IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
KWAKU OPOKU AND AKWASI MENSAH - (Defendants/Appellants)
THERESA BADU YEBOAH AND GEORGINA DENKYI - (Plaintiffs/Respondents]
DATE: 13 TH NOVEMBER, 2018
CIVIL APPEAL SUIT NO: H1/46/18
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, M. WELBOURNE JA
VIVIAN MFODWAA GYANG FOR PLAINTIF/RESPONDENT
F. K. BOUR FOR DEFENDANT/APPELLANT
The plaintiff/respondents hereinafter referred to as the plaintiffs issued this writ against the defendant/appellants also referred to as defendants for the following reliefs: -
1. A declaration that H/No. Plot 62 Block CA, Anomngye-Kumasi is the self acquired property of the late Nana Kwadwo Addai @ Anthony Owusu
2. Recovery of possession
3. General damages for trespass
4. An order for perpetual injunction restraining the defendants, their agents, servants and any persons claiming title through them from interfering with the deceased property in dispute.
The plaintiff’s are both widows of Late Nana Kwadwo Addai @ Anthony Owusu, 1st defendant the head of family of Anthony Owusu and 2nd defendant a member of the late Anthony Owusu family.
The plaintiffs aver in their statement of claim that their deceased husband died on 25th April 2006 and they applied for Letters of Administration together with one Kingsley Owusu. 1st defendant and one Samuel Owusu filed a caveat against the grant of the Letters of Administration but which was later removed subject to two properties being removed from the inventory. They are:
1. H/No. Plot 62 Block CA, Anomangye-Kumasi &
2. H/No. 5A Block G, Mpatasie-Ashanti.
The plaintiffs averred that the deceased husband was married to one other women, Madam Abena Ampong who is also deceased. The deceased husband in his life time run a business of brushes and his company is St. Anthony Brushes Product Company supplying brushes to District Assemblies.
They aver that in 1975 the deceased from his own resources acquired Plot No.62 Block CA from Odikro Nana Kwabena Dankah and by 1982 he had finished building this house at Anomagye, Kumasi. Throughout the deceased’s lifetime, he exercised acts of ownership and control over the said houseincluding renting some rooms out to tenants. The deceased built another house on Plot 5 block G at Mpatasie, his hometown, but which he handed over to the extended family.
The plaintiffs aver further that on 10th August 1982, the deceased husband was appointed the Abusuapanyin of his family deceased they averred accounted for all the family properties that came under his stewardship.
It is their case that upon the death of their deceased husband the defendant are claiming that the self-acquired property, H/No. plot 62 Block CA at Anomagye is their family property and have sought to eject the tenants put into occupation by the deceased. It is their claim that, that house is the self-acquired property of the deceased and the conduct of the defendants is unlawful wherefore they claim by their writ.
The defendants entered appearance and counter claimed. The defendants in their defence denied paragraphs 23 and 24 of the plaintiff’s claim saying that Plot No. 62 was acquired by the defendants family member named Akosua Yeboah, who is a sister of Nana Kwadwo Addai and the 1stdefendant. They aver that the said house was jointly built bythe three children of Adwoa Bemah namely the 1st defendant herein, Nana Kwadwo Addai (deceased) and Kwaku Manu.
The defendants aver that all the defendants’ family properties were entrusted to Nana Kwadwo Addai (deceased) as caretaker and that house No. 62 was originally occupied by members of the defendant’s family including Akosua Yeboah, who acquired the plot, Nana Kwadwo Addai (deceased) himself, Kwaku Manu, Ama Serwah and Akwasi Afriyie. Two rooms not occupied were rented out by the Akwasi Addai (deceased) as the caretaker with the consent of the principal family members and the rent was used in maintaining the house.
The defendant say house number Plot A, Block G, Mpatasie is also defendant’s family property. That the house was built on the defendant’s family plot by Kwasi Addai (deceased) with substantial contributions by some family member’s and with family resources and the property has always remained defendant’s family property.
They avered that at one time the deceased (Kwasi Addai) sold that house, then at lintel level to a woman but the family prevented the sale and the woman was forced to take legal action against the deceased to retrieve her money.
The defendants say Kwadwo Addai (deceased) was never the head of the defendants family but rather a caretaker of the family lands at Mpatasie and in 1996 became the occupant of the family’s Tei Kofi Fetish land. The defendants averred that at one time a member of the family took action against the deceased at the Kumasi High Court for account of his stewardship of the family properties but the Nseniehene, the overlord of Mpatasie lands intervened for amicable settlement of the matter. That, in course of the settlement, the deceased (Kumi Addai) said he used some of the proceeds from other family accounts to put up House No. plot 5A, Block G Mpatasie and Plot 62 Block “A’ Anomangye, Kumasi.
The defendants say Nana Kwasi Addai (deceased) is the only educated member of the defendant’s family and was therefore entrusted with all the family properties and was caretaker for nearly fifty (50) years until his death.
The defendants aver further that the plaintiffs are aware that both houses in issue are defendants family property yet they inventoried same in their application for Letters of Administration but have now decided to leave at the Mpatasie house while laying claim to the Anomagye house.
It is the defendants case that the plaintiffs are not entitled to their claim and also counterclaimed for the following;
1. A declaration that House Number Plot 62, Block CA, Anomangye, Kumasi is the Defendants’ family property.
2. An order of Injunction restraining the plaintiffs whether by themselves their servants, agent’s workmen, assign and/or all those claiming through them from interfering with the defendant’s family possession and enjoyment of the aforesaid property.
In reply the plaintiff joined issues generally with the defendants on their statement of defence and averred that the deceased in his lifetime with the exception of Ama Serwaa, ejected Akosua Yeboah, Kwaku Manu and Akwasi Afriyie from the house.
Theresa Badu (1st plaintiff/respondent) in her evidence in chief told the court she was a wife to the deceased Anthony Owusu who died on 26th April 2006. She and the second wife and children of the deceased represented by one Kingsley Owusu applied for Letters of Administration. She told the court the deceased husband had two houses before his death. They are located at Anomangye, Kumasi Plot 62 Block A and Plot 5 Block G Mpatasie, Kumasi.
She said when she got married to the deceased, he was constructing the Anomangye, house and completed it in 1982. She was aware he bought the land from one Nana Kobinah Danka (deceased). He acquired it solely by himself. After building he lived in the house and rented part out. She tendered exhibit ‘C’ the allocation paper and site plan of the Anomangye land which is in the deceased husbands name. She told the court the husband also built the Mpatasie house by himself but told her he was building it for the family.
Shealso tendered a loan document of the husband from the Bosomtwi Rural Bank dated 14th June 1999 Exhibit ‘E’. She said the husband paid Stool rates to the Office of the Stool lands. She also tendered a demand note for Stool rates to the husband, Exhibit ‘F’.
She denied the defendants averment that Akosua Yeboah bought the Anomangye land said that the husband ejected Kwaku Manu from the Anomangye house. She tendered the notice to quit letter to Kwaku Manu as Exhibit ‘G’.
She said its never true the defendant entrusted the care of the family properties to the deceased husband for 50 years because the husband died at 60 years. She said the Anomangye house is the personal property of the deceased husband but the Mpatasie one is on the family land because he said he was building it for family and so are entitled to their claim.
In cross examination he said some family members for example the 1st defendant who is a mason had worked on the Mpatasie house but the husband paid them for their services rendered.
1st defendant told the court the property in issue belong to the defendant family. That the plot on which the Anomagye house is was acquired by their sister and they the brothers constructed the house. That at a point they ran out of money and plaintiff’s husband had to sell some of their family land and proceeds used to complete the construction. He said they once took their husband to court to account for all the plots he sold while at Jachie-Pramso but a chief came in to settle the matter out of court. That at the settlement the plaintiff’s husband said he used the proceeds to build a house at Premso and one at Anomagya and used the rest to litigate over land. That the houses in issue belongs to the family and not for the deceased Anthony Owusu.
The trial Judge in his judgment said the core issue to be resolved in the trial is whether or not the disputed house at Anomangya is self-acquired by the deceased, Nana Kwadwo Addai. Whether he used his personal resources to do so or he did with resources of his family making it a family property. The trial judge delivered himself thus:
“It is with great suspicion that I regard the claim of the defendants the disputed house was built with resources of family when no evidence was adduced in support of such an assertion. I cannot uphold their counterclaim because it was designed to deny the widows and children of the owner of the house the opportunity to enjoy the fruits of the labour of their husband and father respectively when he was enough to have built another house at Mpatasie for his family. That building is in the possession of his family and plaintiffs have not made any claim to it because they admitted it was built for the family of their deceased husband. For these reasons I will not hesitate to dismiss the counter-claim. And it is herby dismissed, whilst the claim of the plaintiffs is granted. Judgment is thus entered for them as follows:
a. A declaration that H/No. plot 62 Block CA, Anomangye-Kumasi is the self-acquired property of the late Nana Kwadwo Addai alias Anthony Owusu.
b. In view of the provisions of section 4 of the Intestate Succession Act, 1985 (PNDCL 111) I order recovery of possession of the house in favour of the plaintiffs as widows of the deceased Nana Kwadwo Addai.
c. I also order perpetual injunction to restrain the defendant, by themselves, their family members, agents, workmen or any person(s) claiming through them from interfering with plaintiffs possession and enjoyment of the property.
d. The plaintiffs further prayed for damages for trespass. I allow them GH¢5000 in that regard.
Finally, I assess costs at GH¢4,000 for the plaintiffs
The defendants/appellants dissatisfied with this judgment filed this appeal on the following grounds:
1. That the judgment is against the weight of evidence.
2. The trial judge erred when he failed to give the 2nd defendant/appellant and his witnesses opportunity to testify.
3. Additional grounds may be filed on receipt of the record of proceedings.
The relief sought is for the judgment to be set aside and judgment entered for the defendants/appellants.
The crux of the appellant’s submission is that the trial judge erred when he gave judgment in favour of the 2nd plaintiff/respondent who did not testify in court. It is his submission that the judgment be declared a nullity since it was not based on evidence given by the 2nd plaintiff/respondent.
His other ground is that the trial judge erred when he failed to give the 2nd defendant/appellant and his witnesses the opportunity to testify in the trial and that is in breach of the audi alterem partem rule of natural justice.
Counsel failed to make any submissions on his first ground of judgment against the weight of evidence and he filed no additional grounds. These two grounds are therefore dismissed.
I dismissed the appellants first ground of appeal because the authorities are clear that when an appellants ground of appeal is this omnibus ground, it is incumbent on him to point out the lapses in the judgment he is appealing against. Failure to do so attracts a dismissal of the ground. Djin vrs. Musah Baako [2007/2008] SCGLR 686.
Also when an appellant abandons a ground of his appeal, he inferentially admitted that there was sufficient evidence on record to justify the conclusions and inference drawn by the trial Judge on the issue. See Bonney vrs. Bonney [1992/1993] GBR 779. SC 786 per Aikins JSC.
The trial judge erred when he gave judgment in favour of the 2nd plaintiff/respondent who did not testify. The title of the case is Theresa Badu Yeboah and Georgina Denkyi. Two plaintiffs issued the writ. They both are widows of their deceased husband Anthony Owusu. They both applied for and were granted the Letters of Administration together. See paragraph 9 of Statement of Claim – [page. 3 of ROA]. The plaintiffs claim against the defendants jointly and severally – [page. 35 of ROA].
The two were granted the Letters of Administration to administer the deceased’s estate save two properties one of which is the property in dispute. There is no obligation on all parties in a suit to physically testify in court. One party can testify for all if the parties are more than one. The parties can, in a civil suit, elect a witness to testify for them and that is perfect before the law.
In the instant appeal, 1st plaintiff testified to the court to the issues germain to the case. She did and tendered documents to establish and prove their case to the satisfaction of the trial court. There was no obligation on the 2nd plaintiff to testify in court to enable them establish their case. After all it is the quality of the evidence that matters to the court and not the quantity. After all the 2nd plaintiff, if she had testify was just going to repeat whatever the 1st plaintiff said and which will have wasted the court’s time anyway.
Proof was no more than credible evidence of a fact in issue. It did not matter that the evidence was given by one or several witnesses, the important thing was the quality of the evidence. – see Akrofi Vs. Oteng & Anor. [1989/90] 2 GLR 244, Supreme Court.
There is no rule of law stating that a party would succeed in his case only if he testifies at the trial. The standard test is whether the party had been able to provide the needed evidence. Thus provided sufficient evidence was led on his behalf in proof of his case, he should not lose the action on the basis that he himself never testified at the trial – see Adjetey Agbosu vrs. Kotey [2003/2005] 1 GLR 691, Supreme Court.
I hold that the trial judge never erred when he gave judgment in favour of the two plaintiffs even though only one testified. The evidence of 1st plaintiff was sufficient and credible enough to merit the decision.
That ground of appeal lacks merit and same is dismissed.
That the trial judge erred when he failed to give the 2nd defendant/appellant and his witnesses the opportunity to testify.
On 25th July, 2012, the 1st plaintiff informed the court they cannot get their witness to come testify and so closing their case. The case was adjourned to 2/11/12 for the defendants to open their case.
From the ROA one cannot tell what transpired but the case was never called till 12th February, almost two years. The 1st defendant told the court his lawyer was not in court and he does not know why he was not in so will testify in his absence and was given the chance to go ahead by the court. Midway his testimony his lawyer John Brefo showed up.
On the next adjourned date of 5/3/14, counsel was absent “as usual” as recorded by the court. 1st defendant continued with his cross-examination. Midway counsel showed up.
1st defendant finished his cross-examination on that day and was discharged and case adjourned to 4th April, 2014 for continuation at the instance of counsel for the defendants.
On 9th May, 2014 case was called but the defendants were absent and could therefore not testify.
Case was again adjourned to 15/07/14 for 2nd defendant or his attorney to testify.
On 15/7/14 case was called and the defendants were absent and the court ordered the case to go on with or without counsel for the defendants on the next adjourned date of 29/07/14.
On 29th July, 2014, the case was called and adjourned once again because counsel for the 2nd defendant prayed for the adjournment. The court awarded cost of GH¢600.00 against counsel personally before adjournment to 7/11/14. On 7/11/14 counsel was absent and the court adjourned once again to 10/12/14 for continuation of defence with or without counsel for the defendants. On 10/12/14 counsel for the defendants surprisingly was absent and case adjourned again.
On 11th February, 2015 a representative of the 2nd defendant told the court they had engaged a new lawyer and therefore asking for 2 months’ adjournment to enable the said lawyer write an examination before coming to conduct the case. This application was refused by the court saying there is no evidence before it that they had engaged a new lawyer. There was nothing on record to show and so John Brefor was still their lawyer. The court ordered the representative of the 2nd defendant to go testify and he replied saying, “I can only testify when my lawyer is in court.” – [page 61 ROA]. The 1st defendant also told the court he could not bring his witness to court to testify. The court said, “the court can no longer adjourn the case and as defendants are refusing to testify, the defence is hereby closed. Counsel for the plaintiff has up to 4/3/15 to file his written address. Case adjourned to 10/3/15.”
On 10/3/15 counsel of the plaintiff had filed his address but same not served on the defendants and the court adjourned to 27/3/15 for them to be served.
On 15th June, 2015 when the case was called, one F. K. Bour announced himself as counsel for the defendants. He prayed the court to give 2nd defendant the opportunity to testify in support of his case. In response the court said the 2nd defendant is never present in court himself, he is always represented by one Kwaku Menu who asserts he is his attorney. He was given the chance on several occassions to testify but he failed and or refused to do so. The court was therefore compelled to close the case of the defendants and ordered addresses to be filed. The defendants later engaged new counsel. The court said at that stage it was unable to re-open the case for hearing. Counsel for the defendant was given up to 2/07/15 to file a written address. Case adjourned to 29/07/15 for judgment and which was delivered that day.
I took my time to go through the history of the courts adjournment after the plaintiffs have closed their case to see if in truth the 2nd defendant was denied the opportunity to be heard as suggested in their ground of appeal.
The plaintiffs closed their case on the 25th of July 2012. The court adjourned to 2nd November, 2012 for the defendants to open their case. The defendants never opened their defence till on 12th February, 2014 when 1st defendant did. Almost after 2 years. 1st defendant finished his evidence in-chief and cross-examination and was discharged and case was adjourned to the 4th of April, 2014 for the 2nd defendant to testify. This was at the instance of defence counsel, John Brefo.
From that day till 15th June, 2015, over a year the 2nd defendant failed or refused to testify and the Court had no option than to close defendants case and ordered their counsel to file a written address and 29th June, 2015 fixed for judgment. – page 69 of ROA.
From the history it is clear the trial Judge had all the patience for the defendants to open their defence especially 2nd defendant but he failed to do so. For some reason the 2nd defendant failed to testify. The court noted it in its books that he failed or refused to testify.
In case management the Judge has the right to refuse any further adjournments if it deems it not necessary. It is his discretion if there is reasonable grounds to do so and if not can refuse.
The trial Judge never failed to give the 2nd defendant/appellant and his witness the opportunity to testify. He did on several occassions but the 2nd defendant failed or refused to testify.
I think the trial Judge was too lenient and tolerated the 2nd defendant for far too long. Justice delayed is justice denied, the cliché goes. Audi alterem partem rule does not mean if you have the opportunity to be heard and you deliberately refuse to take advantage of it, you can turn around to complain that you were denied a hearing as with the instant appeal. He who goes to the law must go with clean hands.
I do not see where the trial Judge erred. That ground of appeal lacks merit and same is dismissed.
The whole appeal lacks merit and same is dismissed in its entirety.
[JUSTICE OF APPEAL]
I AGREE K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I ALSO AGREE MARGARET WELBOURNE (MRS.)
[JUSTICE OF APPEAL]