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Property - Ownership -
Sub-lessee -
Impersonation - Whether or not
Plaintiff is owner in possession
of the House - Whether or not
the
defendant/respondent/respondent
was the same as Kwame Adu Bobi
and to that extent the owner of
the disputed property. Whether
it is illegal for any person to
acquire property in his native
name.
HEADNOTES
The
plaintiff/appellant/appellant,
hereinafter called the plaintiff
does not claim he owns the
property in dispute by
acquisition of the plot or by
construction of the building
thereon. He does not also claim
the property by purchase or
through inheritance. He claims
the property because he is a
sub-lessee whose sub-lease has
expired so he has become the
owner of the property unless the
true owner thereof came forward
to claim it. The defendant/
respondent/ respondent,
hereinafter called the
defendant, claims to be the true
owner who acquired the plot in
his native name and leased it to
two named persons for a term of
fifty years to build on it and
occupy same for that duration.
Also the defendant holds the
title deeds to the property
which he tendered at the trial
court. Nonetheless the plaintiff
insisted that the defendant was
not the true owner because the
name that he is known by is not
the one which the title deeds
bear -
HELD An
appellate court is not entitled
to say that given the same facts
it prefers one version to the
one the trial court has decided,
even if this court would have
decided the case differently if
it were sitting as the trial
court. The appellate court would
intervene if wrong inferences
from the legally acceptable
facts have been drawn, or some
vital pieces of evidence, oral
or documentary, were not
considered. Both the trial High
Court and the Court of Appeal
have considered all the relevant
evidence. And having thus
arrived at their decision, it is
not open to this court to
disturb their findings of fact.
For these reasons, we find no
merit in the appeal;
consequently we dismiss it.We
hereby restore the judgments and
orders of the courts below.
STATUTES REFERRED TO IN JUDGMENT
Conveyancing Decree, 1973, NRCD
175,
Evidence Decree, 1975 (NRCD 323)
CASES REFERRED TO IN JUDGMENT
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
COUNSEL
MUJEEB RAHMAN AHMED
ESQ. FOR THE
PLAINTIFF/APPELLANT/ APPELLANT.
KOFI DUA- ADONTENG
ESQ. FOR THE
DEFENDANTRESPONDENT /RESPONDENT.
JUDGMENT
BENIN, JSC:-
This is
one case which in our candid
opinion should not have been
embarked upon at all in the
first place. The property in
dispute is numbered O.T.B. 511,
Block XXVI, Adum, Kumasi. The
plaintiff/appellant/appellant,
hereinafter called the plaintiff
does not claim he owns the
property in dispute by
acquisition of the plot or by
construction of the building
thereon. He does not also claim
the property by purchase or
through inheritance. He claims
the property because he is a
sub-lessee whose sub-lease has
expired so he has become the
owner of the property unless the
true owner thereof came forward
to claim it. The
defendant/respondent/respondent,
hereinafter called the
defendant, claims to be the true
owner who acquired the plot in
his native name and leased it to
two named persons for a term of
fifty years to build on it and
occupy same for that duration.
Also the defendant holds the
title deeds to the property
which he tendered at the trial
court. Nonetheless the plaintiff
insisted that the defendant was
not the true owner because the
name that he is known by is not
the one which the title deeds
bear. All this while, the
plaintiff has not been able to
identify any other person with
the name on the title deeds. He
has not alleged that the
defendant obtained the title
deeds by criminality bordering
on fraud, theft,
misrepresentation and what have
you. In the absence of any such
evidence, one would have thought
that the person who has the
title deeds and who was able to
prove how he came to acquire the
plot should be the owner as
against every other person
except somebody who can come
forward to prove a superior
title by way of acquisition of
the plot and execution of the
title deeds as well as the
construction of the building on
the plot. And that person is
definitely not the plaintiff,
who could not even produce
evidence that he was sub-lessee
of the property. Be that as it
may, the plaintiff embarked on
this case in the hope that the
judicial system would confer
ownership on him even when he
did not have title deeds to the
property just by leading
evidence to show that the
defendant is not known by the
name on the title deeds. Indeed
the plaintiff does not claim to
have any inkling as to who the
real owner of the plot is, or
how the building was constructed
by persons who did not own the
plot. We would have dismissed
this appeal in limine but
for the fact that the plaintiff
has raised some public policy
considerations that we think
should engage our attention. In
the process we would have to
re-hear the appeal on account of
the relief that the judgment was
against the weight of evidence.
The plaintiff’s case was that
his niece one Madam Akua Addai,
who was said to have died during
the pendency of this action,
took over the remaining term of
a sublease from one Ghassoub in
June 1975. The said Ghassoub, a
Lebanese national and one other
Lebanese national took a fifty
year lease of this plot from the
original lessee one Kwame Adu
Bobi in 1953 for a term of fifty
years certain expiring on 31st
January 2003. The record shows
that the said Ghassoub died in
1966 or in the 1970’s, as the
dates were conflicting. At any
rate he was not alive as at June
1975 when the surviving
sub-lessee assigned the
remainder of the term to Madam
Akua Addai in June 1975. The
story as told by the plaintiff
was that the said Madam Akua
Addai was not financially sound
so she approached her uncle the
plaintiff herein who advanced
her some money in order for him
the plaintiff to take over this
property. That the real owner of
the property Kwame Adu Bobi was
present when the sub-lessee
agreed to give the property to
Madam Akua Addai. The
plaintiff’s case further was
that since July 1975 he had been
in charge of this property as
owner in possession. About five
months to the end of the lease
period the defendant wrote to
the plaintiff to put the
property in tenantable repair in
preparation for a reversion to
the said Kwame Adu Bobi. When
the plaintiff discovered that it
was the defendant who was posing
as Kwame Adu Bobi, he resisted
his claim accusing the former of
impersonation. The defendant was
also said to have collected
various sums of money as rent
advance from the sitting
tenants.
Consequently, the plaintiff
instituted the action at the
High Court in Kumasi claiming
these reliefs against the
defendant:
1.
Declaration that the
Plaintiff is owner in possession
of House No. Plot 511, Block
XXVI, OTB, Kumasi.
2.
Declaration that as
against the defendant, the
plaintiff is entitled to
possession of the said house.
3.
Recovery of the advance
rent and/or rents collected by
the defendant from tenants in
the house.
4.
Damages for trespass.
5.
Perpetual injunction
restraining the defendant, his
agents, servants, workmen,
assigns and from in any way
interfering, or in any way
dealing with the house in
dispute.
The defendant’s case was that he
was the same person as Kwame Adu
Bobi. He stated that the name
Kwame Adu Bobi was the name
given to him by his father at
birth having been named after
Nana Kokofuhene. That he chose
to use his native name for the
lease of this property because
he feared he might lose it to
activists of the NLM who were
very active in Kumasi in those
days. He described how he came
to acquire the plot from the
then Asantehene. He also
described how after acquiring
the plot for a term of 99 years
2 months, he sub-leased it to
the two Lebanese nationals for a
term of fifty years, to develop
it and use it for that duration.
He kept his interest as owner
alive by various acts until the
lease was about to expire when
he took steps to recover it. The
defendant therefore
counterclaimed for these
reliefs:
a.
He is the lessee/owner of
the premises situate on Plot
number 511, Block XXVI, Old Town
Section B District of Kumasi.
b.
Mesne profits from 1st
February 2003 till possession is
delivered up to the defendant.
Both the trial High Court and
the Court of Appeal dismissed
the plaintiff’s action and
upheld the defendant’s
counterclaim. The grounds of
appeal filed by the plaintiff in
this court are these:
i.
The Honourable Court of
Appeal erred when it held that
it was lawful and legal for the
Defendant/respondent/respondent
to use a different name other
than his official and known name
in the alleged acquisition of
the subject property so as to
prevent its purported seizure by
the then National Liberation
Movement and/or government.
ii.
The Honourable Court of
Appeal erred when it held that
the
defendant/respondent/respondent
was the same as Kwame Adu Bobi
and to that extent the owner of
the disputed property.
iii.
The judgment is against
the weight of evidence on
record.
All these grounds will be
addressed together. It was
rightly decided by the two
courts below that the core issue
was the identity of the said
Kwame Adu Bobi. Both courts were
able to find that the defendant
was the very person as Kwame Adu
Bobi so they entered judgment
for him. The plaintiff is still
not satisfied hence this second
appeal. We think that since the
plaintiff claimed ownership,
albeit by possession, it was his
duty to first of all satisfy the
court that he was really an
owner in possession. The Court
of Appeal found that the
plaintiff was not speaking the
truth when he said that he took
possession of this property in
July 1975, because it was not
until 1982 that the property
which Madam Akua Addai had
mortgaged to the Ghana
Commercial Bank was freed from
the encumbrance. The trial High
Court had made reference to
these facts. So at what point in
time did the plaintiff become
the owner in possession?
Certainly not in 1975. But
unfortunately neither the trial
court nor the Court of Appeal
did pursue this important factor
to its logical end. It might be
because they were satisfied the
defendant had established his
claim so whatever the plaintiff
had to offer had fallen through.
However, since the plaintiff is
not satisfied, we would complete
the unfinished task by the
Courts below as the plaintiff is
saying the judgment was against
the weight of evidence.
First of all, as found by the
court below, Madam Akua Addai
was the person to whom the
Lebanese national, sub-leased
the property. Indeed that was
the case set up by the
plaintiff, per paragraphs 3, 4
and 5 of his statement of case.
The recorded transactions at the
Lands Commission clearly bear
testimony to the fact that Madam
Akua Addai was the sub-lessee to
the Lebanese. She mortgaged it
to the Ghana Commercial Bank
until 1982. Therefore the court
below was right when it found as
a fact that the plaintiff was
not given possession in 1975 as
he had said. And apart from July
1975 the plaintiff did not tell
the court that Madam Akua Addai
entered into any agreement to
sublet the unexpired term to
him. If she did, there was no
written agreement from her to
that effect. Whether the period
is reckoned from June 1975 when
Madam Akua Addai took the
sublease from the Lebanese, or
from September 1982 when the
property was freed from the
mortgage, the unexpired term was
more than three years. Thus the
law as stated in sections 1, 2,
and 3(1)(f) of the Conveyancing
Decree, 1973, NRCD 175, required
any such lease to be evidenced
in writing else it is
ineffective to convey any title.
Therefore the plaintiff who has
no such agreement with Madam
Akua Addai could not claim to be
the owner in possession. At best
he was just one of the tenants
under the sub-lease taken by
Madam Akua Addai. The plaintiff
could not act in violation of
the law and ask a court of
equity to come to his aid. For
the law does not recognize, let
alone give effect to a lease of
28 or 21 years which is not
backed by any writing.
The relevant provisions of
N.R.C.D. 175 read:
Section 1-Mode of Transfer
(1)
A transfer of an interest in
land shall be by a writing
signed by the person making the
transfer or by his agent duly
authorised in writing, unless
relieved against the need for
such writing by the provisions
of section 3.
(2)
A transfer of an interest in
land made in a manner other than
as provided in this Part shall
confer no interest on the
transferee.
Section 2-Contracts for Transfer
No
contract for the transfer of an
interest in land shall be
enforceable unless-
(a)
it is evidenced in a writing
signed by the person against
whom the contract is to be
proved or by a person who was
authorised to sign on behalf of
such person; or
(b)
it is relieved against the need
for such a writing by the
provision of section 3.
Section 3-Transactions Permitted
Without Writing
(1) Sections 1 and 2 shall not
apply to any transfer or
contract for the transfer of an
interest in land which takes
effect-
(f) by a lease taking effect in
possession for a term not
exceeding three years, whether
or not the lessee is given power
to extend the term.
The law should be applied
strictly here as the plaintiff’s
only route to ownership is the
purported sub-lease from Madam
Akua Addai which is
non-existent. And the law, as
stated earlier, does not
recognize verbal agreements
beyond three years. From the
facts in evidence it is only
Madam Akua Addai who was in a
position to claim as owner in
possession, being the person who
has a valid sub-lease recognized
by law. The plaintiff’s very
link to this property was not
explained with any degree of
satisfaction. He pleaded that he
took control of this property
from Madam Akua Addai in July
1975. But the undisputed
evidence was that even two years
after the plaintiff claimed to
have taken over as the owner in
possession, Madam Akua Addai
mortgaged this same property
with the Ghana Commercial Bank
by a deed of mortgage dated 25th
May 1977. The only logical
inferences to be drawn from
these facts were these: the
plaintiff lied when he said he
took a lease from Madam Akua
Addai in July 1975; the
plaintiff had no legal
connection to this property;
even if the plaintiff gave
financial assistance to Madam
Akua Addai, the latter did not
intend to and never did part
with her interest in the
property to the plaintiff. And
there was no evidence the
plaintiff had the authority of
Madam Akua Addai to bring this
action on her behalf. Whatever
transpired between the plaintiff
and Madam Akua Addai did not
ripen into the plaintiff
becoming an owner in possession
as Madam Akua Addai did not part
with her interest in the
property. The plaintiff’s action
ought to have been dismissed on
this score when the Court of
Appeal found he was lying about
his claim to be owner in
possession since 1975.
Be
that as it may, assuming the
plaintiff had succeeded in
persuading the court that he was
truly owner in possession, the
burden would be on the defendant
to prove that indeed he was the
same person as Kwame Adu Bobi.
The Court of Appeal seemed to
have placed this burden on the
plaintiff, since he it was who
introduced the subject as part
of his case. The principle of
law is that the burden of
persuasion rests with person who
substantially asserts the
affirmative of the issue on the
pleadings. The burden would
shift if the defendant in proof
of his counterclaim was able to
lead sufficient evidence to
prove the identity of the owner,
in which case the plaintiff
would be obliged to lead
rebuttal evidence.
The defendant gave a vivid
description of how he came to
acquire the land, its location,
and the sublease agreement he
entered into with the two
Lebanese nationals. He led
evidence to show that he was
named Kwame Adu Bobi at birth.
These material pieces of
evidence were affirmed by his
brother, K. S. P. Jantuah who
was in a position to know about
such matters, being the
defendant’s senior brother. The
defendant led evidence on why he
chose to use that name on the
title deeds. He gave evidence of
acts of ownership he had
exercised even during the time
of the Lebanese. Whether by
coincidence or design the postal
address of the defendant was the
very one through which
correspondence to Kwame Adu Bobi
was being channeled, see
exhibits 5 and 6. The defendant
was in possession of the
original title deeds which he
said he obtained upon
acquisition of the plot. And
there was no evidence he
procured it by criminality or
was holding it on behalf of
somebody else. The plaintiff’s
only challenge was that the name
on the title deeds was not the
name by which the defendant was
commonly known and called. That
it was against public policy to
allow him to acquire property
using a different name. That the
reason he gave for using his
native name could not possibly
be true as the CPP of which he
was a member had obtained all
the seats at the local council
elections in Kumasi. On all
these facts the trial High Court
as well as the Court of Appeal
accepted the defendant’s case on
a balance of probabilities. The
High Court summed up the
findings this way at page 105 to
106:
“Exhibit
B written by the Defendant F.A.
Jantuah to the Plaintiff Mr.
Sarpong from Bomso Chambers, P.
O. Box 3242 and dated 2nd
August 2002, advised the
Plaintiff to put the house…….in
a tenantable repair before the
expiry of his term. Exhibit D74
and Exhibit D69 were tendered in
evidence by PW1 from the Lands
Commission’s file. Exhibit D69
is dated 26th June
1975 and written by the
Defendant Mr. F. A. Jantuah from
Bomso Chambers, P. O. Box 3242
to the Senior Lands Officer at
the Lands Department. It is a
request for a search on all
transactions entered into by the
Lessee since 1953 in respect of
House No. OTB 511, Kumasi.
Exhibit D74 is written by the
Defendant from the same address
to the Chief Lands Officer in
respect of House no OTB 511,
Kumasi. By this letter the
Defendant applied for a
photocopy of the sublease
between Kwame Adubobi (written
as one name) and Angous Anas and
one other. Would it be prudent
to infer that the Defendant has
since 1975 been trying to lay
claim to House No. OTB 511,
Kumasi? The documents tendered
from the Lands Commission’s
records in respect of House no
OTB 511 have both names Kwame
Adu Bobi and F.A. Jantuah
recurring.
Furthermore, Exhibit 5 a letter
about re-wiring of House OTB 511
Kumasi dated 12th May
1975 from the Regional Manager
and directed to Messrs Angous
Trading and Transport Company is
also copied to Mr. F.A Jantuah
of P. O. Box 3242. Why would the
Regional Manager in his
communication with Messrs Angous
Trading Company send a copy to
Mr. F. A. JAntuah if the latter
did not have some connection
with the property under
reference? Exhibit 6 is a letter
from Andrews Osei, Legal
Practitioner to Mr. Kwame
Adubobi (written as one name) of
P. O. Box 3242 and is in regards
to House No. OTB 511. It is
dated 17th July 1975.
Was it a coincidence that Mr
Francis Adubobi Jantuah and Mr.
Kwame Adu Bobi both shared a
common address P. O. Box 3242
and now both have a link with or
have received correspondence
concerning House No 511 Kumasi?
Moreover, was it a coincidence
that the person the Defendant is
alleged to have impersonated
bears a similar name to his own?
Is it the case that Franklin
Adubobi Jantuah said to have
been born on a Saturday would be
impersonating Kwame Adu Bobi
also born on a Saturday?
The Defendant’s evidence that he
and Kwame Adu Bobi were one and
the same has been corroborated
by DW1 and also by the
documentary evidence available
to this court. A reasonable
inference can be drawn from the
whole evidence connecting the
Defendant with the names
Franklin Adubobi Jantuah and
Kwame Adu Bobi.”
The trial court proceeded to
draw some relevant inferences
from the accepted facts at page
110 of the record:
“The Defendant has led evidence
saying that at the time he
acquired the property in
dispute, it was a sanitary site.
This fact is borne out by the
Lands Commission records
tendered in evidence as D108,
D111, D112, and D114 which
described the area as a sanitary
site. He also gave evidence of
giving a sublease to 2 Lebanese
men, Anyasse and Goussoub who
ran a transportation business
and that they both built a house
on it. How did the Defendant
know the history of how the land
was acquired, the condition it
was in when it was acquired and
how the house was built on it by
the 2 Lebanese men if he had not
acquired same and sublet it? The
evidence he gave could only have
been given if he had first hand
knowledge of the land.”
The Court of Appeal reviewed the
entire evidence and came to the
conclusion that the trial court
was right. Even though the Court
of Appeal wrongly placed the
burden of persuasion on the
issue of the identity of the
owner of the property on the
plaintiff, instead of the
defendant who asserted the
affirmative of the issue, yet we
find this did not result in a
miscarriage of justice. This is
because after a comprehensive
review of the facts, the court
relied on the testimony of the
defendant and his witness and
the documentary evidence in
concluding that the trial court
had reached a correct verdict on
the issue.
At
this stage, it is necessary to
address the question of what
constitutes proof. Counsel for
the plaintiff took serious
issues with the reliance by the
courts below on the evidence of
the defendant and his brother
which he regarded as mere
repetitions of the averments in
the pleadings. This is what
counsel said:
“The
respondent had thus been put to
strict proof of his claim that
he is the one called Kwame Adu
Bobi. Rather than introducing
credible pieces of evidence to
prove his identity in this
regard, he merely called his own
uterine brother…….to testify as
DW1 and repeated to the
Honourable trial court, the
defendant’s averments in his
pleadings and his evidence under
oath to the court, which was by
and large repetition of his
pleadings. This kind of
repetition of pleadings and
facts cannot and does not amount
to proof in law.
My Lords, it is from this
repetitive evidence of the
respondent’s witness that both
the Honourable trial and
appellate courts found to be
corroborative of the evidence of
the respondent.
It is the position of the Law,
My Lords, that where a legal
duty is put on a party to
introduce sufficient pieces of
evidence at trial to ensure a
finding of fact in that party’s
favour the party cannot achieve
this, by merely mounting the
witness box either by himself or
through and/or with his
witnesses to merely repeat to
the Honourable Court, the
party’s averments as claimed or
pleaded. Please see the case of
Majolabi v. Larbi (1959) GLR
190.
My Lords, all the respondents
and his uterine brother agreed
to do, was to mount the witness
box and repeat to the Honourable
trial court the case of the
respondent as pleaded. It is
therefore submitted, that these
repetitions do not amount to
proof of the fact or claim which
informed the issue put forward
at the trial of the case and
which the respondent was
required by law to prove. This,
beyond the mere repetition of
the pleadings by the respondent
and his brother, DW1, there is
no evidence on record that ought
to, or support a finding that
the respondent is Mr. Kwame Adu
Bobi….The position of the law is
that he who asserts must proof.”
(sic)
From what counsel is saying a
party does not prove an averment
in his pleadings by testifying
by himself and calling a close
relative to support his
evidence. To say the least this
is re-writing the laws on
evidence. Proof in law does not
depend on evidence given by
non-relation/s of a party; nor
does it depend on production of
volumes of evidence; nor does it
require even supporting
evidence. The testimony of a
single person may be sufficient
in proof of an averment provided
it is credible and the witness
is reliable in terms of giving
first hand evidence. In this
particular case who was better
placed to support the
defendant’s case than his own
senior brother? Did he have to
go outside his family and bring
a stranger to testify to his
native name? Section 60 of the
Evidence Decree, 1975 (NRCD 323)
only requires a competent person
in terms of personal knowledge
to testify. The clear purpose
and intent of this provision is
to enable every person who has
knowledge of the subject-matter
to give credible testimony,
regardless of his relationship
with the party calling him.
Again counsel was stretching the
principle in Majolagbe v. Larbi,
supra, out of context. That
principle did not mean the party
should not and cannot repeat
what he had pleaded, what that
principle meant was that a party
should lead such evidence as
would constitute proof in law.
It is observed that a party is
required to stick to his
pleadings when giving evidence,
so there is nothing wrong if he
repeats on oath what he has
pleaded; the only consideration
by the court is that what he has
said on oath is sufficient to
discharge the burden of
persuasion that lies on him. The
courts below were thus justified
in relying on the testimony of
the defendant and DW1.
The trial court also considered
that it is not illegal for any
person to acquire property in
his native name. The Court of
Appeal considered this and
concluded it did not violate any
law unless there was proof that
it was done with a criminal
purpose. It is common knowledge
that among the Akans the name
that is given at birth is very
often not the same name that the
person carries especially when
he goes to church and is
baptized with a Christian name
or the name that he carries into
school. Meanwhile back home he
is commonly known and called by
his native name given at birth.
Thus it would not surprise
anybody if such person acquired
property in the native name. It
is an age-old practice. But with
the introduction and widespread
use of technology where the name
of a person captured in
computerized data base cannot be
easily changed, that customary
practice must give way to modern
practice of keeping one name
from birth as obtains in the
developed world. Change of name
would then be duly and legally
reported and recorded
accordingly. But in this case
there was no evidence the
defendant used the native name
to defraud the state or any
other person. Whatever reason
might have motivated him to do
that is not very material in
this case. It cannot be disputed
that as history students we read
about the brutal clashes between
the NLM and the CPP in the lead
up to Ghana’s independence. So
if the defendant as a member of
the CPP claims he feared he
might lose his property to the
NLM that was his personal fear.
It might not be real or
justified, but it was personal
to him. Different people react
differently in the same set of
circumstances. This did not
detract from the fact that he
did use his native name for this
property. The findings made by
the courts below have ample
support on the established facts
in evidence.
What the plaintiff is asking
this court to do is to take a
different view of the facts.
That is not open to the court to
do. An appellate court is not
entitled to say that given the
same facts it prefers one
version to the one the trial
court has decided, even if this
court would have decided the
case differently if it were
sitting as the trial court. The
appellate court would intervene
if wrong inferences from the
legally acceptable facts have
been drawn, or some vital pieces
of evidence, oral or
documentary, were not
considered. Both the trial High
Court and the Court of Appeal
have considered all the relevant
evidence. And having thus
arrived at their decision, it is
not open to this court to
disturb their findings of fact.
For these reasons, we find no
merit in the appeal;
consequently we dismiss it.
We
hereby restore the judgments and
orders of the courts below.
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME
COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE-
BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE
SUPREME COURT
(SGD) YAW APPAU
JUSTICE OF THE SUPREME
COURT
COUNSEL
MUJEEB RAHMAN AHMED
ESQ. FOR THE
PLAINTIFF/APPELLANT/ APPELLANT.
KOFI DUA- ADONTENG
ESQ. FOR THE
DEFENDANTRESPONDENT /RESPONDENT.
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