Marley v Marley (A9/22/22) [2024] GHADC 714 (31 October 2024)

IN THE DISTRICT COURT AT LA HELD ON THURSDAY THE 31st DAY OF OCTOBER, 2024. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS MAGISTRATE SUIT NO: A9/22/22 LINDA MARLEY OF LA >>> PLAINTIFF VRS. VINCENT MARLEY OF LA >>> DEFENDANT _______________________________________________________________ PARTIES: Plaintiff present Defendant present JUDGMENT _______________________________________________________________ INTRODUCTION By a writ of summons the Plaintiff filed this instant suit on 22nd of April,2022 against the Defendant and prayed for the following reliefs; 1. An order from the Honourable Court to evict defendant from F90/7 La, for Plaintiff to recover her legitimate room. 2. Costs The Court differently constituted dispensed with the filing of pleadings and ordered the parties to file their witness statements on the 13th of June, 2022. The parties were also referred the parties to Court Connected ADR to attempt settlement but they were unable to settle their dispute. Hearing commenced on the 26th of March,2024 and was completed on the 19th of September,2024. DISCUSSION OF THE LAW In civil cases, the general rule is that the burden of proof rests upon the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of an issue. What constitutes proof was explained in the case of Akrofi v. Oteng Another [1989- 90] 2 GLR 244 at page 247 as follows; “After all what is proof? It is more than credible evidence of a fact in issue. This may be given by one witness, or by several witnesses; what matters is the quality of the evidence.” Section 14 of the Evidence Act 1975 (NRCD 323) succinctly supports the allocation of burden of proof in civil cases. It provides that: Except as otherwise provided by law, unless 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 that party is asserting.” In explaining the principles relating to the duty to produce evidence, the learned S.A. Brobbey states at page 31 of his book Essentials of Ghana Law of Evidence thus: “…This literally means “The Proof lies upon who affirms, not on him who denies, since by the nature of things, he who denies a fact cannot produce proof…” The learned jurist added: “…Where the Plaintiff makes a positive assertion at the start of trial, he bears the legal burden. At the same time, he bears the evidential burden of adduce evidence at the start of the trial…” More so, In Re Ashalley Botwe Lands; Adjetey Agbosu and Others v. Kotey and Others [2003-2004] 420 @ 444, the courts opined that: “… it is trite learning that by the statutory provisions of the Evidence Decree 1975 (NRCD 323), the burden of producing evidence in any given case is not fixed, but shifts from party to party at various stages of the trial depending on the issue(s) asserted and/or denied…” At the end of the trial, it is trite that the standard of proof is proof on the balance of probabilities, which may tilt in favour of the Plaintiff or Defendant. See the case of Poku v. Poku [2007-2008] 18 MLRG 1 @ 30 and Serwah v. Kesse [1960] GLR at 228. That being said I have a duty to examine the evidence on record and determine whether the parties have met the burden of proof which is on a preponderance of probabilities. EVIDENCE ADDUCED BY PLAINTIFF The Plaintiff entered the witness box and testified on oath by relying on her witness statement which was adopted as her evidence in chief on the 26th of March, 2023 and testified that the subject matter in dispute belongs to their mother and their mother built that room for her. That even though the Defendant has been given a room in their father’s house he has refused vacate from the subject so the Plaintiff can move into same. She also states that her mother sued the Defendant in 2010 and at the ADR it was agreed that he had to move out of the subject matter and yet he has refused to vacate. EVIDENCE ADDUCED BY DEFENDANT The Defendant also testified on oath by relying on his witness statement as his evidence in chief that the land on which the subject matter is built on belonged to his late grandmother and that in the year 1996 she gave him a portion her land so he could build a room. He states that he started doing menial jobs to raise money and with the help of his friends who were carpenters and masons, he built one room close to her grandmother’s room from 1996-1999. He further stated that he lived in the subject matter with the friend who roofed the room until 2005 when his father’s family asked him to move into their family house as custom demands. He also states that he moved out of the subject matter and rented the property to a seamstress for 4 years. He states that after the rent expired, he decided to rent the subject matter to three students of Labone Senior High School but his mother and his sisters instituted an action against him. He states that during the trial, they met a man at a Court Connected ADR session that made him thumbprint a document which stated that he was to give out the property to his mother and my sisters and that he had not read or agreed to the terms of that agreement. He states that he went ahead and rented the room to the Labone Senior High School and after they moved out the Plaintiff asked hi, to leave the room for her and her husband and their children but he refused as the subject matter belongs to him and has been in possession since 1999. LAW AND ANALYSIS OF THE FACTS It is clear that the Plaintiff is seeking to enforce the terms of settlement agreed to in the year 2020 when the Defendant was ordered to move out of the subject matter but failed to do so. The question to be answered is whether the mediation conducted at the Court Connected Alternative Dispute Resolution is final and binding on the Defendant. Mediation is defined in section 135 of the Alternative Dispute Resolution Act, 2010 (Act 798) as “a nonbinding process under Part Two in which parties discuss their dispute with an impartial person who assists them to reach a resolution.” It should be noted that although the mediation process is voluntary and nonbinding, which is that the parties may opt out of the mediation process at any stage of the proceedings, section 80 of Act 798 provides inter alia that, “… mediation ends when parties execute a settlement agreement.” It is this Court’s view that whilst the parties may end the mediation proceedings at any time or that the parties may decide at the end of the day not to be bound by the recommendations agreed to. In the instant case the Plaintiff, her mother and their sister instituted a case against the Defendant in suit No: A11/70/2020 and the parties were referred to Court Connected Alternative Dispute Resolution and they agreed to terms of agreement. It is clear from the terms of agreement that the parties exhibited an intention to be bound by same when they thumb printed the terms of agreement dated the 8th of June, 2020. Further, the mediation process having ended in the execution of a settlement agreement by the parties brought the parties under sections 81(3), 82, 52 and 57 of Act 798. It is also settled law that Arbitration and Mediation are based on consent of the parties. It follows that mediation proceedings require party autonomy and that parties largely retain control over the dispute-resolution process. Party autonomy is one of the essential features in ADR. Indeed, the primary characteristics of ADR is consent of the parties to voluntarily submit to the mediation process (that is the parties have to agree to engage in the ADR processes); see Section 81(3) of Act 798 provides: When the parties sign the settlement agreement, the parties shall be deemed to have agreed that the settlement shall be binding on the parties and persons claiming under them respectively. Thus, where there is evidence that the parties submitted to the mediation voluntarily, then the agreement is binding on the parties. Although the Defendant testified that he did not agree to give out the property as stated in the terms of settlement all he did was to repeat his assertions without adducing further evidence to corroborate his testimony. Accordingly, I hereby conclude that there is no evidence that the parties were coerced into the mediation and I accordingly I hereby hold that the agreement is binding on the parties. The next issue to be discussed is Whether or not the agreement may be enforced as a judgment of a court. It is trite learning that an arbitral award may be enforced as a judgment of the court with leave of the High Court. Section 82 of Act 798 also states: Where the parties agree that a settlement is binding, the settlement agreement has the same effect as it is an arbitral award under section 52. Section 52 of Act 798 also states as follow: Subject to the right of a party to set aside an award under section 58 of this Act, an arbitration award is final and binding as between the parties and any person claiming through or under them. Section 57 of Act 798 provides: (1) An award made by an arbitrator pursuant to an arbitration agreement may, by leave of the High Court, be enforced in the same manner as a judgment or order of the Court to the same effect. (2) Where leave is so given, judgment may be entered in terms of the award. (3) Leave to enforce an award shall not be given where, or to the extent, that a person against whom the award is sought to be enforced shows that the arbitrator lacked substantive jurisdiction to make the award. The sections stated above clearly shows that a mediation settlement once executed by the parties is not only binding but also enforceable as a judgment or order of the Court only with the leave of the High Court. It is unfortunate that the Plaintiff instituted the instant case in the District Court. It is also trite learning that where a statute has prescribed a special procedure for something to be done, it is only that procedure that must be followed. This principle was reiterated in the case of Boyefio v. NTHC Properties Limited [1997-98] GLR 768 at holding 3 as follows; “The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed.” See the case of Ayikai v. Okaidja III [2011] 1 SCGLR 205 The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed. The Plaintiff having failed in seeking leave of the High Court to enforce the agreement reached during mediation and hereby fails in his claim before this Court. The Plaintiff is advised to institute an action before the High Court. I hereby dismiss the claim of the Plaintiff and hold that this Court does not have the power to enforce the agreement reached at the mediation. There will be no orders at to cost SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE