JOHN KOJO MENSAH vs WILLIAM KOFI NALIKE MENSAH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (LAND DIVISION),
    TEMA - A.D 2019
JOHN KOJO MENSAH - (Plaintiff)
WILLIAM KOFI NALIKE MENSAH - (Defendant)

DATE:  17 TH JANUARY, 2019
SUIT NO:  E1 /44/2015
JUDGES:  ALEXANDER OSEI TUTU J. SITTING AS A JUSTICE OF THE HIGH COURT
LAWYERS:  GLORIA ASIEDY OFEI BEING LED BY ERIC ASUMANG ADU FOR THE PLAINTIFF
AFFUM AGYEPONG FOR THE DEFENDANT
JUDGMENT

The Plaintiff commenced this action on 22nd December 2014 seeking the following reliefs on the endorsement on his writ of summons:

                      I.        A Declaration that the Plaintiff holds title to and is the bona fide owner of House Number AH 46, Community 4, Tema.

                    II.        Perpetual injunction against the Defendant, his agents, assigns, servants or representatives from having anything to do with the said house.

                   III.        An order for recovery of possession.

                  IV.        An order for the immediate ejectment of the Defendant and his family from the said house.

                    V.        Costs inclusive legal fees.

                  VI.        Any other order (s) as this honourable court may deem fit.

 

On 9th January 2015, the Defendant entered an appearance and proceeded to file a defence. The Plaintiff filed a reply to the defence.

 

The issues raised by the Plaintiff in his application for direction filed are:

                      I.        Whether or not the Plaintiff acquired House No. AH 46, Community 4, Tema from TDC through the employers, Kaizer Engineering Company Tema as a sitting tenant.

                    II.        Whether or not the Defendant’s father, William Yaw Mensah acquired House Number AH 46, Community 4, Tema through his employers, State Fishing Corporation, Tema.

                   III.        Whether or not the Plaintiff (John Kojo Mensah) was a tenant of Tema Development Corporation in respect of House Number AH. 46, Community 4, Tema.

                  IV.        Whether or not the Defendant’s father (William Yaw Mensah) was a tenant of Tema Development Corporation in respect of House Number AH 46, Community 4, Tema.

                    V.        Whether or not the Defendant made attempts to transfer the house now in dispute into his own name but was refused by TDC.

                  VI.        Whether or not the Rent Control, Tema ordered the Defendant to vacate House Number AH 46, Tema by 30th June 2014 but the Defendant refused, failed and/or neglected to do so.

                 VII.        Whether or not the Plaintiff is entitled to his claims.

                VIII.        Any other issue (s) arising from the pleadings?

 

After the applications for directions, the parties were directed to file their witness statements and they testified on the basis of witness statements filed during the trial.

 

The Case of the Plaintiff

The plaintiff is a pensioner. The Defendant is the son of his elderly brother, William Mensah who is now deceased. It is his case that he acquired the subject matter house from his former employers, Kaizer Engineering International as a sitting tenant. The employers had taken the tenancy from the Tema Development Corporation (T.D.C.). Kaizer Engineering deducted the rent at source from the Plaintiff’s salary and paid same to T.D.C. The Plaintiff was later transferred by his employers to Valco and a new house was allocated to him. Kaiser Engineering asked him to pay the rent directly to T.D.C. The Plaintiff tendered the letter as Exhibit ‘A’. The Plaintiff then applied to T.D.C. for a rent card tendered in evidence as Exhibit ‘B’.

 

At that time, the Defendant’s father had no place to lodge so on humanitarian grounds, the Plaintiff accommodated him in the disputed house and continued to pay the rent to T.D.C. in the Plaintiff’s name. In the year 2005, T.D.C. decided to convert the rental unit to a house ownership scheme. The Plaintiff was then outside the Country but he was informed by his late brother about the new arrangement. The Plaintiff sent Four Million Cedis (4,000.000.00), out of which two Million, Nine Hundred Thousand Cedis (2,900.000.00) was used for the payment of the house to T.D.C. The remaining One Million One Hundred Thousand Cedis (1,900.000.00) was used for incidental expenses. Because the money was sent by the Plaintiff, his late brother paid for the house in his name.

 

Unbeknown to the Plaintiff, the Defendant tried to transfer the property into his name along the line, but was refused by T.D.C. (See Exhibit ‘G’). T.D.C. told the Defendant that they could only do the transfer upon receipt of a statutory declaration from the Plaintiff consenting to it. When it came to the notice of the Plaintiff, he wrote to T.D.C. on 20th August 2009, to stop the transfer of ownership into the Defendant’s name (See Exhibit H’). The Plaintiff tendered a registered indenture of the house in his name dated 23rd May 2012 as Exhibit ‘K’. He proceeded to the Rent Office to recover possession of the house from the Defendant (See Exhibit ‘K’).

 

The Plaintiff could not tender most of the receipts of payments he made to T.D.C. but explained that since he was outside the country, he caused his brother to make the payments on his behalf, but after his death, the Defendant has refused to hand same to him. At the moment, the house is occupied by the one of the Plaintiff’s sons and the Defendant. All attempts by the Plaintiff to recover the house from the Defendant have yielded no fruit.

 

The Plaintiff called Enoch Frederick Acquah (PW1) to give evidence in support of his evidence. He told the Court that he has known the Plaintiff for over Fifty (50) years. He got to know the Defendant when he was about ten (10) years old. He was then staying with the Plaintiff who introduced the Defendant to him. He stated that the Plaintiff stayed with the Defendant for about three (3) months before his father returned from sea and handed the Defendant to him.

 

In respect of the property in issue, PW1 testified that Kaiser Engineering Company allocated the house in dispute to the Plaintiff, but the rent card was in the Plaintiff’s name as sitting tenant. He testified that the Plaintiff allowed his late brother to live with him in the disputed house and his brother never showed any interest in having the property. The witness was transferred together with the Plaintiff to VALCO and they were allocated a new accommodation. The Plaintiff’s brother continued to live in the disputed property until T.D.C. offered for sale their houses in Tema including the disputed one to sitting tenants.

 

According to PW1, it was the Plaintiff who bought the house in dispute. The Plaintiff was then in the United States of America, but he sent almost Four Million Cedis (4,000.000.00) to his brother to buy the house for him.

 

The Court observed that although PW1 had knowledge of the subject matter, his evidence was overblown making him appear as a partisan witness. For instance at page 10 of the Proceedings, he first denied that the property was a duty post accommodation for Kaizer Engineering. He however threw in the towel when pushed to the corner and subjected to unending questions under cross examination.

 

At page 11 of the Record of Proceedings, he told the Court that the policy to sell the house to sitting tenant was during Busia’s time which is from 1969 to 1972. However, it appears that the policy was taken around year 2000, many years after Busia’s Government. PW1 also testified about the money sent by the Plaintiff to the Defendant’s father to pay for the house. The Plaintiff claimed he was then outside the Country. I wonder how PW1 was able to have personal knowledge about it when there was no evidence that he was outside the Country with the Plaintiff. That piece of evidence might have been received from the Plaintiff and it is undoubtedly, a hearsay evidence.

 

The Case of the Defendant

His case was that his late father lived with the Plaintiff in the house in dispute. The Plaintiff got the property through Kaiser Engineering Limited as a tenant to T.D.C. He averred that both his father and the Plaintiff contributed to pay rent to T.D.C. The Plaintiff subsequently had House Number S.7 at Community 5, Tema, so he moved into possession leaving his father in occupation of the subject matter house as the tenant of T.D.C. The Defendant’s late father thereafter continued to pay rent to T.D.C. all alone and protected the property until the Defendant became of age.

 

According to the Defendant, he was born in the disputed house and has lived together with his father until he passed away on 13th June, 2010. It is the case of the Defendant that during the lifetime of his father, T.D.C decided to sell the house to sitting tenants. Because he was then the sitting tenant of the house, he paid the selling price of the disputed house to T.D.C. in the name of the Plaintiff. This was after officials of T.D.C. had found him and his father in possession of the property and had been paying the rent by themselves as the sitting tenants.

 

According to the Defendant, even though he paid for the property, it became part of the estate of his late father after his death. The disputed house comprises two bedrooms, which are currently occupied by the Defendant and a son of the Plaintiff by name, Kwaku Kyei. He denied the Plaintiff’s claim and attached receipts for the purchase of the property as exhibits. He therefore prayed the Court to dismiss the Plaintiff’s action. Before I start with the analysis of the case, I will like the Defendant to ponder over this African proverb, “Only a goat that is tired of life invites a lion to dinner”.

 

The following facts were not in contention:

                      I.        The house was rented in the Plaintiff’s name.

                    II.        When the Plaintiff and the Defendant were working at Kaiser Engineering, they were both living in the disputed house.

                   III.        When the Plaintiff was transferred to VALCO, he was granted another accommodation and the Defendant’s father continued to live in the disputed house with the Defendant.

                  IV.        The house was later purchased from T.D.C. in the name of the Plaintiff.

                    V.        The house is currently occupied by the Defendant and a son of the Plaintiff.

 

Whether or not the Plaintiff acquired House No. AH 46, Community 4, Tema from TDC through the employers, Kaizer Engineering Company Tema as a sitting tenant And Whether or not the Plaintiff (John Kojo Mensah) was a tenant of Tema Development Corporation in respect of House Number AH. 46, Community 4, Tema.

 

I believe that from the facts not in contention above, the first point resolves the two issue. There is no contention that it was the Plaintiff who acquired the subject matter house, while working with Kaiser Engineering and the Defendant conceded same in his evidence. He acknowledged that the Plaintiff’s name continued to stand as tenant, hence when the property was sold by T.D.C. it was done in the Plaintiff’s name.

Whether or not the Defendant’s father (William Yaw Mensah) was a tenant of Tema Development Corporation in respect of House Number AH 46, Community 4, Tema.

I believe that having found in the above issues that it was the Plaintiff who was the tenant of T.D.C., the present issue thus becomes moot.

 

Whether or not the Defendant’s father, William Yaw Mensah acquired House Number AH 46, Community 4, Tema through his employers, State Fishing Corporation, Tema?

It was the case of the Defendant that his father acquired the disputed house through his employers,

State Fishing Corporation. He averred at paragraph 4 of his Statement of Defence as follows:

“(4) Defendant in an answer to paragraph 3 of the Plaintiff’s Statement of Claim say that the Defendant father William Yaw Mensah acquired the said house through his employers State Fishing Corporation, Tema and both Plaintiff and the Defendant’s father were living in the said house and both brothers were contributed (sic) to pay rent to Tema Development Corporation”.

 

Ironically, when the Defendant filed his witness statement and mounted the box, he said otherwise. When filing his defence, he thought he could just say anything and go his way. According to a Bantu proverb, “The road does not tell its traveller what lies ahead”. The Defendant realizing the herculean task ahead of him to prove his assertion, made a U-turn and testified that it was the Plaintiff who got the property through Kaiser Engineering from T.D.C. A Yoruba proverb says, “A stammer would eventually say ‘father”. The Defendant added that the Plaintiff lived in it with his brother and the two contributed to pay the rent. The simple question I would want to ask is; if that were so, why was the house not in their joint names?

 

The law does not even allow a party to depart from his pleadings. The Court of Appeal per Kanyoke J.A. in the case of Adehyeman Industries Ltd. v. Mensah [2010-2012] 2 GLR 37 held at holding 1: “Under Order 11 rule 10(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), a party was barred in any pleading from making an allegation of fact or a new ground or claim inconsistent with a previous pleading made by that same party. And by section 26 of the Evidence Act, 1975 (NRCD 323), when a party had by their own statement, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing would be conclusively presumed against that party in any proceedings between that party and such relying party”.

 

Similarly in the case of Opanin Nantwi Ababio & Another v. Pastor Nana Adusei [2018] DLSC 259, Baffoe - Bonnie JSC held: If the evidence that is led is at variance with the pleadings, it cannot be held that the party has proved the case set out in his pleadings. He may by his evidence have succeeded in proving a case that he has not pleaded but a court cannot accept that case which is not pleaded as the duty of the court is to adjudicate upon the specific case in dispute set up by the pleadings.” See also the cases of Samanhyia v. Bih (2006) 5 MLRG 1, Opanin Yaw Boakye v. Opanin Kwame Marfo [2011] DLSC 2613, per Gbadegbe JSC and Marfo v Adusei [1963] 1 GLR 225 at 226, SC., per Mills-Odoi JSC.

 

For the sake of clarity, let me reproduce the relevant portions of the Defendant’s Witness Statement which he departed from his Statement of Defence here for its full effect:

“(6) The Plaintiff got into the property in dispute through Kaiser Engineering Limited as a tenant to T.D.C.

(7) My father and his brother, the Plaintiff herein were living in the disputed house and both of them were contributing to pay rent to the Tema Development Corporation, Tema”

 

Is it not strange that the same person who claimed in his Statement of Defence that his father was the one who acquired the property as an employee of State Fishing Corporation now says that it was the Plaintiff who acquired the house as a tenant of Kaiser Engineering? Surprisingly, the Defendant never mentioned any house that was granted to his father by the State Fishing Corporation in his Witness Statement. Bukom Banku in one of his witty quotes stated, “Only a foolish dog runs after a flying bird”.

 

When the Defendant realized that it was getting hot for him, he swallowed a humble pie and conceded the fact that it was the Plaintiff who was granted the house through Kaiser Engineering as tenant of T.D.C. According to an Armenian proverb, “At death door, a man will cry for fever”. The express admission by the Defendant that the Plaintiff was the one who was granted the house settles the present issue in favour of the Plaintiff.

 

The documents covering the house are all in the name of the Plaintiff. Even the ground rent payments tendered by the Defendant were all in the Plaintiff’s name. They raise a presumption of ownership in his favour. In the case of Lin v. Tonado Enterprise Ltd. (2008) 13 MLRG 197, Brobbey JSC at page 208 held “ayment of ground rent may constitute evidence of ownership”.

 

In the case of Ofori Agyekum v. Agartha Amoah [2016] DLSC 2858, the Supreme Court per Benin JSC held that the principle is however, not an invariable rule that any payment of any ground rent should be construed as evidence of ownership because caretakers and tenants can pay ground rents and when that happens, it will be wrong to interpret the payment as conclusive of ownership”.

 

The presumption is not a conclusive one. The Defendant should have led credible evidence to rebut it. After bragging in his pleadings, he had nothing up his sleeves during the trial. He should have reflected over these words of the legendary Mike Tyson, “I don’t try to intimidate people before a fight. That is nonsense. I intimidate them by hitting them”. According to a Yiddish proverb, “If you cannot bite, it is better not to show your teeth”. The plaintiff was also able to explain to the Court why he had his name as the sitting tenant of the house.

 

He confidently told the Court how much the house was bought for, but the Defendant could not. At page 17 of the proceedings, he even said his father was not working at the time the property was purchased from T.D.C. So how could he have raised the purchase price? The Defendant’s evidence that he supported with the payment was not satisfactorily established. It appears that there is some truth in the Plaintiff’s evidence that, apart from sending money to purchase the house, he sent monies to the Defendant’s father for his upkeep. According to T.J. Forrester, “Truth may start out timid, but it finishes bold”.

 

Further, the Defendant tried to create the impression that he was born in the house in dispute. He averred at paragraph 8 of his Statement of Defence as follows:

“Defendant says he has lived in the said H/No. AH 46, Community 4, Tema with his father William Yaw

Mensah since he was born 48 years until the untimely death of Defendant’s father on the 13th day of June 2010”.

 

The Defendant’s counsel, when cross examining the Plaintiff on 15th April 2017, at page 2 of the Proceedings suggested to the Plaintiff that the Defendant was born in the house in contention about 49 years ago. The Plaintiff and his only witness strongly maintained that the Defendant was only brought to him in Tema at the age of 10, at a time his father had even gone to sea. Since the truth can never be covered, the Defendant, during the trial had to throw in the towel and associate himself with the facts alleged by the Plaintiff. An Igbo proverb says, “If a child lifts his father, his scrotum will blindfold him”.

 

At page 17 of the Proceedings, Counsel for the Plaintiff in cross examining the Defendant asked him:

Q: Which year were you born?

A: 14th January 1968.

Q: You were born in the disputed house, is that correct?

A: No, my Lord”.

Also, at page 15 of the Proceedings, the Defendant answered to questions posed to him thus:

“Q: When you came to Tema, where was your father staying?

A: My Lord, he was at Community 4 but he was a seaman.

Q: When you came, the Plaintiff was then living in the disputed house?

A: My Lord, he was then living at Community 5, S7. My father was then at sea and when he returned he came for me at Community 4….

Q: The time you returned from Bekwai to stay with the Plaintiff, your father had gone to sea?

A: That is so, my Lord”

From the above pieces of evidence, it is as clear as day that the Defendant could not establish this issue.

 

Whether or not the Defendant made attempts to transfer the house now in dispute into his own name but was refused by TDC.

The Plaintiff alleged that the Defendant made attempts to transfer the disputed house into his name. The Plaintiff tendered various exhibits including letters from T.D.C. and his own letter to stop the transfer. The Defendant appeared not to have responded to the allegation, except to deny the entire claim of the Plaintiff. Exhibit ’G’ clearly shows the letter written by T.D.C. to the Defendant dated 9th June 2005. The body of the letter read:

 

RE: APPLICATION FOR TRANSFER OF OWNERSHIP OF HOUSE NO. C4/AH. 46 – TEMA

“Reference your letter on the above subject dated 9th June 2004.

We regret to inform you that, we cannot process your application.

We can only process a transfer application when we have received a sworn Statutory Declaration from the owner of the property.

Thank You.

Yours faithfully,

(SGD)

For: Managing Director

(Joe Abbey)

Director of Estates”

 

By the above letter, the Plaintiff has been able to make out a strong case that the Defendant attempted to transfer the property into his name, but was not successful. The burden shifted to the Defendant to prove otherwise. We need to bear in mind that the burden of proof keeps shifting from one party to the other during the trial. In the case of In Re Krah (Dec’d) Yankyeraah and Others v. Osei Tutu and Another (1989-90) 1 GLR 638 SC, it was held at holding (2) “In civil trials, although the burden of proof lay on the one who must succeed in the action, it shifted in the course of the trial.”

 

Also, in the case of Faibi v. State Hotels Corporations (1968) GLR 471, it was decided: “The onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led.”

 

Our elders say, “To kill a lion is to be ready for war”. Unfortunately, when the Defendant called for war and the burden shifted to him, he could not shoot by rebutting it. The Court thus finds that the Defendant attempted to transfer the property into his name without success. The law is that the failure of a party to deny allegations made against him under cross examination amounts to an admission of the assertion.

 

In the case of Agbosu v. Kotey & Ors. [2003-2005] 1 GLR 685, Wood JSC (As she then was) held at page 704 “… where a party’s testimony of a material fact was not challenged under cross examination, the rule for implied admission for failure to deny by cross-examination would be applicable and the party need not call further evidence on the fact”. See also the cases of Vanguard Assurance Co. Ltd. v. JM Addo & Sons Ltd. [2016] 93 G.M.J. 160 at page 181 and Abdul Rahman Giwa & 2 Others v. Baba Ladi (2012) 43 GMJ 1 at page 8. In view of the Defendant’s inability to deny the assertion, I find that the Defendant made the attempt to transfer the property into his name.

 

Whether or not the Rent Control, Tema ordered the Defendant to vacate House Number AH 46, Tema by 30th June 2014 but the Defendant refused, failed and/or neglected to do so.

It was further the case of the Plaintiff that the Rent Officer ordered the Defendant to vacate the house in contention, but he refused and that accounts for the Plaintiff taking this Court action. The Defendant did not respond to this assertion. It will therefore be held against him that indeed, he was ordered to vacate but refused. Our elders say, “A disobedient fowl only obeys in a pot of soup”.

 

The issue of Fraud

This was not raised by the pleadings and was also not set down as an issue for determination. Nonetheless, it is now the law that where the evidence points to fraud during the trial, the Court cannot ignore it. Atuguba JSC set the ball rolling in the case of Amuzu v. Oklikah [1998-99] SCGLR 144 at page 183. The principle has received massive support in recent times and has been applied in a number of cases. See the cases of Ecobank Nigeria PLC v. Hiss Hands Housing Agency & Access Bank (Ghana) Ltd. [2017] DLSC 2091; Oppong Banahene v. Shell Gh. Ltd. [2017] DLSC 2088 & Theresa Owuo v. Francis Owuo, [2017] DLSC 2490, per Akoto Bamfo (Mrs.) JSC.

 

The Defendant’s lawyer is alleging fraud just because the signature of the Plaintiff in his witness statement filed in this Court on 24th June 2016 differs from the signature on Exhibit “B” being the application for the rent card dated 6th February 1975. I do not think this piece of evidence is strong enough to ground fraud. This is like a goose chase. A Berber proverb say, “The barking of a dog will not disturb the cloud”. We must not forget that fraud is a crime and anywhere it is found in a civil suit, the burden is still to prove beyond reasonable doubt. See the cases of Fenuku v. John Teye [2001-2002] SCGLR 985 and Janet Tagoe v. Alfred Nii Tetteh [2016] 98 G.M.J. 125 at pages 147-148, C.A.

 

Denning J in the case of Barclays Bank v. Cole [1966] 3 All E.R. 948, C.A. held that: “To amount to fraud, the conduct must be deliberately dishonest”. The Defendant could not prove any deliberate dishonesty.

 

I know that some people have several signatures for various purposes and that alone does not mean they are fraudulent. I do not expect a busy bank teller with a complex signature to use his or her normal signature. A simple one should be devised for that purpose.

 

More so, the signature of the Plaintiff on Exhibit ‘B’ was dated 6th February 1975, which is almost forty-four years ago. The Plaintiff is well advanced in age but has been able to explain the sequence of events satisfactorily. Age is only numbers and as Victor Hugo once said, “The wise man does not grow, he ripens”. It would therefore be sheer wickedness on my part to make an issue out of the purported discrepancy in his signatures. In the Interpretation Act, 2009 (Act 792), ‘signature’ has been interpreted liberally as: “including the making of a mark and a thumbprint …”.

 

The word ‘including’ here means that the list is not exhaustive and there should be a reason for the law makers to leave the parameters open. Just a person’s mark other than his usual signature, in appropriate cases such as in his will have been held to constitute a valid signature. See the cases of Boye v. Armah (2012) 44 GMJ 186 & In re Sackey (Dec'd); Dzamioja alias Ashong v. Sackitey and Anor. (1982-83) 1 GLR 1196.

 

Whether or not the Plaintiff is entitled to his claims.

It is trite that the burden of proof on a Plaintiff in all civil suits is proof on the balance of probabilities. In the case of Gifty Avadzinu v. Theresa Nioone [2010] 26 MLRG 105 at page 108, it was held: “It is trite that the standard of proof in all civil actions without exception is proof by preponderance of probabilities, having regard to section 11 (4) and 12 of the Evidence Act. This means that a successful party must show that his claim is more probable than the other”. See the cases of Samuel Kakra Mensah v. Christopher Kwablahligbidi [2014] 75 GMJ 157 at page 187 CA & Fordjour v. Kaakyire [2015] 85 GMJ 61 at page 85, C.A.

 

In this case, there is overwhelming evidence adduced on record to show that the Plaintiff is the owner of the house in dispute. TDC’s letter (Exhibit ‘G’) pointed to the Plaintiff as the owner. It was through the employers of the Plaintiff, Kaiser Engineering that he became the tenant of the house and remained the sitting tenant from 1966 to 2006 before the house was sold to him by T.D.C.

 

The Defendant sought to say that when the Plaintiff left to his new accommodation provided him by VALCO, his father alone paid the rent and eventually purchased the house as the suiting tenant. From the evidence, this could not be true. I believe T.D.C. offered their houses for sale to sitting tenants and not sitting occupants as the Defendant would want the Court to believe. It is logical to say that it was rather the tenants they had contract with whom they transacted with. If T.D.C. had offered the house to the Defendant’s father by virtue of he, being the then occupant, I believe the receipts of payment would have reflected in his name and not in the name of the Plaintiff. According to a Cameroonian proverb, “There are no short cuts to the top of a palm tree”.

 

Ambrose Bierce is reputed to have said, “Death is not the end. There remains the litigation over the estate”. The Defendant is claiming that his father died in 2010 and the house forms part of his estate. Is it not mind boggling that his father never took any step to transfer the property into his own name while alive? And if his father could not claim ownership of the house whilst alive, how can the Defendant do that now? A Gabonese proverb says, “If the needle does not pass, the thread does not follow”.

 

According to the Defendant, he personally raised the money and paid for the house in instalments. Anytime he asked his father to change the property into his name, his father took it lightly and said there would be no problem. It seems to me that the Defendant wanted his father to take over the property during his life time, but his father resisted the temptation, knowing very well that it did not belong to him. According to E.W. Howe, “A young man is a theory, an old man is a fact”. From Exhibit ‘G’ which is the letter from TDC to the Defendant, TDC also resisted the temptation to transfer the house to him, when the Defendant tried to take over the property in 2004 several years before his father passed on.

 

Had the Defendant even succeeded in proving that he and his father paid the purchase price to T.D.C., I do not think it would still have made any difference, unless there was an express arrangement with the Plaintiff to relinquish his interest in the property. They would have been deemed as constructive trustees for the Plaintiff. See the cases of Saaka v. Dahali [1984-86] 2 GLR 774; Adomako Anane v. Nana Owusu Agyemang & Ors. [2014] 75 G.M.J. 1, S.C. & Soon Boon Seo v. Gateway Worship Centre [2009] SCGLR 278 at pages 293-294.

 

Although the Defendant has been living in the disputed house for many years that does not confer ownership on him or his father. “No matter how long a log floats on a river, it cannot become a crocodile”, says a Bambara proverb.

 

In the case of Nchiraahene Kojo Addo v. Wusu (1938) 4 WACA 96, cited in Brown v. Quashigah (2003-2004) SCGLR 92, it was decided: ”That long possession alone was not enough to establish title at customary law because there was no prescriptive rights at customary law”. See also the case of Togbe Lugu Awadali IV v. Togbe Gbadawu IV [2018] DLSC 244, per Appau JSC and Awulae Attibrukusu III v. Oppong Kofi & Ors. [2010] DLSC 2510.

 

The principle is no different where the land was long occupied by a family relation. In the case of Ladi v. Giwah & Others [2013-2015] 1 GLR 54, it was held at holding (c) thus: “Possession of property by virtue of blood relationship with the owner of the property, however long it might last, did not ripen into ownership.” Also, in the case of Nuamah v. Frimpong [1973] 2 GLR 37, the principle was stated thus: “The law presumptively applicable at customary law was when a Ghanaian allowed an infirm relation to live rent free in his house it is not his intention to carve out a life interest for him in the property. Such a relation lived there at sufferance and did not acquire a saleable estate in the property so as to be able to sell, mortgage or let such property or any interest in it.”

 

Finally, in the case of Duro & Anor. v. Anane [1987-88] 2 GLR 275, it was held at page 276: “The defendants were gratuitous licensees of the plaintiff’s family. Consequently, they could continue farming so long as they behaved themselves and recognized the title of their landlords, the moment they set up an adverse title against their landlords the latter could revoke that license and they would become trespassers if they remained on the land thereafter …”.

 

The Defendant’s assertion that it was his father who owned the property was just oral and bare. It was not even corroborated by anybody. This is opposed to the strong documentary proof of the Plaintiff’s ownership which was corroborated by a person who knew how the house was acquired. The law tends to lean favourably towards the Plaintiff against the Defendant’s oral evidence in circumstances like that. In the recent case of Nana Asiamah Aboagye v. Abusuapanyin Kwaku Apau Asiam [2018] DLSC 2486, Pwamang JSC held: “… the settled principle of the law of evidence is that where oral evidence conflicts with documentary evidence which is authentic, then the documentary evidence ought to be preferred over and above the oral evidence.”.

 

Baffoe- Bonnie JSC also in the case of Kwame Ofei v. Mrs. Janet Darko & 2 Ors., [2018] DLSC 140 decided: “In the case of Duah v Yarkwa (1993—94) GLR 217, it was held that whenever there was in existence a written document and conflicting oral evidence, the practice of the court was to lean favourably towards the documentary evidence especially if it was authentic”. See also the cases of Adjei Osae and

 

Others v. Adjeifio v. Others (2007-08) SCGLR 499 at 502-503; J.K. Owusu v. Joseph Tuffour Osei [2016] DLSC 2809 & Prof. Stephen Adei & Anor v. Grace Robertson & Anor. [2016] 101 GLR 160 at page 169, S.C.

 

Counsel for the Defendant in his address submitted that the Plaintiff is caught by limitation. This cannot hold. The Plaintiff did not leave the house entirely. He had his son also living in the house. According to an Igbo proverb, “When the eye gets blind, the eyelids take over the seeing”. For limitation to apply, there must be overt acts of adverse possession. The evidence is not clear when the Defendant began to exercise adverse possession, if any. In the case of Adjetey Adjei and Ors. v Nmai Boi & Ors. [2013-2014] 2 SCGLR, 147, it was held: “Adverse possession must be open, visible and unchallenged so as to give notice to the legal/paper owner that someone was asserting a claim adverse to his. And section 10 of the Limitation Act, 1972 (NRCD 54) has reflected substantially the provisions of the English Statutes of Limitation and the Common law. Under the present law, the person claiming to be in possession must show either (i) discontinuance of the paper owner followed by possession, or (ii) dispossession or as it was sometimes called “ouster” of the paper owner”. See also the cases of Boateng v. Ntim & Ors. [1961] 1 GLR 671 & Deliman Oil Company Ltd. v. HFC Bank Ghana Ltd. [2016] 92 G.M.J. 1 at page 8, C.A.

 

As I am about to declare ownership in the Plaintiff, I am not sure the Defendant deserves to live in the house again. The English say, “It is an ill bird that fouls its own nest”. The law does not deal kindly with a licensee who denies the title of his licensor. According to a Yoruba proverb, “The butterfly that brushes against thorns will tear its wings”.

 

Georgina Wood JSC (As she then was) held in the case of Antie and Adjuwah v. Ogbo (2005-06) SCGLR 496 at 513: “The common law rule as to forfeiture by a licensee or tenant who challenges the title of his licensor or landlord has received statutory recognition under sections 27 & 28 of the Evidence Decree, 1975 (NRCD 323). The law is that a licensee or tenant who denies the title of his or her licensor or landlord, either by claiming that title to the subject matter is vested in himself or herself or someone else forfeits his or her interest. In view of the plaintiff’s direct challenge to the defendants’ lawful claim to ownership, he has forfeited his right to remain in the premises”. See also the cases of Charles Lawrence Quist (Substituted by Diana Quist) v. Ahmed Danawi [2015] DLSC 3223, per Baffoe-Bonnie JSC & Victoria Annang v. Emoho Trading Ghana Company Limited and 4 Others [2017] 109 G.M.J. 112 at page 148, per F. Kusi-Appiah J.A. The principle is in accord with a Bemba proverb which says, “You don’t provoke a crocodile while your buttocks are still in the river”.

 

The Defendant has overstayed his welcome and has to vacate the house immediately. Indonesians say, “When the sweet taste has gone, the chewing gum is thrown away”. After being accommodated by the Plaintiff all these years, I do not think that was the proper way to repay the person he could look up to as his father in the absence of his biological father. It is only a donkey who says ‘thank you’ with a kick. An Ethiopian proverb says, “It is a haughty blind person who picks a fight with his guide”.

 

I am sure both parties have learnt life lessons from this case, including the Defendant who has been an ingrate and is being thrown out of the house. An African proverb says, “No matter how bad you are, you are not useless, you can still be used as a bad example”.

 

Consequently, I grant the entire claim of the Plaintiff as endorsed on his writ of summons. On the costs, I have to say that the Defendant should have heeded to the directive of the rent officer to vacate the house rather than wasting everybody’s time till now to be shown the exit forcibly by the Court. An Italian proverb says, “Every time history repeats itself, the price goes up”. Therefore, I award cost of GH12,000.00 against the Defendant in favour of the octogenarian Plaintiff. I do so with relish, because the Guineans have warned that “A child can play with the mother’s breast, but not the father’s testicles”. On that note, I end this judgment.

 

 

 

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