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BROBBEY JSC:
This is an appeal from the
decision of the Court of Appeal
which allowed an appeal against
the decision of the High Court
sitting at Koforidua. The facts
which gave rise to the
litigation before this court are
as follows: The plaintiff who
shall hereafter be referred to
as the appellant claimed that he
alone bought the subject matter
of the case which is a house
together with an adjoining plot,
both of which are situated at
Apedwa. He further claimed to
have bought it from its original
owner, the United African
Company and after the purchase
he permitted his late brother
and the brother’s family to live
in it. The respondent was the
wife of the late brother who
also lived in the house.
It was part of the case of the
appellant that after the death
of her husband the respondent
admitted at various meetings
that the property belonged to
the appellant.
The respondent denied the claims
of the appellant. She rather
contended that the property was
bought jointly by the appellant
and her deceased husband who was
the half brother of the
appellant. After the trial, the
High Court gave judgment for the
appellant. The respondent then
appealed to the Court of Appeal
which allowed the appeal and
reversed the judgment of the
High Court. Aggrieved by that
decision, the appellant appealed
to this court.
The appellant filed four grounds
of appeal but ended up arguing
three of them.
The most fundamental of the
grounds was ground (c) which
read as follows:
“The appellate court erred in
its construction of section 2 of
the Power of Attorney Act, 1998
(Act 548).”
The parties were agreeable that
the appellant was at all
material times during the
litigation resident in England
but sued through Nana Kwasi Twum
Barima by the use of a power of
attorney which was exhibited at
page fifteen of the record of
proceedings. That power of
attorney was fatally flawed for
two reasons. Firstly, the rule
as contained in Act 548, s. 1(2)
is that
“Where the instrument
is signed by the author of the
power one
witness shall be
present and shall attest the
instrument.”
It is patent on the instrument
that no-one signed it as a
witness. The Court of Appeal
rightly rejected the argument of
counsel for the appellant that
the Commissioner for Oath
doubled as both the witness and
the person before whom the power
was executed. There is no legal
or statutory basis for that
argument. It would be observed
that the provision is couched in
imperative terms. In so far that
the power of attorney in
question was not signed by any
witness, it was not valid.
The instant power of attorney
does not show on its face as
having been issued from the UK
to be used in Ghana courts. The
signature on it seems to have
been covered by the Evidence
Decree, s 160©. Having been
locally produced, it did not
have to be notarized.
That notwithstanding, since the
power of attorney was invalid,
the trial court should not have
admitted it in evidence. The
Evidence Decree, 1975(NRCD 323),
s 8 empowers the appellate court
to reject evidence which ought
to have been rejected at the
trial court. This section has
been used in a number cases to
reject inadmissible evidence
admitted at the trial court even
if there was no objection to
them when they were first
tendered. They include
Juxon-Smith v KLM Dutch Airlines
[2005-2006] SCGLR 438, Edward
Nassar & Co Ltd v McVroom
[1996-97] SCGLR 468, Ussher v
Kpanyinli [1989-90]2 GLR 13
and Amoah v Arthur
[1987-88] 2 GLR 87. On the bases
of these authorities, the power
of attorney is rejected as
invalid.
To the extent that the power of
attorney was invalid, it could
not have provided legitimate
basis on which Nana Kwasi Twum
Barima could have prosecuted the
case on behalf of the appellant.
In effect, Nana Kwasi Twum
Barima had no capacity with
which to prosecute the case.
The relevant rule applicable to
the instant case is that where
the capacity of a person to sue
is challenged, he has to
establish it before his case can
be considered on its merits.
In the instant case, the
respondent challenged the
capacity of the appellant right
from the inception of the trial.
The challenge was explicit in
the first paragraph of the
statement of defence and in the
cross-examination of Nana Twum
Barima. The appellant had to
establish his capacity before he
could expect the court to have
considered his case on its
merits. He woefully failed to
establish the capacity in which
he sued by his reliance on the
invalid power of attorney.
The evidence given by Nana Kwasi
Twum Barima was inadmissible to
the extent that he had no
capacity to testify as he did.
The appellant himself never
testified in the action. In view
of the conclusion that the power
of attorney was invalid and the
one who relied on it had no
capacity and therefore his
evidence was inadmissible, the
appellant was left in a
situation as if no-one
represented him. The case of the
appellant was thus reduced to
mere pleadings filed on his
behalf. Pleadings obviously do
not make evidence on which the
appellant could rely to
prosecute his case. The failure
of the appellant to establish
the capacity in which the action
was prosecuted was sufficient
basis on which to dismiss the
appellant’s claims. Put
differently, even before
considering the merits of the
case, want of capacity alone was
sufficient for the appellant to
have lost the case. There was no
merit in ground © of the claim
and same is dismissed
accordingly.
Ground (a) of the grounds of
appeal was that the judgment was
against the weight of evidence.
In arguing that ground of
appeal, counsel for the
appellant contended that the
respondent admitted at various
meetings held after the death of
her husband that the property
belonged to the appellant
jointly with her late husband.
To the appellant, that admission
was sufficient to prove the case
of the appellant. He thereafter
contended that the appellant had
discharged the onus of proof on
him.
That admission was not
sufficient to establish the case
of the appellant for the
disputed property. Both the
appellant and the respondent
conceded that the property was
originally owned by the United
African Company or the UAC. That
was a reputable company which
was owned and run by
expatriates. The UAC cannot be
presumed to have been a party to
transaction that was oral in
character.
From the evidence of the PW1,
Maame Yaa Ntiriwaah, the
property was sold as a result of
the indebtedness of a family
member who owed the UAC. That
presupposes that the sale was by
auction. Such sale of the
property would surely have been
witnessed by documentary
evidence. If the property was
sold as represented on behalf of
the appellant, it would have
been evidenced by at least a
receipt or certificate of
purchase or similar document of
sale.
The Auction Sales Act, 1989
(PNDC 230), s 15 which regulates
the sale of land, provides that
“(1) A sale by auction of land
shall not take place unless the
auctioneer has given at least
twenty-one days public notice of
the sale at the major town of
the district in which the land
is situated, and at the place of
the intended sale.
(2) The notice shall be in
writing and shall state the name
and place of the vendor and,
where necessary, by the beating
of drum or gong-gong or any
other method intelligible to the
public as the District Chief
Executive of the district where
the sale is to take place may
direct.”
Even if the auction papers are
not available because of the
long lapse of time between the
auction of the property and the
hearing of the case at the
Koforidua High Court, at least
the buyer should have in his
possession the certificate of
purchase or some document
evidencing the sale of the
property from the UAC to him.
From the colonial days up today,
the only means of passing title
in an auctioned property is by
the certificate of purchase. In
the absence of a certificate of
purchase, there is nothing to
show that the property was
auctioned or sold by the UAC to
the appellant.
If it were the contention of the
appellant that the property was
sold without auction, there
should be a receipt for the
amount paid or some document
evidencing the transfer of title
after the sale to the buyer. No
such evidence was produced
throughout the trial.
Since the alleged buyer who was
the appellant had nothing to
show by way of sale to him of
the disputed property, it
followed obviously that the
appellant failed to prove the
sale he relied upon to claim
title to the property.
A plea that the appellant’s case
was based on oral sale could not
avail his case on account of the
Conveyancing Act, 1975(NRCD
175), s 2 which provides that
“A contract for the transfer of
an interest in land is not
enforceable unless
(a)
It is evidenced in a writing
signed by the person against
whom the contract is to be
proved or by a person who was
authorized to sign on behalf of
that person, or
(b)It is relieved against the
need for writing by section 3.”
Section three deals with
exceptions from writing arising
from operation of law, rules of
equity, an order of the court,
proof by will or on intestacy,
by prescription, by certain
types of leases or by customary
grant. None of those exemptions
is applicable to the sale of
landed property by a reputable
company like the UAC. Whatever
interest the appellant claimed
to have acquired from the sale
of that property was not
enforceable if the appellant
merely relied on grant which was
not evidenced in writing.
There was sufficient evidence on
the record which supported the
conclusion of the Court of
Appeal. Ground (a) therefore
failed and is accordingly
dismissed.
Ground (b) of the grounds of
appeal read as follows:
“The appellate court
erred on the issue of the
allocation of the
burden of proof in the
case.”
The complaint of the appellant
was that the Court of Appeal
erred in its determination of
the onus of proof as contained
in the Evidence Decree, (NRCD
323), ss. 11(4) and 12. The
appellant used the two sections
to impugn the decision of the
Court of Appeal to have shifted
the onus of proof on him in his
capacity as the plaintiff.
It is difficult to see why the
appellant found any problem with
the stand taken by the Court of
Appeal on this issue. The
appellant who was the plaintiff
went to court to claim
possession of the disputed
property. He also asked for
perpetual injunction. He based
his case on the averment that he
single handedly and exclusively
bought the property without any
contribution from the husband of
the defendant. The law is well
established that where a party’s
claims are for possession and
perpetual injunction, he puts
his title in issue: He
thereafter assumes the onus of
proving his title by a
preponderance of probabilities,
like any party who claims
declaration of title to land.
There are numerous authorities
on these, including Adwubeng
v. Domfeh [1996-97] SCGLR
660, Ebusuapanin Yaa Kwesi v.
Arhin Davis (2006) 2 GMLR50
and the old case of
Kponuglo v. Koddadja (1933)
2 WACA 24. On the basis of that
principle, the law required that
the appellant should have led
evidence to establish his own
claim that he single-handedly
and exclusively bought the
disputed property. In other
words, by operation of the law,
the onus was on the appellant to
have established his title.
However, the appellant could not
lead any evidence as to how he
bought the property, when he
bought it, the auction or the
sale at which he bought it, the
price that he paid for it and
the documentary proof
establishing his title after the
alleged sale.
The appellant took the view that
the onus of proof shifted to the
respondent merely because she
admitted that the property was
acquired jointly by her late
husband and the appellant. He
thereafter spent his time
attacking the defence put up by
the respondent, pleading in his
aid the principle that the
plaintiff is entitled to take
advantage of loopholes or
weaknesses in the case of his
opponent. That principle applies
where the plaintiff has already
established his title and
thereafter proceeds to use
weaknesses in the case of his
opponent to buttress his case.
The principle cannot be invoked
and applied in lieu of the
necessity to prove one’s own
case.
In the light of these
principles, the Court of Appeal
could not be faulted in the
decision to place the onus of
proof on the appellant.
What the appellant sought to do
was to attempt to attack the
case of the respondent by
punching holes into it. That was
clearly a futile exercise
because the respondent did not
make any counterclaim. Unlike
the appellant, the respondent,
not having made a counterclaim,
assumed no onus of proving
title. It was the plaintiff who
first had to prove what he had
claimed in his writ of summons.
The necessity for this proof was
more imperative considering the
fact that the respondent had
been in possession of the
property for over thirty years,
a fact which was not disputed by
the appellant. Since the
appellant failed to prove his
own case, he could not rely on
the weaknesses of the case of
the respondent to establish his
case.
Ground (b) of the grounds of
appeal was devoid of any merit
and is dismissed accordingly.
Whichever way one considers the
case of the appellant, it just
could not be sustained on the
balance of probabilities.
The entire appeal was without
merit and should therefore be
dismissed.
S. A. BROBBEY
(JUSTICE OF THE SUPREME COURT)
S. A. B. AKUFFO (MS)
(JUSTICE OF THE SUPREME COURT)
DR. S. K. DATE-BAH
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
S. K. ASIAMAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ASANTE-ANSONG FOR THE APPELLANT
K. AMOAKO-ADJEI FOR THE
RESPONDENT
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