ADJEI VRS MARTHA & 2 OTHERS (A9/ 57/2014) [2023] GHADC 1167 (20 December 2023)

IN THE DISTRICT COURT HELD AT TAKORADI (MARKET CIRCLE) ON WEDNESDAY THE 20THDAY OF DECEMBER, 2023. BEFORE HER WORSHIP CATHERINE OBIRI ADDO ESQ: ------------------------------------------------------------------------------------------------------------- SUIT NO. A9/ 57/2014 GLADYS ADJEI …. PLAINTIFF H/NO. 5A/ 5 KWESIKROM ROAD TAKORADI VRS: 1. M. S MARTHA 2. FRANCIS ARTHUR 3. FREDERICK KOBINA AMOFA .... DEFENDANTS H/NO. 5A/5 KWESIKROM ROAD TAKORADI JUDGMENT The Plaintiff in this case initiated the actionagainst the defendants per the amended writ of summons on the on the 7TH day of July,2016, and claim against the defendants the following: i. An order for recovery of the 2nd store in house no.5a/5, Kwesikrom road, Takoradi jointly and severally from the defendants to enable the plaintiff set up her own business venture here in Ghana. Subsequently in the course of the proceedings, the 3rd defendant in the person of Frederick Kwabena Amofa was joined to the suit as the 3rd defendant. EVIDENCE OF THE PLAINTIFF The plaintiff, represented by attorney Kwame Etuah, holding a power of attorney as evidenced by Exhibit A without objection, asserts that she, a resident in France, is the owner of the shop currently occupied by the 1st and 2nd defendants. The plaintiff contends that the contested shop previously belonged to the late Edward Kwabena Amofa, and after his demise, probate was granted to her, followed by proper distribution of the property. The plaintiff introduced the Will and probate as Exhibit B without objection. Following the distribution, the subject matter store became the plaintiff's property. Exhibit C, the vesting assent transferring the subject matter store to her, was presented by the plaintiff without objection. Subsequently, the plaintiff sent two letters to the defendants, who were tenants in the subject matter shop, on the 24th day of September 2012, instructing them to vacate by the 31st day of March 2013. The letters were submitted as Exhibits D and E, respectively. The plaintiff contends that the defendants have not paid any rent since the property was vested in her. She expresses the need for the shop for her personal use as she has decided to return to Ghana to settle. The plaintiff introduced Exhibit G and H series, signifying the vesting assent prepared for the beneficiaries of the estate. Additionally, Exhibit F denotes the consent of the beneficiaries to the plaintiff taking probate, and this was admitted by the High Court. 3RDDEFENDANT EVIDENCE AT TRIAL It is worthy of note that the 1st and 2nd defendant, failed to testify before the court and also failed to cross examine the plaintiff in respect of her evidence before the court, it was rather the 3rd defendant who later joined to the suit that testified and called DW1 and DW2 to corroborate his case. As per the case of In Re Presidential Election petition: Akuffo Addo & 2ors (NO.4) v Mahama & 2 Ors. (No. 4) (2013) SCGLR (special edition) 73 at page 425, when evidence presented against a party remains unchallenged during cross-examination, the court is obliged to accept that evidence. This principle is reiterated in the case of Ashanti Gold Co. Ltd v Westchester Resources Ltd (2013) 56 GMJ 84 at page 128, where Korbieh J. A ruled that unchallenged evidence in cross-examination is deemed admitted by the opposing side. Similar legal principles are found in the cases of Takoradi Flour Mills v Samir Faris (2005-2006) in view of the above position of the law, the failure of the 1st and 2nddefendant to testify nor to cross examination the plaintiff on her assertion the court hereby accepts that evidence against the 1st and 2nd defendant. The 3rd defendant asserts that he goes by the name Nana Oteng and is also recognized as Frederick Amofa. The plaintiff, his sister, has no authority to evict the 1st and 2nd defendants, as the subject matter store was rented to them by him, the 3rd defendant. He claims his late father owns the shop. According to the 3rd defendant, his father granted him permission, while still alive, to transform the subject matter shop into its present state. After his father's death in 2007, the plaintiff became an executrix to assist Bediako Donkor. The 3rd defendant alleges he received a vesting assent, but there's a mistake in the name, which appears as Frederick Amofa. He mentions that the plaintiff has been in France for 29 years and is unfamiliar with Gifty Quarm but knows Bediako Donkor. The 3rd defendant contends that his father never numbered the stores during his lifetime, and he has no knowledge of exhibit C or whether property distribution has occurred. He called two witnesses to support his claims. Affirmed by Felicity Amofa, herein referred to as Dw1, she acknowledges her acquaintance with house number 5A/5, encompassing the subject matter stores, asserting that the property originally belonged to her deceased father, who bequeathed it to his five children, comprising four females and one male. Dw1 contends that the upper floor of the property was incomplete and was assigned to the sole male sibling for completion. The remaining four stores were allocated among the four sisters. Dw1 maintains that during the allocation of the remaining four stores, the plaintiff claimed entitlement to two of them. A dispute arose when the entrance of the house was blocked and converted into a store, which the plaintiff insisted belonged to her. Dw1 refused to accept that location as her share, leading to the plaintiff bringing the matter to court. Dw1 emphasizes that the 1st and 2nd defendants currently occupy the store that was intended for her. Consequently, she opposes the eviction of the 1st and 2nd defendants from the aforementioned shop. Additionally, Dw1 asserts that the plaintiff never provided her with any documentation related to the property distribution. As asserted by Hannah Amofa, identified herein as DW2, she declares that house number 5A/5, encompassing the subject matter stores, is the property of her deceased father. Following his demise, the siblings collectively determined that the 3rd defendant would occupy the top floor of the building, leaving four stores on the ground floor to be distributed among the four sisters. DW2 further states that she was present when the plaintiff presented a document to them. According to this document, she was allocated one store, the 3rd defendant received one store, Serwaa obtained one store, but the plaintiff claimed two stores. Notably, DW2 mentions that her sister Felicity Amofa did not receive a share in the said store. DW2 contends that there are two entrance gates, and she transformed one into a store by adding a roof. She alleges that the plaintiff suggested her younger brother should occupy that space, but she disagrees, asserting that it is not a conventional store but rather an entrance gate that she converted into a store. ISSUE FOR DETERMINATION 1. Whether or not house no 5A/5 which probate was obtained in respect of same has been distributed to the beneficiaries and vested in them accordingly if yes? 2. Whether or not the subject matter stores were validly vested in the plaintiff as such entitled to same if yes? 3. Whether or not plaintiff is entitled to recover possession of the said stores from the 1st and 2nd defendant. EVALUATION OF EVIDENCE AND APPLICATION OF THE LAW. The general rule is that, where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof, whether it is the plaintiff who asserts a fact or the defendant who makes a counterclaim. See the case of BANK OF WEST AFRICA LTD V ACKUM (1963) 1GLR 176-182. Where the court held that the onus of proof in civil cases depends upon the pleadings and the party who in his pleading raises an issue essential to the success of his case assumes the burden of proof. The court applied the case of HUYTON-WITH-ROBY U. D. C. V HUNTER (1955) ALL E. R.398, C. A. In the case of FAIBI V STATE HOTELS COPRPORATION (1968) GLR 471-480, the court also held that the onus in law lay upon the party who would lose if no evidence was led in the case, and where some evidence has been led, it lay on the party who would lose if no further evidence was led. The evidence Act 1975, (NRCD 323), encapsulates the foregoing principle in section 14 where it uses the term burden of persuasion and provides that the asserting party must prove each fact of his claim, the existence or non-existence of which is essential to the claim or defence he is asserting. Section 12(1) of NRCD 323 provides a further element to the above stated general rule to the effect that in civil cases, such as the one in question, the burden of persuasion requires proof by the preponderance of probabilities defined in section 12(2) as that degree of certainty of brief in the mind of the tribunal of fact or court by which it is convinced that the evidence of fact is more probable that its non-existence. From the foregoing therefore, it is clear that the plaintiff, to succeed on its claims, assumes the onus of proving its assertion against the defendant. I will now turn my attention to the issues raised earlier, the first of which is Whether or not house no 5A/5 which probate was obtained in respect of same has been distributed to the beneficiaries and vested in them accordingly. Under Act 63, sections 1(1), 2(1) and 96(1) states as follows: 1(1) the movable and immovable properties of a deceased person shall devolve on his personal representative with effect from his death. 2(1) the personal representative shall be the representative of the deceased in regard to his movable and immovable property…. 96(1) apersonal representative may assent to the writing in the form set out in the third schedule to this Act, in any person who whether by devise, bequest, devolution, appropriation or otherwise may be entitled thereto. It is therefore necessary that before carrying out the intentions of the testator, the will must first be admitted to probate and thereafter a beneficiary of any real estate under the will must have vesting assent executed in his favour by the executors to whom probate has been granted. Until that is done any purported sale of the legal estate by the beneficiary or devise will be of no legal consequence and the purchaser thereof will not have a valid title. This means a devisee cannot sue or be sued in relation to the devised property before vesting assent has been executed in his favour. See the case of OPANIN YAW OKERE V OPANIN APPENTENG&ANOR (2012)42 GMJ 33 SC. Based on the evidence presented, specifically Exhibit B, probate was acquired at the High Court on the 27th day of April 2010. According to Exhibit B, the will associated with the probate names two executors: the current plaintiff and Bediako Donkor. However, during the 3rd defendant's cross-examination, it emerged that all beneficiaries, in a previous case before the High Court, acknowledged that probate should be granted solely to the plaintiff, a fact confirmed and accepted by the High Court. Exhibit F was submitted to substantiate this. It is, therefore, inaccurate to assert that the plaintiff is not the executor of the will and was merely assisting Bediako Donkor, as contended by the 3rd defendant and his witnesses. Per section 104 of Act the administration of estate Act states: “Subject to the provisions of this Act or any other enactment, a personal representative shall distribute the Estate of a deceased person, within one year after he has been granted probate or letter of administration” The plaintiff asserts in her testimony to the court that, following the distribution of the property, the subject matter store was bequeathed to her. This signifies compliance with the proper distribution of the deceased testator's estate as stipulated by Act 63. Conversely, the 3rd defendant contends in his testimony to the court that he is unaware of any distribution conducted by the plaintiff herein. In his evidence, he implicated... “ I am not aware as whether or not the property has been distributed…” During the cross examination of the plaintiff own witness DW2 the relevant portion this is what he has to say Q: after obtaining probate, she distributed thew rooms for all the beneficiaries, you had 1 store, 3rd defendant had 4 stores, plaintiff had 2stores and each sister had 1 store A: No, my younger sister did not get some. Q: and your evidence that the 3rd defendant had 1 store is untrue he had 4stores and vesting assent issued to same A: yes, because more stores were constructed by the 3rd defendant. The responses provided by the 3rd defendant's witness directly conflict with the evidence presented by the 3rd defendant himself, where he claimed to have no knowledge of the property being distributed. The answers given by DW2, as mentioned above, serve as her admission that the plaintiff, acting as the executor in the Will, has indeed carried out the proper distribution of the estate. Given the aforementioned legal standpoint, the 3rd defendant's assertion of being unaware of the property being shared by the plaintiff lacks sufficient credibility. The crucial question for this court to address is whether a vesting assent has been executed in favor of the beneficiaries subsequent to the alleged distribution. According to the plaintiff, a vesting assent has been appropriately executed in favour of all beneficiaries, including the 3rd defendant. The plaintiff contends that as a result, the subject matter property—specifically, the 1st and 2nd stores—has been vested in her as the owner. Exhibit C has been presented to support this claim, forming the basis for sending letters to the 1st and 2nd defendants on two occasions, providing them with time to vacate the said stores. Upon a preliminary examination of Exhibit C, it is evident that the 1st and 2nd stores on the ground floor were properly vested in favour of the plaintiff. Referencing page 427 of "Land Law, Practice, and Conveyancing in Ghana" by Sir Dennis Adjei, it is stated, "A vesting assent is prepared by an executor or an administrator of letters of administration with will annexed or administrator of an intestate estate who has obtained probate or letters of administration with will annexed or letters of administration respectively to vest the property in the beneficiary of the estate. A beneficiary cannot maintain an action to protect a property devised to him in a will or property devolved unto him by intestacy unless he is an executor or administrator or the property has been vested in him." Given that the plaintiff serves as both an executor and a beneficiary under the Will, she has vested the 1st and 2nd stores on the ground floor of house number 5A/5 in herself. It is important to note that there is no legal prohibition preventing beneficiaries who are also executors of an estate from vesting properties in themselves. Consequently, based on Exhibit C, the court concludes that the 1st and 2nd stores in House Number 5A/5 have been properly vested in the plaintiff. During the cross-examination of the plaintiff's attorney, counsel for the 3rd defendant aimed to argue that the plaintiff lacked the capacity to demand the stores from the 1st and 2nd defendants, as the store had not been devised to her as the sole owner. However, counsel for the 3rd defendant failed to specify to the court to whom the subject matter store was devised. In fact, according to Exhibit C, it is the plaintiff who was devised the 1st and 2nd store in house No. 5A/5. The 3rd defendant, who contends the ejectment of the 1st and 2nd defendants from the said store, claims he put them in possession. With the absence of any documentary proof, contradicting the evidence presented by the plaintiff, that the 1st and 2nd stores were not vested in her, the court concludes that, based on Exhibit C, the 1st and 2nd stores in House No. 5A/5 were validly vested in the plaintiff. The plaintiff alleges that a vesting assent has been executed in favour of all beneficiaries, including the 3rd defendant. In the cross-examination of the 3rd defendant on the same matter, this is what transpired: Q: You see vesting Assent was prepared and you came to me to collect your copy A: Yes, I collected my copy and gave same to my lawyer Lumor (late) Q: By the distribution of the property, you were given four rooms in the house one down and three upstairs. A: the name used in the vesting assent is not mine so I cannot admit that I took four rooms. Q; What is the name on the vesting assent you came to collect from me? A: Frederick and not Frederick Kwabena Amofa. Q: Look at the exhibit B, is your name not Frederick Kwabena Amofa as mentioned in the will? A: That is me. According to the responses provided by the 3rd defendant as mentioned earlier, he alleges that although a vesting assent was executed in his favour, the name on the document is Frederick and not his full name, Frederick Kwabena Amofa. In the plaintiff's own testimony before the court, he stated that he has indeed received a vesting assent. In fact, the 3rd defendant's claim that the name on the vesting assent is Frederick and not Frederick Kwabena Amofa contradicts his own statements made during the court proceedings. The pertinent evidence is as follows: “My name is Nana Oteng otherwise known as Frederick Amofa………. I have received a vesting assent but my name in it is a mistake. The name in the vesting assent is Frederick Amofa…” Based on the testimony provided by the 3rd defendant above, he confirmed receiving a vesting assent from the plaintiff, and the name on the document is Frederick Amofa, consistent with the name he provided as his alias in his evidence. Consequently, the court determines that the 3rd defendant received a vesting assent for four stores, and his claim that the name on the document is Frederick, not Frederick Kwabena Amofa, is unfounded. During the cross-examination of DW2, she acknowledged that the 3rd defendant was granted four stores due to his significant contribution to the construction of the stores. DW2 further confirmed receiving a vesting assent, specifying that she was allocated 1 store, the 3rd defendant received 1 store, Serwaa had 1 store, and the plaintiff took 2 stores. Notably, their younger sister, Felicity Amofa, did not receive a store. The evidence presented by DW2 aligns with the plaintiff's assertion that a vesting assent has been issued to all beneficiaries. DW1, Felicity Amofa, claimed during the property distribution that the entrance of the store was blocked and converted into a store, which was allocated to her, a claim she disputed. In essence, the evidence from the 3rd defendant, DW1, and DW2 confirms that vesting assents have been granted in their favour. Their primary contention is that the plaintiff took two stores instead of the agreed-upon one store in accordance with the property sharing. Counsel for the defendant, in his address to the court, affirmed that all beneficiaries in the estate of the testator hold equal shares. What prevented the 3rddefendant, and his witnesses from taking action in court to have the vesting assent set aside if they are of the opinion that the vesting assent was invalid. They failed to do same and even specifically DW1 and Dw2 went ahead to construct two new stores one for each in the estate of the deceased without any authority or whatsoever from anywhere. During the cross examination of DW1 this is what transpired Q: As we speak, now you have also constructed a store in and a staircase at the Property. A: It is true there is a space behind the property and it’s for all of us that is why I constructed there. During the cross examination of DW2 this is what transpired Q: As we speak now apart from the building and the stores there was a land attached to the building which has not been developed yet. A: Yes. Q: and felicity has constructed a store on the land and given out to someone in addition to what was given to her. A: Yes, I also constructed a store there. Q: You also constructed a store on the land in addition to your store. A: Yes. Q: so, the said Felicity went there and took the land constructed on same without the consent of the executors of the estate. A: Yes. Q: as you sit down here, you have two stores from what you have constructed, Felicity has two stores and 3rd defendant has 4 stores. A: Yes. DW1 and DW2, feeling dissatisfied with the property sharing and the granted vesting assent, neglected to take appropriate legal measures to have the vesting assent set aside. Instead, they independently proceeded to construct two additional stores, one for each of them, in addition to their allocated shares, resulting in each having two stores. Counsel for the 3rd defendant asserted in his court address that the plaintiff has no legal right to unilaterally take and vest two shops to herself, emphasizing that this action resulted in an unequal distribution of the stores. The courts have never endorsed the practice in which parties’ resort to self-help instead of following legal procedures, and it does not seem prudent to experiment with such an approach. In the case of NDK FINANCIAL SERVICES LTD V AHAMAN ENTERPRISE LTD (2015) 83 GMJ 111 Dotse JSC held at page 121 thus…..” a court of equity will not permit a defaulting party to take advantage of its own negligent act or default…… no man should be permitted to take advantage of his own wrong..”. Similarly in the case of KOFI SARPONG (DEC’D) (SUBSISTITUTED BY) NANA KWASI KODUAH V FRANKLIN ADUBOBI JANTUAH CIVIL APPEAL NO. J4/15/2015 DATED 17TH FEBRUARY, 2016, SC Benin JSC held: “The plaintiff could not act in violation of the law and ask a court of equity to come to his aid”. In accordance with the legal principles outlined above, the 3rd defendant, if dissatisfied with the estate distribution and vesting assent, has the right to seek legal recourse to obtain what is rightfully due to them under the law. Resorting to self-help by constructing additional stores, claiming the plaintiff vested two stores in herself, is not the appropriate course of action, as even a court of equity may not support such measures. Based on the aforementioned analysis, the court determines that the 1st and 2nd stores on the ground floor of house no. 5A/5 were legitimately vested in the plaintiff and all beneficiaries, including the 3rd defendant. If any beneficiary had concerns about the vesting assent, they had the option to address the matter in court and seek its nullification. The absence of such legal action leads the court to infer that the vesting assent was validly granted to all beneficiaries, including the plaintiff. The 3rd defendant has not presented any evidence to the court indicating that the vesting assent executed in favour of the plaintiff is invalid. His statement in court merely mentions that he hasn't seen Exhibit C, the plaintiff's vesting assent, but the lack of visual confirmation does not render it invalid in any way. The next issue to consider is whether the plaintiff is entitled to regain possession of the mentioned stores from the 1st and 2nd defendants. As established earlier, the 1st and 2nd stores on the ground floor of house no. 5A/5 were legitimately vested in the plaintiff, making her the rightful owner with the authority to manage the stores as she sees fit. The fact that the 3rd defendant placed the 1st and 2nd defendants in possession of the stores as tenants is immaterial. With the vesting assent granted in her favour regarding the subject matter property, the plaintiff is the owner of the said stores, and accordingly, the 1st and 2nd defendants should acknowledge her as their landlord. The plaintiff presented Exhibit D during her testimony, a letter dated the 24th day of August 2012, and Exhibit E. Upon a brief examination of Exhibit D, it is a letter from the plaintiff's counsel to the 1st and 2nd defendants, requesting specific information. Exhibit D, containing the requested information, includes... A. Copies of the tenancy agreement you had before the court appointed my client as an executrix B. The rent advance you had paid before the court appointed my client as executrix C. How much rent advance you paid and to whom and which year was the rent advance paid? D. When was the rent advance supposed tolast? E. At what monthly rate was the rent advance calculated The plaintiff explicitly communicated that, in the event of the tenants' failure to respond, legal action would be pursued. Consequently, on the 24th day of September 2012, the plaintiff sent a letter terminating the tenancy of the 1st and 2nd defendants, granting them until the 31st of March 2013 to surrender the keys. As per Exhibit E, the termination notices provided the 1st and 2nd defendants with a six-month period, spanning from the 1st day of October 2012 to the 31st day of March 2013. The court establishes that the subject matter stores, including the 1st and 2nd store, were vested in the plaintiff on the 4th day of May 2010. Thus, when the plaintiff served the notice of termination on the tenants, including the 1st and 2nd defendants, on the 24th day of September, 2012, she was the rightful owner of the subject matter stores, irrespective of whether the 3rd defendant was the one who rented the stores to them. Counsel for the 3rd defendant argued in court that, assuming without admitting that the subject matter stores were validly vested in the plaintiff, she failed to comply with the Rent Act by giving the 1st and 2nd defendants six months to vacate the subject matter store. It is crucial to note that Exhibit E serves as adequate notice, providing the tenants with the required six-month period to vacate the subject matter store. The plaintiff's counsel's argument that the plaintiff should have specified the personal business requirement in the notice is irrelevant. These tenants, as per Exhibit D, were requested to provide information to the actual owner of the stores but failed to do so. Consequently, in their failure to comply, they are subject to eviction from the said stores. In view of the above, the court finds that, the plaintiff gave the tenants including the 1st and 2nd defendant adequate noticethus 6months to hand over the keys to the subject matter store. Given the circumstances presented, the court concludes that the plaintiff has successfully demonstrated, on the balance of probabilities, her entitlement to reclaim the subject matter stores from the 1st and 2nd defendants. Conversely, the 3rd defendant has failed to provide adequate reasons to satisfy the court as to why the 1st and 2nd defendants should not surrender vacant possession of the 2nd store on the ground floor of house no. 5A/5 Kwesikrom Road to the plaintiff. The 1st and 2nd defendants also failed to cross examine the plaintiff on her assertion as stated supra. See the case of In Re Presidential Election petition: Akuffo Addo & 2ors (NO.4) v Mahama & 2 Ors. (No. 4) (2013) SCGLR (special edition) 73 at page 425, supra. Consequently, in the case of KEN KWAME ASAMOAH V SIC SUIT NO. J4/55/2021, the 1st and 2nd defendants are hereby ordered to vacate and surrender possession of the subject matter store to the plaintiff by the 20th day of March. In view of the foregoing, it is the determination of the court that the plaintiff has been able to proof on the balance of probabilities that she is entoiled to recover the subject matter stores from the 1st and 2nd defendant. The 3rd defendant on the other hand, has not been able to satisfy this court as to the reason why the 1st and 2nd defendant should not give vacant possession of the 2nd store on the ground floor of house no 5A/5 kwesikrom Road to the plaintiff. The 1st and 2nd defendants are to given up to the 20th day of March to give vacant possession of the subject matter store to the plaintiff. Cost of GHC 10,000.00 awarded against the defendants jointly and severally (SGD) H/W CATHERINE OBIRI ADDO ESQ: (MAGISTRATE) 20/12/2023 Ladd*. 15