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Land law and conveyancing – Sale
of land – Proof – Proof need not
be by testimony of eyewitnesses.
The plaintiff’s father, the
purchaser of the disputed
property on hire purchase terms
from the State Housing
Corporation, sublet a part of it
to the defendants’ father. The
former decided to move on
retirement from Labadi to
Frankadua, and offered the
property to the defendants’
father in exchange for a corn
mill. The defendants’ father
delivered the corn mill to
plaintiff’s father in exchange
of the title deed but the
parties when the parties sought
to complete the sale they were
informed by the corporation that
the purchase price must be paid
up. As the plaintiff’s father
could not pay off the
outstanding price, the parties
agreed that the defendants’
father would continue to pay the
hire purchase instalments in the
name of plaintiff’s father until
the purchase price was fully
paid for the transfer to be
effected. In compliance the
defendants’ father stopped
paying rent to the plaintiff’s
father but continued to pay the
hire purchase instalment until
1960 when the plaintiff’s father
died, and continued until he
also died when the defendants
continued until the purchase
price was fully paid. Sometime
thereafter the plaintiff
demanded rent arrears from the
defendants and gave them notice
to quit. The defendants replied
claiming ownership. The
plaintiff then sued in the
circuit court for possession,
rent arrears, mesne profits and
perpetual injunction restraining
the defendants from entering the
house.
The court gave judgment for the
defendants and the plaintiff
appealed unsuccessfully to the
Court of Appeal and then to the
Supreme Court. His counsel
argued that since the defendant
had acknowledged that the house
belonged to the plaintiff’s
father, the burden of proof lay
on them to establish the sale to
their father. He contended that
the lower courts erred in
relying upon long possession of
the premises by the defendants’
father and the surrender of the
title deeds to him as evidence
of the sale of the house.
Held,
proof of a sale of property need
not be by the testimony of
eye-witnesses. The courts below
rightly used long possession and
surrender of the title deed to
determine which version of the
parties was credible. Lawer v
Kwami (1958) 3 WALR 473,
Dodoo v Gyansa [1960] GLR 9,
Mieh v Asubonteng
[1963] 2 GLR 37, SC referred to.
Cases referred to:
Lawer v Kwami
(1958) 3 WALR 473.
Dodoo v Gyansa
[1960] GLR 9.
Mieh v
Asubonteng [1963] 2 GLR
37, SC.
APPEAL against the judgment of
the Court of Appeal to the
Supreme Court.
E D Kom
for the appellant.
Hodasi (Miss)
for Kudjawu for the
respondents.
BAMFORD-ADDO JSC.
By a lease made on 23 February
1952 between the Governor of the
Gold Coast acting by the Acting
Commissioner of Lands, on the
one hand, and the plaintiff’s
father (deceased) on the other
part, a plot of land with a
building thereon numbered 331,
South Labadi Estate was leased
to the plaintiff’s father for a
term of 30 years commencing on 1
May 1949 at the yearly rate of
twenty nine pounds eight
shillings, payable in 12 equal
instalments of two pounds, eight
shillings on the first day of
each month in advance during the
continuance of the said term.
The plaintiff’s father went into
occupation of the house on the
commencement of the lease and
was later joined in the house by
a tenant, being the defendant’s
father who paid a monthly rent
of five pounds to the
plaintiff’s father. The latter
moved to Frankadua, his hometown
later where he stayed until his
death.
In view of the very cordial
relationship between the two men
when the plaintiff’s father left
Accra he entrusted to the
defendants’ father the
responsibility of making the
requisite monthly instalments of
two pounds eight shillings to
the State Housing Corporation
which had taken over the
management of the South Labadi
Estate from the Ministry of
Works and Housing. The balance
remaining from the five pounds
rent was then paid by the
defendants’ father to the
plaintiff’s father who visited
Accra regularly and lodged at
the said house during those
visits.
In 1959 the plaintiff’s father
offered the house for sale to
the defendants’ father for four
hundred and fifty pounds (£450).
The former wanted payment for
the house to be effected in
exchange for a corn mill which
he wanted to take to Frankadua.
The defendants’ father who was
then a Manager at UTC bought a
corn mill which he sent to
plaintiff’s father. The
plaintiff’s father brought down
with him the title deed namely
exhibit 1 being the indenture of
lease on the house No 331 South
Labadi Estate and surrendered
same to the defendants’ father
to complete the bargain. The
defendants’ father went with
plaintiff’s father to the State
Housing Corporation offices in
Accra to request for the formal
transfer of title to the house
into the defendants’ father’s
name but were told that this
could not be effected until the
whole purchase price of the
house had been fully paid to the
State Housing Corporation. Since
the plaintiff’s father was not
in a position to pay off the
outstanding balance on the house
it was agreed between them that
the defendants’ father should
continue to pay the monthly rent
of two pounds eight shillings to
the State Housing Corporation in
the name of plaintiff’s father
until the full purchase price
was paid before the transfer
could be effected. Accordingly
the defendants’ father stopped
paying the plaintiff’s father
any rent but continued to pay
the two pounds in the name of
the plaintiff’s father until
1960 when the plaintiff’s father
died. He continued to pay the
said instalments to the State
Housing Corporation until 1964
when he also died. After the
death of the defendants’ father
the defendants and their uncle
DW1 continued to make payment to
the State Housing Corporation
until 1977 when the purchase
price of the house was fully
paid for.
From 1959 up to 1983 there was
no correspondence or contact
between the plaintiff’s father
or any of his children or
members of his family and the
defendants’ father or the
defendants until 26 December
1983 when the plaintiff wrote to
the defendants demanding arrears
of rent from February 1977 to
June 1984 and giving three
months notice to quit the house
or face legal action. The
defendants replied to that
letter on the 16 February 1984
to the effect that the house
belonged to their father and
would therefore not comply with
the request to quit the house.
Thereupon the plaintiff took
action at the circuit court
claiming: (1) recovery of
possession of house No 331 South
Labadi Estate; (2) arrears of
rent, mesne profits and (3)
perpetual injunction restraining
the defendants from entering
upon or in anyway interfering
with house No 331, South Labadi
Estate.
The circuit court gave judgment
for the defendants and the
plaintiff appealed to the Court
of Appeal which court upheld the
decision of the trial circuit
court and dismissed the appeal.
The plaintiff appealed again to
the Supreme Court.
The plaintiff filed seven
grounds which are (a) – (g),
substantially as filed and
argued in the Court of Appeal.
Counsel for the
plaintiff-appellant herein
(hereinafter called the
“plaintiff”) argued most of the
grounds together and submitted
that by the nature of the
plaintiff’s claim, the burden of
proof lay on him, but since the
defendants pleaded that the
house initially belonged to the
plaintiff’s father, but was
later sold to the defendant’s
father, the burden of proof
shifted to the defendants. He
cited the case of Lawer v
Kwami (1958) 3 WALR 473
where it was held that:
“A plaintiff, seeking a
declaration of title to land
must succeed on the strength of
his own case, but where a
defendant admits the original
title of the plaintiff, the onus
of proof shifts to the defendant
to show that the plaintiff has
been divested of his title. If
the defendant fails to establish
such divesting the plaintiff is
entitled to succeed.”
He argued that in order to
discharge the burden upon the
defendants they must prove by
positive evidence the purchase,
installation and the running of
the corn mill by plaintiff’s
father in his life time. Counsel
submitted that since there was
no positive evidence to
establish the sale of the house
to the defendants’ father both
the circuit court and the Court
of Appeal used long possession
and the surrender to the title
deed only, to prove the sale.
That they therefore erred in
giving judgment for the
defendants.
Proof of sale need not come from
evidence of eye witnesses to the
sale only. In the case of
Dodoo v Gyansa [1960] GLR 9
it was held that:
“Proof of ownership need not be
restricted to the evidence of
the vendor and to that of
eye-witnesses of the sale who
may or may not be alive when
litigation arises. Evidence of
acts of ownership in relation to
the property during the material
years is of no less probative
value.”
At p 10 of the report in that
case Adumua-Bossman J observed
as follows:
“It seems to me that proof of
ownership of land needs not be
restricted to the evidence of
the vendor or to that of eye
witnesses at the sale. It is the
exception rather than the rule
that, at the time of litigation
about the land, which has been
transferred by methods of
customary transfer, the original
owner and vendor (and the eye
witnesses to the transaction)
are alive to tell the tale. In
my experience, it is evidence
(if such be available) of the
exercise of acts of ownership
over the property during the
material years, which has served
as a beacon-light to guide the
court in determining ownership”.
It is not correct that the trial
circuit court judge based her
findings only on acts of
ownership over the house in
dispute by the defendants and
their father, during the long
material years of their
occupation but rather used that
evidence as a guide in arriving
at her decision that the
defendants’ case was more
preferable to the plaintiff’s
case and that the defendants had
proved their case on a balance
of probabilities. The learned
trial circuit court judge after
a thorough assessment of the
evidence before her found the
plaintiff’s evidence
unsatisfactory and gave judgment
for the defendants applying the
principle in Lawer v Kwami
cited above. At p 80 of her
judgment she stated as follows:
“The evidence adduced by the
plaintiff is not consistent with
acts of possession in the house.
Until the plaintiff wrote
exhibit D to the defendants in
1983 they had been in possession
of the house for a period of 23
years. It is trite law that long
uninterrupted possession of land
establishes 90% of proof to
title or possession in the land
except the true and bona fide
owner.”
The Court of Appeal in upholding
the circuit court’s judgment as
correct in law and on the facts
also in respect of the same
ground of appeal, which is
repeated in this appeal, applied
the principle in Lawer v
Kwami and made the following
findings:
“We have been urged to hold that
the trial judge in the present
case failed to direct her mind
to the point that since the
original title of the
plaintiffs’ father in the house
has been admitted by the
defendants, the onus was on them
to establish that their father
had bought the house from the
plaintiff’s father. Contrary to
counsel’s contention, I think it
is clear from the record that
the trial judge considered the
evidence on the issue (as I
shall demonstrate later) and
concluded that the plaintiff’s
father had been divested of his
title.”
The court continued that:
“In respect of the argument that
the judge based her judgment on
long possession I say
emphatically she did nothing of
the sort. What she did in my
view was to consider long
possession by the defendants as
evidence, which tended to show
that the defendant’s story was
true … In my opinion the trial
judge did no more no less than
what the trial local court
magistrate did in the case
quoted above by the trial Judge
herein, which was approved by
Akuffo-Addo CJ at pages 41 and
42 of the report that is Mieh
v Asubonteng [1963] 2 GLR
37, SC.
In Mieh v Asubonteng
supra it was held that:
“The principle of acquiring
title to land by prescription,
or usucapio as it is termed in
Roman Law, is not known to
customary law; though a claimant
to title to land may rely on his
long undisturbed possession to
the land in question as further
evidence of proof of his title”.
The submission therefore by
appellant that the trial circuit
court judge and the Court of
Appeal both used only long
possession and surrender of
title deed to prove the sale is
untenable. Those facts were only
used as a beacon light to guide
the courts in evaluating the
evidence from both sides and in
coming to their conclusions. The
circuit court held that the
defendants’ story was preferable
to that of plaintiff. In other
words the plaintiff’s denial of
the allegation that his father
had sold the house to the
defendants’ father was rejected
by the trial court, which found
the plaintiffs’ evidence to be
full of inconsistencies and
absurdities. The Court of Appeal
rightly affirmed the decision of
the trial circuit court both on
the facts and on the law in a
well-reasoned judgment.
The other substantial ground of
appeal filed was ground (e) of
the grounds of appeal and it
states that the “Court of Appeal
erred in law when it based the
dismissal of the appeal on the
ground that the lease granted to
the plaintiff-appellant’s father
had expired and that it had not
been renewed, completely
ignoring the fact that the
plaintiff-appellant had done all
he should have done to have
title vested in him and that the
State Housing Corporation had
instructed the Regional Lands
Officer, Greater Accra Region,
to prepare a leasehold in his
favour.
A similar ground was canvassed
unsuccessfully before the Court
of Appeal. Exhibit 1 is the
lease under which the
plaintiff’s father acquired the
interest in the house. By the
provisions of exhibit 1, the
plaintiff’s father was granted a
lease for thirty years from 1
May 1949. There was provision in
paragraph 5(2) thereof that at
the expiration of the 30 years
term the lessor shall if so
desired grant to the lessee a
new lease of the premises for a
further term upon certain
conditions, provided that the
lessee shall give to the
government two months prior
notice in writing of the
lessee’s election or desire to
renew the lease. The proper
construction of exhibit 1 is
that at the expiration of the 30
years from the date of the lease
that is 30 April 1979, the
lessee must give notice of
intention to renew otherwise the
lease would revert to the
lessor. There being no evidence
that the lease was renewed after
30 April 1979 the trial circuit
judge rightly held that the
reversion of the lease, exhibit
1 went to the State Housing
Corporation. The plaintiff’s
witness PW2, a lawyer attached
to the State Housing
Corporation, confirmed this in
his evidence under
cross-examination that on the
expiration of the lease the
reversion went to the landlord
unless of course when renewed.
The circuit court was therefore
right in holding that:
“It is true that from what I see
(meaning exhibit 1) after the
expiry of the 30 years, a lessee
should enter into a new
agreement with the government.
It is true there is nothing on
record to show that Amegazo
applied for a renewal of the
lease after the 30 years had
expired. After the expiration of
the lease the reversion goes to
the landlord”.
It is clear that the circuit
court judge restated the law on
the point based on the evidence,
and exhibit C, was irrelevant,
it having been written in error.
Hence the trial circuit judge
stated as follows:
“Since there is no evidence that
the plaintiff complied with
clause 5(2)(a) of exhibit 1, the
reversion in the house went to
the State Housing Corporation…It
is the view of the court that
since the defendants are already
in possession of the house in
question they are entitled to
stay there even though it is the
State Housing Corporation which
now holds possession thereof”.
The findings and conclusions of
the circuit court are correct
and properly confirmed by the
Court of Appeal in an impeccable
judgment which concluded that:
“On the whole, therefore, after
examining the pleadings, the
evidence and the judgment in
this case, and after considering
the law on the matter, I am of
the view that the decision of
the trial Judge is sound both on
the law and on the facts and
should not be disturbed”.
Upon these findings the
plaintiff lodged his appeal.
After careful consideration of
the various submissions made on
behalf of the
plaintiff-appellant here, I find
no reason to disturb the two
concurrent findings of the
circuit judge and the Court of
Appeal both on the facts and the
law and would dismiss the
appeal.
AMUA-SEKYI JSC.
I agree that the appeal be
dismissed.
WIREDU JSC.
The main issue raised for
consideration in this appeal is
whether at the time of his death
the late Joseph T Amegazo (the
deceased father of the
plaintiff-appellant) herein who
was the original lease holder of
the disputed house divested
himself of title to the said
house by way of sale to a Mr
Kemevor who was his tenant (also
now deceased) and the father of
the respondents. This issue is a
simple one of fact, which was
resolved in favour of
defendants-respondents by the
trial circuit court and affirmed
by the Court of Appeal thus
resulting in the concurrent
judgment in favour of the
defendants-respondents. Nothing
convincing has been urged on
behalf of the
plaintiff-appellant in this
present appeal to justify my
interfering with the findings of
facts made by the two courts
below. The appeal therefore
fails and I will also
accordingly dismiss it.
HAYFRON-BANJAMIN JSC.
I also agree.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner |
