SEIDU & ANOTHER VRS ABUBAKARI & 2 OTHERS (UW/WA/HC/E12/1/2018) [2024] GHAHC 346 (11 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE DELIVERED AT WA ON TUESDAY 11TH JUNE 2024 BEFORE HIS LORDSHIP JUSTICE A. YUSIF ASIBEY HIGH COURT JUDGE SUIT NO. UW/WA/HC/E12/1/2018 1. SHAIBU SEIDU 2. FUSEINI ADAMAH PLAINTIFFS VRS. 1. ALI ABUBAKARI 2. MUMUNI ISSAHAKU 3. SALIFU RIDWAN DEFENDANTS JUDGMENT INTRODUCTION By a Writ of Summons dated 16th October, 2017 and an Amended Statement of Claim dated 3rd June, 2019, the Plaintiffs herein instituted the instant action against the Defendants, praying this Court for the following reliefs: a. An order for the defendants to account to the Sandao family the amount of money received on behalf of the Sandao family. b. Interlocutory order restraining the Defendants from further acting for and on behalf of the family in the execution process in respect of Suit No. E1/15/2012 c. An order that subsequent compensation meant for the Sandao family in respect of their Suit No. E1/15/12 be paid into court in the interim. d. Cost 1 Defendants entered conditional appearance on 24th October, 2017 and filed a Statement of Defence on 2nd November, 2018. PLAINTIFF’S CLAIM Plaintiff sued as principal elders of the Sando family of Sokpayiri in Wa. Plaintiffs claim that they brought the action for and on behalf of the said Sandao family. Plaintiffs alleged that the current head of family has failed to take action to represent the interest of the family. The Plaintiffs allege that the Defendants are junior members of the family who were authorized to act on behalf of the family in the execution process in Suit No. E1/15/2012 in which the Sandao family was paid compensation for occupation and use of land together with two other families, being owners of land at Naapokbaa-kole residential area in Wa. Plaintiffs say that in the course of execution in that suit, a total sum of GHS 3,865,854.00 was paid to the Defendants as compensation for the land but they only accounted for GHS1,400,000.00 failed to account for the remaining sum. The Plaintiffs allege that the lifestyle of the Defendants have since changed and they are putting up houses. Plaintiffs further say that a further search conducted at the Registry of this Court revealed that a post judgment interest amounting to GHS1,991,179.84 had been paid to the Defendants through their lawyer Charles Lwanga Puouzuing Esq. the Defendants have however failed to disclose the full amount received as part compensation for the land and have not accounted for same. Plaintiffs say the conduct of the Defendants has caused distress and hardship to the family. DEFENDANTS’ CASE In their Statement of Defence, Defendants aver that the Plaintiffs, although members of the Sandao family, are not principal elders of the family. Defendants say that the Plaintiffs do not have the consent and authority of the Sandao family to institute the 2 instant action. Defendants say that the Head of the Sandao family is satisfied with the role played by the Defendants in Suit No. E1/15/2012. Defendants say that the Plaintiffs never contributed financially or in any other form to the prosecution of Suit No E1/15/2012 and are thus not entitled to account. Defendants say that the Plaintiffs were given their portion of the money paid as compensation after all litigation expenses, surveyor fees and legal fees were deducted. Defendants say that the Plaintiffs have no cause of action against them and therefore not entitled to their reliefs. ISSUES SET DOWN FOR TRIAL The following issues were set down for trial: a. Whether or not in light of the Amended Statement of claim, CHARLES LWANGA PUOZUING ESQ, Counsel for the Defendants herein is competent to represent them in this suit. b. Whether or not Plaintiffs are principal members of the Sandao family of Sakpayiri, Wa c. Whether or not the current head having failed and or neglected to mount action against the Defendants herein, the Plaintiffs cannot institute the present action to protect the interest of the family. d. Whether or not the Defendants did account for the amount of GHS3,865,854.00 due the Sandao family having represented it in the execution process of Suit No E1/15/12. e. Whether or not the Defendants did account for post judgment interest amounting to GHS1,991,179.84 due the Sandao family and 3 paid to PUOZUING AND ASSOCIATES under the instructions of the Defendants. f. Whether or not Plaintiffs are entitled to reliefs sought. BURDEN OF PROOF What is the burden of proof that the Plaintiffs in this case have to establish? On the burden of proof in civil cases, the Supreme Court in Poku v. Poku [2007-2008] 2 SCGLR 996 at 1022 per Georgina Woode CJ stated the statutory duty on a party in a civil suit to discharge the burden of proof when it held as follows: “It raises the legal question of who bears the burden of persuasion in such civil matters, …….. Who has the onus of proof and what degree or standard of proof? Generally speaking, this depends largely on ……. The facts averred and therefore the facts in issue……Generally, the burden of proof is therefore on the party asserting the facts, with the evidential burden shifting as the justice of the case demands. The standard of degree of proof must also necessarily be proof on the preponderance of the probabilities within the meaning of Section 12(2) of the Evidence Act, 1975 (NRCD 323)”. In the case of GIHOC Refrigeration and Household Ltd v Hanna Assi [2007-2008] 1 SCGLR1, Akuffo JSC explained that the standard of proof in all civil matters is …based on a determination of whether or not the party with the burden of producing evidence on the issues has, on all the evidence satisfied the judge of the probable existence of the fact in issue. The principle as stated in the Poku v. Poku case (supra) is based on Sections 10, 11, 12 ,14 and 17 of the Evidence Act, 1975 (NRCD 323). 4 It is trite law that the matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. In the case of Takoradi Flour Mills v. Samira Faris [2005 -2006] SCGLR 882, it was held that when the plaintiff has been able to discharge the burden of proof on him, and has by his evidence established facts from which an inference can reasonably be drawn in his favour, then the onus would shift on the defendant. From the foregoing, it is apparent that the legal burden/burden of persuasion at all material times lies with the Plaintiff to prove its case; however, the burden to produce evidence may shift where necessary to the Defendant. See the case Sumaila Bielbel (No. 3) v Adamu Dramani & Attorney -General [2012]SCGLR 370 at 371 which states ‘the distinction between the two burdens of proof, namely, the “burden of persuasion” as defined in section 10(1) and the “burden of producing evidence” as defined in Section 11(1) of the same Act, is important because the incidence of the burden of producing evidence can lead to a defendant acquiring the right to bring leading evidence in a trial, even though the burden of persuasion remains on the plaintiff. Ordinarily, the burden of persuasion lies on the same party as bears the burden of producing evidence. However, depending upon the pleadings or what facts are admitted, the evidential burden can move on to a defendant.’ Further reference is made to pages 29, 74 and 75 of Essentials of the Ghana Law of Evidence by S.A. Brobbey JSC where the learned author state as follows, ‘when it is said that the burden of proof shifts, what is meant is that after one party has adduced sufficient evidence to prove his point, the burden will move to the opposing party to adduce more cogent evidence which will disprove the opponent’s case and induce the Court to believe him and rule in his favour. The shifting of the burden applies only to the burden to produce evidence’ 5 It is thus trite that where the Plaintiff produces evidence to prove any fact in issue, the burden of producing shifts to the Defendant to produce such relevant evidence to disprove the Plaintiff’s case. Holding 5 of the Takoradi Flour Mills case (supra) states that; “……. this being a civil suit the rules of evidence require ……..that in assessing the balance of probabilities, all the evidence, be it that of plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict……..” EVIDENCE FILED BY PARTIES In proving its case, the Plaintiffs in accordance with the High Court (Civil Procedure) (Amendment) Rules, 2014 C.I. 87, (C.I.87) and the orders of this Court filed Witness Statements on 14th 0ctober, 2019 for the following witnesses; Fuseini Adamah and Kassim Sandoa. Fuseini Adamah tendered the following Exhibits without objection; EXHIBIT A- Certified copy of the judgment in Suit No. E1/15/12 EXHIBIT B-Certified Copy of the Writ of Summons in Suit No. E1/15/12 EXHIBIT C-Certified Copy of Search Report The following Witnesses filed Witness Statements on 20th November, 2019 in Support of the Defendants’ case; Abubakari Mahama and Zakaria Seidu. Abubakari Mahama died before he could testify in court. His Witness Statement was adopted by the Court as hearsay evidence on 1st February, 2022 DETERMINATION OF ISSUES The Court will now proceed to determine the issues set down for trial. Whether or not in light of the Amended Statement of claim, CHARLES LWANGA PUOZUING ESQ, Counsel for the Defendants herein is competent to represent them in this suit. 6 This issue was dealt with in the course of the suit. On 27th February, 2019, pursuant to an interlocutory application filed by the Plaintiffs to restrain the Defendant’s Counsel from representing them, this court decided that the Defendants’ counsel, Charles Lwanga Puouzuing was competent to represent the Defendants in the suit and refused the Plaintiff’s prayer. The ruling of the Court dated 27th February, 2019 is hereby maintained in respect of this issue. Whether or not Plaintiffs are principal members of the Sandao family of Sakpayiri, Wa In YOUHANA V. ABBOUD (1973) 1 GLR 258, the court held, inter alia, that: “Where the authority of a person to sue in a representative capacity had been challenged, the onus was upon him to prove that he had been duly authorised. He could not succeed on the merits without first satisfying the court on this important preliminary point.” Plaintiffs averred in the Amended Statement of Claim that they sued as principal elders of the Sandao family. Defendants denied this assertion in the Statement of Defence and asserted that despite being members of the family, the Plaintiffs are not principal members of the Sandao family. The Witness Statement of the Head of Family, Abubakari Mahama, which was adopted as hearsay evidence indicates that the Plaintiffs are not principal members of the Sandao family. The case of Quarcoo v Allotey [1978] GLR 788 defines principal members of a family as follows; ‘Such principal members are those recognised by the family as are qualified to take part in the appointment of a successor or head.’ Beyond repeating the assertion in his witness statement, the 2nd Plaintiff did not produce evidence to support the assertion that the Plaintiffs are principal members of the Sandao family. In fact, PW2 who testified on behalf of Plaintiffs did not testify that they were principal members of the family. The case of Majolagbe v Larbi [1959] GLR 190 establishes that “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive 7 way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness- box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” The Court finds that the Plaintiffs have failed to adduce sufficient evidence that they are principal members of the Sandao family. The Court holds that the Plaintiffs are not principal members of the Sandao family. Whether or not the current head having failed and or neglected to mount action against the Defendants herein, the Plaintiffs cannot institute the present action to protect the interest of the family. Having found that the Plaintiffs are not principal members of the Sandao family, do they have capacity to institute the instant action? Section 2(1) of HEAD OF FAMILY (ACCOUNTABILITY) LAW, 1985 (PNDCL 114) provides that ‘Where a head of family fails or refuses to render account or file an inventory of the family property, a member of the family to which that property belongs who has or claims to have a beneficial interest in the property, may apply by motion to a Court for an order compelling the head of family to render account or file an inventory of the family property to the family.’ The Court finds that by reason of Section 2(1) of PNDCL 114, the Plaintiffs as members of the Sanda family have the capacity to institute this action for accounts to be rendered, save that the Plaintiffs sued the wrong party; they should have sued the Head of Family. Further, the mode of commencement does not comply with PNDCL 114; they ought to 8 have applied by a motion and not a Writ of Summons. The above notwithstanding, I shall proceed to address issues (d) and (e) together. Whether or not the Defendants did account for the amount of GHS3,865,854.00 due the Sandao family having represented it in the execution process of Suit No E1/15/12. Whether or not the Defendants did account for post judgment interest amounting to GHS1,991,179.84 due the Sandao family and paid to PUOZUING AND ASSOCIATES under the instructions of the Defendants. In determining these issues, the Court will consider the following; a. Whether the Plaintiffs have taken steps to settle the matter within the family and that the attempts had failed. b. The nature of the accounts required under PNDCL 114 Section 2(2) of PNDCL 114 provides that an application under subsection (1) shall not be entertained by the Court unless the Court is satisfied that the applicant had taken steps to settle the matter within the family and that the attempts had failed. In paragraphs 10 and 11 of his Witness Statement, PW1 testified that a meeting was held for accounts to be rendered properly with documentary evidence but the Defendants did not budge and further that the Head of family was reluctant to proceed against the Defendants in court. During trial however, the 2nd Plaintiff contradicted the testimony of PW1 when he said that no meeting was held to enable the family come to court in respect of this matter. (See Record of Proceedings of 10th May, 2021 at page 38). The Court thus finds that the Plaintiffs have not taken steps to settle the matter within the family and should thus not be entertained by the Court. 9 In spite of the above finding, what is the nature of the accounts required under PNDCL 114? In the case of AFUA SARPONG, J.A. ODURO AND THOMAS K. ASAMOAH V. OPANIN FRIMPONG AND OPANIN ADUSA (2008) JELR 66632 (CA), the Court of Appeal explained ACCUNTABILITY under PNDCL 114 as follows; Now in my humble view, "Accountability" envisaged under this law, is only a reiteration of the position under customary Law. It does not simply mean checking monies which have accrued into the pocket of the successor, and how such monies have been used. It rather relates to the successor's overall stewardship, control and management of the family property in his possession. [Emphasis mine]. During trial, the 2nd Plaintiff and PW1 both confirmed that all sections of the Sandao family had received their share of the compensation received by the Defendants. SEE RECORD OF PROCEEDINGS OF 6TH JULY, 2021 AT PAGES 42 AND 43 Q; You are aware that four sections of the Sandao family shared the compensation that was paid, is that correct A; Yes that is correct. Q; the four sections that received the compensation are Ango, Kpienchanie, Iddi and Seidu. Is that correct A: Yes that is so Also see PW1’s cross examination at page 47 of the Record of Proceedings and as follows; Q: The Sandao family, of which you are a member also shared its portion of the compensation among the Ango, Kpienchanie, Iddi and Seidu Sections A: That is true Q: You- That is PW1 were given your portion From Iddrisu Sedu who took the Section’s share, is that correct? A: Yes that is so 10 The Court is convinced, that the nature of accounting required by PNDCL 114 has been complied with as both Plaintiffs’ witnesses are aware that the money that was received was shared among the four Sections of the Sandao family. In the circumstances the Court finds that the Defendants have accounted for the compensation received and that the Plaintiffs are not entitled to any further accounts. Whether or not Plaintiffs are entitled to reliefs claimed. On the totality of the evidence adduced, Plaintiff’s claim fails for the following reasons; 1. Plaintiffs sued the wrong party. Plaintiffs ought to have sued the Head of family for accounts and not the Defendants herein; 2. Plaintiffs commenced the action by the wrong mode; they ought to have applied by motion and not a writ of summons; 3. Plaintiffs failed to demonstrate an attempt at settling the matter within the family; 4. The evidence shows that accounts have been rendered in accordance with case law and statute. Having failed in respect of the above matters, the court will not make any orders for accounts to be rendered. Further, the court will not concern itself with restraining the Defendants, who have been duly authorized by the Sandao family, from acting in respect of execution processes under Suit No E1/15/12. Finally, no orders will be made for the payment of any compensation from the said suit into court. 11 CONCLUSION In view of the above, the Court finds and holds that Plaintiffs are not entitled to the reliefs claimed before this court. The Plaintiffs’ suit is accordingly dismissed. COST: In view of the fact that parties are relatives, parties themselves prayed the Court to make no orders as to cost. HIS LORDSHIP JUSTICE A. YUSIF ASIBEY JUSTICE OF THE HIGH COURT COUNSEL Kamil Mohammed Iddrisu Esq. for Plaintiffs. Charles Pouzuing Esq. for Defendants. 12