THOMPSON AND OTHERS VRS. THOMPSON AND ANOTHER (A11/62/21) [2024] GHADC 486 (29 October 2024)

CORAM: HER WORSHIP AMA ADOMAKO-KWAKYE (MS.), MAGISTRATE, SITTING AT THE DISTRICT COURT ‘2’, KOTOBABI NEAR THE KOTOBABI CLUSTER OF SCHOOLS, ACCRA ON 29TH OCTOBER, 2024. SUIT NO. A11/62/21 1. MAJORINE THOMPSON 2. BENONI THOMPSON 3. OBED ARTHUR :: PLAINTIFFS 4. ETHEL THOMPSON 5. CYNTHIA ARTHUR UNNUMBERED HOUSE, MAMPROBI-SEMPE VRS. 1. RICHARD ADDO THOMPSON :: DEFENDANTS 2. VICTOR AKWEI THOMPSON JUDGMENT INTRODUCTION The Plaintiffs issued a Writ of Summons on 1st February, 2021, against the Defendants. The case of the Plaintiffs per their Writ of Summons and Statement of Claim is that the parties are relatives from the Thompson family. According to them, there is a family property, the subject matter of this suit known as House number 430/3 Liberty Link, MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 1 Adabraka- Accra which property was managed by the Defendants’ late father during his life time. Plaintiffs asserted that Defendants’ father during his life time rented out part of the property and shared the proceeds among the beneficiaries including the Plaintiffs herein. However, after the death of Defendants’ father, Defendants have taken over the property and refused to share the proceeds as their late father was doing during his life time. It is their case that unless compelled by this Honourable Court, Defendants will continue to flout the family arrangements. They therefore claimed against the Defendants as follows: 1. Declaration that House Number 430/3 Liberty Link, Adabraka- Accra is family property. 2. The part of the property rented out and the proceeds shared among the known beneficiaries. 3. Perpetual injunction against the Defendants, their servants, workmen, assigns, heirs in succession and title and anyone claiming through them from dealing with, interfering or doing anything to the property without the authority of the Head of family and the principal elders. 4. Costs. Defendants defended the action by filing a Statement of Defence on 16th March, 2021 wherein they averred that the house, the subject matter of the suit is not a family property. They stated that the property was their father’s and he managed his own property. Defendants averred that neither their father nor they owe any duty whatsoever to give proceeds from the property to the Plaintiffs. It was their case that the Plaintiffs lack capacity to sue them for a declaration that the house is a family property since none of them is the Head of family. Defendants stated that this Honourable Court lacks jurisdiction due to the economic value of similar MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 2 properties situate in that part of Accra. According to them, Plaintiffs’ action is frivolous, vexatious and an abuse of court process. I must put on record that on the first day the suit was called on 17th March 2021, Counsel for the Defendants raised the issues of jurisdiction and capacity. I reproduce the relevant portions of the proceedings that day: “COUNSEL FOR DEFENDANTS: Respectfully we have filed a Statement of Defence yesterday and it is part of our contention that this Court lacks jurisdiction to hear the matter due to value jurisdiction by basis of LI 2211 and also that the Plaintiffs lack capacity. The value of the property should be around GH¢250,000.00. BY COURT: This Court’s monetary jurisdiction has been enhanced to GH¢ 500,000.00 by virtue of LI 2429 so if the property per Counsel’s argument is around GH¢250,000.00 it obviously implies this Court has jurisdiction to entertain the matter. In respect of the issue of capacity of the Plaintiffs, the Defendant should come properly with an application to enable Plaintiffs respond to same appropriately. The application should be filed and served early for consideration on the next adjourned date. Suit is adjourned to 27th April 2021.” On the next adjourned date being 27th April 2021, Counsel for Defendants submitted in Court that he would no longer file an application. I believe the legal issue of jurisdiction has been resolved and does not require any further discussion as an issue in this judgment. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 3 ISSUES From the pleadings and in order to determine whether the parties are entitled to the reliefs sought, the issues for determination by this Court are: i. Whether or not the Plaintiffs have capacity to sue. ii. Whether or not House number 430/3 Liberty Link Adabraka- Accra was owned by Victor Odonkor Thompson (deceased) or Richard Adotey Thompson (deceased). iii. Whether or not the Plaintiffs are entitled to benefit from the proceeds accruing from House number 430/3 Liberty Link Adabraka- Accra. I believe these issues should also settle the issues raised by Plaintiffs’ Counsel in his Written Address filed on 6th September 2024. EVALUATION OF EVIDENCE Before delving into the substantive matters, I find it very important to address two pertinent issues raised by Defendants’ Counsel in his Written Address filed on 9th October 2024. It is crucial to determine them first because they center on the very foundation of the suit; the Writ of Summons. According to Defendants’ Counsel, the Writ of Summons grounding this suit is highly defective, same not having been signed by the 2nd to 5th Plaintiffs and for not having endorsed on it the reliefs claimed by the Plaintiffs. Counsel made reference to Order 2 Rule 3(5) and (6), Republic v High Court Tema; Ex parte Owners of MV Esco Spirit (Darya Shipping SA Interested Party) [2003-2004] SCGLR 689 and Rockson v ILIOS Shipping Company & Another (2010) SCGLR 341. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 4 The case of Emmanuel Rockson v Ilios Shipping Company S.A. & Another [2010] DLSC 2533 dealt with situations where no substantive claim or cause of action has been endorsed on a Writ of Summons. His Lordship Dr. Date-Bah, JSC (Rtd.) made reference to His Lordship Dr. Twum JSC’s dictum in the case of Republic v High Court, Tema; Ex parte Owners of MV Esco Spirit (Darya Shipping SA Interested Party) [2003-2004] SCGLR 689 where he held that since the Writ of Summons had not been indorsed in accordance with the mandatory provisions of the High Court (Civil Procedure) Rules, 1954, it was a nullity and that the Forms referred to in Order 2,rr 3 and 6 and Order 3, r2 of the High Court (Civil Procedure) Rules, 1954 were designed to enable the defendant to know, at least, in very general terms, the substantive action being brought against them. It is trite that at the District Court, unlike in the High Court, a Plaintiff may apply to the Registry for a writ of summons to be issued out on his or her behalf. This application can be orally done or in writing (Rule 3(5) of Order 2 of C.I.59). From the application so made, the Writ of Summons is accordingly prepared by the Registry with all the necessary particulars provided indorsed on the Writ of Summons. In the present suit, it is apparent from the application for writ of summons to issue together with the expatiation of the particulars of claim evidenced by the Statement of Claim attached that the case of the Plaintiffs was set out and the reliefs being sought were also provided, with the Plaintiffs’ names indicated and their thumbprint and signatures clearly endorsed thereon. What the Registry therefore had to do upon the Plaintiffs’ application was to have endorsed the Writ of Summons with the reliefs which were stated by the Plaintiffs and the summary which they also provided and make the Plaintiffs sign or make their mark. These administrative lapses were not occasioned by the parties but wholly the fault of the Registry and their sins ought not be visited on any of the parties. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 5 I am particularly mindful of the fact that the Plaintiffs commenced the action themselves without a lawyer. It was subsequently on 23rd April 2021 that a notice was filed by G.N.K. Phixon-Owoo, Esq. as having been appointed by Plaintiffs to handle the conduct of the suit. Having provided all the necessary particulars which were required to be endorsed on the Writ of Summons, the failure of the Registrar to ensure that the Writ of Summons had been properly filled out, the cause of the defect would wholly be placed at her doorsteps and in the utmost interest of justice, the suit would not be declared a nullity. I would have reached a different conclusion if the Application for Writ of Summons to issue with the attached Statement of Claim had failed to disclose the reliefs sought and to bear the marks of the Plaintiffs. Having cleared this hurdle, I proceed to determine the main issues in the suit. The burden of persuasion in a civil matter requires that a party proves by a preponderance of the probabilities and 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 such a person asserts. (Sections 12 and 14 of the Evidence Act, 1975 (NRCD 323)). The burden of producing evidence of a particular fact is also on the party against whom a finding on that fact would be required in the absence of further proof. It is originally on the party with the burden of persuasion as to that fact. (Section 17 of NRCD 323)). Put differently, the person who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence and it is only when such a party has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if it becomes necessary. The Supreme Court in the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882 at 900 rendered itself thus on the burden of proof in civil suits as follows: MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 6 “Our understanding of the rules in Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favorable verdict.” The Court further held in the case of GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458 that: “since the enactment therefore, except otherwise specified by statute, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue... Hence, by virtue of the provisions of NRCD 323, in all civil cases, judgement might be given in favour of a party on the preponderance of the probabilities...” The parties therefore had the onus of discharging the burden of producing sufficient evidence in respect of the claims put forth by them on a balance of probabilities. Plaintiffs’ Case The 3rd Plaintiff testified for himself and on behalf of the other Plaintiffs by relying on his Amended Witness Statement filed on 24th September, 2021. His testimony was that father of the 1st Plaintiff and grandfather of 2nd to 5th Plaintiffs and Defendants, Victor Odonkor Thompson, owned the house in dispute, H/No. 430/3, Liberty Link, Adabraka, Accra which contains seven rooms. He testified that the late Victor Odonkor Thompson was survived by his children namely: Richard Adotey Thompson (Defendants’ father), Victor Adotei Thompson (father of 2nd and 4th Plaintiffs), Victoria Adoley Thompson, Florence Adorkor Thompson, Cecilia Adokailey Thompson (mother of 3rd and 5th Plaintiffs) and MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 7 Majorine Adoley Junior Thompson, the 1st Plaintiff herein who is now the sole surviving daughter. According to him, after the death of Victor Odonkor Thompson, his customary successor, Emmanuel Kpakpo Thompson (Teacher Thompson) distributed the rooms in the house to his children and upon the death of their parents, 2nd, 3rd, 4th and 5th Plaintiffs became beneficiaries of their parents’ share in the disputed property. He testified that since there were tenants occupying the rooms, the beneficiaries agreed to put Defendants’ father in charge of the management of the property in dispute and he was therefore in charge of receiving rents from tenants and paying property rates and other bills in respect of the property from the monies received and the surplus was shared amongst the siblings. He tendered in evidence Exhibit ‘A’ to evidence the distribution made. He also tendered in evidence Statements of Account from Ghana Water Company Limited as Exhibits ‘B’ and ‘D’ bearing the name of Mr. Victor Odonkor Thompson. He stated that it was Victor Odonkor Thompson who applied to the Ghana Water Company for the supply of water to the property and that shows that the property belongs to him and not the Defendant’s father. His evidence was that the Defendants had been collecting rent after the death of their father and they had been keeping the monies without distributing it the way their father did. Plaintiffs called one Rita Adorkor Thompson to testify for them in respect of this suit. PW1 filed her witness statement on 24th March, 2023 and same was adopted by the Court as her evidence-in-chief. Her testimony was that she is a member of the Thompson family and the daughter of the late Emmanuel Pappoe Thompson who was the younger brother of the late Victor Odonkor Thompson, her paternal uncle. According to her, her father during his life time was the head and lawful representative of the Thompson family. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 8 Her testimony was that the late Victor Odonkor Thompson died possessed of the disputed property at Adabraka and another property at Mamprobi. She stated that the property in dispute was under construction when her uncle died and her father completed it with the benefits received for the estate of the late Victor Odonkor Thompson. PW1’s testimony was that her father being the head of family and the customary successor of the late Victor Odonkor Thompson gave the property at Mamprobi to the Defendants’ father and his uterine siblings namely: Victoria, Florence, Richard, Victor and Cecilia who were all children of Mrs. Comfort Ayorkor Thompson to the exclusion of the 1st Plaintiff reason being that she and her siblings were from the same mother. According to her, 1st Plaintiff was given two rooms in the disputed property since she was not given a share in the property at Mamprobi. PW1 testified further that the Plaintiffs have since the distribution of the two properties lived in peace until the demise of her father. It was her case that the property in dispute does not belong to Defendants’ late father but to their grandfather. Defendants’ Case 1st Defendant testified by relying on his witness statement filed on 30th July, 2021. His testimony was that the subject matter property was built by his father without any assistance from any person. He stated that his father rented the rooms to enable him pay for the costs he incurred in building the structure and also used some of the proceeds to cater for his mother, Comfort Ayorkor Laryea (Mrs. Thompson). According to him, history has it that the land on which the property in dispute is situate was originally owned by his grandmother, Mrs. Comfort Ayorkor Thompson, who made a customary gift of same to her son, Richard Adotey Thompson (his father) in the MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 9 presence of her husband, Victor Odonkor Thompson and others. He stated that after giving the requisite aseda of a bottle of schnapps, his father promised to provide for the needs of his mother during her old age and accordingly, he used the rents from the buildings he erected to cater for his mother until her demise in 1992. 1st Defendant testified that his father used to collect rents from his property himself until 2011 when his father introduced him to the tenants as his lawful agent to receive the rents, and he had since then been collecting the rents for his father until his demise in 2017. Subsequently, he still collected rents from the tenants and the tenants of his mother, Mrs. Elizabeth Barkey Thompson (nee Cleland). 2nd Defendant also testified by relying on his witness statement filed on 30th July, 2021 and supplementary witness statement filed on 7th December 2021. According to him, their father put up a two-bedroom sandcrete building in or around 1961 and later erected a four-room wooden structure, doing all these with his own financial resources. It was his testimony that their grandmother, Comfort Ayorkor Laryea made a customary gift of the land to their father Richard Adotey Thompson for him to develop same to look after himself, his family and where necessary, his mother. He stated that the 1st Defendant was mandated by their father to collect the rents for him when he became too weak to do so himself as he previously did. He tendered in evidence the death certificate of his deceased father and property rate payment receipts. To further establish their claims, Defendants called two witnesses; Joseph Ampofo Owusu (DW 1) and Alexander Dankwa (DW 2). DW1’s evidence was that he met Defendants’ father, Richard Adotey Thompson when he was searching for a place to trade and the latter gave him a space in front of the property in dispute where he agreed to rent for his shop. He tendered in evidence documents evidencing payment of rents MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 10 made to the late Richard Adotey Thompson and the Defendants as Exhibit ‘3’ series. According to him, he paid all his rents to the late Richard Adotey Thompson since he was his landlord and after his death, continued to pay same to Richard Addo Thompson. He stated that since the year 2000, the Defendants’ father and subsequently, the Defendants, had been his landlords. DW2 testified that he rented a room in the property in dispute from Defendants’ father and has occupied same to this day since 1973 with his wife and children. He further stated that he paid all his rent to Defendants’ father until he introduced 1st Defendant to him as the one to take the rents. He tendered in evidence copies of documents to evidence the payment of rents made to Defendants’ father during his lifetime and to his children. Issue one: Whether or not the Plaintiffs have capacity to sue Capacity is key in every action since it gives rise to the issue of the court’s jurisdiction to entertain an action. It can be raised by a party or suo moto by the Court. There are several cases which have pronounced on the effect of lack of capacity of a party to a suit. Where one lacks capacity to sue, the Writ and all subsequent proceedings founded on it are rendered a nullity. See the cases of The Republic v Accra High Court; Ex parte Aryeetey [2003-2004] SCGLR 398 per His Lordship Kpegah JSC, Nii Otu Akwetey IX & Ors v. Seth Otu Okley & Ors [2019] 136 GMJ 198 and Kasseke Akoto Dugbartey Sappor v. Very Rev. Solomon Dugbartey Sappor & 4 Ors. [2019] 146 GMJ 230 at page 247. It is trite that a plea in respect of capacity is not concerned with the merits of a case so that where a Plaintiff’s capacity is challenged that person has to establish that he or she is clothed with the requisite capacity and not rely on the excuse of having a cast iron case. See the cases of The Republic v Accra High Court; Ex parte Aryeetey [2003-2004] SCGLR 398, Nii Stephen Maley v. East Dadekotopon Dev. Trust [2018] 117 GMJ 97 @ 123 C.A. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 11 In the case of Dorothy Ama Akyaa Owusu v. Kennedy Agyepong [2019] 144 GMJ 189 the Court of Appeal speaking through His Lordship Gyaesayor J.A. (of blessed memory) held at age 203: Capacity to take an action is central to every litigation. For a party to successfully take action in civil litigation, he or she must be clothed with the requisite power to take the said action. He or she must have a cause of action against the person he or she is suing. It has been said that capacity lies at the root of every matter and it is a point of law which can be taken at any stage. See Dotse JSC in the case of Fosua & Adu Poku v. Dufie (Deceased) & Another (2009) SCGLR 310 where he stated that “want of capacity is a point of law which if raised goes to the root of the action.” It is apt to also quote at this point the dictum of His Lordship Aduama Osei JA in the case of Ama Serwa v Adu Gyamfi [2018] 124 G.M.J. 36 @ 67 when he delivered the lead judgment: “[T]he question which a challenge to capacity raises is whether the person suing has a vested interest in the subject matter of his claim. Does he stand in such a relationship with the subject matter of the claim as to entitle him to a right of appearance in a court of law in respect of it? The focus here is on the subject matter of the claim and how the plaintiff relates to that subject matter. Because lack of capacity calls for the dismissal of an entire action, it is obviously a serious matter for a plaintiff to be told that he lacks capacity.” [emphasis mine] The Plaintiffs’ case is that the subject matter property was owned by the late Victor Odonkor Thompson and they are beneficiaries of his estate since the 1st Plaintiff is his daughter and the parents of the 2nd to 5th Plaintiffs who are now deceased were also his children. From their evidence, the customary successor of the late Victor Odonkor MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 12 Thompson has passed away but even prior to his demise, he is said to have distributed the estate of the late Victor Odonkor Thompson to his children. There is no dispute at all from the evidence that the 1st Plaintiff is the daughter of the late Victor Odonkor Thompson. There is also no dispute that the father of the 2nd and 4th Plaintiffs, the mother of the 3rd and 5th Plaintiffs and the father of the Defendants were all children of the late Victor Odonkor Thompson. Taking a cue from the Ama Serwa case cited supra, the question this Court asks itself is whether the Plaintiffs have a vested interest in the subject matter of their claim and again, whether they stand in such a relationship with the subject matter of the claim as to entitle them to a right of appearance in a court of law in respect of it? The Plaintiffs being a child and grandchildren (and beneficiaries) of the estate of the late Victor Odonkor Thompson, they have immediate interest in any property which was for him and for that reason, they have capacity to institute or defend any action to protect his estate. I am mindful that the Court is yet to go into the merits of the case to determine the actual ownership of the property but at this stage, prima facie, the Plaintiffs have capacity to mount this action per the case they have submitted to Court. Issue two: Whether or not House number 430/3 Liberty Link Adabraka- Accra was owned by Victor Odonkor Thompson (deceased) or Richard Adotey Thompson (deceased) AND Issue three: Whether or not the Plaintiffs are entitled to benefit from the proceeds of House number 430/3 Liberty Link Adabraka- Accra I intend discussing these two issues together. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 13 From the evidence adduced before this court, I have found as a fact that the parties are all members of the Thompson family. It is not in dispute that the 2nd,3rd,4th and 5th Plaintiffs as well as the 1st and 2nd Defendants are all grandchildren of Victor Odonkor Thompson who was married to Comfort Ayorkor Laryea (also referred to as Mrs. Comfort Ayorkor Thompson). I have found as also established that Victor Odonkor Thompson and Comfort Ayorkor Laryea during their life time gave birth to six children namely: Richard Adotey Thompson, Victor Adotei Thompson, Victoria Adoley Thompson, Florence Adorkor Thompson, Cecilia Adokailey Thompson and Majorine Adoley Junior Thompson who is the 1st Plaintiff in this present suit. 1st Plaintiff is therefore the aunt of the 2nd,3rd,4th and 5th Plaintiffs as well as the 1st and 2nd Defendants The late Victor Odonkor Thompson was therefore survived by the abovementioned children upon his death intestate. What is in dispute however is whether House number 430/3 Liberty Link, Adabraka- Accra, the subject matter of this suit was owned by Victor Odonkor Thompson as claimed by the Plaintiffs or Defendants’ father, Richard Adotey Thompson as asserted by the Defendants. According to the Plaintiffs, after the death of Victor Odonkor Thompson, his customary successor by name Emmanuel Kpakpo Thompson distributed the rooms in the house, the subject matter of the suit to his children. Therefore, upon the death of their parents, 2nd, 3rd, 4th and 5th Plaintiffs became beneficiaries of their parents’ share in the disputed property. It was their case that Defendants’ father was made a trustee and a caretaker of the subject matter in dispute. Defendants’ father was therefore the one taking rents in respect of the property in dispute after which he shared same among the beneficiaries, the Plaintiff herein. When 3rd Plaintiff was questioned by Counsel for the Defendants, this is what he had to say: MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 14 Q: What was he to be a trustee over? A: The property. He was mandated to collect the rents from the tenants, paid the statutory fees and shared the remaining balance to his siblings. Defendants on the other hand challenged these allegations made by the Plaintiff. According to them, their father, Richard Adotey Thompson built the house in dispute with his own resources without any assistance from the family. They added that the land on which the property in dispute is situate was gifted to their father by his mother, Comfort Ayorkor Laryea. They therefore averred that it is not true that their father was made caretaker of the property in dispute for the benefit of the beneficiaries as Plaintiffs want this Court to believe. Even though the Defendants claim their deceased father was not a caretaker of the property in dispute but was the owner, there is evidence on record to support the assertions of the Plaintiffs in respect of the sharing of the proceeds from the house, the subject matter of this suit. It is clear from Plaintiffs’ Exhibit ‘A’ that the Defendants’ father was giving account of his stewardship in respect of the property in dispute to his siblings after which a distribution of the proceeds was made. When 2nd Defendant was questioned in respect of this matter, he was unable to lead cogent evidence to dispute same. Instead, his response made certain the claims of the Plaintiffs. The following as happened under cross examination of 2nd Defendant is worth reproducing: Q: Yesterday you had a look at Exhibit “A” not so? A: Yes I did. Q: And there is a column headed sharing in Exhibit “A”. Do you see it? A: Yes please. Q: On the left you see Victoria, Florence, Richard, Victor and Cecilia, not so? MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 15 A: Yes I do. Q: There is an amount assigned to each of them not so? A: That is so. Q: Your father Richard Thompson is one of those persons, not so? A: That is so. Q: So you see your father was giving an account of his stewardship to his siblings, not so? A: If my father is giving a vivid account of his stewardship, he died in 2017, all accounts from when he took over was to be presented and not only for 2005. My father never gave them money every year and the reason is that whenever they are in hardship, they call on my father to assist, then my father would ask for time to get something for them when he gets, he calls all of them and shares amongst them but 1st Plaintiff was not part. It is only the siblings from the paternal side. They mostly send Victor the 1st child to come for the money. Q: In Exhibit “A”, your father had indicated to the other siblings the amount he himself benefited from the totality of the rent he himself collected, not so? A: That is so. From this piece of evidence, it is evident that Defendants’ father during his life time gave account of his stewardship of the property in dispute to his siblings and even shared the proceeds from the property with them. Exhibit ‘A’ with its contents was not discredited. This Exhibit dated and signed on 16 January 2006 is a handwritten entry made by Defendants’ father titled “2005 Accounts”, presupposing that there is the rendering of accounts at certain intervals by him. It has MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 16 clearly set out amounts received from the block building and wooden building for the year stated and amount for water. The yearly rate for Adabraka and Mamprobi properties have been deducted and there is a portion therein titled ‘Sharing’ and those listed are Victoria, Florence, Richard, Victor, Cecilia with amount for Victoria and Cecilia being ¢289,833.33 each and amount for Florence, Richard, Victor being ¢386,444.44 each. It is also indicated beneath the accounts that “I will let you have that of the container when I receive it.” If indeed the property in dispute was owned solely by the Defendants’ father, how then will he see the need to give account of same to his siblings? Besides, the owner of a house owes no obligation whatsoever to give account to any person as to how he spends the proceeds from his rented house or how much benefit he made from same. Unless of course, he has been put in a position of trust to represent the interest of the other person as well as his own interest. Exhibits B and D which are Statements of Account from Ghana Water Company Limited (GWCL) for the period 1 January 2020 to 15th September 2021 in respect of the property in dispute has the name of the customer to be Victor Odonkor Thompson. No document was produced to counter this information that Victor Odonkor Thompson’s name is what is in use in the system of the GWCL for the property which is the subject matter of this suit. Although Victor Odonkor Thompson died as far back as 25th November 1958 as evidenced by Exhibit ‘1’, his name is what has been used at GWCL and in the absence of any other document bearing a different name, I am inclined to believe that his name was used by whoever applied for water supply even after his demise, since he was the owner of the property. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 17 Defendants’ Counsel attached to his Written Address two pages of the Ghana Water and Sewerage Corporation Act, 1965 (Act 310) to show that the Corporation was established by the 1965 Act with its objects also provided by the Act. It is important to state that there was already in existence a Water Authority which as part of its functions was to supply water from the waterworks. The establishment of the Ghana Water Sewerage Corporation in 1965 did not therefore imply that there was no supply of water in Ghana prior to the establishment of the Corporation. Act 310 itself stated that it was repealing The Waterworks Ordinance (Cap. 67). Counsel at page 5 of his Address raised a very important point in relation to why Victor Odonkor Thompson’s name is what Ghana Water Company Limited has in its records and not the name of Madam Comfort Ayorkor Thompson nee Laryea, the alleged donor of the land. This observation is very valid and sound in my opinion. This Court finds it difficult to understand why Defendants’ father would use his father’s name rather than his own name to apply for water supply to the house allegedly built by him. Defendants’ father did not even use his mother’s name to apply for same since Defendants want this Court to believe that she gifted the land on which the property in dispute is situate to their deceased father. This is what transpired during cross examination when 1st Defendant was questioned in relation to this: Q: The name of the customer in connection with the water with Ghana Water Company Limited is one Victor Odonkor Thompson, not so? A: That is so. When water was supplied to the house, Victor Odonkor Thomspon, passed on long ago. His name at Ghana Water Company does not mean he owns that property. Q: The land according to you was gifted to your father in 1957. Not so? MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 18 A: Yes. Q: And he built the structures thereon on 1961/1962 and your grandfather passed on in 1958, not so? A: Yes please. Q: Yet your father found it necessary to apply for water supply in the name of his late father and not the mother who gifted him the land, not so? A: I am not my father so I do not know what necessitated him to use his father’s name and not his mother’s name. Defendants want this Court to believe that their father owned the property, the subject matter of this suit, yet when their father was applying for water supply from the Ghana Water Company Limited, their deceased father found it necessary to apply for same in the name of his father who had then died and not even his mother who allegedly gifted him the land. Supposing, without conceding that Defendants’ story is true, they failed to produce sufficient evidence to establish same. There was nothing to show that their father owned the property in dispute except for the fact that he collected rents in respect of same which has already been found by the Court to have been part of his duties as the steward of the property in dispute. Exhibit 2 series which were tendered by the 2nd Defendant are property rate bills and receipts of payment for the years 2017, 2018, 2020 and 2021 in respect of the disputed property with the name on the bills and receipts being ‘Mr. Thompson’. Regrettably, this is not helpful at all in proving that the Defendants’ father is the owner of the property. I say so because not only are the two people who are being touted as owners of the property known as Thompson, but almost all the parties as well are known as Thompson. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 19 The name on Exhibit 2 series on the face of the documents cannot therefore be pinned down to a specific person. Counsel submitted on the fourth page of his Address that paragraphs 3 and 4 of DW1’s witness statement clearly shows that the disputed property belongs to Defendants’ father. Unfortunately, I do not see that the said paragraphs emphatically prove ownership of the property. What those paragraphs prove is the fact that the Defendants’ father rented out the frontage of the disputed property to DW1. As a matter of fact, DW1 himself confirmed that he did not know who built the property. This ensued when he was under cross examination: Q: And in the year 2000 the property in issue was already in existence. A: That is so. Q: But you cannot tell this Court the very person who built this property before you went in. A: I do not know who built the property before I went in. Q: But you did pay some rent to late Richard Thompson. A: That is so. I made rent payment to him before he died. Q: You cannot tell the Court how the late Richard Adotey Thompson used the money he collected from you. A: No. Q: And it is true that the money you paid to him was in respect of the ground on which you have your metal container. A: That is so. Q: Again the rent you paid to him has nothing to do with the building you met on the land. A: That is true. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 20 Notwithstanding Defendants’ claims that their deceased father owned the property, the subject matter of this suit, Defendants were unable to lead cogent evidence to convince the Court to believe their story. Defendants had stated that their father during his life time was a Surveyor and Draughtsman. Yet, from when he was allegedly gifted the land on which the property in dispute is situated by his mother in 1957 up until he passed away in 2017, he did not see the need to prepare any documentation in respect of the land or buildings. This is what happened during cross examination of 1st Defendant by counsel for the Plaintiffs: Q: Prior to the death of your father what was the occupation of your father? A: Surveyor. Q: I suggest to you that your father being a surveyor knew the importance of land documentation. A: My father was a surveyor. I am not so I cannot tell the importance or otherwise of land documentation. Q: From the year in which the land was allegedly given to your father in 1957 to when your father passed on in 2017, he did not find it necessary to prepare documents on the land allegedly gifted to him, he being a surveyor. A: I cannot speak for my father. He is dead and gone. Q: As you stand here, your father has no document covering this land, not so. A: I have not seen any document so I cannot tell. Further cross examination revealed as follows: Q: You will agree with me that your father had many years of experience as a surveyor and draughtsman. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 21 A: Correct. Q: As a surveyor, part of his schedule was to prepare site plans in respect of parcels of land, not so? A: That is so. Q: Did you or have you ever come across any site plan in the name of your father in respect of this property in his things? A: I have not gone through his things so I have not seen anything like that. Q: Is it your case that since this matter started, you have not found it necessary to go and look for documents amidst your father’s property in respect of the property. A: For about 28 years, I have not been in the same house with my father. When he was alive, I was only going there. When the case started, I searched through his items but I never saw anything. Q: I suggest to you that if indeed and in fact this property was gifted to your father by his late mother, your father who was a surveyor and draughtsman would have at least prepared a site plan in his name. A: If it is true my father prepared a site plan on that property, I have not been with him for over 28 years so I would not know where the documents are. Throughout cross examination, Defendants were unable to lead cogent evident to make their claim more probable. In the mind of the Court, having regard to the occupation of Defendants’ father during his life time, he would have, if for nothing at all prepared a site plan in his name if certainly the property, the subject matter of this suit was gifted to him as Defendants wants this Court to believe. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 22 CONCLUSION This Court finds the story of the Plaintiffs more probable than that of the Defendants. There is sufficient evidence to show that House number 430/3 Liberty Link, Adabraka- Accra was owned by Victor Odonkor Thompson during his lifetime as claimed by the Plaintiffs and not Richard Adotey Thompson, the Defendants’ father. Being the property of Victor Odonkor Thompson, same devolved to all his children upon his death intestate and they are the rightful beneficiaries who are entitled to share in the proceeds accruing from the property. Since they have passed away with only the 1st Plaintiff being the surviving child, the portion of the estate due the deceased children are to devolve unto their children which includes the other Plaintiffs and Defendants together with the other grandchildren of the late Victor Odonkor Thompson. It is important to note however that the Court was not satisfied in respect of the evidence adduced concerning a sharing of the property by the late Emmanuel Pappoe Thompson. No compelling evidence was adduced to show which particular persons were the beneficiaries of that alleged sharing and what exactly each beneficiary got. This case has been pending since February 2021 and the time spent in Court with the attendant expenses incurred should not count for nothing but ought to be compensated for. I believe that the award of cost would be in order. The Court therefore finds and holds as follows: 1. That the property in dispute being House Number 430/3 Liberty Link, Adabraka- Accra is the property of the late Victor Odonkor Thompson. 2. That the Defendants are to account for the proceeds received from the disputed property from 2017 when their father passed away to date, by 30th November, 2024, for the proceeds to be shared among the beneficiaries. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 23 3. Cost of GH¢ 10,000.00 is awarded for the Plaintiffs against the Defendants. AMA ADOMAKO-KWAKYE (MS.) MAGISTRATE Counsel G.N.K. Phixon-Owoo, Esq. for the Plaintiffs. Victor Ocansey, Esq. for the Defendants. MAJORINE THOMPSON &4 ORS. V.RICHARD ADDO THOMPSON & ANOR. 24