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J U D G M E N T
WOOD (MRS), J.S.C.
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The Plaintiff/ Respondent was
the original owner of the
subject matter of this appeal;
House No. 270/9, Accra New Town.
Unfortunately, it was sold by
public auction at the instance
of the Accra City Council in
August 1987 and bought by one
Odartey Lamptey (PW2). But
thereafter, he sold the
property, (so he thought), to
the Respondent after he had been
paid an amount of C1800
representing the cost of the
auction price and other
incidental expenses he alleged
he had incurred. His story is
that he was moved by the tearful
pleas of the Respondent, the
original owner and his family to
relinquish his interest in the
property. The repayment to him
was not effected by the
Respondent alone, but with the
full participation of the
Appellants and their witness,
DW2.The puzzle which our courts
have been trying to unravel for
the past nineteen years is; who
actually bought this property?
Was it the Respondent, or the 2nd
Appellant for the simple reason
that, oddly, both parties are
now laying claim to it? While
the Respondent contends that he
borrowed money from the 1st
Appellant’s father to redeem the
property for himself, with the
clear understanding that the
lender collects the rents and
uses it to defray the loan, and
clearly therefore in
circumstances that amount to a
pledge, the 2nd
Appellant on the other hand
maintains that the transaction
between herself and the
Respondent was not a pledge, but
an outright sale of the property
to her, with the original owner
only serving as the conduit.
The Respondent maintains that he
was compelled by the Appellants’
failure to account for all rents
collected, to institute this
action in 1988 (1) to recover
possession of the house and (2)
for an order of account of all
rents collected from January
1970 to the date of judgment.
Both the trial and appellate
courts determined the principal
issue of whether the transaction
between the parties was a pledge
or an outright sale in the
Respondent’s favour.
Dissatisfied with the decision
of the Court of Appeal, they
have, in this appeal before us,
challenged it on the grounds
that:
“(a) The judgement was against
the weight of the evidence of
the record.
(b) The Court of Appeal was in
error in accepting the decision
of the trial court judge that
the grounds for rejecting
exhibits R1 and R2 namely (a) on
improper stamping (b) non
disclosure of the name of the
person administering the jurat
or improper jurat or non jurat
were right in law.
(c) Both the trial High Court
Judge and the Court of Appeal
did not address or consider the
question of additional 12 rooms
built by the Appellants to the
disputed house as an improvement
on existing property or further
development in resolving the
main issue for trial…..”
The ground (b) raises a number
of legal issues I would like to
address. At the trial, the
Appellants sought unsuccessfully
to tender two documents in proof
of their claim that the
transaction was an outright sale
of the property to the 2nd
Appellant. Both documents were
rejected and marked as R1 and
R2. In so doing the trial judge
reasoned that “the two
documents/receipts should have
borne adhesive stamps which
should have been cancelled.
Unfortunately, these two
documents bear impressed
stamping under S. 47 of Act 311.
A receipt which is not stamped
on the date of issue should not
bear impressed stamping if the
impression is done more than
three months after the date of
the receipts. The two receipts
are dated 1969 but the impressed
stamps were on them in 1987 and
1988. These are irregular and
invalid.”
The Court of Appeal endorsed
this finding, albeit for
different reasons. Their
Lordships proceeded on the
premise that:
“The document exhibit R2 bears
the date 26th August,
1969. It does not on the face of
it bear a stamp. The law in
force then enjoined the
appellant to stamp the document
within two (2) months of its
execution by the parties
thereto. It will be seen that on
the evidence the document
exhibit R2 was not admissible in
evidence because it had not been
duly stamped…. Even if there was
legitimate practice which
empowered the trial judge to
admit the document exhibit R2
was not admissible in evidence
because it had not been duly
stamped.”
The Court of Appeal therefore
justified the High Court’s
rejection of the documents in
the main, on the factual ground
that the document was without a
stamp as was mandatorily
required under law. In this
court, no arguments were
advanced in support of the R1.
Counsel elected to limit the
arguments to the Exhibit R2 for
the reason, rightly in my view,
that for all practical purposes,
that is the document most
relevant to this appeal. The
burden of the Appellants’
argument is that none of the
reasons advanced by the two
courts for the rejection of the
R2 are factually or legally
sustainable. It was urged that
contrary to the Appellate
Court’s finding, the Exhibit R2
does on its face bear a stamp,
as indeed both the document as
well as the trial court’s own
finding clearly shows.
I have examined the document in
question. With utmost respect to
their Lordships of the Court of
Appeal, the factual finding that
the R2 does not bear a stamp and
was therefore inadmissible is
gravely in error, for indeed, as
the trial judge did rightly
find, it does bear a stamp, an
impressed stamp to be precise.
Firstly, the appellate court’s
disturbance of a finding of fact
which was clearly supported by
the record is patently wrong and
we in this court have a duty to
interfere with this finding.
Furthermore, as I shall
presently demonstrate, the
Appellants duly met the
statutory requirements of Act
311 as far as this particular
instrument was concerned.
The relatively more difficult
question is whether as concluded
by the trial court, the stamp
should have been adhesive rather
than impressed. In coming to the
conclusion that due compliance
with the statutory provisions
called for an adhesive rather
than impressed stamp, the
learned trial judge reasoned
that the R2 was a receipt within
the meaning of S. 46 of the
Stamp Act 1965, Act 311, and
since by virtue of the clear
provisions of the S. 47, it was
not stamped within three months
of the date of issue, it ought
to have borne an adhesive rather
than an impressed stamp. The
counter argument is that the R2
is, by virtue of sections 1 and
13 of NRCD 175, a conveyance,
not a receipt as was wrongly
construed by the trial judge and
therefore clearly chargeable to
an impressed rather than an
adhesive stamp.
The crucial question then is how
do we construe the R2? Is it a
conveyance or a receipt? The Act
311, has carefully spelt out
which instruments are chargeable
to stamp duty and how the duty
is to be denoted, that is
whether by an impressed or
adhesive stamp. Indeed, Part 111
of the statute contains
provisions exclusive to
particular instruments, as for
example, “Bills of Exchange and
Promissory Notes”, “Bills of
Lading”, “Charter- Parties”,
“Receipts”etc. Therefore, while
“Copies and Extracts from
Registers” may be denoted by an
adhesive stamp, some instruments
are required to be denoted by
impressed stamps only in
accordance with the S .4(1) and
(2) which expressly stipulate
that:
“All stamp duties chargeable
under this Act or any other
enactment upon any instrument
shall be paid and denoted in
accordance with the provisions
of this Act.
(2) Subject to the provisions of
subsection (3) of this section
and except where otherwise
expressly provided, all stamp
duties shall be denoted by
adhesive stamps only”.
Since the statute has made
provisions for different classes
of instruments and other related
matters like which instruments
may be chargeable, the quantum
of duty chargeable or the
formula for assessing it, and
how the stamp may be denoted in
each particular case, in order
to give effect to the law, in
this action, a proper
identification of the type of
instrument under consideration
remains a critical issue. And so
we come back to the core issue:
within the provisions of Act
311, is the R2 a receipt or a
conveyance? The document which
is headed: “TRANSFER OF TEN
COMPLETED SWISH BUILDING SITUATE
AND LYING AT ACCRA NEWTOWN KNOWN
AS HOUSE NO. C295/9 ACCRA NEW
TOWNAND PROPERTY OF MR. QUARSHIE
OGBO TO MADAM CATHERINE AMA
ADJUWUAH OF SUHUN (sic)”, reads
in part;
“TO BE KNOWN TO ALL men this 26th
day of August, in the Year of
our Lord One Thousand Nine
Hundred and Sixty Nine (1969)
that I the undersigned and in
the name of Mr. QUARSHIE AGBO of
House No. C295/9 Accra New Town
Accra, and of P. O. Box 15 Accra
(hereinafter called the
Transferee of the ten (10)
completed Swish Building) have
on this day received cash the
sum NC 3,000 Three Thousand New
Cedis from one MADAM CATHERINE
AMA ADUWUAH of Suhun (sic)
(hereinafter called and known as
the Buyer); being full payment
made to me by auction for the
purchase of the ten completed
swish building situate lying and
being at Accra New Town , and
this said property is hereby
known and registered by the City
Council as House No. 0295/9
Accra New Town, Accra……
2 That on the strength of this
sum of NC 3,000 (Three Thousand
New Cedis) paid to me by the
buyer /Madam Catherine Ama
Aduwuah by auction purchase I
hereby transfer the ownership of
the said property to the buyer
forthwith.
3 That this said 10 completed
swish building known as House
no. C295/9 Accra New Town is
free from all family disputes,
litigation, debts and all sorts
of encumbrances, and I hereby
transfer the ownership of the
said house … to the buyer, Madam
Catherine Amma Aduwuah
forthwith.”
In my opinion, the
classification of the R2 will
depend essentially on the
statutory definition of the key
words “receipt” and
“conveyance”. The Appellant
counsel has urged that in this
regard, we turn to the
Conveyancing Decree, 1973, (NRCD
175) for guidance. But I do not
think there is any justification
for turning to this statute or
for that matter some other
source for assistance. The
elementary rule in statutory
interpretation, which rule
undoubtedly is based on plain
good common sense, is that,
where the definition of a
particular word, term or
expression has been specifically
provided in an enactment, or
where other internal provisions
would assist to determine the
meaning, it is those definitions
or those other provisions as
that we are obliged to follow,
and not definitions or
provisions from other sources.
The S. 32 headed “Conveyance
on Sale” defines the expression
as such:
S 32 “For the purposes of this
Act, the expression “conveyance
on sale” includes every
instrument, and every decree or
order of any court or of the
Commissioner, whereby any
property or any estate or
interest in any property, upon
the sale thereof is transferred
to or vested in a purchaser, or
any other person on his behalf
or by his direction.”
However, the statute defines
“receipt” in the following
terms:
“46(1) For the purpose of this
Act “receipt” includes any note,
memorandum, or writing
whatsoever whereby any money
amounting to two cedis or
upwards or any bill of exchange
or promissory note for money
amounting to two cedis or more
is acknowledged or expressed to
have been received or
acknowledged to have been
settled satisfied or discharged
or which signifies or imports
any such acknowledgment, whether
the same is or is not signed
with the name of any person.”
Under the heading “Particulars
about Land”, (provisions which
are exclusive to the transfer of
interests in land), it is
stipulated under S.16:
“(1) Every instrument relating
to the creation or transfer of
any estate or interest in land
which is submitted to the
Commissioner for assessment of
the stamp duty chargeable
thereon, shall be accompanied by
a statement set out in the
second schedule to this Act.
(2) The statement shall be
signed by the grantee or
transferee or by some other
person authorised to do so in
writing on his behalf.
(3) When the Commissioner has
been furnished with the
statement required by this
subsection, he shall impress
upon the instrument a stamp
bearing the words “particulars
delivered”
As clearly provided under S. 4
of the Interpretation Act, 1960
Act 4, headings to parts of a
statute do no form part of the
statute; they are intended for
convenience of reference only,
but the useful role they play in
statutory interpretation is not
disputed. Headings, which may
be described as signposts, are a
useful guide in determining the
scope or ambit of the provisions
to which they relate. The
learned author of the invaluable
text- book, “The Law of
Interpretation in Ghana
(Exposition and Critique)” S. Y.
Bimpong- Buta has persuasively
made a case for the use of the
headings to statutes as an
interpretative aid to statutory
interpretation or construction.
The position therefore is that,
unlike the English courts, in
our jurisdiction, the headings
to statutes, particularly if
consistent with the provisions
to which they relate, are an
interpretative aid to the
construction of statutes. The
heading to the sections 16 and
17 therefore serves as a sign
post, announcing in unambiguous
terms that they are limited to
instruments affecting land
transactions and therefore
separate and distinct from the
section 46 which deals
exclusively with receipts qua
receipts
Admittedly, a conveyance may
contain a receipt clause on
moneys had and received, or make
reference to transactions that
standing alone may qualify as
receipts as defined. But that
per se, would not qualify the
instrument as a receipt.
Therefore, to discover the type
of instrument requires that in
conformity with the basic and
well- known cannon of
construction, the document be
read as a whole and not
piecemeal. True, the S.46 Act
does not present us with an
exhaustive list of written
documents which fall into the
class of “receipts”. But, it is
equally true that by the ejusdem
generis maxim, only written
documents relating to the kind
of monetary transactions of the
values stated and falling into
the same genus or class of
activities specifically
mentioned would properly qualify
as receipts.
In the light of these
principles, my view is that
while it is true that the R2 has
a receipt clause, an examination
of the document in its
totality, coupled with a bare
reading of the two clearly
distinct Sections 32 and 46, and
when juxtaposed against each
other, shows clearly that the R2
is not a mere writing relating
to any money had and received,
but an instrument relating to
the transfer - sale- by the
Respondent of his property
numbered C/295/9 to the
purchaser, Madam Aduwuah, the 2nd
Appellant in these
proceedings. The R2 is
therefore not a “receipt” within
the S.46 of Act 311 as was
erroneously held by the trial
court, but a “conveyance on
sale” (S.32) and contains
particulars affecting land
(S.16).
The S. 16 with its specific
provisions relating to land
settles the question of how the
stamp is to be denoted. Such
instruments are required, under
S.16 ss3, to bear an impressed
stamp, as was correctly observed
by this honourable court in
Nartey v Mechanical Lloyd [1987-
1988] GLR 314. The trial court
therefore erred in holding that
the document should have borne
an adhesive stamp.
Happily, the legal issues raised
have been resolved in favour of
the Appellant. I would however,
like to make this observation.
The principal object of the
Stamp Act is to raise revenue
for the state, and this court
should be the last to encourage
its violation rather than its
observance. Nonetheless, I think
the stand taken by the learned
trial judge on the question of
the type of stamp which ought to
have been affixed, was with all
due respect rather doctrinaire.
It is an approach we should
discourage. Since the main
purpose of that law is to
generate income for the state,
did it really matter if what he
thought was the prescribed
stamp, which I believe was
intended for functional purposes
only, was not denoted? I do not
think so. But whatever be the
philosophy behind this clear-cut
distinction between impressed
and adhesive stamps, my thinking
is that, if the law in its
wisdom has made allowance for
the admission of unstamped
documents into evidence, one
would think that we ought to
adopt the same liberal approach
when confronted with issues such
as the one the trial judge
thought he was confronted with.
I would have thought that once
the court was satisfied that the
correct duty had been paid, as
appears to be the case here, the
document ought not to have been
rejected on the sole ground that
the proper stamp was not
affixed. A more pragmatic
approach, which clearly would
have served the ends of justice,
was for it to have been admitted
into evidence and the person
seeking to tender it ordered, if
at all necessary, to rectify the
anomaly. It must be reiterated
that in some instances, a
mechanical rather than a
purposive application of the
law, as happened in this instant
case, can lead to a complete
failure of justice.
But there is a further ground
upon which the appellate court
concluded that the Exhibit R2
was inadmissible. The court took
the position, as did the trial
court, that R2 did not fully
meet the mandatory requirements
of the Illiterates Protection
Ordinance, Cap 226 in that “ (a)
the name of the person who did
the interpretation of the Exh.
R2 did not appear on the face of
it, and (b) evidence was not
adduced by the Appellant to
satisfy the court that the
plaintiff speaks and understands
Pidgin English”.
The section 4(1) and (3) of Cap
262 requires that any person
preparing a document for an
illiterate person must clearly
and correctly read over and
explain or cause the document to
be read over and explained to
the illiterate person.
Furthermore, the writer is
enjoined by the statute also to
clearly write his full name and
address on the document. The
statute stipulates:
“ (1) Every person writing a
letter or other document for or
at the request of an illiterate
person ,whether gratuitously or
for reward , shall- clearly and
correctly read over and explain
such letter or document or cause
same to be read over and
explained to the illiterate
(3) Clearly write his full name
and address on the letter or
document as writer thereof and
note of writers fee”.
I shall first deal with the
court’s finding that the
writer’s name did not appear on
the document. There is, on the
face of the document the
licensed letter writer’s full
particulars as required under
the ordinance. The characters
–the words and figures- were not
hand written, typed or printed,
but produced by means of an
embossed rubber stamp. His
Lordships did not explain how
they came by their definitive
finding that the name of the
interpreter does not appear on
the face of the document and
since they did not also make any
allusion to what appears on the
face of the document, I can only
surmise that their Lordships did
not think that, that format
constituted a “writing” within
the meaning of the Act 311. Put
in other words that this mode
(using an embossed stamp) was
not envisaged under the law. Are
his Lordships right?
From the language of the ss3, it
is to be observed that no
particular format or mode of
writing is prescribed. To the
contrary, the Interpretation Act
defines “writing” and
“expressions referring to
writing” to “include printing,
lithography, type writing,
photography, and other modes of
representing or reproducing
words or figures in visible
form”. It follows that the
statutory requirements would
have been met, once these
particulars- name and address-
are indicated through any mode
which presents or produces words
or figures, in any visible or
recognisable form on the
document. To that extent, the
reproduction of the letter
writer’s particulars in visible
form on the face of the
document, by means of an
embossed rubber stamp
constitutes writing within the
meaning of the S.4 of
Cap262.
I now turn to their Lordships
complaint that there was no
evidence that the document was
read over to the Respondent.
This charge is wholly untenable
as is the other complaint that
the Appellants did not lead any
satisfactory evidence in proof
of the fact that the Respondent
understands Pidgin English .To
justify the position they had
taken, His Lordships queried:
“is pidgin English one of the
dialects spoken in Ghana? Indeed
what is Pidgin English and which
tribe or tribes speak it as
their “native tongue”. My
understanding of this line of
argument is that, under the
ordinance, a document written
for an illiterate person would
be admissible only where it was
interpreted in that person’s
native language. I will agree
that theoretically, the reading
over and interpretation would
best be done in the party’s
native tongue. But I can think
of no compelling legal reason
why some other language cannot
be used to communicate the
contents to him. First, the
lawmakers did no limit the
exercise to the author’s mother
tongue. They would have supplied
those necessary words had they
intended to impose any such
restrictions on the law. I would
therefore hesitate to place any
such narrowly implied
construction on this provision,
given that education, inter
marriage, urban migration and
some other socio-economic
factors have opened the door for
several people in this country
to communicate effectively in
languages other than their
mother tongue. Therefore ,I do
not think is open to a court to
automatically refuse to admit
into evidence a document written
on behalf of an illiterate
person, on the sole basis that
from the jurat, the
interpretation was not carried
out in his or her native
tongue. In actuality,
complaints of this kind do not
relate to admissibility but to
the probative value of the
document in question. Therefore,
a court faced with any such
opposition from the person
against whom the document is
sought to be cited, ought as a
first step to admit the document
into evidence and then proceed
to determine any such related
issues on the merits. In any
event, in determining the
question of the weight to be
attached to the document, the
proper test is not whether the
language used is his or her
native language, but whether on
the evidence from both sides,
the illiterate understood the
language in which the
interpretation was done.
On the facts, the properly
worded jurat or interpretation
clause on the face of the R2
raised a presumption, albeit a
rebuttable presumption that the
contents was read over and
interpreted to him in a
language he understood before
executing it. As was correctly
observed in the Court of Appeal
case of Zabrama v Segbedzi
[1991] 2 GLR 231, the
presumption is rebuttable and
may be displaced by the person
against whom the document is
sought to be cited.
Interestingly, in that action
also, the plaintiff who is an
illiterate brought an action
against the defendant to redeem
his house he alleged he pledged
for C200. He maintained on the
other hand that the house was
sold him and, at the trial,
tendered a document they
executed. Kpegah J.A., as he
then was, concluded that, “the
party seeking to rely on the
document must lead evidence in
proof of the fact that the
document was actually read and
interpreted to the illiterate
who understood it before signing
same. Being a question of fact,
the presence or otherwise of an
interpretation clause in the
document was not conclusive of
that fact…”
The Appellants discharged the
prima facie burden which was
cast upon them and the
evidential burden therefore
shifted on to the Respondents.
They bore the burden of
displacing the prima facie
evidence that they understand
pidgin English, and more
particularly that they
understood the contents of R2
before executing it, if they
were so minded, for as observed
by Atuguba JSC in the case of In
re Kodieh stool: Adowaa v Osei
[1998-99] GLR 23 at page 75,
“Whether an illiterate has
appreciated the contents of a
document he has thumbprinted can
be determined by evidence which
can be circumstantial or direct
or both.”
He never led any evidence of any
kind and it is unfortunate that
the Appellant was made to bear
the blame.
In any event, in my respectful
view, their Lordships queries
about Pidgin English, does not
arise from either the pleadings,
the Counsel’s objection to the
tendering of the R2 nor the
evidence. Yet they wondered what
language was Pidgin English.
Certainly, judicial notice can
be taken of the fact that it is
a spoken language. The Advanced
Learners Dictionary recognises
it as “any of the several
languages resulting from contact
between Europeans and local
peoples, e.g. in W. Africa and
S.E. Asia, containing elements
of the local language and
especially English, French or
Dutch.” Also, as the learned
author G.C. Thornton, formerly
Chief Parliamentary Draftsman of
Tanzania, in his book entitled
“Legislative Drafting” explains
at page 3 under the rubric “What
is language”; “Language is a
system of local or linguistic
symbols used in a particular
society as a means of
communication”.
But even more importantly, as
already stated, I have examined
the grounds of counsel’s
objection, as well as the entire
evidence, and found to my dismay
that in any event, the
Respondent never complained that
he was deficient in Pidgin
English, and therefore, that
factual issue never arose for
the trial court’s
determination. As the record
shows, it was the court which,
suo moto, raised issues about
Pidgin English and used that,
wrongly in my view, as a ground
for rejecting the document in
evidence. This approach flew
directly in the face of two
firmly established principles;
firstly, the age- old principle
in a long line of cases
including Dam v Addo & Bros.
1962 2 [GLR] 200, SC, Bisi v
Tabiri alias Asare [1987-88]1
GLR 401 and Kwame v Serwah
[1993-4] 1 GLR 429, in that a
court must not proprio motu set
up a case for a party which he
himself has not put up and
secondly, the principle that an
appellate court must not permit
to be raised for the first time,
factual issues that were not
raised at the trial.
All the issues discussed so far
have been resolved in favour of
the Appellant. But there is one
final legal conclusion which
cannot however be faulted. The
Appellants have complained that
the appellate court erred in
rejecting the R2 in evidence on
the basis also that it had not
been registered. This criticism
is unjustified. The court
properly excluded the document,
given that the well established
principle is that the explicit
provisions of S. 25 of The Land
Registry Act 1962, (Act 122)
render the unregistered document
ineffective and wholly
inadmissible.
However, the exclusion of the R2
does not seal the Appellants’
doom. In this rehearing, we have
to determine nonetheless, as was
rightly argued by counsel in
support of the grounds (b) and
(c), whether the rest of the
evidence justifies a finding in
their favour. Acquah J.S. C. as
he then was, and sitting as an
additional Judge of the Court of
Appeal succinctly outlined the
court’s duty under such
circumstances in the case of
West African Enterprises Ltd. v
Western Hardwood Enterprises
Ltd. [1995-96] 1 GLR 155. At
page 166 His Lordship observed:
“Now, when in a trial any
exhibit is found to be
ineffective and invalid as in
the instant case inadmissible,
the court ought to consider
further whether apart from the
that inadmissible exhibit, there
is no other evidence to sustain
that party’s claim. If there are
other admissible evidence and
materials on the record to
sustain the party’s claim the
court is duty-bound to consider
those other matters. The
inadmissibility or invalidity of
an exhibit does not mean the
automatic failure of the party’s
claim unless from the pleadings
and the evidence that claim
cannot be sustained on any other
ground apart from the
evidence.”
Unfortunately, the purchaser,
Pw2, could not directly assist
the court in determining the
principal issue of who actually
bought the property, for he
confessed that he “will not know
the terms Kwashie Ogbo might
have entered into with the
defendant after Kwashie Ogbo has
repayed (sic) the loan or even
that he has sold the property to
her.” However, the evidence as
a whole so tilts the scales in
favour of the Appellant, that we
would be justified in the
correcting the erroneous
findings and conclusions reached
(see the cases of Achoro and
Another v Akanfela and Another
[1996-97] SCGLR 209 and Brempong
v Amofah &Others [2001-2002]
177). On the Respondent’s own
showing, the 1st
Appellant continued to collect
rents for ten long years before
he requested for an account.
Would he not have insisted on
accounts much earlier and at
more frequent intervals if he
were a pledgor? Again, the clear
evidence is that the appellants
accompanied him to pay the money
to the Respondent. Why did they,
accompanied by DW1, have to be
present if the 2nd
Appellant were not the real
purchaser? Under normal
circumstances, money lenders do
not accompany their debtors to
ensure that the loan is put to
the use for which it was taken,
do they! On the balance, this
account fits into the Appellants
version that the 1st
Appellant was indeed the true
purchaser, and further that as
previously arranged, she was
introduced as the Respondent’s
sister to facilitate the
purported sale to the
Respondent.
Also, from the undisputed facts,
the Appellants had, at the date
of the writ been in possession
for some twenty years or more
and have made significant
improvements to it. These
substantial developments
included reinforcing the
foundation, construction of a
cement wall around the property,
connecting electricity and water
to the house and building twelve
additional rooms, two toilets
and two bathrooms. The
Respondent laments that the 1st
Appellant has even succeeded in
building a storey building for
himself from the rents.
Admittedly, a pledgor is under a
customary duty to improve
pledged property, but having
regard to the extent of the
improvements, I am inclined to
think that, it is the fact that
they are the rightful owners,
rather than any notion about
their customary obligations
which propelled them into making
these substantial improvements
to the property.
The Appellants’ evidence is that
even after the purchase, they
allowed the Respondent to live
in a room and a hall as a tenant
paying C200 per month to
reciprocate the kindness he
showed him when he first moved
into his house, by allowing him
to sleep on his verandah for
free for one and a half years.
More pertinently, the
uncontroverted evidence is that
the Respondent allowed him to
partition his room into two, in
order to avoid a rent increase.
I wonder which pledgor would
agree to suffer such
indignities. Again, the fact
that the Appellant gave the
Respondent as much as C3000,
when the PW1 had to be paid
only C2000, lends credence to
the Appellants’ version that the
transaction was not a pledge but
a sale. Surely, the Respondent
was entitled to some profit.
The common law rule as to
forfeiture by a licensee or
tenant who challenges the title
of his licensor or landlord has
received statutory recognition
under the sections 27 and 28 of
the Evidence Decree 1975, [NRCD
323].
The law is that a licensee or
tenant who denies the title of
his or her licensor or landlord,
either by claiming that title to
the subject matter is vested in
himself or herself or someone
else forfeits his or her
interest. In view of the
Respondent’s direct challenge to
the Appellants lawful claim to
ownership, he has forfeited his
right to remain in the premises.
In the result, this appeal
succeeds. I would set the
judgement of the court of appeal
aside and substitute an order
dismissing the Respondents claim
in its entirety, in which case
the Appellants counterclaim for
the recovery of possession of
the one room and hall succeeds.
The Respondent is to vacate the
premises within 7 days from
today.
G. T. WOOD (MRS)
JUSTICE OF THE SUPREME
ACQUAH, J.S.C.:
I agree.
G. K. ACQUAH
CHIEF JUSTICE
DR. TWUM, J.S.C.:
I agree.
DR. S. TWUM
JUSTICE OF THE SUPREME
ANSAH,
J.S.C.:
I also agree.
J. ANSAH
JUSTICE OF THE SUPREME
ANINAKWAH, J.S.C.:
I agree.
R. T. ANINAWAH
JUSTICE OF THE SUPREME
COUNSEL:
Mr. Kwakye for Appellant.
Mr. Hoeyi for Respondent.
gso* |
