Boateng v Boateng [1994 - 95] 2 G B R 915 – 924 CA

COURT OF APPEAL

ADJABENG, LAMPTEY, LUTTERODT, JJA

12 APRIL 1995

Practice and procedure – Appeal – Findings of fact – Appellate court will not interfere with findings of trial court that are supported by evidence.

The plaintiff instituted an action in the High Court against the administratrix for a declaration that the disputed house did not form part of the estate. The plaintiff alleged that the mother of the deceased had bought the land and constructed a swish building and an uncompleted structure on it. With her permission the deceased, the defendant’s father, pulled down the uncompleted structure and built the disputed house in place. The plaintiff therefore contended that the house was not the self-acquired property of the defendant’s deceased father. The defendant on the other hand, contended that her late father gave money to his mother to buy the land and he built those structures thereon. The trial judge accepted the defendant’s version and found that the mother acted as her son’s agent and that the land was the self-acquired property of the defendant’s late father. The plaintiff appealed to the Court of Appeal.

Held, the record of proceedings showed clearly that the trial judge did not accept the plaintiff's version of the case but rather preferred the defendant's version. Once the finding was supported by the evidence, the appellate court could not interfere. Bisi v Tabiri [1987-88] 1 GLR 360, SC referred to.

Case referred to:

Bisi v Tabiri [1987-88] 1 GLR 360, SC.

S K Amofa for the appellant.

Anin Yeboah for the respondent.

ADJABENG JA. The plaintiff-appellant who is the successor to the defendant-respondent’s late father, Jonas Kofi Boateng, instituted an action at the High Court, Koforidua against the defendant-respondent herein. His claim is for a declaration that house No BT/D7, Koforidua, which the defendant included in the inventory of the letters of administration she obtained in respect of the estate of her late father, was not the self-acquired property of the said deceased but rather family property.

The case put up by the plaintiff was that the land on which the house in dispute was built had been purchased by the deceased’s mother called Yaa Donkor. According to the plaintiff’s evidence, after purchasing the land in dispute, the said Yaa Donkor built a swish building comprising three rooms on a portion of the land and lived therein with her family. She also built a four-room uncompleted structure on the said land; that it was this uncompleted structure which the defendant’s late father with his said mother’s permission later pulled down and built the block house now in dispute in its place. It is the contention of the plaintiff-appellant, therefore, that the house built by the defendant-respondent’s late father could not be his self-acquired property. The plaintiff called three witnesses to support his case.

The defendant-respondent, on the other hand, contended that her late father had given money to the said Yaa Donkor with which the said Yaa Donkor, the mother of the defendant’s late father bought the land in dispute and built the swish buildings thereon. Defendant-respondent based her case on what she alleged her late father had told her, and also on the diaries kept by her said late father.

The trial judge accepted the story of the defendant, and so found that the defendant’s late grandmother, Yaa Donkor, in buying the land in dispute, acted as the agent of her son, the defendant’s late father. She held, therefore, that the land in dispute was the self-acquired property of the defendant's late father.

Dissatisfied with the decision of the court, the plaintiff appealed to this court. Four grounds of appeal were argued before us. These are the original ground (a) and the additional grounds 2, 5, and 7. These read as follows:

“(a) The learned trial judge erred in holding that Yaa Donkor acted as agent in acquiring the plot of land for her son J K Boateng when there was no evidence whatsoever in support of this claim.

(2) The learned trial judge erred when she dwelt her findings on the entries in the diaries which contained only entries on the block building and nothing about the acquisition of the land.

(5) The learned trial judge failed to consider the origin of the existing roofed swish building before Boateng built the block house and concentrated all her efforts on the block building, relying solely on self-serving evidence of the defendant-respondent.

(7) The rejection of exhibit A is wrong in law.”

Arguing the first ground above, that is, ground (a) counsel for the appellant submitted that the evidence showed that the plot of land on which the defendant’s father built the house in dispute had been purchased by Yaa Donkor, the defendant’s grandmother. Counsel submitted that the trial judge was wrong, in the face of this evidence of the plaintiff which was amply supported by the evidence of PW2 and PW3 in coming to the conclusion that the said Yaa Donkor acted as the agent of the defendant’s father in purchasing the land in dispute when there was no evidence corroborating such an assertion by the defendant.

In respect of the next ground of appeal argued, additional ground 2, it was argued by counsel for the appellant that there was nothing in the diaries of the defendant-respondent’s late father, tendered in evidence, about the acquisition of the land in dispute, but that the diaries contained only information about the expenses made in respect of the block building built on the land by the defendant’s father. It was contended therefore that the trial judge was wrong in concluding that “the house was the sole property of the late J K Boateng.”

It was also submitted that if the land in dispute had indeed been purchased by the defendant's father, there would have been no need for it to be transferred later from his niece, in whose name it had been registered, to him for a consideration of £800. The trial judge should therefore have dealt with the issue why the disputed land should have been so transferred to the defendant’s father by his niece, even at a police station. The failure of the trial judge to deal with this issue, it was contended, made it rather difficult for her to realise that the conduct of the defendant’s late father in this transaction was meant in counsel’s own words, “to throw dust into the eyes of members of the family.”

As regards ground 5 of the additional grounds of appeal, quoted above, the appellant’s counsel argued that the trial judge was wrong in ignoring the evidence of the plaintiff’s first witness whom counsel considered an independent witness. To counsel, the trial judge should have relied on this evidence rather than on the evidence of the defendant which the judge accepted, as counsel was of the view that the defendant’s evidence was self-serving and not from an independent source.

Lastly, counsel for the appellant submitted that the trial judge was wrong in rejecting a document, marked as R1, which the plaintiff sought to put in evidence. It was argued that there was no basis in law for the rejection of this document as it is a history of the land in issue written and signed by the defendant’s late father, and that it came into the custody of the plaintiff as the customary successor to the defendant’s father.

Counsel for the defendant-respondent readily conceded that this document, marked R1, was wrongly rejected by the court, and said he would not object to it being admitted in evidence. I agree that the rejection of this document cannot be justified in law as the reason given by the court that “no basis has been laid for it being tendered”, is untenable. The document ought to have been admitted in evidence as it was relevant and came from the proper custody. It is accordingly admitted by this court and marked CA1.

In reply to the other grounds of appeal argued, counsel for the respondent submitted in sum that the findings of fact made by the trial judge were supported by the evidence adduced, and so this court, being an appellate court cannot disturb those findings. He argued, for example, that the issue as to who purchased the land in dispute, that is, whether it was the defendant’s father as claimed by the defendant, and which version was accepted by the trial court or whether it was the defendant’s grandmother, Yaa Donkor, who purchased the said land, as claimed by the plaintiff, was a question of fact. And that once the finding by the court on this issue was supported by the evidence, this court cannot interfere with that finding.

Counsel also submitted that the plaintiff's first witness who counsel for the appellant claimed was an independent witness was in fact not an independent witness. This is because PW1 was the husband of the defendant’s aunt, Akua Afriyie, a sister of the defendant’s father, and the one the defendant’s father was said to have ejected from the house in dispute. PW1 is also the father of PW2, Ama Tawiah, the niece of the defendant’s father in whose name the documents on the property in dispute were originally made by the defendant's late father, but were later changed into his own name. It was the contention of the respondent’s counsel that the fact that the trial judge did not accept the evidence of PW1 did not mean that the judgment was not supported by the evidence.

Having perused the record in this appeal and heard both counsel, it seems to me that only two issues call for determination by this court. The first is whether the judgment of the trial court is supported by credible evidence on the record. And secondly, whether or not the document R1, rejected by the trial court but admitted in evidence by this court and marked exhibit CA1 would have any adverse effect on the judgment of the trial court.

As regards the first issue, the trial judge, in my view, rightly identified the crucial issues to be determined in the suit. She stated in her judgement as follows:

“The issues set down for hearing were several but the crucial issues are whether the late Yaa Donkor bought the land on which the house in dispute was built for herself or she acted as the late J K Boateng's agent, and whether the house in dispute was built by the late J K Boateng as family property with financial assistance from Yaa Donkor.”

The trial judge then found that the plaintiff-appellant “led ample evidence to show that the land on which the house in dispute was built was negotiated and paid for by Yaa Donkor “. She also found that the appellant had “led evidence to show that Yaa Donkor constructed the 2 swish buildings.” The trial judge, however, went on as follows:

“The issue however is whether in all these endeavours, Yaa Donkor acted as agent for her son J K Boateng or for herself.”

In trying to resolve that issue, the trial judge referred to paragraphs 8 and 9 of the statement of defence in which the defendant pleaded that her late father did give money to his mother, Yaa Donkor, to purchase the land and build the swish houses for him. The judge also referred to paragraph 3 of the plaintiff’s reply to the above averments in which the plaintiff averred that at the time the land in question was purchased by his mother, the defendant's late father, J K Boateng “was then young and had just passed his Standard Seven examination and was without any work.”

The plaintiff meant here that the defendant’s said father could not have afforded to purchase the land in dispute as he was at the time unemployed. This averment which was not supported by any evidence was effectively refuted by the defendant who gave evidence that at the time the land was purchased her father was in the Police Service. To support her evidence, she tendered the picture of her father as a policeman in 1931. The trial judge no doubt was impressed by this evidence and so found that “the land was bought at a time when J K Boateng was in the Police Service and could therefore have financed the purchase.”

Also, based largely on the evidence of the plaintiff and his first and second witnesses, the trial judge found that “although Yaa Donkor was said to have been trading in tobacco and had a cocoa farm, she was relying on maintenance from her only son, J K Boateng who was the only one of her children working.” It came out clearly from the evidence that when J K Boateng was imprisoned, her mother, Yaa Donkor, could not continue with any work on the houses during the fifteen years that her son spent in prison. This prompted the trial judge to pose the following important question:

“…if Maame Yaa Donkor was having adequate income from her cocoa farm and tobacco trade to purchase the land and put up two houses, why could she not complete the second house in the 15 years period that her son was incarcerated, as the plaintiff in cross-examination had said Yaa Donkor was not remitting her son while he was in prison?”

The trial judge answered this question by saying that “Yaa Donkor was unable to complete the second house as her sole financier of the building project which was her son was in prison.” Accordingly, the trial judge accepted the defendant’s evidence that Yaa Donkor acted as agent for her son J K Boateng in purchasing the land and building the two swish structures thereon. The judge therefore concluded that “the land on which the house in dispute was built was not the self-acquired property of Yaa Donkor but the defendant’s father.”

Again, the plaintiff’s claim that the defendant’s father, J K Boateng, deceased, built the house in dispute for the family with assistance from Yaa Donkor, and that the late J K Boateng sought the consent of the family before using the name of his niece on the building plan, and also before changing this name on the plan into his own name, did not find favour with the trial judge. This, I believe, is because of the unsatisfactory nature of the evidence adduced on the issue. That is, whilst the plaintiff in his evidence said that the caretaker of Yaa Donkor’s cocoa farm, on the instructions of the said Yaa Donkor, accounted directly to the defendant's late father in respect of the proceeds from the cocoa farm, to be used by the defendant's said father for the construction of the house in dispute, the said caretaker, who gave evidence as PW1, said in his evidence that he rather accounted to Yaa Donkor. And PW1 said that he could not mention any amount that Yaa Donkor gave to the defendant’s father to be used for the construction of the house in dispute.

The exercise that the trial judge went through as regards the respective cases of the parties in this appeal as appears in the record of proceedings, shows clearly that the trial judge did not believe or accept the plaintiff's version of the case. She preferred the defendant's version and accepted it. To her, it was the more probable of the two stories. I am satisfied that the trial judge’s findings are supported by the evidence on the record. I agree with counsel for the defendant-respondent that once the findings are supported by the evidence adduced, this court cannot interfere with the findings made. As was held by the Supreme Court in the case of Bisi v Tabiri [1987-88] 1 GLR 360, SC:

“[I]t was never intended that the Court of Appeal (or any appellate court for that matter) should move into a new era of regular questioning of decisions of trial judges on issues of fact, as distinct from law, which were supportable. Consequently, there could be no grounds for cavilling at the trial judge's exercise of discretion or duty in the selection of witnesses to believe or in stating his findings of fact.”