Limitation of actions – Kumasi Town Lands – Ejectment – Applicable law.

Evidence – Burden of proof – Burden of persuasion – Claim against deceased– Claim to be assessed with scrutiny and suspicion.

Practice and procedure – Appeal – Findings of fact – Findings of trial court not supportable – Appellate court may substitute its findings.

Practice and procedure – Pleadings – Limitation – Court will not consider defence unless pleaded.

Practice and procedure – Pleadings – Estoppel – Court will not consider defence unless pleaded.

Practice and procedure – Pleadings – Acquiescence – Court will not consider defence unless pleaded.

Practice and procedure – Pleadings – Laches – Court will not consider defence unless pleaded.

The deceased built the disputed property in Kumasi in 1961, where he lived with his wives, and children and sister, till he died in 1985. After his death his sister claimed the property and instituted an action successfully in the circuit court to eject his wives and children. They appealed to the Court of Appeal.

Held: (1) Kumasi lands were governed by English law and the respondent's action was statute-barred. Construction of the house was completed in 1961 and the deceased moved into possession in the same year. Under the Limitations Act 1623 (21 Jac 1 C 16) lands suits were barred after twenty years from the accrual of the cause of action. The action should have been commenced by 1982. Under the Limitations Decree 1973 (NRCD 54) s 10 also, the action should have been commenced within twelve years from 1973, ie by 1985. Kwame v Serwah [1993-94] 1 GLR 429, SC referred to.

(2) Even more damaging to the plaintiff’s case was the fact that the action was instituted only when the deceased had died. The law was well established that a claim against a dead person should be viewed with utmost suspicion and examined critically. Such a claim must not be taken on its face; all tests for credibility ought to be applied. A high degree of proof, utterly convincing was required. Proof on the balance of probability was insufficient neither should the claim be established by the testimony of the claimant alone. The claimant ought to explain the omission to make the claim while the deceased was alive. Without some explanation the claim should be considered as false. Garnett re, Gandy v Macauley (1885) 31 Ch D 1, Moses v Anane [1989-90] 2 GLR 694, CA, Morris v Monrovia (1930) 1 WACA 70,

Thomas v Times Book Co Ltd [1966] 2 All ER 241, Re Agyepong (Deceased), Poku v Abosi [1982-83] GLR 254, CA referred to.

(3) The failure of the plaintiff to offer such explanation cast suspicion over her claim. The judgment was flawed by the omission of the trial judge so to treat the respondent's claim and the appellate court would make its findings and come to its conclusions. Codjoe v Kwatchey (1935) 2 WACA 371, Bonney v Yankum [1961] GLR 133, SC, Adji & Co v Kumaning [1982-83] GLR 1382, CA referred to.

Per Acquah JSC: Since issues of limitation, estoppel by acquiescence and laches were required to be specifically pleaded so as to afford the other party the opportunity to answer them but were not so pleaded and therefore not set down as issues for trial, it would be unfair, if not improper, to determine the fate of the plaintiff's claim on these unpleaded issues.

Cases referred to:

Adji & Co v Kumaning [1982-83] GLR 1382, CA.

Agyepong (Deceased), Poku v Abosi [1982-83] GLR 254, CA.

Akufo-Addo v Catheline [1992-93] GBR 937, [1992] 1 GLR 377, SC.

Amma v Nelson (1911) D & F ‘11 –‘16, 2, Griff Dig 93.

Asseh v Anto [1961] GLR 103, SC.

Attopee v Nancy (1853) Sar FCL 149, Griff Dig 92.

Bonney v Yankum [1961] GLR 133, SC.

Boun v Steele (1893) Sar FCL 77, Griff Dig 93.

Codjoe v Kwatchey (1935) 2 WACA 371.

Danford v McAnulty (1883) 8 App Cas 456, [1881-5] All ER Rep Ext 1512, 52 LJQB 652, 49 LT 207, 31 WR 817, HL.

Garnett re, Gandy v Macauley (1885) 31 Ch D 1, CA.

Iriri v Erihurhoban (1991) 1 WASC 428.

Kwame v Serwah [1993-94] 1 GLR 429, SC.

Morris v Monrovia (1930) 1 WACA 70.

Moses v Anane [1989-90] 2 GLR 694, CA.

Thomas v Times Book Co Ltd [1966] 2 All ER 241, [1966] 1 WLR 911, 110 Sol Jo 252.

APPEAL against the decision of the circuit court to the Court of Appeal.

E D Kom with him Paul Achiampong for the appellants.

K K Attobrah for the respondent.

BROBBEY JA. This is an appeal from the decision of the Kumasi Circuit Court over the disputed ownership of a house numbered as Plot 8, Block 2, situated at Manhyia in Kumasi.

The facts which gave rise to the dispute were as follows: One Opanin Kwadwo Oppong was the person who built the house. That was not disputed by the respondent, save that she claimed to have given to the late Oppong all the money he spent to build it. When the house was completed in 1961, he took occupation of it with his wives and children together with his sister who is the respondent in this appeal. Two years after their occupation of the house, the respondent vacated it. According to some of the witnesses who testified for the appellants, Oppong ejected her for misbehaviour. According to the respondent, however, she left the house on her own accord because the wives of Oppong were worrying her during her stay in the house and she felt she had to leave in order to allow her brother to live there in peace with his wives.

Oppong stayed in the house over 20 years till he died in 1985. After his death, the respondent instituted a consolidated action in the circuit court, initially asking for ejectment from the house of all the appellants who are the wives and children of the late Oppong. The circuit court gave judgment for her. It was against that judgment that the wives and children who shall hereafter be referred to as the appellants appealed to this court.

In arguing the appeal, E D Kom who appeared for the appellants contended that the facts of this were on all fours with the Supreme Court case of Kwame v Serwah, [1993-94] 1 GLR 429, SC. He therefore submitted that the principles enunciated therein should be applicable to this case. In that case, the Supreme Court found that the plaintiff bought and owned a piece of land in Kumasi but it was the defendant's father who built on it. It was held, inter alia, that:

(1) Kumasi lands are governed by English law and the rules on limitation of actions and estoppel applied to actions on Kumasi lands

(2) Ownership of the house should be proved distinctly from ownership of the land on which it was situated and further that the ownership of the land and house could be decreed in favour of different people.

(3) Proof of ownership of the house should be by inter alia evidence of actual construction and over acts of ownership after its completion.

The appellant’s grounds of appeal as appearing in the notice papers were as follows:

“(a) The judgment is very much against the weight of evidence.

(b) The plaintiff failed to discharge the burden of proof on her and the trial judge therefore erred in entering judgment in favour of the plaintiff.”

Mr Kom filed two additional grounds of appeal but abandoned the first and argued only the second ground. On the authority of Kwame v Serwah supra that Kumasi lands were governed by English law, the respondent’s action in the instant case was clearly statute-barred. Construction of the disputed house was completed in 1961. The late Oppong and the appellants together with the respondent occupied it in that same year. If the pre-1973 law of limitation were to be applied, the relevant statute would be the Limitations Act 1623 (21 Jac 1 C 16). It provided that suits in respect of lands were barred after twenty years from the date when the cause of action arose. Under that law, the action should have been commenced by 1982. Under the Limitations Decree 1973 (NRCD 54) s 10, the suit should have been commenced twelve years from 1973. By that Decree, this suit should have been commenced by 1985. In so far as the writ in the instant case was issued in 1987, the respondent’s suit was statute-barred both under the colonial law on limitations and the current Limitations Decree of 1973 (NRCD 54).

In his judgment, the trial judge relied mainly on documentary evidence in giving judgment for the respondent. Among those documents were rent cards notably exhibits 1 and B. It was his view that the mere fact that they bore the name of the respondent as the landlord supported her claim that she was the owner of the house. That view was fallacious because Kofi Owusu, the 2nd defendant, stated in no uncertain terms that it was he who inserted the particulars on the cards. Additionally, he maintained that he was instructed by the late Oppong to collect the rents; the respondent did not instruct him. Thirdly he gave the rent collected to the 6th defendant, the 2nd wife of the late Oppong. It was not given to the respondent. Lastly, he asserted that when the tenants left the house, it was the late Oppong who re-let the rooms to new tenants. He claimed to have lived in the house for 33 years as against the respondent’s stay for only two years. He surely must have known what he was talking about.

From his evidence it is obvious that he must have inserted the landlord’s name on the rent card on the instructions of the late Oppong who asked him to collect the rents. In the light of these cogent pieces of evidence, it could not be correct to conclude that the mere fact that the respondent’s name appeared on the rent card as the landlord made her the owner of the house.

The rent cards on which the respondent pegged her case and on which the trial judge placed much premium were even defective in that they stated on their face that “if the person receiving the rent was not the landlord please specify status” and yet the status of Kofi Owusu who was not the landlord but collected the rent was never specified on any of them. Significantly, too, the rent cards relied upon were dated 1982 after the house had been occupied by other tenants for over twenty years.

The trial judge allowed other documents like exhibits A1, A2 and A3, (receipts for property rates and rent taxes), to weigh unduly on his judgment. This was because they were issued in 1987, long after Opanin Kwadwo Oppong had died in 1985. They were clearly self-serving documents procured conveniently after the late Oppong had died and was in no position to challenge any move to pay the rates in the respondent’s name.

In her testimony, the respondent stated that she returned to live permanently in Ghana some 35 years before she testified. She testified in 1991. That implied that she returned to live permanently in Ghana in 1956.

If she had been paying rates and taxes on the disputed house, why could she not produce a single receipt or any witness to those payments made by her for all those years before 1987? It should be borne in mind that the onus was on her to prove all those allegations of payment by strict and convincing evidence. Her explanation that she left those matters to her brother Oppong because she was travelling up and down could not be true because she said she had come to live in Ghana permanently since 1956. Even if she did travel up and down as she alleged, she put up her own story building right opposite the house in dispute. According to her, she kept all such receipts for payments on that house. My view is that she did so because the house undisputedly belonged to her. She had no receipts on the disputed house because she knew it was not hers. That was why significantly, she could only produce receipts dated 1987. To my mind, those receipts and bills dated 1987 rather confirm that she did not own the house in dispute.

It was wrong for the trial judge to have concluded that the house belonged to the respondent because the indenture on the land on which it was situated bore the name of the respondent. From the record, I find three reasons for this: firstly, the indenture covered the land, not the house.

The trial judge proceeded on the principle of quic quid plantatur solo solo cedit. He did not mention the principle expressly but the application of that principle was apparent from the tenor of his judgment. That is a principle in English law and on the authority of the Kwame v Serwah case it may be said to be applicable to this case in so far as the land is situated in Kumasi. The peculiar facts of the case however do not justify the application of that principle. There is overwhelming evidence on the record which abundantly shows that it was the late Oppong who constructed the house and with his own money too. The second reason is that, no issue was joined as to ownership of the land in the statement of claim, statement of defence or the summons for directions. The only issue raised was who owned the house. The third reason is that, there was evidence that the late Oppong had constructed or acquired other houses in the names of his other sisters.

Apparently, that was a habit or practice of his. Those other houses were not said to belong to those sisters merely because they bore their names and not Oppong's name. It was not part of the respondent's case that he built it in trust or as a gift to his sister the respondent, and the evidence does not justify the conclusion that Oppong intended to create a gift or trust for her. He therefore must have built the house for himself. The trial judge therefore had no basis for holding that the disputed house was an exception to what was a known practice or habit of the late Oppong.

It is my considered view that if the trial judge had properly evaluated the evidence adduced before him and given adequate consideration to the points raised herein, he would not have based his judgment almost wholly on the fact that the documents bearing the respondent’s name led to the conclusion that she owned the house in dispute.

Even more fatal to the case of the respondent was the timing of the litigation. When the writ was issued in 1987, Opanin Kwadwo Oppong had died. The law is now well settled in Garnett re, Gandy v Macauley (1885) 31 Ch D 1 at page 9 per Brett MR 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 thoroughly sifted, and the mind of the judge who hears it to be first of all in a state of suspicion.”

In a similar case in which the head of family averred that the customary family had contributed towards the construction of a house belonging to a man who had died, this court set out the criteria for evaluating such evidence as follows:

“A claim against deceased's estate must be scrutinized with the utmost suspicion. Proof must be strict and utterly convincing.”

That was in Moses v Anane [1989-90] 2 GLR 694, CA. Indeed, in the old case of Morris v Monrovia (1930) 1 WACA 70 it was emphasised that:

“The well-established rule of law is that a person making a claim against a dead man cannot sustain that claim by his or her own deposition; and unless there be corroboration of it, something to satisfy the court that the assertion is literally true, the court can take no notice of it.”

There are well meaning policy reasons for the principle on evidence against dead persons. In Thomas v Times Book Co Ltd [1966] 2 All ER 241 the reason given was that “the actor in this story is dead and cannot therefore give his own version of what took place.” In Moses v Anane (supra) the reason given was that “one of the protagonists was dead and could not assert his claim.”

Speaking for myself, I would add a third reason which is as follows: A person who chooses to make those claims does so after the protagonist is dead because he may be presumed to be aware that if the protagonist were alive he would be able readily to produce evidence to disprove those claims. He chooses to make the claim after his death because it is his intention either to smother or conceal the truth by his own belief that the only person to challenge him effectively is in the grave. This, to my mind, is the main reason why almost all the authorities on the issue emphasise that such claim should be scrutinized with the utmost suspicion.

The obvious question which any objective observer would want to pose is this: “Why on earth did you not make your claim while the man was alive so that his version would be heard and a balanced judgment passed on the merits of the competing claims?” Unless such claimant is able to provide sound and convincing reason for not making the claim in the lifetime of the opponent, that claim should be taken with a pinch of salt.

Following that rationale was a case which was decided in this very court namely, Re Agyepong (Deceased), Poku v Abosi [1982-83] GLR 254, CA. In that case P obtained letters of administration to administer the estate of the deceased, alleging that she was married to him under the Marriage Ordinance, Cap 127 (1951 Rev). Caveats were entered by the respondent, inter alia. P was eventually granted letters of administration. Subsequently, the deceased's brother, alleging to be the head of family and customary successor, issued a writ against P claiming the self-acquired properties of the deceased. He contended that the marriage under the Ordinance of plaintiff to the deceased was fraudulent because at the time of that marriage the deceased was married to one N. It was held that the burden on the customary successor was to show not only by his own depositions but also by other material evidence that at the time the deceased and plaintiff got married under Cap 127 there was a subsisting customary law marriage between the deceased and N. Francois JA expressed his views at page 275 as follows:

“In my view, the respondent not having breathed a word of disquiet in the lifetime of his deceased brother on the legitimacy of his marriage to plaintiff and having kept his peace in the earlier trial up till the pronouncement of the Court of Appeal, the door should be firmly shut against him.”

The principles deducible from all the foregoing are these.

(1) A claim against a dead person should first and foremost be viewed with utmost suspicion by the trial court.

(2) This implies that the trial court should examine such claim critically. The claim should not be taken on its face value. All the tests of credibility of parties and witnesses should be applied and other evidence on record confirming or contradicting that claim should be considered before taking a conclusive decision on that claim.

(3) The person making such a claim assumes a much higher onus of proof because it is said that proof must be “utterly convincing” The implication is that proof on a mere balance of probability may perhaps not suffice. The claim of the claimant cannot be proved by his or her sole deposition.

(4) Above all, there must be evidence that that claim was made in the life time of the deceased or that the latter was given the opportunity to react to the claim while he was alive. If no claim was made in his lifetime, convincing reasons should be adduced by the claimant to explain why the claim was not made in his lifetime. Without such evidence or such explanation the claim should be considered as untrue until very convincing evidence is led in proof of it.”

In the instant case, there is no doubt that the respondent’s claim to the house was made after the death of Opanin Oppong. This is very apparent from the record of proceedings. Oppong died in 1985. The respondent never testified that she made any claim to the house prior to his death. The writs, which culminated in the consolidated suits, were issued in 1987, two years after his death. The mere fact that she waited till Oppong had died before she made her claim and further that no evidence or explanation was offered as to why no claim was made in his lifetime rendered her entire claim extremely suspicious. On the above authorities, the judgment of the trial judge was seriously flawed by his failure to treat the respondent's claim with the utmost suspicion.

That apart, there were several other factors which rendered her claim more suspicious. She claimed that she provided money for Oppong to construct the house. That was while she was living and working in Ivory Coast. According to her, she gave moneys to Oppong whenever she visited the Gold Coast. On her own showing, the payments were not in bulk, or made at one go. They were in bits and spanned over a long period. If her assertions were true, at least one person be he a member of or stranger to their family would have witnessed one such payment.

In her testimony in court, she never mentioned any witness dead or alive to any of the payments. She tendered no receipts, invoice, note book or any documentary evidence in support of the payments. In my opinion, she called no witness and tendered nothing in support because no payment ever took place. If it took place, it was not satisfactorily proved.

On the above authorities, she could not have proved her claim on the strength of her own depositions. The law required that proof of her claim be strict and utterly convincing. In the circumstance when no witness was called and no other evidence was adduced in proof of the payments, the trial judge grossly erred in his findings which presumed that payments were made by her to construct the house and she therefore owned it. I have already explained why I hold the view that the receipts for rates, rent taxes, rent cards and the indenture on the land did not in any serious manner advance the claim of the respondent.

The respondent averred that she paid £50,000 for the house. That was a colossal sum of money having regard to the value of money before 1961 when the house was constructed. Her ability to pay that huge sum of money was challenged. She led no evidence to demonstrate her wealth at that time. That made her ability to raise such sum of money rather questionable. Against that was all the evidence from the parties and the witnesses that the late Oppong was a very wealthy person who died possessed of 14 houses and was clearly capable of putting up the house in question.

In a claim as made by the respondent, it was imperative that evidence was led on the construction of the house. I have already referred to the respondent's testimony that she had been living permanently in Ghana since 1956. The house itself was under construction between 1956 and 1961 or at least before 1961. The construction was completed in 1961. The respondent said she gave money to Oppong to construct the house.

One of those who actually took part in the construction testified for the appellant as the PW3. He stated in no uncertain terms that during the construction he never saw the respondent at the site. He was not challenged on this. In any case, the respondent herself never testified that she visited the site even once when she was in Ghana. It is rather odd that a person would provide money for a house to be built for her and yet fail or refuse to visit the site even once during the construction.

PW3 further testified that Oppong paid the wages for the labourers. The respondent maintained that she provided the money for the payments. I have already explained that the evidence did not establish that any payment was made by her and that was why she called no witness or adduced any evidence in proof of it and if she made any payment to Oppong, it was not satisfactorily proved.

One of the requirements of the Supreme Court decision in Kwame v Serwah was that there should be proof of overt acts of ownership over the house after its completion. Evidence was led on behalf of the appellants that the late Oppong occupied the house with his wives and children as soon as it was completed. He remained there until he died on 1985, leaving his wives and children still in occupation. That was clear evidence of overt acts of ownership.

That the late Oppong had several houses in Kumasi was not disputed by any of the parties. The fact that he nevertheless chose to stay in the disputed house and not in any of the other houses confirmed that he believed the disputed house belonged to him.

While the late Oppong occupied 16 of the rooms, all the witnesses testified that the respondent occupied only one room. She stayed in the house for only two years. She vacated it in the second year for her reason that the wives of the late Oppong were worrying her. The reason she gave for vacating the house was not only unconvincing, but was also abnormal or unnatural. If a person owns a house as she claimed she did and the occupants who had no claim to it were worrying her, it was rather the occupants who had to quit and leave the owner with her property. To my mind, the fact that she vacated the house for his brother and his wives only confirmed that the house did not belong to her but rather belonged to the late Oppong. This point is further emphasised by the fact that when she left, she had no place of her own to stay but proceeded to rent a room in a house in Ashanti New Town. That house belonged to a person who was no relation of hers. Her vacating the house was no evidence of an act of ownership.

Thirdly there was evidence led on behalf of the appellants that rents were collected on behalf of Oppong and on his instructions. This was confirmed by the very person who collected the rent as well as some of the occupants of the house. No such testimony evidencing overt acts of ownership of the house after its completion was led by the respondent.

One strange fact about this case was that the late Oppong made a will before he died, yet he never expressly referred to the disputed house in that will. That omission was argued by counsel for the respondent to be confirming the fact that the late Oppong himself acknowledged that the house did not belong to him. That argument is a non sequitur. The will in question referred to only three of his houses situated at North Zongo, Suame and OTB 269/27, all in Kumasi. Yet the respondent and other witnesses confirmed that the late Oppong died owning about 14 houses. Nobody contended that the remaining houses did not belong to him because he did not mention them in his will. In any case, as counsel for the appellants rightly pointed out in his submissions, those houses not expressly mentioned in the will were adequately covered by clause 6, the residuary clause. On the authority of the Kwame v Serwah case, even if the respondent was the beneficial owner of the land, she was estopped by her own conduct in allowing her late brother to erect a huge four-story building thereon without raising any complaint or objection, allowing him to stay in it, rent and give parts thereof to occupants and exercise all manner of overt acts of ownership over the house. She is further estopped by laches for taking no steps to recover it from the late Oppong for well over twenty years after the completion of the house.

I have already explained that in the light of the decision in the Supreme Court case, the respondent’s action in the circuit court was clearly statute-barred. The attempts of counsel for the respondent to distinguish that case from the instant one was unconvincing. His distinction was based on difference in the acts. It is rather the principles in that case which were relevant and were equally applicable to the instant case. Following the decision in the Kwame v Serwah case, title in the land should have been decreed in favour of the respondent while title to the house ought to have been decreed in favour of the appellants, if ownership of the land was put in issue. But as has been explained already, ownership of the land was in no way put in issue. I would therefore make no comment on the ownership of the land or its relationship on the issue of ownership of the house, beside what have been stated here already.

The appellants filed no counterclaim in the trial court. No relief for declaration of title was applied for. The case was fought on the basis that it was a simple action for ejectment or recovery of possession of the house. Indeed the final order of the trial judge was to the effect that the appellants were to give up vacant possession to the respondent. The entire judgment and that final order were predicated on the premise that the house was owned by the respondent. The determination of the basic issue as to ownership of the house centered on proof. It was the kind of proof which was directly conditioned by the principles governing allegations made against a dead person. That proof naturally involved issues of fact. However, it is now settled law that an appellate court is not debarred from coming to its own conclusions on facts. This was the holding in Codjoe v Kwatchey (1935) 2 WACA 371 at page 374 where it was held that:

“The appeal court is not debarred however from coming to its own conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the Appeal Court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from overruling it if on full consideration it comes to the conclusion that the judgment is wrong …”

That principle was approved and applied in Bonney v Yankum [1961 ] GLR 133, SC. This court can therefore make its own findings of fact of fact on the issue of proof of the disputed house.

The trial judge did not at all advert his mind to the principles applicable to the onus of proof when allegations are made against a dead person. The above principles from WACA are however subject to the proviso that when an appellate court makes findings of fact which were not considered by the trial court, it must be demonstrated that there was evidence on record to support those findings. That was the main holding in Adji & Co v Kumaning [1982-83] GLR 1382, CA.

In the instant case there is more than ample evidence that the house was constructed by the late Oppong. The respondent claimed to have funded the construction. The onus was on her to have proved that she funded the construction. All her claim to funding the construction was made after the death of Oppong. That at once placed a heavy burden of proof on her. I must remark that the points on allegations against the dead person formed the main basis of the second additional ground filed by Mr Kom and I think it was well founded. In determining the onus of proof that lay on the respondent, the trial judge in no way considered the fact that making those claims against Oppong after he had died had very serious effect on that onus of proof. The respondent failed to discharge the onus that lay on her by her reliance on her own depositions and documentary evidence. Her claim that she owned the house because she funded its construction woefully failed. Her action should therefore have been dismissed.

I would allow the appeal and dismiss, simplicter, all the reliefs claimed by the respondent in her writ.

ACQUAH JA. I am constrained to put down a word having regard to the manner in which the trial judge approached the assessment of the evidence before him. The facts have sufficiently been set out in the judgment of my brother Brobbey JA, and I do not intend to repeat them.

Now the plaintiff’s claim in each of the two suits consolidated, is for the recovery of the rooms occupied by the defendants in Plot 8 Block 11, Manhyia, on the grounds that she and not the late Opanyin Kwadwo Oppong, is the owner of the said house. At the trial she alone testified and relied on the lease on the land in respect of which the house is built. The lease is of course, in the plaintiff’s name. She relied also on rent cards of two tenants; receipts of payment of conservancy rates, and the will of the late Oppong.

In his judgment, the trial judge held that the plaintiff “put in clear and positive evidence to prove that she is the owner of the house in dispute.” He accordingly granted her the recovery of possession of the rooms and further ordered that the defendants should vacate their rooms by 30 September 1993. The judgment was delivered on 6 August 1993. This means that they were given less than two months to vacate the rooms. If even the late Oppong made provision for them in his other houses, an order to vacate in less than two months was certainly harsh considering the undisputed fact that most of the defendants had stayed in the house with the late Oppong for over 20 years. For instance, the 2nd defendant testified that he had stayed in the house for the past 33 years; the 7th defendant, 31 years, the 5th defendant 35 years, the 4th defendant 30 years; the 8th defendant, 31 years and the 9th defendant, 34 years.

Be that as it may, the pieces of evidence which the trial judge relied upon as establishing the plaintiffs’ title to the house are the lease, exhibit E; the two rent cards, exhibit A and B; receipts on rates paid on the house, exhibit A1 A2 and A3; and finally the will of late Oppong.

My brother Brobbey JA has ably demonstrated in his judgment that the above pieces of evidence do not establish the plaintiff’s contention that she built the house and I agree with him. The lease document, for example, only establishes that the plaintiff is registered as the lessee of the land and therefore the legal owner thereof in accordance with the terms of the lease. This does not imply that she built the house; and that is indeed not her case. The ownership of the land was not an issue pleaded nor set down for trial. Neither did the plaintiff plead nor testify that she is claiming ownership of the house because she owns the land. In her pleadings, she positively pleaded that she owns the house and that she built it by sending money regularly to the late Oppong to construct it for her. Thus in paragraph 2 of each of her statements of claim, she averred:

“The plaintiff is the owner of House No Plot 8 Block 11, Manhyia, Kumasi.”

And in paragraph 3 of her reply to the statement of defence, she also pleaded: