C) and (II). Thus, I hold that this Kaneshie house was used by Nii or Nana Darku Djan II for performance of homowo celebrations, ceremonies, marriage rites etc. except rituals of the stool which must be performed at the stool house at korle wokon. I further hold that it is rather the defendant who for the first time has been using house no. 13 asafoatse omani street in holding meetings pertaining to chieftaincy matters, and performing deep seated rituals in the said house. ISSUE (D). WHETHER OR NOT THE DEFENDANT HAS TAKEN OVER THE SAID HOUSE TO HIS EXCLUSIVE USE AND HAS ALSO GIVEN PORTIONS TO HIS FRIENDS AND CRONIES THEREBY DEPRIVING THE PROPER BENEFICIARIES THE LEGITIMATE USE OF THE PROPERTY. Page 18 of 28 36. The Plaintiff by paragraph 18 of the statement of claim averred that the conduct of the Defendant has unlawfully taken over the property; No 13 Asafoatse Omani street, kaneshie to his exclusive use and have given portions to his friends and cronies thereby depriving other beneficiaries the legitimate use of the property. 37. In attempt to prove their averment that Defendant had reduced the Kaneshie house to his exclusive use contrary to equal entitlement of beneficiaries of the house as tenants in common 1st Plaintiff tendered in evidence without objection by Defendant, Exhibit E which is picture showing signboard mounted on the wall of the Kaneshie house. It reads “OPIAKESE OFITRI BOUR, OTUBLOHUM NIFA DIVISION, NII DJAN WE, DODOO PRAH”. 38. Counsel for Plaintiffs is right in his submission that “a critical examination of the evidence adduced per exhibit E in this case shows very clearly that the Defendant has birth the intention to take over the house for his exclusive use. No evidence was adduced by Defendant to demonstrate whether he had obtained the consent and concurrence of other beneficiaries of the said property before mounting the signboard in Exhibit E. During cross examination of Defendant on 18th May 2023 he testified in a manner which shows clear intention to that he is projecting himself as chief and will use the Kaneshie house as his palace in his new role as Gyasehen . This is what transpired: You initially put a signage as per our Exhibit E is that correct or not? A: Q: A: That is correct. You describe yourself as Gyasehene is that correct? Yes my Lord that is correct. Q: Who installed you as same? A: The Head of Family and the Abiriwatia (the oldest woman of the family) of the House. Q: When you say family do you mean the Blankson-Darku Family or the Nifa Division of Otublohum? Page 19 of 28 A: The Gyasehene is appointed and enstooled from the Blankson-Darku Family to the Nifa Division of Otublohum. Q: So it means after your installation you will be outdoored and you will introduced to the Otublohum Divisional Council is that correct? A: My Lord that is correct. Q: Was that done in your case? A: My Lord we are still working on it. The reasonable inference from the above testimony coupled with the signage as evidenced in exhibit E is that the Defendant has firmly decided and is implementing his strategy to take over Kaneshie house unilaterally and use it as his palace. 38. The court is in agreement with Counsel for Plaintiff’s analysis that the Defendant’s own exhibit 6 attached to his shows that the Defendant has converted the house in question for his use as palace and thereby depriving the beneficiaries of the Emmanuel Mensah Blankson-Darku and given it a Name ‘’ OTUBLOHUM BLANKSON ROYAL FAMILY- ACCRA. NIFA GYASEHENE RULING HOUSE, ASAFOHENE NANA GYAN OPIAKESE ABUSUA. The court hereby answers Issue (D) in the affirmative and hold that Defendant has demonstrated by overt acts that he is unilaterally taking over the Kaneshie house for his exclusive use in furtherance of his chieftaincy ambition. 39. This court does not have jurisdiction to determine whether Defendant is Gyasehene properly so called with respect to nomination, installation and enstoolment and will accordingly decline determination of various issues pertaining to cause or matter affecting chieftaincy which came up. On this point, the court agrees partially with submission of counsel for Defendant that Plaintiffs should take up matters pertaining to cause or matter affecting chieftaincy to the Regional House of Chiefs or appropriate traditional council. See Section 117(1) of the Courts Act, 1993 (Act 459). Section 76 of the Chieftaincy Act, Act 759 defines a cause or matter affecting chieftaincy as: Page 20 of 28 “ a cause, matter, question or dispute relating to any of the following: a. The nomination, election, selection or installation of a person as a chief or the claim of a person to be nominated, elected, selected or installed as a chief b. The deposition or abdication as a chief, c. The right of a person to take part in the nomination, election, selection or installation of a person as a chief or in the deposition of a chief, d. The recovery or delivery of a stool property in connection with the nomination, election, selection, installation, deposition or abdication of a chief and e. The constitutional relations under customary law between chiefs”. Also see Abbey and Others v. Antwi [2010] SCGLR 17, 40. Although evidence relating to the status of Defendant as Gyasehene or Dzasetse were adduced during the trial the are not relevant in resolving the key controversy and so all aspects of the pleadings and evidence relating to status and installation of Defendant or any person mentioned in the evidence are by strike out as this court is not constitutionally denied jurisdiction. The real controversy is simply the ownership of properties and their sale or distribution as well as rendering of account. These matters are resolvable without recourse into the realm of chieftaincy. ISSUE E WHETHER OR NOT A MEETING WAS HELD ON THE 10TH DAY OF NOVEMBER 2018 WHEREIN ALL THE BENEFICIARIES SAVE THE DEFENDANT AND HIS COHORTS AGREED THAT HOUSE NO. 13 ASAFOATSE OMANI STREET BE SOLD AND THE PROCEEDS BE SHARED AMONGST THEM EQUALLY. & ISSUE IV WHETHER OR NOT THE MEETING OF 10TH DAY OF NOVEMBER, 2018 EXCLUDING THE DEFENDANT IS NULL AND VOID. Page 21 of 28 41. One basic common place of agreement between parties to this suit is the fact that Kaneshie house was devised to four sons of the Emmanuel Mensah Blankson-Darku to be held as tenants in common. Both the Plaintiffs and Defendant have stated clearly that the late E. M. Blankson in his Will devised the said house in dispute to his four male sons. Out of the four, 3 are deceased and as tenants in common of the said property their respective children stand to succeed them. 1st Plaintiff has tendered Exhibit F to bolster their contention that a meeting was held by all beneficiaries except the Defendant and an agreement was reached that Kanshie house should be sold. Defendant disputes legality of this meeting and asserts that the meeting and any agreement emanating therefrom should be declare null and void. I reject submission by Counsel for Plaintiffs that since all the beneficiaries have agreed as per Exhibit F except the Defendant the court should implement decision of the majority. 42. On the contrary, the totality of evidence creates compelling impression that there is serious disagreement between the beneficiaries. There is really factionalism among them. Thirteen beneficiaries who attended the meeting alluded to in Exhibit F are on one side that the Kanashie house should be sold and proceeds shared equally among them but the Defendant is a lone ranger on the other side that the house should be preserved as family house and also temporal palace or residence for the Gyasehen. According to the DJ Da Rocha and CHK Lodoh, Ghana Land Law and Conveyancing (2nd edition, 1999) p269: “ A tenancy in common may be determined by ( a) partition ( b) sale and ( c ) the acquisition by one tenant- whether by grant or operation of law, of the shares vested in his co-tenants.” Courts are set up by law to advance peace through justice. Taking cognisance of the manifest bad blood between beneficiaries and factionalism I hereby appoint Land Valuation Division of Lands Commission to undertake valuation of the Kaneshie house. The Defendant who is opposed to the sale of the house shall be given first opportunity to purchase the house taking into account his share of the proceeds. In the event that Defendant is unable to exercise the first option of purchase then the Page 22 of 28 beneficiaries acting together shall find buyer or appoint an agent to facilitate the sale. This order relates to relief (c ) of the writ of summons and same is granted. The grant of relief ( c) also implies that the Court has declined reliefs (a), (b), (c), (d) and (e) of the Counter-claim by Defendant. I shall now consider remaining reliefs in the counterclaim OTHER RELIEFS IN COUNTER-CLAIM (f) The Defendant claims one plot of land from the 4 plots of the 2nd Plaintiff at Mataheko. (g ) The Defendant claims from the Plaintiffs a proper account and contracts of all properties of the beneficiaries for which the 1st Plaintiff is collecting rents, e.g. a. Land situated at Dome. b. Goil Filling Station at Lartebiokoshie. The contract between 1st Plaintiff and the Goil company. c. shares in the Enterprise Insurance. d. Small plot behind the Shell Filling Station ( Abossey Okai Spare parts ) e. Total Filling Station-Kaneshie (Contract) f. interest on land on the winneba Road near/opposite Kaneshie Market H/No. B 719/4 Kaneshie. g. First light Land leased to Denor Moolchandani 0.96 acres in 25/8/1978. 44. Counter-claim is subject to the same evidential burdens and standards as Plaintiffs’ claim endorsed on the writ of summons. Consequently, all the propositions of law relating to burden of proof, burden of persuasion and burden of producing evidence stated earlier in this rendition apply mutatis mutandis to the counterclaim. Thus, in Jaas Co. Ltd and Another v. Appau and Another (2009) SCGLR 263 , the Supreme Court, per Dotse JSC stated at page 271 as follows: “Thus, 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 Page 23 of 28 just as it was used to evaluate and assess the case of the plaintiff against the defendant. In the instant appeal, the defendants counterclaimed and that meant that they also assumed the position of a plaintiff in respect to their counterclaim.” Similarly, in Brimpong v Bawuah [1994-95] GBR 837, it was held by the Supreme Court per holding (1): “It was a well-settled principle of law that a Defendant who counterclaimed assumed the same burden with respect to the counterclaim as the Plaintiff. 45. Defendant pleaded in paragraphs 24 of Statement of Defence that the Testator, the late Emmanuel Mensah Blankson-Darku had large properties which were not listed in the Will and the residuary clause stated all residuary properties should go to all the children. Defendant added in paragraph 25 of the Statement of Defence that the plaintiffs have taken five plots at Mateheko under the residuary clause of the Will and developed them for their own purposes. Defendant had burden to introduce evidence of specific properties which belonged to the Testator that were not specifically mentioned. Exhibit 3 is indenture relating to Mataheko lands but testimony around this Exhibit came under ferocious attack and crumble during cross examination. This is what happened during cross examination of Defendant by Counsel for Plaintiff on 18th May 2023: Q: A: Q: A: Q: A: Q: A: Your Exhibit 3 attached to your Witness Statement is an indenture between Kwesi Djan and Emmanuel Mensah Blankson is that correct? My Lord that is correct. Look on the indenture and tell the date of execution? My Lord the date of execution is 1961. Where does this land fall? It is at Mataheko. Is it this land that you are alleging that the 2nd Plaintiff has annexed? Yes my Lord. Page 24 of 28 Q: A: Q: A: Q: A: Q: A: In your father’s life time was he not aware or wouldn’t he be aware that his sister has taken that land? He was aware and he was the one who told us. For many years did your father get to know that his sister has taken his father’s land? I will not be able to tell. Are you also aware that 2nd Plaintiff, your father Emmanuel Blankson-Darku and George Blankson-Darku obtained Letters of Administration de bonis-non to continue with the administration of the unadministered assets which is Exhibit B of the Plaintiffs? Yes my Lord I am aware. Therefore I am putting it to you that there would be no assets that the two Plaintiffs would annex without your father’s knowledge. That is true. 46. Defendant’s created more problems for his already crumbling counterclaim regarding properties at Matehoko and other properties alleged to be part of the residuary clause of the testator when his witness,(DW1) his biological mother. Madam Maud Aryeetey had her witness statement under cross examination by counsel for Plaintiff. This what ensued on 18th May 2023: Q: And your husband knew the locations of the respective houses of George Blankson-Darku and Mrs. Victoria Benedicta Bright Davies? A: Yes my Lord. Q: Did your husband tell you that his siblings have taken plots of land at Mataheko and Dansoman for themselves? A: Yes my Lord and that is where they are staying. Q: Did your husband challenge them during his lifetime? A: No my Lord. Page 25 of 28 Q: I am putting it to you that George Blankson-Darku and Mrs. Victoria Bright Davies acquired those plots of land from their father before his death. A: My Lord I have heard you that is where they have been living since time in memorial and since my husband has also informed me I have nothing to say because it is their father’s property. 47. The court is of considered view that Defendant has not succeeded on preponderance of probabilities in proving relief ( f) of the Counter-claim and same is hereby dismissed . On the issue of Account, the Plaintiff’s witnesses under cross examination attested to the fact that the family has account where all money accruing to the estate are shared among the beneficiaries. During cross examination of 1st Plaintiff by Counsel for Defendant this is what transpired on 15th May 2023: Q: There is also a GOIL Filling Station at Laterbiokoshie which you are also collecting rent? A: That one was given to the 4 sons of my father. So it is not me who is collecting the rent. Q: He died leaving shares at Enterprise Insurance, is that correct? A: That was in the Will and we tried pursuing to get it sold out when my senior brother was alive but we didn’t succeed until after the death of my senior brother Emmnauel Nii Djan Blankson-Darku. Q: Is that the chief? A: No. I have explained earlier that he is just the Gyasetse and the chief is Harry Sawyerr. That I was able to get the NTHC to get the shares sold out through NTHC and the money is not being kept by me. We have opened a family account and the money has been put there. Q: How much was the money? A: I think in all we realized about GH¢14,135. Page 26 of 28 48. Also on 16th May 2023 during cross examination of PW1 by Counsel for Defendant there was significant corroboration of the foregoing account by Plaintiff. This is what happened: Q: I am also putting it to you that other items mentioned like GOIL Filling station at Laterbiokoshie, shares in the Enterprise Insurance and a small land behind Shell Filling Station Abossey Okai, Total Filling Station Kaneshie and land leased to Denor Moolchandani are in the hands of the 1st Plaintiff who must account to the whole family. Do you agree? A: My Lord yes. After the demise of my father, my uncle George who is the only surviving son of E. M. Blankson called a meeting and made available the Will of our grandfather. We found out that there were issues on some of the properties so we agreed as a family to reclaim back the properties and share equally. It did not take long and my brother Carlis was made the Gyasetse. He went on one of these properties precisely the one at Abossey Okai and told the tenants on the said property that he is the one inheriting our father Emmanuel Nii Djan Blankson-Darku and that all payments should not be made to our uncle George but to him. The tenants reported this to Uncle George and another meeting was called this laid bare to us. In that particular meeting all of us present were introduced to the tenants, a family receipt book was shown to the tenants and they were directed on how payments are to be made so that it is accountable to all of us who are beneficiaries. And this has been the procedure for all other family properties. 48. The above testimony is honest attempt to account for proceeds from sale of the Testators’ share and other properties not specifically mentioned in the Will. I am therefore satisfied that there is no withholding of information or dishonest suppression of proceeds from realisation of shares. I accordingly dismiss reliefs g and ( all its sub-reliefs) in the Counter-claim as Defendant has failed woefully in proving his counter claim on preponderance of probabilities. 49. In In the final analysis I hold that, on the preponderance of probabilities, the Plaintiffs have proved their claim to the satisfaction of the court and is entitled to Page 27 of 28 judgment. I therefore enter judgment for the Plaintiff by granting all the following reliefs: a. A declaration that H/No. 13 Asafoatse Omani Street, Kaneshie was the self-acquired property of the late Emmanuel Mensah Blankson-Darku. b. An order restraining the Defendant herein from performing and or using H/No. 13 Asafoatse Omani street, kaneshie for chieftancy matters, celebration of Homowo Festival and any ritual/traditional purposes since the house is not a stool house. c. I order Lands Commission to conduct valuation of H/No. Asafoatse Omani Stree, Kaneshie. Defendant should be given first option of buying the said house within two months of completing the valuation, before any other purchaser may be considered if necessary. d. Perpetual injunction restraining the Defendant, his agents, assigns, privies, workmen, whosoever claiming through them from using H/No.13 Asafoatse Omani street, kaneshie as a stool house. e. I award cost of fifty thousand Ghana cedis (GHC50,000) against Defendant in favour of Plaintiffs. Defendants Counterclaim is dismissed in in its entirety. Page 28 of 28