Agbeshie and Another Vrs Amorkor and Another (HI/51/2004.) [2005] GHACA 5 (21 April 2005);

Flynote: 

IN THE SUPERIOR COURT OF JUDICATURE

           IN THE COURT OF APPEAL

    ACCRA – GHANA,  A.D. 2005

 

CORAM  - OWUSU, JA [PRESIDING]

                    TWENEBOA-KODUA, JA

                    ANIM, JA

 

HI/51/2004.

21ST APRIL, 2005.

 

MASH AGBESHIE & ANOR.          …          PLAINTIFFS/RESPOPNDENTS

 

          V E R S U S

 

AMINA AMORKOR                          …          DEFENDANT

 

FOFO RUKYEA LARYEA                …           CO-DEFENDANT/APPELLANT

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                                            J  U  D  G  M  E  N  T       

  ----------------------------------------------------------------------------------------------------                     TWENEBOA-KODUA,  JA  -    This is an appeal from the judgment of the High Court, Accra dated 27 February 2004.  The judgment granted all the reliefs the Plaintiffs/Respondents sought as follows:-

              “(a)   A declaration of title to the property Or House No. 49E/12, 

                       Nima, Accra.

  1. Recovery of possession of the said House No. 49E/12, Nima, Accra.
  2. Account for rent collected on the said house.
  3. Damages.

      Dissatisfied with the decision of the court below, the Co-defendant/appellant (as appellant hereinafter) launched an appeal therefrom to this court on grounds as follows:

               (i)   The judgment is against the weight of the evidence.

              (ii)   The trial judge failed to appreciate that the judgment tendered

                      by the co-defendant in the case between the co-defendant and the defendant

                      created an issue estoppel on the question of ownership of the house and was

                      therefore wrong in law in holding that since the plaintiff was not a party to

                     that suit it was not binding on her.

            (iii)   The trial judge failed in her duty as judge in not considering and resolving

                     the matter in dispute between the co-defendant and the plaintiff, namely,

                     whether the defendant had title that she could pass to the plaintiff.

            (iv)    The trial judge erred in law by ignoring the evidence of the history of

                      ownership of the house which is contained in the judgment of the Circuit

                      Court, a court of competent jurisdiction.”

         A notice of further grounds of appeal was given but the further grounds were never filed.

        The gist of the plaintiffs/respondents’ action is set out below.  The plaintiffs/respondents (simply as respondents hereinafter) sued the defendant in the court below for the reliefs granted and set out above.  The respondents took the action as personal representatives of their mother, Axorlushie Zomade who died on 19 January 1999. 

        According to the respondents, their late mother bought the house numbered 49E/12, Nima, Accra from the defendant and the sale transaction was evidenced by a Deed of Assignment dated 8 April 1997.  The instrument was stamped by the Land Valuation Board as LVB 4446A/97.  The respondents also had a Land Certificate.

        The defendant in the court below denied the claim by the respondents and stated that Axorlushie Zomade purchased a vacant plot of land in front of the house No. 49E/12, Nima from her and that the late Zomade did not purchase the house itself.

        In the course of the proceedings in the court below, the appellant applied to join and she was joined as co-defendant to the action.  She filed a statement of defence and denied the case of each of the respondents herein and the defendant in the High Court.

        The appellant stated that the house in dispute was originally owned by one Abena Ramamatu (now deceased).  On the death of Ramatu, the property devolved on 4 (four) daughters that she had.  They included the mother of the appellant herein and Amorkor Meri Laryea (also now deceased).  The late Amorkor Laryea was the mother of the defendant.

        The property was shared among the four daughters, each obtaining two rooms as her share.  The defendant inherited her mother’s portion of two rooms in House No. 49E/12, Nima, Accra.  She soon sought to claim the entire house without success.

        A judgment of the Accra Circuit Court in Suit No. CC 173/96 between FOFO RUKYEA LARYEA VRS. AMINA AMORKOR granted “Rooms 5 and 6 in House No. 49E/12, Nima, Accra to Fofo Rukyea Laryea” (the present appellant).  The court by the judgment decreed the recovery of the two rooms in favour of the appellant too.  (See Exhibit 2).

        In the written submission, Counsel for the appellant addressed the first ground, namely, that “the judgment is against the weight of evidence.”  He submitted, in other words, that the totality of the evidence did not support the grant of the reliefs claimed by the respondents as found by the trial judge.

        Counsel turned the focus on two important findings in the judgment on appeal.  The first is that the Exhibits A, B, C and D tendered by the respondents confirmed that the sale of the property in dispute did take place.  The second is that the defendant failed to cross-examine the respondents’ witness and therefore, in the view of the learned trial judge, the defendant was bound by the evidence of the said witness to the effect that a sale transaction took place between the late Axorlushie Zomade and the defendant.

         Counsel for the appellant disagreed with the conclusion above.   He rather contended that the transaction between the parties was anything but a valid sale.  Counsel offered some explanation in support of his stand.

         Counsel took a closer look at the documents or instruments tendered on which the respondents based their title to the disputed house.  He submitted that the Land Title Certificate, Exhibit C pre-dated the action in the Circuit Court in 1996.  Exhibit C was issued on 4 March 1994 and yet it was neither pleaded nor tendered in evidence in the Circuit Court case.  It thus made the acquisition of it suspicious and therefore it made the case on it untenable. 

         Counsel for the appellant further submitted that the appellant put a judgment of the Circuit Court in evidence in the court below as Exhibit 2.  Exhibit 2 had not, Counsel submitted, been set aside or reversed on appeal:  he said it was still extant.

         It was held in Exhibit 2 that the defendant was entitled to only two rooms in the 8-room Nima house, No. 49E/12 that devolved on the defendant’s mother, Amorkor Laryea (deceased), and three other sisters (also deceased).

         The capacity of the defendant to assign the entire disputed house was doubtful.  The assignment evidenced by the instrument Exhibit B, dated 8 April 1997 was not valid to say the least.  So was the Land Certificate Exhibit C based on the assignment.

         It was also pointed out that Exhibit D was said to be the receipt on the sale of a house described by the vendor, Amina Amorkor (the defendant) as “my house.”  The description was not sufficient to link or it did not link the receipt and the house the subject-matter of the assignment/sale between the defendant, the assignor and the late Zomade, the assignee.  Against the foregoing, Counsel argued that there could not have been a valid assignment or sale to the late Zomade and her personal representatives, the respondents.  The judgment, in Counsel’s view, was against the weight of the evidence available.

         Counsel for the respondent supported the judgment by sticking to the evidence offered by the documents exhibited, (Exhibits A, B, C, D) by the respondents.  He submitted that Exhibit A, the Letters of Administration granted to the respondents for the administration of the estate of Axorlushie Zomade (deceased) gave the respondents the capacity to issue the writ of summons in the action.  He also submitted that Exhibit B, an instrument of assignment, was evidence of the grant of the house in dispute by assignment from the defendant to the respondents’ predecessor-in-title.  Exhibit C, the Land Certificate was evidence, in Counsel’s view, that the property assigned belonged to the defendant’s mother and was inherited by the defendant.  Counsel submitted above all that Exhibit D was the receipt in evidence that the assignee, the late Zomade, gave value for the assigned property.

         Counsel submitted further that on the basis of  what he considered as “the overwhelming documentary evidence,” the trial judge rightly made the finding that the property was sold to the late Zomade and that title to the property passed to the grantee.  Counsel accordingly urged the court to dismiss the ground as frivolous.

          Counsel for the appellant on his part has shown defects that affect the documents, Exhibits B (the Deed of Assignment), C (the Land Certificate) and D (the Receipt of Purchase).  The defects seriously detract from the allegedly valid sale transaction on House 49E/12, Nima and the transfer or passing of valid title to the said house to the respondents.  It is for the foregoing reason that the 1st ground, namely, “that the judgment is against the weight of evidence” succeeds and is accordingly sustained.

         The second ground of appeal was next addressed.  The ground was formulated as follows:

          “The trial judge failed to appreciate that the judgment tendered by the

            co-defendant in the case between the co-defendant and the defendant created

            issue estoppel on the question of ownership of the house and was therefore

            wrong in law in holding that since the plaintiff was not a party to that suit it

            was not binding on her.”

            In his written submission, Counsel for the appellant pointed out that the question of ownership of the disputed house had been effectively and completely determined by the Circuit Court in the suit No. CC 173/96, entitled FOFO RUKYEA LARYEA VRS. AMINA AMORKOR.  Needless to say, FOFO RUKYEA LARYEA  is the appellant herein and AMINA AMORKOR, the defendant (not appealing).

          In the reply to the written submission of the respondents, it was submitted that the judgment of the Circuit Court (Exhibit 2) was pleaded in the appellant’s statement of defence filed on 9 December 2002.  The said judgment was also tendered in evidence, admitted and marked Exhibit 2 in the High court.  Exhibit 2 offered valid and vital pieces of evidence as to the ownership of the disputed House No. 49E/12, Nima, Accra.  It decreed 2 (two) rooms apiece to the parties in that case.

          Of course the respondents sought to impeach Exhibit 2 by saying that it was fraudulently obtained.  As Counsel for the appellant rightly contended, fraud was neither pleaded nor proved in the High Court by the respondents (See Order 19 rule 6 of L.N.

140A).

          As of now, the defendant has not taken any step to set that judgment aside on ground of fraud or impropriety.  She has not appealed against it to get it reversed.  The judgment subsists and is binding on the parties and their privies.

         The attack on the judgment, Exhibit 2 seemed to me to be not well-founded.  In the submission by Counsel for the respondents, it has been strongly argued that the respondents were not parties in the Circuit Court suit and they had no notice of the action either.

        The respondents denied that they were caught by an estoppel per rem judicatam   in terms of the said Circuit court judgment.  To the respondents, the judgment “was clandestinely obtained” by the appellant.  They held on to the contention that estoppel was not pleaded to enable them to react appropriately to it in the High Court.

        With respect it is submitted that Exhibit 2 was pleaded in the statement of defence filed by the appellant in the High Court.  (See page 67 of the Record of Appeal – paragraph 2 of the Statement of Defence of Co-defendant).

        The respondents, the personal representatives of the late Axorlushie Zomade to whom a grant of assignment of the Nima house was allegedly made by the defendant, are, it is respectfully submitted, privies to their grantor, AMINA AMORKOR and are subject to the same degree as the defendant of the binding force of Exhibit 2.

         The third ground of appeal reads as follows:

                 “The trial judge failed in her duty as judge in not considering and resolving

                   the matter in dispute between the co-defendant and the plaintiff whether

                   the defendant had title to pass to the plaintiff.”

         Counsel for the respondents took the view that the Exhibits A, B, C and D tendered in evidence provided overwhelming evidence of the title to the house in dispute and the title was vested in the respondents’ mother, the late Zomade by reason of a sale transaction between the defendant and her (ie. the late Zomade).

          The weaknesses of some of the exhibits have been exposed above.  A few useful observations shall be made on the evidence offered by those exhibits.

          Exhibit A is the Letters of Administration granted to the respondents for the administration of the late Zomade’s estate.  The validity of the Exhibit is beyond doubt.  Exhibit B is the Deed of Assignment by which the defendant Amina Amorkor was supposed to have assigned the unexpired term of a lease to the respondents’ mother, the late Axorlushie Zomade.

          It has been shown that the transaction that took place between the defendant Amina and the late Zomade was not above board.  In Exhibit 2, the assignor Amina Amorkor (now deceased) had interest in only 2 (two) rooms of House 49E/12, Nima, so found by the court.  The late Amina could not have made a valid grant of the entire house in dispute, because she lacked the capacity to do so.

           It was the case of the late Amina Amokor that she granted to the respondent’s mother (the late Zomade) land in front of the disputed Nima house and not the house itself.  She freely made the averment in her statement of defence and the party who gave evidence as her substitute in the High Court stated on oath that the assignor, the late Amina, was not an exclusive owner and that she shared with others the ownership of the house.

          The foregoing exposes that assignment as unlawful and invalid, the transaction having been made without capacity or in excess of capacity by the late Amina Amorkor.

           The Land Certificate is usually seen and accepted as evidence of a valid title of the proprietor of land involved.  It does not validate an otherwise ineffective and invalid title to land.  (See NARTEY VRS. MECHANICAL LLOYD ASSEMPLY PLANT LIMITED (1987-88) 2 GLR 314).  The invalidity of Exhibit C as demonstrated in the judgment of the Accra Circuit Court (Exhibit 2 herein) seriously undermines the claim of title to the disputed house by the respondents.

          As pointed out above, Exhibit D, the Receipt of Purchase, does not offer the respondents any comfort, for it does not link the sale transaction therein with the disputed house.

          On balance, therefore, all the Exhibits tendered in the court below do not pass title to the assignee, the late Zomade or her successors-in-title, the respondents.  In plain language the assignor in the transaction of 8 April 1997 lacked capacity to transfer the entire house No. 49E/12, Nima because she did not have the requisite title thereto and therefore the purported assignment did not pass valid title of the entire house to the assignee or the respondents, her successors-in-title.

           The next and final ground of appeal is as follows:

                        “That the trial judge erred in law by ignoring the evidence of

                          history of the ownership of the house which is contained in the

                          judgment of the Circuit Court, a court of competent jurisdiction.”

           The trial judge rejected out of hand the entire judgment of a Circuit Court tendered in the High Court as Exhibit 2.  According to her “the issues and the parties” were not the same in both cases, ie. the case before her Lordship in the High court and the case of the Circuit Court.  The view of Her Lordship was false.  As explained, the judgment was binding on the defendant as one of the parties and the respondents as privies to the defendant.

         When the trial judge refused to look at Exhibit 2 and treated it as being irrelevant, she misdirected herself and she thus failed to get the background evidence that the defendant’s title to only two rooms in the disputed house disabled her from making a valid grant of the whole house and/or the land in front of it.  The defendant therefore passed no title to the late Zomade and/or her successors, the respondents.  In the result the trial judge erred by ignoring the evidence that Exhibit 2 offered.

         The last ground accordingly succeeds like all the other crucial grounds.

The appeal therefore succeeds and is accordingly allowed.

 

 

 

                                                                                        K. TWENEBOA-KODUA

                                                                                               JUSTICE OF APPEAL

       

 

 

 

I agree.                                                                                       R. C. OWUSU

                                                                                               JUSTICE OF APPEAL

 

 

I also agree.                                                                                S.Y. ANIM

                                                                                              JUSTICE OF APPEAL

 

Counsel  -   Thomas Hughes for Respondents

      

                     Gabriel Puamang for Appellant.

 

 

 

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