Caroline Randolph and Augustina Randolph v Outboard Marine Services Ltd, Administrators of the Estate of Captain Quist Yeboah (Deceased) and OJK Oil Limited; and Mrs. Balbir Alan v Obiba J. K. Company

1.0 INTRODUCTION:

The title of the instant suit depicts same is a consolidated suit consisting of two cases. On the 20th day of January, 2024, this court differently constituted stated as follows:

“Having noticed that the Plaintiff in suit 2 have been designated as the Defendant for purposes of conducting the hearing and the Plaintiffs in the 1st suit are supposed to be the ones to start the case, I will adjourn……”

1.1 This clearly denotes that the action is now between the Plaintiffs in the first Suit as the Plaintiffs and the Plaintiff in the second Suit as the Defendant. The case of the Plaintiffs as captured by their amended statement of claim is that the Plaintiffs are the Administratrixes and beneficiaries of the estate of Andrew Jacob Randolph (deceased) who died on or around 30th March, 1995 in Accra and Letters of Administration was granted to the Plaintiffs by the High Court, Accra on 10th January, 1995.

1.2 The 1st Defendant are the Administrators and or Successors or next of kin of one Captain Quist Yeboah (deceased) who was the Managing Director of the 1st Defendant company, who died sometime on or around 2009.

 

1.3 Several attempts to get the real name of any of the Successors or Next of Kin of the said Captain Quist Yeboah have proved futile since they cannot be traced or are simply not available even after diligent efforts by the Plaintiffs. The onus will be on the 2nd Defendant to produce them or the Plaintiff will apply to serve the processes on them by substituted service.

1.4 The 2nd Defendant is an oil marketing company operating a fuel retailing station on a land which is the subject-matter of this case. Plaintiff will say that the late Andrew Jacob Randolph (deceased) in his lifetime was the owner in possession of a parcel of land situate at James Town in Accra.

1.5 The said land became the property of the late Andrew Jacob Randolph (deceased) when that parcel of land was willed by his deceased mother (Madam Barbara Meyer) to him through her Will which was admitted to probate on or around the 14th day of August, 1936.

1.6 It is the evidence of the Plaintiffs that in the lifetime of Andrew Jacob Randolph, he leased the said parcel of land to the 1st Defendant by a Deed of Lease dated 18th August, 1991. The duration of the said lease from Andrew Jacob Randolph to the 1st Defendant acting by Captain Quist Yeboah was 25 years commencing from 18th August, 1991 and expiring on the 17th March, 2016, which lease is still subsisting but has less than two years to run.

1.7 According to the Plaintiffs sometime in the year 2013, it came to their notice that the deceased Captain Quist Yeboah or the Defendant had in fact subletted the land to the 1st Defendant without the consent of the Plaintiff lessor or their successors or administrators. The Plaintiffs caused their lawyers to write a letter dated 2nd February, 2010 to the 2nd Defendant to appear and regularize their stay on the land or vacate the land which 2nd Defendant have ignored after their initial contact with the lawyers.

1.8 Plaintiffs aver that the occupation of the 2nd Defendant is unlawful not having been gained through the consent of the Plaintiffs who have been vested with the land as beneficiaries. The Plaintiffs gave the description of the subject-matter land in the following schedule:

SCHEDULE OF LAND:

All that piece or parcel of land situate at James Town a suburb of Accra in the Greater-Accra Region of the Republic of Ghana from a survey pillar on a bearing of 131 over a distance of 110 feet to a point marked A southwards bordering Mills road to a pillar marked 8 on a bearing of 330 over a distance of 50 feet further southwards to a pillar marked C on a bearing of 298 over a distance of 45 feet to a pillar marked D on a bearing of 259 over a distance of 40 feet to a pillar marked E on a bearing of 221 over a distance of 50 feet to a pillar marked F bordering Commodore street to a pillar marked G on a bearing of 126.30 covering a distance of 60 feet to a pillar marked H and thence northwest on a bearing of 71 covering a distance of 25 feet to a pillar marked J on a bearing of 132 covering a distance of 40 feet to a pillar marked K on a bearing of 52 over a distance of 50 feet and enclosing pillar A and covering a total land size of 0.17 acre more or less.

1.9 Based on these facts, the Plaintiffs claim against the Defendant as follows:

a. A declaration that the Plaintiffs being the lawful owners of the land more particularly described in the schedule in the Statement of Claim are entitled to recover possession upon the expiry of the lease to 1st Defendants on the 17th August, 2016.

b. An order that the sub-lease agreement entered into by the late Captain Quist Yeboah or the 1st Defendant on one part and the 2nd Defendant on the other side without the consent of the Plaintiff’s lessor is a nullity.

c. An order of recovery of the land on which the 2nd Defendant has built a fuel station upon the expiry of the lease on 17th August, 2016.

d. General Damages against the 1st Defendants for breach of the lease contract.

e. Costs.

2.0 The case of the Plaintiff in the second suit now designated as the Defendant is that she is a grand-daughter of the late Mrs. Violet Whitaker of blessed memory and she brings this action on her own behalf and on behalf of the family of the deceased Mrs. Violet Whitaker.

2.1 The Defendant is a Petroleum Company incorporated under the laws of the Republic of Ghana carrying out the sale of Petroleum products and lubricants on the disputed parcel of land located at James Town, Accra.

2.2 The Defendant avers that by a lease dated the 4th day of August, 1956, the late Violet Whitaker and Ruby Quartey-Papafio granted

 a parcel of land to BP (West Africa) Limited, a company incorporated in England for use as a petroleum station for a period of thirty years.

2.3 The Defendant avers however that Mrs. Violet Whitaker who subsequently became the sole survivor of the property passed away on the 12th day of October, 1971, long before the expiration of the said lease. The Defendant says that the late Violet Whitaker was survived by three (3) children namely, Florence, Lily and Thomas.

2.4 And that after the death of the late Violet Whitaker, the Defendant avers that at no point in time did the family meet to admit the estate of the deceased to Letters of Administration nor Probate.

2.5 The Defendant avers that unknown to the family, certain individuals surreptiously purported to grant a lease to the 3rd Defendant in suit 1 without going through the appropriate legal procedure.

2.6 The Defendant avers that the Plaintiffs occupation of the parcel of land for use as a private oil marketing company is not lawful and without the consent and concurrence of the family of the late Mrs. Violet Whitaker.

2.7 The Defendant states that the Defendant in suit 2 shall persist in their acts of unlawful occupation of the disputed land unless compelled by this Honourable Court to give up vacant possession.

2.8 Based on these facts the Defendant claims as follows:

i. An order of eviction of the Defendant in Suit 2 from the premises being used by it as a petrol filling station.

ii. Damages for trespass.

iii. An order for recovery of possession

iv. An order of perpetual injunction restraining the Defendant in Suit 2 from interfering with the said parcel of land and its use for the sale of petroleum products and lubricants.

v. Any other order(s) as to the Honourable Court may seem just and proper.

2.9 At the Application for Directions stage the following issues were set down for trial in the Suit 1 as follows:

i. Whether or not the subject-matter land now occupied by the 3rd Defendant was the property of the late Andrew Jacob Randolph.

 

ii. Whether or not Andrew Jacob Randolph was in possession of the land in his lifetime.

iii. Whether or not the property was willed by the grandmother of Andrew Jacob Randolph in her Will which was admitted to probate on or around 14th August, 1936.

iv. Whether or not Andrew Jacob Randolph in his lifetime leased the land for 25 years to the 1st Defendant Company acting by one Captain Quist Yeboah.

v. Whether or not the lease between the late Andrew Jacob Randolph and the 1st Defendant Company will expire on the 17th August, 2016.

vi. Whether or not the Plaintiffs are administratrixes and beneficiaries are entitled to the land to the land back on its expiry on 17th August, 2016.

vii. Whether or not the said Frederick Quist Yeboah could have given a valid lease of 45 years to Megali Agency or anyone.

3.0 The following issues were set down for trial in suit 2:

1. Whether or not the disputed property forms part of the estate of the late Mrs. Violet Whitaker.

2. Whether or not after the death of Mrs. Violet Whitaker the family met and applied for letters of administration or probate.

3. Whether or not the lease granted to the Defendant was done under due process and with the consent of the family of the late Mrs. Violet Whitaker.

4. Whether or not one Thomas Whitaker’s appointed as the sole administrator of the estates of the late Mrs. Violet Whitaker was proper.

5. Whether or not Tomas Whitaker could solely lease out the property in dispute without the consent of his siblings who are also beneficiaries under the estate.

6. Whether or not the Plaintiff’s cause of action is defeated by the Limitations Act.

3.1 The case of the Plaintiffs was prosecuted by the 2nd Plaintiff. It is her testimony that she is a great granddaughter of Madam Barbara Araba Mayer and a daughter of Andrew Jacob Randolph, one of the administrators of the estate of Andrew Jacob Randolph.

3.2 It is her evidence that her great grandmother, Madam Barbara Araba Mayer who died in the year 1936 made a Will and devised to her father, Andrew Jacob Randolph, a plot of land located at James Town, Accra in the Greater Accra Region, between the Commodore Street and Mills road. And that the said land is the subject-matter of this case. She tendered a copy of the Will as Exhibit “A”.

3.3 The 2nd Plaintiff continued that probate of Madam Barbara Meyer’s Will was granted to the executors, ruby Quartey Papafio and Afuah Mercy Glover-Addo on the 14th August 1936. She tendered a copy of the Probate as Exhibit “B”.

3.4 She stated further that Miss Ruby Quartey-Papafio apart from being an executor was also a beneficiary under the will of Madam Barbara Mayer. Miss Ruby Quartey Papafio for reasons best known to her, in 1957, together with one Mrs. Whitaker leased the land in dispute as joint lessors to BP (Ghana) Ltd. A copy of the Deed was tendered as Exhibit “C”.

3.5 Upon the demise of Miss Ruby Quartey-Papafio, her only surviving brother in the person of Joseph Quartey Papafio was appointed as the administrator of her estate.

3.6 And that sometime after the appointment of Joseph Quartey Papafio as administrator, he erroneously included the present subject-matter land, which had then been leased to BP (Ghana) Limited under the estate of Miss ruby Quartey Papafio, but uponrealizing the mistake, he wrote a letter dated 13th January, 1982 addressed to BP (Ghana) Limited informing them of the mistake and admitting that it fell within the estate of Madam Barbara Meyer instead. See Exhibit “D”, a copy of the Letter.

3.7 On 26th May, 1986, the then lawyer Solomon F. Goodhead writing on behalf of Andrew Jacob Randolph referred to the anomaly that was rectified by Joseph Quartey Papafio in a letter addressed to BP (Ghana) Limited to confirm the ownership of the land by the Randolph family. See Exhibit “E”, a copy of the said Letter.

3.8 Lawyer Solomon Goodhead again on 17th July, 1986, wrote to BP (Ghana) Limited reminding them of his non receipt of their response. See Exhibit “D”, a copy of the Letter.

3.9 BP (Ghana) Limited, responded to Lawyer Solomon Goodhead’s letter dated 5th August, 1986. See Exhibit “G”, a copy of the Letter.

4.0 It is the evidence of the Plaintiffs that Andrew Jacob Randolph, a beneficiary of the Will of Madam Barbara Mayer executed a Vesting Assent in his name. See Exhibit “H”, a copy of the Vesting Assent.

4.1 According to the 2nd Plaintiff, her father Andrew Jacob Randolph also died on 30th March, 1995 in Accra and Letters of Administration

was granted to them on 10thth November, 1995 for which reason they instituted the action in that capacity. See Exhibit “I”, a copy of the Letters of Administration.

4.2 According to the Plaintiffs the western portion of the subject-matter land consisting of a room and a compound specifically was willed to his father Andrew Jacob Randolph and his siblings in paragraph 4 of the Will of Madam Barbara Meyer.

4.3 It is also her testimony that in the Will of her great grandmother Madam Barbara Mayer (deceased); the beneficiaries namely: madam Ruby Quartey Papafio, Andrew Jacob Randolph and the Randolph’s family have been in beneficial and effective possession of the said plot in dispute since the demise of Madam Barbara Araba Mayer in 1936 without any interruption.

4.4 And that her late father Andrew Jacob Randolph in his lifetime as a beneficiary leased out the land presently in dispute to one captain Yeboah for a term of 25 years commencing from 1991 and expiring in August 2016 for use as a petrol filling station and washing bay purposes only. See Exhibit “J”, a copy of the Lease.

4.5 And that it was after the demise of the lessee, Captain Yeboah that their search for the administrator of his estate revealed shockingly revelation that Captain Yeboah has also subsequently sought tolease out the said parcel of land for a period of 45 years to a petroleum company known as OJK.

4.6 The Plaintiffs testified that Captain yeboah’s action of leasing the land to OJK was illegal since he could not assign to anybody a term of lease. It is the Plaintiffs’ case that the disputed property has at all times been the property of the Randolph family to the knowledge of the whole world.

4.7 In contesting the Plaintiffs’ claim, the Defendant, (Plaintiff in the suit 2), testified per her witness statement which has been reproduced below as follows:

“1. My name is Balbir Violet Allan nee Hutton-Whitaker.

I live at Ashiyie. I am a pensioner.

2. I am the Plaintiff in Suit No. FAL 699/13 MRS. BALBIR ALLAN V. OBIBA J. K. COMPANY and this witness statement is my evidence in the above-titled consolidated case regarding my great-grandfather’s estate – a property at James Town Ngleshie – Alata, Accra.

3. I know the Plaintiffs in Suit No. FAL 694/14, Caroline and Augustina Randolph, we are related by marriage through my grand-uncle, Thomas Hutton-Mills Jr. Who was married to a Randolph called Aunty Maama.

4. My late great-grandfather, Honorable Thomas Hutton-Mills Sr. (hereinafter referred to as “Thomas”), was a well-known Lawyer, first President of the National Congress of British West Africa, a member of the Legislative Council, and member of the Accra Town Council, and was also an illustrious Ghanaian.

5. In his lifetime, Thomas acquired several properties in various places in Accra between the late 18000 to early 1900s. One of such acquisition is a property located at James Town on Mills Road popularly called “Temple House”. Attached and marked as Exhibit “1” is a copy of a site plan/diagram of what was known as “Temple Buildings” and also a certified true copy record from the Deeds Registry and it shows the Temple Buildings and how they were acquired by the late Thomas Hutton-Mills Esq. Exhibit “A” was used as security to procure a mortgage from the then Bank of British West Africa. The space marked as No. 1 is where “Temple House” was located.

6. Temple House was the home of my great- grandfather, Thomas, and his family. The yard in which we the children played most of the time is marked as No. 2 in Exhibit “1”. The yard was also used to host functions that took place in our home, sometimes there were public events and not private family events. The rooms in the yard of Temple House marked No. 2 in Exhibit “A” was also occupied by several of Thomas’s relatives and his trusted staff.

7. One can say that as a good father, Thomas left behind an inheritance for his descendants. Temple House was the ancestral family home of all the Hutton- Mills/Whitakers. The Whitakers and Hutton- Whitakers are the children and grandchildren of Thomas‘s only daughter, my late grandmother, Violet Afua Maanum Whitaker nee Hutton-Mills (hereinafter referred to as “Violet”).

8. Little did Thomas know that about One Hundred and Twenty years (120) after he acquired the said properties and Eighty-Nine years (89) years after his death the said properties would be a subject-matter of litigation?

9. Violet married a young lawyer who was Thomas’s ward, he was Thomas Joseph Whitaker. (Hereinafter referred to as “Joseph”). They had three children, Lilly Patricia Adjo Whitaker, Florence Valerie Kwansiwa Luke nee Whitaker, and Thomas Nii Kasimah Hutton-Whitaker (my father).

10. I was born in the said Temple House in 1962 and grew up there. We used to play in this very large property with many buildings and its yard. Our grandmother would not allow us to go beyond the “dreaded gates” of the Temple House unless in a car. Our grandmother owned a green Humber with registration No. GF 3599.

11. We lived and loved Temple House and the town it was located in, James Town. To us, Temple House was a grand old house full of rooms, family members, tenants, family secrets, and ghosts who frightened us at night. We used to hide in the attic amongst the old law books, legal documents, framed pictures of our ancestors, sea trunks, and old ornaments.

12. We loved Temple House because it was our home and heaven. My siblings, cousins, aunts, and their children and grandchildren also lived in Temple House with us. After the death of our grandmother, we gained freedom and learned to roam the streets of James Town, swim in the sea, go to catch crabs at the old slaughterhouse, and play at the old Harbour where we were given gifts of fish by the fishermen who always told us that we were also the grandchildren of J. J. Fischer.

13. J. J. Fischer’s wife was called Lilly Patricia Fischer nee Whitaker, and her brother Fredrick Whitaker was our grandfather, Joseph’s father. Fredrick Whitaker had three sons with Nii Ankrah’s daughter called Akosua Fio Ankrah. We were told that she was extremely beautiful. These Whitakers grew up at WATO opposite the famous WATO Bar. Recently, Mall on that land. In 1983, as a young adult, our family eventually left our beloved home to James Town to live at another property at Adabraka belonging to my grandfather Joseph.

14. In May, 1990, whilst we were living at Adabraka, I traveled to the United Kingdom and returned to Ghana for my first visit in 2009.

15. Thomas had Tennis Courts at the back of Temple House. The location of the Tennis Courts is marked as No. 3 on Exhibit “1”.

16. At the time, since there were no flush toilets, we had a place for the Kroo boys (these were foreigners who carried the waste) and it is marked as No. 4 on Exhibit “1”.

17. Thomas’s law offices were located on the portion of the property marked as No. 5 on Exhibit “A”.

18. After Thomas’s death, these three plots marked as No. 3, 4 and 5 on Exhibit “1” were joined together and is now known as House No. D115/1 on Commodore Street (hereinafter referred to as House No. D115/1).

19. The families were smaller in those days and so were also extremely close due to this they sometimes combined their properties and leased them out. One example is mentioned below.

20. The neighbouring property, located on the North of Temple House, then known as Weekend in Havana was a popular place, and it belonged to our aunt, Chris Nanka-Bruce (hereinafter referred to as Chris).

21. House No. D115/1 and Weekend in Havana were both leased to Major and Co but both Chris and Violet received their rents separately from Major & Co.

22. After the lease ended with Major & Co. both families took their portion of the property and leased them separately to two different entities – Chris’ property, which was popularly known as “Weekend in Havana” has now been leased to the 7th Day Adventist Church and the portion belonging to the Hutton—Whitaker family (House No. D155/1), which forms part of Temple Buildings has now been leased to the Registered Trustees of the Presbyterian Church of Ghana.

23. The small property marked as No. 5 in Exhibit “1” is now the pedestrian entrance on Commodore Street to the land leased to the Registered Trustees of the Presbyterian Church of Ghana.

24. The portion of the temple House buildings which housed Thomas’ Law Chambers was purchased from Yawtiorkor Korkoi Akuetteh and Ayealey. The property was then known (before the purchase by my great-grandfather) as Sarpeifio’s House and belonged to the late John Sarpeifio. Unfortunately, the small portion of Exhibit “A” showing the late Sarpeifio’s house has faded due to age and it is not so legible in Exhibit “1”, however, on the north of Sarpeifios house was Temple House yard marked as No. 2 in Exhibit “1” and on the south of the Sarpeifio’s house is Commodore Street. Sarpeifio’s house which became part of Temple Buildings has now been leased out. The property in dispute is on the West of Sarpeifio’s house and on the south is Commodore Street.

25. On the east of Sarpeifio’s house is Mr. Bannerman’s property, a cousin of Thomas. Thomas acquired portions of the property in dispute from two individuals, the first was from Inntendoo Fio on the 20th day of November, 1899 and Ann Barbara Mayer on the 23rd day of February, 1897 and is marked as No. 7 and No. 8 in Exhibit “A”. Thomas used this as a yard and a store. Ann Barbara Mayer’s property is on the West of this yard with Temple House on its North.

26. On 23rd February, 1897, Thomas bought a small piece of land from Ann Barbara Mayer and is marked as No. 8 in Exhibit “A”. This portion purchased was on the Northeastern part of her property. The Northern part of No. 8 is now included in Temple House. The Southern part of No. 8 is included in the disputed land joining on to No. 7. These two (2) pieces of land marked as No. 7 and No. 8 in Exhibit “1” form our family’s portion of the property in dispute with Ann Barbara Mayer’s portion on our West.

27. Adjacent to the property marked as No. 8 is a portion of land marked as No. 9 in Exhibit “1” Thomas bought this from Mercy Affua Addo on the 8th of June, 1914.

28. Thomas named all these portions of land and properties mentioned above and marked No. 1 to No. 9 in Exhibit “1” as “Temple Buildings”. Temple Buildings is in James Town and forms the tip of the block of Mills Road, Commodore Street, and Bruce Street.

29. Thomas purchased all these pieces of parcels of land and or properties at different times from several individuals and families.

30. In order to have a good understanding of the extent of “Temple Buildings”, we attached a cadastral plan of a portion of James Town where the Temple Buildings were located. Attached and marked as Exhibit “2” is a copy of the cadastral plan showing Commodore Street, Mills Road, and Bruce Street in James Town including Thomas’s Temple Buildings. This is a cadastral map prepared and used by the Accra Metropolitan Assembly, the cadastral was obtained in 2018 and in an official record of the Accra Metropolitan Assembly.

31. Part of the property in dispute is part of the estate of the late Thomas Hutton-Mills Esq., and thus part of Temple Buildings. We have always referred to this portion of land in dispute as “BP” or “THE PETROL STATION”. We used to go and sit with the taxi drivers who used it as a parking area when BP reduced its use of it in the late 70s and early 80s.

32. Mr. Thomas Hutton-Mills Esq., my late great grandfather, died testate on the 14th day of March, 1931 leaving his entire estate to his wife Emma Christiana Hutton-Mills and daughter Violet as joint- owners with right of survivorship. Attached and marked as Exhibit “3”, a copy of the Will and Probate of the late Thomas Hutton-Mills Esq.

33. My grandmother, Violet, during her lifetime, made gifts of parts of the estate she inherited from her father to her children. Attached and marked as Exhibit “4”, “4A” and “4B” are certified copies of the Deeds of Gifts made by my grandmother and obtained from the Deed and Land Registry.

34. As Emma Christiana Hutton-Mills and Violet were made joint tenants with right of survivorship to the entire estate, Violet became the sole beneficiary upon the death of Emma Christiana Hutton-Mills. Emma Christiana Hutton-Mills died intestate on the 14th November, 1952.

35. Sometime in the 1950s, BP (Ghana) Limited was looking for a place to retail petroleum products on the High Street and around James Town as many of the elite who had vehicle lived there.

36. Violet and Ruby Quartey-Papafio, leased the property in dispute to BP (Ghana) Limited. Ruby Quartey- Papafio was the executrix of the Last Will and Testament of the late Ann Barbara Mayer. Attached and marked as Exhibit “5” is a copy of the lease agreement executed in 1956.

37. Alfred Randolph and Ruby Quartey-Papafio and others were all beneficiaries of the Last Will and Testament of the late Ann Barbara Mayer. Ann Barbara Mayer is the grandmother of the Plaintiffs in Suit No. FAL/694/2014 – Caroline Randolph and Augustina Randolph.

38. Ann Barbara Mayer owned a small, corrugated building adjacent to Temple Buildings on the corner of Mills Road and Commodore Street. Ann Barbara Mayer’s son Alfred Randolph and ruby Quartey- Papafio demolished Ann Barbara Mayer’s building. Thereafter, Ruby Quartey-Papafio and Violet Whitaker jointly leased both their parcels of land to BP. Ann Barbara Mayer’s son, Alfred was allowed to use a room in Temple House where he lived for several years.

39. Violet died intestate in 1971 and was survived by the three (3) children mentioned in paragraph 7. Attached and marked as Exhibit “5” is a copy of the death certificate of Violet.

40. Violet Whitaker’s son, Thomas Hutton-Whitaker, obtained Letters of Administration at the High Court, Accra in September 1977 to administer her estate. Attached and marked as Exhibit “6” is a copy of the letters of Administration obtained at the High Court by Thomas Hutton-Whitaker.

41. Thomas Hutton-Whitaker administered the estate until his demise on the 17th of November, 1996. Attached and marked as Exhibit “7” is a copy of the Probate of Thomas Hutton-Whitaker.

 

42. During the lifetime of Thomas Hutton-Whitaker, he granted a lease over the disputed land to one Captain Frederick Quist Yeboah in 1991. The lease was for a period of forty-five (45) years. Attached and marked as Exhibit “8” is a copy of the lease between Thomas Hutton-Whitaker and Captain Frederick Quist Yeboah.

43. It was during my second visit to Ghana in 2010 that I found Defendant in Suit No. FAL/699/2013 – Obiba J.

K. Company operating on the land without a lease from the family. All effects to negotiate with Obiba J.

K. failed so the above-mentioned suit was taken out against Obiba J. K. during this court case that it was revealed that Captain Quist Yeboah had sublet the disputed land to Obiba J. K. without the consent of the family.

44. I finally resettled in Ghana in 2013.

45. All the years I lived in the Temple House, I always know that Ruby Quratey-Papafio was an Executrix and beneficiary of Ann Barbara Mayer’s estate and she owned the property adjacent to ours on the corner of Commodore Street and Mills Road. Ruby Quartey-Papafio leased a portion of Ann Barbara Mayer’s land to British Petroleum and Violet also leased the larger portion of the land that she owned to British Petroleum. The two ladies were paid separately by British Petroleum.

46. In May, 2011, my aunt, Madam Florence Naa-Adetso Hutton-Mils and I applied to the High Court, Accra for letters of Administration De Bonis Non to complete the administration of the estate of the late Violet Afua Maanum Whitaker. Attached and marked as Exhibit “9” is a copy of the letters of Administration.

47. The property in dispute falls greatly within the estate of Temple Buildings originally acquired and owned by Thomas Hutton-Mills with a very small portion outside Temple Buildings belonging to Ann Barbara Mayers.

48. Madam Florence Naa Adetso Hutton-Mills filed a witness statement as my witness but unfortunately, she passed away on 25th April, 2017 and I thus tender in her witness statement. Attached and marked as Exhibit “10” is the witness statement of Madam Florence Naa Adetso Hutton-Mills filed on the 13th day of July, 2017.

49. I pray that this Honourable Court grans my claims for relief as stated on my writ of summons in Suit No. FAL/699/2013 - MRS. BALBIR ALLAN V. OBIBA J. K. COMPANY.”

4.8 If I may ask, between the parties who owns the subject-matter land in dispute?

The law is trite that a plaintiff in a civil case has the legal and evidential burden to produce admissible evidence to prove his/her claims and assertions. Section 11(1) of the Evidence Act, 1975, NRCD 323 defines the burden of producing evidence as follows:

“For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.”

 

4.9 The Supreme Court of Ghana in ACKAH V. PERGAH TRANSPORT LIMITED [2010] SCGLR 729 stated the law

succinctly as follow:

“It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail.”

5.0 To entitle a plaintiff to a ruling from the court on his claims, the law imposes on the plaintiff to produce the admissible evidence to the required standard of proof namely; on the balance of probabilities in a civil action such as the instant case. the Supreme court in the case of ADWUBENG V. DOMFEH [1996-97] SCGLR 660 stated the standard of proof required in all civil actions at holding 3 of the head notes as follows:

“Section 11(4) and 12 of the Evidence Decree, 1975 (NRCD 323) (which came into force on 1st October, 1979) have clearly provided that the standard of proof in all civil actions was proof by preponderance of probabilities – no exceptions were made.”

 

5.1 It is with the above statement of law that the cases and evidence of the respective parties and their witnesses will be analyzed in respect of each arising issue for determination since the Defendant is also seeking for the same property.

5.2 In the case under consideration, the Plaintiff traces the original ownership of the subject-matter land to the late Madam Barbara Meyer. In contrast the Defendant traces the original ownership of the land to the late Thomas Hutton-Mills Sr. There is evidence before me that both Madam Barbara Meyer and Thomas Hutton- Mills Sr. are deceased.

5.3 The question is between the two who acquired the subject matter land in dispute. The rule is that evidence against a deceased person must be scrutinized with the utmost suspicion. Proof by such evidence must be strict and utterly convincing. See MOSES

V. ANANE [1989-90] 2 GLR 692.

5.4 The rule does not require that such evidence should necessarily be corroborated. This clearly will serve as a guide in sifting the evidence adduced by the parties in the determination of the ownership of the subject property.

5.5 Throughout the trial the Plaintiffs maintained that the subject- matter land was acquired by her great grandmother, Madam Araba

 

Meyer who died in 1936. And that per the last Will of her late great grandmother she devised the subject-matter land to her father Andrew Jacob Randolph. She tendered a copy of the Will as Exhibit “A”.

5.6 She tendered Exhibit “H”, a Vesting Assent depicting that the subject-matter land was vested in her father. She continued that as the beneficiary owner of the subject-matter land her father leased out the subject-matter land to one Captain Yeboah for a term of 25 years commencing from 1991 and expiring in August, 2016 for use as a petrol filling station. See Exhibit “J”, a copy of the Lease.

5.7 According to the Plaintiffs, on the death of their father they procured Letters of Administration to administer his estate. See Exhibit I, a copy of the letters of Administration.

5.8 In contrast, the Defendant testified that her great grandfather, Thomas Hutton Mills Sr. acquired a portion of the subject-matter Land from the late great grandmother of the Plaintiffs, Madam Barbara Mayers.

5.9 These were the answers she gave when she was cross examined on the issue;

 

“Q: In your narrative in paragraph 25 of your Witness Statement, you have indicated that your great grandfather acquired part of the land from Ann Barbara Mayer on 23rd February, 1897.

A: That is correct.

Q: And you further indicated that that land he so acquired from Barbara Mayer it is marked as numbers 7 and 8 in your Exhibit “1”.

A: I will prefer to look at Exhibit “1”, to show the land that was purchased from Barbara Mayer, (witness is shown Exhibit “1”). The portion of the land in dispute was purchased from two people; 1 the first was from Inntendoo Fio on 20th November, 1899 and the other portion was purchased from Ann Barbara Mayer on 23rd February, 1897. These are marked as numbers 7 and 8 in Exhibit “1”. My great grandfather used the portion of land purchased from Inntendoo Fio as a yard and a store and Barbara Myers land is on the West of the Inntendoo Fio property with Temple House on its North and these pieces of land form our portion of the disputed property.

Q: By your answer are you saying that the land marked number 8 is what your great grandfather bought from Barbara Mayer.

A: Yes it is number 8.

 

Q: Exhibit “2” which is the indenture you attached has a site plan with an inscription, Accra Preliminary Edition, restricted issue. Is that not correct?

A: That is correct.

Q: So Exhibit “1” which is your first exhibit has no site plan attached.

A: That is correct, not in this file.

Q: And in your candid view, you have stated that your great grandfather acquired it from Ann Mayer, did you exhibit any indenture or assignment showing that acquisition from Ann Mayer?

A: Yes Exhibit “1” shows how my great grandfather acquired it.

Q: If indeed your great grandfather acquired it from Ann Mayer there would have been an indenture covering same and signed by Ann Barbara Mayer as the assignor to your great grandfather.

A: I have it but it is not included in this file. [Emphasis supplied].

Q: Exhibit “1” has described your great grandfather relating to the 23rd February, 1897 alleged acquisition from Barbara Mayer, only recited a piece of land measuring 18 feet 6 inches and it stated at page 10 of Exhibit “1”. Have you seen it?

A: I think so.

 

Q: That description by your great grandfather covering 18 feet 6 inches without more suggests that even if that acquisition was true, it could not relate to the size of the land over which we are disputing in this court.

A: The land my great grandfather purchased which covers the land being disputed in this court are two pieces of land; one he bought from Inntendoo Fio and another from Barbara Mayer. It is a portion and not the whole of the disputed land because the other portion was purchased from one Inntendoo Fio.

Q: And you want this court to believe that he bought this land from Ann Barbara Mayer without committing her to a signed indenture?

A: I have a copy of the indenture, it was just not included in my exhibits. [Emphasis supplied].

Q: I am putting it to you that there is no such document showing that your great grandfather bought the land from Ann Barbara Mayer.

A: It exists, I just did not include it in my exhibits. [emphasis supplied

Q: The size of the land on which B. P West Africa operated their filling station is the size of land you are claiming in this court as the land the Defendants are also laying claim to.

 

A: The land the Plaintiffs and myself are claiming, we have our portion and they have their portion. B. P West Africa leased a portion from Ruby Quartey- Papafio and another portion from Violet Efua Manu Whitaker, these two portions of land were joined together and B. P West Africa leased it from these two ladies, I believe it was around 1956. I have Exhibit “7” which shows exactly which portion of land was leased from each of the two women.

Q: You know that “Exhibit “7” is not the document we are talking about (concerning the transaction between Ann Barbara Mayer and Your great grandfather) because it does not come from your great grandfather and Ann Barbara Mayer, who you alleged your grandfather bought the land from.

A: I did not tender that document.

Q: I am putting it to you that in this court and in the evidence you have brought you have not shown that there was a legitimate transaction between your great grandfather and Ann Barbara Mayer, the grandmother of the Plaintiffs in Case 1.

A: That is correct.”

6.0 It is salient to note that the failure of the Defendant to tender a copy of the indenture evidencing the purchase of the land from Barbara Mayer clearly is fatal to her case since that would have

 

helped the court to form an opinion on who owns the subject- matter land.

6.1 I wonder why she did not tender the said indenture in support of her case. In fact the site plan attached to the said indenture would have assisted the court to know the size of the land allegedly granted by the Plaintiffs great grandmother to the great grandfather of the Defendant.

6.2 Paragraphs 35 and 36 of the Defendant’s witness statement reads: “35. Sometime in the 1950s, BP (Ghana) Limited was looking for a place to retail petroleum products on the High Street and around James Town as many of the elite

who had vehicle lived there.

36. Violet and Ruby Quartey-Papafio, leased the property in dispute to BP (Ghana) Limited. Ruby Quartey-Papafio was the executrix of the Last Will and Testament of the late Ann Barbara Mayer. Attached and marked as Exhibit “5” is a copy of the lease agreement executed in 1956.”

 

6.3 A perusal of Exhibit “5” depicts the late Violet Whitaker and the late Ruby Quartey-Papafio executed the agreement as joint lessors in respect of each party’s interest in the subject-matter land granted to British Petroleum.

6.4 The site plan attached to Exhibit “5” clearly shows the exactness of the parcel of land each granted to British Petroleum. Exhibit “E” is a Letter written by one Solomon F. Godfred, a lawyer for and on behalf of his client Jacob Randolph, the late father of the Plaintiff’s. Paragraph 4 of Exhibit “5” reads:

“I am further informed that on the 12th day of November 1956, Violet Whitaker and Rudy Quartey-Papafio by a Deed of Conveyance registered as DR 3460/1956 let to you all that land at the junction of Commodore Street… From the plan one can discern that the two lessors have different interests in the demised land. [Emphasis supplied].

6.5 This clearly confirms the Defendant’s story that the parties have their respective interests in the subject-matter land in dispute.

 

6.6 The site plan attached to Exhibit “5” shows the respective lands belonging to each of the parties, a fact both parties admit per my analysis as above discussed.

6.7 In the circumstance, I hereby enter judgment for the parties as captured by the site plan attached to Exhibit “5”. There will be no order as to cost.