By his will, the late
Ofori-Panin bequeathed shares in
his company, Beyeeman Freezing
Company Limited, and devised his
house to his children. The
plaintiff filed a writ in the
High Court for a declaration
that the shares of the company
were held on trust by the late
Ofori-Panin for her late
husband. Before the hearing of
evidence, the plaintiff filed a
notice of amendment of the
statement of claim in which she
laid claim to the house also.
The amendment was allowed before
the plaintiff opened her case
but no amended claim was filed.
A day before closing addresses
the plaintiff’s counsel again
applied for, and obtained, leave
to amend the statement of claim
by amplifying the claims to the
house and the company. Again,
the plaintiff omitted to file an
amended statement of claim. At
the hearing, the plaintiff and
her witnesses testified in
support of the claim, that the
plaintiff’s husband formed a
partnership firm, Linasek and
later, Edwards Ltd with the
testator. When these failed the
plaintiff’s husband bought four
trucks on hire purchase for the
testator to operate his
business, the Akan General
Contracting Co. It was alleged
that the testator sold those
trucks and invested the proceeds
in the disputed house and
Okumkom Cold Stores, a company
that dealt in meat products and
ice blocks. Okumkom Cold Stores
was taken over by Beyeeman
Freezing Co Ltd, which was
allegedly financed from a bank
loan for which the plaintiff’s
husband offered his property
known as the Ringway Hotel as
collateral. The trial judge
accepted the testimony of the
plaintiff and her witnesses that
the testator had admitted to her
and other witnesses in his
lifetime that he had sold the
trucks and made use of the
money. In language that insulted
and denigrated the testator the
trial judge accepted the
admission by the testator as
against his interest and ordered
that the shares be registered in
the name of the plaintiff. He
also declared the plaintiff as
the absolute owner of the
disputed house.
Aggrieved by the judgment, the
defendants appealed to the Court
of Appeal, which reversed and
set aside the judgment of the
trial court. The court held that
the only claim before the trial
court was the claim for the
shares as originally endorsed on
the writ of summons, the
plaintiff having omitted to file
the amended documents. The trial
judge therefore erred in
considering the claim to the
house. The court held also that
evidence against a deceased
person ought to be viewed with
suspicion and accordingly
rejected the alleged admission
by the testator as a
fabrication, and dismissed the
plaintiff’s claim altogether.
The plaintiff appealed to the
Supreme Court and contended that
the decision of the Court of
Appeal was wrongful. The
plaintiff contended further that
in so far as the court raised
the issue of amendment
suo motu and without
hearing the plaintiff it had
violated the provision in rule
8(6) of LI 218. Counsel
submitted further that the
evidence of the admission by the
testator was admitted without
objection and that it was not
open to the Court of Appeal to
discredit the plaintiff’s
testimony in that regard.
Held,
Osei-Hwere JSC dissenting:
(1) Under Order 28 r 7 of
the High Court (Civil Procedure
Rules) 1954 (LN 140A), an order
granting leave to amend lapsed
after the time specified in the
order or 14 days after the
order, if the amended documents
were not filed as provided in
rules 8, 9 and 10 of the Order
were not complied with, unless
the court extended time. As the
amended documents were not
filed, the order for amendment
became ipso facto void
under Order 28 rule 7.
Accordingly, there was no
amendment before the court
regarding the house and the
decision of the trial court
regarding that house was void.
Ayiwah v Badu [1963] 1
GLR 86, SC, Safo-Adu v
Boampong [1976] 1 GLR 321
applied.
(2) The Court of Appeal rightly
rejected the evidence of the
alleged admission by the
deceased against his interest,
as there was the tendency for
interested parties to invent
stories against deceased persons
in the knowledge that they could
not be contradicted. An
admission of such nature ought
to be clear and unequivocal,
leaving no doubt that the maker
intended to make the statement
against his pecuniary or
proprietary interest. As no one
had laid claim to the properties
in issue at the material time
that the deceased allegedly made
the admission, it could not be
said that he made the statement
in the knowledge that it was
against his interest. The
evidence of the alleged
admission was therefore
inadmissible. Moses v
Anane [1989-90] 2 GLR 694,
CA, Re Perton, Pearson v A-G
(1885) 53 LT 707, Flood v
Russel (1892) 29 LR Ir 91,
Tucker v Oldbury Urban
District Council [1912] 2 KB
317 CA, Bamiro v Societe
Commerciale l’Ouest Africain
(1941) 7 WACA 150 mentioned.
Per
Osei-Hwere JSC
dissenting: The new requirement
now projected by this court to
make declarations against
interest by deceased persons
admissible is that at the time
the declarations are made a
claim must have been laid
against that interest of the
deceased or a dispute must be
pending. I am unable to share
that view. It cannot be laid
down as a legal dogma that a
declaration against interest
made ante litem motem or
when no claim has been made is
inadmissible.
(3) The evidence of the alleged
admission though not objected to
at the trial ought to have been
rejected by the trial judge as
inadmissible. Where evidence was
inadmissible because the facts
in proof had not been pleaded,
the judge was under no duty to
exclude it and its admission at
the trial without objection
could not be questioned on
appeal. Where, however, the
evidence was inadmissible to
prove even pleaded facts, there
was a duty on the judge to
exclude such evidence even if no
objection was raised, and it
would be excluded even on
appeal. Hearsay evidence not
coming within the exceptions
mentioned in the Evidence Decree
1975 (NRCD 323) was of the
latter kind and must be excluded
even on appeal. Poku v
Frimpong [1972] 1 GLR 230
CA, Dumgya v Sports Council
[1974] 1 GLR 429 CA,
Tormekpe v Ahiable [1975] 2
GLR 432 CA, Abowaba v
Adeshina (1946) 12 WACA 18,
Yartey v Construction &
Furniture (WA) Ltd [1962] 1
GLR 86 SC, Adejumo v Adegunde
[1965] GLR 499 SC mentioned.
(4) Rule 8(1) of LI 218 which
provided that an appeal was by
way of rehearing, entitled the
Court of Appeal to entertain
matters not contained in the
notice of appeal filed. In
certain special circumstances,
such as in void matters where
the party against whom the point
is taken can have no legal or
satisfactory answer if given the
opportunity to reply, the court
needs not comply with the
provision to rule 8(6).
Per
Wuaku JSC: I was
not happy about the language
used in the judgment of the High
Court and the Court of Appeal
describing some of the
witnesses. I am equally appalled
by the language by which learned
counsel in referred to the
judgment of the Court of Appeal.
If a judgment contains bad
language that is no criterion
for counsel to use equally bad
language in presenting his case.
Such conduct does no credit to
the court and counsel appearing
before it with such language
rather tarnishes the image of
the court and counsel alike.
Per
Amua-Sekyi JSC: I
think, however, that in this
regard, Hayfron J has himself to
blame. Not only did he make
findings on the evidence
adduced, but also went out of
his way to insult and denigrate
Ofori-Atta who, being dead had
not had the opportunity of
stating his version of the
facts. They are best not
repeated here except to say that
such language lays a judge open
to the charge of bias.
Per
Kpegah JSC: No court
worth its dignity will fear
criticism or resent it. Counsel
appearing in an appeal owes a
duty to convince the appellate
court that the lower court is
wrong but he must do so with as
much courtesy as possible and
must keep out the personality of
the judge. Arguments ad hominem
are not part of the
legitimate duties of counsel on
appeal. For it must be
remembered that from the nature
of our office a judge cannot
reply to criticisms of his
conduct of a case. The
hierarchical system of the
courts is an implied admission
that judges can be mistaken in
their decisions.
Cases referred to:
Abowaba v Adeshina
(1946) 12 WACA 18.
Adejumo v Abegunde
[1965] GLR 499, SC.
Ayiwah v Badu
[1963] 1 GLR 86, SC.
Bamiro v Societe Commerciale
l’Ouest Africain
(1941) 7 WACA 150.
Briscoe (R T), (Ghana) Limited v
Preko
[1964] GLR 322, SC.
Carl Zeiss Stiftung v Herbert
Smith (No 2)
[1969] 2 Ch 276, [1969] 2 WLR
427, [1969] 2 All ER 367, CA.
Clack v Wood
(1882) 9 QBD 276.
Coles and Ravenshear, Re
[1907] 1 KB 1, 76 LJKB 27, 95 LT
750, 23 TLR 32, CA.
Cummins, Re, Cummins v Thompson
[1971] 3 All ER 782, [1972] Ch
62, [1971] 3 WLR 580, 115 Sol Jo
567, CA.
Dumgya v Sports Council
[1974] 1 GLR 429, CA.
Earp v Henderson
(1876) 3 Ch D 254.
England v Palmer
(1955) 14 WACA 659.
Flood v Russel
(1892) 29 LR Ir 91.
Garnett Re, Gandy v Macauley
(1885) 31 Ch D 1, CA.
Gissing v Gissing
[1971] AC 886, [1970] 3 WLR 255,
[1970] 2 All ER 780, 114 SJ 550,
HL, reversing [1969] 2 Ch 85,
[1969] 2 WLR 525, 113 SJ 187,
[1969] 1 All ER 1043, CA.
Gleadow v Atkin
(1833) 1 Cr & M 2 LJ Ex 153, 3
Tyr 289, 38 RR 635, 149 ER 459.
Hausa v Hausa
[1972] 2 GLR 469, CA.
Hodgson, Re, Beckett v Ramsdale
(1885) 31 Ch D 177, [1881-85]
All ER Rep 932, 55 LJ Ch 241, 54
LT 222, 34 WR 127, 2 TLR 73, CA.
Hussey v Palmer
[1972] 3 All ER 744 [1972] 1 WLR
1286, 116 Sol Jo 567, CA.
Krah (Dec’d), Re, Yankyeraah
v Osei-Tutu [1989-90] 1
GLR 638, SC.
MacFoy v United Africa Co Ltd
[1962] AC 152, [1961] 3 WLR
1405, [1961] 3 All ER 1169, 105
SJ 1067, PC.
Majolagbe v Larbi
[1959] GLR 190.
Mechanical Lloyd Assembly Plant
v Nartey
[1987-88] 2 GLR 598, SC.
Moses
v Anane [1989-90] 2 GLR
694, CA.
Mosi v Bagyina
[1963] 1 GLR 337, SC.
Murdoch v Murdoch
(1974) 41 DLR (3d) 367.
Nkrumah v Ataa
[1972] 2 GLR 13.
Nyame v Tarzan Transport
[1973] 1 GLR 8, CA.
Okudzeto v Commissioner of
Police
[1964] GLR 588, SC.
Percival v Nanson
(1851) 7 Exch 1, 21 LJ Ex 1.
Perton, Re, Pearson v A-G
(1885) 53 LT 707, 1 TLR
655.
Poku v Frimpong
[1972] 1 GLR 230, CA.
Powell v Streatham Manor Nursing
Home
[1935] AC 243, HL.
Purnell v Great Western Railway
Co
(1876) 1 QBD 636, 45 LJQB 687,
35 LT 605, 24 WR 909, 3 Char
President Cas 434, CA.
R v Commissioner of Police of
the Metropolis, ex parte
Blackburn
No 2 [1968] 2 WLR 1204, [1968] 2
QB 150, [1968] 2 All ER 319, CA.
Safo-Adu v Boampong
[1976] 1 GLR 321, CA.
Selangor United Rubber Estate v
Cradock (No 3)
[1968] 2 All ER 1073, [1968] 1
WLR 1555.
Smith v Blakey
(1867) LR 2 QB 326, 8 B & S 157,
36 LJQB 156, 15 WR 492.
Sugden v St Leonards (Lord)
(1876) 1 PD 154, CA.
Tasmania (Shipowners and Freight
Owners) v Smith City of Corinth
(Owners), The Tasmania
(1890) 15 App Cas 223, 63 LT 1,
6 Asp MLC 517, HL.
Thomas v Times Book Co Ltd
[1966] 2 All ER 241, [1966] 1
WLR 911, 110 Sol Jo 252.
Thynne (Marchioness of Bath) v
Thynne (Marquins of Bath)
[1955] P 272, [1955] 3 All ER
129, [1955] 3 WLR 645, 99 Sol Jo
580, CA.
Tormekpe v Ahiable
[1975] 2 GLR 432, CA.
Tucker v Oldbury Urban District
Council
[1912] 2 KB 317, 81 LJKB 668,
106 LT 669, 5 BWCC 296, CA.
Watt (or Thomas) v Thomas
[1947] 1 All ER 582, [1947] SC
(HL) 45, [1948] SLT 2, [1947] AC
484, [1948] LJR 515, 176 LT 49,
63 TLR 314, HL.
Whaley v Masserene (1863)
8 Ir Jur (NS) 281.
Yartey v Construction &
Furniture (WA) Ltd
[1962] 1 GLR 86, SC.
Yeboa v Bofour
[1971] 2 GLR 199, CA.
Zabrama v Segbedzi
[1991] 2 GLR 221, CA.
APPEAL from the judgment of the
Court of Appeal reversing the
decision of the High Court.
Joe Reindorf
(with him Adumua-Bossman
) for the appellant.
E D Kom,
SAG (with Charles Hayibor,
George Kom and R Agodzo)
for the respondents.
KPEGAH JA.
This appeal came to us from a
judgment of the Court of Appeal,
setting aside the decision of
the High Court dated 27 January
1992. On 1 October 1982, the
plaintiff took out a writ of
summons against the defendants
claiming the following reliefs:
“(a) A declaration that the
shares held by the late
Ofori-Panin Ofori-Atta
(deceased) in Beyeeman Freezing
Company Limited were held by him
upon trust for the late husband
of the plaintiff or (b) Further
or other reliefs as in the
circumstances may be just.”
The claim was said to have been
amended to include a claim to
the ownership of house No 1203,
Kaneshie Housing Estate Accra.
The plaintiff, Mrs Adeline
Akufo-Addo, is the widow of the
late Edward Akufo-Addo, onetime
Chief Justice of this country
and later its President. The
plaintiff’s action is against
the executors of the will of one
Ofori-Atta, a brother of the
full blood of the plaintiff. By
his will, Ofori-Panin
Ofori-Atta, who died in a tragic
lorry accident, devised certain
shares in Beyeeman Freezing
Company Limited of which he was
the Managing Director, and house
No 1203, Kaneshie Estate, Accra
as the absolute and beneficial
owner, to his children. The
plaintiff disputes that the
properties belong to her
deceased brother and contends
that although he held the legal
title to these properties, he
was a trustee for her late
husband, Edward Akufo-Addo, for
the benefit of his estate.
According to the plaintiff, the
trust was created by operation
of law.
The plaintiff and her witnesses
gave evidence on the basis of
her claim. Documents were also
tendered by her. According to
the plaintiff, her brother,
Ofori-Panin Ofori-Atta, who was
then unemployed, joined her in
Accra in 1941. She found a job
for him as a clerk at the
Barclays Bank, where he worked
until 1946. Her brother asked
her to plead with her late
husband to assist him do
business, where he had had some
experience. Her husband agreed
to the proposal and got one
Amua-Sekyi and Ofori-Atta
together and registered a
company called Linasek. The
working capital of this company
was provided by her late
husband. The company traded in
suiting materials, the
speciality of Mr Amua-Sekyi.
Ofori-Panin Ofori-Atta was fond
of giving credit to customers.
This practice was unacceptable
to Mr Amua-Sekyi who found it
inconvenient to be going round
debt collecting. He therefore
withdrew from the company. This
occurred in 1954.
Linasek was taken over by
Edwards Limited which also
collapsed as a result of the
mismanagement of Ofori-Panin
Ofori-Atta. Edwards Limited
folded up in 1957. Ofori-Panin
Ofori-Atta had a brief sojourn
in the Volta Region and
resurfaced with a proposal to
the plaintiff’s late husband
that he wanted to go into a sand
and stone business. The Tema
Harbour was then under
construction. A company, the
Akan General Construction Co,
was registered and the
plaintiff’s husband bought
trucks on hire-purchase for the
business. At the same time, one
M K Apaloo also approached the
plaintiff’s husband with the
same suggestion; so he bought
eight tipper trucks, four of
which were given to Ofori-Panin
Ofori-Atta and the other four to
Modesto Apaloo. This business
also went the way the others
did, it collapsed. Meanwhile,
Apaloo was arrested and his
vehicles were said to have been
given to the plaintiff’s brother
for his sand and stone business.
After the collapse of
Ofori-Panin Ofori-Atta’s
business, he sold all the eight
vehicles, paid a deposit on the
Kaneshie house and invested the
rest of the proceeds in Okumkom
Cold Store. This business
flourished. Ofori-Panin
Ofori-Atta was said to have
invested part of the monies
realised from the operations of
Okumkom in Beyeeman Freezing
Company Ltd. The bulk of the
money however, came from bank
loans, which were secured with
the Ringway Hotel, the property
of the plaintiff’s husband.
Ofori-Panin Ofori-Atta had 97.5%
of the shares in Beyeeman
Freezing Co Ltd. The other
shareholder was the plaintiff’s
daughter called Dora. She had
2.5% of the shares.
The plaintiff’s contention is
that both the Kaneshie house and
the shares in Beyeeman Freezing
Co Ltd were held on trust by the
late Ofori-Panin Ofori-Atta for
the late President Akufo-Addo.
The plaintiff based her claim on
the equitable principle of
tracing of assets upon a breach
of trust and accuses her
brother, Ofori-Panin Ofori-Atta,
of fraudulently selling the
eight trucks and investing the
proceeds in the Kaneshie house,
Okumkom Enterprises and Beyeeman
Freezing Co Ltd. Of course, the
defendants who are executors of
the will of Ofori-Panin
Ofori-Atta deny the plaintiff’s
claims and contend that the
deceased, Ofori-Panin Ofori-Atta
acquired the properties through
dint of hard work.
The learned trial judge found
for the plaintiff against the
defendants and ordered that the
1,950 shares held in Beyeeman
Freezing Company Limited be
registered in the name of the
plaintiff as the holder of the
legal title. The learned trial
judge also decreed that the
plaintiff was the absolute owner
of house No 1203, Kaneshie
Estate Accra and dismissed the
counterclaim of the defendants.
Aggrieved by the judgment, the
defendants appealed to the Court
of Appeal, which reversed and
set aside the judgment of the
trial court.
The plaintiff then mounted
before this court the instant
appeal against the decision of
the Court of Appeal. Fundamental
to this appeal is the issue of
what claim the plaintiff can be
said to have put up in the High
Court for which judgment could
be pronounced for her. It is
therefore essential that I
identify what claims the parties
have submitted to the court for
adjudication before attempting
to consider the other issues
raised in the appeal, more
importantly the merits of the
case. In trying to identify the
issues that the parties
submitted for adjudication, I
will in the process, be dealing
with, and disposing of, some of
the grounds of appeal.
After taking out her writ of
summons on 1/10/82, the
plaintiff followed it up on
6/10/82 with a statement of
claim in which she adumbrated
the basis of her claim against
the defendants.
In paragraph 15 of the said
statement of claim, the
plaintiff repeated the claims
endorsed on the writ of summons
as quoted above, as the reliefs
she sought from the court. The
first attempt to amend the
pleading was initiated on
11/3/83, when the plaintiff
filed a notice of a proposed
amendment seeking leave to amend
her statement of claim by
inserting a new paragraph 5(a).
The proposed amendment sought to
lay the basis for the claim to
the Kaneshie house. The
application for leave to amend
was taken on 21/3/83 by Mr Joe
Reindorf against opposition by
Mr E D Kom. The court granted
the leave sought subject to
payment of costs by the
plaintiff. There is no
indication in the record of
proceedings or the original
docket that any amendment was
filed pursuant to leave granted
on 21/3/83. Indeed one can say,
without fear of contradiction,
that there was no amendment
pursuant to leave, and no such
contention was maintained in
this court.
The next attempt at amendment
was on 5/3/86. By her
application, the plaintiff
sought leave to amend the
statement of claim by
substituting a fresh paragraph
15. The proposed amendment was
formulated as follows:
“15. By reason of the foregoing
matters plaintiff claims:
(i) a declaration that the
shares held by the late
Ofori-Panin Ofori-Atta in the
company Beyeeman Freezing
Company Limited were held by him
upon trust for the late husband
of the plaintiff, namely Edward
Akufo-Addo deceased;
(ii) an order of the court
terminating and putting an end
to the said trust;
(iii) a further order directed
to Beyeeman Freezing Limited to
take all necessary steps to
cause the said shares being
1,950 ordinary shares in the
said company to be registered
with the Registrar of Companies
in the name of the plaintiff
herein as the holder of the
legal title therein.
(iv) a declaration of
ownership of house No 1203,
Kaneshie Housing Estate, Accra
as holder of the legal interest
in the leasehold of the said
land; and
(v) possession of house No 1203,
Kaneshie Housing Estate, Accra.”
This application for leave was
taken and granted on 7/3/86.
This was in the absence of Mr
Kom. Like the previous proposed
amendment, there is no
indication that any implemental
steps were taken to file the
amended document pursuant to the
leave obtained, so as to make
the amendment complete. It must,
however be said that at a
previous sitting, 20/2/86 to be
exact, learned counsel for the
plaintiff did try to make an
oral application to amend but
was rather directed by the court
to formulate his proposed
amendment in writing. This he
did in a form of a motion for
leave to amend which was filed
on 5/3/86 and moved on 7/3/86.
The plaintiff, as said earlier,
was granted leave. Learned
counsel for the plaintiff
immediately proceeded with his
address as soon as the
application was granted as
prayed.
From the above review, it does
appear that whenever the
plaintiff sought and was granted
leave to amend, no implemental
steps were taken to give effect
to the amendment. The trial
judge also did not, on any of
those occasions, make any order
accepting the proposed amendment
as having been filed, which
would have given a different
dimension to the matter. It must
also be said that there was no
effort by the plaintiff to amend
the writ of summons.
The Court of Appeal suo motu
took issue on the
plaintiff’s failure to amend
pursuant to the leave granted
her and held that in law there
had been no amendment of
plaintiff’s writ and statement
of claim to include a claim to
the Kaneshie house and that the
trial court could not grant any
relief in respect of same.
This is how Lamptey JA put it in
a judgment in which his brothers
concurred:
“I find and hold that the
respondent never amended her
writ of summons and statement of
claim. The learned trial judge
erred in decreeing absolute
title in house No 1203 Kaneshie
in the respondent.”
He then opined that the said
declaration could be set aside.
The Court of Appeal also offered
some criticism in the procedure
adopted in seeking leave to
amend on the second occasion.
The view held by Their Lordships
was that the notice to amend was
filed on 5/3/86 and the
application was taken on 7/3/86;
that 6/3/86 was a statutory
public holiday so it could not
be said that two clear days’
notice was given the defendants
in compliance with Order 52 rule
5 of the High Court (Civil
Procedure) Rules 1954 (LN 140A).
The Court of Appeal held that
the leave granted was therefore
null and void. I do not want to
discuss this aspect of the
matter, whether non-compliance
with Order 52 rule 5 is a mere
irregularity or not, I think the
whole issue of amendment can be
resolved on some other ground.
The gravamen of the plaintiff’s
complaint before us in respect
of the view taken by the court,
quoted from the judgment of
Lamptey JA is as follows:
“(1) The learned Justice of
Appeal erred in law in ruling
that the plaintiff’s failure to
comply with rules 7, 8, 9 or 10
of Order 28 of the rules of the
High Court, necessarily and
irremediably carried the penalty
that plaintiff’s statement of
claim and writ are to be taken
as never having been validly or
effectively amended to raise a
claim to ownership and
possession of house No 1203,
Kaneshie.”
The problem for resolution is
whether the Court of Appeal was
justified in holding that
failure to file an amendment
after leave to do so had been
obtained means that there has in
law been no amendment. The rule
that should come to mind is rule
7 of Order 28 of the High Court
(Civil Procedure) Rules. It
states:
“7. If a party who has obtained
an order for leave to amend does
not amend accordingly within the
time limited for that purpose by
the order, or if no time is
thereby limited, then within
fourteen days from the date of
the order, such order to amend
shall, on the expiration of such
limited time as aforesaid, or of
such fourteen days, as the case
may be become ipso facto
void unless the time is extended
by the Court or Judge.”
In the case of Safo-Adu v
Boampong [1976] 1 GLR 321,
the Court of Appeal had occasion
to consider the scope and effect
of Order 28 rule 7. This was a
case in which at the hearing,
the trial judge granted the
plaintiff’s application to amend
the statement of claim and
proceeded immediately to hear
the case to conclusion without
service on the defendants of the
amended statement of claim.
Judgment in default was entered
against the defendant who was
then in custody. Other issues
were discussed in this case but
the decision of the Court of
Appeal in holding 3 is this:
“Having granted the plaintiff
leave to amend the statement of
claim, the trial judge ought not
to have proceeded immediately to
hear the case on the amended
statement of claim. He should
have granted an adjournment for
the usual process to follow and
for service of the amended
statement on the defendant in
accordance with Order 28 r 7 of
the High Court (Civil Procedure)
Rules 1954 (LN 140A). In the
circumstances, the defendant was
wrongfully deprived of the
opportunity of filing a defence
to the amended statement of
claim of which he was totally
unaware and which was, in any
case, void under Order 28 r 7.”
The language of Order 28 rule 7
itself is so clear that I do not
think it admits any ambiguity to
generate any argument as to the
effect of the rule when a party
who obtains an order to amend
fails to do so. The effect of
the rule in my humble opinion,
is that an order or leave to
amend lapses if it is not acted
on within the time specified in
the order or within 14 days
after the order is made unless
the court extends the order. It
is right to say the defendants
were denied the chance to file a
defence to the amended statement
of claim. Apart from rule 7 of
Order 28 there are other rules
which could be said to contain
prescribed steps to be taken to
effect an amendment when an
order for leave to amend has
been granted or made. The rules
are rules 8, 9 and 10 of the
said Order 28, to be precise.
In the case of Ayiwah v Badu
[1963] 1 GLR 86, the
cumulative effect of all these
rules was considered by the
Supreme Court. This particular
case was cited by Lamptey JA in
his judgment. In Ayiwah v
Badu supra, the
plaintiffs, prior to the hearing
date, applied for leave to amend
the writ and statement of claim.
Leave was granted but the
plaintiffs did not take any
further steps to effect the
amendment as required by High
Court (Civil Procedure) Rules
1954 (LN 140A), Order 28 rr
7-10. The trial proceeded on the
basis of the original writ and
statement of claim. When the
matter was considered on appeal,
it was held that the leave to
amend the writ and statement of
claim ipso facto became
void upon the plaintiffs’
failure to take steps to
implement it. In a judgment in
which his learned and noble
brothers concurred,
Adumua-Bossman JSC said at p 89:
“The provisions of rule 7
undoubtedly contemplate and
prescribe the taking of
implementary steps by a party
who has obtained leave to amend.
Rule 7, together with rules 8, 9
and 10 contain the necessary
directions as to the steps to be
taken to implement the grant of
leave to amend; and as in the
instant case, after the grant of
leave to amend, the plaintiffs
did not have the proposed
amendment written into the
original writ and statement of
claim on the court’s file, nor
had a newly amended writ and
statement of claim filed with
copies for service, in
substitution for those
originally filed, nor paid any
amendment fee, it seems clear
the plaintiff’s counsel’s
submission was well-founded and
unanswerable. The defendants’
counsel’s assumption that the
leave granted operated to bring
into existence an effective
amendment might have been just
if the amendment had been
ordered by the court proprio
motu.”
After referring to the few cases
where amendments were ordered by
the courts proprio motu, His
Lordship then continued:
“It is in cases and
circumstances such as those
above referred to that counsel
might have some excuse in
assuming that the amendment was
effectually made by the terms of
the court’s order itself without
any necessity for any
implemental steps on his part or
risk of the court’s order
becoming ipso facto void.”
His Lordship however offered
these words of caution:
“It would seem to be advisable,
however, for counsel for the
party in whose favour an
amendment has been ordered, even
if on the court’s own
initiative, to enquire about,
and, if necessary see to its
implementation.”
Since the plaintiff never took
any steps to give effect to the
various amendments she sought
and was granted, I can say,
perhaps without fear of
contradiction, that the trial
proceeded on the basis of the
original writ and statement of
claim. This should, in my humble
view, be the legal position. The
learned trial judge did not
apparently appreciate this nor
did it actually occur to him.
This is manifest from his
opening paragraph in the
judgment where he states:
“By her writ filed on 1 October
1982 subsequently amended, the
plaintiff’s claim:
(a) the registration in her name
as holder of the legal title
thereto of 1,950 shares in
Beyeeman Freezing Company
Limited … and
(b) ownership and possession of
house No 1203 in the Kaneshie
Housing Estate Accra.”
As has been pointed out earlier,
it is the proposed amendment,
filed on 5/3/86 for which leave
was granted on 7/3/86, that
included a claim for the said
Kaneshie house. No implemental
steps as envisaged and
prescribed in the rules of court
were taken to formalise the
proposed amendments. I therefore
hold the view that there is
justification for Lamptey JA
holding that the plaintiff never
amended her writ of summons and
statement of claim for a claim
to the Kaneshie house.
The other ground on which the
Court of Appeal criticised the
procedure in the trial court is
that two clear days’ notice had
not been given to the defendants
as required by Order 52 rule 5
of the rules of court before the
application was moved on 7/3/86.
As I had said, I do not intend
to take a close look at this
aspect. For, I prefer to rest my
decision on the fact that the
leave to amend had never been
utilised and had lapsed and one
cannot talk of an amendment of
the writ of summons and
statement of claim. I have
already stated that failure to
amend after leave had been
granted renders the leave to
amend ipso facto void and the
right to amend lapses.
I must say that I have had
anxious moments considering the
scope and import of the proviso
to rule 8(6) of the Court of
Appeal Rules 1962 (LI 218). I do
not think the proviso should be
read in isolation but rather in
conjunction with other sub-rules
of rule 8. The basic rule is
that contained in rule 8(1) of
LI 218 that an appeal shall be
by way of rehearing. Before any
meaningful interpretation can be
given as to the meaning and
scope of the proviso, one must
understand what the phrase “by
way of re-hearing” means. It
must be pointed out that the
phrase does not mean that the
parties would address the court
in the same order as in the
court below, or that the
witnesses would be heard afresh.
What it does however mean is
that the Court of Appeal is not
limited to the consideration of
misdirection or wrongful
reception of evidence, or other
alleged defects. It does also
mean, as was pointed out by
Jessel MR in Purnell v Great
Western Railway Co (1876) 1
QBD 636 at 638 and 640, that the
Court of Appeal may confine
itself only to the points in the
notice of appeal but may
consider (so far as may be
relevant) all the evidence given
at the trial. In the case of
Nkrumah v Ataa [1972] 2 GLR
13, Osei-Hwere J
conceived the rule that an
appeal is by way of rehearing to
mean this:
“Whenever an appeal is said to
be ‘by way of re-hearing’ it
means no more than that the
appellate court is in the same
position as if the hearing were
the original hearing, and hence
may receive evidence in addition
to that before the court below,
and it may review the whole case
and not merely the points as to
which the appeal is brought, but
evidence that was not given
before the court below is not
generally received.”
Therefore, the contention in
ground (1) of the Further
Grounds filed on 13/10/91, that
the Court of Appeal erred in law
in its view regarding the
plaintiff’s failure to take the
steps prescribed in rules 7, 8,
9 and 10 of Order 28 of the High
Court (Civil Procedure) Rules
1954 (LN 140A) is unsustainable.
A serious complaint is that the
Court of Appeal raised the issue
of amendment suo motu and
without giving the plaintiff an
opportunity to contest the
appeal on that ground, in clear
violation of the mandatory
provisions of rule 8(6) of LI
218. The rule states:
“Notwithstanding the foregoing
provisions the court in deciding
the appeal shall not be confined
to the grounds set forth by the
appellant. Provided that the
court shall not rest its
decision on any ground not set
forth by the appellant unless
the respondent has sufficient
opportunity of contesting the
case on that ground.”
(Emphasis mine.)
I must concede the fact that
there is no ground filed in the
Court of Appeal which could be
said to be a complaint against
the trial court’s decision to
decree title to the Kaneshie
house in the plaintiff when
there had been no claim for such
a relief. No such ground was
specifically formulated and
urged in that court. The
plaintiff’s criticism is the way
the issue was raised suo motu
thereby denying her the
opportunity to contest the
appeal on that ground.
The rationale behind the
provision in rule 8(6) of LI
218, in my view, is that he who
has been brought to an appellate
forum defend a decision in his
favour must not only understand,
as per the notice of appeal, the
ground on which the judgment is
being impugned, but must also
have sufficient opportunity to
controvert the grounds on which
his verdict is likely to be set
aside. It must be said that it
is not only a matter of justice
and judicial obligation but
indeed an appreciation of rules
which have the force of statute
that the Court of Appeal has the
duty to do that which the court
below ought to have done. This
responsibility cannot be
properly and meaningfully
discharged without the Court of
Appeal taking a global view of
the case as a whole. Therefore
in applying the proviso to rule
8(6) of LI 218 care must be
taken that we do not, in the
process, give an interpretation
which will inhibit or stultify
the rule that an appeal before
the Court of Appeal shall be by
way of rehearing. The proviso
cannot in my view be said to
imply an absolute prohibition.
In certain special or
exceptional circumstances the
proviso will not apply. So, it
may be said that the Court of
Appeal ought not decide in
favour of an appellant on a
ground not put forward by him
unless the court is satisfied
beyond doubt, firstly that it
has before it all the facts or
materials bearing upon the point
being taken by it suo motu;
secondly that the point is such
that no satisfactory or
meaningful explanation or legal
contention can be advanced by
the party against whom the point
is being taken even if an
opportunity were given him to
present an explanation or legal
argument, as for example, where
the matters is void as in this
case.
It has already been pointed out
that Order 28 rule 7 itself is
very explicit that where a party
seeks and obtains leave to
amend, but fails to do so, the
order lapses and the process
becomes, in the words of the
rule, “ipso facto void.”
From the record of proceedings,
and this has not been
controverted by the plaintiff
before this court, on the two
occasions that the plaintiff
sought and obtained leave to
amend, she never took any
implemental steps as required by
the rules to effect the
amendment. There was therefore
misapprehension of the position
by the learned trial judge when
he assumed that there had been
an effective amendment of the
writ of summons and statement of
claim to include a claim for the
Kaneshie house. Since this claim
was never submitted to the court
by the parties for adjudication,
the trial judge had no
jurisdiction to pronounce upon
same. Not only that. The
situation in this case, as can
be gleaned from the record of
proceedings, is that Hayfron J
relied on a void process of
amendment to grant relief not
embodied in the writ namely, a
declaration of title to the
Kaneshie house. That legal
mandarin, Lord Denning, in the
case of MacFoy v United
Africa Company Ltd [1962] AC
152 put in indelible language
what the consequences are in
such situations. This dictum is
well known but I intend to quote
it even if only to defoliate the
judgment. At page 160 of the
said report Lord Denning said:
“If an act is void, then it is
in law a nullity. It is not only
bad, but incurably bad. There is
no need for an order of the
court to set it aside. It is
automatically null and void
without more ado, though it is
sometimes convenient to have the
court declare it to be so. And
every proceeding which is
founded on it is also bad and
incurably bad. You cannot put
something on nothing and expect
it to stay there. It will
collapse.”
In so far as the judgment of the
High Court sought to decree
title in the plaintiff in
respect of the Kaneshie house on
the basis of a void and
non-existent amendment, that
decree has to collapse. Within
this jurisdiction, we have our
local version of the MacFoy
principle. This is the case
of Mosi v Bagyina [1963]
1 GLR 337. Incidentally, this is
a judgment of Akufo-Addo JSC. It
is perhaps the most remembered
of his decisions while on the
bench of this country. He stated
the principle thus:
“The law, as I have always
understood it, is that where a
court or a judge gives judgment
or makes an order which it has
no jurisdiction to give or make
or which is irregular because it
is not warranted by an enactment
or rule of procedure, such a
judgment or order is void, and
the court has an inherent
jurisdiction either suo motu or
on the application of the party
affected, to set aside the
judgment or order.”
I have so far endeavoured to
show that the Court of Appeal
was faced with a situation where
the High Court acted on a void
process and without jurisdiction
to decree title to the Kaneshie
house in the plaintiff. I also
do not think the hands of the
Court of Appeal can be stayed,
when it decides to act suo motu
in the matter by the invocation
of rule 8(6) of LI 218 to
inhibit its inherent
jurisdiction. I do not think the
procedure adopted by the Court
of Appeal, which is being
decried, can be assailed simply
because, on the face of it, the
parties have not been given
adequate opportunity to address
the issue as required by rule
8(6) of LI 218. This is the
situation in which the law
itself has taken the matter out
of any meaningful legal
argument, the decision being a
nullity. Also, I do not think it
can really be said that the
Court of Appeal rested its
decision on the ground I have
just discussed. This is admitted
in the statement of case filed
by the plaintiff. Even if it
did, I think it was perfectly
entitled to, so far as the
Kaneshie house is concerned.
Some argument was advanced to
the effect that certain findings
of the Court of Appeal were not
covered by any of the grounds of
appeal filed neither were they
raised in argument. Rule 8(6) of
LI 218 was again invoked to
cover these matters. I hope that
by the end of this judgment, I
would have succeeded in
addressing these matters.
Before us, it was strenuously
urged on behalf of the plaintiff
that the Court of Appeal erred
in setting aside the trial
court’s findings of fact without
validly demonstrating that those
findings are unwarranted by the
evidence. In the process, the
Court of Appeal was severely
criticised also for disbelieving
the plaintiff’s witnesses. I
have already stated that by the
rules, an appeal is by way of
rehearing. This does not mean
that the Court of Appeal has
unlimited powers and is
permitted to forage through the
judgment and do whatever it
likes. Some of the notable drags
on the powers of an appellate
court were stated in the case of
Nkrumah v Ataa, supra.
In that case, Osei-Hwere J
succinctly stated the
limitations as follows:
“An appellate court is not
entitled to reverse findings of
fact made by a trial court
unless those findings are not
supported by the evidence.
Similarly, where the evaluation
of evidence depends upon the
credibility of witnesses, it is
normally the trial court which
saw and heard the witnesses
which should decide which of the
witnesses to believe. It is only
where it is shown that the trial
court in assessing the
credibility of a witness,
omitted to consider evidence
which discredits him that the
appellate court will be bound to
interfere.”
While the plaintiff claims that
the Court of Appeal has in the
course of its judgment violated
or ignored the constraints on
its powers as quoted above, the
defendants assert that the court
was justified in its
re-assessment of the evidence
and credibility of witnesses
leading to its own findings of
fact. Since two courts have made
different findings of fact based
on the same evidence, I do not
suppose this court can be denied
the right to make its own
assessment of the case as a
whole. It is not only a sensible
thing to do but it is a matter
of judicial obligation embodied
or rooted in rules having the
force of statutes. I therefore
intend to examine the evidence
on record.
It is almost pedantic to say
that in a civil case the
plaintiff has the duty to prove
his case and that no weakness in
the defendant’s case can avail
him. In clear, unambiguous
professional language, we say
the plaintiff has the burden of
proof. What is the nature of
that burden? In a recent
decision of the Court of Appeal
in which I took part, we
adverted to the case of
Majolagbe v Larbi [1959] GLR
190. This revered case is
considered by the profession as
having stated a general
principle of proof in law in
this jurisdiction. In the case
of Zabrama v Segbedzi
[1991] 2 GLR 221, the Court of
Appeal felt that the
Majolagbe v Larbi principle
was too wide and could not be of
general application without
doing injustice in some cases.
In a judgment in which my
brothers concurred, I restated
the law on proof as follows:
“A person who makes an averment
or assertion, which is denied by
his opponent, has the burden to
establish that his averment or
assertion is true; and, he does
not discharge that burden unless
he leads admissible and
credible evidence from which
the fact or facts he asserts
can properly and safely be
inferred. The nature of each
averment or assertion determines
the degree and nature of that
burden.” (Emphasis mine.)
I have no alternative course, in
my present circumstances but to
pay a true allegiance to this
latest rendition of the
Majolagbe principle since I
have no good reason to resile
from the principles as quoted
above. The trial judge himself
nicely stated the plaintiff’s
case, which she rested on trust,
as follows:
“That trust she (plaintiff) says
arises by operation of law from
the fiduciary relationship that
existed between Edward
Akufo-Addo and Ofori-Panin in
respect of eight trucks the
absolute and beneficial property
of Edward Akufo-Addo which he
entrusted to Ofori-Panin in or
about 1958 for the purpose of a
business which the two operated
as partners, but which trucks
Ofori-Panin sold in 1960 or
thereabout without the knowledge
or consent of Edward
Akufo-Addo.”
From the nature of the
plaintiff’s claim, she had to
prove that her husband had
entrusted to Ofori-Panin
Ofori-Atta eight vehicles and
that Ofori-Panin Ofori-Atta sold
them and used the proceeds to
deposit for the Kaneshie house
and also to establish the cold
store business, Okumkom Limited;
that this business was later
taken over by Beyeeman Freezing
Co Ltd, in which the said
Ofori-Panin Ofori-Atta owned
97.5% shares. The pivot of
plaintiff’s claim is the fact of
the alleged sale of the eight
vehicles by Ofori-Panin
Ofori-Atta. She cannot succeed
without proving this single
fact. The plaintiff in the court
below sought to discharge this
basic burden through witnesses
and her testimony that the late
Ofori-Panin Ofori-Atta had
confessed that it was out of the
sale of the eight vehicles that
he had money to deposit for the
Kaneshie house and also
establish the Okumkom Ltd
through which he imported meat
to sell. It is the success of
this business which gave him the
idea to build a cold storage
facility himself leading to the
establishment of Beyeeman
Freezing Co Ltd.
The evidence of the plaintiff
and her witnesses on the source
of money for the incorporation
of Beyeeman Freezing Co Ltd
finds the best expression in the
evidence of Barima Boakye Myira,
the Abontendomhene of Kyebi.
Before his enstoolment he was
known as Alexander Eugene Fraser
Ofori-Atta. This is how he put
the case for the plaintiff:
“By 1961, the sand and stone
contracting business had
collapsed. I knew later from
Ofori-Panin Ofori-Atta, when he
was in the process of setting up
Beyeeman Freezing Company that
he approached the late
Akufo-Addo. In November 1969, he
told me one Sunday that he had
assured the late Akufo-Addo that
the money for the sand and stone
business had not been squandered
or wasted but that he had
invested it in Okumkom Cold
Store and had used part of the
money to purchase house No 1203,
Awudome Estate, Kaneshie.
Besides this, he also said the
money invested in Okumkom had
produced profits, which he was
using to pay for preliminaries
and incidentals towards the new
project, a cold store. He
carried out that project not
under Okumkom but Beyeeman
Freezing Company Limited.”
This, in the main, may be said
to be a good summary of the
evidence led by the plaintiff in
proof of her claim. This
evidence was accepted by the
trial judge, Hayfron J, who
granted the plaintiff’s reliefs,
relying on the equitable
principle of tracing in trust.
The implication is that the
evidence was rated by the
learned trial judge as an
admission by Ofori-Panin
Ofori-Atta against his own
interest. The Court of Appeal,
in assessing this evidence,
reminded itself of the
admonition of Brett MR in the
case of Re Garnett, Gandy v
Macauley (1885) 31 Ch D 1,
CA. This is what the
Master of Rolls said at page 9:
“The law is that when an attempt
is made to charge a dead person
in a matter, in which if he were
alive he might have answered the
charge, the evidence ought to be
looked at with great care; the
evidence ought to be thoroughly
sifted and the mind of the judge
who hears it ought to be first
of all in a state of suspicion.”
The nature of the type of
evidence led by the plaintiff in
proof of her case and the
characterisation or appellation
it merits in law has been
sufficiently dealt with by my
brother Justice Amua-Sekyi,
whose judgment I have had the
benefit of reading. I therefore
do not intend to detour to that
area. Suffice to say that it is
no evidence in law. I will only
proceed to examine the evidence
on record and determine if it
justifies the findings made by
the trial judge whose judgment
we are here being asked to
restore. I must say without
hesitation that Lamptey JA in
his judgment made an admirable
examination of the evidence on
record. My own will be brief.
From the oral evidence given by
the plaintiff herself, the
vehicles were bought for
Ofori-Panin Ofori-Atta and
Modesto Apaloo in 1958. Some of
the hire purchase agreements put
the exact dates variously but
none went beyond April 1958. See
exhibits D, E, E2, and E3. The
plaintiff in her evidence said
that Ofori-Panin Ofori-Atta and
Modesto Apaloo were to keep up
the hire purchase payments. She
then said: “Before the end of
the first year, Modesto Apaloo
was arrested for the
T-Junction affair, Ofori-Panin
Ofori-Atta went for the four and
he was then running eight
trucks.” (Emphasis mine.)
I take this to mean that before
the end of 1958, Modesto Apaloo
was arrested and Ofori-Panin
Ofori-Atta started running the
eight vehicles. In her evidence,
the plaintiff said:
“At the time exhibit O was
written, Ofori-Panin Ofori-Atta
was controlling all the eight
vehicles. Modesto was
arrested in November 1960
and imprisoned until 1966.
(Emphasis supplied.)
If Modesto Apaloo was arrested
before Ofori-Panin Ofori-Atta
had the other four trucks then
it would not have been before or
at the time exhibit O was
written, certainly, not at the
end of the first year of
operation, that is 1958. Exhibit
O itself states that the four
vehicles being used by
Ofori-Panin Ofori-Atta had
already been sent to UAC Motors.
It could not therefore be true
that before 18/5/60 Ofori-Panin
Ofori-Atta was operating the
said vehicles. This exhibit is a
letter dated 18 May 1960 from
UAC Motors to Edward Akufo-Addo
informing him of the state of
the four vehicles Ofori-Panin
Ofori-Atta had sent to the
workshop for repair works. The
letter was sent to Edward
Akufo-Addo obviously, on the
basis of his being the hirer
under the hire purchase
agreement. The letter states in
part:
“We feel that it is in your
interest and only fair to
you that you should see
these vehicles exactly as we
received them from Ofori-Atta.
You have been most co-operative
and you have made it only too
clear to us that you will go to
all lengths to honour your
agreement with us. We for
our part want to help you;
and to advise you to do
something which will involve you
in more expenditure would be
very wrong and most unfair on
you.” (Emphasis mine.)
If UAC should put Edward
Akufo-Addo in a situation
whereby he would put good money,
after bad money, it would be
very wrong and most unfair to
him precisely because of his
preparedness still to discharge
his obligations under the hire
purchase agreement despite the
state of the vehicles.
I come to this conclusion
because of the latter’s own
intimation that the plaintiff’s
husband had been unequivocal of
his readiness to go to all
lengths to honour “your
agreement with us.” The
reasoning dovetails into why UAC
Motors again wrote to the
plaintiff’s husband on 11 August
1960, before his departure to
Germany that repair work had
started on the cheaper vehicles
and when completed, they would
be in touch with the plaintiff
and decide the next step to
take.
Exhibit P states in part thus:
“We are taking action as you
have requested, and have started
repairs on the cheaper vehicles.
As soon as repairs are
completed, we will get in touch
with you again, and decide what
is the next step to be taken. We
are grateful for your assistance
in this matter, and we trust
that you will have a pleasant
time in Germany.”
Both exhibit O and exhibit P
depict a picture of two
businessmen co-operating to
minimise loss to each other. The
instalment payments under the
hire purchase agreement were to
be discharged within six months,
at least by the end of 1958. It
is patent from exhibits O and P
that as at 11 August 1960, the
hirer, i.e. E Akufo-Addo, had
still not discharged his
obligations under the agreement,
hence his assurance to UAC
Motors of his preparedness to go
to all lengths to honour same.
This means there was still then
a right of re-possession in the
owner, UAC Motors. Against this
background how could Ofori-Panin
Ofori-Atta have had the vehicles
released to him to sell, more so
without the knowledge of Edward
Akufo-Addo? Did the owners
exercise their right of
re-possession on the return of E
Akufo-Addo from Germany?
The two exhibits make me have a
firm conviction on two matters
of fact: (a) the plaintiff’s
husband had not been able to
discharge all his obligations
under the hire purchase
agreement; (b) the vehicles were
not expected to be released
until Edward Akufo-Addo came
back from Germany and UAC Motors
had had certain discussions with
him and they had decided on what
next to do. It must be borne in
mind that there is no evidence
as to when plaintiff’s husband
came back from Germany. Were the
vehicles collected by
Ofori-Panin Ofori-Atta in his
absence and sold before his
return when there was a clear
understanding that after repairs
everything else had to await his
return from Germany? Or, was it
E Akufo-Addo himself who
collected them, after his return
from Germany, and gave them back
to Ofori-Panin Ofori-Atta before
he sold them? In any case, would
the plaintiff’s husband, after
settling a huge bill in respect
of the repairs, have given the
vehicles back to Ofori-Panin
Ofori-Atta who, it appears, had
earlier used them recklessly?
See exhibit O. These are
questions which must act as
legal hiccups in the case of a
plaintiff who asserts the
vehicles were sold by
Ofori-Panin Ofori-Atta without
the knowledge of Edward
Akufo-Addo. There is absolutely
no evidence as to when, how, and
by whom the vehicles were taken
out of UAC Motors after repairs
started on 11 August 1960. In
fact, we do not even know when
repairs had been completed. It
could be in 1961 or before the
end of 1960.
I have stated before that it is
essential to the plaintiff’s
case that it be proved that the
eight vehicles came to the
possession of Ofori-Panin
Ofori-Atta and that he sold them
in 1960, as he was alleged to
have confessed in 1965 to
people. I have searched the
record of proceedings and I have
found no evidence, of course,
apart from the evidence of the
alleged admission by him, which
we know is no evidence, to
support the plaintiff’s claim. I
am not prepared to make any
speculation in the plaintiff’s
favour. No court is permitted by
the rules of evidence to
speculate the existence of a
state of fact or facts in favour
of a party who has the burden to
prove same. If a court is
tempted to undertake such a
benevolent venture on behalf of
a party who has the burden of
proof, then it must ponder and
reflect, as the likelihood is
that the burden has not been
discharged by the said party.
Another question then is, when
did the vehicles being operated
by Modesto Apaloo get into the
hands of Ofori-Panin Ofori-Atta,
if at all? I have scanned the
record of proceedings but have
not succeeded in tracing any
evidence that could unravel this
question except the
contradictory evidence given by
the plaintiff herself on the
issue. This leads to another
question: If Ofori-Panin
Ofori-Atta ever sold any
vehicles at all, how many did he
sell and for how much? The issue
of sale of the vehicles by
Ofori-Panin Ofori-Atta was hotly
contested throughout the trial.
As pointed out by the Court of
Appeal, the evidence that
Ofori-Panin Ofori-Atta had four
vehicles which were sent to UAC
Motors for repairs and had all
been declared beyond economic
repairs, stands out very
clearly. See exhibit O, tendered
by the plaintiff.
Edward Akufo-Addo knew by the
end of May 1960, that the four
vehicles Ofori-Panin Ofori-Atta
had were at UAC Motors. The
evidence led by the plaintiff
puts the vehicles
there and there is no evidence
which shows they had been
removed after the repairs
requested by Edward Akufo-Addo.
More importantly, who collected
them from UAC Motors? The
plaintiff’s responsibility to
establish that the vehicles were
sold by Ofori-Panin Ofori-Atta
cannot be over-emphasised. The
best way she could have done
this was to make a search at the
licensing office to find out who
sold it and to whom it was sold.
In this respect, it must be
remembered that the vehicles
were on hire purchase and the
owner might have had certain
rights. She failed to go to the
licensing office to obtain the
important evidence as to who
sold the vehicle and to whom.
The evidence is that after
vamoosing in 1960 when he was
said to have sold the vehicles,
Ofori-Panin Ofori-Atta was said
to have come back to his sister
and her husband through the
intervention of an aunt. This is
how plaintiff recounted the
visit:
“After 1965 he resumed his
visits to the house. My husband
never discussed the vehicles
with him. He did not ask him
about them. I did not ask him
about the trucks. I know he sold
them, paid a deposit on a
house.”
Why the plaintiff and her
husband should suddenly be so
reticent on this vexed issue
baffles me, considering the
antecedents. Could it be the
late Akufo-Addo knew where the
vehicles were? For, from the
correspondence between him and
UAC Motors, it appears the
vehicles could be released only
on his personal instructions on
his return from Germany. How,
when and by whom were the
vehicles taken out of UAC Motors
is not explained. The evidence
about the sale of the vehicles
is particularly unsatisfactory
in my view. The plaintiff has
not led that admissible and
credible evidence in proof of
the sale, which is so vital to
her case. This, to me, is the
fatal legal ailment afflicting
the plaintiff’s case.
There are minor complications
like the plaintiff giving
evidence inconsistent with her
pleaded case. Her pleaded case
is that Ofori-Panin Ofori-Atta
was holding the shares in
Beyeeman Freezing Co Ltd in
trust for her husband by
operation of law and after his
death, for his estate. This
however is her
evidence-in-chief:
“When he came back to say he was
about to register the company,
he appointed my daughter Mama as
a co-director with himself. They
discussed the shareholdings and
a lawyer asked him to do
everything that was necessary.
He said he had given 2.5% to
Mama and would hold the
remainder 97.5% for me as Mama
may marry and take the shares
away.” (Emphasis mine.)
This is significant. It means
that at the time of
incorporation of Beyeeman
Freezing Co Ltd, it was agreed
the 97.5% shares were being held
in trust for the plaintiff by
Ofori-Panin Ofori-Atta. Under
cross-examination, this is how
it went:
Q You are saying your
husband used your brother as a
frontman?
A My brother even discussed
the share with me before he went
to speak about it with my
husband. My husband asked him
to do it for me and my
children.” (Emphasis mine.)
Therefore at the time of
incorporation was the agreement
that the shares be held for the
plaintiff and her children or
for Edward Akufo-Addo? Was the
claim based on a resulting trust
being abandoned? The legal
consequences of such a situation
are well known i.e. evidence
inconsistent with pleadings.
Another aspect of the case,
which in my view undermines the
plaintiff’s case, is the very
deep silence of Edward
Akufo-Addo in his lifetime about
the operations of Beyeeman
Freezing Co Ltd. He never
claimed any interest in the
company or in the Kaneshie
house. I do not want to believe
that having reached the pinnacle
of his life as President of the
Republic of Ghana, Mr Edward
Akufo-Addo would ever
contemplate living in sin
against the constitution he
helped draft for the country and
under which he held office, by
fronting a business. How
comfortable would President
Edward Akufo-Addo have been to
remain quiet in sin against the
constitution when the Yefre
Company scandal was raging in
Parliament then? The brilliant
lawyer that he was, he would
have taken appropriate legal
steps to protect his interest in
Beyeeman, if he had any, and at
the same time not infringe the
constitution.
Another disturbing aspect is
that the plaintiff never
advocated any interest in the
company either in her own name
or on behalf of her husband’s
estate until after the tragic
death of Ofori-Panin Ofori-Atta.
By the will of Edward
Akufo-Addo, the plaintiff is the
sole executrix. Edward
Akufo-Addo devised all his
properties to the plaintiff and
her children. One would have
expected that promptly, she
would have taken steps to lay
claim to the shares if they
really belonged to her husband
and were being held in trust for
him by Ofori-Panin Ofori-Atta as
she claims. Their relationship
with Ofori-Panin Ofori-Atta
never suggested they had any
claim in the shares beyond the
2.5% given to her daughter
possibly out of gratitude for
her husband’s help in
guaranteeing the loans. The
plaintiff chose to question
Ofori-Panin Ofori-Atta’s right
to the shares only after his
death. I am not prepared to
accept such a claim without
examination, considering the
attitude of the plaintiff
herself and that of her husband.
To cap it all, the plaintiff
admits that the name “Beyeeman”
is a nickname for Ofori-Panin
Ofori-Atta. As I have said,
Lamptey JA made a good
assessment of the evidence and I
agree with his reasoning. I do
not think the Court of Appeal
can be faulted, in view of the
type of evidence led, in
reversing the findings of fact
of the trial judge and
disbelieving witnesses after
taking a global look at the case
under the general ground of
appeal, the judgment being
against the weight of evidence.
I have read the judgment several
times and I do not think it can
justifiably be said that any
points were raised suo motu
under this ground of appeal.
Those areas being so criticised
are in my view the reasoning
processes of the court.
I will dismiss the appeal on
this note:
“Though the authorities require
that a claim against a
deceased’s estate should be
scrutinised with the utmost
suspicion, we discern no attempt
to comply with this injunction
by the court below. If the High
Court had discharged this duty
with any degree of fidelity the
hollowness of the plaintiff’s
claim would have been apparent.”
See Moses v Anane
[1989-90] 2 GLR 694, CA. I adopt
these words.
Apart from the alleged admission
against interest by Ofori-Panin
Ofori-Atta in his lifetime,
which as has been pointed out in
the judgment of my brother
Amua-Sekyi JSC, is no evidence
in law, there is absolutely no
admissible and credible evidence
led by the plaintiff to prove
her claim. Faced with such a
situation, I do not think the
Court of Appeal can be
legitimately chastised for
reversing findings of fact on
appeal. I am firmly of the view
that this appeal is without
merit, and I will dismiss it;
and I accordingly do.
Before I am done, I would like
to comment on a matter, which I
think deserves the attention of
this court. I have no doubt I
will be expressing the
sentiments of my brothers. It
must be said that no court worth
its dignity will fear criticism
or resent it. As was pointed out
by Lord Salmon in R v
Commissioner of Police of the
Metropolis, ex parte Blackburn
No 2 [1968] 2 WLR 1204.
“The authority and reputation of
our courts are not so frail that
their judgment need to be
shielded from criticism.”
Counsel appearing in an appeal
owes a duty to his client to do
all he possibly can to convince
the appellate court that the
lower court’s decision is wrong.
He must do this within
acceptable limits. It is
perfectly within his rights to
say the decision is mistaken or
erroneous, and offer reasonable
argument or expostulation
against it. This I think must be
done with as much courtesy as
possible and the personality of
the individual judges kept out.
Arguments ad hominem are not in
my view, part of the legitimate
duties of counsel who is on
appeal. For it must be
remembered that from the nature
of our office a judge cannot
reply criticisms of his conduct
of a case. The hierarchical
system of the courts in all
jurisdictions, ours not
excepted, is an implied
admission that being a human
system the judges can be
mistaken and give erroneous
decisions. In Mechanical
Lloyd Assembly Plant v Nartey
[1987-88] 2 GLR 598, SC,
Adade JSC said:
“Let me say, at once that for
all I know virtually every
judgment on earth, arrived at as
a result of evidence gathered
from several sources, can be
criticised. A Privy Council
judgment put in the hands of any
lawyer, along with the evidence
grounding it, can be criticised
on the same way as a High Court
judgment can be.”
I think such criticism can still
be offered without absolute
discourtesy to the lower court.
I do not want to be understood
as foreclosing vigorous pursuit
of a client’s case before this
court. This can always be done
with courtesy not being ignored.
WUAKU JSC.
In order to solve the riddle in
the appeal, one must first
identify the dramatis personae.
The plaintiff is the widow of
the late Edward Akufo-Addo, a
very distinguished lawyer in his
time, who became the Chief
Justice of Ghana and finally,
the President of the Second
Republic of Ghana. He was
reputed to be the main architect
of the Second Republic
Constitution of 1969.
Ofori-Panin Ofori-Atta was the
younger brother of full blood
relation to the plaintiff. The
plaintiff hails from a typical
Akan traditional area, so did
her late husband and her late
brother. It is a typical
matrilineal community where
succession is otherwise
matrilineal; see N A Ollenu,
The Law of Testate and Intestate
Succession in Ghana 1966
edition, page 144 et seq.
I need not go into details of
the facts because my learned
brothers Amua-Sekyi JSC and
Kpegah JA, in the leading
judgment, have done that. The
plaintiff’s case, in a nutshell,
is that her late brother
Ofori-Panin Ofori-Atta was
a-never-do-well sort of a person
particularly in matters of
business. He lacked business
acumen, failed in every field of
business enterprise, except
probably the last one known as
Beyeeman Freezing Company
Limited. Despite the brother’s
failure upon failure, her
husband kept on putting more
money into the pockets of
Ofori-Panin Ofori-Atta to embark
upon fruitless business
ventures. The plaintiff has
founded her case on the proceeds
from eight trucks, which she
alleged her husband bought on
hire purchase from the UAC
Motors and were sold by her
brother. The proceeds from the
sales, the plaintiff alleged,
were used by Ofori-Panin
Ofori-Atta partly to set up the
Okumkom Cold Stores which he
later converted into the
Beyeeman Freezing Company Ltd.
It was alleged that part of the
proceeds realised from the sales
of the 8 trucks was also used by
Ofori-Panin Ofori-Atta as a
deposit for an estate house at
Kaneshie. The plaintiff argues
that since the trucks were
bought by her husband, the
proceeds from the sales belongs
to her husband or the husband’s
estate or any identifiable
property or assets to which the
proceeds could be traced.
The plaintiff therefore, as the
widow of the late Edward
Akufo-Addo, claims on her behalf
and her children 97.5% shares
which Ofori-Panin Ofori-Atta
held in the Beyeeman Freezing
Company Ltd and also the estate
house No 1203 at Kaneshie. It is
agreed
that the eight trucks were
bought by Edward Akufo-Addo on
hire purchase from the UAC
Motors. Exhibit G shows that one
of the said trucks was insured
in the name of the plaintiff,
two in the name of Ofori-Panin
Ofori-Atta and the remaining
five in the name of Edward
Akufo-Addo himself. I think that
the preliminary issues to be
resolved in this appeal is
whether the eight trucks were
entrusted to him when he was
alleged to have sold them and
converted the proceeds to his
own use and gain. The plaintiff
stated that it was her late
brother Ofori-Panin Ofori-Atta
who approached Edward Akufo-Addo
and told him that he wanted to
be a sand and stone contractor.
She said one Modesto Apaloo also
made a similar approach to her
husband. The husband bought
eight trucks, as stated earlier,
four were given to Modesto
Apaloo. They were to keep up the
hire purchase payments.
Ofori-Panin Ofori-Atta formed
his company, which he called
Akan General Contracting Company
and Modesto Apaloo called his
Tema Haulage Co.
The plaintiff’s
evidence-in-chief clearly showed
that at a particular point in
time her late brother was
running only four vehicles and
was making the hire purchase
payments independent of Modesto
Apaloo. Exhibit O refers to the
four Bedford 5-ton tipping
vehicles which had been in use
by Mr Ofori-Panin Ofori-Atta.
The plaintiff went on to say
that “after Apaloo was arrested,
Ofori-Panin Ofori-Atta went for
the four vehicles and he was
running the eight trucks.”
It was for the trial judge to
find out when Apaloo was
arrested and when the
plaintiff’s brother went for the
four vehicles. It will be
necessary here to re-produce
part of the plaintiff’s
evidence-in-chief on this aspect
of the case:
“At the time exhibit O was
written, Ofori-Panin was
controlling all the eight
vehicles. Modesto Apaloo was
arrested in November 1960 and
was imprisoned until 1966. My
husband went there with
Ofori-Panin. My husband got
angry with my brother and was
rough and ready with him because
of the condition of the
business. This letter is also in
connection with the vehicles. It
was after my husband had been
with Kweku Ofori-Panin to UAC
Motors. He had the vehicles
repaired. My brother collected
them. I tender the letter. Mr
Kom: No objection. Admitted and
marked exhibit P. My husband
travelled towards the end of
1960. I did not see my brother
that year. I did not see him in
1961.”
The plaintiff was a
schoolteacher and gave her
evidence in English. It cannot
be said that she did not know or
understand what she said. The
plaintiff’s evidence quoted
supra needs no critical
examination to disclose the many
inconsistencies it contains. A
casual reading of the evidence
supra and others gathered from
the proceedings gave the
impression that she saw her
brother in 1960. At the end of
the quotation, she says
emphatically that she never saw
her brother in 1960 or 1961.
Exhibit O referred to was a
letter written by UAC Motors
dated 18/5/60 and addressed to
Mr Edward Akufo-Addo, P O Box
207, Accra. The letter, among
other things, recalled that on
29 April 1960 Mr Akufo-Addo
visited the office of the UAC
Motors and discussed the fate of
the four Bedford 5-ton tipping
vehicles which had been in use
by Mr Ofori Atta. The letter was
signed by the Manager, one R H
Layton-Jones. The letter went on
to say that the writer has had
another look at these vehicles
and really they were in a most
appalling condition, and to do
anything to them may well be
pouring good money after bad. Mr
Akufo-Addo was therefore invited
to the UAC Motors offices at 3
o’clock on Friday afternoon, May
27 “to go along and have a look
at these vehicles together with
our Engineer so that we can
between us try and sort out some
salvage from the wreckage.”
Far from Ofori-Panin Ofori-Atta
controlling all the eight
vehicles at the time exhibit O
was written, the four vehicles
in use by Ofori-Panin Ofori Atta
were at the premises of UAC
Motors and were in a most
appalling condition and to do
anything to salvage them would
well be pouring good money after
bad. The evidence was clear that
Modesto Apaloo had four of the
vehicles with him until he was
arrested in November 1960.
Obviously, Ofori-Panin
Ofori-Atta on the plaintiff’s
own showing was not controlling
any of the eight vehicles at the
time exhibit O was written on
18/5/60. There is no evidence
that Modesto Apaloo’s four
trucks were even reallocated to
Ofori-Panin Ofori-Atta. Exhibit
P is another letter from UAC
Motors. Omitting the formal
parts, it reads:
“Ref: RHLJ/EAK
P O Box 306,
Accra
11 August 1960
E. Akufo-Addo
P O Box 207
Accra
Dear Mr Akufo-Addo,
Thank you very much for your
letter dated 2nd of August in
connection with the vehicles
about which we have been in
correspondence.
We are taking action as you have
requested and have started on
repairs on the cheaper vehicles.
As soon as repairs are
completed, we will get in touch
with you again, and decide what
is the next step to be taken.
We are grateful for your
assistance in this matter, and
we trust that you will have a
pleasant time in Germany.
With kind regards,
Yours Sincerely
(Sgd) R H LAYTON JONES
MANAGER”
Exhibit P is no evidence that
Ofori-Panin Ofori-Atta collected
any vehicles from UAC Motors
after the said vehicles had been
repaired. Exhibit P could only
have been referring to four
Bedford 5-ton tipping vehicles
which were referred to in
Exhibit O. Again exhibit F
merely stated that repairs had
been started on some of the
vehicles and as soon as repairs
were completed, UAC Motors would
get in touch with Mr E
Akufo-Addo and decide on the
next step to be taken. Reference
must be made to exhibit M and N,
letters written by the UAC
Motors concerning the vehicles
in use by M K Apaloo. Omitting
the formal parts exhibit M
reads:
“Our Ref: RHLJ/PO
P O Box 306
24 October 1958
The Manager
Tema Haulage Company
P O Box 207
Accra
ATTENTION MR E A AKUFO-ADDO
Dear Sir,
We wish to confirm our recent
conversation with your Mr M K
Apaloo in connection with your
hire purchase instalment.
Mr Apaloo promised that there
would be a payment of 300 Ghana
pounds not later than October
31st and a further payment of
300 Ghana Pounds not later than
November 15, 1958.
Yours faithfully
(Sgd) R H Layton-Jones
for the United Africa
Company of Ghana Ltd
Motors Division.”
Exhibit N is as follows, again
omitting the formal parts:
“Our Ref RHLJ/RBO 39/974
P O Box 306
Accra
12 January 1959
E Akufo-Addo, Esq
P O Box 207
Accra
Dear Mr. Akufo-Addo
I am attaching hereto a
statement of account in the name
of Tema Haulage in respect of
workshop repairs carried out
from July 1st to October the
1st.
I have detailed this account for
your very easy reconciliation. I
trust that you will find this
satisfactory.
Yours faithfully
(Sgd) R H Layton-Jones”
UAC Motors knew that the
vehicles bought by E A
Akufo-Addo on hire purchase were
in use by two different persons
i.e. M K Apaloo and Ofori-Panin
Ofori-Atta. They knew the number
of vehicles in use by each. Thus
in exhibit O written on 18 May
1960, they said “the four
Bedford 5-ton tipping vehicle
which have been in use by Mr
Ofori-Atta.” (Emphasis
supplied.) Note the definite
article “the.” Even if Modesto
Apaloo was arrested at the end
of the first year, 1958, as
alleged by the plaintiff earlier
in her evidence, Ofori-Panin
Ofori-Atta did not go for
Modesto Apaloo’s four vehicles
when arrested. Exhibits N and O
support this view. In my
opinion, there was a duty upon
the plaintiff to prove that the
repairs on the vehicles were
completed and that UAC Motors
got in touch with Mr Akufo-Addo
and the next step on the
vehicles taken. That burden of
proof was never discharged by
the plaintiff. The plaintiff
tendered a number of documents
from UAC Motors. The plaintiff
could have subpoenaed UAC Motors
to produce the documents on the
alleged vehicles. That would
have established whether the
repairs were ever completed and
the vehicles collected, and by
whom. If Ofori-Panin Ofori-Atta
took any vehicles at all,
according to the evidence it
would be in 1960, or after the
arrest of Modesto Apaloo in
November, in which case the
vehicles could have been taken
in November or December 1960.
Learned counsel for the
appellant has argued strenuously
that the Court of Appeal was
wrong in stating that the trial
judge said the vehicles were
taken by Ofori-Panin Ofori-Atta
in 1960, whereas what the trial
judge in fact said was that in
1960 or thereabouts. A careful
examination of the judgment
shows that although the trial
judge at certain stages in the
judgment said 1960 or
thereabouts, his conclusion was:
“the beneficial property of
Edward Akufo-Addo and his estate
…were the 8 trucks that
Ofori-Panin stole in 1960. For
the foregoing reasons I give
judgment for the plaintiff and
make the declaration sought with
costs of 80,000 cedis inclusive
of fee of counsel.”
Stealing is defined by our law
as “a person steals if he
dishonestly appropriate a thing
of which he is not the owner.”
The Advanced Learner’s
Dictionary of Current English
defines “appropriate” as
“take and use as one’s own.”
By the trial judge’s conclusion,
the vehicles were taken in 1960.
Before the judge came to that
conclusion, he had reviewed the
plaintiff’s evidence and
concluded that “indeed the
plaintiff has gone even further
to lead evidence that at the
time of his disappearance in
1960 Ofori-Panin Ofori-Atta was
unlikely to have had any
resources other than the
proceeds of the sale of the
eight trucks.” I agree with the
Court of Appeal, that whatever
epithet that the trial judge
used, whether that Ofori-Panin
Ofori-Atta sold the tucks in
1960 or thereabouts or not, the
evidence and the conclusion
reached were that the eight
trucks were sold in 1960 and not
in 1960 or thereabouts. Assuming
Ofori-Panin Ofori-Atta stole and
sold the eight trucks, ownership
of the trucks would have changed
and if not the facts could
easily have been ascertained
from the vehicles and licensing
authorities. In my view, the
plaintiff failed woefully to
prove that Ofori-Panin
Ofori-Atta sold any eight
vehicles belonging to the late
Edward Akufo-Addo, the proceeds
of which could be traced to
either the shares in Beyeeman
Freezing Company Limited or the
estate house No 1203.
I think that the several
criticisms levelled against the
Court of Appeal’s evaluation of
the evidence are not fair. LI
218 rule 8(4) permits an
appellant to file the general
ground that the judgment is
against the weight of evidence;
that was precisely the
respondents herein Ground 8
before the Court of Appeal. In
my opinion, that ground having
been filed and not withdrawn
when the appeal came on for
hearing, whether it was argued
or not, the appellate court had
jurisdiction to examine the
totality of the evidence before
it and to come to its own
decision on the admitted and
undisputed facts. See the first
holding in Nyame v Tarzan
Transport [1973] 1 GLR 8 at
9.
On the undisputed facts
contained in exhibits O and P
there was no burden of proof on
the respondents to discharge
that Ofori-Panin Ofori-Atta
(deceased) did not collect four
or eight Bedford 5-ton tipping
trucks from the UAC Motors after
11 August 1960 or after the
arrest of Modesto Apaloo, the
undisputed representative of
Edward Akufo-Addo (see exhibits
F, M and N). The burden of proof
lay squarely on the plaintiff to
lead cogent evidence and produce
such documentary evidence from
the UAC Motors as exhibits O or
Pthat the trucks were duly
repaired, that the repair
charges were paid and the trucks
were collected and by whom and
on whose authority and, more
importantly, when the trucks
were collected. The substratum
of the plaintiff’s claim having
been demolished, on her own
evidence, her claim should have
been dismissed and I would also
dismiss it. The appeal fails on
this ground alone and I do not
consider it necessary to
consider other issues raised in
this appeal. However, before I
am done, I wish to refer to the
dissenting
judgment of Francois JSC in
Re Krah (Dec’d); Yankyeraah
v Osei-Tutu [1989-90] 1
GLR 638, SC. He stated the law
correctly when he said:
“There is a well-established
rule that claims against a
deceased’s estate must be
carefully scrutinised.”
He cited the following
authorities in support; re
Garnett, Gandy v Macauley
(1886) 31 Ch D 1 at 9, Thomas
v Times Book Co Ltd [1966] 2
All ER 241 and Moses v
Anane [1989-90] 2 GLR 694,
CA. Lamptey JA also referred to
the same authorities and quoted
relevant passages therefrom. I
agree with the dicta contained
in those judgments. I regret to
say that the trial judge failed
in his duty to carefully
scrutinise the evidence of the
plaintiff and her witnesses and
from the beginning to the end
gave the unfortunate impression
of bias in favour of the
plaintiff and in believing
whatever was said in her favour
and describing the deceased who
was not before him in such
language as having nefarious
plans, a thief etc. I must
confess I was not happy about
the language used in the
judgment of the High Court and
the Court of Appeal describing
some of the witnesses. I am
equally appalled by the language
used by learned counsel in
referring to the judgment of the
Court of Appeal. If a judgment
contains bad language that is no
criterion for counsel to use
equally bad language in
presenting his case. Such
conduct does no credit to the
courts and counsel appearing
before it rather tarnish the
image of the court and counsel
alike.
There are one or two other
matters which intrigue me
personally about this case. Why
did the late Edward Akufo-Addo
not make any subsequent will to
the one he made in 1955, not
even a codicil? And why was it
admitted to probate subsequent
to that of Ofori-Panin
Ofori-Atta whose will is dated
17/12/80 and died on 12 April
1982? This case, as I said at
the beginning of the judgment,
is a riddle, wrapped in the
persons of the plaintiff, her
late husband and her late
brother. Perhaps there is a key;
that key may be the Akan
customary law of succession
whereby the children of the
plaintiff, had it not been the
will of the late Ofori-Panin
Ofori-Atta coupled with
statutory provisions, would have
succeeded to their late rich
uncle Ofori-Panin Ofori-Atta. I
would dismiss the appeal with
costs
AMUA-SEKYI JSC.
I agree. The appeal comes to us
from a judgment of the Court of
Appeal reversing a decision of
Hayfron J, vesting the bulk of
the estate of the late
Ofori-Panin Ofori-Atta, a
businessman of Accra in the
appellant, Adeline Akufo-Addo,
who is his elder sister of the
full blood, and her children.
The appellant is the widow of
Edward Akufo-Addo deceased, one
time Chief Justice and President
of Ghana, who with her four
adult children, are
beneficiaries of his estate. Her
brother, Ofori-Atta, who died in
a motor accident, left the bulk
of his estate to his infant
children. Among other
beneficiaries were the appellant
and her said children. The
ground for claiming the
properties of Ofori-Atta as the
appellant’s was recounted by the
appellant and her witnesses. It
was as follows: When her brother
left their hometown of Kyebi to
live and work in Accra, he came
to lodge with her. It was she
who found him his first job as a
clerk in a bank. When he decided
to go into business as a
clothier, her husband formed a
partnership, Linasek and later,
Edwards Ltd with him. When these
failed and he decided to become
a supplier of sand and stones
under the name Akan General
Contracting Co her husband
bought four trucks on hire
purchase terms for the purpose.
She said her brother later sold
those trucks. He paid the
deposit on a dwelling house at
Kaneshie, Accra with part of the
money and invested the rest in
Okumkom Cold Stores, which dealt
in meat products and ice blocks.
Okumkom was taken over by
Beyeeman Freezing Co Ltd, which
was financed throughout by a
loan for which her husband
provided the property known as
Ringway Hotel as collateral. The
object of the suit was to claim
the Kaneshie residence and the
97.5% shares of Ofori-Atta in
Beyeeman as having been held in
trust for the late President or
the appellant. The other
shareholder of Beyeeman is the
appellant’s daughter, Dora who
holds 2.5% shares.
Hayfron J accepted the evidence
of the plaintiff and her
witnesses in its entirety. The
Court of Appeal was equally firm
in rejecting that evidence. This
has prompted counsel for the
appellant to complain that the
trial judge’s findings of fact
have not been given the full
weight they deserved. I think,
however, that in this regard,
Hayfron J has himself to blame.
Not only did he make findings on
the evidence adduced, but he
went out of his way to insult
and denigrate Ofori-Atta who,
being dead had not had the
opportunity of stating his
version of the facts. They are
best not repeated here except to
say that such language lays a
judge open to the charge of
bias.
An essential part of the proof
offered by the appellant was
that during his lifetime her
late brother admitted to her and
other witnesses that he had sold
the trucks and made use of the
money. The evidence came from
the appellant, her aunt Gladys
Agyepong, her cousin Mary
Bondzie, who is a daughter of
Gladys and the appellant’s and
Ofori-Atta’s younger brother
Fraser Ofori-Atta. The most
coherent statement of the
alleged admission is to be found
in the evidence of Fraser who
said at page 173 of the record;
“In November, 1969 he told me
one Sunday that he had gone to
the late Akufo-Addo and
explained the circumstances
leading to the collapse of the
sand and stone business. He said
he told Akufo-Addo that the
money for the sand and stone
business had not been squandered
or wasted but that he had
invested it in Okumkom Cold
Store and had used part of the
money to purchase house No 1203
Awudome Estate Kaneshie. Besides
these, he also said the money
invested in Okumkom had produced
profits, which he was using to
pay for preliminaries and
incidentals towards the new
project, a cold store. He
carried out that project not
under Okumkom but under Beyeeman
Freezing Co Ltd.”
Lest it be thought that all
members of the Ofori-Atta family
had ganged up against their
deceased relative, let me say
that the respondents who are
executors of his will, were able
to call William Ofori-Atta, a
respected elder brother of the
appellant and the deceased to
give evidence for them. The
alleged admission was accepted
by Hayfron J but rejected by the
Court of Appeal which, after
examining the evidence, came to
the conclusion that it was a
fabrication. The court reminded
itself that evidence against
deceased persons ought to be
viewed with suspicion, as there
is a tendency for interested
parties to invent stories in the
knowledge that they cannot be
contradicted. I believe this
approach to the issue to be
right, although in the decision
that I have arrived at it is
unnecessary for me to express an
opinion on the truth or
otherwise of the assertion that
Ofori-Atta made the statement
attributed to him. This is
because I am of the opinion
that, even if the statement is
taken at its face value, it was
inadmissible in evidence.
The cases show that an admission
of the kind in question must be
clear and unequivocal, leaving
no one in any doubt that the
intention was to make a
statement against the pecuniary
or proprietary interest of the
declarant. In Re Perton
53 LT 707 a statement by a
person that he was illegitimate
was held to be receivable after
his death as a declaration both
against pecuniary and
proprietary interest, and in
Flood v Russel 29 LR Ir 91 a
declaration by a person who
would, in the event of another
dying intestate be entitled to a
sum under a settlement, that the
deceased had made a will leaving
her a lesser sum was held to be
admissible as against her
interest. In contrast, the
statement attributed to
Ofori-Atta was as uncertain as
to its true import as those made
in Tucker v Oldbury Urban
District Council [1912] 2 KB
317 CA, Bamiro v Societe
Commerciale l’Ouest Africain
(1941) 7 WACA 150. In the
former, the deceased, a
blacksmith, injured his thumb
during the course of his
employment. In answer to a
question by the general manager
of his employers as to what was
the matter with his thumb the
deceased replied that he had a
whitlow on his thumb, and in
answer to a further question
whether he had been hammering
his thumb the deceased replied
‘No’. The wound became septic
and he died. In an action to
recover compensation under the
Workmen’s Compensation Act 1966,
it was held that the answers to
the general manager’s enquiries
were inadmissible. On appeal to
the Court of Appeal, the
decision to reject them was
sustained. The court said per
Fletcher Moulton LJ at page 321:
“Such declarations are admitted
as evidence in our jurisprudence
on the ground that declarations
made by persons against their
own interest are extremely
unlikely to be false. It follows
therefore that to support the
admissibility it must be shewn
that the statement was to the
knowledge of the deceased
contrary to his interest. And it
is now settled that the
declaration must be against
pecuniary interests (or against
proprietary interests, which is
much the same thing.)”
He went on at page 322:
“It is not sufficient that they
should be such as it turns out
were against his interests… It
is therefore immaterial to
consider whether these
statements would assist the
employers in resisting the
present claim or not. The claim
had not been made or the grounds
formulated, and therefore there
was nothing in the statements
which at the time entitled them
to be viewed as against the
pecuniary interests of the
person making them.”
In the latter, the plaintiff had
complained to the agent of the
defendants about damage caused
to his house by vibrations from
building operations being
carried out by them on their
land. In an action to recover
damages, a promise by the agent
that his company would make good
any damage caused to the
premises of the plaintiff was
held to be an admission of
liability for damage caused by
vibrations only.
It follows that proof in these
proceedings that Ofori-Atta was
not the owner of the vehicles
would not make the statement
admissible unless at the time he
made it the statement was
adverse to his interest. As at
the time no one had laid claim
to his Kaneshie residence, or to
Okumkom Cold Store, of which he
was the ostensible owner, it
cannot be said that he made the
statement in the knowledge that
it was against his interest.
The evidence having been
admitted without objection from
counsel for the defendants the
question arises whether it can
be excluded on appeal. The cases
of Abowaba v Adeshina
(1946) 12 WACA 18, Yartey v
Construction & Furniture (WA)
Ltd [1962] 1 GLR 86,
SC and Adejumo v
Abegunde [1965] GLR 499, SC
show that where evidence is
inadmissible only because the
facts relied on have not been
pleaded, the judge is under no
duty to exclude it and its
admission at the trial without
objection cannot be questioned
on appeal. Where, however, the
evidence would be inadmissible
to prove even pleaded facts,
there is a duty on the judge to
exclude it even if no objection
is raised, and it will be
excluded on appeal. Hearsay
evidence not coming within the
exceptions mentioned in the
Evidence Decree 1975 (NRCD 323)
is of the latter kind and was
excluded on appeal in Poku v
Frimpong [1972] 1 GLR 230,
CA, Dumgya v Sports Council
[1974] 1 GLR 429, CA
and Tormekpe v Ahiable
[1975] 2 GLR 432, CA.
The evidence on record shows
that the appellant and her late
brother were extremely close;
that in his time of need she and
her husband assisted him
financially to put him back on
his feet. The evidence further
shows that he was not as selfish
and ungrateful as the trial
judge found, but that in his
more affluent later years he
reciprocated the past generosity
of the Akufo-Addos. He gave the
appellants’ daughter, Dora,
shares in Beyeeman Freezing Co
Ltd
and made her a director of the
company; he offered his Kaneshie
residence as collateral for a
loan for the renovation of
Ringway Hotel; he granted a loan
to one to the appellant’s sons
to enable him pay a deposit on a
dwelling house, and employed the
other in Beyeeman Freezing
Company Ltd; he frequently made
gifts of money to the appellant
and her children. If these acts
did not make the Akufo-Addo’s
trustees for Ofori-Atta, then
such kindness as they had shown
him in the past would not make
him a trustee of his properties
for them. Everything, it seems,
turns on the alleged admission
which, in my view, was not made
at all and, therefore,
inadmissible.
In the result, I am of the
opinion that the decision of the
Court Appeal dismissing the
action of the appellant was
right and that it ought to be
affirmed.
OSEI-HWERE JSC.
I preface my dissent with an
apologia which, regrettably,
wears the look of criticism for
which I crave indulgence. This
seeming criticism is born out of
the necessity to justify my
present volte-face when I found
myself unable to agree with the
reasons offered in the three
judgments dismissing the appeal.
I had made known to my brethren
in advance, although belatedly
and briefly, why I could not
support their conclusions of law
which propped their judgments. I
intend here to expand my
reasons.
The matter agitated at the trial
court which led to the judgment
of Hayfron J for the plaintiff
and of its reversal by the Court
of Appeal are all too familiar.
Suffice it to say that the bone
of contention at the trial court
and upon which Hayfron J
formulated his judgment related
to the ownership of shares in
Beyeeman Freezing Company
Limited (BFCL) standing in the
name of Ofori-Panin Ofori-Atta
(Ofori-Panin) and a house at
Kaneshie. By the indorsement on
her original writ the plaintiff
had sued for a declaration that
the shares held by the late
Ofori-Panin in BFCL were held by
him upon trust for the late
husband of the plaintiff or for
the said husband’s estate. Prior
to the hearing of evidence the
plaintiff filed a proposed
notice of amendment of the
statement of claim by inserting
a new paragraph (5a) before
paragraph 6 as follows:
“5a. The plaintiff contends
additionally that the late
Ofori-Panin Ofori-Atta’s hire
purchase of house No 1203
Kaneshie Estate, Accra was
financed from the proceeds of
the said tipper trucks, and the
profit of Okumkom Cold Store
aforesaid. Consequently the said
house is held by the defendants
upon trust for the plaintiff’s
late husband’s estate
beneficially.”
The amendment was allowed before
the plaintiff opened her case.
That was not all. A day before
the closing address of the
plaintiff’s counsel (and he had
the last word) an application to
further amend the plaintiff’s
statement of claim was granted
by the court. The proposed
amendment as filed sought to
omit the whole paragraph 15 and
substitute therefor the
following new paragraph:
“15. By reason of the foregoing
matters plaintiff claims:
(i) A declaration that the
shares held by the late
Ofori-Panin Ofori-Atta in the
company Beyeeman Freezing
Company Ltd were held by him
upon trust for the late husband
of the plaintiff, namely Edward
Akufo-Addo, deceased.
(ii) An order of the court
terminating and putting an end
to the said trust.
(iii) A further order directed
to Beyeeman Freezing Company
Limited to take all necessary
steps to cause the said shares
being 1,950 ordinary shares in
the said company, to be
registered with the Registrar of
Companies in the name of the
plaintiff herein as the holder
of the legal title therein.
(iv) A declaration of ownership
of house No 1203, Kaneshie
Housing Estate, Accra, as holder
of the legal interest in the
leasehold of the said land, and
(v) Possession of house No 1203,
Kaneshie Housing Estate, Accra.
The bedrock of the plaintiff’s
case at the trial was that
during the lifetime of
Ofori-Panin he admitted that he
had used the proceeds of the
sale of eight vehicles belonging
to the plaintiff’s late husband
to finance the Okumkom Cold
Stores (OCS) and also to pay the
deposit on the Kaneshie house.
BFCL was said to have been
incorporated out of the profits
of OCS. Ofori-Panin was the
junior brother of the plaintiff.
The pages of his adult
life-story were laid bare before
the court by his doting sister
and they revealed some traits of
profligacy in his early business
contacts until he settled down
to run the OCS. It was during
this period, when he was said to
have completely turned over a
new leaf that he allegedly
sought to revive the paternalism
of the brother-in-law who had
started him up in business and
acknowledged the source of the
money that had financed OCS. The
story about the admission by
Ofori-Panin seemed to have not
been secret within her family
circle. She called her Aunt,
Gladys Agyepong, her cousin Mary
Bondzie and her half brother,
Fraser Ofori-Atta to support
Ofori-Panin’s admission.
The trial judge believed the
evidence of the plaintiff and
her witnesses and deduced that
Ofori-Panin held his shares in
BFCL and the Kaneshie house in
trust for Edward Akufo-Addo
(Akufo-Addo), the plaintiff’s
late husband, and gave judgment
for the plaintiff. On appeal to
the Court of Appeal, the
judgment was reversed by the
court’s unanimous decision. The
judgment of Lamptey JA was given
the concurrence of his brothers.
The Court of Appeal allowed the
appeal, first on point of
procedure and, second on the
merits. In regard to the former,
it took the view that no leave
was granted in respect of the
new paragraph 5a quoted above,
which was sought to be inserted
and also that the second
application to amend (which has
also been quoted above) was
moved and granted by the trial
court in breach of Order 52 rule
5 of the High Court (Civil
Procedure) Rules 1954 (LN 140A)
because there was no evidence of
service of the application to
amend on the defendants’
solicitor and, if there had been
service, two clear days had not
intervened between the service
of the motion and the day named
in the notice for hearing. For
these reasons the Court of
Appeal held that the hearing of
the motion when the obligatory
conditions had not been
satisfied and complied with was,
in law, an exercise in futility
and a nullity and the trial
judge therefore, erred in law in
decreeing absolute title in the
house to the plaintiff.
Another view of the court on
this aspect of procedural
objection was that even if leave
had been granted to amend the
failure of the plaintiff to take
implemental steps to effectuate
the amendment by filing an
amended writ and an amended
statement of claim operated as
if the plaintiff had never
amended both documents. The
result was that there has been
no claim in respect of the
Kaneshie house to be the subject
of any judgment. These points on
the flaws in procedure were
never raised by the
defendants-appellants in any of
the grounds of appeal but were
taken up by the Court of Appeal
suo motu.
In reversing the judgment on its
merits the court purportedly
looked at the evidence of the
plaintiff and her witnesses
critically and scrutinised the
mass of the documents tendered,
and came to the conclusion that
the trial judge’s findings of
fact, particularly that
Ofori-Panin had sold eight
vehicles belonging to Akufo-Addo
and invested same in OCS and the
house, could not be supported,
having regard to the conflicts
and contradictions in the
evidence of the witnesses for
the plaintiffs and also the
statements in some of the
documents. Aggrieved by the
decision of the Court of Appeal
the plaintiff brought her appeal
to this court with as many
grounds of appeal as there were
adverse findings arraigned in
combat readiness to challenge
those findings. It will, in my
view, re-pay to quote the
important grounds on error of
law filed because of the answers
supplied to them by this court.
These grounds were formulated as
follows:
“(f) The learned justices of
appeal erred in law by
contravening the mandatory
provisions of rule 8(6) of the
Court of Appeal Rules 1962, (LI
218), in that they decided the
appeal before them exclusively
on grounds upon which respondent
before then had been given no
opportunity, sufficient or at
all, to contest the case,
wherefore the judgment of the
Court of Appeal in this suit is
in law a nullity.
(g) The learned justice of
appeal erred in law in ruling
that the plaintiff, in her
applications to amend her
statement of claim in the trial
court, had offended against rule
5 of Order 52 of the High Court
(Civil Procedure) Rules 1954 (LN
140A) and that by reason of that
offence any leave granted her by
the trial court was in law a
nullity.
(i) The learned justices of
appeal erred in law in ruling
that plaintiff’s failure to
comply with rules 7, 8, 9 and 10
of Order 28 of the High Court
(Civil Procedure) Rules 1954 (LN
140A) necessarily and
irremediably carried the penalty
that plaintiff’s statement of
claim and writ were never
validly or effectively amended
to raise a claim to ownership
and possession of house No 1203,
Kaneshie.”
The other grounds of appeal
sought to argue that all the
adverse findings were against
the weight of evidence. The
cumulative reasons contained in
the three judgments forming the
basis of the majority decision
of this court are as follows:
(1) As there was no implemental
amendment filed in respect of
both applications to amend to
which the court had granted
leave, the leave to amend became
ipso facto void under Order 28
rule 7. Accordingly, there was
no amendment before the court
which incorporated a claim in
respect of the Kaneshie house
and the judgment by the trial
court affecting that house was
void as the court had no
jurisdiction to decide on a
claim not before it; (2) rule 8
(1) of LI 218 which provides
that an appeal is by way of
rehearing entitled the Court of
Appeal to take up matters not
restricted to the grounds of
appeal filed irrespective of the
proviso in rule 8 (1); (3) in
certain special circumstances,
such as in void matters where
the party against whom the point
is taken can have no legal or
satisfactory answer if given the
opportunity to reply, the court
need not comply with the
provision in rule 3(6); (4) it
was inferred from exhibits O and
P that as at 11 August 1960 the
hirer, Akufo-Addo had not
discharged his obligations under
the hire purchase agreement and
UAC Motors still had a right to
repossess those eight vehicles.
Against that background
Ofori-Panin could not have gone
to take the vehicles; (5) the
plaintiff did not discharge the
burden of proving when
Ofori-Panin took over the four
vehicles from Apaloo, when he
collected the vehicles from UAC
Motors and when he sold the
vehicles; (6) plaintiff gave
evidence inconsistent with the
case she pleaded; and (7) the
alleged statement by Ofori-Panin
that he had sold the vehicles
and used the proceeds to finance
OCS and the house was not
legally admissible evidence.
Although I have great respect
for the opinions of my brothers,
I cannot persuade myself to
agree with them. The subject of
the Kaneshie house was,
certainly, one of those matters
which engaged a full dressed
trial at the court below as if
the parties had acknowledged
that the amendment which
outdoored it had been regularly
effected. After the parties had
expended so much energy and time
in fighting out that issue and
the losing party had even not
complained about how it got
itself introduced to the field
of contest, it is my respectful
opinion that for any court
thereafter to rule, without
more, that failure to comply
with rules 7, 8, 9 or 10 of
Order 28 necessarily carried the
penalty that the plaintiff’s
statement of claim and the writ
had never been amended in effect
so as to raise a claim to the
Kaneshie house will border on
the resort to arid casuistry to
defeat the ends of justice. The
breach of the relevant rules in
Order 28 is not irremediable as
rule 7 particularly permits the
extension of time to file the
amended process; see Hausa v
Hausa [1972] 2 GLR 469.
Indeed the Court of Appeal, and
for that matter the Supreme
Court, has an inherent
jurisdiction to order the record
of the trial to be amended so as
to comply with the facts proved
and the decision given: Clack
v Wood (1882) 9 QBD 276,
Thynne (Marchioness of Bath) v
Thynne (Marquins of Bath)
(1955) P 272 and also allow the
pleadings to be amended.
Yeboa v Bofour [1971] 2 GLR
199, CA fully acknowledges at
page 217 the general law that an
amendment may be allowed even on
appeal. This was what the West
African Court of Appeal did in
England v Palmer (1955)
14 WACA 659 when it
allowed the plaintiff-respondent
to amend the statement of claim
for the sake of using the
evidence on record to settle the
real controversy between the
parties. The above decisions
proclaim the moral truth handed
down in the dictum of Collins MR
in Re Coles and Ravenshear
[1907] 1 KB 1 at page
4 in which he said:
“Although I agree that a court
cannot conduct its business
without a code of procedure, I
think that the relation of rules
of practice to the work of
justice is intended to be that
of a handmaid rather than
mistress, and the court ought
not to be so far bound and tied
by rules, which are after all
only intended as general rules
of procedure, as to be compelled
to do what will cause
injustice.”
Order 28 was not so devised as
to enable it, at the least
bidding, assume the spectre of a
Frankenstein monster. The Court
of Appeal, since it was bent
upon deciding an aspect of the
appeal on the point of
procedure, should have called
the attention of counsel for the
plaintiff-respondent to it and
permitted him a hearing. It is
not difficult to guess what
would have been the reaction of
counsel if that court had
discharged its duty in allowing
him to contest the case on that
ground. He would certainly have
asked for extension of time to
implement the leave granted to
amend or, if the court still
stuck to the view that there
were no proposed amendments
before the court, renew his
application to amend. The
reversal must have hit the
plaintiff like a bolt from the
blue. That is why she agitates
before us for the first time
that the record be amended to
comply with the facts found and
the judgment given in the court.
Rule 23(3) of the Supreme Court
Rules 1970 (CI 13) puts the lid
on the controversy and empowers
the Supreme Court, in my view,
either to extend time to
implement the amendments or even
to admit the amendments suo
motu. For, rule 23(3) provides
that the court may, in hearing
any civil appeal make any order
necessary for determining the
real issue or question in
controversy between the parties.
The essential object of ordering
pleadings is to frustrate a
party from springing surprises
on his adversary. Accordingly,
when a party sets out to lead
evidence on a material fact not
pleaded it is for the opposing
side to object to it. If he
fails to do so it becomes
admissible evidence which the
trial judge is bound to
consider: Yartey v
Construction & Furniture (WA)
Limited [1962] 1 GLR 86.
The penalty provided in
Order 28 rule 7 is to prevent
the case being fought on those
matters for which the amendment
had been implemented. The court
cannot, from the above
principle, altogether disregard
the evidence on those matters.
Given all the above
circumstances this court ought
to have allowed the amendment
prayed for.
The plain language of rule 8(6)
of LI 218 can leave no room for
skirting its provisions by
adding certain exceptions. The
English practice on this aspect
differs somewhat in one small
area in that although the Court
of Appeal has power to give its
decision upon any ground not
specified in the notice, there
is no express stipulation
requiring the court to ensure
that the respondent has had
opportunity to contest that
ground. Be that as it may I
cannot conceive how that court,
faced with the audi alteram
partem rule, will deny the
respondent that right to contest
a ground which it has raised suo
motu. Lord Herschell laid down
the parameters of the practice
in The Tasmania (1890) 15
App Cas 223 at page 225 as
follows:
“A point not taken at the trial,
and presented for the first time
in the Court of Appeal ought to
be most jealously scrutinised. A
Court of Appeal ought only to
decide in favour of an appellant
on a ground there put forward
for the first time, if it be
satisfied beyond doubt, first,
that it had before it all the
facts bearing upon the new
contention as completely as
would have been the case if the
controversy had arisen at the
trial and next, that no
satisfactory explanation could
have been offered by those whose
conduct is impugned if an
opportunity for explanation had
been afforded them in the
witness-box.”
Those parameters show how a
point which had not been taken
before at the trial could be put
forward as a ground of appeal
for the first time at the
appellate level but they do not
prescribe the circumstances when
the denial of an opportunity to
the respondent to contest it may
be justified. The suggested
exceptions, if sanctioned, will
amount to re-writing the proviso
in rule 8(6) of LI 218.
It could not, in my view, be
legitimately inferred that the
expression “you have made it
only too clear to us that you
will go to all lengths to honour
your agreement with us” stated
in exhibit O was referable to
the hire-purchase agreements
between Akufo-Addo and UAC, nor
could it be inferred without
evidence of the outstanding
balances on the hire-purchase
agreements, that UAC had a right
to repossess the vehicles. The
documents evidencing the sale of
the vehicles show that except
for one of them which was sold
by CFAO on hire-purchase
agreement covering a period of
12 months commencing 2 April
1958, all the vehicles were sold
by UAC on a hire-purchase
agreement covering a period of
six months. By the end of 1958
the monthly instalment payments
on these seven vehicles should
have been completed. There was
also documentary evidence that
UAC Motors maintained an account
in respect of workshop repairs
in the name of Tema Haulage.
Both Akufo-Addo and Modesto
Apaloo kept a joint bank account
on this business: see exhibit K.
There was no reason why UAC
Motors would not have maintained
a similar account in the name of
Akan General Contracting
Company, which Ofori-Panin
operated. Indeed, there was
evidence that in February 1960,
UAC Motors presented the
estimated cost of repairs on
three of the trucks held by
Ofori-Panin, which ran into
£G1,000 and more. I am of the
opinion that the context of the
paragraph in exhibit O, which
mentioned the agreement related
more to the obligation of
Akufo-Addo to meet the cost of
repairs than to any obligation
of his under the hire-purchase
agreement.
As the terms of the
hire-purchase agreement with UAC
stipulated that the vehicles
should have been paid for by the
end of 1958, it cannot be
inferred that by May 1960 he was
still in breach of the
agreements and yet UAC was
prepared notwithstanding, to be
accommodating to Akufo-Addo.
One of the charges levelled
against the Court of Appeal is
that it based its decision on
speculations. We must not, under
the emblem of re-hearing allow
ourselves to fall into that same
pit lest the last error shall be
worse than the first. It is my
respectful opinion that the only
burden on the plaintiff,
regarding the eight vehicles,
was to prove that Ofori-Panin
took over the four from Modesto
Apaloo on his arrest. Beyond
that, she bore no burden of
proof, to retain the hackneyed
expression, to satisfy the trial
court as to when Ofori-Panin
collected the four vehicles,
which from exhibit O and P, was
to establish that Ofori-Panin
possessed and used the four
vehicles which he sent to UAC
Motors for repairs. He was still
in constructive possession of
them whilst they were left in
the custody of UAC. In the
normal course of events, it is
the party in control and use of
a vehicle he has taken to a
workshop for repairs who can
collect it from the workshop.
Therefore the question as to
when those vehicles were
collected and what was their
fate are matters which
Ofori-Panin alone could answer.
This conforms with the doctrine
often repeated by the court that
where the facts with regard to
an issue lie peculiarly in the
knowledge of a party, that party
has the burden of proving the
issue.
It has been explained that a
more frequently significant
consideration in the fixing of
the burdens of proof is the
judicial estimate of the
probabilities of the situation.
The risk of failure of proof
may, accordingly, be placed upon
the party who contends that the
more unusual event has occurred
- See McCormick’s Handbook of
the Law of Evidence (2nd
edition) page 787. In this
situation it will be more
unusual to contend that
Akufo-Addo, instead of
Ofori-Panin, collected the
vehicles from the workshop or,
as it seemed to have been
suggested elsewhere, that the
vehicles, some of which were
being re-activated, were allowed
to rot at the yard of the
workshop because there was no
evidence that Akufo-Addo
followed the recommendations in
exhibit P.
The evidence that Ofori-Panin
took over the four vehicles
operated by Apaloo after his
arrest was given by the
plaintiff herself. This piece of
evidence by the plaintiff was
never challenged in
cross-examination and it must be
deemed to have been admitted.
The evidence was supported by
the alleged admission by
Ofori-Panin that he had sold the
eight vehicles. In spite of the
fact that the plaintiff had
discharged the burden of proof
that Ofori-Panin collected the
other four vehicles, that
evidence was rejected by the
Court of Appeal because it was
too vague as to the time they
were handed over to Ofori-Panin
and also that it was in conflict
with a passage in the judgment
of the trial judge where he
stated that the evidence proved
beyond doubt that in 1958
Akufo-Addo bought out of his own
funds eight trucks which he
entrusted to Ofori-Panin for the
purpose of a business in which
the two of them were partners.
My brothers have also rejected
the evidence that Ofori-Panin
took over the said trucks
because they found internal
contradictions in the evidence
of the plaintiff.
The plaintiff had said in the
witness box that Modesto Apaloo
was arrested before the end of
the first year, which year was
properly understood to be 1958.
She continued to say that
Ofori-Panin went for the vehicle
after his arrest. Then in her
evidence-in-chief, which she
gave on a later date she said:
“At the time exhibit O was
written, Ofori-Panin was
controlling all the eight
vehicles. Modesto was arrested
in November 1960 and imprisoned
until 1966.” This latter
evidence that Modesto was
arrested in November 1960 has
provided a convenient weapon to
destroy the plaintiff’s evidence
that at the time exhibit O was
written, that is 18 May 1960,
Ofori-Panin was in control of
all the eight vehicles. The
conclusion has been reached that
as exhibit O admits that the
four vehicles being used by
Ofori-Panin had already been
sent to UAC Motors and as from
the plaintiffs’ own evidence
Modesto’s arrest was in November
1960, it could not therefore be
true that before 18 May 1960,
Ofori-Panin was, as variously
expressed, operating or
controlling any of the eight
vehicles.
As this court was only too
anxious to bind the plaintiff by
the very words with which she
expressed herself in the English
language, it is only fair to
remark that she used the word
“controlling” and not
“operating.” I hope it is not
being suggested that Ofori-Panin
had no control over the four
vehicles he was operating only
because he had consigned them to
the workshop at the time. If the
conflict in the date of
Modesto’s arrest is all too
important then its effect is not
to leave the court free to
accept one of the conflicting
dates and to employ it in
destroying the declarant’s
evidence in the witness stand
but rather the two contradictory
dates offered should be
described by the court; see for
instance, Okudzeto v
Commissioner of Police
[1964] GLR 588.
The thrust of the plaintiff’s
evidence was that Ofori-Panin
took over the four vehicles
after the arrest of Modesto
Apaloo ie before 25 May 1960.
For her to say that he was
arrested in November 1960 should
occur to anyone that it was an
obvious mistake, having regard
to her previous evidence that
his arrest was before the end of
1958 and the significance of the
date 25 May 1960, which set out
the outer limit of the period of
the take-over. The two dates
given for the arrest are some
two years apart and a court
which is minded in choosing one
of the dates for logical
deductions must be sure of the
accuracy of the preferred date
or else a false premise leads to
a wrong conclusion. Counsel for
the plaintiff has, in his
statement of case, ascertained
the date of arrest to be 20
November 1958. If by 20 November
1960, Modesto Apaloo had, indeed
been tried and convicted then
the absurdity of the evidence
that he was arrested on that
date becomes clearly apparent.
It is true that the pleaded case
of the plaintiff was that
Ofori-Panin held the shares in
BFCL in trust for Akufo-Addo
and, after his death, for his
estate. In her evidence she said
that when Ofori-Panin discussed
the share holding with
Akufo-Addo he said he had given
2.5% to the daughter of the
plaintiff and 97.5% to her. This
was after Akufo-Addo had told
Ofori-Panin that he must do
everything that was necessary
for the shareholding. To a
question whether her husband
used Ofori-Panin as a frontman
she replied: “my husband asked
him to do it for me and my
children.” The plaintiff gave
another piece of evidence which
the Court of Appeal found
relevant to quote, and it was
this: “Mr Gyampoh told me that
my brother, Ofori-Panin had
97.5% of the shares in BFCL and
had willed it away. I told
him the shares were mine.”
(Emphasis supplied by CA)
The Court of Appeal found that
there was conflict between the
indorsement on the plaintiff’s
writ of summons and her oral
evidence and held that the trial
judge’s finding on the issue of
the shares could not be
supported in law. Earlier in the
judgment that court had ruled as
follows: “It is trite learning
that a party is bound by their
pleadings. The learned trial was
not permitted to give a relief
which was not a relief claimed
by a party in its pleadings.”
This court has also found that
the plaintiff gave evidence
inconsistent with her pleaded
case, although it described it
as a minor complication in the
appeal, and was contented in
reminding us that the legal
consequence of such a situation
was well known.
The law on departure from
pleadings is disabling in that
the court must not allow a party
to make a case which is contrary
to his pleadings; see Briscoe
(R T)(Ghana) Limited v Preko
[1964] GLR 322, SC. This
departure rule is strictly
applied to pleadings. For Order
19 rule 17 provides that no
pleading shall except by way of
amendment, raise any new ground
of claim or contain any
allegation of fact inconsistent
with the previous pleadings of
the party pleading same. The
rule means that a party’s second
pleading must not contradict his
first; and the effect of the
rule is to prevent a plaintiff
from setting up in his reply a
new claim which is inconsistent
with the cause of action alleged
in the statement of claim; see
Earp v Henderson (1876) 3
Ch D 254.
The departure rule has now found
its way into the courtroom
whereby it is said that a party
cannot give evidence contrary to
what he has pleaded. A party
may, of course give evidence
which is contrary to what he has
pleaded, subject only to the
objection that it is irrelevant
or that it has not been pleaded,
if relevant. The only drawback
is that it may weigh against the
onus of persuasion to be
discharged by him. Such evidence
cannot, per se, lead to the
dismissal of the plaintiff’s
cause of action as the Court of
Appeal seemed to propound. The
crucial question is whether the
plaintiff’s evidence conflicted
with her case pleaded. I find no
such conflict raised by her
evidence where it seemed to me
she was merely reporting the
shareholding between Ofori-Panin
and her husband. She was not
under any legal obligation to
claim the shares for herself and
her children only because
Akufo-Addo had asked Ofori-Panin
to do everything necessary in
connection with the
share-holding and Ofori-Panin
had told Akufo-Addo that he had
disbursed them between the
plaintiff and her daughter.
As to what the plaintiff told Mr
Gyampoh that the 97.5% shares
Ofori-Panin willed away were
hers I think that
point was well answered by
plaintiff’s counsel in the
statement of the appellant’s
case when he put forward the
following argument:
“Whatever may have been the case
before Akufo-Addo’s death, and
it can be shown that there was,
in terms of equity, no conflict
even in Akufo-Addo’s lifetime
between those two claims (i.e.
her pleading that the shares
were held by Ofori-Panin in
trust for Akufo-Addo and her
statement in the course of her
evidence that the shares were
for her) still, at the time in
1982, when the plaintiff,
speaking to 2nd defendant,
claimed that the shares were
hers, there was not and could
not have been any conflict
between that claim and a claim
for her husband’s estate, in
view of the fact that the
plaintiff was the sole executrix
and trustee of her husband’s
estate, and did not claim the
shares in defiance of the estate
or in breach of the trust. The
finding, therefore, that the
learned trial judge’s finding on
the issue of the shares cannot
be supported in law is totally
erroneous and a serious
misstatement of the law.”
In rejecting the alleged
admission by Ofori-Panin as
inadmissible, this court relied
on the dicta of Fletcher Moulton
LJ in Tucker v Oldbury Urban
District Council [1912] 2 KB
317 where he said inter alia:
“It follows therefore that to
support the admissibility it
must be shewn that the statement
was to the knowledge of the
deceased contrary to his
interest… The claim had not been
made or the grounds formulated,
and therefore there was nothing
in the statements which at the
time entitled them to be viewed
as against the pecuniary
interests of the person making
them.”
Indeed, one of the holdings of
the Court of Appeal in the above
case was that the statements of
the deceased workman were not
admissible as declaration
against interest, in as much as
it must be shown that the
statements were to the knowledge
of the deceased contrary to his
pecuniary interests, and the
statements in question did not
satisfy that requirement, for
when they were made no claim had
been put forward nor was there
any reasons to believe that the
workman knew that he ever would
be able to make a claim.
Following the above dicta and
the judgment it has been
concluded in this court that as
at the time Ofori-Panin made the
statement no one had laid claim
to his Kaneshie residence or to
OCS of which he was the
ostensible owner it could not be
said that he made the statement
in the knowledge that it was
against his interest. The
conclusion reached above
attempts to add a new dimension
to the requirements to be met to
satisfy declaration against
interest as an exception to the
hearsay rule. The two main
requirements are, first the
declaration must state facts
which are against the pecuniary
or proprietary interest of the
declarant or the making of the
declaration itself must create
evidence which would endanger
his pocketbook if the statement
were not true; second, the
declarant must be unavailable at
the time of the trial. Minor
qualifications may be added. The
interest involved must not be
too indirect or remote; see e.g.
Smith v Blakey (1867) LR
2 QB 326. The declarant,
as in the case of hearsay
exceptions generally, must so
far as appears have had the
opportunity to observe the
facts, as witnesses must have.
This latter qualification is
often more stringently stated by
demanding that the facts must
have been within the declarant’s
peculiar knowledge: see for
instance Gleadow v Atkin
(1833) 1 Cr & M 410, 149 ER 459.
But, doubtless, nothing more
than the usual knowledge
qualification is intended to, or
can reasonably, be required. In
other words, the declaration
must have concerned a fact of
which he was personally
cognisant.
The new requirement now
projected by this court to make
such declarations admissible is
that at the time the
declarations are made someone
must have laid a claim against
that interest or, as I
understand it, a dispute must be
pending. I am unable to share
that view. In Sugden v Lord
St Leonards (1876) 1 PD 154,
CA, Jessel MR formulated
the principle which underlies
the admissibility of
declarations by decedents as
exceptions to the hearsay rule.
He said:
“As a rule the declarations
whether in writing or oral, made
by deceased, are in our law not
admissible in evidence at all.
But so inconvenient was the law
upon this subject, so frequently
would it have caused a most
crying and intolerable
injustice, that a large number
of exceptions have been made to
the general rule…
Now I take it that the principle
which underlies all these
exceptions is the same. In the
first place, it must be a case
in which it is difficult to
obtain other evidence, for no
doubt the ground for admitting
the exceptions was that very
difficulty. In the next place he
declaring must be disinterested;
that is, disinterested in the
sense that the declaration was
not made in favour of his
interest. And, thirdly, the
declaration must be made before
dispute or litigation, so that
it was made without bias on
account of the existence of
dispute or litigation which the
declarant might be supposed to
favour. Lastly, and this appears
to me one of the strongest
reasons for admitting it, the
declarant must have had peculiar
means of knowledge not possessed
in ordinary cases.”
It cannot, therefore, be laid
down as a legal dogma, flowing
from the authority of Tucker
v Oldbury UDC, that a
declaration against interest
made ante litem motem or when no
claim has been formulated, is
inadmissible. It must be
remarked that in spite of the
inherent element of bias,
declarations against interest
made pendente lite as
evidence, or post litem motem
are not rendered inadmissible;
see Whaley v Masserene
(1863) 8 Ir Jur (NS) 281. These
circumstances affect the weight,
not the admissibility, of the
evidence. In the same way has
the traditional qualification of
peculiar or personal knowledge
not been allowed to block the
admissibility of such
declaration. Thus declarations
have been admitted, though the
declarant had no personal
knowledge of the facts but
received them merely on hearsay;
Percival v Nanson (1851)
7 Ex 1.
The declarations in Tucker’s
case, in my opinion can in no
way compare with the declaration
of Ofori-Panin alleged in this
case. In the former the
statements made by the deceased
workman to the effect that he
had a whitlow on the thumb and
also that he did not hammer his
thumb, standing by themselves,
could not obviously amount to
declarations against his
pecuniary interest except where
he knew that a claim had been
put up or he could possibly
maintain a claim against his
employers. As Fletcher Moulton
LJ put it:
“The description of the trouble
in his thumb as whitlow was in
the mouth of an ordinary workman
a natural description which does
not seem to me to be, when
properly understood, contrary to
the facts of the case or
inimical to a claim on his part,
if he had lived to make one.”
Wherefore the court held that
the declarations were not
admissible because the
statements when made were not to
the workman’s knowledge against
his interest. The statements
could also not be received in
evidence as admissions against
his dependants who had applied
for compensation under the
relevant Workmen’s Compensation
Act 1960 for injuries to his
thumb, in as much as the
dependants had a direct
statutory right against the
employers; and the dependants,
as applicants, did not derive
title to compensation by
derivation from him.
The statements by Ofori-Panin to
the effect that he had sold the
vehicles of Akufo-Addo which he
held in his fiduciary position
and that he had used same to
start his business and pay the
deposit on a house were openly
declarations against his
interest whether or not at the
time he made the declarations
some claims had been formulated
against the property. The
peculiar or personal knowledge
requirement was satisfied since
Ofori-Panin alone, from the
circumstances of the case, knew
what he had done with the
vehicles and he was in a
privileged position to make the
declarations. The operation of
the peculiar or personal
knowledge requirement is
illustrated by Lloyd v Powell
[1913] 2 KB 130, CA
(which was reversed upon other
grounds) where in a claim
(similar to Tucker’s
case) by A, a posthumous child
of B, to prove dependency and
paternity: statements by
(deceased) promising to marry
A’s mother, and other statements
that he intended to marry and
make a home for her, and that he
was the father of A were held
inadmissible as declarations
against B’s interest, since (1)
a promise to marry is not
against the interest of either
party; (2) a statement as to
paternity by an alleged father,
unlike one by a mother, is not
one as to a fact of which he has
peculiar, or direct personal
knowledge.
The declarations made by
Ofori-Panin bore so much the
weight on the judgment of the
trial judge that my disagreement
with the view expressed that
they were, after all, not
legally admissible must afford
sufficient excuse for this
lengthy incursion into the law
on the subject. As I have
convinced myself that the
judgment of the Court of Appeal
cannot be sustained for the
reasons given I have to consider
whether the dismissal of the
appeal by this court can be
justified upon those findings of
fact made by the Court of Appeal
which essentially went against
the credibility of the plaintiff
and her witnesses whose evidence
the trial judge had believed in
its entirety.
The law on an appellate court’s
approach to findings of fact
made by a trial judge is well
known. To put it tersely, it is
that where a finding of fact of
the trial judge is based on the
credibility of witnesses an
appellate court is not entitled
to come to a different
conclusion on the evidence
unless it is satisfied that any
advantage enjoyed by the trial
judge of having seen and heard
the witnesses could not be
sufficient to explain or justify
the judge’s conclusion: Watt
(or Thomas) v Thomas [1947]
1 All ER 582 HL, As Lord
Sankey LC put it in
Powell v Streatham Manor Nursing
Home [1935] AC 243 at 249,
250: “The judgment of a judge
who has heard and seen witnesses
and has reached a conclusion or
drawn an inference as to the
weight of their evidence is
entitled to great respect,
whether or not he comments on
their credibility or says
expressly that he prefers one to
another.” And so the question
that emerges as of decisive
importance is whether the Court
of Appeal was entitled or
obliged to set aside the crucial
finding of fact by the trial
judge (which was to the effect
that Ofori-Panin made the
declarations against his
interest), and thereafter to
deal with the case at large.
To justify its interference the
Court of Appeal set out to
demonstrate that the plaintiff
and her witnesses were not
worthy of the premium set on
their evidence because of the
alleged conflicts and also
because of the documents
tendered which destroyed the
plaintiff’s case. The statement
of case filed on behalf of the
plaintiff-appellant provided, in
my view, formidable answers to
all the reasons propounded for
disbelieving the plaintiff and
her witnesses by showing that
those reasons were not backed by
any evidence on record.
A few examples from the judgment
of the Court of Appeal may be
considered here. Much importance
was placed on the year 1960
which the court found to be a
significant year by reason of
exhibits O and P. The court
found that the evidence of PW1
and PW4 that Ofori-Panin had
told them that he had sold the
tipper trucks in 1960 was
plainly fabricated and
manufactured by them. The
judgment went on:
“Plainly and candidly speaking
PW1, PW4 and PW5 each told
bare-faced lies to the court,
namely, that Ofori-Panin
confessed to each of them that
sometime in 1960 he sold the
trucks. The learned judge erred
in accepting and believing the
palpably false and fabricated
evidence of each of these three
witnesses on this issue, namely
that Ofori-Panin told each of
them that he sold the tipper
trucks belonging to Akufo-Addo
in 1960.”
As pointed out in the
plaintiff’s statement, there was
no evidence on record showing
that each of these witnesses had
said that Ofori-Panin had
mentioned 1960 as the year in
which he sold the trucks. Indeed
PW5 never testified about any
sale of the trucks by
Ofori-Panin. Strangely enough
the court, after condemning the
alleged evidence of PW5 on the
sale of the trucks by
Ofori-Panin in 1960, said
elsewhere in the judgment (after
a verbatim quotation of part of
his evidence) that PW5’s
evidence did not corroborate and
support the evidence before the
court that Ofori-Panin in 1960
sold the tipper trucks. The use
to which the Court of Appeal
employed exhibits O and P
appears plainly in the judgment
where it stated that because
there was no evidence that after
11 August 1960 Akufo-Addo on his
return from Germany gave
instructions on the four trucks
Ofori-Panin had sent to UAC
Workshop they remained in the
possession and custody of that
company for the whole of 1960
and (as the court said at page
475 of the record) also in 1961.
There was certainly no evidence
before the court from which it
could conclude that UAC workshop
was in possession in 1961. The
court found from exhibits O and
P that the oral evidence that
Ofori-Panin sold the trucks in
1960 was exposed as a pack of
lies. The invalid inference
drawn from exhibit P that
Akufo-Addo did not in fact give
the instructions and therefore
the trucks remained at the
workshop was destroyed by the
evidence of the plaintiff on
record that Akufo-Addo had the
vehicles repaired and
Ofori-Panin collected them.
Let us take the evidence of PW1,
for instance. Like the other
witnesses the Court of Appeal,
either attributed to her certain
pieces of evidence she had not
given or misread her evidence
and caused havoc with it. It was
attributed to her that she has
confessed that she was at school
in Kumasi in 1958 and 1959 and
did not live in Accra and Tema
during that period whilst her
true evidence was that she went
to Kumasi in 1960 and attended
school there for two years. It
was said that she did not
throughout her evidence-in-chief
testify that Ofori-Panin had
told her that he had sold trucks
belonging to Akufo-Addo. She
most certainly said so in her
evidence-in-chief. If she did
not say so then it is strange
that, that court had earlier on
found that she had conspired
with the plaintiff, PW4 and PW5
in giving that evidence. Again,
it was said that she never
testified that Ofori-Panin had
told her that he had invested
the proceeds to finance OCS and
pay the deposit on the house.
Here again that finding was
contrary to the clear evidence
of PW1 on record.
The Court of Appeal referred to
a passage in the judgment of the
trial judge which stated that in
1962 or thereabouts Ofori-Panin
had already confessed to PW1 and
PW4 that he had sold the eight
trucks and invested the proceeds
partly in meat importing
business and paying the deposit
on the house. The Court of
Appeal found that PW1 never gave
that evidence attributed to her
by the trial judge and held that
he erred when he purported to
rely on her non-existing
evidence in reaching his
conclusion on the matter. The
Court of Appeal erred in its own
conclusion because, as noted,
PW1 certainly gave that
evidence. From the very onset in
its efforts to expose the
evidence of PW1, PW4 and PW5 as
manufactured the Court of
Appeal, to start with PW1,
quoted the following evidence
which was said to deal with the
sale of the trucks:
“This was about 1958 to 1959
when Ofori-Panin went to Tema. I
went with them. The vehicles
broke down and the business
collapsed. I was at school in
Kumasi.”
Commenting on the above evidence
the court said:
“The only credible evidence from
the above passage was that PW1
was at school in Kumasi. She
told a barefaced lie when she
said that the vehicles did break
down in 1958: She lied when she
said the business did collapse
in 1958 or 1959. PW1 told a pack
of lies to the court on this
point because the vehicles were
bought new from UAC Motors in
1958. She manufactured the above
evidence.”
To appreciate what injustice had
been done to her evidence a
verbatim quotation of a fuller
extract of her recorded evidence
is produced hereunder as
follows:
“The store was closed down when
it was empty. We were living
with Ofori-Atta until the store
was closed. Not long after some
vehicles were bought for him,
which he took to Tema together
with his ordinance wife and my
mother. The wife was Beryl. The
trucks were bought for him by
Akufo-Addo. Cousin Kweku Ofori
did not keep secrets from us. He
spoke about all his business and
it was he who told us the trucks
were bought by Akufo-Addo. This
was about 1958 to 1959 when he
went to Tema. I went with them.
The trucks were used for sand
and stone as contractors. One Mr
Apaloo also held some of the
trucks and they worked with
them. The vehicles broke down
and the business collapsed. I
was at school in Kumasi, when I
came back, cousin Kweku
Ofori-Panin had moved back to
Accra. My mother was still at
Tema. Kweku Ofori-Panin always
visited Tema and he came to tell
us he had sold the broken down
vehicles and he was working with
the money and he had used part
of the money to buy a house at
Kaneshie.”
It is, of course, known that
under cross-examination, PW1
said she was at school in Kumasi
for 2 years from 1960. From the
above extract it is impossible
to attribute to PW1 that she had
said that the vehicles broke
down in 1958 or 1959. Having
attributed to her the false
evidence that she was at school
in Kumasi when the vehicles
broke down and the business
collapsed in 1958 or 1959, the
court was free, literally, to
let loose fire and brimstone on
her because whatever she said,
tested in the light of that
false evidence, could not stand
thereafter. I need not go any
further in exploring the flaws
in the evaluation of the
evidence of the plaintiff and
her witnesses by the Court of
Appeal. They have been fully and
graphically set down in the
appellant’s statement of case. I
will accept the basic reasoning
in the statement.
The statement of case of the
respondents failed to come to
grips with the torrent of
powerful arguments advanced but
only provided isolated and
feeble answers. Ultimately the
respondents seem to concede that
the decisions of the Court of
Appeal cannot be supported on
the basis of the reasons given;
but it was argued on their
behalf that since the appeal was
by way of re-hearing this court
was entitled to look at the
evidence and arguments to decide
whether the plaintiff indeed
made a case for resulting trust.
If the court does so, the
argument went on, it will find
that the Court of Appeal
judgment or conclusion can be
supported perhaps on different
grounds. I cannot fathom any
valid grounds to support the
conclusion reached by the Court
of Appeal. In my view the
judgment of the appellate court
below was fatally flawed, and
its reasoning in its decisive
phase which persuaded it to set
aside the crucial findings of
fact of the trial judge, unsound
and unsatisfactory. Its defects
emerged clearly not only from
the state of the recorded
evidence with which the court
failed in its duty to keep faith
and consider but also from the
internal reasoning of the
judgment itself which either
drew upon invalid inferences or
embarked upon speculations.
Again the court misunderstood
the effect of the documents,
particularly exhibits O and P
upon which the judgment was
founded. For these reasons, and
for the reason that the court
failed to comply with rule 8(6)
of LI 218, I would hold that the
judgment of the Court of Appeal
ought not to stand and should be
reversed.
The reversal of the judgment
will necessarily restore the
decision of the trial court for
our consideration. In this
regard the plaintiff/appellant
prays this court to pronounce a
grant in express terms of the
reliefs claimed by her in her
amendment for the two
declarations and three
consequential orders there
sought by her and for which, as
noted the trial judge granted
leave to amend. In order to
determine the real question in
controversy between the parties
I, for my part, will first admit
as part of the record all the
amendments filed by the parties
in terms of rule 23(3) of CI 13.
The Court of Appeal took the
stand that as the plaintiff
totally failed to prove her
claim that Ofori-Panin took away
the eight vehicles and sold them
and also that he made the
alleged declaration against his
interest, there was no need for
the trial judge to have invoked
the law of trusts to assist the
plaintiff. The court refused to
engage itself in examining the
application or otherwise of the
law of trusts to the plaintiff’s
claim. Counsel for the
defendants-respondents invited
the court to such examination as
the attitude of the Court of
Appeal did not mean that it
approved of the trial judge’s
exposition and application of
the law of trusts to the facts
of the case. It can truly be
said that the decision of the
Court of Appeal left at large
the issue as to the
applicability of the law of
trusts and, if it did, how it
was to be applied.
In his address before the trial
judge counsel for the defendants
argued that even if the court
accepted that the proceeds of
the eight vehicles went to
purchase the house and set up
BFCL, both constituted joint
property and not for Akufo-Addo
alone. He argued further that as
the value of the house was known
the court could determine the
proportionate share of
Ofori-Panin in the house and
that the doctrine of
apportionment applied to BFCL
for the following reasons:
“1. Since its incorporation in
1970 Ofori-Panin Ofori-Atta run
the company until 12/4/82. He
commissioned the feasibility
report which was submitted to
the National Investment Bank.
2. He incorporated and
registered Beyeeman Freezing
Company and paid the
registration fee. He paid the
development levy on the land
where Beyeeman Freezing Company
now stands. He also gave a loan
of ¢128,000 to the company as
disclosed in exhibit NN. DW4
said that amount has not been
paid back to him. He paid
¢150,000 to the NIB as his
contribution from his fixed
deposit.”
He maintained that in view of
his contributions outlined above
he became a part owner of BFCL.
The defendants’ counsel did not
abandon his call to declare
Ofori-Panin part-owner in his
submissions before the Court of
Appeal in spite of his attempts
to show that the resulting trust
pleaded by the plaintiff was in
conflict with her evidence which
supported an express trust.
Counsel hammered on the
financial contributions made by
Ofori-Panin and further argued
that as the trial judge had
found that Akufo-Addo was in
partnership with Ofori-Panin in
the sand and stone business then
if the assets of the partnership
were sold and invested in some
other businesses it could not be
said that Akufo-Addo alone
contributed all the capital
since Ofori-Panin brought in his
labour and expertise in addition
to the physical cash he
contributed. Counsel
particularly referred to
Hussey v Palmer [1972] 3 All
ER 744 and invited the Court of
Appeal to apply the principle in
that case since it would be
unconscionable to vest the whole
property in the plaintiff. It
may give some comfort to the
defendant-respondents to be told
(following the line of argument
of their counsel) that the trial
judge, on his part, found a
constructive trust and not a
resulting trust as pleaded.
Writing in 1957, Professor
Hanbury in his Modern Equity
(Seventh edition) at page 98
made an urgent call for an
authoritative modern
classification of trusts. The
ambit of the express trust is
well known. As regards land, it
is trust expressly declared by
deed, will or other written
instrument; as to personalty
(other than leaseholds) the
trust can be expressly created
by parole. Apart from express
trusts, trusts may arise out of
the operation of law. Although
the latter type of trust has
been divided into resulting and
constructive trusts there has
been some confusion which has
persisted to the present day as
to whether they arise in
different circumstances and
their effect is different. In
Gissing v Gissing [1971] AC
886 at page 905 Lord Diplock had
said:
“A resulting, implied or
constructive trust and it is
unnecessary for present purpose
to distinguish between these
classes of trust is created by a
transaction between the trustee
and the cestui que trust in
connection with the acquisition
by a trustee of a legal estate
in land, whenever the trustee
has so conducted himself that it
would be inequitable to allow
him to deny to the cestui que
trust a beneficial
interest in the land acquired.
And he will be held so to have
conducted himself if by his
words or conduct he has induced
the cestui que trust to act to
his own detriment in the
reasonable belief that by so
acting he was acquiring a
beneficial interest in the
land.”
Then at page 906 Lord Diplock
continued to expatiate on the
law on resulting trust as
follows:
“As in so many branches of
English law in which legal
rights and obligations depend
upon the intentions of the
parties to a transaction the
relevant intention of each party
is the intention which was
reasonably understood by the
other party to be manifested by
that party’s words or conduct
notwithstanding that he did not
consciously formulate that
intention in his own mind or
even acted with some different
intention which he did not
communicate to the other party.
On the other hand, he is not
bound by any inference which the
other party draws as to his
intention unless that inference
is one which can reasonably to
drawn from his words or conduct.
It is in this sense that in the
branch of English law relating
to constructive, implied or
resulting trusts effect is given
to the inferences as to the
intentions of parties to a
transaction which a reasonable
man would draw from their words
or conduct and not to any
subjective intention or absence
of intention which was not made
manifest at the time of the
transaction itself.”
From the above remarks of Lord
Diplock the basis of both
resulting and constructive
trusts is the inferred intent.
In Canada the Supreme Court came
out with divergent views in
Murdoch v Murdoch (1974) 41
DLR (3d) 367. There, the
plaintiff’s wife, basing her
claim on the law on trusts,
sought a beneficial interest in
certain properties and assets
which were vested in her
husband’s name. These properties
were ranch properties which had
been acquired over fifteen years
and on which she had carried out
duties as a ranch wife.” It was
found as a fact by a majority of
the court that “what the
appellant had done while living
with the respondent, was the
work done by any ranch wife. The
Supreme Court, with Laskin J
dissenting, held that the wife’s
claim would fail. Delivering the
judgment of the majority,
Martland J relied particularly
on the remarks of Lord Diplock
in Gissing v Gissing to
find that no resulting trust
existed. As the court could
discover no common intention
that the beneficial interest was
to belong to both spouses, the
wife was given no interest in
the property. On the other hand,
in his dissenting judgment
Laskin J took a different view
of the application of the law of
trusts. Rather than attempting
to find an inferred agreement
and, thus, bring the concept of
the resulting trust into
operation, he sought to utilise
a particular view of the
constructive trust. He said:
“The appropriate mechanism to
give relief to a wife who cannot
prove a common intention or to a
wife whose contribution to the
acquisition of property is
physical labour rather than
purchase money is the
constructive trust which does
not depend on evidence of
intention.”
He based his view of the
constructive trust almost
entirely on its application in
the United States, quoting from
Scott on Trusts (3rd ed
1967 Vol 5 at page 3215) where
it was said that, the basis of
the constructive trust is the
unjust enrichment which would
result if the person having the
property were permitted to
retain it. Laskin J considered
that the wife was beneficially
entitled to an interest in the
property, although he did not
specify the size of the interest
and that the husband was under
an obligation as a constructive
trustee to convey that interest
to her. From the foregoing,
given that one’s approach is to
be based on the law of trusts,
the first question which arises
is whether the resulting or
constructive trust is the
appropriate mechanism in such
circumstances. Despite Lord
Diplock’s dictum earlier quoted
it has been suggested that the
kind of trust to be utilised is
of the essence as their basis
and effect are entirely
different. The basis of the
resulting trust is inferred
intent. If no intent can be
found then, as Mrs Murdoch
discovered, there can be no
resulting trust. On the other
hand, as Laskin J pointed out
(in Murdoch), the
constructive trust has nothing
to do with intent. Yet it is
clear from comments such as that
of Lord Diplock that this view
has not found general
acceptance.
Of essence also is the view of
the nature of the constructive
trust, that is whether it is a
substantive or remedial concept
which (in the latter sense) is
designed as a method whereby a
defendant can be required to
return property which he has
improperly acquired. There is
some evidence to suggest that in
England there is some support
for the remedial view of the
constructive trust taken by
Laskin J. In the difficult case
of Selangor United Rubber
Estate v Cradock (No 3)
[1968] 2 All ER 1073 at page
1097 for example, Ungoed-Thomas
J said that at least, one kind
of constructive trust was,
nothing more than a formula for
equitable relief. A somewhat
similar view was taken by Edmund
Davies LJ. In Carl Zeiss
Stiftung v Herbert Smith (No 2)
[1969] 2 All ER 367 at page
381, he emphasised what he
described as want of probity
which, he said, recurs through
and seems to connect all those
cases where a constructive trust
has been held to exist. Yet,
despite these judicial hints of
a more methodical
categorisation, the confusion
continues in England.
In Hussey v Palmer [1972]
3 All ER 744 at 747 Lord
Denning MR considered that the
distinction between resulting
and constructive trust was more
a matter of words than anything
also and went on to say that the
two ideas ran together.
Nonetheless, he went on to say
that it, without specifying
whether one or the other or
both, is an equitable remedy by
which the court can enable an
aggrieved party to obtain
restitution.
The upshot of all this didactic
digression is that until the
courts sloughed off this
accumulation of confused
terminology and firmly
recognised that resulting and
constructive trusts arise in
different circumstances and have
different basis so long may the
bench and the bar be enmeshed in
this confusion and fail to reach
a consensus on the two concepts.
It is, accordingly, of little
consequence in the case before
us whether the resulting or
constructive trust is the
appropriate device to supply the
remedy in such circumstances
found by the trial judge. What
is important is that the court
called
in the aid of equity (whether in
the guise of resulting or
constructive trust) to order
restitution. The larger question
is whether there was sufficient
evidence before the trial judge
which justified his conclusion
that was established. That
evidence which was supplied by
the plaintiff and her witnesses
was given a violent jolt by the
Court of Appeal, influenced
openly by the principle of law
enunciated by Brett MR in re
Garnet, Gandy v Macauley
(1885) 31 Ch D 1 at page 9 on
what the court’s attitude should
be when an attempt is made to
charge the estate of a dead
person on a matter in which if
he were alive he might have
answered.
Although the law, as explained,
is that the evidence ought to be
looked at with great care and
thoroughly sifted, and the mind
of the judge who hears it must
first of all be in a state of
suspicion that admonition should
not be over-stretched to place
any extra burden of proof on a
plaintiff who makes the charge.
That point was well considered
in Re Cummins, Cummins
v Thompson [1971] 3 All ER
782, CA where it was held
that corroboration of evidence
in a claim advanced against the
estate of a dead person was
unnecessary. In that case,
Plowman J at first instance had
said, inter alia:
“The courts have always taken
the view that in a case of
[this] sort the claim must be
regarded with suspicion
…corroboration is always
desirable…”
The Court of Appeal (Lord
Denning MR, Philimore and Megaw
LJJ) rejected the view that the
law required corroboration at
all costs. The court here
applied the dictum of Sir James
Hannen P in Re Hodgson,
Beckett v Ramsdale (1885) 31
Ch D 177, a case which closely
followed the heels of Re
Garnett and may properly be
said to have amplified the law
laid therein. At page 183 of the
report Sir James Hannen said:
“... it is said on behalf of the
defendants that this evidence is
not to be accepted by the court
because there is no
corroboration of it, and that in
the case of a conflict of
evidence between living and dead
persons there must be
corroboration to establish a
claim advanced by a living
person against the estate of a
dead person. We are of the
opinion that there is no rule of
English law laying down such a
proposition. The statement of a
living man is not to be
disbelieved because there is no
corroboration, although in the
necessary absence through death
of one of the parties to the
transactions, it is natural that
in considering the statement of
the survivor we should look for
corroboration in support of it;
but if the evidence given by the
living man brings conviction to
the tribunal which has to try
the question, then there is no
rule of law which prevents that
conviction being acted upon.”
And so did Hayfron J express
himself to be fully convinced by
the evidence of the plaintiff
which was, in fact, corroborated
by her witnesses. Corroboration
in this context, just as much as
in other contexts, does not
require that the corroborating
evidence should
cover the whole of the grounds
of the evidence it seeks to
corroborate. It must be remarked
that a declaration by a deceased
person against his pecuniary
interest is admissible whether
it is an acknowledgement or
recognition of a moral
obligation; see Coward v
Motor Insurers Bureau [1962]
1 All ER 531 at page 535. It
seems clearly from the
circumstances of their
relationship that it was in
acknowledgement of his moral
obligation to Akufo-Addo, which
induced Ofori-Panin to make
those statements against his
interest directly to Akufo-Addo
to the effect that he had sold
what was left of the vehicles
and had put some deposit on the
Kaneshie house and traded with
the balance. According to the
plaintiff, Ofori-Panin further
told Akufo-Addo that the trade
he started had succeeded and
proposed to Akufo-Addo that they
should build a cold store. If
any extrinsic corroboration was
required to rehabilitate this
piece of evidence by the
plaintiff it was supplied by the
undisputed evidence that
Akufo-Addo subsequently
mortgaged his property, the
Ringway Hotel, as a collateral
for the huge loan which went to
the construction and fitting of
the Beyeeman Cold Store. With
the obvious past experience of
his embarrassment by calls on
him from the banks and other
sources to satisfy the debts
Ofori-Panin left behind in his
operation of the sand and stone
business, it is not probable
that Akufo-Addo would have
willingly permitted the Ringway
Hotel to be so mortgaged if he
had no interest in Beyeeman.
As there was ample evidence to
support the finding of a trust
by the trial judge the final
question is whether he was right
in decreeing that the plaintiff
was absolutely entitled to those
properties covered by the trust.
The contribution made by
Ofori-Panin in offering his
acquired expertise and years of
labour, in the least, in
building up BFCL could not be
lightly passed over without any
commensurate reward. It would,
in my opinion, be inequitable on
the grounds of justice and good
conscience that the plaintiff
should take all the properties
for herself and completely write
off the contribution of
Ofori-Panin. The law must, in
turn impose a trust for the
benefit of the estate of
Ofori-Panin. In Hussey v
Palmer supra, a wife’s
contribution by her labour in
running a business with her
husband was held sufficient to
impose a trust for her benefit
and she was awarded a half share
in the business assets.
The call on the trial judge to
consider Ofori-Panin as a part
owner was merited. The main
objection for not acceding to
the call was that it had not
been pleaded. There was
evidence, however, in support of
the plea and nothing should have
inhibited the court from
imposing the agency of a trust
to do justice. In a real sense
as the trust is imposed by the
court it must of necessity be
external to the pleading and
cannot form part of it. Upon
balancing the equities and in
the light of equity being
equality I would, for the above
reasons, order an equal sharing
of the properties in dispute
between the estates of
Akufo-Addo and Ofori-Panin.
Subject to this, I would allow
the appeal.
OFORI-BOATENG JA.
I have had the benefit of
reading the opinions of my three
brothers, Wuaku, Amua-Sekyi JJSC
and Kpegah JA. I agree with
them. Accordingly, I also would
dismiss the appeal.
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner
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