TAY AND AOTHERS VRS. MONCAR (C11/84/19) [2025] GHACC 13 (27 February 2025)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON THURSDAY, THE 27TH DAY OF FEBRUARY, 2025, BEFORE HER LADYSHIP JUSTICE AGNES OPOKU-BARNIEH, SITTING AS ADDITIONAL CIRCUIT COURT JUDGE SUIT NO. C11/84/19 GLORIA MONCAR TAY ---- 1ST PLAINTIFF DORIS LARYEA ---- 2ND PLAINTIFF EBENEZER O. MONCAR ---- 3RD PLAINTIFF VRS. NII AYERTEY MONCAR ---- DEFENDANT 1ST & 3RD PLAINTIFFS PRESENT REPRESENTING THE 2ND PLAINTIFF DEFENDANT PRESENT G.S.K. BABANAWO, ESQ. FOR THE PLAINTIFFS ABSENT VIVIENNE TETTEH, ESQ. FOR THE DEFENDANT ABSENT JUDGMENT FACTS: The plaintiffs, originally numbering four, issued a writ of summons with an accompanying statement of claim against the defendant in the Registry of this Court on 3rd April, 2019. In the course of the proceedings, the third plaintiff died and was not substituted. Per an amended writ of summons and statement of claim filed on 31st March, 2021, the plaintiffs claim against the defendant the following reliefs; (a)A declaration that H/No. A09 and A011, Community 7, Tema are the properties of the late David Tei-Mensah Moncar, the father of the plaintiffs. (b)An order directed at the parties to share properties in accordance with how the plaintiffs’ father allocated the houses to the plaintiffs and their deceased brothers and sister. 1 (c)An order that the defendant and his siblings benefit from the portion that is for their deceased father on the male side of H/No. A011. The defendant also filed a statement of defence on 30th May 2019 and counterclaimed against the plaintiffs as follows; (a)A declaration that all six children of David Charles Tei Mensah Moncar are the beneficiaries of his estate (house numbers AO/9 and AO/11). (b) A declaration that the plaintiffs cannot exclusively vest house numbers AO/9 & AO/11 to themselves. (c)A declaration that the defendant and his siblings, as the children of the late Charles Akwertey Moncar are entitled as beneficiaries of their late grandfather. THE PLAINTIFFS’ CASE The plaintiffs are the children of the late D.C. Moncar and the defendant is the grandson of the deceased. The defendant’s late father, Mr. Samuel Akwertey Moncar, predeceased the plaintiffs’ father. The plaintiffs’ late father was the owner of House No. A09, located at Community 7, Tema. The plaintiffs state that after the death of the deceased, the house in issue became the joint property of the plaintiffs. On 17th September 2018, Letters of Administration were granted to Emmanuel A. Moncar, Gloria Moncar-Tay and Ebenezer O. Moncar in their capacities as the children of their late father. Thereafter, the plaintiffs vested the property H/No. A09 and AO11 Community 7 Tema in the names of the plaintiffs and their sister, Mrs. Doris Laryea. Additionally, the plaintiffs state that on 8th January 2006, at a meeting held after the deceased's death, they agreed to grant the defendant a temporary stay in the house of the deceased. According to the plaintiffs, this decision enabled the defendant who was preparing for marriage to have his privacy. The plaintiffs state that the defendant had 2 lived in the Community 7 property for 10 years, even though his late father had no interest in the property. The plaintiffs state that after losing two of their siblings and experiencing difficulty in raising funds for the funeral, they decided to open an account, lease the property, and save money for any eventualities. Thus, on 14h May 2016, the head of the family Mr. Akwertey Moncar, notified the defendant during a family meeting to return to H/No. G15, Community 4, Tema to manage his late father’s estate which is now a four- bedroom house and was given up to 31st December 2016, to vacate the property. However, the defendant failed to vacate. All other efforts made to persuade the defendant to leave the house have been futile. The plaintiffs assert that when the second plaintiff visited Ghana and stayed in one of the rooms, the defendant caused her arrest. The police advised the parties to resolve the matter amicably, but the defendant did not heed this advice. THE DEFENDANT’S CASE The defendant asserts that the property in question does not belong solely to the plaintiffs but to all six siblings who survived his grandfather (David Charles Tei Mensah Moncar). Therefore, the defendant maintains that his late father survived his grandfather and is a beneficiary of his estate. He states that his later late father’s children financed his funeral and burial rites with minimal financial support from the family which was refunded to them after the funeral. The defendant further claimed that his deceased aunt was a retired Customs officer with her own resources and her burial was not the responsibility of the plaintiffs. He mentions that although he was asked to leave the house, he did not do so because his deceased father also had an interest in it. 3 The defendant adds that during all the meetings held, he did not agree to vacate the house. Additionally, he states that House No. G/15 Community 4, Tema was a two- bedroom house before he moved to Community 7, Tema in the year 2006. The defendant alleges that the third plaintiff entered the room where he kept his personal belongings and library and began to throw his belongings out. When she refused to answer his inquiries about why she was doing so, he filed a complaint regarding her actions. Consequently, the police invited the third plaintiff to the station and advised her to cease her behaviour. The defendant further asserts that the administrators must manage the property for the benefit of all siblings who survived his grandfather or for the children of deceased siblings. He maintains that the plaintiffs are not the sole beneficiaries and cannot confer ownership of the properties exclusively to themselves, excluding his father and aunt. Lastly, he insists that House No. G/15 Community 4, Tema has never belonged to his grandfather; it has always been the bonafide property of his deceased father. At the application for directions stage, the court set down the following issues for trial. LEGAL ISSUES 1. Whether or not the proposal by the surviving children of the late David Charles Moncar to lease their father’s house to raise money for the family means that the defendant’s deceased father was being excluded. 2. Whether or not the plaintiffs are denying that the defendant’s father has a right to the said property House/No. A09 at Community 7, Tema. 3. Whether or not all the plaintiffs are pensioners and therefore needed a means of raising money for the family. 4. Whether or not the decision taken by the plaintiffs was communicated to the defendant. 4 5. Whether or not the decision taken by the plaintiffs to allow the defendant to go and occupy the said property shows that the property was shared and the defendant was given his father’s portion. 6. Whether or not the defendant was the only son of the plaintiffs’ deceased brother to enable him to take his father's share of the property when shared. 7. Any other issues arising out of the pleadings. At the conclusion of the trial, Counsel for the plaintiffs filed a written address on 14th February 2025 and the court has considered same. BURDEN OF PROOF Sections 10(1) of the Evidence Act, 1975 (NRCD 323) provides as follows; “For the purposes of this Decree, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable that its non-existence.” The Supreme Court in the case Ackah v. Pergah Transport Ltd [2010] SCGLR 728 @ 734 per Sophia Adinyira (as she then was) held as follows; “It is a basic principle of the law of evidence that 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. It is trite law 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 reasonable than its non-existence. This is the requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)” In the case of Poku v. Poku [2007-2008] 2 SCGLR 996 @ 1022, the Supreme Court, speaking through Wood CJ ( as she then was), stated the statutory provisions of duty on a party in a civil suit to discharge the burden of proof as follows; 5 “…Who has the onus of proof and what is the degree or standard of proof?… 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 or degree of proof must also necessarily be proof on the preponderance of the probabilities within the meaning of section 12 of the Evidence Act, 1975(NRCD 323).” It is also trite learning that a counterclaim is a distinct and separate action, and a party who counterclaims also bears the burden to prove the counterclaim on a balance of probabilities. In the case of Aryeh & Akakpo v. Ayaa Iddrisu [2010] SCGLR 891 @901, the Supreme Court per Brobbey JSC (as he then was) held as follows: “A party who counterclaims bears the burden of proving his counterclaim on the preponderance of the probabilities and would not win on that issue only because the original claim has failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent’s case.” In the instant case, the plaintiffs who brought the defendant to court have the burden of proving their case on a balance of probabilities to entitle them to the reliefs sought from the court. The defendant who also counterclaims bears the burden to lead cogent and admissible evidence to prove his counterclaim and the failure of the claim of the plaintiffs per se would not entitle him to the reliefs. ANALYSIS Section 1 of the Administration of Estate Act, 1961(Act 63) provides that the movable and immovable property of a deceased person shall devolve on the personal representatives of the deceased with effect from the date of death. Where there is no executor and a personal representative has not yet been appointed, the estate shall vest in the successor if the entire estate devolves under customary law or in the Chief Justice in any other case. Again, Section 108 of Act 63 defines personal representative to mean executor, original or by representation or the administrator for the time being of a 6 deceased person. Section 96 of Act 63 imposes an obligation on Administrators of an estate to prepare vesting assents in respect of the immovable properties of the deceased distributed. Additionally, to ensure that administrators of a deceased intestate distribute the estate equitably, the Intestate Succession Law, 1985, has elaborate provisions on how the property is to be distributed in accordance with the law. The purpose of PNDCL 111 is succinctly stated in the Memorandum to the Act, which is to cater for spouses and children of a deceased intestate who were hitherto afforded little or no protection upon the death intestate of a spouse or parent. The PNDCL 111 stipulates how the property of a deceased intestate should be distributed. The provisions in the PNDCL 111 are clear on how the property should be distributed. Sections 3 and 4 provide for what should go to the surviving spouse and children exclusively and the law further provides the fractions for distributing the residue of the estate after taking out the household chattels and the only house, which devolves exclusively on the surviving spouse and children. The law provides that three- sixteenth of the residue shall devolve on the surviving spouse, nine-sixteenth to his child, one-eighth to his surviving parent and one-eight will devolve on the persons who are entitled according to customary law applicable to the disposition of the property of the deceased. The first plaintiff testified on her behalf and on behalf of the other plaintiffs that their late father, David Charles Tei-Mensah Moncar died and was survived by 6 children. After his death, two of the children including the defendant’s father Samuel Akwetey Moncar died. After the death of their brother and sister, they applied for the grant of Letters of Administration and same was granted based on which a vesting assent was prepared. In support, the first plaintiff tendered in evidence the said vesting assent admitted and marked as Exhibit “A”. She further testified that the defendant was previously staying with his mother in the father’s house at Community 4 H/NO. G15. 7 When the defendant was about to marry, they offered to allow him to occupy a house that their father had given to them temporarily at a family meeting on 8th January 2006 to give the defendant the needed privacy since they deemed it improper for the defendant to continue to live with his mother and two siblings in a two-bedroom apartment at H/No. G15 Community 4, Tema. The first plaintiff further testified that the defendant had lived in House No. A09, Community 7, which is their share of their late father’s estate for over 10 years and they are seeking to recover possession from the defendant. The first plaintiff further testified that they encountered difficulties in raising money to organise the burial and funeral rites of their two siblings. As a result, they agreed to renovate the house, lease the property and save the proceeds of rent to cater for such eventualities. The first plaintiff further testified that on 14th March, 2016, the head of family, Mr. Akwerteh Moncar at a family meeting informed the defendant of the need to move back to H/No. G15 Community 4, Tema, to take care of his late father’s estate which is now a four-bedroom house. The defendant was then given up to 31st December 2016 to vacate the premises of H/No. A09 Community 7. The defendant agreed to all the proposals made to him but refused to leave the house without reasonable cause. They held another meeting on 6th March 2017 to impress upon the defendant to vacate the house by 30th June 2017 and further entreaties for the defendant to move out of the house have all proved futile. The defendant again refused to comply with a notice given to him on 15th September 2017 to move to Community 4, H/No. G15. Additionally, the first plaintiff testified that when the third plaintiff returned from London in November 2018 and was lodging in her room in the house on 31st December 2018, the defendant reported the third plaintiff for her to be arrested. The police invited the parties to arbitration on 2nd January 2019, but the settlement broke down. The 8 plaintiffs further say that they have obtained letters of administration and vested the properties in the surviving children. When the court also referred the parties to ADR, the settlement broke down since the defendant refused to accept the outcome. Therefore, the defendant is not entitled to his counterclaim. The first plaintiff’s witness, Thomas Alfonso Kwao Ayitiah, who described himself as the uncle of the defendant, testified to the numerous attempts that the family made to get the defendant to vacate the property which all proved futile. He also stated that after the properties were shared, the defendant failed to append his signature. Also, the second plaintiff’s witness, Emmanuel Oko Lamptey testified that the defendant failed to leave the property when he was requested to do so and that a meeting was called for the property to be shared and the defendant was at the meeting but after the meeting ended and the properties were shared, the defendant walked out of the meeting and said that he did not know the people being referred to as uncles. The defendant on his part, testified that he lives at House No. A09 Community 7, Tema, the house in issue and the plaintiffs are his paternal uncles and aunties. The defendant states that his late father and his twin brother were the eldest children of his grandfather, David Charles Tei Mensah, who died in the early 1980s, and his father died in 2015. He states that in his father’s lifetime, he lived at House number G15 Community 4, Tema with his mother and his siblings and that said property was the self-acquired property of his late father. About one year after his father died, at a meeting with three of the plaintiffs, his mother and two of his siblings asked him to vacate House No. A09 Community 7, Tema, where he has lived since 2006. Prior to that, his deceased Aunty, Christiana Agoe Moncar, who lived there, had moved to her own house at Community 18, Tema. In March 2017, the plaintiffs invited him to another meeting at House No. A0/11 Community 7, Tema, where they told him to move out of. Subsequently, the 4th plaintiff told him that they were coming to the house, so he should move out and give them the keys, to which he failed to respond. The plaintiffs then wrote a letter to him, 9 which his lawyer responded to. According to him, his father and some siblings were aware and agreed at the meeting that he would occupy the house after his aunty moved out. At the time he went to occupy the house, his father was alive and was equally entitled to that house as his siblings and there was no mention of temporarily living there when he moved into the house. The defendant further testified that his late father was the senior brother of the plaintiffs and he is survived by three children who are entitled to his share of his father’s estate. He further testified that he did not cause the arrest of the 3rd plaintiff, but reported her to the police when she started packing out items he packed in a room. She was invited to the Domestic Violence and Victim Support Unit at Community One, where she was advised to stop what she was doing. The defendant states that the plaintiffs cannot vest the properties of their father in themselves without considering his father’s share. He states that he lives in that house as a beneficiary and administrator of his father’s estate and not a licensee. The defendant’s witness, Theresa Moncar, testified that the defendant is her son and that her late husband in his lifetime lived with her and their three children at House No. G15 Community 4, Tema, which is her late husband’s self-acquired property. The defendant lived with them until he moved to House Number A0 9, Community 7, Tema, where he has lived since 2006. After the death of her husband, at a meeting with three of the plaintiffs, herself and her three children, the plaintiffs asked the defendant to vacate House No. A09 Community 7, Tema. At the said meeting, she asked the three plaintiffs whether her late husband had a share in their father’s property. The first plaintiff responded that the property had not been shared and that what was due to her late husband would be given to his children when it was shared. Six months after that meeting, the first plaintiff told her to tell her son to leave the house, which resulted in a misunderstanding. 10 The second defence witness, an officer from TDC Company subpoenaed, testified that in their records, House No. G15, Community 4, Tema is in the name of Samuel Akwetey Moncar as the lessee and properties numbers A09 and A011, David C. Moncar as the lessee of the properties. According to him, in respect of A09 and A011, Community 7, they received a request for a change of ownership from Samuel Moncar, Gloria Moncar Tay and Ebenezer Moncar for the property to be changed into their names and one Doris Mana Laryea. The basis of the application was that they were the holders of Letters of Administration in respect of the estate of the deceased and they also provided a vesting assent. From the evidence led by the plaintiffs and the defence put up by the defendant, it is not in dispute that the late David C. Moncar was the lessee of properties numbers A09 and A011. It is also not in dispute that after the death of the late David C. Moncar, two of his children, including the father of the defendant died. It is also not in issue that the plaintiffs after obtaining the grant of Letters of Administration, never distributed the estate before they vested the property in the remaining children of the deceased. The plaintiffs, having admitted that the property was not distributed and that all the children of the deceased who survived him are entitled to a share of the estate, this matter requires no further proof. Section 104 of Act 63 provides as follows; “Subject to this Act or any other enactment, a personal representative shall distribute the estate of deceased person within one year after the grant of the probate or of the letters of administration” It is incumbent on administrators of the estate of a deceased person to distribute the estate of the deceased person within the statutory time provided by the law, barring justifiable reasons for the delay in some circumstances. It follows that failing to distribute, any of the beneficiaries may institute an action to compel the administrators to distribute the estate. In the instant case, the administrators claim that they had a 11 meeting where it was agreed that the properties should be vested in the remaining children of the deceased when in fact, the defendant in this case, has at all material times opposed this and failed to vacate the house when ordered to do so. The reasonable thing under the circumstances was for the administrators to distribute the estate according to PNDCL 111, and then the defendant’s father’s share devolved unto his estate. The plaintiffs claim that their late father in his lifetime, shared the properties and indeed if that was to be the position, the properties would not have formed part of the estate of the deceased based on which letters of administration were obtained and the properties vested in the four surviving children of the deceased. Thus, the vesting of the property before distribution is unlawful and same is set aside. Therefore, the contention that the deceased distributed his estate before his death is untenable. I therefore find that house numbers A09 and A011 are the properties of the deceased. The plaintiffs failed to prove that the deceased shared these properties in his lifetime and that House No. A011 is the share of the defendant and his siblings. I therefore grant the counterclaim of the defendant that the plaintiffs cannot exclusively vest house numbers A0/9 & A011 to themselves alone and declare that the defendant and his siblings as the children of the late Samuel Akwetey Moncar are entitled as beneficiaries of their late grandfather. The plaintiffs, the administrators of the estate of the late David Moncar, are obliged to distribute the estate according to law. The vesting assent vesting the property in the name of the plaintiffs is accordingly set aside. CONCLUSION In conclusion, I hold that the plaintiffs failed to prove their case against the defendant on a balance of probabilities. I therefore enter judgment for the defendant against the plaintiffs in the following terms; 12 (a)A declaration that all six children of David Charles Tei-Mensah Moncar are the beneficiaries of his estate (house numbers AO/9 and AO/11). (b) A declaration that the plaintiffs cannot exclusively vest house numbers AO/9 & AO/11 to themselves. (c)A declaration that the defendant and his siblings as the children of the late Samuel Akwetey Moncar are entitled as beneficiaries of the estate of their late father who survived David Charles Tei Mensah Moncar. (d)The administrators of the estate, the plaintiffs herein are further ordered to redistribute the estate and prepare new vesting assents. The vesting assent vesting the properties in the plaintiffs is accordingly set aside. COSTS It is trite learning that the award of costs is at the discretion of the Court, and like all discretionary powers, it must be exercised judiciously. See Article 296 of the 1992 Constitution. Order 74 of the High Court (Civil Procedure) Rules, 2004, CI. 47 and the Practice Directions on Award of Cost which govern the award of costs. See also Tema Oil Refinery v. African Automobile Ltd. [2010] DLCA 6596. Thus, considering the nature of the case, the length of the trial and the number of court sittings, the defendant testified and called one witness, reasonable expenses incurred by the defendant in filing court processes, and to provide reasonable remuneration for Counsel for the defendant, I will award an amount of Ten Thousand Ghana Cedis (GH₵10,000) as cost in favour of the defendant against the plaintiffs. SGD. H/L JUSTICE AGNES OPOKU-BARNIEH (ADDITIONAL CIRCUIT COURT JUDGE) 13