Thompson v Thompson (A9/160/23) [2025] GHADC 132 (15 April 2025)

IN THE KOTOBABI DISTRICT COURT “1”, BEHIND THE KOTOBABI CLUSTER OF SCHOOLS, KOTOBABI, ACCRA HELD ON THURSDAY 31ST JULY 2025 BEFORE HER WORSHIP MAAME YAA A. KUSI-MENSAH (MS). SUIT NO: A9/160/23 JOYCE THOMPSON - PLAINTIFF (Suing as the Co-Adminstratrix of the Estate of Kwesi Amo Thompson (Deceased) HSE NO 117/16 DANSOMAN ESTATES EXHIBITION ACCRA VRS. ELLEN THOMPSON - DEFENDANT H/NO.106 KANDA ESTATES ACCRA Parties: Plaintiff present Defendant absent represented by Emmanuel Amo Thompson (lawful attorney) present Counsel: No legal representation for either party JUDGMENT PROCEDURAL BACKGROUND Plaintiff commenced this action more than two years ago on 16th January, 2023 by a initial writ and statement of claim filed at the Adabraka District Court 1 (formerly Kaneshie District Court 1) seeking the following reliefs: a. For the payment of rent assessed at One Thousand Five Hundred Ghana Cedis (GHC 1,500) a month from 2015 till date of final judgment. b. Interest on the said amount; Joyce Thompson vs. Ellen Thompson 1 c. Cost On 8th February 2023, Defendant filed her statement of defence and counterclaim in which she counter-claimed for the following reliefs: i. An order revoking the letters of administration granted to the administrators of the estate of the late Kwesi Amo Thompson; ii. An order that plaintiff is estopped from relitigating the matter which has been decided by a High Court and is still pending before the probate and administration division of the High Court; iii. Costs including lawyer’s fees Subsequently, Plaintiff filed her reply and defence to the counterclaim on 27th February 2023, and thereafter also filed her witness statement on 11th October, 2023. Before further directions regarding the conduct of the suit could take place however, the suit was transferred from my sister at the Adabraka District Court 1 to this Court to continue with the hearing of this matter by order of the Honourable Chief Justice dated 29th February, 2024. Consequently, this Court in keeping with section 72 of the Courts Act, 1993 (Act 459) and order 25 (as amended) of the District Court Rules, 2009 (CI 59) referred parties to ADR to promote amicable resolution. However, upon the failure of mediation settlement, and following several directions to by this Court to file same, Defendant eventually also filed her witness statement on 13th December, 2024 through her lawful attorney, Emmanuel Amo Thompson. Neither of the parties called any other witnesses regarding their respective claims. Trial in this matter finally concluded on 15th April, 2025 and consequently the matter was scheduled for judgment. FACTS The facts of this case are relatively straightforward. The parties in this matter are half siblings, sharing the same father but different mothers. Their father, one Mr. Kwesi Amo Thompson, died Joyce Thompson vs. Ellen Thompson 2 intestate sometime in May 1998, survived by sixteen children and possessed of a three-bedroom storey building and a boys’ quarters which has three single rooms. Since their father died intestate, and till date the Defendant herein and her six other siblings have been in occupation and possession of the said property. It as a result of this exclusive occupation and possession by Defendant and her siblings that Plaintiff herein instituted an action against the Defendant initially in the High Court seeking amongst other things for an order for ejectment and the judicial sale of the house for the proceeds to be shared equally amongst the sixteen surviving children of their deceased father. The High Court in its judgment dated 30th January 2015 before his lordship N.M.C Abodakpi dismissed all the counter-claims of Defendant and entered judgment for the Plaintiffs in that case in favour of their reliefs endorsed on the writ. However, following this judgment given ten years ago in 2015, Plaintiff herein laments that Defendant and her siblings have made it impossible for her to execute the judgment as they have either failed and/or refused to vacate the premises for the valuation and subsequent sale of the property or have failed and/or refused to give up vacant possession of the property to allow them to rent same. In light of this failure, the Plaintiff now as co-adminstratrix of the estate again instituted a fresh action in this Court as a rent court, to recover rent arrears from 2015 till date. It is Plaintiff’s argument that since Defendant and her siblings have refused to vacate the premises for same to be rented out or allow the property to be valued for same to be sold, then Defendant and her siblings ought to be treated as tenants occupying the property and made to pay rent in order for all the sixteen siblings to enjoy their rightful entitlement to their late father’s property. Defendant on the other hand, contends that she and her siblings are as entitled to enjoy their late father’s property as their other half siblings and therefore strongly resist any claims to pay rent. Defendant argues further that she and her siblings are willing to buy their other half siblings share of the property but have not done so simply because no proposal has been brought yet by Plaintiff or their half-siblings. Defendant also claims that Plaintiff is seeking to relitigate the matter and has been dragging her and her siblings to other courts all in respect of this same subject matter. Ultimately, Defendant counter-claims for the reliefs I have already outlined above and prays that the Plaintiff’s case be dismissed. Joyce Thompson vs. Ellen Thompson 3 ISSUES There were no express issues agreed to by parties, however from the facts and evidence presented to this Court, there is only one key issue which arises for determination by this Court: 1) Whether or not Defendant and her siblings ought to pay rent for the occupation of the property? Whether or not the Defendant ought to pay rent for the occupation of the property? In matters related to land and ownership of land and the rights associated with same, there is a need for a party to establish their right of ownership to a property in order to justify any acts asserting ownership. 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 (Suit No. J1/10/2013; judgment dated 5th Jan, 2015). In his book ‘Land Law, Practice and Conveyance in Ghana (2015)’, the learned author, Sir Justice Dennis Adjei JSC, emphasised that: “A judgment in rem determines all issues pertaining to the rights and status of the parties or things including the title or right to things and how they could be alienated and it binds all the persons within the jurisdiction of the court that pronounced it. Judgment in personam on the other hand is between the parties (inter partes) and operates as an estoppel against the parties to the suit only. Where the earlier judgment was in rem, it is likely to operate as an estoppel against all issues as to the parties and the subject matter and their rights, titles and status and how alienation of the subject matter could be made by the parties therein." (emphasis mine) Furthermore, 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 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 Joyce Thompson vs. Ellen Thompson 4 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 also, the Supreme Court citing Yorkwa vs. Duah [1982-83] GBR 278 CA with approval further stated: “Firstly, this is a land case and therefore the plaintiff respondent must succeed on the strength of her own case…then there was the case of Nartey v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 GLR 314 in which Adade JSC stated that a person who comes to court, no matter what the claim is, must be able to make a good case for the court to consider, otherwise he must fail… Lastly, in Odametey v. Clocuh & Anor [1989- 90] 1 GLR 14, it was held that if the plaintiff totally failed to make out a case for title to land, he could not rely on the weakness in the defence.” (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). What principles do these authorities highlighted above collectively establish then? Firstly, that in matters of a civil nature, each party has the duty to produce sufficient and credible evidence to convince the court that their claim is more likely to be true than otherwise. Secondly, that the standard of proof each party has to meet in a civil claim including land-related claims is on the Joyce Thompson vs. Ellen Thompson 5 balance of probabilities. Finally, that to succeed in property disputes, a party is required to prove their own case on its own strength without relying on whatever weaknesses there may be in the defendant’s case. Having briefly highlighted the basic legal positions relevant to this matter, I will move on to the issue to be determined. There is no controversy that the late father of parties herein died possessed of the property in dispute to which all the parties and their siblings are entitled to. There is also no controversy regarding the fact that Defendant and her siblings are currently in possession of the property and have remained in possession even after the judgment of the High Court in 2015. All these facts have been admitted by Defendant (see paragraphs 7 and 14 of the witness statement of Defendant’s lawful attorney). There was therefore no need for Plaintiff to lead evidence to prove these facts since the law is that where a party makes an averment and that averment is not denied, no issue is joined and there is no need for the party making the averment to lead evidence on that averment to establish same. (See the cases of Tutu vs. Gogo (Civil Appeal No 25/67, dated 28th April 1969, Court of Appeal, unreported, digested in [1969] CC 76); Fori vs. Ayerebi [1996] GLR 627 SC; Hammond vs. Amuah [1991] 1 GLR 89 at 91; and Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 890). Furthermore, 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 S.A. Brobbey in his book, ‘Essentials of the Ghana Law of Evidence’ at pages 112-113 on admissions). Joyce Thompson vs. Ellen Thompson 6 The real issue in dispute thus, is whether Defendant ought to pay rent for the occupation of the property having failed and/or refused to give up vacant possession for the judicial sale of same in compliance with the High Court judgment given in 2015. Defendant through her lawful attorney is strongly opposed to any payment of rent. She and her siblings contend that since it is their late father’s property which devolves on them together with all their other half siblings they also have a right to enjoy the benefit of same. This positioning of Defendant can be gleaned from the witness statement of her lawful attorney (see paragraph 15) and also from the cross-examination that ensued between Defendant’s lawful attorney (who also happens to be her full brother) and the Plaintiff herein. The relevant portion of the cross- examination is reproduced below: “Q: I want to ask Plaintiff what I and my siblings are to Mr. Thompson? A: We are sixteen in number and we are all siblings including Defendant and her Lawful Attorney (L.A). Q: So the Kanda residence belongs to all of us right? A: Of course. Q: So if the property belongs to all of us why are you demanding rent from us? A: My lady, our father died in May, 1998. And from the day our father died, Defendant and her siblings moved into the property and remained there free for 10 years before we commenced an action in the High Court. So our uncle who is the family head but is now deceased suggested that we sell the property and share the proceeds amongst all of us but they refused. So since they refused we allowed the suit to take its course and judgment was delivered that we should sell the property and share the proceeds amongst all of us since we are many being 16 in all. Judgment was delivered in 2015 and since judgment was delivered up till now Defendant and her siblings have refused to leave the premises so we can execute the judgment. That is why we decided to rent it out to them so we share the proceeds of the rent of which Defendant and her siblings will also benefit. We have gone with buyers several times to the property but Defendant and her siblings refused to allow us entry. As things stand now, we owe Housing Corporation almost One Hundred Thousand Ghana Cedis (GHC 100,000) as an accumulated debt on the property from 1998 since my father’s death to 2025 presently. And I have evidence to that effect.” (see proceedings dated 6th February, 2025) Joyce Thompson vs. Ellen Thompson 7 Defendant also argues that she and her siblings were ready and willing to purchase the property but have not done so because no proposal has been brought yet by Plaintiff or their other half- siblings and moreover, Plaintiff has subjected them to continuous litigation. This is what ensued under cross-examination: “Q: Have you ever discussed or called a meeting for us to discuss this issue regarding all you have said and we refused to pay? A: My lady, there is a judgment and we are abiding by the orders of the judgment which state we sell the property and share the proceeds. Q: When we said we wanted to buy the property what did you say to us? A: I allowed them but for 10 years now they have not paid anything. Q: When we went to ADR at the High Court what happened there? A: My Lady, they proposed at ADR that they would pay for the property in installments for 6 months but we disagreed to that because we had a debt at Housing Corporation to settle since the land belongs to Housing corporation while the house belonged to our deceased father.” (see again proceedings dated 6th February, 2025) Later on, under cross-examination of Defendant by Plaintiff, the following also ensued: “Q: It was in 2015 the judgment was given for the sale of the property and you and your siblings agreed to purchase it. This was ten years ago, how much have you brought or paid for the purchase? A: We have not made any payments. But my lady, this was because, since that time my sister (Plaintiff) has been dragging us to Court all over. First it was Kaneshie, then Labadi, then here. We wanted to execute an MoU and also have an auctioneer value the property but my sister (i.e. Plaintiff) opposed it. That is the reason we haven’t been able to make any payment. Q: I put it to you that if you truly wanted to purchase the property you could’ve caused your lawyer to guide you on executing the purchase since a valuer had already valued the property at GH¢418,00 (Four Hundred and Eighteen Thousand Ghana Cedis) which you and your lawyer were aware of. A: Yes my lady, it is true. However, as I said, Plaintiff kept taking us to different courts. We are still interested in buying the property but we are asking for time.” (see proceedings dated 15th April, 2025) Joyce Thompson vs. Ellen Thompson 8 It is manifestly clear from the facts and evidence before me that Defendant and her full siblings which includes the lawful attorney in this matter, have deliberately and purposefully chosen to hijack their late father’s property for their exclusive enjoyment. Although they claim they are still interested in purchasing the property in compliance with the High Court judgment in 2015 for the judicial sale of same, their conduct over the last ten years in failing to take any concrete steps towards the purchase contradicts this claim. Defendant also woefully failed to lead any evidence to show that they are truly interested in buying out the property to comply with the High Court judgment. No parties were called as witnesses to the fact that Plaintiff refused to sign any supposed agreement of sale, nor were any documents tendered to show evidence of discussions of any such supposed sale. At the very least, when Plaintiff instituted this action as co- adminstratrix of the estate, for recovery of rent, Defendant could’ve taken advantage of this suit to propose some kind of payment plan for the purchase or in the alternative pay a negotiated rent for same to be adopted as the terms of settlement of the parties. Rather than do any of this, Defendant and her siblings dug in their heels and allowed this matter to drag on solely for their selfish interest of continuing to exclusively benefit from their late father’s property to the detriment of their other siblings who are equally entitled to enjoy this property. I find this conduct of Defendant, her lawful attorney who is her brother and all her other siblings exceedingly selfish and in very poor taste. Had the shoes been on the other foot, I am certain Defendant and her siblings would not have wanted to be treated in the same selfish way have treated their other half siblings. If Defendant and her siblings were truly interested in purchasing the property, I believe ten years is more than enough time for them to have met with the Plaintiff and their other half siblings to propose some kind of payment and pursuant to that actually begin making payments for the purchase of same. In the absence of this, I therefore believe that it would be fair in the prevailing circumstances to grant Plaintiff’s relief for the payment of rent by Defendant and all the other siblings who are in occupation of the property. After all, if Defendant and her siblings who are in occupancy had been paying rent for the place, this would also have allowed the other siblings who are not in possession to enjoy some benefit from their late father’s property in a different way. Joyce Thompson vs. Ellen Thompson 9 Accordingly, is hereby ordered therefore that Defendant and all persons in occupancy of the property pay rent assessed at One Thousand Five Hundred Ghana Cedis (GHC 1,500) a month. However, bearing in mind section 9 of the Limitation Act 1972, (NRCD 54), rather than payment from 2015 as prayed by Plaintiff, same is payable from 2019 to date. It is further ordered that the amount due is to be paid on or before 31st August, 2025, and this amount paid for arrears is to be shared equally amongst all the siblings. Defendant and all her siblings in occupancy are further to pay the said rent henceforth so long as they remain in occupancy until the judicial sale of the property is complied with. This monthly rent is also to be shared equally amongst all the siblings. In the event that Defendant and her siblings in occupancy fail to pay the rent and its arrears due on or before the said date or whenever future rent falls due, Plaintiff is entitled to recover possession and eject them from the premises. I have included this relief bearing in mind order 1 of the District Court rules, 2009 (CI 59) and the principle in Cargill vs. Bower (1878) 10 Ch D 502, 508, where the English court held that a plaintiff need not specifically request general or other reliefs, but the court will grant such reliefs if they align with the claim and are not inconsistent with the reliefs expressly sought. I will further hold that Plaintiff is entitled to interest on the rent and arrears due at the prevailing bank rate from date of judgment until date of final payment. I will also award Plaintiff costs of Two Thousand Ghana Cedis (GHC 2,000). Conclusion In conclusion I find that all the reliefs sought by Defendant in her counterclaim fails. I further find Plaintiff is entitled to the following reliefs: a) Defendant and her siblings in occupancy of the property are to pay rent assessed at One Thousand Five Hundred Ghana Cedis (GHC 1,500) a month from 2019 till date. This amount paid is to be shared equally amongst all the siblings; b) Defendant and all her siblings in occupancy are further to pay the said rent henceforth so long as they remain in occupancy until the judicial sale of the property ordered by the High Court in 2015 is complied with. The monthly rent is also to be shared equally amongst all the siblings; Joyce Thompson vs. Ellen Thompson 10 c) In the event that Defendant and her siblings in occupancy fail to pay the rent and its arrears due on or before the said date or whenever future rent falls due, Plaintiff is entitled to recover possession and eject them from the premises and I hereby grant the said order for recovery and ejectment; d) I will further hold that Plaintiff is entitled to interest on the rent and arrears due at the prevailing bank rate from date of judgment until date of final payment; e) I will award Plaintiff costs of Two Thousand Ghana Cedis (GHC 2,000) against Defendant. SGD. MAAME YAA A. KUSI-MENSAH (MS). MAGISTRATE Joyce Thompson vs. Ellen Thompson 11