Adjei And Another Vrs. Tema (H1/221/2006) [2007] GHACA 10 (20 July 2007);

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL   -   ACCRA

 

                              CORAM  -  R.C. OWUSU, JA [PRESIDING]

                                                  BAFFOE BONNIE, JA

                                                  I. DUOSE, JA

H1/221/2006

20TH JULY, 2007

 

1.  KWABENA ADJEI BOADI   }          …      PLAINTIFFS/APPELLANTS

2.  YAW BOADI KWARTENG  }

 

               V E R S U S

 

      MAD. AKOSUA TEMA        }          …       DEFENDANT/RESPONDENT

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                                           J  U  D  G  M  E  N  T

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OWUSU, JA :-  This is an appeal against the Judgment of His Lordship L.L. Mensah J. delivered  on 6th day of December 2005 at the Fast Track High court, Sunyani.

            By their writ of summons, the Plaintiffs/Appellants herein, hereafter referred to as Plaintiffs claimed against the Defendant/Respondent hereafter referred to as Respondent the following reliefs:

                        “1.  A Declaration that plaintiff’s hold a valid lease in

                               respect of all that Plot No. 5 Block Q in the Sunyani-

                               Fiapre South lay out situate at Sunyani in the Brong-Ahafo

                               Region.

                          2.  A Declaration of title and recovery of possession of said

                                Plot No. 5 Block Q in the Sunyani Fiapre lay out.

                           3.  General Damages for trespass.

                           4.  An Order of perpetual Injunction restraining the Defendant,

                                her agents etc. from interfering in any way with plaintiffs

                                Title and possession of the said land and building thereon.”

            The Plaintiffs are uterine brothers of one of the wives of Opanin Yaw Kra, deceased and step sons of the Defendant Akosua Tema, widow of their deceased father.

            The Defendant resisted the plaintiff’s claim contending that Plot No. 5, Block Q is the self-acquired property of her deceased husband and that he gifted the said plot with the building thereon to her and the gift is evidenced in writing by a Deed of Gift executed in her favour by the deceased during his life time.

            The Plaintiffs’ case is that they asked their father to acquire a plot for them and sent moneys to him with which he built a house, ownership of which is now in dispute.

The two brothers from the evidence were at the time resident outside Ghana and prosecuted their claim through their lawful Attorney James Kwasi Anin another son of Opanin Yaw Krah, their father.

            It is their case that Plot No. 5 Block Q was acquired by their father on their behalf with money they gave him for that purpose.

            The Defendant however claims that Plot 5 Block Q was part of her ancestral land which was later zoned out for residential purpose.  According to her, she was given three plots by the Town and Country Planning Office.  She was told she could not use her names on all the three plots so she used the name of her late husband on one plot i.e. the plot in dispute because he was going to build for her and her daughter’s name on another leaving one in her own name.

            After determination of the issues set down for trial among which are

“whether or not the plot and building in dispute is the self-acquired property of the plaintiff,” and

“whether or not the said building originally belonged to the late Opanin Yaw Boadi @ ‘Wofa Yaw,’ the trial Judge dismissed the Plaintiffs’ claim as devoid of any merit.

            There was also the issue of the gift by Opanin Krah to the Defendant in his life time.

            Dissatisfied with the judgment, the plaintiffs have appealed to this court on the sole ground that “The judgment is manifestly against the weight of evidence adduced at the trial..”

            No supplementary grounds were filed as indicated in the Notice of Appeal.

            Arguing the appeal, counsel for the Plaintiffs relied heavily on the evidence

of the plaintiffs’ Attorney and the Mason/Contractor who put up the house, P.W. 1.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

            Counsel submitted that even though their total evidence seems contradictory they are reconcilable and their combined evidence show that the plaintiffs acquired the plot in dispute through their father and financed the construction of the house on the plot.

            Indeed, the evidence of the Attorney and P.W.1 are contradictory in that whereas

the Attorney’s evidence, in line with the statement of claim is that the plot with the building thereon belongs to the two brothers, the plaintiffs, the evidence of P.W.1 is that the plot with the building belongs to the 1st plaintiff alone.

            In court, this is what the Attorney said:  “I know plot No. 5 Block Q in the Fiapre south layout.  At the life time of my father, the plaintiffs informed out late father that they wanted to put up a house here in Ghana, so that they could get an abode when they visited the country from abroad.

            They sent money to him (late father) to purchase a land and put up the house.  He acquired plot No. 5 Block Q Fiapre, that is the land in dispute.  My father appointed one of my brothers who is called Yaw Krah who built the house.  He is a mason.  He put up the structure up to the roofing level before the demise of my father…………..”

            P.W.1 however told the court that 1st plaintiff visited him in the company of their father and declared his intention to put up a house.  He told him that he would look for a plot at Abesim for him but their father intervened and said he (their father) would get a plot for the 1st plaintiff.  

The next day, they came back to him and informed him that their father had been able to get a plot for the 1st plaintiff and so he (witness) should find time to come to Fiapre so that they could talk about how to begin work on the building.

            At Fiapre, 1st plaintiff, their father and himself met in 1st plaintiff’s room and according to him, this is what transpired at the meeting –

            “At that meeting my late father suggested that all monies regarding the building of the house should be entrusted in my care to which I disagreed because I couldn’t have continued the physical work itself in addition to the finances…………………………….

At that forum, the 1st plaintiff dished out ¢3 million and it was given to my father……….

On the 3rd day, I started the foundation of the building with my boys.

In the course of working I reported the shortage of materials as and when it occurred. 

1st plaintiff was in Ghana by then so when I informed my late father he would in turn collect money from 1st plaintiff and provide the materials. 

            Before 1st plaintiff’s departure, the building was at lintel level so I told 1st plaintiff to hand over all financial commitments to my late father.

This witness told the court that at a meeting of the family, children and wives of their father in attendance, during his funeral, the defendant laid claim to the house saying that it was gifted to her by her late husband Opanin Krah.  There and then, he continued, the defendant’s own daughter who had also come from abroad said, “mother stop, otherwise you would create problem between you and the plaintiffs since they brought money for the house to be constructed.”

            Under cross-examination, the witness insisted that the house is exclusively for 1st plaintiff.  To a question –

“Q:  Do you repeat that the building is exclusively for 1st plaintiff?” his answer is -

“A:  Yes.”  To another, “He solely financed it” again the answer is “Yes”

The daughter of the defendant did not testify at the trial.  The evidence of the plaintiffs’ next witness also seeks to support the evidence of P.W.1 that the 1st plaintiff financed the construction of the house.  However he testified to what he was allegedly told by Opanin Krah who was his nephew.  According to him, Krah told him that the 1st plaintiff brought him money to put a house for him and that he had acquired a plot at Fiapre for that purpose.  Opanin Krah started the project which he could not complete before his death.

            The witness also spoke of what transpired at the meeting at which the defendant laid claim to the house in dispute.  According to him, it was when the defendant and 1st plaintiff laid claim to the house that the Head of family called upon him to speak since he lived with the deceased for a very long period.  It was then that he told the gathering what Wofa Yaw allegedly told him.  Such is the evidence of the plaintiffs’ in support of their claim.

            The defendant, by her statement of Defence claimed the house as her deceased husband’s self-acquired property which he gifted to her during his life-time.  The plot No. 5 Block Q, Sector 8, according to her is her family land which was allocated to her together with two others Nos. 3 and 4.  She used her husband’s name on plot No. 5 because she has been advised she alone could not have all three plots in her name.

            Her evidence at the trial was consistent with her pleading and the witnesses she called including a Legal Practitioner, supported her testimony that the house was gifted to her by her late husband.  The Legal Practitioner, did prepare a Deed of Gift tendered at the trial.  She however did not counter-claim for any relief.

            A plaintiff who seeks a declaration of title to land must lead sufficient evidence to discharge the burden of persuasion required under Section 10(2) of the Evidence Decree which states that:

            “The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by preponderance of the probabilities or by proof beyond a reasonable doubt.”

            In civil matters, “the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was mere probable than its non-existence (S.11(4) of N.R.C.D. 323).

            The evidence-in-chief of the plaintiffs and that of their witness Boadi who constructed the building are diametrically opposed as to who owns it.

            The evidence of Boadi is also a departure from the statement of claim filed.  He told the court that it was in 1996, that 1st plaintiff came to him with an idea that he wanted to put up a house.  He maintained through out his evidence that the house is for the 1st plaintiff.

            In BOATENG & ORS. VRS. BOATENG [1987-88] 2 GLR 81 the Court of Appeal stated that “where the appellant contended that a Judgment was against the weight of Evidence he assumed the burden of showing from the evidence that that was so.

See also the case of AMPONSAH VRS. VOLTA RIVER AUTHORITY [1989-90] 2 GLR 28.   In this case, the Appellant’s sole complaint is that the judgment is against the weight of evidence.    In other words, the judgment is unreasonable and cannot be supported having regard to the evidence on record.

            The main issue that called for determination to me in the court below is whether  the house in dispute is Opanin Krah’s self-acquired property or that it belongs to the plaintiffs.

            Section 12(1) of the Evidence Decree states that:

“Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities” defined under 12(2) to mean “that degree of certainty of belief in the mind of the tribunal or fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.”

            Did the evidence of the plaintiffs in the court below reach that degree of certainty to tilt the scale on the balance of probabilities in their favour, having regard to the totality of the evidence on record?  To answer this question, it is incumbent upon this court to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at a decision, so as to satisfy itself that on a preponderance of the probabilities, the conclusions of the trial Judge are reasonably supported by the evidence.

See the case of TUAKWA VRS. BOSOM [2001-2002] SCGLR 61. 

            In his statement of case, counsel conceded that the total evidence of the plaintiffs’ Attorney and P.W. 1 seems contradictory, but he submitted that they are reconcilable.

He contended that the combined effect shows that the plaintiffs acquired the plot in dispute through their father and that they financed the construction of the house.

            Counsel’s contention is not borne out by the evidence in view of the contradiction and has therefore failed to satisfy the court that the two pieces of evidence are reconcileable and were indeed reconciled.  The effect of the inconsistencies, especially where the evidence of P.W.1 is a complete departure from the plaintiff’s pleading, goes to weaken the claim of the plaintiffs who must succeed on the strength of their own case.

See the case of TANO VRS. ABBAN MENSA & ANOR. [1992-93] GBR 308.

            The evidence on record indicates that plot No. 5 Q Sector 8 was allocated to Opanin Krah in 1981.  So that in 1996 when he allegedly told Boadi that he had found a plot for the 1st plaintiff, was he referring to this plot?  If yes, one would have thought that he would have made it plain to Boadi that it was his plot which he was giving to him.

            Again, the building permit is in the name of Opanin Krah and this was granted him in 1994 to be precise 19-12-94.  Of course the building plan is also in his name.

No evidence was offered in explanation as to why these documents are in the name of Opanin Krah if indeed the plot with the building is for the 1st plaintiff who was in Ghana when the plot was acquired and the building started.

Remarkably, could the plan be prepared, submitted and approved in 1996 for the construction of the building while 1st plaintiff was in Ghana?  Definitely not when the permit was granted in 1994. These punches go to shake the very foundation of the plaintiffs’ claim and there is no wonder that it crumbled in the court below. 

            In the case of OBENG VRS. BEMPOMAA [1992-93] GBR 1027 at 1028, this court held that:  “Inconsistencies though individually colourless, may cumulatively discredit the claim of the proponent of the evidence.  The conflicts in the evidence of the plaintiffs and his witnesses weakened the merit of his case and proved fatal to his claim.”

            The plaintiffs exhibited a lease executed in their favour in 2003 after the death of their father.   Why the seven year period between the time their father allegedly acquired the land for them and the time of execution of the lease?

            The lease with its subsequent registration, cannot confer title on the plaintiffs if in deed and in fact they do not have any such title. If I may borrow the words of Lord Denning in the case of MACFOY VRS. UNITED AFRICA COMPANY LTD. [1961] 3 All E.R. 1169 quoted in the celebrated case of MOSI VRS. BAGYINA [1963] 1 GLR 337 by Akuffo-Addo J.S.C. (as he then was), “you cannot put something on nothing and expect it to stay there.  It will collapse.”

            The lease tendered at the trial, contrary to the plaintiffs’ pleading, has no force and effect.

Indeed the law is settled that registration of land per se does not confer state-guaranteed title.  See the case of ASARE VRS. BROBBEY & ORS. [1071] 1 GLR 331. 

            The plaintiffs have failed to satisfy this court that on the evidence, the judgment of the court below as to ownership of the house is indeed unreasonable having regard to the evidence.

            The Defendant did not counter-claim for any relief.  On the gift of the house to her, the trial court made a positive finding that her deceased husband made a gift inter-vivos of the house to her.

The court came to this conclusion having accepted the evidence of the Defendant and her 1st witness who claimed was present at the meeting when Opanin Krah made the declaration.  Before then according to her, her husband had told her in confidence that he would give the house and a portion of his Cocoa farm at Wassa Amenfi to her because the plot is her ancestral land and she gave it to him.

            She named those present at the gathering when Opanin Krah gifted the house to her, some of whom she told the court were dead.  She called one such witness, D.W. 1.

            The Defendant upon whom the burden had shifted had to lead sufficient evidence to substantiate her assertion.  D.W. 1 was extensively cross-examined and his evidence was not shaken.  The attack of the plaintiffs’ counsel on the alleged gift is that if made, it was in the absence of Opanin Krah’s family members and therefore did not satisfy a customary law essential that members of the Danee’s family must be present.

            The cases of RE OHENE (Deceased) ADIYA VRS. KYERE [1975] 2GLR 89 approved of in RE BONNEY (Deceased); BONNEY VRS. BONNEY [1993-94] 1 GLR 610 answers his attack.

            In the case of IN RE-BONNEY (DECD); BONNEY VRS. BONNEY, Aikins J.S.C. (as he then was) had this to say:

            “I think we have to bear in mind the essentials of a valid gift inter-vivos of self-acquired property of the deceased, that is to say proof by the donee of formal acceptance and publicity of the gift as expatiated upon in the well-known case of In re Ohene (Decd); Adiyia Vrs. Kyere already referred to.  In that case, it was made clear that consent by members of, or the presence of witnesses from the donor’s family is no longer necessary……………..”

            No sufficient reason has been shown why that finding of fact of the gift having been made should be interfered with by this court.  That finding is amply supported by the evidence of the Defendant and her witness D.W.1 and this court should not interfere with it especially where the Defendant’s evidence is consistent with her pleading on that issue and should therefore be preferred to the claim of ownership by the plaintiffs which cannot be sustained on the evidence on record.

            The trial Judge did not put any reliance on the Deed of Gift which was tendered at the trial saying it was of no evidential value as same was not registered.

            The trial Judge rightly did not put any reliance on the Deed of Gift.

            In the case of ASARE VRS. BROBBEY & ORS. already referred to at 332, the Court of Appeal held that:

“Since the mortgage deed was not registered at the time the power of sale was exercised, the document itself was ineffective and invalid to confer the rights and to impose the obligation stipulated in the mortgage deed---------------

See also the case of NARTEY VRS. MECHANICAL LLOYE ASSEMBLY PLAINT 1987-88] 2 GLR 314.

            However, the trial court erred when it entered Judgment for the Defendant who had not counter-claimed.  For this reason that part of the Judgment ought to be set aside and same is hereby set aside.

            For the reasons given, the appeal fails and is hereby dismissed.

 

 

 

                                                                                    R.C. OWUSU

                                                                                 JUSTICE OF APPEAL

 

 

 

I agree.                                                                       P. BAFFOE-BONNIE

                                                                                    JUSTICE OF APPEAL

 

 

 

I also agree.                                                                      I. DUOSE

                                                                                     JUSTICE OF APPEAL

 

 

COUNSEL  -  KWAME AGYEMAN, ESQ., FOR PLAINTIFFS/APPELLANTS.

 

                         MR. OTU ESSEL, ESQ., FOR DEFENDANT/RESPONDENT.

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