Manu v Agyeman (C76/10/14) [2024] GHAHC 422 (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, 2024BEFOREHER LADYSHIPHANNAH TAYLOR(MRS) J. SUITNO: C7/10/14 BAFFOURKWAKU MANU …PLAINTIFF H/NO. PLOT 63BLOCK N ABURASO–KUMASI VRS. YAWAGYEMANG …DEFENDANT ABREPOJUNCTION _____________________________________________________ JUDGMENT _____________________________________________________ The plaintiff, the surviving spouse of Dinah Manu also known as Dinah Boakye (deceased) sues the son of the deceased from an earlier relationship for the following reliefs: - 1 a. A declaration that the property listed in the inventory of the application for Letters of Administration is jointly owned between plaintiff and the late Dinah Manuand so should be shared equally. b. A declaration that per PNDCL 111 the plaintiff’s late wife’s property be shared among theinterested parties accordingly. c. That the defendant be made to account for all the goods and money in the respective storeswhich he had locked upsince his motherdied. PLAINTIFF’S CASE The plaintiff states that the wife, Dinah Manu died on 13th December, 2011 after they havebeen married for 19yearsand blessed with ason, Baffour Siko. The defendant, the son of the wife from an earlier relationship through a letter invited him to join him and the mother of the deceased wife to obtain Letters of Administration to administer the deceased’s estate. He declined to join them for the grant of the Letters of Administration when he realized that all properties listed in the inventory for the applicationwere properties jointly owned with thedeceased. The defendant proceeded to obtain a grant of Letters of Administration ignoring his complaints withthefollowing properties listed in the inventory: - a. House No. Plot63Block NAburasa Kumasi. b. Plot No.60Block “A”Aburasu, Kumasi. 2 c. Intellectual property Right with the title Album of Nsoroma no Apue” (Me last) and d. AFidelity BankAccount No.2030018868. The plaintiff further stated that with the exception of the bank account at the Fidelity Bank theotherproperties were jointlyowned with his deceased wife. Apart from the foregoing properties, plaintiff pleaded that the wife and himself had goods (inlays and jackets) with market value of Gh¢74,000.00 and cash of GH¢2,000.00 and $2000, and also funeral clothes for male and females among others for hiring in the store No. 7 and Central Market (CDS Candor) all of which have been locked up by the defendant. Not only that, the defendant also went into the store and took an undisclosed number ofthe items which he confessed taking. DEFENDANT’SCASE The defendant does admit that the plaintiff is the surviving spouse of his mother but at the time of the marriage, his deceased mother had three children namely, Yaw Agyemang (himself), Kwaku Sarpong and George Sarpong). He averred that when the plaintiff was served with the application for the grant of Letters of Administration, he refused to attend Court. Consequently, the Court granted Letters of Administration to thenamed applicant. 3 Defendant denied the claims of joint ownership of the properties as contended by the plaintiff, stating that theyarethe self-acquired properties ofthe deceased mother. Further, the deceased mother’s father Y. B. Acheampong, his grandfather, a gospel musician, was the proprietor of the Sekyedomasi Gospel Band, traded in musical cassettesand had anumber ofstores. The grandfather, permitted his deceased mother to use his Central market store, Room No. 4 to sell some of his cassettes. All this time the plaintiff was a tailor in Kumasi but travelled to Japan. On his return to Ghana, plaintiff used to visit his friend one George Boakye who was atailor in Room No.5at the CentralmarketKumasi, gotacquainted to her deceased mother, developing into friendship and they later got married. The claims of joint ownership of the Intellectual Property Rights in the album Nsoroma No Apue also knownas“MyLast’’was denied as same belonged tohis mother. ISSUESFOR TRIAL After the close of pleadings, the settled essentials issue for determination are as follows: - 1. Whether or not the properties used in the inventory for the application for Letters of Administration were the properties jointly acquired by the plaintiff hereinand his latewife during thesubsistence oftheir 20yearsmarriage. 2. Whetherthe plaintiffis entitled to halfshare ofthe said properties. 4 3. Whether or not per the Intestate Succession Law the plaintiff is entitled to a portionofhis late wife’s portionofthe properties. BURDENOF PROOF In this suit, the plaintiff is required to lead credible, cogent, sufficient and admissible evidence to substantiate his claims of entitlement to the disputed properties which have been denied. The evidence to be led by him should lead the Court to conclude that, the existence ofthefacts asserted by himare probable thantheir non-existence. A duty therefore, is cast on the plaintiff to lead evidence to prove the joint acquisition of the disputed properties. This burden thus, will only be discharged in accordance with settled principles of law and provisions relating to the burden of proof in civil suits as set outin the Evidence Act, 1975, (NRCD323). Where the plaintiff hasled suchevidence, which has the quality of credibility, then defendant is required to adduce evidence of thefact essentialtothe defence set. Itis onthe preponderance ofprobabilities provided for under section12of theEvidence Act, 1975,NRCD323thatthe evidence led by the partieswill be weighed. In Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 at 900, the Supreme Courtspeaking throughAnsahJSC statedthe law asfollows; - To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence required that the plaintiff produces sufficient evidence to make out his claim 5 on the preponderance of probabilities as defined in section 12(2) of the Evidence Decree [NRCD323]. Our understanding of the rules in the Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff or defendant must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favourableverdict. In this case the defendant seeks no reliefs from the court but asserts that the disputed properties are the self-acquired properties of his deceased mother. To come to such a conclusion, it will depend on the evidence the defendant leads. The direction given by Brobbey JSC in Re Ahalley Botwe Lands; Adjetey Agbosi & others v Kotey & others [2003-2004] 1 SCGLR 420 to defendants who desire the Court to make a finding, favourable to the version of the rival claims requires that evidence be led, will apply in thecircumstance ofthis case. DETERMINATION OFISSUE WHETHER OR NOT THE PROPERTIES USED IN THE INVENTORY FOR APPLICATION OF LETTERS OF ADMINISTRATION WERE PROPERTIES JOINTLYACQUIREDBY THE PLAINTIFFAND HISLATE WIFEDIANAHMANU. 6 From the evidence of the plaintiff per his witness statement in paragraph 12 thereof he listed the properties in the inventory for the grant of Letters of Administration as follows: - a) H/No. Plot 63BlockN. Aburaso, Kumasi. b) Plot No.60Block “A”Aburaso –Kumasi. c) IntellectualPropertyRight withalbum Nsonoma APue (My last). e) Plot No.15Kejetia –Kumasi. f) Fidelity Bank Account No. 20300188682. g) BarclaysBank, Kumasi Account No. 02811026054. h) Bank Account at First Allied, Pampaso. i) Personalbelongings j) With the exception of the Barclays Accounts which belongs to my wife, all other propertieswere jointly acquired by the latewife and myself. k) Plot No.50“A”Aburaso hasbeen sold by late wife and myself” Plaintiff did not tender a copy of the inventory filed by the defendant for the grant of Letters of Administration. However, the defendant tendered a copy of the Motion on Notice to Baffour Kwaku Manu for the grant of Letters of Administration without objectionand same admittedinto evidence and marked asExhibit “6”. 7 In Exhibit “7”, the declaration of movable and immovable property of the intestate, DinahManu disclosed the followingproperties: - 1. House No. Plot63Block “N”Aburaso, Kumasi. 2. Plot No.60Block “A”Aburaso, Kumasi. 3. Plot No.50A Block “P”Aburaso, Kumasi. 4. Her interest in intellectual Property Rights (IPR) with title Albums of Nsoroma NoApue otherwise knownas “mylast”. 5. Plot No.15Kejetia, Kumasi. 6. Fidelity Bank Account 20300188682. 7. BarclaysBank Kumasi 028/1026054 8. Bank Account at First Allied, Pampaso. 9. PersonalBelongings. A look at Exhibit “7” discloses that it reflects the testimony of the plaintiff under paragraph12ofhiswitness statement. On the property Plot 63 Block “N” Aburaso, Kumasi, plaintiff tendered Exhibit “C” an allocation note, dated 20th March, 1997, issued in the name of Mr. & Mrs. Manu as well as Exhibit “H” and “J” being receipts evidencing payment of property rate in the names 8 of Mr. and Mrs. Manu in respect of the Plot 63 N Aburaso. A site plan in respect of Plot 63Block Nin the name ofMr. and Mrs. Manuwas also tendered asExhibit “L2”. On allocation note or paper, the settled principle of law as espoused in the case of Boateng (No. 2) and Another v Manu (No. 2) and Another [2007-2008] 2 SCGLR 1117 is that, allocation paper cannot by itself represent a land acquisition but it is admissible as evidence to show some transaction that has taken place towards the acquisition of a plot or land, that is the owners of land purported to give to some individual. Then same isfollowed withalease. In this case, no lease document has been produced but a structure has been put up on the land and the plaintiff and wife lived together in this structure till the passing of the wife, the deceased. DW2, Nana Kwaku Opoku Okosuohene of Aburaso, testified on the deceased acquiring all the disputed lands at Aburaso. He however, testified under cross examination in respect ofPlot 63NAburaso as follows; - Q. Are you aware that the allocation note on Plot number 63N Aburaso bears the name Mr.and Mrs. Manu. A. That isso. He went onfurther,toexplain how theland was giventotheplaintiff and his wife. 9 A conclusion that the property was jointly acquired as asserted by the plaintiff is not erroneous. It is for the defendant to establish a contrary position with credible evidence. This however, he failed to do but admitted under cross examination that the document on the Plot 63N Aburanso is in the joint names of the plaintiff and his mother when he answered asfollows; Q. And thedocuments are inthe joint names, are youaware? A. That iscorrect. Thus, the defendant and his witness, DW2 agreed with the plaintiff that the land was acquired in the joint names of the plaintiff and the deceased wife. A finding of fact is made that the property Plot 63 N Aburanso is not the sole property of the deceased but jointlyowned by the plaintiff and thendeceased, Diana Manu. 2 In respect of Plot No. 60 Block “A” Aburaso, Kumasi, no document was tendered to support a joint acquisition by the plaintiff and his deceased wife. Rather, plaintiff tendered an allocation note in the name of Fred Agyemang for the Plot 60A Block Q Aburanso dated 14th August 2011 with a plan in the name of the said Fred Agyemang Manudelineating Plot60A Block Q admittedinto evidence and markedas Exhibit “L1’’. This, Plot 60A Block Q is not one of the properties listed in the inventory per the Exhibit “7”. DW2, testified that, the property Plot 60A Block Q was acquired by the deceased Diana Manufromthe Aburanso Stool. 10 Onthe property Plot 50A Block P Aburanso, the plaintiff laid a claim ofjoint ownership. However, he never testified on how it was acquired, when it was acquired and from whomit was acquired. He produced no document suggesting the acquisition as he did in respect of Plot 63 Block N, Aburanso. Plaintiff tendered Exhibit “K” a statutory declaration by Diana Boakye alias Mrs. Diana Manu which rather discloses that the said Plot 50A Block “P” was allotted to Diana Manu and the said land sold by the deceased and himself. On the worth of statutory declaration, it has been held in the case of In Re Ashalley Botwe Lands supra that they are self-serving in nature and cannot be construed as a conveyance. The document cannot purport to transfer the deceased’s interest in Plot 50AP Aburansa and will alsonot constituteevidence ofjoint ownership. I have wondered in what capacity the plaintiff had purported to sell the plot with the deceased when the plot hasnot beenallotted to himas declared by the deceased. In fact, the plaintiff signed the Exhibit “K” as a witness and the claim of the deceased selling the plot with his consent is untenable. I have compared the signature of the deceased on the Exhibit “K” with her signature on the Exhibit “2” and they are not the same. According to the defendant, six months after the mother’s death, the plaintiff had put for sale on the land. The defendant tendered a site plan delineating Plot 50A Block P for Mrs.Diana Manu. 11 DW2, once again testified that the Plot 50A Block P was acquired from the Aburanso Stool by Diana Manu, deceased. The Court finds that Plot 50A Block “P” is in the name of the deceased, Diana Manu and the Exhibit “K” cannot convey her interest to another person. On the Intellectual property, plaintiff testified that same belongs to the deceased wife and himself as they engaged in the production of the audio cassette jointly and he did invest money in the business. Plaintiff denied that the intellectual property did not belong to Diana Manu alone but insisted that it was in the name of Mr. and Mrs. Manu, Manu being referrable to him. He however, did not produce any documentary evidence onthe intellectual property being inthe namesofthe deceased and himself. Undercrossexamination, plaintiff testified asfollows: - Q. Do youknowabout Damisco Enterprise? A. Yes. Q. Whoestablished this business. A. Iand my wife. Q. Whenwas it established. A. It was established in later part of 1993. The name Damisco is an acronym of my name, my wife’sname and my child’s name. Q. Whattype ofbusiness wasthis enterprise dealing. 12 A. We were selling Cassette. We were also producin0g music and we were also distributing cassette. PW1, Prince Ahenkan, a maternal cousin of the plaintiff testified under cross examination asfollows: - Q. Atthe time theplaintiff’swife was alive,what workwas the plaintiffdoing. A. The plaintiff was selling CDplayer and tape cassetteswithhis wife at Kejetia. PW1, thus, disagreed that the cassette business belonged to the plaintiff’s deceased wife alone. Defendant was unwavering on his claims of her mother owning the intellectual property. He tendered the Certificate of Registration of the business name Damisco Enterprise dated 8th April, 2004 as Exhibit “1”. He also tendered Exhibit “2 Form “D” a notification of change in particulars registered by an individual under the Registration ofBusiness Names Act, 1962(Act 151). The subject business name is Damisco Enterprise and it discloses that the business has been transferred to Dinah Manu (Mrs.) engaging in the production of Audio cassette, CD, VCD and DVDS. The transferee did sign the Exhibit “2’’ and the transferor did same. I do not see the plaintiff’s signature on the Exhibit ”2’’ having looked at his signature on his witness statement. The nature of the Form“D”itself speaksofdealing withanindividual. 13 Therefore, wherein lies the claim of joint ownership? Attached to the Exhibit “2’’ is Intellectual Property Rights (IPR) Form for the album titled Nsoroma No Apue dated 25th October 2004 signed by Diana Manu with an additional form stating that the IPR owner of “Me Last” and Nsoroma No Apue among other songs as Dinah Manu, as well as the membership card of Diana Manu of the National Society of Ghana Music Producers, a group of Music producers. That the intellectual property being that of the deceased, Diana Manuis probable. DW1, George Boakye, described the plaintiff as one with whom he operated his tailoring activity with the plaintiff. His tailoring vocation was carried on in Store room No. 5 and the deceased before her marriage with plaintiff was selling cassette, DVDs in roomNo. 4which originallywas being ranby her parents. There is also Exhibit “3”, a tenancy agreement on the Plot 7 at the Aburansa Market executed between the District Co-Ordinating Director of the Bosomtwi Atwima- kwanwoma District Assembly and Diana Boakye. In respect of the Plot 7, a receipt issued by the same Assembly acknowledged the payment of three million cedis (old currency)by Diana Boakye andExhibit 5 is aletterallocating the Plot 7by the Assembly to Diana Boakye. Thus, these documentary evidence point to an allocation of the Plot 7 tothe deceased. 14 On the several bank accounts listed in Exhibit 7 there is no evidence on the plaintiff and the deceased having jointly opened the account and it cannot be said that the accounts arejointly owned. On the Plot No. 15 at Kejetia, the evidence is that same has been demolished. The following questions were theplaintiff; - Q. The Kejetia storehas now beendemolished, Is thatnotso? A. That iscorrect. Q. Priortoitsdemolition, youalso locked the store andthe keyswere withyou. A. That isnot correct. Q. That store, in addition to its wares had GHC2,000.00 and 2,000 USD which you areaware. A. Ido not knowbecause Iwas not in theshop. The evidence on the items in the demolished Kejetia store is insufficient to support the plaintiff’s claims against the defendant. I have wondered what happened to the goods and whether the occupants of the stores were allowed to remove their items. The claims of the defendant having entered the shop and made away with cash and some items remains only as an allegation and not factual. The plaintiff’s sole witness has testified in his witnessstatement perthe paragraphs 9,10and 11asfollows; - 15 9. A year after the death of Diana Manu and as custom and tradition demands her propertieswere formally opened, Iwas at thesaid meeting. 10. At the meeting my cousin told Diana’s head of family that he had been informed that the defendant had forcibly entered one of the stores, plaintiff was jointly operating with the wife ie. the Central Market store numbered F.R.14 and made away withcertain items including CDJackets andCDs. 11. Defendant admitted that he indeed entered the said shop but that he did so because he (defendant) was hungry. Undercrossexamination PW1answered asfollows; - Q. It is never correct that the defendant admitted entering the store room 4 because he was hungry. A. I did not hear that he stated he was hungry. What I know is that, at the meeting, the plaintiff was asked to find out from Yaw Agyemang whether he entered the roomand he admitted. Q. I am putting it to you that the defendant never admitted anywhere that he enteredthe storeroomafter the deathofhis mother,the deceased. A. Inmypresence at themeeting, he admitted thathe enteredstoreroom 16 PW1 who was at the meeting never testified on the defendant taking the items as alleged. With the denial of this claim, plaintiff was required to lead cogent evidence to support same but such evidence is lacking. One significant statement made by the defendant is when under cross examination he admitted that all the properties in contention were acquired during the subsistence of the marriage. It has been submitted in the written address of the lawyer for the plaintiff that once the disputed properties were acquired during the subsistence of the marriage between the plaintiff and the deceased, the properties then on the strength of cases such as Mensah v Mensah [1998-99]1 SCGLR 39and Boafo v Boafo [2005-2006] SCGLR 705, the plaintiff will be entitled to a half share of the properties even though this case does notdealwith adissolutionofmarriage. Counsel for the defendant disagrees with this position taken by counsel for the plaintiff submitting that the fact of marriage does not take away the right of a spouse to privatelyownproperty. I am minded of the fact that marriage does not deprive a spouse from individually acquiring property in keeping with the provisions of Article 18 of the 1992 Constitution onthe right to acquire propertyeither alone orjointly. Article 18 (1) of the 1992 Constitution, every person has the right to own property either alone orin associationwith others. 17 Further, in the case of Quartson v Quartson [2012] SCGLR 1077 the Supreme Court endorsed the principle that the decision in Mensah v Mensah [2012] 1 SCGLR 391 is not to be taken as a blanket ruling that has afforded spouses unwarranted assess to properties when it is clear on the evidence that they are not entitled. Therefore, Mensah vMensah should be applied oncase by case basis. In the circumstance of this case per the evidence, the plots acquired from the Aburanso Stool, it is only Plot 63 N that is in the joint names of the parties and the rest are in the name ofthe deceased, Diana Manu. To the Court’s mind, the intent of the parties was that those in the deceased’s name should be privatelyowned. For if they were intended to be jointly owned, they would have reflected same. I am unable to conclude that all the disputed properties are jointly owned by the plaintiff and the deceased, Diana Manu. The claim of joint ownership of all the disputed properties is hereby dismissed. The listed properties in the inventory as per the Exhibit “7”are the self-acquired properties ofthe deceased Diana Manu, except thather interest in Plot 63 N Aburanso is half share and the plaintiff owns half share. Therefore, the deceased’shalf share in Plot 63Nforms part of her estate. Plaintiff’s interest as aspouse, in the disputed properties owned by the intestate deceased wife who passed on 13th December 2011, will be what is provided under the Intestate Succession Law 1985, PNDCL 111. 18 As from 14th June, 1985, there has come into force, the Intestate Succession Law, PNDC Law 111 which statutorily regulates rights to intestate succession in Ghana. Under PNDC Law111,Sections 3and 4thereinprovide: - “3. Where the intestate is survived by a spouse or child or both, the spouse or child or both of them, as the case may be, shall be entitled absolutely to the household chattels ofthe intestate. 4(a) where the estate consists of only one house the surviving spouse or child or both of them, as the case may be, shall be entitled to that house and where it devolves to both spouse and child, theyshall hold it as tenants-in-common. b) where the estate includes more than one house, the surviving spouse or child or both of them, shall determine which of those houses shall devolve to the spouse or the child or both of them and where it devolves to both the spouse and the child, they shall hold thehouse astenantsincommon.” Per the foregoing, household chattels of the deceased automatically devolve on the plaintiff and thedeceased wife’schildren. Household chattels has been defined under section 18 of PNDCL 111 as including jewelry, clothes, furniture and furnishing, refrigerators, televisions, radiograms, other electrical and electronic appliances, kitchen and laundry equipment, simple agricultural 19 equipment, hunting equipment, books and household livestock and private motor vehicles. Thus, in this case as well, where the only house per the evidence, is that on Plot 63 N Aburanso, with the deceased’sinterest being half share thenplaintiff and the deceased’s childrenwill be entitled tothe halfshare andhold same astenants-in -common. Where the properties under sections 3 and 4 of PNDCL 111 are taken as explained, the plaintiff’s otherbenefit isas provided forunder Section5ofthe lawas follows; - (1) Where the intestate is surviving by a spouse and by a child the residue of the estateshall devolvein the following manner. (a) Three-sixteenthtothe Surviving spouse. (b) Nine-Sixteenthtothe Surviving child. (c) One eight tothe Surviving Parents (d) One-eightin accordance customary law. (2) Where there is no surviving parent one-fourth of the estate shall devolve in accordance withcustomarylaw. The nine-sixteenth which devolves on the surviving child will be shared equally by allthechildren ifthere be morethanone asin this case, 20 CONCLUSION Uponthe conclusions reached, judgmentis entered forthe plaintiff asfollows; - 1. A declaration that of the properties listed in the inventory for the application for Letters of Administration, it is only Plot 63 “N”, Aburanso which is jointly owned betweenthe plaintiff and Diana Manuandeach holdsahalf share. 2. A declaration that per the Intestate Succession Law, 1985, PNDCL 111, the late wife’s propertiesbe shared amongthe interestedpersonsrecognized by thelaw. 3. Relief (c) ishereby dismissed. Noorderasto cost. JUSTICEHANNAH TAYLOR(MRS.) JUSTICEOF THE HIGH COURT LAWYERS SAMUEL OHENE-AYISIFORTHE PLAINTIFF ANDREW ACQUAYE HOLDING KWAME ASIEDU-BASOAH’S BRIEF FOR THE DEFENDANT 21