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J U D G M E N T
DR. TWUM, J.S.C.
This an appeal from the
unanimous judgment of the Court
of Appeal dated 23rd
July 1997. In this judgment I
will refer to the Respondent
herein as “the Plaintiff” and
the Appellants as “the
Defendants”. I hope this will
make it easy to follow the
chronology of the events that
have prompted this appeal.
On 17th May 1989, the
Plaintiff, (Kwabena Addo) issued
a writ of summons against the
Defendants, (Madam Anyowuo and
her two daughters, Akosua Kesewa
and Afua Serwah) claiming:
(a)
A declaration of title and
recovery possession of House No.
C325/15 Alajo.
(b)
Damages for trespass
(c)
Perpetual injunction.
The Defendants filed a Statement
of Defence and Counterclaim on 9th
June 1989. In the counterclaim,
they asked for:
(a)
A declaration that building
currently with House No. C325/15
Alajo, Accra, was the property
of the late S.K. Opoku.
(b)
Recovery of possession of the
said house.
(c)
That the Plaintiff accounts for
the rents he has so far
collected on the premises from
1980 to date of judgment.
The facts relied on by parties
to establish their respective
cases were not complicated. The
Plaintiff’s case was that S.K.
Opoku the deceased, was his
uncle. He was a trader at Akuse
in the Eastern Region. He stayed
with him at Akuse as a young man
and worked in one of his stores.
After some time his uncle gifted
one of his stores at Akuse to
him. Not long after that, his
uncle decided to move from Akuse
to Accra. The Plaintiff,
however, remained at Akuse and
worked in his store. In 1968,
the Plaintiff’s said uncle
invited him to Accra and
informed him that his church,
the True Faith Church, had
acquired land from the Alajo
chief which had been partitioned
and was being allocated to
members of the church. The
Plaintiff’s uncle told him he
had wanted to pass it on to his
brother, Osei Kwaku but Osei
declined the offer. A similar
offer was made to the deceased’s
sister (the Plaintiff’s aunt),
Amma Mansah but she also
declined to have it.
Consequently, the deceased had
decided to surrender this land
to the Plaintiff. This
discussion, the Plaintiff
claimed, was held in the
presence of Osei and Amma
Mansah.
The Plaintiff accepted the land
in their presence. The
Plaintiff’s case was that he
paid about ¢800.00 to his
deceased uncle to pay for the
cost of the land and
subsequently sent or gave
various sums to him to supervise
the building of a house on the
land for him. The uncle
supervised the construction of
the “Boys Quarters” and the
first floor of the building.
In or about 1979, the
Plaintiff’s uncle, S.K. Opoku,
became unwell and decided to go
back to his hometown, Obo, in
the Kwahu Traditional Area. At
that time the building had not
been completed but his uncle was
living on the first floor. The
Plaintiff’s case that his
deceased uncle called him to
Accra and told him of his
decision to re-locate to Obo. He
suggested to the Plaintiff to
approach an elder of the church,
Opanin Joseph, to supervise the
erection of the remaining floors
of the house for him. Later, the
Plaintiff himself came to live
in Accra. At that time the
second floor had been completed
and he settled in it. He took
over the supervision from Opanin
Joseph. In due course, the
building was completed. The
Plaintiff’s uncle, S.K. Opoku
died in 1984. The Plaintiff
continued to live in the house
without let or hindrance until
1989 when the first defendant
(or one of her daughters)
approached him and begged that
her mother be given one room in
the house for her use. The
Plaintiff turned down the
request so the Plaintiff’s
uncle, Osei Kwaku, was
approached to intercede on her
behalf. Still he refused her a
room.
The Defendants reported the
Plaintiff to the CDR alleging
that he was occupying their
father’s (or husband’s) house
and had refused to give to the
first defendant one room to live
in. By various threats and
stratagems the CDR, made an
interim order (against the
Plaintiff’s will) whereby the
first defendant was settled in
one room in the house with the
excuse that there were vacant
rooms in the house. It was on
account of these matters that he
instituted the present action
against the defendants.
For the defendants, they claimed
that the building, the
subject-matter of the dispute,
belonged to S.K. Opoku, the
husband of the first defendant
and the father of the second and
third defendants. They claimed
that it was his self-acquired
property. It was part of their
case that the deceased acquired
the land as was alleged by the
Plaintiff but he kept it for
himself and funded and
supervised the construction of
the house in dispute from his
own resources. They said that it
was when the deceased was going
to his hometown that he asked
the Plaintiff to take care of
the house for him. The
Defendants’ case was that with
the death of S.K. Opoku the
house in dispute had become
their property. They therefore
claimed as particularized in
their counterclaim.
The Plaintiff and the Defendants
called witnesses in support of
their respective cases. The
relevant parts of their evidence
will be considered in the course
of this judgment.
After a full trial, the learned
trial judge dismissed the
Plaintiff’s action and entered
judgment for the Defendants on
their counterclaim as follows:
(1)
I order that the defendants do
recover possession of House No.
C325/15 Alajo.
(2)
That the Plaintiff gives an
account to the defendants of all
the rents collected since 1989.
(3)
Plaintiff is to pay costs of
¢1,000,000.00 to the
Defendants”.
The Plaintiff was aggrieved by
this judgment and appealed
against it to the Court of
Appeal which unanimously allowed
it. The defendants have also
expressed dissatisfaction with
the judgment of the Court of
Appeal and have appealed against
it to this court on the
following grounds:
(1)
That the judgment of the Court
of Appeal is against the weight
of evidence.
(2)
The Court of Appeal with the
utmost respect has no power to
disturb the findings of the
trial court as the same were
duly supported by the evidence,
oral and documentary adduced
before the trial High Court.
(3)
The Court of Appeal with the
greatest respect erred in law
when it reversed the conclusions
of the trial High Court on the
basis of its own comparison and
criticism of the witness.
(4)
That notwithstanding the
matrilineal inheritance system
of the parties and the death of
S.K. Opoku in 1984, the Court of
Appeal with due respect erred in
law by not applying section 21
(1) of PNDC Law 111 of 1985 in
its decision dated 27/6/2002
that reversed the judgement of
the trial High Court dated 23
July, 1997.
During the hearing of the
appeal, it was disclosed to the
court that the first defendant
had died. This protracted the
hearing somewhat. The second and
third Defendants were given time
to put their house in order. On
7th June, 2005, this
court granted an application by
the second and third defendants
to substitute Madam A. Larbi for
the first Defendant who had
died.
The appeal was then adjourned
to 27th July, 2005
for Judgment. Yet another matter
held up the judgment. It was
discovered in the course of
preparing our judgment that the
record was apparently
incomplete. A look at pages 47
to 49 and then page 68 shows
that part of the Plaintiff’s
evidence–in–chief was not
recorded or was missing from the
record. The very first question
at page 68 makes that clear. For
this reason we decided not to
proceed with writing our
judgment but to bring the matter
to the notice of learned counsel
for the parties and ask for
their views. The appeal was
then adjourned to 12th
October, 2005 to enable them
investigate the apparent
omission. Judgment was fixed for
24th October, 2005.
On the resumed hearing on 12th
October, 2005 learned counsel
for the plaintiff had filed
copies of the missing pages and
we accepted same as part of the
record and adjourned the appeal
to Monday, 17th
October, 2005 for judgment.
I will now discuss the grounds
of appeal
Ground 1
”The judgment of the Court of
Appeal is against the weight of
evidence”.
The general rule is that any
appeal to the court shall be by
way of re-hearing. This means
that the appellate court is in
the same position as if the
re-hearing were the original
hearing and the appellate court
may receive evidence in addition
to that taken before the court
below and may review the whole
case. See Nkrumah v. Ataa
(1972) 2 GLR 13 at 18.
At the Summons for Directions
one of the issues raised by the
Plaintiff was “whether or not
the house in dispute belongs to
the Plaintiff or the late S.K.
Opoku”. To me, this is one of
the central issues to be decided
in this appeal. The Plaintiff
claimed a declaration of title
and recovery of possession of
House No. C325/15, Alajo. The
Defendants claimed a declaration
that the building currently with
House No. C325/15 Alajo, Accra,
was the property of the late
S.K. Opoku and that with his
death the house in dispute had
become theirs.
Until comparatively recently,
two major principles of law
appeared to be encapsulated in
the standard of proof:.
(a)
In Kodilinye v. Mbanefo Odu
(1935) 2 WACA 336 at 337 Webber,
C.J., stated that in a claim for
a declaration of title to land,
the Plaintiff must rely on the
strength of his own case and not
on the weakness of the
Defendant’s.
(b)
In the same and subsequent
cases, it was held that the
standard of proof was proof
beyond all reasonable doubt.
The learned trial judge in this
case followed this and held at
page 169 of the record: “it is
trite learning that in an action
for declaration of title of
land, the person seeking such
declaration must succeed on the
strength of his own case and not
by the weakness of his
opponent’s case”. In support,
she cited the cases of Azagba
& others v. Negor & orders
…... Frempong II v. Brempong
II (1952), 14 WACA. She also
relied on the case of Moses
and others v. Anane
(1989-90)2 GLR 660 of 697 where
the Court of Appeal stated: “a
claim against a deceased’s
estate should be scrutinized
with utmost suspicion”
apparently relying on the
English authority of In re
Garnett; Gandy v. Macauley
(1885) 31 Ch.D 1. At page 9
Brett M.R. said: “The law is
that when an attempt is made to
charge a dead person in a
matter, in which if he were
alive he might have answered the
charge the evidence ought to be
thoroughly sifted and the mind
of the judge who hears it ought
to be, first of all, in a state
of suspicion; but if in the end
the truthfulness of the
witnesses is made perfectly
clear and apparent, and the
tribunal which has to act on
their evidence believes them,
the suggested doctrine (of
corroboration) becomes absurd”.
It must be noted that the
statement of Brett, M.R.was not
meant to be an absolute command.
It cautioned that in the end if
the truthfulness of the
witnesses is made perfectly
clear and apparent the tribunal
will be entitled to act on their
evidence. In my opinion, every
judge ordinarily must warm
himself in the context of the
particular circumstances, how he
should evaluate the credibility
of any witness. Care should be
exercised in sifting the
evidence but there is no valid
reason why a judge should
approach any civil suit with
“utmost suspicion” whatever may
have been the reason for the
Master of Rolls’ statement. My
view of the matter is that a
judge should approach his task
of evaluating the evidence with
an open mind. If he really sifts
the evidence with “utmost
suspicion” he cannot deal with
the case justly and fairly.
In Banga vrs Djanie (1989-90)
1 GLR 510. Franscois J.S.C.
sitting as additional member of
the Court of Appeal said: “since
a declaration of title is
sought, it is essential that the
usual burden of proof should be
satisfactorily discharged for
success. That burden was clearly
laid in Kodilinye v. Odu
(1935) 2 WACA 336. That
burden ensures that the
Plaintiff should win on the
strength of her own case which
must not be propped up by
weaknesses in the defence’s
case. The principle has for
several decades been the fulcrum
for determining ownership in
land matters in our courts. In
recent times a dangerous trend
has been erupting of equating
this burden with the normal
burden in a civil case of
measuring success by a balance
of probabilities. In my view,
the requirement of a higher
burden of proof in land matters
cannot be whittled away by
glosses on the principle. This
quality of proof has sometimes
been equated with proof in
criminal matters, that is, proof
beyond reasonable doubt. Suffice
to emphasize that a high measure
of proof is necessary to sustain
victory in a plaintiff seeking a
declaration of title.
In Ricket v. Addo (1975)
2 GLR 158 Amissah J.A. (as he
then was) considered the
principle that a party claiming
a declaration to title in a land
suit must defend upon the
strength of his own case and
explained that the principle had
its simplest application in the
situation where a plaintiff
could not on his own make out a
case of his title at all and had
to rely on the defects in the
defendant’s case to justify his
claim to title. However, where
the plaintiff could put forward
some sort of claim to title, the
principle then had meaning in
practical terms if the defendant
had some semblance of a claim to
the land; e.g. by occupation or
possession. Whatever the defects
in the defendant’s title, the
plaintiff could not rely on
them: he must rely on the
superior strength of his own
title. Therefore, if the
defendant’s case was measured
against the plaintiff’s and the
plaintiff’s was found more
probable, a determination which
necessarily involved the
balancing of the strengths and
weaknesses of the rival claims,
the plaintiff’s case had to be
accepted.
A little reflection will show
that this formulation of the
principle, based as it were, on
which case was more probable,
completely disavowed the “proof
beyond reasonable” test extolled
by Franscois J.S.C. in the case
of Banga v. Djanie
(supra).
In George Aflu v. Adu Boafo &
Anor. Civil Appeal No.
13/66, unreported judgment of
the Court of Appeal dated 21st
December, 1971, Anie Jaggie,
J.A. pointed out that “in
considering the strength of the
plaintiff’s case, surely the
standard is not that every
minute detail must fit as a
jig-saw puzzle. That super-high
standard may never be assailed.
A reasonably strong case is
enough to call for careful
consideration on the evidence as
a whole, including of course,
the case of the defence.”
Finally in Adwubeng v. Domfeh
(1996-97) SCGLR 660, Acquah
J.S.C. (as he then was) pointed
out that the Evidence Decree
1975 (NRCD 323) has imposed
proof beyond doubt only on
prosecutions in criminal actions
and in proof of the commission
of a crime in any civil or
criminal action, while sections
11 (4) and 12 of the Decree
clearly provide that the
standard of proof in all civil
actions is proof by a
preponderance of probabilities.
He stressed that no exceptions
were made. In the light of those
provisions therefore, the cases
which hold that proof in titles
to land required proof beyond
reasonable doubt no longer
represent the state of the law.
Now, how did the learned trial
judge deal with the rival
claims? Fortified with “utmost
suspicion” she said: “I find the
evidence of the defendants is
credible and the Plaintiff’s is
a pack of lies deliberately
concocted to deceive the court
and deprive his uncle’s family
of their legitimate property. It
is obvious that the Plaintiff is
determined to deprive the family
of S.K Opoku of his
self-acquired property because
S.K.Opoku had not left a will.
It is obvious that the Plaintiff
is a dishonest man who does not
fear God and wants to reap where
he has not sown”. The learned
trial judge did not mince her
words in the denunciation of the
plaintiff. The question is, was
the denunciation supported by
the evidence on record? The
Court of Appeal carefully
considered the evidence of the
parties and their witnesses and
concluded that the learned trial
judge erred in her evaluation of
the evidence as a whole. I could
not agree more with that view.
In the first place, who were the
members of the family of S.K
Opoku, deceased? For a
matrilineal community, family
membership is traced through
females and will comprise the
mother and aunts of the
deceased, his siblings and
cousins, nephews and nieces and
grand nephews and nieces. The
learned trial judge seriously
erred when she regarded the
widow and her children, (that is
the defendants) as the family of
the deceased. It was as a result
of that aberration that she
wondered why the deceased would
call his brother and sister and
tell them about the ownership of
the house. The answer is simple.
According to the law as at the
date of death of the deceased,
they were the people who would
be interested in his property
upon his death intestate.
My Lords, for the sake of
clarity permit me to repeat the
Defendants’ counterclaim. It was
a declaration that “the building
currently with House No.
C325/15, Alajo, Accra, was the
property of the late S.K.Opoku
which has now become the
defendants’ upon the death of S.
K. Opoku”. In paragraph 16 of
their statement of Defence and
Counterclaim the defendants
pleaded that “all along they
knew that they are beneficiaries
of the said building since their
father died in or about 1984”.
Apart from this the defendant
did not plead, nor did they lead
any evidence to show how they
became beneficiaries of the
building. Before the Intestate
Succession Law 1985 )PNDC Law
111) came into force on 5th
July, 1985, intestate
succession in this country was
governed by three distinctive
rules of law;
(i)
Where the deceased was married
under the Marriage Ordinance,
Cap 127; section 48 was the
appropriate rule.
(ii)
Where the deceased was married
under the Marriage of
Mohammedans Ordinance, Cap 129,
section 10 applied.
(iii)
Where neither Ordinance applied.
The evidence on record shows
that the deceased had two wives
at some point in his life, all
married under Akan customary
law. In such circumstances,
intestate succession was
governed by neither of the above
statutes but by the personal law
of the deceased. The rules of
succession under either
Ordinance should therefore not
detain us further. In a
matrilineal community whence the
deceased hailed, the intestate’s
self-acquired property became
the property of the matrilineal
family and it was the
prerogative of that family to
choose a successor who would
then inherit the deceased’s
property. This meant that in the
Akan matrilineal family no
member of a deceased’s family
could succeed a deceased member
as of right. Consequently, the
defendant’s claim that “the
property of the late S.K Opoku
had become the defendants’ upon
the death of S.K. Opoku”, is
difficult to justify, even if
the defendants were members of
the deceased’s family, which
they were not.
The facts show that the
defendants were not in the
reckoning for inheriting the
estate of S. K. Opoku, deceased.
Consequently, nothing that the
plaintiff did could disinherit
them. There was nothing the
plaintiff did that showed that
he was a liar and did not fear
God. What is worse, the learned
trial judge did not show how she
considered that the plaintiff
was a liar or a man who did not
fear God and was out to
over-reach the deceased’s
family. The plaintiff was not
cornered during
cross-examination. None of his
witnesses was shown to have
lied. I am persuaded that the
denunciation of the plaintiff by
the learned trial judge was not
borne out by the evidence. It
was most unfair. My own view is
that it was rather the
defendants who were trying to
over-reach the plaintiff and his
matrilineal family. The widow
knew or ought to have known the
customary law of inheritance of
her deceased husband. So were
the children, 2nd and
3rd defendants. In
those circumstances, how could
they claim that the deceased’s
property had become theirs? They
tried to use the brute force of
the CDR to reap where they had
not sown. I suspect that they
were wrongly advised that PNDC
Law 111/1985 gave them the
house. I will discuss this
matter further when I consider
ground 4.
Acquisition of The Land
The Plaintiff called Daniel
Kwadwo Badu (P.W. 3) to give
evidence on the acquisition of
the land on which the house was
built. He said that a parcel of
land of which the land in
dispute formed a part, was
acquired by his church, “the
True Faith Church” in 1964 from
the chief of Alajo, Accra. He
said the Church partitioned the
land and allocated same to the
members. He said he recorded the
names of the persons who were
given land by the church because
the church had no secretary. He
added that Opanin S.K Opoku, the
deceased, acquired a plot and
turned it over to his nephew,
the plaintiff. He said the
church approved this but warned
the deceased that he should not
make any profit on the
transaction. Finally, he said
the land cost £50.00 and this
was paid in 1964. The
plaintiff’s evidence was that in
1965 he sent ¢800.00 to his
uncle who said he used it to pay
for the land. This was not
contradicted. The plaintiff’s
other uncle, Osei Kwaku,
(P.W.1), and his aunt, Beatrice
Gyamfua (P.W.4), confirmed the
Plaintiff’s evidence that it was
in their presence that the land
was offered to the Plaintiff by
his uncle, Opoku. They were not
shaken in cross-examination.
The plaintiff pleaded in
paragraph 17 of his statement of
claim that since no proper deed
of conveyance was made in
respect of the land, he had one
prepared and was then with the
Lands Department for
registration. He said he
obtained it from the chief of
Alajo in 1989. It is worth
emphasizing that the deceased
never had a lease or conveyance
covering the land. The
plaintiff’s said document was a
straight-forward lease executed
between NUMO COBBLAH, Korle
Priest of Accra, NII AYITEY
AGBOFO, Gbese Mantse and NII
AMUGI II, Ga Mantse of Accra,
(collectively “the Lessors”) and
KWABENA ADDO (the Plaintiff) as
“the Lessee”. The Lessee signed
the document himself contrary to
the view held by the learned
trial judge that it was
apparently signed by the church
on his behalf. It granted a term
of 99 years to the Lessee
commencing from the 17th
of May, 1989. The evidence
further shows that the land was
stool land. Consequently, the
plaintiff applied for Lands
Commission concurrence and it
was granted. The plaintiff
registered it, as he was
entitled to do (in his own name)
so that it might not be rendered
ineffectual by section 24 of the
Land Registry Act 1962, (Act
122). On the available evidence,
this document which was tendered
in evidence as exhibit A was
complete and regular on the face
of it. It was registered as No.
3088/1990. It vested a legal
estate in the plaintiff who
could, in law, apply for a
declaration of title in any suit
in defence of his interest in
the land.
In paragraph 18 of the Statement
of Defence and counterclaim, the
defendants averred that “the
Plaintiff has been using all
types of mechanism to transfer
the documents on the house from
the name of S.K. Opoku to his
name but all to no avail”. Under
cross-examination, the Plaintiff
said his uncle gave him the
building plans. There is no
evidence that the Plaintiff
tried to change his uncle’s name
on the building plan. Even
though the building plans (and
the permits) had some relevance
in determining the ownership of
the house in dispute, they were
not conclusive. In my view, they
merely raised a presumption of
ownership. They formed part of
the totality of the evidence
that had to be considered. In
particular, we know that
building plans and permits are
not documents of title.
Construction of the Building
The Plaintiff called Kofi Zim
(PW2). He was the mason who
built the house. He said he was
introduced to the Plaintiff by
the deceased who told him that
the Plaintiff was the owner of
the house. He also said the
deceased supervised the
construction of the ground and
first floors. He said later when
the deceased went to his
hometown, it was one Joseph who
supervised the building of the
second floor. Grace Dorman was
PW5. She was the widow of Opanin
Joseph. She said she knew that
the house belonged to the
Plaintiff. She said, the
deceased asked her husband to
supervise the building when he
was going to his hometown. She
said her husband supervised the
building up to the 3rd
floor. PW5 was subjected to
sustained and intense
cross-examination but she did
not wilt. Yet the learned trial
judge, perhaps still operating
under “utmost suspicion”
dismissed her evidence by saying
that “if her husband were alive,
(he, the husband) might have
testified differently.”
The Defendants called Joseph
Okpoti as DW2 . He worked at the
CDR office at the time. He spoke
of a petition submitted by the 2nd
Defendant for one room in the
house in dispute for her mother
and how it was dealt with.
The record shows that by threats
and other unlawful stratagems,
the CDR put the 1st
Defendant in the house in
dispute against the wishes of
the Plaintiff. In Exhibit B, DW2
purporting to write on the
instructions of the PNDC
Secretary for CDRs informed the
Plaintiff that personnel of his
office would call at the house
in dispute to restore the
children of the deceased in any
vacant rooms. Paragraph 3 of
that letter stated: “In view of
previous unfeeling arrogant and
contemptuous attitude exhibited
by you towards this office, the
warning is being sounded that
the slightest repetition of such
behaviour again will be
ruthlessly dealt with”. That
threat was, indeed, carried out
and the Plaintiff and two of his
children were detained by
National Secretariat of CDRs. In
cross-examination DW2 was asked:
“Is it not correct that in spite
of the writ, your outfit
forcibly put Efua Kesewaa into
the room which she occupies”? He
answered: “Yes we did”.
The learned trial judge found in
the face of the overwhelming
evidence to the contrary, that
“the man from the CDR testified
that they had settled the case
and decided that the house
belonged to S.K. Opoku and that
this had been admitted by PW1”.
However, DW2 himself admitted
under cross-examination that “a
careful study of PNDC Law 42,
from which we derived our
authority, didn’t give us power
to determine ownership of
property. We could investigate
cases and submit our findings to
a body who would determine it.”
The Defendants called J.O. Larbi
as D.W.1. He was a carpenter who
claimed that the deceased gave
him a building plan on the basis
of which he manufactured the
frames for the second floor of
the house. He tendered this plan
(No LTS 9878/94) in evidence. It
was admitted as Exhibit 1.
According to him, the Plaintiff
was always sent by the deceased
to go and collect the frames and
doors. It must be pointed out
though that the Plaintiff was
then resident in Akuse and it
would be a very curious
arrangement indeed, if the
deceased had to wait for the
Plaintiff to come from Akuse
before he could send him to go
and collect the frames. DW1
further volunteered the
information that he had nothing
to do with the ground and first
floors. Another piece of
evidence which belies DW1’s is
that of Godfrey Wilson Adu,
D.W.3. He worked in the
Engineers Department of Accra
Metropolitan Assembly. He
tendered in evidence building
permit No 23/1969 and another
one dated 14th
January, 1969. This was accepted
and marked as Exhibit S4. He
also tendered the building plan
attached to permit No 23/1969.
He however, testified that
Exhibit 1 from which the
carpenter (DW1) claimed to have
made the frames was totally
different from Exhibit S.4 and
went on to say that his office
did not have Exhibit 1. I do not
believe that DW1 made any frames
for the deceased.
D.W.3 continued his evidence by
saying that from their records
there was no indication that the
building was a three-storey
building. He was not sure
whether it was the deceased who
signed the application for the
building permit. He emphasized
that clearance was only given to
the owner at the Land
Secretariat at the time the
building permit No 25 of 1969
was issued. When asked whether
in 1969 when the permit was
issued, the City Engineers
satisfied themselves that the
land belonged to the deceased,
his answer was that they did not
deal directly with the Lands
Department so he could not tell.
The evidence is clear on the
balance of probabilities that
the plaintiff’s version of the
acquisition of the land and
erection of the building is more
probable than that of the
defendants.
Apart from the evidence I have
reviewed above, the following
evidence further tilts the
scales in favour of the
plaintiff:
(1)
The first defendant testified
that after her husband’s funeral
she went to live with her
daughter at New Town. She was
there for five years after her
husband’s funeral. She said it
was when her landlord was
ejecting her from the room she
occupied that she thought of
going to the plaintiff with a
request for a room to live in.
It was not a demand for her
inheritance. One important fact
that must be placed in close
juxtaposition with the above is
the admission by the first
defendant that her deceased
husband had told P.W.1 and P.W.
4 that on his death his house in
his hometown should go to the
defendants. P.W.4 also testified
that indeed, that house had been
given to them under customary
law. The deceased had provided
for the defendants out of his
self-acquired properties.
(2)
When the deceased decided to go
back to his hometown, the second
defendant testified that he
packed and took all his
belongings away from the house
in dispute and arranged for the
keys to be given to the
plaintiff. That is not the
behaviour of an owner of a house
who is just going to his
hometown for treatment and would
be returning to his property
when he became well. As matters
turned out, the deceased died
some five years after he had
re-located at Obo, Kwahu, and
his widow waited a further five
years before she applied to the
plaintiff to be given one room
to live in. Ordinarily, people
who have legitimate claims do
not tarry for so long.
(3)
The deceased was succeeded by
his brother Osei Kwaku, (P.W.1).
If anybody was attempting to lay
claim to family property, it
would be his responsibility to
call upon the head of family to
retrieve it and put him, (the
customary successor) in
possession. In this case, P.W.1
and his sister, (P.W.4),
principal members of the
deceased’s family, were the very
people who were championing the
plaintiff’s cause. And if may
add, there was no evidence that
they were doing so for some
dishonourable or oblique
motives.
I hold that the Court of Appeal
rightly upheld the plaintiff’s
declaration of title to the
house in dispute. Ground 1 of
the appeal therefore fails and
is hereby dismissed.
Ground 4
In this Court, the defendants
sought to improve upon the
hopelessness of their
counterclaim by claiming that
“the Court of Appeal, with due
respect erred in law by not
applying section 21(1) of PNDC
Law 111 of 1985”. If I may say
so, this ground of appeal is as
bereft of merit as the
counterclaim itself. In the
first place, the Defendants did
not seek leave, of the Appeal
Court, to amend their statement
of defence and counterclaim to
plead any facts upon which they
could invite that court to apply
section 21 (1) of PNDC Law 111.
Section 21(1) of the Intestate
Succession Law, 1985, (PNDC Law
111) (hereinafter simply
referred to as “the Law),
provides: “Notwithstanding the
provisions of section 1 of this
Law, or other enactment, the
provisions of this Law shall be
applicable in the settlement of
any claim or adjudication
pending before the Court or a
chief or Head of family under
customary law at the
commencement of this Law in
respect of the administration or
distribution of the estate of an
intestate who died before such
commencement…”
Section 1 (1) of the Law states:
“On the commencement of this
Law, the devolution of the
estate of any person who dies
intestate on or after such
commencement shall be determined
in accordance with the
provisions of this Law, subject
to sub-section (2) of this
section and the rules of private
international law. Section 1(2):
“This law shall not apply to any
stool, skin or family property”.
In this case before your
Lordships, the undisputed fact
is that S.K Opoku died in 1984
and therefore before the
commencement of the Law on 5th
July 1985. Further, there was no
foreign element in the marriage,
death or even the family of the
deceased. Consequently, the
rules of private international
law are irrelevant. The
deceased’s personal law is the
Akan matrilineal system of
inheritance. At the commencement
of the Law, there was no
proceeding or adjudication for
the settlement of any claim or
dispute pending before any
court, chief or head of family
in respect of the administration
or distribution of the estate of
S.K. Opoku, deceased. Hence,
even if the Court of Appeal had
agreed with the High Court that
the house in dispute belonged to
the deceased, neither section 1
nor section 21 (1) of the Law
could be applied to displace the
applicable customary law rules
and the criticism of the Court
of Appeal’s judgment in this
regard by learned counsel for
the defendants was wholly
unmeritorious. Ground (4) of the
Defendant’s grounds of appeal is
accordingly dismissed.
Grounds 2 & 3
My Lords, the law is quite
clear. The appeal court should
not upset findings of fact made
by a trial judge unless its
findings are not supported by
the evidence on record or unless
the trial court has drawn wrong
inferences from the facts found.
Ground (1) is that the judgment
of the Court of Appeal is
against the weight of evidence.
The Court of Appeal held that
the trial High Court judge made
fundamental errors in her
evaluation of the evidence with
the result that her judgment was
completely flawed. I have
painstakingly examined the
evidence and have confirmed that
the Court of Appeal was right in
the conclusion it came to. In
the circumstances, Grounds 2 and
3 fail and are dismissed
accordingly.
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
MRS. G. T. WOOD
JUSTICE OF THE SUPREME COURT
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
PROF. T. M. OCRAN
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Kwablah Senanu for the Defendant
Appellant
Frempong Boadu for the
Respondent.
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