Court of Appeal

NDK Financial Service Vrs Ahaman Enterprise Ltd and Others (148 of 2012) [2013] GHACA 6 (28 March 2013);

Anonymous — Wed, 23 Jun 2021 10:49:07 +0000

NDK Financial Service Vrs Ahaman Enterprise Ltd and Others (148 of 2012) [2013] GHACA 6 (28 March 2013); Anonymous (not verified) Wed, 06/23/2021 - 10:49

Download

2013-ghaca-6.pdf

Law report citations

Banahene Vrs Shell Ghana Ltd (34 of 2016) [2017] GHACA 36 (06 April 2017);

Anonymous — Wed, 23 Jun 2021 10:49:07 +0000

Banahene Vrs Shell Ghana Ltd (34 of 2016) [2017] GHACA 36 (06 April 2017);

Flynote

Bailment

Carriage of Goods

Contract Validity

Perfection of Contract

Burden of Proof

Anonymous (not verified) Wed, 06/23/2021 - 10:49

Headnote and holding

The court was confronted with a question of liability for undelivered goods by the driver of a haulage company contracted by the plaintiff. The meat of the enquiry focused on the issue of the effect of a failure to sign the delivery note on bailment. Having assessed the understanding and intentions of the parties the court reasoned delivery occurred at the moment of loading by the supplier, upon which liability passed to the carrier. The issue of the signing of the note or lack of by the driver thus bore no significance on the question of liability. Only sufficient reasons for failure to adduce the signature and evidence of collusive fraud by defendant would commute the carrier’s responsibility. Consequently, a claim of contributory negligence could not stand once loading had been made by the supplier as they did not have an express duty of care to ensure signing of the notes. Moreover, the mere loading was in itself delivery thus the plaintiff failed to demonstrate negligence.

Finally, the court dealt with the question of whether a contract actually existed between the parties as this had an effect on surcharges deducted by the defendant. The court found that given the nature of the contracts involved, the defendant had no contractual relationship with the plaintiff and therefore could not sue on the surcharge agreement as they were not party to the contract made for their benefit.

The court thus dismissed the appeal.

Download

2017-ghaca-36.pdf

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2017

CIVIL APPEAL NO. J4/34/2016

6^TH APRIL, 2017

OPPONG BANAHENE - PLAINTIFF/APPELLANT/APPELLANT

VRS

SHELL GHANA LIMITED - DEFENDANT/RESPONDENT/ RESPONDENT

JUDGMENT

BENIN, JSC :-

This is an appeal from the unanimous decision of the Court of Appeal dated the 19^th day of January, 2012. Oppong Banahene, the Plaintiff/Appellant/Appellant is hereinafter referred to as the Plaintiff and Shell (Ghana) Ltd. which is the Defendant/Respondent/Respondent is hereinafter referred to as the Defendant.

THE FACTS

The Plaintiff entered into a written haulage agreement with the Defendant on the 13^th day of May 1996. The agreement, however, was said to have commenced on the 1^st day of January, 1996 and was scheduled to terminate on 31^st December, 1996; it was for one year certain. Under the agreement, the Plaintiff was to transport petroleum products belonging to the Defendant from Tema Oil Refinery (TOR) to their customer called Sonitra at Yawkwei, near Konongo on the Accra-Kumasi Road. A copy of that agreement was put in evidence as exhibit A.

The haulage relationship between the parties continued without a formal renewal after the one year duration. In short, the parties continued to conduct business under the same terms and conditions as contained in exhibit A. This business arrangement continued until late 1998. To be precise, in November, 1998 the defendant introduced a Fleet Rationalisation Scheme (FRS) whereby companies or persons operating hauling business with the defendant with fewer than ten vehicles were to operate under bigger companies with ten or more vehicles. The Plaintiff had two trucks which were Mercedes Benz with registration number GT 4408 E and Man Diesel with registration number GR 7805 F. He therefore fell under persons with fewer trucks. Consequently, if he was to continue in business with the defendant, he was bound to place his two trucks under one of the bigger operating companies. Pursuant to the FRS, the plaintiff’s vehicles were placed under the control and management of Benko Limited. There was some disagreement as to who actually placed the plaintiff’s trucks under the aegis of Benko Ltd which was a bigger company within the terms of the new scheme. But that misunderstanding was uncalled for because the evidence was clear that the plaintiff did not qualify under the FRS and being desirous to continue working with the defendant, he accepted to work under Benko Ltd. and had no problem with that.

A written agreement was executed between the defendant and Benko Ltd. to which the plaintiff was not a party; that agreement took effect from January 1999 and was renewed from time to time on the same terms and conditions. Thenceforth, the Plaintiff operated under Benko Ltd. and therefore he received his payments from Benko Ltd and not directly from the defendant. In effect the defendant had no direct dealing with the plaintiff as from January, 1999. The plaintiff, however, retained ownership of his two trucks and employed his own drivers.

On the following dates: 1^st October 2003; 6^th, 19^th and 30^th January 2004 respectively; 12^th as well as 20^th February 2004, the Plaintiff's Mercedes Benz truck was loaded with petroleum products but none was delivered to the designated consignee, Sonitra. Of all the six loads only the one on 30^th January, 2004 bears the signature of the Plaintiff's driver, Emmanuel Lawerter. The defendant surcharged the plaintiff via Benko Ltd. with the total cost of the six loads amounting to ₵621,900,180.00 (now GH₵62,190.18), from the earnings of his plaintiff’s two trucks placed in Benko Ltd’s pool, at a monthly deduction rate of ₵50,000,000.00, (now GH₵50,000.00), after Benko Limited had approved of the said deductions. The plaintiff also wrote to the defendant approving of the deductions pending police investigations into the diversions. But that approval was otiose because the defendant required only the authorisation of Benko Ltd. as the contracting party.

The plaintiff believed that he was not responsible for the five consignments for which his driver did not sign the delivery notes. Hence on the 12^th day of November, 2004, Plaintiff issued a Writ of Summons against the Defendant claiming the following reliefs:

(i) Account of all freight earned by the plaintiff since March 2004 under the bulk petroleum haulage agreement with the defendant under which the plaintiff uses his two articulated tanker trucks, Mercedes Benz No. GT 4408 F and Man Diesel No. GR 7805 F, to convey the defendant's bulk petroleum products from the Tema Oil Refinery for redelivery to Sonitra at Yawkwei near Konongo and all deductions made from the said freight earnings by the defendant to pay the cost of six consignments or the products which were loaded by the defendant into the Mercedes Benz truck No. GT 4408 F between 1^st October 2003, and 20^th February 2004 but which were diverted and not so delivered to Sonitra.

“(ii) Refund of the deductions in excess of the value of one of the six consignments loaded into the said truck on 30^th January 2004 per delivery note No. 70188844 and invoice No. 70127021 for which the plaintiff's authorised driver Emmanuel Lawarter signed the delivery note.

“(iii) Interest on the said excess deductions at the prevailing bank rate from the date of the deductions up to the date of judgment.

The Plaintiff’s case as placed before the trial court was that though his vehicles were placed under Benko Ltd, he did not cease to be the owner thereof. Plaintiff also claimed that it was the practice of their business arrangement that the driver of the truck who is to deliver the load must be given a delivery note and which he must sign. Of all the six consignments, it was only the load diverted on the 30^th of January 2004 that the Plaintiff accepts responsibility for because it was only that load his driver signed the delivery note. For the plaintiff, it is the essence of a bailment that goods are delivered by the bailor to the bailee so that in the case of carriage of goods, the goods must be delivered to the carrier. Since his authorized driver did not sign the delivery note, the loads were not delivered to him and therefore he is not liable to pay for the five consignments that the driver did not sign for.

It was also the plaintiff’s case that under the agreement he had to submit to the defendant a qualified driver who would be trained by the defendant. The driver is assigned a specific vehicle and apart from this driver, no other person is authorised to drive the vehicle. According to the plaintiff it was the duty of the defendant to check the identity of the person authorized to drive that vehicle whenever loaded with products and in this case, the defendant had to ensure that only Emmanuel Lawerter was allowed to bring the vehicle to the depot to be loaded and drive it away from the depot. If the defendant failed to detect the person who impersonated Lawerter as the driver of that vehicle and allowed that person to load the truck with the five consignments, drive it away and divert the products then it failed to discharge its duty with due care and attention. The defendant therefore breached the duty of care under the haulage contract and any loss caused should be placed at the door of the defendant and not the plaintiff. It follows that the plaintiff cannot be surcharged, consequently the deductions were wrongful.

The defendant on its part denied having any contract with the Plaintiff. The defendant argued that it had a contract with Benko Ltd. only because the FRS ended their relationship with the plaintiff. It was Benko Ltd. that warranted that they owned the trucks and gave approval for the deductions.

The learned trial Judge found as a fact that the defendant knew that the trucks of the plaintiff operated under Benko Ltd. after the FRS for business convenience of the defendant and exigencies of the haulage business as determined by the defendant. The evidence, however, did not disclose any contract between the plaintiff and the defendant, indeed there was none after the FRS; the only contract as from January 1999 was between the defendant and Benko Ltd.

Again, the trial court held the view that "the vehicle with which the products were diverted was at all material times under the control of the plaintiff's driver. The plaintiff's driver held the keys to the vehicle. The truck could be driven by engaging the keys which the plaintiff's driver kept exclusively. In all probabilities, the plaintiff's driver who had custody of the vehicle's keys was the one who drove the vehicle with the consignments in issue and should be held responsible for the diversion"

The learned trial Judge held that the deduction of ₵50 million per month agreed to by Benko Ltd. was in order, therefore the plaintiff was not entitled to his reliefs. Consequently in its judgment dated the 29^th day of June, 2009 the trial court dismissed the plaintiff's action.

The plaintiff was not satisfied with the judgment of the High Court, so he appealed against it to the Court of Appeal on these grounds:

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

(i) The judgment is wrong because it was based on irrelevant matters and not on matters relevant to the case before him.”

The Plaintiff's argument before the Court of Appeal was that the case is one that falls within the law of carriage of goods which is a branch of the law of bailment. For Plaintiff to be liable, the products must be bailed with him through his driver. According to Counsel for Plaintiff, bailment of the products would arise when they were put onto the vehicle and its owner becomes a bailee of the products if they were delivered to a person he had authorised to drive the vehicle on each occasion by signing the delivery note. Counsel's contention therefore is that since the Plaintiff's authorised driver did not sign for five of the six consignments the Plaintiff is not liable because he did not become the bailee of the products.

Counsel also contended that the learned trial High Court Judge in determining the issue took into account irrelevant matters which, inter alia, were questions raised by the learned trial Judge regarding the person who kept the keys to, and exercised control over, the Plaintiff's vehicle.

Defendants on their part quoted from Halsbury's Laws of England, 4^th Edition, Vol. 2 paragraph 1801 at page 830 on the definition of bailment and added that the learned trial Judge was satisfied that all the elements of bailment were present. Counsel for defendant contended that: "it is the requirement of the contract that the driver should acknowledge receipt by signing the delivery note that constitutes bailment. Admittedly, if the driver had signed the delivery note that would have been clear evidence of the delivery and possession. His failure to sign the delivery note cannot negate bailment especially where, in the circumstances of this case, there is other material before the court in the form of admission by the plaintiff in his pleadings that the defendant's products were loaded into his vehicle for delivery at Yawkwei which clearly shows delivery and possession."

It was the case of the defendant that the appeal should be dismissed for the reason that the Plaintiff was a bailee of the products and submitted that the plaintiff was responsible for making good the loss incurred by the defendant.

The Court of Appeal in its judgment pointed out the dichotomy between "issuance of delivery notes" and "signing of the delivery notes". The Court, per Aduama Osei JA, stated that: "to say therefore that a delivery note was not signed is not the same as saying that the delivery note was not issued. Since the Plaintiff does not plead that in the present case the delivery notes were not issued the inference of what I draw from what has been pleaded is that the usual practice prevailed and the delivery notes were issued but were not signed by the Plaintiff's driver."

The Court of Appeal also held, again per Aduama Osei JA, that "if the Plaintiff's vehicle has been loaded and his driver has been issued with a delivery note, then there has been delivery in fact. The failure of the driver to sign the delivery notes does not negate what has in fact taken place." For his part, Ofoe JA took the position that under the express terms of the contract between the parties herein-exhibit A-as well as the various contracts between the defendant and Benko Ltd, delivery took place when the defendant loaded the truck with products, and so he concluded it was not the driver’s signature that constituted delivery.

On the issue of the learned trial High Court Judge taking into account irrelevant matters, the Court of Appeal was of the view that the trial Judge did not ponder over irrelevancies. The Court of Appeal concluded that the Plaintiff was liable for the diversion and the trial Court was justified in denying him the reliefs he claimed in this suit. The Court therefore dismissed the appeal and affirmed the trial Court's judgment.

It is from the judgment of the Court of Appeal delivered on the 19^th day of January, 2012 that the plaintiff has appealed to this Court. The grounds of appeal filed on 26^th January, 2012 are:-

(i) The Court of Appeal misdirected itself in failing to appreciate that the delivery note issued in respect of every consignment put on board the plaintiff's vehicle when signed by the plaintiff's agent, his authorised driver, performs the same receipt function which a bill of lading performs, when signed by the master of a ship in respect of goods put on board the ship.

(ii) The Court of Appeal misdirected itself in law by thinking that whenever the Defendant puts a consignment on board the plaintiff's vehicle it ipso facto rendered the plaintiff liable to pay for the consignment if undelivered to the consignee.

(iii) The Court of Appeal erred in failing to appreciate the legal significance of the course of business which required that, apart from every other security check in respect of every consignment put on board the plaintiff's vehicle the accompanying delivery note must be signed by the plaintiff's authorised driver to signify that the driver had received the consignment on board.

(iv) The Court of Appeal erred in law in not appreciating that owing to the course of business that existed between the two it was the duty of the Defendant to ensure that a delivery note is issued in respect of each consignment it put on board the plaintiff's vehicle was signed by the plaintiff's authorized driver as his agent and that it was negligent on the part of the Defendant to allow the vehicle to leave its yard with the five consignments on board when the authorized driver was not the one who signed the delivery notes accompanying them before the vehicle left the yard.

(v) The Court of Appeal erred in failing to appreciate that the plaintiff's authorised driver would be acting outside the scope of his authority or employment with the plaintiff any time he drove the plaintiff's vehicle with consignment on board out of the Defendant's yard without the delivery note.

Additional ground of appeal filed by the plaintiff was that:

Having regard to the peculiar defence the defendant put up in its statement of defence to the plaintiff's actions, the trial court and the Court of Appeal were wrong in dismissing the action after the trial court had made findings of fact that the Mercedes Benz and Man Diesel trucks belonged to the plaintiff which he used in carrying the petroleum products under an agreement with the defendant.

CONSIDERATION OF GROUNDS OF APPEAL

The crux of plaintiff’s argument to the Supreme Court is that his authorized driver did not sign the delivery notes so he is not liable. The defendant maintained that they had no contract with the plaintiff. Indeed the present arguments are not materially different from those before the High Court and the Court of Appeal. In view of this we will treat all the grounds of appeal together, but additionally grounds (iv), (v) and the additional ground will each be addressed in some detail.

This appeal is against the concurrent findings of fact and conclusion of the Court of Appeal and the High Court. The Supreme Court has, in a number of cases, given the criteria for allowing an appeal against the concurrent findings of fact and conclusions of the lower courts that had dealt with the case. The Supreme Court has held that as a second appellate court it will not ordinarily interfere with findings of fact made by a trial court and confirmed on appeal by an appellate court; it will intervene only in some circumstances and situations, the categories of which are not closed. So the intervention in each case will depend on its peculiar facts. See the following cases: (1) Fynn v. Fynn & Osei [2013-2014] 1 SCGLR 726; (2) Mensah v. Mensah [2012] 1 SCGLR 391; (3) Musah v. Musah [2011] 2 SCGLR 459; (4.) Fabrina Ltd v. Shell Ghana Ltd [2011] 1 SCGLR 429; (5) Gregory v. Tandoh IV & Hanson [2010] SCGLR 971; (6) Obeng v. Assemblies of God Church, Ghana [2010] SCGLR 300; (7) Ntiri v.Essien [2001-2002] SCGLR 459; (8) Achoro v. Akanfela [1996-97] SCGLR 209.

According to the Black’s Law Dictionary, 9^th edition, edited by Bryan A. Garner, at page 162 bailment has been defined as “a delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose under an express or implied-in-fact contract”

In law, in order for bailment to exist, the bailee must have both the intent to possess the property, and actual possession of the property. The bailor intends that the property will be returned to him at the end of a specified period of time, or after the purpose for which the property was given has been accomplished. It does not necessarily arise from an express contract.

In this case the bailment arose any time the defendant loaded products on the plaintiff’s truck and it ended upon the products being offloaded at Yawkwei to Sonitra as the consignee appointed by the defendant. And as long as the products remained undelivered to Sonitra, the carrier was responsible for it.

It was not disputed that all the six consignments were in fact put on board the Mercedes Benz truck number GT 4408 F. The plaintiff asserted this fact in paragraph 5 of his statement of claim wherein he pleaded that:

"On the following dates, that is 1^st October 2003, 6^th January 2004, 19^th January 2004, 30^th January 2004, 12^th February 2004 and 20^th February 2004 the Mercedes Benz truck was loaded at the Tema Oil Refinery by the defendant with petroleum products to be delivered at Yawkwei to Sonitra but the products were diverted and never delivered there or at any other place to Sonitra."

In his evidence-in-chief the plaintiff testified on this matter as follows:

”I rely on paragraph 5 of the statement of claim. The products collected as stated in the paragraph were not in fact delivered. Invoices and waybills were prepared on each of the dates referred to in the paragraph. On all those dates, Emmanuel Lawartey was my driver.”

Despite these clear admissions, the Plaintiff’s contention is that, as long as his driver, Emmanuel Lawarter did not sign the delivery notes, the consignments were not delivered. He argued that it was a practice of the parties that the driver should sign the delivery notes.

At this point it is necessary to consider the nature of the agreement between the defendant and Benko Ltd. which enabled the plaintiff’s trucks to be used to cart petroleum products for the defendant. Three of such agreements were put in evidence but even a cursory look at them would show that the contents were the same except the dates and vehicle details.

It must be noted here that in all the series of Agreements entered into between the defendant and Benko Ltd it is stated that after every vehicle was loaded, there shall be given to the driver a delivery note, without specifically providing for signature. For instance it is provided in article 2(b) of exhibit 4 that:

"The Company shall provide the Contractor or the driver of the vehicle with delivery tickets, invoices or other necessary documents for the delivery of products and Contractor shall deliver products only in accordance with such delivery tickets, invoices or other documents. Contactor shall be responsible for the safekeeping and proper handling of all such documents."

The plaintiff does not allege that his driver was not given the said delivery notes. In fact the plaintiff himself swore to an affidavit in support of a summons and attached all the six delivery notes; these were marked as Exhibits OB.1 - OB.6. The following extracts from the cross examination of the plaintiff by counsel for the defendant is relevant:

"Q On 17/12/04 you swore to an affidavit in support of a summons for an order for accounts.

A. Yes

Q. Kindly look at this document. Is that your application and affidavit attached?

A. Yes

Q You noticed that there are several exhibits attached to that affidavit, is that correct?

A Yes

Q I believe the Exhibits number OB.1 - OB.6. What are Exhibits OB.1 to OB.6?

A They are delivery notes of products.

Q When is OB.1 dated?

A 1/10/03

Q Does OB.1 name the Carrier? Does it have the name of the Carrier on it?

A Yes

Q Who is the carrier?

A Benco Ltd.

Q Does it identify the vehicle?

A Yes

Q What is the number of the vehicle?

A GT 4408 F

Q I believe that is the Mercedes Benz Truck; right

A Yes

Q Does it identify the driver of the vehicle?

A Yes

Q What is the name of that driver?

A Emmanuel Larwatey

Q And as you said that delivery note is from Shell.

A Yes

Q Who was the product to be delivered to?

A Sonitra

Q. Look at OB. 2 and tell us when it is dated.

A 6/1/04

NB. Counsel applies to tender the summons and affidavits in evidence through plaintiff. No objection by counsel for plaintiff. Admitted and marked Exhibits 1, 1(a) - 1(f)

Q Exhibits 1(a) - 1(f) relate to GT 4408; is that (sic).

A Yes

Q In all of them the carrier is Benco Ltd. Is that correct?

A. Yes

Q In all of them the driver is Emmanuel Larwartey

A Yes, Emmanuel Larwetey

Q And in all of them the consignee is Sonitra is that correct?

A Yes"

It is therefore clear from the exhibits that OB.1 and 1(A) are the delivery notes issued on 1^st October 2003, OB.2 and 1(B) are the delivery notes issued on 6^th January 2004, OB.3 and 1(C) are delivery notes issued on 19^th January 2004, OB.4 and 1(D) are delivery notes issued on 30^th January 2004, OB.5 and 1(E) are delivery notes issued on 12^th February 2004 and OB.6 and 1(F) are delivery notes issued on 20^th February 2004.

It is noted that Emmanuel Lawartey's name appears on each of the six delivery notes. It is therefore undisputed that Lawartey took possession of all the six consignments. At any rate there is no other evidence that apart from Emmanuel Lawertey any other driver took the truck there to be loaded. In effect the presumption that Emmanuel Lawertey was the driver at all material times has not been rebutted; indeed the plaintiff admitted it in his own testimony as quoted above.

Consequently, the issue that remains to be resolved is whether the absence of the driver's signature on five of the six delivery notes in respect of the consignments absolves the carrier Benko Ltd and by extension the plaintiff from responsibility for the diverted cargo.

As earlier pointed out, the agreement does not specifically state that the driver should sign the delivery note as issued by the defendant. But the plaintiff pleaded that the practice that has been accepted by the parties is that the driver should sign. The defendant did not specifically deny or admit this averment. But there was a general traverse which was sufficient to put the matter in issue.

It is clear from all the delivery notes put in evidence, namely exhibits OB1 through OB6 that there was a portion for the carrier’s signature. At the hearing the defendant did not deny that it was a practice that the carrier or his authorized agent who is his driver should sign each delivery note. As stated by the learned author Goode in his book titled Commercial Law, 4^th edition at page 97: “Where parties have consistently contracted on certain terms, so that it may reasonably be assumed that the transaction under consideration was intended to be governed by the same terms, the court will usually be willing to find that the terms apply, even if not expressly adopted in relation to the transaction.” See these cases: McCutcheon v. David Macbrayne Ltd. (1964) 1 All ER 430; Henry Kendall & Sons v. William Lillico & Sons Ltd (1969) 2 AC 31; Vacwell Engineering Co. Ltd. v. B.D.H. Chemicals Ltd. (1971) 1 QB 88; Circle Freight International v. Mideast Gulf Exports (1988) 2 Lloyd’s Rep. 427.

From the foregoing, it is correct that it was the practice of the parties in the carriage business between the defendant and Benko Ltd that the carrier should sign the delivery note, but it was never intended to replace article 10 of the contract. What then was the effect on the bailment if the carrier or his agent failed to sign the delivery note? This is the meat of this matter which has inexplicably lasted several years in the court system.

Let us examine the specific terms of the contract to find out when delivery to the carrier is deemed to have taken place. The plaintiff contends that delivery takes place when and only when his agent, being his driver, has signed the delivery note. The defendant contends that delivery takes place when it has loaded the products on board the truck and issued a delivery note to the driver. In this regard we shall make reference to the earlier agreement between the parties herein, exhibit A, as well as the subsequent agreements between the defendant and Benko Ltd. in order to discover what the parties actually intended should constitute delivery. The relevant provisions of these contracts are the following:

Article 4 of exhibit A is headed ‘DELIVERY’ and it states in clause 4.1 that: Delivery of products shall be deemed to take place upon loading into the Contractor’s vehicle. Risk and property in the products shall pass to the Contractor and remain with the Contractor until re-delivery of the product to the designated consignee. Re-delivery shall be deemed to take place upon the Contractor obtaining a signed Consignee sign and Return invoice confirming actual delivery of the products therein stipulated.

Article 10(a) of exhibits 2, 3 and 4 provides that:

The Contractor shall be responsible for the Products once delivered into the vehicle of the Contractor and shall be liable to the Company for any loss, damage or destruction of products, whether due to leakage, fire, theft, damage, contamination, collision with any object or from any cause whatsoever excluding the sole negligence of the Company…………..

From the provisions of the contracts just quoted above, it is clear the parties understood and intended that delivery should take place the moment the supplier loaded the carrier’s truck with their products. Whatever happened thereafter was the responsibility of the carrier, unless the fault could be attributed to only supplier, the defendant herein.

But the parties did not agree nor was it within their contemplation that even if the driver took the consignment but failed to sign the delivery note the carrier would not be responsible. In effect it is not their agreement or understanding that the driver’s signature puts finality to the whole agreement. The driver remains the plaintiff’s driver and agent, a fact the plaintiff admits. Their prime responsibility was to cart petroleum products from Tema to Yawkwei and deliver same to Sonitra. The defendant’s core responsibility is to pay for the service when rendered. These are the key terms of the contract. Failure to sign the delivery note becomes a factor if and only if either party is disputing that a particular transaction has taken place; on the part of the carrier, that his truck was never loaded with any particular consignment. But that is not the situation on hand where the plaintiff admits his vehicle was loaded with all six consignments on the six occasions. He does not attribute the diversion to the defendant, and indeed he does not say that the defendant was the cause of the diversion or knew about it or facilitated it. His driver even diverted the one that he signed for. And once the products were taken by the plaintiff’s approved driver and on the vehicle designated for that purpose, Benko Ltd. and by extension the plaintiff was fully answerable for the diversion. The plaintiff’s interpretation of the role to be played by the signature has elevated the practice to the status of ‘sine qua non’ of the contract which clearly was not intended by the parties. The practice cannot and does not supersede the clear intent of the parties as expressed in article 10 of the contract quoted above. Indeed actual loading of goods to the driver is paramount to the contract and constitutes delivery within the meaning of the contract and not the signature, and that makes more business sense.

On the facts before the court, the plaintiff bore the burden to lead evidence from which it could be concluded that the diversion of the product after it had been loaded on his truck was attributable to the defendant. It is not sufficient to say the plaintiff was not responsible because the practice, albeit an implied term of the contract, was violated when that violation could not be attributed to the defendant. There was no evidence before the court that any other person than the carrier’s driver took the vehicle there to be loaded. There is no evidence the defendant knew that somebody other than the plaintiff’s driver had taken the vehicle there to be loaded. That explains why all the delivery notes bore the same vehicle number and the same driver’s name. There has been no explanation as to why five of the six delivery notes bore different signatures from that of Lawartey; everything is being left to conjecture. The only person, Lawartey, who could have assisted the court unravel the mystery was not called to testify and no acceptable explanation for his absence was proffered. The plaintiff was obliged to explain why his driver who he admits was in charge of the vehicle at all material times did not sign the delivery notes. If somebody else signed without his knowledge and authorisation, why did he not make a complaint to anybody after the first diversion? The fact that this continued on five occasions without any complaint leads to the irresistible conclusion that the plaintiff’s driver was involved in the deals. At the end of the day, the court is unable to determine with certainty, on a balance of probabilities, that the defendant was culpable. The plaintiff who assumed the burden of producing evidence and of persuasion would be adjudged to have failed in the light of sections 11(1) and 14 of the Evidence Act, 1975 (N.R.C.D. 323).

EFFECT OF FAILURE TO SIGN DOCUMENT

The issue of whether or not failure to sign a document will invalidate the document or affect its validity or effectiveness has received judicial pronouncements in a number of constitutional cases. Even though the instant case is one based on contract, the principles enunciated in the constitutional cases can be applied.

One such case is In Re Presidential Election Petition; Akuffo-Addo & 2 Others (No. 4) v. Mahama and 2 Others (No. 4) (2013) SCGLR (Special Edition) 73, where it was noted that even though the Constitution 1992 used the words “shall sign” in article 49, the Supreme Court per the majority decision held that failure to sign the pink sheets did not invalidate the declared results. The presiding officers who failed to sign did not do so because of any wrong doing; for example being compelled not to sign or because of any fraud or irregularity, inter alia. As a matter of fact no evidence was led to show that failure to sign was as a result of any wrong or influence from someone.

It is noted that failure to sign the delivery notes could be as a result of an error. In re N (A Minor) (1972) I WLR 596, where one of the three justices failed to sign the reasons for the decision, Sir George Baker P said at page 597:

In the present case the justice’s reasons are signed by two justices. We have been told by Mr. Eady, who was present before the justices, that in fact three justices sat and that it appears from a letter from the justices’ clerk that the justice who has not signed was the chairman of the justices. The inference which I would draw from that is that the chairman dissented from the view of the other two justices. It is not satisfactory that this court should be left to draw that inference, which may be wrong. It may be that the failure to sign is simply an administrative error, or because the chairman has been ill or abroad, or something of that kind…”

In effect the court was left conjecturing what might have accounted for the failure to sign the document. In the instant case, the court is left wondering why the signature on the delivery notes is not that of Lawartey even though he was in charge of the truck at all times. Was he the one who authorized somebody else to sign because he was busy or what? Or did he intentionally place a false signature on them in order to conceal the deal? There are numerous unanswered questions because the key witness did not testify on the material fact which was capable of proof. thus apart from sections 11 and 14 of the Evidence Act, the principle in Majolagbe v. Larbi (1959) G.L.R. 190 is applicable to deny the plaintiff’s claim for lack of evidence. Thus there must be certainty about the reason for the lack of signature, for the absence of a signature should not be fatal to the substance of an agreement if it has in fact been executed by either party in accord with the terms of the contract.

In Plymouth Corporation v. Hurrel (1968)1 QB 455 CA a statute required the signature of the town clerk in order to render a notice issued under the legislation the act of the local authority. Salmon L. J. commenting on the signature of a town clerk on a notice to a person in control of a house under the authority of the local council said this at pages 465-466: “Clearly the only purpose of having the town clerk’s signature upon the notice is to provide some evidence that it has been duly authorised by the local authority. The signature in itself has no magic about it. It would be absurd for the legislature to provide for proof that the notice had been given or issued by the authority of the local authority and yet leave a signature upon it still to be strictly proved. ”

From the statement of Salmon L.J, the signature is just to provide some evidence that the notice was issued by the appropriate officer, but the validity of the notice did not depend on the clerk’s signature, if indeed a notice was issued. Applying this principle to the instant case, the driver’s signature provides some form of evidence that delivery to him has been made. Hence, in instances where he does not sign but other evidence showed that delivery was in fact made to him in terms of the specific provisions of the contract in force, it would be unjust to hold otherwise.

The reason for failure to sign a document covering a transaction must clearly exist and the defendant must be found to have induced it or at least contributed to it for his benefit, in order to establish liability against him. It should not be left to conjecture or guess work as to what might have prompted the failure to sign; for it is not in every case of lack of signature that renders an agreement invalid in the absence of clear agreement to that effect. And even in those cases where there has been a failure to sign in clear breach of an agreement, equity would not allow the plaintiff to take the benefit of the service rendered under the terms of the contract without paying for it, albeit on a quantum meruit basis. It would only entitle a plaintiff to resile from the rest of the agreement. For the principle of unjust enrichment would not allow a court of equity to allow the plaintiff to get away with the gains made by his agent to the detriment of the defendant.

DUTY OF CARE

In ground (iv) of the appeal, the plaintiff is saying that the defendant had the duty to ensure that his driver signed the delivery notes. And in his earlier submissions, he said defendant should have ensured that no other driver than plaintiff’s driver brought the truck to the yard to be loaded, sign the delivery notes, and drive the truck away. In effect he is raising negligence against the defendant. This, with respect to the plaintiff, is not supported by the agreements and evidence on record.

The plaintiff did not plead negligence against the defendant; he was required to plead it specifically, and indicate the nature of the duty of care in what ways it was breached. It was held in the case of Gautret v. Egerton, Jones v. Egerton (1867) L.R. 2 C.P. 371; 15 W.R. 638, that negligence should be pleaded and the pleading should contain the facts upon which the supposed duty is founded and the duty to the plaintiff with the breach of which defendant is charged. It is not enough to show that defendant has been guilty of negligence without showing in what respect he was negligent and how he became bound to use care to prevent the loss.

Order 11 Rule 8 of the High Court (Civil Procedure) Rules, 2004, C.I. 47 requires inter alia, that a party should plead specifically any matter, both factual and legal, which he alleges makes the claim or defence of the opposite party not maintainable. Negligence is one such matter that ought to be raised on the pleadings to enable the other party the opportunity to react to it and not to be taken by surprise.

But the plaintiff did not raise this in his pleadings, not even in his reply after the defendant had denied the existence of any agreement between them. But from existing authorities and statute, the court could consider the question of duty of care arising from negligence if evidence to that effect was adduced at the hearing without objection. Reference is thus made to the provisions of sections 5 and 6 of the Evidence Act, (1975) N.R.C.D. 323, which enable a court to consider evidence adduced at the trial without objection. Moreover, in cases where fraud was not pleaded but the record disclosed some evidence was led at the hearing the court accepted and relied on it to establish fraud. See these cases: Edward Nasser & Co. Ltd. v. McVroom & Another (1996-97) SCGLR 468; Amuzu v. Oklikah (1998-99) SCGLR 141; Apeah and Another v. Asamoah (2003-2004) 1 SCGLR 226. The principle deducible from these cases is applicable to an issue founded on negligence, that even if it is not pleaded but evidence is admitted on the record without objection and the evidence is not rendered inadmissible on legal grounds, the court cannot ignore it, unless it will result in a miscarriage of justice.

The position is not different from what has obtained in England. For instance in the case of S.S. Pleiades & Page v.S.S. Jane & Lesser (1891) A.C. 259; 65 L.T. 169; 60 L.J.P.C. 59, it was held that where negligence was not raised on the pleadings and no evidence of it was led by either party at the hearing, it could not be raised for the first time at the final appellate court.

Thus for ground (iv) to hold, there must be some evidence on the record even in the absence of a plea. Upon an examination of the record, one does not find any direct evidence alluding to the alleged duty of care that is the subject of this ground of appeal. It appears it was an inference drawn from the evidence that since the vehicle was driven to the defendant’s yard to be loaded it was the defendant’s duty to ensure that the driver would sign the delivery note.

A court is entitled to draw inferences from accepted evidence but in a civil case it must reach the required standard of proof on a balance of probabilities. We would examine it as there appears to be an inference of negligence deducible form the plaintiff’s total presentation. So it is in that light that the question of duty of care founded in negligence is being examined. In the case of Allassan Kotokoli v. Moro Hausa (1967) GLR 298 Edusei J. spelt out the three elements of negligence namely: duty, breach of that duty and damage resulting from the breach. These elements impose an obligation on the plaintiff to prove that the defendant owes him a duty; that the defendant has breached the duty and thirdly, the breach must have occasioned damage to the plaintiff.

Looking at the practice which the plaintiff complains of, it is the driver who is supposed to sign the delivery note. The Plaintiff cannot therefore put the duty on the defendant when the latter had delivered the note to the driver. Nonetheless, it could be explained that it was in the interest of the defendant as well to ensure that the plaintiff’s driver did sign the delivery note if only to avoid controversy and litigation such as has engulfed the parties herein. But for its part the defendant is relieved from any such duty in the face of undisputed evidence that it loaded the truck with the products on all the dates in question and issued the delivery notes to the driver. In these circumstances, no negligence is attributable to the defendant for the failure by the plaintiff’s driver to sign the delivery notes.

AGENCY

Turning next to ground (v) of the appeal, supra, it borders on agency. Under Agency relationship, the Principal is liable for the actions of his agent within the scope of the authority given to the Agent. What has been in issue is the signature of the driver. The evidence on record shows that Plaintiff's driver was given the delivery notes. If the driver leaves defendant's yard without the delivery notes, it is the negligence of the driver. The driver is the Agent of the plaintiff. The Plaintiff being the principal is liable for the actions of his agent in that agency relationship. The failure to sign does not constitute a major departure from the task given to the driver. The driver’s key duty was to drive the truck to the loading point and ensure that it was loaded and he was issued with a delivery note and carry the consignment to Sonitra at Yawkwei. Once the truck leaves the loading point, the defendant has nothing to do with the truck again until it has discharged the product at its destination. The carrier’s responsibility for the driver and the vehicle remain throughout and does not shift to the defendant unless there is evidence to the contrary that the defendant did not put the particular consignment on board the truck. Then the defendant would have to satisfy the court that it did in fact load the truck. The plaintiff has accepted that the defendant had discharged its prime duty of giving the plaintiff’s agent the consignments against delivery notes. The lack of signature, it is stressed again, does not derogate from the fact that the driver took the consignments on the Mercedes Benz truck on each of the six occasions. It must also be pointed out that even if no delivery notes were issued, the fact that the plaintiff had admitted that his truck was loaded with the products and that his driver was at all material times in charge of the truck, it would be sufficient proof of delivery to his driver. And in the absence of any evidence of any collusive fraud against the defendant, the plaintiff would be responsible for his agent’s actions. The carrier should therefore be liable for the diversion of the consignments.

NATURE OF CONTRACT

Finally reference is being made to the Plaintiff’s additional ground of appeal.

This ground is being discussed in detail because the plaintiff is still saying that he has a separate agreement with the defendant despite the FRS. This claim is seriously contested by the defendant who has maintained throughout that it did not have any contractual relationship with the plaintiff and that they had agreement with Benko Ltd, per paragraphs 1 to 4 of their statement of defence and also at the hearing. Their case had consistently been that after the FRS, it had no contract with the plaintiff so in effect the plaintiff could not claim under the contract between them (defendant) and Benko Ltd.

In his reply, the plaintiff admitted being aware of the FRS but said it was merely an administrative action by the defendant. But he went on to admit in paragraph 8 of the reply that his vehicles went under Benko Ltd. whilst he still retained his ownership of the vehicles. However, the plaintiff maintained in his reply that notwithstanding this administrative arrangement, he continued to operate with the defendant under the terms of the contract between them and that is exhibit A. He emphatically pleaded in paragraph 13 of his reply that: ’’…….there is a contract of carriage still in existence between him and the defendant under which he has been surcharged.’’

The parties set this issue down for determination:

(6) Whether at the material time the plaintiff had a contract with the defendant to carry its petroleum products.

As earlier mentioned, the defendant has maintained that it did not have any contract with the plaintiff after the FRS in 1998. So at the trial court the defence counsel urged the court “to dismiss the plaintiff’s action on the ground that there is no contract between the plaintiff and the defendants whereby the defendants would be an accounting party to the plaintiff.”

And before this court defendant’s counsel submitted that “as far as the defendant was concerned, the plaintiff was a stranger to the haulage agreement and the deductions it made in respect of the diversions were made against the account of Benko Limited. It was therefore not liable to the plaintiff for his claim.”

It is necessary to determine whether exhibit A was in force as from January 1999. One of the key elements in the haulage contract was that the carrier was to make available his vehicles which would be incorporated as a term of the contract. Indeed the list of vehicles was always annexed to each contract. Any subsequent variation in the availability of a vehicle would have to be notified to the supplier and agreed to by him. It was also a key element that the carrier would be paid directly, (according to PW1 into their bank account) for each service rendered to the supplier. Paragraph 5 of exhibit A stated in clear terms that payment shall be made to the contractor, in other words the carrier. Therefore the plaintiff was being paid directly by the defendant pursuant to exhibit A. But the undisputed evidence on record shows that since the plaintiff’s vehicles went under the aegis of Benko Ltd. he did not receive any payment from the defendant again, except through Benko Ltd.

From the foregoing, it was very obvious that the plaintiff was no longer dealing directly with the defendant because exhibit A was no longer in force. It had been replaced with the various agreements between the defendant and Benko Ltd following the FRS. These agreements also contained similar clauses that payment would be made to the contractor or carrier in respect of the vehicles which had been incorporated into the contracts to cart the products. The plaintiff’s own witness PW1 stated that they were the ones who dealt with the defendant and they were the ones who paid for any service rendered by the plaintiff’s vehicles which they had placed in their own pool of vehicles under the agreements.

As earlier pointed out, another key element in the contract is the insertion of the particular vehicles to be used in executing the contract. In exhibits 2, 3 and 4 either or both vehicles belonging to the plaintiff were listed in the schedule as part of the vehicles being operated by Benko Ltd. and plaintiff was aware of this arrangement and agreed to it and accepted the benefits under them through Benko Ltd.

It is thus wrong for the plaintiff to maintain that he had a separate agreement with the defendant after the FRS. The defendant was therefore right in their position that they have nothing to do with the plaintiff as there is no contractual relationship between them. That explains why the surcharge was made against the account of Benko Ltd.; and it was the latter which passed it on to the plaintiff because it was his truck which was involved.

It is also significant to note that the agreements between the defendant and Benko Ltd. were not made to benefit the plaintiff as a third party so section 5(1) of the Contracts Act, 1960, (Act 25) cannot even be applied in his favour. The said section 5(1) provides that:

Any provision in a contract made after the commencement of this Act which purports to confer a benefit on a person who is not a party to the contract, whether as a designated person or as a member of a class of persons, may, subject to the provisions of this Part, be enforced or relied upon by that person as though he were a party to the contract.

It is therefore understandable why the plaintiff was still relying on exhibit A, for without that he would have no cause of action against the defendant. Counsel for the plaintiff recognized the fact that the defendant’s contention had been that the plaintiff had no cause of action for stated reasons. It is, however, inexplicable why the plaintiff resorted to the non-existent contract, exhibit A, even when he had admitted in cross-examination that from November 1998 the defendant did not enter into any haulage agreement with him. He was also not party to the agreement between defendant and Benko Ltd. He also admitted under cross examination that between the period of rationalization and 2004 his Mercedes truck was carting products for the defendant but not under his name. Indeed Pw1 admitted under cross-examination that all invoices for payment in respect of the plaintiff’s trucks were issued in the name of Benko Ltd. and payments for them were made directly to Benko. The only logical inference is that for that period his truck was working under Benko Ltd. under the terms of the agreements between Benko Ltd. and the defendant.

The plaintiff could not sue to enforce the agreements between the defendant and Benko Ltd since they were not made for his benefit as a third party. And there was also no agreement between him and the defendant; consequently, there was no basis for the claim. The defendant’s contention was therefore justified.

CONCLUSION

From the foregoing, it is apparent that the Plaintiff’s truck was loaded with all six consignments though plaintiff’s driver did not sign five out of the six delivery notes. The plaintiff failed to lead evidence to establish any fault on the part of the defendant, and no evidence was forthcoming that any other person than his driver took charge of the truck at all material times. The plaintiff also failed to rebut the defendant’s claim that there was no contract between them. The appeal therefore fails and the decision of the Court of Appeal is hereby affirmed.

(SGD).......................

A. A. BENIN

(JUSTICE OF THE SUPREME COURT)

(SGD).......................

V. J M. DOTSE

(JUSTICE OF THE SUPREME COURT)

(SGD).......................

ANIN YEBOAH

(JUSTICE OF THE SUPREME COURT)

(SGD).......................

N. S. GBADEGBE

(JUSTICE OF THE SUPREME COURT)

(SGD).......................

G. PWAMANG

(JUSTICE OF THE SUPREME COURT)

COUNSEL

JAMES AHENKORAH FOR THE PLAINTIFF/APPELLANT/ APPELLANT

VICTORIA BARTH (MRS) FOR THE DEFENDANT /RESPONDENT/ RESPONDENT

Law report citations

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2017

CIVIL APPEAL NO. J4/34/2016

6^TH APRIL, 2017

OPPONG BANAHENE - PLAINTIFF/APPELLANT/APPELLANT

VRS

SHELL GHANA LIMITED - DEFENDANT/RESPONDENT/ RESPONDENT

JUDGMENT

BENIN, JSC :-

THE FACTS

“(iii) Interest on the said excess deductions at the prevailing bank rate from the date of the deductions up to the date of judgment.

The plaintiff was not satisfied with the judgment of the High Court, so he appealed against it to the Court of Appeal on these grounds:

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

(i) The judgment is wrong because it was based on irrelevant matters and not on matters relevant to the case before him.”

It is from the judgment of the Court of Appeal delivered on the 19^th day of January, 2012 that the plaintiff has appealed to this Court. The grounds of appeal filed on 26^th January, 2012 are:-

Additional ground of appeal filed by the plaintiff was that:

CONSIDERATION OF GROUNDS OF APPEAL

In his evidence-in-chief the plaintiff testified on this matter as follows:

"Q On 17/12/04 you swore to an affidavit in support of a summons for an order for accounts.

A. Yes

Q. Kindly look at this document. Is that your application and affidavit attached?

A. Yes

Q You noticed that there are several exhibits attached to that affidavit, is that correct?

A Yes

Q I believe the Exhibits number OB.1 - OB.6. What are Exhibits OB.1 to OB.6?

A They are delivery notes of products.

Q When is OB.1 dated?

A 1/10/03

Q Does OB.1 name the Carrier? Does it have the name of the Carrier on it?

A Yes

Q Who is the carrier?

A Benco Ltd.

Q Does it identify the vehicle?

A Yes

Q What is the number of the vehicle?

A GT 4408 F

Q I believe that is the Mercedes Benz Truck; right

A Yes

Q Does it identify the driver of the vehicle?

A Yes

Q What is the name of that driver?

A Emmanuel Larwatey

Q And as you said that delivery note is from Shell.

A Yes

Q Who was the product to be delivered to?

A Sonitra

Q. Look at OB. 2 and tell us when it is dated.

A 6/1/04

NB. Counsel applies to tender the summons and affidavits in evidence through plaintiff. No objection by counsel for plaintiff. Admitted and marked Exhibits 1, 1(a) - 1(f)

Q Exhibits 1(a) - 1(f) relate to GT 4408; is that (sic).

A Yes

Q In all of them the carrier is Benco Ltd. Is that correct?

A. Yes

Q In all of them the driver is Emmanuel Larwartey

A Yes, Emmanuel Larwetey

Q And in all of them the consignee is Sonitra is that correct?

A Yes"

Article 10(a) of exhibits 2, 3 and 4 provides that:

EFFECT OF FAILURE TO SIGN DOCUMENT

DUTY OF CARE

AGENCY

NATURE OF CONTRACT

Finally reference is being made to the Plaintiff’s additional ground of appeal.

The parties set this issue down for determination:

(6) Whether at the material time the plaintiff had a contract with the defendant to carry its petroleum products.

CONCLUSION

(SGD).......................

A. A. BENIN

(JUSTICE OF THE SUPREME COURT)

(SGD).......................

V. J M. DOTSE

(JUSTICE OF THE SUPREME COURT)

(SGD).......................

ANIN YEBOAH

(JUSTICE OF THE SUPREME COURT)

(SGD).......................

N. S. GBADEGBE

(JUSTICE OF THE SUPREME COURT)

(SGD).......................

G. PWAMANG

(JUSTICE OF THE SUPREME COURT)

COUNSEL

JAMES AHENKORAH FOR THE PLAINTIFF/APPELLANT/ APPELLANT

VICTORIA BARTH (MRS) FOR THE DEFENDANT /RESPONDENT/ RESPONDENT

Republic Vrs High Court Accra and Another (Ruling) (48 of 2015) [2016] GHACA 10 (17 February 2016);

Anonymous — Wed, 23 Jun 2021 10:49:05 +0000

Republic Vrs High Court Accra and Another (Ruling) (48 of 2015) [2016] GHACA 10 (17 February 2016);

Flynote

Cultural life

Anonymous (not verified) Wed, 06/23/2021 - 10:49

Download

2016-ghaca-10.pdf

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT, ACCRA

AD 2016

CIVIL MOTION NO.J5/48/2015

17^TH FEBRUARY 2016

THE REPUBLIC …

VRS

HIGH COURT, ACCRA … RESPONDENT

EX-PARTE THE ADA TRADITIONAL COUNCIL … APPLICANT

NOMO DAKER OSAH … INTERESTED PARTY

R U L I N G

ATUGUBA, JSC:

FACTS

The Applicant moves this court “for an order of certiorari directed at the High Court, Accra to bring forth and to be quashed the Ruling of the Court presided over by Her Ladyship Justice Barbara Ward Acquah (Mrs.), on the ground that the High Court erred in exercising jurisdiction over the Ada Traditional Council, it not being its judicial committee.

The crux of this matter is that the Kabiawetsu clan of Big Ada, allegedly nominated and installed Nomo Jonathan Dzabeku Abodoadzi as the Divisional Chief (Wetsoyi) in succession to the last deceased Wetsoyi of the said clan. The applicant, the Ada Traditional Council was notified of this installation and a date was fixed for the presentation of the new Wetsoyi to it, but the event was postponed. However on the 7^th day of January 2013, the applicant rather had one Haruna Ocansey presented to it as the new Wetsoyi.

Aggrieved, the Interested Party successfully applied and quashed the decision of the Ada Traditional Council by certiorari order of the High Court Accra, presided over by Mrs. Barbara Ward Acquah J, dated the 24^th day of July, 2015.

It is against this order that this present application, aforesaid, has been brought.

The applicant’s contention is that it is not amenable to the supervisory jurisdiction of this court in a smuch as it is rather its judicial committee which is an inferior court and thus amendable to our said jurisdiction.

We curtail this matter on the ground that the aforementioned application to the High Court presided over by Mrs. Barbara Ward Acquah J manifestly related to a cause or matter concerning chieftaincy, as it plainly was based on the question as to who was the rightful Divisional Chief or Wetsoyi nominated and installed by the Kubiawetsu clan. This is plain from s. 76(a) of the Chieftaincy Act, 2008, Act 759. The High Court therefore lacked jurisdiction over the matter.

See In re Wa-Na; Republic v. Fijoli-Na; Ex parte Yakubu and others (1987-88)1 GLR 180 C.A.

For all the foregoing reasons the application is granted. Let the order of the High Court, Accra presided over by Mrs. Barbara Ward Acquah J dated the 24^th day of July 2015 be brought up before this court to be quashed and the same is hereby quashed.

(SGD) W. A. ATUGUBA

JUSTICE OF THE SUPREME COURT

(SGD) S. O. A. ADINYIRA (MRS)

JUSTICE OF THE SUPREME COURT

(SGD) ANIN YEBOAH

JUSTICE OF THE SUPREME COURT

(SGD) A. A. BENIN

JUSTIC E OF THE SUPREME COURT

(SGD) J. B. AKAMBA

JUSTICE OF THE SUPREME COURT

COUNSEL

JOSEPH NICOLAS NKRUMAH ESQ. FOR THE APPLICANT.

J. A. LARKAI INTERESTED PARTY.

Law report citations

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT, ACCRA

AD 2016

CIVIL MOTION NO.J5/48/2015

17^TH FEBRUARY 2016

THE REPUBLIC …

VRS

HIGH COURT, ACCRA … RESPONDENT

EX-PARTE THE ADA TRADITIONAL COUNCIL … APPLICANT

NOMO DAKER OSAH … INTERESTED PARTY

R U L I N G

ATUGUBA, JSC:

FACTS

It is against this order that this present application, aforesaid, has been brought.

See In re Wa-Na; Republic v. Fijoli-Na; Ex parte Yakubu and others (1987-88)1 GLR 180 C.A.

(SGD) W. A. ATUGUBA

JUSTICE OF THE SUPREME COURT

(SGD) S. O. A. ADINYIRA (MRS)

JUSTICE OF THE SUPREME COURT

(SGD) ANIN YEBOAH

JUSTICE OF THE SUPREME COURT

(SGD) A. A. BENIN

JUSTIC E OF THE SUPREME COURT

(SGD) J. B. AKAMBA

JUSTICE OF THE SUPREME COURT

COUNSEL

JOSEPH NICOLAS NKRUMAH ESQ. FOR THE APPLICANT.

J. A. LARKAI INTERESTED PARTY.

Fynn Vrs Fynn and Another (28 of 2013) [2014] GHACA 129 (12 February 2014);

Anonymous — Wed, 23 Jun 2021 10:49:05 +0000

Fynn Vrs Fynn and Another (28 of 2013) [2014] GHACA 129 (12 February 2014); Anonymous (not verified) Wed, 06/23/2021 - 10:49

Download

2014-ghaca-129.pdf

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA-GHANA

CIVIL APPEAL NO. J4/28/2013

12^TH FEBRUARY, 2014

MRS. GRACE FYNN … PLAINTIFF/ APPELLANT/APPELLANT

VRS

1. STEPHEN FYNN

2. CHRISTIANA OSEI … DEFENDANTS/ RESPONDENT/RESPONDENT

JUDGMNET

WOOD (MRS) C.J

This court has clearly set out the legal principles governing appeals against the concurrent findings of fact and conclusions of two lower courts. The principle is that ordinarily, a second appellate court, such as this honourable court, would not interfere with the findings of fact made by a trial court and confirmed on appeal by a first appellate court. A second appellate court would overturn such findings and conclusions only in exceptional cases. The circumstance under which such an intervention may be legally permissible or justifiable is borne out in such cases as:

Achoro and Another v. Akanfela and Another [1996-97] SCGLR 209, at 214 we reasoned that the finding would be interfered with where;

“It was established with absolute clearness that some blunder or error resulting in a miscarriage of justice, was apparent in the way in which the lower tribunals had dealt with the facts. It must be established, e.g., that the lower courts had clearly erred in the face of a crucial documentary evidence, or that the principle of evidence had not been properly applied; or that the finding was so based on erroneous proposition of law that if that proposition be corrected, the finding will disappear … It must be demonstrated that the judgments of the courts below were clearly wrong.”

Obrasiwa 11 and others v Otu and Another [1996-7] SCGLR 618, at 624 affirmed the above legal proposition.

In Kpakpo v Brown [2001-2002] SCGLR 876, we observed that where the findings and conclusions are supported by the record and no miscarriage of justice has resulted from the decisions; the second appellate court would have no choice but to confirm those findings and conclusions.

The following cases:

Musah v Musah [2011] SCGLR 819,

Fabrina Ltd v Shell Ghana Ltd [2011] SCGLR 429, at 449

Fosua and Adu –Poku v Dufie (Deceased) and Adu- Poku v Mensah [2009] SCGLR 310,

Gregory v Tandoh IV & Hanson [2010] SCGLR 971,

Obeng & Others v Assemblies of God Church, Ghana [2010] SCGLR 300 at 409 and

Mensah v Mensah [2012] 1SCGLR 300

bring out other circumstances under which a second appellate court’s interference would be justified. On each occasion, this court speaking through our respected brother Dotse JSC carved out some of the exceptions to the general rule of non interference. Our learned brother expressed the position in Obeng v Assemblies of God Church (supra), thus:

“…where findings of fact have been made by a trial court and concurred in by the first appellate court, then the second appellate court like this court, must be slow in coming to different conclusions unless it was satisfied that there were strong pieces of evidence on record which made it manifestly clear that the findings by the trial court were perverse”, or strong pieces of evidence, where the trial court failed to properly to evaluate the evidence or make proper use of seeing or hearing the witnesses at the trial.

We thus applied these principles to affirm findings and conclusions of the two lower courts in Ntiri v Essien [2001-2002] SCGLR 459; Sarkodie v F K A Co Ltd [2009] SCGLR 79; Jass Co Ltd v Appau [20009] SCGLR 266 and Awuku-Sao v Ghana Supply Co Ltd [2009] SCGLR 713.

Gregory v Tandoh IV [2010] SCGLR 971, (supra) however merited a different treatment. The court decided in the interest of justice to overturn the concurrent findings of fact, and therefore had to set out the limits of its jurisdiction in that particular instance. The court observed:

“It is therefore clear that, a second appellate court, like this Supreme Court, can and is entitled to depart from findings of fact made by the trial court and concurred in by the first appellate court under the following circumstances: First, where from the record of appeal, the findings of fact by the trial court are clearly not supported by evidence on record and the reasons in support of the findings are unsatisfactory; second, where the findings of fact by the trial court can be seen from the record of appeal to be either perverse or inconsistent with the totality of evidence led by the witness and the surrounding circumstances of the entire evidence on record of appeal; third, where the findings of fact made by the trial court are consistently inconsistent with important documentary evidence on record; where the first appellate court had wrongly applied the principle of law (see Achoro v Akanfela) (supra) and other decided cases on the principle) the second appellate court must feel free to interfere with the said findings of fact in order to ensure that absolute justice is done in the case.”

These represent only some of the grounds on which an appellate court may disturb the concurrent findings of two or more lower courts; they do not present a closed category. And so it happens that since this appeal principally turns on just one or two fundamental issues of fact, which issues both lower courts resolved in the respondent’s favour, in this court, the appellant bears the rather onerous burden of dislodging the general legal proposition by situating her case within any of the known exceptions or providing some other compelling reason that would justify a departure from the general rule.

This inevitably leads to an examination of the main facts culminating in this instant appeal. The facts which led to the commencement of the action in the High Court are indeed very simple and not at all complex. The 1^st defendant has been married to the appellant for some thirty years. The couple is blessed with six children. The 1^st defendant sold a store No. 18 Railway Quarters, Kumasi, the subject property of this appeal, to the respondent, for valuable consideration of GHC40, 000. She went into possession after the vendor had transferred the property to her upon payment of the full purchase price and subsequently registered as a member of the Railway Traders Association. A couple of months thereafter the appellant, claiming to be a joint owner of store No 18, and yet whose consent and concurrence was never secured before the sale, sued to have the sale set aside and to repossess the property.

The 1^st defendant admitted these facts, but the respondent challenged inter alia, the claim of joint ownership and asserted that due diligent searches she conducted prior to the purchase did not disclose that the property was jointly acquired by the couple. She contended that, to the contrary, these showed that store number 18 was the exclusive property of the vendor; hence her plea in defence that she was a bona fide purchaser for value without notice. She therefore counterclaimed in that capacity for declaration of title and an order for perpetual injunction to restrain the couple from interfering with her quiet enjoyment of the subject property.

Both the trial and appellate courts in exercising their respective jurisdictions had very little difficulty in finding for the respondent both on the facts and the law. Dissatisfied, the appellant has appealed to us in this court; to set aside the findings and conclusions of the two lower courts, substitute these with those findings and conclusions that will ultimately secure judgment in her favour.

The grounds on which the appellant impugned the decision of the court of appeal include the oft used omnibus appeal ground- the judgment is against the weight of evidence. I find this ground rather superfluous given the other specific grounds filed. But we cannot begrudge the appellant, who is obviously desirous of ensuring that nothing is left to chance and that none of her complaints were left unaddressed in this appeal in which as already noted, essentially hinges, on a couple of rather narrow questions of fact. The other appeal grounds are:

i. “The Court of Appeal erred when it held that the subject property is owned solely by the 1^st Defendant/Respondent/Respondent in the face of clear admissions by the 1^st Defendant/Respondent/Respondent himself, to the contrary.

ii. The Court of Appeal was wrong in law when it held that the 1^st Defendant/Respondent/Respondent did not hold the subject property as a trustee for and on behalf of himself and the Plaintiff/Appellant/Appellant.

iii. The Court of Appeal erred when it held that the learned trial court was right, when it declined to order the Plaintiff/Appellant/Appellant to refund the purchase price, with interest (at the prevailing bank rate) as well as other incidental expenses merely because the Plaintiff/Appellant/Appellant had not claimed these reliefs in the suit.

iv. The Court of Appeal was wrong in law in holding that the subject property belonged solely to the 1^st Defendant/Respondent/Respondent in the light of well settled judicial dicta, and as such same was given contrary to law.”

The complaint I have against these other appeal grounds is that these could have conveniently been reduced into two main grounds. Grounds (ii) - (v) are repetitions. They all somehow convey similar thought; only that they are couched differently. Be that as this may, the appellant has invited us to overturn the judgment of the two lower courts and substitute them with an order setting aside the purported sale.

GROUNDS (ii- iv)

At both the trial and appeal hearings, the learned justices after reviewing the evidence on the record, decidedly concluded that the store No. 18 was solely acquired by the 1^st defendant and not jointly as part of the couple’s matrimonial property as contended by the appellant. Her principal complaint against this primary finding, as may be gathered from these three grounds of appeal, is that the court’s finding on this critical issue was patently in error, given that as is borne out by the record, the 1^st defendant as per his statement of defence, unequivocally admitted her (appellant’s) assertion that this asset was acquired from the joint resources of the couple. Appellant counsel thus argued that the trial court and indeed the appellate court really had no option and on the authority of West African Enterprise Ltd. v Western Hardwood Ltd. [1995-6] 1 GLR 153, was bound to accept joint ownership as the proven fact and ought properly to have found for the appellant on this issue. The argument further went that, had the two courts adopted this approach, and been guided by the line of cases such as Mensah v Mensah [2012] SCGLR 391, and Quartson v Quartson [2012] 2SCGLR 1077, they (the two lower courts) would have come to the undoubted conclusion that the 1^st defendant held the property in their joint names as part of their matrimonial assets, and thus nullified the sale, which the evidence clearly showed was effected without her consent and concurrence.

The respondent counsel had urged that we dismiss these arguments given that the appellant failed to discharge the evidential burden which rested on her on account of the state of the pleadings, more particularly, given that the 1^st defendant’s admissions were not binding on the respondent. Mensah v Mensah (supra) and Quartson v Quartson (supra), which dealt with the acquisition of matrimonial property during marriage, he urged, were clearly distinguishable from this instant case.

Now, the appellant as plaintiff had pleaded per the paragraph 4 of her twenty paragraphed statement of claim as follows:

“The plaintiff states that she and 1^st defendant pooled their resources together to acquire property including a house numbered plot 94, F-line at Buokrom Estate, Kumasi, where they reside and store No. 18, situated at the railway Quarters Shopping Mall, Kumasi.”

It is not disputed that the 1^st defendant had in a terse two paragraphed statement of defence admitted every single fact pleaded by the wife, the appellant.

Undoubtedly, the appellant’s main argument is premised on the 1^st defendant’s admissions. It is noteworthy that the appellant for reasons best known to her sued the husband as 1^st defendant. She could have called him as her witness, whereupon he could still have had opportunity to confess to his sins in disposing of their jointly acquired property without her consent. But she avoided that route as indeed was her constitutional right, choosing rather to make the love of her life her opponent; but perhaps for only that period they were to find themselves embroiled in this legal duel. That may well have been her fundamental right but then, she cannot escape the legal consequences flowing from that singular choice. The 1^st defendant in his statement of defence as noted, admitted the appellant’s assertion that the store was jointly owned by the two of them, leaving the appellant to argue that these plainly admitted facts inured to her benefit as they are sufficient to support a positive finding in her favour without more, and placing her under no legal obligation to provide further evidence in proof of ownership. True, in the case of In re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v Akotia Oworsika III ( substituted by) Laryea Ayiku III [2005-2006] SCGLR, this court laid down the following salutary rule of law, namely that:

“Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct.”

But will this general legal principle apply in this instant case? Can the 1^st defendant properly, on the peculiar facts of this case, be described as appellant’s adversary? We do think the rule will not apply in certain cases such as for example where fraud or collusion is alleged and or proved. The appellant’s arguments invite this further question: what is the legal import and probative value of the 1^st defendant’s admission relative to the appellant’s claim, given that the respondent, who was joined to the suit in her independent and separate capacity as 2^nd defendant, disputed the assertion of joint ownership, joined issue with appellant on this crucial fact and put her to its strict proof?

Where two or more persons are sued not even jointly but severally only, that is in their separate capacities, as in this instant case, any admission by a defendant binds only that defendant making it. It does not bind another defendant who has challenged the assertion and called for its strict proof. Furthermore, since no issue is joined as between the plaintiff asserting the fact and the defendant admitting it, no duty will be cast on the former to lead evidence on the admitted fact.

But the same cannot be said of another defendant who denies the assertion. Under such circumstances, a court is under a duty to treat the case of each defendant separately viz a viz the plaintiff’s case on the merits and as relates to the fact in issue. (See Kusi & Kusi v Bonsu [2010] SCGLR 65).

Another equally pertinent question is this; what is the duty of a court when faced with a situation where a defendant’s admission conflicts with the evidence of the another defendant who joins issue with the plaintiff on the assertion, such as in this instant case where 1^st defendant’s admission is directly in conflict with the evidence supplied by the respondent at the trial? Which of the two conflicting versions must a court accept and consequently as being either clearly advantageous or disadvantageous to the plaintiff’s case? Frankly, this is the difficulty the appellant finds herself in.

We think it is impossible to lay down any hard and fast rules, rules cast in stone in respect of matters of this nature. These are matters better left to a court’s judgment on the merits of each given case. Of course in evaluating the respective weight to be given to the conflicting positions of the defendants, the court will be guided by the law and the same considerations that courts employ in “attacking or supporting credibility” as provided under s 80 of the Evidence Act, 1975, NRCD 323.

Thus for example if one defendant admits facts, and the other defendant challenges the fact asserted and yet is unable to lead sufficient evidence in disproof of the fact, the admitted facts would weigh in plaintiff’s favour.

As far as this appeal is concerned, we are of the opinion that the 1^st defendant’s admission does not aid the appellant’s case in any material way. There is more to this case than the 1^stDefendant’s admissions. The appellant had a duty to make a solid case against the respondent, independently of the 1^st defendant’s admissions. If it were not so, why did the she not cut matters short by simply taking advantage of the admissions and move the court for judgment and altogether avoid a full scale trial?

Unfortunately, the appellant merely relied on this admission as concrete proof of joint ownership, whereas the respondent did not merely challenge the fact, but as rightly found by the court below proceeded to adduce evidence, which on the balance of probabilities, proved that the property was owned exclusively by the 1^st defendant and further that in any event she was a bona fide or innocent purchaser for value without notice. The evidence proved that the appellant herself had previously owned one of those stores- registered in her sole name-, which she has in any event disposed of. Also, the evidence spelt out in great detail how the respondent came to purchase the property and the due diligence conducted thereto.

Evidence which came from a clearly disinterested witness, the DW4 the Vice-Chair of the Railway Quarters Association to which both the appellant and the 1^st defendant belonged, proved that contrary to the appellant’s assertion, the Association have instances where stores have been registered in the name of more than one person, thus completely discrediting the appellant’s explanation as to why the property was not in their joint names but the sole name of the 1^st defendant. All these credible pieces of evidence effectively neutralized the 1^st defendant’s bare admissions via the pleadings, and which the appellant is clutching at as proof of joint ownership.

Truthfully speaking, the appellant did not benefit, not even minimally, from the admission of the 1^st defendant, the defendant who tactically failed to present himself at the trial so that, he could if for nothing at all, seek leave to cross-examine the respondent and demonstrate the improbability of her claim to bona fides. Certainly, if he thought the best strategy was simply to admit the facts and disappear from the court’s radar altogether, that rather was the appellant’s undoing. She was caught in a rather anomalous and most awkward position; one from which she could extricate herself if only she additionally led sufficient evidence, to displace the respondent’s case. Even if to start with, she could seek solace in the 1^st defendant’s admission, given the state of the respondent’s defence and counterclaim, she bore an evidential burden which she failed to discharge. She cannot therefore simply rely on the bare admission of her husband to succeed.

The concurrent findings are not perverse; they are amply supported by the record, and clearly consistent with the totality of the evidence. No miscarriage of justice has been occasioned by these findings and conclusions and it would be most unjust on our part, to interfere with them.

GROUND (v)

The appellant counsel’s argument in under this ground of appeal is untenable. We do not think this court’s thinking on the status of property acquired during the existence of any marriage is shrouded in confusion. Indisputably, during the existence of the marriage union, it is most desirable that the couple pool their resources together to jointly acquire property for the full enjoyment of all members of the nuclear family in particular. But, the decided cases envisage situations where within the union parties may still acquire property in their individual capacities as indeed is their guaranteed fundamental right as clearly enshrined under article 18 of the 1992 Constitution, in which case they would also have the legal capacity to validly dispose of same by way of sale, for example, as happened in this instant case. No court in such clear cases would invalidate a sale transaction on the sole legal ground that the consent and concurrence of the other spouse was not obtained. We would however subject these views we have expressed to this sound caution. Since, the peace, tranquility, harmony, stability and indeed the health and general well being of any marriage union thrives best in the environment of mutual affection, trust and respect for each other as well as transparency; we think a spouse in such a case is under a moral obligation at any given time, (indeed it is most expedient and fair) to apprise the other spouse of the intention to acquire and dispose of self acquired properties at all material times. This is clearly implicit from this court’s view expressed in Quartson v Quartson (supra), namely that:

“The Supreme Court’s previous decision in Mensah v Mensah …, is not to be taken as a blanket ruling that affords spouses unwarranted access to property when it is clear on the evidence that they are not so entitled. Its application and effect will continue to be shaped and defined to cater for the specifics of each case.”

This instant case was fought on the basis that the appellant contributed to its acquisition, which we understood from the pleadings as some direct financial contribution. This basic fact we have found to be unproven. It was never fought on the basis and proven that the respondent even knew of the existence of the marriage union and further that she knew that the property was indeed jointly acquired during this period as family property. Consequently Mensah v Mensah (supra) and Quartson v Quartson (supra) has no bearing and is clearly inapplicable to the peculiar facts of this case. To hold otherwise would have amounted to substituting a case different from that which the appellant herself put up, conduct which is clearly deprecated by the principle enunciated in the case of Dam v Addo GLR [1962] 342 and cited with approval in a host of other cases. (See Bisi v Tabiri alias Asare [1987-88] 1 GLR SC and Kwame Serwah [1993-4]1 GLR 360 and Antie & Adjuwuah v Ogbo [2005-2006] SCGLR 494.

In the result the appeal fails and is hereby dismissed.

(SGD) G. T. WOOD (MRS)

CHIEF JUSTICE

(SGD) J. ANSAH

JUSTICE OF THE SUPREME COURT

(SGD) ANIN YEBOAH

JUSTICE OF THE SUPREME COURT

(SGD) P. BAFFOE BONNIE

JUSTICE OF THE SUPREME COURT

(SGD) J. B. AKAMBA

JUSTICE OF THE SUPREME COURT

COUNSEL

MUJEEB RAHMAN AHMED (WITH HIM KWABENA ATTA AGYEI, NANA KWASI BOATENG AND DR. FRANK ANKOBEA) FOR THE PLAINTIFF/ APPELLANT/APPELLANT.

MARIAM AGYEMAN GYASI JAWHARY ESQ. ( WITH HER SOLOMON OPPONG TWUMASI) FOR THE 2^ND DEFENDANT /RESPONDENT/ RESPONDENT.

Law report citations

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA-GHANA

CIVIL APPEAL NO. J4/28/2013

12^TH FEBRUARY, 2014

MRS. GRACE FYNN … PLAINTIFF/ APPELLANT/APPELLANT

VRS

1. STEPHEN FYNN

2. CHRISTIANA OSEI … DEFENDANTS/ RESPONDENT/RESPONDENT

JUDGMNET

WOOD (MRS) C.J

Achoro and Another v. Akanfela and Another [1996-97] SCGLR 209, at 214 we reasoned that the finding would be interfered with where;

Obrasiwa 11 and others v Otu and Another [1996-7] SCGLR 618, at 624 affirmed the above legal proposition.

The following cases:

Musah v Musah [2011] SCGLR 819,

Fabrina Ltd v Shell Ghana Ltd [2011] SCGLR 429, at 449

Fosua and Adu –Poku v Dufie (Deceased) and Adu- Poku v Mensah [2009] SCGLR 310,

Gregory v Tandoh IV & Hanson [2010] SCGLR 971,

Obeng & Others v Assemblies of God Church, Ghana [2010] SCGLR 300 at 409 and

Mensah v Mensah [2012] 1SCGLR 300

GROUNDS (ii- iv)

Now, the appellant as plaintiff had pleaded per the paragraph 4 of her twenty paragraphed statement of claim as follows:

It is not disputed that the 1^st defendant had in a terse two paragraphed statement of defence admitted every single fact pleaded by the wife, the appellant.

GROUND (v)

In the result the appeal fails and is hereby dismissed.

(SGD) G. T. WOOD (MRS)

CHIEF JUSTICE

(SGD) J. ANSAH

JUSTICE OF THE SUPREME COURT

(SGD) ANIN YEBOAH

JUSTICE OF THE SUPREME COURT

(SGD) P. BAFFOE BONNIE

JUSTICE OF THE SUPREME COURT

(SGD) J. B. AKAMBA

JUSTICE OF THE SUPREME COURT

COUNSEL

MUJEEB RAHMAN AHMED (WITH HIM KWABENA ATTA AGYEI, NANA KWASI BOATENG AND DR. FRANK ANKOBEA) FOR THE PLAINTIFF/ APPELLANT/APPELLANT.

MARIAM AGYEMAN GYASI JAWHARY ESQ. ( WITH HER SOLOMON OPPONG TWUMASI) FOR THE 2^ND DEFENDANT /RESPONDENT/ RESPONDENT.

Dedaa and Another Vrs Tiwaa (277 of 2004) [2007] GHACA 1 (13 July 2007);

Anonymous — Wed, 23 Jun 2021 10:49:03 +0000

Dedaa and Another Vrs Tiwaa (277 of 2004) [2007] GHACA 1 (13 July 2007); Anonymous (not verified) Wed, 06/23/2021 - 10:49

Download

2007-ghaca-1.pdf

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL,

ACCRA.

------------------------------------------------------------------------------------------------------

Coram: Akamba, J.A. (Presiding)

Kusi-Appiah, Justice of Appeal

Jones Dotse, Justice of Appeal.

------------------------------------------------------------------------------------------------------

CIVIL APPEAL NO.

H1/277/2004.

13TH JULY 2007.

MADAM AKOSUA DEDAA

SUBSTITUTED BY AKUA BOATEMAA DEFENDANTS/APPELANTS.

FELIX KWABENA KWAKYE.

MADAM YAA TIWAA, PER HER

ATTORNEY KWAKU APEAGYEI. PLAINTIFF/RESPONDENT.

------------------------------------------------------------------------------------------------------JUDGMENT.

=============================================================

AKAMBA, J.A: This is an appeal from the judgment of the High Court Nkawkaw delivered on 25th February 2002 in favour of the plaintiff/respondent and dismissing the counterclaim by the defendants/appellants.

A brief summary of the background to this case at the trial court will certainly help us appreciate matters. The plaintiff/respondent (hereinafter simply the respondent) initiated her claims against the defendants/appellants (hereinafter simply the appellants) jointly and severally at the Nkawkaw High Court for the following reliefs:

(i) Declaration of title to all that piece or parcel of land situate, lying and being at Kyemase Abetifi-Kwahu (Plot No 39) with buildings thereon bounded on the North by a road measuring 100 feet more or less, on the south by plot No 40 measuring 100 feet more or less, on the East by plot No 38 measuring 80 feet more or less, on the West by a road measuring 80 feet more or less and containing approximate area of 0.24 Acre more or less.

(ii) Recovery of Possession.

(iii) Damages for Trespass

(iv) Perpetual Injunction restraining defendants and all those claiming through them from entering upon the said land for dwelling or any other purpose.

Even though the appellants were served with respondent’s writ of summons and statement of claim, they only filed their appearance without filing an accompanying statement of defence a lapse which prompted the respondents to file for entry of default judgment which the court accordingly granted. The appellants took steps to set aside the default judgment and filed a statement of defence and counterclaim to the respondent’s claims. They counterclaimed as follows:

Declaration of title to all that piece or parcel of land which in (sic) her ancestral land lying and being at Kyemase Kwahu, Abetifi, in the Eastern Region of Ghana with the building numbered K 241 measuring 160’00 on the Northern side and bounded by a lane on that side and on the East measuring 80’00 and bounded by an ACCESS Road constructed by the 2nd defendant and on the South measuring 160’00 and bounded by a lane on that side.
Recovery of possession.
A perpetual injunction to restrain the Plaintiff, her customary successors, personal representatives, her assigns and agents and all who claim title from her from interfering with the land of the 1st defendant.”

FACTS.

The respondent (plaintiff) and the 1st appellant (defendant) are sisters of full blood. The 2nd appellant (defendant) is the son of the 1st appellant. The parties all hail from Abetifi Kwahu in the Eastern Region of Ghana. The facts of this case are a sad demonstration of how far our family structures are giving way to alien dynamics and the extent to which families are prepared to tear each other apart to achieve their personal economic ambitions.

The respondent lives in Accra and was about 95 years old at the time of the trial and prosecuted her case through an Attorney. The bone of contention between the two sisters and a son is over the ownership of the properties described as per the statement of claim and the counterclaim, the same being the house on plot No 39 Kyemase Abetifi. The respondent claims that she owns the disputed house situate on plot No 39 by virtue of the house being built for her by her deceased husband,Yaw Obour. Narrating the circumstances of her acquisition of the land, the respondent’s attorney stated that the respondent was persuaded by her late husband to look for land from her village for him to develop for her. The respondent and her husband lived at Agona Swedru at the time whilst the 1st appellant lived at Awomaesaw some six miles away from Swedru. Respondent invited the 1st appellant who accompanied her to Abetifi. There they approached the Chief who gave them the land. According to respondent, plot No 39 was given to her whilst plot No 38 was given to the 1st appellant. The necessary customary rites were performed to the Chief even though the land was their ancestral maternal land. The respondent informed her husband about the acquisition and proceeded to prepare the necessary documents on the land which same were tendered in evidence. Approval was sought and obtained from Koforidua to put up the building. Respondent engaged the services of one Asiamah, a contractor from Swedru to build the house. Materials were bought but before the building could take off, the respondent’s husband died in 1963. It was not until 1966 that the Swedru contractor eventually brought his workers to Abetifi to put up the house in dispute. They dug the foundation and built the house to its completion whilst one Bagyina, a carpenter and one of the workers of the Swedru contractor roofed the building and handed over the keys to the house to respondent after completion. The respondent states that she then after gave some of the rooms to the sister 1st appellant and her son to stay in until such time that she (the 1st appellant) put up her own house. She also reserved some for herself to stay in whenever she came to Abetifi from Accra.

The 1st appellant (defendant) for her part contends that she also acquired the land the subject of dispute from her uncle who was the successor to her mother and that the land is family property. The appellants admit that the respondent’s late husband begun the building on the disputed land for the occupation of respondent and appellants using blocks belonging to 1st appellant as well as his own but after his demise the structure could not be completed. It was at this stage that the 2nd appellant recounts being summoned by his maternal uncle, Chief Obour and challenged as the senior son to both women i.e. (respondent and 1st appellant) to complete the structure by adding more rooms for their occupation with their children, since no one else would do it for them. The 2nd appellant further states that both respondent and the 1st appellant welcomed the idea when he brokered the deal to both of them during a trip in his car to Abetifi. As a result of their positive responses to the proposal, the 2nd appellant testified that he stopped by the project site when they entered Abetifi. There were only straight blocks of building which were not to lentil level with the whole place overgrown with weeds. Later the 2nd appellant said he marshaled the necessary material to complete the building by making additional structures to ensure that each family member had a room.

JUDGMENT AGAINST THE WEIGHT OF EVIDENCE.

The main ground of appeal we propose to deal is that the judgment is against the weight of evidence. It is obvious that the instant dispute is over land and as such it is governed by sections 11 (4) and 12 of the Evidence Decree (NRCD 323)which require that proof of the divergent claims , being civil claims, should be by preponderance of probabilities. In other words, the successful party must show that her claim is more probable than that of the other. From our evaluation of the evidence in the record of appeal, one fact stands out clear and that is that the disputed property is situate on ancestral maternal family land of both parties. This fact is conceded by both appellant and respondent even though the latter as per her Attorney appeared to be blowing hot and cold on the issue during cross-examination as would be demonstrated anon. In view of this state of affairs, whatever development was carried out by both parties or any one of them cannot escape the description of the property as family property with the right of life occupancy for the party or parties who developed it. [See Amissah-Abadoo vs Abadoo (1974) 1 GLR 110 at 125.] The customary law position is that where individuals and families first cultivate on land, the stool which first settled on the land had the allodial title in the land. Even though the occupation of land by individuals or families, quarters and sub-divisions of a community is a sine qua non to acquisition of land by a stool, any portion of unoccupied or vacant land which individual members of that community or tribe were able by their labour to reduce into their possession became the individual’s property, and land so occupied would belong to their families after the individual’s death. [See Nyamekye vs Ansah (1989-90) 2 GLR 152, holding 2].

In the judgment of the court below, the trial judge rejected the 1st appellant’s evidence on the construction of the house in dispute because he found the evidence ‘conflicting and inconsistent’. To put matters in perspective, we think that the trial judge was obliged to consider the evidence of the plaintiff (respondent herein) in support of her claims first before descending upon the appellants’ evidence in support of their counterclaim. This is so because the respondent as plaintiff, has the initial burden of producing evidence of particular facts without which her claim cannot be sustained Section 17 (1) and (2) of the Evidence Decree (NRCD 323) is the relevant provision on this. It provides:

“17. (1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof.

(2)Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.”

Admittedly a party with the burden of producing evidence is entitled under section 11 (4) of NRCD 323 to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. This may be achieved by pointing to evidence introduced by another party which meets or helps meet the test of sufficiency. If these rules on the burden to be met were borne in mind, it would have been obvious to the trial judge that the respondent (plaintiff) led conflicting and inconsistent evidence on crucial matters in her effort to discharge that burden. For instance at pages 44 (line 44) to 45 (line 9) of the record of appeal the Plaintiff’s Attorney testified to the following:

“The house which was built on plot No 39 Abetifi i.e. H/No K 241 is the plaintiff’s ancestral land on her mothers side. I know the 1st defendant is the younger sister of the plaintiff therefore it would not be wrong for the 1st defendant to say that the land is also her ancestral land. But plot No 39 on which the building stands was allocated to the plaintiff Madam Yaa Tiwaa by the chief and not to the 1st defendant.”

Having positively stated the ancestral nature of the land in dispute supra, the Plaintiff’s Attorney at page 76 (lines 37 to 45) of the record of appeal, under cross examination, testified to the contrary as follows:

“Q. I am putting it to you that the house has been erected on an ancestral land.

It is not true.

Q. And therefore a family house on a family land.

A. It is not true.

Q. The plaintiff is not entitled to any reliefs at all.

A. It is for the plaintiff and not a family house.”

During the cross-examination of the 1st appellant by the respondent’s counsel the following questions and answers were recorded at page 89 (lines 26 to 34) of the appeal record:

“Q. I am putting it to you that the land was acquired by the plaintiff.

It is not true. I acquired the land but not the plaintiff when I acquired the land she was not there.

Q. It is an ancestral land for both of you.

A. It is true but when I was given the land the plaintiff was not there.”

Given the conflicting answers by the Plaintiff’s Attorney and their line of cross-examination on the nature of the land in dispute, whether ancestral land or otherwise, one wonders how the trial judge concluded at page 142 (lines 13 to 21) as follows:

“A careful study of the evidence adduced by plaintiff and her witness the 1stdefendant and the evidence of the 2nd defendant who is well educated and gave evidence in English language clearly shows that the land, the subject matter of the suit was acquired by the plaintiff and also House No K 241 Kyemasi Abetifi was built by the plaintiff on plot No 39 her ancestral land since 1966.” [Underline for emphasis]

To further illustrate the confusion in the plaintiff’s case we refer to the line of cross examination by the plaintiff’s counsel of the 1st appellant at page 95 (lines 24 to 33) of the appeal record as follows:

“Q. You agree with me that ancestral land for you is equally an ancestral land for the plaintiff because you are sisters.

Yes I agree.

Q. I put it to you that at Abetifi it is not the Council which grants land but rather the chief and not the Council.

A. The person who demarcated the land for me is my witness. He was appointed by the Government to do the demarcation for me.”

One important principle which should guide any tribunal of fact in determining the credibility of a witness is the need to test the story of the witness as to its consistency with the probabilities that surround the currently existing conditions. In short, the test is whether the story of the witness is in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in those conditions. [See the British Columbia Court of Appeal (Canada) decision in Faryna vs Chorny (1951) 4 WWR (NS) 171]. Unfortunately, the lower court failed to be so guided.

While it is not correct to state that the 1st appellant was a witness of the respondent as erroneously captured in the judgment of the trial court at page 142 quoted supra, the respondent’s only witness was PW1 Fuseini Wangara, who had nothing to say about the ownership of the land on which house No K241 was built except that he participated in constructing the building. On the other hand at page 108 of the appeal record the 2nd appellant who appeared to be admitting that the disputed land belonged to the respondent retracted from this to state rather that it belonged to his mother the 1st appellant. One cannot read into this to mean that the 2nd appellant was corroborating the testimony of the respondent when it is obvious from the trend of the witness’s narration that he had made a slip which he immediately corrected.

There is sufficient evidence on the appeal record to support the view that the disputed land is indeed the parties’ matrilineal ancestral land. As such ancestral family land the family at customary law has freehold interest in the land. It is only the family that can occupy, cultivate or build on it. The allodial owner cannot alienate or in any way deal in that land except with the consent of the proprietor or those for the time being in possession. Any purported alienation or disposition by the allodial title owner without the consent of the customary freehold proprietor is of no effect and does not bind the customary freehold proprietor who is himself the allodial owner of the ancestral land. [See Nyamekye vs Ansah (1989-90) 2 GLR 152; Ohimen vs Adjei (1957) 2 WALR 275]

Against the backdrop of the authorities quoted supra, the respondent was obliged to produce evidence to avoid a ruling against her as to the source of her grant. At page 39 of the appeal record the plaintiff’s attorney made no secret of the respondent’s case that she not only went with the 1st appellant to Abetifi, but that they got the land from the chief for which they had performed the necessary customary rites. The 1st appellant denies participating in this quest. Obviously therefore the Chief of Abetifi is the source of the respondent’s grant of the in dispute. There is no evidence as to who was this chief of Abetifi who granted this land. Equally absent but important is testimony to show whether the said chief was a member of the respondent’s and appellants’ family, given that the land is ancestral maternal family land or if he was not a member whether he sought the approval of the family. It is therefore amazing how the trial judge could have resolved all these unanswered questions in favour of the respondent who had the initial burden on these matters. Given the circumstances of this case it is only reasonable to presume that the Chief who purported to grant the disputed land to the respondent did so not as a member of the respondent and appellants family but at best as the allodial title holder for which he was not entitled to do. So that if indeed the Chief of Abetifi did grant the land to the respondent in these circumstances it could not bind the customary freehold proprietor who in this case is the head of the family of both respondent and appellants. In simple language the Chief could not grant what he did not have. It is our view that from the evidence on record the respondent had not led sufficient evidence to convince a tribunal of fact that the existence of the facts asserted by her are more probable than their non-existence. The respondent had not discharged her evidential burden sufficiently to warrant a determination in her favour. In concluding the evaluation of the respondent’s evidence, it is important to recap that the respondent acted per an Attorney whose powers are governed by Act 549 of 1998. The arguments of counsel were without reference to Act 549. The Act requires that a written notice specifying the reason why the power is given only where the donor is a trustee-See section 5 (3) (d) of Act 549. This stipulation for reasons to be given in writing does not appear to be a requirement for a holder of a general power of attorney as was the case with the respondent hence the objection by counsel based on this absence lacks merit.

Turning to the counter-claim it is important to observe that the appellants (as the counterclaimants) in a counterclaim assume the same burden that a plaintiff in the substantive writ had if they are to succeed. Put in another way, the appellants in this counterclaim assume the initial burden to prove that they are entitled to a declaration of title to that ancestral land at Kyemase, Kwahu, Abetifi in the Eastern Region described therein together with the building thereon numbered K. 241; recovery of possession of same and perpetual injunction to restrain the respondent (plaintiff), her customary successors, personal representatives, assigns and agents and all who claim title from her from interfering with the land of the 1st appellant (defendant). The demands of this ground of appeal that the judgment is against the weight of evidence are that this court is obliged to examine the totality of evidence before it and to come to its own conclusion as to the admitted and disputed facts. [See Akufo Addo vs Catheline (1992) 1 GLR. 377]. The Supreme Court in a recent decision put a seal on this principle when it held per Date-Bah JSC in Boafo vs Boafo (2005-2006) SCGLR 705 at page 715 the following:

“I think in exercising his powers the learned judge erred either in

applying wrong principles, or
taking into account unproven facts, extraneous matters,
failing to take some important matters into consideration.

Under which circumstances, we as an appellate court would have the power to substitute our own finding on what the equities are in this case.”

The 1st appellant’s contention in this matter is that she obtained the disputed land which is her ancestral maternal ‘Etena’ family land from both her uncle Kwasi Donkor and the mother’s successor Akua Biamah. 1st appellant denied going to any chief for the land. When she decided to put up a house on the land she first went to obtain a site plan from Government and a surveyor in the person of DW1 Martin Akuamoah was assigned to demarcate the land for her. DW1 attested to the fact that he worked with the Abetifi Local Council as their surveyor and draughtsman in charge of allocation of plots and in that capacity he demarcated two plots for the 1st appellant on 14/6/64. The respondent disputed the role of the DW1 in their cross-examination of the witness suggesting that by the 14/6/64 the land had already been assigned to the respondent by the chief. The most significant point in the appellant’s testimony is her claim that she obtained the land from her uncle Kwasi Donkor and the mother’s successor Akua Biamah both of whom are demised. While this fact was not seriously countered by the respondent the point when juxtaposed with the abundant evidence to the effect that the disputed land is indeed family land, makes one doubt the party that traces her grant rather to the chief, more so when the chief is not stated to be doing so as a member of the family. Hear the cross-examination of the Plaintiff Attorney by counsel for the appellants recorded at page 50 (lines 18 to 47) of appeal record:

“Q. You remember you told this Court that this building is an ancestral land and so if the sister i.e. the 1st defendant stays in the building is an ancestral land it is not wrong.

What I said was that the land is their ancestral land but the Plaintiff Madam Yaa Tiwaa went to the chief with drinks and provided some drink to the chief before the land was demarcated for the Plaintiff.

Q. So you agree that the land on which House No. K 241 Kyemase Abetifi is standing is an ancestral land.

A. What I am saying is that in Kwahu we do not buy land as pertains in Accra whether it is an ancestral land or a family land it belongs to the chief and so if you want some of the land you go to the chief and he allocate a portion to you to build on it.

Q. I am suggesting to you that the Plaintiff and the 1st defendant never went to any chief to ask for land for which to put up a building.

A. They went.

Q. Since the 1st defendant knows that the land she was going to put up a building was an ancestral land she never went to any chief to ask for the land.

A. She went to the chief.

Q. Not even with Madam Tiwaa.

A. Both of them went to the chief.”

This therefore makes the appellant’s assertion that she obtained the land from their mother’s successor more cogent than the respondent who said her grant was by the Chief. It is also obvious from the trend of the respondent’s attorney’s testimonies that he was orchestrating rather than recounting from personal knowledge. Hear the Plaintiff’s Attorney at page 51 (lines 25 to 48):

“Q. I am suggesting to you that the 1st defendant was herself trying to put up a building at Tia a suburb of Abetifi so she would not accompany the Plaintiff to look for a land.

A She accompanied my uncle’s wife to ask for the land.

Q. You told the court that you were away for some time and did not know when the building was completed.

A. Yes I said so.

Q. Therefore you cannot tell who actually put up the building to its final conclusion.

A. When I came my uncle’s wife, the Plaintiff told me that it was the contractor by name Asiamah Swedru Contractor built the house and a carpenter by name Kwaku Begyina from Kwanyako roofed the building

Q. Did she tell you the year the Swedru Contractor built the house and the carpenter roofed the building.

A When she started I was here but when it was completed I was not here and they started in 1966 but when it was completed I was not here.” [Underlined for emphasis]

In the event, we find the trial judge’s conclusion that the disputed land was obtained by the respondent from the Chief inconsistent with the facts on record and also not reasonably probable and same is set aside

The next crucial issue to determine relates to the building. Between the respondent and the appellants who put it up? In other words who owns it? From the testimonies of the parties whereas the respondent claims the building to have been constructed by her late husband for her and her family, the defendants assert that the construction was initiated by the respondent’s late husband using the 1st appellant’s blocks. The building was eventually completed by the 2nd appellant. The only concession made by the respondent’s attorney was that the 2nd appellant put up a kitchen when his mother the 1st appellant was going to stay in the house with no kitchen facility. This is how he stated it during cross-examination at page 53 (lines 4 to 35) of record:

“Q. I am suggesting it to you that when your uncle died i.e. husband of Plaintiff died there was one chief Donkor who came to the 2nd defendant and pleaded with him to continue the building. That Chief Kwadwo Donkor was a member of the paternal family I now say maternal side of the family. He called the 2nd defendant and suggested to him that he should complete the building started by the husband of the plaintiff for the use of the whole family.

The truth is that after the house has been completed and Okomfour the 1st defendant was going to stay there, there was no kitchen and therefore chief Donkor told the 2nd defendant to go and build a kitchen there so that when his mother the 1st defendant goes there she will get a place to cook but not that it was the 2nd defendant who completed the building.

Q. I am putting to you that what you are saying is not true there was a kitchen in the house.

A. There was a kitchen attached but faced a room so whenever they cooked the smoke was going into the room that was the reason why chief Donkor suggested to the 2nd defendant to put up a kitchen for the 1st defendant his mother away from the room”

From the perspective of the appellants however, the evidence is that the building was started by Yaw Obour the respondent’s deceased husband using the 1st appellant’s blocks. At page 87 (lines 13 to 46; page 88 line 1 to 2) of the record she testified thus:

“Ekyemase is where the land in dispute is situate. I conveyed the blocks from Etia to Ekyemase. They were 5,000 cement blocks (five thousand) cement blocks. Ekyemase is the same as Nsemankyire. The actual land where the building is situate is called Nsamankyire but the whole area is called Kyemase……..After bringing the blocks from Etia and also having my site plan and before God and man when I informed Yaw Obour, ya Obour is the husband of my sister the plaintiff when I informed him he started the building by using my blocks and together with his own blocks to start building the house in dispute i.e. the big building which comprised of six rooms. Why Yaw Buor came in was that when I informed Yaw Buor about the building I wanted to put up he said he could assist me to put up the building because my sister had told him that they had given birth to three children and they had all died and that my sister the plaintiff said she would not allow her husband to build for her because even as the husband had not built for her the children were dying and for that reason Yaw Buor the plaintiff’s husband said he would assist me to put up that house for all of us myself and my sister, my children and her children to stay at one place and in the same house.”

It is obvious from the evidence on record that the building was constructed to completion using resources of both sisters. This is so whether viewed from the perspective of the respondents who maintain that the appellants only put up an additional kitchen for the use of the 1st appellant or that of the appellants who state that the house was constructed using in part blocks owned by the 1st appellant to lentil stage and eventually completed by the 2nd appellant. The evidence points to the conclusion that the building is the family property of the appellants and the respondent. This conclusion is inevitable in view also of the corroborative evidence such as non payment of rent by any of the parties living in the property since 1968 [See page 55 (line 21 to 22) of record]. The respondent’s attorney is not even aware of the conditions under which they occupy the house. (See page 75 lines 9 to 11of record). It is equally significant that before members of the family went into occupation of the disputed property, one Opanin Kwabena Osei who is the customary father of both respondent and 1st appellant was invited to pour libation and to slaughter a sheep. (See page 75 lines 37 to 48 of record)

In conclusion we find from the evidence on record that the disputed land is ancestral family land of both respondent and the 1st appellant; that the land was granted to the 1st appellant; that the house in dispute was put up with material provided by both parties and in consequence of which we grant the declaration that the said house No. K 241 being at Kyemase, Kwahu, Abetifi in the Eastern Region of Ghana is the family property of both respondent and appellants. To this extent we allow the appeal.

The last point we propose to deal is whether or not the action of the respondent is statute barred in view of the provisions of NRCD 54. The appellants pleaded in their amended statement of defence and counterclaim filed on 25th July 2000 pursuant to the order of court given on 29th May 2000 as follows: “21. The claim of the Plaintiff is statute barred by the provisions of the statute of Limitations NRCD 54.” The appellants did not give the factual basis for their objection. However from the respondent’s attorney’s evidence at page 43 line 11 (of record) he returned from his travels in 1968 to find the property occupied. On the other hand the 2nd appellant testified that he went to complete the house in about 1972 [See page 108 line 36 to 37] and that the two families have been living in that house ever since. The appellants do not see the house as belonging to only the respondent but to the two families. Section 10 of NRCD 54 regulates the time within which an action can be brought to recover any land. It states as follows:

“Section 10 – Recovery of Land.

No action shall be brought to recover any land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.
No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (in this section referred to as “adverse possession”)
Where a right of action to recover land has accrued, and thereafter, before the right of action is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to accrue until the land is again taken into adverse possession.”

From the foregoing provision it is important to establish the date the cause of action arose to enable the court determine whether the time set has been met or not. Under these circumstances the two different dates of 1968 and 1972 proffered by the respondents and the appellants respectively as the dates they occupied the premises with their divergent claims both render the present action outside the twelve year (12) limit provided by the limitation decree supra. In conclusion, the respondent was out of time at the time she mounted her action on 15th April 1999. The appeal on this ground is accordingly allowed.

We make no order as to costs.

J.B. AKAMBA

JUSTICE OF APPEAL

Justice Kusi Appiah: - I agree KUSI APPIAH

JUSTICE OF APPEAL

Justice Jones Victor Dotse: -. I also agree.

JONES VICTOR DOTSE

JUSTICE OF APPEAL

COUNSEL.

G.K.Quaye, Esq. for Defendants/Appellants

G.K.Apee Agyemang, Esq. for Plaintiff/Respondent.

~eb~

Law report citations

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL,

ACCRA.

------------------------------------------------------------------------------------------------------

Coram: Akamba, J.A. (Presiding)

Kusi-Appiah, Justice of Appeal

Jones Dotse, Justice of Appeal.

------------------------------------------------------------------------------------------------------

CIVIL APPEAL NO.

H1/277/2004.

13TH JULY 2007.

MADAM AKOSUA DEDAA

SUBSTITUTED BY AKUA BOATEMAA DEFENDANTS/APPELANTS.

FELIX KWABENA KWAKYE.

MADAM YAA TIWAA, PER HER

ATTORNEY KWAKU APEAGYEI. PLAINTIFF/RESPONDENT.

------------------------------------------------------------------------------------------------------JUDGMENT.

=============================================================

(ii) Recovery of Possession.

(iii) Damages for Trespass

(iv) Perpetual Injunction restraining defendants and all those claiming through them from entering upon the said land for dwelling or any other purpose.

Declaration of title to all that piece or parcel of land which in (sic) her ancestral land lying and being at Kyemase Kwahu, Abetifi, in the Eastern Region of Ghana with the building numbered K 241 measuring 160’00 on the Northern side and bounded by a lane on that side and on the East measuring 80’00 and bounded by an ACCESS Road constructed by the 2nd defendant and on the South measuring 160’00 and bounded by a lane on that side.
Recovery of possession.
A perpetual injunction to restrain the Plaintiff, her customary successors, personal representatives, her assigns and agents and all who claim title from her from interfering with the land of the 1st defendant.”

FACTS.

JUDGMENT AGAINST THE WEIGHT OF EVIDENCE.

(2)Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.”

“Q. I am putting it to you that the house has been erected on an ancestral land.

It is not true.

Q. And therefore a family house on a family land.

A. It is not true.

Q. The plaintiff is not entitled to any reliefs at all.

A. It is for the plaintiff and not a family house.”

During the cross-examination of the 1st appellant by the respondent’s counsel the following questions and answers were recorded at page 89 (lines 26 to 34) of the appeal record:

“Q. I am putting it to you that the land was acquired by the plaintiff.

It is not true. I acquired the land but not the plaintiff when I acquired the land she was not there.

Q. It is an ancestral land for both of you.

A. It is true but when I was given the land the plaintiff was not there.”

“Q. You agree with me that ancestral land for you is equally an ancestral land for the plaintiff because you are sisters.

Yes I agree.

Q. I put it to you that at Abetifi it is not the Council which grants land but rather the chief and not the Council.

A. The person who demarcated the land for me is my witness. He was appointed by the Government to do the demarcation for me.”

“I think in exercising his powers the learned judge erred either in

applying wrong principles, or
taking into account unproven facts, extraneous matters,
failing to take some important matters into consideration.

Under which circumstances, we as an appellate court would have the power to substitute our own finding on what the equities are in this case.”

“Q. You remember you told this Court that this building is an ancestral land and so if the sister i.e. the 1st defendant stays in the building is an ancestral land it is not wrong.

What I said was that the land is their ancestral land but the Plaintiff Madam Yaa Tiwaa went to the chief with drinks and provided some drink to the chief before the land was demarcated for the Plaintiff.

Q. So you agree that the land on which House No. K 241 Kyemase Abetifi is standing is an ancestral land.

Q. I am suggesting to you that the Plaintiff and the 1st defendant never went to any chief to ask for land for which to put up a building.

A. They went.

Q. Since the 1st defendant knows that the land she was going to put up a building was an ancestral land she never went to any chief to ask for the land.

A. She went to the chief.

Q. Not even with Madam Tiwaa.

A. Both of them went to the chief.”

“Q. I am suggesting to you that the 1st defendant was herself trying to put up a building at Tia a suburb of Abetifi so she would not accompany the Plaintiff to look for a land.

A She accompanied my uncle’s wife to ask for the land.

Q. You told the court that you were away for some time and did not know when the building was completed.

A. Yes I said so.

Q. Therefore you cannot tell who actually put up the building to its final conclusion.

Q. Did she tell you the year the Swedru Contractor built the house and the carpenter roofed the building.

A When she started I was here but when it was completed I was not here and they started in 1966 but when it was completed I was not here.” [Underlined for emphasis]

The truth is that after the house has been completed and Okomfour the 1st defendant was going to stay there, there was no kitchen and therefore chief Donkor told the 2nd defendant to go and build a kitchen there so that when his mother the 1st defendant goes there she will get a place to cook but not that it was the 2nd defendant who completed the building.

Q. I am putting to you that what you are saying is not true there was a kitchen in the house.

“Section 10 – Recovery of Land.

No action shall be brought to recover any land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.
No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (in this section referred to as “adverse possession”)
Where a right of action to recover land has accrued, and thereafter, before the right of action is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to accrue until the land is again taken into adverse possession.”

We make no order as to costs.

J.B. AKAMBA

JUSTICE OF APPEAL

Justice Kusi Appiah: - I agree KUSI APPIAH

JUSTICE OF APPEAL

Justice Jones Victor Dotse: -. I also agree.

JONES VICTOR DOTSE

JUSTICE OF APPEAL

COUNSEL.

G.K.Quaye, Esq. for Defendants/Appellants

G.K.Apee Agyemang, Esq. for Plaintiff/Respondent.

~eb~

Agricultural Development Bank Vrs Amartey (76 of 2003) [2004] GHACA 1 (12 November 2004);

Anonymous — Wed, 23 Jun 2021 10:49:03 +0000

Agricultural Development Bank Vrs Amartey (76 of 2003) [2004] GHACA 1 (12 November 2004); Anonymous (not verified) Wed, 06/23/2021 - 10:49

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL SITTING ON THE

12TH DAY OF NOVEMBER, 2004 BEFORE

OWUSU, JA, PIESARE AND ANIN-YEBOAH, JJA.

CM. 76/2003.

AGRICULTURAL DEVELOPMENT BANK … PLT/J/C/RESPT.

V E R S U S

LEONEL A. AMARTEY … J/D/RESPT

AND

PEACE ESSINU KLUDJESON … CLAIMANT/APPT/APPL’T

--------------------------------------------------------------------------------------------------------

R U L I N G

--------------------------------------------------------------------------------------------------------

ANIN-YEBOAH, JA:- The plaintiff/Judgment-Creditor/Respondent {hereinafter called the Respondent} granted a facility to the Defendant/Judgment-Debtor/Respondent {hereinafter called the Judgment-Debtor}. It appears from the records in this application that the Judgment-Debtor failed to repay the loan granted to him by the Respondent.

An action was commenced against the Judgment Debtor at the instance of the Respondent for the recovery of the outstanding balance which stood at ¢99,608,413.66. The facts show that the facility was secured with a property at Accra described as H/No. C. 204/3 Osofo Street, Asylum Down, Adabraka.

Judgment was entered against the Judgment-Debtor for the recovery of ¢99,608,418,66. As the judgment debt was not satisfied, the Respondent as judgment-creditor proceeded to levy execution against the security described above. Upon the attachment of the said property, the Claimant/appellant/Applicant {hereinafter referred as the Applicant} interpleaded. The interpleader summons was listed before Mrs. Justice Akoto Bamfo at the High Court, Accra for directions after the claim of the Applicant had been disputed on the grounds that she had no interest in the property, the subject matter of the execution. When the summons came before the judge, she made an order on 18/1/99 directing the parties in the summons to file their ‘respective documents and other documents appertaining to the issue within ten days.’

As could be seen from the ruling of the court on 3/5/99, this order expired without the Applicant filing anything in the trial court to demonstrate that she had interest in the attached property.

According to the ruling of 3/5/99 two adjournments were granted by the court to enable the Applicant to file her documents of title; but nothing was filed till the judge proceeded to give her ruling on 3/5/99. The trial judge proceeded to make the formal order which was the subject of complaint in this application as follows:-

“I do not therefore feel able to grant the application. Having failed

to comply with the order of the court made after appearance, it is

ordered that the Claimant and all persons claiming under her be forever

barred against the judgment-Creditor.”

In effect this order paved way for execution to proceed accordingly. However, execution could not proceed as expected as a motion for stay of execution was filed and listed before Ofoe J, at the High Court, Accra. The court on 20/2/01 after hearing arguments dismissed the application for stay of execution. The Applicant repeated her application before this court. The various exhibits for consideration in this application show that several motions for relistment were filed by the Applicant upon striking out of the motions. To appreciate the reasons for this ruling one must know what exactly the applicant is praying this court for. The body of the motion before this court states as follows:-

“……….for an order for a stay of execution of the trial judgment of

the High Court, Accra, herein dated the 2nd day of September

1998 pending the hearing and determination of the Claimant’s

appeal herein filed on the 11th day of May 1999 against the

Ruling dated the 3rd day of May 1999 dismissing her interpleader

Claim herein.”

It appears, however, from the records, to be precise Exhibit “PEKI” exhibited by the Applicant herself that the ruling in the interpleader suit against which the appeal was lodged by the Applicant, was delivered by Mrs. Justice Akoto-Bamfo on Monday 5th of May 1999; which is contrary to what is stated in the motion paper. Since there is only one appeal lodged against the interpleader suit, the discrepancies in the date is not material for the determination of this application. The ruling of Justice Akoto-Bamfo was indeed delivered on 3rd of May 1999 and not the 5th of May 1999 as stated in the Notice of Appeal.

It is clear from the body of the motion under consideration that the Applicant is asking for a stay of execution of the judgment of the trial court dated 2nd day of September 1998. The various exhibits annexed by both parties to this application does not show that the Applicant lodged an appeal against the judgment of the trial court, delivered on the 2nd day of September 1998, which judgment adjudged the Respondent bank to recover the amount of ¢99,608,413.66 from the alleged husband of the Applicant one LEONEL AMANOR AMARTEY. She indeed did not demonstrate that she has ever filed an appeal against that judgment in the case of which she was not a party. In course of arguing the motion, learned counsel for the Applicant out of candour conceded that no appeal was lodged by the Applicant in the suit which adjudged the Respondent Bank to recover the ¢99,608,413.66. It is also clear that the suit was not joined by the Applicant. It was only after judgment and in course of execution that the Applicant interpleaded. The appeal which was filed by the applicant was against the interpleader proceedings and not the substantive suit which culminated in the interpleader proceedings. The question is this: Can the Applicant who has not lodged any appeal against a judgment of which he was not a party pray the Court of Appeal to stay execution of the said judgment? I think that the Applicant cannot do so. The applicant can only apply for stay of execution before this court if she had filed an appeal against the decision of the trial court and filed a motion for stay of execution before the trial court and upon refusal of the motion by the trial court she can repeat the application for stay in this court. Such repeated application would be a fresh application. See REPUBLIC V. COMMITTEE OF INQUUIRY (R.T. BRISCOE (GH) LTD; EX PARTE R.T. BRISCOE (GH) [1976] 1 GLR 166 CA and JOSEPH V. JEBELLE [1963] 1 GLR 387 SC. The situation in this matter is, however, different. The Applicant filed an appeal against the ruling of Mrs. Justice Akoto-Bamfo who had struck out the interpleader proceedings. She appealed against the ruling. The mere filing of an interpleader stays execution of the judgment by operation of law. The rights of the claimant in any interpleader proceeding must be determined before execution could proceed. A short passage from Halsburys Laws of England [4th edition] page 273 states the position of the law is follows:

“An order for an interpleader issue has the effect of a stay….”

Against this proposition of law are listed the cases of ANGELL V. BADDELEY [877] 3 Ex D 49 CA and RE FORD, EX PARTE FORD [1886] 18 QBD 369 as authorities for the above proposition of law. In my opinion, the pendency of the interpleader before the High Court stayed execution of the judgment adjudging the Respondent to recover the judgment debt of ¢99,608,413.66 from Leonel Amanor Amartey, even though the Applicant herein was never a party to the suit but a claimant only. However, the Applicant was ordered by the trial court in the interpleader proceedings to file all documents relating to her interest in the property which was the subject of the interpleader. This she refused to do so despite the fact that the trial judge adjourned the proceedings on two occasions at her instance even though the time limited for filing the documents had already ran out. I think the conduct of the Applicant compelled the trial judge to strike out the interpleader and made a consequential order which to me was nothing more than the exercise of her jurisdiction under Order 57 Rule 10 of the Supreme [High] Court Civil Procedure Rules LN 140 A of 194.

As said earlier, Applicant’s appeal against the ruling in the interlocutory proceedings was followed with a motion for stay of execution before Ofoe J. The motion for stay was dismissed and this application is in my view a fresh application even though she is repeating same before this Appellate Court. In my opinion, as the trial judge never had the opportunity to go into the merits of the interpleader proceedings by virtue of the striking out of same for non-compliance with her orders by the applicant, the Applicant's attack of the ruling ought to have been on the exercise of the trial judge's discretion.

Before us, no effort was made to demonstrate that the judge’s discretion was unfair and that it was not warranted by the circumstances of the occasion. The procedure under which the learned trial judge dealt with the interpleader proceedings was not questioned by the Applicant before us at the Appellate Court.

As no attempt was made to show that there was the possibility of the appeal succeeding or that the special circumstances of the case warrant stay or that the appeal would be rendered nugatory should this application be refused, this court ought to dismiss the application to pave way for execution of the judgment dated 2nd day of September 1998 to proceed accordingly. The motion is therefore dismissed.

ANIN-YEBOAH

JUSTICE OF APPEAL

I agree. E.K. PIESARE

JUSTICE OF APPEAL

I also agree. R.C. OWUSU

JUSTICE OF APPEAL

COUNSEL - W.A.N. ADUMUA BOSSMAN FOR APPLICANT.

S.N. KUDJOE FOR RESPONDENT.

S.M. ASANTE FOR J/DEBTOR/RESPONDENT.

#eb#

Law report citations

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL SITTING ON THE

12TH DAY OF NOVEMBER, 2004 BEFORE

OWUSU, JA, PIESARE AND ANIN-YEBOAH, JJA.

CM. 76/2003.

AGRICULTURAL DEVELOPMENT BANK … PLT/J/C/RESPT.

V E R S U S

LEONEL A. AMARTEY … J/D/RESPT

AND

PEACE ESSINU KLUDJESON … CLAIMANT/APPT/APPL’T

--------------------------------------------------------------------------------------------------------

R U L I N G

--------------------------------------------------------------------------------------------------------

As could be seen from the ruling of the court on 3/5/99, this order expired without the Applicant filing anything in the trial court to demonstrate that she had interest in the attached property.

“I do not therefore feel able to grant the application. Having failed

to comply with the order of the court made after appearance, it is

ordered that the Claimant and all persons claiming under her be forever

barred against the judgment-Creditor.”

“……….for an order for a stay of execution of the trial judgment of

the High Court, Accra, herein dated the 2nd day of September

1998 pending the hearing and determination of the Claimant’s

appeal herein filed on the 11th day of May 1999 against the

Ruling dated the 3rd day of May 1999 dismissing her interpleader

Claim herein.”

“An order for an interpleader issue has the effect of a stay….”

ANIN-YEBOAH

JUSTICE OF APPEAL

I agree. E.K. PIESARE

JUSTICE OF APPEAL

I also agree. R.C. OWUSU

JUSTICE OF APPEAL

COUNSEL - W.A.N. ADUMUA BOSSMAN FOR APPLICANT.

S.N. KUDJOE FOR RESPONDENT.

S.M. ASANTE FOR J/DEBTOR/RESPONDENT.

#eb#

Boateng Vrs Ofori and Another (116 of 2004) [2005] GHACA 1 (09 December 2005);

Anonymous — Wed, 23 Jun 2021 10:49:03 +0000

Boateng Vrs Ofori and Another (116 of 2004) [2005] GHACA 1 (09 December 2005); Anonymous (not verified) Wed, 06/23/2021 - 10:49

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL, ACCRA – GHANA

CORAM - MRS. AKOTO BAMFO, JA [PRESIDING],

ASARE KORANG, JA

ASAMOAH, J

CIVIL APPEAL

HI/116/2004

9TH DEC., 2005

AGYENIM BOATENG … PLAINTIFF/RESPONDENT

V E R S U S

1. AKWASI OFORI

2. AKOSUA YEBOAH … DEFENDANTS/APPELLANTS

---------------------------------------------------------------------------

ASARE KORANG, JA - Certain facts are undisputed in this case.`

The plaintiff/respondent (respondent for convenience) and the defendants/appellants (appellants for short) belong to one family whose originator was Akua Anokyewaa.

The family consists of two branches, namely the Akua Kone branch to which the respondent belongs and the Amma Biyaa branch to which the appellants belong.

Kone and Biyaa were female children of Akua Anokyewaa and she also begat Kwame Ako, Kwasi Tepa, Kwame Amuzu, Kwasi Nsiah and another female Akosua Ampoma who died childless. Kwasi Tepa and Kwame Amuzu were the uncles of Kwabena Attah (the original plaintiff in this suit, Kwabena Krah and Kwasi Wonoo. One Yaw Donkor succeeded Kwasi Wono and the 1st appellant herein also succeeded Yaw Donkor.

During his lifetime, Kwasi Wonoo purchased house No. K.O. 47, Ashanti New Town, Kumasi at a public auction. The sale of the said house was at the instance of Kwasi Tepa (one of the sons of Akua Anokyewaa), as Mortgagee in execution of a court decree dated 3rd May, 1934. Evidence of the sale was tendered as Exhibit E.

In the court below, the respondent testified to the effect that his predecessors of the Kone branch, namely Akwasi Nsiah, Kwame Amusu and Kwasi Teppa died possessed of cocoa farms and a house at MPATUAM. They also acquired cocoa farms and a house at BIEMSO and also House No. K.O. 47, Kumasi.

One of the Biemso cocoa farms was acquired in the name of Yaw Krah who belonged to the respondents Kone family and another farm in the name of Kwasi Wonoo who was of the appellants Obiyaa or Biya branch family. Tendered as Exhibits A and A1 were documents evidencing the sale of the farms. The respondent contended that House No. K.O. 47, Kumasi remained in the possession of his uncles, Kwasi Nsiah, Kwame Amusu and Kwasi Teppa all of whom were in occupation of the said house during their lifetime.

The respondent insisted that Kwasi Wonoo was only a nominal purchaser of House No. K.O. 47 and that the progenitors of the respondent and the appellants herein, that is, Kone and Obiyaa also lived in the said house.

The respondent further contended that the last of the male children of Anokyewaa to die was Kwame Amuzu and when he died he was succeeded by Kwasi Wonoo of the Obiyaa branch of the Anokyewaa family. Wonoo himself was succeeded by his maternal brother Yaw Donkor who in turn was succeeded by Kwabena Atta, the original plaintiff in this action. When Kwabena Attah died in the course of the trial of the action, the respondent was substituted for him.

The present action was precipitated because the appellants asserted that House No. K.O. 47 was purchased by Kwasi Wonoo and formed part of his self acquired property and on his death intestate, the house became the property of the Obiyaa branch of the Anokyewaa family.

The appellants made this claim because the Certificate of Purchase Exhibit E was in the name of Kwasi Wonoo who on 31st May 1946 obtained a Lease from the Asantehene, (tendered as Exhibit 1) of the land on which House No. K.O. 47 stands.

The Respondent denied that the house belongs to the Obiyaa branch and that it was property acquired by his uncle Kwasi Teppa in the name of Kwasi Wonoo for and on behalf of the wider Anokyewaa family.

The contentious claims ended up in court with the respondent suing for

“(1) A declaration that House No. K.O. 47, Kumasi is the property

of the entire Anokyewaa family of the Mpatuam.

(2) An order of perpetual injunction restraining the defendants…..

from interfering in any manner with the plaintiff’s possession

and control of House No. K.O. 47, Kumasi in his capacity of

head of Akua Anokyewaa family of Mpatuam.

In her judgment, the learned trial judge found as a fact that the originator of the respondent’s family and the appellants’ family was Akua Anokyewaa. She also found that Exhibit E, the Certificate of Purchase and Exhibit 1 (the Lease) were in the name of Kwasi Wonoo.

Section 35 of the Evidence Decree 1975 (NRCD 232 having been invoked and relied upon by counsel for the appellants, the learned trial judge ruled on the said piece of legislation in relation to this case as follows:-

“It is true Section 35 of the Evidence Decree NRCD 232 says ‘the owner

of the legal title to property is presumed to be the owner of the beneficial

title.’ In the instant case the presumption has been rebutted by the plaintiff

in Exhibit E. There is also evidence that both members of the Obiyaa and

Kone branch of Anokyewaa family live in the disputed house, so that the

Plaintiff has successfully rebut (sic) the presumption that Kwasi Wonoo is

the legal as well as the beneficial owner.”

From this finding, the trial judge concluded that Kwasi Wonoo was only a nominal purchaser of K.O. 47, Kumasi, the real owner of the premises being Kwasi Teppa and that being the case, the appellants cannot be heard to say that the property was the self acquired property of Wonoo whose immediate family then should succeed to it,

Aggrieved by this decision, the appellants have appealed alleging as their grounds of appeal that the judgment was against the weight of evidence and it was wrong in law.

On behalf of the appellants, it was argued that Exhibits E and 1 support the presumption, both legal and equitable that ownership of House No. K.O. 47, Kumasi, was vested in Kwasi Wonoo.

It was submitted that Exhibit 1, the Lease of the property obtained by Kwasi Wonoo in his own right in 1946, as owner and not in trust for Kwasi Teppa, as mortgagee, ten years after the auction sale, was an act of dominion/ownership by Kwasi Wonoo; that Kwasi Teppa, as mortgagee at the Auction sale, could not sell House No. K.O. 47 to himself, nor could he employ the name of Kwasi Wonoo to make illegal profit for himself.

The finding by the trial judge that the real owner of the property was Kwasi Teppa and that Kwasi Wonoo was only a nominal purchaser, a finding grounded on the explanation of counsel for the respondent that Kwasi Teppa as mortgagee was mindful of the consequences of selling the house to himself and that was the reason why he purchased it in the name of Kwasi Wonoo, was labeled by the appellants as a blatant attempt to make an illegal conduct legal and most untenable as it offends against Section 17 of the Auction Sales Ordinance (Cap 196) and the Auction Sales Law, 1989 (PNDCL 230).

For the respondent, it was submitted that it was not by sheer coincidence that at all times that Kwasi Teppa and Kwame Amuzu were exercising their right of sale as mortgagees by auction, the purchaser happened to be one of their nephews. Therefore it was right to conclude that the real purchaser of H/No. K.O. 47 was the mortgagee himself, purchasing in the name of his nephew.

Regarding the argument made by counsel for the appellants that if Kwasi Teppa and Kwame Amusu as mortgagees purchased property at an auction through surrogates or agents who were their nephews, then those transactions offended against the Auction Sales Ordinance (Cap 96) and the Auction Sales Law, 1989 (PNDCL 230), the respondent argued that it is not one of the grounds of appeal before this court and not being on issue, this court is not being called upon to determine the validity of the purchase of those properties particularly House No. K.O. 47, Kumasi.

The appellants, on their part, contend that the question is whether at the auction, the respondent or his privies or predecessors were entitled to derive illegal profit for themselves. And that is a point of law that may be raised at any time.

The issue brought up about the legality of the auction sale with particular reference to the sale to Wonoo as nominee of Kwasi Teppa is a perfectly valid legal issue and it is

Certainly not rendered irrelevant by the fact that it was not raised before the learned trial judge.

Being the judge of fact and law, the trial judge ought to have considered the point even if it was not brought to her attention by the parties. It is a point properly taken in this appeal as the respondent has had notice of it and has reacted or replied to it.

It was argued by the Respondent that if Kwasi Teppa’s purchase of House No. K.O. 47 was invalid it does not help the case of the appellants in any way and a declaration to that effect does not make Kwasi Wonoo the beneficial owner of that house.

This argument in my view is unhelpful to the case of the Respondent since the trial judge had in the first place found in favour of the presumption set down in Section 35 of NRCD 323 even though she declared that the presumption had been rebutted by evidence led by the Respondent. It is true that at the auction of House No. K.O. 47, the mortgagee exercising the right of sale by court order was Kwasi Teppa. On the evidence in the trial court, the purchaser of the property, Kwasi Wonoo, was the nephew of the mortgagee.

There is no evidence in this case that the sale by auction of House No. K.O. 47, Kumasi was without reserve or subject to a reserved price and whether a right to bid was reserved to the vendor, in this instance the vendor being the mortgagee, Kwasi Teppa.

If it had been stated that the sale would be without reserve or to that effect, then it would not be lawful for the vendor or any person on his behalf or employed by him to bid at the auction sale. See Section 17(2) of the Auction Sales Ordinance (Cap 196).

On the other hand if it had been expressed that the sale of the said K.O. 47 house would be subject to a reserved price, then it would have been lawful for the vendor or any person employed by him to bid. But it would have been required that any such bid should be openly declared at the auction: See Section 17(3) or Cap 196.

More importantly, in this case, I think since the mortgagee with the right of sale at the auction of House No. K.O. 47 was Kwasi Teppa and the purchaser his nephew Kwasi Wonoo, and because the respondent contends that legal ownership of the house at the time of sale was vested in Kwasi Teppa whose nephew Wonoo was only a nominal purchaser, evidence ought to have been led by the Respondent to show that the sale was subject to a right for the vendor, Kwasi Teppa to bid. This right should be an express and

explicit right as it would then have rendered it lawful for the vendor or any person on his behalf to bid and purchase the property in dispute.

In the absence of evidence as to any express stipulations concerning the terms and

conditions attending the auction sale of House No. K.O. 47, I consider it expedient and

perfectly in order to resort to general principles.

In this regard, the question to ask is, who is generally entitled to purchase where a

mortgagee exercising a right of sale puts up property for sale at an auction?

It was held in the Australian case of RE WHITE, Ex Parte GOGGS [1866] 1

QSCR 149 that a mortgagee with a power of sale is a trustee and cannot without the

express consent of his CESTUI QUE TRUST purchase an estate of which he is the

mortgagee.

Other cases that readily come to mind on persons disabled from purchasing at an

auction sale of mortgaged premises are NATIONAL BANK OF AUSTRALIA VRS.

UNITED HAND-IN-HAND & BAND OF HOPE CO. [1879] 4 App.Cas. 391, 40 L.T.

697; MARTINSON V. CLOWES [1882] 21 Ch. D. 857 and DOWNES V.

GRAZEBROOK [1871] 3 MER. 200; [1814-23] All E.R. Rep 300; 36 ER 77.

In the National Bank of Australia case (supra), mortgaged premises were put up for

sale under the powers of sale spelt out in the indenture of assignment and instrument of

mortgage and knocked down to ‘D’ who was merely a nominal purchaser on behalf of the

bank.

It was held that the bank as mortgagees selling under their power of sale could not sell

to the themselves.

The brief facts in Martinson v. Clowes (supra) were that at a sale by auction under the

direction of a building society as mortgagees, the secretary of the society openly bid for and

became the purchaser of two lots on his own account and there was no proof of under value

Held: in the circumstances, the sale to the secretary was not maintainable against the

Mortgagor.

In that case NORTH, J., stated the legal principle as follows:

“It is quite clear that a Mortgagee exercising his power of sale cannot

purchase the property on his own account and I think it clear also that the

Solicitor or Agent of such Mortagagee acting for him in the matter of the

Sale cannot do so either. (Emphasis mine).

The case of Downes v. Grazebrook (supra) was concerned with an estate being put up for sale by auction at which ’C’ as agent for ‘D’ was the only bidder and it was knocked down to him accordingly. The facts further showed that ‘D’ was a trustee of the estate and as such disabled from purchasing for himself as long as he continued to be a Trustee without the consent of his CESTUI QUE TRUST. It was held that although there was no evidence of fraud or undervalue, the sale of the estate could not stand.

Admittedly the facts in Downes v. Grazebrook (supra) related to a Trustee and his cestui que Trust and there was no evidence of fraud or undervalue but the court held that the sale was damaged on account of the agent of the Trustee being the only bidder.

In the present appeal, I find no evidence on record that the auction sale of House No. KO 47, Kumasi was conducted fraudulently or at an undervalue but on account of the sale of the property being knocked down to Kwasi Wonoo who on the facts was the nephew of the mortgagee, the sale in the circumstances, was impeachable.

I am however, not in a position to hold the transaction void because the Mortgager is not party to this appeal and it does not appear that he has at any time complained about the circumstances under which the mortgagee exercised his power of sale. But on general principles it is against public policy for a mortgagee or his agent to bid. It is sufficient in this appeal to note that it has been strongly submitted that Kwesi Wonoo was a nominal purchaser of House No. KO 47, having had the property knocked down to him at the sale as the agent of his uncle – mortgagee Kwasi Teppa. And therefore, it has been argued that the successors of Kwasi Wonoo cannot claim that he was the real or legal owner of the disputed property, that person being Wonoo’s uncle Kwasi Teppa. But, I think, I have demonstrated that if Kwasi Wonoo purchased the disputed premises at the auction sale as the agent of his uncle mortgagee who was exercising a power of sale, then it was a damaged transaction or enterprise.

There is no indication that having purchased the property as the agent or nominee of his uncle, Kwasi Wonoo in whose name the certificate of purchase was issued, subsequently reconveyed the property to his principal, that is, his uncle.

On the contrary, there was evidence led in the court below that some ten years or so after Kwasi Wonoo had purchased the property, he took a lease of it in his name.

There is nothing to show that of other properties purchased in the name of other nephews of the male children of Akua Anokyewaa, steps were taken to reconvey the properties to those males or that the nephews later obtained conveyances of those properties in their names. Most probably those properties took on the character of family properties on the death of the uncles and their nephews.

In the case of the House K.O. 47, Kumasi, I am prepared to hold that because Kwasi Wonoo obtained an interest in the property by way of a lease ten years or thereabouts after he had purchased it at the auction he must be deemed to be both the legal and beneficial owner of the property and the presumption in his favour to that effect was not rebutted by the fact that members of the Anokyewaa family lived in that house or the submission to the effect that at the auction sale, Wonoo was merely a nominal purchaser of the property.

The finding by the trial judge that Kwasi Wonoo was only a nominal purchaser of “KO 47” and the real owner was Kwasi Teppa was not founded on any solid evidence and even if evidence to that effect had been adduced before the trial judge, she ought to have concluded that the auction sale was voided by Kwasi Teppa as mortgagee exercising a power of sale employing his nephew as his agent to bid and purchase the property.

To the extent that the relief sought by the respondent was “a declaration that H/No. KO 47 is the property of the entire Akua Anokyewaa family of Mpatuam,” a relief which was answered in the affirmative by the appellants in their pleadings, I concede that the learned trial judge was right in entering judgment for the Respondent in respect of that claim.

However, the question as I see it is, in what way may the judgment be interpreted as far as that claim or relief is concerned. Kwasi Wonoo was a member of the wider Akua Anokyewaa family and it being apparent that he died intestate, his wider family, in law, is entitled to succeed to his estate but the real issue in this case, in my view, is whether House No. K.O. 47 being the self acquired property of Kwasi Wonoo, the interest of the wider family was not postponed as there were in existence persons belonging to the immediate family of Kwasi Wonoo, the Amma Biyaa branch, those persons being the appellants herein.

I think, the evidence and the facts in this case ought not to have been put in a strait-jacket as relating only to the issue of whether House No. K.O. 47 is the property of the entire Akua Anokyewaa family.

The evidence went further than that and to my mind, it was of crucial importance for the learned trial judge to have found and determined on the law and the facts that the said House No. K.O. 47 was the self-acquired property of Kwasi Wonoo who took a lease of it in his name after it had been knocked down and purchased by him at an auction sale. If the learned trial judge had so found, she would not have agreed with the respondent that Kwasi Wonoo was only a nominal purchaser of the property.

In conclusion, I hold that Kwasi Wonoo was both the legal and beneficial owner of House No. K.O. 47 and on his death intestate, the persons entitled to succeed to that house are members of his immediate Biyaa family.

In my opinion the trial judge should have had regard to and pondered over the wider ramifications of the evidence led before her by the parties and having found that Section 35 of NRCD 232 was applicable to the facts and circumstances of the case before her, to have held that the presumption in the said section had not been successfully rebutted by the respondent’s evidence. The trial judge ought then to have dismissed respondent’s claim.

I shall myself therefore allow the appeal and set aside the judgment of the court below.

A. ASARE KORANG

JUSTICE OF APPEAL

I agree. V. AKOTO-BAMFO [MRS.]

JUSTICE OF APPEAL

COUNSEL - KORBIAH AMENFI FOR DEFENDANT/APPELLANT.

I.K. ANTWI FOR PLAINTIFF/RESPONDENT.