|
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.
|
