Korkor v Owusua and Others (A9/37/22) [2024] GHADC 777 (5 November 2024)

IN THE DISTRICT COURT HELD AT AKIM ODA ON 5TH NOVEMBER, 2024 BEFORE HER WORSHIP ADELINE OWUSUA ASANTE (MS.) SITTING AS THE DISTRICT MAGISTRATE A9/37/22 ALICEKORKOR PLAINITFF OF AKIMMANSO VRS 1. DORA OWUSUA DEFENDANTS 2. ADU FRIMPONG 3. KOFI ABOAGYE OF AKIMMANSO JUDGMENT Introduction By an amended writ of summons, the Plaintiff instituted this action on 1st September 2022against theDefendants jointly and severallyfor thefollowing reliefs; 1. Declaration that the Plaintiff herein is the owner of a store room in the family house at Akim Manso. 2. An order ejecting 2nd Defendant from the said store room which was granted or rented to herby the 1st Defendantwithoutthe Plaintiff’sconsent, knowledge or approval. 3. Anyfurther order(s) as this Honourable Courtmay be deem fit and proper Page1of13 Plaintiff’sCase She is a farmer and trader resident in Akim Asene. She says 1st Defendant is her niece whilst 2nd Defendant is a resident of Akim Manso and 3rd Defendant is her biological brother. She says after the demise of her husband she came to settle at the family house with her young children at Akim Manso but there was no electricity power(light) in thehouse. She says she informed her mother, Akua Konadu about her intention to bring electricity power to the family house at Akim Manso. Her mother then told her brother Nana Yaw Koto (Akwamuhene of Akim Manso as he then was) and thereafter Plaintiff was given the approval to install electricity power (light) in the family house atAkim Manso. She further says her uncle Nana Yaw Koto, her mother, Op. Kwadwo Obeng and Papa Akran appreciated the electricity work done in the house by her and decided thatthe storeroomin dispute be gifted toher. He says one store room was also granted to her to live in with her children. She says she operated the storeroomin questionandsold provisionsincluding; ice cream, fan milk, bread and fried fish and in the course of working in the store room one of her children called Kwame Marfo became sick and as a result she sent the said child to Korle-buTeaching Hospital, Accra. She thereafter returned to Accra but on one of her visits to Akim Manso she says the 1st Defendant approached her and pleaded with her to allow her to work in the store room since she had graduated as a seamstress. She says since 1st Defendant once lived with her and being her niece, she gave the store room to the 1st Defendant who worked as a seamstress but later stopped and started selling provisions therein. She says on one occasion she came to Akim Manso and discovered that 1stDefendant has rentedout thedisputed storeroomtoanotherpersonand movedtoAccra. Page2of13 She says that the said tenant worked in the store room for a period of two (2) years and during that period the whereabouts of 1st Defendant could not be traced. She further says when she came to Akim Manso and saw that some people were working in the store room she confronted them and was told that the place was giventothemby 1stDefendant which she protestedvehemently. She says since the store room has been gifted to her long ago and she gave same to two (2) of her nieces namely Rose Abena Awuakyewaa and 1st Defendant, 1st Defendant has no right to rent her property to any person (s) without her consent, knowledgeorapproval. 1stDefendant’sCase She says she worked in the store room as a seamstress and later sold items such as sugar, gari plastic bowl etc. when her grandmother, Maame Akua Konadu gave her access to the disputed store room in 1986. She says she worked in the store room for a period of 28 years until the year 2013. Whilst working in the store room, her younger sister Yaa Gladys (who was disabled) became pregnant and the author of the pregnancy could not be traced. The said Yaa Gladys delivered a baby boy whom she took away and stayed with in Accra and when the child reached school going age, she informed 3rd Defendant being the head of family of her desire to enroll the child in school but was financially handicapped and it was decided and agreed that the said store room be rented to 2nd Defendant to enable money accrued from it be used tosend the child toschool. She says 2nd Defendant has been in the store room for the past nine (9) years to the knowledge of the Plaintiff. At a point the store room deteriorated and as a result together with 3rd Defendant and a family member, John Bosompem Donkor asked 2nd Defendant to assist the family financially to renovate the store room since it is a family propertyand therenovationtook place with theknowledge ofPlaintiff. Page3of13 She says 2nd Defendant obliged and assisted the family financially in the renovation of the store room and after completing the work, 2nd Defendant presented an expenditure of GHS 17,361.00. Arrangements with 3rd Defendant and her uncle, J.B Donkor were made to agree on the accepted monthly rent and the tenure when Plaintiff issued a writ against them. She says the property in dispute is the property of the Agona Clan (Akwamuhene) house of Akim Manso headed by 3rd Defendant herein. 2nd Defendant’s Case He says in 2014, 1st Defendant with the consent of 3rd Defendant rented a store room at Akim Manso purposely to be used as an NGO office. He says he worked without any interference whatsoeverfromany person(s). After working inthe storeroomfor ashortperiod, he converted same into an ICTshopin 2019. 2nd Defendant says in the year 2019 the store room started deteriorating and as a result told 1st Defendant to renovate same for him which 1st Defendant agreed to and said she will consult the 3rd Defendant since the store room is a family property. He further says 1st and 3rd Defendants gave him the approval to commence the renovationwork. He says he incurred GHS 17,361.00and informed 1stDefendant of the total cost spent onthe renovation. On 25th August 2022, when renovation work was completed, Plaintiff came to demand the keys to the store roomfrom his son, Boamah Asamoah Bernard. He says since he is not a family member, he prays for an order for the 1st and 3rd Defendants to pay GHS 17,361.00 incurred by him plus interest thereon at the prevailing bank rate. Page4of13 3rd Defendant’s Case He is the head of family of the Agona Clan of Akim Manso (Akwamuhene section) and joined this suit with leave of the Court. He says Plaintiff is his biological sister. He says the Plaintiff brought electricity power (light) to the house purposely for her business being; selling ofice cream, fanmilk and ice water. The family appreciated the work done by the Plaintiff but denied the claim that the store room was gifted to her since the said store room was built by his Uncle Op. Kwaku Nyarko alias Kwaku Pepe (Deceased) and not their mother. He further says after the death of Op. Kwaku Nyarko @ Kwaku Pepe he was appointed as head of family over allthefamily propertyincluding the disputed storeroom. He says the store room was granted to 1st Defendant by his mother, Maame Akua Konadu in the year 1986 after his mother had consulted him. He says when the store room was granted to 1st Defendant by Maame Akua Konadu, 1st Defendant worked asaseamstress and latersolditems such assugar, gari, plastic bowls amongstothers. He says on one occasion Plaintiff came to him purposely to take the keys of the store room but he denied her on grounds that the said store room is for the entire family and as thehead offamily, the onusliesonhim tokeepthe keys. He says when 1stDefendant started the negotiations for renovation workon thestore room with 2nd Defendant, 1st Defendant informed him and his younger brother, J.B Donkorand was givenapproval. He says when 2nd Defendant completed the renovation and produced the expenses he had incurred, he asked 1st Defendant to arrange with 2nd Defendant for further negotiations but Plaintiff instituted this suit. He says since the disputed store room is for the entire Agona (Akwamuhene’s house) of Akim Manso and as the Head of family, he is the sole person to manage its propertiesincluding this disputed storeroom. Page5of13 Issues 1. Whether or not the disputedproperty was gifted to the Plaintiff? 2. Whether or not 1st Defendant acting on the authority of 3rd Defendant could rent the disputedstore room to 2nd Defendant? Burden ofProof It is trite learning that in civil cases, he who asserts must prove and the standard is on the preponderance of probabilities. See sections 10, 11 and 12 of the Evidence Act, 1975, NRCD 323. In the case of Okudzeto Ablakwa (No.2) vs. Attorney General & ObetsebiLamptey(No.2)[2012] 2SCGLR845@ page867,the courtheld asfollows; “…the established rule, which is that he who asserts, assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975, NRCD 323, s 17 (a)….what this rule literally means is that if a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, aparty cannotwin acase in courtif the case is based on allegations, which he fails to prove or establish”. AnalysisofEvidence Plaintiff testified by relying on her Witness Statement dated 17th April 2023 which is essentially a recount of the averments in her statement of claim. In support of her case, she tenderedthe following exhibits; ExhibitsA&A1—Electricity bill in thenameofMr. B.KOwusu Page6of13 She called two (2) witnesses in support of her case, who further corroborated the assertions made by her. 1st Defendant testified by relying on his Witness Statement dated 21st March 2023 as his Evidence in Chief. His testimony was a repetition of the averments in his Statement of Defence. She however says she was given the key by Akua Konadu to occupy the store room since it had deteriorated and needed urgent renovation which she did. She says she worked in the store room for a period of 28 years to the knowledgeofPlaintiff and otherprincipal membersofher family at Akim Manso. 2nd Defendant testified and relied on his Witness Statement dated 22nd March 2023 as his Evidence In chief. His testimony was also arepetition ofhis Statement ofDefence. The following exhibitswere tenderedby 2nd Defendant; Exhibit 1 –A copy of Tenancy Agreement between 1st Defendant and 2nd Defendant dated 10th August2022. Exhibit 2, 2A, 2B, 2C, 2D, 2E, 2F, 2G, 2H, 2J, 2K- Photographs of the renovated store room. 3rdDefendant testified andrelied onhis witness statement dated 21st March 2023.His testimony was also a repetition of his Statement of Defence. However, he says the store room which was built by his uncle Op. Kwaku Pepe during his lifetime was initially occupied by someNigerians who left toNigeria in1969. He says his elder sister called Adwoa Addai entrusted the store room to her daughter Yaa Gyekyewaa to trade therein. When Yaa Gyekyewaa left the store room, Page7of13 he took possession of same and commenced “Parazone Omo” business. He says he left the store room in the care of his mother who later permitted Plaintiff to work in untilshe left to herfather’s hometowninAkim Asene. Issue 1: Whether or not the disputed property was gifted to the Plaintiff by her mother? In Opanin Kwabena Agyei & 2 Ors vs. Opanin Kwadwo Wiredu (Re Suhyen Stool) [2005-2006] SCGLR 424 @ holding 5, the SC held that the requirements of a gift at customarylaw are: 1. Theremustbe a clear intention on the part of the donor to make a gift. 2. Publicitymustbe givento the making of the gift. 3. The donee must accept the gift by himself giving thanks offering or convention aside enjoying the gift or by doing an act which fulfilled the objective that the giving of aseda meant to fulfill, namely the expression of gratitude and the symbolic acceptance of the gift”. InYoguo vsAgyekum[1966] GLLR482@ 493-494, itwas held asfollows; “A valid gift, under customary law, is an unequivocal transfer of ownership by the donor to the donee, made with the widest publicity which the circumstances of the case may permit. For purposes of the required publicity, the gift is made in the presence of independent witnesses, some of whom may be members of the family of the donor who would have succeeded to the property if the donor had died intestate and also, in the presence of members of the family of the donee who also would succeed to the property upon death of the donee on intestacy. The gift is acknowledged by the donee by the presentation of drink or other articles to the donor; the drink or articles are handed to one of the witnesses –preferably a member of Page8of13 the donee’s family, who in turn delivers it to one of the witnesses attending on behalf of the donor; libation is then poured declaring the transfer and witnesses share a portion of the drink or other articles. Another form of publicity is exclusive possession and the exercise of overtacts of ownership bythe donee after the ceremony......” From the above mentioned requirements, Plaintiff must establish a clear intention on the part of her mother, Akua Konadu to make a gift of the disputed store room to her. Plaintiff must also establish that the gift was published and finally that she provided aseda when she accepted the gift. From the evidence on record, there is no evidence of any intention on the part pf Akua Konadu to gift the said store room to the Plaintiff. Plaintiff also failed to show that a meeting or gathering was conveyed by Akua Konadu where she announced the gifting of the disputed store room to her. She only averred that prior to the making of the gift they all went to Yaw Koto and her siblings were thereafter informed bytheir mother. Plaintiff’s testimony that a meeting was convened by Akua Konadu where she announced that the store room was gifted to her was equally fraught with inconsistencies as in one instance she alleged her siblings were present and in another instance they were informed by their mother that the store room had been gifted toher. This is what ensued during crossexamination ofPlaintiff by 1stDefendant; Q: When the room was gifted to you how many people were present and how many of your siblings were alsopresent? A: We firstwentto myuncle, Yaw Koto who was then the Chief of Akwamu in 1978 and none of my siblings were present but when my siblings came back they were informed by my mother. Page9of13 In another vein, plaintiff when cross examined by 1st Defendant on the same day statedas follows; Q: Iputitto you that aproperty that belongsto afamily is notgifted to oneperson. A: Itis nottrue. When my mother gifted itto memy siblingswere present. There is also no evidence that witnesses were summoned to be present when the said gift was allegedly made to her. PW1 and PW2 although testifying that the store room was gifted to Plaintiff disclosed that they were not present when the gift was being made but rather it was common knowledge in the family household that the disputed store room was gifted to Plaintiff by her mother. Thus, their knowledge of thealleged gift made toPlaintiff washearsay. This is what ensued during crossexamination ofPW1 by 1stdefendant Q:When the shop was gifted to Plaintiffas you allegewere you present? A: No, Iwas notthere but those inthe house are aware. Q:If you were not present when the store room was gifted to the Plaintiff, then you cannotbe awitness for Plaintiff. A: You have to acceptit becauseall those inthe house are aware. Q:You claim when the shop was gifted to Plaintiffyou were not presentbut you are claiming that a piece of cloth was given as aseda. How did you know a piece of cloth was given when you were notpresent? A: It came to my knowledge when you went to plead with Plaintiff for the key to the store room. Page10of13 This is what alsoensued during crossexamination ofPW2 by 3rd Defendant; Q:Paragraph 6of your witnessstatement suggestsyou were nota witness. A: I was there as a witness when the room was gifted to Plaintiff and later Akua Konadu called Yaw Koto and I was informed about it that since Plaintiff’s husband is dead and has leftbehind children she isgiving the store room toher. Q:Which house did we sitfor the meeting togiftthe room to Plaintiff? A: It was the family house. When Plaintiff’s husband passedon she came to livethere. Q: You did say that you weren’t there when the meeting was held and now you claim you were presentso whichis which? A: When AkuaKonadu was gifting the room Iwas present. Q:How many years has itbeen nowsince itwas giftedto Plaintiff as you allege? A: About 40years now. Q:How many years were you as at that time ifyou say40years? A: About 25years as at that time. Q: In tradition when someone is gifting something to his children/someone there should be witnesses /the person’s children, so why is it that we the siblings were not present at the time you claimthe room was gifted to Plaintiff? A: My mother, the eldestamongstthe siblings was present. From the foregoing, I find and hold that during the lifetime of the late Adowa Konadu, the disputed store room was not gifted to the Plaintiff as she was not able to establish that a gift was made in accordance with the requirement’s spelt out in In ReSuhyen. Page11of13 Having determine that the disputed property was not gifted to Plaintiff, I will now delveonissue 2. Issue 2: Whether or not 1st Defendant acting on the authority of 3rd Defendant could rentthe disputedstoreroomto2nd Defendant? It is not in issue that 3rd Defendant has been acting in his capacity as the head of family for 15 years at the time of filing this suit. It is settled law that an alienation of a family land without the consent and concurrence of the principal members of the family is voidable and if the family is dissatisfied with the alienation, the family may act timeously and diligently to set aside the alienation. See Akyea-Djamson vs Duagbor&Ors [1989] DLSC520 It thus can been deem that the alienation by the 3rd Defendant of the store room being the head of the family is voidable as there is no indication that the principal members of the family met to approve the alienation/tenancy of the disputed room to2nd Defendant (Emphasis is mine) It is also noted that the 2nd Defendant has been in the disputed store room for 9 years as claimed by him and four (4) years as claimed by Plaintiff, it can therefore be presumed that the principal family members have acquiesced to the renting of the disputed storeroomtothe 2nd Defendant for the tenorstipulated in Exhibit 1. Thus, the Plaintiff cannot eject the 2nd Defendant from the disputed property being a family property since it does not belong to her and by reason of acquiescence to 2nd Defendant by the family. Conclusion Having considered the evidence in its entirety, this Court finds and holds that the Plaintiff has not been able to prove her case on the preponderance of probabilities Page12of13 and her claim fails in its entirety. I note that the Parties are blood related as they are family members and thereforeParties should bear their owncosts. (SGD) ADELINEOWUSUA ASANTE (MAGISTRATE) Page13of13