KWAKU VRS YEBOAH (C11/139/2023) [2024] GHACC 4 (10 January 2024)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON WEDNESDAY, THE 10TH DAY OF JANUARY, 2024, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C11/139/23 EDWARD EDDIE KWAKU ----- PLAINTIFF VRS. JOHN YEBOAH ----- DEFENDANT PLAINTIFF PRESENT DEFENDANT ABSENT SAMUELLA ASAREWAA KWARTENG, ESQ. HOLDING THE BRIEF OF JAMES ENU, ESQ. FOR THE PLAINTIFF PRESENT JUDGMENT FACTS The plaintiff caused a writ of summons to be issued against the defendant on 22nd March 2023 for the following reliefs; (a) A declaration that the plaintiff has acquired the interest of the defendant in House No. 303/N3C2, situate at Community 2, Tema. (b) An order that House No. 303D/N3C2, situate at Community 2, Tema, be transferred by TDC Development Company into the name of the plaintiff. (c) Cost inclusive of legal fees. The plaintiff’s case is that he is a pensioner and resident in Tema and the defendant is also resident in Tema. The plaintiff avers that on the 19th day of February, 2007, the defendant sold his interest in House No. 303D/N3C2, situated at Community 2, Tema to the plaintiff for the sum of Ten Thousand Ghana Cedis (GH₵10.000.00). The 1 plaintiff avers that he made full payment to the defendant and a receipt dated the 19th of February 2007, was executed by the parties. The plaintiff also avers that the defendant executed a statutory declaration dated the 19th day of February 2007, authorising the then Tema Development Corporation, now TDC Development Company Limited, to cause a formal transfer of the property, the subject matter in dispute into the name of the plaintiff. The plaintiff further avers that he also executed a statutory declaration dated the 19th day of February 2007, to the then Tema Development Corporation to effect transfer into his name. The plaintiff avers that notwithstanding the above, the defendant has failed or refused to avail himself to TDC Development Company Limited to take the necessary steps and sign the necessary documentation to effect the transfer into the name of the plaintiff despite several promises and assurances to do so. The plaintiff contends that all efforts to get the defendant to avail himself to execute the transfer documents have proved futile. The defendant was duly served by substituted service when personal service proved futile but the defendant failed to enter an appearance and a defence to the suit. The plaintiff therefore proceeded as if the defendant had entered appearance and obtained interlocutory judgment in default of defence to enable him to lead evidence to prove his claim. The court granted the plaintiff leave to lead evidence to prove his claim and served witness statements and hearing notice by substituted service but again, the defendant failed to appear to participate in the proceedings. LEGAL ISSUE Whether or not the defendant transferred his interest in the property in dispute to the plaintiff. 2 ANALYSIS It is trite learning that in civil cases he who alleges must prove. In the case of Tei & Anor v. CEIBA Intercontinental [2017-2018] 2SCGLR 906 at 919, Pwamang JSC stated as follows: “It must be remembered that the fact that defendant does not appear to contest a case does not mean that the Plaintiff would be granted all that he asked for by the court. The rule in civil cases is that he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the defendant at the trial. The absence of the defendant will aid the plaintiff only where he introduces sufficient evidence to establish a prima facie case of entitlement to his claim.” At the trial, the plaintiff testified in support of his case and tendered documents but called no witnesses. The plaintiff testified that he is a resident of Gbetsile within the Kpone-Katamanso District of the Greater Accra Region. According to the plaintiff, he worked with the Ghana Textiles Printing Limited (GTP) but is presently a pensioner resident at Gbestile. According to the plaintiff, the defendant in this matter was his neighbour at Tema Community 2, and on the 19th day of February 2007, the defendant sold his interest in house No. 303D/N3C2, situate at Community 2, Tema to him at a cost of Ten Million Cedis (GH₵10,000.000.00) which he duly paid for in full. In support, the plaintiff tendered in evidence, Exhibit “A”, a copy of the receipt issued by the defendant to the plaintiff. Further to that, the defendant executed a Statutory Declaration dated the 19th day of February 2007, requesting the now TDC Company Limited to transfer the property into the name of the plaintiff. In support, the plaintiff tendered in evidence Exhibit “B”, a copy of the said Statutory Declaration. The plaintiff further testified that the defendant in the same year of 2007, also applied to the then Director of Estates of TDC to transfer ownership of the property to the plaintiff herein but same is yet to be done. The plaintiff tendered in evidence a copy of the said letter admitted and marked as Exhibit “C”. After the defendant’s letter, he 3 also wrote to the TDC requesting for the transfer of the instant property into his name but he has not received a reply or any action from the TDC, as evidenced Exhibit “D”, a copy of the said letter. The plaintiff states that he followed up on the transfer at the TDC, and he was informed that the defendant was asked to come and endorse the requisite documents regarding the transfer but the defendant has failed or refused to avail himself at the offices of TDC to endorse the requisite documents for the transfer to be effected into his name. The defendant was duly served but failed to appear to contest the suit. In the case of Ghana Consolidated Diamonds Ltd. v. Tantco and Ors [2001-2002] 2 GLR 150, the court held in its holding 4 that: “A party who was aware of the hearing of a case but chose to stay away out of his own decision could not, if the judgment went against him, complain that he was not given a hearing. He could only appeal on the merits of the judgment. Accordingly, since the defendants chose not to take any further part in the proceedings after their stay of proceedings had been refused and the trial court went on with the action and entered judgment for the plaintiffs, the defendant could not complain that they had been denied a hearing.” From the receipt admitted and marked as Exhibit “A”, signed by both the plaintiff and the defendant dated 19th February 2007, the defendant sold his interest in the house known as Room “D” of House No. 303/N3C2, to the plaintiff at a cost of Ten Million Cedis (10, 000,000 old cedis) of which the receipt was to acknowledge payment by the plaintiff for the property. Indeed, by a Statutory Declaration admitted and marked as Exhibit “B”, the defendant declared that he had transferred his interest in the property in issue to the plaintiff and implored the Director of Estates of the TDC Company Ltd. to recognise the plaintiff as the legal owner. This declaration, admitted without challenge, is an admission against the defendant’s interest in the property. The defendant, by a letter dated the same 19th February 2007, admitted and marked as 4 Exhibit “C”, applied to the Director of Estates of TDC to transfer the property in the name of the plaintiff. Based on this request by the defendant, the plaintiff also in Exhibit “D”, applied for the property in dispute to be transferred into his name. Additionally, the plaintiff founded his claim to the property in dispute on possessory title when he testified that he had been in possession of the property in dispute since the year 2007. Under section 48 of the Evidence Act, 1975(NRCD 323), a thing in the possession or a person who exercises acts of possession over a thing is presumed to be the owner. In the case of Akyea-Djamson v. Duagbor and Others [1989-90] 1 GLR 223, at page 234, the Supreme Court affirmed the oft-cited expression in the case of De La Rue v. Hernu, Peron & Stockwell Ltd [1936] 2. K.B. 164 at 170 where Greer L. J stated: “A person in possession has “nine-tenth of the law” in his favour in regard to ownership with the outstanding one-tenth reposed in any person aspiring to oust, to make out his claim as to his entitlement to be declared the owners.” The plaintiff testified without challenge that he has been in possession of the instant property since 2007 without any interference, objections, or challenge from anyone to date, and he has also been paying the ground rent to TDC although the receipts are still issued in the name of the defendant. Copies of the receipts were admitted and marked as Exhibits “E” and “F”. The plaintiff states that these facts notwithstanding, attempts at getting the defendant to avail himself to execute the transfer documents have proved unsuccessful. From the receipts of payment of ground rent, Exhibits “E” and “F”, ground rent has been paid on the property up to 8th September 2023. On the totality of the evidence led by the plaintiff in support of his case, in the form of the oral testimony of the plaintiff, documentary evidence coupled with the acts of possession exercised by the plaintiff on the property in issue, I find that the plaintiff 5 proved his case on a preponderance of probabilities that the defendant, by the sale, transferred his interest in the property to him, commenced the legal processes of transfer of the property into the plaintiff’s name before the process stalled. I therefore hold that the plaintiff is entitled to the reliefs that he claims from this court. CONCLUSION In conclusion, I hold that the plaintiff proved his claim against the defendant on a balance of probabilities. I accordingly enter judgment for the plaintiff on the reliefs endorsed on the writ of summons as follows; 1. I hereby declare that the plaintiff has acquired the interest of the defendant in House No. 303D/N3C2, situate at Community 2, Tema. 2. I hereby Order that TDC Company Ltd. transfers property No. 303D/N3C2, situate at Community 2, Tema, be transferred into the name of the plaintiff. 3. I award costs of Five Thousand Ghana Cedis (GH₵5,000) against the defendant in favour of the plaintiff. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) SGD. 6