Agbodza and Another Vrs Agbodza [2023] GHADC 356 (21 February 2023)

IN THE DISTRICT COURT HELD AT DZODZE ON TUESDAY THE 21ST OF FEBRUARY,2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU, DISTRICT MAGISTRATE. Suit No. A1/18/17 MENSAH AGBODZA & MARSHALL GODSON PLAINTIFFS AGBODZA Suing for themselves and on behalf of their Siblings. VRS MANORGBE AGBODZA DEFENDANT JUDGMENT PARTIES PLAINTIFFS - PRESENT DEFENDANTS - PRESENT INTRODUCTION/BACKGROUND: Per a Writ of Summons and Statement of Claim filed on the 20th of December, 2016 and 20th January, 2017 in this Court, the Plaintiffs prayed for the following reliefs; 1 | P a g e a. Declaration of title, ownership and recovery of possession of all that parcel of land situate, lying and being at Adzoatsi and bounded as follows; i. On oneside by the Weta road ii. On another side by the property of Ahiase Agbodza iii. On another side by the properties of Fafanyo Agbanyo and Anyidoho Anthony and iv. On the last side by the property of Ahiase Agbodza. b. Perpetual injunction restraining the defendants by themselves, their agents, assigns, workmen and privies from entering the disputed land. c. General damages. CASE OF THE PLAINTIFFS It is the case of the plaintiffs that, the Defendant is their paternal brother and the youngest of nine (9) male children of their late father Ahiase Agbodza. The plaintiffs assert that the land in dispute was inherited by their father Ahiase Agbodza, after the death of their grandfather John Dzogbede. The plaintiffs stated that after the death of their father, series of meetings were scheduled for the purpose of sharing their late father’s estates but the defendant failed to attend any of the meetings despite being notified. The 2nd plaintiff stated that sometime in November, 2013 the 1st and 2nd plaintiffs were informed by a woman by name Dopuivi that, the Defendant used their names to collect an amount of Two Hundred cedis (GH₵200) from her as part payment for a portion of their father’s land he sold without their consent. 2 | P a g e The plaintiffs stated that they instructed the woman to go for her money from the Defendants since the sale of land was without their consent. The plaintiffs stated that after the death of the said woman, her children who were originally sued as the 1st and 2nd Defendants in this suit, requested that the Defendant demarcates the boundaries of the land he sold to their mother and this brought about a dispute involving one Anthony Anyidoho, originally sued as the 4th Defendant who also claimed to have earlier purchased part of the disputed land from another person. The plaintiffs stated that the disputed land has not been shared by the family and so it was customarily wrong for their younger brother, the Defendant to dispose of part of the estates without the consent and approval of other family members. The plaintiffs stated that the said Anthony Anyidoho is also laying claim to a part of the disputed land she unlawfully purchased from their cousin Norli Gasu but their said cousin is not a beneficiary of the estates and does not have the authority to dispose of any part of the land. THE CASE OF DEFENDANT In his defence filed on 21st March, 2017, originally as the 3rd Defendant, the defendant admitted that he is a younger sibling of the plaintiffs but denied the assertion that their father’s male children are nine (9) in number. The Defendant admitted collecting an amount of two hundred cedis (GH₵200.00) from the mother of the initial 1st and 2nd Defendants but stated that it was in the knowledge of the 1st Plaintiff who was among the people who sent him to collect the money. 3 | P a g e The Defendant admitted that, the land was not shared to the members of the family but the portion in dispute was given to him by their father in his lifetime to cultivate and he has been on that land for over thirty (30) years. The Defendant averred that, at a point when money was needed to finance a litigation over the property of their grandfather, Atsu Godzo, the 1st Plaintiff consulted him and requested that he sold the disputed land for the proceeds to be used to finance the litigation and he obliged. The Defendant averred that, since Dopuivi already had a land that shares boundary with the disputed land, they deemed it fit to sell the land to her and upon her agreement, same was sold to her. The Defendant averred that, after selling the land he noticed Anthony Anyidoho who was initially sued as the 4th Defendant working on the land and upon confrontation, he indicated to him that he had also purchased the same piece of land from one Peace Nornyibey. The Defendant averred that he took the matter to Torgbui Wesigbe for settlement but the plaintiffs upon invitation failed to attend but the said Anthony Anyidoho was directed to stop cultivating the land after harvesting his crops. The Defendant stated that, the land was given to him by their late father therefore he has the right to sell it. 4 | P a g e PROCEDURAL HISTORY The writ in this suit was issued on 20th December,2016 by the 1st and 2nd Plaintiffs suing for and on behalf of the children of Ahiase Agbodza against four original Defendants Bright Senam Agbanyo, Fafanyo Justice Agbanyo, Manorgbe Agbodza and Anthony Anyidoho. The case commenced before His Worship Lawrence Buenor Buer, was taken over by His Worship Derrick Pardon Eshun and Her Worship Rejoyce Aseye Gadago. Following an application by the 4th Defendant declaring his intention not to contest the case, an application was granted by the court for 4th Defendant to be non-suited on 2nd September, 2019. Upon a subsequent application filed by the 1st and 2nd Defendants to withdraw from the case to allow the 3rd Defendant who is their grantor to contest same, the application was granted for 1st and 2nd Defendants to also be non-suited on 20th November,2020. The proceedings were adopted before me on 1st March, 2022 and hearing continued with the cross examination of the 2nd Plaintiff by the Defendant. ISSUES With the 1st and 2nd and 4th Defendants having been struck out from the suit upon their own application, the issues to be determined between the Plaintiffs and the Defendant were set down as follows; 1. Whether or not the land in dispute was granted to the Defendant by his late father prior to his death? 5 | P a g e 2. Whether or not the Defendant had the consent of the 1st Plaintiff to dispose of the disputed land? 3. Whether or not the consent of the 1st Plaintiff alone was enough to give the Defendant the capacity to dispose of any portion of their late father’s estates? BURDEN OF PROOF The plaintiff who asserts usually has the burden of proving same on a preponderance of probabilities. Preponderance of probabilities according to section 12(2) of the Evidence Act (NRCD 323) 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” Where the plaintiff has been able to lead sufficient evidence in support of his case, then the burden is upon the defendant to lead sufficient evidence in rebuttal or risk being ruled against on the issues. Under section 11(4) of NRCD 323, a party discharges the burden of producing evidence when the party produces sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. In Okudzeto Ablakwa (No. 2) v. Attorney General & Obetsebi Lamptey (No. 2) [2012] 2 SCGLR 845, the Supreme Court in dealing with the burden of proof held as follows; “he who asserts assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323), s 17 (a)…What this rule literally means is that if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will 6 | P a g e go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish”. The Court is also mindful of one of the cardinal duties of a Court in evaluating evidence led during trial which is for the Court to assess all the evidence on record in order to determine in whose favour the balance of probabilities should lie. See the cases of Adwubeng v. Domfeh [1996-97] SCGLR 660 and Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882. SUMMARY OF EVIDENCE The 2nd plaintiff testified for himself and on behalf of the 1st plaintiff. They also called one other witness namely Samson Agbodza (PW1). The defendant also testified by himself and called one other witness Gideon Agbodza (DW1). ANALYSIS Issue One (1): Whether or not the land in dispute was granted to the Defendant by his late father prior to his death? In the statement of defence of the Defendant, he stated in paragraphs 10 and 16 that their father gave the disputed land to him and so he has the right to dispose of it. This assertion is denied by the Plaintiffs who insisted on their claim that the estates of their late father was not distributed and no part of it was exclusively granted to any of the children. 7 | P a g e In Klah v. Phoenix Insurance Co. Ltd [2012] 2 SCGLR 1139 it is held that, “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true”. The onus therefore was on the defendant who avers that the land was given to him by his father to lead evidence in prove of same. The defendant was expected to provided documentary evidence if there was any or call witnesses to testify to his claim as witnesses, if the grant to him was in the form of a customary gift. The defendant however did not put before the court any evidence to sustain his claim of having been given the land. In his witness statement to the court, the defendant did not testify on that particular claim but emphasized that he sold the land in dispute upon the advise of the 1st Plaintiff. His only witness, Gideon Agbodza (DW1) who is one of their siblings did not also corroborate the claim of the land having been granted to the Defendant but rather confirmed the assertion that, the 1st Plaintiff consented to the decision to sell the disputed land. The effect of the evidence given by the Plaintiffs, their witness Sampson Agbodza (PW1) and the witness of the Defendant Gideon Agbodza (DW1) is consistent about the fact that the estates of the late Ahiase Agbodza was yet to be distributed since his demise and therefore none of the children had exclusive ownership to any portion of the estates. 8 | P a g e The above situation therefore leaves the claim by the defendant uncorroborated and not supported by the necessary evidence. If it is the case that he was farming on the land, then it might be that he was permitted to cultivate it which in effect will amount to a license rather than an express grant since he has failed to prove same. In the principles of evidence, it is trite that, the court will prefer a corroborated evidence over an uncorroborated version unless for some good reason the court found the corroborated version incredible or impossible. See the cases of Asante v. Bogyabi [1966] GLR and Met Capital Group Limited vs. Guaranty Trust Bank Ghana Ltd. and Lakesfield Ridge Realty Ltd [2021] DLSC10763 at page 6 per Owusu (Ms), JSC. Issues two (2) and three (3): Whether or not the Defendant had the consent of the 1st Plaintiff and whether such consent was enough to give the Defendant the capacity to dispose of any portion of their late father’s estates? It is the case of the defendant that, the 1st Plaintiff his elder brother gave them his consent to sell the land. The 1st plaintiff denied that claim, but DW1 Gideon Agbodza gave evidence in confirmation of the defendant’s claim that, he was together with the 1st plaintiff and the 3rd defendant when they decided to sell the disputed land and use the proceeds to engage a lawyer in respect of a case involving their nephew and niece pending at the court. From the pleadings of both plaintiffs and the defendant, there is an admission by all the parties that the land was originally owned by their father who acquired by way of inheritance and same devolved on to them as his children and beneficiaries. 9 | P a g e The position of the law is that, a beneficiary of an estate cannot alienate a property devolved to him by intestacy without a registered vesting assent. Letters of Administration in the case of a person who died intestate must be granted by a court of competent jurisdiction to the administrators before they can vest in the beneficiaries. Until a vesting assent is registered in favour of the beneficiaries, they would lack the capacity to alienate it. In the case of Conney v. Bentum-Williams [1984-86] 2 GLR 301, the Court of Appeal in discussing the effect of a sale by a beneficiary without a vesting assent stated as follows; “It is after probate had been granted to the executor that the provisions of the will can be carried out. And after the grant of probate, a beneficiary of any real estate under the will must have a vesting assent executed in his favour by the executors under the Administration of Estates Act, 1961 (Act 63). Until that was done, any purported sale of the real estate by the beneficiary or the devisee would be of no legal consequence and the purchaser would not have a valid title”. CONCLUSION In the case of Adisa Boya v Mohammed Alias Mujeeb 14/2/2018 J4/44/2017, the Supreme Court held that, by virtue of the rules on intestacy contained in section 4(1) (a) of the Intestate Succession Law, PNDC LAW 111, children upon whom the property of their parents devolve acquires an immediate legal interest in the property and are competent to defend or sue in respect of and in any such case either by 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 favour. It is in the above capacity that the court views the plaintiffs in this case as beneficiaries to the estate of their deceased father. 10 | P a g e There being no other issues arising from the pleadings and evidence, Judgment will be entered for the Plaintiffs as follows; a. A declaration that the land in dispute forms part of the estates of the late Ahiase Agbodza. b. That the sale by the Defendant either by himself or with the consent of only some of the siblings without the acquisition of Letters of Administration and a vesting assent is unlawful. c. All persons in unlawful possession are restrained any further interference with the disputed land. Cost of One thousand cedis (GH₵1,000.00) is settled in favour of the Plaintiffs. NELSON DELASI AWUKU MAGISTRATE 11 | P a g e