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JUDGMENT
BY COURT:
This is an appeal by the
Defendant Abubaka Bolanle
Peregrino Brimah, against the
Judgment of her Worship Mrs.
Olivia Obeng Owusu, the then
District Magistrate at District
Court, Community Centre, Accra
on 11th April, 2008.
In the said Judgment, the
District Magistrate held that
the store in house Number C/35/9
Accra New Town is owned jointly
by the Plaintiff and her
siblings, and that the Defendant
should pay GH¢500.00 as general
damages for usurping the
Plaintiff’s authority and right,
and that the Defendant or any
illegal tenant is ordered to
surrender vacant possession of
the store on or before 30th
April, 2008.
That the Defendant was also
restrained from further dealings
with the store, and to account
for rents collected. The facts
of the case as disclosed by the
record of proceedings are as
follows:
That the parties are first
cousins from a common
grandmother, the Plaintiff
Respondent being the daughter of
a female child and the Defendant
– appellant being the son of a
male child of the common
grandmother.
The Plaintiff claimed that a
store room in house number C
35/9 New Town, Accra, which
house was built on land which
belonged to their grandmother
was given to her and her
siblings, when the rooms in the
house was distributed. The
Defendant had rented same out
and pocketed the rent because
she was not in the country and
had refused to surrender same
when she made a demand for it.
The Defendant also claimed that
the store room was for him since
the house was built by his
father, who died in 1967, but
because he was too young at that
time; his mother took care of
the said store till Defendant
was of age. The Defendant
denied that any distribution
took place.
The third ground of appeal,
which the appellant argued
first, is as follows “The
learned trial Judge erred in not
dismissing Plaintiff’s claim
when she found that a lease
agreement tendered by the
Plaintiff, and which formed the
basis of her claim was not
signed by Aziz Peregrino
Braimah.
From the Judgement of the Trial
Magistrate, one can see that she
did not rely on exhibit ‘G’ as
the basis for her Judgment. She
however stated in her Judgment
that she found the Plaintiff and
her two witnesses credible. She
is the person who saw the
witnesses, and she believed
them. The Defendant appellant
has also not shown any evidence
from the record that should make
me reverse the findings of fact
that “the land on which the
house in which the store in
dispute forms part belonged to
the Plaintiffs family”.
I will however add that since
the parties are from the same
grand mother, the land is not
only for the Plaintiff’s family
as held by the Magistrate but
for the family of both Plaintiff
and Defendant, tracing their
root from the same grandmother.
From the evidence one can see
that Alhaji Bashiru Peregrino
Brimah and the other Children of
his mother permitted the
Defendant’s father to develop
the land and use it for 30
years. This 30 years expired in
1996. In 1998, Alhaji Bashiru
Peregrino Brimah shared the
property on the land amongst his
brothers and sisters and gave
the store in dispute to the
Plaintiff’s mother.
The Defendant did not lead any
evidence to show how his father
became the owner of the land on
which the house was built. If
there was no agreement between
the Defendant’s father and his
siblings, the rooms in the house
built by the Defendant’s father
would have been shared, after
the death of the Defendant’s
father in 1967, since the law is
that a person who develops
family property has only a life
interest. Ref Biney vrs. Biney
(1965) GLR 619, Osei Yaw and
Anr. Vrs. Domfe (1965) GLR 418
Holding 2, Amissah-Abadoo vrs
Abadoo (1974) 1 GLR 110.
However, since the Defendant’s
father’s siblings knew that they
had entered into an agreement
with their brother, being the
Defendant’s father, they did not
disturb the agreement contained
in exhibit ‘G’ even though the
Defendant’s father did not sign
that exhibit.
When exhibit ‘G’ was being
tendered, it was said the
Defendant himself tendered that
same document at Adjabeng Court
as exhibit ‘D’. This the
Defendant did not deny. On the
face of exhibit ‘G’ one can see
that exhibit ‘D’ with the date
19th April, 2006 has
been written on it. This “D” may
be the number of that exhibit at
Adjabeng District Court.
Since the Defendant had used
exhibit ‘G’ at Adjabeng District
Court as exhibit ‘D’, the
Plaintiff had the right to
tender the same exhibit, under
Section 80 of the Evidence Act,
1975 (N.R.C.D. 323) to attack
the stand of the Defendant that
since his father never signed
exhibit ‘G’ it cannot bind him.
I am therefore of the view that
even if the Trial Magistrate had
relied on exhibit ‘G’ she could
not have been faulted on the
ground that it was not signed by
the Defendant’s father and not
registered.
In the case of West African
Enterprises Ltd vrs. Western
Hardwood Enterprise Ltd
(1995-96) 1 GLR 155, the Court
of Appeal held in one of its
holdings that “… when in a trial
any exhibit was found to be
ineffective and invalid and thus
inadmissible as exhibit ‘B’ was
in the instant case, the Court
should consider further whether
apart from the inadmissible
exhibit, there was no other
evidence to support the party’s
claim. Where there were
admissible evidence and
materials on record to sustain
the party’s claim as was the
case in the instant case, the
court was duty bound to consider
those matters. Accordingly the
invalidity and inadmissibility
of an exhibit did not mean the
automatic failure of that
party’s claim unless from the
pleadings and evidence the claim
could not be sustained on any
other ground apart from that
exhibit……”
The Judgment of the Court of
Appeal in the above cited case
was affirmed by the Supreme
Court in Western Hardwood
Enterprises Ltd and Anr. Vrs.
West African Enterprise Ltd
(1998-99) SCGLR 105, and
therefore I have no hesitation
in relying on the holding of the
Court of Appeal referred to
above.
In the present case before me,
even though the Trial Magistrate
did not rely on exhibit ‘G’
which I am of the view that she
should have, because the
Defendant himself had previously
relied on it in a suit and was
also not the instrument that the
Plaintiff relied on as the basis
of her claim, but tendered it
only to show that the
Plaintiff’s father had
possession of the land because
of exhibit ‘G’, the Plaintiff
called the common uncle of the
parties Alhaji Bashiru Peregrino
Braimah who testified on how
exhibit ‘G’, came into
existence, and the role that he
played in the preparation of
exhibit ‘G’. Since the Trial
Magistrate believed Alhaji
Bashiru Peregrino Brimah, I also
have no basis in disbelieving
his evidence. Again the Trial
Magistrate believed the
Plaintiff’s case that “the name
‘Wura’ was the name of her
maternal grandmother and
disbelieved the Defendant’s case
that ‘Wura’ was part of his
father’s name.
From the evidence on the
record, I also support such
findings. On the authority of
Ntiri and Anr. Vrs. Essien and
Anr. (2001- 02) SCGLR 451, I do
not find myself competent to
disturb these findings of facts
made by the Trial Court, as she
saw the witnesses and gave
reasons as to why she preferred
the Plaintiff’s case and
rejected the Defendant’s case.
Ground ‘C’ of the appeal
therefore fails.
The next ground of appeal, which
was argued, is as follows:
“The learned Trial Judge erred
in not dismissing Plaintiff’s
claim having found that the
documents tendered by the
Plaintiff did not support her
claim.”
The Defendant appellant has not
shown which documents the Trial
Court found that they did not
support the Plaintiff’s claim
except exhibit ‘G’. With regard
to exhibit ‘J’ which the
appellant has submitted that it
does not support the Plaintiff’s
claim, the Trial Magistrate did
not say so. The Trial
Magistrate stated as follows
“Exhibit J, the head lease shows
that the entire property of
which the store forms part was
leased to the Plaintiff’s family
by the Ga Stool for 99 years.
Exhibit ‘J’ was not challenged
by the Defendant as not being
genuine. He is thus deemed to
admit that exhibit ‘J’ was duly
executed”.
Exhibit ‘J’ being a Confirmatory
Deed, shows that on 24th
October 1957, a 99 years lease
was made by the Gbese, Ga and
the Korle priest to seven
persons. The lease did not
describe who these persons are
but from the evidence on record,
these persons may be brothers
and sister.
The persons mentioned in exhibit
‘J’ as the persons given the
lease in 1957 were Alhajia Abiba
Alawiye, Mohamed Bashir
Peregrino Brimah, Aziz Peregrino
Brimah (described as deceased on
8th August 1999)
Mashud Peregrino Braimah, Sidi
Peregrino Braima, Mishulu
Peregrino Brimah and Islamiya
Olabisi Peregrino Brimah.
The names of the Plaintiff’s
mother, the Defendant’s father
and P.W. 2’ appeared in exhibit
‘J’. P. W. 2 said the
Plaintiff’s Mother Olabisi
peregrine Braima and the
Defendant’s father Aziz
Peregrino Braima were his sister
and brother respectively. Again
P.W. 2 gave evidence that they
were five brothers including
himself and 3 sisters. Two of
the sisters were dead at the
time he gave evidence and one
was alive. That their mother
was Wura Peregrino Brimah. What
exhibit ‘J’ suggests is that it
is the children of Wura
Peregrino Brimah who took a
formal lease in their name.
There is no indication as to
where their mother was in 1957
when the lease was executed but
considering the fact that the
children of Wura Peregrino took
a lease in their joint name and
considering the further fact
that property rate on the house
was paid in the name of Wura P.
Brimah and P.W. 2 says their
mother was Wura Peregrino Brimah
as shown by exhibit ‘H’ with the
old house number being C 370/9,
one may say that Wuro P. Brimah
occupied the land without a
formal lease. Considering the
state of Accra New Town in those
days, that is before 1957 when
the lease was prepared, it may
not be strange that Wuro P.
Brimah occupied the land without
a formal lease, but paid
property rate to the
Government. This may explain
why her children took a lease in
their own name in 1957,
presumably after her death.
In the case of In re Koranteng
(Deceased); Addo vs. Koranteng
and others (2005-06) SC GLR
1039, the Supreme Court held in
its holding 2 that “under
Section 25(1) of the Evidence
Decree, 1975 (N.R.C.D 323), the
facts recited in a written
document were conclusively
presumed to be true as between
the parties to the document or
their successors in interest ……”
Since in 1957, the Defendant’s
father, Aziz Peregrino Braimah,
together with his brothers and
sisters took a 99 years lease of
the land on which the house in
dispute stands, from the Korle
Wulomo, Gbese Mantse and the Ga
Mantse which lease was numbered
as P. d. AC 5623/57- A9946, the
Defendant is estopped per
exhibit ‘J’ from claiming that
the land belonged to his father.
Even though the Defendant claims
the house belonged to his
father, he has not been able to
produce any indenture covering
the land. To cover up this
shortcoming, the Defendant gave
evidence that his father’s name
is Aziz Wura Peregrino Brimah.
However exhibit ‘K’ which the
Defendant admitted was the
property rate in respect of
another house of his father,
bore the name Aziz Peregrino
Brimah. In paragraph 5 of his
Statement of Defence, the
Defendant gave his father’s name
as Aziz Peregrino Brimah.
Since the Defendant did not
produce any document to show how
his father came by the land, but
the Plaintiff was able to show
per exhibit ‘J’ which exhibit
also showed that in 1959, the
Defendant’s father and his other
brothers and sisters took a
lease in their joint names, I
reject this ground of appeal
also.
On the last ground of appeal
being that “the decision is
against the weight of evidence”,
the appellant referred the Court
to the Plaintiff’s evidence that
the land on which the house in
dispute is situated is in her
grand mother, Wura Peregrino
Brimah’s name but no evidence
was led to prove how she became
the owner of the plot, the
Plaintiff’s case should have
been dismissed.” I have already
discussed exhibits ‘G’ and ‘J’
and do not intend to repeat same
except to say that this argument
is not supported by the evidence
on record.
It must be noted that in a
trial of this nature all parties
must succeed on the strength of
their own case, but not on the
weakness of the other’s case.
In the case of ADWUBENG vrs.
DOMFEH (1996-97) SCGLR 660, the
supreme Court held that Section
11(4) and 12 of the Evidence
Decree, 1975 (NRCD 323) (which
came into force on 1st
October 1975) have clearly
provided that the standard of
proof in all civil actions was
proof by preponderance of
probabilities – no exceptions
were made. In the light of the
provisions of the Evidence
Decree, 1975, cases which had
held that proof in titles to
land required proof beyond
reasonable doubt no longer
represented the present state of
the law.
The Plaintiff called P. W.1 who
is the common cousin of the
parties, and P.W.2 the common
uncle of the parties and their
head of family. All of them
gave evidence that the house is
a family property since the land
belonged to their grand mother
and mother respectively. P. W.
2 also gave evidence on how
exhibit ‘G’ came into
existence. Again P.W.2 said he
shared the rooms in the house
after the 30 years term granted
to the Defendant’s father had
expired. Exhibit ‘D’ which is
the list of the sharing shows
that all the 8 children of Wura
Peregrino Brimah had a share of
the house.
The Defendant on the other hand
could not explain how his father
came by the land. In an attempt
to connect his father to exhibit
‘H’ the Defendant appellant
lied. His Statement of Defence
and exhibit ‘K’ exposed him.
Again, P. W. 2, the head of
family and the son of Wura
Peregrino Brimah who is a lawyer
and a retired career diplomat,
also gave the Defendant’s
father’s name as Abdul Aziz
Peregrino Brimah. Since these
are all factual matters, and the
appellant has not been able to
show how the trial Magistrate
faulted in these finding the
argument of the Defendant
appellant fails and the appeal
is dismissed.
The Plaintiff Respondent is
awarded cost of GH¢2.000.00.
Counsel:
Mr. Frank Adeeku for Plaintiff
Respondent
Mr. James Mensah Kulley for
Defendant
(SGD)
MR. JUSTICE S.H. OCRAN
Justice of
the High Court
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