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Property –
House – Ownership - Perpetual
injunction – Letters of
Administration – Caveat –
intestate succession - Nominal
purchaser - Whether or not House
No. K0 47 is the self acquired
property of Kwasi Wonoo -
Whether or not the House No. KO
47 is the property of the entire
Akua Anokyewaa family -
HEADNOTES
The
plaintiff’ in his capacity of
Head of Akua Anokyewaa family
His grand-mother, Akua Anokyewaa
had four sons and three
daughters. All of them are
deceased. The sons were Kwame
Akoh, Kwasi Nsiah, Kwame Amuzu
and Kwasi Teppa. The daughters
were Amma Biyaa, Akosua Ampoma
and Akua Konneh. The plaintiff
is the son of Akua Konneh and
the defendants are
great-grand-son and
grand-daughter respectively of
Amma Biyaa. It is the position
of the plaintiff that his late
four uncles acquired real and
personal properties all of which
on their respective deaths
intestate devolved absolutely on
their immediate Akua Anokyewaa
family. In 1934 or thereabout
his late uncle Kwasi Teppa, in
exercise of power of sale
reposed in him as
mortgagee-judgment-creditor
purchased for himself and his
brothers H/NO. KO 47, Kumasi but
in the name of Kwasi Wono the
most senior nephew. In 1943,
also in exercise of a similar
power of sale as mortgagee, his
late uncle Amuzu purchased for
himself and his brothers three
cocoa farms and a compound house
all at Biamusu but in the
respective names of Yaw Krah,
son of Akosua Addae, siser of
Akua Anokyewaa, plaintiff herein
and Kwasi Wono. In their life
time his late uncles exercised
absolute and unlimited rights of
ownership over all properties
they purchased in the names of
their nephews as nominal
purchasers who had nothing
whatsoever to do with the said
properties. Following the
purchase of H/NO. KO 47, Kumasi
his late four uncles removed
from Zongo, Kumasi to live in
that house. Not until his
appointment as customary
successor and as head of Akua
Anokyewaa family following the
death of his last surviving
uncle Kwame Amuzu, Kwasi Wono
continued to live at Mpatuam and
had nothing whatsoever to do
with the said H/NO. KO 47. It is
the contention of the plaintiff
that Kwasi Wono, a member of
Amma Biyaa’s branch family,
being a man of straw, died
leaving no self-acquired
property to his family.
Following the practice by the
Akua Anokyewaa’s family of
appointing the most senior
member of that family as their
family head, Yaw Donkor, also of
Amma Biyaa’s branch of the
family was appointed as
successor to Kwesi Wono. When
Yaw Donkor occupied the seat as
head of the wider Akua
Anokyewaa’s family, in an
application for Letters of
Administration to administer the
estate of Kwesi Wono separately
from the properties of the wider
family of Akua Anokyewaa, he
listed H/NO. KO 47, Kumasi in
the inventory thereof. The
plaintiff registered his
objection through a caveat since
that house did not form part of
Kwesi Wono’s estate. Later the
result of customary arbitration
confirmed that H/NO. KO 47 did
not form part of the estate of
Kwasi Wono. When Yaw Donkor died
the defendants objected to the
plaintiff’s appointment as
customary successor and head of
Akua Anokyewaa’s family.
Eventually the plaintiff was
appointed head of Akua
Anokyewaa’s family and the first
defendant was appointed
successor to Yaw Donkor. After
his appointment the first
defendant applied for Letters of
Administration in respect of the
estate of Yaw Donkor and in
attempt to vest H/NO. KO 47 in
Amma Biyaa branch of the family,
included the said house in the
inventory thereof. The plaintiff
entered a caveat and the result
is the present suit, principally
to determine the ownership of
H/NO. KO 47, Kumasi. The trial
court gave judgment in favour of
the plaintiff. The defendants
appealed and the judgment of the
trail court was set aside ,
HELD
In our
opinion since the Court of
Appeal did not demonstrate how
the trial court went wrong in
its decision to set aside the
finding of the trial court that
Kwesi Wono was a nominal
purchaser that decision is
without legal basis. For the
reasons given in this judgement
we allow the appeal, set aside
the judgment of the Court of
Appeal and enter judgment for
the plaintiff.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Cross v.
Hillman Ltd. [1969] 3 WLR 787 at
798, C.A.
Fofie v.
Zanyo [1992] 2 GLR 475.
Kofi (Oppong)
v. Fofie [1964] G.L.R. 174,
S.C.;
Praka v.
Ketewa [1964] G.L.R. 423, S.C.;
Azagba v.
Negov [1964] G.L.R. 450, S.C.;
Asibey III v.
Ayisi [1973] 1 G.L.R. 102.
Adorkor v.
Gatsi [1966] G.L.R. 31 at 34,
S.C.
Praka v.
Ketewa [1964] GLR 423
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ARYEETEY, JSC
COUNSEL
ISAAC KWABENA
ANTWI FOR THE
PLAINTIFF/RESPONDENT/APPELLANT
SIR DENNIS
ADJEI FOR THE
DEFENDANTS/APPELLANTS/RESPONDENTS
_________________________________________________________________
J U D G M E N
T
_________________________________________________________________
ARYEETEY, JSC:-
In this
judgment we would refer to the
plaintiff/respondent/appellant
as the plaintiff and the
defendants/appellants/respondents
as the defendants. By his writ
of summons the plaintiff, who
brings this action for himself
and on behalf of his branch
family originated by his
grand-mother Akua Anokyewaa
claimed for the following
reliefs: 1. A declaration that
H/NO. KO 47, Kumasi is the
property of the entire Akua
Anokyewaa family of Mpatuam. 2.
An order of perpetual injunction
restraining the defendants and
all who may claim under them
from interfering in any way or
manner with the plaintiff’s
possession and control of H/NO.
KO 47, Kumasi in his capacity of
Head of Akua Anokyewaa family of
Mpatuam. In line with his
pleading and the evidence
adduced on his behalf a brief
background to his claim is as
follows: His grand-mother, Akua
Anokyewaa had four sons and
three daughters. All of them are
deceased. The sons were Kwame
Akoh, Kwasi Nsiah, Kwame Amuzu
and Kwasi Teppa. The daughters
were Amma Biyaa, Akosua Ampoma
and Akua Konneh. The plaintiff
is the son of Akua Konneh and
the defendants are
great-grand-son and
grand-daughter respectively of
Amma Biyaa.
It is the
position of the plaintiff that
his late four uncles acquired
real and personal properties all
of which on their respective
deaths intestate devolved
absolutely on their immediate
Akua Anokyewaa family. In 1934
or thereabout his late uncle
Kwasi Teppa, in exercise of
power of sale reposed in him as
mortgagee-judgment-creditor
purchased for himself and his
brothers H/NO. KO 47, Kumasi but
in the name of Kwasi Wono the
most senior nephew. In 1943,
also in exercise of a similar
power of sale as mortgagee, his
late uncle Amuzu purchased for
himself and his brothers three
cocoa farms and a compound house
all at Biamusu but in the
respective names of Yaw Krah,
son of Akosua Addae, siser of
Akua Anokyewaa, plaintiff herein
and Kwasi Wono. In their life
time his late uncles exercised
absolute and unlimited rights of
ownership over all properties
they purchased in the names of
their nephews as nominal
purchasers who had nothing
whatsoever to do with the said
properties. Following the
purchase of H/NO. KO 47, Kumasi
his late four uncles removed
from Zongo, Kumasi to live in
that house. Not until his
appointment as customary
successor and as head of Akua
Anokyewaa family following the
death of his last surviving
uncle Kwame Amuzu, Kwasi Wono
continued to live at Mpatuam and
had nothing whatsoever to do
with the said H/NO. KO 47. It is
the contention of the plaintiff
that Kwasi Wono, a member of
Amma Biyaa’s branch family,
being a man of straw, died
leaving no self-acquired
property to his family.
Following the practice by the
Akua Anokyewaa’s family of
appointing the most senior
member of that family as their
family head, Yaw Donkor, also of
Amma Biyaa’s branch of the
family was appointed as
successor to Kwesi Wono.
When Yaw
Donkor occupied the seat as head
of the wider Akua Anokyewaa’s
family, in an application for
Letters of Administration to
administer the estate of Kwesi
Wono separately from the
properties of the wider family
of Akua Anokyewaa, he listed
H/NO. KO 47, Kumasi in the
inventory thereof. The plaintiff
registered his objection through
a caveat since that house did
not form part of Kwesi Wono’s
estate. Later the result of
customary arbitration confirmed
that H/NO. KO 47 did not form
part of the estate of Kwasi
Wono. When Yaw Donkor died the
defendants objected to the
plaintiff’s appointment as
customary successor and head of
Akua Anokyewaa’s family.
Eventually the plaintiff was
appointed head of Akua
Anokyewaa’s family and the first
defendant was appointed
successor to Yaw Donkor. After
his appointment the first
defendant applied for Letters of
Administration in respect of the
estate of Yaw Donkor and in
attempt to vest H/NO. KO 47 in
Amma Biyaa branch of the family,
included the said house in the
inventory thereof. The plaintiff
entered a caveat and the result
is the present suit, principally
to determine the ownership of
H/NO. KO 47, Kumasi. The trial
court gave judgment in favour of
the plaintiff. The conclusion of
that judgment which is at page
99 of the record of appeal is
reproduced below as follows:
“There is
also evidence that both members
of the Obiyaa and Kune branches
of Anokyewaa family live in the
disputed house. So that the
plaintiff has successfully
rebutted the presumption that
Kwasi Wono is the legal as well
as the beneficial owner. On the
issue of advancement, my
reaction is that it does not
arise in uncle – nephew
relationship. It stands with
those in locus parentis to the
child for example father and
child. Secondly where it exists,
it is rebuttable. From the
evidence on record, Teppa, his
wife and children were living in
the disputed house as well as
other family members. Therefore
Teppa did not intend to gift KO
47, Kumasi to Kwesi Wono. From
the foregoing therefore, I find
that Kwesi Wono was only a
nominal purchaser of KO 47,
Kumasi. The real owner -was
Kwesi Teppa. That being the
case, the defendants cannot say
that the property is the self
acquired property of Wono and
that they as the immediate
family should succeed. Kwasi
Teppa and Amuzu were the
children of Anokyewaa and they
died intestate. Therefore I make
a finding to that effect.” (The
emphasis is mine.)
The
defendants appealed and filed
two grounds of appeal namely:
(a) The judgment is against the
weight of the evidence, (b) The
judgment is wrong in law. The
written submissions of counsel
for both parties for obvious
reasons dwelt mainly on the
finding by the trial court that
Kwasi Wono was nominal
purchaser of the house in
dispute. At page 145 of the
record of appeal the majority
judgment of the Court of Appeal
reads as follows:
“The finding
by the trial judge that Kwesi
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 Kwesi
Teppa as mortgagee exercising
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 N/No. KO 47 is
the property of the entire
Anokyewaa family of Mpatuam,” a
relief that 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. Kwesi
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. K0 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 Kwesi Wonoo,
the Akua 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 the
House No. KO 47 is the property
of the entire Akua Anokyewaa
family.
The evidence
went further than that 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. KO
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 should not
have agreed with the respondent
that Kwesi 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. KO 47 and on his death
intestate, the persons entitled
to succeed to that house are
members of his immediate
family”
At the close
of pleadings the main and
fundamental issue which could
determine the outcome of the
case is “Whether Kwasi Wono, now
deceased, was the nominal
purchaser of House No. KO 47,
Kumasi”. It is only in context
of the resolution of that issue
that the second issue for trial
could be determined by the
court. The second issue for
determination by the court is
“Whether or not House No. KO 47
is the property of the entire
Akua Anokyewaa family of
Mpatuam-Ashanti”. It means when
the court gives a decision as to
whether Kwasi Wono was the real
purchaser or a mere nominal
purchaser of the house in
dispute we would be left in no
doubt as to the implication in a
decision relating to the second
issue as to whether or not the
house in dispute is the property
of the entire Akua Anokyewaa
family. In her judgment the
trial judge leaves us in no
doubt as to her decision on the
two issues. As a reminder we
reproduce the relevant portion
of part of her judgment which is
quoted above.
“From the
foregoing therefore, I find that
Kwesi Wono was only a nominal
purchaser of KO 47, Kumasi. The
real owner was Kwasi Teppa. That
being the case, the defendants
cannot say that the property is
the self acquired property of
Wono and that they as the
immediate family should succeed.
Kwasi Teppa and Amuzu were the
children of Anokyewaa and they
died intestate. Therefore I make
a finding to that effect.” (The
emphasis is mine.)
From the
decision of the trial court what
becomes clear is that Kwasi Wono
is adjudged a mere nominal
purchaser of the house in
dispute while Kwasi Teppa is
pronounced the real owner. The
trial court then further
expressed the effect of its
decision. That is, since the
house in dispute was not the
self acquired property of Kwasi
Wono his immediate family, that
is Amma Biyaa’s family should
not succeed to that property.
Upon the death intestate of
Kwasi Teppa, the real owner of
House No. KO 47, his self
acquired property including the
house in dispute becomes the
property of the entire Akua
Anokyewaa’s family. We think
this adequately disposes of the
supposed ambiguity in the trial
court’s judgment in respect of
the first leg of the plaintiff’s
claim which the majority
judgment of the Court of Appeal
commented upon.
It is the
trial court that has the
exclusive right to make primary
findings of fact which would
constitute building blocks for
the construction of the judgment
of the court where such findings
of fact are supported by
evidence on the record and are
based on the credibility of
witnesses when the trial
tribunal has had the opportunity
and advantage of seeing and
observing their demeanour and
has become satisfied of the
truthfulness of their
testimonies touching on any
particular matter in issue. In
the case of Cross v. Hillman
Ltd. [1969] 3 WLR 787 at 798,
C.A. Lord Widgery cautioned that
an appellate court “... which
sees only the transcript and
does not see the witnesses, must
hesitate for a very long time
before reaching a conclusion
different from the trial judge
as to the credibility and
honesty of a witness”. The
appellate court can only
interfere with the findings of
the trial court if they are
wrong because (a) the court has
taken into account matters which
were irrelevant in law, (b) the
court excluded matters which
were critically necessary for
consideration, (c) the court has
come to conclusion which no
court properly instructing
itself would have reached and
(d) the court’s findings were
not proper inferences drawn from
the facts. See the case of Fofie
v. Zanyo [1992] 2 GLR 475.
However, just as the trial court
is competent of make inferences
from its specific findings of
fact and arrive at its
conclusion, the appellate court
is entitled to draw inferences
from findings of fact by the
trial court and to come to its
own conclusions. See also Kofi
(Oppong) v. Fofie [1964] G.L.R.
174, S.C.; Praka v. Ketewa
[1964] G.L.R. 423, S.C.; Azagba
v. Negov [1964] G.L.R. 450,
S.C.; Asibey III v. Ayisi [1973]
1 G.L.R. 102. In Adorkor v.
Gatsi [1966] G.L.R. 31 at 34,
S.C., the Supreme Court summed
up appellate powers as follows:
"The law
governing this is that while
findings of specific facts are
within the competency of the
trial court alone, a finding of
fact which is an inference to be
drawn from specific facts found
is within the competency of an
appeal court no less than the
trial court; in other words, an
appeal court is in as good a
position as the trial court to
draw inferences from specific
facts which the trial court may
find."
What the
Court of Appeal set aside in the
Fofie v. Zanyo case (supra) were
not inferences draw from facts
but the very findings on
specific facts of the trial
judge. This court therefore
ruled that since the conclusions
of the trial court were
supported by the evidence, most
of which were supplied by the
plaintiff and his witnesses
there was no lawful warrant for
the Court of Appeal to differ
from the findings of the trial
court.
Unfortunately
what the Court of Appeal set
aside in the instant appeal were
not inferences drawn from the
facts arrived at by the trial
court but the very crucial
finding of fact upon which its
final decision was based. In
coming to the conclusion that
Kwasi Wono was a mere nominal
purchaser of the house in
dispute the trial court took
into account the evidence
adduced in support of the
plaintiff’s case to the effect
that following the purchase of
the house in the name of Kwasi
Wono, he had nothing to do with
that house and he did not have
the benefit of living in that
house immediately. Right from
the onset it was Kwasi Teppa,
the real owner of the house in
dispute who went to occupy the
house with his brothers and
their families. It was not until
the Kwasi Wono became successor
to the estate of Kwasi Teppa,
his maternal uncle that he went
to live in the house in dispute.
Now let us
look at how the majority
decision of the Court of Appeal
dealt with the finding of fact
by the trial court to the effect
that Kwesi Wono was a mere
nominal purchaser of the house
in dispute. In the first place
part of the majority judgment of
the Court of Appeal quoted above
intimates that “the finding …
was not founded on solid
evidence.” It would be expected
that the majority decision of
the Court of Appeal would have
gone on to demonstrate how wrong
the trial court went in arriving
at its decision that Kwasi Wono
was a mere nominal purchaser of
House No. KO 47, Kumasi, the
real owner being Kwasi Teppa.
However in conclusion, the
majority decision of the Court
of Appeal held that Kwasi Wonoo
was both the legal and
beneficial owner of House No. KO
47, and on his death intestate,
the persons entitled to succeed
to that house are members of his
immediate family. Thus the Court
of Appeal set aside the primary
finding of fact, which the trial
court arrived at in exercise of
its exclusive jurisdiction
without demonstrating how the
trial court went wrong. In the
case of Praka v. Ketewa [1964]
GLR 423 this court held that
where an appellate court sets
aside the findings of a trial
court without good ground, or
upon grounds which do not
warrant such interference with
the findings made by the trial
court, a higher court will set
that judgment aside. In our
opinion since the Court of
Appeal did not demonstrate how
the trial court went wrong in
its decision to set aside the
finding of the trial court that
Kwesi Wono was a nominal
purchaser that decision is
without legal basis. For the
reasons given in this judgement
we allow the appeal, set aside
the judgment of the Court of
Appeal and enter judgment for
the plaintiff.
B. T.
ARYEETEY
JUSTICE OF
THE SUPREME COURT
W. A. ATUGUBA
JUSTICE OF
THE SUPREME COURT
DR. S.K.
DATE-BAH
JUSTICE OF
THE SUPREME COURT
J.
ANSAH
JUSTICE OF
THE SUPREME COURT
N. S.
GBADEGBE
JUSTICE OF
THE SUPREME COURT
COUNSEL:
ISAAC KWABENA
ANTWI FOR THE
PLAINTIFF/RESPONDENT/APPELLANT
SIR DENNIS
ADJEI FOR THE
DEFENDANTS/APPELLANTS/RESPONDENTS
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