ANNAN VRS. ATOMBO AND OTHERS (E2/10/2022) [2024] GHAHC 475 (29 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE HELD AT CAPE COAST IN THE CENTRAL REGION ON MONDAY THE 29TH DAY OF JULY, 2024 BEFORE HIS LORDSHIP JUSTICE BERNARD BENTIL - HIGH COURT JUDGE. SUIT NO.: E2/10/2022 EBENEZER JOJO ANNAN - PLAINTIFF VRS 1. ELIZABETH ATOMBO - DEFENDANTS 2. MRS. SOPHIA TAWIAH 3. JOSEPH ATOMBO JUDGMENT This action has been commenced against the Defendants for the following reliefs: a. An order for the recovery of an amount of One Hundred and Ninety-six Thousand, One Hundred and Nine Cedis, Forty-three pesewas (GH₵ 196,109.43); b. An order of award of interest on the amount of GH₵ 196,109.43 at the prevailing Commercial Bank rate from 2016 to final date of payment; c. Alternatively, an order restraining the Defendants from collecting rents from the tenants of the hostel from 2022 academic year till the Plaintiff has realised his full investment of the GH₵ 196,109.43 from allocation of the hostel to tenants; d. Award of cost including legal fees; e. Any other relief that the Court may deem fit under the circumstance. 1 Events which necessitated the institution of this instant suit are straightforward. The Plaintiff claims to be the business partner of one Justina Atombo (deceased) during her lifetime. The parties herein, including the late Justina Atombo were family friends. The Defendants are sister, customary successor and brother respectively of the late Justina Atombo. Sometime in 2014, the deceased approached the Plaintiff at his aunt’s funeral and proposed a business partnership whereby they would put up a hostel for rent for students of the prestigious University of Cape Coast. The Plaintiff and the deceased agreed that the deceased, who already owned land, would receive periodic funds from the Plaintiff to put up the hostel and a contract was drawn up to this effect. The Plaintiff says that further to the agreement, he solely bore the cost of the construction of the hostel and this fact was well known to the Defendants. In total, the Plaintiff contributed One Hundred and Ninety-six Thousand, One Hundred and Nine Cedis, Forty-three pesewas (GH₵ 196,109.43) in cash at various times through Western Union, Commercial Bank and other online platforms including Opportunity International and Small World. The Plaintiff states that his brother and attorney, Joseph, also sent cash to the deceased in fulfilment of his commitment to put up the hostel. The Plaintiff says that aside the contribution of cash, he also invested considerable time, energy and technical knowledge into the venture with the hope that he would one day when the hostel is completed enjoy the fruit of his labour. Unfortunately, the Plaintiff’s business partner, Justina Atombo passed in 2019. At the time of her passing, one floor of the three-storey hostel comprising of six (6) rooms was complete. The Plaintiff states that upon the death of his partner, the Defendants have arrogated the hostel unto themselves and have been collecting rents from same since 2016 form twelve (12) students with each 2 paying about One Thousand, Five Hundred Ghana Cedis per year without accounting to the Plaintiff or returning his investments. The Plaintiff avers that during the funeral of the said Justina Atombo, the family had agreed with the Plaintiff to complete the 3 storey-hostel and also pay some royalties to the family as its share was only in the land and not the hostel. The Plaintiff. However, the Plaintiff received a call from the 1st Defendant who intimated to the Plaintiff that she has reconsidered the agreement and abrogated same. According to the Plaintiff, the 1st Defendant stated that the hostel would be managed by the Defendants in memory of her late sister and pay up his investment to him. In spite of the Plaintiff’s agreement to this new arrangement, he has since 2017 received nothing from the Defendants but promises. No arrangement has been made to assist the Plaintiff recoup his investment from the Defendants through the rents collected from the hostel. The Plaintiff says that amicable settlement of this dispute has failed and the Defendants have gone ahead to develop another floor without any sympathies for the investment of the Plaintiff. The Plaintiff caused a quantity surveyor to value his contribution in the building in 2019 and same was pegged at Three Hundred and Four Thousand, Five Hundred and Ninety-five Cedis, Fifty pesewas (GH₵ 304,590.50). After a long tussle to dismiss the Plaintiff’s suit on grounds that the Defendants lacked the capacity to be sued and also to strike out the names of the Defendants as not being proper Parties to the suits, the Defendants filed their Statement of Defence on 7th February, 2023 essentially rehashing the same argument. The case of the Defendants is simply that they lack the requisite capacity to defend the instant matter and cannot therefore be sued by the Plaintiff. The Defendants state that the Plaintiff’s action is premature, baseless and brought in bad faith 3 especially where the Plaintiff is aware that none of the Defendants lack the capacity to be sued or defend the action. Directions were taken at the close of pleadings and the issues set out in the application for directions filed on 27th April, 2023 were adopted as issues for trial. The issues are as set out below: a. Whether or not the Plaintiff contributed financially as a business partner to the construction of the hostel known as Justina Hostel located at UCC, Amamoma; b. Whether or not the Defendants are the ones receiving proceeds in the form of rents from the hostel since 2019 as personal representatives of the late Justina Atombo; c. Whether or not the Plaintiff is entitled to recoup his investment in the Hostel. From a careful study of the pleadings, the following issues arise and I find same essential to the effective resolution of this case: a. Whether or not the Plaintiff was the business partner of the late Justina Atombo in her lifetime and thus has an interest in the hostel, the subject matter of this case. b. Whether or not the hostel, upon the intestacy of the late Justina Atombo, devolved unto the Defendants. I shall address the above issues together in the light of the evidence adduced by the Parties. Prior to this, I deem it proper to briefly discuss the law on the burden of proof. As a matter of principle, the burden of proof rests on he who asserts or alleges. The law requires the categorical establishment of a fact a Party alleges, most especially, when same has been denied by his opponent. See ZABRAMA V SEGBEDZI (1991) 2 GLR 221. 4 Failing to adduce such evidence as to convince a reasonable mind, such as this Court, would be detrimental to the case of the person who alleges as he risks his case being dismissed. As a general rule, the standard of proof in civil cases in Ghana is proof by a preponderance of the probabilities. This has been defined by section 12(2) of the Evidence Act, 1975 (N.R.C.D. 323) to be the certainty of belief in the mind of the Court by which it is convinced that existence of a fact is more probable than its non-existence. See ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728. Therefore, a Plaintiff who alleges a fact or makes an assertion which is denied by his opponent bears the onus to positively establish same by the adduction of sufficient evidence to satisfy this Court that, more probable than not, the facts he alleges are true or exists. However, it must be noted that the evidentiary burden does not rest on the Plaintiff throughout the case. The burden is not static but moves from one Party to another depending on what is asserted or alleged and by which of the contesting Parties. The burden shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the Plaintiff leads some evidence to prove his claim. See ABABIO V AKWASI IV (1994-95) GBR 774. In this light, I proceed to make a collective determination of the issues set out above on the basis of the evidence adduced by the parties. In proving his case, the Plaintiff tendered in evidence an indenture dated 20th January, 2011 (EXHIBIT B) between Ebusuapanyin Kwame Kwansah and the late Justina Atombo. By this indenture, the late Justina Atombo acquired all that 5 land situate at Amamoma in Cape Coast and particularly described in the schedule therein. It is on this land that Justina Hostel was built. This is evidence from the plan attached to the Witness Statement of the Plaintiff as EXHIBIT C. It is noteworthy that there are inscriptions duly signed by the deceased on 3rd April, 2016 and 30th April, 2016 in Exhibit B whereby she described the Plaintiff as her business partner. This is clear from the note or inscription signed and dated 30th April, 2016. She stated as follows: I Justina Atumbo, the business partner of Jojo Ebenezer Annan, was instructed by my partner, to give this indenture to his brother, Mr. Joseph Annan I find no concrete challenge to this note by the deceased in Exhibit B. The signing of her name on these notes are consistent with the signature of the decease on Exhibit B. For this reason, I find the notes to be the deed of the deceased and that the Plaintiff was the business partner of the deceased during her lifetime. As further proof of the interest of the Plaintiff, he tendered in evidence a letter dated 23rd March, 2016 (EXHIBIT D) wherein the deceased described the Plaintiff as a joint owner of the hostel. For the purposes of this judgment, I shall reproduce the relevant portions of the Exhibit D: RESOLUTION The hostel on the land of Miss Juliana Atumbo lying and being at Amamoma in Cape Coast in the Central region of the Republic of Ghana belongs to both Jojo Ebenezer Annan and Justina Atumbo. 6 This project is being used to facilitate a loan amount of GH₵ 35,000.00 from Akatakyiman rural bank which will be used to offset some debt and will be repaid in 36 months. Since Mr. Jojo Ebenezer Annan is not in Ghana to sign this document, his senior brother Mr. Joseph Annan of Abrofo house in Bronyibima newsite with phone number…will sign on his behalf. The above letter allays all doubts as to the relationship between the Plaintiff and the late Justina Atombo during her lifetime. From this letter, it is clear the Plaintiff is a co-owner of the hostel in dispute and thus has an interest in the subject matter hostel. The Plaintiff further testified that he and the late Justina agreed that the latter, who already owned land, would receive periodic funds from the Plaintiff to put up a hostel at Amamoma, adjacent Baduwa Hostel. This testimony is rendered more probable in the light of the above evaluated evidence and it is the more reason why the deceased described the Plaintiff as her business partner and co- owner of the hostel. The Plaintiff proves his contribution to the construction of the hostel through receipts of bank transfers with the late Justina Atombo as receiver or beneficiary. There are other receipts in the name of Joseph Annan, however, the uncontroverted evidence before this Court is that all the said amounts were meant to develop the hostel. The Plaintiff further testified that aside his cash contribution, he invested considerable time, energy and technical knowledge into the venture with the hope that he would one day, when the hostel is completed, enjoy the fruits of his labour. The Plaintiff’s testimony is substantially corroborated by that of P.W. 1, Joseph Annan. P.W. 1 gave evidence of the Plaintiff’s contribution to discharge the 7 liability of the late Justina Atombo for which she faced criminal charges for receiving an amount of Fifty-Eight Thousand, Two Hundred and Fifty Ghana Cedis (GH₵ 58,250) from sixty-four (64) students and failing to allocate them rooms in the disputed hostel. The various receipts of the amounts sent to P.W. 1, the charge sheet, facts and proceedings of the Circuit Court are in evidence as EXHIBIT A series. The totality of the evidence adduced by the Plaintiff establishes that at the time of the demise of Justina Atombo, a floor had been completed and comprised of six (6) rooms and same had been in use since 2016 and rents accrued from the hostel were used to further develop the hostel. The Defendants advanced their case through the testimony of the 2nd Defendant. She stated that, to her knowledge, the deceased was not in a business partnership with anyone and she never informed anyone that she was in partnership with the Plaintiff in respect of the disputed property. She further stated that the deceased made them aware that she obtained a loan from the bank to supplement the contributions the family gave her to put up the hostel. The first part of the testimony of the 2nd Defendant is clearly at variance with the documentary proof adduced by the Plaintiff and this Court is inclined to lean favourably towards the documentary proof. The law is that whenever there was in existence a written document and conflicting oral evidence, the practice of the court was to lean favourably towards the documentary evidence, especially if it was authentic and the oral evidence was conflicting. See DUAH v. YARKWA (1993-94) GLR 217. This principle was further elucidated by the Court of Appeal in the case of ALHAJI MAMUDU SALLEY AND ANOR v. RASHID PEREGRINO BRIMAH AND ORS (2017) 105 GMJ 231 where the Court held as follows; 8 “The law is 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. In the words of Atuguba JSC: Given the high evidential potency of documentary evidence, in the eyes of the law, the trial Judge should have given cogent reasons for doubting the veracity of Exhibit ‘2’ being the undertaking given by the late Kwaku Poku. See the case of Fosua and Adu Poku v Adu Poku Mensah (2009) SCGLR 310, 311 holding (1)” The probative value of Exhibit D and the notes/inscriptions in Exhibit C far outweighs the oral testimony of the 2nd Defendant. Contrary to the oral testimony of the 2nd Defendant, they positively establish a business partnership between the Plaintiff and the late Justina Atombo and that the hostel is co- owned by the Plaintiff and late Justina Atombo. Notwithstanding the interest of the Plaintiff in the disputed property, the evidence further establishes that the hostel is currently being managed by the Defendants and not Josephine Bonsu as stated by the 2nd Defendant. The 2nd Defendant testified that the said Josephine Bonsu was granted Letters of Administration to administer the estate of the late Justina Atombo. The Letters of Administration is in evidence as EXHIBIT 1. The evidence on record clearly shows that rents are currently being received by one Albert Bondzie-Essandoh, who is the son of the 1st Defendant. See EXHIBIT F. On the totality of the evidence, I am satisfied that the Defendants are the main beneficiaries of the hostel. There is no evidence as to how the hostel is managed by the said Josephine Bonsu, the Administrator of the estate of the late Justina 9 Atombo. The mere fact Letters of Administration was granted to the said Josephine Bonsu on 14th October, 2021 does not necessarily imply the hostel is being managed by her. Besides, in accordance with law, the entire hostel does not fall within the estate of the late Justina Atombo. As established above, the hostel is not the self- acquired property of the deceased as there is ample evidence of the interest of the Plaintiff in the hostel. The deceased, in her own words, stated in Exhibit D that “The hostel on the land of Miss Juliana Atombo lying and being at Amamoma in Cape Coast in the Central region of the Republic of Ghana belongs to both Jojo Ebenezer Annan and Justina Atombo.” In this wise, it is only the interest of the deceased in the hostel that falls under intestacy and qualifies to be distributed in accordance with the Intestate Succession Act, 1985 (PNCDL 111) and not the entire hostel. Following from this, the Letters of Administration (EXHIBIT 1) is not to be construed as affecting the hostel as a whole. The Letters of Administration is only applicable to the personal property of the deceased, which in this case is limited only to the interest of the deceased in the hostel and not the entire hostel. I therefore find it highly inequitable and unlawful for the Defendants to manage the hostel without any accountability whatsoever to the Plaintiff who, despite the Letters of Administration, still has a right or interest in the hostel or the proceeds therefrom. Put differently, the interest of the Plaintiff is in no way affected by the death of his business partner nor the grant of Letters of Administration in respect of the estate of his late business partner. In the circumstance, I am therefore satisfied that the Plaintiff is entitled to his investment. 10 The Plaintiff’s case therefore succeeds on the totality of the evidence. Accordingly, judgment is entered in favour of the Plaintiff in light of the overwhelming evidence adduced by the Plaintiff. The Plaintiff is to recover the sum of One Hundred and Ninety-six Thousand, One Hundred and Nine Cedis, Forty-three pesewas (GH₵ 196,109.43) being his said contribution towards the construction of the hostel with interest at the prevailing Commercial Bank rate from 2016 to final date of payment. Cost of GH₵15,000.00 is awarded in favour of the Plaintiff against the Defendants. (SGD) BERNARD BENTIL J. [HIGH COURT JUDGE] COUNSEL: FRANCESCA EYRAM SEFENU ESQ. FOR THE PLAINTIFF. DANIEL ARTHUR ESQ. FOR THE DEFENDANTS. 11