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Courts - Appellate - Findings of
fact by trial court - Evidence
on record supporting findings
made by trial court - Whether
appellate court would interfere
with findings.
The appellant and the
respondents were the children of
NTT by his wife NM. In
recognition of the assistance
given him by his said children
in his business NTT built the
disputed house for the said
children but prepared the title
deeds in the name of the
appellant, his eldest son by NM.
After the death of NTT, the
rooms in the disputed house were
shared among the said children
and they exercised acts of
ownership over their respective
rooms. Later, the appellant
claimed the house as his
self-acquired property and put
his son in charge to collect
rents from the tenants. The
appellant’s son refused to
account to the respondents and
warned them not to enter the
house. The respondents sued the
appellants for a declaration
that the disputed property was
built by NTT for them and the
appellant and for account of
rents collected by the
appellant’s son and distribution
thereof. The respondents sought
also an order of injunction to
restrain the appellant’s son
from collecting rents from the
tenants in the house. The trial
judge entered judgment for the
respondents and the appellant
appealed to the Court of Appeal
on the ground that the trial
judge erred in entering judgment
for the respondents in view of
the evidence adduced at the
trial.
Held -
The trial judge was competent to
decide which of the competing
stories to accept having regard
to the evidence adduced and once
a decision was taken by him and
the facts or the evidence
supported such a decision, an
appellate court could not
interfere or disturb any such
decision or finding. The
evidence on record supported the
decision of the trial judge.
Asibey III v Ayisi [1973] 1
GLR 102, CA, Nyame v Tarzan
Transport [1973] 1 GLR 8,
CA, and Boateng v Boateng
[1987-88] 2 GLR 81, CA followed.
Hausa v Hausa [1972] 2
GLR 469, CA distinguished.
Cases referred to:
Asibey III v Ayisi
[1973] 1 GLR 102, CA.
Boateng v Boateng
[1987-88] 2 GLR 81, CA.
Hausa v Hausa
[1972] 2 GLR 469, CA.
Nyame v Tarzan Transport
[1973] 1 GLR 8, CA.
APPEAL from the judgment of the
High Court.
Hoeyi
for the appellant.
Somuah Asamoah
(for Nelson Cofie) for
the respondents.
ADJABENG JA.
The appellant, Tawiah Tsuru
Afote Godzi, and the respondents
are the children of Numo Tawiah
Tsuru. Their mother is Madam Naa
Mawuna. Numo Tawiah Tsuru, now
deceased, was a fisherman of
Nungua. Because of the
assistance his said children
gave him in his fishing venture,
Numo Tawiah Tsuru decided to
build a house for them. And in
order to make it exclusive to
them, and to ensure that his
other children with another
woman would not claim any
interest in this house, the said
Numo Tawiah Tsuru decided that
the documents on the house
should be made in the name of
the appellant who is the eldest
among these children. After the
death of the said deceased
father, the rooms in the house
were shared among the
respondents and the appellant
who exercised acts of ownership
over their respective rooms.
Later, however, the appellant,
taking advantage of the fact
that the documents on the house
were in his name, claimed that
the house was his own
self-acquired property. He put
his son, who was sued as the
second defendant, in charge of
the house. The 2nd defendant
then started to collect the rent
from the tenants in the house
and refused to account therefor.
He also warned the respondents
not to enter the house.
The respondents, therefore, took
action against the appellant and
his said son at the High Court,
Accra. They claimed against the
defendants jointly and
severally:
“(a) declaration that House No
26 South Klosal, Block 3,
Nungua, was built by Numo Tawiah
Tsuru.
(b) declaration that the said
house belongs to the plaintiffs
and the 1st defendant.
(c) statements of account [of
rents] collected by the
defendants and distribution
among the plaintiffs and 1st
defendant in equal shares.
(d) An injunction restraining
the 2nd defendant from
collecting rents from the
tenants in the house.”
The defendants resisted the
claim. The defence put up, as
hinted earlier, is that the
house in dispute is the
self-acquired property of the
appellant.
The evidence adduced by the 2nd
and 3rd plaintiffs-respondents
and their witnesses, however,
supported their claim that the
house was built by the late
father of the appellant and
themselves, that the rooms
therein were shared among them
after the death of their father,
and that they exercised acts of
ownership over their respective
rooms. The trial judge was
impressed by the evidence of the
2nd and 3rd
plaintiffs-respondents and,
especially, their third and
fourth witnesses. PW3 described
himself as a former tenant in
the house in dispute and said
that the appellant told him that
the house did not belong to him
alone but to him and his
brothers. And that he (PW3)
later paid the rent for his room
to the 1st plaintiff who was the
owner of that room. PW4 was the
carpenter who, as admitted by
the appellant, roofed the house
in dispute. This witness said
emphatically that he was
employed and paid by the late
Numo Tawiah Tsuru, the late
father of the parties herein,
and not by the appellant. The
trial judge accordingly entered
judgment in favour of the 2nd
and 3rd plaintiffs and made the
declarations they sought in
reliefs (a) and (b) on the writ
of summons.
The appellant appealed to this
court on the ground that the
judgment was against the weight
of the evidence adduced before
the trial court. Four additional
grounds of appeal were filed
later. At the hearing of the
appeal, counsel withdrew, with
leave, the appeal of the 2nd
defendant-appellant. Counsel for
the 1st defendant-appellant then
argued the original ground of
appeal, and the additional
grounds 1 and 4. The additional
grounds 1 and 4 state as
follows:
“1. The trial judge erred in law
by entering judgment for the 2nd
and 3rd plaintiffs for reliefs
(a) and (b) in view of the
evidence adduced at the trial.
4. The trial judge’s failure to
consider the evidence of the 1st
defendant’s witnesses on the
ground that they were tenants of
the 1st defendant was an error
in law which occasioned
substantial miscarriage of
justice to the 1st defendant.”
A study of the few submissions
of some substance made by the
appellant’s counsel shows
clearly that counsel was only
complaining about the handling
by the trial judge of the facts
or the evidence in the case. For
example, counsel submitted that
there was a conflict between the
evidence of the 2nd plaintiff
and that of the 3rd plaintiff,
and that this conflict should
have been resolved in favour of
the appellant. Counsel also
submitted that the appellant had
proved that the property in
dispute is his self-acquired
property and that the trial
judge should have accepted his
version.
It is trite learning that it is
the trial judge who is competent
to decide which of the competing
stories he or she would accept
having regard to the evidence
adduced. And once a decision is
taken on this by the trial judge
and the facts or the evidence
supports such a decision, an
appellate court cannot interfere
to disturb any such decision or
finding; see Asibey III v
Ayisi [1973] 1 GLR 102 CA;
Nyame v Tarzan Transport
[1973] 1 GLR 8, CA and
Boateng v Boateng [1987-88]
2 GLR 81, CA.
In the instant case, there was
ample evidence before the trial
court to the effect that the
house in dispute was built by
the late father of the appellant
and the plaintiffs, and not by
the appellant as he claimed in
his defence. There was evidence
also that it was the intention
of the said late father of the
parties that this house should
go to his said children as their
joint property, that the rooms
in the said house were indeed
shared among the plaintiffs and
the appellant after the death of
their father, and that some of
them, at least, exercised rights
of ownership over their
respective rooms. The trial
judge believed and accepted this
evidence on the record. No
doubt, therefore, this court
cannot interfere with the
decision of the court. We cannot
disturb the findings made by the
trial court.
In the course of his arguments,
counsel for the appellant cited
the case of Hausa v Hausa
[1972] 2 GLR 469 at 472, and
submitted that the trial court
was bound by this decision of
the Court of Appeal. After
reading through the report in
this case, I am at a loss as to
its relevance to the instant
case. The facts in both cases
are quite different. In the
Hausa case, above, the
plaintiffs who were paternal
brothers and sisters of the
deceased challenged the
purported sale of their deceased
brother’s property in dispute to
the second defendant by the
first defendant who claimed that
the property had been gifted to
him by the deceased when he was
alive. These facts, to me, have
nothing in common with the facts
in the instant case as related
earlier. There are also no legal
issues common to the two cases.
I think, therefore, that counsel
for the respondents was right
when he submitted that the case
of Hausa v Hausa (supra)
was not applicable to the
instant case.
On the whole, I think that the
trial judge adequately dealt
with the issues involved in this
case, applied the law correctly,
and came to the right
conclusion. We have no right,
therefore, to disturb her
decision. The appeal in the
circumstances ought to fail.
LAMPTEY JA.
I agree.
KPEGAH JA.
I also agree.
Appeal dismissed
Kizito Beyuo, Legal
Practitioner. |
