SIRIBOE & 3 ORS V ASAMOAH & 2 ORS (C1/216/2021) [2024] GHAHC 428 (31 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN THE ASHANTI REGION, KUMASI ON THURSDAY DAY THE 31ST DAY OF OCTOBER, 2024BEFORE HERLADYSHIP JUSTICEHANNAH TAYLOR(MRS). SUIT NO. C1/216/21 1.MADAMMARGARET SIRIBOE PLAINTIFFS 2.KWAMEANINAKWA 3.MRS. NKATIAH 4.NANA KWAMEAGYEMAN(JUANSAHENE) FORTHEMSELVESAS BENEFICIARIESOF THELAST WILLANDTESTAMENTOF THEIR LATEFATHER, MR. DANIEL KWAMEBONA SIRIBOE H/NO. MM81,MBROM –KUMASI VRS. 1. MADAMKATEASAMOAH DEFENDANTS 2. AMABOAKYEWAASIRIBOE 3. AWURA AFUA _____________________________________________________ JUDGMENT _____________________________________________________ The plaintiffs seekthe following reliefs against the defendants: - 1 1. A declaration that as the majority owners of almost the whole of H/No. MM 81, Mbrom, Kumasi and all the land area around the buildings standing thereon, they are entitled to a vast majority of the said land area of the said plot, land or property. 2. The defendants are liable to account to the plaintiffs for all the proceeds from the said land area upon which the defendants have built or constructed commercial stores from which the defendants have realized and continued to realize huge income or profits for which they (defendants) have refused to account to the plaintiffs and pay to them (plaintiffs) the appropriate share of the said proceeds due tothem(plaintiffs). 3. Recovery of possession of the appropriate portion of the said commercial stores constructed on the plaintiffs’ portion of the said land area of the said plot commensurate with the majority size or share of the said land area of the said plotNo. MM.81,Mbrom, Kumasi. 4. An order compelling the defendants to remove any portions of the said commercial stores which have blocked access to the said whole House or PropertyNo.MM81,Mbrom, Kumasi. 5. Any other or further orders as shall be just in this case, including an order of perpetual injunction restraining the defendants, either by themselves or by their agents, assigns, workmen or any other persons claiming for and on behalf of the defendants acting through them from ever interfering with the said majority 2 portion of the said commercial stores in the said majority land area of the said Plot orProperty No.MM81,Mbrom, Kumasi. 6. An order compelling the 1st, 2nd and 3rd defendants herein to render accounts of all the rents or other proceeds which they have collected from tenants in relation to their possession of the nine (9) commercial stores and one warehouse constructed on the said undeveloped portions of their said property or house numberMM81,Mbrom, Kumasi. PLAINTIFFS’CLAIM The plaintiffs described themselves as children of the testator, Daniel Kwame Bona Siriboe whose Will is dated 22nd day ofFebruary, 1982. The testator having passed on4th day of April, 1982, the named executors of his Will took probate on 31st day of May, 1982, and thereafter executed a vesting assent for all the named beneficiaries. The plaintiffs are the beneficiaries of the main two storey building on the Plot No. MM81 Mbrom and an outhouse. Thus, making them majority beneficiaries of the property, No. MM81,Mbrom, Kumasi. The 1st defendant, one of the widows of the testator was given an outside comprising a chamber, a hall, a garage, one bath, a toilet and kitchen which constitute a very small portion of the property MM81, Mbrom Kumasi. On the devise to the 1st defendant, the testator added that upon her demise the devised property should go to the children he 3 had with the 1st defendant being the 2nd defendant Ama Boakyewaa and Nana Kwame Bona Siriboe who iscurrently outofthecountry. The plaintiffs contend that the devised property also has a large portion of land area which is undeveloped. With a greater portion of the property devised to them, then, it necessarily follows that a vast majority of the said undeveloped land area belongs to them. Their entitlement they assert is 90o/ of the undeveloped area. However, after the o vesting of their respective devises, the plaintiff noticed that the 1st defendant acting through 3rd defendant a daughter of the of the 1st defendant and not a child of the testator constructed a large warehouse on a portion of the undeveloped land without the knowledge and consent or permission of the plaintiffs. The 1st plaintiff protested against their actions when she got to know same but this degenerated into a quarrel. Though the 1st plaintiff lodged a complaint against the 1st defendant with the 4th plaintiff for an amicable settlement, the 2nd and 3rd defendants refused to co-operate with the plaintiffs for a resolution. Subsequently, 2nd and 3rd defendants started to construct other commercial stores on the undeveloped land area and all protests were ignored. The 2nd and 3rd defendants have constructed nine (9) commercial stores on the undeveloped land area, been collecting huge sums from the tenants and the defendants have refused to disclose the amount of money or proceeds realized from the stores and warehouse. 4 In the circumstance that they are majority owners of the property MM 81 Mbrom, the defendants are liable to account to them of all proceeds collected from commercial storesandwarehouse. Hence, the reliefs sought. DEFENDANTS’ CASE The defendants admit the devise made by the testator as stated by the plaintiffs. However, they denied the existence of a large undeveloped land area on the property. They admitted that 1st defendant constructed a warehouse infront of the building devised to her about ten (10) years ago at the time of filing their statement of defence on 18th November, 2021 without any hindrance by anyone including the plaintiffs. Since then, 1st defendant has been in possession of same without rendering account to anyone except the 2nd defendant, however, 1st defendant is the landlord. 2nd defendant has also constructed three storerooms at the ground level about thirteen years before the institutionof this action without any hindrance whatsoeverand much to the knowledge of the plaintiffs. About, four (4) years ago before the institution of the action, 1st and 2nd defendants constructed additional eleven (11) storerooms at the first and second floors ofthe structure built 13yearsagowithout anyobjections whatsoever. The 4th plaintiff who lives in the house has also constructed two (2) storerooms storey building adjoining 1st defendant eight (8) storerooms storey building and he had rented same out enjoying possessionofsame. 5 Further, the plaintiffs have buildings on other portions of the land. They denied the claim ofentitlement to account and pleaded that plaintiffs’ action is caught by estoppels, acquiescence, laches and estoppelby conduct withparticularsgiven asfollows: - PARTICULARS OFESTOPPEL The plaintiffs sat and allowed the defendants to construct their respective building between the periods of four (4) to thirteen (13) years on the land without any hindrance whatsoever and the defendants enjoying the proceeds therefrom without rendering accounts toanyonewhatsoever. Denying the claims ofthe plaintiffs, defendants counterclaimed for the following reliefs; - i. Declaration of title to all that warehouse, three storerooms at the ground floor and the storey building comprising of eight (8) rooms built respectively by the 1st defendant on the land with registration number MM81 Mbrom Kumasi which said buildings are the property of the 1st and 2nd defendants but to which the plaintiffs are laying anadverse claim. ii. Recoveryofpossession ofallthe said buildingsat relief (i)above. iii. Generaldamagesfortrespass. 6 iv. An order of perpetual injunction restraining the plaintiffs, their agents, privies workmen etc from ever dealing with the quiet possession of the 1st and 2nd defendants’ building whatsoever. REPLYANDISSUES FORTRIAL The plaintiffs joined issues with the defendants on their statement of defence. However, they admitted that 4th defendant has put up a structure on Plot MM 81 Mbrom but added that same has been constructed on the portion of the land belonging to the plaintiffs but defendants’ storerooms have been put on land belonging to them. They further questioned the 2nd defendant’s right to the property as she is no beneficiary of the Will. Maintaining their claim of right to the reliefs sought, they denied the counterclaimofthe defendants. The agreed issues fortrialare asfollows: - 1. Whether or not as per the contents of the Last Will and Testament of the testator herein (late Mr. Daniel Kwame Bona Siriboe) the Plaintiffs are the owners of about 90% (Ninety percent) of the land size or area of Plot No. MM 81, Mbrom, Kumasi. 7 2. Whether the defendants have, by the necessary computation of the land size of the said plot, taken over and constructed store rooms on an area much greater thanwhat is due tothe 1stDefendant under the said Will. 3. Whether or not the plaintiffs are estopped from challenging the construction and enjoyment of the land area over which the defendants have constructed the store roomsandwarehouse thereon. 4. Whether or not the defendants are liable to account to the plaintiffs in respect of the area belonging to the plaintiffs over which the defendants have constructed storeroomsand enjoyed the rentsaccruing therefrom. 5. Whether or not the defendants have constructed store rooms on the land which obstruct access tothe said house. 6. Whetherornot theplaintiffs areentitled toclaims herein. 7. Whetherornot thedefendants areentitled totheir counterclaim herein. 8. Anyotherissues raised onthe pleadings. BURDENOF PROOF Sections 10(1), 11(1) and 12oftheEvidence Act, 1975,NRCD323provide as follows: - 10 (1) For the purposes of this decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of thetribunaloffact orthe court”. 8 11(1) For the purposes of this decree, the burden of producing evidence means an obligation of a party to introduce sufficient evidence to avoid a ruling against himonthe issue”. 12(1) Except as provided by law, the burden of persuasion requires proof by a preponderance ofprobabilities. (2) “Preponderance of probabilities” means the degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence ofafact is moreprobable thanits non-existence”. On the bounden duty on a party who desires to succeed in a civil case, Kulendi JSC, in the case of KWADWO FOSU V NANA OSEI & KOJO VI [2023] 182 GMJ at 334 at 359 held “For a party in a civil case to succeed, that party must adduce sufficient evidence suchthat onthepreponderance ofprobabilities the existence of thefacts upon which his claim is premised is moreprobable thanits non-existence”. It is thus, required of the plaintiff, to prove the facts asserted with credible, cogent and admissible evidence, sufficient to lead the Court to conclude that the existence of the facts asserted by them are more probable than their non-existence as provided under sections10and 11ofthe Evidence Act, NRCD323. 9 In cases like DON ACKAH V. PERGAH TRANSPORT [2011] 31 GMJ 174 and YORKWA V. DUAH [1992 – 1993] GBR 278, it was emphasized that the basic principle of evidence has been that the a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. Matters that are capable of proof must be proved by producing sufficient evidence so that the existence of the fact is more probable than its non- existence. In this case, where the defendants have a counterclaim, they are the plaintiffs in relation to the reliefs they seek. So, defendants bear a similar burden of proof as claimants. In OSEI V. KORANG [2013] 58 GMJ, it was espoused that “a counterclaimant is as good as a plaintiff in respect of a property which she or he assays to make his or her own. Also, adefendant who files acounterclaim assumesthe same burden asaplaintiff in the substantive action if he or she is to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof required under section 11 and 14 of NRCD 323 of the Evidence Act, 1975. In 2000 LIMITED V. FRANCIS OTOO [2018] DLSC 3300 at page 5, Appau JSC reiterated that the counterclaimant could only succeed in his counterclaim on the strength of his evidence, “the standard of proof required that for appellant to succeed 10 on his counterclaim, he must lead satisfactory evidence, either by himself or otherwise whichonthe balance ofthe probability, makeshiscase moreprobable thannot. DETERMINATION OFISSUES CAPACITYOF THE 2NDAND 3RD DEFENDANTS In the issues settled, the Court could determine any other issue flowing from the pleadings. Capacity to initiate an action is so fundamental and can have catastrophic effect on the prospects of a case. Thus, capacity can be raised at anytime even on appeal and by the courtsuo moto. Seethe cases of; - 1.ASANTEAPPIAHV AMPONSAH[2009] SCGLR90at 95 2.SAM JONAHV.DUODU-KUMI [2003–2004] 1SCGLR50. In the pleaded case of the plaintiff, they have described themselves as the issues or children of the testator, Daniel Kwame Bona Siriboe. However, in the evidence of the 1st plaintiff perher witness statement,she testified perthe paragraph2asfollows: - “The 2nd and 3rd plaintiffs herein are the children or issues of my late sister Diana Siriboe”. This throws the capacity of the 2nd and 3rd defendants in issue, for by 1st plaintiff’s evidence she denies that2nd and 3rddefendants arechildren ofthe testatoraspleaded. 11 With the death of their mother then, it is necessary to state that the property of a deceased person devolves on the personal representative as provided under the AdministrationofEstatesAct, 1961(Act 63)as follows: - 1(1) The movable and immovable property of a deceased person devolve on his personalrepresentative witheffect fromhis death. 108. “Personal representative means executor, original or by representation or administratorforthe time being ofadeceased person” It has not been suggested that they are the personal representatives of their deceased mother. Therefore, they could not have been joined to the suit with reference to the title of the case and purporting to institute this action as beneficiaries of the Last Will and Testament of their late father Daniel Kwame Bona Siriboe, then they lack capacity to do so. For the reason that there is no devise made to them under the Will neither was the property vested in them by the Exhibit “C”, the vesting assent. I am aware of recent decisions of the Supreme Court in cases like ADISA BOYA V MOHAMMED & MUJEEB and BANDOH V APPEAGYEI- GYAMFI and another [2018-2019] 1 GLR 299, that held that a beneficiary of an estate of a person who died intestate can sue to protect the estate by virtue of the Intestate Succession Law, PNDCL 111 of 1985. There is no disclosure on whether their deceased mother died intestate. Their presence in the suit, suggesting that they are children of the testator is erroneous. 12 In the circumstance, they are not clothed with capacity to initiate the present action and their names arehereby struckout fromthesuit. The fact of misjoinder per se does not affect the proceedings, for Order 4 Rule 5 of CI 47 provides “No proceedings shall be defeated by reason of misjoinder or non-joinder of any party; and the Court may in any proceeding determine the issues or questions in dispute so far as they affect the rights the rights and interests of the persons who are parties to the proceedings.” See also the case of NANA AMPAA ANDOH VII V PARAMOUNT STOOL OF BREMANESSIAM [2018]123GMJ 187. The issues “1” and “2” relating to whether or not per the contents of the Last Will and Testament of the testator herein (late Mr. Daniel Kwame Bona Siriboe) the plaintiffs are the owners of about 90% (ninety percent) of the land size area of Plot No. MM 81, Mbrom, Kumasi and whether the defendants have by the necessary computation of the land size of the said plot taken over and constructed rooms on an area greater than what isdue tothe 1stdefendant under the said Will, willbe determined together. From the pleaded case of the parties and evidence, the Will of Daniel Kwame Bona Siriboe forms the basis of their rights. The said Will was tendered into evidence by the plaintiffs throughthe 1stplaintiff asExhibit “A”and by the 1stdefendant asExhibit “1”. 13 Th devise essential for the determination of this case is found under paragraph 4 of Exhibit “A”(“1”)as reproduced asfollows: - 1. I GIVE AND DEVISE unto my wife Mary Tuffour also known as Adwoa Akyiah ofKumasi and my children, namely; - (a) Dina Sarpoma Siriboe otherwise known as Mrs. Dina Aniakwah of Obo, Kwahu and (b) Miss Margaret Bonsu Siriboe ofKumasi, the whole ground floorof my house No. M81,Mbrom Kumasifor their use absolutely. 2. IGIVE and unto my childrennamely: - (a) JohnKofiSiriboe ofJuaben/Ashanti. (b) James KofiSiriboe ofKumasi (c) George Kwame Agyemang Siriboe of Juansa (Ashanti Akim), the whole first floor of my House No. M 81, Mbrom Kumasi, Ashanti, household furniture, and personal belongings in the said premises together with the out house the rest (sic) onthe left hand side ofthe house as oneentersthehouse fromthemain gate. 3. I GIVE and DEVISE unto my wife Kate Asamoah of Chira, Brong Ahafo, the outhouse at the right side of the house No. M. 81, Mbrom, Kumasi, comprising one chamber and one hall, and one garage, with one bath, one toilet and one kitchen forher use absolutely. 14 After her (Kate Asamoah’s) death, my children by her should inherit this property. 17. IGive, devise and bequeath the residue ofmy estatetoallmy children.” The probate granted by the High Court to the executors was tendered by the plaintiffs throughthe1stplaintiff and marked asExhibits “B”. From the Exhibits “A” “1” and “C”, the 1st plaintiff, Diana Siriboe and a wife of the testator Mary Tuffour are vested with the ground floor of the disputed house. The first floor of the house was given to his male children inclusive of the 4th plaintiff together withanouthouse onthe left-hand side onentering thehouse. 1st defendant on the other hand, was given the outhouse on the right side for her life and the property to devolve unto the testator’s children with the 1st defendant. From these devises, no devise was given to the 2nd and 3rd plaintiffs neither was there an immediate devise made tothe 2nd defendant thoughherinterest as achild ofthe testator isconditioned onthe deathofthe 1stdefendant. In construing a Will, the Supreme Court in the case of PREMPEH V AGYEPONG [1993 – 1994] 1 GLR 255 held that “the cardinal principle in the construction of Wills was that they should be so construed as to give effect to the intention of the testator, since the 15 whole essence of a Will, in any case, was the declaration of the wishes and intention of thetestator”. Also, in construing a Will, another principle is that the clauses must be read referentially to each other unless clearly they are independent. See the case of IN RE AMUZUBANINI ANDOTHERS V. KWAKUBANINI [1973] 1GLR17. Per the Exhibit “A” (“1”), it discloses that the testator died possessed of several properties, and he devised each property to specific persons. In respect of the subject matter of this case, the structure on the plot was given to the named persons as alluded to by the parties. However, no specific statement was made with regard to land described as large and undeveloped in addition to the structures that were devised. It is therefore, reasonable to state that the testator intended that the devisees live together on thepremises amicably. Undercrossexamination, the 1stplaintiff testified asfollows: - Q. Youagree with me that in Exhibit “A”, the frontage and surrounding areasof the devise toyouand your siblings was notmentioned orgiventoanybody. A. Yes, but it was stated that the whole ground floor is partof the devise given to us exceptthe boysquarters. Q. You also agree with me that the boys quarters devised to the defendants, the frontage and surroundingsspace wasalso notgivento anybodyinExhibit “A”. A. Iagree. 16 Q. What made you think that the frontage and surrounding space ofthe main house and boy’s quartersbelongstoyou? A. They have built onpartofour portion covering the mainbuilding and narrowing theentrance ofthe house. Q. I suggest to you that the defendants have not trespassed unto the portion given toyouand your siblings inExhibit “A”. A. The defendants have trespassed into ours because they have built stores behind their boy’s quarters and they have also built extending to the frontage of the mainhouse such thatone cannot see the house. Q. I further suggest to you that the defendants have built their store rooms, infront oftheir boysquartersdevised tothem. A. Itisnot correct. They have extended thebuilding tothe frontage ofourportion. Q. Are you aware or not that 4th plaintiff has also built store rooms infront of the portiondevised toyouand your children(sic) the main building? A. That iscorrect. Q. I further suggest to you that it is your brother’s store rooms that he built that havecovered the frontage ofthe main building and not thatofdefendant? A. That iscorrect. From the evidence however, as it turns out, 1st defendant and 4th plaintiff have put up structures on the land. I say so because the initial development by 2nd defendant was 17 through the 1st defendant, 2nd defendant acted as agent of the 1st defendant. As it were, plaintiffs are not concerned with the structure put up by the 4th plaintiff but the one put up by the 1st defendant. The claim of entitlement to 90% of the land area around the devised property by reason of having been devised a greater portion of the structure and impute same to be the intention of the testator is difficult to accept. Where the testatorintended same, he would have made it clear in the Exhibit “A”. Further, there is no evidence on the size of the land area around the devised property MM 81, Mbrom neither is there evidence that, the land area 1st defendant has built the structure she occupies is a greater area. On the issues under consideration, same are dismissed based on the foregoing reasoning. Yes, by the Exhibit “A”, 1st and 4th plaintiffs with their siblings weredevised agreaterportion ofthestructure but this does nottranslateinto entitlement to90%ofland area. WHETHER OR NOT PLAINTIFFS ARE ESTOPPED FROM CHALLENGING THE CONSTRUCTION AND ENJOYMENT OF THE LAND AREA OVER WHICH THE DEFENDANTS HAVE CONSTRUTED THE STORE ROOMS AND WAREHOUSE THEREON. From the evidence there is no doubt that the 1st defendant has put up structures on the land and also jointly with 2nd defendant. The plaintiffs who asserted that the 2nd and 3rd 18 defendants put up the structure led no evidence to establish same. These structures havebeen ontheland foranumberofyearsbeforethe commencement ofthe action. 1st defendant testified that one structure has been on there for 14 years and the other for 4years. Undercrossexamination, the 1stplaintiff testified, - Q. I further suggest to you that the defendants’ store rooms have been there for the past 14yearsnow? A. The one at the back is morethan 14yearsbut the one that was built infront ofour devise is not upto14years. Q. Canyou tellthe courthow oldis thatstore? A. My mother died in 2019, after the funeral it was getting to 2020 then I went there. Itisabout 2years. Q. Atthe time youwent there,the defendants hadalready built the store rooms? A. That iscorrect. Q. Ifurther suggest toyouthat theydidit under the watch ofthe 4thplaintiff. A. He was sick. The constructionwas done at night. Q. You agree with me that the 4th plaintiff was living in the house so if they were buildingat night, he could haveseenit. A. He was sick. The constructionwas done at night. 19 The plaintiffs have called oneKwaku AmponsahSiriboe, the abrotherofthe 4th plaintiff as PW1. In his testimony, per his witness statement, he indicated that he saw the construction of the stores and questioned the 2nd defendant who answered that the land belonged to them and he therefore informed the 4th Plaintiff. According to him the storerooms were built day and night and completed in a very short time. From his testimony, he contradicts 1st plaintiff’s testimony that the property was built only in the nightand affirms thatthe 4thdefendant wasalso informed. PW1 under cross examination also disclosed that he has lived in H/No. MM 81 Mbrom for 35 years. He also testified that when the 1st defendant started construction of the properties, 4th plaintiff sent one Kwasi Boateng to questioned them. The same Kwasi Boateng the 1st defendant has testified rather came to superintend over the construction ofthe structure and even poured libation, though plaintiffs deny the pouring of libation. PW1’s testimony, suggests that at least 4th plaintiff knew about the 1st defendant’s construction and nothing was done to prevent the construction but 4th plaintiff chose to also construct his stores on the land and as it were 1st plaintiff admits that his structure isinfront ofthedevised structure tothem. The excuse that he was sick is a lame one. With 1st plaintiff living at Ash Town, Kumasi it is difficult to accept that she had no knowledge of the construction going on. This is an example of estoppel by conduct, laches and acquiescence. The plaintiffs sat, allowed 20 the 1st defendant build or the 2nd defendant build expending money and now turning roundto makeclaims ofentitlement. Estoppel is deducible fromtheir conduct. On acquiescence, in the case of NII BOI V ADU [1964] GLR 410, the supreme Court set theconditions forapplying estoppelby acquiescence perthe holding 2asfollows; “To establish acquiescence under equity and customary law, five conditions must be satisfied; the person who enters upon another’s land must have done so in honest but erroneous belief that he has the right to do so, he should have spent money in developing the land; the actual owner must be aware of this person’s entry upon the land and his mistaken belief which is inconsistent with his ownership; and finally he should have fraudulently encouraged his development of the land by not calling his attentiontothe error” In his book “ Essentials of the Ghana Law of Evidence” 2014 1st publication at page 318, the eminent jurist and author S, A, Brobbey JSC, noted that the term laches is used where there has been long and unreasonable acquiescence or long and unreasonable neglectin assertingone’sright. The case of BOATENG AND NTIM [1961] GLR 671 at 679 set the conditions for the applicationoflaches asfollows; - “(a) the party pleading or relying upon it (estoppel by laches), bona fide believed that he had good title to the land when in fact he had none; (b) that the person sought to be 21 estopped had knowledge of the error on the part of the person pleading estoppel; (c) and that the party pleading it had fraudulently been led by the silence or active encouragement of the person sought to be estopped, to spend money to improve the propertyor in respect oftheproperty” Thus, where the 1st and 4th plaintiffs honestly believed that the area where the stores are erected belonged to them, their silence encouraged the 1st and 2nd defendants to spend money to put up the stores, taking a step now to challenge them is unreasonably long. The defence put up by the defendants will be upheld where plaintiffs had proved that theland belongto them. ARE THEDEFENDANTSLIABLE TOACCOUNT TOTHE PLAINTIFFS? The plaintiffs seek a relief of account of returns generated from the storerooms and warehouse on grounds that where they are constructed on a land area belonging to them. Where indeed, the land area where the storerooms and warehouse are constructed belong to the 1st and 4th plaintiffs and their siblings, I do not think that they will be entitled to an account of an economic activity that takes place on the land for which they have made no investment. What plaintiffs will at best be entitled to is rent. For it will be unconscionable that a person invests in a business activity on land and the landlordwill be entitled toaccount. 22 Also, in seeking for a relief for account, the case of MARFO AND OTHERS V. ADUSEI [1963] 1 GLR 225 is instructive. In the MARFO case, it was submitted by counsel for defendants that the Commissioner erred in law when an order for account was made because none of the defendants is an accounting party vis a vis the plaintiff citing the case of AMUQUANDOH V. AGGREY [1957] 3 WALR 46 and CITY AUTO PARTS SUPPLY V. KWAME DAPAAH C.A. CYCLOSTYLED JUDGMENTS, July – December 1957 page 4 to buttress his point. The Supreme Court noted that in the City Auto Parts case, Van Lare Ag. CJ (as he then was) in agreeing with the reasons given by Adumua-Bossman J. inallowing an appeal,stated; - “At common law an action for account is maintainable where there is a right of principal to such an account relying upon a fiduciary relationship between him and his receiver oragent who acts for the otherin capacity ofdeputy, steward, factor,substitute, representative or emissary…I am of the opinion that no such relationship exists between a vendor and a purchaser; and one is not bound to render account to the other thedefendants inthis case are notaccounting party..” Mills-OdoiJSCthenheld; - ‘The proposition therefore is that in the absence of any fiduciary relationship existing between parties in an action for account cannot be maintained. Such an action can only succeed if a plaintiff has expressly stated facts showing not only that he is entitled to account which he claims but also that a fiduciary relationship exists between him and the defendant as to make the latter an accounting party. The statement must further 23 show that the defendant has failed in his duty in that he has not rendered a proper or any account within areasonable time afterdemand” In the facts of this case, there is no fiduciary relationship between plaintiffs and the defendants. A fiduciary relationship according to Osborn Concise Law Dictionary is a person who holds a position of trust in relation to another and who must therefore act forthatperson’sbenefit such as solicitor in respect ofhisclient. In this case, parties, lay a claim to their specific devise under the Will of the testator Daniel Kwame Bona Siriboe with plaintiffs watching on for the 1st defendant and 2nd defendant put up structures on the land which was not specifically devised to them. There is no right for the need to order account to the plaintiffs. This relief sought is herebydismissed. I shall now consider the issue of whether the defendants have constructed store rooms onthe land which obstruct theaccess tothe house. Plaintiffs complain that the structures put up obstruct entrance to the house. The 1st defendant in her evidence admits to putting up a structure by herself and the 2nd defendant onland infront ofthepropertybequeathed to her. Undercrossexamination, 1stdefendant answered; - 24 Q. The building you and your daughters have made even sealed the entrance of the house. A. That isnot correct. Ihave notsealed theentrance ofthe house. Q. These stores and ware house you and your daughters have constructed, you havelet themout tothetenantsfor rentand collecting money. A. That isso. I have built infront ofmyhouse so I collect rent”. 1st plaintiff insisting that the entrance has been blocked tendered Exhibit “D” series which are pictures of the house MM 1 Mbrom and to buttress her complaint she identified Exhibit “D2”asdisclosing the entrance. Undercrossexamination, 1stplaintiff testified: - Q. You have told the Court that because of the defendants’ construction at the frontage oftheir devise, there isno entrance intothe house. A. That isso. Q. I suggest to you that your Exhibit “D2” there is an entrance into the house and evenacar is entering thehouse. A. The entrance is now narrow and they have parked cars there as well. It is difficult for onetoenterwith avehicle because ofthe carsparked there. Q. You will agree with me that those cars are parked inside the house, and not at theentrance. 25 A. They have parked the cars at the frontage and it is difficult for me to enter with a vehicle. Q. I further suggest to you that if a car can enter through the entrance, then the entranceis notnarrowas youclaim. A. They have parked their vehicles such that when you want to bring a bigger car to emptythe septic tankit cannot enterthehouse. From the evidence and looking at the Exhibits “D” series much were not talked about them except Exhibit “D2” which discloses that vehicles have been parked. In Exhibit “D3”in particular three vehicles are parked and yet there is some space to accommodate another vehicle. Exhibit “D4” also discloses two vehicles parked with space on the sides of the first vehicle. The pictures do not portray a narrow entrance if vehicles are able to enter. Additionally, where the concern is with a septic tank entering the premises, then each time it becomes necessary, for a septic tank to access the premises the owners of the vehicle should move their vehicles to enable the exercise be carried out. From the evidence, the claim of want of access is not credibly made up to warrant demolition of structures put up infront of 1st defendant’s structure. The allegation is overly exaggerated. The claims herein aredismissed. 26 I have already indicated that the 3rd defendant has no devise under the Will, Exhibit “A”.On why she was sued 1stplaintiff answered; - Q. Why haveyoujoined Ewurafua tothe suit? A. Sheis the onein occupationofthe house togetherwiththe husband. Q. You will agree with me that the 3rd defendant, Ewurafua lives in the 1st defendant’sapartment giventoher byher late husband. A. That iscorrect. Q. And thatthe 3rddefendant should not havebeenpart ofthis case. A. I sued the 3rd defendant in addition because she is the one living in the house and she is notsupposed todo she has done. The mere fact of living in the house in her mother’s devised property does not make 3rd defendant anecessarypartytothe suit. THECOUNTERCLAIM I find that the counterclaim of the defendants, ought to be made by the 1st defendant alone. The 2nd defendant’sinterest lies in the future upon the demise of the 1stdefendant, where she participated in the building of the structure with 1st defendant’s direction. She as already found as an agent for the 1st defendant. Where she commenced a structure and 1st defendant continued same, does not detract from the relationship betweenthem. 27 On the issue of seeking damages for trespass, there is no evidence suggesting that plaintiffs have taken over the properties put up through the effort of 1st defendant. This relief thus, is notproved and will be dismissed. CONCLUSION Having weighed the claims of the plaintiffs and defendants, I come to the conclusion that on the balance of probabilities, the plaintiffs’ claims ought to be denied. Accordingly,the reliefs sought by theplaintiffs are dismissed. Unlike, the plaintiffs, the defendants’ counterclaim deserves a favourable ruling. Accordingly,judgment is entered forthe 1stdefendant asfollows:- 1. A declaration of title to all the ware houses, three store rooms at the ground floor and the storey building constructed and eight (8) rooms built by the 1st and 2nd defendant. 2. Recoveryofpossession ofallthe said buildingsas perthe (1)above. 3. An order of perpetual injunction restraining the plaintiffs, their agents, assigns, privies, workmenetc. frominterfering with thepossession ofthe 1stdefendant. 28 The reliefs sought for general damages for trespass is however, denied, same is accordinglydismissed. [SGD] JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT LAWYERS LAWRENCE ASUMADU SAKYI HOLDING JOHN KWAME KODUA’S BRIEF FOR THE PLAINTIFFS AMOAKOFRIMPONGFOR DEFENDANTS 29