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JUDGMENT
ESSILFIE-BONDZIE, JA:
The
Plaintiff/Respondent is the administrator of the estate
of his late mother Esther Akuorkor Quaye owner of House
No. B737/7 Abossey Okai Accra. The defendant runs a
nightclub known as “SUNKWA NIGHT CLUB in the said House
No. B 737/7. The Plaintiff/Respondent (who will
hereinafter be simply referred to as the plaintiff) is
one of the sons of Esther Akuorkor Quaye (deceased).
The Plaintiff’s case was that the Defendant/Appellant
rented a room in the said house No. B737/7 and
subsequently took a lease of a vacant space in front of
the building at a monthly rent of £5.
There arose a
controversy between the parties as to how the
Defendant/Appellant (who will hereafter be called the
Defendant) came to occupy the premises and what interest
if any he had in the property. The Plaintiff therefore
issued a Writ asking for the following reliefs:
(a) An Order that
H/No. B737/7 Kaneshie was redeemed on the 31st March
1975.
(b) Payment of Mesne
profits
(c) Ejectment of
Defendant from the said house.
The Defendant also
counter-claimed for the following reliefs:
(a) An Order of the
Court that the Plaintiff should execute a deed of
conveyance in affirmation of the afore-mentioned
agreement of 1968.
(b) An account of the
amount of compensation received from the Ghana Highways
Authority by the Plaintiff in trust for the Defendant.
(c) Interest of 10
percent on the amount found due to the defendant from
the date of receive of the compensation by the Plaintiff
to date of judgment or payment thereof to the Defendant.
The Defendant lost the
suit and being aggrieved and dissatisfied he has
appealed to this High Court dated 7th July 1989 on two
grounds namely:
(a) The Honourable
High Court Judge erred in law.
(b) The judgment was
against the weight of the evidence.
It is evident from the
record of proceedings that the Plaintiff sued per his
Lawful Attorney one Francis Sogah a younger brother of
Plaintiff. In arguing ground (b) of the two grounds
learned counsel for the Defendant submitted that the
trial judge ignored or played down every material
evidence in favour of the Defendant. He said that
everything the trial judge relied on to give judgment
against the Defendant was as confessed by the Lawful
Attorney what was passed on to him. For example the
trial judge ignored an important confession made by
Francis Sogah, the lawful attorney which should have
rendered the evidence in favour of the Plaintiff
unreliable. The confession learned counsel referred were
the answers the lawful attorney gave under
cross-examination. Some are:
Q. “All you know were
passed on to you.
A. That is so. My
brother till
Q. It is not to your
personal knowledge
A. My brother told me
I did not see it.”
He said that in the
light of the above cross-examination and other hearsay
evidence given by the Plaintiff’s attorney, learned
counsel concluded that everything the trial judge relied
on to give judgment against the Defendant was as
confessed by the Lawful Attorney what was passed on to
the Plaintiff and witnesses.
In his reaction to the
submission of counsel for the Defendant counsel for the
plaintiff recounted that the Plaintiff was represented
by an Attorney in the matter. This was because the
Plaintiff had a stroke so his speech was seriously
impaired. He submitted that much of the case of the
Defendant is based on the Supposition that the Attorney
was not present when certain acts and matters took place
and so the court should ignore the evidence completely.
This is why counsel for the Defendant had referred to as
“CONFESSIONS.” Learned counsel argued that instead of
asking the Court to ignore the attorneys evidence, the
Defendant should have adduced evidence to rebut the
evidence on oath of the Attorney which in law amounted
to statement on oath by the Plaintiff himself. Counsel
for the Plaintiff contended that the learned trial judge
accepted the evidence on oath of the Attorney which was
never shaken under cross-examination and which appeared
to be the most probable of the conflicting, versions of
the events transpired between Defendant and Plaintiff.
In paragraph 3, 4 and
5th of the statement of claim the Plaintiff pleaded as
follows:
“ 3 That in or about
1968 Plaintiff agreed with the Defendant that in
consideration for repayment of a mortgage loan of about
¢2,610.00 to the Ghana Commercial Bank and the expenses
incurred in developing an area on the properly to the
tune of ¢4,010 including interest Defendant held the
aforementioned property as security for a period of 6
years 11 months.
(4) That the sums
mentioned supra are to be redeemed by defendant by
collecting a monthly rent of ¢90.00 beginning 1st March
1968 to the 31st March 1975 when the security shall be
redeemed and Defendant to hand over the property to the
Plaintiff
(5) That Plaintiff says
that the legal date of transfer of the property from
Defendant to Plaintiff has passed but Defendant has
refused and or failed to vacate the premises”.
In his evidence the
Defendant gave quite a contrary account of the
transaction that took place between him and the
Plaintiff. He testified that sometime in 1968 in
consideration of £500.00, the Plaintiff granted licence
to him to construct a block building on part of the land
on which house No. 737/3 Abossey Okai stands for use as
building premises, on condition that the defendant would
leave the building to the plaintiff when the defendant
finally decided to go to his home-town. He said after
he had constructed 3-room building on the said part of
the land, the whole property was attached towards the
execution of a fife in satisfaction of a Bank mortgage
loan. According to him as a result of this revelation,
he immediately demanded from the plaintiff the refund of
the £500 and cost of the construction of 3-room
building.
The defendant’s
evidence was that the plaintiff then entered into a
fresh agreement with him the terms of which are that the
defendant should negotiate with the Bank and pay off the
loan with interest, that the defendant, should take
possession of the plaintiff’s house No. 737/3 Abossey
Okai on the land to manage and help the repayment of the
loan. He said after the repayment of the loan the
plaintiff failed to execute a conveyance or deed to
evidence defendant’s title to the land whereof the
plaintiff originally granted licence to him. In other
words the plaintiff failed to execute a conveyance in
his favour to turn the said licence of 1968 into
absolute sale of the said part of the land. Dr. Sogah, a
brother of the Plaintiff gave evidence substantially the
same as that of the Plaintiff. He testified that when
they were confronted with the attachment of the house to
pay a Bank mortgage loan they decided to get some one to
pay off the loan and then take the house and use the
rent to defray or offset the payment. He said at that
juncture the defendant came forward and said he could
help them to pay the loan so that they could use the
monthly rents he was to pay them to offset the payment.
The plaintiff subsequently found a lawyer who drew out
an agreement. They signed their portion and gave a copy
to the defendant to study. That up to date the
defendant has not signed the agreement. Dr. Sogah went
on to say that the contents of the agreement was however
read and explained to the defendant as he said he was
illiterate and could not read. The amount of the loan
was £3,713 and the defendant agreed to pay rent of £45
per month. After he had agreed to this, according to the
witness, they sealed the agreement with schnapps. This
was in 1968. the agreement was tendered in evidence and
marked as Exhibit A.
The evidence was clear
that all the tenants in the building were ejected and
the whole premises given to the defendant. The
defendant himself said the plaintiff handed over the
main building to him to manage so that he collected the
rent and use it to pay the Bank loan. The defendant
testified that he used the building to run his business
and got money to pay the loan. When cross-examined as
to how much he was paying to the bank he replied that he
could not tell off hand as it happened a long time ago.
He also said as follows under cross-examination.
Q. “ (i) some time
you paid ¢30,000 per month to the bank.
A. I cannot
remember. I paid the whole debt. That is what I know.
Under further
cross-examination the defendant gave the following
answers:
Q. If you calculate
from 1967 by 1975 they would have settled this amount
owed you.
A. There was no
agreement. They said I should pay off the loan owed so
that they would convey the land on which I had my
building to me.”
Under further
cross-examination the defendant said:
“Q. They never agreed
to give you a plot of land, for the land itself is only
one plot
A. They did promise
where I use.”
Undoubtedly the
evidence presented before the trial judge revealed that
there were two conflicting claims and her duty as she
saw it was to determine which of the two rival claims
was the truth. She eventually opted for the plaintiffs.
In her judgment the
trial judge gave the following reasons to justify her
preference to the plaintiff’s case. She said “………. Why
I think defendant cannot be speaking the truth. He
plainly confesses under cross-examination that he does
not know the size of the land in dispute i.e. the land
he claims the plaintiff promised to convey to him. If he
did not know, how was he in a position to assess the
value and more particularly to know whether or not the
plaintiffs were not demanding too much by asking him to
settle the debt, the outstanding and future rates on the
premises.”
Another reason why
learned judge preferred the plaintiff’s case was that
“In any case why was the defendant not paying rents to
the plaintiff.” If the arrangement was to pay off the
debt and the land transferred to him? We do clearly see
from these circumstances that he occupied the premises
on the understanding that the rents payable to the
plaintiffs was to be used to defray the debt he had
settled on their behalf. This can be the only logical
explanation for the ejectment of the original tenants
particularly his occupation of the whole premises and
the non-payment of rents whatsoever to the owners of the
property.
A reading of the
record, shows that there are inconsistencies in the
defendant’s pleadings and the evidence adduced. On one
hand the defendant is claiming that there was a verbal
promise for an outright sale of the frontage of the
house to him, on the other hand he claims he was given
the assurance that he would be permitted to have the
place until he leaves same when he decided to go home
for good. He claimed that the consideration for this
was £500 he paid to plaintiff; no receipt was tendered
to support this.
I am satisfied that the
learned trial Judge made a critical analysis of the
evidence in the light of the conflicting or rival claims
before her. I hold that the decision the learned judge
arrived at is correct and supported by the evidence. It
should not be disturbed without clear proof that it is
wrong and I fail to find proof, in the record that it is
wrong. For these reasons the appeal is dismissed.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
S.T. FARKYE, JA:
I agree.
P. K. OWUSU-ANSAH, JA:
I also agree.
COUNSEL
*vdm*
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