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J U D G M E N T
SOPHIA A. B. AKUFFO (MS), J.S.C:.
By a Writ of Summons issued on 1st
April 1994, the Respondents
(hereinafter referred to as ‘the
Plaintiffs’) sued the original
Appellant (hereinafter referred
to variously as ‘the Defendant’
or ‘Madam Wood’, claiming the
following reliefs:-
1.
A declaration that, on the death
intestate of Sylvia Adoley
Garshong her self acquired
property, House Number 649/10,
Awudome Close, also known as
number 1070, Kaneshie, became
the property of her three
children pursuant to Section
4(a) of the Intestate
Succession Law, 1984 (PNDCL
111).
2.
An order of the Court compelling
the original Defendant, the co-administratrix
of Sylvia Garshong’s estate to
join the other administratrix in
executing a vesting assent,
vesting the said property in the
children of the deceased.
3.
An order of perpetual injunction
restraining the Defendant from
attempting to exercise any
rights of ownership or
possession over the property.
The basic facts giving rise to
this dispute are that Madam Wood
was the mother of the late
Sylvia Garshong (hereinafter
referred to as ‘Sylvia’) who
died intestate on 22nd
May, 1987, survived by three
children namely the Plaintiffs
and their younger sister, Sheila
Derban. Upon Sylvia’s death,
Madam Wood and the 2nd
Plaintiff obtained letters of
administration to administer
Sylvia’s estate which, according
to their declaration of the
immoveable property of Sylvia,
consisted, solely, of the
abovementioned property; it was
also her fixed place of abode at
the time of her death. After the
grant of the Letters of
Administration on 11th
November, 1987, Madam Wood, on
31st January 1989,
deposed to an ‘Affidavit as to
Change of Names on Housing
Records’ wherein she declared,
inter, alia that she was the one
who financed the purchase of the
property and that she has made
extensions to the house. She
further deposed, in paragraph 5
of the affidavit that:-
“… I have taken Letters of
administration in respect of the
said house and therefore I want
the name Sylvia Adoley Garshong
[to] be changed and
substituted my name Faustina
Wood in the record of the
Housing Corporation.’
The Ghana Housing Corporation,
the lessors of the property, to
whom the affidavit was sent,
eventually acted upon the
request contained in the
affidavit. It is worthy of note
that at all material times the
administrators of the estate of
Sylvia Garshong never vested the
property in any person, nor did
the Defendant act with the
knowledge or consent of her
co-administratrix. This is the
root-cause of this dispute.
In the Plaintiffs’ Statement of
Claim, they asserted that since
Sylvia was not survived by a
spouse, the property devolved
wholly to her three children,
pursuant to the provisions of
section 4(a) of PNDCL 111.
Hence, the said children having
become of full age and capacity,
the Defendant must join the 2nd
Plaintiff to execute a vesting
assent in their favour.
By her Statement of Defence, the
Defendant denied that the
property was Sylvia’s self
acquired property. Rather, she
asserted that it was she, the
Defendant, who caused the
property to be purchased in
Sylvia's name and, moreover, she
financed the payments for the
property from her own resources.
According to her, at the time
the property was purchased,
Sylvia was financially dependent
on her and in no position to
purchase any property.
Furthermore, according to the
Defendant, she had made
extensions to the house and, at
all material times she had been
in occupation of the same and
had, as a mother permitted
Sylvia to occupy part of the
house, just as she had, subject
to good behaviour, permitted 1st
Respondent to do. She,
therefore, admitted that she had
refused to vest the property in
her grandchildren, because,
according to her, they were not
entitled to the same.
Consequently, the Defendant
counterclaimed for a declaration
of title to the property and an
order of perpetual injunction
restraining the Plaintiffs from
interfering with the same.
In a judgement entered on 25th
February 2000, the High Court
upheld the Defendant’s
counterclaim and declared her to
be vested with both the legal
and beneficial ownership of the
property. The learned High Court
judge also granted an order of
perpetual injunction against the
Plaintiffs. Being dissatisfied,
the Plaintiffs, appealed to the
Court of Appeal, which, on 10th
June 2005, granted the appeal
and set aside the High Court’s
decision. The Court of Appeal,
therefore, granted the
Plaintiffs’ first and third
claims but declined their second
claim, since the same related to
the Defendant’s capacity as
co-administratrix of the estate
of Sylvia Garshong and Madam
Wood had died shortly before the
delivery of the judgement.
The sole ground for the instant
appeal is that the judgment of
the Court of Appeal is against
the weight of the evidence
adduced at the trial before the
High Court. It is, therefore,
necessary for us to review the
record to determine whether
indeed, the setting aside of the
High Court’s decision is
unjustified, taking into account
the totality evidence.
Furthermore, we need to
ascertain whether, although an
appeal is by way of a rehearing,
the learned justices of the
Court of Appeal erred in
substituting their evaluation of
the evidence with that of the
High Court judge.
In his Statement of Case for the
Appellant herein, counsel
contended that the learned
judges of the Court of Appeal
took the wrong approach by
focusing on the documentary
evidence from the Ghana Housing
Corporation in the quest to
determine the central issue of
who financed the purchase of the
house. Counsel, therefore,
submitted that the court thereby
failed to examine critically and
evaluate the evidence on record.
He further asserted that by the
Defendant’s testimony and the
testimonies of DW 1 and 2, there
was sufficient and corroborated
evidence to establish that it
was Madam Wood who paid the
initial deposit on the property;
she had also exercised rights of
ownership over the house by
putting DW 2 in charge of the
house until she retired and also
by building extensions to the
house. Regarding the declaration
of interest made by the
Defendant in connection with the
application for grant of Letters
of Administration, counsel
contended that the matter had
not been canvassed before the
High Court and that ‘… all
documents bear the name of
Sylvia Garshong as owner and
Defendant necessarily had to
state that fact in the
application for Letters of
Administration. … The Defendant
was compelled to act in the
manner she did because of the
attempts by the 1st
Plaintiff to sell the property.’
In the light of the totality of
the evidence on the record,
there is no doubt whatsoever in
my mind that the learned judges
of the Court of Appeal were
right to set aside the decision
of the trial court. There was
nothing wrong with the approach
taken by the court in
determining the core issue
involved in this matter. Rather,
their approach enabled them,
collectively take into account
the all relevant evidence and
give each piece the weight and
value they it deserved.
It is not in dispute that the
house was purchased in the name
of Sylvia, and it has at all
material times stood in her name
until the Defendant
(clandestinely, according to the
Plaintiffs) caused the Lessor to
alter its records. As such,
therefore, as at the time of her
death, Sylvia, at least, was the
legal owner of the premises and
the learned Trial Judge, held as
much in his judgement.
Accordingly, the provisions of
section 35 of the Evidence
Decree, 1975 (NRCD 323)
(hereinafter referred to as ‘the
Decree’) comes into play. The
section provides that:-
“The owner of the legal title to
property is presumed to be the
owner of the full beneficial
title.”
Admittedly, under the terms of
Part III of the Decree, this is
a rebuttable presumption.
However, pursuant to section 20
of the Decree the effect is
that:-
“A rebuttable presumption
imposes upon the party against
whom it operates the burden of
producing evidence and the
burden of persuasion as to the
non-existence of the presumed
fact.”
The Decree goes further, in
section 21 to specify the
procedure for applying this
presumption where, as in this
case, proof by a preponderance
of the probabilities is
required. For our purposes, the
relevant portions of this
section are subsections (a) and
(c) which stipulate that:-
“In an action where proof by a
preponderance of the
probabilities is required:
(a)
a rebuttable presumption
requires the tribunal of fact to
assume the existence of the
presumed fact unless and until
the party against whom the
presumption operates proves that
the non-existence of the
presumed fact is more probable
than its existence;…
(c) where evidence is
introduced contrary to the
existence of the presumed fact,
when reasonable minds would
necessarily agree that the
evidence renders the existence
of the basic facts that give
rise to the presumption more
probable than not, the question
of the existence of the presumed
is determined as follows:-
(i) if reasonable minds
would necessarily agree that the
evidence renders the
non-existence of the presumed
fact more probable than not, the
court shall find … against the
existence of the presumed fact,
or
(ii) if reasonable minds
would necessarily agree that the
evidence does not render the
non-existence of the presumed
fact more probable than not, the
court shall find … in favour of
the presumed fact, or
(iii) if reasonable minds
would not necessarily agree as
to whether the evidence renders
the non-existence of the
presumed fact more probable than
not, the court shall find … in
favour of the existence of the
presumed fact unless it finds
from the evidence that the non
existence of the presumed fact
is more probable than its
existence, in which case it
shall find against the existence
of the presumed fact.”
Hence the fundamental question
facing the Court of Appeal in
its analysis of the evidence was
whether, given documentary
evidence clearly showing that
Sylvia was the legal owner of
the property, (and the only
person known to the Housing
Corporation, until her death)
the Defendant, as ‘the party
against whom the presumption
operates’ was indeed able to
produce the quality and quantity
of evidence that proves that the
non-existence of the presumed
fact (that Sylvia is both the
legal and beneficial owner of
the house) is more probable than
its existence. In other words,
the Defendant had to prove that
on a preponderance of the
probabilities, it was more
probable that the Defendant
financed the payment for the
property for herself (and was
therefore its beneficial owner)
rather than Sylvia, its legal
owner. It is only upon a
positive finding that the
Defendant financed the purchase,
that the further question of
whether or not Sylvia acted as
her mother’s agent and,
therefore, held the property in
trust for her would arise.
The main allegation upon which
the Defendant relied, both in
her pleadings and oral
testimony, to establish that she
was the one who financed the
purchase of the house from her
own resources was that, at the
time of purchase, Sylvia was
financially dependent upon her,
unemployed and in no position to
purchase any property. However,
as was pointed out by the
Learned Justice Aryeetey in his
lead opinion in the Court of
Appeal, there was the clear and
unchallenged evidence by PW 2,
the Assistant Personnel Manager
of the Tema Development
Corporation (TDC) which clearly
showed that, as at the time the
deposit was paid, Sylvia had
been employed as a telephonist
at TDC for at least the previous
4 years. She was, therefore,
gainfully employed and had a
regular source of income. This
piece of evidence was however
given short shrift by the
Learned High Court judge who
concluded that on a salary of
£12 per month, Sylvia was in no
position to afford to purchase
the house. As the learned judge
expressed it:-
“As a young lady then, her
salary at the Tema Development
Corporation stood at £12 a month
before tax. There is no evidence
before me that that she had
other sources of income
available to her but I find it
difficult to believe that a
young telephonist at that age
(23) could raise the initial
deposit of £60 to purchase a
house at £1,200…. I find her
capability to raise the monies
involved rather low. At that
age, young telephonists should
be applying their incomes to
themselves. Indeed I find it
rather strange that a young
telephonist would be thinking of
purchasing a house on that
salary.”
As clearly stipulated by section
20 of the Decree, the effect of
a rebuttable presumption is no
negligible matter and it is my
view that it takes more than
speculation, personal opinion
and conjecture to remove the
assumption of the existence of
the presumed fact; this must be
particularly so where the
presumption arises, as in this
case, from documentary evidence.
It is important to appreciate
that whilst Sylvia’s interest in
the house consisted entirely of
documentary evidence, the
evidence produced by Madam Wood
to establish her counterclaim
consisted entirely of oral
testimony, i.e. hers and that of
DW 1 and 2. Furthermore, as is
demonstrated by Justice
Aryeetey, in his judgment, the
Defendant in her oral testimony
exhibited such scant knowledge
of the formal process for the
acquisition of property from the
Ghana Housing Corporation that
the reasonable conclusion must
be that she had never had any
brush with it at all. At the
time of her testimony the
Defendant was in her eighties.
Whilst giving due consideration
to the possible forgetfulness
and confusion of advanced age,
the sequence of events and
details in connection with her
alleged purchase of the premises
although it seem quite clear,
indicated a departure from the
Corporation’s norms and is
wholly unsubstantiated by any
documentary evidence of any sort
whatsoever, not even the merest
scrap of paper containing a
scribbled note of any sort.
Moreover, there was nothing to
establish that, in her case, the
Housing Corporation used a
different allocation system,
yet, there is no correspondence
initiating the alleged
transaction between the
Defendant and the Corporation.
If indeed the course of events
alleged by the Defendant is
true, then one may only conclude
that they did not result in the
acquisition of the particular
property in dispute herein. That
property, according to the clear
evidence on record was acquired
in a transaction between the
Ghana Housing Corporation and
Sylvia. Consequently, the
testimonies of DW1 and 2 are
unimportant since they provide
no sufficient proof that
Sylvia’s house was paid for by
the Defendant.
In the light of the foregoing,
the appeal herein fails and the
court affirms the decision of
the Court of Appeal granting to
the Plaintiffs the 1st
and 3rd reliefs
claimed in their Writ of
Summons.
Before concluding, I wish to
make some observations
concerning counsel’s rather
strange contention regarding the
Defendant’s declaration against
her interest. In an appeal, the
court is required to make its
determination by taking into
account every material fact
evident on the face of the
record. Exhibit 1, the
Declaration of Moveable and
Immoveable Property of a
Testator or an Intestate was
tendered by the Plaintiff
through the Defendant, without
any objection, and it was open
to the Court of Appeal, in
determining the appeal, to take
its contents into account since
they affected the probity and
value of the Defendant’s case.
The unequivocal declaration,
co-signed by the Defendant that
the house was Sylvia’s
immoveable property was made
under solemn oath and the facts
attested to could only be either
true or false. The Defendant was
under no compulsion to swear to
it in order to protect any title
she claimed to have in the
property, nor was the making of
a false declaration the only
means available to her for the
purpose. She had various
legitimate and legal avenues of
resort to do that.
Furthermore, her subsequent act
of swearing to an affidavit
identifying herself as, Sylvia’s
mother, the financier of the
purchase of the house and the
Administratrix of Sylvia’s
estate, on the strength of which
she sought to cause a change of
the ownership of the property
into her name was duplicitous,
grossly in breach of her
fiduciary status as an
administratrix of the estate,
and amounted to criminality.
Hence, Counsel’s submission in
this regard is amazing and
clearly a reflection of his
client’s scant-regard for the
sanctity of solemnly sworn
oaths.
Finally, given the documentary
evidence available to the
Housing Corporation from its own
records, it is very odd that
merely on the strength of an
affidavit such as that presented
by Madam Wood, the Corporation
even purported to alter the
ownership of the property,
abortive and ineffective though
such alteration is. Thus, I
fully endorse the view expressed
by Justice Asiamah, J.A., (as he
then was) in his concurring
opinion in the Court of Appeal,
that:-
“If House No. 647/10 were in
truth and in fact owned by the
Defendant then having knowingly
and without any coercion made a
declaration against her
proprietary interest in the said
house, she could not be heard to
be saying later on that the
house was hers”.
S. A. B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
R.T. ANINAKWAH
JUSTICE OF THE SUPREME COURT
Counsel:
Mr. Odartey Lamptey for
Appellant.
Mr. Seth Owusu for Respondent. |
