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Property – Land – Contract -
Agreement – Lease - Failure to
observe covenants of - Rightful
owners of the respective shops –
Potential tenants - Recovery of
possession. – Failure to comply
with the rules - Implied trust -
constructive trust - Whether or
not any purported tenancy
[agreement] executed between the
occupiers and the defendant or
its predecessor is null and void
- Whether or not the Court of
Appeal erred in law when they
set aside the tenancy agreement
duly executed between the
appellant and the respondents -
Whether or not the judgment is
against the weight of evidence
on record.
HEADNOTES
A group of traders and artisans
plying their trade from kiosks
they had erected on land
belonging to a School, St
Joseph’s Catholic Junior High
School, approached the school
and church authorities to
regularize their stay. Following
consultations between Kumasi
Metropolitan Authority and the
school, the traders were granted
permission to remain on said
property on certain conditions
which was fulfilled. The group
began construction of shops with
the funds so levied. Lands
Commission, Kumasi, stepped in
after the chief of the area,
petitioned them that the land
was Stool land and on
consultation they group was
granted permission to continue
with their development. Later,
information filtered through
that the members of the
delegation had clandestinely
formed a company and that it was
in the name of this company that
the Lease had been taken from
the Lands Commission. The
artisans and shopkeepers were
outraged and organized
themselves as the ‘‘Artisans and
Storekeepers Association of
Anomangye Nkwanta and protested
this development. A series of
actions, both legal and
political ensued. Frustrated at
the inability to take on the
leaders by civil suit, some
members of the Association
reported the matter to the
police and a prosecution was
mounted. It was in the course
of this prosecution that the
court, realising the true nature
of the dispute underlying the
criminal complaint, adjourned
for a settlement to take place.
The settlement did not end the
dispute, the
defendant-appellants, under the
rubric of Gabat Co Ltd/Asomdwee
House Ltd, sought to enforce the
agreement by terminating the
“lease’ of some of the
“outsiders” for failure to
observe covenants of the
agreement, , including
non-payment of rent. Three of
those persons initiated action
in the High Court for themselves
as “shop owners at Anomanye
Stores Complex. The High Court
found for the plaintiffs, and
also dismissed the defendants’
counterclaim, on. The defendants
appealed to the Court of Appeal,
but the appeal was dismissed.
The defendants then filed the
instant appeal to this
honourable court.
HELD
We hereby make the following
orders: the head lease between
Lands Commission and Gabbat
(Gabat) Co Ltd shall be formally
assigned to the
defendant-appellant herein; that
the tenancy agreements that were
executed with the
plaintiff-respondents, who are
beneficial owners of the
property, be cancelled. The
plaintiff-respondents are
entitled to be treated in the
same manner as those whose
membership of Asomdwee House Ltd
has already been recognized.
Further, that the
defendant-appellants, Asomdwee
House Ltd, should rectify the
Register of Members as provided
by section 33(2) of the
Companies Act, 2019 (Act 992),
to include the
plaintiff-appellants herein, as
Members. These orders
notwithstanding, the building
and its appurtenances must be
maintained. Therefore,
arrangements for payment of
utilities, common services and
insurance premiums that apply to
the other “owners” should be
made applicable to the
plaintiff-respondents, because
those are legitimate costs. The
Court further directs that the
company should be re-organised,
and be enabled to conduct its
business in accordance with the
provisions of Act 992.
STATUTES REFERRED TO IN JUDGMENT
Court of Appeal Rules, 1997, (CI
19)
Supreme Court Rules, 1996 (C.I.
16), as amended.
Companies Act, 2019, (Act 992).
Evidence Act 1975, (NRCD 323).
CASES REFERRED TO IN JUDGMENT
Akufo-Addo v Catheline [1992] 1
GLR 377
In re Bonney (Decd) Bonney v.
Bonney [1993-94] 1 GLR 610:
Tuakwa v Bosom [2001-2002] SCGLR
61
Asamoah & Another v. Offei
[2018-2019] 1 GLR 655.
Owusu-Domena v Amoah [2016]1
SCGLR 790
Republic v Judicial Committee
of the Asogli Traditional
Council Ex-parte Avevor (Azameti
& Ors. Interested parties)
[2018-2019]1 GLR 698
Attorney-General v. Faroe
Atlantic [2005-2006] SCGLR 277
Atuguba and Associates v Holam
Fenwick Willian LLP [2018 -2019]
1 GLR 1
Ama Serwaa v. Gariba Hashimu
and Another; Suit No.
J4/31/2020; delivered on 14th
April 2021
Sandema-Nab v Asangalisa
[1996-1997] SCGLR 302
Republic v Central Regional
House of Chiefs Judicial
Committee: Ex Parte: Aaba
(2001-2002) 1 GLR 221
Achoro v Akanfela [1996-97]
SCGLR 209;
Koglex Ltd (No 2) v. Field
[2000] SCGLR 175;
Obeng v. Assemblies of God
Church, Ghana [2010] SCGLR 300;
Gregory v. Tandoh IV and Hanson
[2010] SCGLR 971
Soonboon Seo v Gateway Worship
Centre [2009] SCGLR 278,
Saaka v Dahali [1984-86] 2 GLR
774
Westdeutsche Landesbank
Girozentrale v Islington LBC
[1996] AC 669
Westdeutsche Landesbank
Girozentrale v Islington LBC
[1996] AC 669
Finance Plc v Thakerar & Co.
[1999] 1 All E. R. 400
Cooper v Phibbs (1867) L.R. 2
H.L 49
Amoako Blankson v Nana Bonsu ;
Suit No H1/8/2016, delivered on
10th May, 2016
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of England (3rd
ed) vol 14 para 1155, in
Equity and Trusts, by Michael
Haley and Lara McMurtry Sweet
and Maxwell, London, 2017
The Law of Contract in Ghana by
Christine Dowuona-Hammond
DELIVERING THE LEADING JUDGMENT
PROF. MENSA-BONSU (MRS.) JSC:-
COUNSEL
OSEI-WUSU ANTWI FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS.
HANSON KWADWO KODUAH FOR THE
DEFENDANT/APPELLANT/APPELLANT.
JUDGMENT
______________________________________________________________________
PROF. MENSA-BONSU (MRS.) JSC:-
This is an appeal arising out of
a case that has produced a
multiplicity of suits. It arose
out of a desire by a group of
traders to regularize their stay
on land and to formalize the
acquisition of same, to create
permanent structures for
themselves.
BACKGROUND AND FACTS
Sometime in 1998, a group of
traders and artisans plying
their trade from kiosks they had
erected on land belonging to a
School, St Joseph’s Catholic
Junior High School, approached
the school and church
authorities to regularize their
stay. Following consultations
between Kumasi Metropolitan
Authority and the school, the
traders were granted permission
to remain on condition that they
would build a bungalow to house
the Headmaster; improve the
School’s playing field; and
build a Fence wall for the
school. The group agreed, and
proceeded to satisfy the
conditions. In order to build
their shops, they decided to
levy themselves fixed sums of
money to raise the needed funds.
Those already in occupation or
“occupiers” paid Ghc700, and
“outsiders” ie those not already
trading on the premises who came
in to join upon invitation, were
levied a slightly higher sum of
Ghc 900. Later the contributions
were increased to Ghc900 and Ghc
1,200 for the occupiers and
“outsiders” respectively. In
1999, the group began
construction of shops with the
funds so levied. Lands
Commission, Kumasi, stepped in
after the chief of the area,
petitioned them that the land
was Stool land; and that some
unauthorised development was
taking place on it. Lands
Commission stopped the
development and consequently the
group put together a delegation
of four persons to resolve the
issue with Lands Commission on
behalf of the group. The members
of the delegation were three of
their number, Daniel Kwame
Bonsu; Takyi Brefo; Akwasi
Amanfo; and the fourth was the
Assembly-member of the area,
George Owusu-Afriyie, The
delegation was successful and
the Encroachment Committee of
the Lands Commission, Kumasi
gave permission for the
development to continue, subject
to the payment of a penalty
imposed upon them for initiating
the development without
permission. The conditions were
duly fulfilled, and construction
resumed.
Later, information filtered
through that the members of the
delegation had clandestinely
formed a company called ‘Gabbat
Co Ltd.’ (also spelt ‘Gabat Co
Ltd’) (a name coined from an
initial each, of the names of
the members of the delegation);
and that it was in the name of
this company that the Lease had
been taken from the Lands
Commission. The artisans and
shopkeepers were outraged and
organized themselves as the ‘
‘Artisans and Storekeepers
Association of Anomangye
Nkwanta’ (also spelt
‘Anomanye’), and protested this
development. A series of
actions, both legal and
political ensued. Frustrated at
the inability to take on the
leaders by civil suit, some
members of the Association
reported the matter to the
police in April, 2001, and a
prosecution was mounted on 26th
July, 2001. It was in the
course of this prosecution, Suit
No C.C 572/01, that the court,
realising the true nature of the
dispute underlying the criminal
complaint, adjourned for a
settlement to take place. The
Settlement Report, produced in
2008, was as follows:
“SETTLEMENT COMMITTEE REPORT AS
AT 22/08/08 ON THE ISSUES AGREED
BY THE PARTIES AT OUR SITTINGS
TO RESOLVE THE IMPASS [sic]
BETWEEN THEM ON THE OWNERSHIP OF
THE ANOMANYE NKWANTA STORES
WHICH IS BEFORE THE COURT”
A. We, the parties here in the
case, have agreed that GABBAT CO
LTD which holds the lease on the
property in this case be set
aside and a new company formed
to take over the ownership of
the ASSETS AND LIABILITIES of
the Anomanye Nkwanta Stores
Building Project, which is in
the custody of the above
company.
B. That a new replacing
organization will be a limited
liability company formed by the
parties here in this case.); and
that
“C. The parties will hold shares
in the new company and Directors
will be picked from all sides.
D. That the name of the new
replacing company will be
decided by the parties here in
the case.
E. That all documents on the
building which is in the custody
of Gabbat Co Ltd will be legally
transferred to the new company…”
The settlement did not end the
dispute, however.
While all these protest actions
were going on, the
defendant-appellants, using the
vehicle of Gabbat Co Ltd,
continued to exercise acts of
ownership over the premises,
such as entering into ‘tenancy
agreements’ in late 2001 and
2002, as ‘landlords’ with some
of the contributors to the
project as well as new people to
whom the stores had been rented
out. Those “tenants”, who were
among those who had contributed
money to the project, but had
been excluded from membership of
the new Company, resisted
payment of rent, contending that
they owned their shops.
In the meantime, and as part of
the settlement, a new company
limited by shares was to be
formed to include those who had
contributed to the project.
However, the manner of
implementation of the terms left
some, mainly those described as
“outsiders”, out of the
membership of the company. The
defendant-company herein,
Asomdwee House Ltd, was
supposed to be the new company
to take over the assets and
liabilities of the GABBAT
company as per the Settlement.
The “original occupants” appear
to have been satisfied with the
new arrangement, for the
secretary to the ‘Artisans and
Storekeepers Association of
Anomangye Nkwanta’ and the
company limited by Guarantee,
‘Anomangye Nkwanta Store owners
Association’ became secretary to
the defendant-appellant company
and was, in fact, its only
witness for the
defendant-appellant in the trial
court.
In 2008, the
defendant-appellants, under the
rubric of Gabat Co Ltd/Asomdwee
House Ltd, sought to enforce the
agreement by terminating the
“lease’ of some of the
“outsiders” for failure to
observe covenants of the
agreement, including non-payment
of rent. Three of those persons
initiated action in the High
Court for themselves as “shop
owners at Anomanye Stores
Complex … and on behalf of 29
Other shop owners whose names
are on the Schedule attached”
to the writ. Per the writ and
statement of claim, the
plaintiffs, claimed a number of
reliefs including a declaration
that they were :
“(a) …the rightful owners of the
respective shops they occupy
(b) Declaration that any
purported tenancy [agreement]
executed between the occupiers
and the defendant or its
predecessor is null and void
(c) Damages;
(d); other just relief
(e) perpetual injunction.”
The defendants also
counterclaimed for reliefs,
including declaration of title;
declaration that the plaintiffs
“are potential tenants”; and
recovery of possession. The High
Court found for the plaintiffs,
and also dismissed the
defendants’ counterclaim, on 24th
June, 2016. The defendants
appealed to the Court of Appeal,
but on 30th July,
2019, the appeal was dismissed.
The defendants then filed the
instant appeal to this
honourable court.
GROUNDS
OF APPEAL
The defendant-appellants, filed
two substantive grounds of
appeal and the omnibus ground.
The substantive grounds were:
i. Their Lordships of
the Court of Appeal erred in law
when they set aside the tenancy
agreement duly executed between
the appellant and the
respondents when the said
agreement was voluntarily and
freely executed by the parties.
ii. Their Lordships of
the Court of Appeal erred in
law when their Lordships failed
to decree ownership of the
disputed property in the
Appellant despite leasehold
agreement duly executed between
Lands Commission, Kumasi,
establishing exclusive ownership
thereof in the Appellant.”
iii.
The judgment is against the
weight of evidence on record.”
For reasons that should be
obvious, ground (iii) of
the appeal would be taken first,
for by this ground of appeal,
the defendants invite this
honourable Court to review the
entire evidence since an appeal
is by way of re-hearing, as a
long line of cases show. See
Akufo-Addo v Catheline
[1992] 1 GLR 377, per Kpegah JSC
at p. 391; In re Bonney
(Decd) Bonney v. Bonney
[1993-94] 1 GLR 610 per Aikins
JSC at p. 617: Tuakwa v
Bosom [2001-2002] SCGLR
61 per Akuffo JSC (as she then
was) at p.65; and Asamoah &
Another v. Offei
[2018-2019] 1 GLR 655. In
Tuakwa v Bosom
[2001-2002] SCGLR 61, at p.65,
the law was re-stated in the
oft-quoted words of Sophia
Akuffo JSC (as she then was),
thus:
“an appeal is by way of a
re-hearing particularly where
the appellant, that is the
plaintiff in the trial in the
instant case, alleges in his
notice of appeal that, the
decision of the trial court is
against the weight of evidence.
In such a case, although it is
not the function of the
appellate court to evaluate the
veracity or otherwise of any
witness, it is incumbent upon an
appellate court, in a civil
case, to analyse the entire
record of appeal, take into
account the testimonies and all
the documentary evidence adduced
at the trial before it arrives
at its decision, so as to
satisfy itself that on a
preponderance of the
probabilities the conclusions of
the trial judge are reasonably
or amply supported by the
evidence”.
More recently in Asamoah &
Another v. Offei
[2018-2019] 1 GLR 655, the
defendants’ omnibus ground of
appeal that the judgment of the
Court of Appeal was against the
weight of evidence adduced at
the trial, opened the way for
the Supreme Court to exercise
its power of re-hearing the
case. Speaking for the Court,
Appau, JSC stated the law at
p.660 thus:
The authorities are legion that
an appeal is by way of
rehearing, particularly where
the appellant alleges in his
notice of appeal that the
decision of the trial court was
against the weight of evidence.
In such a case, it is the duty
of the appellate court to
analyse the entire record of
appeal, take into account the
testimonies and all documentary
evidence adduced at the trial
before arriving at its decision,
so as to satisfy itself that, on
a preponderance of the
probabilities, the conclusions
of the trial judge are
reasonably or amply supported by
the evidence on record. And it
is immaterial whether the appeal
is a second one from the Court
of Appeal to the Supreme Court.
This court is thus well-placed
to review the entire record of
proceedings.
Before examining the substantive
grounds of appeal, it would be
well to deal with a matter that
counsel raised, which could go
to the very root of the action
by plaintiffs in the instant
case. In paragraph 8 of the
‘summary of written submission’,
and also at the tail end of the
very lengthy submissions of
counsel for appellant, counsel
submitted that this court should
declare the writ of summons and
statement of claim null and
void, because, according to him,
“it is also clear that the
Respondents writ of summons and
statement of claim were not
issued by a lawyer properly so
called via Act 32 but were
issued by Minkah-Premoh & Co
which was not a lawyer but an
artificial entity. I humbly
submit that the said writ and
statement of claim appearing at
pages 1 to 4 of the record of
proceedings be declared null and
void.”
Nothing more was said or argued
by Counsel in respect of this
invitation to this honourable
court to do this grave act of
declaring respondents writ of
summons and statement of claim
“null and void”. Although
nothing more was said in the
body of the submissions, it
found its way into the
conclusions as well, showing
that defendant-appellants
regarded it as a serious matter.
It must therefore receive
attention from this honourable
court.
This point was a completely new
legal ground, not set down in
the grounds of appeal. What is
the consequence of proceeding in
this manner and making a
submission on a completely new
point of law in an appeal? This
question boils down to what may
be the subject of submissions
when a ground of appeal is that
“the judgment is against the
weight of evidence on record”.
In a long line of cases, the
question of whether or not
pleading the omnibus ground
allows for only facts or law to
be argued, has been answered. In
Owusu-Domena v Amoah
[2016]1 SCGLR 790, the Supreme
Court held per Benin JSC “Where
the omnibus ground is pleaded,
both factual and legal arguments
could be made”. In the same
vein, the Supreme Court in
Republic v Judicial
Committee of the Asogli
Traditional Council Ex-parte
Avevor (Azameti & Ors.
Interested parties)
[2018-2019]1 GLR 698, the
Supreme Court, relying on
Attorney-General v. Faroe
Atlantic [2005-2006] SCGLR
277 and Owusu-Domena
(supra), held that both factual
and legal arguments could be
made. In Faroe Atlantic
(supra), the Supreme Court held
per Georgina Wood JSC (as she
then was) at p.308 that, “The
general ground of appeal is
therefore not limited
exclusively to issues of fact.
Legal issues are within its
purview”.
In all the cases cited, however,
the omnibus ground had been
pleaded as the sole ground of
appeal. What about when there
are other grounds, and it is
merely tagged onto the list to
“make assurance doubly sure”?
Should the applicable principle
be the same? In the recent case
of Atuguba and Associates
v Holam Fenwick Willian
LLP [2018 -2019] 1 GLR 1,
the Supreme Court seized on the
opportunity to clarify the
issue. In that case, the facts
were that the
plaintiff/respondent/appellant
(herein referred to as
‘appellant’ to avoid confusion)
was a law firm based in Ghana,
while the 2nd
defendant/appellant/respondent
(herein also referred to as
‘respondent’), was a Limited
Liability Partnership registered
in the United Kingdom, also
offering legal services. The 1st
defendant was also based in, and
ran its business in, the United
Kingdom. Sometime in 2014, the
respondent sought to engage the
services of appellant to act for
1st defendant in civil suits
brought against it in the courts
of Ghana. After the exchange of
a number of emails it was agreed
that the appellant would offer
legal services to the 1st
defendant at agreed hourly
rates. Subsequently, a dispute
arose between appellant and 1st
defendant regarding the invoices
for payment of legal fees. The
appellant commenced a suit
against 1st defendant
and respondent for the cost of
legal services rendered,
interest, general damages for
breach of contract and costs.
The respondent invited the trial
court to exercise its discretion
to strike the respondent out of
the suit as a party. The trial
court refused this invitation,
maintaining that the respondent
was a necessary party. The
respondent appealed to Court of
Appeal which allowed the
application, and ordered the
respondent to be struck out of
the suit. The appellant
therefore brought this
interlocutory appeal against
that decision, and pleaded only
one ground i.e. the omnibus
ground, that the decision was
against the weight of evidence.
In support of the sole ground of
appeal, the appellant therein
filed a statement of case
arguing certain points of law.
In doing this, however, the
Appellant had not sought leave
to file any additional grounds.
On the point of whether law and
facts could be pleaded under the
omnibus ground, the Supreme
Court distinguished between the
cases in which omnibus ground
was an only ground, from those
in which the omnibus ground was
only one of a number of grounds
of appeal. At p.10, Amegatcher
JSC clarified the position thus:
“Based on the exception given by
the court in the Owusu-Domena v
Amoah case [supra] the current
position of the law may be
stated that where the only
ground of appeal filed is that
the judgment is against the
weight of evidence, parties
would not be permitted to argue
legal issues if the factual
issues do not admit of any.
However, if the weight of
evidence is substantially
influenced by points of law,
such as the rules of evidence
and practice or the discharge of
the burden of persuasion or of
producing evidence, the points
of law may be advanced to help
facilitate a determination of
the factual matters. The
formulation of this exception is
not an invitation for parties to
smuggle points of law into their
factual arguments under the
omnibus ground. The court
would, in all cases, scrutinize
such points so argued within the
narrow window provided”.
Is the instant case a proper
occasion for the application of
the Owusu-Domena v
Amoah (supra) exception? It
is not, for there does not seem
to be good reason to do so.
In the recent case of Ama
Serwaa v. Gariba
Hashimu and Another; Suit
No. J4/31/2020; delivered on
14th April 2021; the Supreme
Court held that a failure to
seek leave to argue points of
law not pleaded on the grounds
of appeal contravened Rule 8(7)
of The Court of Appeal Rules,
1997, (CI 19) as amended; and
mutatis mutandis, Rule 6(7) of
the Supreme Court Rules, 1996
(C.I. 16), as amended. In the
instant case, the
defendant-appellants should have
asked for Leave before arguing
this new point of law in their
statement of case. In
Sandema-Nab v Asangalisa
[1996-1997] SCGLR 302, the
Supreme Court, per Acquah JSC
(as he then was), stated at
p.307
“Now it must be appreciated that
an appeal is a creature of
statute and therefore no one has
an inherent right to it. ...
[w]here a right of appeal is
conferred as of right or with
special leave, the right is to
be exercised within the four
corners of the statute and the
relevant procedural regulations,
as the court will not have
jurisdiction to grant deviations
outside the parameters of the
statute”.
Since an appeal must be
prosecuted within the “four
corners of the statute” set
down to govern appeals under CI
16 , The defendant-appellants
failed to comply with the rules,
and cannot now argue new grounds
without leave to amend the
grounds of appeal. The
importance of compliance with
the rules governing appeals was
made forcefully in The
Republic v Central
Regional House of Chiefs
Judicial Committee: Ex Parte:
Aaba (2001-2002) 1 GLR 221
by the Supreme Court, speaking
through Adzoe JSC, at pp 229-230
thus;
“The rules of the Supreme
Court (and all other Courts) are
there to be observed. They form
an important component in the
machinery of the administration
of justice and the courts must
not, as a general rule, take
lightly any non-compliance with
them, even though technicalities
are not to be permitted to
undermine the need to do
justice. The Supreme Court
Rules, C.I. 16, set out the
appeal procedure. Rule 6 deals
with notices of Appeal in a case
of this kind. It provides: —
“6(2) A notice of civil appeal
shall set forth the grounds of
appeal and shall state……
(b) whether the whole or
part of the decision of the
court below is complained of and
in the latter case the part
complained of;…
6(5) No ground of appeal which
is vague or general in terms or
discloses no reasonable ground
of appeal shall be permitted,
except the general ground that
the judgment is against the
weight of evidence;…
These rules do not permit an
appellant to argue a ground of
appeal that is not set forth in
his notice of appeal. Of
course, there is rule 6(7)(b)
which enjoins the court not to
confine itself to the grounds
set forth by the appellant or be
precluded from resting its
decision on a ground not set
forth by the appellant; but that
rule is subject to rule 6(8)
which provides that ‘Where the
court intends to rest its
decision on a ground not set
forth by the appellant in his
notice of appeal or on any
matter not argued before it, the
court shall afford the parties
reasonable opportunity to be
heard on the ground or matter
without re-opening the whole
appeal’….The rule should not be
taken as granting an Appellant a
general license to abandon his
obligations under the rules.”
From these provisions it is
clear that were the Supreme
Court minded to accept the
invitation of the
defendant-appellants to declare
the writ and statement of claim
“null and void”, it would have
to rest its decision on a point
of law introduced without leave
or notice to the
plaintiff-respondents, and
without giving them an
opportunity to be heard on the
point. The precondition for
arguing such matters not having
been fulfilled, this court must
decline the invitation.
Another issue arising out of
pleading the omnibus ground in
the instant case is that the
defendant-appellants are
inviting this honourable Court
to use the power of re-hearing
as a second appellate court, to
set aside concurrent findings of
the High Court and Court of
Appeal by rehearing of the case.
Fortunately, this invitation to
a second appellate court to
interfere with concurrent
findings of a trial court and
first appellate court is nothing
new, and the principles are well
settled in a long line of cases,
such as, In re Bonney (decd)
Bonney v. Bonney
[1993-94] 1GLR 610; Achoro
v Akanfela [1996-97]
SCGLR 209; Koglex Ltd (No 2)
v. Field [2000] SCGLR
175; Obeng v.
Assemblies of God Church, Ghana
[2010] SCGLR 300; Gregory
v. Tandoh IV and Hanson
[2010] SCGLR 971; In In re
Bonney (decd) Bonney v.
Bonney (supra), Aikins JSC
speaking for the court when
dismissing the appeal stated at
p 617:
“Counsel has argued that an
appeal is by way of rehearing
and therefore the appellate
court is entitled to make its
own mind on the facts adduced
and inferences from them. That
may well be so. But what has to
be borne in mind is that the
appeal court should not under
any circumstances interfere with
the findings of fact by the
trial judge except where they
are clearly shown to be wrong,
or that he did not take all the
circumstances and evidence into
account, or has misapprehended
certain of the evidence, or has
drawn wrong inferences without
any evidence to support them or
he has not taken proper
advantage of his having seen and
heard the witnesses.”
In Koglex Ltd (No.2) v
Field (supra), Acquah JSC
(as he then was) at p.185
re-stated the law and outlined
the circumstances thus-:
“(i) where the said
findings of the trial court are
clearly unsupported by evidence
on record; or where the reasons
in support of the findings are
unsatisfactory.
(ii) Improper application
of a principle of evidence; …
or where the trial court failed
to draw an irresistible
conclusion from the evidence …
(iii) Where the findings
are based on a wrong proposition
of law …
(iv) Where the finding is
inconsistent with crucial
documentary evidence on record.
The very fact that the first
appellate court had confirmed
the judgment of the trial court
does not relieve the second
appellate court of its duty to
satisfy itself that the first
appellate court’s judgment is
like the trial court’s also
justified by the evidence on
record. For an appeal, at
whatever stage, is by way of
re-hearing and every appellate
court has a duty to make its own
independent examination of the
record of proceedings”
In the later case of Obeng
v Assemblies of God Church,
Ghana, (supra), Dotse JSC
at p.323,
“The position can thus be stated
that where findings of fact made
by the trial court are concurred
in by the first appellate court,
the second appellate court must
be slow in coming to different
conclusions unless it is
satisfied that there are strong
pieces of evidence on record
which are manifestly clear that
the findings of the trial court
and the first appellate court
are perverse.”
In Gregory v Tandoh IV
and Hanson (supra) again
Dotse JSC at pp. 986-987,
explained the powers and
responsibilities of a second
appellate court in respect of
concurrent findings thus:
“It is therefore clear that, a
second appellate court, like
this Supreme Court, can and is
entitled to depart from findings
of fact made by the trial court
and concurred in by the first
appellate court under the
following circumstances: First,
where from the record of appeal,
the findings of fact by the
trial court are clearly not
supported by evidence on record
and the reasons in support of
the findings are unsatisfactory;
second, where the findings of
fact by the trial court can be
seen from the record of appeal
to be either perverse or
inconsistent with the totality
of evidence led by the witnesses
and the surrounding
circumstances of the entire
evidence on record of appeal;
third, where the findings of
fact made by the trial court are
consistently inconsistent with
important documentary evidence
on record; fourth, where the 1st
appellate court has wrongly
applied the principle of law…
the second appellate court must
feel free to interfere with the
said findings of fact in order
to ensure that absolute justice
is done in the case.”
From all of these authorities,
it is clear that while a second
appellate court is within its
powers to review concurrent
findings of the trial and
appellate court, it must proceed
with caution and ensure that the
bar set under the numerous
authorities, has been met. Has
the appellant in the instant
case met this bar? No, it has
not done so.
In this closely-argued appeal,
the defendant-appellants have
argued strenuously that the
plaintiff-respondents should not
be allowed to resile from a
tenancy agreement which they had
voluntarily entered into, and
that they should be held to
those terms, whilst the
plaintiff-respondents insist
that by the settlement, they are
not tenants of defendant
company, but ought to be part
owners. The Court of Appeal
closely reviewed the evaluation
of the evidence as conducted by
the High Court, and came to the
conclusion that there was
nothing amiss.
In the instant appeal, the
defendant-appellants are,
indeed, fixated on establishing
the validity of the tenancy
agreement, whilst the
plaintiff-respondents are
equally intent on denying same.
The issue may be resolved, not
by looking only at the agreement
itself, but by examining the
history of the relationship
between the parties.
Any examination of the issues
arising from the decision of the
High Court and Court of Appeal
must begin with how the
settlement, whose terms were
agreed upon by both parties,
came to be. As already recounted
in the ‘Background and Facts’
herein, the answer lies in
events that took place sometime
in 1998, and the bid by a group
of traders and artisans to
formally acquire land on which
they had settled, and to
construct permanent structures
thereon, for their trading
activities. The
plaintiffs-respondents relate
the basis of their claims, from
events that occurred in 1998. On
their part, the
defendant-appellants prefer to
use the lease obtained by Gabbat
Co Ltd. from the Lands
Commission, Kumasi, in
September, 1999; and the tenancy
agreements they executed with
the parties in 2001 and 2002 as
the basis for their claims.
However, the
defendant-appellants concede in
their account that there were
traders on the land prior to
their takeover in September
1999, but maintain that, “Before
the said grant all the traders
were licensees of the Lands
Commission”. Although both
groups admit that the traders
undertook to pay monies towards
the construction of the shops,
the plaintiff-respondents
contend that those were levies
that gave them ownership of
their own shops, and interest in
the rest of the property made up
of 125 shops in total, whilst
the defendant-appellants insist
that the monies paid were for
rent to Gabbat Co Ltd which
owned the shops, and that the
plaintiff-respondents have no
proprietary interest in the
property. These disagreements
resulted in Suit No IRL.10/2011
in the High Court which has
produced this appeal.
The High Court found as a fact
that the settlement agreement of
11th August 2008, which was
adopted and entered as a
judgment of the Circuit Court,
and marked ‘Exh 3’, was the
agreement that would have
resolved the conflict but for
the shortfalls in implementation
of its exact terms. The High
Court recognized that those who
formed Gabbat were supposed to
represent the interests of a
group, and not to take the
benefit for themselves. Again,
they had funded the project from
levies paid by the contributors,
and could not now seek to
exclude them from enjoying what
they paid for. This situation
was thus not one of resulting
trust, but a classic case of
another form of implied trust -
constructive trust. It is a
constructive trust that would
enable the beneficial interest
to be enjoyed by all who
contributed money to bring it
into being, as beneficial
owners, even though the legal
ownership of the lease was in
Gabbat Co Ltd. This position was
in accord with existing
authority. In the Soonboon
Seo v Gateway Worship
Centre [2009] SCGLR 278, a
Korean missionary announced that
he was going to Korea to raise
money for the benefit of a
church based at Ashaiman near
Tema, in the Greater Accra
Region. The money was raised,
and paid into his personal
account. Upon his return to
Ghana, he announced in church
that he had been able to raise
some money, but did not disclose
how much. Subsequently, he
bought land with some of the
money. The church brought action
against him for, inter alia,
declaration of title to the
land. The Supreme Court held,
per Sophia Akuffo JSC (as she
then was) at p. 296 “The
facts clearly support the
creation of a constructive trust
(an implied trust)”. Basing
her decision on Taylor JSC in
Saaka v Dahali
[1984-86] 2 GLR 774 at 784 which
cited Halsbury’s Laws of England
(3rd ed) vol 14 para 1155, a
‘constructive trust’ was defined
as follows:
“A constructive trust arises
when, although there is no
express trust affecting specific
property, equity considers that
the legal owner should be
treated as a trustee for
another. This happens, for
instance, when one who is
already a trustee takes
advantage of his position to
obtain new legal interest in the
property as where a trustee of
leaseholds takes a new lease in
his own name. The rule applies
where a person although not an
express trustee, is in a
fiduciary position …”
She concluded that “Consequently,
in the instant case the
defendant-appellant held the
funds in question on a
constructive trust for the
second plaintiff church”
The learned authors, Michael
Haley and Lara McMurtry in
Equity and Trusts, Sweet and
Maxwell, London, 2017, explain
and expound on the law on
‘Constructive Trusts’. At p.445,
they define the concept of
‘Constructive Trust’, as
follows:
“A constructive trust arises in
order to prevent one party from
resiling from an understanding
as to the beneficial
entitlements in circumstances
where it would be unconscionable
to do so. This will occur
primarily where the estate owner
has by words or conduct induced
the claimant to act to his
detriment in the reasonable
belief that, in so acting, he
will obtain a beneficial
interest in the properties
Again, at p.372 , the learned
authors cite the English case of
Westdeutsche Landesbank
Girozentrale v Islington
LBC [1996] AC 669, in which
Lord Browne-Wilkinson stated the
law on this equitable concept at
p.705 thus:
(i)Equity operates on the
conscience of the owner of the
legal interest. In the case of a
trust, the conscience of the
legal owner requires him to
carry out the purposes for which
property was vested in him
(express or implied trust) or
which the law imposes on him by
reason of his unconscionable
conduct (constructive trust)
(ii) Since the equitable
jurisdiction to enforce trust
depends upon the conscience of
the holder of the legal interest
being effected, he cannot be a
trustee of the property if and
so long as he is ignorant of the
facts alleged to affect his
conscience, ie until he is aware
that he is intended to hold the
property for the benefit of
others in the case of an express
or implied trust or in the case
of constructive trust, of the
factors which are alleged to
affect his conscience.
(iii) In order to establish a
trust there must be identifiable
trust property. The only
apparent exception to this rule
is a constructive trust imposed
on a person who dishonestly
assists in the breach of trust
who may come under fiduciary
duties even if he does not
receive identifiable trust
property.
(iv) Once a trust is
established, as from the date of
its establishment the
beneficiary has in equity a
proprietary interest in the
trust property, which
proprietary interest will be
enforceable in equity against
any subsequent holder of the
property …other than a purchaser
for value of the legal interest
without notice.”
From this statement of law, the
authors opine that two key
ingredients must be established
to show there was a common
intention as to what to do with
the property: 1. The plaintiff
must convince the court that
there was “a common intention
to share the property
beneficially”; and 2. The
claimant must demonstrate that
he changed his position because
of the unexpressed common
intention. The court may,
therefore, look at “conduct
both prior and subsequent to the
acquisition of the property”
Where there is no evidence of an
express discussion having
occurred between the parties,
the court must examine the
conduct of the parties into some
detail “with the prospect of
presuming a common intention to
share beneficial ownership.”
Even more apposite to the
situation in the instant case is
the English case of Paragon
Finance Plc v Thakerar &
Co. [1999] 1 All E. R. 400.
At p. 408 per Millett L. J.
explained that,
“A constructive trustee is
really a trustee. He does not
receive the trust property in
his own right but by a
transaction by which both
parties intend to create a trust
from the outset and which is not
impugned by the plaintiff. His
possession of the property is
coloured from the first by the
trust and confidence by means of
which he obtained it, and his
subsequent appropriation of the
property for his own use is a
breach of that trust.”
In the instant appeal, the
delegation of leaders had been
put together to advance the
interests of all members of the
group in a piece of land. There
would be no doubt as to such
common intention. Indeed, from
the settlement, it was clear
that the basis of membership of
the new company had to be
inclusive of all those who had
made contributions to the
project. Why did this sensible
approach fail to achieve the
desired peace? It did not
because, in the implementation
of the settlement, a distinction
was drawn between those who had
paid the levies, as previous
occupiers of the land, and those
who had equally been invited to
pay the levies but were
described as “outsiders”. With
such categorization, the nature
of their contribution to the
project had been changed from
equity into an interest-free
loan to the company, though
politely named as “advance
payment of rent”. How does one
calculate rent, or take a
tenancy and pay rent, in a
yet-to-be-realised building
project? When the
plaintiff-respondents claimed to
have pre-financed the project,
they were right, and to hold
otherwise would mean that those
who paid the same amounts would
acquire ownership of their
stores only because they were
“licensees of Lands Commission”
(as the defendant-appellants
described them). As
defendant-appellants submitted
at p.37 of their Statement of
Case,
“it is clear that the
respondents are claiming
ownership because they
contributed. But the respondents
are not members of the appellant
company but form part of the
members called outsiders. Their
names did not appear in the
Company’s regulations compared
to the original members whose
names appeared in the
appellants’ regulations.”
The defendant-appellants state
the case for the respondents
well, for it is precisely
because they contributed into a
fund for the acquisition of
property that they must be
part-owners. This discriminatory
treatment of the “outsiders’’ is
unconscionable, for it is the
money that built the premises,
and not the prior license or
whatever stature the “occupiers”
held. Therefore, a determination
that they should be deemed to be
subscribers of the new company
that was to be established, was
well-grounded in Equity. As
Michael Hale and Lara McMurtry
outline in Equity and Trusts,
(supra), at p.332 quoting Lord
Browne-Wilkinson again in
Westdeutsche Landesbank
Girozentrale v Islington
LBC (supra), at p.708
“Equity presumes, however, that
the property belongs to the
person who advances the purchase
money. Where A makes a voluntary
transfer to B or pays (wholly or
in part) for the purchase of
property which is vested in B
alone, there is a presumption
that A did not intend to make a
gift to B: the property is held
in trust for A (if he is the
sole provider of the money) or
in the case of a joint purchase
by A and B of shares
proportionate to their
contribution.”
Why should respondents
contribute money into a project
which has not yet been completed
in order to provide funding in
the nature of interest-free
loans to a company, unless they
have sufficient interest in the
property to risk their money as
investment?
It is clear from the posture of
the defendant-appellants, that
they did not believe the
plaintiff-respondents had any
share in the property, hence
their total exclusion in the
implementation of the
settlement. For instance, a name
for the new and more inclusive
company, ‘Asomdwee House Ltd’’
was decided on, but it is
unclear who was involved in the
decision. Equally unclear, is
whether the new company was
formally registered as ordered;
and whether the assets and
liabilities of Gabbat Co were
legally transferred to it as
agreed under the Settlement.
Certainly no documents showing
the status of Asomdwee House
Ltd., was exhibited on the
record. Again, from the
settlement, Directors were
supposed to be selected from
across the groups, but if this
was ever done, it was to the
exclusion of the
plaintiff-respondents. The
essential point of note here is
that this was how the united
front of the ‘contributors’ was
split, and plaintiff-respondents
came to be excluded. But with
the exclusion, went the chance
for peace and reconciliation.
It became obvious to the High
Court, on the evidence, that the
crux of the problem, was that
Asomdwee House Ltd., though
formed pursuant to the
settlement, did not measure up
to the terms of the settlement
by its failure to comply with
the exact provisions.
Consequently, the High Court
held that,
“After the consent Judgement
has been fully complied with and
all the contributions are
allotted shares in the limited
liability company so formed,
they will be entitled to
dividend to be declared by the
company. Until the consent
judgement is complied with to
the letter, the plaintiffs and
for that matter all the
contributors will have a legal
right to remain on the property
and operate the stores they
occupy.”
This view of the facts was
supported by the Court of
Appeal, and we also affirm our
agreement with the Court of
Appeal.
In support of ground (ii) of the
appeal, the defendant-appellants
submit that they announced that
there were shops available and
that anyone who was interested
in acquiring one should see the
Financial Secretary of the
company to execute tenancy
agreement. Further, that it was
this announcement that the
plaintiffs acted on, and
subsequently signed tenancy
agreement “voluntarily and with
their eyes open”. At pp.42-43 of
the Statement of Case, they
query that
“if the respondents knew in 2008
that Gabat Co Ltd was not the
owner of the stores then why did
the respondents sign the
agreement with the Appellant
company described it as the
landlord of the Stores (then
Gabat Co ltd) in 2001”?
With respect, in 2001, did
Gabbat Co Ltd know it was a
constructive trustee and that
the contributors were beneficial
owners of the property? If they
did not, why then hold it
against the
plaintiff-respondents that they
did not know either, when, from
the get-go, and to the knowledge
of the defendant-appellants, the
contributors had consistently
challenged the ownership of
Gabbat Co Ltd, but to no avail?
In the Statement of Case, the
defendant-appellants attacked
the determination by the Court
of Appeal and labelled it as
“unsustainable” and questioned
at p.39 of the Statement of Case
how the Court of Appeal came to
the conclusion that,
“Therefore the tenancy
agreements, exhibit 3, 4 and 5
will not hold once it has been
agreed that Gabat Co Ltd was not
the rightful company to hold the
disputed property on its own and
on the principle Nemo dat quod
non habet, Gabat Co Ltd cannot
give what it did not have”
In response to this conclusion
of the Court of Appeal, the
defendant-appellants submit at
p.42 of the Statement of case
that,
The new company was the
appellant and before the
appellant was eventually formed,
the directors of the appellant’s
predecessor entered into tenancy
agreement. And their Lordships
at the Court of Appeal held that
Exhibit B [The settlement
Agreement] the appellant’s
predecessor had no such power or
rights to enter into that
tenancy agreement. But what my
lords at the Court of Appeal …
did not address their mind to
was that the leasehold agreement
between the Lands commission
Kumasi and Gabat Co Ltd (now
appellant) had not been set
aside by any court of competent
jurisdiction and the said
leasehold agreement was legally
in existence at the time the
respondents came to court.
Furthermore that company, ie
Gabat Ltd, a company limited by
shares and was in legal
existence as the company had
not been liquidated or dissolved
at the very material time the
tenancy agreement was duly
executed. Besides the powers
of the company had not been
suspended in any way legally or
otherwise in Exhibit B…”(emphasis
in original).
On this point, it is conceded
that the defendant-appellants
are right. Gabat Co Ltd had been
properly formed and registered,
even though it ought to have
included more members, (as
required by the settlement),
than it did. This, however, did
not make the company invalid, as
its existence was legal.
Therefore, Gabbat Co. Ltd. was
in existence legitimately. In
that capacity, it could take and
hold a lease as legal owner,
even though in the circumstances
of an implied trust, the lease
was held in trust for the
beneficial owners. Since Gabat
Co Ltd had capacity to hold a
lease and transact other lawful
business, it could also enter
into tenancy agreements. The
tenancy agreements executed,
with the exception of those to
be presently shown to be void on
grounds of common mistake, were
thus valid and could legally be
taken over by Asomdwee House
Ltd.
The defendant-appellants also
maintain in their submissions
that
“The Respondents forget that
what parties had voluntarily and
lawfully put together, the court
will not without any permissible
compelling reasons/justification
or vitiating factor put them
asunder.
(emphasis in original)
That is certainly a correct
statement of law. However, they
concede, equally correctly, that
the presumed validity of a
contract may be undermined by
the existence of well-recognised
vitiating factors. They,
however, believe that none of
those grounds exist in this
particular case, for they argue
thus:
There was no evidence on record
that the agreement was
inconsistent with either the
1992 Constitution of Ghana or
any parliamentary statute[sic],
Common Law of Ghana, or was
tainted with fraud. Undue
influence, duress, mutual
mistake, and the like.
Consequently, the
defendant-appellants now say
that the plaintiffs-respondents
are estopped from contending the
contrary, that the shops and the
land do not belong to them ie
the defendant-appellants.
This is also a correct statement
of law, but the list of
vitiating factors of a contract
mentioned by the
defendant-appellants does not
provide an exhaustive list.
Although “mutual mistake”
features on it, no other form of
mistake makes the list. However,
mutual mistake is not the only
form of mistake that can vitiate
a contract. The existence of a
‘common mistake’ also vitiates a
contract.
MISTAKE IN CONTRACT
In contract law, Mistake may
take many forms. According to
Christine Dowuona-Hammond, the
learned author of The Law of
Contract in Ghana, Frontiers
Printing and Publishing Company,
Accra 2011, at p. 187, “to be
mistaken is to be wrong as to a
matter of fact that influences
the formation or making of a
contract.” Such mistake may
affect the party with whom one
is entering the contract, the
subject-matter of the contract,
or the circumstances under which
the contract is executed. The
particular factor concerned may,
depending upon its nature,
vitiate a contract altogether,
or make it voidable. In defining
what “vitiating factors” are,
and explaining their effect on a
contract, Christine
Dowuona-Hammond (supra), states
that “’vitiating factors’ are
simply legally recognized
factors, which make an apparent
contract lose its validity when
it comes to its enforcement.
…”
From the submissions, the
defendant-appellants recognized
the legal effect of a vitiating
factor such as ‘Mistake’ in the
law of Contract, but chose to
land on ‘mutual mistake’ rather
than the more correct ‘common
mistake’. The error may be
small, but its effect may,
nevertheless, be significant as
in this case. ‘Mutual Mistake’,
is explained by the learned
author, at Chapter 8.2.1 on
pp.189-190, thus:
“Mutual mistake is said to
exist where, although to all
outward appearances the parties
are agreed, there is in fact no
genuine consensus between them
because one party makes an offer
to the other, which the other
accepts in a different sense
from that intended by the
offeror. Here, the two parties,
unknown to each other are at
cross purposes, in that each
party is mistaken as to the
other party’s intention, even
though neither party realizes
that their respective promises
have been misunderstood”.
(Footnotes omitted.)
From this definition, counsel
for defendant-appellants is
right that there is no mutual
mistake as far as the evidence
in this case goes. However, that
is not the end of the story.
More apposite to the
circumstances of the instant
appeal is ‘common mistake’. In
Chapter 8.2.3 on p.190, the
learned author (supra) explains:
“Common mistake exists where
even though there is genuine
agreement between the parties,
the parties have both contracted
in the mistaken belief that some
fact which is the basis of the
contract is true when in fact it
is not. This kind of mistake is
common to both parties, that is,
both parties make the same
mistake about the circumstances
surrounding the transaction.”
In the English case of Cooper
v Phibbs (1867) L.R. 2
H.L 49, the petitioner agreed to
become the tenant to respondent,
of a salmon Fishery. It turned
out that he was, in fact, the
owner of the Fishery which he
thought belonged to the
respondent who was a trustee. On
the other side, the trustee had
been given the impression by his
father that he (the father) was
the owner, and that he, the
respondent, and his siblings had
inherited the Fishery from their
father. When the petitioner
found out the real state of
affairs, he sought to have the
agreement set aside. Lord
Cranworth agreed with him and
set the agreement aside, holding
that,
“the aforesaid agreement …
was made and entered into by the
parties to same under mistake,
and in ignorance of the actually
existing rights and interests of
such parties in the said
fishery.”
In the instant appeal, the
situation is quite akin to what
occurred in Cooper v
Phibbs (supra). Here were
two parties, each believing they
stood in the relationship of
‘landlord’ and ‘tenant’ to each
other, when it was not in fact
so. On account of the fact that
the ‘tenant’ had a beneficial
interest in the property, and so
could not be a ‘tenant’
properly-so-called, for one
cannot be a ‘tenant’ in one’s
own property. At the same time,
the supposed ‘landlord’ was in
fact, only a legal owner holding
a constructive trust in favour
of the ‘tenant’ as beneficial
owner, and so was mistaken in
signing as ‘Landlord.” The
common mistake of the parties
thus vitiates the ‘Tenancy
Agreement’. The Court of Appeal
was, therefore, not wrong in
supporting the finding of a
constructive trust in favour of
the plaintiff-respondents. With
that finding it follows that as
beneficial owners, the
plaintiff-respondents cannot be
‘tenant’ in their own property.
We also agree that the finding
is well-grounded in law. “Equity
regards as done, that which
ought to be done” is a maxim
that would serve everyone well
when kept in mind. Once the
court ordered that a new company
be formed to include all those
who qualified, such as the
plaintiff-respondents herein,
the right thing should be deemed
to have been done. Therefore,
the plaintiff-respondents are
deemed to be members of the new
company – Asomdwee House Co Ltd.
Accordingly orders will issue to
the Company to rectify its
Register of Members as provided
for under section 33(2) of the
Companies Act, 2019, (Act 992).
In addition, the tenancy
agreement is questionable on
more than one score. On the face
of the tenancy agreements, the
shops were let to the tenants “for
(fifty years 50) certain
commencing from [ the place is
left blank] – SUBJECT to the
Governments, cancelation and
stipulation here after stated.”
This was the form for all the
Tenancy Agreement exhibited.
Some of these agreements had
been executed in 2001 and 2002,
based on a lease whose lifespan
was of 50 years duration, with
effect from 1st day
of June 1999 to 31st
May 2049. Thus the tenancy
agreement based on it, and
executed in 2002, was promising
a term of fifty (50) years
certain, i.e. up to 2052 when
the lease would expire in 2049.
Under this same Lease, Gabbat Co
Ltd had covenanted in paragraph
2 (m) that
“at the expiration or sooner
determination of this term
quietly to yield up the demised
premises together with the
building or buildings thereon in
such state of repair and
condition as shall be in
accordance with the covenant
hereinbefore mentioned”
Could the lessee-company grant
what it did not have? Thus, on
its face, the agreement was in
breach of its own covenant under
the lease.
Again, the mistake is
strengthened by the fact that
plaintiff-appellants claim they
signed the document on grounds
of illiteracy. The ‘Tenancy
Agreement’ had a history, and
did not spring from the skies.
Therefore, if a court finds that
it was signed due to a poor
understanding of the effect of
the document they were signing
and which they captured as
“illiteracy”, that should not
lead anyone to the conclusion
that the Court of Appeal had not
“carefully and thoroughly
assessed and considered Exhibit
B” before coming to its
conclusions.” It thus sounds
almost unkind for counsel for
defendant-appellants to submit
in paragraph 2 of the Summary of
Appellant’s case in the
Statement of Case, that the
Court of Appeal was perfunctory
in its approach to the matter.
The appellant also complains
that the High Court had relied
on a decision in a related case
of Amoako Blankson v
Nana Bonsu ; Suit No
H1/8/2016, delivered on 10th
May, 2016, which it claimed was
binding on it. In that case, one
of the traders, now also one of
the plaintiff- respondents, had
taken issue with a decision by
the leaders not to grant him the
store he believed himself
entitled to occupy. The Court of
Appeal had ruled, per Torkonoo
JA (as she then was), that by
the time of the lease with
Gabbat, that the original
traders had gone beyond being
mere licensees and therefore
there was a proprietary estoppel
created. The Court of Appeal in
the instant case was, therefore,
not wrong in supporting the
finding. We also agree, that the
finding is well-grounded in
equity, even though it is in the
nature of a constructive trust
rather than ‘resulting trust’.
Following from the above, the
High Court’s finding on the
status of Gabbat Co Ltd., also
called the legitimacy of the
tenancy agreements executed by
that body into question. Citing
the Nemo Dat Quod non Habet
maxim, the court held that a
body which could not execute a
valid agreement, could not pass
on any such valid agreement to
its successor body. As the court
put it in response to the
defendants’ counterclaim that
the plaintiffs be ruled to be
“potential tenants” of the
company, it was consequent upon
the finding that Gabbat Co Ltd
was not formed in strict
compliance with the Settlement
agreement and subsequent consent
judgment that,
“any agreement executed between
any of the plaintiffs with the
defendant either by itself, or
with its predecessor is null and
void and cannot operate as
estoppel against the plaintiffs
in any form. Since the defendant
company was not formed in
accordance with the consent
judgement which is binding on
the parties, the defendant
cannot execute any tenancy
agreements in respect of
Anomangye Stores Complex with
the plaintiffs or any of the
contributors. Therefore, the
plaintiffs cannot be potential
tenants of the defendant company
in its present form and I so
find.”
In view of the discussion that
has gone on before, we do not
believe that the Court of Appeal
was wrong in supporting the
conclusion that the High Court
arrived at, albeit by a
different route from that which
we here have taken, and
re-affirm that as the agreement
is vitiated by common mistake,
in respect of those who belong
to the class of contributors,
such as the
plaintiff-appellants, it cannot
stand. However, those on the
property who are tenants in the
true sense of the word, remain
tenants of Asomdwee House Ltd.
Again, the Court of Appeal is
criticised by
defendant-appellants as having “preferred
oral and conflicting pieces of
evidence to indefeasible and
unimpeachable documentary
evidence which on the
authorities is impermissibly
unacceptable.” The admission
of oral evidence is not
completely impermissible if the
conditions for so admitting,
fall within the exceptions set
down in section 177 (2) and
(3)(a) of the Evidence Act 1975,
(NRCD 323). Under these
provisions, it is provided that
(2) Nothing in this section
precludes the admission of
evidence relevant to the
interpretation of terms in a
writing.
(3) For the purpose of this
section-
(a) “a course of dealing” means
a sequence of previous conduct
between parties to a particular
transaction which is fairly to
be regarded as establishing a
common basis for understanding
for interpreting their
expressions and other conduct.”
Consequently, the road the
parties had travelled and what
had gone on between them from
the time of the negotiation with
the School authorities, through
the collection of the levies, to
the conclusion of the
settlement, clearly had an
effect on the context of the
execution of those “tenancy
agreements”. As the Court of
Appeal in the Amoako Blankson
case (supra) pointed out, the
defendant-appellants’ failed to
honour the exact terms of the
settlement agreed to by the
parties. As for evidence, there
were letters, court records and
other documents to back up the
story of the
plaintiff-respondents. For
instance, one Alhassan Kwabena,
one of the “occupiers”, who
successfully brought action
against the leaders and Gabbat
Co. Ltd in the Circuit Court,
when he was denied the shop he
believed he was entitled to
occupy, i.e. Store No 8.
Although he had been allocated a
shop, it was on the First Floor
of the building, and much
smaller than Store No. 8, on the
Ground Floor to which he
believed he was entitled. The
grounds for allocating the much
smaller shop on the First Floor
of the building was that he did
not pay his share of the levies
on time. He resisted this
attempt to re-locate him, and
provided credible evidence of
promises made by the leaders to
the “original occupiers” as to
where their shops would be
located. He was consequently
adjudged entitled to Store No
8. This decision of the Circuit
Court was tendered by the
plaintiff-appellants at the High
Court, admitted in evidence and
marked Exhibit “J”. Therefore,
it is not correct to claim that
the Court of Appeal “preferred
oral and conflicting pieces of
evidence to indefeasible and
unimpeachable documentary
evidence”. The history of
how the lessee- company came
into existence was every bit, a
part of the matters into which
the High Court had to inquire.
Therefore, if the Court of
Appeal relied on evidence
properly admitted by the High
Court, there could be no
legitimate reason to castigate
the Court of Appeal for so
doing.
The appellant further submits in
para 3 of the statement of case
that “aside from the fact
that the Respondents did not
tender any receipt in evidence
of their contributions as
alleged members of the appellant
towards the construction of the
stores the Respondents failed to
establish how they acquired
ownership rights or title to the
stores.” With respect, this
point of law can hardly be
maintained. To begin with, there
were numerous occasions on which
both parties admitted that those
payments had been made. Thus,
there was never any doubt or
dispute as to whether payments
had been made by anyone, and the
quantum of such payments. The
secretary of the
defendant-appellant company, who
was incidentally the secretary
to the loose association of
traders formed to protest the
formation of Gabat Co Ltd., had
testified on 7th May
2914, and confirmed the
payments. He stated as follows:
I was one of the persons on the
land including Nana Kwame Bonsu,
Kwabena Num and the 3rd
plaintiff. The other plaintiffs
were not on the land. The 125 on
the land store[sic] were not
constructed by the Defendant
company.
The building of the stores was
financed by those on the land.
It is never correct that the
building was pre-financed by the
traders who were there. Those
who were originally on the land
pre-financed the construction of
the 125 stores.
The traders who pre-financed the
building initially paid Ghc 700
and later adjusted to Ghc 900 as
a result of prices of items
going up…”
Although he kept contradicting
himself, the sums he named were
consistent with all the
testimony given by others in
various documents. Having made
the formal admission, albeit
blowing hot and cold at the same
time, about “pre-financing” of
the project, the evidence was
useful in confirming the
payments. There was thus no need
to provide any more proof of
such payments by producing
receipts which would, in the
end, have only established facts
already admitted. From the
record, there was ample evidence
for the Court of Appeal to come
to the conclusion it did.
In view of all the discussions
above, we have no hesitation in
dismissing the appeal. We hereby
make the following orders: the
head lease between Lands
Commission and Gabbat (Gabat) Co
Ltd shall be formally assigned
to the defendant-appellant
herein; that the tenancy
agreements that were executed
with the plaintiff-respondents,
who are beneficial owners of the
property, be cancelled. The
plaintiff-respondents are
entitled to be treated in the
same manner as those whose
membership of Asomdwee House Ltd
has already been recognized.
Further, that the
defendant-appellants, Asomdwee
House Ltd, should rectify the
Register of Members as provided
by section 33(2) of the
Companies Act, 2019 (Act 992),
to include the
plaintiff-appellants herein, as
Members. These orders
notwithstanding, the building
and its appurtenances must be
maintained. Therefore,
arrangements for payment of
utilities, common services and
insurance premiums that apply to
the other “owners” should be
made applicable to the
plaintiff-respondents, because
those are legitimate costs. The
Court further directs that the
company should be re-organised,
and be enabled to conduct its
business in accordance with the
provisions of Act 992.
PROF. H. J. A. N.
MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME
COURT)
G. PWAMANG
(JUSTICE
OF THE SUPREME COURT)
A. M. A DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
E. Y. KULENDI
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
OSEI-WUSU ANTWI FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS.
HANSON KWADWO KODUAH FOR THE
DEFENDANT/APPELLANT/APPELLANT. |
