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Property -
Ownership - Recovery
of possession - Whether property
in dispute
belong to Kwabena
Apenteng. -Whether the property
was acquired by her late husband
of plaintiff-- Whether or not an
indenture executed in the name
of Kwabena Apenteng without
more, is not sufficient proof
that he owned the property in
dispute.- Whether by computing
time for adverse possession to
commence, did Kwabena Apenteng
forfeited any interest he had in
the property as the statutory
period of 12 years has long
lapsed.- Whether resulting trust
was created with Kwabena
Appenteng being the legal owner
and Rexford Aye Darko the
beneficial owner of the said
House
HEADNOTES
The Plaintiff by his
amended statement of claim in
support of the endorsement
averred that he is the owner of
the house in which the 1st
Defendant resides. He averred
that, he purchased the house
from it’s previous owner,
Kwabena Appenteng, also
deceased. He further averred
that, all attempts to let the 1st
Defendant quit the said house
and give him vacant possession
have been unsuccessful, hence
the issuance of the writ against
her. The 1st
Defendant by her amended defence
naturally denied the Plaintiffs
claims. On the contrary, she
asseverated that the property in
dispute was built by her
deceased husband, Rexford Aye
Darko in the 1950’s. She further
contended that, she and the
husband lived in the house after
completion in or about 1957
until in or about 1959 when it
was rented for use as the
Russian Embassy. After the
Russians left the house, she
went back to live in the house
after her return from England to
Ghana after the 1966 coup and
has since been staying in the
said house. On their part, the 1st
and 2nd Co-Defendants
also denied the claims of the
Plaintiff. They also averred
that the disputed property
belongs to Rexford Aye Darko and
that it has always been the
matrimonial house of the
deceased and the 1st
Defendant. They further contend
that, after the death of the
husband of the 1st
Defendant, the property was
conveyed by the 1st
Co-Defendants to the 2nd
Co-Defendants and that the 1st
Defendant has been living in the
said property through the
license granted her by the 2nd
Co-Defendants.
HELD :- We do not see the
relevance of this quotation in
relation to the purchase of this
property. The plaintiff is not
claiming to be innocent
purchaser for value without
notice. And with the court
having declared his vendor to be
the rightful owner of the
property, his failure or
deliberate refusal to ascertain
the status of defendant who was
in occupation, was of no moment.
He took a risk and trusted his
vendor and he has been proved
right. This ground of appeal
also fails. We find no merit in
the appeal as a whole and so
same is dismissed. The judgment
of the Court of Appeal is
affirmed.
DISSENTING -
In the premises, I will allow
the appeal filed by the
Defendants against the judgment
of the Court of Appeal dated 4th
February 2016. I accordingly set
the judgment of the Court of
Appeal aside and in it’s place,
restore the judgment of the
Circuit Court dated 21st
December 2012. Judgment is
therefore entered for the 1st
Defendant, 1st and 2nd
Co-Defendants respectively.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
Brown v. Quashigah
(2003-2004) SCGLR
Tuakwa v. Bosom(2001-2002)
SCGLR61
Aryeh and Akakpo v Ayaa Iddrisu
(2010) SCGLR
891
Djin
v Musah Baako (2007)-2008) SCGLR
687
Re Asere Stool; Nikoi Olai
Amontia iv (substituted by Tafo
Amon ii v. Akotia Oworsika 111
substituted by Laryea Ayiku iii
(2005-2006) SCGLR 637
Duah v Yarkwa (1993—94) GLR 217
Ussher v Darko [1977] 1 GLR 476
In Re Koranteng (Decd)
[2004-2005] SCGLR 1039 at 1042
Djin v Musah Baako [2007-2008]
SCGLR 687.
In Re Neequaye (Dec’d) Adea
Kotey v Kootse Neequaye [2010]
SCGLR 348.
Abbey & Others v Antwi [2010]
SCGLR, 17 at 20
Klu v Konadu Apraku [2009] SCGLR
741 at 743.
Boateng v Dwinfour [1979]
GLR 360
Achoro v Akanfela
[1996-97] SCGLR 209,
Obeng v Assemblies of God
Church, Ghana [2010] SCGLR 300,
Gregory v Tandoh IV &
Hanson [2010] SCGLR 971.
Oppong Kofi & Others v
Attibrukusu III [2011] 1 SCGLR
176 at 178
BOOKS REFERRED TO IN JUDGMENT
Ghana Land Law and
Conveyancing, Second Edition
page 396 by B. J. Da Rocha and
CHK Lodoh
DELIVERING THE LEADING JUDGMENT
BAFFOE-BONNIE, JSC:-
COUNSEL.
YONY KULENDI WITH HIM
DANIEL SAGO OSEI AND CHARLES
TETTEH AND HARRIET DODDO FOR THE
DEFENDANTS/RESPONDENTS/APPELLANTS.
A. G. BOADU FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
BAFFOE-BONNIE, JSC:-
The facts in this case are
fairly simple and
straightforward. The plaintiff/
appellant/ respondent
(hereafter, plaintiff) issued
the writ in the Circuit Court
against the first defendant
alone, claiming recovery of
possession of house number
C822/4, formerly known as
Russian Embassy, order of
ejection and Mesne profits. His
evidence in support of his
claim, both in his statement of
claim and before the trial
Circuit Court was very
consistent. In 2005, he
purchased the property in
dispute from one Kwabena
Apenteng. Kwabena Apenteng told
him the property was his
personal property. Apenteng
executed in his favour an
indenture, which he tendered in
evidence. He testified that in
proof of his ownership of the
property, Kwabena Apenteng gave
him the building permit as well
as drawings and designs of the
house which all bore his name.
He tendered those documents too.
He later obtained a land
certificate which he also
tendered. After the purchase,
the plaintiff said Kwabena
Apenteng impressed upon him that
the defendant, who is a wife to
his deceased brother, Rexford
Aye Darko, was in occupation so
he had given her a year’s notice
to vacate. After the year the
defendant refused to vacate
hence this action.
The
defendant/respondent/appellant(hereafter,
defendant), denied the claim of
the plaintiff saying the
property was acquired by her
late husband and that she has
lived in that house as her
matrimonial house. Initially she
said the husband bought the
property from one Geoffrey Asare
in 1974. Later, after plaintiff
had given evidence and tendered
documents in support of his
claim, the defendants were
permitted to amend their defence
saying the property was acquired
in the 1950s and that the
building was constructed by
Micheletti company. Since the
death of her husband she has
been permitted to stay there by
the administrators of the
estate. The Trustee of the
Estate of Rexford Ayeh Darko,
and Okofoh Estate Ltd, the
administrators, applied and they
were joined as co-defendants.
Except where it becomes
necessary to refer to them as
either 1st defendant
or co-defendants, they shall be
referred to as defendants.
The defendants in their
evidence were ad idem on the
fact that the property was not
acquired by Kwabena Apenteng,
plaintiff’s grantor, but rather
Rexford Ayeh Darko, !st
defendant’s husband. As proof of
this the defendants said the
plaintiff’s grantor never lived
in that house and that anytime
he visited the house he passed
the night in the boys quarters.
Further, the property was rented
out by Rexford to the Russian
Embassy, and any revenue
accruing therefrom, was enjoyed
solely by Rexford to the
exclusion of Kwabena Apenteng or
anybody else. Again, all
outgoings on the building
including property rates, and
other utilities are paid by the
estate of Rexford Darko in his
name. It was their case that the
property was acquired by Rexford
Darko in the name of his
brother. When the plaintiff
pointed out that the property
was leased to the Russian
Embassy by Rexford Darko only
acting as the lawful attorney of
Kwabena Apenteng, as narrated in
the lease hold agreement, the
defendant’s answer was that as a
businessman Rexford Darko had
some ‘issues’ with the
government of the day that is
why he used his brother’s name
in the transaction with the
Russian Embassy. Concluding
their evidence, the defendants
portrayed the plaintiff’s vendor
as a man of no substance who
lived virtually at the financial
mercy of the late Rexford Ayeh
Darko.
Inspite of the copious
documentary documents to the
contrary, the trial Circuit
Court placed a lot of premium on
the oral evidence of the
defendants, particularly, the
fact that the defendant has
lived in the disputed property
for a long time without let or
hindrance from the plaintiff’s
grantor, and gave judgment in
favour of the defendants.
Aggrieved, the plaintiff
appealed to the Court of Appeal
on the sole ground that the
judgment was against the weight
of evidence. After reviewing the
submissions of both counsel and
making copious references to the
evidence adduced at the trial,
their Lordships concluded as
follows,
‘’We have looked at the
judgment of the trial judge and
have no doubt that the judgment
is not based on the facts or
evidence which was led at the
trial but on the deductions and
observations of the trial judge.
A trial court owes it as a duty
to resolve the primary facts,
making findings on relevant
matters necessary to establish
the claim or defence of the
parties, state her findings and
apply the law.’’(pg 409)
‘’Had the trial judge analysed
the evidence placed before her
and not relied on her sentiments
she would have arrived at a
conclusion different from what
she did. We find that the
plaintiff satisfied the duty of
producing evidence in proof of
his claims and is entitled to
judgment. We thus set aside the
judgment of the trial
court.’’(pg 413)
Dissatisfied by the
judgment of the Court of Appeal,
the defendants have mounted this
appeal before us on the
following grounds;
a.
The judgment is against the
weight of evidence
b.
The Court of Appeal erred in law
and in fact when it failed to
consider the fact that in the
circumstance and on the
evidence, a resulting trust was
created with Kwabena Apenteng
being the legal owner and
Rexford Ayeh Darko the
beneficial owner of House number
C 822/4
c.
The Court of Appeal misdirected
itself in law and in fact when
it held that there was no
adverse possession as time only
began to run against Kwabena
Apenteng in 2005 when the
property was sold and the
defendants refused to yield
possession of the house to the
plaintiff herein.
PARTICULARS OF MISDIRECTION
i.
There is no evidence on record
of consent by Kwabena Apenteng
to the first defendant living in
the house
ii.
There is no evidence of Kwabena
Apenteng having notified the
first defendant to vacate the
house in 2005
iii.
On the contrary there is
evidence of Kwabena Apenteng’s
knowledge of the use of the
property by the Defendants as
their bona fide property since
1960.
d.
The Court of Appeal failed to
rule as a finding of fact that
the Purported purchase of the
property by the Respondent
herein for a surprisingly low
value of GHC10,000 while the
defendant was in occupation, and
without any investigations as to
her interest in the said
property, smacks of bad faith
for which he should not be
permitted to take advantage.
e.
The Court of Appeal was wrong in
setting aside the findings of
fact of the trial judge and
substituting its own findings
without sufficient and valid
reasons.
Before us the defendants have filed a
50-page statement of case in
which they have argued the
grounds of appeal. The
submissions before us are no
different from the one made
before the Court of Appeal and
same can be summarised as
follows;
On grounds A and E which were argued
together, counsel submitted that
the mere fact that the documents
on the disputed property were in
the name of plaintiff’s vendor
was not conclusive of the fact
that he owned it.
That, there were many pieces of
evidence from which to deduce
that the property was indeed
owned by Rexford Darko and that
the plaintiff’s vendor held it
in trust for Rexford.
Such pieces of information included
the fact that
(a)the plaintiff’s vendor never lived
in that house,
(b)save for the period of time when
the Russian Embassy was in
occupation, the property has
been the matrimonial home of the
defendant and her late husband,
(c) the plaintiff’s vendor only had
access to the boys quarters
anytime he visited,
(d)there was evidence that Kwabena
Apenteng held some properties in
trust for the late Rexford which
he later re-conveyed to the
estate of Rexford Ayeh even
after his death, example exhibit
6, a house at Kokomlemle.
Further, it was Defendants husband who
rented out the property to the
Russian Embassy on the
intervention of the late Dr
Kwame Nkrumah, and he enjoyed
all revenues and paid all
outgoings including property
rates.
All these should be weighed together
with the emphatic testimonies of
all the defence witnesses to the
fact that the property was
actually built by Rexford Darko,
against the unsubstantiated
evidence that the property was
owned by plaintiff’s vendor.
At paragraph 87 at page 37 of his
written submissions counsel
wrote,
“My lords, the appellants (meaning
defendants) and DW1 all
maintained under cross
examination that the disputed
property was built by Rexford
Aye Darko on or about 1956. On
the contrary, the respondent and
his sole witness did not proffer
the least bit of evidence to
show how Kwabena Appenteng came
by the property. My lords, we
submit that in the circumstances
of this case, an indenture
executed in the name of Kwabena
Apenteng without more, is not
sufficient proof that he owned
the property in dispute.”
Counsel concluded that the Court of
Appeal in setting aside the
judgment of the trial Circuit
Court drew wrong inferences and
arrived at conclusions not borne
out by the record.
On ground B, counsel submitted that
there was enough evidence on
record to support the contention
that the property was purchased
by Rexford Darko and that
plaintiff’s vendor only held
same in trust for Rexford Darko.
The pieces of evidence referred
to here are no different from
those referred to in arguing
grounds A and E. Counsel
referred to the evidence of
defendant and that of Boateng
Darko, to the effect that
Rexford Darko was indeed a rich
person who had several
properties which included the
property in dispute.
On ground C, defendants had argued
before the Court of Appeal to
the effect that the plaintiff’s
vendor’s interest in the
property, if any, would have
been extinguished by now because
of adverse possession claimed by
the defendants. So any claim
would be statute barred. The
Court of Appeal however ruled
that time began to run only when
the defendant refused to yield
vacant possession when the
property was sold to plaintiff.
Before us counsel’s submission
on this ground concluded as
follows;
“My Lords, we reiterate that Rexford
Ayeh Darko received rent in
respect of the property, paid
all the utilities, property
rates and together with the
first appellant, undertook
significant changes and
renovations to the property (not
borne out by the record) all
without any protest from Kwabena
Apenteng.
Therefore, from whichever angle you
compute time for adverse
possession to commence, we
submit that Kwabena Apenteng has
forfeited any interest he had in
the property as the statutory
period of 12 years has long
lapsed.’’
The defendants’ final ground to be
argued was on the ‘surprisingly’
low amount of 10,000GHC which
the plaintiff claimed to have
paid for the house while the 1st
defendant was in occupation and
without any investigations as to
her interest in the said
property. Counsel cited a number
of cases notably Brown v.
Quashigah (2003-2004)
SCGLR, where this court held
that
‘’Purchasers of land who ignore signs
of possession by a party other
than their vendor on the land,
do so at their own risk’’.
Counsel then concluded (on pg 33 par
79) as follows,
‘’My Lords, it is our submission that,
taking into consideration the
surprisingly low value of GHC
10,000 at which the disputed
property was purchased coupled
with the deliberate failure and
refusal of the respondent to
ascertain the nature of the
interest of the 1st
Appellant in the Property, the
sale of the property by Kwabena
Apenteng to the respondents,
smacks of bad faith. It is
fraudulent and for this reason
we humbly invite your Lordships
to declare the sale and purchase
of the property by the
respondent as null and void and
leave the respondent to wallow
in his self-inflicted grief.’’
On his part the plaintiff filed an
8-page written submission
generally supporting the
conclusions of the Court of
Appeal and concluded that the
appeal has no merit and must be
dismissed.
In this judgment we intend to deal
with the various grounds of
appeal as filed and as argued by
the defendants starting with
grounds A and E.
GROUNDS A and E
As the judgments of both the trial
Circuit Court and the Court of
Appeals turned on the evaluation
of the evidence on record, and
since the grounds of appeal are
mixed law and fact, we yield to
the oft cited principle laid
down in the case of Tuakwa v.
Bosom(2001-2002) SCGLR61 that
‘’appeal is by way of rehearing
particularly where the appellant
alleges in his notice of appeal
that the decision of the trial
court is against the weight of
evidence. In such a case, 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 documentary
evidence adduced at the trial
before arriving at its decision,
so as to satisfy itself that on
a balance of probabilities the
conclusions of the trial judge
are reasonably or amply
supported by the evidence.’’ See
also
Aryeh and Akakpo v Ayaa Iddrisu
(2010) SCGLR 891and
Djin v Musah Baako (2007)-2008)
SCGLR 687
We intend therefore to examine the
evidence as adduced at the
trial, both oral and
documentary, and come to a
conclusion as to whether the
correct inferences were drawn
and whether the conclusions
arrived at by the trial judge
were supportable by the evidence
on record.
The plaintiff’s evidence at the trial
as borne out by the record is
simple. He testified that he
purchased the house in dispute
from Kwabena Apenteng who duly
executed exhibit B on 5th
October 2005 Exhibit B is
registered at the Lands Registry
The original indenture showing
ownership of the plot by Kwabena
Apenteng was also tendered as as
Exhibit H. In further proof of
Kwabena Apenteng’s ownership of
the property in dispute the
plaintiff tendered the building
plans and designs and building
permit, both bearing the name
Kwabena Apenteng. Against these
pieces of solid documentary
evidence the defendants just
mounted the box and repeated
what had been put in their
amended statement of defence to
the effect that Rexford Ayeh
Darko acquired the property and
put the name of his elder
brother on it.
Another documentary tendered by the
plaintiff that completely
destroyed the defendants’ case
was the agreement signed with
the Russian Embassy for the
leasing of the property in
dispute. In this lease hold
agreement executed with the
Russian Embassy, Rexford Darko
signed as the lawful attorney of
Kwabena Apenteng who is
described as the owner. We find
this document executed by
Rexford Darko as evidence
against self-interest. In the
case of Re Asere Stool; Nikoi
Olai Amontia iv (substituted by
Tafo Amon ii v. Akotia Oworsika
111 substituted by Laryea Ayiku
iii (2005-2006) SCGLR 637
this court held as follows;
“Where an adversary has admitted a
fact advantageous to the cause
of a party, the party does not
need any better evidence to
establish that fact than by
relying on such admission, which
is an example of estoppel by
conduct”
Defendants’ attempt to explain this
anomaly was totally
unconvincing. Their explanation
was that as a businessman Rexfod
Darko had some ‘’issues’’ with
the government of the day that
is why he used the name of his
elder brother to execute the
lease. Whatever these issues are
were never given in court. We
find this explanation untenable.
This picture of a person
building a house in somebody
else’s name then renting same
out and describing himself as a
lawful attorney for the owner,
as being painted by the
defendants, is not consistent
with normal practice. It is on
record that Kwabena Apenteng was
Illiterate. What is rather
consistent with normal practice
is where an illiterate person
like Kwabena Apenteng builds a
house but when it comes to
renting it out to an entity like
Russian Embassy, he permits his
educated younger brother to
represent him as his lawful
attorney in the said
transaction. And even then this
fact of Rexford Darko leasing
the property to the Russian
Embassy but signing as the
lawful attorney of Kwabena
Apenteng the owner thereof was
explained away by PW1 in his
evidence in chief, (pg 47 of the
ROA). He said
“The house is known as the Russian
Embassy because my father rented
it out to the Russians formerly
USSR. There is a tenancy
agreement between my father and
the Russian Embassy, (he then
tendered the agreement as
Exhibit J). In this transaction,
RA Darko acted as the true and
Lawful Attorney of Kwabena
Appenteng and he signed as such.
The property belongs to my
father and not RA Darko as the
defendants are asserting.
My father told me that he allowed RA
Darko to act as his attorney
because apart from being
brothers he and R A Darko formed
a limited liability company by
the name Mpotima Ltd. My father
told me there was a court case
and through that the business
collapsed so he had to leave the
business and go into farming so
he had to allow his junior
brother then in Accra to take
care of his properties including
the one in dispute. So because
the business was in debt he had
to use the rent accrued from the
property to pay the debts owed”
Again, if the defendants are to be
believed then this property was
the first property put up by
Rexford Darko. Boateng Darko who
gave evidence as DW1 said this
in evidence in chief.
“I know the property known as Russian
Embassy. In 1954 my brother RA
Darko came for me from the
village Adeiso and brought me to
Accra. In 1955 he enrolled me to
school. We were at Batakari
laundaries near Sadisco Traffic
lights. He later informed me
that he had acquired a plot of
land at Kokomlemle. He said that
the land was being developed by
some white men. My brother said
when the building was finished
we would move into it. The
building was completed and we
moved into it. It was myself, RA
Darko and defendant who went to
live in that building.”
Under cross examination he confirmed
this evidence as follows;
Q. Was the Russian Embassy house RA
Darko’s first house from your
evidence?
A. Yes, that is correct.
The 1st defendant’s
evidence also confirmed that
this was RA Darko’s first
building. The defendant’s
explanation as to why the
leasehold agreement described R
A Darko as lawful attorney of
the OWNER Kwabena Apenteng was
that, RA Darko had “issues” with
the government. What they have
not been able to do is to
explain why all the documents on
the land and the building are in
the name of Kwabena Apenteng.
They have not been able to
explain because it is not true
that the property was acquired
by RA Darko.
Throughout the trial and in counsel’s
submissions, Rexford Aye Darko
was portrayed as very rich while
Kwabena Apenteng was
impecunious. Indeed in her
evidence in chief the 1st
defendant deliberately skipped
the early part of Kwabena
Apenteng’s business life and
said,
‘’Mr Kwabena Apenteng was a dealer in
logs. He run a loss in this
business so he commenced trading
in cocoa. This business also
failed. I never saw any property
owned by Kwabena Apenteng in his
life time’’
DW1 also testified as follows;
(pgs197-198 of ROA),
‘’R.A.Darko gave Kwabena Apenteng
money to be purchasing cocoa
farms at Nyakokoa for sale to
the government. However, he made
losses. He took money from a lot
of people and so he was
arrested. R.A. Darko sent me and
one of his clerks named Mr
Yirenkyi to go and bail him’’
Yet, as far back as 196os this same
Kwabena Apenteng together with
RA Darko and other shareholders
had formed a company Mpotima Ltd
and brought series of actions
against Bank for West Africa.
In exhibit L which is the record of
proceedings in the case between
Kwabena Apenteng and Bank for
West Africa and Haynes appearing
at pages 291, 292 and 293 of the
record of appeal, Rexford Darko
himself testified to the
industry and resourcefulness of
Kwabena Apenteng. On page 291 of
the ROA Rexford Darko stated,
‘’I did not help the plaintiff to
build his house financially’’
At page 293 of the ROA Rexford again
said,
‘’I remember that the plaintiff paid
cash for the Christianborg
property and I was present. I
cannot remember how he purchased
the other properties’’
Then at pg 292 of the ROA Rexford
Darko testified as follows;
“Apenteng is now a farmer at Sushenso,
Wassa district. He has four
buildings and one land made up
of two twin buildings. The title
deeds of all are with the
defendants. In February 1959 the
plaintiff negotiated to sell C
381/4 kokomlemle for 250pounds
to one yaw Amoako and Kwadjo
from Akwamu…”
All these pieces of evidence were
given in May and June 1965 in
the suit referred to above, by
no means a person than Rexford
Ayeh Darko 1st
defendant’s husband. And they
attest to the fact that even in
the 1950s Kwabena Apenteng was a
man of substance who had
acquired substantial properties.
It is possible that from the
heights of substance in in the
‘50s and early ‘60s, Kwabena
Apenteng might have fallen to
the lows as described by
defendants, but it still does
not take away the fact that the
plaintiff’s vendor was very
capable financially at the time
this property was acquired.
Does it lie in the mouth of Mrs Darko,
who was also part of these legal
suits, to describe her brother
in law as if he was an
impecunious wretch who was
living at the financial mercy of
her husband? Or is it a case of
selective amnesia?
Yes, there is no denying that at the
time of his death RA Darko was
rich. The man who was known to
be associated with so many
companies, one of which was
Mechanical Lloyd, must have been
very rich. But even he started
from somewhere!
From the evidence on record the
plaintiff’s contention that the
property belonged to Kwabena
Apenteng was supported by solid
documentary evidence while the
defence case that the property
belonged to Rexford who acquired
same in his elder brother’s name
is not supported. Even some of
the documents tendered in this
case by the defendants did not
bear any relationship with the
property in dispute as they
related to other properties. For
example, the bill for payment of
property rate is not referable
to the property in dispute. Yet,
the defendants cleverly tendered
same alongside the utility bills
to deceive the court and bolster
their case. It was only upon
close scrutiny that the court
realised that they were not
referable to the property in
dispute. This we see as
deliberate lack of candour on
the part of the defendants.
On the receipts for the payment of
utility bills, we find the
reasoning of the Court of Appeal
quite sound. Payment of utility
bills does not prove ownership,
particularly, when as in this
case, it is not disputed that
the defendant has lived in the
property all along. We believe
the defendants were not candid
with the court, and the trial
judge should have seen through
this.
We have looked at the numerous pieces
of documentary evidence tendered
in this case and we are
convinced that they all point to
the plaintiff’s vendor, Kwabena
Apenteng. as the owner of the
disputed property.
In the case of Duah v Yarkwa
(1993—94) GLR 217, it was
held that whenever there was in
existence a written document and
conflicting oral evidence, the
practice of the court was to
lean favourably towards the
documentary evidence especially
if it was authentic.
The authenticity of all of the
documents on the property
tendered by the plaintiff has
not been questioned. On the
other hand the defendants gave
conflicting evidence as to how
and when the property was
acquired. Whilst their original
evidence was that the property
was purchased from one Geofrey
Asare in 1974, they later
amended their statement of
defence to say that Rexford
Darko acquired the plot and
contracted Michelleti company
ltd, to construct the building
in the early ‘60s.
It is our belief that if the trial
Circuit Judge had evaluated the
evidence on record properly, she
would not have come to the
conclusion she did. The appeal,
on this ground, fails.
GROUND B
In view of our holding that we believe
that the property was acquired
by Kwabena Apenteng in his own
right and for himself, we do not
find any need to comment on this
ground of appeal which suggests
that the property was purchased
by Rexford Darko but was held in
trust for him by Kwabena
Apenteng. No evidence was put
forward for us to consider
resulting trust.
GROUND C.
Before the Court of Appeal
the defendants had submitted
that the plaintiff’s vendor had
stood by while the defendant
lived in the house as her
matrimonial home and never laid
any claim to it inspite of the
claim of adverse possession by
the defendants.
Any interest the
plaintiff’s vendor had if there
was any, had been extinguished
by passage of time and therefore
the action was statute barred.
The Court of Appeal held
that there was direct evidence
that when Kwabena Apenteng fell
on bad times he left his
businesses and properties in the
hands of Rexford Darko to manage
and pay his debts, hence the
rental of the disputed property
to the Russian Embassy by his
lawful Attorney.
The Court of Appeal opined
that as the occupation by the
defendant and her husband was by
the consent of Kwabena Apenteng,
there is no evidence of adverse
possession and that, time only
began to run against Kwabena
Apenteng in 2005 when the
property was sold and the
Defendants refused to yield
possession of the house to the
plaintiff herein. For all the
time that the defendant was in
occupation she was a licensee of
Kwabena Apenteng and became
adverse possessor after 2005.
We find no error in this
reasoning of the Court of Appeal
and therefore dismiss the appeal
on this ground too.
GROUND D.
This ground of appeal
seems to be in two parts. The
defendants seem to be
questioning the veracity of the
sale and or purchase of the
property at what they term a
surprisingly low price of
GHC10,000. It is their
contention that a property of
the nature as the one in
dispute, a two storey building
at Kokomlemle would be worth
more than 300,000 USD and so the
10,000ghc purchase price makes
the whole transaction smack of
fraud.
We do not see the locus
of the defendant in making this
argument seeing that they are
not the beneficiaries or
managers or trustees of the
estate of Kwabena Apenteng. Even
the son of Kwabena Apenteng, who
stands to gain from an
unencumbered property of his
deceased father, mounted the
witness box and gave evidence
that the property was actually
sold by his father to the
plaintiff. In deed the evidence
of Kwabena Apenteng’s son
suggested that the purchase
price was not the only
consideration for the sale of
the property to the plaintiff.
He said (pg 117),
’’When my father called
me, whatever arrangement he had
done with pricing in connection
with the property was limited to
me in that he said the plaintiff
had really helped him. That if
it had not been for the
plaintiff, after retiring from
active farming life would have
been very difficult for him
especially when he started
having troubles with his nephews
R.A. Darko’s children.’’
The second part of this
ground of appeal seems to
question the plaintiff’s failure
or refusal to make inquiries
about the ownership of the
property seeing that the
defendant was in occupation when
he allegedly bought it. Counsel
cited several cases particularly
Brown v Quashigah
(supra), where our esteemed
brother, Date Bah JSC made this
remark;
‘’Purchasers of land who ignore
signs of possession by a party
other than their vendor on the
land, do so at their own risk
and are liable to grief.’’
We do not see the
relevance of this quotation in
relation to the purchase of this
property. The plaintiff is not
claiming to be innocent
purchaser for value without
notice. And with the court
having declared his vendor to be
the rightful owner of the
property, his failure or
deliberate refusal to ascertain
the status of defendant who was
in occupation, was of no moment.
He took a risk and trusted his
vendor and he has been proved
right. This ground of appeal
also fails.
We find no merit in the appeal
as a whole and so same is
dismissed. The judgment of the
Court of Appeal is affirmed.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA
(MRS)
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:-
PREAMBLE
I have had the benefit of
reading the judgment of my
respected brother, Baffoe-Bonnie
JSC at a time I had almost
completed this opinion. However,
I have given it the best
consideration I can, I find
myself unable, in the end to
subscribe to it. On the
contrary, I think that Kwabena
Appenteng was fake in the way he
dealt with the disputed
property, and the Plaintiff
reckless in his dealings with
him, I feel I must answer the
points of substance dealt with
in this appeal, precisely in the
manner that the learned trial
Judge dealt with them instead of
maintaining the Court of Appeal
decision.
I now proceed with my
dissenting opinion.
This is an appeal by the
Defendants/Respondents/Appellants,
hereinafter Defendants, against
the judgment of the Court of
Appeal dated 4th
February 2016 which was in favor
of the
Plaintiff/Appellant/Respondent,
hereafter Plaintiff.
BRIEF FACTS OF THE CASE
The Plaintiff by his writ
claimed against the 1st
Defendant the following reliefs
in the trial Circuit Court:-
a. Recovery of
possession of house No. C822/4
formerly Russian Embassy
b. Order of
ejection
c. Mesne Profits
The 1st
Defendant entered appearance and
filed defence. Later upon
application, the 1st
Defendants, who are the Trustees
of the Estate of Rexford Aye
Darko, (deceased husband of the
1st Defendant) were
joined as 1st
Co-Defendants.
The 2nd
Co-defendants Okofoh Estates
Limited, the managers of the
property and those who granted
the 1st Defendant a
licence to continue to reside in
the house, were upon application
joined as 2nd
Co-defendants.
The Plaintiff by his
amended statement of claim in
support of the endorsement
averred that he is the owner of
the house in which the 1st
Defendant resides. He averred
that, he purchased the house
from it’s previous owner,
Kwabena Appenteng, also
deceased. He further averred
that, all attempts to let the 1st
Defendant quit the said house
and give him vacant possession
have been unsuccessful, hence
the issuance of the writ against
her.
The 1st
Defendant by her amended defence
naturally denied the Plaintiffs
claims. On the contrary, she
asseverated that the property in
dispute was built by her
deceased husband, Rexford Aye
Darko in the 1950’s.
She further contended
that, she and the husband lived
in the house after completion in
or about 1957 until in or about
1959 when it was rented for use
as the Russian Embassy. After
the Russians left the house, she
went back to live in the house
after her return from England to
Ghana after the 1966 coup and
has since been staying in the
said house.
On their part, the 1st
and 2nd Co-Defendants
also denied the claims of the
Plaintiff. They also averred
that the disputed property
belongs to Rexford Aye Darko and
that it has always been the
matrimonial house of the
deceased and the 1st
Defendant. They further contend
that, after the death of the
husband of the 1st
Defendant, the property was
conveyed by the 1st
Co-Defendants to the 2nd
Co-Defendants and that the 1st
Defendant has been living in the
said property through the
license granted her by the 2nd
Co-Defendants.
It is worthy to note that,
all the parties testified and
called witnesses. Plaintiff
testified and was cross-examined
by the Defendant and
Co-Defendants. Plaintiff called
Kwaku Darko Appenteng as PW1.
This witness is the son of
Kwabena Appenteng, the
Plaintiff’s vendor, and elder
brother of the 1st
Defendants husband.
The Plaintiff closed his
case after the evidence of PW1.
Thereafter, the Co-defendants
representative Rexford K. A.
Darko testified and was
cross-examined. 1st
Defendant, Janet Esther Darko
then testified and was
exhaustively cross-examined by
the Plaintiff’s lawyer.
Boateng Darko, a brother
to Kwabena Appenteng, the
Plaintiff’s vendor and the 1st
Defendants husband Rexford Aye
Darko, was next called as the
witness for the 1st
Defendant as DWI.
It must also be noted at
this stage that several
documents of title and of other
agreements all in respect of the
property in dispute as well as
those in respect of the
distribution of the Estate of
Rexford Aye Darko had been
tendered by the parties during
the trial. Some of these
exhibits will be referred to in
the main body of this judgment
JUDGMENT OF THE CIRCUIT COURT
After trial, the learned
Circuit Court Judge delivered
judgment in favour of the
Defendants and dismissed the
Plaintiffs case.
DECISION OF THE COURT OF APPEAL
Dissatisfied with the
decision of the Circuit Court,
the Plaintiff appealed the said
judgment to the Court of Appeal.
The Court of Appeal, in a
unanimous decision of 4th
February, 2016 allowed the
appeal, and set aside the
decision of the trial Circuit
Court and instead gave judgment
to the Plaintiff.
APPEAL TO THE SUPREME COURT WITH
SPECIAL LEAVE
Naturally dissatisfied
with the judgment of the Court
of Appeal, the Defendants filed
a Notice of Appeal against the
said judgment pursuant to
special leave granted by the
Supreme Court on 19th
May 2016.
GROUNDS OF APPEAL
The grounds of appeal
filed by the Defendants against
the Court of Appeal judgment are
the following:-
a. The judgment is
against the weight of evidence.
b. The Court of
Appeal erred in law and infact
when it failed to consider the
fact that in the circumstances
and on the evidence, a resulting
trust was created with Kwabena
Appenteng being the legal owner
and Rexford Aye Darko the
beneficial owner of House Number
C822/4.
c. The Court of
Appeal misdirected itself in law
and in fact when it held that
there was no adverse possession
as time only began to run
against Kwabena Appenteng in
2005 when the property was sold
and the Defendants/ Respondents/
Applicants refused to yield
possession of the house to the
Plaintiff/Appellant/Respondent
herein.
PARTICULARS OF MISDIRECTION
1. There is no
evidence on record of consent by
Kwabena Appenteng to the 1st
Defendant/Respondent/Appellant
living in the house.
ii. There is no
evidence of Kwabena Appenteng
having notified the 1st
Defendant/ Respondent/Appellant
to vacate the house in 2005.
iii. On the
contrary there is evidence of
Kwabena Appenteng’s knowledge of
the use of the property by the
respondents as their bonafide
property since 1960.
d. The Court of
Appeal failed to rule as a
finding of fact that the
purported purchase of the
property by the Respondent
herein for a surprising low
value of GH¢10,000.00 while the
1st Appellant herein
was in occupation, and without
any investigations as to her
interest in the said property,
smacks of bad faith for which he
should not be permitted to take
advantage.
e. The Court of
Appeal was wrong in setting
aside the findings of fact of
the trial Judge and substituting
its own findings without
sufficient and valid reasons.
ANALYSIS OF THE GROUNDS OF
APPEAL
I have carefully perused
the incisive statement of case
of learned counsel for the
Defendants, Mr. Yonny Kulendi,
as well as that of learned
counsel for the Plaintiff, Mr.
A. G. Boadu. In this rendition,
I will follow the methodology
adopted by learned Counsel for
the Defendants by arguing
grounds (b), (c) (d) in that
order and thereafter grounds (a)
and (e) together in the
resolution of this appeal.
GROUND B
THE COURT OF APPEAL ERRED IN LAW
AND IN FACT WHEN IT FAILED TO
CONSIDER THE FACT THAT IN THE
CIRCUMSTANCES AND ON THE
EVIDENCE, A RESULTING TRUST WAS
CREATED WITH KWABENA APPENTENG
BEING THE LEGAL OWNER AND
REXFORD AYE DARKO THE BENEFICIAL
OWNER OF HOUSE NUMBER C822/4.
Learned Counsel for the
Defendants argued in his
statement of case that, even
though the property in dispute
was bought in the name of
kwabena Appenteng, he held the
said property in trust for
Rexford Aye Darko who was the
beneficial owner of the
property, and in whom a
resulting trust had been
created.
In this respect, it must
be noted that, the Indenture
evidencing the transaction in
respect of this disputed
property is marked as Exhibit H,
tendered by Plaintiff on the 17th
June 2011. By that document, the
property was conveyed to the
Plaintiff’s vendor, Kwabena
Appenteng by one David Cofie
Odonkor on the 15th
day of August 1957. Thereafter,
it is not clear why Kwabena
Appenteng, on the 20th
September 2002 indexed a
Statutory Declaration in respect
of the said property stamped as
No Ac 3895/57 in his name whilst
he already had a conveyance in
his name.
All the above recitals are
indeed stated in Exhibit B which
is the document of title that
kwabena Appenteng effected in
respect of the disputed property
to the Plaintiff herein. This
Exhibit B is dated 5th
October 2005, with Land Registry
No. 111/2006.
It is also an undeniable
fact that, since the purchase of
the land and the construction of
the house (known as the Russian
Embassy) it is only the 1st
Defendant and her late husband,
R. A. Darko who have lived in
this house apart from tenants
like the Russian Embassy, and
the Ugandan High Commission for
a very brief period only.
What is of significant
interest is that, when this
property came to be leased to
the Russian Embassy, reference
Exhibit J, tendered by Plaintiff
on 17th June 2011, R.
A. Darko was the Lawful
Attorney of the said Kwabena
Appenteng, and it was to him
that rents were paid.
This is how this Exhibit
J, captures the recitals thus:-
“This indenture is made
the 2nd day of July,
in the year of our Lord One
Thousand nine hundred and fifty
nine (1959) Between Kwabena
Appenteng of Accra in the
Eastern Region of Ghana
(hereinafter called “THE LESSOR”
which expression where the
context so requires or admits
shall include the Reversioner
for the time being immediately
expectant upon the term hereby
created) acting by his true
and Lawful Attorney Rexford Aye
Darko of the one part and THE
GOVERNMENT OF THE UNION OF
SOVIET SOCIALIST REPUBLIC
acting by IVAN SEMEHOBIVH
BLAKOU…”
The point urged to be
noted is that, where and when
it mattered most, when the
disputed property was leased out
at a rental of £2000.00 for six
months, it was Rexford Aye Darko
who was the lawful Attorney.
That meant it was to him that
rents would be paid and were
paid.
Indeed, the evidence on
record is that, Kwabena
Appenteng never received rent
payment from the Russians in
respect of this property.
Learned Counsel for the
Defendants therefore submitted
that, the above specie of
conduct amounted to Kwabena
Appenteng, holding the property
in trust for the deceased
husband of 1st
Defendant, Rexford Aye Darko who
was the beneficial owner. He
argued that a resulting trust
may be created where one person
purchases property in the name
of another. Learned counsel then
referred to a passage by the
learned Authors, BJ da Rocha
and CHK Lodoh in their Book,
Ghana Land Law and Conveyancing,
2nd Edition,
where writing on the principle
of Resulting Trust at 114 they
stated thus:-
“The conveyance need not,
on the face of it, state that
the price has been paid by a
person different from the one to
whom the conveyance is made. It
does not even matter if the
conveyance contains a receipt
clause. Extrinsic evidence is
admissible to prove who actually
paid the purchase price.”
In this regard, it is
necessary to refer copiously to
the evidence of the 1st
Defendant in support of this
extrinsic evidence as follows:-
“My name is Janet Esther
Darko. I live at Kokomlemle. I
am unemployed. I have lived
there for about fifty years. The
house number is C/822/4, I only
got to know plaintiff in this
court. I have not seen him
anywhere before, I do not own
the property in which I live. It
is owned by my husband who is
deceased. My husband has owned
this property for over sixty
years. We initially lived there
between 1957 and 58 then we
moved out when the Russians
rented the property.”
The above constitute
sufficient proof that only the 1st
Defendant and her husband have
lived in the disputed property
apart from the tenants since
it’s construction.
This means that the
Plaintiff’s vendor, Kwabena
Appenteng never performed any
overt acts of ownership or
possession in respect of this
house.
Secondly, it is only the 1st
defendant’s husband, R. A. Darko
who enjoyed the rent payments in
respect of this house, as per
Exhibit J.
Despite the above specie
of overwhelming evidence in
support of a resulting trust,
learned counsel for the
plaintiff, A. G. Boadu stated in
his statement of case as
follows:-
“The Court of Appeal’s
judgment is therefore correct.
Resulting trust does not arise
in this case. In the Book
Commentary and Cases on The Law
of Trusts and Equitable
Remedies, tenth edition by Di
Hayton, Resulting trust is
discussed in chapter 5. It
states, “Megarry J, has
classified resulting trusts from
the way in which they arise as
either being “automatic
resulting trusts” or “presumed
resulting trust”.
Learned counsel for the
Plaintiff proceeded further to
set out what constitutes a
resulting trust. In his opinion
since there has been no adverse
possession in this case, the
appeal must fail and that it
lacks merit and must be
dismissed.
In my candid opinion, the
above conclusions by learned
counsel for the Plaintiff
suggests very strongly that he
did not appreciate the contents
of the appeal record.
For example, Exhibit 2 is
a very important document whose
import must be dealt with
instantly.
On the 3rd of
March 2012, one Rexford K. A.
Darko a son of Rexford Aye
Darko, testified before the
trial Circuit Court as a
representative of the
Co-Defendants. During his
testimony, he tendered Exhibit
2, and this is how he led the
introductory evidence in support
of this document.
“My father is deceased.
After his death, all his
properties were put under the
management and ownership of
Okofo Estates Limited. Defendant
does not own this property
presently. There was a meeting
in our hometown Akropong-Akwapim
in respect of my father’s
properties between the
executions (sic) of my father’s
estate, some of us his children
and representatives from his
extended family.”
This meeting included one
Appenteng, my father’s elder
brother Papa Kojo Sekyi. Kwabena
Appenteng is also my father’s
older brother. The purpose of
this meeting was to settle the
extended family in so far as my
father’s properties were
concerned. The outcome of the
meeting resulted in a document
being drawn up and signed by the
executors of the estate on the
one part and Papa Kojo Sekyi and
Kwabena Appenteng on behalf of
the extended family.
This document gave certain
properties which included
houses, cars and some cocoa
farms and certain amounts of
money to the extended family.
I have the document
in question to tender. No
objection. Accepted and marked
Exhibit 2. Emphasis
I have had a critical look
at this Exhibit 2, and found it
to have had many children of the
deceased Rexford Aye Darko and
some of his siblings including
Kwabena Appenteng the
Plaintiff’s vendor present at
the meeting. In short, whilst
the children of the Estate of
the deceased Rexford Aye Darko
formed the first part of this
document, the maternal and
paternal families formed the 2nd
and 3rd parties
respectively.
I have also observed that,
in the Certificate of
Interpretation column of
this Exhibit 2, at page 6
thereof, the following
certificate appears:-
“These presents were read over,
interpreted and explained in the
Twi language by E. Darko Owiredu
of Edo Zip, Accra to Nana Oduro
Darko, Kwadwo Sekyi and Kwabena
Appenteng when they seemed to
understand the same perfectly
before executing and or making
their marks in the presence of
me Nii Odoi Annan and E. Darko
Owiredu and Rt. Rev. G. K.
Sintim-Misa who also executed
this deed as witnesses thereof”.
Emphasis
It should further be noted
that, during their lifetime,
judicial notice can be taken of
the fact that Nii Odoi Annan was
a reputed lawyer, and little
wonder therefore that he
prepared this Exhibit 2, and Rt.
Rev. G. K. Sintim-Misa was a
respected religious and church
leader, who was at one time the
Moderator of the Presbyterian
Church of Ghana.
Furthermore, this exhibit
2, contains significant
distribution of properties out
of the Estate of Rexford Aye
Darko to beneficiaries of
different descriptions,
including Kwabena Appenteng and
others. Of particular
importance is the following
statement in parts of this
exhibit which read as follows:-
“Kwadwo Sekyi and Kwabena
Appenteng are the surviving
elder brothers of the said
Intestate and uncles of the
settlors herein and representing
themselves and all others the
sisters of full blood of the
intestate.”
This meant that Kwabena
Appenteng must be deemed to have
fully understood the contents of
exhibit 2 before he signed.
Following the execution of
exhibit 2, Kwabena Appenteng
further gave an acknowledgment
in exhibit 3 in proof that all
the properties of his junior
brother Rexford Aye Darko given
to him as part of his
inheritance had been complied
with and duly received. The
disputed property herein was
never one of the properties that
the said Kwabena Appenteng was
given. It is also interesting to
note that, another property at
the same Kokomlemle was devolved
on him and his other brother as
part of their inheritance.
I am satisfied with the
contents of exhibits 2 and 3
that Kwabena Appenteng, never
had any rights of interest in
the disputed property. In any
case, judging from the eminent
persons who were present during
the execution of this exhibit on
27/4/1981, the contents therein
represent exactly what
transpired.
These were the findings of
fact that the learned trial
Judge made which unfortunately
were set aside by the Court of
Appeal without any basis
whatsoever.
Indeed, the fact that
Rexford Aye Darko during his
lifetime was an extremely
wealthy man cannot be disputed.
This was even confirmed by
P.W.1, Kwabena Appenteng’s son
who testified that “I came to
know that he later acquired a
lot of properties” which was a
reference to Rexford Aye Darko.
It is also part of the
record of appeal that both PWI
and DWI all stayed with the 1st
Defendant and her husband in
this disputed house and were
enrolled in schools
respectively. It is not
surprising therefore that DWI
during his evidence testified as
follows:-
“R. A. Darko gave Kwabena
Appenteng money to be purchasing
cocoa farms at Nyakokoa for sale
to the government. However, he
made losses. He took money from
a lot of people and so he was
arrested. R. A. Darko sent me
and one of his clerks named Mr.
Yirenkyi to go and bail him.”
From all the pieces of
evidence, both oral and
documentary, it is certain that
Rexford Aye Darko was a very
wealthy man and provided the
money for the purchase of the
land and for the construction of
the disputed house.
This therefore puts beyond
any shadow of doubt that Kwabena
Appenteng held House No. C.822/4
in trust for Rexford Aye Darko.
In this respect, I will
further rely on the very
respected case of Ussher v
Darko [1977] 1 GLR 476 at
holding 2, where it was held
that:-
“The Plaintiffs Vendor M,
in whose name the property was
purchased by E had legal title
to the property, but she held
that title as bare trustee; i.e.
on a resulting trust for the
purchaser.”
Another case on point is
the Supreme Court decision in
the In Re Koranteng (Decd)
[2004-2005] SCGLR 1039 at 1042,
holden 3 thereof which
states as follows:-
“In essence, a resulting
trust was a legal presumption
made by law to the effect that
where a person had purchased
property in the name of another,
that other person will be deemed
to hold the property in trust
for the true purchaser. It was a
trust implied by equity in
favour of the true purchaser or
his estate upon death. The
trust was regarded as arising
from the unexpressed or implied
intention of the true
purchaser.” Emphasis
From the available
evidence, and the current state
of the authorities on how a
resulting trust arises, it is
clear that the transactions
between Kwabena Appenteng and
his junior brother Rexford Aye
Darko was nothing other than a
resulting trust. This is
because, even though the legal
title remained in Kwabena
Appenteng, the equitable title,
from the conduct of the parties
amounted to a resulting trust in
favour of Rexford Aye Darko. In
that respect therefore, there
was no title left for Kwabena
Appenteng in the disputed
property to convey to the
Plaintiff. This ground of appeal
accordingly succeeds.
GROUND C
C. THE COURT OF APPEAL
MISDIRECTED ITSELF IN LAW AND IN
FACT WHEN IT HELD THAT THERE WAS
NO ADVERSE POSSESSION AS TIME
ONLY BEGAN TO RUN AGAINST
KWABENA APPENTENG IN 2005 WHEN
THE PROPERTY WAS SOLD AND THE
DEFENDANTS/ RESPONDENTS/
APPLICANTS REFUSED TO YIELD
POSSESSION OF THE HOUSE TO THE
PLAINTIFF/APPELLANT/RESPONDENT
HEREIN.
PARTICULARS OF MISDIRECTION
1. There is no evidence
on record of consent by Kwabena
Appenteng to the 1st
Defendant/Respondent/Appellant
living in the house.
ii. There is no evidence
of Kwabena Appenteng having
notified the 1st
Defendant/ Respondent/Appellant
to vacate the house in 2005.
iii. On the contrary
there is evidence of Kwabena
Appenteng’s knowledge of the use
of the property by the
respondents as their bonafide
property since 1960.
The Court of Appeal, in
dealing with the issue of
adverse possession, delivered
themselves thus:-
“On the submission by
counsel for the
defendants/respondents that the
defendants have acquired
possessory, title by their long
adverse possession, there the
evidence from PW1, a son and
administrator of Kwabena
Appenteng that when the latter
incurred the judgment debt he
left his business in the hands
of Rexford Darko to manage and
pay his debts, hence the rental
of the disputed property to the
Russian Embassy by his lawful
Attorney. As the occupation by
the defendant and her husband
who was also Kwabena Appenteng’s
brother, was by the consent of
Kwabena Appenteng, time would
begin to ran only when the
defendant showed adverse
possession i.e. when she refused
to vacate the property after
purchase by the Plaintiffs which
was in 2005. See Djin v Musah
Baako [2007-2008] SCGLR 687.
In Re Neequaye (Dec’d) Adea
Kotey v Kootse Neequaye [2010]
SCGLR 348. The writ in this
suit was issued in 2007 so the
period for the limitation of
time will not be due until 2017.
For all the time that the
defendant was in occupation she
was a licensee of Kwabena
Appenteng and became adverse
possessor after 2005”. Emphasis
On the contrary, there is
abundant evidence on record to
indicate that the said findings
by the Court of Appeal are not
only wrong, but perverse. From
the record, the following are
the uncontroverted facts found
by the learned trial Judge.
1. The land was
purchased and documented in the
name of Kwabena Appenteng.
2. The House was
however built by Rexford Aye
Darko.
3. Upon completion
of the house, 1st
defendant and her husband lived
in the house from 1957-1959 or
thereabout when the facility was
leased out to the Russians and
later by the Ugandan High
Commission.
4. After the 1966
coup d’etat, the 1st
Defendant and her husband
returned to live in the house
until her husband died on 13th
September 1977.
5. When the
property was being rented to the
Russian Embassy, the Lease
Agreement correctly stated
Rexford Aye Darko as the Lawful
Attorney and in whose name the
rents were to be paid.
7. From 1977 to
date, the 1st
Defendant has continued to live
in the said house without let or
hindrance from Kwabena Appenteng
until his demise later.
8. It should be
noted that, Kwabena Appenteng
never in his lifetime ever took
any steps to claim ownership or
possession of the house or eject
the 1st Defendant
from the house.
9. The various
overt acts of
ownership/possession performed
by Rexford Aye Darko and later
by 1st Defendant are
so pronounced that their rights
cannot be extinguished by the
bare legal title that Kwabena
Appenteng held in the property.
10. Exhibit 2, to
which copious reference has
already been made shows clearly
that Rexford Aye Darko was a
person of extreme wealth and was
in addition a philanthropist who
was generous to his maternal and
paternal family just as he was
to his children.
11. Furthermore, the
properties that the said Kwabena
Appenteng benefited from the
Estate of his junior brother,
houses, cocoa farms, vehicles
and cash and which he
acknowledged are proof that
kwabena Appenteng was dependent
on his junior brother, reference
Exhibit G, which valued the
total worth of Kwabena
Appenteng’s estate at
GH¢10,000.00.
12. When all these
specie of conduct are put
together, it is apparent that
the adverse possession against
Kwabena Appenteng are so
manifest that the Court of
Appeal’s evaluation of that
piece of evidence and decision
is not only wrong on the facts,
but is also not supported by the
law, and are therefore perverse.
In this rendition, it must be
clearly noted that, if Kwabena
Appenteng’s right of interest
had any putative standing, the
distinguished persons who
gathered and prepared exhibit 2
would have given it some
credence. Besides, Kwabena
Appenteng himself did not raise
any such title or interest. It
was much later that, in or about
2005 that he did the unthinkable
by attempting to alienate the
property to the Plaintiff under
bizarre circumstances.
I have also
observed that the Court of
Appeal gave some credence to the
legal proceedings in Exhibit L.
This exhibit is however dated 21st
December 2004 and the parties
are Kwabena Appenteng v Terrence
Darko, Okofo Estates and others
as Defendants. From this
exhibit, the suit therein was
commenced in the year 2000, 23
years after the death of Rexford
Aye Darko and 19 years after the
distribution of the Estate of
Rexford in exhibit 2.
The overt acts
of Rexford and later by his wife
the 1st Defendant
were open, visible, pronounced
and for very long periods and
were unchallenged. This
therefore brings these specie of
conduct in tune with the
decision in the Supreme Court
case of Abbey & Others v
Antwi [2010] SCGLR, 17 at 20,
where it was held as follows:-
“ a claim of adverse
possession could not be based on
clandestine payments of tribute
alone. They must be open,
visible, unchallenged and
apparent so as to give notice to
the legal owner that someone
might be asserting a claim…”
See also the case of
Klu v Konadu Apraku [2009] SCGLR
741 at 743. In view of all
the above analysis I will uphold
ground C of the grounds of
appeal.
GROUND D
THE COURT OF APPEAL FAILED TO
RULE AS A FINDING OF FACT THAT
THE PURPORTED PURCHASE OF THE
PROPERTY BY THE RESPONDENT
HEREIN FOR A SURPRISING LOW
VALUE OF GH¢10,000.00 WHILE THE
1ST APPELLANT HEREIN
WAS IN OCCUPATION, AND WITHOUT
ANY INVESTIGATIONS AS TO HER
INTEREST IN THE SAID PROPERTY,
SMACKS OF BAD FAITH FOR WHICH HE
SHOULD NOT BE PERMITTED TO TAKE
ADVANTAGE.
I will begin a discussion
of this ground of appeal by a
reference to the ruling of King
Solomon that had been acclaimed
as a wise ruling. This was a
dispute over a son by two
prostitutes, one of whom lost
the son through negligent
conduct.
Faced with a dilemma when
one woman says “my son is alive
and your son is dead” and unable
to resolve the problem posed by
the two prostitutes, the King
said, “Bring me a sword” so they
brought a sword for the King. He
then gave an order “cut the
living child in two and give
half to one and half to the
other.” As is generally known,
the woman whose son was alive
being moved out of love for the
son said to the King “Please my
Lord, give her the living baby,
Don’t kill him”.
LESSONS FROM THIS RULING
The most pronounced lesson
from this Solomonic ruling is
that, by such a clever ploy, the
true owner of the child was
detected and an unbroken
relationship between a mother
and her son had been restored.
Fast forward to Kwabena
Appenteng in 2005 in Accra, in a
respected residential/commercial
environment like Kokomlemle and
in respect of a two storey
building of the type described
as the Russian Embassy with the
amenities stated therein, 6
bedrooms, kitchen, sitting
rooms, boys quarters etc., being
sold for GH¢10,000,00.
This is unheard of. The
said transaction only epitomizes
someone who is in indecent haste
to dispose off a valuable asset
he has not toiled for.
The most important thing
worthy of note is that, at all
material times that this
purported transaction was going,
the Plaintiff knew very well
that the 1st
Defendant was in occupation and
possession of the said house.
But nonetheless, he like his
vendor was very reckless in not
taking steps to do any due
diligence. For example, in
answer to a question during
cross-examination as to the
number of rooms in the house he
purchased from Kwabena
Appenteng, the Plaintiff
testified as follows:-
“I would not like to
speculate. Mrs. Janet Darko was
in the house then.”
This knowledge on the part
of the Plaintiff that the 1st
Defendant was living in the
house at the time imposed legal
obligations which he was obliged
to discharge. It is in this
respect that I endorse the
quotation from the respected
Book on Ghana Land Law and
Conveyancing, Second Edition
page 396 by B. J. Da Rocha and
CHK Lodoh wrote thus:-
“Even though a vendor is
under obligation to disclose
matters affecting his title, the
matters he is obliged to
disclose are usually few. The
common law principle of caveat
emptor therefore applies to all
purchases of land. When
therefore a lawyer is consulted
by a purchaser of land prior to
the purchaser entering into a
valid and binding contract with
the vendor, the lawyer must
seize the opportunity to carry
out preliminary enquiries.”
Emphasis
Based upon the above
principle, I am of the
respectful opinion that, since
the 1st defendant was
in absolute possession and
occupation of the disputed
property the Plaintiff ought to
have investigated the presence
of the 1st Defendant
before proceeding to purchase
the property. The 1st
Defendant must be deemed to be
in actual possession of the
disputed property. See cases of
Boateng v Dwinfour [1979] GLR
360 and Brown v Quashigah
[2003-2004] SCGLR 930, 954 and
957.
It should further be noted
that, the search conducted by
the Plaintiff which he tendered
as Exhibit A was conducted in or
about 17th January
2006 after he had already
entered into the transaction,
parted with money to Kwabena
Appenteng as evidenced by
Exhibit B, dated 5th
October 2005 at the ridiculous
price of GH10,000.00. Indeed,
Exhibit G, which are the Letters
of Administration tendered by
PWI son of Kwabena Appenteng
(Deceased) in support of his
capacity and also to indicate
the status of his father speaks
for itself. Unfortunately, the
value of the entire Estate of
Kwabena Appenteng is stated as
GH¢10,000.00 as at 20th
February, 2009. This is
definitely not the Estate of
someone who is of any wealth. No
doubt from the appeal record, he
was dependent on his junior
brother.
Even the assets given to
him from the Estate of Rexford
Aye Darko as per Exhibit 2 are
far more worth than that. In
retrospect, it is quite clear
that, Kwabena Appenteng decided
to alienate the disputed
property to the Plaintiff, out
of greed and envy and an anxiety
to dispose the Estate of his
brother of that valuable asset
by the ridiculous price at which
he purported to sell. To all
intents and purposes therefore,
Kwabena Appenteng did not seem
on the state of the legal
records to be someone of
substance.
It must also be observed
that, even a tenant who is
desirous of leasing premises is
enjoined to not only inspect the
premises to find out whether
they are in a tenantable
condition, but also vacant or to
become vacant in the future.
From all the surrounding
circumstances, the Plaintiff was
not only reckless in his
dealings with the disputed
property, but like his vendor,
Kwabena Appenteng was in an
indecent haste to divest the
Estate of Rexford Aye Darko of
the valuable asset.
Based on the above
analysis, I will allow this
ground of appeal as well. I will
thus declare the sale and
purchase of the disputed
property by the Plaintiff as
null and void.
GROUNDS A AND B
A. THE JUDGMENT IS
AGAINST THE WEIGHT OF EVIDENCE.
B. THE COURT OF APPEAL
ERRED IN LAW AND IN FACT WHEN IT
FAILED TO CONSIDER THE FACT THAT
IN THE CIRCUMSTANCES AND ON THE
EVIDENCE, A RESULTING TRUST WAS
CREATED WITH KWABENA APPENTENG
BEING THE LEGAL OWNER AND
REXFORD AYE DARKO THE BENEFICIAL
OWNER OF HOUSE NUMBER C822/4.
In discussing these two
grounds of appeal together, I
will be quite brief since most
of the factual situations had
been referred to supra. Learned
counsel for the Defendants, Mr.
Youny Kulendi, argued that the
Court of Appeal, drew factual
inferences which are not borne
out by the evidence on record
contrary to those made by the
trial Circuit Court. By so
doing, the Court of Appeal erred
by setting aside the findings of
fact made by the learned trial
Judge and substituted their own
findings and inferences not
borne out by the record.
Learned counsel for the
plaintiff, Mr. A. G. Boadu even
though did not address these two
grounds distinctly, he
nonetheless argued the grounds
of the appeal, and submitted
that the judgment of the Court
of Appeal be maintained.
It is instructive at this
stage to refer to the
conclusions of the Court of
Appeal on the findings and
judgment of the learned Circuit
Court Judge. This is what the
Court of Appeal stated:-
“We have looked at the
judgment of the trial Judge and
have no doubt that the judgment
is not based on the facts or
evidence which was let at the
trial but on the deductions and
observations of the trial Judge.
A trial court owes it as a duty
to resolve the primary facts,
making findings on relevant
matters necessary to establish
the claim or defence of the
parties, state her findings and
apply the law.”
According to the Court of
Appeal, the trial Judge failed
in this duty to a large extent.
In my estimation this
conclusion of the Court of
Appeal is not only perverse, but
completely unjustified having
regard to the evidence on
record.
1. The first
finding made by the learned
trial Judge was to the effect
that the search result, Exhibit
A which the plaintiff tendered
shows that the Indenture,
Exhibit B, was executed before
he conducted the search. This is
borne out by the dates on both
Exhibits as correct.
2. The second
finding of fact is that, there
are well regulated rules on what
a prudent purchaser of land must
do in this country. On the
record, the Plaintiff was found
wanting, since he did not do
any due diligence and purchased
this property as if he was
buying a goat. This is also
supported by the record.
3. The third
finding of fact is that the 1stDefendant
had at all material times lived
in this house as a matrimonial
home, except for the brief
periods that the Russians were
tenants. This is also borne out
by the record.
4. The fourth
finding of fact made by the
learned trial Judge was that
Rexford Aye Darko was a man of
substantial wealth and
properties. The record supports
this.
5. The fifth
finding of fact made by the
trial court was that Kwabena
Appenteng never lived in this
house himself. Whenever he did
when he was on a visit, he
lodged with DWI in the boys
quarters. This evidence was not
denied. The learned Judge
therefore proceeded to make the
right inferences.
6. The sixth
finding made by the trial Judge
was to the effect that PW1 also
once lived with the 1st
defendant and her husband,
Rexford Aye Darko from when the
house was built until the death
of Rexford Aye Darko in 1977.
This is also correct.
7. The seventh
finding of fact was about the
meeting in Akropong-Akwapim at
which Rexford Darko’s properties
were distributed to the family
members. At that meeting,
Plaintiff’s vendor, Kwabena
Appenteng was present and was a
major beneficiary. Reference
exhibit 2 already referred to
supra. This is also borne out by
the record.
The learned trial Judge
then concluded her evaluation
and assessment of the findings
in these hallowed sentences:-
“All these acts of
complete silence by Kwabena
Appenteng over his alleged self
acquired property does not add
up. He did not stake a claim
to the property when his brother
was alive nor did he when he
died. He only decided to stake
his claim two long decades after
his brother passed. Any
reasonable mind would there
conclude that Kwabena Appenteng
did not own this property as is
being alleged. It rightfully
belongs to his deceased brother
who only used his name to
execute deeds regarding the
property. This would
therefore make Kwabena Appenteng
the legal owner but the real
beneficial interest lies in
Rexford Aye Darko. See the
case of Ussher v Darko.”
Emphasis
I will also add that,
considering all the specie of
conduct referred to supra, in
addition to Exhibit G, the
Letters of Administration of
Kwabena Appenteng which put the
value of his Estate at
GH¢10,000.00 and Exhibit 6,
which was tendered through
Co-defendants representative,
the only logical conclusion is
that, it is Rexford Aye Darko
who bought the disputed land,
developed it and has enjoyed it
to date.
For example, this exhibit
6, is a document of conveyance
from Kwabena Appenteng, dated 6th
day of April 1987 and Okofoh
Estates Limited, acting by
Ronald Terence Kwabena Darko. In
this exhibit, are the following
recitals:-
1. By a Deed made
the 10th day of
December 1957 (Registered No…
between Wilkinson Sai Annan
acting head and lawful
representative of the Osu Tetteh
Family of Accra as Vendor
therein and the Vendor herein,
the land situate at South East
Kokomlemle Accra (hereinafter
called the property) was
conveyed to the vendor forever.
2. Kwabena
Appenteng purchased the property
for and on behalf of the brother
the late Rexford Aye Darko who
had same conveyed in the name of
the said Kwabena Appenteng.
3. Kwabena Appenteng
therefore became a trustee for
his brother the late Rexford Aye
Darko.
4. The said
Rexford Aye Darko died intestate
on the 13th day of
September 1977 and his estate
devolved on his Administrators
and Trustees.
5. The
beneficiaries of the Estate of
the late Rexford Aye Darko
incorporated Okofoh Estates
Limited the Purchasers herein to
hold the properties of the late
Rexford Aye Darko.
6. The vendor
hereby conveys the property to
the purchasers in consideration
of the sum of one thousand cedis
(GH¢1,000.00) paid by the
Purchaser to the vendor..”
Kwabena Appenteng and
Terence R. K. Darko executed
this Exhibit 6. This Exhibit 6
is significant for the following
reasons:-
1. It reinforces
the fact that Kwabena Appenteng
was the conduit through which
Rexford Aye Darko purchased most
of his immovable properties.
2. At the time of
the execution of exhibit 6, R. A
Darko had died.
3. Kwabena
Appenteng acknowledged that he
held the property therein in
trust for the deceased brother.
4. Even though the
property in exhibit 6 is
separate and distinct from the
disputed property, it is
significant because it is
consistent with the practice
that existed between the two
brothers.
In view of the many
references supra, it is crystal
clear that, it was rather the
Circuit Court which made very
consistent and cogent findings
of fact in tune with the record
of appeal. On the contrary, the
Court of Appeal had no basis to
depart from the findings made by
the trial court unless they were
perverse, which was not the
case. See cases of Achoro v
Akanfela [1996-97] SCGLR 209,
Obeng v Assemblies of God
Church, Ghana [2010] SCGLR 300,
Gregory v Tandoh IV & Hanson
[2010] SCGLR 971.
Since the setting aside of
the findings of fact made by the
learned trial Judge by the Court
of Appeal was without any basis,
same are considered perverse and
therefore set aside.
Based on the above
analysis, and the sound
principles of law established in
very respected authorities such
as Djin v Musa Boako
[2007-2008] SCGLR 686 at
holding 1, and Oppong Kofi &
Others v Attibrukusu III [2011]
1 SCGLR 176 at 178 Holding
1, it is certain that the
judgment of the Court of Appeal
is against the weight of
evidence. Accordingly, I will
allow the appeal on these
grounds as well.
CONCLUSION
In the premises, I will
allow the appeal filed by the
Defendants against the judgment
of the Court of Appeal dated 4th
February 2016. I accordingly set
the judgment of the Court of
Appeal aside and in it’s place,
restore the judgment of the
Circuit Court dated 21st
December 2012.
Judgment is therefore
entered for the 1st
Defendant, 1st and 2nd
Co-Defendants respectively.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
YONY KULENDI WITH HIM
DANIEL SAGO OSEI AND CHARLES
TETTEH AND HARRIET DODDO FOR THE
DEFENDANTS/RESPONDENTS/APPELLANTS.
A. G. BOADU FOR THE
PLAINTIFF/APPELLANT/RESPONDENT. |
