ADOMA & ANOR V MENSAH (C1/240/21) [2024] GHAHC 418 (4 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ASHANTI REGION KUMASI HELD ON FRIDAY THE 4TH DAY OF DECEMBER, 2024 BEFOREHERLADYSHIPHANNAHTAYLOR(MRS)J. SUITNO:C1/240/21 1. ABENAADOMA …PLAINTIFFS 2. ABENAATAA H/NO.FEI,FEYIASE–KUMASI VRS. RICHARDOWUSUMENSAH …DEFENDANT ASUYEBOAH-KUMASI _____________________________________________________ JUDGMENT _____________________________________________________ The plaintiffs suing for themselves and their siblings, seek for the following reliefs against the defendant,abusinessman:- a) A declaration that the property in dispute and any development thereon belongs to plaintiff and their siblings as beneficiaries of the last Will and testament of Opanin JosephCharlesOwusu. b) A declaration that the defendant has spent and exceeded the period agreed for him to remainandbenefitfromthepropertyinissuehavingdonesoformorethan20years. c) Anorderofthecourtcompellingdefendanttoyieldvacantpossessionofthepropertyin disputetotheplaintiffsand siblings. d) Costofthelitigationincludingsolicitors’fees. e) Anyorder(s)thehonourableCourtdeemsfitinthecircumstance. 1 PLAINTIFFS’CASE The plaintiffs lay a claim of title to the vacant land in front of House H16 North Suntreso throughadevisemadebytheirdeceasedfatherinhisWilldated2ndFebruary1999.Thenames of the beneficiary children with plaintiffs inclusive were stated as Kofi Acheampong, Akwasi Owusu, Kwabena Owusu, Adwoa Akyaa, Kwadwo Owusu, Kofi Owusu, Abena Ataa Kakra, AbenaAdomaandAbenaAtaa. However,sometimeaftertheirfather’sdeath,theyrealizedthatdefendanthadtrespassedunto their share of their father’s estate and commenced development of same. Upon confronting him and demanding that he cease further development, defendant indicated that their sibling KofiAcheamponggavehimthepermissiontobuildstoresonthelandandtopossesssamefor twenty (20) years. Initially, they objected to the permission given to the defendant by their brotherashecouldnotunilaterallydealwiththelandinissue. However,upon thepleas of thedefendant whohad investedheavily in thedevelopment, they out of genuine human empathy agreed to allow the defendant to build the stores, remain on thepropertyfortwentyyearsandthereaftersamereverttotheplaintiffs. The defendant having completed the construction of the stores and has been on the land since 1999, twenty (20) years have lapsed but, the defendant has failed to yield vacant possession of thepropertytothem,despiteseveraldemandsmadetohim. The plaintiffs therefore, instituted the present action to protect the property and for the defendanttoyieldvacantpossession. 2 DEFENDANT’SCASE Thedefendant admitsthatthelandinfrontof thePlotH16NorthSuntresoisfortheplaintiffs andtheirsiblingsassamewasdevisedtothemintheirfather’sWill. However, defendant contends that it was when the plaintiffs’ father Opanin Joseph Charles Owusu was alive, that Kofi Acheampong intimated to him the desire to develop the bare land infrontofPlotNo.H16NorthSuntreso.OpaninJosephCharlesOwusu,havingconfirmedKofi Acheampong’s claim, he commenced development of the land after Opanin Joseph Charles Owusuacceptedtoleaseoutthelandtohim. However, following his pleas after the death of Opanin Joseph Charles Owusu, a new agreement was drawn up between the defendant and all beneficiaries and executed by the parties. Thistimeroundthedefendantpaidanextrasumof10millionoldGhanacedistotheplaintiffs andtheirsiblingsanddefendant’sstayonthelandextendedfrom20yearsto30years.Forthis reason,anotherlevelwastobeaddedtothestoreybuilding. Therefore, going by the new agreement, the plaintiffs and other beneficiaries of the property have taken several monies from him even assuring him of selling the property to him but neveraccountedforsame. Defendantthencounterclaimedagainsttheplaintiffsfor:- a) An order for the enforcement of agreement made between the plaintiffs and the defendantdated4thofFebruary,2024. 3 b) An order for injunction restraining the plaintiffs, their agents, workmen, servants and assigns from in any manner interfering with the stores situated in front of property number H16 North Suntreso until the expiration of the time period stated in the said agreement. REPLY,DEFENCETOCOUNTERCLAIMANDSETTLEDISSUESFORTRIAL The plaintiffs joined issues with the defendant on his statement of defence and denied his counterclaim.Thesettledissuesfordeterminationareasfollows:- I) Whether or not the defendant has exceeded the 20 years period agreed with the plaintiffsinrespectofthepropertyindispute. II) Whether or not the plaintiffs as beneficiaries of the property in dispute executed any 30 yearstenancyinfavourofthedefendant. III) Whetherornottheplaintiffsareentitledtorecoveryofthepropertyindispute. IV) Anyotherissue(s)raisedbythepleadings. BURDENOFPROOF It is trite learning that a person who alleges the existence of a fact bears the burden to lead the requisitecredibleevidenceinprovingsamebeforethecourt. Thus,under section 10(1) of theEvidence Act, 1975(NRCD 323) it is providedthat a party who alleges the existence of a fact bears the burden of persuasion. The section 10(1) of NRCD 323 statesasfollows:- 4 “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.” Section11(1)and(4)ofNRCD323alsoprovide;- 11. Burdenofproducingevidence (1) ForthepurposesofthisAct,theburdenofproducingevidencemeanstheobligationofa partytointroducesufficientevidencetoavoidarulingontheissueagainsthim. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind can conclude that the existenceofthefactwasmoreprobablethanitsnon-existence” Thus, the onus is on the party making assertions which have been denied to discharge the burdensofpersuasionandofproducingevidence. In DON ACKAH V. PERGAH TRANSPORT [2011] 31 GMJ 174, [2010] SCGLR 728 at 736, ADINYIRAJSCthereforeheld:- “It is a basic principle of 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. It is trite that matters that are capable of proof must be proved by sufficientevidencesothatonalltheevidenceareasonablemindcanconcludethattheexistence ofthefactismoreprobablethanitsnon-existence.” In this case,where thedefendant has counterclaimed, hebears thesameburdenas theplaintiff. Foracounterclaimisanindependentaction. 5 In OSEI V. KORANG [2013] 58 GMJ [2013-2014] SCGLR 221, it was espoused that “a counterclaimantisasgoodas aplaintiffinrespectofapropertywhichsheorheassaystomake his or her own. Also, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he or she is to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standardofproofrequiredundersections11and14ofNRCD323oftheEvidenceAct,1975”. DETERMINATIONOFISSUES WHETHER OR NOT THE DEFENDANT HAS EXCEEDED THE 20 YEARS PERIOD AGREEDWITHTHEPLAINTIFFSINRESPECTOFTHEPROPERTYINDISPUTE Fromtheplaintiffs’pleadedcaseandevidence,theyhavebeenconsistentthatthoughtheywere not part of the initial arrangement allowing the defendant to develop the disputed land, they allowedthearrangementtostand.Thattheinitialarrangementwasfor20years,bothpartiesdo notcontestsame. In1st plaintiff’sevidenceasperherwitnessstatementinparagraph9shereiteratedthat“herself andsiblingsagreedtoallowthedefendanttobuildthestoresandremainthereonforthesaid20 years as he had agreed with the said Acheampong after which the property and everything thereonshallreverttotheplaintiffs” Inparagraph10ofthewitnessstatement,1stplaintifftestified:- “That based on the said agreement aforementioned defendant completed the stores and has possessedandbenefitedfromsamesince1999”. 6 Undercrossexamination,the1stplaintiffalsotestifiedasfollows:- Q. I am putting it to you that the defendant completed the construction of the property locatedonthelandthatbelongedtoyourlatefatherin1999. A. Itisnotin1999,Ihavedocumentsinrespectofthat. Q. Andhemovedintothepremisesintheyear2000. A. Itisnotcorrect. Thedocumenttenderedbythe1stplaintiffinmakingoutacaseonthearrangementbetweenthe defendantandhissiblingKofiAcheampongistheExhibit“B”.TheExhibit“B”reads;- 4. That for his consideration, and upon the completion of the said project, the contractor shall absolutely be entitled to the free and undisturbed use of five of the said store roomsforaperiodofTWENTYYEARScertainbeginningfromthemonthnextafterthat inwhichtheprojectwasthuscompleted”. From the defendant’s testimony per the paragraph 5 of his witness statement, he testified that “KofiAcheampongontheinstructionsofhisfathergavemeanagreementtobuild,operateand transferatwo-storeybuilding20yearsstartingfrom1999.” Wherethe agreement was for twenty years, then calculating from 1999, the agreement ought to lapse by the year 2019. Per the terms, as found in Exhibit “B” the agreement shall be renewed for a further period of ten years upon terms agreed upon by the parties. By the plaintiffs’ account they orally agreed to 20 years presence on the land by the defendant. On such terms, the 20 years have lapsed and one can conclude that defendant has exceeded the 20-year agreement. This conclusion is found in defendant’s answer under cross examination when he answered;- 7 Q. The agreement with Kofi Acheampong was done in 1997 and its terms were to be effective from1999.Notso. A.Thatwasso.Ifthatagreementwasnotcancelled. Q. And in that agreement with Kofi Acheampong you were to develop the property in issue andholdsamefor20yearsbeginningfrom1999.Notso. A.Iftheagreementwasnotcancelled Q. So I am right to say that per the agreement with Kofi Owusu Acheampong your occupation ofthepropertyinissuehaslongexpiredin2019. A.No.Itwouldhavebeensoifitwasnotcancelled. So, was the 20-year period replaced with a 30-year period of occupation? The search for an answertakesmetothenextissue. WHETHER THE PLAINTIFFS AS BENEFICIARIES OF THE PROPERTY EXECUTED ANY 30YEARSTENANCYINFAVOUROFTHEDEFENDANT? The plaintiffs have denied the existence of a 30-year agreement between them and the defendant inrespect of thedisputedproperty.Withthis denialthedefendant whoassertedthat there is a 30-year agreement testified that when he started developing the property, he overheard some women arguing with Kofi Acheampong who introduced themselves as Kofi Acheampong’s siblings who wantedtheir share of the salemoney.After listeningto them, they concluded that a new agreement be drawn up between the beneficiaries and himself. An additional 10 million cedis was to be paid to plaintiffs and the siblings of which he also demanded that the period of occupation be extended to 30 years. Consequently, he caused his lawyertopreparetheagreement. 8 However, before he could pay the 10 million cedis, the father of the plaintiffs died. The plaintiffs approached him demanding part payment for the funeral preparation of their father. He paid 2.6 million cedis to them and after the funeral the plaintiffs came to him for a further part payment of the 10 million cedis because they incurred some expenses and he paid the family1.4millioncedis. In 2004, an agreement was entered into with Elizabeth Nyarko, the widow of Opanin Joseph Charles Owusu, S.K. Oppong, customary successor of the deceased and Adwoa Akyaa as representativeofthesiblings.TheagreementispertheExhibit“1”. From Exhibit “1”, the agreement now offered the defendant a 30 years absolute use of the commercialpremisescommencing,1stJanuary,2000. From the Exhibit “1” the persons who executed the document as landlords are Elizabeth Nyarko and S.K. Oppong with Adwoa Achaah signing as a witness to the landlords. Clearly, plaintiffs did not execute the Exhibit “1” as landlords, neither did Kofi Acheampong sign Exhibit“1”. In fact, defendant under cross examination admitted that Kofi Acheampong did not sign the Exhibit“1”whenheansweredasfollows:- Q. Andyouralleged“Exhibit“1”thesaidKofiOwusuAcheampongneversignedit. A. Itiscorrect.AtthetimehehadtravelledtoLondonbuthewasawareofit. KofiAcheampongtestifiedasDW1.Hegavehisfullnameas JosephKofiOwusuAcheampong. Intheparagraphs7to16ofhiswitnessstatement,hetestifiedasfollows:- 9 “7. After the agreementwas concluded, I informed my siblings but they disagreed with the terms of theagreement. So, they approached thedefendant to renegotiate the pricewith him. 8. Mysiblingsdecidedtoincreasethepriceto10millionoldGhanacediswhichIinformed thedefendant. 9. Thedefendant agreedtopaythe10millionoldGhanacedisproposedbymysiblingson conditionthatthe20yearstenorbeextendedto30years. 10. My siblings including the plaintiffs and defendant agreed that a new agreement of 30 years for an extra amount of 10 million old Ghana cedis was to be executed by the parties. 11. Before the new agreement was prepared, my father Opanin JosephCharles Owusu died andatthattimeIwaspreparingtoleavethecountry. 12. We needed some money for the funeral preparations amongst others so the defendant made several payments to some of the family members including me for the funeral expenses. 13. After the funeral I was leaving the country for greener pastures so I advised the defendant to make sure a written agreement was given to him by my siblings before he paystheoutstandingbalancefortheland. 14. ThedefendantmadehislawyerprepareaDevelopmentagreementwhichwassignedby my mother Elizabeth Nyarko, my late father’s customary successor (S.K. Oppong) and AdwoaAkyaawhorepresentedallthesiblings(Attachedisacopyoftheindenture). 10 15. The extension of the duration of the tenancy from 20 years to 30 years was indicated to all the siblings and Adwoa Akyaa (Achaa) received the share of the siblings on their behalf. 16. Itisnevercorrectthattheagreementwasforaperiodof20years.” Under cross examination, DW1 testified that he executed the 20-year transaction with the defendant but knows nothing about the 30-year agreement as he had travelled. However, he was emphatic that there was an extension of the agreement to 30 years as per the paragraph 15 ofhiswitnessstatementwhenheanswered Q. Iamputtingittoyouthatparagraph15ofyourevidencebeforethiscourtisnotcorrect. A. Mystatementinparagraph15istrue. Q. Will you be surprised to know that contrary to paragraph 8 of your evidence, the defendantallegesthatyouneverinformedhimaboutthetenmillionincreaseinprice. A. I was not theone who informedthe defendant about theten million increase. Itwas my siblingsandthedefendantwhonegotiatedthatprice. From the defendant’s case he states that the earlier agreement is no longer applicable to the development he has carried out on the land but it is the Exhibit “1” which is of binding effect. ThisistosuggestthatthereisadischargeoftheExhibit“B”. It is trite that the obligations that come about by an agreement may be varied or terminated by agreement. TheCourtinFISH&MEATCO.LTD.VICHNUSALTD[1963]1GLR314,AT317,notedthat, it is a general rule of law that one of the models in which an existing contract may be dischargedis bythesameprocess andin thesameformas thatin which itwas made,thatis by 11 mutual consent of the parties. In the FISH & MEAT CASE, Prempeh J, persuasively stressed that an existing contract can only be discharged by mutual agreement and expressly by the parties by another contract or agreement in which clear intention to discharge the previous contractisshown. Under cross examination of the defendant, the subject of cancellation of the earlier agreement wasfocusedonwiththefollowingquestions;- Q.Youadmitthatyouhadan agreementwithoneKofiAcheampongrelativetothepropertyin dispute. A. That is so, but I have an explanation. The agreement I had with Kofi Acheampong initially waslatercancelled. Q.AndthatagreementwithKofiOwusuAcheampongwaswritten.Notso. A.Thatisso. Q. So that any cancellation of that agreement with Kofi Owusu Acheampong will equally be in writing. A.Itisnotcorrect. In the case of BOYE V. ACHIMOTA BREWERY CO. LTD [1982 – 1983] GLR 955 AT 960 HayfronJalsoexplainedthat:- “Of course, the parties to a contract may effect a variation of the contract by modifying or altering its terms by mutual agreement. when this happens the contract arrived at is the original contract with thevariation or modification writtenin placeof theterm that is variedor modified.Thereisnonewcontractbuttheoriginalone.” 12 Itmustbenotedthatitisnotonlybyawrittenagreementthatanexistingcontractcanbevaried ordischarged. In SOWAH V. BANK OF HOUSING AND CONSTRUCTION [1982 – 1983] 2 GLR 1324 at 1346, the Supreme Court per Taylor JSC, recognized the principle that “in spite of a deed, parties can enter into a parol contract supplementary to a contract under seal” and that the parties’earliercontractcanbevariedbyparolagreement. The Court of Appeal in the case of GHANA RUBBER PRODUCTS V. CRITERION CO. LTD. [1984–1986]2GLR56maintainedthepropositionthatpartiescanvaryawrittenagreementby an oral agreement. However, on the facts of that case, there was found to be no variation of the writtenagreementbytheoralone. In this case listening to DW1, there was an oral decision to have the agreement by Exhibit “B” discharged as DW1 puts it in his evidence per the paragraphs “8” and “10” of his witness statementasearlierreproduced.ButthisnewarrangementclearlydoesnotinvolveDW1. Philip Ebow Bondzi-Simpson in his book “Law of Contract; with Special Reference to the Law of Ghana” 2nd Edition at page 99 noted that “Novation” is a specie of discharge of contract by agreementtosubstituteatleastoneofthepartiesorthecontractualterms”. AbbanJ (ashethenwas)in JAPANMOTORS V.RANDOLPH[1982– 1983] GLR536,defined novationas“atransactionbywhich,with theconsentofall thepartiesinvolved,anewcontract isadoptedinplaceofanotherwhichisalreadyinexistence”. 13 Theeminentjudge,AbbanJ(ashethenwas)held“novationprimarilyinvolvesthedischargeof the original obligation under an existing contract and the creation of a new one in its place “Citing Lord Selborne’s explanation of novation in SCARF V JARDINE [1882] with approval; LordSelbornesaid; “Inthecourtoffirstinstancethecasewastreatedreallyas oneofwhatiscallednovationwhich as I understand it means this – the term being derived from the Civil Law – that there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties, the consideration mutually being the discharge oftheoldcontract”. Therefore, regardless of the change in parties, as per the Exhibit “1” there is novation with the payment of additional 10 million old cedis as part of the responsibility of the defendant. It is worth pointing out that it is the same means of novation that plaintiffs who were not parties to Exhibit “B” orally sought to set aside Exhibit “B” with its 10-year renewal provision after the expirationofthe20-yearterm. In a bid to deny defendant’s claim of providing money for their deceased father’s funeral, 1st plaintiffhastestifiedthattheirbrotherbroughtmoneyfromtheUKforthefuneral. DW1 corroborated the evidence of the defendant that they took monies for the funeral of their deceasedfather andalsodisclosing thatheleftafter the funeralfor greener pastures. Therefore, where he provided money for the funeral, the probability is that the money came from the defendant. Thus, DW1’s evidence displaces the 1st plaintiff’s claim that he brought money for the funeral. The conduct of receiving money for the funeral which the defendant paid as the plaintiffs and 14 familyconsideredsameas partpaymentof theadditional 10millioncedis constitutean express consentgivenbytheirconductforthenewarrangement.Thus,re-enforcingnovation. On the Exhibit “1” as well, the persons who signed the document with the defendant, S.K. OppongandElizabethNyarkoarethenamedadministratorsofthedeceasedestate.TheExhibit “SK1” attached to the witness statement of S.K Oppong whose evidence was adopted as hearsay evidence by virtue of the fact that he died during the pendency of case, is a copy of Letters of Administration with Will annexed dated 19th October, 1999. The Exhibit “SK1” disclosesthatJosephCharlesOwusudiedon12thFebruary,1999. Looking at Exhibit “B” which is dated 1997, it largely suggests that when the earlier arrangement was made, the plaintiffs and the siblings had no interest in the property. The Will of their father was tendered by the 1st plaintiff as Exhibit “A”. Exhibit “A” provides per the paragraphs2asfollows:- 1) I give, bequeath and devise my house on Plot H16, North Suntreso, Kumasi to my wife ElizabethNyarkoandallherchildrenbymeabsolutely. 2) Apart from the portion of Plot No. H16 on which the House is actually built, there is a remainingportionofthesamePlotNo.H16whichisvacant.Igive,bequeathanddevise the said vacant portion of Plot No. H16 North Suntreso Kumasi to all other children begottenbymeexceptthosebymywifeElizabethNyarko.” A Will is ambulatory, taking effect only after the death of the testator. In the case of CONNEY V BENTUM – WILLIAMS [1984 – 86] 2 GLR 301, the Court of Appeal held that it is only after probate had been granted to the executor that the provisions of the Will could be carried out. 15 And after the grant of probate, a beneficiary of any real estate under the will must have a vestingassent...Untilthatis doneanypurportedsaleof thepropertybyabeneficiaryordevisee wouldhavenolegalconsequence” In this case therefore, at the time of their father’s death, the property was the subject of an arrangement. This arrangement will affect any immediate interest in the property even when thepropertyisvestedinthem. Further, in 1999, it was found that the named executors were deceased as disclosed in the Exhibit “SK1”. The property at the time of grant of Letters of Administration became vested in the Administrators. For the Administration of Estate Act, 1961, (Act 63). Section 1(1) of Act 63 reads “the movable and immovable property of a deceased person devolve on his personal representativeswitheffectfromdeath.” Bysection108ofAct63,“personalrepresentative”meantexecutor,originalorbyrepresentation, oradministratorforthetimebeingofadeceasedperson” All the foregoing means that in dealing with the estate of the deceased the administrators becometheproperpersonstobedealtwith. Indeed, in the case of WRANGLER GHANA LTD V SPECTRUM INDUSTRIES PVT, LTD & ANO. [2023] 183 GMJ 258 the Supreme Court observed that administrators could alienate immovable properties over which they have been granted letters of administration with reference to section 97(1) of Act 63 which gives administrators the free hand to alienate properties over which they have control without a vesting assent in their favour. Section 97 (1) ofAct63provides;- 97Validityofconveyanceandrevocationofrepresentation 16 (1) A conveyanceof an interest in movableor immovablepropertymadeto a purchaser beforeorafterthecommencementofthis Actbyapersontowhomprobateorletters of administration have been granted is valid despite a subsequent revocation or variation before or after the commencement of this Act of the probate or letters of administration. To be clothed with power to alienate, the administrators ought to have vested the properties in theplaintiffs’andtheirsiblingsafterthegrantofthelettersofadministrationwithWillannexed inaccordancewithdictatesofExhibit“A”. It seems this has not been done. Considering the fact that the plaintiffs and their siblings encouraged the defendant to provide funds for the funeral as part of the variation of the terms thatexisted, before the death of their father, they cannot complain now when doing substantial justicetoparties. WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO RECOVERY OF THE PROPERTY The plaintiff claiming for recovery of possession puts their title to the property in dispute. In ASANTE APPIAH V. AMPONSAH [2009] SCGLR 90, at 98, the Supreme Court speaking throughBrobbeyJSCheld:- ” The law is well established that where a party’s claims are for possession and perpetual injunction,heputs his titlein issue. Hetherefore, has theburden of provinghis titleto theland bythepreponderanceofprobabilities”. As earlier pointed out the plaintiffs and siblings rely on a devise in a Will to lay a claim of title per the Exhibit “A’’ earlier reproduced. The principle of law is that a devise cannot vest in a 17 beneficiary of a Will until a vesting assent vest same in the beneficiary. In the case of OKYERE (DECEASED) V (SUBSTITUTED BY) PEPRAH V APPENTENG & ADOMA [2012]1 SCGLR 65 reiterated that when a person diedtestate or intestate no property passes to the beneficiaries without a vesting assent for the estate devolves on the executor or the personal representative until vesting assent have been executed to the beneficiaries or the devisees. What this means is thattheplaintiffsandtheirsiblingscannotclaimrecoveryofpossession.Infact,atthetimethey claimed they allowed the defendant to stay on the land for 20years, they were not vested with thepropertyandhadnocapacitytodoso. ItisnotedthattheSupremeCourtinthecaseOFBOYAVMOHAMMED(SUBSTITUTEDBY) MOHAMMED & MUJEED [2017-2020] 1 SCGLR 997 conferred capacity on beneficiaries of an estate who have not obtained letters of administration or a vesting assent. It was thought that, by extension, the decision would embolden beneficiaries of an estate to be able to deal with the propertyandevenhavethepowertoalienateitpriortoobtainingavestingassent,butthatwas not to be. For the Supreme Court in the case of Wrangler Ghana Ltd supra at page 277 then explained that “The decision in BOYA V MOHAMMED… cannot be said to have laid down a general proposition to the effect that beneficiaries of estates can alienate the properties concerned before a vesting assent executed in their favour.” The plaintiffs remain the beneficiaries of the estate (the disputed property) awaiting a vesting assent to make their claim of titleinviolableandaftertheexpirationof the30-yeararrangement in thecircumstanceof this case. CONCLUSION 18 The court has been minded to do substantial justice to the parties and having weighed the evidence of the parties on the preponderance of probabilities, finds the scale tilting in favour of thedefendant’srivalversionofthefacts. In the circumstance, the court dismisses the claims of the plaintiff and enters judgement for the defendantonhiscounterclaimbygrantingthefollowing:- a) Anorderfortheenforcementofagreementmadedated4thofFebruary,2004. b) An order for injunction restraining the plaintiffs, their agents, workmen in any manner interfering with stores situated in front of property number H16 North Suntreso until theexpirationofthetimeperiodstatedinthesaidagreement. CostofGH¢10,000.00againsttheplaintiffs. [SGD] JUSTICEHANNAHTAYLOR(MRS) JUSTICEOFTHEHIGHCOURT LAWYERS KWAMIDORGBLEYFORTHEPLAINTIFFS K.A.ASANTEKROBEAFORTHEDEFENDANT 19