Siaw v Amakye (A11/56/2022) [2025] GHADC 203 (20 February 2025)

BEFORE HER WORSHIP ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI, MAGISTRATE SITTING AT DISTRICT COURT GBESE, ACCRA ON 20TH DAY OF FEBRUARY, 2025. -------------------------------------------------------------------------------------------------------- SUIT NO. A11/56/2022 PATIENCE NANA AMA SIAW ::: PLAINTIFF VRS. JANET AMAKYE ::: DEFENDANT -------------------------------------------------------------------------------------------------------- Time: 9:19 am. Parties: Present. Legal Representation: Robert Yartey, Esq for Defendant present. JUDGMENT By a Writ of summons and Statement of Claim dated 10th May, 2018 issued by the Plaintiff, the jurisdiction of this court was evoked for the following reliefs; a. Recovery of possession and ejectment Order against Defendant to vacate from Shop No.16 within the premises of Angelina House Complex, Wing No.2, Makola - Accra. b. Cost. The Defendant in turn filed her Statement of Defence dated 8th June, 2018, but did not include a counterclaim. THE CASE OF THE PLAINTIFF 1 | P a g e Plaintiff claims that the building known as Angelina House with the shop the subject matter of the suit was the property of her late father. After all necessary legal processes were concluded, the disputed shop was given to her as she is a beneficiary of her late father’s estate. A letter was subsequently written to the Defendant who is a tenant in the said shop to inform her that she was the new owner and thus everything concerning the shop be directed at her. The said letter is dated 25th January, 1997. Following the delivery of the letter, Plaintiff left the country for the United Kingdom (UK). Upon her return in 2006, she arranged for a meeting with the Defendant but she failed to honour the invitation before the Plaintiff’s return to the UK. Consequently, the Plaintiff caused her Lawyer to write an eviction letter to the Defendant which was eventually served on her on 5th May, 2017 giving her notice of six (6) months to vacate the shop and deliver vacant possession to her which Defendant failed to do resulting in this present action. Defendant has also refused to recognise the Plaintiff as her landlord and has refused to attorn tenancy to her. THE CASE OF THE DEFENDANT The Defendant’s case is that the Plaintiff is not her landlord but one Kwame Agyekum Siaw to whom she pays rent and that the Plaintiff is not entitled to any of her claims. REPLY OF PLAINTIFF The Plaintiff filed a reply on 4th July, 2018 and stated that the said Kwame Agyekum Siaw is one of the Plaintiff’s siblings. The house in question was confiscated by the Government but later restored to the family by the Commission on Human Rights and Administrative Justice (CHRAJ) following a petition by the children of Joshua Kwabena Siaw (Plaintiff’s father). CHRAJ then wrote to all the tenants, including the Defendant of the said house to attorn tenancy to the Plaintiff within seven (7) days. Joseph Appeadu Siaw, the elder brother of the siblings distributed the Shops in Angelina House among all the children of J. K. Siaw including the Plaintiff who wrote to all the tenants including the Defendant notifying them of the new owners. 2 | P a g e Defendant was thus notified that Plaintiff was the new owner of the disputed shop. The said Kwame Agyekum Siaw was also allocated a shop in the Angelina House but greedily took the shop of Kwesi Siaw who subsequently sued him and recovered the shop in the High Court. The disputed shop does not belong to Kwame Agyekum Siaw. ISSUES Whether or not the Plaintiff is the Landlord of the shop in dispute. THE LAW The Burden and Persuasion of Proof Evidence Act 1975 (N. R. C. D. 323) In examining the case put forward by the parties, the court must be circumspect and deal with facts as well as the evidence adduced and most importantly the law. The law that this court will be instructed by are as follows: Section 10 (1) For the purposes of this Act, 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. (b) To establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 (1) For the purposes of this Act, 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. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable 3 | P a g e mind to conclude that the existence of the fact was more probable than its non- existence. Section 12 1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" 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. Section 15 Unless it is shifted, (a) the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue; Section 17 Except as otherwise provided by law, (a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. In applying the above statute, in the case of Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the Supreme Court held: “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 4 | P a g e credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party 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 reasonable than its non-existence.” ANALYSIS AND CONCLUSION The main issue in contention is whether or not the Plaintiff is the landlord of the Defendant. The Plaintiff has always maintained that the shop no.16 at Angelina House which was allocated to her remains hers till date. The Plaintiff adduced evidence from the CHRAJ judgment to the various legal contests that have subsequently followed concerning the allocations of the shops and so on. This matter which on the face of it seemed simple began in 2018, seven (7) years ago. What began as an issue between a landlord and her tenant, from the evidence and the addresses by Counsel, this has escalated into a classic quarrel among siblings as to who owns what. It must be noted that DW1 never asked to join as a party, yet, his name has taken front and centre of the entire suit. From the CHRAJ judgment, Angelina House was de-confiscated and ownership returned to Plaintiff and her other siblings. The property was purchased by her father for his children. Plaintiff being a child of the late J. K. Siaw has also not been in contention. Counsel for Plaintiff states that as a child, she is entitled to a share in the property. DW1 alluded to the fact that at the time the property was purchased, Plaintiff had not been born and therefore she could not have been foreseen as a beneficiary to the property. This came up at the High Court in a case intituled 5 | P a g e Samuel Kwasi Siaw vrs Madam Comfort Boateng and Kwame Agyekum Siaw suit no. IRL/107/08. DW1 was the 2nd Defendant. The court held inter alia that; “I therefore accept the finding of CHRAJ that the Defendant (sic) though not born at the time of the acquisition of the property was covered. Would that all parents who can afford it would think about generations unborn!” In Suit No. GJ/876/2018 dated 26th May, 2020 the High Court delivered its ruling when DW1 attempted to relitigate that matter. The court upheld the plea of res judicata and held that; “… this court must not lose sight of the fact that judgment in suit no. IRL/107/08 was based on a rejection of the claim by 2nd defendant that the plaintiff had no interest in the said disputed property because he was born after the acquisition of same.” According to DW1 had he been in the matter himself and not through his Attorney the outcome would have been different. While I cannot pretend to be a mind reader to state as a fact that indeed had DW1 spoken for himself the outcome would have been different, I can say that the choice to use an Attorney to speak for him was DW1’s choice alone thus the outcome is his cross to bear. To avoid sounding like a broken record, I think it is safe to say, unless and until the High Court judgment is overturned, the Plaintiff is a sibling and she is a beneficiary of Angelina House regardless of whether or not the property was acquired before she was born. The question now is whether the Plaintiff is the landlord of shop no. 16. The Plaintiff exhibited an allocation letter which showed that she had been allocated the said shop as at 1997. The Defendant admitted under cross examination that she had received a letter that stated that the Plaintiff was her landlord. Defendant stated that she was later informed that DW1, and not Plaintiff, was now her landlord. She did not exhibit any evidence to that effect neither did DW1. In the case of Mojolagbe v. Larbi and Others (1959) GLR 190, which found favour in the case of Ackah v Pergah Transport Ltd supra the court held as follows: 6 | P a g e “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist. … “Proof in law is the establishment of facts by proper legal means. 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, or circumstances, 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.” …Therefore, the role of a trial judge “in a civil matter is to determine from the evidence available which of the parties adduced credible and sufficient evidence to tilt in his favour the balance of probabilities on an issue.” (my emphasis) Flowing from this, I find it difficult to conclude in Defendant’s favour that DW1 and not the Plaintiff is her landlord. Counsel for defendant states that the allocation letter does not confer title to Plaintiff. There is also a letter of revocation from Joseph A. Siaw. This, as exhibited by Defendant, is what has taken the allocation from Plaintiff as at 2023. The issue about the rent being paid to Plaintiff did not begin in 2023 when the supposed revocation took place. I say supposed because this has been challenged at the High Court and there is currently an injunction on the said Joseph A Siaw’s revocation of allocations as exhibited by Plaintiff. In any case the revocation did not name DW1 as the new landlord. I observed that the wording of the allocation letter suggests that there was some form of agreement by the siblings by the use of “It has therefore been decided”. The use of the passive language is instructive to show that the decision to allocate was not J. A. Siaw’s alone to make. However, the wording of the revocation letter “… I am from this day forward revoking the said allocation…” seems to suggest that J. A. Siaw took the decision alone. I find that rather mind boggling especially since J. A. Siaw is a part owner of Angelina House as much as his other 7 | P a g e siblings. Since the propriety or otherwise of the revocation is not before me I will not discuss this further. What I will say is that from the evidence on record, it seems the siblings came to a consensus that the shops will be allocated to them and this was done by a letter. Each person who has been allocated a shop has from that time in 2007 been receiving rent from the existing tenant. The only time there has been issues is when DW1 tries to take over someone else’s shop which I find rather unfortunate. Again, the appropriateness of the allocation of the shops has been upheld in suit no. IRL/107/08. The court stated as follows: “The Plaintiff has been able to demonstrate that … he was allocated shop #30… Plaintiff has the capacity or authority to let the said shop and indeed deal with it as he pleases” Since at the time the Plaintiff commenced this suit, the shop in contention was still allocated to the Plaintiff and there is an injunction against any form of revocation by J. A. Siaw, I find that the Plaintiff is the landlord of the shop no. 16 in Angelina House. The Plaintiff’s action succeeds. FINAL ORDERS 1. Defendant is ordered to give up vacant possession from shop no. 16 within the premises of Angelina House Complex Wing No. 2 Makola-Accra within 30 days of this judgment. 2. Costs of GH¢30,000.00 awarded in favour of Plaintiff. (SGD.) H/W. ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) (DISTRICT MAGISTRATE) 8 | P a g e