Salis v Mohammed (A1/9/24) [2024] GHADC 753 (5 November 2024)

CORAM: IN THE DISTRICT COURT, ACHIMOTA – ACCRA HELD BEFORE HIS WORSHIP PRINCE OSEI OWUSU SITTING AS DISTRICT MAGISTRATE ON 5TH NOVEMBER, 2024 SUIT NUMBER: A1/9/24 AMINU SALIS - PLAINTIFF GA-396-5747 DARKUMAN VRS DAUDA MOHAMMED - DEFENDANT ............................................................................................................................. TIME: 9:08AM PLAINTIFF PRESENT DEFENDANT PRESENT ADU HACKMAN ESQ. FOR PLAINTIFF ............................................................................................................................. JUDGMENT Per a writ of summons issued by the Plaintiff on 4/4/2024, the Plaintiff claimed against the Defendant the following reliefs; P age 1 | 5 a) A declaration that Plaintiff is the beneficial owner of all piece of land described in paragraph 3 of the statement of claim. b) Recovery of possession c) Cost including legal fees It’s the Plaintiff’s case per the attached statement of claim he is the beneficial owner of a property located at Taifa. The Plaintiff averred that his late father died intestate on 20th April, 2020. The Plaintiff stated that the late father left two houses, one at Darkuman and the other at Taifa. Plaintiff further stated that the family appointed him and the surviving spouse to help in obtaining Letters of Administration. Plaintiff averred that the he was given land adjourning to the 3 bedroom house at Taifa, whilst three bedroom was given to the Defendant. The Plaintiff further averred that the Defendant became aggrieved and stated that he should be entitled to both house and the vacant land since he is the oldest son. In his statement of defence filed on 16/10/24, the Defendant averred that the property originally belonged to their late father and after his death, the family is yet to do distribution of the inheritance. The Defendant further averred that if there would be any meaningful distribution, then he must take 3 bedroom house and the adjourning land as the eldest son. Issues From the foregoing, it is evident that the main issues for consideration by the Court are; P age 2 | 5 1) Whether or not there is Plaintiff is entitled to the claim of the Land adjourning the three bedroom house at Taifa. 2) Whether or not Defendant is entitled to the adjourning land of the three bedroom house at Taifa. Evaluation of Evidence and Resolution of issues It is trite that in civil cases, the general rule is that the party who in his/her pleading or writ raises issues essential to the success of his/her case assumes the onus of proof. The one who alleges, be he the Plaintiff or Defendant assumes the initial burden of producing evidence. It is only when he has succeeded in producing evidence that the other party will be asked to lead rebuttal evidence, if need be. Proof lies upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See the following; SC II (1) & (2), 12 (2) AND 14 OF THE EVIDENCE ACT 1975 [NRCD 323] AS WELL AS THE CASE OF TAKORADI FLOUR MILLS V SAMIR FARIS [2005 – 2006] SCGLR at 900. GIHOC REFEGERATION HOUSEHOLD v JEAN HANNA ASSI [2005 – 2006] SCGLR 458, T. CHANDRIAM v TETTEH [2018] 120 GMJ 112 at 147 CA per AGNES M.A DORDZIE, JA and AIR NAMIBIA v MICRON TRAVEL [2015] 91 GMJ 173 at 191 CA per Kanyoke JA. The Plaintiff had the onus of discharging the burden of producing evidence in respect of his claim on a balance of probability. The Plaintiff testified on 13/8/24. His evidence was essentially the same as the averments in his pleadings save for the fact that he exhibited copy of the vesting assent. The Plaintiff’s evidence was that after the death of their father, the family approached him and their mother to apply for letters of administration to administer the estate of his late father. He testified that his father left P age 3 | 5 behind a five (5) bedroom house at Darkuman, another three bedroom house at Taifa and a vacant land attached to the three bedroom house at Taifa. He further testified that his brother being the Defendant was given the three bedroom house at Taifa and he the Plaintiff has given land attached to the three bedroom house. Plaintiff stated that a vesting asset was prepared in his name and attached copy of the vesting asset as Exhibit ‘A’ and started to build a wall to partition the land from the building. The Defendant after filing statement of defence failed to appear in Court to either testify or cross examine the Plaintiff. From the evidence adduced, I found as a fact that the parties father left a property at Taifa. It is not disputed that the Defendant was given the three bedroom house. This ensued under cross examination of the Plaintiff by the Court; Q. Apart from the vacant land at Taifa were you given any property of your late father? A. No My Lord Q. What property was given to the Defendant in this case? A. Three bedroom house Q. Has the vacant land in dispute been developed? A. Yet to From the evidence adduced in the trial, it was quite clear that the Defendant was given three bedroom house without the land. I have no hesitation in concluding on the 1st and 2nd issues that the Plaintiff was given the land after the death of the parties’ father. Conclusion P age 4 | 5 Having regard to the evidence adduced, the Court hold that the Plaintiff has discharged the burden of proof on him and judgment is given in his favor accordingly. Cost of GH¢ 1,000.00 is awarded against Defendant. SGD HIS WORSHIP PRINCE OSEI OWUSU DISTRICT MAGISTRATE P age 5 | 5