Andam And Another Vrs Amoah and Another (HI/192/ 07) [2008] GHACA 25 (13 March 2008);

Flynote: 

 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA

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CORAM:   1.  R.C. OWUSU ,  J. A. [ PRESIDING]

      2.  MARFUL-SAU, J. A

                                                                      3.  YAW APPAU,  J. A.

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13TH MARCH 2008

SUIT NO. HI/192/ 07

SABINA ANDAM & ANOR.                                  -       PLAINTIFFS/ RESPONDENTS

 

 

                        VRS.

 

DANIEL LIGHT AMOAH & ANOR.                  -       DEFENDANTS/APPELLANTS

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JUDGMENT

 

 

MARFUL-SAU J.A.

 

This appeal is against the judgment of the Accra Circuit Court dated the 19th July 2005.  The Plaintiffs/Respondents issued a writ of summons against the Defendants/Appellants for the following reliefs.

i.          Recovery of possession of the piece of parcel of land with building thereon situate at Kwashieman, Accra comprised in the lease dated 15th day of June 1990 between the Ahiaku family and the 2nd Plaintiff.

  1. Declaration of title to the land described in (i) above.
  2. Perpetual injunction against the 1st and 2nd Defendants.
  3. Cost.

 

The brief facts of the case are that the 1st and 2nd Defendants were tenants in a four-room building at Kwashieman, Accra.  The Owners of the land and the four-room building decided to sell the property.  The Defendants together with their father approached the 1st Plaintiff, who happened to be the wife of Defendants father and persuaded her to purchase the property.   This was to prevent the ejection of the Defendants if a stranger bought the house.   The 1st Plaintiff agreed to purchase the property and consequently came to Accra together with the Defendants and paid for the property from the Kwashieman Mantse, who represented the Ahiaku family.  A lease was prepared in the name of the 2nd Plaintiff who was the daughter of 1st Plaintiff.  This lease was dated 15th June 1990 and upon its execution the Defendants assisted the 1st Plaintiff to register same at the Land Titled Registry and a yellow card was issued to the 1st Plaintiff.

 

According to the 1st Plaintiff, after a time the 1st Defendant came to her in the village with ¢800,000 as a refund to reclaim the house.   Attempts were made to settle the dispute arising out of the conduct of 1st Defendant but the Plaintiff had to issue the writ because the 1st Defendant maintained his position that the land was his.  The case put up by the1st Defendant was that the lease granted to the 2nd Plaintiff by the Kwashieman Mantse was void, since in 1985 the same parcel of land had been leased to him and the 2nd Defendant by the Kwashieman Mantse.   Again the 1st Defendant averred that the land, the subject matter of this dispute, had been acquired under an Executive Instrument dated 27th April 1975 and for that matter the Ahiaku Family had no capacity to grant the lease to the 2nd Plaintiff.    The 1st Defendant therefore counterclaimed for a declaration of title to the land in dispute and perpetual injunction against the Plaintiffs.   The 2nd Defendant is the brother of the 1st Defendant. In his statement of defence and evidence, the 2nd Defendant, admitted Plaintiffs claim.   The contest clearly was therefore between the Plaintiffs and the 1st Defendant.

 

The following issues were set down to be tried.

  1. Whether or not Plaintiffs had acquired the land from the Ahiaku family of Kwashieman by way of lease on 15th June 1990.
  2. Whether or not the same Ahiaku Family of Kwashieman had earlier in 1985 granted the same land to the1st and 2nd Defendants.
  3. Whether or not it was the 1st and 2nd Defendants who directed and led the 1st Plaintiff to the Ahiaku family of Kwashieman for the purchase of the land

 

The following additional issues formulated by the 1st Defendant were also admitted for the trial.

 

  1. Whether or not the Ahiaku family could grant the same land to the Plaintiff in 1990 after it had granted it to the Defendants in 1985.
  2. Whether or not the land forms part of the land acquired by the government under Executive Instrument dated 23rd April 1975.
  3. Whether or not the Plaintiffs have the capacity to bring the action since the land is government land.
  4. Whether or not Defendant is entitled to his counterclaim.

 

The Circuit Court at the end of the trial entered judgment for the Plaintiffs declaring them owners of the property the subject matter of the dispute.   It is against this judgment dated the 19th July 2005, that the 1st Defendant has appealed.  In this judgment the Plaintiffs/Respondents would be referred to, as Respondent and the 1st Defendant/Appellant will be called simply the Appellant.   By his Notice of Appeal filed on the 5th August 2005, the Appellant formulated the following grounds of Appeal namely,

  1. That the learned judge’s Judgment cannot be supported by the Plaintiffs claim with regard to the evidence.
  2. That the findings of the court are clearly unsupported by evidence on record or reasons in support of the findings are unsatisfactory.
  3. That the finding of the Judge is inconsistent with crucial documentary evidence on record.
  4. Additional grounds may be filed after obtaining a copy of the judgment.

 

In this appeal no additional grounds were filed by the Appellant hence the three main grounds of appeal remained those contained in the Notice of Appeal.  I have however looked at the three main grounds above and I think the said grounds are the same and not different from the general ground, that the judgment is against the weight of evidence led at the trial.  I will thus address the appeal under that ground.

 

From the record of  appeal, even though the Appellant had averred that the land in dispute was part of parcel of land acquired by the Government under the Executive Instrument dated 23rd April 1975, no evidence was led to prove same so the issue as regard government ownership of the land would be at large.  As I observed earlier in this judgment, the contest in this suit is between the Respondents and the Appellant.  The Respondent relied on the lease dated the 15th June 1990 from Nii Lartey Kwashie Ahiaku V of the Ahiaku family of Kwashieman as their root of title.  This document was tendered as Exhibit ‘A’.   The Appellant also relied on a lease from the same Nii Lartey Kwashie Ahiaku V dated the 20th February 1985 as his root of title.   Indeed in his evidence in chief and cross-examination, the Appellant denied playing any role to persuade the 1st Respondent to purchase the property.   From his testimony recorded at pages 48 to 51, the Appellant asserted he acquired the land in 1985 and built two rooms whilst the 2nd Defendant built the other two rooms with a verandah separating them.  The 2nd Defendant however denied owning the two rooms ascribed to him and asserted he was forced to execute Exhibit 2, which was tendered by the Appellant as his root of title from the Ahiaku family.

 

In evaluating the evidence the trial Circuit Judge preferred the evidence adduced by the Respondents and rejected the Appellant’s root of title that is Exhibit 2.  The trial judge found that the said Exhibit 2 was backdated to overreach the 1990 lease granted to the 2nd Respondent.  The fundamental issue to resolve in this appeal is whether there was evidence on record to support the trial Judges’ findings on Exhibit 2 on which the Appellant case rested.

 

At page 90 of the record of Appeal is Exhibit 2, which was allegedly executed on the 20th February 1985.   It is a lease to the Appellant and 2nd Defendant from the same Nii Lartey Kwashie Ahiaku V of the Ahiaku family of Kwashieman.  The lease is executed by both Appellant and 2nd Defendant as lessee.   Interestingly this Exhibit, as well as Respondent’s Exhibit A were both signed by F. E. Creppy Esq, Solicitor and Advocate, as the one who prepared the document.   Exhibit 2 grants a 99 years lease to the Appellant and 2nd Defendant from the 20th February 1985 at a yearly rent of ¢2,500.00.  Again it is interesting to observe that Exhibit A covering the same land from the same Lessor stipulates a yearly rent also of ¢2,500.00 in 1990.

 

In both Exhibits A and 2, the Lessors in reciting their root of title refers to rulings of the High Court dated the 5th October 1983 and 18th July 1986.  Exhibit 2 as has been shown was supposed to have been executed on the 20th February 1985.   The question I ask is that how could a 1985 land document recite a judgment dated 18th July 1986 as root of title.   The 1st Appellant did not offer any explanation to this strange and impossible event.   The obvious fact is that the document relied on by the 1st Appellant and tendered as Exhibit 2 was not executed in 1985, it was indeed executed after1985 and after 18th July 1986, the date the judgment recited.  The date 20th February 1985 was put on the document by the parties to achieve a fraud which was exposed by the very document that was executed.   The document Exhibit 2, no doubt was prepared to overreach the interest acquired in the land by the Respondents, but the very document did expose the deceit.   Indeed the Appellant should leave this Court in shame for the deceit he sought to perpetrate on public institutions like the Land Title Registry and the Circuit Court. 

 

Another interesting evidence from the record of appeal, relates to the yellow cards issued to the Respondents and the Appellant by the Land Title Registry.  These yellow cards acknowledged the receipt of the parties respective lease documents submitted for registration.  The Appellant’s case has been that he acquired the land in 1985 and his leasehold document Exhibit 2 is dated 20th February 1985.  From the record of appeal, at page 95 it is manifest that Appellant’s document was lodged at the Land Title Registry on the 15th April 1999 and was allocated the serial number 01550/99.

 

On the other hand, the Plaintiffs document which was dated 15th June 1990 was lodged at the Land Title Registry on the 6th November 1997 with serial number 0528/97.  This is evident at page 87 of the record of appeal.  From the two yellow cards exhibited, it is clear, that the Plaintiffs lodged their document, Exhibit A with the Land Title Registry for registration earlier in time in 1997, even if one should concede that the Appellant’s lease was granted in 1985 (a fact found to be false in this judgment).   The question is why did the Appellant wait for 14years, from 1985 to 1999 before lodging his document with the Land Title Registry, for registration.   From the record, the Appellant did not offer any explanation for the long wait before lodging his document for registration.

 

The evidence on record regarding the times the two yellow cards were issued as well as the dates the two competing lease documents were lodged with the Land Title Registry, further exposed the deceit in the conduct of the Appellant.   This evidence made the case of the Respondents reasonably probable of belief than the case put up by the Appellant at the trial.   

 

Indeed having found that Exhibit 2 was a grand design to deceive the Court, the trial Court was right in rejecting same and entering judgment for the Respondents thus dismissing the Appellant counterclaim, since the entire claim put up by the Appellant was anchored on Exhibit 2.

 

The law is trite that an Appellate Court will normally not disturb findings of fact made by trial Courts unless the evidence does not support such findings

 

In Boateng and others V Boateng 1987/88 2 GLR 81, this Court held as follows:

“Where an appellant contended that a judgment was against the weight of evidence, he assumed the burden of showing from the evidence that there was so.  In the instant case, a careful examination of the evidence on record as well as submission of counsel showed that the findings of fact made by the trial court were amply supported by the evidence on record.   Consequently there was no basis for interfering with the main conclusions of the trial Judge”. 

 

In this appeal there is enough evidence on record to support the finding that the Exhibit 2 was executed as part of a plan designed to deceive the public and that finding will not be disturbed by this court.  I therefore confirm the said finding and dismiss the appeal since there is evidence to support the trial court’s Judgment.  The Appellant’s claim is seriously vitiated by his root of title and consequently this appeal must fail.

 

 

                                   

                                                                                    [SGD.]     S. MARFUL-SAU

                                                                                               JUSTICE OF APPEAL

 

 

 

 

OWUSU, JA:-  I have read the Judgment of my brother and I agree with the decision arrived at.  I have nothing useful to add.

 

 

                                                                             [SGD.]    R.C. OWUSU

                                                                                     JUSTICE  OF APPEAL

 

 

 

 

I also agree.                                                      [SGD.]   YAW APPAU

                                                                                     JUSTICE OF APPEAL

 

 

 

COUNSEL:-  MR. FRED AWUAH FOR THE 1ST DEFENDANT/APPELLANT.

 

                      MR. F.A. ACQUAYE FOR THE PLAINTIFFS/RESPONDENTS.

 

 

 

 

 

 

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