FREMPONG VRS FREMPONG (G/AC/DG/A9/12/23) [2023] GHADC 848 (13 December 2023)

CORAM: IN THE DISTRICT COURT, ACHIMOTA – ACCRA HELD BEFORE HIS WORSHIP PRINCE OSEI OWUSU SITTING AS DISTRICT MAGISTRATE ON THE 13TH DECEMBER, 2023 ESTHER ASANTEWAA FREMPONG H/NO. C90/16 ALAJO - ACCRA VS BEAUTYLYN TABUAH FREMPONG H/NO. C 90/16 ALAJO - ACCRA SUIT NUMBER: G/AC/DG/A9/12/23 - PLAINTIFF -DEFENDANT ……………………………………………………………………………………………………… TIME: 11:52AM PLAINTIFF PRESENT DEFENDANT PRESENT EBENEZER TEYE AYIKU FOR DEFENDANT JUDGMENT Introduction/background Per writ of summon issued by the plaintiff on 15 August 2022, the plaintiff claimed against the defendants the following reliefs; a. A declaration of title to all that portions, known as Room No.7, in house number,40. Paradise House Alajo, Accra, pursuant to the deceased Will herein dated 12th July, 2003. P a g e 1 | 7 b. A declaration of title to the uncompleted toilet and bathroom, attached to Room No. 7, in house number, 40, Paradise House, Alajo, Accra. c. An order evicting the Defendant from the uncompleted toilet and bathroom, attached to Room No. 7, in house number, 40, paradise House, Alajo, Accra. d. Recovery of vacant possession of the uncompleted toilet and bathroom, attached to Room No. 7, in house number, 40, Paradise House, Alajo, Accra. e. Costs f. Any order/orders as this Honorable Court may deem fit. The defendant responded to the writ of summons by filling a statement of defence on December 29, 2022. With consent of the parties, the Court referred parties to attempt settlement at ADR however, parties were unable to reach settlement and therefore after close of pleading, the case was set down for trial. The fact of the case is that parties are siblings and were named as two of the three executors in the Will of their deceased father Frimpong Yeboah. Plaintiff stated that the properties of the father had been distributed in accordance with the deceased will. Plaintiff further stated that she took possession of room 7 and later commenced a renovation work in October 2021. Plaintiff averred that their late father was unable to complete a toilet and bath facility portion of the estate and she decided to construct that facility for her personal use. She further averred that the defendant has moved her things into the said facility and has refused to move them out. Defendant on the other hand stated that their deceased father bequeathed room 7 to plaintiff and room 4 to her respectively. It is the defendant’s case that the storeroom was not bequeathed to any of the parties or other siblings, defendant denied taken possession of the toilet facility or prevented any siblings from same. P a g e 2 | 7 Analysis of the Evidence Attached in Court The general rule is that a party has the burden of persuasion to each fact that existence or non-existence of which is essential to the claim or defence that party asserting. This is the essence of Section 14 of the Evidence Act 1975 (NRCD 323) which provide that “except otherwise provided by law, unless it is shifted, the party has the burden of persuasion to any fact the existence or non-existence of which is essential to the claim or defence that party is asserting.” The burden of persuasion has been explained in Section 10(1) of the Act as follows “For the purpose of this act, the burden of persuasion means the obligation of a party to establish a requisite degree of believe concerning a fact in the mind of the tribunal of fact or the court.” In the case Lamptey alias Mkpa V Fameye & others [1989-1990] 1 GLR 286, the Supreme Court held as follows, “On general principle, it was the duty of the plaintiff to prove his case. However, when a particular issue he had led some evidence, the burden will shift to the defendant to lead sufficient evidence to tilt the scale in his favor.” The Supreme Court differently constituted, reiterated the concept of the burden of proof in the case of Ackah V Pergah Transport LTD & ORS [2010] SCGLR 728. Thus, it is a basic principle of law and evidence that the party who bears the burden of proof is to produce the required evidence of facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it include the testimonies of a party and the material witness, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of facts such as jury. P a g e 3 | 7 The plaintiff has the onus of discharging the burden of producing sufficient evidence is in respect of her claim on the balance of probabilities. The plaintiff in adducing evidence in support of her claim, testified that her father began to construct the toilet and bathroom facility on the portion of the house. She further stated that the parties are not disputing the execution of the Will nor disputing the division of the property but rather disputing whether or not the structure in dispute attached forms part of portion devised to the plaintiff. The plaintiff’s evidence was that the structure in dispute is to serve as toilet and bathroom for room 7 which is where their late father was occupying. The defendant disputed this assertion by the plaintiff however, in her statement defence the defendant admitted that the structure was directly opposite room 7. Pictures of the structure was tendered in evidence without any objection as Exhibit “3”. The plaintiff averred in her witness statement in paragraph 9 and 10 as follows; 9. In the distribution, I inherited the seventh room of my late father’s house H/No. 40, Paradise House situated at Alajo, Accra in addition to an attached toilet and bath facility under construction, as referenced at 18 of the deceased Will dated 12th July, 2003. 10. I took possession of my room on the 18th of September, 2020 but I started renovating it in October, 2021. I also decided to complete the construction of the toilet and bath facility which my late father was unable to complete before he passed on. (Find attached pictures of my portion of the property and the doors to the uncompleted toilet and bath facility marked as EXH. EAF3 series). The defendant started testifying on 27th June,2023. The defendant denied the claim that the structure in dispute was devised to the plaintiff. The defendant however stated in paragraph 6 of her witness statement as follows; P a g e 4 | 7 6. House is designed to be a storey building and hence has been ‘decked’. There is also a stairway that is to lead to the 1st floor of the intended storey building. Under the stairway is a three small size building. The Plaintiff’s room is the 1st room after accessing the common hall and reception area. The three small structure building is opposite the plaintiff’s room. There is a plethora of cases in which the issues of principles off interpretation has been addressed. In the case of Biney V Biney [1974] 1 GLR 318 CA. The cardinal principle of interpretation a Will was given by the following points; 1. The construction must be as near to mine and intention of the author as the law would permit. 2. The intention must be gathered from the written instrument itself. 3. The technical words of limitation should have their strict effect. Again in the case of Najat Metal Ent. LTD V Hanson [1982 – 83] GLR 81, the Court made a point that the document must be read as a whole. It means that in constructing Wills, the construction must be as near to the mind and intention of the testator. In the case of Prempeh V. Agyapong [1989 – 70] GLR 116 the Court stated that intention of the testator must be geared from the entire written document. From the writ of summon and pleadings of Plaintiff, she stated that the estate of their father was distributed in accordance with deceased’s Will. Per the plaintiff statement of claim, their father was unable to complete toilet and bathroom facility he begun in his lifetime which forms part of her estate and she has decided to complete. From the thorough reading of the pleadings there seem to me that there is an issue of Plaintiff claiming ownership of the structure opposite room 7 which was devised to the Plaintiff by the Defendant on the grounds that the place should be used as common room for all the beneficiaries of the Will. P a g e 5 | 7 From Exhibit “C” and “3” which are attached to the Plaintiff’s witness statement as pictures of the Plaintiff’s portion of the property and the door to the uncompleted toilet and bath facility, there is a clear indication that the room 7 and the structures form one area or section of the house and that the structure in dispute are attached to room 7. This is what ensued under cross examination of defendant by counsel for Plaintiff; Q. You will agree with me that room 7, does not have a toilet and bath? A. Yes, My Lord, but when my father was alive he constructed some behind where he has been using and this is where the Plaintiff is currently using. Q. Is this structure a toilet and bathroom or just toilet? A. It is toilet, bathroom separate Q. I Put it to you that the structure in front or attached to Room 7 was built by your father to serve as room 7 toilet and bathroom because all other rooms also have their own toilet and bathroom. A. It is not correct Q. I put it to you that room 7 does not have a toilet and bathroom like the rest of the rooms that is why your father begun the construction of this for it to serve as room 7’s toilet and bath which is why it is attached to room 7 A. It is not true, every room has toilet and bath inside Q. I put it to you that the reason why your father built all the rooms except these structure separated is because it forms part of room 7 and separated from the rest of the house with room 7 A. It is not true P a g e 6 | 7 From the last set of question posed to the Defendant and response given, she exposed herself by stating that the father constructed toilet and bath behind where he was living and this where the Plaintiff is currently using. This clearly suggest that not all the rooms are having toilet and bath inside as given by the Defendant. It is therefore not in doubt that the structure directly opposite room 7 was meant for toilet and bath for room 7. Again per proper interpretation of the intention of the testator any room in room 7 includes the structure directly opposite room 7. Having regard to the totality of evidence adduced, the Court is of the humble opinion that the Plaintiff has been able to discharge the burden of proof on her and the Court enters judgment accordingly for her as follows; a. A declaration of title to all that portions, known as Room No.7, in house number,40. Paradise House Alajo, Accra, pursuant to the deceased Will herein dated 12th July,2003. b. A declaration of title to the uncompleted toilet and bathroom, attached to Room No. 7, in house number, 40, Paradise House, Alajo, Accra. c. An order evicting the Defendant from the uncompleted toilet and bathroom, attached to Room No. 7, in house number, 40, paradise House, Alajo, Accra. d. Recovery of vacant possession of the uncompleted toilet and bathroom, attached to Room No. 7, in house number, 40, Paradise House, Alajo, Accra. HIS WORSHIP PRINCE OSEI OWUSU DISTRICT MAGISTRATE P a g e 7 | 7