AKYAA VRS AHENKANG (A9/367/22) [2023] GHADC 731 (17 October 2023)

CORAM: HER WORSHIP AMA ADOMAKO-KWAKYE (MS.), MAGISTRATE, DISTRICT COURT ‘2’ KANESHIE SITTING AT THE FORMER STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION OFFICES NEAR WORKERS’ COLLEGE, ACCRA ON 17TH OCTOBER, 2023. SUIT NO. A9/367/22 FLORA A. AKYAA PER LAWFUL ATTORNEY BOAKYE ANSAH ACCRA VRS. :: PLAINTIFF 1. NANA KWAME NSIAH AHENKANG :: DEFENDANTS 2. DORIS DANSOMAN - ACCRA JUDGMENT Introduction The Plaintiff instituted this action against the Defendants per an Attorney by way of a Writ of Summons issued on the 29th of June, 2022, wherein the Plaintiff claimed against them for the following reliefs: a. An order for immediate ejectment of the 2nd Defendant from Plaintiff’s room for personal use; b. An order to compel the 1st Defendant to release the documents covering the property; and c. Cost. FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. According to the Plaintiff per her lawful Attorney, she is the owner of the property which was rented to the 2nd Defendant by the 1st Defendant. Her Attorney stated that the Plaintiff who is over seventy years travelled to the US in the year 2022. However, she has decided to return to her home country, Ghana and therefore needs the room occupied by the 2 nd Defendant for her personal use. Her Attorney further added that, before the Plaintiff travelled, she gave the property documents to the 1st Defendant to keep for her but 1st Defendant portrayed himself as the owner of the property in question and has gone ahead to rent it out. Plaintiff’s Attorney asserted that the 1st Defendant forcefully opened Plaintiff’s door and rented out the room to the 2nd Defendant. Plaintiff’s Attorney further averred that the 1st Defendant’s conduct of renting out her room to the 2nd Defendant has hindered her from returning to Ghana. According to Plaintiff’s Attorney, 2nd Defendant will not give vacant possession of the room unless ordered by the Court to do so. In defending the action by way of an Amended Statement of Defence filed on the 5th of October, 2022, the Defendant averred that the property in question is owned by the Plaintiff and her five children including the 1st Defendant herein. He averred that he was the one who went with the Plaintiff to Ghana Commercial Bank, Accra to collect the documents to the property in dispute which was in the custody of the Bank and same given to him for safe keeping before the Plaintiff travelled to the United States. 1st Defendant further averred that he paid an amount of ȼ 4,208,000.00 (old currency) in 2001 as compensation to his brother by name Papa Kofi Ahenkang who contracted a loan to pay off the purchase price of the property in dispute. According to 1st Defendant, he has since been paying the property rate, ground rent and utilities in respect of the property. He stated that Plaintiff has a room in the house which she has rented out and that the room he let out FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. to 2nd Defendant does not belong to the Plaintiff. As such, it is the case of 1st Defendant that the Plaintiff is not entitled to the reliefs she is seeking for from the court. The parties were referred to the Court Connected Alternative Dispute Resolution for the parties to attempt settlement but they were unable to settle the matter amicably. Issue From the pleadings of the parties and in order to determine whether the Plaintiff is entitled to her reliefs sought, the main issue for determination by this Court is whether or not the house in dispute is owned by the Plaintiff. Legal Analysis It is trite that in civil cases, the general rule is that the party who in his/her pleadings or writ raises issues essential to the success of his/her case assumes the onus of proof. The one who alleges, be (s)he a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when (s)he has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be. Proof lies upon him who affirms or alleges, not upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See the following: Sections 11(1) & (2), 12(2) and 14 of the Evidence Act, 1975 (NRCD 323) Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882 @ 900 GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458 Tagoe v. Accra Brewery [2016] 93 GMJ 103 S. C Deliman Oil v. HFC Bank [2016] 92 GMJ 1 C. A. FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. The Plaintiff had the onus of discharging the burden of producing sufficient evidence in respect of her claim on a balance of probabilities. The Plaintiff testified through her Attorney and called no witness. He tendered in evidence a copy of the Power of Attorney as Exhibit ‘A’. Plaintiff’s Attorney in opening his case on 5th October, 2022 testified by way of oral evidence that the 1st Defendant is his nephew and that the Plaintiff is the mother of the 1st Defendant. He added that the 2nd Defendant is the one the 1st Defendant has rented out the room in issue to. According to Plaintiff’s Attorney, Plaintiff owns the house at Dansoman Last stop, House No. 22, Bambosa Close, the subject matter of the suit. Her son, the 1st Defendant also stays there. Plaintiff has five children including the 1st Defendant. He added that Plaintiff’s husband passed away in 1981. Before that time, the Plaintiff occupied the house in dispute with her husband and children on rental basis from State Housing. After the demise of Plaintiff’s husband, the family wanted to take over the house from the Plaintiff and her children. Plaintiff therefore sent the matter to High Court, Accra where the Court found that the house was not for the deceased but it was a rented property. He testified that State Housing company allowed Plaintiff to rent the property in dispute for some time until it decided later to sell the property and gave Plaintiff the option to buy it. Plaintiff bought it and became the owner of the property in dispute in the year 1995. At that time, the children were all young and Plaintiff stayed with them. He stated that three of the children are outside the country with the 3rd born (1st Defendant) and his sister currently in Ghana. In 2020, Plaintiff’s children came for her to USA to spend some holidays with them. Before leaving, she rented the room she was staying in to get money to purchase her flight ticket. Plaintiff’s Attorney further added that 1st Defendant also has a room he stays in. Plaintiff’s daughter was staying in one of the rooms however she has vacated the room. Since FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. the room was unoccupied, Plaintiff sent all her things into that room (which used to be occupied by her daughter) and locked it before she travelled to America. According to Plaintiff’s Attorney, it came to Plaintiff’s knowledge that 1st Defendant wanted to rent out the room so she asked him to ascertain what was happening. He stated that when he went to the house, 1st Defendant was ready to rent out the room and he therefore asked him not to rent it out because Plaintiff’s belongings were in there. He said 1st Defendant was adamant, broke the door open, removed Plaintiff’s things into a store room and rented out the room to 2nd Defendant. Plaintiff’s Attorney testified that he subsequently called a meeting where the 1st Defendant was informed of Plaintiff’s decision to return to the country and the need for her to get an accommodation in the house. The meeting however did not yield the desired outcome so a criminal action was instituted against the 1st Defendant which action was still pending. To prove Plaintiff’s ownership of the house, he tendered in evidence a copy of property rate bill in respect of the property in the name of the Plaintiff paid in the year 2020 as Exhibit ‘B’. 1st Defendant also testified by way of oral evidence on the 5th of October, 2022 for himself and on behalf of the 2nd Defendant. He testified that he lives at Dansoman Bamboosa Close, H/No. 22, the subject matter of the suit and that whereas the Plaintiff is his mother, the 2nd Defendant is his tenant. 1st Defendant testified by giving an elaborate exposition of the history of possession and ownership of the house in dispute. According to him, his father passed away in December 1981. The house in dispute had been on rental till 1995. In 1994, there was a first offer letter to have the house on sale and a second offer letter came to give Plaintiff and her children including 1st Defendant, the opportunity to buy the house in November 1994. He tendered in evidence copies of the two offer letters as Exhibit ‘1’ and Exhibit ‘1A’. He further testified that the offer for sale as shown in Exhibit ‘1’ was to Madam Akosua Akyaa and children. FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. It was the testimony of 1st Defendant that before the letter containing the offer came, they owed rent for 10 months and were at the verge of being evicted. He stated that State Housing Company owed his father because his father furnished the house. They therefore needed to value it and this reflected in the second offer letter (Exhibit ‘1A’). The balance to pay for the house was thus Gh¢3,000,000. Papa Kofi, the first born secured a loan of Gh¢3,000,000 for the purchase of the house and it was to be deducted monthly from Papa Kofi’s salary for a continuous period of five years which ended in the year 2000. To support his claims, he tendered in evidence a document evidencing the application for loan by the said brother dated 26th July, 1995 as Exhibit ‘2’. In the year 2000 when Papa Kofi finished paying the loan, he lost his job. 1st Defendant further testified that Papa Kofi’s wife had issues with Plaintiff in respect of the same property. Papa Kofi however sided with Plaintiff and divorced his wife. According to 1st Defendant, he was in London at that time when he received a call from Papa Kofi who informed him of what had happened and intimated that he had run out of money and therefore needed 1st Defendant’s assistance financially. He stated further that Papa Kofi was the one who catered for the family however when he lost his job, he, 1st Defendant, had to step in his shoes and take up that mantle from 1999 to 2004. 1st Defendant further testified that when he received the call from his brother, Papa Kofi, he assured him that he would assist him and also pay off the Gh¢3,000,000 he paid with interest as compensation. 1st Defendant therefore sent 400 pounds on 31st December 2001 to Papa Kofi which was equivalent to Gh¢4,208,000. He received the money on the 9th of January, 2002. To prove his case, 1st Defendant tendered in evidence remittance evidencing the transfer as Exhibit ‘3’. The Gh¢3,000,000 was given to Plaintiff to pay to State Housing Company because they (the children) were busy working and Plaintiff was the administrator in charge. When Plaintiff FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. however went to deposit the money, she took a receipt only in her name excluding the children but since State Housing Company was aware they offered the property for sale to Plaintiff and children, State Housing Company issued a receipt including the children for the indenture. 1st Defendant further testified that when Plaintiff wrote for the indenture, she still used only her name as such, the indenture was prepared only in her name. He tendered in evidence the letter dated 7th August 1995 evidencing the completion of payment Exhibit ‘4’, a copy of the receipt dated 28/7/95 as Exhibit ‘5’, a copy of the receipt dated 22/8/95 evidencing payment for the preparation of the lease as Exhibit’5A’ and a copy of the letter for the application for the lease written by the Plaintiff dated 9th August 1995 as Exhibit ‘6’. According to 1st Defendant, Plaintiff deliberately excluded their names from the indenture and made them use only her name. He stated that he was displeased with what Plaintiff had done and complained to her but Plaintiff did nothing about it. He was however convinced by the receipt with children included. He tendered in evidence a copy of the indenture only Plaintiff’s name only as Exhibit ‘7’. 1st Defendant further testified that because he paid his brother who contracted the loan, he earned 60% share in 2001 together with 7% he earlier earned. He stated therefore that that makes him a majority owner of the estate since 1995. It was 1st Defendant’s testimony that the title on the receipt is what vindicates his position that I am also an owner of the property. He added that it is the title on the receipt for the indenture which informs whoever is preparing the indenture the names to use. 1st Defendant further stated that Plaintiff spearheaded the creation of the indenture as such, she should have given the correct information as to the names to be used which she did not. Due to this, the name of the children did not show on the indenture. In determining this issue of ownership, what is crucial is to consider if indeed the offer for sale of the property was made only to Plaintiff or to Plaintiff and her children and where the FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. latter is established, whether the Plaintiff by her conduct intentionally or by mere oversight excluded the names of her children from the preparation of the indenture. From the evidence adduced before this court, Plaintiff’s Attorney testified that State Housing company allowed Plaintiff to rent the property in dispute for some time upon the death of her husband until it decided to sell the property and gave Plaintiff the option to buy it. Plaintiff therefore bought the house and became the owner of the property in dispute in the year 1995. 1st Defendant however challenged this and stated that the offer for sale was made to both Plaintiff and her children and not to Plaintiff only as claimed by her Attorney. When asked under cross examination as to who the offer for sale was made, Plaintiff’s Attorney stated that it was made to the Plaintiff only. This is what happened under cross examination of Plaintiff’s attorney by 1st Defendant; Q. Was the offer for sale given to only the plaintiff? A. That is what I know Exhibit ‘1’ titled “Sale of Rental Unit H/No. 22 Bamboosa close, Dansoman (Type SH. 2)” however reveals that the offer was addressed to “Madam Akosua Akyea & Children” and not only the Plaintiff as her Attorney wants this Court to believe. Even during the cross examination of the 1st Defendant by Plaintiff’s Attorney, her Attorney suggested that State housing changed the name to Akosua Akyea and children. This is what transpired under cross examination; Q: When the family went to housing, they found that your father had not bought the house and that is why they would not eject your mother. Are you aware? A: So far as I am concerned the house was rented Q: That is why housing changed the name to Akosua Akyeaa and children because you were minors? FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. A.: As far as I am concerned, State Housing has a policy and since the applicant (our father) had passed away, the family left was Akosua Akyeaa and her children so we were the sitting tenants. State Housing Corporation recognized me as a sitting tenant and that is how come the children’s name was reflected in the tenancy. Throughout Plaintiff’s engagement with State Housing Company concerning the sale of the property in dispute, it is evident from the evidence adduced that Plaintiff did not indicate that the purchase of the property was for her and her children but for her only by her conduct of excluding the names of the children from her dealings with State Housing, particularly in her correspondences. I have examined carefully the exhibits tendered in evidence before the court. Exhibit ‘5A’, the receipts evidencing the payment for the preparation of the lease bears the name “Mad. Akosua Akyea & her five children”. It is this receipt which informs whoever is preparing the indenture as to the name to use in the preparation of the indenture. However, Exhibit ‘6’ evidencing Plaintiff’s letter written to apply for the indenture evidently shows that the Plaintiff applied for the lease only in her name excluding the children, and attached the relevant receipts to prove payment. The officer who prepared the indenture had the duty of verifying the names having regard to the attachment of the letter, particularly the names on the receipt attached evidencing payment made for the preparation of the lease (Exhibit ‘5A’) to inform him of the names to be used for the preparation of the indenture. This would have, in the court’s mind reconciled the confusion regarding the name(s) to use for the indenture, if there was any. From the evidence adduced, it is reasonable to conclude that it was no mistake on the part of the Plaintiff to exclude the names of the children from the indenture since she knew very well that the money was given to her by the children to secure the house for herself and them as well. This is because when she initially deposited the money, she took receipt in only her FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. name when the offer for sale was not made only to her but the children also. Assuming without admitting that it was indeed a mere oversight and not an intentional act by Plaintiff to exclude the names of the children, State Housing Company being aware of the fact that the offer was made to Plaintiff and her children rectified that mistake and issued a receipt (Exhibit ‘5A’) to correct same. Yet, Plaintiff still went ahead to prepare the indenture in only her name excluding the children even though the receipt for the indenture indicated that the indenture should have been prepared to include the children. From Plaintiff’s letter which was tendered in evidence as Exhibit ‘6’, it is clear that Plaintiff applied for the indenture only in her name. It is worthy of notice that Plaintiff had a permanent room in the house which she let out before travelling to the United States. This room is not the one the 2 nd Defendant is currently occupying. The following as happened under cross examination of Plaintiff’s Attorney by 1 st Defendant is worth reproducing; Q: How did you know that I had broken into the room and rented it out? A: Plaintiff’s things were in that room under lock. When I went there, 1st defendant himself told me he had broken the lock and removed plaintiff’s things to a store room Q: Did plaintiff have a room she was permanently staying in before leaving to America? A: Yes. Q: So she was not staying in the room 2nd Defendant is in. Is not that so? A: That is so but she rented there to buy a ticket Q: Do you agree that I have not ‘crippled’ plaintiff from coming to stay in her home as you allege in paragraph 6 of the statement of claim? A: He has crippled plaintiff. Plaintiff is the owner of the house and she has rented out her room and put her things in other rooms. 1st defendant has his room too. Plaintiff put her things in FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. that room so that she occupies it when she comes but now that 1st defendant has removed her things and rented it, he has crippled her. From the evidence, the room 2nd Defendant is currently occupying was occupied by 1st Defendant’s sister, who now suffers from mental illness and is no longer in the house. It is clear that Plaintiff after she rented out her room packed her things and stored them in the room 2nd Defendant occupies. However, 1st Defendant removed Plaintiff’s things and stored them in the store room for the purpose of renting out the room to 2nd Defendant. In the opinion of the court, since Plaintiff had her permanent room in which she resided before leaving the country but rented same out, it should be the tenant occupying that particular room that the Plaintiff should have given notice of eviction to and not the 2nd Defendant occupying the room of her daughter. Especially when Plaintiff herself was not staying in the room occupied by 2nd Defendant while she was still in the country. I therefore do not see how the occupation of 2nd Defendant in the house hinders the return of the Plaintiff into the country when the room in question was not her permanent room of residence. It is important to state however that there has been no proper distribution of the property to state the various interest that the Plaintiff and the children each have in the property. However, having regard to the evidence adduced before this court, the fact that the Plaintiff had a room she was permanently residing in while in the country and by virtue of Exhibit ‘10’ evidencing the consent given to the 1st Defendant by Plaintiff and her other siblings to deal with the property, it is reasonable to conclude that 1st Defendant’s conduct of letting out the room to 2nd Defendant was not out of place to say the least. I therefore find as a fact that the Plaintiff and her children including the 1st Defendant all have an interest in the property Conclusion FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. Having regard to the totality of the evidence adduced, the Court is of the humble opinion that the Plaintiff has been unable to discharge the burden of proof on her and the Court therefore dismisses her reliefs sought. [SGD] AMA ADOMAKO-KWAKYE (MS.) (MAGISTRATE) FLORA A. AKYAA VS. NANA KWAME N. AHENKANG & ANOR. 12