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JUDGMENT
ANSAH, JA:
This is an appeal from
the judgment of the High Court, Kumasi, given on 8th
November 1996. The plaintiff sought a declaration that
H/No. Block 6, Dichemso, Kumasi was acquired from the
proceeds from his pharmacy in Kumasi and the sale of his
Vanguard Saloon car. He also sought a declaration that
a cocoa farm at Atronie in Atuahenekrom, Brong Ahafo
Region, was acquired by Madam Afua Gyamaa and was family
property. Lastly, he sought a perpetual injunction to
restrain the plaintiff and her descendants from
interfering with the subject matter of this suit.
The defendant denied
the plaintiff’s claim and also counterclaimed for the
reliefs that the aforementioned house and the cocoa farm
at Atronie are the bona fide properties of her deceased
husband, the late John Adutwum Jantuah. She further
counter-claimed for a declaration that some 15 piece of
cloth and items of furniture that the plaintiff took
away belonged to her husband; she sought an order for
their recovery from the plaintiff. She asked for
restraining orders against the plaintiff concerning
these properties. I must remark that after summons for
directions had been take and the trial was in progress
and the plaintiff had closed his case, he for no reason
made apparent to the court, abandoned his case
completely. With that, all his claims went away and
were no longer the subject of the trial. That left the
defendant alone to prosecute her counterclaim in court.
Of the evidence the
Court of Appeal will have special regard to the facts
that the judge saw the witnesses; see Clarke v.
Edinburgh Tramways Co, [1919]S.C. (H.L.) 35-36 per Lord
Shaw where he says: “ Where he hears and sees witnesses
and makes a conclusion or inference with regard to what
is the weight on balance of their evidence, that
judgment is entitled to great respect and that quite
irrespective of whether the Judge makes any observation
with regard to credibility or not”.
There are indeed great
deals of locally decided cases on when the Court of
Appeal will or not interfere with the decision of a
lower court. In Boateng v. Boateng [1987-88] GLR 81
C.A. it was held that where an appellant contended that
a judgment was against the weight of evidence, he
assumed the burden of showing from the evidence that
that was so. Nyame v Tarzan transport [1973] 1 GLR. 8
at 9 also stated the principles upon which an appellate
court would be disposed to or will not be so inclined to
reverse a decision of a lower court (see also Praka v
Ketewa [ 1964] GLR. 438, S.C; Oppong Kofi v Fofie 1964
GLR. 174; Bonney v Bonney [1991-92 GLR. 779.
I don’t think the
condition in the above case were satisfied so as to
compel this Court to disturbed the finding of facts and
the conclusion by the Judge.
On the facts of this
case as rightly found by the trial judge all relevant
documents of title were in the name of the deceased.
The common law presumption in those circumstances was
that he had the legal title to the property. That was
not all; he also had the full ownership of the
beneficial title as well. Section 35 of the Evidence
Decree (supra) has preserved this presumption. It made
it a rebuttable presumption though. The onus of
rebutting this presumption was on the appellant. On the
facts as found by the trial judge (and I have no good
and compelling reasons to assail his findings on those
facts), the appellant did not in my view succeed in
rebutting that presumption.
In the result I affirm
the decision of the court below and rather dismiss the
appeal.
J. ANSAH
JUSTICE OF APPEAL
GBADEGBE, JA:
My Lords, in this
appeal the questions which arise for our determination
as can be discerned from the pleadings of the parties in
terms of the controversy which sparked off the action in
the court below and indeed the statements submitted to
us in these proceedings are whether or not the building
standing on plot number 19 block 6, Dichemso, Kumasi
belonged to the appellant herein or formed part of the
estate of his deceased brother whose widow and child are
the first and second respondents respectively; and also
whether or not the cocoa farm situate at Atrohenekrom in
the Brong Ahafo Region belonged to the said deceased or
the family to which he belonged in his lifetime? So
stated, the instant appeal turns essentially on the
findings of fact the several grounds of appeal seeking
to challenge the conclusions reached by the learned
trial judge on the contested facts and therefore to
succeed the appellant has to show that the said findings
are not supported by the evidence or are unreasonable
and or perverse, the question here being not whether
this court is merely dissatisfied with the result of the
trial but also whether the verdict was such that no
reasonable man could have come to. See-(1) Byrant v
North Metropolitan Tramways Co. (1800), 6T.L.R. 396. In
his judgment, the learned trial judge of the High Court,
Kumasi determined all these questions in favour of the
respondents. In his complaint to this court, the
appellant seeks to have the said determinations reversed
and judgment entered in his favour. Since the attack is
directed at the said findings, I wish to examine how the
learned trial judge came to his conclusion on the said
facts. I commence first from the determination regarding
the disputed building. In his finding, the learned trial
judge patiently examined the rival versions placed
before him by the parties and after a careful
consideration of the probabilities in a manner which
impressed me came to the conclusion that the said house
was put up by the deceased brother of the appellant
herein. (See pages 157 to 165 of the record of
proceedings on which this appeal is based). In
particular, at page 165, he said and I quote:
“In this case there is
overwhelming evidence from which I draw the conclusion
that the disputed house belonged to the deceased and
that he so regarded the house as he exercised complete
dominion over it in his lifetime .The plaintiff's
contention that the house was built by the deceased with
proceeds from his pharmacy shop and the sale of his
vanguard saloon car is not believable. I do not accept
it .I find that the house was owned by the plaintiff in
the latter’s life time. ……….”
As can be seen from the
said delivery, it was based on the effect of the
admitted evidence and since the conclusion is amply
supported by the evidence, I do not see any merit in the
attack on the said finding as can be read from the
several grounds of appeal touching and concerning the
same. But, quite apart from the correctness of the
finding relating to the house, I must point out that the
appellant's story which he put up in the court below was
incredulous. If it may be asked, if indeed the house was
his why did he have to leave the same and hire a place
to dwell in at a cost which at the time was quite
colossal? Again why did he not assert his claim to the
house against the deceased brother in his life time
notwithstanding his assertion that his brother had made
a concession to his claim at arbitration? Perhaps, I
might add why did the appellant not upon his return from
London take over the receipts of rental income from the
property and at least utilize the same in paying his
rents? Clearly, it was obvious from the conduct of the
appellant before the death of his brother that what he
subsequently asserted in court was a discredited story
particularly when one bears in mind that the said story
was being asserted after the death of his brother. I
think that in all probability the appellant knew that
the house was for his deceased brother a fact which
might tend to explain his conduct in the lifetime of the
brother. I also wish to note that whilst in his
pleadings the appellant averred that his deceased
brother was responsible for his education, in his
evidence he sought to change this by saying that he was
looked after by his mother and some other person. I
think that the said shift in his case was only intended
to throw dust into the eyes of the court but
unfortunately for him the learned trial judge was alive
to his responsibilities and came to the right
conclusion.
I now turn my attention
my lords to the finding regarding the disputed cocoa
farm and wish to say that the said finding cannot be
faulted. I think that on the admitted evidence, the
learned trial judge of the court below could not have
come to any other conclusion for there was unchallenged
evidence of the deceased’s control which he exercised
over the farm and in particular the agreements which in
his life time subsisted between him and those who
cultivated the farm for him. I think clearly that in the
circumstances, the finding in respect of the said farm
was right having been arrived at after a careful
consideration and I desire not to intervene by setting
the same aside. To do as contended by the appellant
would be to do injustice to the effect of the evidence
which is contained in the record before us. In my view
therefore the learned judge’s conclusions on the issues
which arose before him in the court below are amply
supported by the evidence.
This conclusion, in my
view effectively disposes of the appeal herein the
result being that the appeal fails in its entirety. But;
before I put this delivery to a rest permit me my lords,
to detain the precious time of this court by referring
to a procedural irregularity which I noted in the record
before us. It relates to the tendering of evidence by
the appellant who was the plaintiff in the court below
after the respondent (the defendant in the court below)
had concluded his evidence on the counterclaim. Before
then, the appellant had testified and after calling two
witnesses he applied for leave to discontinue his case
against the respondents following which the respondents
went to prove their claim as contained in the
counterclaim. In my view, the learned trial judge erred
when he permitted the appellant to give evidence in
rebuttal of the counterclaim for in his evidence and
that of his witnesses he ought to have adverted his mind
not only to his claim but that contained in the
counterclaim and for that matter it was of no moment
that he had discontinued his claim the said
discontinuance not having any effect on the evidence
which they had led in proof not only of their claim but
also in rebuttal of the counterclaim. Therefore, in my
thinking the evidence which the appellant was enabled to
introduce thereafter was wrongly received and should be
expunged from the record else it would amount to
affording him a double opportunity to state his case. I
believe that he was legitimately only entitled to cross
examine the respondents and their witnesses and no more.
I have doubts after a careful reading of the record
whether the said indulgence which was wrongly granted to
him did not enable him to improve upon his case as
previously narrated in his evidence in chief.
Accordingly, in my deliberation in keeping with the
settled opinion in such cases I did not have regard to
the said improperly received evidence but limited myself
only to the evidence before the discontinuance and that
of the respondents. It being so, I direct that the
evidence of the appellant and his witnesses appearing at
pages 109 to 132 of the record be and are hereby
expunged .The result as indicated earlier on in the
course of this judgment is that the appeal herein is
dismissed and the judgment of the court below allowing
the respondent’s counterclaim is hereby affirmed.
N. S. GBADEGBE
JUSTICE OF APPEAL
BADDOO, JA:
I agree.
S. D. BADDOO
JUSTICE OF APPEAL
COUNSEL
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