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Property -
Distribution of Estate -
Beneficiaries – Agreement –
Offer to buy the property –
Interests of the other
beneficiaries - Joint ownership
- Recovery of possession –
Contract - Specific performance
- Whether or not the payment as
on behalf of the plaintiffs or
the first defendant in her own
right as a purchaser - Whether
or not the property was ever
offered to her to buy - section
80 (2) of the Evidence Act, NRCD
323 of 1975.
HEADNOTES
Following the
death of a person to whom we
shall conveniently in this
judgment refer to as B, and in
the course of the distribution
of his estate a building
situate in Tamale that was being
utilized as a hotel (the
property)
was allotted to the plaintiff
herein and her daughter as well
as four other persons. The
beneficiaries and those who were
responsible for the distribution
of B’s estate who from the
evidence were not appointed by
the court either as executors or
administrators without a will
annexed reached an agreement
that if any of the beneficiaries
was willing to buy the property
it would be sold to him at an
agreed price. We believe that
this arrangement must have been
intended to secure some
financial provision for the
beneficiaries by way of a lump
sum payment and observe that
before us nothing of consequence
arises from it. The admitted
evidence discloses that the
plaintiff
offered to buy the property,
a decision which meant that she
had to
buy off the interests of the
other four beneficiaries
amounting to two thirds of the
one hundred thousand cedis. As
she was not able on her own to
raise the purchase price of the
property, she approached the
first defendant, her uterine
sister to assist her in buying
off the interest of the four
beneficiaries. It appears that
although the sister initially
agreed, she resiled therefrom
and had to be persuaded so to do
by members of her family
including her mother and indeed
her husband. When subsequently
she paid up the purchase price,
she claimed she did so because
the plaintiff had agreed with
her that in relation to the
quantum of her contribution
which was two thirds of the
value of the property, she was
to hold two thirds of the
interest in the property while
the plaintiff and her infant
child took the remaining one
third. After the payment for the
property, the plaintiff and the
first defendant could not agree
on what the effective terms of
their
joint ownership of the
property was to be and how it
was to be documented. While the
plaintiff insisted that they
were to take equally, the first
defendant averred that she was
to take two thirds whiles the
plaintiff and her infant child
took one third. Attempts to have
this resolved failed and the
plaintiff took out the writ of
summons herein claiming that she
and her infant daughter were the
sole owners of the property.
Also claimed was a declaration
that the amount paid by the
first defendant towards the
acquisition of the property was
a loan,the High Court dismissed
the plaintiffs’ claim in its
entirety and allowed the
counterclaim of the first
defendant, The plaintiffs lodged
an appeal from the decision of
the High Court, Tamale to the
Court of Appeal. At the end of
the hearing of the appeal, the
Court of Appeal affirmed the
trial court’s decision
HELD
Having
confirmed the findings of the
two lower courts on the crucial
matters of fact that were in
dispute before them for
determination, we are of the
thinking that the counterclaim
of the first defendant succeeds
as indeed these two courts
concluded. In our view the said
awards may be said to truly bear
the sense of justice in the
matter and accordingly proceed
to dismiss the appeal herein and
affirm the decision of the Court
of Appeal.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act,
NRCD 323 of 1975.
CASES
REFERRED TO IN JUDGMENT
Achoro v
Akanfela [1996-97] SCGLR 209 at
214
Robins v
National Trust Co [1927] Ac 515
Allen v
Quebec Warehouse Co (1886) 12
App Cas 101
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
YONI KULENDI
FOR THE APPLICANT
MOHAMMED
ALHASAN FOR THE RESPONDENT
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J U D G M E N
T.
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GBADEGBE JSC:
We begin this
delivery with the statement that
this case is in our opinion
another example of how simple
fact situations in the dealings
between blood relations often
end up in the courts requiring
pronouncements that involve
important questions of law. In
our view although this is a
vindication of the capacity of
the legal system to order our
lives, it would have been
preferable if the action herein
had been resolved through ADR.
We must express our regret that
such determinations have the
effect of impacting negatively
on the future relationship of
the parties. Now to the facts on
which this case turns.
Following the
death of a person to whom we
shall conveniently in this
judgment refer to as B, and in
the course of the distribution
of his estate a building
situate in Tamale that was being
utilized as a hotel (the
property) was allotted to the
plaintiff herein and her
daughter as well as four other
persons. The beneficiaries and
those who were responsible for
the distribution of B’s estate
who from the evidence were not
appointed by the court either as
executors or administrators
without a will annexed reached
an agreement that if any of the
beneficiaries was willing to buy
the property it would be sold to
him at an agreed price. We
believe that this arrangement
must have been intended to
secure some financial provision
for the beneficiaries by way of
a lump sum payment and observe
that before us nothing of
consequence arises from it.
The admitted
evidence discloses that the
plaintiff offered to buy the
property, a decision which meant
that she had to buy off the
interests of the other four
beneficiaries amounting to two
thirds of the one hundred
thousand cedis. As she was not
able on her own to raise the
purchase price of the property,
she approached the first
defendant, her uterine sister to
assist her in buying off the
interest of the four
beneficiaries. It appears that
although the sister initially
agreed, she resiled therefrom
and had to be persuaded so to do
by members of her family
including her mother and indeed
her husband. When subsequently
she paid up the purchase price,
she claimed she did so because
the plaintiff had agreed with
her that in relation to the
quantum of her contribution
which was two thirds of the
value of the property, she was
to hold two thirds of the
interest in the property while
the plaintiff and her infant
child took the remaining one
third.
After the
payment for the property, the
plaintiff and the first
defendant could not agree on
what the effective terms of
their joint ownership of the
property was to be and how it
was to be documented. While the
plaintiff insisted that they
were to take equally, the first
defendant averred that she was
to take two thirds whiles the
plaintiff and her infant child
took one third. Attempts to have
this resolved failed and the
plaintiff took out the writ of
summons herein claiming that she
and her infant daughter were the
sole owners of the property.
Also claimed was a declaration
that the amount paid by the
first defendant towards the
acquisition of the property was
a loan
to her wherefore she demanded an
order of accounts from the
sister for the operation of the
property as a hotel and an order
of ejection and
recovery
of possession against her.
As regards the second defendant
she made a claim against him as
an agent for the vendors (that
from the evidence meant the
other four beneficiaries of that
particular property). The
first defendant in her defence
to the action filed a
counterclaim that sought an
order of
specific performance of an
agreement that she made with the
plaintiff and her daughter
relating to the purchase of the
property and a further
declaration that she takes two
thirds of the value and the
plaintiff and her daughter the
remaining one third.
Such was the
state of the pleadings that at
the trial the crucial issues to
be determined were that of
whether
the payment as on behalf of the
plaintiffs or the first
defendant in her own right as a
purchaser. There was also
the question of accounts from
the first defendant to the
plaintiffs. Closely linked with
the capacity in which the
payment made by the first
defendant for the property is
whether
or not the property was ever
offered to her to buy. The
learned trial judge after what
we consider to be an unhappy
session that had him preside
over a trial between two uterine
sisters came to the
conclusion on all the disputed
issues of fact arising from the
pleadings in favor of the first
defendant and in particular
dismissed the plaintiffs’ claim
in its entirety and allowed the
counterclaim of the first
defendant.
The
plaintiffs lodged an appeal from
the decision of the High Court,
Tamale to the Court of Appeal.
At the end of the hearing of the
appeal, the Court of Appeal
affirmed the trial court’s
decision. The instant
proceedings are as a result of
an appeal to this court from the
judgment of the Court of Appeal.
Before
proceeding to consider the
several grounds of appeal filed
in the matter herein, we observe
that in the main they raise for
our determination purely matters
of fact that were determined by
the two concurrent lower courts
in favor of the first defendant.
Therefore based on a long
established principle in such
cases, it is our duty to
consider whether Delivering the
judgment of the court in the
case of
Achoro v Akanfela
[1996-97] SCGLR 209 at 214,
Acquah JSC (as he then
was) made the following
pronouncement:
“ Now in
an appeal against findings of
facts to a second appellate
court like this court, where the
lower court had concurred in the
findings of the trial court,
especially in a dispute, the
subject-matter of which is
peculiarly within the bosom of
the two lower courts or
tribunals, this
court will
not interfere with the
concurrent findings of the lower
courts unless it was established
with absolute clearness that
some blunder or error resulting
in a miscarriage of justice, is
apparent in the way which the
tribunal dealt with the facts.
It must be established, eg, that
the lower courts had clearly
erred in the face of a crucial
documentary evidence, or that a
principle of evidence had not
been properly applied…………….or as
pointed out in
Robins
v National Trust Co [1927]
Ac 515, that the finding is
so based on an erroneous
proposition of the law that if
that proposition is corrected,
the finding disappears. In
short, it must be demonstrated
that the judgment of the courts
below are clearly wrong: see
Allen
v Quebec Warehouse Co
(1886) 12 App Cas 101.”
We have
patiently examined the record of
appeal in the light of the
grounds of appeal touching the
findings and are left in no
doubt that the decisions that
are under attack in this appeal
were arrived at after a careful
consideration of the evidence
that looked at in terms of the
probabilities that turned on the
case pointed more in the
direction of the case of the
first defendant. Since we are in
agreement with the two lower
courts on the issues of fact as
found by them we would
ordinarily have been content
with the said findings and say
nothing more on them but noting
that learned counsel in the
matter have made considerable
submissions to us in the matter
herein out of respect to them we
wish to take some time in giving
our attention to some of the
issues raised. Regarding these,
we wish to pose for our
consideration certain questions
the answers to which are
supportive of the decision on
appeal to us. If we may ask for
example, why did the plaintiffs
not call any of her relations to
support her version of the
circumstances in which the
sister, the first defendant
accepted to buy off the
interests of the other
beneficiaries? It seems that she
thought that if called they
would not support her narration
of the events and unsurprisingly
when they testified on behalf
of the first defendant their
evidence was contrary to what
she had put forward.
Again, in the
face of the withdrawal by the
first defendant of her offer to
pay up the required amount, we
think that she must have had a
change of mind only after she
was persuaded that the plaintiff
had now acquiesced in the
sharing of 2.1 in regard to the
ownership of the property. We
are of the opinion that the
decision of the first defendant
not to provide the purchase
price of the property as a
result of apprehensions about
her sister’s real intentions
were subsequently proved true by
her conduct in refusing to sign
the agreement relating to their
joint ownership and the sharing
of profits and losses which
reasonably is traceable to her
decision that
the interests
be equally apportioned. Then
there is the evidence that the
plaintiff took her sister to the
property and introduced her to
the employees as a co-owner. In
our view if the true facts were
as contended by the plaintiff,
she would not have introduced
her as a co-owner, a conduct
that constitutes a declaration
against her own interest that
compels us o believe the version
of the first defendant. There
has been a complaint by the
plaintiff regarding the question
whether not being a beneficiary
of the estate of the deceased
any offer to sell the property
was made to her. From the
evidence, we are of the opinion
that the conduct of the other
beneficiaries whose interest she
purchased in accepting the money
renders any such complaint by
the plaintiff wholly devoid of
any substance.
Examining the
evidence as a whole in terms of
its substance, the version of
the first defendant had the
simple color of the truth as it
accorded not only with a
common sense but the conduct of
the plaintiff as well as her co-
beneficiaries following the
offer to buy the property by
the 1st defendant and
subsequently thereto. We also
think that in the absence of any
proof by the plaintiff of any
agreement subsequent to the
offer of the property which had
the effect of conferring on the
purchaser an interest less than
that of those whose interests
were purchased the first
defendant stepped into the shoes
of the beneficiaries whose
interest in the property she had
purchased. It being so, we
think that the version of the
matter as tendered to the trial
court by the plaintiff looked
quite improbable and was rightly
rejected by both courts. See-
section
80 (2) of the Evidence Act, NRCD
323 of 1975.
Having
confirmed the findings of the
two lower courts on the crucial
matters of fact that were in
dispute before them for
determination, we are of the
thinking that the counterclaim
of the first defendant succeeds
as indeed these two courts
concluded. In our view the said
awards may be said to truly bear
the sense of justice in the
matter and accordingly proceed
to dismiss the appeal herein and
affirm the decision of the Court
of Appeal.
[SGD]
S. N. GBADEGBE
JUSTICE
OF THE SUPREME COURT
[SGD]
S. A. B. AKUFFO (MS.)
JUSTICE OF THE SUPREME COURT
[SGD]
S. O. A. ADINYIRA (MRS).
JUSTICE OF THE SUPREME COURT
[SGD] ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
[SGD] P. BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
COUNSEL:
YONI KULENDI
FOR THE APPLICANT
MOHAMMED
ALHASAN FOR THE RESPONDENT
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