APEH VRS DAWUNO & ANOTHER (A9/01/2022) [2023] GHADC 1024 (22 December 2023)

IN THE DISTRICT COURT HELD AT SOMANYA ON FRIDAY THE 22ND DAY OF DECEMBER, 2023 BEFORE HIS WORSHIP MICHAEL DEREK OCLOO 1. SAMUEL APEH 2. DEDE TEIKO VRS SUIT NO. A9/01/2022 PLAINTIFFS 1. DAWUNO DEFENDANTS 2. BENJAMIN PADI PARTIES – PRESENT JUDGEMENT The Plaintiffs claim against the Defendants is for an Order of the Court to eject the 1st Defendant from a single room in H/No. C 30/3 Agavenya Somanya occupied by the 1st Defendant for the past 21 years. The 2nd Defendant was joined to the suit per a ruling on Motion on Notice for Joiner. The Defendants filed a counterclaim as follows: A. An Order for the recovery of title of the disputed room of House Number C 30/3 Agavenya, Somanya to the 1st Defendant by inheritance. B. An Order of the Court to eject the Plaintiffs from House Number C 30/3 Agavenya – Somanya to avoid further occurrence of litigation and conflict. It is the case of the Plaintiffs per their joint Witness Statement that the 1st Plaintiff is a retired officer of the National Commission for Civic Education and the 2nd Plaintiff is the surviving daughter and administrator of the Estate of deceased OkyeameTeye. They stated that the 1st Plaintiff is the Lead of the Nartey Odjei family of Agavenya – Somanya which the late Okyeame Teye belonged to. They contended that the late Okyeame Teye was the grandfather of the 1st Plaintiff and biological father of the 2nd Plaintiff. According to the Plaintiffs it was the late Okyeame Teye who personally acquired land at Agavenya, Somanya and built House Number C 92/4 which is the house in dispute on same with the assistance of his siblings brother Brown, Sister Yoocko and Kwadjo who are all deceased. They added that during the lifetime of Okyeame, he enjoyed peaceful possession and occupation of the said property without any disturbance and also put up the adjoining rooms. The Plaintiffs maintained that the 2nd Defendant is not a member of the Nartey Odjei family as such he has no right of inheritance in the property of Okyeame Teye. They further stated that the 1st Defendant sought for a room to rent in the house in dispute from Okyeame Teye but he gave the single room to the 1st Defendant for free which means on rent – free basis because he needed company and wanted the 1st Defendant to provide same. They added that prior to the death of Okyeame Teye, he ordered the 1st Defendant to vacate the said room but he refusedto comply with the said order. They also stated that the 2nd Plaintiff travelled to Kade for a month and on her return, she found out that the house in issue had been made untidy by the Defendant so she ordered the 1st Defendant to vacate the room. The 1st Defendant then stated the following: “ I will destroy you and your generation. I am the one who killed your brother Dawutsu and when you insist on ejecting me from the house, you and your family will die”. The matter was taken to AsafoatseOdompleh III who is the traditional leader of Agavenya for the 1st Defendant to revoke the threat and vacate the house but the 1st Defendant pleaded for extension of time to enable him complete his house and relocate into same. In conclusion, they stated that the Defendants have no reasonable cause of action per their joint statement of defense and counterclaim and same should be struck out. In the Witness Statement of PW1 Djabotey Joshua he stated that Okyeame Teye Nanor (deceased) was his maternal grandfather who allowed the 1st Defendant to stay in the said room on rent – free basis for the sake of keeping him (Okyeame Nanor) company. He added that the 1st Defendant brought a wooden container to the house and OkyeameTeye told him (1st Defendant) to remove same but he refused. He further stated that his (PW1’s) mother the 2nd Plaintiff added her voice to the Order for the 1st Defendant to leave the house but the 1stDefendant warned the 2nd Plaintiff to stay out of the issue else she would suffer something terrible. He concluded that the family took the matter to the rent officer at Odumase-Krobo where the 1st Defendant was ordered to vacate the room but he refused. The Defendants per their joint witness statement stated that the 1st Defendant is a retired worker of Akosombo Textile Limited and the 2nd Defendant is the head of Dika Dawutey family and resident at Agavenya, Somanya. They added that Dika Dawutey was the great grandfather of the 1st Defendant and that DikaDawutey built the house in dispute House No. C 92/4 Agavenya before he descended from Kloyom Mountain in late 1820. According to the Defendants, Dika Dawutey gave birth to a son by name Dawutey who also gave birth to Padi Avutor, Dau Gati, Dedetsu and Mangor. They added that the 1st Defendant is the second born son of Padi Avutor. They further stated that Dika Dawutey’s son Dawutey inherited his father’s houseNo. C92/4 Agavenya which is the house in dispute in accordance with Krobo custom. They added that after the death of 1st Defendant’s grandfather Dawutey, his son Padi Avutor and Dau Gati inherited House number C 92/4 Agavenya which is the house in dispute. According to the Defendants, the 1st Defendant is the Great Grandson of the late Dika Dawutey who originally owned house no. C 92/4, Agavenya Somanya which is the house in Contention. They further stated that the 1st Defendant was staying with his nuclear family in a rented house at Gbekomanya, Somanya and the late Okyeame Teye Nanor who is the father of the 2nd Plaintiff summoned him 1st Defendant to an arbitration before the elders of Agavenya for his refusal to come and stay in his (1st Defendant’s) grandfather’s home C 92/4 Agavenya. The Panel of arbitrators ordered the 1st Defendant to go and stay in house number C 92/4 Agavenya in the year 1999. They added that the 1st Defendant moved into the said house and in the year 2001 built a fence wall to prevent rain- water from entering the house. This was done before the death of the late Okyeame Teye Nanor who was the father of the 2nd Plaintiff in the year 2003. They further stated that the 2nd Defendant is currently the head of the Dika Dautey family of house no. C 18/3 Agavenya and that the late Dika Dautey who was the owner of House No. C 92/4 had two siblings namely Dika Padi (Grandfather of the 2nd Defendant) and Awo Kpo (mother of the late Okyeame Teye Nanor). They added that Awo Kpo who was the mother of the Plaintiff’s father (Okyeame Teye Nanor) was also the grandmother of the 2nd Plaintiff and got married by Papa Huno Tsupatse who hailed from Nartey Odjer family where the 1st and 2nd Plaintiff’s belong. They added that the funeralsof the 2nd Defendant’s father Avutor Padi and his brother DawuteyAgbo were performed in the years 1992 and 2010 respectively in House No. C 92/4 Agavenya. In addition they stated that Awo Kpo and her husband Papa Huno Tsupetse gave birth to Kwadjo, Brown, Yorkoo and Okyeame Teye Nanor who also gave birth to the 2nd Plaintiff DedeTeiko. They further stated that when Awo Kpo and her children and grandchildren died theirfunerals were performed in Nartey Odjer’s family house because that is where Papa Huno Tsupatse (grandfather of the 2nd Plaintiff) hailed from. According to the Defendants after the death of PapaHuno Tsupatse (husband of Awo Kpo) his wife Awo Kpo and her children and grandchildren relocated and stayed temporally in the late Dika Dautey’s house No. C 92/4 Agavenya which belongs to Dawutey (grandfather of the 1st Defendant). They further stated that per their customs and tradition the Krobos inherit paternally and that Awo Kpo and her children and grandchildren have no inheritance right in accordance with the Krobo custom therefore they cannot inherit any property of DikaDautey’s family rather they can seek inheritance right from the Nartey Odjer family where the 1st and 2nd Plaintiffs belong. They concluded that due to the paternal inheritance practiced by the Krobos the elders of the Plaintiffs’ family did not lay any of their deceased family members including Okyeame Teye Nanor (father of 2nd Plaintiff) in DikaDawutey’s family house rather they were laid in Nartey Odjer’s family house. The parties called a witness each and closed their case. In the evidence of the PW1 Djabotey Joshua he stated that the late Teye Nanor was his maternal grandfather who was in possession and occupation of the house in dispute. He added that the 1st Defendant sought for a single room accommodation in the said house from Teye Nanor who granted him (1st Defendant) same on rent – free basis. This was done to enable Teye Nanor to have company in the house. He added that Teye Nanor on one occasion ordered the 1st Defendant to vacate the said house for not fulfilling the purpose of the grant but the 1st Defendant pleaded for extension of time to do so. He further stated that the 1st Defendant brought a wooden container to the house and Teye Nanor told him to remove same from the house but he failed to do so. He added that his mother the 2nd Plaintiff added her voice to the call for the 1st Defendant to leave the house but the 1st Defendant warned the 2nd Plaintiff to stay away from the matter else she would suffer a terrible thing which would be more than the death of her son TeyeSamuel Dawu. The Plaintiffs’ family took the matter to the Rent Control Office in Odumase – Krobo for the ejection of the 1stDefendant from the home. The 1st Defendant was found liable and ordered to leave the house but he refused. He concluded that the Plaintiffs’ family is exercising sympathy on the 1st Defendant because of his wife. In the evidence of DW1 DedeNyengor she stated that she is the great grand-daughter of the late Dika Dautey who was her great grandfather and that the 1st and 2nd Plaintiffs belong to the Odjer family of Agavenya Somanya. She added that her great grandfather DikaDautey built the house in dispute in the latter part of the year 1892 after he had descended from the Kloyom. She further stated that Dika Dautey had an only son by name Dawutey who was her (DW1’s) grandfather and that Dawutey inherited the house in dispute after the death of his father Dika Dautey. She added that Dawutey was her grandfather. According to DW1, Dawutey married two(2) wives namely Dedetsu and Koryoe and that Dedetsu was her mother and padiAvutor was her elder brother. She added that Padi Avutor was the father of the 1st Defendant. She further stated that AwoKpor was a second sibling of Dika Dautey and she (AwoKpor) got married to Papa HunoTsupatse of the NuerteyOdjer family. He added that AwoKpor gave birth to Kwadjo, Brown, Yorko and Teye Nanor and that Teye Nanor was the father of the 2nd Plaintiff. She added that an arbitration panel made up of the elders of Agavenya, Somanya ruled that Teye Nanor must allow the 1st Defendant to live in the house in dispute as a form of inheritance of his great grandfather Dika Dautey in accordance with the Krobo custom and tradition. She concluded that the funerals of Teye Nanor, father of the 2nd Plaintiff and SamuelDawu, son of the 2nd Plaintiff were performed at the NuerteyOdjer family house where the 2nd Plaintiff’s father ‘s inheritance comes from and not in the DikaDautey’s family house. The two parties are in agreement that the house in which the room in contention is located in house number C 92/4 and not House number C 30/3 as stated on the Writ of Summons by the Plaintiffs. The legal issues for determination by the Court are as follows: 1. Whether or not ownership of the house (room) in dispute was proved. 2. Whether or not the Plaintiffs are members of the Dika Dautey family and have right of inheritance in same. 3. Whether or not the 1st Defendant’s occupation of the room in contention was appropriate. By their own election the Plaintiffs decided that the 1st Plaintiff would prosecute the case on his own behalf and on behalf of the 2ndPlaintiff likewise the Defendants who decided that the 2nd Defendant would prosecute the case on his own behalf and on behalf of the 1st Defendant. In every civil case including the instant case the general rule is that the burden of proof rests upon the party whether Plaintiff or Defendant who substantially asserts the affirmative of his case. In the case of LAMPTEY ALIAS NKPA V FANYIE & OTHERS [1989 -90] 1 GLR 286, the Supreme Court held that: “On general principles, it was the duty of a Plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the Defendant to lead sufficient evidence to tip the scale in his favour” This is clearly covered in section 14 of the Evidence Act, 1975, NRCD 323. In the cases of NYIKPLORKPO V AGBEDTOR [1987-88] 1 GLR 65 AND ASANTE APPIAH V AMPONSAH [2009] SCGLR 90 it was held that: “To successfully maintain an action for declaration of title to land, the Plaintiff had to prove with certainty the boundaries of the land claimed, how much he bought the land, the price that he paid for and the documentary proof establishing his title, the Plaintiff must establish by positive evidence that identity and limits of the land he claims” By extension the principle adduced in the cited cases are applicable in maintaining an action for declaration of title or ownership of a house. In the instant case, the Plaintiffs claim that house number C 92/4 which is in dispute was built by Teye Nanor and therefore the owner of same. The Defendants also claim that the house in dispute was built by Dika Dawutey and therefore the owner of same. The two (2) parties were unable to produce any documentary proof to make their case rather they relied on history and oral tradition or presentation to make their case. The appropriate law to be applied is customary law since customary law knows no writing as adduced in the cases of ADORMSON V TETTEH [2013] 59 GMJ 62 CA and DOVIE & DOVIE V ADABANU [2005 – 2006] SCGLR 905. It is a fundamental principle of law of evidence that in any trial, a party that makes an assertion has a duty imposed upon him by law to persuade the Court that his assertion is true. This is because he who asserts must prove. Section 14 of the Evidence Act, 1975 (NRCD 323) provides that: “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 defense he is asserting”. The above provision was upheld in the case of BILSON V. RAWLINGS AND ANOTHER [1993 – 94] 2 GLR 422 where it was help that: “…the law has always been that he who alleges that certain state of facts exists, must prove it” The plaintiff made the assertion that Teye Nanor was the one who built the house in dispute and therefore he was the owner. The burden was therefore upon the Plaintiffs to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact that Teye Nanor was the owner of the House in dispute was more probable than its non-existence. The instant action is civil in nature as such the standard of proof on the Plaintiffs was on a balance of probabilities. In their attempts to satisfy this legal requirement they called PW1 Djabatey Joshua who stated in his witness statement that his maternal grandfather Teye Nanor was in possession and occupation of the house in dispute. During cross examination of PW1 by the 2nd Defendant the following transpired: Q: Who built the house No. C92/4 at Agavenya in which the 1st Defendant is staying. A: My grandfather by name Okyeame Teye. Q. In which year did Okyeame Teye build the said house A: I do not know Also when D2 cross examined the 1st Plaintiff the following ensued: Q: I am putting it to you that the house in issue is 200 years old now and the said Okyeame Teye died about 130 years now therefore he couldn’t have built a house that is older than him. A: Yes he built the house. He was my grandfather I grew up to know that he built the house and lived in it. The 2nd Plaintiff is only surviving daughter now. It is clear from the above that PW1 Djabotey Joshua who claimed that Okyeame Teye was the one who built the house in issue was unable to state the year in which same was built. Again the response of the 1st Plaintiff is a confirmation of the fact that Okyeame Teye couldn’t have built a house that is older than him. His statement that he grew up to know that Okyeame Teye was the one who built the house can be construed to mean that he was told or informed that it was Okyeame Teye who built the said house. This development constitutes a hear – say evidence which is inadmissible per section 117 of the evidence Act 1975,(NRCD 323). The case of the Defendants was that DikaDawutey put up the house in issue in the latter part of the year 1820 and gave birth to a son by name Dawutey who inherited the house. Also Dawutey gave birth to Padi Avutor, Dau Gati, Dedetsu and Mangor. Also PadiAvutor was the father of the 1st Defendant. Again Padi Avutor and Dau Gati inherited the house in dispute after the death of Dawutey. It follows therefore that 1st Defendant is the great grandson of DikaDawutey. In Addition Dika Dawutey had two (2) siblings namely Dika Padi and Awo Kpo who got married to Huno Tsupetse from the NarteyOdjer family and they gave birth to Kwadjo, Brown, Yorkoo and Teye Nanor who gave birth to 2nd Plaintiff. After the death of Huno Tsupetse, Awo Kpo and her children and grandchildren moved to stay temporarily in the house in dispute. The temporal stay does not make the 2nd Plaintiff and her children and grandchildren members of the Dika Dawutey family. I now turn my attention to the issue as to whether or not the 1stDefendant’s occupation of the room in contention was appropriate. The Plaintiffs said the 1st Defendant approached Teye Nanor who allowed him to stay in the room in contention on rent – free basis. The Defendants also stated that the 1st Defendant’s occupation of the said room was a directive from an arbitration panel comprised of elders of the family and the community. The question is why did Teye Nanor allow the 1st Defendant to stay in the room in contention without paying rent. The answer could be based on the fact that he regarded the 1st Defendant as a member of family of Dika Dawutey. The account relating to the directive of an arbitration panel is more probable as D2 was a member of the said panel and was able to mention the names of other members of the panel under cross examination by the 1st Plaintiff. It is important to note that the 1st Plaintiff did not ask further questions to ascertain the veracity or otherwise of D2’s assertion. By his failure to cross – examine on same the 1st Plaintiff is deemed to have acknowledged, sub silentio D2’s averment as adduced in the case of QUAGRAINE V ADAMS [1981] GLR. It is my finding that after considering the evidence adduced that the Plaintiffs were unable to lead sufficient evidence to prove their case. In addition the Defendants were unable to lead credible evidence to prove their counterclaim. The Counterclaim is therefore dismissed. In passing Judgment however I take into consideration the fact that the parties are related as a family and will continue to interact with each other. An ejectment may not promote peaceful co – existence. In the circumstances, I rely on the preponderance of the probabilities and enter Judgment in favor of the Defendants and order the 1st Defendant to exhibit good conduct in his occupation in the room in issue in H/No. C92/4. (SGD) ……………………………………. MICHAEL DERK OCLOO DISTRICT MAGISTRATE 12