Boateng V Amakye & Anor (C1/199/22) [2024] GHAHC 421 (30 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN THE ASHANTI REGION, KUMASI ON WEDNESDAY DAY THE 30TH DAY OF OCTOBER, 2024 BEFORE HER LADYSHIP JUSTICE HANNAH TAYLOR (MRS). SUITNO. C1/199/22 ASAMOAHBOATENG PLAINTIFF H/NO. H/24 HWIDIEM NEARAGOGO ASANTE AKYEM,ASHANTI REGION (SUINGFOR HIMSELF ANDONBEHALF OF OBAAPANINADUUNA SERWAA’SMATERNALFAMILY VRS. 1. YAWAMAKYE DEFENDANTS 2. KWAKUASARKWA YIADOM ALLOF H/NO. H/010, HWIDIEM NEAR AGOGO ASANTEAKYEM, ASHANTI REGION _____________________________________________________ JUDGMENT _____________________________________________________ The plaintiff sues for himself and on behalf of Obaapanin Aduuna Serwaa’s maternal family. He issues out his writ ofsummons against the defendants who are the biological sonsofKwame AmoakoofHwidiem, Asante Akyem, for thefollowing reliefs: - 1 (a) An order of declaration of title and recovery of possession of all that pieces and parcelsofland known and described at ;- (i) As (sic) Koforidua sharing boundaries with Maame Ama Kuma, Abena Beyeeden, Kofi Ayim and Kwame Kuma, size, ten (10) acres, Hwidiem StoolLand, AsanteAkim (near Agogo). (ii) Bantempa, sharing boundaries with Maame Yaa Suo, Maame Afia Tanoa and Agya Minta, size, two (2) acres, Hwidiem Stool Land, Asante Akim (near Agogo). (iii) Bepoayase, sharing boundaries with Maame Kyerewaa, Maame Abramia and Maame Abena Kra, size, one (1) acre, Hwidiem Stool Land, Asante Akim(near Agogo). (iv) Nhyiemu, sharing boundaries with Maame Abena Serwaa and Kofi Amanfo, size, one (1) acre, Hwidiem Stool Land Asante Akim (near Agogo). (b) An order for declaration of title and recovery of possession of house No. H/24 Hwidiem (near Agogo)Asante Akyemin theAshanti RegionofGhana. (c) An order for declaration that the 1st and 2nd defendants held the disputed propertiesas bare licensees ofmembersofplaintiff’smaternalfamily. 2 (d) An order annulling any transfer or conveyance made in favour of the 1st and 2nd defendantsin respect ofthe disputed properties. (e) An order of perpetual injunction against the defendants, their privies, agents, servants, workmen or any person or persons from interfering with the disputed properties. (f) Costsincluding legalfees. (g) Any further reliefs or orders as the court may grant in pursuit of the demands of justice. PLAINTIFF’S CASE Plaintiff contends that defendants are not members of his maternal family, that is the descendants of the late Opanin Kwabena Nketiah’s biological sister Yaa Wusuwaa (deceased) who brought forth his mother Obaapanin Aduuna Serwah, the current head of family. The defendants’ father, Opanin Kwame Amoako is the son of Opanin Kwabena Nketiah, his mother’s uncle and his mother is the late Maame Durowaa. The said Maame Durowaa was brought to Hwidiem by Opanin Kwabena Nketiah and then he married her. They bore six (6) children, 5 males (including Kwame Amoako) and a female called Afua Asor who passed in the year 2008. No one in the family knows whichpartofGhana Maame Durowaa came from. 3 Obaapanin Aduuna, the current head of family, who is his mother is incapacitated by illness and thus bedridden. Obaapanin Aduuna is the only daughter of the late Opanin Kwabena Nketiah’sonlysister Yaa Wusuaa who isalso deceased. The disputed House No. H/10 (sic) at Hwidiem and other disputed properties are the self-acquired properties of Kwabena Nketiah before getting married to defendants’ grandmother, Maame Durowaa in the 1870’s. The properties upon the death of Kwabena Nketsia devolvedto thematernalfamily ofKwabena Nketsiah. The defendants’ father Kwame Amoako and their auntie Afua Asor were allowed to stayin thedisputed house and thefarmlands as barelicensees. It is further contended that Afia Asor is purported to have made a Will in January 2008 bequeathing the disputed properties to the defendants and the said Will is invalid because the properties are not her self-acquired properties but belong to plaintiff’s maternalfamily. The defendants had also in the year 2012, voluntarily submitted the issues relating to the disputed properties to the then chief of Hwidiem, Nana Gyasi (deceased) for amicable arbitration and per the award published, the defendants were pronounced to have life interest in the disputed house, benefit from food stuffs cultivated on the four 4 (4) disputed farm lands, but the proceeds of cocoa on the farm land should be accounted tothe plaintiff’sfamily. The defendants, thereafter, submitted the same issues to Fox FM for arbitration and the panel confirmed the published award of the late chief of Hwidiem’s arbitration panel. Yet, the defendants have refused to comply with the award and keeping the proceeds fromthe four (4)farm landsand thehouse astheir bona fide properties. DEFENDANTS The defendants represented by a lawyer filed a joint statement of defence and the case had travelled to the summons for directions stage. Orders were made on 20th February, 2023 for parties to file their witness statements and pretrial checklist. The defendants failed to file their witness statements even when the court had granted them extension of time to do so and hearing notice served on their lawyer. On 11th of day of July, 2023, the court exercising the power vested under Order 32 Rule 7A (3) (b) of the High Court (Civil Procedure) Rules, 2004 CI 47 as amended by CI 87 of 2014 struck out the statementofdefence. The said Rule isto theeffect that; “Where a party has failed to comply with any of the directions given as a case management conference or pretrial review or both, the Judge may make any of the following orders: a).Strike out the action, if the non-complying partyis aplaintiff 5 b). Strike out the defence and counterclaim as the case may be,if the n0n-compliying partyis adefendant c). Orderany partytopay costsor d). Makeany otherappropriate order” The plaintiff was also invited by the court toprovehis case. BURDENOF PROOF It is abasic principle of law that a party who bears the burden ofproof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim will fail. The evidence to be produced should be sufficient such that on all the evidence a reasonable mind could conclude that the existence of the facts alleged are moreprobable thantheir non-existence. See the case of DON ACKAH v. PERGAH TRANSPORT [2010] SCGLR 728 and Sections 10and 110fthe Evidence Act ,1975,(NRCD323). This burden to prove assertions made, is not made less by virtue of the absence of the defendants and will not automatically result in the grant of the reliefs sought. In case of DR. R.S.D. TEI AND ANOTHER v. MESSRS CEIBA INTERCONTINENTAL [2018] DLSC 3301 at 6, Pwamang JSC, opined “it must be remembered that the fact that a defendant does not appear to contest a case does not mean that plaintiff would be granted all that he asked for by the court. The rule in Civil cases is that he who alleges 6 must prove on the balance of probabilities and the burden is not lightened by the absence of the defendant at the trial. The absence of the defendant will aid the plaintiff only where he introduces sufficient evidence to establish prima facie case of entitlement tohis claim”. A prima facie case is established when evidence led will lead the court to the conclusion that the facts alleged are probable. Moreso, where the plaintiff is seeking for declaratory reliefs, he must prove every allegation he had made in his pleadings and cannot assume that with no statement of defence in place, his allegations were deemed admitted or trueorestablished asafact. The rule is that evidence needs to be received to establish an allegation in a declaratory relief was set in the case of REPUBLIC v HIGH COURT; EXPARTE OSAFO (ABOAGYE INTERESTED PARTY) [2011] 2 SCGLR 966 where Gbadegbe JSC speaking forthe SupremeCourtnoted that; “We think that before making a declaratory order, the court should receive evidence from parties in the matter as appears from the statements alluded to which we accept as correct expositions on the practice of the court in such matters.” The plaintiff testified himself todischargethe burden placed onhim. WHAT EVIDENCE DID PLAINTIFF OFFER TO DISCHARGE THE BURDEN PLACEDON HIM? 7 To begin with, it is observable the plaintiff sues for properties which he asserts as being thefamily propertiesofhis maternalfamily. The plaintiff thus, did not initiate the present action inhis capacity as the head offamily. It is therefore, important to consider the capacity of the plaintiff. This will determine whetherhe is the right personbeforethe court. Order 4 rule 9 of the High Court [Civil Procedure] Rules, 2004, CI 47 on representation ofstoolsand families provides perrule 9(2) (3)in particularas follows: - “(2) The head of a family in accordance with customary law may sue and be sued on behalf oforas representing the family. (3) If for any good reason the head of family is unable to act or if the head of a family refuses or fails to take action to protect the interest of the family any member ofthe family may subject tothis rulesue onbehalf ofthe family.” It is the plaintiff’s claim that the head of family, Obaapanin Aduuna Serwaa who is his mother is unwell. On health grounds, this is a good reason to take a step to save the properties which he asserts as family properties from being lost. In effect, the plaintiff hasthe requisite capacity tocommence the present action. Withthe aim of establishing his maternalfamily’s ownership ofthe disputed properties, the plaintiff testified relying on his witness statement which is a replica of the pleaded case. Heinsisted that thedefendants arenot membersofhis maternalfamily. 8 He testified assertively, that the disputed properties were all acquired by Kwabena Nketia which devolved unto his maternal family after his death. The properties were also acquired beforeKwabena Nketia’s marriageto Maame Durowaa in the1870’s. From the account of the plaintiff, he gives the historical background on how the properties were acquired, stating it was before 1870’s. However, the testimony is short on how the property has been in the custody of the family for all this while. This is however, one sided account as the defendants did not participate in the trial to give any contradictorytraditional account. The account on when the disputed properties were acquired is incredible. Plaintiff pleaded and testified that theproperties were acquired beforethe 1870’s. Inparagraph8 ofthe witness statement, he testified as follows: - “During his lifetime, my late maternal grandfather Kwabena Nketia acquired all the four (4) disputed farms lands and the disputed house property No. H/10(sic) Hwidiem. All these five (5) disputed properties then devolved on my maternal family after the death of late Kwabena Nketia who acquired them long before he brought defendants paternalgrandmother MaameDurowaa toHwidiem tomarryher during the 1870’s.” Maame Durowaa according to plaintiff is defendants’ father, Kwame Amoako’s mother. With the defendants being the grand children of Kwabena Nketiah certainly they ought 9 to be well over a hundred years. Meanwhile, Kwame Amoako’s sister Afua Asor is stated as having died in 2008. What makes me find the account more incredible is that Kwabena Nketia is said to have returned from one of the historical wars with Maame Durowaa, in the 1870’s, married her and gave birth to Kwame Amoako and Afua Asor who died in 2008. Meanwhile, the disputed properties have longed been acquired. The account on the acquisition of the property gives me an incredulous gasp. Where Afia Asor died in 2008, then the father Kwabena Nketia and his to Maame Durowaa marriage ought to be in the not far too past and he must have died within recent time. There wasno evidence no when Kwabena Nketiahdied, though. I have also noted, that on how the disputed properties have been handled in terms of succession or acts of the family in relation to the properties by plaintiff’s account, no evidence was given but rather his complaint suggests that the properties have been in the possession of the defendants and Kwabena Nketsia’s daughter, Afua Asor and now thedefendants. The plaintiff also intended to rely on an arbitration held by the chief of Hwidiem, Nana Gyasi Amoakor Adabor II in 2012. By this, the plaintiff suggests a customary arbitration proceeding. Arbitration proceedings generally are pleaded to raise estoppels in favour of a parties who was adjudged the victor. In such proceedings it is the duty of the trial court to determine the validity or otherwise of the arbitration before resort to hearing evidence 10 on the merits see the case of STEPHEN v. APOH [2010] 27 MLRG 12 at 22 – 23 per YeboahJA. The issues that were allegedly placed before Nana Gyasi Amoakor Adabor were described as “issuessurrounding the properties”. The nature of the subject of the arbitration is not disclosed as to whether it related to ownershipofthe disputed properties. Additionally, who the parties were in the said arbitration was not disclosed. Yet the plaintiff desires that the court enforces an award that was made. Without doubt, when parties go to an arbitration, they have voluntarily submitted to, have given evidence with their witnesses, paid the customary fee as well as the inspection fee and costs awarded, avalid arbitrationhadbeen held andsame willbe binding. See the case of PASTOR YAW BOATENG NO. 2 v. KWADJO MANU AND ANOTHER[2007 –2008]SCGLR1117; STEPHENv.APOH [2010]27MLRG 24. The plaintiff did not see the significance of leading evidence on a valid arbitration as already pointed out but left the court to speculate on the issue, parties and whether partiesand their witnesses testified. Plaintiff again alludes to Fox FM Radio Station holding an arbitration to confirm the published award of the late chief of Hwidiem. The assertions of a confirmation of the award by Fox FM Radio is also difficult to accept. I have wondered what took place at 11 FoxFM Radio Station would constitute a valid arbitration. I am not inclined to conclude thatavalid arbitration tookplace. Plaintiff also tendered two documents both of which are statutory declarations, all made by Obaapanin Aduna Serwaa of Hwidiem Asante, Akim. On the worth of statutory declaration, it is has been held, in the case of IN RE ASHALLEY BOTWE LANDS AJETEY v. KOTEY [2003-2004] SCGLR 420 that they are self-serving in nature and not be construed as a conveyance. Exhibit “A” the statutory declaration, made on 6th May, 2021 relate to the property H/No. H24 Hwidiem Asante Akim, of which she declares that she is the beneficiary owner. She then sets off to give some rooms therein to the defendants for their life. She does not declare that the property belongs to the maternalfamily. In Exhibit “B”, statutory declaration made on 25th May 2021, Obaapanin Aduna Serwaa of Hwidiem declares that she is the beneficial owner of the properties mentioned therein. The mentioned properties are the farms at Koforidua, Bantempa, Bepoayase and Nhyiemu. Obviously, the farms are the disputed farms. She lays no claim of her maternal family owning the property. The Exhibits “A” and “B” are of no probative value in establishing the maternal character of the disputed properties and how they became maternalfamily properties. In the case of MRS AGNES AHADZI AND PIONER MALL LTD v. BOYE SOWAH, NII NORTEY ADJEIFIO AND NUUMO ADJEI KWANKO II [2019] DLSC 6208 at 8, 12 Pwamang JSC held “the combined effect of Sections 11(1), 14 and 17 of NRCD 323 is that if a party such as the defendant in this case, fails to discharge the burdens of producing evidence and persuasion in respect of any issue of fact which are upon him, thecourt isobligated tofind against himonthatissue.” By the same analogy of reasoning, the plaintiff is required to discharge the burdens of producing evidence and persuasion in respect of the assertions he has made but the evidence adduced fallsshort ofdischarging these burdens. CONCLUSION In all, the plaintiff failed to appreciate the burden placed on him to lead evidence that will lead the court to the conclusion that the assertions he has made deserve a favourable ruling and in this particular case even in the absence of the defendants. The evidence led as demonstrated is not credible, sufficient and cogent to induce a ruling in his favour. In the circumstance, the reliefs sought by the plaintiff are hereby refused as same are dismissed. [SGD] JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THE HIGH COURT LAWYERS FELIXKARIKARI KUFFOUR FORTHE PLAINTIFF 13