KRAH VRS OWARE (A9/ 91/2017) [2023] GHADC 1168 (21 December 2023)

IN THE DISTRICT COURT HELD AT TAKORADI (MARKET CIRCLE) ON THURSDAY THE 21ST DAY OF DECEMBER 2023. BEFORE HER WORSHIP CATHERINE OBIRI ADDO: ------------------------------------------------------------------------------------------------------------ HARRIET SWANZY KRAH …. PLAINTIFF SUING AS THE EXECUTRIX OF THE ESTATE OF SWANZY OWARE HOUSE NO. B12 KETAN SUIT NO. A9/ 91/2017 VRS JOSHUA SWANZY OWARE .... DEFENDANT H/NO. B12 KETAN JUDGMENT The Plaintiffs in this case initiated the actionagainst the defendants at the registry of this honourable court on the 9H day of June2017, and claim against the defendant the following: Recovery of possession, of a room in House No. B12, ketan Estate. EVIDENCE OF THE PLAINTIFF The plaintiff asserts that she, along with Papa Entsi and Maame Duku, served as executors for the Estate of her deceased father, Swanzy Henry Oware. Papa Entsi and Maame Duku, being the other executors, are now deceased, leaving her as the sole surviving executrix. Following the death of Swanzy Henry Oware in 2007, probate was obtained from the High Court Sekondi by all three executors, even before the demise of the other two. The purpose was to administer the estate, which includes the disputed property, house no. B12, Ketan Estates. This house was allocated to the testator by the government as a flood victim, and it was included in the will. The plaintiff emphasizes that the acquisition process for the property is ongoing. According to the will, Swanzy Henry Oware bequeathed house No. B12 to his children and one room in the house to his nephew, Kweku Dofa. The plaintiff mentions that they are four siblings, including the defendant father and her brother, Samuel Swanzy Krah, a beneficiary of the estate. The rooms have been shared among the testator's children, with the defendant father occupying the share designated for the late brother, Samuel Swanzy Oware. The plaintiff contends that the room allocated to Kweku Dofa, the testator’s nephew, is in the possession of the defendant. Despite informing the defendant about the contents of the will, the plaintiff alleges that the defendant has not paid rent for the room. Moreover, the plaintiff asserts that the Government of Ghana has not requested them to vacate the property. As the executrix, the plaintiff claims that the defendant did not seek permission before occupying the room. In light of these circumstances, the plaintiff seeks the court's intervention for the recovery of possession of the room occupied by the defendant and requests the defendant's ejection so that it can be handed over to Kweku Dofa, as specified in the will. The plaintiff submits the probate with the will attached as Exhibit A and a letter from her lawyers to the defendant as Exhibit B. The plaintiff presented two witnesses to support her case. Pw1, Emmanuel Swanzy Humphrey Krah, a brother to the plaintiff and an uncle to the defendant, states that the testator, Swanzy Henry Oware, is his father, who died testate on December 11, 2007. The executors of the will are John Oware, also known as Agya Entsi, Maame Duku, and Harriet Swanzy Krah, the plaintiff. Probate was obtained in 2011 before the demise of two executors, John Oware (Agya Entsi) and Maame Duku. Pw1 asserts that the contested house was allocated to his father in 1974 by the government to rehouse flood victims, and evidence, including property rate receipts (Exhibit C), indicates ownership. According to Pw1, there are two groups of children—four siblings, including himself, from one woman, and two children from another woman. The testator had additional properties in Dixcove and Boabakrom. The subject property, comprising five rooms, was shared among the first group, with one room given to William Dofa, the testator’s nephew. Each sibling occupies their respective rooms, with Samuel Henry Krah, the defendant's father, being represented by the defendant brother, Emmanuel Swanzy Oware. PW1 details efforts to reclaim the room given to Dofa from the defendant, involving a meeting led by Esther, wherein they informed the defendant about the rightful ownership. Despite legal correspondence, the defendant refuses to vacate the room. PW2, William Dofa, the testator’s nephew, confirms the subject property was allocated to the testator by the government as a flood victim. After the testator’s death, probate was obtained by the executors, including the plaintiff. Pw2 affirms the testator's long-term residence in the property, adding that he cannot recall the exact number of years. In essence, both witnesses corroborate the plaintiff's claims regarding ownership, probate, and efforts to recover the allocated room from the defendant. PW2 added that, according to the testator's will, one room from the subject property was bequeathed to him, while the rest of the rooms in the property were shared among the testator's children. However, during the sharing of the property by the executors, he couldn't attend due to indisposition, and as a result, his allotted room has not been given to him. Having served the late testator for an extended period, he emphasizes his inclusion as a beneficiary and seeks the court's intervention to obtain his rightful share in the subject property. DEFENDANT'S EVIDENCE: The defendant asserts that the subject property, originally a two-bedroom semi- detached house, was allocated to his late grandfather as a flood victim in 1974 by the government. It was given on a rental basis, and certain extensions were made by the grandfather before his demise. After the grandfather's death, the property was shared by the executors, with the defendant's late father receiving the chamber and hall, Esther Swanzy Krah and Emmanuel Swanzy Krah getting the two-bedroom flat, and the plaintiff receiving the single room. The defendant acknowledges the plaintiff as an Executrix of the Estate of his late grandfather, Swanzy Henry Oware. He recalls a meeting in December 2016, where the plaintiff and her siblings informed them that one room in the subject property was reserved for any family member visiting. During this meeting, they were asked to vacate the hall allocated to their father, in which he resided from 2010 to April 11, 2014, before his demise. The defendant disagrees with this request, claiming he was at the University of Cape Coast during a visit from people attempting to serve him legal documents. The defendant contends that his father occupied the chamber and hall without objections from anyone from 2010 to April 11, 2014. The defendant adds that the property in question was allocated to his grandfather, the testator, as a flood victim in 1970. Referring to Exhibit A, the defendant points out that his grandfather expressed the intention to acquire the property from the government but couldn't do so before his demise. A search was conducted at the lands commission regarding the disputed property, and the defendant submits the search as Exhibit 1 without objection. The defendant further claims that William Dofa, the person cited as the reason for the plaintiff to eject him from the room, has already received a share of his grandfather’s Estate in another property per the Will. He disputes having been served Exhibit B, the document the plaintiff alleges was served on him, stating that he has never seen it and denies the plaintiff's entitlement to her claims. To support his case, the defendant calls DW1, Emmanuel Swanzy Oware, who affirms that the subject property was allocated to his grandfather, Swanzy Henry Oware, in 1974 as a flood victim. After the grandfather's death, the executors of the Will, including the plaintiff, Agya Entsi, and Maame Duku, took steps regarding the estate. The property was shared among beneficiaries in 2008, with his late father receiving the chamber and hall. DW1 disputes adverse claims on the chamber and hall until after his father's demise in 2014. DW1 contends that a meeting convened after his father's death resulted in a demand to vacate the hall and occupy only the chamber. However, they refused, asserting that the property had already been shared. DW1 introduces Exhibits 2, 3, and 4, asserting that the property is a chamber and hall, not two separate rooms, as claimed by the plaintiff. These exhibits include photographs taken by his late grandfather during his lifetime with family, friends, and church members. After the case's closure, both counsels were instructed to file their addresses. The defendant's counsel complied, but the plaintiff's counsel failed to file any address regarding the case. ISSUES FOR DETERMINATION 1. Whether or not the plaintiff is entitled to bring an action against the defendant if yes 2. Whether or not the disputed property forms part of the Estate of the testator Swanzy Henry Oware if yes 3. Whether or not the plaintiff is entitled to recover possession of the subject matter property from the defendant. BURDEN OF PROOF The general principle dictates that in a civil suit, when a party raises crucial issues for the success of their claim, they bear the burden of proof, be it the plaintiff asserting a fact or the defendant making a counterclaim. This principle is exemplified in the case of BANK OF WEST AFRICA LTD V ACKUM (1963) 1GLR 176-182, where the court held that the burden of proof in civil cases depends on the pleadings, and the party raising an essential issue in their pleading assumes the burden of proof. The court referred to HUYTON-WITH-ROBY U. D. C. V HUNTER (1955) ALL E. R.398, C. A. In FAIBI V STATE HOTELS COPRPORATION (1968) GLR 471-480, the court also emphasized that the legal onus lies with the party who would lose if no evidence were presented in the case. The Evidence Act 1975, (NRCD 323), codifies this principle in section 14, using the term "burden of persuasion," stipulating that the asserting party must prove each essential fact of their claim or defence. Section 12(1) of NRCD 323 adds to the general rule, stating that in civil cases, like the present one, the burden of persuasion requires proof by the preponderance of probabilities, defined in section 12(2) as the degree of certainty in the mind of the tribunal or court, convincing it that the evidence of fact is more probable than its non-existence. Therefore, it is evident that for the plaintiff to succeed in their claims, they bear the onus of proving their assertions against the defendant. Now, let's examine the earlier raised issues, beginning with whether or not the plaintiff is entitled to bring an action against the defendant. EVALUATION OF THE EVIDENCE AND THE APPLICATION OF THE LAW. Whether or not the plaintiff is entitled to bring an action against the defendant It is important to note that there is no dispute over the fact that the plaintiff is the sole surviving executrix of the estate of her deceased father, Swazy Henry Oware. According to the plaintiff, following the sharing of the testator's estate in accordance with the Will, one room was allocated to William Dofa, the testator’s nephew. The defendant currently occupies the room assigned to William Dofa, and the plaintiff seeks an order for the defendant to vacate the room, allowing William Dofa to take possession. The matter has been brought to court as the defendant has been unwilling to vacate the room. Section 1(1) of the Administration of Estate Act, 1961 (Act 63) stipulates that "The movable and immovable property of the deceased person shall devolve on his personal representatives with effect from his death." The plaintiff, being the only surviving executrix of the Will, has the capacity to bring an action against the defendant regarding the estate of the testator. However, counsel for the defendant refers to section 104 of the Administration of Estate Act, 1961 (Act 63), which states that "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 letters of Administration." The defendant's counsel argues that, based on Exhibit A, as the testator died on 11/12/2007 and probate was obtained on 01/11/2011, the plaintiff waited over five and a half years before initiating the action, allegedly contravening section 104 of Act 63. The court disagrees with counsel for the defendant on this point, clarifying that section 104 addresses the distribution of the estate within a year after obtaining probate failure to do so any beneficiary under the estate can take an action to enforce his rights. The plaintiff, in this case, is seeking to enforce the provisions of the will, which, as per her testimony, has already undergone distribution. The defendant's witness, DW1, admitted that the estate sharing occurred in 2008, a year after the testator's death. Even during cross-examination, counsel for the defendant acknowledged that the estate sharing took place in 2008, aligning with DW1's evidence. Considering this, the court finds that even if the room was not allocated to William Dofa upon sharing, and assuming the plaintiff took action over five and a half years after obtaining probate, it does not render the action statute-barred, as suggested by the defendant's counsel. The court notes that if the defence is alleging statute barring, it pertains to the Statute of Limitation 1972 (NRCD 54) and not section 104 of Act 63. Counsel for the defendant did not specify which section of the Statute of Limitation would render the action statute-barred. Although the statute limits the recovery of movable estate to 12 years, it remains silent on immovable estate. Based on the analysis and evaluation presented, the court concludes that the plaintiff, as executrix of the estate, has the capacity to bring an action against the defendant regarding the estate. This will lead me to my second issue which is; Whether or not the disputed property forms part of the Estate of the testator Swanzy Henry Oware. A will is characterized as an expression of an intention regarding the distribution of one's self-acquired property upon death. It can only pertain to property acquired by the testator during their lifetime, either at the time of death or post-mortem. Case law lacks a consistent definition of what constitutes self-acquired property. Courts, as seen in the cases of AMISSAH-ABADOO V ABADOO (1974) GLR 110-132 and BINEY V BINEY (1974) 1GLR 318-336, have taken a comparative approach in determining self-acquired property. In LARBI V CATO AND ANOTHER (1960) GLR 146, Sarbah's definition is cited, stating that property is deemed self-acquired if acquired by personal exertions without unremunerated assistance from family members. The definitions provided for self-acquired property appear to focus on immovable properties based on case law. The defendant asserts that the disputed house, House Number B12 Ketan Estates, is not the self-acquired property of the testator but belongs to the government. The plaintiff, in her evidence, acknowledges that the testator was in the process of acquiring the property but was unable to do so before his demise. The plaintiff's statement aligns with the defendant's claim that the property doesn't belong to the testator but to the government. Crucially, clause 3(d) of exhibit A, the will, states: "My present premises B12, Ketan Estate was allocated to me in 1974 on a rental basis as a flood victim. Arrangements are being made for the acquisition of this estate house from the government. If this materialises save one room for my nephew W. K Dofah for life then the estate to my children absolutely” This clause clarifies that at the time of making the will, the subject property was not the self-acquired property of the testator. The plaintiff admits that her father did not complete the acquisition process of the subject property before his demise. During cross-examination by the defendant's counsel, the plaintiff's acknowledgment reinforces the defendant's claim that the property was not the testator's self-acquired asset at the time of the will's creation. the relevant portions of the cross examination, this is what transpired. Q: At the time of the testator’s death, his interest had not accrued. A: Yes. That is why we are taking steps to perfect his title after his death. Q: As we speak you have not produced any evidence of perfecting his title. A: That is correct. Q: Could you tell the court the specific steps you have taken to perfect the testator’s Title. A: We are still working on it. Q: What exactly has been done by you or your brother. A: I can’t tell exactly where (SIC) my brother has come up to. Q: Can you produce documentary evidence of what allegedly has happened so far A: I don’t have any such evidence. Based on the presented evidence and the cross-examination of the plaintiff, it is evident that the testator did not acquire the subject property from the government before his demise. Despite the plaintiff's claim that they were in the process, she failed to furnish the court with documentary evidence or the current status of their acquisition efforts. Pw1 contends that the property belonged to his late father, the testator, supporting this with Exhibit C—a demand notice of rates. However, a closer look reveals that Exhibit C is merely a request for property rates and does not prove ownership. Payment of property rate does not confer title; it is however evidence of possession. The assertion that, the payment of the property rate is evidence of ownership of the subject matter property is neither here nor there. In addition, the plaintiff and his witness’s contention that the testator had been in possession of the subject matter property for a long time since 1974without the government recovering possession from them, does not mean the long possession of same turns to ownership. Although section 48 of the Evidence Act 1973 NRCD 323 is states: “(1) the things which a person possesses are presumed to be owned by him. (2) a person who exercises acts of ownership over property is presumed to be the owner of it”. Section 48 of the Evidence Act as stated supra will not even make the testator the owner of the subject matter property since section 48 is only a presumption which can be rebutted. And the Exhibit A the will of the testator specifically clause 3d rebuts that presumption where the testator himself indicated that the property is on rental basis and same was allocated to him by the government. Base on the testator’s own will thus Exhibit A, the testator is a tenant of the government and has no title to the subject matter house. Pw2, who supports the claim that the property belongs to the testator, failed to provide documentary evidence supporting this assertion. The court notes a contradiction between the plaintiff's evidence and that of her witnesses regarding the ownership of the subject property. In light of the evidence and analysis, the court establishes that the subject property is not the testator's self-acquired property. It did not form part of the deceased's estate for distribution. As the testator failed to acquire it from the government, he remained a tenant at the time of his death. Any devise under Exhibit A (the will) was contingent upon acquiring the subject property, a condition unfulfilled at the testator's death. The court concludes that the purported sharing of the property, as per the will, is flawed. The executors did not perfect their title, and the doctrine of nemo dat quad non habet applies—meaning one cannot transfer a better title than what they possess. The defendant and his witness DW1, contends that the chamber and hall he occupies were allocated to his late father, Samuel Swanzy Oware. Exhibit 2 to 4, pictures submitted by the defendant, support his claim that the allocated room was a chamber and hall, contradicting the plaintiff's assertion of two separate rooms. The court agrees with the defendant's counsel that the testator lacked title to the property at his death, rendering the testamentary disposition void. Including any disposition given to the plaintiff, defendant father and any other person who had a share in the subject matter property. This brings me to my final issue: Whether or not the plaintiff is entitled to recover possession of the subject matterproperty from the defendant. As stated earlier, the testator lacked title to the subject property, and it cannot be transferred under a will. As such the defendant whose father benefitted under the said Will, has no basis or whatsoever to be in the subject matter house since the court have found supra that the purported sharing of the property base on the will is null and void. The plaintiff stated in her evidence to the court that, the defendant has failed to pay rent. It is worthy of note that the testator was a tenant who paid rates for the subject property, as such the death of the testator determines the tenancy that notwithstanding there is evidence to the fact that, the plaintiff and his siblings still pay rates to the Assembly in the name of the testator in respect of the entire property. Can the plaintiff still reclaim possession of the rooms from the defendant and eject him from the property? During the defendant's cross-examination by the plaintiff's counsel, the pertinent exchange unfolded as follows: Q: You are aware the property rate is paid in the name of your late grandfather Swanzy Henry Oware. A: Yes. Q: in fact, it is your uncle Emmanuel Swanzy Krah who pays this property rate in the name of your grandfather Swanzy Henry Oware A: he is not the only one who pays sometimes my dad Samuel Henry krah pays and even at times he sends me to go and pay as well. Q: even if your father pays the property rate as you alleged, he paid it in the name of your late grandfather A yes Q: Now you yourself you have not aid rate in respect of the house in dispute A: that is not true I have paid some before. Q: can you tell the court when you made this payment A: I don’t remember, I paid some when my father was alive and I was working at STMA Q: you have not attached any receipt of property rate that you paid as your evidence in this fact A: yes Q: even after the death of your father, you have never paid any property rate in respect of the house in disputes A: it is true when the property rate is due, we don’t get to see to contribute to pay. Based on the aforementioned, even though the testator lacked title to the subject property, rates continue to be paid in the testator's name. While a tenancy typically ceases after the tenant's death, in this case, rates are still being paid in the testator's name. Consequently, the person making these payments that is the plaintiff and pw1, constructively becomes tenants of the government inrespect of the subject property. Defendant who alleges at the time of the lifetime of his late father, his late father used to pay some of the rate by sending him, failed to produce receipts of payment of same when he was asked under cross-examination since he alleges, he has no receipt in respect of same. The defendant conceded that he has not paid rates for about six years since his father's death in 2014, claiming he does not get the opportunity to contribute when it's time to pay. It is clear that Emmanuel Swanzy Krah (pw1) is currently paying the rates on behalf of the property, establishing equitable interest for the plaintiff and those contributing to the rent. The court determines that they have the right to reclaim possession of the room occupied by the defendant and place any person of their choosing in possession. Counsel for the defendant argued in his address that only the state could legitimately claim against the defendant's occupancy of the disputed room. However, the court disagrees, likening the situation to a landlord-tenant case. If the state were to claim against the defendant, who has failed to pay rent, it would imply the defendant could occupy the property indefinitely. The court concludes that the state has no basis to claim the room from the defendant since they haven't granted possession to the defendant. Although the plaintiff failed to prove that the property is the testator's self-acquired property and that he had the title to dispose of it under the will, the court recognizes that the testator had an interest as a tenant. This interest has been assumed by the testator's children, who continue to pay rates in his name. The defendant has not contested that the plaintiff and his siblings have not paid rates or rents for the subject property. Given the defendant's failure to pay rates for the disputed property, the plaintiff and his sibling, pw1 herein, who pays rates for the same, have the right to evict the defendant from the subject property. The defendant's occupancy of the room is contingent upon the plaintiff and his siblings, who have assumed the equitable interest in the subject property. Consequently, the court determines that the plaintiff has substantiated his case on the balance of probability and is entitled to reclaim possession of the subject property from the defendant. The defendant is granted until the end of March 2024 to vacate the premises. Findings of fact: 1. The plaintiff, as the executor of the estate of the deceased, has the right to initiate legal action against the defendant concerning the subject property. 2. The subject property is not the self-acquired property of the testator; hence, it cannot be disposed of under a will. 3. Any purported sharing based on the will regarding the subject property is void and has no legal effect, including the allocation of rooms to the plaintiff, defendant's father, or any beneficiary of the subject property. 4. Although the testator lacked title to the subject property upon his demise, he held an equitable interest, which the plaintiff and her siblings continued by paying rates in the testator's name. Consequently, the plaintiff and siblings constructively assume equitable interest and can recover possession from the defendant, given his failure to pay rent. In accordance with the case of KEN KWAME ASAMOAH V SIC SUIT NO J4,55,2021 I hereby summarize my orders as follows: 1. Plaintiff is to recover possession of the chamber and hall occupied by the defendant in house no B12 Ketan Estates. 2. The defendant is granted until the end of March 2024 to vacate the premises. Cost of GHC5,000.00 awarded in favour of the plaintiff. (SGD) H/W CATHERINE OBIRI ADDO ESQ: (MAGISTRATE) 21/12/2023 Ladd*. 16