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JUDGMENT:
By a writ of summons the
plaintiff claims against the
defendant:
“i A declaration that
the Plaintiff is the owner of 6
stores located in the ground
floor of the property known as
Number B11/1 Abossey Okai,
Accra;
Ii Recovery of
possession of the 6 stores
located in the ground floor of
the
property known as
Number B11/1 Abossey Okai,
Accra.
iii An Order of
Perpetual Injunction restraining
the Defendant, his agents,
assigns or whomsoever from
dealing with the 6 stores
located on the ground floor of
property Number B11/1, Abossey
Okai in any manner adverse to
the Plaintiff’s ownership and/or
possession of the said 6 stores:
iv Accounts of rents
received by the Defendant in
respect of the said 6 stores
from April 2005 till date of
judgment;
v
Costs”.
After the service of the writ
with its accompanying statement
of claim on the defendant, an
appearance was entered and later
a statement of defence filed on
behalf of the defendant in which
the defendant counter claims
against the plaintiff:
“(a) A Statement of Account
for all GOODWILL and RENTS
he collected from the Tenants in
the six (6) ground floor stores
in the subject House during and
after the death of Emmanuel
Adotey Akueson (deceased) and
until the revocation of the
Power of Attorney which the
Defendant donated to the
Plaintiff.
(b) The recovery of the
car, or its present value in
monetary terms”.
The issues set out in the
application for directions were
adopted by the court for
determination.
At the trial the plaintiff gave
evidence and called one witness
to close his case. The
defendant also testified per his
attorney after which four
witnesses were called to give
evidence in support of the
defendant.
By paragraph 4 of his statement
of defence, the defendant has
admitted and the court finds
that the late Emmanuel Adotey
Akueson was the original owner
of property Number B11/1 Abossey
Okai, Accra. Again the court
finds that the said property was
originally a piece of land on
which a non-permanent structure
made of corrugated iron sheets
had been constructed by one Nana
Edward Dontoh, who had leased
the said piece of land from the
late Emmanuel Adotey Akueson.
The case for the plaintiff is
that he entered into an oral
agreement with his father-in-law
Emmanuel Adotey Akueson
(deceased) to construct twelve
stores (12) on the plot of land
No. B11/1, Abossey Okai, Accra
which belonged to the said
Emmanuel Adotey Akueson.
According to the plaintiff, the
parties agreed that the
deceased, will collect the rents
in respect of the first six (6)
stores to be completed while the
plaintiff completes the next six
(6) stores. Thereafter, the
twelve stores were to be shared
equally.
The plaintiff says that after
the completion of the first six
stores which were the ground
floors, each store was leased
out for GH¢3000 and the money
paid to Mr. Akueson, who
unfortunately died few months
thereafter.
The defendant who was granted
letters of administration to
administer the estate of his
father Emmanuel Adotey Akueson
came down from his place of
residence in Germany and gave a
Power of Attorney to the
plaintiff to administer the
stores. After some time
however, the Power of Attorney
was revoked and the defendant,
without recourse to the
agreement between plaintiff and
the deceased Akueson, built the
remaining (6) six stores on top
of the original six stores put
up by the plaintiff. The
plaintiff therefore sued the
defendant for the reliefs
indorsed on his writ of summons.
The court finds from the
evidence on record that the
construction of the first six
(6) stores was solely financed
by the plaintiff without any
contribution from anybody
whatsoever. During cross
examination, the Defendant’s
Attorney tried to state at the
initial stages that her father
the late Emmanuel Adotey Akueson
gave money to the plaintiff to
begin the construction of the
first (6) stores. However, when
she was pressed by counsel for
the plaintiff to state how much
the late Akueson gave to the
plaintiff, she could not tell.
The Defendant’s Attorney had
earlier stated in her evidence
in chief that the plaintiff
started the construction of the
stores with a loan of Twenty
Million Cedis which is presently
reckoned at GH¢2000. This
Twenty Million Cedis according
to the Defendant’s Attorney was
later refunded by the defendant
to the plaintiff through their
deceased father. The
defendant’s attorney retracted
this initial testimony under
cross examination when she
answered the following questions
put to her by the lawyer for the
plaintiff:
‘Q: Can you tell the court what
your brother contributed to the
six stores
A: I don’t know how much he
contributed or he remitted
because he sent down money
several times.
Q: The money was sent to whom?
A: My father
Q: So your brother has never
sent any money to the plaintiff
to put in the construction?
A: No my Lord’.
As already stated therefore, the
court finds that the
construction of the six (6)
stores was single handedly
financed by the plaintiff and
that no family member of the
defendant or the defendant
himself assisted financially in
the construction of the six
stores by the plaintiff herein.
In respect of the issue whether
the plaintiff collected any rent
and or goodwill from any tenant
in respect of the stores, the
plaintiff testified to the
effect that each of the six (6)
tenants who rented the six
stores was made to pay a sum of
GH¢3,000 respectively as
goodwill. The plaintiff says
these sums of money was paid
directly to and received by
Emmanuel Adotey Akueson
(deceased) before he died.
The defendant’s Attorney agrees
with the plaintiff that each
tenant was asked to pay Thirty
Million Cedis equivalent to
GH¢3000. However, whereas the
plaintiff says that the said
amount was received by Emmanuel
Adotey Akueson (deceased), the
defendant’s attorney says that
the total amount collected was
given to the plaintiff to be
paid into the account of Akueson
(deceased) and bring the receipt
of payment otherwise known as
the paying-in-slip to Akueson
(deceased). This piece of
evidence was corroborated by the
evidence of DW1 – Mr. Bart
Foli. The plaintiff has denied
this assertion by the
defendant’s attorney and his
witness.
The law is that a party who
makes a positive assertion by
his pleadings and evidence
assume the burden of leading
credible evidence to prove his
assertion or claim. See
sections 14 and 17 of the
Evidence Act 1975 NRCD 323 and
the case of Bank of West Africa
Vs. Ackun [1963] 1 GLR 176 SC.
The court finds that short of
the defendant’s attorney’s
narrative together with that of
the defendant’s witness DW1
there is no positive proof of
the allegation that the money
collected which amounts in total
to GH¢18,000, was given to the
plaintiff to pay into the bank
account of Emmanuel Adotey
Akueson (deceased).
Accordingly, I hold that the
allegation that an amount of
GH¢18000 was received by Akueson
(deceased) but given to the
plaintiff to pay into the bank
account of the deceased has not
been proved by the defendant
herein.
The plaintiff has however
admitted that following the
donation to him of a power of
attorney by the defendant he
collected rent from the six
tenants occupying the six (6)
stores for a period of four (4)
years. Each store attracted a
rent of GH¢120 for a year making
a total of GH¢720 for the six
(6) stores and an overall total
rent receivable of GH¢2,880.
The court finds from exhibit ‘B’
a Power of Attorney donated by
the defendant to the plaintiff
that the defendant mandated the
plaintiff to manage the six (6)
stores in question and collect
rents therefrom. It is also
clear from exhibit ‘B’ that the
plaintiff was to deposit the
rent collected from the stores
into an account at a Bank to be
designated and or nominated by
the defendant herein. The court
finds that the defendant and his
witness have not led any
evidence to show that he indeed
designated or nominated any Bank
to enable the plaintiff deposit
the rent so collected thereto.
The court finds also that the
defendant by exhibit ‘B’ had
charged the plaintiff “to
maintain my late father’s widow
– i.e. my mother in all aspects
of her well-being”. The
evidence of the plaintiff, in
respect of the management of the
rent received, is that he used
the collected rent to maintain
the widow of Akueson (deceased)
the mother of the defendant as
directed by the defendant in his
Power of Attorney. The court
therefore does not see the point
in the defendant’s cry of
mismanagement of the rent
collected by the plaintiff.
Nevertheless, I will order the
plaintiff to file an account in
respect of the rent collected by
him as demanded by the defendant
in his counter claim.
The plaintiff has testified that
he agreed with Emmanuel Adotey
Akueson (deceased) that the
plaintiff was to build twelve
(12) stores after which the
parties will share in equal
ratio. Again apart from the
plaintiff’s narrative, there is
no concrete evidence in proof of
this allegation. In the opinion
of the court in view of the
denial of this assertion by the
defendant herein, the plaintiff
cannot succeed on this claim
without concrete proof of the
allegation of the sharing of the
stores. This becomes more
significant in the face of the
fact that this claim is being
made against the estate of a
deceased person and is being
asserted against a dead person.
See the case of Bonney vs.
Bonney Pt 2 [1992-93] GBR 779
SC. @797 to 798. I will
hold that given the state of the
plaintiff’s evidence, the
plaintiff has not succeeded in
proving that, he agreed with
Emmanuel Adotey Akueson
(deceased) to share the twelve
stores (when built) equally
between themselves.
It is very important to point
out that the alleged agreement
to build twelve (12) stores
never materialized given the
evidence on record that the six
(6) additional stores were built
by the within-named defendant.
There is therefore factually no
twelve (12) stores to share
equally by the plaintiff and
defendant or the estate of
Akueson (deceased).
There is no evidence on record
to support the plaintiff’s claim
for a declaration that the
plaintiff is the owner of 6
stores located in the ground
floor of the property known as
Number B11/1, Abossey Okai,
Accra. The evidence on record
is that the six (6) stores were
built on land owned by Emmanuel
Adotey Akueson (deceased) by the
plaintiff. How can the
plaintiff therefore asked for a
declaration of ownership of the
(6) stores and of recovery of
possession as well as perpetual
injunction?
There is evidence however on
record that the properties of
Emmanuel Adotey Akueson
(deceased) have been given, per
exhibit ‘A’ – letters of
administration, to Atta Addo
Akueson the defendant herein to
manage. I will therefore
decree, in the circumstances of
this case, that the 6 stores
belong to the estate of Emmanuel
Adotey Akueson which is being
administered or managed by the
defendant.
However, as long as there is
evidence on record that the six
(6) stores were built and
financed by the plaintiff herein
justice will be done if the
plaintiff is made to recover the
cost of the building at current
values. The plaintiff has
tendered in evidence exhibit E1
a valuation report on the six
(6) stores done as far back as
April 2003. This valuation
report has not been challenged
in any way by the defendant.
The court will therefore award
to the plaintiff the sum of GH¢23,900
representing the value of the
property as at 2003. Judgment
is therefore entered for the
plaintiff to recover the sum of
GH¢23,900 from the defendant.
Cost of GH¢1000 is awarded the
plaintiff against the defendant.
S. K. A. ASIEDU, J.
JUSTICE OF THE HIGH COURT
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