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JUDGMENT
BY COURT:
On 14th November,
2008, the Plaintiff issued this
writ, accompanied by a Statement
of claim and claimed the
following reliefs.
I.
An Order for recovery of
possession of the aforesaid land
together with the house numbered
C48/22 Abofu, Accra, the subject
matter of this suit from
Defendant.
II.
Perpetual Injunction restraining
Defendants, their heirs, privies
assigns and all other persons
claiming through Defendants and
whatsoever described from
interfering in any way
disturbing Plaintiff’s Peaceful
and or quiet enjoyment of her
land, together with her house
number C 48/22, Abofu, Accra,
the subject matter of this suit.
III.
General Damages for trespass.
The gist of the case of the
Plaintiff put up in her
Statement of Claim is that by an
agreement between the Plaintiff
and one Doris Lolonyo Hotse as
the vendor she purchased the
land in dispute together with
the house thereon, and put in
occupation her son Richard
Peprah. That her son Richard
Peprah died, and thereafter, the
Defendant occupied the said
house without her consent.
Sometime in 2008, she caused her
solicitors to write to the
Defendant to vacate from the
house. The Defendant also
caused her solicitors to reply
to the said letter, and denied
Plaintiff’s title.
The Defence of the Defendant is
that it was Richard Peprah, her
Sister’s husband who came down
to Ghana from United States and
acquired the disputed premises
from Madam Efe Amponsah Mensah
in 1994. That in 1997, Richard
Peprah married her sister Mrs.
Iris C. Peprah and they lived in
this house till they left for
the United States in 1999.
The Defendant pleaded further
that Madam Efe Amposah Mensah
prepared the document in respect
of the house in the name of
Plaintiff before Mrs. Iris C.
Peprah was married. After the
marriage, Richard Peprah
requested Madam Efe Amponsah
Mensah to change the documents
into his name, but this could
not be done before Richard
died. That Richard Peprah
devised the house in dispute to
Iris C. Peprah the Defendant’s
Sister.
With regard to the letters
pleaded by the Plaintiff, the
Defendant admitted that they
were written, but the house
belonged to her sister, by the
Will of Richard Peprah, and
therefore cannot be ejected.
The Defendant counter claimed as
follows:
a.
Declaration that the disputed
house numbered C 48/22, Abofu,
Achimota Accra has now devolved
upon Mrs. Iris C. Peprah by
virtue of a devise made by
Richard Peprah (deceased) as
contained in his last Will and
Testament dated 24th
July, 2003 and admitted to
probate.
b.
Perpetual Injunction to restrain
the Plaintiff her agents,
assigns, servants, workmen,
privies, grantees and by all
claiming through under and in
trust of the Plaintiff, from
interfering in anyway whatsoever
with the House No. C 48/22
Abofu, Achimota, Accra in the
Greater-Accra Region of Ghana.
The issues that were set down
for resolution are as follows:
i.
Whether or not Plaintiff is the
rightful owner of the disputed
land.
ii.
Whether or not Richard Peprah
was the rightful owner of the
disputed land.
iii.
Whether or not Defendant has any
valid interest in the disputed
land.
iv.
Whether Plaintiff is entitled to
all or any of the reliefs
claimed in this case.
v.
Whether or not Defendant is
entitled to any of the reliefs
claimed in her counter claim.
vi.
Any other issue arising from the
pleadings filed in this case.
The Plaintiff gave evidence that
she is a Ghanaian who lives in
the United States of America.
That she is a Nurses Aid in
America and earned US$1,800.00 a
week, but her take home pay was
US$600.00.
The Plaintiff tendered Exhibit A
as the document given to her
when she purchased the house.
Exhibit ‘A’ is a lease between
Doris Lolonyo Hotse and the
Plaintiff, and is dated 2000.
The Plaintiff gave further
evidence that she bought the
house from Antie Efe but she
also named other persons that
she bought the land from.
Exhibit ‘A’ however has the
Plaintiff’s signature. Whilst
under cross examination, the
Plaintiff explained that she
bought the house from Antie Efe,
but if she also bought it from
some people she will not know
but it was Antie Efe who gave
Exhibit ’A’ to her.
The Defendant pleaded in her
paragraph 4 that it was Richard
Peprah who came down from U.S.
and acquired the disputed
premises from Madam Efe Ampoma
Mensah. Again, the Defendant
pleaded in her paragraph 8 of
the Defence that Madam Efe
Ampoma Mensah prepared the
document in respect of the house
in the name of the Plaintiff and
that an official search that she
conducted at Lands Commission
revealed that there is a
Conveyance between one Madam
Doris Lolonyo Hotse and the
Plaintiff.
Instead of the Defendant leading
evidence on how Richard Peprah
came down from U.S.A to acquire
the house, and how he got the
documents to be prepared in the
name of the Plaintiff as
pleaded, she failed to do that.
It is trite that a party is not
permitted to plead one thing and
testify to another as Acquah
J.S.C (as he then was) remarked
in In Re: Blay-Miezah
(Deceased); Ako Adjei & Another
Vrs. Kells & Another (2001-02)
SC GLR 339 at 347-348 “…… for
pleadings are not just mere
puppets in the process of
adjudication but essential means
of unfolding what is in dispute
between the parties. It is
through the pleadings that the
parties set out the nature of
their complaint and the basis of
their disagreement with the
opposing parties. And from the
nature of their complaints and
the areas of disagreement, the
issues between them are
identified. Once the parties
have complied with the
requirements of pleadings and
the issues between them have
been identified and agreed upon,
it is not permissible for the
Court to ignore the issues and
dangle in fanciful
legalities…….”
Again in the case of
Ogbarmey-Tetteh Vrs. Orgabarmey
Tetteh (1993-94) 1 GLR 353,
Wiredu J.S.C. (as he then was)
put it this way “The law as I
understand it is that a party is
bound by his pleadings and the
acceptance in favour of a party
of a case which is inconsistent
with what he has put in by his
evidence is wrong and
unjustified in law……”
The Defendant’s evidence on the
acquisition of the house is that
the house was bought before her
sister Iris C. Peprah was
married. She also said she has
no documents on the house except
Exhibits 5, 5A and 5B which are
property rate payments.
Since the house was bought
before Irish C. Peprah was
married, the Defendant should
have disclosed the source of her
information as she has no
personal knowledge. The Only
person who should have assisted
the Defendant is Madam Efe
Amponsah Mensah, but she was not
called. The failure to call
Madam Efe Amponsah Mensah is
fatal to the case of the
Defendant because the Onus of
proof was on her. Under Section
35 of the Evidence Act 1975 (NRCD
323), the owner of the legal
title to property is presumed to
be the owner of the full
beneficial title.
In this case, the Defendant
admits that when she conducted a
search at the Lands Commission,
it was revealed that the land
stands in the name of the
Plaintiff. Section 37 of
N.R.C.D 323 also states that “It
is presumed that an official
duty has been regularly
performed.
As Exhibit ‘A’ is in the name of
the Plaintiff and the search
also shows that the land stands
in the name of the Plaintiff, I
accept the case of the Plaintiff
that she acquired the land and
the house and put her son in
occupation.
I have reached this conclusion
because the Defendant has not
been able to rebut the
presumption that the Plaintiff
acquired the land with the house
thereon. The Only documentary
evidence led by the Defendant as
evidence of Richard Peprah’s
ownership is Exhibit 5, 5A and
5B, which are property rate
payments.
Exhibits 5, is property rate in
respect of House Number C 43/22
in the name of Richard Peprah.
Exhibit 5A is in respect of
House Number B C 42/22 in the
name of Richard Peprah and is
dated 23rd November,
2006, at a time that Richard
Peprah was dead. Exhibit 5B is
in respect of House No. C 42/22
in the name of Mr. & Mrs.
Richard Peprah and is dated 22nd
April, 2008, also after the
death of Richard Peprah.
It must be noted that the house
in dispute is numbered as C
48/22 Abofu Accra and not either
C 43/22 or B C 42/22 or C
42/22. It has been held that
payment of property rate or
ground rent does not make the
person paying the owner of the
house. Ref: to Tonado
enterprises & others Vrs. Chou
Sen Lin (2007-08) SC GLR 135.
If the house was acquired by
Richard Peprah from Madam Efe
Amponsah Mensah, then the burden
of proof was on the Defendant to
prove that. The Plaintiff
relied on Exhibit ‘A’ which the
Defendant admits is the document
on the house. If the House
actually belonged to Richard
Peprah, then it was the
Defendant who should have
adduced evidence in proof of
that. In the case of Barkers
Woode Vrs. Nana Fitz(2007-08) SC
GLR 879, the Supreme Court
considered section 10 of the
Evidence Act 1975 (NRCD 323)
which says.
10. (1) “For the purpose of
this Act the burden of
persuasion means the
obligation of a party to
establish a requisite degree of
belief
concerning a fact in the
mind of the tribunal of fact or
the court” and
held in its 2nd
holding that
“since the Defendant claimed
that the admitted oral contract
between himself and the
Plaintiff had been rescinded by
mutual agreement, the persuasive
burden clearly was on him to
prove that assertion, “ei
incumbit probatio qui dicit, non
qui negat. This burden of
persuasion defined under section
10 (1) of the Evidence Act 1975
(NRCD 323) as meaning “the
obligation of a party to
establish a requisite degree of
belief concerning a fact in the
mind of the tribunal of fact or
the court remains on the
Defendant even if the evidential
burden shifts as a result of any
assertion made by the Plaintiff
in response to his claim. The
common sense approach that the
burden of persuasion on proving
all facts essential to any claim
lies on who ever is making the
claim …..”
In this case before me, the
Defendant admits that the
document on the house is in the
name of the Plaintiff. She has
however failed to lead evidence
on how Richard Peprah, her
sister’s husband came down from
America and acquired the
disputed premises from Madam Efe
Ampomah Amponsah. Since the
Defendant claims she even went
to the house of Madam Efe Ampoma
Amponsah in connection with the
change of name, she the
Defendant should have called
this Madam Efe Ampomah Amponsah
to testify on her behalf that
she sold the house to the late
Richard Peprah, but this she
failed to do.
It has also been argued that
because Richard Peprah was paid
a huge sum of money whereas the
Plaintiff was earning very
little, it stand to reason that
the house was bought with
Richard Peprah’s money.
The Defendant has however not
told us how much the house was
bought. The Plaintiff tendered
Exhibit ‘A’ as her root of
title. On Exhibit ‘A’, the
property was stated to be five
Million Cedis. The Plaintiff
was however not cross examined
on the price of the house.
In the case of Takoradi Flour
Mills vrs. Samir Faris (2005-06)
SC GLR 882, The Supreme Court
held in its 1st
holding that “the law is well
settled that where the evidence
led by a party is not challenged
by his opponent in
cross-examination and the
opponent does not tender
evidence to the contrary, the
facts deposed to in that
evidence are deemed to have been
admitted by the opponent and
must be accepted by the trial
court”.
That being the state of the law,
I may pose a question “could the
Plaintiff who is a Nurses Aid in
America, and earns a take home
pay of $600.00 a week not be
able to pay ¢5,000,000.00 at the
time that the house was bought?
It is my view that the Plaintiff
could pay for it, without the
assistance of her son, Richard
Peprah.
Granted that Richard Peprah even
gave money to his mother to pay
for the house that will not make
the house the property of
Richard Peprah unless it is
proved that it was agreed that
the house was to be for Richard
Peprah. This is so because as
Ghanaians, it is not strange for
a son to pay for property for
his mother, especially at a time
that the son is not married and
the mother is caring for him.
The Defendant had led evidence
that Richard Peprah bought a
house each for his two sisters
in Accra. If it is true that he
bought houses for his two
sisters, and it is also true
that he even paid for the
Plaintiff's house in their
hometown, then it cannot be said
that the Plaintiff was holding
the house in trust for Richard
Peprah since this will be
relationship between mother and
son.
Since the Defendant has not been
able to prove that Richard
Peprah negotiated, and bought
the house in the name of his
mother the issue of the
Plaintiff holding the house in
trust for Richard Peprah does
not arise.
The Defendant also tendered the
Will of Richard Pepah as Exhibit
3. In the said Will, it is
stated that “I leave my house in
Accra Ghana to my beloved wife
Iris C. Peprah”. This Exhibit 3
has not been sealed in Ghana,
under section 84 of Act 63 as
amended by Administration of
Estates (Amendment) Law 1985
(PNDCL 113).
Even if Exhibit 3 were to be
sealed in Ghana, the Defendant
cannot rely on it to claim the
house in dispute. This is so
because the particular house in
Accra was not described in the
Will. Exhibits 5 series
indicates that Richard Peprah
paid property rate in respect of
two houses other than the house
in dispute. Again, even if the
house numbers were the same as
the house in dispute, the
Defendant will be expected to
lead evidence to prove that the
house was acquired by Richard
Peprah otherwise, whenever a
person states in a Will that a
particular property has been
devised then the beneficiary can
take it without any proof. Once
a person other than the devisee
asserts title to that property,
the devisee must prove that it
belonged to the testator. Not
having been able to prove that
the house belongs to Richard
Peprah, I resolve issues i, ii,
and iii in favour of the
Plaintiff and hold that the
Plaintiff is the rightful owner
of the disputed land with the
house thereon, but not Richard
Peprah, and that the Defendant
and her sister Mrs. Iris C.
Peprah have no interest in the
disputed house. With this
holding it follows that the
Plaintiff is entitled to all her
reliefs claimed.
The Defendant is ordered to give
immediate possession of House
Number C48/22 Abofu, Accra to
the Plaintiff.
An Order of Perpetual Injunction
is decreed against the
Defendant, her heirs, privies,
assigns and all other persons
through whom the Defendant
claims and whatsoever described
from interfering and in any way
disturbing Plaintiff’s peaceful
and quiet enjoyment of her land,
together with her house number C
48/22 Abofu, Accra.
With regard to the extent of
damages, the Plaintiff did not
lead any evidence on how much
she has been loosing as a result
of the Defendants refusal to
vacate from the house. The
Defendant however admitted in
the pleading that she received
the Plaintiff’s letter dated 24th
June, 2008 asking her to vacate
from the house, but she
declined.
The Continual occupation of the
premises by the Defendant from
24th June, 2008, without the
consent of the Plaintiff,
amounts to trespass to the said
house. Considering the values of
houses in Accra, I am of the
view that an amount of GH
¢7,000.00 will be adequate
damages for the period that the
Defendant has occupied the house
in dispute till today, 31st,
January, 2011. I therefore make
an award of GH¢7,000.00 as
damages to the Plaintiff.
The Defendant counter-Claim is
dismissed.
The Plaintiff is awarded cost of
GH¢5,000.00.
(SGD.) MR. JUSTICE S.H.
OCRAN
Justice of the High Court
Counsel: Mr. Shahadu
Mohammed for Plaintiff.
Mr. Ebow Paintsil holds Mr.
Ayikoi Otoo brief for
Defendants.
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