Kinglar Vrs Bonto [2023] GHAHC 191 (27 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION CORAM: CHARITY A. ASEM (MRS.) J. SUIT NO.: E12/86/2019 DATE: 27TH JULY, 2023 ADOLPH KINGLAR : PLAINTIFF VRS. SYBILLA BONTO : DEFENDANT JUDGMENT Plaintiff on the 3/4/2019 sealed the present writ against the defendant and claimed as follows: a) A declaration that the land in dispute devolved on the Defendant’s late mother as a result of her marriage to Adam Kinglar and same was not her self-acquired property. b) A declaration that the house in dispute devolved on the Plaintiff’s late father as of right just as the portions on which the Defendant and her other siblings have since developed, both being children of Bertha Nornorkuadzi. c) A declaration that the Defendant’s claim to the land is statute barred. d) A declaration that the Defendant’s claim is estopped by laches and acquiescence. e) A declaration that the Plaintiff is entitled to the grant of the letters of administration rather than the Defendant. f) Damages. g) Costs. Case of the Plaintiff Plaintiff sued in a representative capacity for and on behalf of himself and his siblings including all the beneficiaries of the estate of the late John William Kinglar. He described the defendant as his Aunt. He continued that his late father was the only child between the union of Adam Kinglar a German merchant and his grant mother Bertha Adzoa Nornormekuadzi of Ho all of blessed memory. That his father also died sometime in 1989. According to plaintiff, Adam Kinglar acquired property in Ho Township and built a house from which their late father grew. That just before World War II Adam Kinglar returned to Germany and never returned leaving his son John Kinglar behind. That John Kinglar is their father now deceased. According to plaintiff over time, their grandmother Bertha Nornormekuadzi remarried and gave birth to other children including the defendant who is the only surviving sibling. That his father leaved with his mother until he relocated to Afram Plains where he leaved until his death in 1989. That his grandfather fathered one child whist a young man living in Ho. He said the land devolved unto his late grandmother who reduced same into her name and possession. He continued that after the death of their father in 1989, he and his other siblings including his mother relocated to Ho and lived in the property in dispute. That his grandmother had shared the land among their other children she gave birth to after his father without any obvious apportionment in favour of his father except the house in which they come to occupy when they returned to Ho. That they have since made improvements to the property without objection from defendant. Plaintiff stated that he had lived with the defendant from 1989 and she has narrated everything he knew about his father. It was she who told him that the property in dispute devolved on his father. He said later they decided to sell the property and relocate. A decision was taken to obtain Letters of Administration in or order to administer the Estate of John Kinglar. It is his case further that, the defendant opposed their effort and now claim that the property forms part of her mother’s estate and claim that John Kinglar was not the bona fide owner of the house. He concluded that, his late elder brother until his death exercised right over the house, rented portions to tenants without restrain from defendant, so she is not entitled to the house and her caveat ought to be dismissed. On 31/05/2019 defendant lodged a defence against the plaintiff’s claims. She vehemently denied that the property in dispute devolved on John Kinglar his half- brother which could pass unto plaintiff and his siblings. According to defendant her, late mother acquired by purchase all that piece or parcel of land situate, lying and being at Ho – Bankoe with the following boundaries: - On the South by the stream – Gogokpoe - On the West by the Ho – Main road - On the North by the property of C. Ken and M. Kuhlo - On the East by the property J. Dzaba family (her Vendor which measures in extent of 0.634 acres. That she acquired the land sometime in the year 1912 after which she put up Swish building on portion thereof. According to her she and her late brother John Kinglar lived with their mother in the house until her brother completed Middle School. Later he was taken by his maternal uncle called Ahorgbana to Swedru to live with him and later settled at Afram Plains where he lived until his demised. Defendant says the stories told by plaintiff is a figment of his own imagination. Defendant continued that Adam Kinglar met her mother at Kpalime, Togo where they got married. That Adam Kinglar never lived in Ho and it was after his death that her mother acquired the property in dispute. That her mother did not share the property in her life time to any of the children as they all lived with her as tenants in common as she and her siblings with premium developed portion of the land. According to defendant her brother John Kinglar did not settle in Ho. He lived in Afram Plains where he acquired properties. That after his death in 1989, she went and brought plaintiff’ and his three other siblings to Ho to live with her in the subject matter property. She states that, in resent past plaintiff had attempted to sell the property on many occasions and he was stopped. That his late brother had cause to arrest plaintiff over the sale of this property. She said the matter was put before the head of family where plaintiff undertook not to make any adverse claim to the property that is house No. 3E/29 or any part thereof. Defendant denied the ownership right of plaintiff and his siblings because they were permitted by her to rent portion for sustenance. According to defendant, plaintiff and his elder brother were not in any gainful employment and were virtually a burden on her so in consultation she permitted him to rent portions of the land to earn some money for himself. She will put the plaintiff to strict proof of all his claim. In a reply filed on 4/07/2019 to defendant’s defence, plaintiff said during their stay with defendant, she apprised them of all the issues concerning the property. She made them understand that since the land has been shared amongst his siblings with all the deceased one’s offspring’s benefiting from those left by their deceased parents. He is at a loss as to why the defendant does not want himself and siblings to benefit from their fathers’ inheritance uncle the other cousins are benefiting from their parents. At close of pleading issues for directions where raised from both sides. On the 7/05/2021 the court exercised its discretion under Section 72 of the Courts Act, Act 459 and referred the matter to the Court Connected ADR in view of the fact that the parties are of close family affinity. The pleadings revealed that until this dispute the defendant had cared for plaintiff as child when they lost their father in 1989. The report from ADR said the parties failed to settle and on the 11/02/2022 both lawyer announced that settlement has not been achieved. The court proceeded to conducted direction on the 5/04/2022 and the issues raised by the lawyers were adopted for determination. The issues raised by counsel for defendant on 7/02/2022 are: (i) Whether or not the subject matter of this suit is the self-acquired property of the defendant’s mother, Bertha Adzoa Nornormekuadzi (deceased). (ii) Whether or not the subject matter is the self-acquired property of Adam Kinglar which devolved unto William Kinglar (both deceased). (iii) Whether or not the subject matter of this suit devolved unto the defendant customary as the only surviving child or the late Bertha Adzoa Nornormekuadzi (deceased). (iv) Whether or not the defendant mother in her lifetime shared the subject matter to her eight (8) children. (v) Whether or not the plaintiff is estopped by conduct from laying any claim to the subject matter of this action. (vi) Whether or not the plaintiff is the proper person to whom Letters of Administration is to be granted. Additional issues raised by counsel for plaintiff on 01/04/2022 are: 1. Whether or not the plaintiff and his siblings including their mother lived in the property in issue upon return from Afram Plains? 2. Whether or not the Defendant being the daughter of the Plaintiff’s late grandmother – Bertha Adzoa Nornormekuadzi is entitled to the estate of the late Adam Kinglar and John William Kinglar? 3. Any other issues arising out of the claim. Both parties submitted witness statements and exhibits and called additional witnesses. The plaintiff testified and called one witness. The defendant testified and called two witnesses. On the 21/03/2023 the plaintiff testified and relied on his witness statement filed on 10/11/2022. Attached to the witness statement are two Exhibits ‘A’ and ‘A1’. These Exhibits are black and white photocopy photographs in which some images of some individuals appear. From my lens some appear as people of European descent and others of African descent. The pictures bare no dates, when and where it was taken. According to plaintiff one of the individuals in the group is his grandfather Adam Kinglar with his business associates in the then Gold Coast. Exhibit ‘A1’ is the image of his late father John Kinglar with friends. The court examined the exhibit and holds the view that the Exhibits are unverifiable and no probatative value can be attached to it. In the witness statement of plaintiff, (his evidence in chief) he said his late grandfather Adam Kinglar acquired the disputed land from the Dzaba family as a result of his marriage to Bertha Adzoa Nornormekuadzi of Ho. According to him, it was the cultural practice of the people of Wedome to give a piece or parcel of land to their son- in-law after marriage. That the late Adam Kinglar benefited from that generosity as a support for young couple to start their life. He continued that, Adam Kinglar built a house where he lived with his wife and plaintiff’s father before he departed from Gold Coast just before World War II and when he did not return Bertha Nornormekuadzi remarried one Bonto. According to him, Bonto cohabited with Bertha in Adam Kinglars house and gave birth to the defendant and other siblings of hers. According to plaintiff business interest took his father John Kinglar away from Ho to Afram Plains where he lived until he died in 1989. According to plaintiff John Kinglar’s children returned to Ho where defendant made them understood that the house she brought them to is their inheritance. According to plaintiff judging by their numbers their grandfathers house was unable to accommodate him and his siblings as they are many. It is his case that they all agreed to sell their inheritance in other to fund a suitable accommodation. That in the process of taking Letters of Administration to administer the estate of John Kinglar after 33 years the defendant caveated. He said the defendant is not entitled to the said house which she now claims to be for her mother as the only surviving child. He prays the court to dismiss her caveat to pave way for them to sell the house and relocate. Plaintiff called one witness Clement Ayeh. He supported the claims of the plaintiff that, Kinglar Adam received the piece of land from the Dzaba family as a result of his marriage to his grandmother. He affirmed the fact that it was customary gesture which Adam Kinglar benefited. According to him after the death of Adam Kinglar his grandmother remarried his grandfather. But his grandmother acquired later another portion of the same area from the Dzaba family. He said the old site devolved unto the plaintiff’s father and so the property of the plaintiff and his siblings. Defendant on the 23/03/2023 testified and relied on her witness statement filed on the 04/10/2022. She is 91 years old. According to her evidence contained in her 56 paragraph witness statement, essentially is that her late mother bought the disputed land from the Dzaba family in 1912 which was registered in 1977. That exhibit ‘1’ is the statutory declaration made in favour of her late mother. She further tendered exhibit ‘2’ which is a Deed of Conveyance between Daniel Ocloo Dzaba and Robert Annan Kwami where the plaintiff and one other Kinglar Alphonse witnessed the freehold transaction of transfer of the disputed land to one Robert Annan Kwamin in 2013. Her further Exhibit ‘3’ is the notice of undertaking made by the plaintiff at a family meeting held on 15/02/2015 to abrogate the sale made to Robeto Annan Kwami (exhibit 1) which document was signed by the said vendor Daniel Ocloo Dzaba and witnessed by the Head of family. Exhibit ‘4’ is copies of the caveat filed by the defendant on the 22/8/2018, Exhibit ‘5’ is warning to caveatrix and family. Exhibit ‘6’ is a site plan in the name of Bertha Nornormekuadzi prepared in 1976. DW1 is Edmond King Halley. He testified per his witness statement filed on 04/10/22. He testified to how the family got to know about plaintiff sale of the disputed property to Annan Roberto through Ocloo Dzaba. And the efforts made by plaintiff’s elder brother Lambert Kinglar to arrest plaintiff and his cohost. According to him Lambert Kinglar (deceased) cause the arrest of plaintiff and the documents were taken from him. Plaintiff later gave an undertaking not to sell the property again. DW2 is Magdaline Akorli. She is also a direct family member. Her late mother is defendant’s elder sister. She confirmed the ownership of the disputed property to be her grandmother’s property where many of the family reside. This is a civil suit. The law is that the person who comes to court must introduce evidence in proof of what he claims from the defendant. The only two issues raised by counsel for plaintiff for consideration are; Whether or not plaintiff and his siblings including their mother lived in the property in issue upon return from Afram Plains; and whether or not the defendant being the daughter of Bertha Adzoa Nornomekuadzi is entitled to the estate of the late Adam Kinglar or John Kinglar. According to the defendant, sometime in 1989 they were informed of the death of John Kinglar in Afram Plains where he lived. Upon on their arrival, the burial had taken place. It is her case that, his brother left behind 11 children one of whom is plaintiff. She said after the death of her brother she went and brought the plaintiff and three (3) of his siblings to live with her in the disputed property. At paragraph 12 of plaintiff’s witness statement he was clear when he said he had lived with the defendant and has been under her care since she brought them from Afram Plains. It was she, who narrated to him all that he grew up to know about the property and his father. The plaintiff under cross examination gave his present age as 43 years. He said his father died 33 years ago. It follows that plaintiff was about 10 years old when defendant brought him with the others to live with her. And it was not as though they come back on their own. The evidence however is silent on who the mother of the plaintiff is and her return to the said house. Before discussing plaintiff’s issue 2, the court has to make that essential determination; Whether or not the subject matter of this suit is the self-acquired property of defendants mother Bertha Adzoa Nornormekuadzi; or Adam Kinglar the German merchant? The law is that a party who makes an assertion bears the legal burden of establishing it. This was stated by Wood CJ (as she then was) in the case of Poku v. Poku [2008] 18 MLRG 1 @ page 30 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.” Similarly Gbadegbe JSC as he then was, in the case of Sagoe v. SSNIT [2011]30 GMJ 133 at page 58 decided that, “The party who asserts the affirmative of an issue has the incidence of the legal burden of proof……” The plaintiff in this case averred at paragraph 4 of his statement of claim that, his late grandfather a German merchant acquired property in what is now the center of the Ho Township and built for himself, a house from which his father grew. The defendant denied the above assertion at paragraph 5 of the defence. The burden thus rest on the plaintiff to prove the averment that his grandfather acquired the disputed property. His evidence is found in his witness statement filed on the 10/11/2022. According to plaintiff his grandfather after marring Bertha Nornormekuadzi, and upon his arrival in Gold Coast Ho from Kpalime Togo, it was the cultural practice of the people of Wedome to give a piece of land to their son in law which Kinglar was not an exception. That Kinglar was given a piece of land by the Dzaba family as custom demand upon which he built a house, lived and carried on his business. Plaintiff called PW1 to testify in support of his case. This individual is one Clement Aye who said he was 78 years of age, also a grandson to Bertha Nornomekuadzi. It is his case that the land was given to Kinglar as custom demand. According to PW1 in 1959 he was 14 years. He lived more with his grandmother Bertha Nornormekuadzi. That one fine day, his grandmother held his hand and showed him the boundaries of the property belonging to the plaintiff’s grandfather Kinglar and said those were the boundaries of the whites. When crossed examined the following was solicited from him; Q. As at 1959 were there any issues concerning this land and building to your knowledge as a 14 year old? A. No Q. So if there was no issues why would your grandmother hold your hand and lead you to show you boundaries as a child. A. She took me as one of her children. On that day I was sitting by the roadside when she cone to hold my hand and led me to the boundary where she placed some blocks. She told me it was the boundary of the Kinglar’s and the other side belongs to her. Q. Was there any other person at the time? A. Nobody was around. Q. Adam Kinglar has never lived in Ho, or lived in the Gold Coast A. I cannot tell. Q. Do you know the family Nornormekuadzu hails from? A. She comes from Ahoe Q. She does not come from the Dzaba family A. I agree. Q. Your assertion therefore that the land was given in marriage to Adam Kinglar as custom in those days cannot be true. A. That was what I was told by my mother and grandmother. It needs pointing out quickly that, pleadings that have been denied by an adversary require proof by way of evidence to discharge that legal burden. Between the plaintiff and the defendant herein, the law expects the plaintiff who is making an assertion to establish the assertion by a positive, cogent and satisfactory evidence. By the nature of the plaintiff’s case, the customary gift to his grandfather ought to be proved. Plaintiff sought declaration of title based on the customary gift which he alleged revolved unto him. I observed from the statement of claim and the endorsement that the land being claimed by plaintiff was not described. He could have called their head of family or even a renowned elderly member of the clan and particularly the Dzaba family head to appear to testify to this very important customary practices but he failed. His material witness would have been the Dzaba family. According to plaintiff the story was told to him by defendant who has flatly denied same. On other occasion he heard stories from his mother. Be it that as it may, I would want to believe that even if the said customary practice pertained at the time, the land belonging to the particular family into which the stranger married is what must be given out. So, in the present case, land belonging to Bertha’ Nornomekuadzi’s family would be what Adam Kinglar would have benefited from. But Bertha Nornomekuadzi does not hail from the Dzaba family. The burden has therefore not shifted on the defendant. If Bertha Nornomekuadzi does not hail from the Dzaba family or clan where lies plaintiff root. It simply follows that Kinglar did not acquire any land at the location under contention. Please see the case of YOGUA V. AGYEKUM (1966) GLR 482 – 498, on proof required in a valid customary gift. In land litigation, the law is that the plaintiff is required to establish his root of title, mode of acquisition and the identity of the land amongst others. The Supreme Court speaking through Adinyira JSC in the recent case of Yahans International Ltd v. Martey Trsu family & 1 Or (2018) DLSC at page 2488 said that, “It is settled that a person claiming title has to prove; a) His root of title. b) Mode of acquisition and various acts of possession exercised over the land…. a person who relies on a derivative title must prove the title of his grantor. Awuku v. Tetteh (2011) SCGLR 366”. Did the plaintiff establish the above requirements? The answer is in the negative NO. The plaintiff’s story has failed him as he could not establish any positive title of Adam Kinglar to the disputed land. PW1 is not the head of the Dzaba, Kinglar nor Nornomekuadzi. Though at 78 he seemed not to have any 1st hand knowledge of the matter before the court. His alleged encounter with his grandmother at age 14 can best pass for a fairy tale. Above all the best corroboration could have come from the Dzaba family, who would serve as a material evidence to crown plaintiffs case. Need mentioning that, there is no evidence that, plaintiffs own father in his adult life ever laid any claim to the disputed land neither did plaintiff received any information of his claim to the land from his father. Flowing from the above therefore, the court finds as a fact that the Bertha Nornorkuadzi is not a member of the Dzaba family of Ho- Bankoe. As a result Dzaba family of Ho-Bankoe could not have granted land to the late Adam Kinglar to develop as the plaintiff would want this court to believe. What would have been the reason? Besides, this court received no satisfactory evidence of the said Kinglar’s arrival in the Gold Coast from Kpalime where he met Bertha. As the issues stand now, the irresistible conclusion is that the land belonged to the late mother of the defendant Bertha Nornomekuadzi from Ahoe Ho, which she acquired in her life time. The disputed land is covered by exhibit A. The document received no challenge from the plaintiffs. I studied Exhibit A carefully, the document was prepared by defendant’s late mother in 1977, and not introduced to overreach the present case. The court admit that the defendant was not very consistent with some of her narrations. Dates and some occurrences eluded her. She is 91 years old, testifying to pre-World War II history. Over all those slips or inconsistencies are not enough to disbelieve her as she put up a strong fight under cross examination in my candid believe. In the case of VAUGHAN-WILLIAM V. OPPONG (2015) 84 GMJ 177, per Adinyira JSC the Supreme Court with approval cited the case of EFFISAH V ANSAH (2005- 2006) SCGLR AT 960, where Wood JSC in discussion the level of inconsistences in the evidence of a witness that can affect the judgment of a court said; “In the real world, evidence led at any trial which turns principally on the issue of fact, and involving a fair number of witnesses, would not be entirely free from inconsistences, conflicts or contradictions and the like. In valuating evidence led at a trial, the presence of such matters per se, should not justify a wholesale rejection of the evidence to which they might relate. Thus in any given case, minor, immaterial, insignificant or non-critical inconsistences must not be dwelt upon to deny justice to a party which has substantially discharge his or her burden of persuasion. Where inconsistences or conflicts in the evidence are clearly reconcilable and there is a critical mass of evidence or corroborative on crucial or vital matters the court would be right to gloss over there inconsistences.” Before I come to any conclusions, I wish to address the exhibits introduced by the defendant. With particular reference to exhibit 2 and 3. Exhibit 2 is a Deed of Conveyance executed between one Daniel Ocloo Dzaba as grantor, in favour of Roberto Kwamin Annan recently in 2013. The Deed is duly registered as No. RV770/2013. Wherein Daniel Dzaba described the land conveyed to Roberto Annan as having come to his possession after the death of his father SGK Dzaba in 1978. Plaintiff herein and one Kinglar Alphonse witnessed the transaction. The land conveyed in exhibit 2, is the same land in contention before this court presently. The evidence is that the plaintiff connived, and used the said Daniel Ocloo Dzaba to front the sale. Further evidence is that, his family caused his arrested where he undertook in exhibit 3 and surrendered exhibit 2 to the family. Shamefully, Dzaba Ocloo Daniel appeared to witness the undertaking to abrogate the transaction. The germane question to ask at this juncture is, if plaintiff knew that the land was for the Kinglar why would he procure Daniel Ocloo Dzaba to front the sale? Besides at the time his elder brother was alive. If it is true that the land was granted to Kinglar as a customary grant by Dzaba family, the grant divested the interest of the grantor completely from the land. Please see the case of SARKODIE V. F K A CO. LTD SC, where it was held that; “An effective customary conveyance of land would diverts the grantor of any further right, title or interest in the land, and the same could therefore not be conveyed or granted to a subsequent grantee.” This court has come to the conclusion that the narration of plaintiff in so far as his claim before this court is concerned, is riddled with inconsistencies which are too many to overlook couple with his inability to describe what he claims from the court. In the case of OGBAMEY TETTEH V. OGBAMEY TETTEH (1993-94) 1 GLR page 353 SC decision per Weredu JSC held as follows; “The law as I understand it is that a party is bound by his pleadings and the acceptance in favour of a party of a case which is inconsistent with what he has put in and by his evidence is wrong and unjustifiable in law……..” CONCLUSION The courts have held severally that a party in a land case cannot rely on the weakness of his opponent to succeed. Either party must discharge his or her burden of proof. Section 11(4) of the Evidence Act, 1975 (NRCD 323), and this position was made manifest in the decision of ALBERTINA AMANKUMAH ODAMTEY V. REBECCA CLOUCH (1991) 1 WASC 129. In DUAGBOR V. AKYEA DJAMSON (184-85) GLR paggge709 cited with approval FRIMPONG V. BREMPONG II (1952) 14 WACA stated that; “Where the plaintiff’s evidence is unsatisfactory the judgment should be in defendants favour on the ground that it is plaintiff who seek relief but has failed to prove what he claim.” With that said, John Kinglar is a biological child of Bertha Nornokuadzi. Equality is Equity. The court hold the view that, the descendants of John Kinglar have a share in the disputed property as tenants in common. I do not see defendant as denying the plaintiff and his sibling’s share to the disputed property but their overall quest to harness and take absolute title to the disputed portion, hence her caveat. The defendant be reminded, that, the fact that John Kinglar lived all his life and died in Afram Plains, does not mean he is disinherited from his mother’s estate. No doubt the defendant is the sole surviving child of Bertha Nornomekuadzi and automatically the head of the family. Furthermore, there is overwhelming evidence that, almost all of Bertha Nornomekuadzi’s children and grandchildren have been allocated portions of her estate. There is no evidence plaintiffs have been apportioned specific area of the property. With that said, having failed to prove the case as required by law, the claims of the plaintiff is dismissed. He is not entitled to the grant of letters of administration. However, the defendant is ordered as the present head of the Bertha Nornomekuadzi estate to give unto the plaintiff and his siblings as beneficiaries of their fathers due. The court refrained from awarding cost in the instant case. It is hoped the family through this may reconcile. The lawyers failed to address the court as directed. Copy of counsel for plaintiff’s address was brought when the court was about to deliver its judgment. (SGD.) CHARITY A. ASEM (MRS.) (JUSTICE OF THE HIGH COURT) PARTIES – PRESENT LEGAL REPRESENTATION MR. WISDOM SENEADZA FOR THE PLAINTIFF - PRESENT MR. GODWIN KPORBLE FOR THE DEFENDANT - ABSENT 16