Anum v Tsotsoobi (A9/13/23) [2025] GHADC 123 (9 April 2025)

IN THE DISTRICT COURT AT LA HELD ON MONDAY THE 12TH DAY OF MAY, 2025 BEFORE HER WORSHIP ADWOA BENASO ASUMADU-SAKYI, SITTING AS MAGISTRATE SUIT NO: A9/13/23 JANET ADJELEY ANUM SUING PER HER LAWFUL ATTORNEY SAMUEL ADDO OTSWE >>> PLAINTIFF VRS. TSOTSOOBI SAMMY LA ABAFUM, ACCRA >>> DEFENDANT PARTIES: Plaintiff present Defendant present JUDGMENT _______________________________________________________________ INTRODUCTION The Plaintiff per her lawful attorney filed the instant suit on the 23rd of November, 2022 against the Defendant and prayed the court for the following reliefs; a. An order to evict the Defendant’s tenant from the room which belongs to the Plaintiff. b. An order restraining the Defendant meddling into the affairs of the said apartment. c. Any other orders the Court deem fits. The court differently constituted allowed the plaintiff’s attorney to proof his case on the 27th of March, 2023 pursuant to Order 25 of the District Court Rules, 2009 (C.I 59) due to the Defendant being absent even though he had being served with the writ of summons. In the course of his testimony it came up that there was a tenant in the subject matter and the court ordered the Plaintiff to paste a copy of the writ of summons, statement of claim and hearing notice on the subject matter in dispute so the said tenant will have notice of the instant case and although the order was complied with, the said tenant refused to appear in court. As a result the court decided to start the case de novo and ordered the parties to file their respective witness statements on the 18th of October, 2023. The Plaintiff’s attorney complied with the orders of the court and filed his witness statement on the 23rd of October, 2023 and after granting Defendant several adjournments he finally filed his witness statement on the 13th of June 2024. Hearing commenced on the 23rd of April, 2024 and was completed on the 9th of April, 2025. PLAINTIFF’S CASE The Plaintiff states that the subject matter in dispute was allocated to her by her Aunt 50 years ago and who was at the time bedridden and had no child of her own. The Plaintiff states that several occupants have stayed in the said room due to the cordial relationship the family members were enjoying at that time and that at a certain period as a result of this cordial relationship the grandmother of the Defendant stayed with the Plaintiff in the said room. The Plaintiff states that the Defendant has forcibly broken into the room and evicted the current occupants of the room and also thrown away the personal effects of the said tenant. She states that she was under the mistaken impression that the Defendant’s behaviour could be settled amicably but all attempts by the family members to settle this matter amicably was met with hostile response by the Defendant which included brandishing a cutlass against the said family members. She also goes on to state that all efforts to get the Defendant to stop his unlawful behaviour proved futile and that she was advised to institute the instant case by the DOVSU officers when she lodged a complaint to them. DEFENDANT’S CASE The Defendant’s case is that the subject matter in dispute belongs to his grandmother and that when his grandmother died 25 years ago the property was passed onto his mother. He states that the Plaintiff’s mother came to plead with his mother to allow her to renovate the room so she could keep her things in the room. The Defendant states that his mother granted this request but after the Plaintiff’s mother finished renovating the room she rented out the property without his mother’s consent and when she was questioned she responded that she did that so she could get the money she used to renovate the room back. That the tenant of the Plaintiff mother stayed in the said room for 24 years and when she was ready to vacate the property he called his elder brother and informed him of this latest development and he advised him to lock the room and send the key to the police station. That the Plaintiff was summoned to Rent Control but she refused to show up and as a result the key was kept at rent control for three months until he was asked to come for the keys since the Plaintiff refused to show up. He was also summoned by their family members but he could not make it due to his job and as a result he was summoned to appear at the Cantoments police station. He states that the plaintiff is not entitled to his reliefs. BURDEN OF PROOF The law is trite that a party who asserts a fact assumes the responsibility of proving same and thus the burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by the virtue of sections 10,11 and 12 of the Evidence Act, 1975 (NRCD 323). The above stated provisions have received judicial blessings by the Supreme Court who has pronounced on them in the past to be the nature and standard of proof in civil cases. This position of the law has been reiterated in the case of Ackah v. Pegrah Transport Ltd And Others [2020] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held as follows: “It is a basic principle of the law on 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 carried 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 such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).” See Ababio v. Akwasi IV [1994-1995] GBR 774. The role of a judge in a civil matter is to determine from the evidence available which of the parties adduced credible and sufficient evidence to tilt in his favour the balance of probabilities on an issue. In Bisi v. Tabiri alias Asare [1987-88] 1 GLR 360, the Supreme Court had this to say on the burden of proof: “The standard of proof required of a plaintiff in civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jug-saw puzzle. Preponderance of evidence became the trier’s belief in the preponderance of probability. But “probability” denoted as element of doubt or uncertainty and recognized that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected…”. EVIDENCE ADDUCED BY THE PLAINTIFF’S ATTORNEY The plaintiff’s attorney entered into the witness box and testified on oath on the 13th of June, 2024 where she repeated the plaintiff’s assertions against the defendant and had the following to say; 1. My name is SAMUEL OTSWE, I am attorney of my bedridden mother JANET ADJELEY ANUM. 4. My grand-aunt bequeathed the apartment to my mother who has subsequently rented it out to tenants and also made it available for relatives to occupy. 5. The Defendant TSOTSOOBI SAMMY who on his own accord without any recognition by JANET ADJELEY ANUM as a bona fide owner of the said apartment forcibly ejected the then occupants of the apartment and threw their personal effects outside for no known reason and rented it to his own tenant. 6. I was privy to several threats, oral and physical to family members who have tried to settle this issue amicably to the extent that the Defendant did brandished cutlasses against the said family members. The plaintiff’s case is that the property in dispute was bequeathed to her by her great aunt. The word bequeathed was stated in the statement of claim but when the plaintiff’s attorney was testifying he used the word allocated. This is a departure from the pleadings and it is trite that a party will not be allowed to set up a claim in a subsequent pleading inconsistent with his previous pleading. See the case of Odoi v. Hammond [1971] 1 GLR 375. In Akufo-Addo v. Catheline [1992] 1 GLR 377 the court held per Osei-Hwere JSC that the departure rule applied to pleadings only and not evidence that contradicts the pleadings. The case before this court is one where a party has in his evidence in court departed from his statement of claim and as such the departure rule does not apply here. The word “bequeath” used by the plaintiff implies to the act of gifting or transferring property voluntarily by a testator to beneficiaries after death often formalized in a Will. It generally refers to the act of leaving personal property or estate to someone through a Will or testament. It is a legal term used to describe the deliberate distribution of assets upon death. A careful perusal of the evidence adduced by the plaintiff does not make mention that the subject matter was devised to the plaintiff through a Will. It is however not surprising that Plaintiff would be silent on how the subject matter was allocated to her since she was not represented by a lawyer in this case. She however stated that same was given to her by her aunt while she was alive and as such it is more probable that taking the circumstances of the instant case into consideration, that the plaintiff’s aunt gave the room to her as a gift. It is trite law that the broad essentials of a valid gift in customary law are as follows: 1. There must be a clear intention on the part of the donor to make a gift. 2. Publicity must be given to the gift and 3. The done must accept the gift by himself giving thank-offering or aseda, or by enjoying the gift. As decided in the case of Abdul Rahman v. Baba Ladi, Civil Appeal No. J4/36/2013 dated 27th July, 2013, the most important element of a customary gift that runs through decided cases is that the “gift must be offered and accepted and must be witnessed by somebody else other than the donor and done. The need for a third party as a witness is important because when the gift is challenged, it will not be sufficient to state barely that the gift was made; the claimant has to go on to show the occasion, if any, on which the gift was made, the date, the time, if possible, the venue and most importantly, in whose presence it was made. Unfortunately a careful analysis of the evidence adduced by the Plaintiff’s attorney makes is clear that he failed to lead evidence on the above requirements to satisfy the requirements of a customary gift. Therefore this court cannot hold that the subject matter was given to her as a customary gift. That notwithstanding there is unchallenged evidence on record that the plaintiff’s mother exercised possession over the property during her lifetime by renting same out to a tenant who stayed in the said room many years after her death. The Plaintiff then took over possession of the property for 25 years and the Defendant never raised any issues to Plaintiff’s prolonged control over the property even though it is the Defendant’s case that the property belonged to his mother. The Defendant had the following to say in his witness statement which was adopted as his evidence in chief; 2. The room in question belongs to my grandmother. When my grandmother died, that is 25 years ago, I was with my mother when Plaintiff’s mother came to my mother begging her to give her that room to repair in order to keep her things there. 3. After Plaintiff’s mother finished repairing the room, she rented the room out and my mother asked her why she rented the room out and she said she rented the room in order to get the money she used in repairing the room back. 4. That the tenant occupied the room for 24 years before she eventually left. I was in the house when she packed her things so I called my senior brother and he said I should lock the room and send the key to police station. At the police station I was told to send the matter to Rent Control office. It is trite that the evidence adduced by a party must be subjected to cross examination as held in the case of Quarcoo v. Welbeck [2008-2009] 2 GLR 498, Quaye J.A. held at page 519 that evidence not tested by cross examination is improper and lends itself to being set aside. With this principle in mind the plaintiff’s attorney was cross examined the Defendant on the 9th of April, 2025 and this is what transpired: Q. You said the room belongs to your grandmother, do you know how your mother possessed the said room? A. I was born in that room, while growing up. I saw my grandmother and her children. Q. If you say that you saw your grandmother while she was alive in the room why is it that when the room was to be renovated my mother went ahead to renovate the room A. Your mother had a discussion with my mother and it was concluded that your mother should renovate the said room but in actual fact the room belongs to my mother. After your mother renovated the room my mother realised that she had rented out the said room. So the agreement was that the tenant would occupy the room for 3 years and that after 3 years my mother can re-possess the room. My mother passed away before the 3 years after my mother was buried the tenant occupied the room for 24 years. After the 24 years the tenant vacated from the room and I locked the room. Later the last born of my grandmother’s children who is a tenant opened the door and I reported the issue at the police station. The tenant was asked to move out of the room. From the above, the Defendant’s testimony was to the effect that it was agreed that the plaintiff’s mother could rent out the said room for three years to recoup how much she had spent in renovating the said room. He goes on to state that unfortunately his mother passed away before the three years was up and yet he failed to take any steps to protect his interest in his mother’s estate and allowed the tenant of the plaintiff’s mother to occupy the said room for more than 20 years. This clearly indicates that the plaintiff’s mother exercised acts of possession for more than 20 years and it is only now that he is seeking to protect his interest. It is clear that the Defendant therefore failed to act within a reasonable time and is therefore caught by the principle of laches and acquiescence or both unlike the plaintiff who has instituted the present action. Laches may mean slackness, negligence or unreasonable delay in pursuing a legal remedy whereby the party forfeits the benefit upon the principle vigilantibus non dormientibus jurasubveniunt, which principle underlines the limitation statutes. A court of equity refuses its aid to stale demands and where a party has slept upon his rights and acquiesced for a great length of time, then that. Party will be barred by his laches. In determining whether there has been such a delay as to amount to laches the chief points to be considered are: 1. Acquiescence on the defendant’s part; and 2. Any change of position that has occurred on the plaintiff’s part. Acquiescence means assent after the violation of a right has been completed and the plaintiff has become aware of it. To put it simply, “Laches is a neglect to do something which by law a man is obliged to do”, per Lord Ellenbourough C.J. Sebag v. Ahitol (1816) 4.M. and S. 462 at 463. During the Defendant’s cross examination he stated that he took steps to put a stop to the plaintiff mother’s possession of the room but a careful examination of the record proceedings clearly indicates the opposite. This is what he said on the 9th of April, 2025: Q. You said my mother informed your mother that she would rent out the room for 3 years and since the tenant has stayed in the room for 24 years what steps have you taken about the issue? A. Since the tenant occupied the room for 24 years, he will definitely move out when the time is due, so that is the reason why I locked up the room after the tenant moved out. Also that is the reason I lodged a complaint at the police station when my grandmother’s last born opened same. From the evidence adduced by the defendant above he failed to take any steps to regularise his interest in the property eventhough a tenant occupied the said property for 24 long years and thus he has been caught by the principle of acquiescence. He testified that even though it was allegedly agreed that the tenant would occupy the said room for three years, he never took steps to evict the said tenant after the three years elapsed. The Defendant as a beneficiary of his mother’s estate was entitled to sue to protect the subject matter even if same had not been vested in him. See the case of Adisa Boya v. Zenabu Mohammed (Substituted by Adama Mohammed) and Mujeeb Civil Appeal No. J4/44/2017 Dated 31st January, 2018. I hereby hold that the Defendant took no steps to repossess the subject matter in dispute after his mother’s death and waited until the tenant moved out after 24 years before doing something. This is a conduct suggestive of laches and acquiescence or both on the side of the defendant and as such the Defendant cannot succeed on his claim. I therefore conclude that the Plaintiff has met the burden of proof on her and has been able to proof her claim on a preponderance of probabilities. I hereby enter judgment in her favour. There will be no orders as to cost. CONCLUSION The Plaintiff attorney’s case succeeds in its entirety and I enter judgment in her favour and make the following orders; a. The Defendant’s tenant is ordered to vacate from the subject matter in dispute within a month from delivering this judgment and the Defendant must refund the unexpired rent to the said tenant. b. The Defendant is restrained from meddling into the affairs of the said apartment. SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE