BRIGHT VRS FORDJOUR (A1/01/2023) [2023] GHADC 840 (27 October 2023)

Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour IN THE DISTRICT COURT HELD ON FRIDAY THE 27TH DAY OF OCTOBER, 2023 BEFORE HER WORSHIP VICTORIA VERA AKONU DISTRICT MAGISTRATE PASTOR BEDU BRIGHT Of New Edubiase suing for himself And on behalf of his siblings of the late Afia Gyinaye VRS. 1. 2. Both of Bibiani PHILIP KOJO FORDJOUR SISTER ABENA SUIT NO: A1/01/2023 PLAINTIFF DEFENDANTS PARTIES: Present _____________________________________________________________________________________ _____________________________________________________________________________________ J U D G M E N T The writ of summons issued at the Registry of this Court is endorsed with the following reliefs: (a) “Declaration of title, ownership and recovery of possession of a building plot situate, lying and being at Estate/Ahodwo which building plot is the property the Plaintiff and his siblings including the 1st Defendant but the 1st Defendant has sold to the 2nd Defendant without the knowledge and consent of the other siblings, e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour (b) An order of the honourable Court to compel the 2nd Defendant to stop developing the building plot in dispute until all factual and legal issues are fully determined, (c) Perpetual injunction to restrain the Defendants whether by themselves, family members, privies, assigns, caretakers, labourers etc. from having any dealing on the building plot in dispute until the final determination of the suit, (d) Any further order(s) as the honourable Court may deem just, fit and appropriate”. Both Defendants, pleaded not liable to the Plaintiff’s claim and filed a counter-claim as follows: (1) “Declaration of title, ownership and recovery of possession of a piece of building plot which was gifted to the Defendant by his late, mother Afia Gyinaye, (2) Perpetual injunction to restrain the Plaintiff whether by himself, siblings, family members, agents, servants, assigns, privies, labourers, etc. from having any dealing with the building plot in dispute after the final determination of the suit, and (3) Any further order(s) as the honourable Court may deem just, fit and appropriate”. Record of proceedings was adopted on 9th February, 2023 by the Court after both parties have confirmed same to be proceedings conducted so far in the case. e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour THE CASE OF THE PLAINTIFF The evidence of the Plaintiff is that he is a Pastor of Apostle Continuation Church stationed at New Edubiase. He also avers that the 1st Defendant is his younger brother from the same mother. It is his case that the plot of land in dispute was acquired by their late mother, Afia Gyinaye who gave birth to seven (7) children including the 1st Defendant and himself. He avers again that their late mother used proceeds from the sale of her land at Lineso to Miners to finance the purchase of the disputed plot of land at Bibiani Estate and that before the sale of their late mother’s land at Lineso the aforementioned land was given to abunu tenant which he tendered the document in evidence and same was admitted and marked as Exhibit “A”. He avers further that the disputed plot is part of the plot of land their late mother acquired at Bibiani Estate which they built ten (10) bedroom house on portion of it leaving the other portion undeveloped which is now the plot in dispute. He states that he prepared a site plan for the entire plot of land their late mother acquired but was prepared in the name of their only surviving sister, Abena Boakyewaa upon the instructions of their late mother. It is his claim that it was after the demise and funeral of their mother that the 1st Defendant told him that their late mother had gifted him the disputed portion and produce a document to that effect but he did not believe what he said as their mother would have invited/told them or any of the family members about that and for that matter he does not trust the document produced by the Defendant. As the disputed plot did not belong to the 1st e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour Defendant, he could not have sold the same to the 2nd Defendant and that the plot belonged to all the children of their late mother Afia Gyinaye. Evidence of PW1 His evidence is that the Plaintiff and the 1st Defendant are his siblings and that one day he returned from his business and realized that someone had left cement bags in their house and when he enquired nobody owned up but the next day when he came back from hawking, he saw that the cement had been moulded into blocks which he later got to know that it is for the 2nd Defendant. He avers that it was the 1st Defendant who had sold the disputed portion to the 2nd Defendant. THE CASE OF THE DEFENDANT The 1st Defendant testified for himself and the 2nd Defendant and claims that he is a farmer and resides at Adienkye a suburb of Bibiani and the Plaintiff is his elder brother. He avers that the disputed plot of land was initially acquired by their late mother from the compensation she received from Ashanti Gold Mines after the latter had destroyed her cocoa farm. His mother acquired the land from Maame Mooni at Estate-Jona but the land documents bears the name of their sister, Gifty Fordjour He states that he is the owner of the disputed property as it was gifted to him by their late mother on the 8th January, 2014 and their mother executed a document to cover the gift and that he was in peaceful possession after the e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour land was granted to him where he planted coconut which are now grown and he decided to construct a three (3) bedroom house but later sold a portion to the 2nd Defendant when she expressed interest. He states again that out of the 11 rooms built by their mother, he used his own resources to roof and complete eight (8) rooms which he rented them out and upon the instructions of their mother, he went to occupy one of the rooms To prove his case, he tendered in the following documents: Site plan in the name of Gifty Fordjour which was admitted and marked as Exhibit “1” Deed of conveyance between his mother (Afia Gyinaye) and Miss Martha Yeboah dated 21st October, 2010 which was admitted and marked as Exhibit “2”. Deed of gift by Afia Gyinaye to Philip Kojo Fordjour (1st Defendant herein) dated 8th January, 2014, which was admitted and marked as Exhibit “3” Application for building permit in the name Gifty Fordjour dated 11th November 2010 which was admitted and marked as Exhibit “4, 4A, and 4B” Proposed single storey residential building plan in the name Gifty Fordjour which was admitted and marked as Exhibit “5”, and Photographs showing the coconut trees on the disputed portion which was admitted and marked as Exhibits “6, 6A and 6B. [All exhibits were admitted without objection]. e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour It is his case that he had every right to sell some portion of the land gifted to him by his mother to the 2nd Defendant who also has taken possession of same. EVIDENCE OF DW1 The evidence of DW1 is that both the Plaintiff and the 1st Defendant are her siblings and the 2nd Defendant is a tenant in their mother’s house. She avers that one day whiles at work, their mother came to her and told her that she wants to give the undeveloped portion of her land to the 1st Defendant and so she should accompany her to execute a document to that effect. She then told her that she is not the only child and then demanded to know why she has not told the eldest or the rest of her siblings. Their mother told her that it is the 1st Defendant who takes care of her and beside when someone extends good deeds to you, you have to reciprocate it. So she accompanied her where she signed the document as a witness. She states that it is after the death of their mother that her brother, the Plaintiff has mounted this action. APPLICABLE LAW/BURDEN OF PROOF The Evidence Act, 1975 (NRCD 323) imposes a strict evidential obligation on a Plaintiff in any civil case who wants to succeed on his claim against the Defendant to adduce admissible, relevant, credible and cogent evidence to prove his case on the preponderance of probabilities without relying on the weakness of the Defendant’s case or else Plaintiff suffers the risk of losing his case. The Plaintiff is capable of proving his case, either by direct or e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour presumptive evidence – see Sections 10 – 14 of the Evidence Act, 1975 (NRCD 323). Section 10 – “(1) For the purposes 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 to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities”. In the case of SAKORDIE VRS. F. K. A. CO. LTD [2009] SCGLR 65 @ 69 where it was held as follows: “It is also provided in the Evidence Act, 1975 (NRCD) Sections 11(4) and 12 as follows: “11(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence.” In the instant case, the Defendants have also filed a counter-claim and for that matter they will also be bound by the same standard of proof. A counter claim is a different action in which the Defendant counter claimant is the Plaintiff and the Plaintiff in the action becomes a Defendant, in the instant case, where both parties are seeking declaration of title, recovery of possession and perpetual injunction in respect of the disputed piece of the land, each of them bear the burden of proof and persuasion to prove e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour conclusively on a balance of probabilities, that he was entitled to the reliefs claimed. Thus section 11(1) of the evidence Act, 1975 (NRCD323) enjoins the defendant in his capacity as a plaintiff in the counter claim to introduce sufficient evidence to avoid a ruling on the issue against him. See SASU BAMFO VRS. SINTIM (2012) 1 SCGLR 136 AT 155 PER ROSE OWUSU JSC. The standard of proof required in a civil suit was explained in the case of BISI & ANOR. VRS. TABIRI ALIAS ASARE [1987-88] 1 G;R 360 head note (2) as follows : “the standard of proof required of a Plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier’s belief in the preponderance of probability. But probability denoted an element of doubt or uncertainty and recognized that where there are two choices it was sufficient if the choice selected was more probable than the choice rejected…..” Both parties have sued for declaration of title, ownership etc, it is my considered opinion that it will be a fruitless effort by the court to go on all that tangent to evaluate the evidence on what the parties had to proof as the only issue between the parties is about the 1st Defendant’s claim that the e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour disputed portion of their late mother’s land was given or gifted to the him. Accordingly, the two issues I will set for determination are: Whether or not the disputed land was gifted to the 1st Defendant by Afua Gyinaye during life time and if yes whether the 1st Defendant has been in possession of same? ANALYSIS OF THE EVIDENCE TO THE LAW Generally, a gift could be made of anything to anyone provided the subject matter is a self-acquired property of the donor. The Black’s Law dictionary defines gift as “the voluntary transfer of property to another without compensation”. Gift is also explained by Kwamena Bentsi-Enchill in his book titled GHANA LAND LAW – An Exposition, Critique and Analysis at page 360 as follows: “a gift is like a sale in which the vendor expects no price to be paid and asks for none. That is to say it is a voluntary transfer of title to another for no consideration. As in a sale, the donor must be the owner of the thing given, have the competence to transfer it and fully intend so to do, and purport to do so. If these conditions are satisfied, but the intended done refuses to accept the proffered gift, then there is no gift. For a donee willing to accept the gift is needed for the making a gift; and an acceptance of some sort by the donee is necessary to complete the gift”. From the above explanation the property to be given out must the self- acquired property of the donor, he must have capacity to give out the e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour property (he must be of sound mind and must not be a minor) and the donee must accept the gift and under our customary law the donee accepts the gift by providing ‘aseda’ to the donor. The undisputed evidence before the Court is that the entire land belonged to the Plaintiff and 1st Defendant’s late mother and that it is a portion which the 1st Defendant alleged to have been given to him that is in dispute. What this means is that before the alleged gift to the 1st Defendant, the land was self-acquired property of their mother even though all the documents covering the entire land is in the name of the DW1. The explanation both gave for the document bearing the name of DW1 is that she is the only daughter or female among them. Once the property is her self-acquired, then she can give it to whoever she wants. There is also no evidence on record to indicate that she was not of sound mind. In the case of ABDUL RAHMAN VRS BABA LADI; CIVIL APPEAL NO. J4/36/2013, 29TH JULY, 2013 it was held as follows: “on proof of gift inter vivos, counsel for the appellant cited three relevant decisions of this Court. ‘These are Mahama Hausa v. Baako Hausa [1972] 2 GLR 469; Asare vrs. Kumoji [2000] SCGLR 298; Akumsah vrs. Botchway & Jei River Farm Ltd. [2011] 1 SCGLR 288. The most important element of a customary gift that runs through these authorities and several others is that the gift must be offered and accepted and must be witnessed by somebody else other than the donor and donee. ‘Thus when the fact that a gift has been made 1 e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour is challenged, it will not be sufficient to state barely that a gift was made; you have to go on to show the occasion, if any, on which the gift was made; the date; the time, if possible; the venue and most importantly, in whose presence it was made” From the above case, there must a neutral person apart from the done and the donor. The DW1 is a sibling of the Plaintiff and the 1st Defendant, and she is a beneficiary of the estate of their mother and it is interesting to note that their mother used her name to prepare the document when she acquired the entire land and she was a witness to the gift of the disputed portion to the 1st Defendant. The evidence of the DW1 is that she was at work when their mother called her to accompany her to make a document as she wanted to gift the disputed portion of the land to the 1st Defendant and even when she enquired from her mother if she had told the rest of her siblings, the mother responded that it was the 1st Defendant who takes care of her and someone does some good deed towards you, you have to return that gesture. The impression sought to be created by the Plaintiff that if in deed their mother made the gift, she would have informed him or the other siblings or their uncle is neither here nor there. If there is anyone who is should be upset about this gift, then it should have been the DW1 since all the documents bear her name. Yet she signed Exhibit 3 and also testified for the 1st Defendant. On the basis of the evidence before the Court, I find and hold that the disputed land was gifted to the 1st Defendant and the gift was proper. 1 e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour The undisputed evidence on record is that the 1st Defendant has planted coconut on a portion of the disputed land. This he proved by tendering in Exhibits 6 series to indicate that he has been in control of the land gifted to him. He even stated in his evidence in chief on 26th June, 2023 that before the 2nd Defendant had approached his mother in respect of the disputed portion and the mother told her that portion belongs to him and that explains why the 2nd Defendant contacted for that portion. These are facts which the Plaintiff ought to have crossed examined the witness on yet he failed to do so and having failed to do so, I have no option than to accept the evidence of the 1st Defendant. Having held that disputed land was properly gifted to the 1st Defendant, then he can dispose of the property to anyone he likes without the consent of the Plaintiff and his other siblings. Having examined the evidence adduced by the parties and their witnesses together with the legal principles on the balance of probabilities, I hold that the Plaintiff was not able to demonstrate that he is entitled to the reliefs he is seeking and it is for this reason that I will dismiss the Plaintiff’s claims endorsed on his writ of summons and same is accordingly dismissed. I therefore find and hold that the case of the 1st Defendant is more probable than its non-existence and for that matter; I hereby enter judgment for the Defendants against the Plaintiff on the reliefs endorsed on their counter- claim as follow: 1 e g a P Bibiani District Court – Pastor Badu Bright vrs Philip Kojo Fordjour (1). Declaration of title, ownership and recovery of possession of a piece of building plot which was gifted to the Defendant by his late, mother Afia Gyinaye, (2) The Plaintiff whether by himself, siblings, family members, agents, servants, assigns, privies, labourers or whatsoever called are retrained from having any dealing with the building plot which was gifted to the 1st Defendant and a portion sold to the 2nd Defendant. I award cost of GHS2,000.00 in favour of the 1st Defendant against the Plaintiff. SGD VICTORIA VERA AKONU DISTRICT MAGISTRATE 1 e g a P