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IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION),
ACCRA- A.D 2019
ERIC ODURO AND KWADWO ANKOMAH - (Plaintiff)
ANDRIANA KWAAH - (Defendant)
DATE: 22 ND OCTOBER, 2018
SUIT NO: BMISC/755/2014
JUDGES: KWEKU T. ACKAAH-BOAFO JUSTICE OF THE HIGH COURT
LAWYERS:
MR. DANIEL K. OPARE-ASIEDU FOR THE PLAINTIFF
MR. KWABENA SAFO MENSAH THE DEFENDANTS
JUDGMENT
i. Introduction
[1] The Plaintiffs are two brothers of the deceased Frank Ampofo who had a son with the Defendant who was married to the deceased at the time of his death in September 2012. The subject matter of this suit is a three bedroom house situate at Anyaa or Awoshie in Accra as the evidence described. The Plaintiffs contend that it is a family property and has never been a matrimonial house. The Defendant contends otherwise and accuses the Plaintiffs of changing the ownership of the property only after the death of her husband. In effect, the death of a dear husband and a beloved son and brother has become the cornerstone of this litigation.
ii. The Action:
[2] On the 6th day of May, 2014 the Plaintiffs herein caused to be issued out of this registry, a Writ of Summons against the Defendant, Andriana Kwaah described as the widow of Plaintiffs’ deceased brother, Frank Ampofo with the reliefs endorsed on the writ specified here below as:
a) Declaration that the unnumbered House at Awoshie is not the personal acquired property of Mr. Frank Ampofo and cannot be part of his Estate.
b) Costs
iii. The Defence & Counterclaim:
[3] The claim of the Plaintiff was met with a statement of defence by the Defendant in which the Plaintiffs’ claim was vehemently denied. The Defendant then counterclaimed against the Plaintiffs. By paragraph 17 of the Statement of Defence and Counterclaim, the Defendant counterclaimed against the Plaintiffs as follows:
1. “The Defendant says that the Plaintiffs have since the demise of Frank Ampofo rented out the said property to some persons unknown to her.
2. The Defendant says that her personal effects remain in the premises.
Wherefore the defendant counterclaims per the following reliefs:
1. Refund of the rents paid by the tenants to the Plaintiffs
2. Order for possession of the unnumbered house the subject matter of the suit
3. Costs”.
iv. The Pleadings:
[4] In paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of the Statement of Claim, the Plaintiffs aver as follows: “(4). Plaintiffs say following the death of Frank Ampofo the Defendant applied for Letters of Administration in respect of the estate of the deceased without their knowledge, consent and concurrence.
(5). Plaintiffs say following an order by this Honourable Court for notice of the Defendant’s application to be served on the customary successor and family of the deceased, hearing notice was served on the Plaintiffs.
(6) Plaintiffs say upon receiving notice of the application for letters of administration they filed a caveat.
(7) Plaintiffs say their caveat was grounded on the fact, among others, that a House which the Defendant had included in the inventory was not the personally acquired property of the deceased but family property.
(8) Plaintiffs say the unnumbered house at Awoshie where the Deceased lived with his former wife and subsequently for a brief period with the Defendant was built by the family of the Defendant’s late husband.
(9) Plaintiffs avers (sic) that the decision to put up the house at Awoshie was taken by their family to provide a place of abode for young members of the family who had completed school and needed accommodation in Accra.
(10) Plaintiffs say the family of the deceased sold a 40 acre farm land at Pramkese to raise an initial GH¢16,000 to buy the land and construct the house thereon.
(11). Plaintiffs say the deceased was tasked by the family to build the house which he did and lived in for a while with the consent and concurrence of the family”.
[5] The Defendant has contested wholly the Plaintiffs’ claim. In her pleading filed on 17/10/2014 intituled “STATEMENT OF DEFENCE AND COUNTERCLAIM” the Defendant has denied paragraphs 1, 2, 10, 11 and 12 of the Plaintiff’s Statement of Claim and pleads the general issue by putting the Plaintiff to the strictest proof thereof.
[6] In further denial of the Plaintiffs’ averments, the Defendant pleads that the Plaintiffs and members of their family initially denied that she was a wife or widow of the deceased and refused to allow her to participate in the funeral celebration and the performance of customary rites as a widow. She pleaded that it was only after the intervention of the Chief of Pramkese, their hometown that the Plaintiffs permitted her to participate in the funeral.
[7] According to the Defendant the Plaintiffs immediately before the demise of her husband refused to allow her and the father to visit the husband at the hospital and they later informed her she should vacate the matrimonial home for some rituals to be performed in the house for the husband to regain his health. The Defendant has pleaded that out of abundance of caution, she acceded to their request and left the house but left behind “almost all her personal effects in the matrimonial home” but the Plaintiffs have since denied her access to the house.
[8] The Defendant further disputes the Plaintiffs’ contention that the property is a family property. According to the Defendant the property is the self-acquired property of her late husband after he purchased the plot of land by himself from one Gustav Nii Noi Omaboe and constructed the house.
[9] In paragraphs 13, 14 and 15 of the Statement of Defence and Counterclaim the Defendant specifically pleads as follows:
“(13). The Defendant further says that her late husband apart from his own resources relied on some of his friends to provide materials, labour and they also provided help in the actual construction of the house.
(14) The Defendant says her late husband graduated from the Pentecost University College, Accra and worked as a Marketing Officer and was capable to provide for his immediate family and put up the house from his own resources.
(15) The Defendant denies paragraphs 10, 11 and 12 and will put the Plaintiffs to the strictest of proof during trial and says that her husband bought aluminum frames and glass windows and employed his brother to fix the said windows and the late husband paid his brother for his labour”.
[10] The battle lines were clearly drawn after the filing of the Defence and Counterclaim. The Plaintiff in the Reply and Defence to Counterclaim filed vehemently denied all the averments contained in the Statement of Defence and specifically averred that when the Defendant came to the hospital to visit the deceased with her father she met the 2nd Plaintiff outside the hospital because he had been asked by the Doctors to stay away. The Plaintiff further averred that the house was locked by the deceased himself before he was admitted to hospital because the Defendant was not resident in the house before the deceased was admitted to the hospital. According to the Plaintiffs the Defendant wanted to have access to the house at a time the family members had travelled to Pramkese and were still mourning their deceased relative.
v. The Issues:
[11] At the close of the pleadings the Issues which were set down for determination as contained in the Application for Directions filed by the Plaintiff on the 11th of July, 2016 were as follows:-
(a) Whether or not the property in dispute at Awoshie where the deceased lived for a brief period with the Defendant was acquired by the Plaintiffs’ family and therefore is family property.
(b) Whether or not the deceased lived in the property in dispute with the permission of the Plaintiffs’ family.
(c) Whether or not the property in dispute forms part of the Estate of the Defendant’s deceased husband.
(d) Whether or not the Plaintiffs are entitled to their claim
(e) Whether or not the Defendant is entitled to her counter claim
(f) Any further or other orders raised by the pleadings in this suit.
[12] The additional issue filed by the Defendant on July 26, 2016 which was also set down by the Court was:
Whether or not the Defendant’s husband, Frank Ampofo (deceased) acquired the property himself from Gustav Nii Noi Omaboe, the Assignor of the property.
[13] The issues to be determined in this suit are both factual and legal. The factual issues are to be determined by credible evidence adduced before the court. However in the determination of the factual issues the court applies tests based on legal principles to arrive at a conclusion as to which party has proved its case to the standard required by law.
[14] I shall proceed to evaluate the nature of the evidence adduced at the trial, I shall examine firstly the burden of the parties in this suit and relate same to the facts presented in their respective pleadings and the evidence adduced at the trial, before I make the necessary findings while determining the factual and legal issues set down. The general position of the law on proof is aptly stated by Kpegah J. A. (as he then was) in the case of ZABRAMA VRS. SEGBEDZI (1991) 2 GLR 221 at 246 as follows:
“…a person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”.
[15] By sections 11(4) and 12 of the Evidence Act 1975 (NRCD 323) the standard of proof in all civil cases is one on “a balance of probabilities”. The judicial approval to sections 11 and 12 of the Evidence Act has been stated by the Supreme Court in the case of ADWUBENG VRS. DOMFEH (1996 – 97) SCGLR 660 at page 662 where the court stated that:
“By SS 11(4) and 12 of the Evidence Act 1975 NRCD 323 the standard of proof in all civil cases is proof by the preponderance of probabilities no exceptions were made.
In the light of the provisions of the Evidence Decree, 1975, cases which held that proof in title to land required proof beyond reasonable doubt no longer represented the present state of the law”.
[16] I now proceed to examine the evidence adduced in support of the Plaintiffs’ case and will relate same in the context of the standard of proof I have already set out in this judgment above. The Plaintiffs’ evidence is both oral and documentary and was proffered by 2nd Plaintiff, Kwadwo Ankomah, Madam Juliana Oforiwah, the mother of the deceased and Mr. Gustav Nii Noi Omaboe. Now, let us hear what they individually told the Court.
vi. The Plaintiff's Case
[17] From the witness statement filed and adopted at trial as the evidence in chief, Kwodwo Ankomah the 2nd Plaintiff said he is a businessman and the customary successor of late Frank Ampofo deceased who passed on at Korle Bu Teaching Hospital on the 9th day of September, 2012. He said the Plaintiffs instituted this action against the Defendant because she attempted to apply for letters of Administration to administer the Estate of the deceased alone and in so doing included in the inventory of the Estate an unnumbered house located at Awoshie in Accra. According to him the said property is a family property and not the self-acquired property of the deceased, the Defendant’s late husband.
[18] Mr. Ankomah further testified that the unnumbered house at Awoshie where the deceased the “late Mr. Frank Ampofo used to reside with his former wife before his untimely death is not and has never been the self-acquired property of the late Mr. Frank Ampofo”. According to him the family of the deceased “headed by Madam Juliana Oforiwaah acquired the said house in Accra to enable young members of the family who have completed school and find themselves in Accra to have a place to lay their heads”.
[19] He said he is aware that Madam Oforiwaah, the Head of Family sold a 40 acre farm land at Pramkese to raise an initial amount of Sixteen Thousand Ghana Cedis (GH¢16,000.00) to buy the land. He tendered as Exhibit “A” a document titled “Certificate of Absolute Lease/Transfer” to confirm the said transfer.
[20] Mr. Ankomah said the land on which the house was built was purchased from Mr. Gustav Nii Noi Omaboe who acquired his land from the Charbukwei Family of Anyaa. He tendered as Exhibit “B” a copy of the Deed of Assignment. According to Mr. Ankomah following the acquisition of the land by the family, the deceased, Mr. Frank Ampofo was “instructed to construct the dwelling house (the subject matter of dispute) on the land. Mr. Ankomah said the late Frank Ampofo constructed the house with the assistance of other members of the family including the
1st Plaintiff, who is an Aluminum Fabricator. It is the case of the Plaintiffs that the 1st Plaintiff, Mr.
Eric Oduro helped to fix the aluminum windows of the house.
[21] It is the further case of the Plaintiffs that the Defendant was not living in the house with the late Frank Ampofo and has never lived in the house but only sought access to the house after the death of her husband, Frank Ampofo. Mr. Ankomah further said the family refused to allow the Defendant access into the house after the demise of Mr. Ampofo because the house was not a matrimonial home of the Defendant and she was not living in the house as of the time of the deceased’s death. According to Mr. Ankomah “the Defendant is trying to reap where she has not sown”.
[22] Mr. Ankomah further testified and denied that the family refused the Defendant the right to participate in the funeral of the deceased. He also said it is not true that his family said the Defendant was not the wife of the late Frank Ampofo. Mr. Ankomah said “for reasons best known to the Defendant, she decided to seek the intervention of the Chief of Pramkese although there was no indication whatsoever that our family intended to prevent the Defendant from participating in the funeral of the deceased”. According to him the family had no reason to do that.
[23] In his further evidence in chief, Mr. Ankomah said his family “never asked the Defendant to leave the house”. He continued that “the house had been locked up by the deceased himself before he was admitted to the hospital. The Defendant was never resident in the house prior to the hospitalization of her husband. The Defendant had herself vacated the house following a marital dispute with the deceased”. I will have more to say about this testimony later in these reasons.
[24] In further denial of the Defendant’s claim that she discussed the issue of the application for Letters of Administration with the family, Mr. Ankomah said despite their loss all that the Defendant was interested in was to gain access to the house “at the time the family members had travelled to Pramkese and were still in the state of mourning”. He tendered as Exhibit “C”, a letter written by the Defendant’s lawyer to them.
Juliana Oforiwah
[25] The Plaintiffs next called Madam Juliana Oforiwah as witness. Madam Oforiwah said she is a trader based at Pramkese in the Eastern Region. She also said she is the head of family to which the deceased Frank Ampofo was a member. According to Madam Oforiwah the Plaintiffs are her children. She also confirmed that the 2nd Plaintiff is the eldest and the customary successor of the late Frank Ampofo. She also confirmed that Frank Ampofo died on the 9th of September 2012. It is also the case of Madam Oforiwah that the “1st Plaintiff is an administrator of the Estate of my deceased son Frank Ampfo”.
[26] Madam Oforiwah further testified that she knows the Defendant as her late son’s wife. According to her the 1st Plaintiff and the Defendant were jointly granted Letters of Administration in respect of the Estate of Frank Ampofo.
[27] According to Madam Oforiwah she came to Court to testify concerning the property in dispute in support of the Plaintiffs’ case that the said property “is our family property. And not the personal property of Late Frank Ampofo”. She said
“Our family acquired the land in order to build a house for the benefit of family members who might find themselves in Accra. We wanted to have a place where members of the family can lay their heads when they visit Accra. My Late son was the one who was assigned the responsibility of looking for and purchasing a parcel of land in Accra. He found the land and the family sold a 40 acre farm land at Pramkese in the Eastern Region of Ghana to raise money to pay for the land.My late son informed me that a man by name Gustav Nii Noi Omaboe was selling part of a parcel of land he had acquired from a family at Anyaa. The said Gustav Nii Noi Omaboe had developed a portion of the land and was living on it. The land is about one plot. We paid GH¢5,400.00 by instalments for the land. Most of the payment were done through my late son Frank Ampofo. Mr. Omaboe did not give us the indenture immediately because he said he has not yet been signed by the family because he had not completed payment to his grantors. He promised that as soon as his grantors signed his document, he will be in the position to give us the indenture. The indenture was not given to us until after the demise of my son”.
[28] Madam Oforiwah continued her testimony that “I instructed my son to use the rest of the money realized from the sale of the farm land to construct a dwelling place which he did with the assistance of the 1st Plaintiff who helped to fix the glass windows”. According to Madam Oforiwah her late son initially lived in the house with his girlfriend called Rafiatu who assisted “my late son financially to build the house and he promised her that the family will refund the money to her. We have not been able to refund her money. She has been making demands occasionally for the refund of her money”.
[29] Further, according to Madam Oforiwah when the Defendant began to lay claim of the house, she informed her grantor, Mr. Omaboe to expedite action on the indenture and therefore same has now been given to them. Madam Oforiwah concluded her testimony by saying:
“The land does not belong to my son. It belongs to his family. The Defendant is mistaken into thinking that because my late son claimed he constructed and lived in the house, is his self-acquired property”.
Gustav Nii Noi Omaboe
[30] The Plaintiffs next called Mr. Gustav Nii Noi Omaboe. Again, the witness statement filed on February 8, 2017 was adopted at trial as the evidence in chief. Mr. Omaboe’s testimony was that he knows the Plaintiffs as the brothers of one Frank Ampofo who is deceased. He also said he got to know the Defendant was the wife of late Mr. Frank Ampofo after his death. According to him the deceased came to see him with two friends to negotiate the purchase of part of his plot of land because he got to know that “I was selling part of my land through some agents”.
[31] He said the he met with the deceased on about three occasions before they finally agreed on the price of GH¢5,400.00 for the land and he made part payment. He also testified that “initially I prepared an agreement for the sale of the land in the late Frank Ampofo’s name but subsequently, he came with his mother, Madam Juliana Oforiwaah to inform me that the land belonged to the family so when the indenture is finally prepared, it should be in Juliana Oforiwaah’s name as she was the Head of Family. I could not prepare the indenture for her because I had myself not received mine from the family who granted the land to me”. Mr. Omaboe concluded her testimony by saying that the late Ampofo came to him with two friends “who signed the initial agreement as witnesses”. He said he prepared an agreement to show that “I have sold the land to the late Frank Ampofo”. The Plaintiffs closed their case after Mr. Omaboe’s testimony and implored the Court to grant their reliefs endorsed on the writ of summons.
vii. The Defendant's Case:
[32] Ms. Kwaah testified that she is a trader and presently lives at Ofankor, in Accra. She told the Court that she knows the Plaintiffs as siblings of her late husband, Frank Ampofo (deceased), and she together with the Plaintiffs and their mother are natives of Pramkese, a town near Kade. She further testified that Madam Oforiwaa is her mother-in-law and was the one who asked her hand in marriage from her father to the late husband. She said her late husband had his university education at the Pentecost University and was employed by a company in Accra as a Marketing Officer/Sales Officer until his demise.
[33] Ms. Kwaah further testified that “my husband was struck down with sickness for almost a year and during the latter part of his life, my in-law and the 2nd Plaintiff prevented my father and I from visiting my husband on his sick bed at the Korle-Bu Teaching Hospital. During this sad and difficult time, I was instructed by my mother-in-law to leave our matrimonial home, the subject matter of this suit to enable some rituals to be performed in our home. I chose the side of caution and left with our 10 month old son to live with my parents in our hometown. When my husband died I was informed by my mother-in-law not to participate in the funeral rites, and it had to take the intervention of the Chief of our hometown before I was made to perform the widowhood rites”.
[34] The Defendant further testified that:
“it was after the funeral celebrations that I had information on good authority that the Plaintiffs were making frantic efforts to solicit the help of the employers of my deceased husband to secure Letters of Administration, Exhibit “1”. I consulted my lawyers who advised that I write to the family and as evidence in Exhibit “2”, join them to apply for the Letters of Administration to administer the Estate since the maintenance of our child had become unbearable. The Plaintiffs refused on some flimsy excuse that they were considering payment of the funeral expenses of my deceased husband (Exhibit “3”) and my lawyers advised that I apply for the Letters of Administration in my own capacity”.
[35] The Defendant’s further testimony was that the property which is the subject matter of this suit is the self-acquired property of her late husband. According to Ms. Kwaah her late husband was a hardworking man who acquired part of the plot of land from Mr. Gustav Nii Noi Omaboe, and an agreement dated 24th March, 2009 was made between Mr. Omaboe and her later husband. A copy of the said agreement was tendered as Exhibit ‘4C” by the Defendant.
[36] Ms. Kwaah also testified that her late husband employed a mason and instructed him to procure a drawing plan for the building and same was done. Again, the Defendant tendered Exhibit “5” which according to her is the drawing made. The Defendant said all the materials for the property were purchased by her late husband and the construction was done by the mason who was engaged by the late husband. Ms. Kwaah further testified that “I know that the 1st Plaintiff fixed the aluminum frames and glass windows on the property, however these were purchased by my late husband but he employed his own brother who has learnt that trade to fix them in the house” and he paid him for his labour.
[37] The Defendant denied that the property is family property because according to her none of the family members provided any money to her husband for the property. She also stated that “I say that when we settled in the house it was my late husband who had to meet and direct the 2nd Plaintiff to come and visit us in the home because he did not even know the location of the property”.
[38] According to Ms. Kwaah the Plaintiffs after taking over the property have forcibly rented same out and have been collecting rent for it. She said she still has her personal effects in the house. Finally, according to Ms. Kwaah after the suit was instituted she contacted the assignor Mr. Omaboe since he is the one who leased the property to her late husband but he declined because according to him “he had been contacted by the 2nd Plaintiff and his mother to engage the actual grantors of his property to issue to them a conveyance in the name of the Plaintiffs or their mother and he had demanded from them GH¢1,000.00 to pay for the document from the said grantors”. Based on all of the above, Ms. Kwaah prayed the Court to dismiss the Plaintiffs’ claim and grant her counterclaim.
[39] I note that the Defendant filed a witness statement in the name of one Kofi Owusu Ansah who said he is a mason as a witness. At trial however, the witness was not called because according to the Defendant and her Counsel the said witness informed them that he had been threatened by the Plaintiffs mother, Madam Oforiwah through his parents at Pramkese that should he attend Court to testify for the Defendant he would die. Counsel therefore prayed the Court to consider the statement as a hearsay evidence. I need to put on record that the Plaintiffs’ Counsel informed the Court that her clients and their mother vehemently denied the threat accusation.
Now my opinion.
viii. The Court’s Analysis, Opinion & Conclusion:
[40] In my examination of the evidence adduced by the Plaintiff and Defendant in the instant suit therefore, both the Plaintiffs and Defendant have an obligation to adduce sufficient evidence in support of their respective claims and same would be measured, weighed in the same degree and extent which any litigant in a civil trial is obligated to adduce in order that upon a proper balance the logical inferences and findings would be arrived at relevant to support the conclusions. For, the general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the Court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.
“Except as otherwise provided by law, 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 he is asserting”
[41] It is not in any serious contention that a plot of land situate at Anyaa or Awoshie as the evidence asserted was assigned by Mr. Gustav Nii Noi Omaboe to Frank Ampofo deceased. The house, the subject matter of the dispute was built on the said land. What is in contention is that whilst the Plaintiffs contend that the money for the acquisition of the land and the building of the house was from their mother, Juliana Oforiwah who sold a family land at Pramkese and gave same to their late brother, Frank Ampofo deceased for the purchase of the land and the building of the house, the Defendant vehemently denies and challenges the Plaintiffs contention. The bone of contention therefore is does the property belong to the deceased or his family?
[42] The following evidence crucial and relevant to the issue under discussion was elicited during the cross-examination of the Mr. Kwadwo Ankomah, the 2nd Plaintiff on Tuesday, June 13, 2017.
“Q: The house in question the subject matter of the suit did your family purchase it
A: The house belongs to the family
Q: Did your family purchase it as a house?
A: No the family did not purchase the house but I have an explanation. The family purchased the land to develop same.
Q: Is that what you meant by stating in paragraph 9 of your witness statement that the family acquired the house in Accra
A: That is not the case I would like to explain. I used paragraph 11 to explain paragraph 9 that we purchased the land and built the house
Q: Now you claim that the family sold its farm land and used the amount from it to build this house
A: Yes I still stand by the statement
Q: Was it a family land or a land belonging to your mother Madam Oforiwaa
A: It belonged to my mother Madam Oforiwaa
Q: You claim in your witness statement that you sold a 40 Acre farm land at Pramkese
A: Yes
Q: How much did your mother sell the land for?
A: GH¢16,000
Q: Is that the land which is covered by a transferred certificate in Exhibit A
A: This is not all the document there are other documents to be added
Q: I am putting it to you that so far this is the only document that you have shown to the Court that it is the property you sold and used to build this house
A: Yes that is the only document. Exhibit 1 is in respect of the land that the whole family met and agreed to sell same. Later on we sold other lands.
Q: How much did your mother’s land cost as in Exhibit A
A: 8 million old Ghana cedis that is GH¢800
Q: The house the subject matter of this suit how many bed rooms are in the house
A: Three bed rooms
Q: And where is the house
A: Awoshie Anyaa
Q: And how much did the land itself cost
A: GH¢5,400
Q: How much did the whole house cost your family in building?
A: I can’t give the exact figure but I can provide a rough estimate. GH¢40,000
Q: You claim that the house belongs to your family. Can you take a look at Exhibit B that is the deed of assignment covering the property. Who is the property for?
A: Juliana Oforiwaa my mother
Q: Please look at the site plan covering the house whose name is there
A: Juliana Oforiwaa
Q: So do you still stand by the fact that the property is for your family
A: Yes but my mother Juliana Oforiwaa is the one in charge of us
Q: Exhibit B the assignment on which date was it made
A: 24th March, 2009
Q: Please look at the oath of proof, you know Isaac Narh was a witness for the assignor is that not it
A: Yes
Q: And he was present on the day that this document was signed is that not so
A: That is so he was present
Q: Isaac Narh claims that he was present on 16th January, 2017 and not on 24th March, 2009
A: Isaac Narh had already signed as witness. In respect of oath of proof it was when the document was presented to the commissioner of oath that is when he signed
Q: You witnessed for Madam Oforiwaa, is that not the case?
A: Yes
Q: Was Isaac Narh present when you signed
A: Yes
Q: And the two of you witnessed on 24th March 2009 is that not so
A: That is so
Q: So how do you explain Isaac Narh statement that he signed on 16th January, 2017 but not on 24th March, 2009?
A: I would clarify the statement by saying Isaac Narh had already signed Exhibit B before same was taken to the commissioner of oath
Q: I am putting it to you that you did this document in January, 2017 just to overreach the Defendant that the property is for the late husband
A: Is not true
[43] Madam Oforiwaa as indicated above testified on October 10, 2017. Essentially her testimony was that she sold some lands at Pramkese and used same to purchase the land on which the house was built. When she was cross-examined by the Defendant’s Counsel this is what happened.
“Q: How much did you buy the land as you claim for your family?
A: The price for the land was for 54 Million old cedis (GH¢5,400). But I also paid something for the preparation of some documentation.
Q: Was this money paid in bulk or paid by instalment
A: I paid in full
Q: Did you come alone or you came with other persons.
A: I was there with my children
Q: So why did you give your statement on paper that you paid in instalment through Frank Ampofo the deceased
A: What I am saying now is that I paid 54 million cedis old currency in full and this was done in the presence of my children
Q: How much did you sell your land for?
A: Initially I sold 20 acres of the land but I realised that proceeds from the sale will not be enough so I called my head of family who sat down with me and agreed on additional 40acres
Q: The farm in your name that you sold to Mr. Adu Tebi and his brother how much did you realize?
A: I sold it to them for 54million old Cedis I brought a surveyor from Kade and I was there when the demarcation was done
Q: I am putting it to you that the only land that you sold is the land as stated in exhibit A which cost 800ghs
A: I disagree I also sold the land to another man at Kade called Asomdweeba
Q: Out of the proceeds of this farm in Exhibit ‘A’ you claim you gave the money to your son Frank Ampofo deceased and used the rest to build the house
A: That is not correct I did not give him the money
Q: I am putting it to you that your statements before this court are fabrications
A: That is not correct
Q: I am putting it to you that that property at Anyaa is not your family property it is a self-acquired property of your late son Frank Ampofo
A: That is not correct
Q: You have stated on paper before this court that your late son constructed the subject matter of this suit is that not so?
A: That is not correct.
[44] To prove the source of the money for the acquisition of the land, the Plaintiffs tendered Exhibit “A” which as indicated above is titled “Certificate of Absolute Lease/Transfer” dated 20th March 2000 made between Madam Juliana Oforiwah of Akim Pramkese and one Adu Tabi also of Pramkese for the transfer of a 20.8 acre farm land. The amount paid was Eighty Million Old Ghana Cedis, now Eight Hundred Ghana Cedis (GH¢800.00). To the Plaintiffs it is the smoking gun of how the land for the house was acquired. The remarkable feature about the said exhibit however is that it was made about nine years before the alleged acquisition of the land, the subject matter of the suit. The amount endorsed on it also is not even half of the alleged amount paid for the land which is GH¢5,400. Madam Oforiwaa could not tell the Court which land she allegedly sold again to supplement the GH¢800 she got at the turn of the millennium except to say she sold the land to one Asomdweeba of Kade. Further, even though in her evidence in chief Madam Oforiwah said the amount of GH¢5,400 was paid “by installments for the land through Frank Ampofo”, at trial she said all the amount was paid in full by herself. And so which is which?
[45] Madam Oforiwah further told the Court that the amount was paid by herself in the presence of three of her children, namely Jessica Kumiwa, Ofori and Yaw Asamoah. However, none of the said children was called to testify. Mr. Omaboe, the Assignor also did not confirm the said payment by the alleged Head of Family of the Plaintiffs to him. To make matters worse, Kwadwo Ankomah the 2nd Plaintiff in his testimony told the Court that the mother (Juliana Oforiwah) sold a 40 acre land for GH¢16,000 but no evidence of same was put before the Court. Based on all of the above to my mind, Exhibit “A” and the Plaintiffs story as to how the land on which the house is situate was acquired is self-serving and to be blunt does not make sense. Clearly there is no nexus between the GH¢800.00 received in the transfer of the land at Pramkese in the year 2000 and the acquisition of the land in Accra nine years later. It is a fabricated story with no air of reality to it.
[46] The next document submitted by the Plaintiffs to prove the ownership of the land was Exhibit “B”, the deed of assignment dated 24th day of March, 2009 alleged to be between Gustav Nii Noi Omaboe and Juliana Oforiwah. Again the least said about this document the better. With the greatest respect to the Plaintiffs, I say without any contradiction that Exhibit “B” is self-serving document fraudulently prepared for purposes of litigation. I therefore reject same and place no weight on it. First and foremost, Mr. Omaboe admitted at trial that he gave a document to Frank Ampofo in March 2009. That document is Exhibit “4C”, in so far as the trial record goes. That document describes the land assigned. Exhibit “4C” was signed by both Mr. Omaboe and the late Frank Ampofo and same is dated March 24, 2009. He also said, the late Ampofo came with two friends who witnessed for him. Mr. Omaboe did not speak to the existence of Exhibit “B” made in March 2009.
[47] It is also instructive to note that according to Mr. Omaboe, he only provided Mr. Ampofo with that agreement because he did not have his own indenture from his grantors at the material time in 2009. Curiously, in the face of such incontrovertible evidence Exhibit “B” tendered by the Plaintiffs suggests that on the same day of March 24, 2009 Mr. Omaboe and Madam Oforiwah of “P.O.Box ... Accra” signed the deed of Assignment. Meanwhile, the Oath of Proof states:
“I, Isaac Narh of Accra make Oath and say that on the day of 16th January 2017 I was present and saw the within-named ASSIGNOR duly execute the Instrument now produced to me and marked “A” and that the said ASSIGNOR can read and write:
SWORN IN ACCRA THIS 12th day of January 2017 – Signed – By Deponent
REGISTRAR OF LANDS
On the 12th day of January 2017 at …. O’clock in the afternoon this Instrument was proved
before me by the Oath of the within-named…. to have been duly executed by the within named ASSIGNOR
REGISTRAR OF LANDS
This is the Instrument marked “A’ referred to in the Oath of …….Sworn before me…this 12th day of January 2017.
SIGNED – REGISTRAR OF LANDS”
[48] This is how the 2nd Plaintiff desperately tried to explain the obvious problems with the document and in particular the varying dates on the document when he was cross-examined by the Defendant’s Counsel:
‘Q: Exhibit B the assignment on which date was it made
A: 24th March, 2009
Q: Please look at the oath of proof, you know Isaac Narh was a witness for the assignor is that not it
A: Yes
Q: And he was present on the day that this document was signed is that not so
A: That is so he was present
Q: Isaac Narh claims that he was present on 16th January, 2017 and not on 24th March, 2009
A: Isaac Narh had already signed as witness. In respect of oath of proof it was when the document was presented to the commissioner of oath that is when he signed
Q: You witnessed for Madam Oforiwaa, is that not the case?
A: Yes
Q: Was Isaac Narh present when you signed
A: Yes
Q: And the two of you witnessed on 24th March 2009 is that not so
A: That is so
Q: So how do you explain Isaac Narh statement that he signed on 16th January, 2017 but not on 24th March, 2009?
A: I would clarify the statement by saying Isaac Narh had already signed Exhibit B before same was taken to the commissioner of oath”
[49] The Court’s simple observation and comment to the attempt by the 2nd Plaintiff to explain the obvious problems with the document is to state in no uncertain terms that the Plaintiffs ought to know that it was illegal for the said Mr. Narh to supposedly sign a document on the “16th of January 2017” and for same to have been commissioned on “12th January 2017” especially when the document was prepared eight years earlier.
[50] It is apparent from the varying dates of when the said Mr. Isaac Narh signed (January 16, 2017) as a deponent and when the Registrar of Lands as Commissioner signed on January 12, 2017 to conclude that the said Exhibit “B” was concocted fraudulently for the purpose of this litigation and therefore I reject same as an unreliable document tendered primarily to deceive the Court. Going forward it is important for litigants to know that the Court is both a Court of law and conscience and so it is able to unravel untruths.
[51] I note that Counsel for the Plaintiffs in his written legal submission to the Court wrote at page 5 thus:
“I humbly submit that the Plaintiffs have discharged the duty imposed on them by law to prove their assertion that the house is a family property by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the House is a family property. Beginning with the acquisition of the land on which the house was build it is clear that the land was purchased by PW1 the mother of the Deceased and the Plaintiffs and the Head of Family. This was done through the Defendant’s husband”.
[52] In my respectful opinion the Plaintiffs Counsel’s submission is disingenuous, unfounded and unmaintainable because it is not backed by the evidence heard at trial and also based on my analysis above. With the greatest respect to Counsel this Court has no idea how the Plaintiffs proved their case on the acquisition of the land and thus discharged their burden.
[53] Be that as it may, another evidential puzzle which in the opinion of the Court the Plaintiffs had to prove was in regards to how the house was built. That is, even if I were to accept the acquisition of the land narrative retailed by the Plaintiffs, the next issue is how was the house built? The 2nd Plaintiff in his evidence said the estimated cost is GH¢40,000.00 but no evidence was provided by the Plaintiffs to demonstrate how the house was built and the source of the estimated GH¢40,000.00. No receipt of purchases of building materials or anything as proof in regards to the construction was submitted to the Court. No scintilla of evidence was provided to the Court. According to Madam Oforiwah a certain lady called Rafiatu, a former girlfriend of the deceased “assisted my late son financially to build the house and he promised that the family will refund the money to her”. According to her the refund remains outstanding. The question is where is the said Rafiatu and why was she not called to speak to her alleged financial support or benevolence? Once again I do not believe the story because it is another fabrication by the Plaintiffs and their mother, Madam Oforiwah.
[54] I need to caution myself that the Plaintiffs have made many statements which ordinarily merit a response but they are directed at Frank Ampofo who is now deceased and is unavailable as a witness in terms of S. 116(e)(iii) of the Evidence Act, 1975 (NRCD 323) and therefore cannot appear to tell his side of the story as to whether indeed the house was his personal property or that of his maternal family as alleged by the Plaintiffs. And the settled rule of law is that the evidence involving a deceased person is always received and treated with extreme circumspection and suspicion. The policy rationale is that the deceased, unlike the Biblical Lazarus, cannot come out of his grave to tell his story, to assert any claim or disprove one. Proof must therefore be strict and utterly convincing. See: MOSES v ANANE (1989-90) 2 GLR 694 C/A as adopted and applied by Brobbey JSC in APEA v ASAMOAH (2003-2004) SCGLR 226 at 241.See also GRACE ASANTEWAAH v. MARK AMANKWAH ADDO [2008] 1 GMJ 2009 @ page 212.
[55] As was held by the Court of Appeal in the case of AMANKWAH & OTHERS v NSIAH [1994 - 95] 2 G B R 758 – 774 C A a case which is similar to the facts of this case in the sense that the litigation started when the person at the centre of the matter had passed on, the Court per Essiem, Brobbey & Acquah JJA held at holding 2 as follows:
“Even more damaging to the Plaintiff’s case was the fact that the action was instituted only when the deceased had died. The law was well established that a claim against a dead person should be viewed with utmost suspicion and examined critically. Such a claim must not be taken on its face; all tests for credibility ought to be applied. A high degree of proof, utterly convincing was required. Proof on the balance of probability was insufficient neither should the claim be established by the testimony of the claimant alone. The claimant ought to explain the omission to make the claim while the deceased was alive”.
[56] Taking a cue from the statement above, I dare ask why did Madam Oforiwah and Plaintiffs not claim the house when Frank Ampofo was alive? To my mind and based on the evidence together with the above analysis, the irresistible conclusion is that they did not claim the house when before Mr. Ampofo died because they know that the deceased acquired the property through his own effort contrary to their unbelievable story. Consequently, I hereby resolve the main issue 1 against the Plaintiffs. That, there is no evidence that the Plaintiffs’ family acquired the land and built the house, the subject matter of the house on it.
[57] In fact, the Plaintiffs do not deny that the late Ampofo was University educated and had a job with a Company here in Accra as a Marketing or a Sales Officer until his death. To that extent, I am of the respectful opinion that having acquired the land from Mr. Omaboe and having drawn up a plan for the construction of the house (Exhibit 5) the late Frank Ampofo was also capable of constructing the house at the centre of this litigation and therefore I hold that the deceased personally acquired the residential property on Plot Number 35 7/10 at Anyaa/Awoshie near Odorgonno Senior High School. To emphasize I do hold that the property is not a family property.
[58] I also hold that based on the evidence and contrary to the 2nd Plaintiff’s contention in his evidence in chief that the Defendant “never lived in the house”, the Defendant did live in the house with the deceased even though it may not have been for a long time. I wish to state that I was not impressed at all with the 2nd Plaintiff as a witness and in particular on the issue as to whether the Defendant has ever lived in the house, the subject matter of the litigation. Mr. Kwadwo Ankomah prevaricated. He deliberately pretended to give answers to the questions asked of him but his answers did not make sense. It was a trick he employed to parry off the questions of Defendant’s Counsel.
[59] In yet another snippet of cross-examination this is what transpired:
“Q: You know that the Defendant was living in the house with the husband before the husband’s death
A: That is not true she was not living there
Q: Did she ever live in the house
A: Defendant has lived in the house but I have explanation. My brother Frank Ampofo the deceased drove the Defendant from the house long time ago. The deceased locked the house before going to the hospital
Q: Can you please read paragraph 13 of your witness statement
A: Witness read to open court
Q: Do you still stand by the fact that the Defendant never lived in the house
A: Yes, I still stand by the fact that Defendant never lived in the house because she doesn’t live there”
[60] As a general rule, a witness whose evidence on oath is contradictory of a previous statement made by him whether sworn or not is not worthy of credit and his evidence is not worthy of any importance in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradictions. I need to stress, however that, that rule is contingent upon giving such a witness the platform to explain the inconsistencies pursuant to Section76 of the Evidence Act, 1975 (NRCD 323). In this case even though Mr. Ankomah was given the opportunity to explain the contradictions and inconsistencies, in the Court’s opinion his explanation further showed that he is not a credible witness.
[61] In my respectful opinion, from the exchange above, it is clear that the Plaintiffs admit that the Defendant lived in the house even though they want the Court to believe that it was for a brief period and also that she was kicked out by the deceased. Once again, I assess their evidence with suspicion and conclude that it is less probable to be true. I also note that Plaintiffs’ Counsel in his submission opined and repeated his clients’ story that the marriage was only for about a year and also that the Defendant never lived in the house. The Court’s simple response is that even if the marriage was brief and so what? The alleged brevity of the marriage does not make the house less a matrimonial home. By reason of the inconsistencies in the testimony of the 2nd Plaintiff it is my judgment that the Plaintiff’s evidence on whether the Defendant lived in the house is not worthy of any credit.
[62] In my view, the Plaintiffs’ case put up is made up of so much fabrication and conjecture and as such it has so many weaknesses which together strengthens the Defendant’s case presented. I therefore resolve issue 2 against the Plaintiffs that there is no evidence that the deceased lived in the house with the permission of his family. I also resolve the issue raised by the Plaintiffs that the property is not the self-acquired property of Frank Ampofo deceased against them. I further resolve the additional issue in favour of the Defendant.
[63] The Defendant has persistently maintained both in her pleadings and evidence that the house is the self-acquired property of her late husband. She also acknowledged that the 1st Plaintiff, Eric Oduro did some work in the house but said he was paid for his professional expertise. Indeed I do not think that the Plaintiffs challenged that evidence at all and therefore the Court has no reason to disbelieve her.
[64] Even though the Court recognizes that the Defendant under cross-examination also prevaricated on such matters such as whether it was her late husband who gave her a copy of Exhibit 4C or whether she received same from the Assignor, in my view that issue does not go to the root of her claim. Indeed, Mr. Omaboe admitted that he is a signatory of Exhibit 4C and as I have found that exhibit clearly establishes the transaction Mr. Omaboe had with the deceased. Therefore, whether the Defendant received a copy from her late husband or from Mr. Omaboe is immaterial. I do think that such inconsistency must of necessity, be of grave and material in nature capable of turning the result of the case against the Defendant. In support of this contention I rely on ODAMETEY v CLOCUH (1989-90) GLRD. To that extent I am not persuaded that I should disbelieve the Defendant evidence as submitted by Plaintiffs’ Counsel.
[65] In any case, based on my analysis above it is logical to hold and grant the Defendant’s Counterclaim. As I have held, the property is not a family property and therefore the Plaintiffs have no legal right to rent same out. They are indeed intermeddlers in the eyes of the law. Interestingly, though they claim the house was put up to house family members who may find their way from Pramkese to Accra to have a place to lay their heads, they have rented same out after taking over. If they are not the owners then they have no right to rent same out. I shall therefore grant the Defendant’s relief one and order that the Plaintiffs account to the administrators of the estate, that is the 1st Plaintiff and the Defendant all rents collected in respect of the house based on when the tenancies signed started.
Conclusion & Disposition:
[66] In regards to the Defendant second relief of the Counterclaim, I think and do hold that apart from the acrimonious relationship which now exists between the parties herein, there are other grounds upon which the Defendant can and should recover possession. It is not disputed that at the time of the deceased death, she was the wife and therefore the widow who was only tricked out of the house by the Plaintiffs. Also, there is the uncontroverted evidence that she is the mother of the deceased’s son, Derrick whom the 2nd Plaintiff admitted is now the responsibility of the Defendant as his primary care giver and for his needs. I am convinced that it is in the child’s best interest that he lives and enjoys the property his late father left before his demise. In the light of the reasons I hold that the Defendant is entitled to recover possession of the property, the subject matter of this litigation.
[67] Overall, I am satisfied that the Defendant has been able to prove her case based on the evidence and on the preponderance of probabilities, and is entitled to judgment on her Counterclaim. On the contrary, the case of the Plaintiffs is riddled with serious doubts, untruths and inconsistencies and discrepancies which make it difficult to believe. In the result, the Plaintiffs’ action fails and it is so DISMISSED. Having regard to the conclusion I have come to, I enter judgment for the Defendant on her counterclaim for recovery of possession and accounts for rents collected. I order the Plaintiffs who rented the house out to give notice to the tenants to look for an alternative accommodation and give vacant possession to the Defendant within 3 months from today.
[68] Finally, I cannot end this judgment without reminding the Plaintiffs and sadly with the connivance of their mother, the grandmother of little Derrick that bereavement and grieving are issues of mental health, which is human right issue recognized by law. A bereaved person like the Defendant/widow who lost a spouse shortly after her marriage deserves psychological closure and not psychological torture. To compound such a person’s pain of loss with a litigation anchored on untruths and fabrication in my respectful opinion amounts to inhuman and degrading treatment or discrimination where the ground is mainly because the person is a woman whose only “crime” was to be married to the deceased.
[69] It is very important that the issue of maltreatment of widows, when established, should be condemned in no uncertain terms and dealt with ruthlessly because it is an issue this society is afraid to tackle. It has become a scar on the conscience of our society such that a time has come to deal with it for what it is because it is antithetical to contemporary values and beliefs and certainly unacceptable. What has unfolded in this case is a clear example of how a deceased man’s family can needlessly be an albatross around the neck of a widow in the name of custom. On my part, sitting as a judge I wish to state that I shall refuse to endorse cultural practices and litigations such as the one at bar which degrade human dignity or constitute discrimination against surviving spouses.
[70] Based on the evidence presented in this litigation I see no genuine justification for the caveat which led to this suit except to say that the Plaintiffs and their mother just cannot accept the fact that their brother and son’s short marriage should give the Defendant what the law says she is entitled to. I hope that the parties shall bury the hatchet so that each individual would have the opportunity to have a closure to their loss and for little Derrick to enjoy his young life in the home of his father because as the good old book the Bible says “Religion that God our Father accepts as pure and faultless is this: to look after orphans and widows in their distress and to keep oneself from being polluted by the world” (James 1:27). A word to the wise…
[71] Based on my findings above, ordinarily, this would have been an appropriate case to award punitive costs against the Plaintiffs as a sign of public opprobrium and rebuke for embarking on such unwise, painful and costly litigation. However, in the interest of unity for and among the family and to foster peaceful co-existence especially because of the little boy, I only order nominal cost GH¢ 5,000 to the poor widow to take care of her legal costs.
