OKOH VRS NYARKO (BR.KSA11/03/2022) [2024] GHADC 267 (9 August 2024)

IN THE DISTRICT COURT, KENYASI HELD ON FRIDAY THE 9TH DAY OF AUGUST, 2024 BEFORE HIS WORSHIP CLEMENT KWASI ASOMAH AS MAGISTRATE SUIT NO. BR.KSA11/03/2022 OKOH SAMUEL AKA KWABENA OKOH PER HIS ATTORNEY KWAME OKOH ASAMOAH SUNING FOR HIMSELF AND ON BEHALF OF OYOKOH FAMILY OF KENYASI NO.1 PLAINTIFF VRS AKOSUA NYARKO OF KENYASI NO. 1 DEFENDANT JUDGMENT Plaintiff on the 07/10/201 was issued out of the Registry of this Court a writ of civil summons claiming the following reliefs. 1) Declaration of title and recovery of possession of all that 13 bed – room house with house No. K.O 25.situats at Odumasi – Kenyasi No. 1which said house the defendant is laying adverse claim. 2) Any other orders the court may deem fit to make. To these reliefs the defendant denies liability and counter claimed as follows: 1. A declaration that all that thirteen (13) bed –room house with house No. K.O. 25 situated at Odumase – Kenyasi No. 1 is a sole property of the late Adwoa Yaawa’s family and for recovery of possession. 2. An injunction order to restrain the plaintiff his agents or assigns from continuing making claim of ownership of the disputed house. 1 3. Cost including legal cost. 4. Any further order(s) or other reliefs that the court may deem fit to make In view of the counter claim the issues were joined between the parties. As I proceed to consider the facts and issues in the case, it is appropriate to state the rule that in a civil of a case like the instant one, a party wins on the “preponderance of probabilities”. In ADWUBENG – V. DOMFEH (1996/97) SCGLR 660 the supreme court was emphatic that SS 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 of preponderance of probabilities and that no exceptions were made “preponderance of probabilities” has been statutorily defined in S. 12 (2) of NRCD 323 to mean “that degree of certainly of behalf 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 that it’s non -existence ”. THE PLAINTIFF’S CASE According to the plaintiff he is the customary successor of the late Op. Kwabena Oyoko family of Kenyasi No.1. Plaintiff stated that the house which is the subject matter of the instant suit with House No. K.O 25situate at Odumase, Kenyasi No, 1 was originally acquired by the late Op. Kwabena Okoh the plaintiff’s uncle who he was in named after. It is the plaintiff’s care that the defendant is a grand-step daughter to the late Op. Kwabena Okoh who through her grandmother Adwoa Yaawa a.k.a Yaaba had the chance to live in the disputed house but now laying adverse claim the plaintiff contended that the house in dispute is one of the numerous property Op. Kwabena Okoh acquired during his life time. According to the Plaintiff Adwoa Yaawa was initially married to Osei Kwadwo who was an uncle of Op. Kwabena Okoh who upon succeeding to his said uncle was permitted to marry his uncle’s wife Adwoa Yaawa. That Op. Kwabena Okoh subsequently got married to other two woman namely: Akosua Donkor and Ama Saabour who were both indigenes of Kenyasi plaintiff testified further that when Op. Okoh built the house in dispute 2 Adwoa Yaawa) his uncle’s nieces (Akosua Addai Yaa Bio, Yaa Ahenkan, Ama Agyewaa were all permitted to live in the said house. That Adwoa Agyeiwaa the defendant’s mother was a step daughter to Op. Kwabena Okoh, Adwoa Yaawa had already given birth to her before she came to marry Op. Kwabena Okoh and that was the reason Ama Agyeiwaa got the chance to live in that house ie by virtue of the fact that her mother Adwoa Yaawa was married to Op. Kwabena Okoh. Plaintiff stated the Adwoa Yaawa predeceased Op. Kwabena Okoh and after her demise the family members of Op. Okoh continued to live in the disputed house and when Op. Kwanbena Okoh passed on, on the 10th day of August, 1983 his customary successor and his brother were granted letters of Administration by Kumasi High Court in Kumasi to enable them administer the estate of Op. Okoh which said estate included the house in dispute. The photocopies of the L.A and the Certificate were admitted in evidence as exhibits B and C respectively. Plaintiff said the house in dispute has remained a family property as same has been maintained and protected by Op. Kwabena Okoh’s family and have been in effective occupation and possession since 1986. When letter of Administration were granted to the plaintiff and his family. The Plaintiff vehemently denied that the house in dispute is a bona fide property of Adwoa Yaawa and that it is never correct that the defendant’s family has been maintaining the house. He also denied that the defendant’s family has constructed a fence wall on the house about twenty years ago. He also denied that Op. Kwabena Okoh pleaded with Adwoa Yaawa to permit his family members to live in the house in dispute. PW1, Kwasi Owusu’s evidence was that the house in dispute was built by Op. Kwabena Okoh. According to PW1 he was one of the people who assisted in conveying the sawn boards used to roof the house from the bush and that the roofing 3 was done by Op. Kwabena Okoh himself because he was a carpenter. Upon completion, PW said Op. Kwabena Okoh and some family member lived in the house. He stated that Adwoa Yaaba was married to Op. Kwabena Okoh so by that virtue she and her daughter Ama Agyawaa (Defendant’s) mother lived in the said house. PW1 concluded that the disputed house has been a family house since time immemorial suffice it to say that the plaintiff closed his case affer the evidence of PW1. THE DEFENDANT’S EVIDENCE The Defendant testified and called two witnesses According to the Defendant the house in disputed was built by her grandmother Adwoa Yaawa who was a prominent baker at Kenyasi. The Defendant testified that upon completion of the house Adwoa Yaawah moved in with her children and grandchildren and her husband Op. Kwabena Okoh also moved in. Defendant continued that later when the children of Adwoa Yaawa had reached maturity and left Kenyasi to start life of their own Op. Kwabna Okoh pleaded with Adwoa Yaawa to permit some of his family members to join them in the house in dispute because they were fighting over limited accommodation in house number NT16 which said request Adwoa Yaawa granted so some of his family members came to live in the house in dispute as mere licensees Defendant testified further that besides her grandmother Op. Kwabena Okoh married 4 other woman but none of them lived in the disputed house because they knew same to be a self – acquired property of their rival madam Adwoa Yaawa. The defendant said the customary successor of Op. Kwabena Okoh, Joseph Kwabena Okoh at all material times recognized Adwoa Yaawa as the owner of the house in dispute and that it is never true that plaintiff’s family has being in charge of the house during the after the demise of Okoh and his wife’s Adwoa Yaawa. According to the Defendant to the best of her knowledge no letters of administration was acquired or secured by the plaintiff respect of Op. Okoh’s estate which included the 4 disputed house and yes if same was procured then it was fraudulently acquired without notice to her family. It is further the case of the Defendant that her family been maintaining the disputed house as well as paying all the property rates till date without any resistance from the plaintiff’s family and there had been further improvement in the house by the defendant’s family including digging of a well, fence wall and cementing but renovation and in all these the plaintiff‘s family did not resist. That at a point when misunderstanding ensued between herself (Defendant) and Akosua Nyanta and children on the other side her late mother told them in presence of Op. Kofi Denteh and Op. Darbo that the house belongs to her mother so they should leave for their family house but they pleaded for clemency and promised to be of good behavior so they were allowed to continue to live there. Defendant stated that the issue of ownership between Defendant’s family and the family of the plaintiff went before the Queen mother of Kenyasi No. 1 Nana Adutwumwaa and her elders and the decision went in favour of the defendant’s family. Defendant concluded that subsequent to the issue before Nana Adutwumwaa she summoned the plaintiff and his family before CHRAJ Commission on Human Rights and Administrative Justice in respect of the disputed house but they refused to honor the invitation only to initiate the instant action. The Defendant maintained under cross examination that the house in dispute was built by her grandmother and that the family members of Op. Okoh were mere licensees. DW1 Op. Denteh’s evidence was that some years back he and Kwabena Dormaa and Badu Bonsu were asked to settle sanitation issues between the Defendant and Akosua Nyanta on the disputed house. According to PW1 at settlement Ama Agyeiwaa declared 5 in the presence of all the parties including Yaa Ahenkan and Yaa Bio that the disputed house belongs to her mother and nobody challenged her assertion. He concluded that because the parties did not co-operate they could not settle the matter DW1 admitted under cross examination that the issue that came before them was on sanitation but not ownership of the disputed house. DW2 Op. Badu Bonsu testified that he was one of the elders who sat on the sanitation issue between the Defendant’s mother and Ama Agyeiwaa and Akosua Nyanta and her children on one hand. DW2 said that at the settlement Ama Agyeiwaa told Akosua Nyanta and her children that the house in dispute belongs to her mother Adwoa Yaawah and that Op. Okoh only assisted her mother to build for herself and children and according to DW2 nobody challenged her when she said this. DW2 added that since time immemorial and even at the time Op. Okoh was alive the house in dispute has always been referred to as Maame Yaawa’s house. He concluded that due to insults on one another the matter of sanitation in the house could not be resolved. The Defendant also closed her case after the evidence of DW2. ISSUES The following issue arose for determination by this court: 1) Whether or not the house in dispute was the property of the late Op. Kwabena Okoh and same has become a family property upon his demise. 2) Whether or not the Defendant has capacity to counter claim. 3) Whether or not the plaintiff is entitled to his claim. 4) Whether or not the Defendant is entitled to her counter claim. NOW THE ANALYSIS OF THE ISSUES Issue one – whether or not the house in dispute was the property of the late Op. Kwabena Okoh and same has become a family property upon his demise. It is the case of the 6 plaintiff that per the pieces of evidence they have adduced and the document tendered in court, the house in dispute is the property of Op. Kwabena Okoh and same has become a family property considering the fact that he died in 1983 when PNDCL 111 has not been promulgated. The Defendant vehemently denied this piece of evidence by the plaintiff and contended that the said house was the property of her late grandmother Adwoa Yaawa so same has become their upon her death. The question is whose story should the court believe? The principle of the law with respect to proof in all civil actions is that he who alleges assumes the onus of proof. See the case of ADWUBENG VS. DOMFEH (1968) GLR 471. Section 11 (1) of the evidence Decree 1975, NRCD 323 enacts: “For the purpose of this the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. See the case of ACKAH V. PERGAH TRANSPORT LTD & OTHERS [2010] SGLR 728 at 736. The Supreme Court speaking through Adinyira JSC stated that it is a basic principle on the law of 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 may fail. The method of producing evidence is varied and it included the testimonies of the party and material witnesse’s 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 count or tribunal of facts such as jury. It is worthy of note that the burden of proof is not static. It shifts. See section 14 of the evidence decree, NRCD 323 which enacts, “Except as otherwise provided by law, unless and until it is shifted a panty has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. 7 In the instant case since it is the plaintiff who is asserting that the house in dispute was the property of Opanin Kwabena Okoh, assumed the onus of proof. In his quest to discharge the legal burden on him he called PW1 Op. Kwasi Owusu as a witness who testified that he assisted Op. Okoh to convey sawn wood from the bush for roofing the house in dispute. Plaintiff also relied on exhibits B and C the application for letters of administration and the certificate respectively and added that the family of Op. Okoh has exercised act of ownership since. The defendant in a rebutted contended that the said home was the property of her late grandmother. She denied that notices were pasted on the house in dispute and that the members of Okoh family were permitted to live in the house by her grandmother. As I have indicated in this judgment since the defendant has denied the plaintiff’s assertion that notices were pasted prior to the acquisition of the letters of administration, the Plaintiff assumed the onus to have adduced sufficient evidence to prove that notices were in deed pasted on the said house. Surprisingly the plaintiff did not do enough to prove that claim. He neither called the registrar of the court nor were brought documents from the said High court to support his claim that notices posted. There was also no evidence on record to show that the Registrar was not available to be called as a witness and there was no evidence on record to show that such records were not available at the High Court upon a search. The plaintiff could also not call any witness to corroborate this assertion. It is pertinent of note that the pasting of notices when it comes to letters of administration is very important because it enables interested parties to caveat failing which they will be estopped thereafter to raise any concern. It is also important to note that the evidence of PW1 in my view could not help plaintiff to prove that the house belonged to Op. Okoh. The reason being that he carried boards from the bush for the roofing of the house did 8 not mean that he knew the owner of the house. Was it not probable that Op. Okoh was just helping his wife Adwoa Yaawa as the defendant has indicated that Op. Okoh assisted his wife to put up the house. Beside the fact that he carried the board for Op. Okoh he could not give any further evidence to support that the house was built by Op. Okoh. He could therefore not help in the determination of ownership of the house, as far as his evidence was concerned. Plaintiff also averred that after the demise of Op. Okoh the Administrator of stool lands was writing demand notices to Yaa Ahenkan who was a relative of Op. Okoh and rent demand notices were also written to the same Yaa Ahenkan. Counsel for plaintiff in his written address to the court sought to use these notices as proof of ownership of the house at one breath and in another instance when the defendant tendered the receipts paid in her mother’s name counsel them upheld the principle that payment of property rates are not conclusive evidence of ownership of a property. By that virtue, I cannot conclude in the instant case that because property rates and rent have been paid by Yaa Ahenkan meant that the house belonged to Op. Okoh as the defendant also said it was her grandmother who sent them to make the payments but she did not know they were using their names. Now there is ample evidence on record to show that Op. Okoh had other wives and all of them lived in their respective family houses. Evidence also abounds that none of the children of the other wives of Op. Okoh lived in the house in dispute. The question is why all the other wives of Op. Okoh would live in their respective family houses when their husband has built 13 bedroom house in the very town they live. In my view it confirms that fact that they all knew the house in dispute belonged to their rival and the husband was also aware so he could not move his other wives in that house. In fact in my view this is profound. 9 Now on earth will a typical Akan man build 13 bed bedroom house and place only one wife there and allow there others to live in their respective family houses? This in my view is quite unusual as there was no way the other wives would even agree to this arrangement I am of the view that the house did not belong to Op. Okoh. Similarly, why didn’t the plaintiff and his family protest when the defendant’s mother dug a well cemented the house renovated same and erected a wall? If indeed the Defendant’s family were mere licensees why did the plaintiff’s family looked on whilst these developments were going on if not for a simple reason that the house belonged to Adwoa Yawaa? There is evidence on record to also show that when the Defendant’s mother found out that Yaa Ahenkan was paying the property rate and the rent in her name she went to the authorities and substituted her name and from 2015 till when the present action was instituted about two years ago the plaintiff’s family members who live in the house though mere were aware did not protest. The question is why they didn’t complain if indeed she was laying adverse claim to the house. In my view the irresistible conclusion is that they did not complain because they knew the house belonged to her mother Adwoa Yaawa. Considering the above reasons am of the view that the house in dispute was not the property of Op. Okoh. So same could not become his family’s property. Issue one is accordingly resolved in defendant’s favour. Issue two – whether or not the Defendant has capacity to counter claim. It is the case of the plaintiff that the defendant lacks capacity to counter claim because she is not the head of family of Adwoa Yaawa so she could not sue for the family. The defendant disagreed with the plaintiff and in a rebuttal indicated that she has the capacity to protect her grandmother’s property being the one left behind. 10 As counsel for plaintiff rightly indicated in his address the issue of capacity is a fundamental and crucial matter and can be raised at any time. It is however, worthy of note that the one who alleges that another is not the head of family has the onus to prove that assertion and that is the principle. In the instant case there is nowhere in the proceedings did the plaintiff raise the issue of capacity for the Defendant to either deny or admit. Counsel only raised the issue in his written address so no evidence has been adduced to establish that the defendant is neither the head of Adwoa Yaawa’s family nor the customary successor and by that virtue she is not clothed with the authority to counter claim. The question is on what basis is the plaintiff concluding that the Defendant lacks capacity to counter claim? I am of the view that the Court cannot make a determination on an issue which was not raised during the trial in any case it was the plaintiff who sued the defendant so if he knew he was not the right person to sue why did he bring her to court?. The defendant did not claim ownership of the house. Her counter claim is that same belonged to her grandmother, I am of the view that the plaintiff has not led any evidence to show that the defendant lacks capacity. Issue two is resolved in favour of the Defendant. Issue three - whether or not the plaintiff is entitled to his claim I am satisfied on the preponderance of probabilities that the plaintiff could not adduce sufficient evidence to prove that the hose in dispute was built by Op. Okoh. He only mounted the witness bot and repeated his averment without necessarily provide sufficient proof. The evidence of PW1 the only witness the Plaintiff called in my view was not strong enough to prove that the house belonged to Op. Okoh. The only reason he said the house 11 belonged to Op. Okoh was that he carried some of the boards used to roof the house and nothing else. Payment of bills alone does not determine ownership and this principle is manifested in the instant case because of all the receipts on payment of bills or property rates none of them bears the names of either Op. Okoh or Adwoa Yaawa the two main personalities the parties area claiming title to. The court cannot therefore rely on the payment of property rates to determine ownership. In the instant case as I have already stated since the defendant vehemently dented posting of notice, the plaintiff ought to have adduce sufficient evidence to prove that indeed notice were posted on the house in dispute I am therefore of the view that if letters of administration is procured at the blind side of the interested parties, then they cannot be estopped from assenting their right. In a case such as the instant one, the plaintiff must succeed on the strength of his own case because the weakness of the Defendant case could not avail him see the case of TANOH V. ABBAN – MENSAH and Anor part 1 (1992/93) GBR,308 CA holding 3. I am of the view that the plaintiff could not reach the threshold of preponderance of probabilities as required in cases like the instant one. I therefore have no option but to dismiss plaintiff’s claim. Plaintiff’s claim is accordingly dismissed. Issue four – whether or not the Defendant is entitled to her counter claim. There is ample evidence on record to show that besides Adwoa Yaawa none of the wives of Op. Okoh lived in the house in dispute and that they lived in their respective family houses though there are 13 rooms in that house which could accommodate them all. There is also evidence on record to show that besides the children and grandchildren of Adwoa Yaawa none of the children of the other wives lived in that house. This is profound and in my view the house belonged to Adwoa Yaawa the reason the other wives and their children could not make their way to the house in dispute and a confirmation that the nieces of Op. Okoh lived in the house under Adwoa Yaawa’s express permission. 12 Evidence also abounds that the children and grandchildren of Adwoa Yaawa continued to live in the house even after the demise of Adwoa Yaawa and Op. Okoh and that they have further improved the state of the house by digging a well cementing the compound and erecting a fence wall without any protestation or resistance or complains by the plaintiff or his family members. Evidence also abounds that when the defendant mother detected that the property rates were being paid in the name of niece of Op. Okoh she went and changed it and nether the plaintiff nor the family members in the house complained that she was laying adverse claim. The only irresistible conclusion I can draw in the circumstance is that they all knew and believed that the house in dispute belonged to Adwoa Yaawa and as the evidence reveals the said house is known and referred to by neighbors as maame Yaawa’s house. In my view there is overwhelming evidence on record to show that Op. Okoh assisted his wife Adwoa Yaawa in building the house the defendant herself admitted this, however, that will not suffice for a joint ownership because it is not uncommon to see men helping their wives either financially or any means possible in their quest to acquiring their personal prosperity unless there’s evidence to the contrary. I am satisfied that the probabilities preponderate in favour of the plaintiff. I therefore have no option than to uphold her counter claim the Defendant’s counter claim is accordingly uphold title in the house with Registration number KO 25 particularly described in Defendant counter claim is decreed in her family. The plaintiff, his agents assigns etc and all those claiming through him are perpetually restrained from having anything to do with the said house which may be inconsistent with the family of the Defendants ownership Defendant’s cost is assessed as GH¢4,000.00. 13 ……………… ……………………. H/W CLEMENT KWASI ASOMAH (09/05/2024) 14 15