ODAMTTEN VRS. ODAMTTEN (E7/11/2018) [2023] GHAHC 601 (15 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘B’ HELD AT TEMA IN THE GREATER ACCRA REGION OF THE REPUBLIC OF GHANA BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON FRIDAY THE 15TH OF DECEMBER 2023. CASE NO. E7/11/2018 GEORGE OKPOTI ODAMTTEN H/NO. 1 & 3 DAKA AVENUE COMMUNITY 22 PLAINTIFF TEMA VRS CHRISTIAN LARYEA ODAMTTEN H/NO. I/F 45 SITE 4 COMMUNITY 1, TEMA DEFENDANT ________________________________________________________________ PARTIES PRESENT ________________________________________________________________ JUDGMENT “Death is not the end. There remains litigation over the estate.” JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 1 Ambrose Bierce 1. INTRODUCTION The above quote by the American short story writer and journalist, Ambrose Bierce (1842 – 1914) appears apt in relation to the case. [i] The parties herein are uterine brothers, the Plaintiff being the oldest son of the deceased, David Tawiah Odamtten, whilst the Defendant is said to be the fourth child of the deceased. The controversy in this case centres around property no. 1/F 45 site 4, Community 1, Tema, (hereinafter referred to as the disputed property). This disputed property was originally acquired by the deceased father of the parties, David Tawiah Odamtten, who is said to have died on the 6th of November 2009. 2. FACTS OF THE PLAINTIFF’S CASE [ii] According to the Plaintiff, upon the death testate of their father, the disputed property was said to have been devised to both the Plaintiff and the Defendant herein as tenants in common, in a will dated the 24th of December 2009. The Executors of the Will, after obtaining probate, vested the property in both parties. Even though the Plaintiff and the Defendant are both entitled to equal shares in the disputed property, the Plaintiff stated that the Defendant has JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 2 managed to rent out the one-bedroom outhouse attached to the property, as well as two out of the three bedrooms of the main house; and the Defendant has managed to rent out the two shops in the house. [iii] The Defendant, per the Plaintiff, started renting out the portions of the disputed property about six years ago and he enjoyed the proceeds alone to the detriment of the Plaintiff herein. The Defendant has furthermore converted the compound and the living room of the disputed property into a creche, which houses over twenty children attending school each day; and he has never rendered accounts to the Plaintiff herein. All attempts to get the Defendant to see reason has failed and the relationship between the Plaintiff and Defendant has deteriorated so much that it is virtually impossible to have a discussion and a possible amicable settlement with the Defendant. [iv] It is for the above reasons that the Plaintiff instituted this action and prayed for the following reliefs: 3. RELIFS SOUGHT BY THE PLAINTIFF a) Judicial sale of H/no. I/F 45 SITE 4, Community 1 Tema and the proceeds shared equally between the parties. b) 50% of rent accrued to the defendant from 2011 till date of final judgment. c) Costs. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 3 4. STATEMENT OF DEFENCE [v] As is usually the case, the Defendant denied the allegations against him, but admitted that the parties are the beneficiaries of the disputed property and that the said property was indeed devised to both the Plaintiff and the Defendant in the will of their deceased father. The Defendant therefore expressly admitted that the disputed property devised to both the Plaintiff and himself, was situate at H/no. I/F 45 Site 4, Community 1 Tema; made up of a semi-detached 3- bedroom house, one bedroom outhouse and 2 shops, as stated by the Plaintiff at paragraph 5 of his statement of claim. [vi] The Defendant however added that the two shops in front of the disputed property did not form part of the property devised to the parties, because their deceased father and mother gifted the land on which the two shops are situate to their oldest daughter and the sister of the parties, Esther Borley Odamtten. The two shops thus belong to their sister Esther Adjeley Borley Odamtten and she has exercised acts of possession and control over them the two shops from the date of the gift till date. [vii] The Defendant further admitted that the Plaintiff was entitled to an equal share of 50% in the disputed property though; but denied renting out any portion of the disputed property. According to the Defendant, the Plaintiff has visited the disputed property only twice, after the demise of their father and consequently could not have known the state of affairs in the house. The Defendant thus denied converting any portion of the disputed property into a creche and concluded that the Plaintiff was not entitled to the reliefs he seeks at paragraphs 13 (a), (b) and (c) of the statement of claim because there is no truth in the Plaintiff’s contentions. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 4 [viii] The Defendant therefore counterclaimed for some reliefs; but not before he had narrated that even though the disputed property indeed did have a one bedroom outhouse and three-bedrooms in the main house with all the basic and necessary amenities that go with a building, prior to the death of their late father and during the period of his ailment, a young man by name Ebenezer Sarfo - Konadu was engaged to take care of their late father and he was given one bedroom in the main house, in lieu of payment; and so the said young man still lives in the disputed house till date. [ix] The one room outhouse has also been occupied by a friend of the Defendant; Oscar Kumah who resides in South Africa has lived in the said room with his family since 2009 when their father was still alive. The Defendant has therefore not turned any part of the disputed house into a creche to enable him render any accounts to the Plaintiff. Also, the Defendant, having been born in the disputed house and having lived there in all his life, it would only be proper that the Plaintiff offers the Defendant the first option to buy the Plaintiff’s interest out of the said property instead of the Plaintiff seeking a judicial sale of the disputed property. The Defendant thus finally counterclaimed for the following: 5. COUNTERCLAIM JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 5 a. An order that house no. 1/F 45, Site 4, Community 1, Tema, be valued by a certified Valuer and the cost of the said valuation report be borne equally by the parties to this suit. b. An order that the Defendant buys out the Plaintiff’s interest in house no. 1/F 45, Site 4, Community 1, Tema. c. A declaration that the 2 shops in the frontage of house no. 1/F, Site 4, Community 1, Tema, does (sic) not form part of the estate of the late David Tawiah Odamtten. d. Any further order or orders as to this Honourable Court may deem fit. e. Costs. 6. REPLY AND DEFENCE TO COUNTERCLAIM [x] The Plaintiff thereafter filed a Reply and a defence to the counterclaims of the Defendant, and pleadings closed. At the Application for Directions stage, the following issues were set down for the trial: 7. APPLICATION FOR DIRECTIONS & TRIABLE ISSUES SET DOWN FOR THE TRIAL 1. Whether the Will of David Tawiah Odamtten was valid. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 6 2. Whether or not David Tawiah Odamtten bequeathed H/No. 1/F 45 Site 4, Community 1, Tema to only the Plaintiff and Defendant as tenants in common. 3. Whether the vesting assent obtained by the Plaintiff and Defendant herein in respect of H/NO. 1/F 45 Site 4, Community 1, Tema was valid. 4. Whether the Defendant had rented out the entire house, outhouse, the 2 shops and had singlehandedly collected rents accruing therefrom to the exclusion of the Plaintiff. 5. Any other issue(s) that may reasonably arise out of the pleadings. 8. ADDITIONAL ISSUES FILED BY THE DEFENDANT/COUNTERCLAIMANT i. Whether or not the two shops cited in front of house no. 1/F Site 4, Community 1, Tema, formed part of the estate of Daniel Tawiah Odamtten at the time he made his last Will and Testament. ii. Whether or not the two shops were gifted to Esther Adjeley Borley Odamtten during the lifetime of David Tawiah Odamtten. iii. Whether or not the Plaintiff is entitled to the reliefs contained in his Writ of Summons. iv. Whether or not the Defendant is entitled to the reliefs contained in his Counterclaims. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 7 The parties were ordered to file their respective witness statements and they did. After case management conference, the trial commenced. 9. WITNESS STATEMENT OF THE PLAINTIFF [xi] The Plaintiff, in seeking to affirm the contentions in his pleadings filed his witness statement and also a supplementary witness statement and attached a copy of the said will, and which was admitted and marked Exhibit A. Pictures of the disputed house and the shops there in were also tendered and admitted in evidence as Exhibit B series and the Plaintiff further attached a copy of the probate and vesting assent as Exhibits D and E, all in the Plaintiff’s bid to confirm that he was entitled to 50% shares in the disputed property. The Plaintiff added that the property was deteriorating and attached pictures to evidence same. The Plaintiff further denied that the two shops did not form part of the estate of the deceased and prayed the Court to grant the reliefs he sought, among others. The Plaintiff called no witness. 10. WITNESS STATEMENT OF THE DEFENDANT & HIS WITNESSES [xii] The Defendant also filed his witness statement, again repeating the averments in his statement of defence and he tendered the burial permit and death certificate of their late father in evidence, as well as the title deeds to the disputed house; and the above indeed confirmed the Plaintiff’s assertions that the disputed property belonged to their late father and it was therefore rightly devised to whomsoever the deceased wanted, and in this case to both the Plaintiff and the Defendant as tenants in common. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 8 The Defendant further made some narrations about the will of his late father and the probate and vesting assent, and even though he sought to state that he was not given a copy of the vesting assent, among others, I find that the Defendant never strenuously objected to the will of his late father and neither did he contest the devise of the disputed property to the Plaintiff and himself. The Defendant also sought to state the two shops belonged to some sister of the parties; and yet he testified that it was the deceased mother of the parties who rented out the shops and was collecting the rent during her lifetime. Per the Defendant, upon their mother’s death and at the expiration of the tenancy, the tenant came to see their deceased father and who directed the tenant to go and negotiate with one daughter, Yvonne; but not Esther, whom the Defendant stated had been gifted the land on which the shops had been built. [xiii] The Defendant further repeated that he had not rented any rooms out and that the shops did not form part of the house devised to them. It is also the Defendant’s wife who used to keep some children for their parents to pick up later; but his wife has since stopped that activity and so the disputed property has not been turned into a creche as the Plaintiff sought to state. All in all, the Defendant averred that he was entitled to his counterclaims and the Plaintiff’s claims should instead be dismissed. [xiv] The Defendant called one sister as a witness, DW1, who sought to state that the Plaintiff was thrown out of the disputed house by their parents, but she never denied that the disputed property had been devised to the Plaintiff and the Defendant. DW1 also stated that the shops belonged to their sister Esther and so it did not form part of the estate of their late father. She invariably was produced to support the Defendant’s case, as is usually the case. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 9 The trial then came to a close. 11. BURDEN OF PROOF IN CIVIL CASES [xv] This being a civil case, the burden of proof on a party in a civil suit is on a balance of probabilities, as was held in the case of Serwah v Kesse [1960] GLR 227 – 228 and also at sections 11(4) and 12 of the Evidence Act, 1975, NRCD 323. Section 12 of NRCD 323 provides: (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. In the case of Yorkwa v Duah [1992 - 93] GBR 278, Brobbey JA (as he then was) stated that in civil cases, the obligation to adduce evidence should first be placed on the plaintiff. The onus of adducing evidence thus first lies on the plaintiff herein to adduce sufficient evidence to prove the fact that indeed, he is the legal and rightful owner of the property in question over the defendant herein. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 10 Also, in the case of Dzaisu v Ghana Breweries Limited [2007-2008] SCGLR 539, the Supreme Court per Adinyira JSC held, in expounding on section 14 of NRCD 323, as follows: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim.” The Learned Justice of the Supreme Court went on to state: “It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden onto the other party.” 12. EFFECT OF A COUNTERCLAIM [xvi] The Defendant also counterclaimed and so he equally bore the burden to establish satisfactorily to this Court that he is entitled to his counterclaims. In the case of SASU BAMFO V SINTIM (Civil Appeal J4/26/2011) of 30thNovember 2011, the Supreme Court per Rose Owusu JSC (as she then was) held at page 155 as follows: "A counterclaim is a different action in which the defendant as a counter claimant is the plaintiff and the plaintiff in the action becomes a defendant. … Each of them bore the burden of proof and persuasion to prove conclusively, on the balance of probabilities that he was entitled to the reliefs claimed. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 11 Section 11(1) of the Evidence Act, 1975 (NRCD 323), enjoined the defendant in his capacity as a plaintiff in the counterclaim to introduce sufficient evidence to avoid a ruling on the issue against him." (Emphasis is mine) Likewise, the case of Aryeh & Akakpo v. Aya Iddrisu [2010] SCGLR 891 at 901, in which the Supreme Court again reiterated the burden of proof on a counterclaimant as follows: "A party who counter-claims bears the burden of proving his counterclaim on the preponderance of the probabilities and will not win on that issue only because the original claim failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent's case. 13. EVALUATION OF THE EVIDENCE ADDUCED AT THE TRIAL VIS-À-VIS THE LAW [xvii] This is a matter between brothers, and which ought not to have come before any Court, but it has. As the words of Ambrose Bierce above connotes, death more often than not brings acrimony, disagreements and confusion among parties who otherwise lived in harmony, and who had no hand and/or input in the acquisition of the property(ies) devised to them, and yet they litigate over these properties they have not worked for but are to simply enjoy. Who would have thought that brothers from the same parentage would litigate over a property left to them by a parent and which they have not toiled for? But here we are in Court. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 12 [xviii] Before I proceed to deal with the gravamen of the issues before me, I find that Counsel for the Defendant raised the issue of the capacity of the Plaintiff and so I would deal with whether or not the Plaintiff is clothed with the requisite capacity to institute this suit as a beneficiary of the estate of his deceased father because it is germane to the entirety of the case before me. 14. WHETHER OR NOT THE PLAINTIFF HAS CAPACITY TO INSTITUTE THIS ACTION [xix] In the case of Ebusaupayin Yaw Stephens v Kwesi Apoh [2010] MLRG 26, the Supreme Court, per Anin Yeboah JSC (as he then was) held: “It is therefore the law that if an action succeeds on a plea of statute of Limitation, lack of jurisdiction or lack of locus standing the trial court and for that matter an appellate court should not proceed to determine the merits of the case irrespective of the evidence. Indeed, if an action succeeds on a preliminary point that a suitor lacks the requisite locus standi, it implies that the proper parties are not in court to pronounce on the merits of their case. … and it would be improper for the court to determine the merits of the case when indeed no cause of action subsists.” (Emphasis is mine) In attacking the capacity of the Plaintiff to institute this action, Counsel for the Defendant submitted, among others thus: “Your Lordship, it is again settled law that without a Vesting Assent, the proper person to sue is the Executor. Thus, it was not until the executor, as in this instant suit had executed a valid vesting assent to JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 13 the beneficiaries being the parties to this suit, then the executor was the proper person to sue in respect of the estate of the deceased. The executor therefore had a locus standi since no valid distribution of the estate of the deceased testator had been done. SEE: IN RE SACKITEY (DEC'D) DZAMIOJA ALIAS ASHONG V. SACKITEY & ANOR (1982-3) GLR 1196 Currently therefore, in this instant case the Plaintiff's interest in the subject matter of this dispute is inchoate until a valid and registered assent is vested in him. His title claiming under the Last Will and Testament of the late David Tawiah Odamtten, was not complete without some act on the part of the executors giving effect to the gift. SEE: DAGADU & OTHERS VRS. ADDY & ANOR (1991) 1GLR 316 (H/CT) Your Lordship, need we say anymore? The Plaintiff's instant suit needs to be dismissed.” [xx] The Plaintiff’s Counsel responded to the submissions and disagreed with the Defendant’s Counsel, also submitting thus: “We respectfully wish to bring to the court's attention that the above authorities have been overtaken by the recent and more progressive decision of MOHAMMED (substituted by) MOHAMMED & MUJEEB [2017-2018] 1 SCGLR 997 @1006 where the apex court held thus: JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 14 "Proceeding further, we are of the view that by virtue of the rules on intestacy contained in section 4(1) (a) of the intestate Succession Law, PNDC Law 112, following the death of the father of the defendants and their mother- the original 1st defendant, the property devolved upon the children and as such they had an immediate legal interest in the property that they are competent to defend and or sue in respect of and in any such case either the children acting together or any of them acting on behalf of the others may seek and or have an order of declaration of title made in their favor".” The Plaintiff’s Counsel further submitted: The position of the law as established by Conney v. Bentum-Williams, Dagadu and other and In Re Sackitey that unless a Vesting Assent is registered a beneficiary of a devise is not clothed with the legal capacity to institute an action in respect thereof, is no longer good law. The recent decisions of MOHAMMED (substituted by) MOHAMMED & MUJEEB and SUSAN BANDOH establish clearly that a beneficiary of an estate can commence and action without being clothed with a Vesting Assent or Letters of Administration.” [xxi] I have analyzed the submissions of both Counsel and the respective case law cited and find that both the Plaintiff and the Defendant did not dispute that the property in issue had been devised to both of them in the will of their deceased father. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 15 DW1, the sister of the parties appeared in Court to testify for and on behalf of the Defendant and averred that the Plaintiff was thrown out of the disputed house at a point in time and she was also not aware of the Will until it was read or some testimony to that effect, but I find that she also never disputed that the disputed house had been devised to the Plaintiff and the Defendant. Indeed, DW1 also benefitted from the will, from the contents of Exhibit A (the will) and so I believe it would not have been in her favour to state that the devise of the disputed property was invalid. Again, none of the parties led any evidence to dispute the validity of the will. The presumption therefore is that the will is valid, and I hold that a beneficiary of the estate of the deceased, whether clothed with vesting assent or not, has the capacity to litigate over his or interest in the said property. [xxii] I am fortified in the above holding by relying on the Mohammed & Mujeeb case (supra) cited by the Plaintiff’s Counsel, as well as in the case of Marfoa vrs Agyeiwaa [2016] GHASC 84 (09 November 2016); where the Supreme Court, per Baffoe Bonnie JSC held: “A preliminary issue was raised by the respondent in the High Court that since she was not the only beneficiary of the estate and also that she has not been given the vesting assent, she did not have the capacity to defend the action. We do not think this is so. Section 1(1) of the Administration of Estates Act, 1961, (Act 63) provides that: JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 16 “The movable and immovable property of deceased person shall devolve on his personal representatives with effect from his death”. On the point that the respondent lacks capacity to defend the action because the properties have not been vested in her by way of vesting assent, see the case of In Re Anim-Addo (Deceased) Nkansah alias Anane and Another v Amomah - Addo and Another [1989-90] 2 GLR 67. In that case there was an application by a widow under section 13(1) of the Wills Act, 1971 (Act 360), praying the court for an order for financial provision to be made for herself and her infant son aged eight. The executors of the estate raised a preliminary objection to the power of the Court to entertain the application before grant of probate. It was contended that the application was premature, since the executors had no access to the estate of the testator and were therefore incapable of executing any orders of the court. In dismissing the preliminary objection, Emelia Aryee, Ag. J said: By contrast, administrators get their power from the instrument appointing them as such, in this case, the Letters of Administration. As such, once the letters of administration were granted to the respondent it was proper for the appellant to bring an action for reasonable provision out of the deceased’s estate against the respondent as his personal representative, even without the vesting assent. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 17 [xxiii] I find the same in these circumstances, that once the Executors had obtained probate and issued out a vesting assent, though not registered, the Plaintiff cannot sit back and allow a property in which he has a beneficial and legal interest to be enjoyed to his detriment. Azu Crabbe in his book, Law of Wills in Ghana, at page 175, paragraph three wrote: “It is now well established that a will made by a Ghanaian becomes operative and no more, as from the date of the testator’s death. His intention expressed in the will has no legal effect, until the will is admitted to probate”. (Emphasis is mine) The Plaintiff therefore rightly instituted this suit as a beneficiary of the estate; since it has been held in the Abisa Boya v Zenabu Mohammed case (supra) that beneficiaries of an estate matter can sue in their own capacity without the grant of letters of administration and vesting assent. The Defendant’s Counsel’s submission that the Plaintiff has no capacity to institute this suit is overruled and dismissed on the basis of the above case law cited by both the Plaintiff’s Counsel and this Court. I will thus proceed to deal with the issues set down for trial as follows: 15. ISSUES 1, 2 AND 3 - Whether the Will of David Tawiah Odamtten was valid. - Whether or not David Tawiah Odamtten bequeathed H/No. 1/F 45, Site 4, Community 1, Tema to only the Plaintiff and Defendant as tenants in common. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 18 - Whether the Vesting Assent obtained by the Plaintiff and the Defendant herein in respect of H/No. 1/F 45, Site 4, Community 1, Tema was valid. [xxiv] I wonder why the Plaintiff’s Counsel will set the issue of ‘whether or not the will of the deceased is valid’ down for trial when that issue was not raised anywhere in the pleadings of the parties. Both parties appear to rely on the devise in the will, and none of the parties also led any evidence to establish that the will they both rely on is invalid and so I find that the validity of the will is not in issue and ought not to have been set down at all. Until rebutted and which none of the parties did, the presumption is that the will is valid; and this Court shall rightly rely on the said will. [xxv] There is also no doubt that the disputed house was devised to both the Plaintiff and the Defendant herein only, as tenants in common, and Exhibit A, a copy of the will, which both parties rely on expressly so states at paragraph 4. The words at paragraph 4 or clause 4 of the will are simple, straight forward and clear as follows: I give my House No. 1/F 45 Site 4, Community One Tema to my sons GEORGE OKPOTI ODAMTTEN AND CHRISTIAN LARYEA ODAMTTEN as tenants in common. No other words were added, and so the simple interpretation to given to the above is that the devise was to both the Plaintiff and the Defendant herein, equally and to no other person(s). JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 19 [xxvi] Both the Plaintiff and the Defendant herein thus hold equal shares in the disputed property. Therefore, in the case of Owusu & Another vrs Agyentoa [1995-96] 1 GLR 45-59, the Court of Appeal held: What is the nature of the share or interest created by a tenancy in common? Besides the fact that each devisee had a separate and distinct interest or share in the physically undivided property, the share of one passed to his personal representatives if he or she dies intestate or to his beneficiaries if he died testate: see Megarry and Wade, The Law of Real Property (3rd ed), p 408 and Cheshire's Modern Real Property (10th ed) at p 307. [xxvii] Further, the Defendant informed the Court that he had been given a copy of a vesting assent; and it is clear from the evidence adduced that the Plaintiff had to issue proceedings against one of the Executors, Father Badoo, to compel him to vest the property in the beneficiaries; and this is evident from the Defendant’s own Exhibit 4, the “Motion on Notice”. I however hold that whether or not the vesting assent is valid is of no import because the disputed property has been devised to the parties and the Defendant, in his witness statement admitted that the Plaintiff was entitled to 50% share of the disputed house when he admitted at paragraph 10 of his defence thus: 10. Save that the Plaintiff is entitled to 50% share in the said house, paragraph 9 of the Plaintiff’s Statement of Claim is denied and the Defendant puts the Plaintiff to strict proof of the averments contained therein. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 20 The said paragraph 9 of the statement of claim is as follows: 9. Plaintiff says although he is entitled to 50% share in the said house defendant had rented one bedroom outhouse as well as 2 out of the 3-bedroom semi-detached rooms as well as the 2 shops. [xxviii]The Defendant therefore does not dispute that the Plaintiff is entitled to an equal share in the disputed property; and so the validity of the vesting assent is immaterial here, I hold. I will proceed to deal with the following issue: 16. ISSUE 4 - Whether the Defendant had rented out the entire house, outhouse, the 2 shops and had singlehandedly collected rents accruing therefrom to the exclusion of the Plaintiff. [xxix] With respect to the above issue, I find that the Plaintiff did not adduce even one iota of evidence to establish that the Defendant was taking rent from any tenant in the disputed house. The Plaintiff contended that the outhouse had been rented out and the Defendant admitted that a friend was living therein. [xxx] But in order to cause this Court to grant the order for the Defendant to render account to the Plaintiff in respect of proceeds of rent received by the Defendant, I hold that the Plaintiff ought to have adduced evidence to establish how much JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 21 rent had been charged, for how long the tenant had been in there to enable this Court make the requisite order to render accounts, but no such evidence was led. The Defendant, I find, stated it was a friend who was staying in the outhouse and had been there even during the lifetime of their father; and I find that the Plaintiff did not dispute that assertion. The burden was on the Plaintiff to establish that it was a rent paying tenant in there, as the Plaintiff averred, but the Plaintiff did not adduce any such evidence and neither did he seek to contradict the Defendant’s assertions that it was a friend who lived in the outhouse. [xxxi] The Defendant also stated their father’s help lived in one of the rooms in the main house, but once again, the Plaintiff did not contradict that averment. The Plaintiff herein, I find, did not adduce any evidence to establish that the Defendant had rented out the rooms and received proceeds thereof; and so this Court is unable to make any such finding of fact in favour of the Plaintiff herein. I rely on the statement of Adade JSC in Nartey v Mechanical Lloyd Assembly Press Ltd [1987-1988] 2 GLR 314 when he held that “A person who comes to court, no matter what the claim is, must be able to make a good case for the Court to consider, otherwise he must fail." [xxxii]The Defendant however admitted that his wife used to have some duty of taking care of other people’s children or something of that sort in the house. From that averment, I find it more probable than not, that the Defendant’s wife indeed had a creche and even if she was only keeping people’s children, she could not have been doing it for free. Indeed, having used the premises for that JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 22 purpose to the detriment of the Plaintiff co-owner, the Defendant is entitled to compensate the Plaintiff to some extent. 17. ADDITIONAL ISSUES (I) AND (II) - Whether or not the two shops cited in front of House No. 1/F Site 4, Community 1, Tema, formed part of the state of Daniel Tawiah Odamtten at the time he made his last Will and Testament. - Whether or not the two shops were gifted to Esther Adjeley Borley Odamtten during the lifetime of David Tawiah Odamtten. [xxxiii]It has been held that a gift is irrevocable except between parents and children. In the case of Sese vrs Sese & Others [1984-86] 2 GLR 166-175, the Court of Appeal, per Abban JA (as he then was) held: Thus, the mere recording of the gift in writing could not affect its customary nature. It still remained a customary gift and it continued to be subject to the incidents of customary law. Some of such incidents being that every gift when completed was irrevocable except in gifts between parent and child, which could be recalled or exchanged at any time by the parent in his or her lifetime, or by his will or dying declaration. In the circumstance, the so-called gift, even if it was valid, could still be revoked by the plaintiff's late father by adopting one of the means stated above. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 23 The Defendant and DW1 only stated in their pleadings and respective witness statements that the stores were given as a gift to their sister Esther, but there was not even one iota of proof to establish any gift. [xxxiv]Indeed, DW1 testified to the effect that their mother used to operate her sewing business in the large shop and handed over to their sister Esther. Esther later travelled and their mother took over the shop and rented same out, and so wherein lies the gift to Esther? Again, in her lengthy narration, DW1 again stated that the Plaintiff built the smaller store with their father’s cement blocks for his wife and when the Plaintiff was leaving the house, he rented it out. At what point therefore was the property gifted to Esther when the Defendant and his witness stated that when the rent expired, the tenant came to see their father, who directed the tenant to DW1, Yvonne for negotiations and not Esther, to whom the stores had been allegedly gifted? The plan of the disputed house tendered in evidence by DW1 is even in the name of the deceased mother of the parties; and so that exhibit in no way demonstrated any gift to any person, especially Esther. [xxxv] In the case of Okoe v Okai [1997 – 1998] 2 GLR 980, it was held thus: I hold that the evidence as a whole did not support any valid gift to the plaintiff. Even if the so-called gift was valid, it is my judgment that it was revoked by the plaintiff’s late aunt … when she executed the will in 1968. Counsel for the Plaintiff also cited cases on the incidence of customary gifts and which I agree with, and I hold that the Defendant herein was unable to establish JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 24 any gift in favour of any person. I therefore hold, without equivocation that the stores in front of the house and the outhouse all form part of the disputed property and both the Plaintiff and the Defendant are entitled to equal shares therein. As a result, all those persons who were said by the Defendant to be living therein as licensees be and are hereby ordered to give up vacant possession of the disputed property forthwith, so the beneficiaries can enjoy what has been rightly devised to them. [xxxvi]The Defendant also, I find, did not behave fairly when since 2011, since the death of their father, has continued to live in and enjoy the disputed property alone with his family without enquiring from the Plaintiff or taking steps to have the property properly shared. In that regard, I proceed to deal with the final set of issues as follows: 18. ADDITIONAL ISSUES 3, 4 & ISSUE 5 - Whether or not the Plaintiff is entitled to the reliefs contained in his Writ of Summons. - Whether or not the Defendant is entitled to the reliefs contained in his Counterclaim. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 25 - Any other issue(s) that may reasonably arise out of the pleadings. [xxxvii] The Plaintiff sought the following reliefs: - Judicial sale of H/no. I/F 45 SITE 4, Community 1 Tema and the proceeds shared equally between the parties. - 50% of rent accrued to the defendant from 2011 till date of final judgment. The Plaintiff did not ask for partitioning and/or sharing of the disputed property but for the judicial sale of the house. I however cite the case of Adabla & Another v Kisseh & Another [1972] 1 GLR 43-51, where the Court of Appeal held, per Lassey J. A. thus: “… partition can be ordered (a) where it is advantageous to the family and (b) if the property itself is capable of being partitioned. Azu Crabbe J. S. C. (in the same Adabla case supra) also held: “… a claim for partition of … land is a matter for the discretion of the court and where there is a proper exercise of that discretion the court ought not to interfere unless there is some specific customary law that forbids partitioning. See Amoabimaa v. Badu (1956) 1 W. A. L. R. 227.” Further in the case of Nana Kwasi Agyeman VIII v Nana Hima Dekyi XIII [1982-83] GLR 453, Twumasi J. (as he then was) also held as follows: For my part, I would concur in the view that the guiding principle in exercising any discretion should be to do justice and I would add that JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 26 the court should also be guided by commonsense, fair-play and equity. In this regard each case should be treated strictly according to its particular facts and circumstances. [xxxviii] In exercising common sense, fair play and equity in order to arrive at a just decision, I find that even though the Plaintiff herein seeks a judicial sale of the disputed property, considering the entire circumstances of this case, I would rather order a partitioning of the disputed property so each of the parties would know their distinct portion and do as they will with same. I therefore first exercise my discretion in making the following orders: a. That the disputed property be first assessed, valued and partitioned; so that each party would know the specific portion of the disputed property attributed to him. [xxxix] I make the above order because I find the Plaintiff was unable to establish that a judicial sale of the disputed property is the only available solution to the impasse and acrimony between the parties. There will also be no miscarriage of justice if this Court does not order a judicial sale of the property, because after the Plaintiff knows the distinct portion attributed to him, he can take steps to dispose of his portion. There would rather be a miscarriage of justice if the Plaintiff is compelled to live or keep his portion of the house when he does not want to; and the Defendant is compelled to sell the house when it is clear he attaches some sentimental value to same. b. Further, this Court hereby orders that the Plaintiff shall give the Defendant the first option if he decides to dispose of his portion of the disputed property by way of sale. JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 27 c. I would further order that an independent Valuer be hereby appointed to value the entire property before the partitioning; so that in the event that the Defendant herein would wish to buy out the Plaintiff, he would be able to do so. 19. CONCLUSION [xl] For the above reasons, judgment be and is hereby entered in part in favour of the Plaintiff herein, not for the judicial sale of the house but for a valuation and partitioning of the disputed property; and if the Plaintiff wishes to carry out the sale of his specific portion, he is at liberty so to do, after the partitioning, but the Plaintiff shall first give the Defendant the first option. The Plaintiff was further unable to establish the rent accrued and so that relief fails, even though there is proof that the Defendant and his wife undertook some activity in the which appeared to have brought in some proceeds to the detriment of the Plaintiff herein. For that reason and having considered the circumstances of this case, I would mulct the Defendant in costs of Gh¢100,000.00 in the Plaintiff’s favour. [xli] Finally, save the first counterclaim, that the disputed property house no. 1/F 45, Site 4, Community 1, Tema, be valued by a certified Valuer and the cost of the said valuation report be borne equally by the parties to this suit, the JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 28 Defendant’s counterclaims are dismissed in their entirety; and the Defendant shall not be entitled to costs. SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘B’ TEMA. GREATER ACCRA REGION. 15TH DECEMBER 2023. COUNSEL: EDEM MENKA ESQ. HOLDING BRIEF FOR ALFRED BANNERMAN - WILLIAMS ESQ. FOR THE PLAINTIFF AKU SIKA DADZIE, COUNSEL FOR THE DEFENDANT ABSENT JUDGMENT – GEORGE ODAMTTEN vrs CHRISTIAN ODAMTTEN 29