Mahmuda Vrs Mumuni [2023] GHADC 482 (10 July 2023)

IN THE DISTRICT COURT 2, TAMALE HELD ON MONDAY 10TH JULY, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. BETWEEN SUIT NO. A2/48/22 1. MUSAH MAHMUDA - PLAINTIFFS 2. MUSAH SEIDU AND MUSAH MUMUNI DEFENDANT - JUDGMENT INTRODUCTION 1. This judgment relates to recovery of property. 2. The plaintiffs and defendant are siblings, all sons of the late Choggu Dunyin Naa, Musah Adam. On 25th April, 2022 the plaintiffs instituted this action against the defendant for the following reliefs: - 1 - “a. Recovery of Ferguson Tractor 290, with serial number 0245073 which the defendant fraudulently took from police possession without the consent of plaintiffs. b. An order of perpetual injunction to restrain the defendant, his assigns or representatives from use or dispose of the said tractor, which is lawful property of plaintiffs’ family. c. General damages. d. Costs and any other relief this Honourable Court deems fit.” 3. Subsequent to the above, the plaintiff filed an application for interim preservation of the said property. The defendant opposed to the application on grounds that the said property had been disposed of. Consequently, the court dismissed the application for interim preservation. The defendant maintained that the said property belonged to him. 4. Parties subsequently filed their respective witness statements, which I will summarize below. - 2 - PLAINTIFFS’ CASE 5. 2nd Plaintiff testified on behalf of the plaintiffs saying that sometime in 2017 the family decided to use the proceeds of the late Choggu Dunyin Naa, Musah Adam’s estate to acquire a farm tractor. As a result, they got one at an agreed price of GHS39,000.00 to be paid within six (6) months. Plaintiffs stated that the retailer, Alhassan Yakubu Kasuli, promised to hand over the documents of the tractor only after receiving full payment. Plaintiffs say that they kept regular with the installment payments, save the last payment. Hence, when they got money to pay the last installment, they discovered that the defendant had gone to pay and taken possession of the documents. Plaintiffs contended that 2nd plaintiff was in possession of the tractor on a farmland somewhere in June 2021 when he (2nd plaintiff) received an invitation from the police regarding the tractor as being stolen. He added that the police took possession of the tractor and advised the parties herein to settle their differences. However, the defendant fraudulently prepared the tractor documents and took possession of the tractor without their notice. Hence, this action in court. Plaintiffs’ witness 6. Plaintiffs called a witness, Musah Sanatu (PW1) who is the mother of the parties herein. She submitted that her late husband’s estate included a tractor and two plots of land at Naa Luro. She averred that the defendant who was the operator of the tractor sold the husband’s tractor which agitated the plaintiffs. She then admonished the plaintiffs to forgo it, which they did. She averred that sometime in 2017, the parties herein sold the two plots at Naa Luro Estate and also raised additional fund from friends to acquire the tractor in dispute. She disputed that the tractor in dispute belongs to the defendant, but rather it is a family property. 7. Plaintiffs did not tender any exhibit. - 3 - DEFENDANT’S CASE 8. Defendant, on his part, stated that sometime in 2011 he sold his house and purchased a Massey Ferguson 595. He subsequently sold this tractor and purchased the tractor in dispute sometime in 2016. Defendant submitted that he had enjoyed peaceful co- existence with his siblings, until one of their brothers, Musah Yushaw died. Upon the death of Musah Yushaw, defendant added that he and his wife were accused of witchcraft and plaintiffs drove them out and seized the tractor in dispute. He added that he reported the matter to the Choggu-Naa who directed the plaintiffs to return the tractor but they refused. He later learnt that the plaintiffs had rented out the tractor so he reported to the police and the tractor was retrieved at Tampion-dohi, from one Mohammed, former Assemblyman of Jisonayili. He added that when the plaintiffs were granted police enquiry bail, the matter was referred to Nyanshe-Naa through the said Assemblyman for a settlement. Yet, plaintiffs would not co-operate. Defendant averred further that plaintiffs engaged elders from Gulkpegu Naa’s palace to the police station to retrieve the tractor, but were turned away because they could not produce any form of ownership. So when he produced documents to the said tractor, it was released to him. He maintained that the tractor in dispute is his bonafide property. 9. Defendant tendered in evidence the following exhibits: Exhibit 1 – Receipt covering the tractor in dispute, dated 10/6/21. Exhibit 2 – The bill of lading covering the tractor documents. Defendant’s Witness 10. Defendant called a witness, Dahiman Sule (DW1). According to him, the tractor in dispute is not part of the estate of his uncle the late Musah Adam, rather it is the - 4 - bonafide property of defendant. He explained that his late uncle was indebted to one Mahamudu Jannah. He stated that his uncle took money from the said Jannah for his coronation as the Choggu-Duuyin Naa. So during the lifetime of his uncle, his uncle did not want to die with any debt hence he caused his tractor, Massey Ferguson MF 165 with registration number NR 4275 C to be sold to defray the said debt. He added that he was the one his uncle tasked to find a buyer for that tractor. To him, the tractor in dispute is not part of the estate of the late Musah Adam or that same was purchased from the estate. ISSUES FOR DETERMINATION 11. The issues borne out of the facts are: a. Whether or not the tractor in dispute, Massey Ferguson MF 290, is a family property or a bonafide property of the defendant? b. Whether or not the defendant fraudulently represented to the Ghana Police Service, Tamale in order to take possession of the tractor in dispute? BURDEN OF PROOF 12. It is essential to note that in civil cases, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof on the balance of probabilities. See the cases of Faibi v State Hotels Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. The Evidence Act, 1975 (NRCD 323) uses the expression “burden of persuasion” and in section 14 that expression has been defined as relating to, “…each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” See also ss. 11(4) and 12(1) & (2) of NRCD 323. - 5 - 13. It is when the claimant has established an assertion on the preponderance of probabilities that the burden shifts onto the other party, failing which an unfavourable ruling will be made against him, see s. 14 of NRCD 323 and the case of Ababio v Akwasi III [1995-1996] GBR 774. 14. Where a party pleads fraud in civil case, the law regarding the proof of the criminal act is that of proof beyond reasonable doubt. Section 13(1) of NRCD 323 provides, “In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issues requires proof beyond reasonable doubt.” See also the cases of Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 at 903 and Sasu Bamfo v Sintim [2012] 1 SCGLR 136 at 148. ANALYSIS OF THE ISSUES Issues a and b 15. I shall consider the two issues together. Thus, whether or not the tractor in dispute, Massey Ferguson MF 290, is a family property or a bonafide property of the defendant and whether or not the defendant fraudulently represented to the Ghana Police Service, Tamale in order to take possession of the tractor in dispute? 16. First and foremost, for an action that relates to a family property, there are plethora of cases which support the legal position that any family member may bring an action, especially where the head of family will not make a move to save or protect it, see Kwan v Nyieni [1959] GLR 67, Anane v Agyemang & 7 Ors. [2014] 75 GMJ at 37-38. The law adds that ‘anyone with an interest in an estate, such as a beneficiary, could take an action in respect of the estate where there was no formal grant of letters of administration …provided the action taken was aimed at protecting the estate from being wasted’, see In Re Appau (Dec’d) Appau v Ocansey [1993-94] 1 GLR 146 and - 6 - Adisa Boya v Mohammed Alias Mujeeb [2018] DLSC 4225. In effect, the action of the plaintiffs herein is in no way barred since they seek, in their opinion, to protect the property of their family. 17. The question, however, is this, is the property in dispute for the family or the defendant? As earlier pointed out, he who asserts must prove. Now, with regard to proof of one’s claim or allegation, the Supreme Court in the case Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845 at page 867 held as follows: “... What this rule literally means is that if a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish.” 18. Let me also rehash what was stated in Majolagbe v. Larbi [1959] GLR 190 regarding proof of an allegation. The learned judge, Ollenu J. (as he then was) stated at page 192 that, “where a party makes an averment capable of proof in some positive way…and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true”. See also the case of Klah v. Phoenix Insurance Company Limited [2012] 2 SCGLR 1139. 19. The law is also that the trial court has to decide which set of facts or whose version of the facts or which party should be believed or disbelieved, i.e. which of the varying - 7 - or conflicting versions of the party’s stories, facts or evidence is credible, see Ntim v Essien [2001-2002] SCGLR 451. 20. Based on the above, the legal burden to establish that the property in dispute belongs to the family of the late Musah Adam falls on the plaintiffs, more particularly where the defendant has disputed plaintiffs’ claim, see Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) (supra). Failing which, an unfavourable ruling shall be entered against them. Where plaintiffs succeed, the burden then shifts to the defendant to establish that the property in dispute does not belong to the family or that it belongs to him, see Ababio v Akwasi III (supra). 21. I must emphasis that in proof of a criminal act on the part of the defendant, the plaintiffs are required to prove beyond reasonable doubt that the defendant fraudulently represented to the police or that the defendant acquired the documents of the property in dispute by a fraudulent means in order to take possession of same, see s. 13 of NRCD 323 and Sasu Bamfo v Sintim (supra). 22. From the evidence, the plaintiffs contended that sometime in 2017 the family decided to use the proceeds of the late Choggu Dunyin Naa, Musah Adam’s estate to acquire the property in dispute, Massey Fergusson MF290. The price of the tractor was GHS39,000.00. They were to make installment payments for only six (6) months. They kept regular payments, save the last payment. Plaintiffs contended further that defendant went to pay the last installment and surreptitiously took the documents of the said tractor in his name. At paragraph 14 of their Summary of Claim, they pleaded fraud on the part of the defendant that: “(a) by falsely misrepresenting himself to the retailer that he used his own funds to purchase the tractor, (b) by forging documents to Fergusson Tractor 290 with serial number 0245073 in his - 8 - personal name, and (c) by misleading the police to believe that Fergusson Tractor 290 with serial number 0245073 is his personal property.” 23. The defendant disputed the above and argued that the said property is his bonafide property which he acquired in 2016. 24. As noted earlier, proof of does not mean merely going into the witness box and repeating that averment on oath, or having it repeated on oath by a witness. One proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true, see Majolagbe v. Larbi (supra). I am also enjoined by law to decide which of the varying or conflicting versions of the party’s stories, facts or evidence is credible. In deciding on which set of facts is more credible, the law requires that I look all the evidence of the parties, see Ntim v Essien (supra). 25. It is surprising to note that plaintiffs did not lead sufficient evidence as to how the tractor in dispute was acquired or that payment were made to the retailor. The evidence of PW1 also contradicted the mode of acquisition as expressed by the plaintiffs. At paragraphs 6, 7, 8, 9, 10 and 11 of PW1’s evidence-in-chief, this is what she said: 6. My late husband’s estate among other things included a tractor and two plots at Naa Luro estate. 7. The tractor was to be operated and proceeds thereof used for my maintenance. 8. At the time of my husband’s death, the plaintiffs were still in school and the defendant was a tractor operator. - 9 - 9. Sometime in 2011, the plaintiffs informed me that the defendant [had] sold the tractor. Upon my own enquiries, I confirmed it was true. 10. The plaintiffs were agitated and in the interest of maintaining unity among my children, I told the plaintiffs to let it go and ignore their brother the defendant, which they did. 11. Sometime in 2017, the plaintiffs and the defendant sold two plots at Naa Luro estate and raised additional funds from their friends to purchase a MF Tractor 290 serial number 0245073 from Alhassan Yakubu Kusali.” 26. When PW1 was under cross-examination, below was what ensued: “Q: How many tractors did your husband possess before his death? A: Two. Q: Do you know the people who operated the two tractors? A: … Q: It was the 1st plaintiff, defendant and one Musah Latif. How may wives did your husband have at the time of his death? A: Three Q: Were all the wives having children with your husband? A: Yes. - 10 - Q: Were the children with the other wives still alive at the time of the death of your husband? A: One child of the wives was around. The others died before the death of my late husband. Q: Did you husband have other children aside the three wives? A: Yes. Q: How many are they? A: … Q: There were none actually. How come that the two tractors were all in the hands of your three children but did not include the other children? A: My late husband gave me one tractor with my children and the other tractor to the other children. Q: How many plots did your husband leave behind? A: Two Q: After the death of your husband and there are many children of your husband, was the plot shared among you the wives as well as the children? - 11 - A: One was given to one spouse and the children. The other to me and my children. Q: Did 3rd wife get any share of the plot? A: Yes. Q: What plot? A: I cannot tell. I don’t know the title. Q: How may plots were sold? A: Two. Q: Apart from the plot given to you and the children, was another plot sold? A: My late husband earlier gave the 2nd plaintiff one plot. And after his demise, the other plot was given to me. So when the tractor developed a fault I directed the plaintiffs to sell the two plots to fix the tractor. Q: So the money from the sale of the plots was used to fix the tractor but not buy a new tractor? A: They used the proceeds to purchase an additional tractor and that was the tractor defendant went to the farm and brought it to the police station. - 12 - Q: In paragraph 12 of your witness statement, you indicated that the children raised additional funds to purchase the tractor, do you know these friends? A: Yes. Q: How much was raised from those friends? A: They did not inform me.” 27. Clearly, the inconsistencies in PW1’s evidence puts the case of the plaintiff in disbelief/incredulity. The evidence of the plaintiffs even got worse when 2nd plaintiff also mounted the witness box. Below is what ensued: “Q: How much did you pay for the tractor? A: GHS39,000.00 Q: And he gave you a receipt for the tractor you purchased, not so? A: That was part payment and it was agreed that after full payment a receipt will be issued. Q: How much did you pay as deposit? A: GHS35,000.00 Q: And he did not give you any receipt for the part payment? - 13 - A: He did not give us any receipt. Q: Did he give you any note that you have deposited GHS35,000.00 with him? A: No, just that I have witness to this. His name is Alhaji Aminu. Q: It also means that the balance left is not what you have paid, not so? A: That is so. The remaining balance is GHS5,000.00. Q: Does the said Yakubu issue receipts for what he sells? A: No. Q: And you do not have any evidence that he has noted somewhere that you have deposited GHS35,000.00? A: He did not note it down. He only took the money and gave out the tractor to us. Q: Did you subsequently pay the balance of GHS4,000.00? A: Yes, we paid the balance of GHS4,000.00 Q: With whom did you go to pay the GHS4,000.00? A: I went there with Musah Mumuni. - 14 - Q: You paid the money on behalf of who? A: I was paying. Q: He gave you a receipt in your name, is that correct? A: He did not give us receipt. He asked that we submit the chassis number to him, but we did not. We left for the farm. Q: Kindly take a look at the receipt, whose name is on the receipt as paying GHS39,000.00? A: Musah Mumuni and he stole this receipt. Q: He stole it from who? A: I do not know where he got it. Q: Have a look at this receipt once again, at the top, the name of the person issuing the receipt is there, not so? A: That is so. Q: Mention the name at the top there? A: Alhassan Yakubu Kasuli. - 15 - Q: Is that the same Kasuli you went to buy the tractor from? A: Yes Q: Did he explain to you that his receipt book was stolen? A: No.” 28. Plaintiffs in their own Summary of Claim and evidence-in-chief alleged that it was the defendant who went to pay the last installment. Yet, under-cross examination 2nd plaintiff stated that he went to pay. Assuming without admitting that 2nd defendant went to pay, that meant that he had finished payment in order to take the tractor documents, yet he did not take the documents. As alleged he was to return with the chassis number. Did the retailor not have the chassis number or model of what he sold? Plaintiffs failed to call the retailer, Alhassan Yakubu Kasuli, and the witness he mentioned Alhaji Aminu, to substantiate the payments. Counsel for plaintiffs also argued that since 2nd plaintiff was helping the defendant on his farm, it meant that the produce of the farm was to support the family and by extension payment of the tractor. This was never stated by the plaintiffs as part of paying for the tractor. Plaintiffs rather indicated that they were regular with payments, save the last installment. PW1, on her part, indicated that the plaintiffs raised additional funds through friends to pay for the tractor. Yet again, the plaintiffs never substantiated the support from these friends, see Majolagbe v. Larbi (supra). 29. Defendant, on his part, indicated that he acquired the disputed property in 2016. He submitted that in 2011 he sold his house and purchased a Massey Ferguson 595. He - 16 - subsequently sold this tractor and purchased the tractor in dispute sometime in 2016. He explained that he realised GHS5,500.00 from the sale of the earlier tractor and that he had to top up to pay the full amount of GHS39,000.00 for the tractor in dispute. Exhibit 1, which is the receipt of the tractor in dispute is dated 10th June, 2021. There was no explanation as to the long date, from 2016 to 2021. Exhibit 2 is the document covering the tractor in dispute. Exhibit 2 is dated 2nd October, 2017. I wonder if the defendant’s assertion that he purchased the tractor in dispute in 2016 would apply here. Did the request to buy the tractor predate the time of import? Maybe the 2016 is a wrong date. Counsel for plaintiffs never questioned this. If I am to even exclude Exhibit 2, Exhibit 1 will still remain. Defendant, however, fell short in his answer when he contradicted himself under cross-examination that he never sold his house. This contradiction did not erode the fact that he has a document bearing his name as the purchaser of the tractor in dispute. Thus, at best, he has documents from the same retailer, Alhassan Yakubu Kasuli, as being the purchaser of the tractor in dispute. He also failed to call the said retailer to support his case. For DW1, he had no idea as to when this tractor in dispute was purchased or how much it costed, save that the tractor belonging to the late Musah Adam was sold in satisfaction of a debt, when Musah Adam was alive. In short, all that defendant had in proof that the tractor in dispute is his bonafide property were Exhibits 1 and 2, which are receipt of payment bearing his name and the tractor documents, respectively. 30. Having considered the totality of the evidence led, on the balance of probabilities, I am more inclined to believe the set of facts as given by the defendant over that of the plaintiffs, see Ntim v Essien (supra). He has documents, Exhibits 1 and 2, with Exhibit 1 bearing his name and relating to the tractor in dispute. Plaintiffs never submitted any document of payment or ownership. I find that plaintiffs failed on their part to lead sufficient evidence in proof that they acquired the tractor in dispute - 17 - for or on behalf of the family. They also failed to call Alhassan Yakubu Kasuli or Alhaji Aminu in support of their payments or claim. Again, they failed to prove beyond reasonable doubt that the defendant fraudulently acquired Exhibit 1. In their own words, the retailor does not issue receipts or that the retailer had misplaced his receipt book. Yet, there is one from him. With the plaintiffs failing to establish that the tractor was acquired for or on behalf their family, I am enjoined to enter an unfavourable ruling against them, see Okudzeto Ablakwa (No. 2) v. Attorney- General & Obetsebi-Lamptey and Sasu Bamfo v Sintim (supra). CONCLUSION 31. I hereby dismiss the plaintiff’s action as having no merit since they failed to lead sufficient evidence in proof of their case. 32. No order as to costs. H/W D. ANNAN ESQ. [MAGISTRATE] IAN A. ADAGWINE ESQ. HOLDING THE BRIEF OF SHIEKH-ARIF ABDULLAH ESQ. FOR THE PLAINTIFFS SALISU B. ISSIFU ESQ. HOLDING THE BRIEF OF HALID ABDUL-RAUF ESQ. FOR THE DEFENDANT References: 1. ss. 11(4), 12(1) & (2) and 14 of the Evidence Act, 1975 (NRCD 323) - 18 - 2. Faibi v State Hotels Corporation [1968] GLR 471 3. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 4. Ababio v Akwasi III [1995-1996] GBR 774. 5. Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891 at 903 6. Sasu Bamfo v Sintim [2012] 1 SCGLR 136 at 148 7. Kwan v Nyieni [1959] GLR 67 8. Anane v Agyemang & 7 Ors. [2014] 75 GMJ at 37-38 9. In Re Appau (Dec’d) Appau v Ocansey [1993-94] 1 GLR 146 10. Adisa Boya v Mohammed Alias Mujeeb [2018] DLSC 4225 11. Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845 at page 867 12. Majolagbe v. Larbi [1959] GLR 190 13. Klah v. Phoenix Insurance Company Limited [2012] 2 SCGLR 1139 14. Ntim v Essien [2001-2002] SCGLR 451 - 19 -