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JUDGMENT
AKOTO-BAMFO J A.
On the 24th of October
2002, Woanyah, J. sitting at the High Court, Agona
Swedru entered Judgment in favour of the defendant
respondent hereafter referred to as the defendant
against the plaintiffs appellants now simply referred to
as the plaintiffs in an action commenced by them for
these reliefs:
(a) A declaration of
title to all that piece or parcel of land situate, lying
and being at Agona Swedru in the Central Region of the
Republic of Ghana.
(b) An order of
accounts of all the rents received by the defendant in
respect of the said property since March, 1999.
(c) An order of
perpetual injunction restraining the defendant, his
agents and assigns from interfering with the plaintiffs'
peaceful enjoyment of the property.
(d) An order of
recovery of possession of two stores occupied by the
defendant on the property.
The plaintiffs' case as
gleaned from the statement of claim accompanying the
writ of summons was that they are the administrators of
the estate of their father, Opanin Yaw Koranteng. That
in his lifetime, he purchased a piece of land, the
subject matter of the dispute together with buildings a
thereon from the United African Company (UAC); that the
transaction was evidenced by a Deed of Assignment
executed by the UAC and Yaw Koranteng which Deed was
duly registered; that Yaw Koranteng entrusted the care
of the property to his elder brother, Kwame Addo, who
collected rents, accounted to him and occupied a store
on the premises for which he paid no rents.
According to them,
their father exercised acts of ownership, receive rents
in respect of the property and turned down a request by
Opanin Kwame Addo to give a store he was occupying to
the defendant. In spite of these, they claimed, the
defendant did not only move occupy the store in question
upon the death of his father, but additionally laid
adverse claims to the property and instructed the
tenants in occupation to pay rents to him without
accounting to the plaintiffs. It is their case that such
conduct constituted a denial of their title to the
property.
In resisting the claim,
the defendant averred that it was his father, Opanin
Kwame Addo who 1st settled in Asamankese and
subsequently invited his brother to join him in his
trading activities; when his father moved to Agona
Swedru; he left his store for his brother, Yaw
Koranteng. In the course of time, Opanin Kwame Addo
purchased the property in dispute, paid for it and was
issued with a receipt; he thereafter verified his
ownership thereof by an affidavit and exercised all acts
of ownership including collecting rents—putting up
additional structures and ejecting a son of Opanin Yaw
Koranteng from one of the stores.
According to him, at a
family meeting convened by his father at which Opanin
Yaw Koranteng was present, the property was gifted to
him, he performed the customary thanksgiving by
slaughtering a sheep and offering some drinks which all
the members of the family shared, and that the property
thereafter became vested in him and therefore denied the
claims made by the plaintiffs.
These issues were set
down for determination by the parties:
1. whether or not the
property in question belonged to the late Yaw Koranteng.
2. whether or not the
property was given as a gift to the defendant by his
late father.
3. whether or not the
plaintiffs are entitled to their claim.
4. whether or not the
Deed of Assignment numbered 1814/1974 is sufficient
proof of title of late Yaw Koranteng.
5. whether or not it
was Opanin Kwame Addo who settled Opanin Yaw Koranteng
at Asamankese.
6. whether or not
Opanin Kwame Addo was of good financial standing at the
date of sale of the property, in issue.
In dismissing the
plaintiffs' claim, the learned Judge stated 'the action
fails and I proceed to dismiss it. The status quo ante
is hereby restored. There would be costs in favour of
the defendant in the sum of 8 million cedis. Action
dismissed'. It is obvious that the decision did not find
favour with the plaintiffs; for on the 29th of October
2002, they launched an attack against it by filing a
Notice of Appeal consisting of these grounds:
"1. The entire judgment
was against the weight of evidence.
2. The learned trial
judge erred in law in holding the property in question
was gifted by defendant's father to the defendant after
finding that the plaintiffs' father was legal owner of
same.
3. The learned judge
erred in holding that the plaintiffs' father was
estopped from claiming his property when his brother
attempted to give it away as a gift to defendant.
4. The trial judge was
wrong in holding that the sheep slaughtered was 'aseda'
sheep for a gift that was made.
5. That the learned
trial judge misdirected himself as to the law resulting
in miscarriage of justice to the plaintiff/appellants."
It is evident that the
main issues, which confronted the learned judge at the
trial, were a mixture of law and facts and he made
specific findings on them.
Generally, it is the
primary duty of an appellate court in an appeal largely
based on findings of fact to carefully examine the
record of proceedings and to satisfy itself as to
whether the evidence on record supports the findings.
Even though it is ordinarily within the competency of a
trial judge to make findings of specific facts and an
appellate Court should hasten rather slowly in
disturbing same, a finding of fact which is an inference
to be drawn from specific facts found is within the
competency of an Appeal Court no less than a trial
Court. In other words, an Appeal Court is in as good a
position as the trial Court to draw inferences from
specific facts, which the trial Court may find. Adorkor
vrs. Akatsi 1966/GLR.31.
Again, even though an
appellate Court is not at liberty to usurp the province
of the trial Court, yet if the evidence be such that
only one conclusion could be properly drawn, an
appellate Court could be entitled to draw that
conclusion. Domfeh vrs. Adu 1984-86 GLR.655.
Indeed in Koglex vrs.
Field 2000 SC.GLR. 1 75, the Supreme Court set out the
circumstances under which findings of fact made by the
trial judge could properly be interfered with. Among
them are:
1. where the said
findings of the trial Court are clearly unsupported by
evidence on record or where the reasons in support of
the findings are unsatisfactory. Kyiafi vrs. Wono 1967
GLR.463.
2. Improper application
of a principle of evidence or where the trail Court has
failed to draw an irresistible conclusion from the
evidence. Fofie vrs. Zanyo 1992 2 GLR.475.
3. where the findings
are based on a wrong proposition of law and.
4. where the finding
is inconsistent with crucial documentary evidence on
record.
I propose to address
the issues raised in this appeal in the order of
presentation by both learned Counsel.
With regard to the
additional ground, namely, that the learned judge
misdirected himself on the burden assumed by the
plaintiff in an action for Declaration of title to land;
he submitted that with the enactment of the Evidence
Decree NRCD.323, a party in a civil action assumed the
burden of proof by a preponderance of probabilities and
not beyond reasonable doubt as held by the judge.
According to him, allocating a higher degree of proof
therefore, and basing the decision thereon, occasioned a
miscarriage of justice.
In the course of the
judgment, the learned judge made this pronouncement 'in
the case of Kponuglo vrs. Kodaja 1933 2 WACA 24 at page
25, Lord Alness referring to the onus of proof of title
said that it was the onus of demonstrating beyond
reasonable doubt that title to the disputed land is in
him .....The position is that the evidence adduced by
the plaintiff is such that it fails to demonstrate
beyond reasonable doubt that title to the disputed
property is in the plaintiffs. This means the plaintiffs
have failed to discharge the onus of establishing title
to the disputed property.'
It is obvious from the
above that the learned judge took the view that the
plaintiffs were under a duty to prove beyond reasonable
doubt that title was vested in them and that since they
failed to attain that standard, their action failed.
It is not disputed that
there is a long line of cases which established that a
plaintiff in an action for declaration of title assumed
the burden of proof beyond reasonable doubt, it is
however evident that since the enactment of the Evidence
Decree, particularly Sections 11(2)(4) and 12 thereof,
the degree of proof in a civil action is by
preponderance of the probabilities as opposed to proof
beyond reasonable doubt as in a criminal case, and that
in the case of the former, the degree remains the same
irrespective of whether the Civil action is for a
declaration of title to land or defamation. I am
fortified in this view by the holding in the Supreme
Court case of Adwubeng vrs. Domfeh (1996-97) SC. 670
where Acquah JSC as he then was stated 'before the
coming into force of the Evidence Decree 1975 NRCD.323,
on the 1st of October, 1976, a host of respectable
decisions had firmly established such a standard of
proof for titles to land. Kponuglo vrs. Kodaja 1933.
WACA 24 and Kodilinye vrs. Odu 1935 2 WACA 336. But the
Evidence Decree 1975, has imposed proof beyond
reasonable doubt only on prosecutions in criminal
actions Sec. 11(2) while Sec 11 (4) and 12 clearly
provide that the standard of proof in all civil actions
is proof by a preponderance of probabilities. No
exceptions are made. In the light of the provisions of
the Evidence Decree 1975, therefore, the cases which
hold that proof in titles to land required proof beyond
reasonable doubt no longer represent the present state
of the law'.
Since it is evident
that there was an improper application of a principle of
evidence, I cannot but agree with the submissions made
by learned Counsel on the issue and to find that the
learned judge misdirected himself of the degree of proof
required and thereby anchoring his decision on a wrong
principle of evidence. Koglex vrs. Field Supra.'
Learned Counsel further
submitted that the judgment was against the weight of
evidence since there was no basis for the preference of
the witnesses for the defendant to those of the
plaintiffs; especially in the light of the fact that
exhibit 'B' was clear on the ownership of the property
and that position was confirmed by Exhibit '2'.
In reply learned
Counsel for the defendant submitted that there was
sufficient evidence on record to support the decision
since it was clear from the receipt and the
correspondence that the property was purchased by Opanin
Kwame Addo.
I have no doubts in my
mind that the late Opanin Kwame Addo and Yaw Koranteng
had a very good relationship as brothers; for their
younger sister, Margaret Yaa Adjeiwaah (PW2) said 'they
were very fine with each other'. It is in evidence that
initially, they settled at Asamankese before Opanin
Kwame Addo moved to Agona Swedru where he lived,
acquired some other properties aside from the disputed
one.
It is not controverted
that negotiations for the purchase of the property were
carried out by Opanin Kwame Addo, for the various
correspondence on the issue bore his name; Exhibits
1B-1H. In all these correspondence the main characters
were Opanin Kwame Addo and the United Africa Company. In
Exhibit I D, for instance, appears the following: 'We
refer to your letter of 21st August 1971 offering the
sum of Ną9000 for the purchase of the above property and
are pleased to advise you that after careful
consideration your offer is acceptable subject to
contract.'
After the negotiations
the purchase price was paid and the receipt dated the
20th of September 1971 bearing the name of Opanin Kwame
Addo was issued.
Before the issuance of
the receipt however, Opanin Kwame Addo deposed to an
affidavit on the 18th of September, 1971. Since it is
crucial, I wish to quote the relevant portions.
"1. I am the true and
lawful purchaser of all that piece or parcel of land
with buildings thereon ER 500/S.A.66. Situate lying and
being at Agona Swedru.
2. That cash the sum
of Ną9000 being purchase price has been paid in my name
to the United African Company Ghana Ltd. and valid
receipt obtained.
3. That all documents
bearing my name Opanin Kwame Addo in respect of the
aforementioned property should now bear the name of my
brother Opanin Yaw Koranteng.
In the light of the
foregoing circumstances Supra explained, I swear to this
affidavit verifying my true and lawful claim as the
brother of Opanin Yaw Koranteng and that all documents
or documents pertaining to the purchase of all that
piece or parcel of land with buildings thereon which
bear my name Opanin Kwame Addo should now bear the name
of 'Opanin Yaw Koranteng."
After this deposition,
Exhibit 'B', the Deed of Assignment was executed; the
parties thereto were the United Africa Company and
Opanin Yaw Koranteng. Opanin Kwame Addo significantly
witnessed it. The issue which confronted the learned
judge was the weight to be attached to these documents
i.e. the receipt, Exhibit 1A, the affidavit, Exhibit '2'
and the Deed of Assignment, Exhibit 'B'. Needless to
say, he took the view that despite the existence of
exhibit 'B" the surrounding circumstances showed that
the property belonged to Opanin Kwame Addo.
The learned judge
observed inter alia 'legally speaking, replacing Opanin
Kwame Addo's name, on the suggestion of Kwame Addo would
mean a transfer of interest in the property to Opanin
Yaw Koranteng, but critically examined against the
background of circumstances surrounding the whole
transaction and the entire correspondence relating to
the purchase . . .
We would say that the
replacement of the actual purchaser's name was not an
accident but was truly arranged by the two deceased
brothers to deceive the public.'
It is evident from the
above that the learned judge had no doubts that exhibit
B, the Deed of Assignment carried very serious legal
consequences and that it would be extremely difficult to
avoid its weight, he therefore, unfortunately, strayed
into extraneous matters which were not clearly borne out
by the evidence.
The affidavit was sworn
at Agona Swedru on the 18th of September 1971. In the
2nd paragraph, the deponent described himself as the
true purchaser of the property and immediately
thereafter deposed to the fact that the purchase price
was paid ‘in my name’ and a valid receipt obtained. The
receipt is dated the 20th of September 197l. If
reference to the receipt in the affidavit (paragraph 3)
was to exhibit 1A, whose date significantly is the 20",
it is obvious that at the time of the deposition, the
receipt had not been obtained and therefore that
deposition was false.
Again in the same
(paragraph i.e.) there was this deposition that the
money was "paid in my name". What is the significance of
the phrase underlined? Is it interchangeable with, I
paid the money? It is my considered view that to perform
an act in one's name implies that the action is done on
account or on behalf of some other person. In other
words the person in whose name the action is done is not
necessarily the beneficiary or owner. If the money was
provided by Opanin Kwame Addo, why was there the need
for him to have averred that the money was paid in his
name?
In paragraph 4; he was
emphatic that all documents pertaining to the purchase
should be made in the name of his brother. If he did
direct that all documents bearing his name in respect of
the property should now bear his brother's name; surely
all documents pertaining to the purchase would include
the receipts and all correspondence on the purchase; It
was subsequent to this that Exhibit B; the Deed of
Assignment was made. What is the effect of the
affidavit, particularly in relation to the Deed of
Assignment? As indicated the fact that he asserted that
the money was paid in his name was suggestive of the
fact the purchase was done on behalf of some other
person. Assuming it could be argued that ownership was
vested in him by virtue of the averment in paragraph 2,
the subsequent paragraphs evinced an intention to convey
same to Opanin Yaw Koranteng.
A Deed has been
described in Words and Phrases Legally Defined, the 2nd
Edition page 27 as a "most solemn and authentic act that
a man can possibly perform, with relation to the
disposal of his property and therefore man shall always
be estopped by his own deed, or nor permitted to aver or
prove anything in contradiction to what he has once so
solemnly or deliberately avowed".
Indeed this position
was amplified in Sec 25 of NRCD.323 which is provides:
'Except as otherwise provided by law, including a rule
of equity the facts recited in a written documents are
conclusively presumed to be true as between the parties
to the instrument or the successors in interest.
Therefore assuming one
takes the position that the affidavit verified Opanin
Kwame Addo's ownership of the property, by his
subsequent act of instructing that all the documents be
made in his brother's name and actually witnessing the
brother's signature on the Deed of Assignment, he did
effectively divest himself of his ownership thereof. The
evidence led on the role of Opanin Fordjour in the whole
drama apparently swayed the learned judge. I must say
that the weight he attached to that piece of evidence
was underserving, for it is unlikely that Opanin Forjour
would demand to be given a portion of the land for
giving information about its sale, but more importantly,
in the face of exhibit B; the parol evidence, on Opanin
Fordjour's role should have been given little or no
weight; for it is a cardinal rule of construction that
parol evidence is inadmissible to add to; contradict,
vary or alter the terms of a Deed or any written
instrument. I must say that this rule applies to all
extrinsic evidence with a few exceptions. The
circumstances of this case however do not afford any
such exception. For when parties have recorded their
agreement in an instrument, it is in the interest of all
parties to presume that the instrument records the full
and final intentions of the parties.
I am of the view that
Exhibit 'B' established Yaw Koranteng as the owner. The
receipt on its own does not establish ownership, neither
can it be given the same weight as a Deed of Assignment
having regard to the deposition in the affidavit and my
observations thereon. Aside from the documentary
evidence, there were witnesses called by the plaintiffs;
who were significantly members of family of the deceased
brothers and who had personal knowledge of the events as
opposed to the witnesses called by the defendant who
were obviously interested parties.
The younger sister of
the deceased parties was emphatic that the property
belonged to Opanin Koranteng, her evidence on the
meeting at which Opanin Koranteng rejected the proposal
made by Opanin Kwame Addo to hand over the store to the
defendant was corroborated in every material particular
by PWS 2 & 3 the head of the Kwahu Community in Agona
Swedru and Opanin Kwame Addo's nephew and successor
respectively. It is of significance that the latter
actually lived with Opanin Kwame Addo for over 1 0
years.
Against these pieces of
evidence offered by the plaintiffs' witnesses were those
offered by the defendant's aunt, child and sister who
cannot be described as disinterested parties.
In preferring the
evidence of the defendant's witnesses to those of the
plaintiffs, the learned trial described the evidence of
the latter as unreliable, contradictory and adduced only
to serve the interests of the plaintiffs.
A careful reading of
the proceedings does not reveal the basis for these. It
is my considered view that the findings of the learned
judge are indeed inconsistent with the documentary
evidence and cannot be supported by the evidence on
record. The attack mounted against the judgment on that
score is therefore sustainable.
As to whether the
learned judge erred in holding that the property in
question was gifted by the defendant's father to the
defendant after finding that the plaintiff's father was
the legal owner, undoubtedly, the learned judge made a
finding that the replacement of the name constituted a
transfer, but however relied on extraneous matters,
regrettably, to make a finding that it was a ruse by the
two deceased brothers to deceive the public. These
findings have no basis in the record of proceedings.
As to whether a gift of
the property was made to the defendant; all the
witnesses for the plaintiffs were agreed that no such
gift was made because Opanin Yaw Koranteng, who left the
meeting in anger, rebuffed the attempt 3 of the
witnesses for the defendant claimed they were present
and that a gift was made. The learned judge preferred
the evidence of the defendant's witnesses to those of
the plaintiffs; he described them as unreliable and
without attempting at demons- trating what informed that
opinion. Though the question of impressiveness or
otherwise, conviction etc are products of credibility
and veracity and that a court becomes convinced or
otherwise with the oral evidence according to the
opinion it forms of the veracity of the witnesses and
therefore a court of 1st instance is in a better
position than the appellate court, it is settled that
where the appellate court is satisfied that the reasons
given by the trial court in support of its findings are
not satisfactory or where it irresistibly appears to the
appellate court that the trial court has not taken
proper advantage of having seen or heard the witnesses,
the matter becomes at large. Kyiafi vrs. Wono 1967
GLR.463. In the case under consideration the learned
judge could not show the conflicts and contradictions in
the pieces of evidence of the witnesses of the
plaintiffs, indeed I found none. Even though the sister
of the deceased persons and the nephews who were old
enough to have appreciated the significance of the
events and were not shaken in cross-examination,
testified that no such gift was made and that the
slaughtering of the sheep had nothing to do with aseda,
the learned judge rejected those for the evidence of the
son of the defendant who was 12 years old at the time
and a witness who admitted she was not at the meeting.
At any rate since the property did not belong to Opanin
Kwame Addo, he had nothing to give. Nemo Dat quod non
Habet.
It is my view that that
it is not sufficient for a trial court to trot out, as
it were the fact that one was unimpressed with a witness
without attempting at giving a basis for that expression
of opinion. For these reasons I would allow the appeal
on this ground as well.
In conclusion
therefore, I would allow the appeal and set aside the
judgment and orders made by the court below. In
substitution, I would enter judgment for the plaintiffs
against the defendant for all the reliefs endorsed
on the writ of summons
and statement of claim.
V. AKOTO-BAMFO (MRS.)
JUSTICE OF APPEAL
LARTEY, J.A.
I have nothing else to
add to the erudite judgment just delivered by my sister.
I agree that the appeal should succeed, the judgment of
the court below set aside or reversed in favour of the
appellant.
F.M. LARTEY, J.A.
JUSTICE OF APPEAL
DOTSE, J.A.
I have read the erudite
well thought out judgment of my sister and I agree
entirely with the reasons that the appeal be allowed. I
therefore have nothing more to add.
J. DOTSE
JUSTICE OF APPEAL
COUNSEL
Bram Larbi—for
Appellants.
Frederic Selby—for
Respondent.
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