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UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2019

 

 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2019

                                                           

                                             

JOANA NYARKO VRS MAXWELL TETTEH BEATRICE TETTEH KWESI AFFRAM    CIVIL APPEAL SUIT NO. J4/27/2019   11TH DECEMBER 2019

 

CORAM

 

GBADEGBE, JSC (PRESIDING) MARFUL-SAU, JSC DORDZIE (MRS), JSC AMEGATCHER, JSC KOTEY, JSC

 

 

Wills - Probate and administration - Ownership of portions of the estate – Deed of Gift -  Testamentary capacity - Fraud  - Whether  or not Exhibits ‘‘I’’, ‘‘C’’ and ‘‘E’’ and the conduct of the 2nd and 3rd Defendants were fraudulent - whether the testator had testamentary capacity for the sixteen stores  - section 13(1) of the Evidence Act, 1975 (NRCD323).

HEADNOTES

 The testator in the case died sometime in 1998.  His Will was admitted to probate on 10th March, 2005. The estate comprised land and buildings known and described as House No. 229/19, Darkuman-Kokompe, Accra.  On the said land were two constituent buildings, a large storey building, and sixteen stores A major beneficiary of the Will was his widow, the Plaintiff and her children. When by 2011 the Plaintiff was dissatisfied with the administration of the estate by the 1st Defendant, the executor and the intermeddling in the estate by the 2nd and 3rd Defendants, the Plaintiff instituted action in the High Court seeking the following Account of all the proceeds from the renting of the 13 stores since 1995. Account of the stewardship of the estate to the beneficiaries, Distribution of the parts of the estate to the beneficiaries, Provision of the original copy of the probate, Cost of litigation. In her defence, the 2nd Defendant claimed that the testator had gifted a portion of the land to her before his death.  She tendered a Deed of Gift dated 16th December 1997, The 3rd Defendant in his defence claimed that he is the beneficial owner of the whole property described as House No.229/16, Darkuman-Kokompe, Accra.  He alleged that the testator had in fact purchased the land in his name for him soon after his birth and that at all material times the testator was holding the property in trust for him The learned trial judge therefore granted all the reliefs being sought by the Plaintiff and dismissed the counterclaim of the 3rd Defendant. Dissatisfied with the decision of the trial High Court, the Defendants appealed to the Court of Appeal. The Court of Appeal in its judgment of 24th May, 2018 varied the judgment of the trial High Court by affirming one of the findings of the High Court but allowing the appeal and setting aside other findings of the High Court. Aggrieved by the decision of the Court of Appeal, the Plaintiff has appealed to this court

HELD

 The Defendants must swim or sink together.  The 2nd and 3rd Defendants sought to steal their father’s land and to disinherit and eject their father’s widow (their step mother) and her children (their half siblings) from his bona fide property.  They have failed and must end with nothing. Furthermore, in view of the dishonesty of the 2nd and 3rd Defendant and the false testimony that they proffered to the court, this court finds them untrustworthy and views their evidence in relation to the construction of the sixteen stores with suspicion. We therefore reverse the finding of the Court of Appeal that the sixteen stores were constructed and owned by the 2nd and 3rd defendants and their brother Korankye and affirm the finding of the trial High Court that the sixteen stores were constructed and owned by the testator. In light of the foregoing, the appeal is allowed in its entirety.  We reverse the findings of the Court of Appeal overturning the decisions and orders of the trial High Court and restore the findings and orders of the trial High Court in their entirety.

 STATUTES REFERRED TO IN JUDGMENT

Evidence Act, 1975 (NRCD323).

High Court (Civil Procedure) Rules, 2004 (C.I.41)

Land Title Registration Act, 1985 (PNDCL 152)

CASES REFERRED TO IN JUDGMENT

Republic v Conduah exparte Aaba (substituted by Asmah) [2013-2014] 2 SCGLR 1032

Tuakwa V Bosom [2001-2002] SCGLR 61,

Quarcoopome v Sanyo Electric Trading Co. Ltd. [2009] SCGLR 213,

Nartey (No.2) v African Institute of Journalism and Communication & Ors (No. 2) [2013 -2014] 1 SCGLR 703

Oppong v Anarfi [2011-2012] 2 SCGLR 556.

Achoro v Akanfella [1996-97] SCGLR 207, Fosua & Adu-Poku v Dufie & Adu-Poku Mensah [2009] SCGLR 310 and Gregory v Tandoh IV & Hanson [2010] SCGLR 975.

Nti V Anima [1984-86] GLR 134.

Amuzu v Oklikah [1998-99] SCGLR 141 and Ecobank Nigeria Plc v Hiss Hands Housing Agency [2017-2018] 1 SCGLR 355

SA Turqui & Brothers v Daliabieh [1987-88] GLR 486

BOOKS REFERRED TO IN JUDGMENT

 

Kerr on the Law of Fraud and Mistake, 7th edition, by Denis McDonnel and John Munroe

 

DELIVERING THE LEADING JUDGMENT

KOTEY JSC

COUNSEL

EMMANUEL BRIGHT ATOKOH FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

KWAME YANKYERA FOR THE 1ST AND 2ND DEFENDANTS/APPELLANTS/RESPONDENTS.

CHARLES BAWADUAH FOR THE 3RD DEFENDANT/APPELLANT/RESPONDENT.

 

 

 

JUDGMENT

 

 

THE UNANIMOUS JUDGMENT OF THE COURT IS READ BY KOTEY JSC, AS FOLLOWS:-

 

BACKGROUND

Before us is an appeal against the judgment of the Court of Appeal partially reversing the decision of the trial High Court. This appeal is asking this court to overturn those aspects of the decision that reversed the trial High Court and to fully restore the findings of the High Court.

 

This is essentially a probate and administration matter interspersed with issues of ownership of portions of the estate.

 

The testator in the case died sometime in 1998.  His Will was admitted to probate on 10th March, 2005. The estate comprised land and buildings known and described as House No. 229/19, Darkuman-Kokompe, Accra.  On the said land were two constituent buildings, a large storey building, and sixteen storesA major beneficiary of the Will was his widow, the Plaintiff and her children. When by 2011 the Plaintiff was dissatisfied with the administration of the estate by the 1st Defendant, the executor and the intermeddling in the estate by the 2nd and 3rd Defendants, the Plaintiff instituted action in the High Court seeking the following reliefs;

  1. Account of all the proceeds from the renting of the 13 stores since 1995.
  2. Account of the stewardship of the estate to the beneficiaries.
  3. Distribution of the parts of the estate to the beneficiaries.
  4. Provision of the original copy of the probate.
  5. Cost of litigation.

 

The Plaintiff is the widow of the testator. The 1st Defendant is the executor of the Will of the testator, husband of the 2nd Defendant and son-in-law of the testator. The 2nd Defendant is a daughter of the testator and wife of the 1st Defendant. The 3rd Defendant is a son of the testator and brother of the 2nd Defendant.  The 2nd and 3rd Defendant are children of the testator by a previous wife, Agnes Ama Serwaa who features in the case as DW1.

 

In her defence, the 2nd Defendant claimed that the testator had gifted a portion of the land to her before his death.  She tendered a Deed of Gift dated 16th December 1997, Exhibit ‘‘I’’, in support of her claim.

 

The 3rd Defendant in his defence claimed that he is the beneficial owner of the whole property described as House No.229/16, Darkuman-Kokompe, Accra.  He alleged that the testator had in fact purchased the land in his name for him soon after his birth and that at all material times the testator was holding the property in trust for him and therefore the testator had no testamentary capacity over the property.  He tendered Exhibit ‘‘C’’ in support of his claim.  The 3rd Defendant therefore counterclaimed as follows;

  1. A declaration that the late Samuel Kwabena Affram had no testamentary capacity over H/No.229/16, Darkuman-Kokompe, Accra.
  2. An order deleting the said house from the devise in the Will of the late Kwabena Affram as well as the probate covering the property.
  3. An order of ejectment of the Plaintiff from House No.229/16, Darkuman-Kokompe, Accra.

 

After a full blown trial and on the totality of the evidence adduced, the trial High Court found that Exhibits ‘‘I’’, ‘‘C’’ and ‘‘E’’ were fraudulent, that the 3rd Defendant’s story of the purchase of House No.229/16 Darkuman-Kokompe, Accra in his name, and for him was a crude concoction and that the sixteen stores were constructed by the testator.  The learned trial judge therefore granted all the reliefs being sought by the Plaintiff and dismissed the counterclaim of the 3rd Defendant.

 

Dissatisfied with the decision of the trial High Court, the Defendants appealed to the Court of Appeal.

 

The Court of Appeal in its judgment of 24th May, 2018 varied the judgment of the trial High Court by affirming one of the findings of the High Court but allowing the appeal and setting aside other findings of the High Court.  Specifically, the Court of Appeal held as follows;

  1. Affirmed the findings of the trial High Court that the land on which House No.229/16, Darkuman-Kokompe stands was acquired by the testator and was not in the name of and/or for the benefit of the 3rd Defendant.
  2. That contrary to the findings of the trial High Court, Exhibits ‘‘I’’, ‘‘C’’ and ‘‘E’’ and the conduct of the 2nd and 3rd Defendant were not fraudulent and should not be cancelled.
  3. That contrary to the finding of the trial High Court the 16 stores were not constructed by the testator but by the 2nd and 3rd Defendant s and their deceased brother, Korankye.

 

GROUNDS OF APPEAL

Aggrieved by the decision of the Court of Appeal, the Plaintiff has appealed to this court on the following grounds;

i.              The learned judges of the Court of Appeal erred when they overturned the decision of the trial judge and held that the stores in House No.229/16, Darkuman-Kokompe, Accra were constructed by 2nd and 3rd Appellants and their deceased brother, Korankye when same is not supported by the evidence on record.

ii.            The learned judges of the Court of Appeal erred when they concluded that the late Samuel Kwabena Affram, the testator had by his conduct altered or changed his Will dated the 21st day of March, 1989, in allowing 2nd and 3rd Defendant s/appellants/respondents and their deceased brother Korankye to develop H/No.229/16 Darkuman-Kokompe, Accra and thus had no testamentary capacity to devise the stores in the said property to the Appellant and her children.

iii.           The learned judges of the Court of Appeal erred when they set aside the finding of fraud against 2nd and 3rd respondents made by the trial judge contrary to the evidence on record and upheld the grounds of Appeal (a), (b), and (f) of 3rd respondent.

iv.           The judgment of the Court of Appeal is against the weight of evidence on record.

 

In effect the Plaintiff is asking for a reversal of those portions of the decision of the Court of Appeal which overturned the findings of the trial High Court and a restoration of all the findings of the trial High Court.  These relate to two issues, namely;

  1. Whether Exhibits ‘‘I’’, ‘‘C’’ and ‘‘E’’ and the conduct of the 2nd and 3rd Defendants were fraudulent.
  2. Who was responsible for the construction of and whether the testator had testamentary capacity for the sixteen stores on House No.229/16 Darkuman-Kokompe, Accra.

 

We have a situation where the trial court and the first appellate court have reached different conclusions on the evidence.  In a situation like this, the law is that the proceedings before the final appellate court are by way of rehearing. See Republic v Conduah exparte Aaba (substituted by Asmah) [2013-2014] 2 SCGLR 1032. The task of this court is to re-examine and evaluate the totality of the evidence adduced at the trial and determine which of the two rival findings of fact is supported by the evidence. See Tuakwa V Bosom [2001-2002] SCGLR 61, Quarcoopome v Sanyo Electric Trading Co. Ltd. [2009] SCGLR 213, Nartey (No.2) v African Institute of Journalism and Communication & Ors (No. 2) [2013 -2014] 1 SCGLR 703 and Oppong v Anarfi [2011-2012] 2 SCGLR 556.

 

In view of the centrality of the issue of fraud in this case we intend to deal with that issue first.

 

FRAUD

The trial High Court found that the conduct of the 2nd Defendant had been dishonest and fraudulent and held that Exhibit ‘‘I’’, the alleged Deed of Gift of the 2nd Defendant was a forgery and Exhibit ‘‘E’’, the resultant substituted Land Title Certificate which the Lands Commission had issued to the 2nd Defendant was procured by fraud and ordered their cancellation.

 

The trial High Court also found that Exhibit ‘‘C’’, relied upon by the 3rd Defendant in support of his claim that the testator purchased the entire Darkuman-Kokompe land for him and in his name was fraudulent and ordered its cancellation.

                                                        

The Court of Appeal overturned these findings of the trial High Court. The Court of Appeal held that fraud had not been pleaded nor proved by the Plaintiff.  It also held that though Exhibits ‘‘I’’, ‘‘C’’ and ‘‘E’’ were not authentic, that did not amount to fraud. 

 

It must be noted, that an appellate court is not at liberty to overturn the findings of fact of the trial court and to substitute its own conclusions except in clearly established circumstances.

 

The appellate court can only vary the trial court’s findings of fact where on the totality of the evidence, the findings are clearly not supported by the evidence, are unreasonable or perverse, are inconsistent with important documentary evidence, or the trial court has wrongly applied a principle of law.  See Achoro v Akanfella [1996-97] SCGLR 207, Fosua & Adu-Poku v Dufie & Adu-Poku Mensah [2009] SCGLR 310 and Gregory v Tandoh IV & Hanson [2010] SCGLR 975.

 

Counsel for the appellant has urged us to restore the findings of fraud made by the trial High Court.  Counsel has argued that Exhibits ‘‘I’’, ‘‘C’’ and ‘‘E’’ were crude ex post facto and fraudulent attempts by the 2nd and 3rd Defendants to establish title to the whole or part of the testator’s land in an attempt to deprive the Plaintiff and her children of their inheritance.  Though Counsel admitted that the Plaintiff did not plead fraud, he submitted that Plaintiff was not aware of the existence of the said exhibits I, C and E and that it was only during the trial that these were tendered by the 2nd and 3rd Defendants.  Counsel therefore submitted that on the peculiar facts of this case, failure to specifically plead fraud ought not to be fatal.

 

Counsel further contended that there was sufficient evidence of dishonest conduct on the part of the 2nd and 3rd Defendants in relation to Exhibits ‘‘I’’, ‘‘C’’ and ‘‘E’’, and in their attempt to establish claim to the whole or part of the testator’s land and deprive the Plaintiff and her children of their inheritance to support the trial judge’s finding of fraud.

 

Counsel for both the 1st and 2nd Defendants and the 3rd Defendant supported the reversal by the Court of Appeal of the finding of the trial court on the issue of fraud.  They both placed great premium on the fact that the Plaintiff did not plead nor particularise fraud and fraud was not set out as an issue for trial at the application for directions stage.  For both counsel this was fatal and the trial judge erred in finding fraud against the 2nd and 3rd Defendants.  Counsel relied on a number of authorities including Nti V Anima [1984-86] GLR 134.

 

Both counsels further argued on the facts that the Plaintiff failed to establish fraud beyond a reasonable doubt as required by section 13(1) of the Evidence Act, 1975 (NRCD323).

 

Failure to Plead or Particularise Fraud

Dealing first with the issue of the Plaintiff neither pleading nor particularizing fraud, we agree with the decision of the trial High Court, that this is not fatal.  This Court has held in a number of cases such as Amuzu v Oklikah [1998-99] SCGLR 141 and Ecobank Nigeria Plc v Hiss Hands Housing Agency [2017-2018] 1 SCGLR 355 that though it is preferable to plead and particularise fraud, failure to do so is not fatal in all circumstances.  In the Oklikah case, Atuguba JSC stated at page 183 as follows:

 

 “In this case fraud has not been distinctly pleaded.  But in view, especially of the provisions of sections 5,6 and 11 of the Evidence Decree, 1975 (NRCD 323) regarding reception of evidence not objected to, it can be said, that where there is clear but unpleaded evidence not objected to, the court cannot ignore the same, the myth surrounding the pleading of fraud notwithstanding”

 

And in the Ecobank Nigeria Plc case (supra), Gbadegbe JSC, after referring to the requirement of order 11 rule 12 (1) (a) of the High Court (Civil Procedure) Rules, 2004 (C.I.41) that particulars of fraud shall be specifically pleaded, continued at page 367;

 

“Although the rule is expressed in mandatory language, our courts have held that where a party fails to comply with the requirement of order 11 rule 12 (1) (a) but his opponent fails to object to evidence in support of the allegation of fraud, a court of law cannot shut its eyes to the evidence so led but must take it into account in deciding the dispute before the court.”

 

So, in the Ecobank Nigeria Plc case, (supra) where the court found that funds have been transferred into the accounts of the first defendant improperly and with a view to depriving the plaintiff of the benefit of his money, this court found that fraud had been established.  This court held that the dishonourable and unconscionable conduct of the first defendant amounted to fraud.

 

It must be emphasized that the Plaintiff’s case was not based on fraud.  The Plaintiff’s action was a simple probate and administration action demanding that the 1st Defendant, the executor of the estate, account to the beneficiaries for his administration and that the 2nd and 3rd Defendants cease intermeddling with the estate.  The Plaintiff could not therefore have pleaded or particularized fraud in her pleading.  It was the 2nd and 3rd Defendants who claimed ownership of the whole or parts of the estate and tendered Exhibits ‘‘I’’, ‘‘C’’ and ‘‘E’’.  Fraud was found by the trial judge on the totality of the evidence at the conclusion of the trial.

 

Fraud in this case, was used by the Plaintiff as a shield and not a sword.  We therefore agree with the trial High Court that in a situation such as this, not pleading or particularising fraud is not fatal and did not preclude the court from concluding that the conduct of the 2nd and 3rd Defendants had been fraudulent.

 

The Evidence on Fraud

We now proceed to examine whether the conduct of the 2nd and 3rd Defendants amounted to fraud.

 

As we have pointed out, our task here is to determine whether on the totality of the evidence, the Court of Appeal properly exercised its discretion in overturning the trial court’s finding of fraud. In other words, on the totality of the evidence, was the trial court’s finding of fraud clearly not supported by the evidence, was it unreasonable or perverse or was it inconsistent with important documentary evidence.

 

From the totality of the evidence adduced at the trial, it is palpably clear that the 2nd and 3rd Defendants engaged in dishonest conduct and attempted to cheat the Plaintiff and deprive her and her children of their inheritance.  The 2nd and 3rd Defendant by their dishonest conduct have also attempted to mislead the court and pervert the course of justice.

 

The 3rd Defendant forged Exhibit “C”.  He sought to change his father’s name on the Title Deed to the entire property from Samuel K. Affram to his name, Samuel Kwesi Affram; and yet, the evidence showed quite clearly that when his father bought the land in 1961, he had not been born.  He was born in 1972.

 

The 3rd Defendant and his witness DW1, his mother, also perjured themselves by giving palpably false evidence in connection with the purchase of the land.  The 3rd Defendant and his mother, a former wife of the testator, concocted an Ananse story that the land was bought by the testator in the name of and for the 3rd Defendant with the proceeds realized from the 3rd Defendant’s naming ceremony. This was a complete fabrication.  The Deed of Purchase, tendered by the 3rd Defendant as Exhibit ‘‘C’’ recited that the land had been purchased by the testator from the Asere Stool in 1961 (when the 3rd Defendant had not been born) and the formal indenture executed in 1973, when the 3rd Defendant  would have been only 2 years old.

 

This was a crude attempt by the 3rd Defendant and his mother to perpetrate fraud and we condemn it in the strongest terms.

 

The 2nd Defendant on her part claimed that the testator gifted a part of the land to her in 1999. But the 3rd Defendant is claiming the entire land by virtue of Exhibit ‘‘C’’.  So whilst the 2nd Defendant was claiming a portion of the land on the basis of a purported gift from the testator, their father, the 3rd Defendant, her brother, was claiming the entire land by virtue of Exhibit ‘‘C’’.  Nothing could be more disingenuous.

 

The 2nd Defendant in support of her claim of a gift from the testator relied on a purported Deed of gift, Exhibit ‘‘I’’ and a resultant substitute Land Title Certificate, Exhibit ‘‘E’’.  Exhibit ‘‘I’’ purports to be a Deed of gift executed by the testator in favour of the 2nd Defendant in 1999, 2 years after the construction of the 16 disputed stores by which the testator purported to gift four shops and one room to the 2nd Defendant.  The trial judge noted that the 2nd Defendant did not plead or remotely raise Exhibits ‘‘I’’ and ‘‘E’’ and found that the testator’s purported signature on Exhibit ‘‘I’’ is different from his signature on Exhibit ‘‘A’’, which is accepted and acknowledged by all the parties as the signature of the testator.  The trial court did not also look favorably upon the substituted Land Title Certificate.  The court noted that by the Land Title Registration Act, 1985 (PNDCL 152) a substitute Land Title Certificate can only be issued by the Registrar where a proprietor has established that she had been issued with an original Land Title Certificate which is lost, and that the 2nd Defendant  had led no such evidence.  The trial court therefore found Exhibits ‘‘E’’ and ‘‘I’’ as ex post facto attempts by the 2nd Defendant to mislead the court and deprive the Plaintiff and her children of their inheritance.

 

The Court of Appeal did not consider the conduct of the 3rd Defendant with the same opprobrium as the trial court.  The Court agreed with counsel for the 3rd Defendant that the failure of the Plaintiff to plead and particularise fraud was fatal.  They relied on order 11, rule 12 of C.I 41 and section 13(1) of the Evidence Act, 1975.

 

On the other hand, it held that the failure of the 3rd Defendant to plead Exhibits ‘‘I’’ and ‘‘E’’ as the basis of her claim was not.  Furthermore, though the Court of Appeal noted that the trial court had found that the purported signature on Exhibit ‘‘I’’ was not that of the testator, it nonetheless found that this did not establish fraud beyond a reasonable doubt as required.

 

The 3rd Defendant also tendered Exhibits ‘‘H’’ and ‘‘5’’.  Exhibit ‘‘H’’, dated 3rd November 2014 is a search report issued by the Lands Commission indicating that the land is recorded in the name of Samuel K. Affram at the Land Registry. Exhibit ‘‘5’’ is a receipt issued by the Lands Commission, dated 17th December 2015 when a second application for search was filed by the 3rd Defendant.  The name stated on Exhibit ‘‘5’’ is not Samuel K. Affram but Samuel Kwesi Affram.

 

The Court of Appeal, however, explained all these untruths, contradictions and inconsistencies away and found that these do not amount to fraud. We have considered the evidence very carefully and cannot support the decision of the Court of Appeal.  The 3rd Defendant set out to steal his father’s land and set up an elaborate scheme of forgery, dishonesty, perjury, misleading of the court and perversion of the course of justice in this dastardly act; and the Court of Appeal says this is not fraudulent.   The Court of Appeal quoted with approval the dictum of Taylor, JSC in SA Turqui & Brothers v Daliabieh [1987-88] GLR 486 at pages 502-503 that:

“In my opinion a charge of fraud in law can be taken to be properly made against a party who knowingly or recklessly whether by conduct or words, uses unfair, wrongful or unlawful means to obtain a material advantage to the detriment of another party.  It is an insidious form of corruption and it is therefore a charge involving moral obloquy.  Bluntly put without equivocation it is a species of dishonest conduct.”

 

The Court of Appeal also approvingly quoted Kerr on the Law of Fraud and Mistake, 7th edition, by Denis McDonnel and John Munroe, at page 18 as follows:

“There is fraud in law if a man makes a representation which he knows to be false or does not honestly believe to be true and makes it with a view to induce another to act on the faith of it, he does is accordingly, and by so doing sustains damage…”

 

And yet, the Court of Appeal overturned the trial judge’s finding of fraud.  There can be no doubt that the 2nd and 3rd Defendants acted dishonestly and that by their conduct and words, sought to secure a material advantage to the detriment of the Plaintiff and her children.  And these acts of dishonesty permeated the land administration system of the country and sought to mislead the court.  It is in the words of Taylor JSC, insidious corruption involving moral obloquy.

We have carefully re-examined and evaluated the totality of the evidence at the trial and are of the considered opinion that the trial court’s finding of fraud was not clearly contrary to the evidence, unreasonable or perverse or inconsistent with important documentary evidence.  The Court of Appeal therefore erred in overturning the trial court’s finding of fraud.

 

We reverse the finding of the Court of Appeal overturning the trial courts findings of fraud against the 2nd and 3rd Defendant.  We accordingly restore the trial High Court’s finding of fraud against the 2nd and 3rd Defendants and the cancellation of Exhibits ‘‘C’’, ‘‘E’’ and ‘‘I’’.

 

CONCLUSION

As is well known, fraud vitiates everything. The conduct of the 2nd and 3rd Defendant is dishonest and unconscionable and they must lose any rights they may have acquired by building on or contributing to build on the testator’s land with his permission.  After all, the 3rd Defendant, after claiming that the land was acquired in his name and for him by the testator, counter-claimed for the entirety of the testator’s property. The 2nd Defendant also aligned herself with her brother, the 3rd Defendant, even in her amended statement of defence.  At paragraph 9 of the amended statement, the 2nd Defendant and her husband, the 1st Defendant stated;

 

“At all material times the facts are that the testator held the land and managed it in trust for the 3rd Defendant”.

 

The Defendants must swim or sink together.  The 2nd and 3rd Defendants sought to steal their father’s land and to disinherit and eject their father’s widow (their step mother) and her children (their half siblings) from his bona fide property.  They have failed and must end with nothing.

 

Furthermore, in view of the dishonesty of the 2nd and 3rd Defendant and the false testimony that they proffered to the court, this court finds them untrustworthy and views their evidence in relation to the construction of the sixteen stores with suspicion. 

We therefore reverse the finding of the Court of Appeal that the sixteen stores were constructed and owned by the 2nd and 3rd defendants and their brother Korankye and affirm the finding of the trial High Court that the sixteen stores were constructed and owned by the testator.

 

In light of the foregoing, the appeal is allowed in its entirety.  We reverse the findings of the Court of Appeal overturning the decisions and orders of the trial High Court and restore the findings and orders of the trial High Court in their entirety.

 

SGD.          PROF. N. A. KOTEY

(JUSTICE OF THE SUPREME COURT)

 

SGD.           N. S. GBADEGBE

(JUSTICE OF THE SUPREME COURT)

 

SGD.            S. K. MARFUL-SAU

(JUSTICE OF THE SUPREME COURT)

 

SGD.             A.M. A. DORDZIE

(JUSTICE OF THE SUPREME COURT)

 

SGD.              N. A. AMEGATCHER

(JUSTICE OF THE SUPREME COURT)

COUNSEL

EMMANUEL BRIGHT ATOKOH FOR THE PLAINTIFF/RESPONDENT/APPELLANT.

 

KWAME YANKYERA FOR THE 1ST AND 2ND DEFENDANTS/APPELLANTS/

RESPONDENTS.

 

CHARLES BAWADUAH FOR THE 3RD DEFENDANT/APPELLANT/RESPONDENT.

 

 

Agreement - Oral agreement  - Released control, possession and management of sand deposits – Maintenance of the private motorways - Unilateral abrogation of agreement - Recovery of the sum of money incurred by the plaintiff in re-gravelling the road – Whether or not  judgment is against the weight of the evidence - Whether or not plaintiff is entitled to the reliefs endorsed - Whether or not the Plaintiff secured a credit facility pursuant to an agreement between the parties - Section 11 (1), 11(4)  of the Evidence Act, 1975 (N.R.C.D 323)

 

HEADNOTES

 

The facts of the case briefly are that the respondent claimed that the appellant agreed and released control, possession and management of sand deposits on its concession to him The respondent also alleged that appellant requested him to re-gravel the public road from the town of Atta Ne Atta to Bogoso Junction in the Prestea-Huni Valley District. The respondent further claimed that with the consent of the appellant, he secured a credit from his bankers at an interest rate of 35% to execute the road works. The respondent finally contended that the appellant unilaterally abrogated the agreement without any justifiable reasons and repossessed the sand deposit. The appellant denied the claims of the respondent and insisted that it never entered into any agreement with him to rehabilitate the Atta- Ne Atta to Bogoso Junction road. The appellant also denied that it agreed or consented to the respondent taking a facility from his bankers to execute the road works. The appellant case is, it embarked on a community project involving the rehabilitation of the road and the appellant voluntarily assisted by conveying gravel and laterite for the road works. The appellant also stated that the District Assembly also contributed in the rehabilitation of the road works. After the trial in the High Court, judgment was entered for the respondent, the appellant appealed to the Court of Appeal against the judgment of the trial High Court but the appeal was dismissed. The appellant being dissatisfied with the decision of the Court of Appeal, further appealed to this court praying that the decision of the Court of Appeal be set aside

 

HELD

 

From the record of appeal, we are satisfied that the claims alleged by respondent were capable of positive proof. As demonstrated in this judgment, the respondent could have led positive evidence to prove that he was contracted by appellant to execute the road rehabilitation and also the fact that he took a facility of GHC 900,000.00 from his bankers to finance the project. Having failed to positively prove the claims alleged by him, the respondent ought to have lost the contest. we are satisfied that the Court of Appeal was wrong in affirming the judgment of the trial High Court. The judgment of the Court of Appeal was therefore against the weight of evidence adduced at the trial and on that ground alone the appeal ought to be allowed. We accordingly allow the appeal and set aside the judgment entered by the Court of Appeal to the respondent. The appeal succeeds accordingly.

 

STATUTES REFERRED TO IN JUDGMENT

 

Supreme Court Rules, 1996 CI 16

Evidence Act, 1975 (N.R.C.D 323)

 

CASES REFERRED TO IN JUDGMENT

Achoro v. Akanfela (1996-1997) SGCLR 209

Gregory v. Tando IV and Hanson (2010) SCGLR 971.

Re Okine (decd.): Dodoo v. Okine (2003-2004) SCGLR 582

Ackah v.Pergah Transport Ltd & Others (2010) SCGLR 728

 

BOOKS REFERRED TO IN JUDGMENT

 

DELIVERING THE LEADING JUDGMENT

BY MARFUL-SAU JSC,

COUNSEL

DAAD AKWESI (MRS) FOR THE DEFENDANT/APPELLANT/APPELLANT.

JOHN MERCER FOR THE PLAINTIFFS/RESPONDENTS/RESPONDENTS

 

 

 

JUDGMENT

 

THE UNANIMOUS JUDGMENT OF THE COURT IS READ BY MARFUL-SAU JSC, AS FOLLOWS-:

 

BY MARFUL-SAU JSC,

 

This is an appeal against the decision of the Court of Appeal sitting at Cape Coast dated 27th June 2018. In this judgment, the defendant/ Appellant /Appellant will be referred to as Appellant and the Plaintiff/Respondent /Respondent shall be referred to as Respondent. The facts of the case briefly are that the respondent claimed that in January 2009, the appellant agreed and released control, possession and management of sand deposits on its concession to him. According to the respondent, as part of the agreement, he was to make available to the appellant and its officers quantities of sand as and when they needed it. The respondent also asserted that he was required to maintain the private motorways linking appellant’s concession area of the sand deposits.

 

The respondent also alleged that in January 2015, appellant requested him to re-gravel the public road from the town of Atta Ne Atta to Bogoso Junction in the Prestea-Huni Valley District. The respondent further claimed that with the consent of the appellant, he secured a credit facility in the sum of GHC 900,000.00 from his bankers at an interest rate of 35% to execute the road works. The respondent finally contended that in November 2015, the appellant unilaterally abrogated the agreement without any justifiable reasons and repossessed the sand deposit.

The appellant denied the claims of the respondent and insisted that it never entered into any agreement with him to rehabilitate the Atta- Ne Atta to Bogoso Junction road. The appellant also denied that it agreed or consented to the respondent taking a facility of GHC 900,000.00 from his bankers to execute the road works. The appellant case is further that in 2015, it embarked on a community project involving the rehabilitation of the road and the appellant voluntarily assisted by conveying gravel and laterite for the road works. The appellant also stated that the District Assembly also contributed in the rehabilitation of the road works.

Based on these facts, the respondent took out a writ of summons against the appellant and claimed the following reliefs:-

‘’(a)Recovery of the sum of GHC 900,000.00 being the cost incurred by the plaintiff in re-gravelling the road from the town of Atta Ne Atta to Bogoso Junction at the instance of the defendant; and

(b)Interest at 35% on the said sum from January to date of payment.

After the trial in the High Court, judgment was entered for the respondent to recover the sum of GHC 500,000.00 and interest on that sum at 35% from January 2015 till date of payment and costs of GHC 12,000.00. The appellant appealed to the Court of Appeal against the judgment of the trial High Court but the appeal was dismissed. The appellant being dissatisfied with the decision of the Court of Appeal, further appealed to this court praying that the decision of the Court of Appeal be set aside.

We observed that in the amended Notice of Appeal, the appellant formulated eight (8) grounds of appeal, the first ground being that the Court of Appeal’s judgment was against the weight of the evidence adduced at the trial.

We note that beside the general ground of appeal, all the other grounds either alleged errors and misapplication of law for which no particulars were provided as required by rule 6 (2)(f) of the Supreme Court Rules, CI 16. Those grounds are incompetent and they are struck out. We intend therefore to address ground (i), which is that the judgment of the Court of Appeal is against the weight of evidence adduced at the trial.

From the pleadings and evidence before the trial court, respondent’s main claim before the court was the recovery of the GHC 900,000.00 and interest at 35%. The respondent alleged that this money was used by him to rehabilitate the road. Indeed, at the Application for Directions, two issues were settled by both parties and same set down for trial. The issues were:

‘’ (1) Whether or not plaintiff is entitled to the reliefs endorsed on his writ of summons, and

(2) Whether or not the Plaintiff secured a credit facility pursuant to an agreement between the parties.’’

In this appeal, we are of the opinion that the fundamental issue disclosed by the pleadings and the evidence on record is whether the respondent was contracted orally to rehabilitate the road for which he allegedly took a loan of GHC 900,000.00 with the consent of appellant. The respondent’s case is that he entered into an oral agreement with appellant to rehabilitate the Atta Ne Atta to Bogoso Junction road and he borrowed GHC 900,000.00 from his bankers to execute the contract. His case further is that the appellant consented to his taking the bank facility. From the evidence on record the appellant denied these claims by the respondent and it was thus the duty of the respondent to lead credible evidence to prove the oral agreement and the fact that he took a loan of GHC 900,000.00 to rehabilitate the road.

Section 11 (1), of the Evidence Act, 1975 (N.R.C.D 323) which deals with the burden of producing evidence provides as follows:-

‘’ For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue’’.

Section 11(4) of the Evidence Act also provide that:

‘’In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of a fact was more probable than its non-existence.’’

As already observed the burden was on the respondent to prove the claims he made against the appellant. So what evidence was led by the respondent? We have combed the entire record of appeal and our considered opinion is that the respondent led no credible evidence to discharge the evidential burden on him. First, we tackle the issue that he was contracted by the appellant to rehabilitate the road. At page 77 of the record of appeal, the respondent under cross-examination testified as follows:

‘’Q. Regarding the re-graveling of the Atta Ne Atta to Bogoso Junction the defendant did not enter into any contract with you?

A. My Lord the defendant invited me and we made that agreement. It was the Mining Manager, Mr. Samuel Takyi who invited me on behalf of the defendant company.

Q. The re-gravelling of the Atta Ne Atta to Bogoso Junction road was a community project the defendant undertook?

A.I did it.’’

Q. You voluntarily approached the defendant and offered to use your trucks to convey laterite and gravels for the project?

A. It was not voluntary work. It was at the invitation of the defendant per Samuel Takyi. I used my trucks, rollers and excavators for the project. I recall that in the beginning the Mining Manager promised to help me with a grader and a roller. They came and worked for two (2) days; went away and never returned.

From the above evidence, respondent asserted that he solely re-graveled the road as a result of the agreement with the appellant. However, the respondent failed to prove this assertion. For example the respondent claimed it was one Mr. Samuel Takyi, the Mines Manger of the appellant who invited him to the meeting where the agreement was concluded, but the respondent made no effort to call such a material witness to testify for him.

The evidence on record is that the respondent was a civil contractor, so we can easily assume that if he actually executed the re- graveling of the road, he would have called some of his workers who worked on the project, to testify as witnesses to support his claim, but he failed to do so.

 The respondent in his Witness Statement testified that the project was supervised by officers of appellant, namely, Iddi Adams and Thomas Nyamesesi, but he failed to call any of them to testify for him. Most importantly, the respondent throughout the trial failed to prove the amount of money he spent on the re-graveling of the road. He only called, PW1, David Badu Bow, from the Ghana Highway Authority, to testify on how much it cost the Government of Ghana, in reshaping and re-graveling of roads. All the respondent stated in his testimony was that it cost the Ghana Government GHC 100,000.00 to reshape and re-gravel a kilometer of road. 

Clearly, from the evidence on record the respondent woefully failed to discharge the evidential burden on him and we find it difficult to appreciate the basis of the decision of both the trial High Court and Court of Appeal to the effect that respondent was contracted by the appellant to re-gravel the road and that he did in fact executed the project from his resources.

We now examine the evidence led by the respondent that with the consent of appellant he had to take a credit facility from his bankers to finance the re-graveling of the road. At paragraph 7 of his Witness Statement, respondent testified that he secured a credit facility in the total sum of GHC 900,000.00. From the evidence he first took GHC 470,000.00 from Freedom Micro Finance Company Ltd. What this means is that the balance of the GHC 900,000.00, which is GHC530, 000.00 was borrowed from the Stanbic Bank, Tarkwa. The trial Court and the Court of Appeal rightly rejected the claim that respondent took GHC 470,000.00 from the Freedom Micro Finance Company Ltd and we do endorse same as we are satisfied that no evidence was led to prove that claim.

With regard to the credit facility from the Stanbic Bank, the respondent tendered exhibit B series, to support his claim that he took a total of GHC 500,000.00 as a loan from Stanbic Bank to execute the road project. The exhibits showed that the loans were taken in July 2015, September 2015 and October 2015, while according to the pleadings and evidence of respondent, the agreement to rehabilitate the road was done in January 2015.

There is no evidence to show that the said loans, if they were granted at all were used to fund the road project. The respondent’s claim was that he borrowed in total an amount of GHC 900,000.00 to fund the project. If we add the GHC 470,000.00 he allegedly took from the Freedom Micro Finance Company and the GHC 500,000.00 he took from Stanbic Bank, the total is GHC 970,000.00 and not GHC 900,000.00. By this alone, respondent’s claim in his pleadings and evidence that he took a total facility of GHC 900,000.00 from his Bankers could not be true by his own evidence.

We also observed that the respondent was claiming interest of 35% on the sum of GHC 900,000.00 as endorsed on his writ of summons. The evidence however, revealed that it was the facility that he took from the Stanbic Bank as evidenced by exhibit B series that attracted the interest of 35%. As the record of appeal further revealed, the GHC 470,000.00 respondent allegedly took from the Micro Finance Company, which was rightly rejected by the trial court, was not even documented and as such no one could have determined the interest rate charged by that company. So from the evidence it was wrong even for the respondent to have lumped the two facilities together and claimed an interest of 35%. The claim was wrong and a misrepresentation.

On the loan facilities, respondent asserted that he took the loans with the consent of the appellant. We note from the record that no evidence was led by respondent to establish this claim and same will be dismissed. The respondent just mounted the witness box and repeated his pleading that he informed the appellant that he will need a loan facility, to enable him execute the road project. No evidence was led by the respondent as to who in appellant’s company, gave the consent and when this took place. The respondent, once again failed the evidential test.

It is trite that an appellate court ought not disturb the findings of fact made by a trial court and in this case concurred by the intermediate appellate court, but there is a caveat, indeed the law is that an appellate court has the authority to disturb and set aside such findings made by a trial court where the findings of fact are wholly not supported by the evidence on record. In this appeal evidence from the record of appeal showed clearly that the respondent failed to adduce credible evidence to prove his claim before the court.

This Court being the second appellate court is therefore entitled to depart from the findings of fact made by the trial court and concurred by the intermediate appellate court.

See: Achoro v. Akanfela (1996-1997) SGCLR 209

Gregory v. Tando IV and Hanson (2010) SCGLR 971.

 In Re Okine (decd.): Dodoo v. Okine (2003-2004) SCGLR 582.

From the record of appeal we are satisfied that the claims alleged by respondent were capable of positive proof. As demonstrated in this judgment, the respondent could have led positive evidence to prove that he was contracted by appellant to execute the road rehabilitation and also the fact that he took a facility of GHC 900,000.00 from his bankers to finance the project. Having failed to positively prove the claims alleged by him, the respondent ought to have lost the contest.

In Ackah v.Pergah Transport Ltd & Others (2010) SCGLR 728, this Court speaking through Sophia Adinyira,JSC held at page 736 as follows:-

‘’ It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence…’’

 From evidence on record, we are satisfied that the Court of Appeal was wrong in affirming the judgment of the trial High Court. The judgment of the Court of Appeal was therefore against the weight of evidence adduced at the trial and on that ground alone the appeal ought to be allowed. We accordingly allow the appeal and set aside the judgment entered by the Court of Appeal to the respondent. The appeal succeeds accordingly.

 

SGD.             S. K. MARFUL-SAU

(JUSTICE OF THE SUPREME COURT)

 

SGD.              P. BAFFOE-BONNIE

(JUSTICE OF THE SUPREME COURT)

      

SGD.               N. S. GBADEGBE

(JUSTICE OF THE SUPREME COURT)

                                                                     SGD.                A.M. A. DORDZIE

(JUSTICE OF THE SUPREME COURT)

 

                                                                       SGD.                 N. A. AMEGATCHER

(JUSTICE OF THE SUPREME COURT)

COUNSEL

DAAD AKWESI (MRS) FOR THE DEFENDANT/APPELLANT/APPELLANT.

JOHN MERCER FOR THE PLAINTIFFS/RESPONDENTS/RESPONDENTS.

 

 
 

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