Mingle and Another v Asare and Others (A11/43/2023) [2024] GHADC 772 (28 November 2024)

BEFORE HER WORSHIP ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) DISTRICT MAGISTRATE SITTING AT DISTRICT COURT GBESE, ACCRA ON THURSDAY THE 28TH DAY OF NOVEMBER, 2024. --------------------------------------------------------------------------------------------------- SUIT NO. A11/43/2023 1. NELLY AMELEY MINGLE ::: PLAINTIFFS 2. DANIEL ALLOTEY MINGLE VRS. 1. BEN ASARE 2. DENNIS AMOAH 3. ESTHER ANIM ::: DEFENDANTS 4. DORA BAAH 5. COLLINS MINGLE 6. JOSEPH MINGLE 7. OTHER OCCUPANTS --------------------------------------------------------------------------------------------------- Time: 9:18am. Parties: Plaintiffs present. 6th Defendant present. Legal Representation: Irene Aborchie-Nyahe, Esq for the Plaintiffs. Stanley Boye-Quaye, Esq for the 6th Defendant. 1 JUDGMENT The Plaintiff aggrieved by the Defendant invoked the jurisdiction of this Court by issuing a writ dated 19th April, 2023 for the following reliefs; a. A declaration that Daniel Mingle, Rebecca Mingle, Victoria Mingle Lain and Patience Mingle Sieh are the new owners of the unnumbered house at Russia-Accra, formerly belonging to their father, Daniel Akwei Mingle (deceased). b. An order that the defendants vacate the property within three (3) months after the judgement of the Honourable Court. c. An order for perpetual injunction restraining the Defendants, their assignees, servants, workmen, privies and anybody claiming through them to ever lay any claim to any portion of the house or occupy same. d. Costs including legal fees. After several failed attempts at personal service, the Defendants were finally served through Substituted Service which led them to file an Affidavit in Opposition to that effect on 4th December, 2023. Pursuant to the court’s orders the parties filed written statements; Plaintiffs filed their Statement of Claim on 30th April, 2024 and the Defendants particularly the 6th Defendant filed his statement of defence on 31st August, 2024. THE CASE OF THE PLAINTIFFS The 1st Plaintiff claims to be a Ghanaian currently resident in the United States (U.S.) and the widow of Mr. Daniel Akwei Mingle. The 2nd Plaintiff claims to be a son as well as the beneficiary and a co-administrator of the estate of Daniel Akwei Mingle and 2 resides at Laterbiokorshie, Accra. They aver that the 1st, 2nd, 3rd, 4th and 6th Defendants are squatters in the property referred to as "Unnumbered House" situated at Russia, Accra in the Greater Accra Region and the 5th Defendant is a member of the Plaintiffs’ family and he resides in the disputed house. Plaintiffs aver that the Mr. Daniel Akwei Mingle died intestate on the 23rd February, 2010 in the Republic of Liberia leaving behind eleven (11) children and three (3) properties in Ghana as well as some in Liberia. Plaintiffs aver that upon the death of Mr. Daniel Akwei Mingle, the Plaintiffs were granted Letters of Administration by a High Court Accra in respect of his estate on 24th June, 2016 and they thereafter proceeded to distribute the estate in accordance with law. The Plaintiffs accordingly vested the deceased’s properties in the of the respective beneficiaries in accordance to the Intestate Succession law, 1985 (PNDCL 111). The property in dispute which plaintiffs describe as “Unnumbered House" was vested in the 2nd plaintiff and his siblings namely; Rebecca Mingle, Victoria Mingle Lain and Patience Mingle Sieh. Plaintiffs aver that the property in dispute has been unlawfully encroached upon and occupied by the Defendants. The deceased in his life time lived and worked in Ghana and Liberia and he acquired three (3) properties in Accra located at Bubuashie, Laterbiokorshie and Russia as well as some properties in Liberia and entrusted some rooms of the disputed property to his biological sister, Elizabeth Aku Mingle (now deceased) to occupy temporarily and to take care of whiles he was away in Liberia. Whist still alive the said Elizabeth Aku Mingle (deceased), allowed some people to occupy portions of the deceased's property illegally. At a family meeting held on the 17th March, 2012 at Hse No. 78, Kaneshie Estates and chaired by the Head of family, Professor Mingle the Mingle Family documented the properties, including the disputed "Unnumbered property" that the deceased died possessed of and the family and the 5th Defendant did not protest its ownership. This is because the Mingle Family were aware that the said Unnumbered property located at Russia, Accra undisputedly belongs to Mr. Daniel Akwei Mingle (deceased). Further, portions of the adjoining land of the disputed property vested in them have been occupied by the 5th Defendant who is enjoying the rent proceeds with other benefits 3 with other family members without properly accounting for the monies. Plaintiffs caused their Lawyer to serve notice on the Defendants to vacate the premises and but they refused to do. The Defendants’ continuous occupation is causing the plaintiffs and the other beneficiaries’ and their families hardship rendering them homeless. By virtue of the provisions of the Intestate Succession 1985 (PNDCL 111) the beneficiaries are rightfully entitled to the property referred to as "Unnumbered House" hence their humble application. THE CASE OF THE DEFENDANTS The 6th Defendant denies the plaintiffs’ averments and states that the 1st, 2nd, 3rd and 4th Defendants are licensees who are legitimately on the property in dispute. The Defendant avers that if the said "Unnumbered House" which actually is House No. B816/15, Mataheko Accra referred to is the property in dispute then same cannot be part of the estate of Daniel Akwei Mingle. He avers that the property in dispute does not form part of the estate of Daniel Akwei Mingle and have no legal interest in the land and are not entitled to vacant possession. The 5th Defendant states the Plaintiffs have no business with whatever he does on the land in dispute and that there is no adjoining land to the property in dispute. The 5th defendant claims Daniel Akwei Mingle did not have any testamentary capacity over the disputed house at the time of his death. The parties were ordered to file Witness Statements. Plaintiffs filed theirs on 15th November, 2023 and the 6th Defendant filed his on 16th January, 2024. The matter was eventually set for hearing and the parties presented their respective cases. ISSUES 1. Whether or not the house in dispute forms part of the estate of the late Daniel Akwei Mingle, making the 2nd Plaintiff and his siblings the new owners of the house. 2. Whether or not the distribution of the house in dispute was lawful. 4 3. Whether or not the Plaintiffs are entitled to their claims 4. Whether or not the 6th Defendant is to render account to the Plaintiffs. THE LAW THE BURDEN AND PERSUASION OF PROOF EVIDENCE ACT 1975 (N.R.C.D. 323) In examining the case put forward by the parties, the court must be circumspect and deal with facts as well as the evidence adduced and most importantly the law. It is the principle of law that, the onus of proof first rests on a party whose positive assertions have been denied by his opponent. A person on whom the burden of proof lies depending on the admissions made is directed by sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead convincing evidence such that on the totality of the evidence on record, the court will find that a party’s version of the opponent’s accounts to be more probable than its non-existence. See Douglas Carl Botweh v. Ghana Highway Authority (2018) JELR 64359 (HC), Zambrama v. Segbedzie (1991) 2 GLR 221, Takoradi Floor Mills v. Samir Faris [2005/06] SCGLR 882; Continental Plastics Ltd v. IMC Industries [2009] SCGLR 298 at pages 306 to 307; Abbey v. Antwi [2010] SCGLR 17 at 19 (holding 2); and Ackah v. Pergah Transport Limited and Others [2010] SCGLR 728. To put matters in perspective of the expectations of the Evidence Act, the sections above listed are reproduced below as follows: Section 10 (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 5 Section 11 (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence. Section 12 1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. Section 15 Unless it is shifted, (a) the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue; Section 17 Except as otherwise provided by law, (a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. 6 In applying the above statute, in the case of Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the Supreme Court held: “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 varied and 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 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.” In the case of Mojolagbe v. Larbi and Others (1959) GLR 190, the court held as follows: “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist. … “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.”” Therefore, the role of a trial 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.” 7 Also, in the case of Sulemana Alidu v. Baba Alhassan Salifu (2015) JELR 108172 (HC) it was held that “the law is well settled that in an action for declaration of title to land the plaintiff must succeed on the strength his own case and not on the weakness of the defendant’s case.” See also Nartey v. Mechanical Lloyd Assembly Plant Limited (1988) JELR 66525 (SC). ANALYSIS Before I proceed, I would like to clarify once and for all the designation of Joseph Mingle as a Defendant. Per the writ issued, Joseph Mingle was designated as the 6th Defendant. This is what he always was until the court ordered the parties to file their written statements. None of the parties have been struck out therefore his designation shall remain as 6th Defendant. ISSUE 1 On the first issue the plaintiffs are praying to be declared the new owners of the disputed property as the said property forms part of their father’s estate. The 6th defendant on the other hand disputed the fact the property in dispute belonged to Daniel Akwei Mingle at all. The burden of proof thus lay on the plaintiffs to show that indeed their late father was the owner of the said property. They attached a site plan and a property rate bill and receipt as well as minutes of a family meeting to that effect. They also exhibited documents to show that their father had indeed passed on. They further produced letters of administration and a vesting assent showing that the properties of their late father had been vested in them. 8 At the hearing, counsel for 6th Defendant challenged the site plan in cross examination as follows: Q: Do you have any indenture or documents on title evidencing the grant of this land by the Chiefs to your late father? A: Yes, there is a site plan that indicates that the place belongs to my father. The family knows that place was acquired by my father and he built a house to possess the land. Q: I put it to you that a site plan is not a document of title? In the Written Address by counsel for 6th Defendant, counsel alleges fraud because the site plan exhibited is for land at Laterbiokorshie and not Russia. Indeed, looking at the site plan presented, the property will be found at Laterbiokorshie and not at Russia. However, fraud having a criminal element, the Defendant was to prove beyond reasonable doubt that indeed the Plaintiffs intended to deceive the court. See section 13(1) of NRCD 323. In the case of GEORGE BRANDFORD ESSILFIE V. JOSEPH ANDOH (2016) JELR 107839 (HC) the High Court cited with approval the book Law of Fraud and Mistake by William Williamson Kerr’s 7th Ed Page and referred to Section 13 (1) of the Evidence Act thus: “It is not easy to give a definition of what constitutes fraud in the extensive signification in which that term is understood by the civil courts or justice…… ” However difficult it may be to define what fraud is in all elements of cases it is possible to point out some of the elements which must necessarily exist before a party can be said to have been defrauded. 1. In the first place it is essential that the means used should be successful in deceiving. However false and dishonest the artifices or contrivances may be by which one man may attempt to induce another to contract they do not constitute fraud if that other knows the truth and sees through the artifices or devices. 2. There can be no fraud without an intention to deceive. 9 3. There must be damage to the party deceived A man who alleges fraud must clearly and distinctly prove the fraud he alleges. The onus probandi is upon him to prove his case as it is alleged in the statement of claim or in his particulars. Every material step in the evidence which makes out a case of fraud must be proved by sufficient evidence. If he complains of fraud in the prospectus of a accompany it is for him that it was false, and false to the knowledge of the defendant or at all events that he did not believe it, and that he was misled by it to his prejudice. If the fraud is not strictly and clearly proved as it is alleged, relief cannot be had ….” In Ghana the position regarding proof of fraud in a civil trial is governed by section 13 (1) of the Evidence Act 1975 NRCD (323). In an allegation of criminal act in a civil trial the burden of persuasion requires proof beyond reasonable doubt.” This issue of fraud did not appear in the pleadings. I can only assume it was because the site plan in question had not come up at the time. Regardless since Counsel for 6th Defendant has brought it up now, the onus is on him to prove it beyond reasonable doubt. 6th Defendant is thus to prove that the site plan does not relate to the property at Russia and that plaintiffs knew they did not have the said site plan for Russia, that the plaintiffs intended to deceive the court and that the said deception has misled the court to its prejudice. At the hearing the following ensued concerning the site plan: Q: Kindly show that site plan to the Court? A: It is among the exhibits. Q: Is what has been shown to you the site plan you referred to? A: Yes, there is another document which is attached to this, that is the property rate. Which also indicates that the place belonged to my father. Q: Kindly show this Court where the term “Lands Commission” has been stated on the site plan? 10 A: No, but this was the site plan used by Lands Commission. Q: I put it to you that Lands Commission has nothing to do with this site plan for if they do they would have stamped it accordingly. A: As I said this was the document used by the Lands Commission and they have all necessary details. Q: I put it to you that a site plan and property rate do not constitute documents of title to land? A: That is not true. Q; Look at the site plan and tell the Court what date it was made? A: There is no date on this document. Not once did counsel question the location the site plan was to cover in the cross examination. This issue of fraud never came up. I do not think that the 6th Defendant has successfully discharged the burden to prove fraud. However, while the Plaintiffs may have not fraudulently included the site plan, it does not change the fact that the property in dispute is at Russia and not at Laterbiokorshie and therefore the site plan for Russia should have been exhibited since that is a distinct area. The site plan therefore cannot be used to prove ownership of the disputed property. Nevertheless, as stated in Mojolagbe v. Larbi and Others supra the Plaintiffs are to prove their case by producing other evidence of facts and circumstances, from which the Court can be satisfied that what they aver is true. Since the site plan cannot be relied on, from the evidence the plaintiffs also exhibited a property rate bill dated 7th December, 1978 and receipt dated 23rd August, 1979. The said property rate bill and receipt bears the name ‘Daniel Mingle’. Thus, the bill was issued in the name of Daniel Akwei Mingle and paid in the name of Daniel Akwei Mingle. It is trite that when it comes to property rate, the bill can only be issued in the name of the property owner. In the case of OFORI AGYEKUM V. MADAM AKUA BIO (2016) JELR 66782 (SC) the court found that property rate bills in addition to other acts of possession can be used to prove 11 ownership. Counsel for 6th Defendant in cross examination only disputed the fact that the property rate bill cannot constitute as title to land but did not dispute that the Daniel Akwei Mingle was the one in whose name the property rate bill was issued and in whose name the property rate bill was paid. The Plaintiffs from the evidence did not adduce evidence to show that the Daniel Akwei Mingle ever lived in the house but from the evidence they did say he did not live in Ghana but in Liberia. They also did not show how he acquired title to the land. They did explain that since they inherited the properties they did not have all the documents. He however, put his sister in occupation to take care of the said house. The Plaintiffs also exhibited the minutes of the family meeting to show that the entire extended family had agreed together to decide on the manner of distributing the properties of Daniel Akwei Mingle. The property in dispute was among the properties listed. It does not appear there was any dispute as to the manner in which the properties should be distributed or any objection that the properties in question existed and belonged to him. The sitting of the family also went uncontroverted in the pleadings, Witness Statement and under cross examination. It was not even brought up in cross examination. The 6th Defendant made a positive assertion that the disputed property belonged to his Aunty, Elizabeth Mingle who was the sister of Daniel Akwei Mingle. He further stated that she exercised various acts of ownership by putting tenants into the property. The Plaintiffs disputed this in their witness statement and thus, the burden of proof lay on the 6th Defendant. In his witness statement, he repeated his averments. The law is clear and it is stated in the case of Ackah v Pergah supra 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.” It is also stated that “Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it 12 repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true” see Mojolagbe v Larbi supra. Following the above pronouncements, I do not think the Defendant successfully discharged the burden of proving that the property belonged to Elizabeth Mingle and not Daniel Akwei Mingle. I therefore find, from the evidence before this court, that Daniel Akwei Mingle being the owner of the disputed property is more probable than not. Thus, for the Plaintiffs to be declared that they are the new owners, they must prove their root of title, mode of acquisition and any acts of possession. See YEHANS INTERNATIONAL LTD V. MARTEY TSURU FAMILY & 1 OR. (2018) JELR 68871 (SC). In this instance, the uncontroverted testimony of the plaintiffs has been that the Plaintiffs are the wife and son of the late Daniel Akwei Mingle respectively. The 2nd Plaintiff described himself as a beneficiary of the estate of Daniel Akwei Mingle being one of his children. Per the Intestate Succession Act, 1985, PNDCL 111 both a surviving spouse and child are beneficiaries of an estate of a person who dies intestate. The 6th Defendant claimed that the 1st Plaintiff was not a member of the mingle family but did not dispute her as the surviving spouse of the late Daniel Akwei Mingle. The 1st Plaintiff did not state she was a member of the Mingle family so I do not find it necessary to comment further on this point. Since ownership of the disputed property has been determined by this court, being beneficiaries of the said property, and per the evidence on record, the property devolves on the Plaintiffs and the siblings specified. ISSUE 2 The 2nd issue is for the court to determine whether or not the distribution of the property was lawful. In the pleadings the Plaintiffs describe themselves as administrators of the estate of Daniel Akwei Mingle. The Plaintiffs exhibited letters of administration dated 24th June, 2016 as well as the death certificate of the late Daniel Akwei Mingle. They also exhibited a vesting assent which purports to vest the properties in the beneficiaries. Counsel for 6th Defendant took issue with the vesting 13 assent as not being stamped. This was not raised in his witness statement nor was 2nd Plaintiff cross examined on it. That notwithstanding the law on stamping makes it mandatory for an instrument affecting land to be stamped before same can be used in evidence. Where this is not done, the court is to take notice of that and give the party seeking to tender the instrument in evidence the option of paying the required stamp duty to the registrar and a receipt given before same can be admitted in evidence. See section 32 of Act 689 and NII AFLAH II v. BENJAMIN K. BOATENG (2023) JELR 110974 (SC). The law is also clear that “No judge has authority to grant immunity to a party from the consequence of breaching an Act of Parliament”. See the Republic v. High Court [Fast Track Division] Accra, Ex Parte Operation Association and Ors Interested Parties [2009] SCGLR 390. On the face of the vesting assent, there is no evidence of stamping. In schedule 1 of Act 689 however certain instruments are listed under “General Exemptions from all Stamp Duties” and in paragraph 10 it lists Probates, letters of administration and vesting assents as included in the exemptions. It must be noted that, the authority to distribute the property lies not in the vesting assent but in the Letters of Administration. The vesting assent is used to show that a beneficiary has acquired the necessary capacity in the estate of a deceased person to do use or dispose as they please. The 6th Defendant only mentioned that the Letters of Administration cannot confer title of a property on a person which was agreed by the Plaintiffs. I also agree, however, the Letters of Administration gives the Plaintiffs capacity to distribute the properties to the beneficiaries. The Letters of Administration were not challenged as being invalid. I therefore hold that the Plaintiffs have the right to distribute the property. Vesting assent does not require stamping under schedule 1 of Act 689 therefore a declaration of title can be effected. ISSUES 3 AND 4 I shall proceed to the 3rd and 4th issues as one resolves the other. From the foregoing and having considered the evidence on record, I find that the Plaintiffs are entitled to their reliefs. The 6th Defendant did not file a counterclaim and therefore had no relief except 14 to ensure that the Plaintiffs’ claims did not succeed. In this instance he was unable to do so. Since Elizabeth Mingle is deceased and there is evidence that she put persons in the property as tenants without the concurrence of Daniel Akwei Mingle, the said tenants were obviously paying rent. The 2nd Plaintiff in his Witness Statement accused 6th Defendant of collecting rents for his own benefit which he did not deny. This did not form part of the reliefs of the Plaintiffs and are therefore not entitled to it. In conclusion, the evidence on record shows that the Plaintiffs have on the balance of probabilities proved their case. FINAL ORDERS 1. The property unnumbered house, Russia forms part of the estate of the late Daniel Akwei Mingle thus making the 2nd Plaintiff and his siblings the owners of the property. 2. The Defendants are ordered to vacate the property within three (3) months after the delivery of this Judgement. 3. An order for perpetual injunction restraining the Defendants, their assignees, servants, workmen, privies and anybody claiming through them to ever lay any claim to any portion of the house or occupy same is hereby granted. 4. Costs including legal fees. (SGD.) H/W. ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) (DISTRICT MAGISTRATE) 15 16