BRONI VRS. OWUSU (A1/26/2021) [2025] GHACC 10 (28 February 2025)

1 IN THE CIRCUIT COURT JUASO HELD ON TUESDAY, THE 28TH DAY OF FEBRUARY, 2025, BEFORE HER HONOUR NANA ASANTEWAA ATTAKORAH CIRCUIT COURT JUDGE. A1/26/2021 KWAME BRONI } PLAINTIFF OF H/NO. NB 116 SUING FOR HIMSELF AND ON BEHALF OF HIS FOUR SIBLINGS AND YAA SARPOMAA VRS YAW OWUSU } DEFENDANT OF NOBEWAM A/AKIM ================================================================================= JUDGEMENT ================================================================================== The Plaintiff herein caused to be instituted the present action against the Defendant for the following reliefs; a. Declaration that the purported Will executed by Opanin Samuel Yaw Boadi is null and void ab initio. 2 b. Declaration that the disputed properties which were originally acquired by the late Opanin Atta Kwaku and gifted to Akwasi Morkeh, Ama Frimpomaa and Samuel Yaw Boadi (all deceased) are family properties which Plaintiff and his siblings have worked on same from infancy till date. c. An order of this court to perpetually restrain the Defendant, his assigns, privies, servants, heirs, labourers and any person claiming through him from dealing, changing the physical nature, renting or alienating any portions of H/No. 116 situate at Nobewam and a farmland measuring twenty (20) which is divided into eight (8) acres for cultivation of food stuffs, 10 acres rice farmland and two (2) acres cocoa farms situate, being and lying at a place commonly known and called “Awiagya” near Anunu River on Nobewam Stool land which shares common boundary with Maame Abena Kwabena, Kwadwo Gyamfi (Abakomahene of Nobewam), Kwame Nyantakyi (Former Chief of Nobewam), Maame Twumwaa, Opanin Kwasi Oppong and Agya Kwaku Tanoh. d. Cost. Upon service of the Writ of Summons on the Defendant, he entered Appearance on the 19th day of February 2021 and filed a Statement of Defence on the 19th day of March, 2021. The Plaintiff filed a Reply to the Statement of Defence on the 8th day of April 2021. ISSUES FOR DETERMINATION At the Application for directions stage, the following issues were set down for trial; a. Whether or not the properties in dispute were originally acquired by Opanin Atta Kwaku who hails from Nzema in the Western Region of Ghana. b. Whether or not by tradition and custom the Nzema tribe from the Western Region of Ghana practice Patrilineal Inheritance. 3 c. Whether or not Nzema’s tradition, custom and practice all biological children (Akwasi Morkeh and Samuel Yaw Boadi) of Opanin Atta Kwaku automatically succeeds to all the properties acquired by him (Opanin Atta Kwaku) d. Whether or not the properties in dispute are family properties. e. Whether or not the purported Will said to have been executed by Opanin Samuel Yaw Boadi satisfy the requirement of a valid Will. f. Whether or not Plaintiff and his siblings have been in undisturbed possession, occupation and enjoyment of the disputed properties for over 45 years. g. Whether or not the Plaintiff and his siblings including Yaa Sarpomaa the only surviving daughter of Akwasi Morkeh have beneficial interest in the properties in dispute. h. Whether or not in the year 2020 this Honourable Court conclusively determined this matter in relation to the properties in dispute through Alternative Dispute Resolution (ADR) mechanism in Court Case numbered B3/170/2020. i. Whether or not Plaintiff is entitled to the reliefs endorsed on the Statement of Claim. THE CASE OF THE PLAINTIFF The basis for Plaintiff’s action as gathered from the accompanying Statement of Claim, Witness Statement and Cross Examination is that the properties in dispute consist of a compound house numbered NB.116 situate at Nobewam and a farm land measuring about twenty (20) acres which have been segmented into eight (8) acres for the cultivation of foodstuffs (cassava, plantain etc,) ten (10) acres rice farmland and two (2) acres cocoa farm situate and lying at a place commonly known as Awiagya near Anunu River on Nobewam Stool land all in the Ashanti Region. He added that the eight (8) acre part of the land used for the cultivation of foodstuff used to form part of the two (2) acre cocoa farm making ten (10) acre cocoa farm until the eight (8) acre part was razed down by fire in 1983 thereby paving the way for the eight (8) 4 to be used solely for the cultivation of food crops. The twenty (20) acre farm land is bounded by the properties of Yaw Anane, Atta Kumah, Kwame Kune, Akua Asare, Yaa Mfum, MaameAbena Dapaah,Maame Abena Kwabena, Kwadwo Gyamfi (Abakomahene of Nobewam), Kwame Nyantakyi (former chief of Nobewam), Maame Yaa Twumwaa, Opanin Kwasi Oppong, Agya Kwaku Tanoh and the Anunu River. He went on to say that the properties in dispute were originally acquired by his paternal grandfather called Opanin Atta Kwaku who migrated from Nzema in the Western Region of Ghana to settle at Nobewam and he acquired the disputed land in its virgin state at a place commonly known and called "Awiagya" on Nobewam Stool Land and reduced same into the cultivation of cocoa and other food crops. Opanin Atta Kwaku built a hamlet on his farm where he stayed to cultivate the farm and he used the proceeds from his farming activities to acquire a land at Nobewam and built the disputed house. Opanin Atta Kwaku married Ama Frimpomaa who had already given birth to three daughters namely Yaa Dansoa, Akua Abrafi (Defendant's mother) and Akua Owusua from her previous relationship. However, they gave birth to two (2) sons during the marriage namely Akwasi Morkeh and Samuel Yaw Boadi (Plaintiff’s father) and when Opanin Atta Kwaku grew old and became weak he returned to his native Nzema in the Western region. Before the departure of Opanin Atta Kwaku to Nzema, he invited his wife Ama Frimpomaa, his sons, Akwasi Morkeh and Samuel Yaw Boadi together with some principal relatives and gifted the disputed house and the entire farmland he personally acquired to them for which they rendered Aseda by providing a bottle of Schnapp to seal the acceptance of the gift. After Opanin Atta Kwaku returned to Nzema where he died, the properties in dispute came into the possession of Ama Frimpomaa, Akwasi Morkeh and Samuel Yaw Boadi who continued to exercise control and occupation of same. 5 Akwasi Morkeh got married and gave birth to Yaa Sarpomaa. However, he and Ama Frimpomaa predeceased Samuel Yaw Boadi and as a result all the properties in dispute devolved on Samuel Yaw Boadi. According to him he and his sister Akosua Frimpomaa lived with their grandmother who was also living at Nobewam but they subsequently went to live with their father, Samuel Yaw Boadi in the disputed house and he and his siblings assisted their father to work on the disputed farm for over forty (40) years without any challenge from any person. He continued that his father died sometime in the year 2019 and after his burial and final funerals rites when the family gathered to render accounts, the Defendant brought a document purporting to be a Will executed in his favour by the late Samuel Yaw Boadi, appointing him as his Next of Kin and successor to all the family properties including building plots that had already been given to each of the seven (7) children of the late Samuel Yaw Boadi in his life time. Most of the family members present objected to the existence of such a Will as same was questionable. The Plaintiff tendered the said Will in evidence as Exhibit A. According to him the Defendant caused the arrest his brother by name Atta Kwaku for challenging him on his unlawful seizure of all the family properties. His brother was arraigned before this Court differently constituted in case numbered B3/170/2020 and the matter was referred to the Court Connected Alternative Dispute Resolution Office for amicable settlement since the case was one involving a family. The issue was amicably settled and the Terms of Settlement reduced into writing and same signed by the Defendant, Atta Kwaku and their respective witnesses. Plaintiff tendered the Terms of Settlement in evidence as Exhibit B. The Plaintiff contended that by custom and practice, the mode of inheritance of the Nzema people is patrilineal and since Akua Abrafi the mother of the Defendant is not the biological daughter of the late Opanin Atta Kwaku, the Defendant is not a direct descendant of the late Opanin Atta Kwaku who originally acquired all the properties in dispute, hence the properties in dispute are family properties of the late Opanin Atta Kwaku and his descendants. According to him his late father, Samuel Yaw Boadi died intestate hence all properties originally acquired 6 by the late Opanin Atta Kwaku devolves on his descendants so the Will in the possession of the Defendant was not properly procured as well as executed. He prayed for the Court to grant all the reliefs endorsed on the Writ of Summons. The Plaintiff called two witnesses in support of his case. PW1 is Afia Kesewaa whose evidence is that her late mother by name Maame Abena Dapaah’s farmland shares common boundary with the farmland in dispute. According to her, she used to follow her mother to her farm when she was young and she saw Plaintiff’s father cultivating cocoa, food crops and rice on his land. She went on to say that when her mother became old and could no longer work on her farm, she entrusted same in the care of Plaintiff’s father who worked on it till his demise. In conclusion she stated that the Plaintiff is the biological son of the Late Opanin Samuel Boadi hence he is entitled to his reliefs. Yaa Afrakoma is PW2. She corroborated the evidence of the Plaintiff that the properties in dispute were acquired by Opanin Atta Kwaku who gifted same to his wife and two sons and same eventually came into the possession of Plaintiff’s father as the only surviving son and beneficiary and who exercised possession and control over all the disputed properties until his demise. According to her, the properties belong to the descendants of Opanin Atta Kwaku and the Defendant only wants to deprive the Plaintiff and his siblings of their rights to the enjoyment of the properties. THE CASE OF THE DEFENDANT The Defendant’s Defence as well as evidence at trial is that the Plaintiff herein is a son of his late uncle called Samuel Yaw Boadi and the properties in issue are situate and located in Nobewam. The compound house numbered NB 116 is the bona fide property of Obaapanin Ama Frimpomaa and the farm lands in issue were gifted to Obaapanin Ama Frimpomaa and her son Samuel Boadi by Opanin Atta Kwaku who was the husband and father of Ama Frimpomaa and Samuel Yaw Boadi respectively. The land on which the house in dispute is 7 situate was acquired by Obaapanin Adwoa Frimpomaa and she put up the house on it from her own resources even before she met and got married to Opanin Atta Kwaku. He went on to say that the farmlands are of three components. The first being a cocoa farm situate at a place commonly called "Awiregya" and bounded on all directions by the properties of Kwasi Atiko, Kwame Kyere, Akua Asare and Kwasi Oppong. The second is a cocoa farm situate at " Awiregya" and bounded by the farmsteads of Kwadwo Asokwa, Kwabena Anane, Akua Timah, Kwame Kune and the third piece of land is a farmstead situate and lying at a place commonly known and called "Abiasua" and is bounded with the properties of Kwaku Ahuoyaa, Kwaku Amoah and Kwasi Donkor. He added that Opanin Atta Kwaku never acquired a building plot in Nobewam throughout his stay in Nobewam but lived with Adwoa Frimpomaa in the said house and when Opanin Atta Kwaku got old, he decided to go back to his hometown Benyin in Nzema in the Western Region. At the time Opanin Atta Kwaku was leaving for Nzema, his son Kwaku Morkeh had died leaving only Samuel Boadi and his mother Ama Frimpomaa so Opanin Atta Kwaku gifted the lands in dispute to his wife Ama Frimpomaa and her son Samuel Boadi in a deed of gift. It is therefore untrue that the said farmlands were gifted to Ama Frimpomaa, Samuel Boadi and Kwaku Morkeh since Kwaku Morkeh was not alive as at that time. He continued that when Opanin Atta Kwaku gifted the lands in dispute to his wife and son, the latter was a minor so it was his mother Amna Frimpomaa who provided the customary Aseda to seal the gift before she went into possession of the farmlands. Later on, when Ama Frimpomaa died, Samuel Yaw Boadi who was the only surviving child took possession of the lands in dispute and the house in dispute. It is his case that since the house is the self-acquired property of Ama Frimpomaa and the farmlands were gifted to Ama Frimpomaa and his son Samuel Yaw Boadi by Opanin Atta Kwaku who was the husband of Ama Frimpomaa, Samuel Yaw Boadi could not have bequeathed same to the Plaintiff and his siblings. 8 He stated further that Ama Frimpomaa’s family is a matrilineal one so children of the male family members cannot inherit the property of their paternal grandmother. According to him, when Ama Frimpomaa died, the disputed properties were held in trust by Samuel Yaw Boadi and he also transferred same to him for which he offered customary Aseda before the elders of the Ekuona family of Nobewam so he holds the disputed property in trust for the Ama Frimpomaa matrilineal family. During the lifetime of Samuel Yaw Boadi, he sought the permission and consent of the Elders of the Ekuona family and carved out five (5) plots of the farmlands and gifted same to his children including Plaintiff with the reason that his children cannot inherit him after his death so he was giving those plots to them with the permission of the family. The Defendant also called two witnesses in support of his case. DW1 is Yaa Dufie. According to her, the Defendant herein is her cousin and the customary successor of her late uncle Samuel Yaw Boadi and the Plaintiff is the son of his aforesaid late uncle. She corroborated the evidence of the Defendant and added that when Samuel Yaw Boadi advanced in age, he was sick so he could not take care of himself and it was the Defendant who took care of him as all his children had deserted him. Therefore, it did not come to the family as a surprise when Samuel Yaw Boadi appointed Defendant to be his successor when he passed. She went on to say that after Samuel Yaw Boadi informed the family about his decision for the Defendant to succeed him upon his demise, Defendant offered a bottle of Schnapps as customary Aseda to Samuel Yaw Boadi and when Yaw Boadi passed, the family unanimously agreed that Defendant should be his customary successor. The Defendant accepted same and offered One Thousand Ghana Cedis (GH₵1000) and a bottle of schnapps as "Aseda" to the family. The Defendant has since held the disputed house and farmlands in trust for the Ama Frimpomaa family without any challenge from any family member. She concluded that the disputed properties are not the self-acquired properties of Samuel Yaw Boadi so he could not have bequeathed or gifted same to his children. Kwadwo Osei Emmanuel (DW2) a cousin of the Defendant also corroborated his evidence. 9 EVALUATION AND ANALYSIS Section 11(1) of the Evidence Act 1975 (NRCD 323) (hereinafter referred to as the Evidence Act) provides; “For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.” Under the Evidence Act, the burden is categorized into two (2) heads namely the burden of persuasion and the burden of producing evidence. Under Sections 10(1) and 10(2) the burden of persuasion are as follows; 10(1) “For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court” 10(2) “The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond reasonable doubt” It is a basic principle of law of evidence that, a party who bears the burden of proof is to produce the required evidence of facts in issue that has the quality of credibility, short of which his claim may fail. It is also trite that 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. See: Section 11 (4) of NRCD 323 Ackah Vrs Pergah Transport Ltd & Ors (2010) SCGLR 728 Gihoc Refrigeration & Household Products Ltd. Vrs Hanna Assi (2005-2006) SCGLR 458. 10 Section 12 (1) of NRCD 323 provides that “except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.” Section 12 (2) of NRCD 323 defines preponderance of probabilities as “that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.” See: Harrison Edward Nartey Martin vrs Barclays Bank (GH) Limited Civil Appeal No. J4/42/2017 delivered on the 13th day of December, 2017. Generally, it is the party who alleges who must prove and because the action is initiated by the Plaintiff it rests on him. It is therefore, the plaintiff who must prove his case on the preponderance of probabilities. The evidence adduced in the course of trial will be evaluated with respect to the issues set down for determination of the suit. An issue on Arbitration has been raised as part of the issues set down in the Application for Directions filed by the Plaintiff. This is a legal question which should be determined first because, if it is successful, then the court will not proceed to determine the case on its merits. The issue as filed by the Plaintiff is as follows; • Whether or not in the year 2020 this Honourable Court conclusively determined this matter in relation to the properties in dispute through Alternative Dispute Resolution (ADR) mechanism in Court Case numbered B3/170/2020. According to the Plaintiff, the Defendant caused the arrest of his brother called Atta Kwaku and when his brother was arraigned before this court differently constituted, the matter was referred to the Court Connected Alternative Dispute Resolution Office and the issue was 11 amicably settled and same adopted as consent judgement. He tendered the Terms of Settlement as Exhibit B. It is noteworthy that the Defendant did not deny this averment in his Statement of Defence or Witness Statement and he also failed to cross examine the Plaintiff on it. In Liisa Koskela vrs Kwabena Appenteng suit no GJ/0141/2022 delivered on the 11th day of November 2022, the court referring to Foli vrs Ayirebi 1966 GLR 627 SC held “when a party had made an averment and that averment was not denied, no issue was joined and no evidence need to be led on that averment. Similarly when a party had given evidence of a material fact and was not cross examined upon, they need not call further evidence of that fact.” The purpose and the need for a party to cross examine his opponent was considered in the case of Republic vrs High Court (Criminal Division 1), Accra; Exparte Stephen Kwabena Opuni (Review Application) (2021) 174 GMJ 338 S.C. where the Supreme Court held “it is also a well-established and settled legal concept that cross examination has two main purposes, first to advance the case of the cross examiner and secondly to undermine his opponent’s case. Apart from advancing the case of the party cross examining, another purpose of cross examination is to undermine the case of an opponent and this is done usually in three ways; by limiting the testimony of the witness, by discrediting the testimony of the witness and by attacking the credibility of the witness on good grounds.’’ In the instant case apart from not denying the fact that there has been an arbitration in respect of the properties in dispute, the Defendant also failed to cross examine the Plaintiff on it, leaving the Plaintiff’s evidence on the settlement through Court Connected Alternative Dispute Resolution to stand unchallenged and which should enure to the benefit of the Plaintiff. In the case of Republic vrs High Court (Fast Track Division), Accra; Ex-parte Debora Atakorah (Billy Cudjoe interested party) Civil Motion No. J5/27/2014 delivered on the 22nd day of July 2014, the Supreme Court in quashing the trial court’s decision to continue the trial of the case on its merits instead of entering terms of settlement reached by the parties as consent 12 judgment held “when parties settle an action in or out of court simpliciter, the cause of action involved in such settlement is gone and is replaced by such settlement. Upon breach of the settlement the innocent party’s remedy is not to reopen the litigation so settled but to bring an action to enforce the settlement, it being an enforceable contract between the parties involved. Where however the terms of settlement by consent of the parties are entered by the court as consent judgement then it becomes, like any other judgment an executable judgment of the court if it contains executable orders.” The court continued thus “the parties’ terms of settlement are binding upon them because they are contractual. That being so we find it difficult to see how when one of the terms of such settlement is that they be made consent judgment, such a term should not also have contractual binding effect. By allowing the interested party to overthrow that term the trial judge in effect granted him a dispensation to break his own contract arbitrarily. A court has no such jurisdiction. Even if the trial judge were to be right in refusing to enter the terms of settlement as a consent judgment, he would still be wrong to proceed with the case on its merits because in view of the principles herein stated, the terms of settlement alone were sufficient to divest the court of its jurisdiction to proceed further on trial of the case on its merits.” I wish to state that in the instant case, the Plaintiff only tendered the terms of settlement reached at Court Connected Alternative Dispute Resolution without the Consent Judgment but he gave evidence to the effect that same was adopted as Consent Judgment by this very Court differently constituted and as I have stated, the Defendant failed to cross examine him on it. From the foregoing, I hold that the said Consent Judgment of the Court is like any other judgment of the Court which the Plaintiff can enforce. As a result, the Court cannot the court cannot go into the merits of the case as the cause of action for the matter no longer exists by virtue of the Terms of Settlement which was adopted by the Court as Consent Judgment. Same is hereby enforced as between the parties. Cost of Ten Thousand Ghana Cedis (GH 10,000) awarded in favour of the Plaintiff against the Defendant. 13 SGD. NANA ASANTEWAA ATTAKORAH (CIRCUIT COURT JUDGE) COUNSEL PARTIES IN PERSON REFERENCES: ACKAH V PERGAH TRANSPORT LTD & ORS (2010) SCGLR 728 GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD. V HANNA ASSI (2005- 2006) SCGLR 458. HARRISON EDWARD NARTEY MARTIN VRS BARCLAYS BANK (GH) LIMITED CIVIL APPEAL NO. J4/42/2017 DELIVERED ON THE 13TH DAY OF DECEMBER, 2017. LIISA KOSKELA VRS KWABENA APPENTENG SUIT NO GJ/0141/2022 DELIVERED ON THE 11TH DAY OF NOVEMBER 2022 REPUBLIC VRS HIGH COURT (CRIMINAL DIVISION 1), ACCRA; EXPARTE STEPHEN KWABENA OPUNI (REVIEW APPLICATION) (2021) 174 GMJ 338 S.C. REPUBLIC VRS HIGH COURT (FAST TRACK DIVISION), ACCRA; EX-PARTE DEBORA ATAKORAH (BILLY CUDJOE INTERESTED PARTY) CIVIL MOTION NO. J5/27/2014 DELIVERED ON THE 22ND DAY OF JULY 2014 14