Amponsah Vrs Appiah (55 of 2005)  GHACA 2 (07 July 2005);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
Coram: Akamba, J.A Presiding.
Dotse, Justice of Appeal.
Marful-Sau, Justice of H/C
7th July 2005
Madam Kate Amponsah
alias Yaa Mansah Defendant/Appellant.
Edmund Asante Appiah. Plaintiff/Respondent
AKAMBA, J.A: This appeal is against the decision of the Koforidua High Court delivered on 12th of December 2003 before K.A Acquaye J. In the judgment the court granted the plaintiff/respondent (hereinafter simply referred as the plaintiff) two of the reliefs endorsed in the writ of summons and ordered as follows:
- “That the plaintiff recovers possession of all that piece or parcel of land at Apedwa and bounded on one side by the property of Amma Otwua, on one side by the property of Afua Darkoa and on one side by the Apedwa/Nkwanta road and on the other side by a road.
- Order for perpetual injunction to restrain the defendant her agents and workmen from entering upon the land in dispute.”
The claim for mesne profits was dismissed as not proven. Cost of one million cedis was awarded in favour of the plaintiff against the defendant.
The defendant/appellant (hereinafter simply as defendant) who is aggrieved with the decision, filed a notice of appeal on 22/12/2003. On 5/4/2005 this court granted the defendant leave to amend the notice of appeal. The resultant amended notice of appeal was filed on 8/4/2005. By the notice of appeal two grounds were raised for determination by this court. They are:
- The judgment is against the weight of evidence.
- The judge erred in shifting the burden of proof on the defendant.
The brief facts of this case are that the plaintiff who is a Ghanaian now resident in the UK initiated the instant action per his Attorney in the High Court Koforidua claiming a piece of land at Apedwa (described in the writ) in which the defendant and her late husband and children have lived for several years as belonging to him. The plaintiff contended that he alone purchased the house and permitted his brother who is the defendant’s late husband to live therein. The defendant not only denied the claim but claimed adversely that the disputed house was jointly acquired by the plaintiff and her late husband.
I propose to resolve the grounds of appeal in the same order that the defendant argued this appeal by first determining that which says that the learned trial judge erred in shifting the burden of proof on the defendant. This action seeks among others the relief of recovery of vacant possession of the disputed property. By this claim the plaintiff’s title is put in issue and the action assumes the character of an action for declaration. (See Oppong Kofi vs Fofie (1964) GLR 174, SC). A close study of the record of proceedings discloses two obvious legal issues. The first such issue is the obligation of a plaintiff, qua plaintiff, in establishing his assertion of ownership and the next is the consequence of the exercise of rights of possession and/or ownership by the defendant over parts of the res litiga, considering the relevant provisions of the Evidence Decree (NRCD 323).
The plaintiff’s action was premised on his claim that he single-handedly and exclusively purchased the house from U.A.C for it to remain in the family. This assertion was challenged by the defendant who proffered an alternative position, to wit, that the property was jointly purchased by the plaintiff and defendant’s deceased husband for their wives and children. The plaintiff was thus obliged to introduce sufficient evidence to avoid a ruling against him on the issue that he single-handedly purchased the property from U.A.C. Counsel for the plaintiff made some interesting submissions in his statement of case. According to him, the defendant’s averments in paragraph 2 of her statement of defence in which she averred that the house was bought by both the plaintiff and his late half brother, the same being her late husband, amounted to such admission that made it unnecessary for him (the plaintiff) to lead further evidence. I will defer for the moment consideration of this particular submission and deal with the broader obligation of the parties as far as leading evidence is concerned. In his learned treatise, Ghana Law of Evidence 1993 edition at page 260 by J. Ofori Boateng, the learned author made the following observations on burden of proof in civil cases:
“In civil cases the burden of persuasion usually lies on the party with the right to begin; that is, the person who has an issue to present to the court, and will get no remedy unless he tells the court what his claim is about……The burden may also depend on a presumption. Thus when a plaintiff claims that a defendant who is in occupation of a piece of land has trespassed, he will have to overcome the presumption that a person in possession and occupation of land is the owner. The plaintiff will therefore have the burden on him to establish a title superior to that of the defendant by proving that title.”
Thus under section 10 (1) and (2) of NRCD 323, the plaintiff had the initial burden to establish a requisite degree of belief in his claim that he single handedly and exclusively purchased the property in dispute by a preponderance of probabilities. Section 12 (2) of the Evidence Decree defines a preponderance of probabilities as “that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non existence.” The explanation given of this expression in the Commentary to the Evidence Decree is that: “A party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps meet the test of sufficiency. It is for this reason that the phrase ‘on all the evidence’ is included in each of the tests of sufficiency.” In contrast the defendant also has a burden imposed by section 14 on her defence that the property was jointly purchased by plaintiff and her late husband.
Now to the question, did the parties discharge their burdens? For obvious reasons I will consider the plaintiff’s first. In his audacious attempt to discharge the burden on him, the plaintiff’s attorney led parol evidence which at best stands him as a total stranger to the issues he was advancing. He only mounted the witness box apparently to set the action in motion. Except for his power of attorney (See page 16 of record) which has also been challenged in this appeal and would be dealt with later, the plaintiff had no document to establish his claim that he purchased the property single handedly from UAC an establishment known for their profound record keeping. There is also no evidence as to the date or year of the purchase except the mention of the 1950’s given by the plaintiff’s attorney in answer under cross examination. (See page 29 of record). Then came PW1 Yaa Ntriwaa. She was able to throw some light that the property was purchased by the plaintiff for eighty-nine pounds (£89). She however had no documents to show either. Yet the defendant’s challenge to their claim remained resolute as the cross examination reveals. The plaintiff then placed heavy reliance upon what appears to him to be an admission of his claim when the defendant averred as she did in paragraph 2 of her statement of defence referred supra. Unfortunately I do not see the averment under reference in the light proffered by plaintiff’s counsel. It is not correct to say that the afore-referred paragraph 2 was an admission as much as an introduction of a new element or dimension in the claims. My understanding of the defendant’s paragraph 2 is that the purchase was not made by the plaintiff alone and for himself but jointly by the two persons namely plaintiff and her late husband. These two positions are not the same. None can be taken as confirming the other. Besides they import different legal consequences and obligations. The plaintiff was thus obliged to prove his claim to the requisite standard of proof i.e. on a preponderance of probabilities. (See section 11 (1) of NRCD 323 which places a burden on a party to introduce sufficient evidence to avoid a ruling against him on the issue).
The defendant on the other hand would only be burdened if the plaintiff succeeded in discharging the initial one imposed upon him. Then the defendant is obliged to discharge the burden arising out of her claim that the property was jointly purchased. More so when the defendant is in occupation of the disputed property raising the presumption that she is owner which has to be displaced by the plaintiff if he (plaintiff) must succeed. In this case the defendant also did not counterclaim and so had no additional burden to discharge in that regard.
In my view the plaintiff failed to discharge the burden placed on him and he cannot seek refuge under any imagined admissions. As for PW1’s testimony, it is obvious that it is self serving. Certainly the conclusion of the trial court is not supported by the evidence and can only be described as perverse as it was not based upon any legally probative data.
For the defendant the evidence affirms her claim that she had been living on the disputed property with her late husband and children for the past several years. According to DW1, the defendants moved into the UAC building (the disputed property) between 1954 and 1958 initially under hire which ultimately turned into an outright sale when the property was offered for sale. Thus the legal proposition in Thompson vs Mensah (1957) 3 WALR 240 & 241 that a party (defendant in this case) in possession of the property is entitled to be protected in that possession against all except the true owner regardless of the nature of her title is still good law as affirmed in the unreported decision of this court in Gershon Yao Adabunu vs Seth Dovie & Anor, Civil Appeal No 79/2003 delivered on 18/06/2004 in which the court stated the position as follows:
“I cannot agree that the evidence relied upon by the trial judge was conclusive without the evidence being considered as a whole. Had the judge given due consideration to the matter as a whole she would have been led to the conclusion that judgment should have been given against the defendant whose title is rooted in fraud, which cannot dislodge the evidence of the plaintiff’s continuous possession of the disputed land since 1947 and who is entitled to the protection of the law against all who cannot affirmatively prove a better title.” Underlined for emphasis.
Section 48 of NRCD 323 is equally on all fours with the foregoing position. As intimated earlier in this judgment the defendant did not counterclaim and as such there is no burden on her to prove anything. It is sufficient that she has been in possession all this while coupled with the failure of the plaintiff to prove his claim to the property and as such the defendant is entitled to continue to enjoy her possession of the property. Besides, a determination of the issue of joint ownership or ownership in common would only serve an academic purpose which this court would not be drawn into in view of the failure of plaintiff’s claim and in the absence of a counterclaim as aforementioned.
One last but important legal point was also urged by the defendant. The suit was initiated by Edmund Asante-Appiah who lives in London, as plaintiff even though he is said to have appointed Nana Kwasi Twum Barimah of Accra as his attorney to prosecute this case on his behalf. This position is not reflected on the writ of summons. This is what is captured on the writ:
“Writ issued from: 4-9-2002. No. L 83/2002.
In the High Court of Justice - Koforidua.
Care Aboagyewaah Chambers,
H/No. F. 46, Old Estate – Koforidua. Plaintiff
Madam Kate Amponsah (Alias)
(See paragraph 1 of statement of claim at page 4 of record).
This suit was initiated in September 2002 at which time civil actions were regulated by or under LN 140A the High Court Civil Procedure Rules. Order 3 of LN 140A enjoined a party suing in a representative capacity to so endorse the writ of summons as well as the statement of claim. The plaintiff’s writ falls foul of this requirement and only made a passing reference to his appointment of Nana Kwasi Twum Barimah as his attorney in paragraph 1 of his statement of claim. This neglect to endorse the plaintiff’s capacity on the writ of summons infringes order 3 of LN 140A. In Ghana Muslims Representative Council vs Salifu (1975) 2 GLR. 246, CA. this court in its third holding highlighted the position as follows:
“In a representative action it was necessary, both in the writ and in all subsequent pleadings, to state clearly that the parties were suing or were being sued in their representative capacity, on behalf of the members of a defined class. The representative capacity should also be stated in the title of both the writ and the statement of claim and not merely in the endorsement of the writ on the body of the pleading...”
The position however as pointed out in the decision supra is that this court has power even at this stage to cause to amend the heading of the suit to reflect the representative capacity of a party, if this is shown to be so and it is apparent that no hardship would be caused to any of the parties, since the duty of the court is to do substantial justice between the parties and not to let that aim be turned aside by technicalities. In the instant appeal a decision whether or not to amend at this stage can only be meaningful if taken after due consideration is given to the next infringement raised by the defendant anon.
The defendant next highlighted an infringement, this time, of the mandatory provisions of the Power of Attorneys Act (Act 549). The defendant’s concern is that the plaintiff’s power of attorney infringes the mandatory provision of section 1 (2) of Act 549 which states as follows:
“2.Where the instrument is signed by the donor of the power one witness shall be present and shall attest the instrument.”
It is obvious that the power of attorney exhibited at page 15 of the record was not witnessed by any person even though provision was made for witnessing. When the attention of Asante Ansong, Esq. of counsel for the plaintiff was drawn, not only to his failure to respond to the point in his written statement but also for any explanation, he submitted in court that the commissioner for oaths dabbled as a commissioner and a witness. Unfortunately this submission is not borne out by the contents of the document. The commissioner for oaths simply signed as such commissioner before whom the power of attorney was executed and no more. The submission can thus be described as an afterthought and should not be relied upon. By this failure even if the plaintiff had endorsed his writ appropriately his claim must necessarily fail, for the power of attorney upon which it was founded was void for lack of witnessing. The result is that the plaintiff had not established his capacity for issuing the writ as he did.
Consequently the appeal succeeds on this ground also and the judgment of the trial court accordingly set aside. We allow costs of five million cedis [¢5 million] for the appellants.
J.B.Akamba Justice of Appeal.
I agree. Jones Victor Dotse
Justice of Appeal.
I also agree. Marful-Sau.
Justice of High Court.
Asante Ansong, Esq for plaintiff/respondent.
Kwesi Amoako Adjei for defendant/appellant