Aryeequaye v Aryeequaye and Another (A9/095/24) [2025] GHADC 129 (21 August 2025)

IN THE KOTOBABI DISTRICT COURT ‘1’, BEHIND THE KOTOBABI CLUSTER OF SCHOOLS, KOTOBABI, ACCRA HELD ON THURSDAY 21ST AUGUST, 2025 BEFORE HER WORSHIP MAAME YAA A. KUSI-MENSAH (MS). SUIT NO: A9/095/24 ERIC NII ARYEEQUAYE - PLAINTIFF CHORKOR ACCRA VRS. 1. SAMUEL ARYEEQUAYE DEFENDANTS 2. OKAINE ARYEEQUAYE ALL OF CHORKOR ACCRA PARTIES: Plaintiff present 1st Defendant present represents 2nd Defendant 2nd Defendant absent COUNSEL: Dorcas Sarkodie Ekuban Esq (Ms). holding the brief of Yvonne Amegashie Esq (Ms) for Plaintiff present; No legal representation for Defendants JUDGMENT PROCEDURAL BACKGROUND Plaintiff commenced this action on 28th September, 2023, with a writ and statement of claim originally filed at the Adabraka District Court 2 (formerly Kaneshie District Court 2) seeking the following reliefs: Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 1 a. An order directed at the Defendants to grant the Plaintiff possession of his room at H/No. A183/3 Chorkor-Accra; b. An order for perpetual injunction restraining the Defendants, their heirs, assigns, representatives and anyone claiming through them from interfering with my quiet enjoyment of his property (sic); c. Costs d. Any other reliefs this Honourable Court may find fit. Before this suit could travel any considerable length however, it was transferred from my sister at the Adabraka Court to this Court by order of the Honourable Chief Justice dated 16th January 2024. This Court accordingly directed that the notice of transfer together with hearing notice be served on the Defendants. Following this service, and after the failure of the parties to amicably settle the matter through court-connected alternative dispute resolution, Defendants filed their combined defence on 9th December, 2024. Plaintiff filed his witness statement on 18th June, 2024 with relevant annexures attached as evidence in support of his claims. He also filed three supplementary witness statements on 15th August, 2024, 17th October, 2024 and 14th January, 2025 respectively all with attached annexures. In addition to this, he filed the witness statement of his mother, one Gifty Quayson (PW1) on 1st November, 2024 who Plaintiff called as a witness. On their part, Defendants filed their joint witness statement on 9th December, 2024. They also filed the witness statements of one Mr. E.O Ayikwei (DW2), the head of family of the parties, and one Jonathan Aryeequaye (DW1), the younger brother of Plaintiff herein. Both of these statements were filed on 15th January, 2025. There were no annexures attached to the witness statement of Defendant or any of their witnesses. Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 2 Trial in this matter followed the conduct of case management and pre-trial conferencing and was finally concluded on 15th May, 2025. Given that Defendants were unrepresented during the trial, this Court dispensed with the filling of final with addresses to the Court through counsels and the matter was scheduled for judgment. FACTS The facts of this case are quite straightforward, and centres on a disagreement over the sharing of the estate of a deceased family member in accordance with Ga customs which is the tribe both parties belong to. The Plaintiff is a nephew to the 1st and 2nd Defendant who are his uncles on his father’s side (i.e. his paternal uncles). Plaintiff claims that his father, the late Daniel Nii Yartey Aryeequaye (Deceased) constructed a room which he gifted to Plaintiff before his passing in 2022. The property in question, Hse No A 183/3 Chorkor, Accra (also referred to in this judgment as ‘the Property’) was constructed by the Deceased with his own resources on a piece of land gifted to him by his (Deceased’s) father (i.e. Plaintiff’s paternal grandfather). The Deceased built the Property as a three (3) bedroom house with a long hall and porch but later converted part of the hall into a bedroom which thus turned the property into four (4) bedrooms. Plaintiff claims his father (the Deceased), gifted three of the rooms to his other three siblings and indicated the fourth room where he was staying with his father at the time would be his (i.e. Plaintiff’s). Plaintiff indicates that prior to his father’s death in 2022 and even up to sometime in April 2023, he had been resident in the said room. However, following his father’s death, Defendants asked him to pack out of the room, changed the locks in his absence and prevented him from getting access to same. The Defendants also later blocked access to Plaintiff’s room by nailing a wooden bar to the door and drilling a nail into the lock hole. Based on these actions of Defendants, Plaintiff initially filed a formal complaint with the police and eventually instituted this action for recovery of possession of the Property together with the other reliefs I have already stated above. Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 3 Defendants on the other hand do not dispute the Deceased was the owner of the Property stated herein. The Defendants also confirm that the Property comprised of three single rooms and a hall and chamber. Indeed, what Defendants argue primarily is that because the Deceased died intestate, the estate of the Deceased which comprises of the Property herein had to be shared equally amongst all his four wives and children in accordance with Ga custom and tradition. The Defendants state two of the single rooms were already in possession of the Plaintiff’s mother and her children. This left one single room and the chamber and hall to be shared amongst the other three wives and their respective children. Thus, according to Defendants, the members of the family therefore decided to also divide the chamber and hall into single rooms and share these remaining rooms between the other three wives and their children. This would allow all the children of the Deceased to benefit from the estate. The Defendants state this was a collective family decision and sharing/distribution was done under the authority of the Family Head. Defendants indicate that the Plaintiff however refused to accept this arrangement and insisted that the chamber and hall had been gifted solely to him by his father (the Deceased). Defendants however strongly disputed this gift and reject the statement presented by Plaintiff to the family which was purportedly written by the Deceased, because the Deceased never informed his siblings or the rest of the family of this alleged gift. The Defendants did not specifically make any claims or counterclaims against the Plaintiff, nonetheless it is evident that they wish the suit be dismissed. ISSUES There were no issues expressly agreed to and set down for trial. However, the issues that need to be resolved by this Court based on the pleadings and evidence adduced is follows: 1) Whether or not the Plaintiff was gifted the Property by his father (Deceased); 2) Whether or not the Property was properly distributed by the Defendants; and 3) Whether or not the Plaintiff is entitled to his reliefs. 1) Whether or not the Plaintiff was gifted the Property by his father (Deceased) It is an unquestionably well-established principle of evidential law that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion lies on both a plaintiff and defendant, and the standard of proof required of Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 4 both parties in civil cases is on the “preponderance of the probabilities”. These evidential rules have been provided for by the virtue of sections 10, 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323). In Ababio vs. Akwasi IV [1994-1995] GBR 774 Aikins JSC expounded on this position of the law as follows: “The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead evidence to tip the scale in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this she wins, if not, she loses on that particular issue.” Similarly, in Ackah vs. Pergah Transport Ltd [2010] SCGLR 728 these evidential rules were summed up eloquently by Her Ladyship Adinyira JSC where it was held that: “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. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact…. 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 a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree.” With respect to land matters, the law is that a claim for recovery of possession also put title in issue which the party making such a claim must prove. This was emphasised in Edmund Asante-Appiah vs. Madam Kate Amponsh alias Yaa Mansah (Suit No. CA J4/34/2007, judgment dated 20th November, 2008) where it was held that, “The law is well established that where a party’s claims are for possession and perpetual injunction, he puts his title in issue: He thereafter assumes the onus of proving his title by a preponderance of probabilities, like any party who claims declaration of title to land. There are Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 5 numerous authorities on these, including Adwubeng v. Domfeh [1996-97] SCGLR 660, Ebusuapanin Yaa Kwesi v. Arhin Davis (2006) 2 GMLR50 and the old case of Kponuglo v. Koddadja (1933) 2 WACA 24.” (see also Owusu vs. Tabiri and Anor [1987-1988] 1GLR 297 where it was emphasised that a party must win his case on the strength of his own case and not on the weakness of the defence). However, as I have already indicated above, the Defendants are not contending the root through which Plaintiff is claiming ownership and possession. It is clear from their defence filed and the testimony given in their witness statement and at trial, that Defendants concede that the Property in question was the bona fide property of their deceased brother (who is also Plaintiff’s father), and further that Plaintiff is entitled to a share of the estate of Deceased. In law, where an opponent admits to a fact in issue, it is deemed that that fact or issue has been conceded and is no longer in contention. In such circumstances, the court can act on the admitted facts without further proof by the other party of the facts constituting the admissions. In Fynn vs. Fynn [2013-2014] SCGLR 727 at 738 the Supreme Court emphasised: “….in the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by) Laryea Ayiku III [2005-2006] SCGLR, this court laid down the following salutary rule of law, namely that: ‘Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such an admission, which is an example of estoppel by conduct.’” (See also HL S.A. Brobbey JSC in his book, ‘Essentials of the Ghana Law of Evidence’ at pages 112-113). There was therefore no need for Plaintiff to prove the ownership of the Property by his father or that Plaintiff was entitled to a share of his father’s estate since Defendants had conceded on same. Rather, the real issue in controversy was whether Deceased indeed gifted the relevant portion of the Property to Plaintiff which would therefore render any subsequent distribution of same invalid? It is Plaintiff’s firm contention that the relevant portion of the estate, i.e. the chamber and hall, was gifted to him by his father (i.e. the Deceased) before his passing in 2022. To prove this, Plaintiff tendered Exhibit D in evidence attached to his supplementary witness statement filed on 15th August 2024. Exhibit D is a statement purportedly emanating from and signed and also thumb- Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 6 printed by the Deceased gifting the chamber and hall in the Property to Plaintiff herein. Although the Plaintiff tendered other exhibits in evidence to support various other claims that he had made, it is this Exhibit D that is the critical piece of evidence to this issue of the purported gift to him. The elements of a valid customary gift have been outlined in law and these are: a. Clear intention to make a gift; b. Publicity of the gift; c. Acceptance of the gift by the donee by giving thank-offering or conventional aseda, or by simply using and enjoying the gift; and d. The donee must be placed in possession All these elements must be present to constitute a valid customary gift inter-vivos, and these requirements have been emphasised in cases such as: 1) In re Suhyen Stool; Wiredu & Obenewa vs. Agyei & Others [2005-2006] SCGLR 424; and 2) Ibrahim Gyamfi & Anor vs. Cecelia Boahene and Anor (Suit No. TOCC/156/15, judgment dated 1st December, 2015 HC; [2015] DLHC 3545). Again, in Nathaniel Baddoo and 3 Others vs. Mrs. Mercy Ampofo and 2 Others (Suit No. OCC/95/14, judgment dated 24th February, 2016; (2016) JELR 65363 (HC)), the court relying on the case of Kyei and Anor vs. Afriyie [1992] 1 GLR 257 with approval reiterated Lartey J as follows: “ ‘The essentials of a valid gift in customary law were publicity, acceptance and placing the donee in possession. The way to give publicity to a gift of land was to make the gift in the presence of witnesses. The acceptance should be evidenced by the presentation of "drink" or some small amount of money to the donor, part of which was served to the witnesses. The requirement of witnesses however presupposed that those present to witness the transaction should include not only members of the donor's family but also others who would be deemed to be independent with no interest whatsoever in the gift. That was important because just as an owner and the family or beneficiaries required protection against fraudulent claims, so must a rightful donee have protection from wrongful deprivation of the gift after the donor's death...’” Flowing from the above, what this Court must consider is whether the essential elements of a customary gift are present in this situation to constitute a valid gift inter-vivos to Plaintiff? Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 7 Plaintiff claims he was gifted the chamber and hall of the Property by his father as far back as 1st February 2014. It is also confirmed by both sides that the Deceased passed on in December 2022. This means that if there was indeed a purported gift to Plaintiff, this would have taken place eight (8) whole years before the Deceased passed in 2022. And yet what I find curious is that no member of the Deceased’s family was aware of this gift to the Plaintiff from between 2014 (the alleged time of the gift) until after Deceased’s death in 2022. Given that there was an eight-year difference between these two periods, the logical inference to be made is that if indeed Deceased had a clear intention to gift the disputed portion solely to Plaintiff, at some point in the eight years between 2014-2022, he would have made an acknowledgement of same to the other family members. It is true that an acknowledgment of or before family members per se does not necessarily form part of the requirements of a valid customary gift, however as has been observed from the case law, it was important for the publicity of the gift and its acknowledgment to be before members of the donor's family as well as others who could be deemed to be independent with no interest whatsoever in the gift, in order to provide evidence of the gift to quell future disputes such as has arisen in this case. Yet I found in this instance the purported publicity of the gift to be sorely lacking. I also noted that aside from Deceased and Plaintiff himself, Exhibit D lists two witnesses to this purported gift in the persons of Gifty Adwoa Quayson (PW1) and one Sally Naa Yarteley Mensah. Will the presence of these two witnesses constitute sufficient publicity of the purported gift? Gifty Quayson is the mother of Plaintiff and was called as a witness for Plaintiff, and she affirmed the purported gift to Plaintiff. However, being Plaintiff’s mother, I took cognisance of the fact that it is the natural tendency of parents to support their children in what they do. Particularly in an endeavour such as this where Plaintiff stands to gain immense benefits should the Court find in his favour, it is little wonder that the said Gifty Quayson (PW1) would corroborate this gift to Plaintiff. I think however that it would have given more weight to the assertion of Plaintiff if the independent witness Sally Naa Yarteley Mensah had also been called to testify to the publicity of this gift. She is indicated as a witness on Exhibit D and there is nothing to suggest that she is a family member from the averments of either of the parties herein nor is there any indication that she is a family member on the face of Exhibit D. Meaning that, such a person could have acted as Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 8 a truly unbiased independent witness to corroborate Plaintiff’s claim. Yet this Sally Naa Yarteley Mensah was not called as a key witness nor was any explanation such as death, ill health or some other cogent explanation given as to the reason for her absence. In fact, I find it curious that no mention as to who this Sally Naa Yarteley Mensah is, is made at all in any of the averments of Plaintiff or PW1. Coupled with the above insufficient publicity is another interesting piece of evidence tendered by Plaintiff in Exhibit G3 attached to the further supplementary witness testament filed by Plaintiff on 14th January, 2025. Exhibit G3 is titled ‘Father’s Decision’ and dated 24th October, 2022, and its contents is a decision allegedly made by the Deceased authorising Plaintiff to remove the belongings of one Jonathan Yartey (DW1) from the porch of the Property. I will reproduce the relevant portion of exhibit G3: “….the father of Eric Nii Aryeequaye Yartey herein my elder son due to the state of my health condition hereby authorize him in the removal of Jonathan Yartey herein my fourth born son personal belongings with immediate effect from my porch as I have already giving (sic) him his portion of accommodation and causing inconveniences….” The key phrase to note here is “from my porch”. Deceased did not say “from Plaintiff’s porch” or put any words to the effect that he had gifted the said chamber and hall with porch to Plaintiff. It could be argued that since the period of exhibit G3 was in October 2022, at a time Deceased was already quite sick and indeed passed just two months later in December 2022, Deceased did not have the presence of mind to make this confirmation. Ultimately, I was not persuaded by this argument and/or possibility because if Deceased had the presence of mind to state categorically and confirm that he had already given a portion of the estate to Jonathan Yartey, why would he not have the same presence of mind to confirm that the porch with its accompanying chamber and hall had been given to Plaintiff? Why would he refer to it as “my porch”? The logical answer to this is simply that Deceased never gifted that portion of the Property to Plaintiff at all. Indeed at all material times, it continued to remain a part of the bona fide Property of Deceased as from the evidence before me, Deceased remained in that portion of Property until his death in December 2022 and although Plaintiff had some belongings there, he was never placed in full possession of same. This indicates to me that there was no clear intention on the part of the Deceased to gift the disputed portion of the Property to Plaintiff. Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 9 I also found that there was very little to no evidence of the formal acceptance by Plaintiff of the purported gift either by way of the thank offering or “aseda” or acceptance by conduct. Furthermore, as I have already noted, Deceased remained in occupation of the said portion of the Property until his demise. Thus, although it is confirmed that Plaintiff had some belongings there, the continued possession of Deceased indicated that Plaintiff had not fully been put in possession of same. The combined effect of the above analysis of the facts and evidence shows that the elements of a valid customary gift, namely the clear intention of the donor to make the gift, the publicity of the gift, the acceptance of the gift and the placement of the donee in possession are either wholly absent or insufficiently established in this instance. It may very well be that Deceased may have made some oral or bare promises to Plaintiff to gift the said portion of the Property to him, and it was based on this that Plaintiff was operating under the view that that portion of the Property belonged to him. However, a promise to give a gift does not amount to actually giving that gift. And in the light of the above elaborate analysis, I find that no gift inter vivos was given to Plaintiff by Deceased. 2) Whether or not the Property was properly distributed by the Defendants? It has never been in denial that the Defendants have distributed the estate of Deceased. They claim they did so in accordance with Ga custom in a manner that seemed most fair to them to ensure all the children of Deceased got a portion of their father’s estate. Since I have found there was no valid gift of the disputed portion given to Plaintiff, there was nothing to hinder the inclusion of same in the distribution of the rest of the estate. The question that remains is whether or not the Property was properly distributed by the Defendants? Defendants admit they did not obtain letters of administration to clothe them with capacity to distribute the estate (see proceedings dated 12th May, 2025). The only authority upon which they based their distribution is based on Ga customs with the consent and authority of the Family Head and members of the family. Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 10 The law however is that when a person dies, the personal representatives of the estate are either to obtain Probate or Letters of Administration from the courts. Letters of Administration (LA) is the legal authority given by the court to a person or persons to administer the estate of a deceased person who died without a valid will, and any person who takes possession of, administers or otherwise deals with the property of a deceased person without the lawful grant of LA may be guilty of intermeddling (see section 17 of the Intestate Succession Law, 1985 (PNDC Law 111) and the case of The Republic vs. High Court (Commercial Division), Accra, Ex Parte: Yvonne Amponsah Brobbey, Gladys Nkrumah (Interested Party) (Civil Motion No. J5/82/2022, ruling dated 1st February, 2023 SC). The duty of this Court however is not to make a pronouncement of the guilt or otherwise of the Defendants herein of intermeddling since as has been held by the Supreme Court in the Ex parte Yvonne Amponsah Brobbey case, there has to be criminal charges brought by the Attorney-General or under his authority for the offence of inter-meddling. Rather, the only duty of this Court is to determine if the Property was properly distributed. I must admit I found myself in somewhat of a quagmire in trying to resolve this issue. Could it be that simply because Defendants had failed to obtain LA prior to the distribution, this alone made the said distribution improperly done? And if it was improperly done, would the distribution then be invalid? It is important for the sake of fairness and doing justice, to go a little beneath the surface of this problem. Intestacy law in Ghana is governed primarily by PNDC Law 111 and requires that the estate of the deceased is to devolve firstly on the surviving spouse or spouses, then any surviving children, followed by any surviving parent and finally the extended family through the customary successor. In accordance with PNDC Law 111, Order 31 rule 13 of the District Court Rules, 2009 (C.I 59) goes further to expressly outline this same order of priority for persons who will be entitled to apply for LA. In the instant case, the Defendants even without formally applying for and obtaining the Letters of Administration in respect of the Deceased’s estate nonetheless distributed the Property in Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 11 accordance with this order of priority to ensure all the children, through their respective mothers enjoyed a portion of the estate. I do not see how differently any other “proper” distribution could have been done in the circumstances to ensure that all the rightful and legally entitled beneficiaries who are the spouses and children of Deceased, receive a portion of the estate. Thus, I find that although without the official legal authority to do so by way of LA, this informal distribution by Defendants nonetheless met and satisfied the legal requirements of distribution under the intestacy law. Accordingly, I resolve the second issue by finding that the said distribution done by Defendants was proper. I will however direct that Letters of Administration are formally applied for to regularise this informal distribution. 3) Whether or not the Plaintiff is entitled to his reliefs? Having made findings against Plaintiff on all material issues, I hold that Plaintiff is not entitled to any of his reliefs. However, given that the nature of this suit is between close family members, and so as not to worsen any further acrimony that may be festering between parties, I will make no award to costs. Parties are to bear their own costs. SGD. MAAME YAA A. KUSI-MENSAH (MS). MAGISTRATE Eric Nii Aryeequaye vs. Samuel Aryeequaye and Anor 12