YEBOAH VRS SHAKUM (A9/9/23) [2024] GHADC 363 (12 February 2024)

IN THE DISTRICT COURT KINTAMPO HELD ON MONDAY 12TH FEBRUARY 2024 BEFORE HIS WORSHIP KWAME ADJEI MANU ESQ. SUIT NO: A9/9/23 KWABENA YEBOAH (Suing for himself and for his siblings born to the late OP. Kwadwo Fordjour) - PLAINTIFF VRS ABUDU IBRAHIM SHAKUM - DEFENDANT JUDGMENT 1. INTRODUCTION Plaintiff’s case 1.1. Plaintiff’s case is that his late father during his lifetime rented one of the three (3) bedrooms in his house to Defendant pursuant to an oral agreement entered between the parties in 2010 to the effect that Defendant renovates the room and offsets the expenses incurred against rent. Plaintiff alleges that Defendant spent GHS 600.00 and the monthly rent being GHS 5.00. at the time, same expired in 2020. 1.2. Contrary to the agreement Defendant did not vacate the room but on his own accord, sublet the room to another person without the knowledge of Plaintiff and Page 1 of 15 his siblings who have now come into ownership of the property by reason of their father’s death. Plaintiff therefore claims against Defendant as follows: “An Order for ejection and recovery of possession of one bedroom rented to the defendant in a house known as House Number BB0468, Babato. The ejection has become necessary due to the fact that the defendant/tenant has unlawfully sublet the said room to another person without the knowledge of the plaintiffs.” Defendant’s case 1.3. In the alternative, Defendant who accuses Plaintiff of not having sufficient knowledge of the transaction between him and Plaintiff’s father is that before Plaintiff's late father died he had a very cordial relationship with him regarding him as a godfather, so in or around 2007 Defendant approached Plaintiff's father and asked for permission to put up a storeroom on a vacant land in front of his house at Babato to sell in it for his survival. 1.4. According to Defendant, Plaintiff's late father told him that the vacant land he requested was unpossessed and belonging to the government because high tension cables of the Volta River Authority hang over it. Plaintiff's father allowed him to build the disputed storeroom so that he could extend the benefit he would receive from the shop to him as a godfather. According to Defendant he built the disputed store building from scratch, completing it in 2009 and subsequently started operation in it the same year. Defendant contends that there was | no agreement in respect of the disputed building between he and Plaintiff's late father who made it clear to him that he did not own the piece of land on which it was. Page 2 of 15 1.5. Defendant’s case is that he enjoyed quiet and undisturbed possession and occupation of the disputed building during the lifetime of Plaintiff's late father and did not pay any money in the form of tribute, royalty or rent to any individual in respect of the disputed building during and after the death of Plaintiff's father, after whose death Plaintiff started laying adverse claim to the disputed building as being part of his late father's estate. 1.6. Defendant’s contention is that the disputed building does not form part of Plaintiff’s father’s estate estate, so the matter went before the Chief of Babato who determined that if Plaintiff wanted the disputed store building because it is situate in front of his late father's house, he should compensate Defendant with money to use same to find a different shop elsewhere. According to Defendant, Plaintiff's sister who was with him at the chief's palace proposed an amount of GHS 1000.00 as compensation to him, but he rejected and requested for GHS 2000.00. Parties left the chief's palace and he never heard from Plaintiff or any of his siblings until he received summons concerning the building. 2. BURDEN AND STANDARD OF PROOF 2.1. Parties in civil suits ordinarily succeed on the strength of their own case and not by a reliance on the weaknesses in that of their opponent. Section 10(1) of the Evidence Act, 1975 (NRCD 323) provides thus: “For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court”. 2.2. Section 11(1) of NRCD 323 explains the burden on a party to produce evidence in a in a suit to mean the obligation of a party to introduce sufficient evidence to avoid a Page 3 of 15 ruling against him on an issue. In Ackah v. Pergah Transport Ltd. & ORS (2010) SCGLR 728, the Supreme Court explained this evidential burden in the following words: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim will fail. The method of producing evidence is varied and it includes the testimonies of parties and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non- existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(2) and (4) of the Evidence Act, 1975 (NRCD 323)” 2.3. In Ishack v. Praba (2007) 12 MLRG 172 at 181 which is still expressive of the current position of the law, the Court further explained this burden thus: “The general principle of law is that it is the duty of a plaintiff to prove his case, ie. he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defendant to lead sufficient evidence to tip the scales in his favour when on a particular issue Plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this, he wins, if not he loses on that particular issue.” Page 4 of 15 2.4. In Memuna Moudy and Others v Antwi [2003-2004] 2 SCGLR 967, the Supreme Court speaking through Wood JSC (as she then was) restated the settled rule, that where a fact alleged by a party pleading it is denied by the opponent, an issue arises for determination and the party who has introduced the denied fact has the burden of proving same. Defendant in this suit denies Plaintiff’s claim and foists Plaintiff with a duty to furnish the court with sufficient evidence to justify a ruling favourable to him on the issue. 2.5. To discharge the evidential burden on him, Plaintiff testified himself and called a witness in proof and corroboration of his claims. Plaintiff’s testimony was that after renting the room to Defendant his father called and informed him and asked him to see his maternal uncle Kwaku Kani (PW1) for further details about the agreement he had with Defendant since his father was weak at the time. He went to see went to see his uncle as instructed and it was explained to him by his uncle that he was present when Plaintiff’s father agreed with Defendant for Defendant to renovate one side of the room's wall which was broken and offset the cost against rent. According to Plaintiff, his uncle explained to him that as part of the agreement, Plaintiff’s father agreed with Defendant that the rent per month was GHS 5.00 and Defendant after the renovation estimated his expenditure at GHS 600.00. This expenditure covered ten (10) years of the GHS 5.00 monthly rent. 2.6. Plaintiff’s father died in or around 2016 before the expiration of the agreed in 2020 after which Defendant did not vacate the room or renegotiate new terms but sublet the room to another person without the notice of any of the family members Plaintiff’s father. 2.7. PW1, Plaintiff’s witness and his uncle testified that in 2009, Plaintiff’s late father owned a mud house at Babato in which PW1’s office and the disputed rooms were contained. This was his office as the manager of the Ghana cooperative Distillers Page 5 of 15 Association at Babato. According to PW1, Plaintiff's late father was his brother in- law who although not staying at Babato at the time lived in the house of the disputed room whenerver he visited Babato. 2.8. PW1’s testimony is that he was witness to the agreement between Plaintiff’s father and Defendant for the latter to renovate the broken wall of the room and used it as a store to sell cell phone covers to which the former agreed. Defendant according to PW1 was asked to renovate the wall and submit his expenditure on the renovation to PW1 for Plaintiff’s father’s attention on his next visit. By December 2009, Defendant finished the renovation but failed to submit the documented expenditure rather gaving a verbal expenditure of GHS 600.00. 2.9. According to PW1, the agreement for the rent of GHS 5.00 per month for 10 years to defray all expenditure the Defendant incurred in the renovation of the wall was made in his presence when Plaintiff’s father came. It was also agreed that after the 10 year rent period, the landlord will assume total ownership of the room and Defendant would have no more interest in same until a new agreement was reached. It was also agreed that should the landlord's children later want to build a cement house on the land before the expiration of the agreed 10-year rent period, both parties would sit to reconcile accounts and compensate Defendant if it became necessary. According to PW1, Defendant after the agreement went into the room in 2010. 2.10. Defendant in his defence testified, but never procured the attendance of his witness whose witness statement he filed, so the suit proceeded without her evidence. I have drawn my mind to Ebusuapanyin James Boye Ferguson (Substituted by Afua Amerley) v. I. K. Mbeah and 2 Others, Civil Appeal No. J4/61/2017, dated 11th July 2018, S.C. (Unreported), where Appau JSC stated thus: Page 6 of 15 “The standard of proof in civil cases, including land, is one on the preponderance of probabilities - {See sections 11 (4) and 12 of the Evidence Act, 1975 [NRCD 323]”. 2.11. I am also guided by Adwubeng v. Domfe [1996-97] SCGLR 660, where the Supreme Court held at holding (3) thus: “Sections 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323)... have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities – no exceptions were made. In the light of the provisions of the Evidence Decree, 1975, cases which had held that proof in titles to land required proof beyond reasonable doubt no longer represented the present state of the law...” 2.12. Both sides have attempted to charge a dead person, that is Plaintiff’s father with conduct alleged by them, so in that regard I view the evidence of both sides with suspicion. In the cases of Akufo-Addo v. Catheline [1992] 1 GLR 377 and Rukayatu Usumanu v. Zongo Naa Kun-Gari & 16 Ors (2021) JELR 107957 (SC) the Courts cautioned that in evaluating evidence led against dead persons, the law enjoins the Court to exercise great care and examine the evidence with suspicion. This principle was discussed in Garnett, In re; Gandy v. Macauly (1885) 31 Ch D 1 at 9, CA by Brett MR as follows: “The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive, he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted, and the mind of any judge who hears it ought to be, first of all in a state of suspicion.” Page 7 of 15 2.13. In Mondial Veneer (Gh) Ltd. v. Amuah Gyebu XV [2011] 1 SCGLR 466 also, the Supreme court stated this principle citing Garnett with approval and explained its importance per Georgina Wood CJ (as she then was) thus: “Our jurisprudence has examined the approach courts must adopt when evaluating charges and assertions made against dead persons. We have firmly established the principle that real danger lies in accepting without questioning or close scrutiny, claims against a dead person. The caution that such claims must be weighed carefully is based on plain good sense and has consistently been applied in a number of cases including Fosua & Adu Poku v. Dufie (Decd) Adu Poku Mensah [2009] SCGLR 310, In Re Krah (Decd); Yankyeraah v. Osei- Tutu [1989-90] 1 GLR 638, SC and Tabiri [1987-88] 1 GLR 360, SC.” Whether the disputed room belonged to Plaintiff’s father 2.14. The settled rule of law as applied in Takoradi Flour Mills v Samir Faris1 by Ansah JSC at page 890 referring to Tutu v Gogo, Civil Appeal No 25/67, dated 28 April 1969, Court of Appeal, unreported; digested in (1969) CC 76, by Ollenu JA is that: “in law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.” 2.15. Accordingly, the facts that stand uncontroverted include that Defendant has let the room to a third party, that the house referred to by Plaintiff and PW1 is on the same land as the disputed room, and that PW1 operated his office from one of the rooms in Plaintiff’s father’s house. None of these facts were challenged by Defendant under cross-examination and he did not lead any contrary evidence. It 1 [2005-2006] SCGLR 882 Page 8 of 15 is considered an admission even if I indulge Defendant as a lay person and do not hold his failure to cross-examine against him. 2.16. I have after considering all the evidence on record and the events of cross- examination concluded that the issue of ownership of the disputed room ought to be considered oath against oath. In Oxyair Ltd & Darko v. Wood [2005-2006] SCGLR 1057, it was held that in an oath against oath situation, it is the duty of the trial court, or any court to consider the evidence adduced to form a judgment as to what version of events was more credible. In an oath against an oath situation, the determination of a crucial fact involves judicial choice of belief based on the comparative credibility of opposing parties and their witnesses. 2.17. Additionally, in Lutterodt v. Commissioner of Police [1963]2 GLR 429, SC, it was held that in an oath against oath situation, it is incumbent upon the trial court to examine the evidence before preferring one to the other and give reasons for the preference. The trial judge cannot be faulted on his decision once it is based on the evidence on record. Her Ladyship Afia Serwaa Asare-Botwe (Mrs.) relied on these rules in Lydia Tetteh v. Madam Akweley & Anor (2019) JELR 107108 (HC). 2.18. At the end of cross-examination of Plaintiff and his witness, I have in view of the evidence on record settled that sufficient evidence was led to shift the burden of proof unto Defendant. The test of satisfactoriness or sufficiency of evidence is the degree of belief that the party creates in the mind of the court concerning facts in issue by the evidence, so that at the end of assessment of the entire record, a reasonable mind should come to conclusion that the existence of a fact in issue is more reasonably probable than its non-existence. The Courts applied this standard in Ackah v. Pergah Transport Ltd (supra) 728, 731 and Faibi v. State Hotels Corp. [1968] 471 (holding 1). Page 9 of 15 2.19. Again, Her Ladyship Mrs. Wood, as she then was, in Yeboah vrs. Amofa (1997- 1998) 1 GLR 674 at page 683 explained that in the light of sections 11(1) and (4) and 12 of NRCD 323 sufficient evidence is such evidence as the circumstances of the case would permit, so that on all the evidence a reasonable mind would conclude on the probability of the existence rather than the non-existence of the fact. Sufficiency of evidence is as explained by the court is a question of fact determinable on the peculiar facts of each case, “So that what constitutes sufficient evidence in case A may not necessarily be sufficient evidence in case B”. When this is satisfied, the burden initially on Plaintiff is shifted unto Defendant as provided under Section 17 of NRCD 323. 2.20. To start with, Defendant admits in his evidence and in his cross-examination of Plaintiff and PW1, that it was Plaintiff’s father who gave him the land on which the disputed room is situate to build. This was what transpired while Plaintiff was under cross-examination: Q: I put it to you that I own the store and this is known to everybody in the town including the chief because your father gave me the plot to build the store so that I can get something to eat? A: Not true. And this was what transpired while PW1 was under cross-examination by Defendant: Page 10 of 15 Q: I put it to you that you are not a witness of truth because it was plaintiff’s father who gave me the land to build claiming that it is government land so that when he returns from the village he can also find something to eat? A: Whether the land belongs to the government or not, for me it was the room which plaintiff’s father gave to defendant to repair the broken wall. It was not land that he gave to defendant. It was a room. This is what I served as witness for. 2.21. Defendant also admits that the disputed room is attached to the house that originally belonged to Plaintiff’s father. Defendant also contradicts himself by alleging under cross-examination that the property was gifted to him for which he gave thanks. Q: Did you give any thanks according to Akan custom when the gift was given to you? A: I offered thanks. Q: What items did you give him as thanks? A: I gave money and made my brother to also thank him on my behalf. 2.22. I do not see how Plaintiff’s father whom Defendant alleges is not the owner of the disputed land could accept thanks for property he gave as a gift if he admitted not being the owner thereof. At the very least, if I consider this as a mere afterthought to enhance the appearance of Defendant’s case, then it should affect his credibility Page 11 of 15 as a witness. This to me is especially true when Defendant doubled down on this new contradiction to his case when he was further cross-examined on it thus: Q: Did your brother go to the village to offer thanks to my father or my father came to Babator and he offered the thanks there? A: It was at Babator. Q: So it was at Babator that only your brother and father stood to exchange the thanksgiving? A: It was plaintiff’s father’s friend who he visited at Babator after returning from the village that we went to and offered the thanks. The man is dead otherwise I would have called him as a witness. 2.23. These inconsistencies are of such a nature that I cannot gloss over since they touch on the main issue in contention. Concerning inconsistencies of such nature, Lamptey JA. (As he then was) Obeng v. Bempomaa [1992-93] 3 GBR p 1029 had this to say on the matter: “Inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The conflict in the evidence of Plaintiff and his witnesses weakened the merit of his case and proved fatal to his claim.” 2.24. However, not every inconsistency makes a witness a stranger to truth as held in Apaloo v. The Republic (1975) 1 GLR 156 at 173. Conflicts and inconsistencies in evidence should they matter to the judgment, should relate to material evidence, that is evidence related to the issues in contention. It is for this reason also, that in Page 12 of 15 The Republic v. Adekura [1984-86] 2 GLR 345, CA, it was stated inter alia, that evidence offered to prove a matter not in issue or not probative of a matter in issue is immaterial and conflicts in such evidence can have no relevant bearing on the judgment. 2.25. In reaching my conclusion, I have been mindful of Atadi v. Ladjekpo (1981) GLR p 219, as applied by the Supreme Court in Nii Narh Dowuona II v. Addokwei Tetteh Olewolon & 3 ORS (2006) JELR 68382 (SC), by Wiredu JA (as he then was) thus: “whenever the testimony of a party on a crucial issue was in conflict with the testimony of his own witness on that issue (as in the case of the Respondent in the instant case) it was not open to a trial Court to gloss over such a conflict to make a specific findings on that issue in favour of the party whose case contained the conflicting evidence on the issue ...”. 2.26. Although I cannot consider Defendant a witness for himself for the purpose of treating his inconsistency, I find this reasoning still very useful in the sense that a party himself cannot have a forked tongue on a matter and still obtain favourable judgment from the Court on his prevarication. I do not think that the rule in Atadi v. Ladzekpo (supra) just discussed would apply with any lesser effect in the inconsistency was between a parties own initial and subsequent testimonies. On all the evidence on record, I find Plaintiff’s narration of events more credible and prefer his evidence to that of Defendant. I find as a fact therefore, that the disputed room belonged originally to Plaintiff’s father and now to Plaintiff and his siblings. 2.27. In Hanna Assi (No 2) v Gihoc (No 2) [2007-2008] 1 SCGLR 16 the Supreme Court held that the Courts have power to grant all reliefs that flow logically from the Page 13 of 15 established claims of the party. A. M. DORDZIE JA (as she then was) In George Lamptey v. Meklloyds Co. Ltd and Theophilus Ohene Poku (2017) JELR 63977 (CA) said of the manner of determining reliefs by the Courts, which it is my intention to apply as follows: “… I must say that case law in recent times has demonstrated that the courts have turned away from strict adherence to considering only reliefs endorsed on writs of Summons. The courts now look at the totality of the endorsement on the writ of summons, the pleadings and the evidence adduced before the court to grant the appropriate reliefs the circumstance of each case demands.” 2.28. It is trite that the denial of a landlord’s title is a sufficient ground for the ejection of a tenant, so I will not belabour the point except to say that the third party who has been let into the room without Plaintiff and his siblings’ consent as admitted, may have laboured under the false impression of Defendant’s absolute ownership of same. They ought at the very least if this court will be fair, to have the opportunity to attorn tenancy to the rightful owners. CONCLUSION In conclusion, not only has Defendant denied the title of Plaintiff and his siblings’ and by extension their father, but he has set up a rival claim to the property in dispute which I have found that he is entirely not entitled to. I must commend Plaintiff for their exercise of restraint and not resorting to self-help. Plaintiff’s action succeeds and it is ordered that: a. any third party currently in occupation of the disputed room at the House numbered BB0468, Babato be ejected and for Plaintiff to recover possession of the said property, Page 14 of 15 save for the prompt attornment of tenancy on terms acceptable to Plaintiff and his siblings within fourteen (14) days. b. I assess Plaintiff’s costs at GHS 2000.00 with interest at the statutory rate of 27.9 % per annum from judgment till final payment. SGD. KWAME ADJEI MANU ESQ. (DISTRICT MAGISTRATE) Parties present (unrepresented) Page 15 of 15