QUARSHIE VRS. AYEE AND OTHERS (A9/50/2020) [2025] GHADC 12 (25 January 2025)

1 CORAM: HER WORSHIP BIANCA GYAMER- BEEKO MAGISTRATE SITTING AT THE DISTRICT COURT MAMPONG-AKWAPIM ON 25TH DAY OF JANUARY, 2025. ----------------------------------------------------------------------------------------------------------------------- SUIT NO: A9/50/2020 DANIEL QUARSHIE ………. PLAINTIFF VRS. REBECCA AYEE AND 9 OTHERS ………... DEFENDANTS Plaintiff present. 1st, 2nd, 3rd, 4th Defendants present. 4th Defendant represents the other Defendants. Dorothy Neequaye Esq. appears for the Plaintiff. Gosford Sawyerr Esq. appears for the Defendants. JUDGMENT This is a matter that commenced on 7th May, 2020. By the time I inherited this docket, the trial had been completed but the Magistrate had been unable to deliver her judgment before proceeding on retirement. In view of how far the matter had travelled, I found it expedient to adopt the proceedings and it is therefore on the basis of the record handed down to me that I now proceed to deliver judgment in this matter. The Plaintiff sued the first three defendants seeking the following reliefs: 1. Recovery of possession of two single rooms that first and second defendants are occupying at Domeabra Gyankama. 2. Recovery of a parcel of land the third defendant has placed his container on at Domeabra Gyankama. On 14th May 2020, the seven other defendants filed a motion praying the court to join them as co-defendants on grounds that they are direct siblings of the Plaintiff and that the property in question is family property acquired by their mother. This motion was granted. 2 Subsequently the Plaintiff filed a statement of claim. His case, per the summary attached to his writ and the statement of claim, is that he is the legitimate son of the late Akua Safoa. The late Akua Safoa acquired land at Gyankama, and shared the land among the surviving children. The 1st Defendant was brought to the house by Sisi Kara, a cousin to the Plaintiff and his siblings. Plaintiff insists that the first three defendants have no agreement with the family and that he took them to rent control to eject them. At rent control, his siblings came to plead with him to allow the first three defendants to stay in the house and he was introduced to them as the landlord as well as the head of the family. However, one day afterwards, someone came to look for him and asked of the landlord in response to which the 1st and 2nd Defendants answered that there is no landlord in the house. Plaintiff enquired from the 1st and 2nd Defendants why they said there was no landlord in the house but this did not go down well with the 1st and 2nd Defendant and they gave him a sound beating. Plaintiff reported this matter to the Police. For 3rd Defendant, Plaintiff said he had overstayed his tenure and therefore he wanted him out. Plaintiff clarified that he is not claiming sole ownership of the property as he knows it is for him and his siblings but he only wants to protect the property. The Defendants filed a statement of defence and counterclaim. They admitted that the land was acquired by their mother but contrary to the Plaintiff’s claim, it was shared among all her ten children not just those surviving. They contended that the 1st Defendant was given a license by their mother to stay in the room she was occupying. They contended also that the 2nd and 3rd Defendant were licensees of the 4th Defendant, and therefore the Plaintiff has no business enquiring about their agreement with the family. They contended also that the Plaintiff had failed to develop his portion of the land and had instead resorted to harassing their tenants to pay unlawful rent to him. Plaintiff harassed one of their mother’s licensees, Zouruka Alhassan, who was neither in the Plaintiff’s room nor on his land to the extent of going to his work place to make a complaint to his superiors. They contended that they had not introduced Plaintiff as landlord to anyone and had not appointed him to act in their interest. They counterclaimed for the following reliefs: 3 1. That the Plaintiff be ordered to vacate the room he currently occupies at Gyankama since he is doing so unlawfully 2. An order to perpetually restrain him from entering the Gyankama property to harass any of its inhabitants 3. An order restraining the Plaintiff from issuing out threats of violence against any of the defendants or inhabitants of the Gyankama property. A surveyor was appointed by the court on 10th July, 2020 to visit the locus. This was done and on 22nd September, 2020 the surveyor tendered his report and was cross-examined by the parties. He confirmed that the land had indeed been apportioned among the siblings so all he did was to readjust them to give access. Issues 1. Whether the Plaintiff has the capacity to bring the present action. 2. Whether the Plaintiff is entitled to the reliefs he seeks against the 1st, 2nd and 3rd Defendants. 3. Whether the Plaintiff is in lawful occupation of the room he is currently occupying. 4. Whether the Plaintiff ought to be restrained from entering the Gyankama property to harass its inhabitants. 5. Whether the Plaintiff ought to be restrained form issuing threats of violence against any of the Defendants or inhabitants of the Gyankama property. Evidentiary burden. The principle is that he who alleges must prove. Section 14 of the Evidence Act, 1975 (Act 323) provides that: except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. The Supreme Court in the oft cited case of Serwah v Kesse (1960) GLR 227 stated that “the general rule, of course, is that that the onus probandi lies on the party who substantially 4 asserts the affirmative of the issue”. They laid down the tests for who bears the burden as follows: “The best tests for ascertaining on whom the burthen of proof lies are, to consider first which party would succeed if no evidence were given on either side; and, secondly, what would be the effect of striking out of the record the allegation to be proved. The onus lies on whichever party would fail, if either of these steps were pursued See Taylor on Evidence, s.365 quoted in Stroud, Judicial Dictionary (3rd. ed.) p. 1996.” The Plaintiff and Defendants are therefore under an obligation to prove the facts that will enable the court conclude that they are entitled to the reliefs they seek by way of their claims and counterclaims respectively. This being a civil matter, the parties are required to prove their cases upon a preponderance of probabilities in accordance with section 12 of the Evidence Act 1975 (NRCD 323). Whether the Plaintiff has the capacity to bring the present action. In the Supreme Court decision of Sappor and Other Subsituted By Atteh Sappor Vrs Sappor Subsituted By Ebenezer Tekpetey [2021] GHASC 10 (13 January 2021), Prof. Mensa-Bonsu JSC explained capacity as follows: Black’s Law Dictionary defines ‘Capacity’ or Standing as: “A party’s right to make a legal claim or seek judicial enforcement of a duty or right…” Thus, one’s ability to appear in court to make a claim hinges on whether one is recognized in law as having sufficient interest in any matter to seek a hearing on any particular issue. Since the Plaintiff admits that he is not the sole owner of the property and he admits also that the property has in fact been shared among him and the 4th to 10th Defendants, the question is whether the Plaintiff has demonstrated sufficient interest to entitle the court to hear him as regards the property occupied by the first three defendants. In the case of Standard Bank Offshore Trust Company Ltd vrs National Investment Bank Ltd and Others 2017 GHASC 26 (21 June 2017), the Supreme Court speaking through 5 Benin, JSC. emphasised that “the capacity to sue must be present before the writ is issued; such authority must appear in the endorsement and/or statement of claim accompanying the writ; it cannot be acquired whilst the case is pending; and an amendment cannot be sought to introduce it for the first time. A writ that does not meet the requirement of capacity is null and void”. As to capacity, the Plaintiff only identified himself in his writ and statement of claim as the legitimate son of the late Akua Safoa. Neither his writ nor statement of claim discloses that he had the authorisation of his siblings to bring the present action. It is not his case that the first three defendants occupy his portion of the property. In fact, from the evidence before this court, the portion of the land allocated to the Plaintiff is bare and is not occupied by the 1st, 2nd or 3rd Defendant. Respectfully, I therefore fail to see how the Plaintiff has capacity to proceed against the 1st, 2nd and 3rd Defendants when they are not occupying his portion of the land. I also fail to see how the Plaintiff has the capacity to deal with portions of the property that have been allocated to his siblings simply because he is the legitimate son. His status as the sole son of his mother means absolutely nothing in the context of this case. The property in question, having been shared among the siblings, is no longer family land. If it were family land, the Plaintiff would have been entitled, under the right circumstances to bring a suit to protect it as a member of the family. If the Plaintiff has any legal rights with respect to the land in dispute, it pertains only to his allocated portion. Consequently, I find that the Plaintiff lacks capacity to bring the present action and on the authority of the Standard Bank Offshore Trust Company Ltd decision, I hold that the writ is null and void and I accordingly strike it out. It follows therefore that the Plaintiff is not entitled to any of his other reliefs, and I so hold. Counterclaim The law is that a counterclaim is an independent cross-action that can be maintained even if the Plaintiff’s case is struck out. In the case of ZOGLIE VRS ZOGLIE (PA/869/2020) [2024] 6 GHAHC 34 (25 January 2024), Dadson J quoted with approval the dictum of the Supreme Court in the case of Gbedema vs Awoonor Williams (1970) CC 12 that a counterclaim is to all intents and purposes an action by a respondent against the applicant. It is an independent and separate action”. I shall therefore proceed to consider the counterclaim. It is the case of the Defendants that the Plaintiff is occupying a room unlawfully and they are praying that the court evicts him. The position of the law is that a person who bears the burden of proof (in this case, the Defendants) must prove same on the preponderance of probabilities; see Essuon v Boham [2014] GHASC 156 (21 May 2014). The Defendants have however failed to lead any evidence to show which room in particular the Plaintiff is occupying, and why his occupation of that room is unlawful such that he should be evicted. By reason of the failure of Defendants to adduce any evidence at all on this issue, I am unable to determine whether the Plaintiff is in lawful occupation of the room or not. For this reason, the Defendants’ first claim fails. With regards to the 2nd and 3rd reliefs sought by the Defendants however, I am satisfied that they are entitled because the evidence overwhelmingly shows that the Plaintiff is nothing but a meddlesome interloper with absolutely no right to interfere in the business of the Defendants. His testimony and conduct show that unless restrained he will continue to harass the Defendants. Consequently, I hereby restrain the Plaintiff from: 1. Entering the portions of the Gyankama property allocated to his siblings to harass the inhabitants therein, and 2. Issuing threats of violence against any of the Defendants or inhabitants of the Gyankama property. Considering that this matter has been pending for five years, and the fact that the Plaintiff does not even have capacity to bring the suit, I award cost of 10,000 against the Plaintiff. In summary, I hold as follows: 1. The Plaintiff has no capacity to bring this action and his case is accordingly struck out. 7 2. The Defendant have not led any evidence to show which room the Plaintiff occupies unlawfully, and for that reason their prayer that he be ejected is refused. 3. The Plaintiff is restrained from: i. Entering the portions of the Gyankama property allocated to his siblings without to harass the inhabitants therein, and ii. Issuing threats of violence against any of the Defendants or inhabitants of the Gyankama property. 4. Cost of 10,000 is awarded against the Plaintiff. SGD. H/W BIANCA GYAMERA-BEEKO MAGISTRATE