Sambare v Boakye (A9/29/24) [2025] GHADC 135 (19 May 2025)

IN THE KOTOBABI DISTRICT COURT “1”, BEHIND THE KOTOBABI CLUSTER OF SCHOOLS, KOTOBABI, ACCRA HELD ON MONDAY 19TH MAY,2025 BEFORE HER WORSHIP MAAME YAA A. KUSI-MENSAH. SUIT NO: A9/29/24 MOHAMMED SAMBARE - PLAINTIFF HOUSE NO. E322/16 MAMOBI, ACCRA VS. DANIEL BOAKYE - DEFENDANT HOUSE NO. E322/16 MAMOBI, ACCRA PARTIES: Plaintiff present Defendant absent COUNSEL: No Legal Representation for either party JUDGMENT PROCEDURAL BACKGROUND This action was commenced on 6th August, 2024 by reference to this Court from the Rent Control Office in accordance with Regulation 13 of the Rent Regulation, 1964 (L.I 369). In the said reference, the Rent Manager made the following recommendations to this Court: i. An order for Respondent/Tenant to pay his rent arrears for the period he has occupied the said premises as provisioned by section 31 of the Rent Act, 1963 (Act 220); ii. An order for Respondent/Tenant to vacate the said premises on a date to be determined by His/Her Lordship and as also provided by section 17 (1) (a) of the Rent Act, 1963 (Act 220); Mohammed Sambare vs. Daniel Boakye 1 iii. Award cost and/or interest on the amount owed by the Respondent to Complainants as His/Her Lordship considers fit; iv. Humbly furnish the Rent Officer with a copy of his/her lodrship’s final determination on the case as stipulated by Regulation 22 of the Rent Regulations, 1964 (L.I 369). Upon their first appearance in court, parties indicated they were not amenable to Court- connected ADR, accordingly, they were directed to file their pleadings to set out their respective claims (see the procedure for landlord and tenancy cases as outlined by learned jurist S.A Brobbey JSC (retired) in his book ‘Practice & Procedure in the Trial Courts and Tribunals of Ghana’ at paragraphs 1100, 1101, 1103, 1104 and 1105 from pages 490-491). Plaintiff therefore filed his Statement of Claim on 16th September, 2024 while Defendant filed his on 26th September, 2024. In his statement of claim, Plaintiff sought the following reliefs: a. An order directed at the Defendant to pay the outstanding 20 years of rent arrears since 2004 b. An order to eject the Defendant from the premise he occupies at House No. E322/16 Mamobi, Accra c. Cost d. Further order (s) as this Honourable court deems fit Thereafter, Plaintiff filed his witness statement on 22nd October, 2024. He also filed the witness statements of Victoria Akrofi (1st witness for Plaintiff or PW1) and Malon Adams (2nd witness for Plaintiff or PW2) in support of his claims. On his part, Daniel Boakye filed his witness statement and that of his witness, one Yaw Daniel both on 31st October, 2024. Subsequently, case management was conducted which was followed by trial and trial concluded on 19th February, 2025. A locus in quo was also conducted on 10th April, 2025 following trial. Plaintiff’s Case Mohammed Sambare vs. Daniel Boakye 2 The crux of Plaintiff’s case is that that he is the owner of H/No. E322/16 Mamobi, the subject matter in issue, which property he inherited from his father Nuhu Sambare. According to Plaintiff, his father Nuhu Sambare entered into a tenancy agreement with Defendant’s father in which he gave Defendant’s father a piece of land to erect a wooden structure for business purposes. It is Plaintiff’s contention that Defendant’s father who was known as Mr. Atta was paying rent to them until his demise although some of the rent was in arrears. Plaintiff states also that sometime in 2004 Defendant’s father was summoned to rent control with one two other persons but they failed to comply with the summons. Thereafter, in 2008, Plaintiff caused his lawyers to serve a notice to quit from the said premises on Defendant’s father. However, once again this was not heeded to by Defendant’s father. Following the demise of Defendant’s father however, Plaintiff states that Defendant has converted part of the wooden structure erected by his father into a metal container which has led to two structures on the part of the land originally leased to Defendant’s father-i.e. a metal store and a wooden structure. Plaintiff avers further that after this part conversion of the wooden structure, Defendant has since rented out the metal container without his notice or consent. Plaintiff states that Defendant was then invited by family members in December 2023 to amicably resolve the matter and Defendant prayed for two months extension to vacate the premises but failed to vacate. Plaintiff states further that in that same year in 2023 his younger brother, one Lukman Sambare returned from Germany and wanted to use the premises for a project but realised Defendant had still not vacated the premises. Plaintiff states that Defendant was then invited to the rent control office after Plaintiff reported the matter somewhere in June, 2024 leading to eventual reference by the rent control office to this Court and the instant suit. Defendant’s Case On the other hand, Defendant claims that neither he nor his father were ever tenants of Plaintiff’s father Nuhu Sambare nor did they pay rent to him, rather Defendant claims that his landlord was one Alhaji Abdul. He states that the said Alhaji Abdul and one Madam Daada were occupants of the land, however at a point in time the Ghana Highways Authority expanded the road and this construction affected the occupants for which reason they were compensated. Defendant states Mohammed Sambare vs. Daniel Boakye 3 further that his late father was on the part of the land given to him by the late Alhaji Abdul to construct a wooden structure on same. Defendant also asserts that the late Nii Akwey I, the Ga Chief of Mamobi was a prime witness to these circumstances around 2006. Defendant confirms that the wooden structure was converted into a metal container, but this was for his mother to operate her business. Defendant then took control of the metal container after his mother’s demise but later rented the structure to enable him support his siblings’ education. According to Defendant, he has been paying his rent to the Ayawaso Municipal Assembly since the government take-over of the land. Defendant further asserts that neither the Plaintiff nor his family ever invited him to resolve any issue between them. Defendant again states that the Plaintiff never wrote or invited his late father to resolve any issue between them in 2008. Defendant adds also that there was never any quit notice served on his father, rather the quit notice was served on one Mr. Akwasi whose shop is adjacent theirs. Defendant did not make any express counter-claim but having joined issues with Plaintiff herein it is apparent that he does not believe that Plaintiff ought to be granted the reliefs he claims. THE BURDEN AND STANDARD OF PROOF Having set out the various claims of the parties, it would now be prudent to briefly lay out what the law requires of each party to prove those claims. It is an unquestionably well-established principle of Ghanaian 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 both parties in civil cases is the balance 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 Mohammed Sambare vs. Daniel Boakye 4 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 who emphasised 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.” The above means that unless otherwise shifted, whoever makes an assertion of a fact bears the burden of proving that fact by providing cogent evidence of same be it the plaintiff or defendant. Additionally, the rules of evidence provide that 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 admission. 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 the learned jurist S.A. Brobbey (JSC retired) in his book, ‘Essentials of the Ghana Law of Evidence’ at pages 112-113 where he opined that the rationale for the rule on admissions is obvious, because if a person admits or concedes to facts which are against his interests, there is no Mohammed Sambare vs. Daniel Boakye 5 need to proceed further to prove those facts before such a person would be bound by the terms of those facts). ISSUES From the pleadings and facts of this case, the key issues in contention which this Court needs to resolve are: 1) Whether the Plaintiff is the owner of that portion of land described as H/No. E322/16 Mamobi?; and 2) Whether the Defendant is a tenant of Plaintiff? 1) Whether the Plaintiff is the owner of that portion of land described as H/No. E322/16 Mamobi? As I have already explained above, per the evidential rules, it is he who alleges that must prove a claim. In this case, that would mean that Plaintiff who is asserting ownership of the property and is seeking reliefs that relate to the rights associated with ownership bears the duty of establishing his right of ownership on the preponderance of probability. This proof is necessary because judgments related to land and ownership rights are judgements in rem and not merely in personam and are therefore enforceable against the whole world and not just the parties in the matter themselves. (See Akuse Amedeka Citizens Association vs. The Attorney-General & Anor (Supreme Court Writ No. J1/10/2013; judgment dated 5th January, 2015). With respect to proof in land matters, the Supreme Court in Nana Amua Gyebu XV vs. Mondial Veneer (Gh) Ltd (Civil Appeal No. J4/31/2010; judgment dated 11th August, 2010) has held that: “In land litigation…the law requires the person asserting title, and on whom the burden of persuasion falls, as in this instant case, to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities, that the party would be entitled to the claim” (emphasis mine). Again, the Supreme Court speaking through Her Ladyship Adinyira JSC in Yehans International Ltd. vs. Martey Tsuru Family and 1 Other (Suit Number J4/ 34/2018, judgment dated 24th October 2018; (2018) JELR 68871 (SC)) held: “It is settled that a person claiming title has to prove: i) his root of title, ii) mode of acquisition and iii) various acts of possession exercised over the land. See Mondial Veneer (GH) Ltd vs. Amuah Gyebu XV [2011] 1SCGLR 466. This can be proved either by traditional evidence or by overt acts of ownership in respect of the land in dispute.” Mohammed Sambare vs. Daniel Boakye 6 Flowing from this, the key things to be established by Plaintiff in the instant case were 1) root of title; 2) mode of acquisition and 3) acts of possession over the property in dispute. To that end, Plaintiff submitted amongst other things the following relevant exhibits in support of his claims: a) Exhibit A series being a number of receipts showing payments from Mr. Atta (father of Defendant herein); b) Exhibit B being two pictures and two videos of the subject matter and its environs; c) Exhibit D which was the summons of complaint by the rent office to one sister Yaa (also known as Victoria Akrofi who is PW1 herein); and d) Exhibit F being a summons to the Rent Office directed against Defendant and two other people. Plaintiff has maintained throughout his testimony that the property in dispute originally belonged to his father and he inherited same upon his father’s demise. This fact would thus establish his root of title and mode of acquisition. Furthermore, Plaintiff has shown his acts of possession over the property as he was able to lead evidence to prove that out of all the eight shops which have been constructed in front of his home, the tenants in same all attorn tenancy to him and pay rent to him except the Defendant herein who states that neither he nor his late father from whom he inherited the shop has ever attorn tenancy nor paid rent to Plaintiff. It is instructive to note that Defendant did not dispute Plaintiff’s root or mode of acquisition but rather sought to assert that the small piece or portion of the land where his shop is situated belonged to one Alhaji Abdul rather than Plaintiff’s father Alhaji Nuhu Sambare. Defendant further sought to emphasise on the alleged illegality of the position of his father’s shop which shop was later inherited by him (i.e. Defendant). However, none of the exhibits tendered by Plaintiff were sufficiently discredited by Defendant herein. Indeed, Defendant through cross-examination showed that the shops were all truly located in front of the Plaintiff’s home. This was further affirmed as the reality on the ground from the locus in quo by this Court on 10th April, 2025. Furthermore, there was no attempt to contradict the receipts paid by Defendant’s father (Mr. Atta) which receipts are dated as far back as 2000 and 2001. The purpose of the issuance of the receipts have been indicated on same to be “for keeping kiosk” and have been signed by Plaintiff herein. This goes to confirm Plaintiff’s testimony that he began issuing receipts to Defendant’s father from 2000 when he took over Mohammed Sambare vs. Daniel Boakye 7 control after his father’s demise (see proceedings dated 11th February, 2025). In addition, the evidence given by PW1 who occupies one of the shops on the property also affirms Plaintiff’s ownership and the fact that she was sent to rent control by Plaintiff following which she began paying rent to Plaintiff (see proceedings dated 12th February, 2025). I am therefore satisfied as a trier of fact that Plaintiff has satisfactorily discharged his burden of proof with respect to the ownership of the property having shown the root of his claim, the mode of acquisition and his acts of possession over same. Had there been a counterclaim for ownership by Defendant, this would have shifted the burden of proof unto him as emphasised in Elizabeth Osei vs. Madam Alice Efua Korang [2013] 58 GMJ SC. However, there being no counterclaim, there is no requirement shifted onto Defendant to prove he has a better claim of title against his adversary, the Plaintiff herein. Accordingly, and based on the evidence before me, I hold on the balance of probability that Plaintiff is the owner of the property described as H/No. E322/16 Mamobi. Having resolved the first issue in favour of Plaintiff, I will now move to the next issue of whether the Defendant is a tenant of Plaintiff? 2) Whether the Defendant is a tenant of Plaintiff? Defendant insists that he is not a tenant of Plaintiff nor has he or his late father from whom he inherited the shop in front of Plaintiff’s land, ever been a tenant of Plaintiff. Instead, he claims that his father was originally the tenant of one Alhaji Abdul, but subsequently, the land on which his father erected the shop was appropriated by the Ghana Highways Authority and the owners of the land were compensated by government. He claims therefore that following this, both his father and now he himself have been paying rent to the government through the Assembly of the district where the property is situated. In support of these assertions he tendered in evidence Exhibit 1 which is a statutory declaration by one Nii Akwei I and Exhibit 2 series which are receipts from the Ayawaso North Municipal Assembly. Mohammed Sambare vs. Daniel Boakye 8 I however noted that this purported statutory declaration emanating from the said Nii Akwei I was not signed by the declarant himself i.e. Nii Akwei I. Although the absence of a signature does not necessarily invalidate a document, it raises some preliminary doubt as to the true authorship. This doubt in my mind was further worsened by the fact that the said Nii Akwei I is also deceased and cannot be called to ascertain if indeed he made this purported declaration or is aware of its contents. I therefore could not put much weight or probative value on Exhibit 1 (i.e. the statutory declaration) or its contents. Coming also to Exhibit 2 series, which Defendant tendered as evidence of the fact that he pays his rent to the Assembly, it can be seen that the said receipts are dated 10th December, 2023 and 22nd April, 2024 and were given to Defendant from the Ayawaso North Municipal Assembly for “Comm Hse B.O.P”. It is unclear to me what “Comm Hse B.O.P” stands for or is meant to mean, but this cannot be evidence of rent payments to anyone. This is because, firstly if this was meant to be rent payments, why was it not stated expressly or clearly on the face of the receipt as being for that purpose. Moreover, similar receipts for the same purpose of “Comm Hse B.O.P” were also issued by this same Ayawaso North Municipal Assembly to Victoria Akrofi (PW1) who testified that Plaintiff is her landlord (see exhibit E tendered in support of Plaintiff’s case). This indicates to me therefore that the said receipts are more of a levy or tax paid by the occupants of the shops to the Assembly and do not function as rent payments in any way. Additionally, Defendant did not call any family members of his past alleged landlord or any representative of his present alleged landlord to corroborate his version of events. If truly, Defendant traced his root of possession to Alhaji Abdul, why did he not call any family member of the said Alhaji Abdul to confirm that indeed the portion of the land on which his shop is situated originally belonged to Alhaji Abdul but was later appropriated for governmental purposes with compensation paid to Alhaji Abdul? Defendant further did not even tender one receipt ever paid by his father to Alhaji Abdul or any other person for the purpose of rent, evidencing some tenancy agreement contrary to any in place with Plaintiff herein. Mohammed Sambare vs. Daniel Boakye 9 In addition again, Defendant failed to call anybody from the Assembly to give evidence that the land on which the property is located was acquired by government and was therefore now owned and managed by governmental agencies for and on behalf of government. Being a governmental agency, there would certainly have been more on the records of this purported governmental acquisition if same was indeed true which Defendant could have obtained if he had gone to the appropriate records and archives department. Apart from this failure of Defendant to provide relevant witnesses to corroborate his claims, from the locus in quo of this Court as well, it was further realised that just like it is the case with Plaintiff, all the properties in that area have been constructed with the houses of the owners behind, and the shops or wooden structures constructed in front of the property. It was also found that currently all the shops constructed in front of Plaintiff’s property have been let out by him to persons he himself placed in the shops or whose occupants now attorn tenancy to him. While it may exist in the realm of possibility that the small portion of Defendant’s shop which is also in front of Plaintiff’s property belonged to some other person and not Plaintiff, I am not satisfied that this is the probable case, in light of the porous evidence submitted by Defendant. Even assuming Plaintiff is operating an illegality, as Defendant has sought to assert, by the erection of the shops in front of his property, then why would the government allow this illegality to continue by allowing Defendant to remain on the premises and benefit from the same illegality? Thus, I am rather satisfied on the balance of probability that this portion on which Defendant’s shop is situated also belongs to Plaintiff and not Alhaji Abdul or anyone else as Defendant seeks to assert. Flowing from this, I find from the facts and evidence established that Defendant is indeed a tenant of Plaintiff and no other person. Whether Plaintiff is entitled to his reliefs? Although I have found that Defendant is a tenant of Plaintiff, I am however not satisfied that Plaintiff has been able to show that Defendant has been owing rent for the duration stated on the Mohammed Sambare vs. Daniel Boakye 10 statement of claim (i.e. from 2004 until date). I will therefore not grant his first relief for rent arrears owed since 2004. I will however hold that Plaintiff is entitled to his relief of an order to eject Defendant from the premises known as H/No. E322/16 Mamobi. This is because the law is that a licensee or tenant who denies his licensor or landlord’s title either by claiming that title to the subject matter is vested in himself or someone else forfeits his or her interest. (See sections 27 and 28 of the Evidence Act, 1975, NRCD 323). In Antie and Adjuwuah vs. Ogbo [2005-2006] SCGLR 494 their Lordships held in holding (6) that: “The common law rule as to forfeiture by a licensee or tenant who challenges the title of his licensor or landlord has received statutory recognition under sections 27 and 28 of the Evidence Decree, 1975 (NRCD 323). The law is that a licensee or tenant who denies the title of his or her licensor or landlord either by claiming that title to the subject-matter is vested in himself or herself or someone else forfeits his or her interest. In view of the plaintiff’s direct challenge to the defendant’s lawful claim to ownership, he has forfeited his right to remain in the disputed land.” (see also the Court of Appeal decision which referred to Antie and Adjuwah vs. Ogbo in James Okpata vs. Dr. R. A. M. Hammond (Civil Appeal Suit No: H1/127/2011, judgment dated 12th January 2012 CA; (2012) JELR 64679 (CA)). In spite of this position that a tenant who denies his landlord’s title forfeits their interest, until a court order of eviction or similar act such as a notice to quit is issued, the tenancy remains in force. This is evident from the requirements of the Rents Act, 1963 (Act 220). In that regard, Plaintiff is granted such a court order to eject Defendant from the premises known as H/No. E322/16 Mamobi and recover possession. The order for ejectment will however be enforceable one month from today i.e. by 19th June, 2025. Plaintiff may go into execution from 20th June, 2025. This is to allow Defendant one month period to voluntarily vacate the premises. I will also award Plaintiff costs of Three Thousand Ghana Cedis (GHC 3,000). MAAME YAA A. KUSI-MENSAH (MS). MAGISTRATE Mohammed Sambare vs. Daniel Boakye 11 Mohammed Sambare vs. Daniel Boakye 12