Wellington v Tackie (A9/006/24) [2025] GHADC 130 (20 February 2025)

IN THE KOTOBABI DISTRICT COURT 1, BEHIND THE KOTOBABI CLUSTER OF SCHOOLS, KOTOBABI, ACCRA HELD ON THURSDAY 20th FEBRUARY, 2025 BEFORE HER WORSHIP MAAME YAA A. KUSI-MENSAH (MS), MAGISTRATE. SUIT NO: A9/006/24 ABIGAIL WELLINGTON - PLAINTIFF F406/2 SAI KOJO STREET OSU REGAL ESTATE ACCRA VRS. EBENEZER TACKIE - DEFENDANT H/NO. F3/3/2 OSU R.E. ACCRA PARTIES: Plaintiff present Defendant present COUNSEL: Sharon Quartey (Ms.) for Plaintiff present Livingstone Dey Esq. for Defendant absent JUDGMENT PROCEDURAL BACKGROUND Plaintiffs commenced this action on 14th July, 2023 with an original writ and statement of claim filed at the Kaneshie District Court 2 seeking the following reliefs: a. An order for perpetual injunction restraining the Defendant, his agents, servants or assigns from further dealing with the property known as No. F. 406/2 Sai Kojo Street, Accra in the Greater Accra Region of the Republic of Ghana in any manner; b. An order for the immediate removal by the Defendant of any building materials or in the alternative an order for the destruction or disposal of such building materials; c. An order directed at the Defendant to immediately roof the building structure erected over Plaintiff’s property; d. Costs including legal fees e. Further or other reliefs Abigail Wellington vs. Ebenezer Tackie 1 On 3rd August 2023, the Defendant caused to be filed a notice of intention to defend the matter and on 20th October 2023, he filed his Statement of Defence in which he counter-claimed for the following reliefs: 1) An order declaring that Plaintiff’s mother Georgina Adoley Mingle or Georgina Tettey Kofi (Mrs.) and her sister Veronica Lakarley Mingle confirmed Defendant’s right to inherit the space above their existing building in succession to his father Ebenezer Nii Nokwei Tackie. 2) An order declaring that the Plaintiff cannot derogate from what Plaintiff’s mother and aunt had confirmed before the Plaintiff succeeded to Plaintiff’s mother Georgina Adoley Mingle of Georgina Tettey Kofi (Mrs.) 3) An order confirming Defendant’s right to the development he is carrying out 4) Costs Following the close of pleadings, Plaintiff filed her witness statement on 14th November, 2023 with relevant annexures attached as evidence in support of her claims. She also filed the witness statement of one Veronica Larkarley Mingle (PW1) who she called as a witness. On his part, Defendant also filed his witness statement with relevant annexures on 8th December, 2023. However, before trial could take place, the suit was transferred from the Kaneshie District Court to this Court to continue with the hearing of this matter by order of the Honourable Chief Justice dated 16th January, 2024. After leave was granted by this Court on 20th March, 2023, Defendant filed a witness statement for one Daniel Laartey Mingle (DW1) on 4th April, 2024 whom Defendant called as a witness. There were no annexures attached to this witness statement. Following leave again granted by this Court on 29th July, 2024, Plaintiff filed an amended writ and statement of claim seeking essentially the same reliefs, the only difference being a slight change to relief “c”. The amended reliefs of Plaintiff therefore are now as follows: a. An order for perpetual injunction restraining the Defendant, his agents, servants or assigns from further dealing with the property known as No. F. 406/2 Sai Kojo Street, Accra in the Greater Accra Region of the Republic of Ghana in any manner; b. An order for the immediate removal by the Defendant of any building materials or in the alternative an order for the destruction or disposal of such building materials; Abigail Wellington vs. Ebenezer Tackie 2 c. An order directed at the Defendant to quit the building structure erected over Plaintiff’s property and remove same immediately; d. Costs including legal fees e. Further or other reliefs Pursuant again to leave granted by this Court on 18th June, 2024 Defendant filed a supplementary witness statement on 28th June, 2024 with further annexures attached in support of his case. Trial in this matter was finally concluded on 30th October, 2024 with addresses filed by either party through their counsels on 14th November, 2024 (Plaintiff’s address) and 5th December, 2024 (Defendant’s address). FACTS The facts of this case are that Plaintiff and Defendant are cousins whose parents were siblings with the same mother- Madam Salomey Ayele Ashong. The property in question, Hse No F406/2 Sai Kojo Street, Osu Regal (referred to in this judgment as the ‘Osu Regal Property’ or ‘the Property’) was originally inherited by Madam Oyo Quartey, the great grandmother of the parties herein. It was this Madam Oyo Quartey and her sister one Akuorkor who both intially inherited this Osu Regal Property, and while Akuorkor passed on her portion of the Property to her adopted son, one Mr Lomotey, Madam Oyo Quartey passed down her portion to her daughter Madam Salomey Ayele Ashong (the grandmother of parties). Madam Salomey Ayele Ashong then went on to have five children of her own namely: Larley Mingle, Georgina Adoley Mingle aka Georgina Tettey Kofi, Veronica Larkarley Mingle, Emmanuel Lartey Mingle and Ebenezer Nii Nokwei Tackie. This Ebenezer Nii Nokwei Tackie is Defendant’s biological father while Georgina Adoley Mingle is Plaintiff’s mother. These facts are undisputed and agreed between the parties. Their contention starts with the devising of the property from their grandmother unto her five children and the resultant effects flowing from this alleged distribution/inheritance. Plaintiff contends that their late grandmother (Madam Ayele Ashong) devolved the Osu Regal property to all her children except Ebenezer Nii Nokwei Tackie (ie Defendant’s father). She insists that Defendant’s father, the said Ebenezer Nii Nokwei Tackie rather inherited with his other siblings a wholly different property from their grandmother located at No. F313/2 Anum Mensah Street, Osu Re (the Osu Property). Thus, according to Plaintiff, Defendant’s father did not get any share of the Abigail Wellington vs. Ebenezer Tackie 3 Osu Regal property with his other four siblings who were children of Madam Ayele Ashong. Rather, he only got a share of the Osu property together with his four siblings. Defendant on the other hand contends that the Osu Regal property was devolved unto all five children including his father. However, his father failed to develop his portion on the Osu Regal property before his death while his father’s other siblings quickly developed their respective portions. It was flowing from this that his aunts, Georgina Adoley Mingle (i.e. Plaintiff’s mother) and Veronica Lakarley Mingle gifted him the space above their portion of the Osu Regal property as his father’s inheritance which now rightfully belongs to him to allow him develop same. The details of the respective claims of parties herein is set out in further detail below. Plaintiff’s Case It is the case of Plaintiff from her pleadings and witness statement that, she is the owner of a single room with porch located at the Osu Regal Property. According to the Plaintiff, the Osu Regal Property originally belonged to her late mother, Georgina Adoley Mingle (also known as Mrs. Georgina Adoley Tetteh Kofie) who acquired her portion of the said Osu Regal Property by a gift inter vivos from her late grandmother, Madam Oyo Quartey. According to Plaintiff, Madam Oyo Quartey made a gift of the Osu Regal Property to all her children and grandchildren with the exception of the Defendant’s father, Ebenezer Nii Nokwei Tackie. Plaintiff further states that her late grandmother also had a property at Osu R.E therefore, when her late grandmother devised same to her children, the Defendant’s father rather got a portion of the Osu R.E. property. The Plaintiff goes on to aver that, prior to the death of her mother in year 2021, the Plaintiff’s mother made an oral grant of a single room with porch to the Plaintiff and her children. According to the Plaintiff, upon the grant she entered into possession, lived with her late mother in the devised room and has since been in quiet possession of the property for more than 30 years. Plaintiff states also that, sometime in the year 2021 her late mother granted the Defendant permission to erect a single storey structure over the Plaintiff’s building. According to the Plaintiff, she reluctantly agreed to the permission given to the Defendant. Subsequently, the Defendant commenced his construction works over the Plaintiff’s building by removing the existing roof. According to Plaintiff, contrary to what was agreed with the Defendant, the Defendant commenced his construction works with the intention of constructing a multi-storey structure instead of a single storey structure permitted the Defendant. The Plaintiff averred that, when she noticed the intentions and positive acts being taken by the Defendants towards executing his plan, she approached the Abigail Wellington vs. Ebenezer Tackie 4 Defendant and demanded that he produced an official document which permitted the Defendant to commence and build a multi-storey structure over her building. The Plaintiff further raised concerns about the weak nature of her existing building over which the Respondent is erecting his multi-storey structure and the fact that the foundation of her building is unable to support any more structures. However, the Defendant was adamant. According to the Plaintiff, due to the activities of the Defendant, the Plaintiff’s roof started leaking, thereby causing her rooms and that of the other occupants of the Osu Regal Property to flood whenever it rains. The Plaintiff therefore made several demands on the Defendant to desist from erecting a multi-storey structure over her building, but the Defendant still did not budge. Dissatisfied at the turn of events, the Plaintiff reported the matter to the larger family so that the Defendant could be cautioned and advised over his activities. According to the Plaintiff, a family meeting was therefore convened, and the Defendant was advised to end his construction at the level he had reached and roof the building. However, the Defendant failed to heed to the advice by the family elders and persisted in his ways. Plaintiff avers that, she therefore wrote two letters on 23rd November 2021 and 24th August 2022 respectively, reporting the matter to the Municipal Chief Executive of the Korle Klottey Municipal Assembly and expressing her disapproval of the activities of the Defendant. The Plaintiff says that Korle Klottey Municipal Assembly immediately sent an officer to the property to inspect the work, to generally assess the damage being caused to the Plaintiff by the Defendant’s activities and to advice on the way forward. According to the Plaintiff, the officer upon assessment of the project advised the Defendant to stop work at the current level and roof the structure as it poses high risk. The Defendant again ignored the advice by the Assembly. According to the Plaintiff the Korle Klottey Municipal Assembly subsequently invited the parties for an amicable settlement of the matter but that also proved futile. Plaintiff asserts that instead of heeding to the numerous advice to halt his construction work, on 5th July 2023, the Defendant brought in additional building materials and workmen to “flow” the building structure and make way for the construction of another storey building over what the Defendant had already constructed. Owing to the incessant actions of the Defendant and for fear for her life, the Plaintiff again reported the matter to the Osu Police Station. The Defendant was invited over by the police and questioned about his activities. According to the Plaintiff, at the police station the Defendant insisted in the presence of the Police Commander that he will continue to build the multi-storey structure over the Plaintiff’s property, despite all the nuisance the work is causing to the Plaintiff and the other occupants of the house. Abigail Wellington vs. Ebenezer Tackie 5 Plaintiff says finally that is based on the above she commenced this action against the Defendant, and that she is entitled to all her reliefs sought from this Honourable Court. Defendant’s Case The Defendant on his part alleges that Plaintiff is not the beneficial owner of the single room with porch located at the Osu Regal Property because the Plaintiff acquired it after the death of her late mother, Georgina Adoley Mingle, and thus asserts that, the Osu Regal Property is the property of the late Georgina Adoley Mingle. Defendant goes on to state that the Plaintiff’s mother distributed her properties to her children by way of gift inter vivos and same was documented. Defendant alleged further that the Plaintiff’s mother (Georgina Adoley Mingle) and his aunt (Veronica Mingle) gave him permission to build above their room which are next to each other. The Defendant claims that, his aunties gave him the permission because they wanted to ensure that all their five siblings get a share of the Osu Regal Property. According to the Defendant, as a son of Ebenezer Nii Nokwei Tackie, he is also to benefit from his father’s portion of the Osu Regal Property. The Defendant contends that it is for this reason his two aunties permitted him to renovate their portions of the Osu Regal Property by removing the roof and projecting same into a storey building and the Plaintiff was a witness to the agreement which was also documented. According to Defendant, he is in the process of constructing a second floor on top of the 1st floor he has built and thus, proposes to mount drying lines thereon. Defendant averred further that, he was unable to provide an official document which permits him to undertake his construction works because to obtain such official documents, the Defendant was required to present a copy of the property documents of the original owner, thus, his great grandmother to the planning authority. Defendant states he is keen on constructing a second floor on top of the 1st floor he has already constructed, thereby constructing a multi-storey structure because, the existing building has its own supporting pillars and beams therefore, his multi-storey structure will not impose weight upon the Plaintiff’s building. According to the Defendant, the action of the Plaintiff is nothing but an attempt to delay and shutter his efforts to construct a multi-storey structure over the Plaintiff’s building. The Defendant claims that the Plaintiff is not entitled to any of her reliefs. The Defendant therefore Counterclaimed against the Plaintiff seeking the reliefs already outlined above. ISSUES Abigail Wellington vs. Ebenezer Tackie 6 Four issues were agreed between the parties and set down for trial on 18th April, 2024 as follows: 1) Whether or not the Plaintiff is the owner of the property known as No. F406/2, Sai Kojo Street, Osu Accra; 2) Whether or not the Defendant was granted permission by the Plaintiff’s mother and Madam Veronica Lakarley Mingle to construct more than a single storey structure over the Plaintiff’s property; 3) Whether or not the Defendant can continue to construct a multi-storey structure over the Plaintiff’s land without a valid permit from the rightful authorities?; and 4) Whether or not the Plaintiff is entitled to all her reliefs. 1) Whether or not Plaintiff is the owner of the Property known as No. F406/2, Sai Kojo Street, Osu, Accra 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 Dennis Adjei JA, 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." 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 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.” Abigail Wellington vs. Ebenezer Tackie 7 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 law is that where the parties claim and counterclaim for declaration of title to the same piece of land, each party bears the onus of proof as to which side has a better claim of title against his/her adversary, for a counterclaimant is as good as a plaintiff in respect of a property which she/he assays to make his/her own. This was emphatically stated in Elizabeth Osei vs. Madam Alice Efua Korang [2013] 58 GMJ SC. In this Elizabeth Osei vs. Madam Alice Efua Korang case (supra) 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 [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 to succeed in property disputes of this 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 is on the balance of probabilities. Finally, that 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. Since it is Plaintiff who is claiming ownership of the Osu Regal Property, and flowing from the legal principles I have outlined above, it means the burden lay on her to adduce cogent evidence to establish this ownership on the balance of probabilities. How was Plaintiff to go about proving this Abigail Wellington vs. Ebenezer Tackie 8 ownership? In Nana Amua Gyebu XV vs. Mondial Veneer (Gh) Ltd (Civil Appeal No. J4/31/2010; judgment dated 11th August, 2010) the Supreme Court held: “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). Accordingly, the key legal imperatives to be established by Plaintiff were 1) root of title; 2) mode of acquisition and 3) acts of possession over the Osu Regal Property in dispute. I am satisfied as the trier of fact that Plaintiff has satisfactorily discharged her evidential burden of proof. Plaintiff has maintained throughout her testimony that the property in dispute belongs to her, because she obtained it by a gift inter vivos from her late mother Georgina Adoley Mingle, and the Property became hers by virtue of that fact which establishes her root of her title and mode of acquisition. Plaintiff further insists that she has been in possession of the property for about 30 years now and that she was living in the Property with her mother Georgina Adoley Mingle prior to her mother’s demise sometime in 2021 and has remained in the Property till date. Although she provided little evidence to establish these facts unquestionably, it is instructive to note that Defendant did not dispute that Plaintiff is the owner of the Osu Regal property. During cross- examination the following exchange took place: “Q: You are constructing over the Plaintiff’s roof, are you not? A: No, I started constructing on top of Plaintiff’s mother’s room. It was after her death that the said property was bequeathed to the Plaintiff. It was not just Plaintiff’s mother’s room, but the room of Plaintiff’s mother’s sister as well.” Later on, Defendant also stated the following under further cross-examination: “Q: You would agree with me that Plaintiff lived in the disputed property ie Osu Regal property with her late mother, did she not? A: Yes they lived in the same house but not in the same room. Q: You would agree with me that the Plaintiff’s mother devised the property in dispute to the Plaintiff whiles she was alive, did she not? A: No I do not agree. The mother died before the said property was devised to the Plaintiff. Q: The plaintiff and her children are still living in the room below which you are constructing, are they not? A: She did not live below the construction area but used to live in another room with her children. It was the old lady who lived below the area I am constructing but not the Plaintiff.” (emphasis added) Abigail Wellington vs. Ebenezer Tackie 9 (See record of proceedings dated 7th June, 2024 and 18th June, 2024 at pages 14 and 16 of the record of proceedings). It is clear from the above that Defendant concedes that the Property has been bequeathed to Plaintiff and that Plaintiff has been in possession at least from before her mother’s death 2021 till date. 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 122-113) What Defendant on his part insists on is that, the Plaintiff only became the owner after the death of her mother, Georgina Adoley Mingle and not that Plaintiff is not the owner of the Property. He argues through his Counsel that Plaintiff states in one breath that the late Georgina Adoley Mingle made an oral grant of the Property to Plaintiff over thirty years before the commencement of the suit but then in another breath admits that Georgina Adoley Mingle gave her blessing to Defendant to erect a structure over the building of Plaintiff. According to Counsel, this contradiction proves that the Plaintiff did not become the owner of the room till the death of her mother Georgina Adoley Mingle in 2021. It is further argued that there is evidence before the Court that Plaintiff had a tense and disrespectful relationship with her late mother as Plaintiff admitted under cross-examination amongst other things that she did not wash her late mother’s soiled clothing, nor did she sleep in the same room with her late mother (see proceedings dated 23rd May, 2024). However, even assuming that Plaintiff indeed had a “tense and disrespectful” relationship with her mother, I am unable to see how that affects the issue of whether Plaintiff is the owner of the Property. Many a parent have still devised property to their children irrespective of the poor relationship they had with those children prior to their demise. Moreover, in my view, it is not the timing of when the Plaintiff became the owner, but the fact that she actually is the owner currently that is relevant in the circumstances of this case. I therefore agree with Counsel for the Plaintiff that, whether the Abigail Wellington vs. Ebenezer Tackie 10 Plaintiff became the owner of the disputed property before or after the death of her mother, the undisputed fact from the facts and evidence established remains that the Plaintiff is currently the owner of the property. Consequently, I find that Plaintiff has satisfactorily proven her root of title, mode of acquisition and established acts of possession in respect of the disputed property and therefore resolve the first issue in her favour. 2) Whether or not Defendant was granted permission by Plaintiff’s mother and Madam Veronica Lakarley Mingle to construct more than a single storey structure over the Plaintiff’s property? 3) Whether or not the Defendant can continue to construct a multi-storey structure over the Plaintiff’s land without a valid permit from the rightful authorities? I will take the above second and third issues together. It has never been in denial that the Defendant was granted permission by the Plaintiff’s late mother to build over the Plaintiff’s roof. The main bone of contention is the number of floors that Defendant was permitted to construct over Plaintiff’s roof. While Plaintiff has maintained that her late mother (Georgina Adoley Mingle) and her aunt, Veronica Lakarley Mingle granted Defendant permission to construct a single storey and not a multi-storey structure, Defendant contends that there was no express limitation on him to a single storey structure. It is an established fact that the purpose for the grant of the space to Defendant was to enable him benefit from his father’s share of the Osu Regal property and that the space above the Property was given to him out of gratitude by Plaintiff’s mother Georgina Adoley Mingle. The permission given to Defendant to construct a storey building is evidenced by Exhibit 3 series attached to the Defendant’s supplementary witness statement filed on 28th June 2024. Clause 3 of Exhibit 3 series which exhibit is dated 25th June, 2020 reads as follows: “ The 1st Party desirous of making provision to Ebenezer Tackie in House No. 406/2, Osu Regal, Accra regarding his late father’s share in the property has agreed and authorize Ebenezer Tackie as follows: (i) To renovate their portion i.e. the rooms the 1st Party occupy by removing the roof and projecting their portion into a storey building. (ii) The Top Floor of the Storey Building should be occupied by Ebenezer Tackie to compensate for the late father’s share in House No. 406/2, Osu Regal, Accra. (iii) The Ground floor of the storey building after its construction should be occupied by our children/descendant as the case may be”. Abigail Wellington vs. Ebenezer Tackie 11 Considering the wording of exhibit 3 and bearing in mind the purpose for which the grant was made to Plaintiff, I am persuaded that the parties indeed had in mind just a single storey construction to be added to the existing structure. I believe if this were not so, the parties would not have stated that, the “Top Floor of the Storey Building should be occupied by Ebenezer Tackie (ie Defendant herein) to compensate for the late father’s share in House.” I do not think that the intendment was for a multi-storey structure and then the top floor was to be occupied by Ebenezer Tackie (i.e. Defendant). I am inclined to this view because of the reason expressly stated: it was to be occupied by Ebenezer Tackie to compensate for his late father’s share. The idea therefore was to allow Defendant the opportunity to construct a structure for his occupation in order for him to benefit from his deceased father’s portion of the Property which had hitherto not been benefitted by him or his father and not to construct a multi-storey building for any other purposes than occupation by Defendant. Furthermore, the Property itself is old and it has been established from the evidence that it has been in the family for generations. It would therefore be quite unwise for a multi-storey structure to be constructed on top of a foundation that was not made to support this. Under cross-examination Defendant also admitted not having obtained a valid building permit prior to the commencement of his building structure where he stated: “Q: Which year did you commence the construction work? A: I cannot recall the exact year but the range is 2020 and 2021. Q: What stage have you reached with the construction work? A: The ground floor was already in existence so I have constructed the 1st floor and laid the iron mesh on top of the 1st floor. Q: Do you have a building permit for the construction work? A: I have applied for the permit. The Korle Klottey Assembly inspectorate numbering about 15 came and inspected the said structure and I am waiting their verdict. I have the receipts of all payments I made. Q: When did you apply for the building permit? A: Later part of 2022” (emphasis mine) Abigail Wellington vs. Ebenezer Tackie 12 The relevant legislations governing building permits are the Local Governance Act, 2016 (Act 936) and the National Building Regulations 1996 (LI 1630). Section 106 of Local Governance Act, 2016 provides: “106. (1) A person shall obtain a building permit from a District Planning Authority before undertaking the construction of a building or other structure or undertaking any other work. (2) The permit shall contain the conditions that the District Planning Authority considers necessary. (3) A District Planning Authority may give notice in writing in the form set out in the Sixth Schedule, to an owner, occupier or developer of premises, if the owner, occupier or developer (a) is constructing a building or other structure; (b) has constructed a building or other structure; or (c) is working or executing work without a permit or in contravention of a by-law made by the District Assembly.” (emphasis mine) Regulations 2 and 3 of National Building Regulations 1996 (LI 1630) further provides that: “Regulation 2 Any person who intends to— (a) erect any building; or (b) make any structural alteration to any building; or (c) execute any works or install any fittings in connection with any building shall apply in Form A specified in Part I of Schedule 1 to these Regulations to the District Planning Authority of the district where the building, structure or works is or is intended to be and shall submit in duplicate the relevant plans with the Form. Regulation 3—Title to Land (1) An applicant under regulation 2 shall satisfy the District Planning Authority that he has good title to the land relevant to the plans. (2) No approval shall be granted to any applicant who does not have a good title to the land, and, for the purposes of this regulation, good title shall be in accordance with a certificate issued by the Chief Registrar of Land Titles or any other agency so authorise.”(emphasis mine) I will note here that in my research in writing this judgment, I discovered that new legislation on Building Regulations, 2022 (LI 2465) has been passed, but try as I may I was unable to obtain the most recent legislation on building regulations in Ghana. This notwithstanding I still refer to the old regulations because I do not think it will be substantially different from the new law. In any case the Local Governance Act, 2016 which is currently in operation still establishes that prior to commencing any structure or making any alteration to an existing structure, it is imperative that a permit is obtained from the requisite authorities prior to its alteration. Abigail Wellington vs. Ebenezer Tackie 13 Therefore, even if as Defendant argues, he has not been expressly refused a permit by the lawful authorities, the fact remains that he did not wait to obtain the permit prior to commencing his alteration of the Property. Moreover, he did not lead any evidence to persuade this Court that the structural integrity of the building would not be comprised if he is allowed to construct more than a single storey above the existing structure. He did not call any expert witness either from the Assembly or any other expert witness nor did he provide any other documentary evidence that indeed the proper checks and tests had been done to allow him construct more than a single-storey structure. I can never forget the Melcom disaster of 7th November, 2012 when the six-storey Melcom shopping mall in Achimota, a suburb of Accra, collapsed and claimed 14 lives and caused the injuries of sixty-seven others. That building was said to have suffered from faulty construction and lacked the proper permits for its construction. The concerns raised by Plaintiff in the instant case is therefore quite valid and I am of the view that it would not be proper to allow Defendant to continue with his project especially in light of all the evidence established. Flowing from this, I again resolve the second and third issues in favour of the Plaintiff, and find from the evidence and facts established that a) Defendant was NOT granted permission by Plaintiff’s mother and Madam Veronica Lakarley Mingle to construct more than a single storey structure over the Plaintiff’s property; and b) Defendant can NOT continue to construct a multi- storey structure over the Plaintiff’s land without a valid permit from the rightful authorities. Counsel for the Defendant submitted in his final address to the Court, an additional issue of whether Plaintiff can retract from a grant made by her mother Georgina Adoley Mingle and Veronica Lakarley Mingle which was witnessed to by Plaintiff herself. In my view, it would not be a useful exercise of time, to consider if a valid grant was made in the first place by Georgina Adoley Mingle and thereafter consider if Plaintiff is bound by same and cannot now reprobate the agreement. This is because, having regard to the circumstances, I do not see this to be a significant issue particularly since although a grant was indeed indisputably made to Defendant, this Court has reached the conclusion the Defendant himself did not keep to the limits of the grant both contractually and legislatively. He cannot therefore now turn around and insist that one party be bound by the grant while he himself approbates and reprobates the same grant. As the maxim goes, he who comes to equity must come with clean hands, and it is quite disingenuous of Defendant to seek to enforce an agreement that he himself is in breach of. 4) Whether or not Plaintiff is entitled to all her reliefs As outlined above, the reliefs being sought by the Plaintiff from this Honourable Court are: Abigail Wellington vs. Ebenezer Tackie 14 a. Perpetual injunction restraining the Defendant, his agents, servants or assigns from further dealing with the property known as No. F406/2 Sai Kojo Street, Accra in the Greater Accra Region of the Republic of Ghana in any manner. b. An order for the immediate removal by the Defendant of any building materials or in the alternative an order for the destruction or disposal of such building materials. c. An order directed at the Defendant to quit the building structure erected over the Plaintiff’s property and remove same immediately. d. Costs including legal fees e. Further or other reliefs Having found in favour of the Plaintiff, I will hold that she is entitled to all her reliefs. Judgment is accordingly entered on the above stated reliefs a, c and d. With respect to relief b, I will order for the immediate removal by Defendant of the building materials deposited on the property of Plaintiff intended for the further construction of the second storey. I will further order that Defendant is to make the necessary restorations to the structure affected by the alterations he made in order to make same habitable for Plaintiff or restore the Property to its original state. I will award Plaintiff costs of Twenty-Five Thousand Ghana Cedis (GHC 25,000) SGD. MAAME YAA A. KUSI-MENSAH (MS). MAGISTRATE Abigail Wellington vs. Ebenezer Tackie 15