KWADWO FRIMPONG VRS YAW BOATENG & 2 ORS (C1/17/2021) [2024] GHAHC 416 (31 October 2024)

1 31/10/2024 IN THE SUPERIOR COURT OF JUDICATURE; IN THE HIGH COURT OF JUSTICE HELD AT NKAWKAW – EASTERN REGION ON THURSDAY THE 31ST DAY OF OCTOBER 2024, BEFORE HER LADYSHIP JUSTICE CYNTHIA MARTINSON, HIGH COURT JUDGE. ---------------------------------------------------------------------------- SUIT NO C1/17/2021 KWADWO FRIMPONG :: PLAINTIFF VERSUS YAW BOATENG & 2 OTHERS :: DEFENDANTS PARTIES: All parties present. LEGAL REPRESENTATION: Suleman Musah Esq. for the Plaintiff absent. Kofi Frimpong Manso Esq. for the Defendants absent. ------------------------------------------------------------------------------------------ JUDGMENT ------------------------------------------------------------------------------------------ The plaintiff per his writ of summons filed on 15th June 2021 suing as the head of the Aduana Family of Kumawu is claiming against the defendants as follows: a) A declaration of title to House Number NJ38 lying and situate at Central, Nkawkaw in the Eastern Region of Ghana. (b) An order for the ejectment of the defendants herein from the said house no.NJ38 Nkawkaw Central. 2 (c) Cost (d) Any other orders[s] the honourable Court may deem fit. The defendants resisted the action. They filed appearance on the 17-6-2021 and their statement of defence on the 07-07-2021 but did not counterclaim. At the close of pleadings, the following issues were set down for determination. 1) Whether or not the defendants are members of the Aduana family of Kumawu. 2) Whether or not the house in dispute is the family property of the Aduana family of Kumawu. 3) Whether or not the property in dispute is the property of the Asene Family of Obo Kwahu. 4) Whether or not the defendants can be ejected from the property in dispute to enable same to be renovated. 5) Whether or not the chief of Obomeng heard both parties and decided the matter in favour of the defendants and for that matter same is res judicata. 6) Any other issue raised on the pleadings. When the matter came up for hearing, the plaintiff testified via his witness statement and called two witnesses. The defendants did not testify. They however called three witnesses. The Plaintiff Kwadwo Frimpong testified as follows: He sues as the head of the Aduana family of Kumawu , he lives in H/No. OD 24, Odumasua. He is a farmer. He is the head of Aduana Family of Kumawu. He knows the 1st Defendant, he is the grandchild of Akosua Fantowaa who was married to Kwame Asante. He knows the 2nd defendant, he is the 1st defendant‟s nephew. He knows the 3rd defendant, he is also the nephew of the 1st defendant. He testified that even though the defendants hold themselves out as members of the Aduana family, they are not members as they hail from male descendants of the Aduana family which practices matrilineal inheritance. He said the house in dispute is numbered NJ 38 and is lying and situate at Central Nkawkaw in the Eastern Region of Ghana. He added that, the said house was originally owned by a Nigerian man called Oladipo who decided to sell it in a bid to relocate to Nigeria. Kwame Asante who had knowledge of the intended sale informed the family and the late Akua Donkor who was a Cocoa farmer. It is his case that, Akua Donkor decided to buy the house. After the acquisition 3 of the house, she caused the documents to be prepared in the name of her brother, Kwame Asante. He stated that, Akua Donkor then gave one of the rooms to Kwame Asante as a caretaker and then rented out the rest of the rooms. According to him, after the demise of Kwame Asante, the family appointed Kwadwo Donkor as his customary successor and a caretaker of the house. He said, after the death of Kwadwo Donkor, various persons were appointed as caretakers by the family; these persons were Kofi Agyapong, Yaw Donkor, Kofi Donkor and then Yaw Kissi. He further testified that, during the period when the late Yaw Donkor was appointed as a customary successor, he paid all the property rates of the house in dispute. He has copies of the receipt of the property rates. He continued that, Opanin Kofi Donkor also dealt with the house as a caretaker of the family property. He has copies of letters and notices written by Opanin Kofi Donkor to tenants of the house in dispute. It is his case that upon the death of Opanin Kofi Donkor, Yaw Kissi was appointed as a customary successor. He has a copy of notice given by Yaw Kissi to a tenant regarding the house. He further testified that, Opanin Yaw Donkor during his lifetime also rented 3 storerooms in the house in dispute to one John Addai Owusu. He has a copy of the tenancy agreement. He stated that, the 1st Defendant instituted an action against two persons at the District Court Nkawkaw in a suit titled ‘Yaw Boateng vrs. Mr. Kwabi & Opanin Kwadwo Adofo’ where the 1st Defendant admitted that the property in dispute is a family property and that Yaw Kissi who was then a customary successor as an Aduana was the landlord. He has a copy of the judgement. He again stated that, the caretakers after their demise left their wives and/or children in the house until their eventual relocation or demise. According to him recently, the family decided to renovate the house as same was falling into ruins and therefore served notices on all occupants of the property. However, the Defendants herein resisted the decision of the family and refused to move out. He added that, the Defendants further assert that the house is the property of their grandmother Akosua Fantowaa. He said, the Defendants have refused to pay for utilities or repair broken fixtures in the rooms they occupy. He further said, the Defendants are also harassing other occupants of the house and meting out constant threats of eviction to lawful tenants of the family. He said, after several efforts by the family to evict them failed, the family sought the assistance of the Obomeng Chief. 4 He said, the Obomeng Chief met the parties on several occasions and during one of such meetings he informed the chief that the family has documents covering the building. It was then agreed that the family brings the documents to the next meeting. On the next date, while he was on his way to the meeting, the defendants attacked him and seized a bag he was carrying which contained copies of the documents covering the house and an amount of GH 715.00. He lodged a complaint with the police and subsequently the Obomeng chief. After that incident, the family decided to pursue the matter in court and informed the Obomeng chief accordingly. It is obvious that the Defendants will not abate their trespass, nuisance and waste of the property unless they are compelled by this Honorable Court. He said, the Defendants being descendants of male members of the family which is matrilineal do not have any interest in the house in dispute. The house risk falling into ruins if the Defendants are not ejected for the necessary maintenance to be carried out. The plaintiff tendered the following documents at the trial: - Kwahu West Municipal Assembly [K.W.M.A.] Property Rate in the name of Yaw Donkor dated 20/1/2020. - Exhibit ‘A - K.W.M.A Property Rate Receipt for the year 2022. - Exhibit ‘A1’ - K.W.M.A Receipt for payment of property rate for the year 2021 in the name of Yaw Donkor- - Exhibit ‘A2’ - K.W.M.A Payment of property rate for the year 2019-2020 dated 14/02/2020 - Exhibit ‘A3’ - K.W.M.A Property rate Receipt by Yaw Donkor for 2018 dated 26/11/2018 - Exhibit ‘A4’ - Letter from Opanin Kofi Donkor dated 16/12/1994 - Exhibit ‘B’ - Notice to Quit Premises by Opanin Kofi Donkor dated 16/09/1994 - Exhibit ‘B1’ - Invitation to Meeting by Kofi Donkor dated 17/08/1994 - Exhibit ‘B2’ - Notice to Quit from Emmanuel Kissi dated 13/05/2011 - Exhibit ‘C’ - Tenancy agreement between Opanin Yaw Donkor and John Addai Owusu dated 3/11/1987 - Exhibit ‘D’ 5 - Judgment from the District Court Nkawkaw dated 5/09/2016[6 paged document] - Exhibit ‘E’ In cross-examination, he asserted that, Akua Donkor his grandmother died in the 60s when he was in class six. He insisted that, copies of the documents of the house was snatched away from him by the defendants and it was reported to the police. He admitted that, Akosua Fantowaa married his uncle Kwame Asante, but denied that the defendants have lived in the house as landlords and landladies. He asserted that, 1st defendant was paying rent to his Uncle Yaw Donkor. His uncle once served the defendants with notices of ejectment. He admitted that at all material times, the defendants were living in the house with their grandmother. He asserted that, he approached Obomeng chief in respect of this matter but on his way to the palace, the defendants snatched the documents away from him. He admitted he knows the boundaries of the land. He said, the land is registered at the lands commission Koforidua. He asserted that, his family has been on the disputed land since 1947. He insisted that he pays property rate in the name of his uncle Yaw Donkor. He maintained that, there was only one store when the land was bought but the defendants have rented out portions of the land to individuals who have deposited containers on same. He cannot tell the number of containers and concrete stores on the land. He has slept in the house but has not lived there before. He asserted that, his uncle Yaw Donkor rented out a store and after his death, Kofi Donkor succeeded him and rented the store out. Yaw Kissi also succeeded Kofi Donkor and prepared an eviction notice to all tenants on the land. He denied that, the tenants were all put there by the defendants. He asserted that, it was his uncle Yaw Donkor who gave the 1st Defendant permission to collect rent from tenants. He again asserted that, the District Court Nkawkaw once made a pronouncement that 1st defendant is not the landlord. He said, Kwame Asante was not the owner of the house but instead Yaw Donkor. He knows Love Taylor but does not know her children. He denied that, Love Taylor was once the land lady of the house in contention. He denied that, the disputed property is called Pease. He insisted that, his family has done maintenance on the property but then 1 and 2 defendants were not living in the disputed property. He insisted that, the house was bought by his forbearers in 1949. PW1 Joseph Kissi testified via his witness statement akin to that of the plaintiff as follows: 6 He is a farmer and lives at Owusukrom Apradan, Kwahu West, in the Eastern Region of Ghana. He is a customary successor to an Aduana family member of Kumawu. According to him, the family appointed him to become the customary successor after the death of Yaw Kissi. He knows the plaintiff as the head of the Aduana family of Kumawu. He said, the 1st defendant is the grandchild of Akosua Fontowa, who was married to Kwame Asante. He knows the 2nd defendant who is the 1st defendant's nephew. He knows the 3rd defendant. He is also the nephew of the 1st defendant. He stated that, the house in dispute is numbered NJ 38 and is lying and situated at central Nkawkaw, in the Eastern Region of Ghana. He continued that, the house in dispute was originally owned by a Nigerian man called Oladipo who decided to sell it in a bid to relocate to Nigeria. Kwame Asante, who had knowledge of the intended sale informed the family, and Akua Donkor who was a Cocoa farmer, decided to buy the house. He stated that, after Akua Donkor had acquired the house, she caused the documents to be prepared in the name of her brother, Kwame Asante. Akua Donkor then gave one of the rooms to Kwame Asante as a caretaker and then rented out the rest of the rooms. After the death of Kwame Asante, the family appointed Kwadwo Donkor as his customary successor and he became a caretaker. He further stated that, after the death of Kwadwo Donkor, various persons were appointed as caretakers by the family these persons were Kofi Agyapong, Yaw Donkor, Kofi Donkor, and then Yaw Kissi. After their demise, they left their wives and/or children in the house until their eventual relocation or demise. He added that recently, the family decided to renovate the house as it was falling into ruins and therefore served notices on all the occupants of the property. The defendants herein resisted the decision of the family and have refused to move out. The defendants further assert that, the house belongs to their grandmother Akosua Fantowaa. The defendants have refused to pay for utilities or repair broken fixtures in the rooms they occupy. He said the defendants are also harassing other occupants of the house and meting out constant threats of eviction to lawful tenants of the family. That the defendants know very well that the house in dispute is his family property, which various customary successors were appointed by the family and made landlords. In cross-examination, he asserted that the name covering the property in dispute is Opanin Kwame Agyapong. He again asserted that, the subject property belongs to his family and that Akua Donkor bought the property for the family. He admitted that Kwadwo Donkor, kofi Agyapong, Yaw. Donkor, Kofi Donkor and Yaw Kissi succeeded the estate of Kwame Asante. He admitted that, the complaint to the chief of Obomeng 7 was discontinued, that explains the action in court. He admitted that, Akosua Fantowaa married Kwame Asante but denied they acquired properties. He insisted that, the land on which the property is situated belonged to Akua Donkor. He also admitted that, the property in dispute was registered in the name of Kwame Asante. He insisted that, the family is claiming the land and the house in dispute. He admitted that, all the children of Kwame Asante and Fantowaa were born on the property in dispute in the 1930s. He denied that, Akosua Fantowaa was a successful trader. He denied that, it was Fantowaa who purchased the property in the name of her husband. PW2 testified via her witness statement akin to the evidence of PW1 as follows: Her name is Akua Foriwaa. She lives at Owusukrom Apradan, Kwahu west in the Eastern Region of Ghana. She is a farmer. She is a member of the Aduana family of Kumawu. She knows the Plaintiff, he is the head of family of the Aduana family of Kumawu. She knows the 1st defendant, he is the grandchild of Akosua Fontowa who was married to Kwame Asante. She knows the 2nd defendant, he is the 1st defendant's nephew. She knows the 3rd defendant, he is also the nephew of the 1st defendant. She said the house in dispute is numbered NJ 38 and is lying and situate at central Nkawkaw in the Eastern Region of Ghana. According to her, the house in dispute was originally owned by a Nigerian man called Oladipo who decided to sell it in a bid to relocate to Nigeria. Kwame Asante, who had knowledge of the intended sale, informed the family and Akua Donkor who was then a Cocoa farmer decided to buy the house. After the acquisition of the house, she caused the documents to be prepared in the name of her brother, Kwame Asante. Akua Donkor then gave one of the rooms to Kwame Asante as a caretaker and then rented out the rest of the rooms. After the death of Kwame Asante, the family appointed Kwadwo Donkor his customary successor as a caretaker. After the death of Kwadwo Donkor, various persons were appointed as caretakers by the family these persons were Kofi Agyapong, Yaw Donkor, Kofi Donkor, and then Yaw Kissi. She further said these caretakers after their death left their wives and/or children in the house until their eventual relocation or demise. She added that, recently the family decided to renovate the house as same was falling into ruins and therefore served notices on all the occupants of the property. The defendants herein resisted the decision of the family and have refused to move out. The 8 defendants further assert that the house belongs to their grandmother Akosua Fantowaa. The defendants have further refused to pay for utilities or repair broken fixtures in the rooms they occupy. The defendants are also harassing other occupants of the house and meting out constant threats of eviction to lawful tenants of the family. It is her further case that, the defendants know very well that the house in dispute is her family property, which various customary successors were appointed by the family and made landlords. She said, various customary successors dealt with the property as family property without let or hindrance from the defendants nor anybody at all. In cross examination, she asserted that even though PW1 is the head of her family, the actual head of family is Kwadwo Frimpong. She again asserted that, the property in dispute belonged to her grandmother Akua Effah (also known as Akua Donkor). She said, Akua Effah gave her brother Kwame Asante money to buy the disputed property. She asserted that, the document covering the house was in the name of Kofi Agyapong the brother of Akua Donkor. She also asserted that, the document of the house is in the name of Kwame Asante. She said, Kwadwo Donkor, Kofi Agyapong, Yaw Donkor, Kofi Donkor and Yaw Kissi are successors in line to Kwame Asante in respect of the property in dispute. She admitted that, Akosua Fantowaa was a successful business woman but denied that the house belonged to her. The Defendants did not proffer evidence by themselves but instead invited three witness to testify for them. The defendants called George Ampadu who testified via his witness statement as follows: He is George Ampadu of House No. NJ 38, Nkawkaw popularly known as Payease. He does not know the Plaintiff either personally nor as Head of the Aduana Family of Kumawu. He knows the Head of the Plaintiff‟s family to be one Opanin Awuah. He knows the house in dispute, that is H/No. NJ 38 Nkawkaw. He lives in the house in dispute. He said, his late mother by name Denkyira Felicia also known as Yaa 9 Ataa got sick and was hospitalized at the Nkawkaw - Holy Family Hospital on the 26th of November 1995. Together with his younger brother by name Yaw Boateng (1st Defendant), they paid her a visit on the 27th day of November 1995 when they got there she had passed on. In her lifetime, his late mother confided in him being the eldest of her five (5) sons and told him that the document on the house they live in was with her and was lying in her trunk. He further added that, the disputed property was originally acquired jointly by madam Fantowaa and her husband, Opanin Kwaku Agyemang of Obo-Kwahu from the Obomeng stool. He said, on the death of Opanin Kwaku Agyemang, madam Fantowaa became the sole owner of property. He said, madam Fantowaa got married again to Opanin Kwame Asante from the Aduana Family of Kumawu.Madam Fantowaa was at all material times from the Asene Family of Obo-Kwahu and never from the Aduana Family of Kumawu. He added that, the Asene Family of Obo-Kwahu to which the late madam Fantowaa hailed has at all material times exercised acts of possession and occupation on the disputed land without hindrance from any quarters including the Plaintiff‟s family. He said for instance, the disputed property was plastered by Eric Owiredu Kissi the second Defendant. He further said, the disputed property was once painted by Yaw Opoku the 3rd Defendant without any hinderance. The whole disputed property was cemented by Yaa Yeboah, the mother of the 2nd and 3rd Defendants in the full glare of the Plaintiff, who did not raise a finger. He added that all the Defendants and their relatives have since lived in the disputed land till now. The Asene Family operated various trades on the disputed land to depict acts of ownership and possession of the disputed land. The Defendants Family operated a milling machine on the disputed land as well as sold palm wine and “Akpeteshie" on the disputed land. At a point in time, Madam Fantowaa let out part of the disputed land to a Nigerian who put up stores on the disputed land which stores the Defendants have been renting out to prospective tenants till date. He said, It is never the case that one Akua Donkor purchased the property in dispute but decided to use the name of Kwame Asante on the documents. He further added that, indeed no 10 document on the disputed property is in the name of Kwame Asante and at all material times it is the Defendant – Asene Family who have been in possession and control of the disputed property. He continued that, It is never the case that the Plaintiff served notice on the Defendants to quit the property in dispute and if any such notices were served on the Defendants, they would have disregard it as the property in dispute does not belong to the Plaintiff at all. He further said, after the plans of the Plaintiff to take their land from them had failed, the Plaintiff summoned the Defendants Family before the chief of Obomeng who went into the matter and decided in favour of the Defendants. He said, the Plaintiff being the descendants of Kwame Asante an Aduana Family man from Kumawu cannot claim any inheritance whatsoever in the property in dispute, the said property being the bonafide property of the Assene Family of Obo-Kwahu of which Madam Mary Akosua Fantewaa belonged. DW 1 tendered the following documents: • Property receipts from K.W.M.A for 2018-2021 dated 23/03/2021 Exhibit 1. • Property rate receipt from K. W.M.A for 2020-2021 dated 02/05/21 Exhibit 2 • Allocation of two rooms in House No. NJ38 Nkawkaw Central dated 27/7/2020 marked Exhibit 3 (Arbitration Award). • K.W.M.A Property Billing marked Exhibit 4. In cross examination, he asserted that he is on retirement but he used to work with the Cocoa Services Division. He admitted that, the property in dispute is House No. NJ 38 Nkawkaw Central. He again asserted that, the disputed house was acquired by Akosua Fantowaa and Opanin Kwaku Agyeman. He admitted that, it was her mother Yaa Ataa the eldest of her siblings who informed her about the ownership of the property. He said Kwaku Agyeman died before Akosua Fantowaa and Kwame Asante who married Fantowaa also died before her. He insisted that, Yaa Ataa her mother was appointed as 11 the customary successor to Madam Fantowaa. He admitted that, as of 1980 Akosua Fantowaa had died long ago. He also asserted that upon the demise of his mother Yaa Ataa in 1995 it was one Alice Denkyira who succeeded her and upon the demise of Alice Denkyira, Janet Asantewaa succeeded her. He disclosed that, Yaa Ataa is a daughter between Fantowaa and Kwaku Agyeman. He also disclosed that, Kwame Asante married Fantowaa after the demise of her husband. Kwame Asante was from the Aduana family of Kumawu. He admitted that, after the death of Kwame Asante, it was Kofi Agyepong who succeeded him. That after the demise of Kofi Agyapong Yaw Donkor succeeded him. Then after the death of Yaw Donkor kofi Donkor succeeded him. He admitted further that after the death of Kofi Donkor Emmanuel yaw Kissi succeeded him. He also admitted that as of 1994 it was Kofi Donkor who was managing the property in dispute and all the property rates tendered by him was paid in the name of Yaw Donkor including property rates covering 2018-2021. He also admitted signing Exhibit D and that his mother Yaa Ataa also thumprinted exhibit D. He again admitted that, as of 1987 when exhibit D was executed, he was 40 years old. He admitted that, 1st Defendant Yaw Boateng is his younger brother. He admitted Knowledge of Exhibit „E‟ and the fact that the case was dismissed when 1st Defendant took an action against a tenant in the District court Nkawkaw. He also admitted that, the disputed property was acquired before the birth of 2nd and 3rd defendants. He however asserted that, they once plastered the house and that one Yaa yeboah also cemented the floor of the house in dispute. He admitted he is not a member of the Aduana family. He asserted that, the head of the Aduana Family is Yaw Awuah but is deceased but finally admitted that Plaintiff is the head of the Aduana family. He said, 2nd defendant paid the bills of Yaw Okai when he was assaulted by him. He admitted he was present at the Obomeng Palace regarding the house and that Exhibit 3 has no signatures. He added that, the plaintiff did not attend to Obomenghene‟s call. He denied that, the only reason that he occupies a room in the house is because of his grandmother‟s marriage to Kwame Asante. He asserted that the property in dispute belongs to the Asene family. 12 DW2 Yaw Fosu also testified via his witness statements as follows. He lives in H/No. N 13, Accra Town Nkawkaw. He is a Taylor by profession. He has been on the disputed land since 1995. He got his shop on the disputed land when one Bidaa who hired out the shop to her son to operate, decided to vacate the shop and handed it over to him. He was paying his rent to the landlord the late Yaa Yeboah, the mother of the 2nd and 3rd Defendants and a sister to the 1st Defendant. On the death of Yaa Yeboah, Joyce Sasu from the Asene Family succeeded her and she collected rent exercising proprietary rights over the disputed land. He added that, since the death of Joyce Sasu, he has been paying his rent to the 2nd Defendant who has been receiving same for and on behalf of the Asene Family of Obo. The Asene Family held a meeting and directed that he pays the rent to the 3rd Defendant who was the eldest of the two siblings. He has been constantly paying rent to the 3rd Defendant till now. In cross examination, he asserted he does not know the house number of the property in dispute but has been operating his business in the property since 1995. He asserted that, Yaa Yeboah was his landlady but had no tenancy agreement from her. He said, he does not know Akosua Fantowaa, Kofi Donkor, Samuel Kissi. He insisted that, he works with his apprentices in a shop in the disputed property but resides at Winners chapel area. He asserted that, when Yaa Yaboah died Joyce Sasu was appointed to take rent from him. He said, he does not know Love Taylor,Adwoa Janet, Akosua Love, Adwoa Comfort, Kwadwo Donkor and Yaw Donkor. DW3 Abena Openya testified via her witness statement as follows:She lives in H/No. NI 268 Broad Water House, Accra Town Nkawkaw. She is a seamstress. She knows the Defendants in this suit she has been living near the land in dispute since the year 1990. She still lives near the disputed property. All this while, the Defendants‟ Asene Family has been the landlords of the disputed property. The disputed property lies opposite the Barclays Bank building to the east and also opposite the former Piccadilly Store to the south East. The disputed property is popularly known as Payease. At all 13 material times, the Asene Family are the owners of the house who put tenants on the land and collect rents from them. Among these tenants are; Mary Maku who operated a Bar on the land, Abena Opoku who also sold drinks on the land, Brother Mensah, Oforiwa, Yaw Ofosu, among others. It was the mother of the 2nd and 3rd Defendants who are sisters of the 1st Defendant who hired out the kiosks and the structures on the disputed land to the tenants. In Cross-examination, she asserted that she lives opposite the house in dispute. That the property is located at „Gate Akyi‟. She asserted that, since 1990 she has been living near the house in dispute. She does not know either Opanin Kofi Donkor nor Yaw Donkor but the 3rd defendant‟s mother whose name is Yaa Yeboah. She asserted that, the tenants on the property pay rent to the defendants. She said One Brother Mensah and Foriwaa paid rent to Yaa Yeboah. She used to assist Yaa Yeboah settle issues between the tenants and her. SUMMARY OF WRITTEN SUBMISSION BY COUNSEL FOR THE PLAINTIFF: • Counsel submitted that, the plaintiff sought for the intervention of the Obomeng chief but the matter was never determined so defendants cannot rely on res judicata. • That the defendants are not members of the Aduana family • Counsel contended that, DW1 George Ampadu admitted that all caretakers who were responsible for the management of the property in dispute were from the Aduana family. • Counsel submitted that, Exhibits 1, 2, and 4 are similar to exhibit A series tendered in evidence by the plaintiff depicting that the property rates were still being paid in the name of the late Yaw Donkor, a member of the Aduana family. • Counsel argued that, Exhibit B reveals that Kofi Donkor was responsible for the management of the property after the demise of Yaw Donkor and thereafter Emmanuel Kissi after the death of Kofi Donkor. 14 • Counsel argued that, per Exhibit D both DW1 and Yaa Ataa signed and thumbprinted respectively as witnesses to the transaction between Yaw Donkor as landlord and a tenant in respect of the property in dispute. DW1 admitted that he was 40 years old when the document was executed. • Counsel urges the court to reject the oral evidence in the face of the compelling documentary evidence which shows that the Aduana family are owners of the property. • Counsel further argued that, the defendants did not raise any objection to the management of the property by the plaintiff‟s family because after the death of Akosua Fantowaa,Yaa Atta succeeded her and her thumbprint acknowledged the plaintiff‟s family as landlords . Again, subsequent successors like Alice Denkyira, Janet Asantewaah and Akosua Love did not raise any objection to the plaintiff‟s family„s management of the property. • Counsel also contended that, in Exhibit E, 1st defendant admitted at page 3 of the said Exhibit that Yaw Kissi a member of the Aduana family is the landlord and not Love Taylor a member of the Asene Family. • Counsel contended that, the plaintiff as landlord can lawfully eject the defendants who are tenants under Section 17 [1] [e] of the Rent Act 1963 [Act 220]. Counsel further argued that, a tenant who denies title of his landlord forfeits his or her interest and could be evicted. • Counsel finally submitted that, even if defendant had any interest in the property same would have been extinguished by long effluxion of time in terms of the provision in the Limitations Act of 1972 NRCD 54. SUMMARY OF WRITTEN SUBMISSION BY COUNSEL FOR THE DEFENDANTS 15 • Counsel submitted that, the defendants have maintained that they are from the Asene family of Obo. • That the plaintiff never lost any documents of the house as postulated by them. • That defendants have been renting out some of the rooms in the house to tenants and the 1st defendant was the one exercising acts of ownership over the house. • That per exhibit E as of 2016, it was the 1st defendant who was exercising rights over the premises in dispute as the landlord. • That there are pieces of evidence that the 2nd and 3rd defendant and their late mother collected rents and exercised right over the property as landlords. That Yaa Yeboah the 3nd defendant‟s mother collected rent in respect of the property. • The evidence of PW2 Akua Oforiwaa buttresses the testimony of the defendants that their grandfather acquired the property in dispute and that, various members of the plaintiff‟s family only succeeded to the property. As a result, the payment of property rates by the successors is inconsequential since they dealt with the property as the property of Kwame Asante and not as family property. • That Akosua Fantowaa acquired the property from her previous marriage and so upon the death of her husband, it devolved unto her and now on her Asene family. That the Asene family members have been renting the stores and exercising proprietary rights over the land. • That Kwame Asante was administering the property on behalf of the real owner Akosua Fantowaa. • The defendants cannot be ejected from the property that belonged to their grandmother because they have been letting out the rooms as landlords. • According to counsel, no much evidence was led on the alleged arbitration. THE BURDEN OF PROOF: 16 The law is settled that, in a civil case where no crime has been alleged by either party against the other, the standard of proof is on preponderance of probabilities as stated under section 11 (4) and 12 (1) of the Evidence Act, 1975 (NRCD 323). Also see: Yorkwa V. Duah (1992-1993) GBR 278 CA. The standard of proof carries with it a burden on a party to produce sufficient evidence so that, on all the evidence a reasonable mind could conclude that, the existence of the evidence or the fact is more probable than its non-existence. See: Ackah V. Pergah Transport Ltd & Ors (2010) SCGLR 728 Gihoc Refrigeration & Household Products Ltd V. Hanna Assi (2005-2006) SCGLR 458. In most cases, the burden of proof may rest with the plaintiff who brought the matter to court. However, where a defendant files a counterclaim, then he also has a burden to prove his counterclaim on preponderance of probabilities if he did not allege any crime. Now regarding the issues at stake, the arbitration which the parties pleaded and led evidence on in my opinion, should be determined as a preliminary legal point. The law is settled that, if there is a legal point of law which is evident from the record of proceedings, and it involves a substantial point of law which can dispose of the matter in one way or the other, then it should be decided. It can even be determined in some cases where it was not specifically pleaded but is evident from the record as in cases of fraud. In this case however, it has been specifically pleaded by the parties and they led some evidence on it and tendered document in that regard. See: - Kwaku V Serwah and Ors (1993-1994) 1 GLR 429 SC - Kwantreng V Amassah and Ors (1962) 1 GLR 241 SC - Attorney General V Faroe Atlantic Co. Ltd (2005-2006) SCGLR 271 - Kowus Motors V Check Point Ghana Ltd (2009) SCGLR 230 17 In my view, the main issue for determination in this case is as to whether there was a valid arbitration over the disputed house. All other issues are tangential to this main issue. Again, if the said issue is answered in the affirmative, the court would not have capacity to determine the other issues. The rest of the agreed issues would only be determined when the issue pertaining to the Arbitration is unsuccessful. Then, the court will determine the salient issues depending on the pleadings and evidence led so far. In the case of Fatal V. Wolley (2013-2014) 2 SCGLR 1070 at page 1076, Georgina Wood CJ (as she then was) said as follows: “Admittedly, it is indeed sound basic learning that courts are not tied down to only the issues identified and agreed upon by the parties at pretrial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot, or even not germane to the action under trial, there is no duty cast upon the court to receive evidence and adjudicate upon it. The converse is equally true. If a crucial issue is left out, but emanates at the trial from the pleadings or the evidence, the court cannot refuse to address it on the ground that it is not included in the agreed issues”. Also see; Environmental Development Group Ltd V. Provident Insurance Co. Ltd & 2 Ors (Unreported) Civil Appeal No J4/31/2019, dated 18th March 2020, SC. The law allows a court not to restrict itself to the resolution of all the issues set down in the application for directions. The law is that, a court of law is not bound to consider every conceivable issue arising from the pleadings and the evidence. If in the opinion of the court, few of the issues could legally settle the case in accordance with the law. See: Vicentia Mensah V. Numo Adjei Kwanko II (2018) 117 GMJ 76 SC. RESOLVING ISSUE ONE: Whether or not there was a valid arbitration. 18 The issue as to whether there was a valid arbitration over the disputed house between the parties was pleaded by both parties and they led evidence on it. It would therefore be in consonance with settled law, equity and good conscience for it to be determined as a preliminary legal point which is required by law. May I reiterate that the other issues will could only be considered depending on the merit of the issue pertaining to the arbitration. In the celebrated case of Pong V. Mante IV and Ors. (1964) GLR 593. Arbitration was defined as follows: “The practice whereby natives of this country constitute themselves into an adhoc tribunal, popularly known and called arbitrators for the purpose of amicably settling disputes informally between themselves or their neighbours which has long been recognised as an essential part of our legal systems, provided all the essential characteristics of holding valid arbitrations are present, the courts will undoubtedly enforce any valid award published by such adhoc bodies”. The essential requirements of a valid customary arbitration are as follows: a) Voluntary submission to the arbitration b) Prior agreement to accept the award c) Publication of the award See: - Mansah & Ors V. Adutwumwaa & Ors (2013-2014) 1 SCGLR 38. - Ankrah V. Dabra (1956) 1 WALR 89 WACA - Manu V. Kontre (1965) GLR 375 SC - Nyaasemhwe V. Afibiyesan (1977) 1 GLR 27 CA 19 Customary arbitration need not follow any formal procedure as to how it is initiated or heard. However, the rules of natural justice should be followed. This means, each party must be given the opportunity to present his or her case before the arbitrators. See: Mansah & Ors V. Adutwumwaa & Ors (Supra) Dzasimatu & Ors V. Dokosi & Ors (1993-1994) 1 GLR 463 SC. In this case, the plaintiff led evidence that, there was attempt of arbitration in respect of the disputed house which was presided over by the Chief of Obomeng. The chief met the parties severally, and on one occasion the plaintiff informed him that the family has documents in respect of the house in dispute. The chief demanded that same be presented on the next meeting. Plaintiff said on the next day, he was on his way to the meeting with the documents when the defendants attacked him and seized his bag containing the documents and an amount of 715. According to the plaintiff, he lodged a complainant with the police and from that day his family decided to pursue the matter in court. On the part of the defendant, they testified that the Obomeng Chief heard the matter after the plaintiff was invited severally, but he did not attend his call. An award was published in their favour being exhibit 3. It should be noted that, apart from mere recitals, the plaintiff could not prove his allegation of a documents on the land which was snatched away from him as alleged, within the definition of proof as defined in the case of Majolagbe v. Larbi [1959]1 GLR 190 pg. 192. It should also be noted that, it is the defendants who are relying on this arbitration since the plaintiff insisted that the arbitration was not concluded but abrogated. Therefore, the onus is on the defendants who are relying on it to provide evidence to substantiate their assertion. 20 The defendants provided Exhibit 3. However, same was denied by the Plaintiffs with the accusation that it was prepared by themselves and therefore self-serving. Reading Exhibit 3, it is evident that none of the parties signed the said award as exhibited. In fact, Plaintiff insisted that the award as in Exhibit 3 was drafted by the defendants but no evidence was called from the palace to rebut that. See; Aryeetey V. Brown (2006) 5 MLRG 160 CA Again, Defendants who relied on Exhibit 3 did little to prove that the said Arbitration was voluntary even if the document [Exhibit 3] was not signed. In any case, customary law knows no writing. Therefore, the absence of signatures on exhibit „3‟‟ will not invalidate an award which was published by the arbitral panel in respect of the house in dispute, if all the evidence show that the award was taken out of a voluntary arbitration. However, since no evidence was called to establish voluntary submission and as to whether the content is actually from the Obomeng chief‟s palace [the Arbitral panel], I am unable to rule that there was an arbitral award taken under voluntary submission by both parties. There was no evidence that the plaintiff who is said to have initiated the arbitration paid the summons fees. The parties gave evidence and each cross examined the other. Counsel for plaintiff raised issue about the supposed written award and contended that, there was no valid arbitration. It is however the law that, arbitration need not follow any formal procedure. The most important thing is for the rules of natural justice to be observed. However, with the claim of arbitration in this suit, no independent witness was invited from the arbitral panel to testify in court. The courts have held that, the evidence of such independent witnesses are to be held in high esteem. In the case of Boateng V. Boateng (2009) 5 GMJ 58 at 64 the Court of Appeal held that, “where the evidence of the only independent witness on a vital issue 21 corroborates the evidence of one party or the other, a court is bound to accept the case of the party so corroborated by the independent witness (emphasis mine) unless, there are good reasons for discrediting the independent witness in which case, the reasons must be clearly stated in the judgment”. See also the case of; Asare V. Donkor and Serwah II (1962) 2 GLR 176, Manukure V. Agyekum (1992-93) 2 GBR 888 CA. I have good reason to reject the evidence of the defendants on the arbitration claim and for that matter exhibit 3. This is because, they did not call further evidence when the content or the award was denied. The evidence before me which I find as a fact is that, no arbitral panel published an award as in Exhibit 3. The submission of Counsel for the defendants attested to this fact. In my candid opinion, the proceedings before the arbitral panel does not satisfy all the requirements of a valid customary arbitration as was held in the case of Mansa & Ors V. Adutwumwaa & Ors (supra) What then is the effect of a successful customary arbitration? a) Its award is final. Nobody or any court can re-litigate over it. A court is only to enforce it or set it aside if it is tainted with fraud, breach of natural justice etc. There is no right of appeal. b) It operates as estoppel by conduct and resjudicata. c) The parties and their privies are bound by the award. d) It should be dealt with before the merits of the case are determined. e) The rule is that, once there is a valid customary arbitration, the parties are estopped from raising the same issue subsequently by any action in court. The principle is that; you take your arbitrators for better or for worse. See: - Appiah V. Addai (1962) 1 GLR 345 SC 22 - Vado V. Sampede (1957) 3 WALR 35 It is therefore the law that, if an action succeeds on a plea of statute of limitation, lack of jurisdiction, estoppel or as a result of a valid arbitration or lack of locus standi, the trial court should not proceed to determine the merits of the case. It also means that, the action has lapsed by operation of law. See: Stephens V. Apoh (2010) 27 MLRG 12 CA. This is not the Situation or what occurred in this case, so the court will continue to determine the other issues. As earlier discussed, the court is not compelled to address all the issues as contained in the directions unless evidence were led on the said issues. Having considered the entire evidence at stake, there are two germane issues apart from the issue [arbitration] disposed of. These are: i] Whether the house in dispute is the family property of plaintiff‟s Aduana family of Kumawu or the Defendants Asene Family of Obo. ii] Whether the Defendants can be ejected from the disputed property to enable same to be renovated. It should be noted that, though the Defendants also pleaded fraud and gave particulars of fraud, fraud was never proved to the Hilt. Besides the law is that, pleadings are not evidence per se, see Agyeiwaa P&T Corporation (2007-2008) SCGLR985 at 994. It is also the law that, the fact that fraud has been mentioned in an action does not necessarily demand the attention of the court. See In Re Agyekum & Ors v. Tackie & Ors (2005-2006] SCGLR 851. The alleged indenture which the defendants claim to have been fraudulently acquired by the plaintiff and his family was never proved nor identified neither did the defendants and their witnesses testify to it, even though same was pleaded. Similarly the plaintiff could not establish the document of the house allegedly snatched from him by the defendants. In the view of the court, no such document existed as alleged by the plaintiff. This is because, the said allegation was 23 denied and so the plaintiff should have provided other prove apart from the mere recital to buttress his assertion. ADDRESSING THE REST OF THE SALIENT ISSUES: [2] Whether the house in dispute is the family property of plaintiff’s Aduana family of Kumawu or the Defendants Assene Family of Obo. It is worth noting that, there are undisputed facts on record. It is not in dispute that the plaintiff is from the Aduana family of Kumawu. It is also not in dispute that the Defendants are members of the Asene family of Obo Kwahu. It is not in dispute that Defendants are relations of one Akosua Fantowaa who married Kwame Asante who is from the Aduana family of Kumawu and they had children from that marriage. It is also not in dispute that the said marriage of Akosua Fantowaa to Kwame Asante was her second marriage after the demise of her 1st husband, Kwaku Agyeman. It is not in dispute that the house in dispute was acquired in and around the 1940s. It is also not in dispute that, the Defendants reside in the house and they have been renting some spaces on the land and some rooms out to tenants just like the plaintiff Aduana family. In Aryee vs. Shell Ghana Ltd. & Fraga Oil [2017/2020] SCGLR 721, the Supreme Court speaking through Bennin JSC observed at 733 as follows: “It must be pointed out that, in every civil trial, all that the law requires is proof by a preponderance of probabilities”. See Section 12 of the Evidence Act 1975 NRCD 323. The amount of evidence required to sustain the standard of proof will depend on the nature of the issue to be resolved. In the instant case, therefore, this court will at the end of it all determine whose case is more probable than the other or likely to be true of the rival version. 24 Shall it be the Plaintiff or the Defendants? I proceed now to link the burden of proof as earlier stated with the pleadings in this case as well as the issues to be determined with the view to allocating the evidential burden on the parties. The law is quite trite that, the person who asserts must prove. In Mintah Vs. Ampenyin [2015/2016] 2 SCGLR 1277, the principle was stated in holding 2 of the head notes that: "The appellant who asserted that she has contributed to the construction of the Respondent's house in issue, per the provisions of Sections 11 (1) and (4) of the Evidence Act 1975 NRCD 323 had the burden of producing sufficient evidence on the claim to avoid a ruling against her on that issue." Also see the following cases; 1. Bank of West Africa Vs Ackun [1963] 1 SCGLR 173. 2. Ecobank Nigeria PLC Vs. Hiss Hans Housing Agency [2017/18] SCLRG 935. In this case the plaintiff is the one who brought the defendants to court. The defendants are not counterclaiming for the property. The Defendants therefore need not proof anything but to raise doubts. Unless they make assertions of fact which the burden of proof would shift unto them. See Agbosu And Others V. Kotey And Others [2003- 2005] SC 1 GLR 685 dated 5/5/04. In the instant case, the plaintiff claims that the house in dispute is the family property of the Aduana Family of Kumawu. Plaintiff narrated that, his predecessor Akua Donkor a.k.a. Akua Effah bought the property through her brother Kwame Asante from a Nigerian in the 1940s. This was corroborated by his witnesses. Plaintiff also gave evidence that, his predecessors who were members of the Aduana family were appointed as caretakers and landlords of the property including, Kwame Asante, Kwadwo Donkor, Kofi Ayapong, Yaw Donkor, Kofi Donkor and Yaw Kissi. He also depicted the family property ownership by tendering evidence of property rates and rent agreements with tenants and other documents as Exhibits A –A4, B –B2, C, D 25 and E. He added among others that, the successors left their children in the house upon their demise. He said, some of these children also gave birth and either left the house and some still live there. The 1st defendant is a grandchild of the wife of Kwame Asante Akosua Fantowaa and 2nd and 3rd defendants are nephew of 1st defendant. Plaintiff added that, the house is almost in ruins and upon serving notices on the defendants to vacant the premises for renovational purposes they have refused to move claiming that the house belongs to their grandmother who was from the Asene Family. With this information, the plaintiff has been able to somehow prove the Aduana family‟s root of title, mode of Acquisition overt acts of possession see the case of Mary Larley Nunoo V. Manase Ataglo [J4/73/2018][2020] Unreported SC [28 July 2020] Dordzie [Mrs] JSC. Plaintiff called two other witnesses who corroborated his story one way or another as numerated above. At this stage, it is fair that the plaintiff and his witnesses have led some evidence in support of his case and in support of the evidential burden allocated to him together with his witnesses. Notably, however, the defendants did not counterclaim. Going by the dictum of Brobby JSC in the case In Re Ashalley Botwe Lands, Agbosu & others v. Kotey & Others [2003-2004] SCGLR 420, ''The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows; a litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time if a court has to make a determination of a fact or an issue and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour.'' 26 Hence, it is necessary for this court to also look at the nature of the evidence produced by the defendants and evaluate if same satisfies their assertion that they are not tenants of the plaintiff‟s Aduana family and that they are in lawful occupation of their grandmother‟s Asene family of which they belong. Mindful of this duty, the defendants called three witnesses to prove their case on their behalf. Their star witness DW1 mounted the box and testified that the house in dispute belongs to the Asene family of Obo. This is because, the late Akosua Fantowaa acquired the said property with her late husband one Mr. Agyeman and upon his demise the property devolved unto the late Akosua Fantowaa. He added that, Akosua Fantowaa remarried one Kwame Asante and had 4 children in her marriage with him. He said his Mother Yaa Ataa is the eldest of Fantowaa‟s children from her marriage to Mr. Agyeman. Upon Akosua Fantowaa‟s demise, the property reverted to her Asene family where she belonged to. That Presently the Grandchildren of the late Fantowaa and the Asene family are in possession of the property and have rented portions to tenants and are the landlords and landladies of the property. This story was corroborated in part by DW2 and DW3. DW1 tendered Exhibits 1 to 4 to buttress their case. Now, whose story is more probable? It should be noted that the building was acquired in the 1940s before both the plaintiffs and the defendants were born and prior to PNDC LAW 111. It is worth noting that, at customary law, the self-acquired property of a deceased member of family vests in the successor for and on behalf of the family and thus clothing the successor with responsibility to litigate the family‟s title to such property, see the case of Korang v. Bulley GLR [1965] 469. Granted the house was purchased by Akua Donkor or Kwame Asante who died before 1980, upon their death, the house will devolve unto their family which is the Aduana family of Kumawu. Besides, granted the house was acquired by Akosua Fantowaa who was also said to 27 have died before 1980, the house will devolve on her Asene Family of Obo Kwahu and not on their children per se. It should be noted that the parties are all Akans who practice the matrilineal inheritance. Interestingly, both parties relied on traditional evidence of how their Predecessors acquired the disputed property to buttress their respective positions . See: Comfort Offeibea Dodoo v. Nii Amartey Mensah (Civil Appeal Suit No. J4/12/2019) [2020] Unreported SC (05 February 2020) Dotse JSC. Again, the Supreme Court in the case of Achoro v Akanfela [1996-9] SCGLR 209, particularly at 213, Acquah JSC, (as he then was) spoke with unanimity as follows:- “Now part of the evidence led by both parties is traditional, and the best way of evaluating traditional evidence is to test the authenticity of the rival versions against the background of positive and recent acts." Emphasis. Also, in the case of In Re Taakyen and Asaago Stools; Kumanin II (substituted by) Oppon v. Anin [1998-99] SCGLR 399, the Supreme Court held in holding one as follows:- "In assessing rival traditional evidence, the court must not allow itself to be carried away solely by the impressive manner in which one party narrated his version, and how coherent that version is, it must rather examine the events and acts within living memory established by the evidence, paying attention to undisputed acts of ownership and possession on record; and then see which version of the traditional evidence, whether coherent or incoherent, is rendered more probable by the established acts and events. The party whose traditional evidence such established acts and events support or render more probable must succeed unless there exists, on the record of proceedings, a very cogent reason to the contrary." Emphasis 28 As has been already started, traditional evidence is weighed with more recent occurrences. Firstly from the exhibit A, A1-A4 tendered by the plaintiff even though the property in dispute is said to have been acquired by one Akua Donkor but in the name of Kwame Asante, the property rate is in the name of Yaw Donkor who is said to have succeeded Kofi Agyepong who also succeeded Kwame Asante, All these succession in line are from the Aduana family. Moreover what is revealing is that, from Exhibit D as at 1987 Opanin Yaw Donkor who is said to be a caretaker of the house by both Plaintiff and Defendants wrote to tenants occupying 3 store rooms in the house to repair, maintain and live in for 7 years. In the said letter, the said Yaw Donkor an Aduana who is said to be a successor to Kofi Agyapong who also succeeded Kwame Asante, introduced himself as landlord on the said tenancy agreement. The document was witnessed by DW1 and his mother Yaa Ataa, all from the Asene Family of Obo. While the said Yaw Donkor is from the Aduana family. In cross examination by counsel for the plaintiff, DW1 did not mince words when he concurred that he witnessed the said agreement together with his Mother. It should be noted that Dw1 is literate having worked with the Cocoa Services Division of the Cocobod. He was then 40 years old when he witnessed the document. See pg. 44- 45 of the proceedings (cross-examination of DW1 by Counsel for Plaintiff): Q] Have a look at exhibit D did you sign it ? A] Yes I did. Q] Your mother Yaa Ataa also thumbprinted exhibit D? A] Yes it is correct. Q] As of 1987 you were 40 years? A] Yes it is correct. 29 In my view, if Yaa Ataa became the successor to Akosua Fantowaa why did she not sign as land lady if the property indeed belonged to the Akosua Fantowaa and for that matter, an Asene Family property. In fact, DW1 could have also signed the said document to protect the Asene family property if indeed the property in dispute was acquired by Fantowaa his grandmother, and for that matter for the Asene family. The above notwithstanding, in 1994 per exhibit B opanin Kofi Donkor who succeeded Yaw Donkor took over the Premises as a landlord and a caretaker and invited tenants in the disputed property for a meeting to enable him reach new terms of agreement with them referring to them as squatters in the house since the original tenants occupying the store rooms per his records were nowhere to be found. Kofi Donkor was also from the Aduana family and a successor in line to opanin Yaw Donkor. Exhibits B1 and B2 show how successors in line in the Aduana kumawu family handled the property as landlords after the demise of their predecessors in the Aduana Family. Exhibit C which is also notice to quit served on all tenants in the house for renovation purposes was also written in 2011 signed by Emmanuel Kissi also known as Yaw Kissi, one of the successors in line in the Aduana family, and a successor to Kofi Donkor. What is more revealing is exhibit E, the judgement of the District Court. A suit in which the 1st defendant took some tenants to court on rent matters. It was disclosed in this judgement that, 1st defendant herein [then plaintiff] confirmed that Love Taylor an Asene family member was not the landlady of the house but instead Yaw Kissi an Aduana family member. The said judgement disclosed that, the present 1st defendant was tasked by Yaw Kissi an Aduana family member to collect rent from the tenants. 1st defendant lost the suit for want of capacity to sue because he was not the landlord. In the view of the court, the above pieces of evidence show that irrespective of who acquired the property from the Aduana family line, the family has been in effective possession of the land. Renting and managing tenants and paying property rate. 30 What about the case of the defendants and the exhibits tendered through DW1? It is the case of the defendants that, they have been in effective possession of the property also renting and managing tenants. They also have a different traditional evidence pertaining to the acquisition of the premises from that of the plaintiff. What is disturbing about the exhibits of the defendants is that, even though they claim the property in dispute as an Asene family Property all the exhibits tendered by the defendants in the form of property rates payment exhibits; 1, 2, and 4 are all in the name of Yaw Donkor who is an Aduana and who was a successor to Kofi Agyapong also an Aduana and a successor to Kwame Asante. What is even more revealing is that, Exhibit D was signed in the presence of Asene Family members when the said Yaw Donkor had described himself as the landlord of the premises. The law as stated in Section 26 of NRCD 323, the Evidence Act of Ghana states: “Except as otherwise provided by law, including a rule of equity when a party has, by his own statement, act or omission, intentionally and deliberately caused permitted another person to believe a thing to be true and act upon such believe, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest.‟‟ The Aduana family has for ages held the disputed property in their name carrying it from one successor to another and the documentary evidence attests to this. Irrespective of any other documents they claim to be missing without prove of same. It is settled law that documentary evidence should prevail over oral evidence. Thus where documents supported one party‟s case as against the other, the court should consider whether the latter party was truthful but with faulty recollection see the case of Fosua & Adu-Poku v. Duffie [deceased] & Adu-Poku Mensah [2009] SCGLR 310. 31 On the Defendants claim to possession and for the fact that they equally rent some rooms and spaces in the house and on the land to others, the law is that possession is good against the whole world except the real or actual owner. Therefore, a person who exercises acts of ownership over a property is presumed to be the owner of it when none was able to show good title, because of want of evidence or the evidence is confusing and conflicting, then the safest guide is to determine the rights of the parties by reference to possession. See Fourdjour v. Kaakyiri [2015] 585 G.M.J pg. 80. Again, in Mumuni v. Nyamekye [2013] 58 GMJ 35, CA at 66, the Court of Appeal decided that : “A person in even a de facto possession of land in the assumed character of the owner and exercising all ordinary ownership rights, has a perfectly good title against the whole world except the rightful or real owner‟‟. There is no gainsaying that possession is nine point of the law. However, in this suit the plaintiff has been able to procure both documentary and oral evidence to show that the property belongs to their Aduana family. Besides, Defendants own document tendered as in Exhibit 1, 2, and 4 corroborate Plaintiff‟s assertion. The law is that, where the evidence of a party on a point in a suit is corroborated by witnesses of his opponent [in this case oral and documentary evidence of his opponent] and same issue stands uncorroborated even by his own witness, a court ought not to accept the uncorroborated one in preference to corroborated version unless for a good and apparent reason the court finds the uncorroborated version incredible, impossible or unacceptable, see Banahene V. Adinkra & Ors [1976] 1 GLR 346. It should be noted that, both parties made reference to estate of deceased persons which the Apex court has warned that such a claim should be properly scrutinized with utmost suspicion. See Elizabeth Osei v. Madam Alice Afua Korang [2013] 58 [GMJSC 1 per Ansah JSC. 32 However, due to the relationship between the two families l am not surprised that defendants have lived together with the plaintiff‟s family even to an extent of maintaining the property by plastering and painting same. It should be noted from Exhibit E that 1st defendant was assigned by Yaw Kissi to take rents. However, there is no evidence of accounts after the demise of Yaw Kissi. This may be due to the dispute in ownership, and that can hardly be properly considered possession in law. On the totality of the evidence, I am satisfied that the said Aduana family is the rightful owner of the disputed property including the land on which the property is situate. I therefore settle Issue two in favour of the plaintiff who sues as the head of the Aduana family. This leads us to the third issue which is: 3] Whether the Defendants can be ejected from the disputed property to enable same to be renovated. I must reiterate that, the court is not startled that the Asene family members still continue to reside in the premises in dispute as per their evidence and per Exhibit „E‟. On the totality of the evidence, the family members rent some of the premises and also have been living in the said premises for ages. It should be noted that they were also paying property rates and taking rent. However, they paid property rate in the name of the Aduana family representative who is tagged owner. It should be noted that there is a strong connection between these two families as a result of the marriage between Kwame Asante an Aduana of Kumawu and Akosua Fantowaa an Asene of Obo. Through successive births and marriages both families have long lived together in the premises for ages even though per the totality of the evidence, there has been challenges as to who is to receive rent or rent the premises Out see Exhibit „E‟. It should be noted from Exhibit E that, 1st defendant was assigned by Yaw Kissi to take rents. However, there is no evidence of accounts of rent after the demise of Yaw Kissi. May I reiterate that, this may be due to the dispute in ownership and that can hardly be properly 33 considered as possession in law. The same title dispute is what has also instigated other Asene family members to be taking rent without accounts. The law is that possession that is challenged to an extent that the tenant refuses to pay rent to the purchaser or landlord on account of challenge to his title will not be considered as possession in the eyes of the law. Possession is anything but quite enjoyment. See the case of Kama Health Services Limited vs. Unilever Ghana Limited, [Civil Appeal No. J4/24/2013] delivered 19th July 2013 (Unreported). The position then is that the Plaintiff’s family having failed to give legal title of the property to the defendants and their Asene family, the later could not claim to have possession. Whatever rents the tenants pay to the defendants is for the Plaintiff’s family who still has legal right to the property. It should be noted that, per the evidence of the Plaintiff, the property is in a dilapidated state and needs renovation. This has been denied by the defendants, however since it has been adjudged that the plaintiff‟s family are the bonafide owners of the property they know how they wants their premises to look like. Besides per exhibit „C‟, there is no doubt that the property has fallen into ruins for quite a long time and the said Aduana family has had it on the table since 2011 to put it in a good condition. Section 17 [1] [e] of Act 220 also cited by counsel for the plaintiff allows for lawful ejectment for renovation purposes when in the opinion of the court the building is in a dilapidated state owing to acts of waste or neglect or default of a tenant . It is not surprising that, the plaintiff‟s family is seeking to eject the defendants because they are denying their title. See Mensah v. Darko [2014] 1 SCGLR 241 SC. In the view of the court, the Plaintiff‟s Aduana family as owners of the premises may eject all tenants including the defendants‟ in the disputed house for the purpose s of renovation, but they should be given enough notices for them to look for alternative 34 accommodation. The notices should not be less than 6 months. However, equity requires that these tenants including the defendants be given 1st option to rent the premises after the renovation if they intend renting or should the same be put out for rental. The Latin legal maxim goes like „quid quid plantatur solo solo credit‟ whatever is affixed to the soil belongs to the soil that is, something that is affixed to the land becomes part of the land. Consequently, whosoever owns that piece of land will also own the things attached. Therefore, all buildings or rooms or stores affixed to the said house or land space of the house No. NJ 38 is part of the house except containers which can be easily removed. I have no doubt that, the Plaintiff‟s family earlier served the defendants with eviction notices through Yaw Okai whom the 2nd defendant assaulted and was made to pay his medical bills. See the admission of Dw1 at pg. 46 of the proceedings. In conclusion, in the view of the court and on the totality of the evidence before me, title to the disputed property House No NJ 38 Central Nkawkaw is hereby declared to the plaintiff‟s Aduana family of Kumawu including all the spaces around the said house which form part of the land on which the house is situated. I also order for the ejectment of the defendants for the purpose of renovation and for them to be given first option for rental, if same is to be put out for rental after the renovation. The Defendants should be given 6 months written notice before the ejectment. The ejectment notices could even be posted on the stores/premises the defendants are occupying. The 3rd issue is also decided in favour of the plaintiff’s family. It should however, be noted that this ejectment order will also affect owners of containers and kiosks mounted on any part of the land on which the disputed property 35 is located unless there is an agreement to the contrary from the plaintiff’s family. All the plaintiff‟s reliefs on the writ of summons are upheld. Cost of GH¢15,000 against the defendants in favour of the plaintiff. (SGD.) JUSTICE CYNTHIA MARTINSON (MRS) HIGH COURT JUDGE