HOME   UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2009

     IN THE SUPERIOR COURT OF JUDICATURE

                                         IN THE SUPREME COURT OF GHANA

                                                               ACCRA

CORAM:      WOOD (MRS), CJ (PRESIDING)

ATUGUBA, JSC

ANSAH, JSC

ADINYIRA (MRS), JSC

DOTSE, JSC

                                                                             CIVIL APPEAL

NO. J4/25/2006

27^TH JULY, 2009

1. MADAM AKOSUA DUFIE              )        PLAINTIFF/RESPONDENTS/

) ...    RESPONDENTS

2. KINGSLEY ADU-POKU MENSAH    )

VRS

1. MADAM AMMA FOSUA                 )  ...   DEFENDANTS/APPELLANTS/

)        APPELLANTS

2. KOFI ADU POKU                         )

____________________________________________________________

                                                J U D G M E N T

 WOOD (MRS), CJ. :

I agree with the opinions to be delivered by my learned brothers Atuguba, Ansah and Dotse JJSC and my learned sister Sophia Adinyira JSC. I have nothing useful to add.

            G. T. WOOD (MRS)

             (CHIEF JUSTICE)                                                            

ATUGUBA, JSC:

The surviving 2^nd Plaintiff/Respondent/Respondent together with her late sister who was then the 1^st Plaintiff got locked up with the defendants appellants/appellants in an estate dispute relating to the ownership of a house and two cocoa farms. Whilst the plaintiff claims that these are family properties the defendants claim they are all self-acquired properties of their late father and husband respectively.

There are concurrent findings of fact on these matters in the High Court and Court of Appeal in favour of the plaintiff.

It is trite law that an appellate court is not entitled to reverse concurrent findings of fact unless there are, in effect, strong legal or factual reasons to the contrary.

It is also to be borne in mind that claims against the estate of a deceased person are to be viewed with caution and very cogent evidence is necessary to sustain the same.

The plaintiff’s case is that when he was about leaving the country for Britain he handed over to the defendants’ late father and husband respectively a document covering a piece of land which later by substitution, became the plot on which the disputed house stands. He also owned a store and a beer bar which he left in the care of the same person, i.e. the late Kwaku Poku. He later instructed his said late brother to sell the store and beer bar and construct a house for him on the said plot of land.

Ownership of the disputed house

The courts below came to the conclusion that the house was not financed only by the late Kwaku Poku.

One matter that did not receive critical attention by the courts below is the date of the construction of the house. The plaintiff is quite definite that the house was completed in June 1955 whereas exhibits 2 and 4 dated 9/5/1958 and 23/6/1958 being an undertaking by Kwaku Poku to develop the said land within 2 years and a receipt for payment for the preparation of a development permit in respect of the said land, tend to show otherwise. Also at p. 42 of the record between lines 1 to 4 the plaintiff admitted thus: “Yes I know that in the 1950s the colonial authorities insisted on strict compliance with building regulations. Yes without a development permit, you could not commence the development of any plot”. These pieces of evidence point to the high probability that the disputed house could not have been built in 1955 as contended by the plaintiff. This is especially so because as laid down in Atadi v Ladzekpo [1981] GLR 218 CA and Republic v Nana Akuamoah Boateng II, Ex parte Dansoah (1982-83) 2 GLR 913 S.C. documentary evidence should prevail over oral evidence. And in Guardian Assurance v Kyat Trading Store (1972) 2 GLR 48 C.A. at 55 Amissah J.A. (his brethren concurring), held that the supportive evidence of an opponent is as strong as the documentary evidence of the other party in proof of the latter’s case. However, as was held in Ahiabley v Dorgah (1984-86) 2 GLR 537 C.A., where documents support one party’s case as against the other, the court should consider whether the latter party was untruthful or truthful but with faulty recollection. In this case the trial judge saw the relevance of exhibit 2 only in terms of it being evidence of the acquisition of title to the property vel non. That exhibit was also relevant in the terms I have hereinbefore set out.

The trial judge said of exhibit 2 at p. 136 of the record thus: “It is significant to note that the defendants did not produce for tender the allocation note. It is an undertaking allegedly made by the late Kwaku Poku. Whether the contents of Exhibit 2 are true or false is not clear on the evidence on the record”. Given the high evidential protein which documentary evidence contains, in the eyes of the law, the trial judge should have given cogent reasons for doubting the veracity of exhibit 2. The only discoverable reason is the non production in evidence of the allocation note. But given that the documents pertaining to grants of Kumasi lands were meticulously kept and processed by the Asantehene’s Lands Office as clearly shown by exhibits 2 and 4 which clearly show that the lease document was yet to be prepared for execution by the parties, what does the allocation note matter? What could it in such circumstances have evidenced which exhibits 2 and 4 do not evidence? In any case I know of no law that mandatorily requires an allocation note. Even in Ghanaian popular parlance, it is a maxim that “Book no lie.”

Applying the principle in Ahiabley v Dorgah, supra, could it be said in the face of exhibits 2 and 4 that the plaintiff is truthful but with a faulty recollection? The plaintiff in his evidence was so specific in terms of months and years and even in some cases of days of the week that he cannot be debited with faulty recollection. How then was he visiting a non-existent house in 1955? It stands to reason that since as per exhibits 2 and 4, not until as late as 9^th May 1958 the late Kwaku Poku was still battling for a development permit he could not have commenced let alone completed he said building much earlier.

Furthermore the documents tendered in evidence tend strongly to show that the plot on which the disputed house stands was acquired in or around 1958. For several receipts show that the earliest demands and payments for ground rent date back only as far as 1958.

Also the earliest demand notices and payments in respect of property rate, then known as general rate, are dated between 1963/64-1971/72. See pp 156-194 of the record of appeal. Again, on the evidence, the best known time when occupation of the house began, with tenants renting it is 1964 when PW3 rented some rooms and connected electricity to it and thereafter the 1^st late plaintiff herself came in there. If the house was completed in 1955 was it lying idle all this long?

The Star Witnesses

The courts below were highly captivated by the evidence of PWS 1 and 5 in particular. Their evidence however requires closer scrutiny.

PW 1

PW1’s evidence at p.45 between lines 31-36 is as follows: “One day I and my husband came to Kumasi from a cottage where we were farming. When we came the 2^nd plaintiff approached my husband and told him he had acquired a plot at Krofofrom and so he had come to see him build a house on the plot for him.” This evidence stands alone and is not even supported by the plaintiff himself. The nearest support for it is when the plaintiff at p. 30 of the record, in  cross-examination and obviously as an afterthought, between lines 31-37 said thus: “I left the allocation sheet with my elder brother because I was leaving the country and I wanted him to use the proceeds of my shop to develop the land for me.” He does not even indicate where this took place. In any case from these two extracts the house was to be built not for the family but for the plaintiff.

Again the evidence of PW1 on this issue lost compressure under cross-examination at p.46 lines 39-46 thus: “Q: When you said 2^nd plaintiff sent money to your husband, did he send the money from abroad.

A: I cannot tell. What I know is that 2^nd plaintiff gave money and some documents to my husband.

Q: Did you know what those documents were.

A: No, what I know is that 2^nd plaintiff told my husband that he had acquired a plot.”

Then at p.47 between lines 4-10 she continued thus: “Q: Did you know the purpose for which the money was given to your husband?

A: What I know is that  2^nd plaintiff told my husband that he had acquired a plot at Krofofrom and that he should take the money and the documents and build a house for him.” One cannot fathom any consistency in such evidence. Nor should it be forgotten that though she admits that PW5 used to visit them at the Abompe farm, she maintained that he used only to come for school fees but did not help on the farm. PW5 sharply challenges that evidence at p.78 lines 1 to 10 thus: “Q: Afua Manu (P.W.1) has told this court that no member of Kwaku Poku’s family assisted in the cultivation of the Abompe Cocoa Farm.

A: If PW 1 said so, that is not correct because I was there and I assisted in the cultivation of that cocoa farm.” Naturally PW1 at least would have helped in the way he claims at p.74 of the record to have done. Between lines 20-21 thereof PW5 said: “I was assisting him to plant the cocoa trees.”

 It is quite clear that the courts below glossed over all these material considerations.

PW 5

In one breath at p. 74 lines 20-27 PW5 claims that only he and his grandmother assisted the late Kwaku Poku on his Abompe cocoa farm but in another breath at p.78 admits between lines 1 to 4 that Afua Manu (PW1) also assisted on that farm.

At p. 73 of the record PW5’s trend of evidence clearly is that when plaintiff was leaving the country he entrusted the store to him PW5. He was running it and “using the proceeds of the sale to replenish the store.” Later he tries to rope in the late Kwaku Poku by saying that it was he that put him in charge of the store before the plaintiff left the country for Britain. But not even the plaintiff himself has said that before leaving the country he entrusted his store to the late Kwaku Poku!

It is also amazing that though at p.34 of the record the plaintiff claimed between lines 29-30: “My daily earnings ranged between £25-£30. Yes, up to 1952,” he could not even start developing his alleged plot of land before he left for Britain. His explanation at p. 40 between lines 23-24 that “I did not develop the plot before I left because I was busy working on my shop” is very strange indeed since PW5 his nephew in whose charge he left it before leaving for Britain was around till he also left  for Britain in 1958. In any case it is difficult to see how a vibrant store business’ proceeds could only be used as PW5 said to replenish it.

The only indisputable evidence is the connection of water and electricity to the house by the deceased first plaintiff. But in my view such contributions to an already completed house can at best be a claim for restitution in equity but not co-ownership of the house. Even there she and her daughter enjoyed free accommodation in that house. This aside, it is incredible that the only two members of the family, particularly the plaintiff, who claims to have been the chief financier of the house, should have to leave that house especially as the plaintiff is quite clear that he has no other house.

The courts below did not consider all these matters.

Ownership of the Cocoa Farms

This issue is the easiest to determine in this case. It is quite clear on the evidence that the Abompe farm is the earlier of the two farms and indeed  the thrust of the evidence is that the second farm (the Siiso farm) is an offshoot of the Abompe farm. It therefore follows that if the earlier one is not family property then the Siiso farm cannot be family property.

PW1, testified at p. 45 of the Record between lines 31 and 37 thus: “One day I and my husband came to Kumasi from a cottage where we were farming…” Again at p.46 between lines 16-26 she said: “Yes I took part in cultivating the Abompe farm. I was the only one who assisted to cultivate the Abompe farm- no member of my husband’s family assisted in cultivating the Abompe farm. We used the proceeds at the Abompe farm to finance the Siiso farm”. She maintained this under cross-examination.

PW5, a nephew of both the plaintiff and the late Kwaku Poku was also clear both in examination-in-chief and cross-examination that the late Kwaku Poku owned the Abompe farm. At p.73 between lines 39-40 he said “When I was operating the store, I used to render accounts to my uncle Kwaku Poku anytime he came from his farm. The store was sold for £400. My uncle Kwaku Poku said the 2^nd plaintiff had instructed him to use the proceeds from the sale of the store to build a house on his (2^nd plaintiff) plot and use the rest to finance his (Kwaku’s farm). That farm is at Abompe”

At p.74, between lines 23-27, still under examination in chief he continued thus: “Yes I have been to the Abompe farm. I was even living there with my uncle Kwaku Poku. I was assisting him to plant the cocoa trees. My grandmother Yaa Mensah also went to Abompe. Apart from me and my grandmother nobody else went to Abompe to assist my uncle.”

More clearly under cross examination at p.76 between lines 39-47 he said “Q: When did Kwaku Poku start cultivation of the Abompe Cocoa farm.

A: In about 1949

Q: At what point in time did you go to assist him.

A: I was then a student so I used to go and assist him during the holidays.

Q: So he started cultivating the Abompe Cocoa farm before 2^nd plaintiff travelled abroad.

A: Yes”

PW1 admitted under cross-examination that PW5 used to come to them at Abompe during holidays. PW2’s evidence is clearly confused. Granting that PW5 assisted in the Abompe farm in the manner claimed by him, such casual filial vacation assistance cannot count as any serious contribution towards the family character of that farm. There is no other affirmative and meaningful assistance from any other person other than PW1, the deceased’s ex-wife. As to the alleged financial assistance by the plaintiff towards the acquisition of that farm, the least said of it the better. In one breath all the proceeds of the plaintiff’s beer bar and provisions store were to be used to construct the disputed house.

In another breath it was £100 of those proceeds that was to assist in the cultivation of that form. Yet in another breath it was simply the residue of those proceeds that was to so assist. In any event one wonders how there could be spare money from a house that was without electricity, water and a fence wall, to be spent on a farm.

The clearest pointer of the evidence is that at least the principal or founding farm at Abompe long predated the proceeds of the sale of plaintiff’s business.

It is however felt that the plaintiff and PW5 stand to gain from the disputed properties and so their evidence is not disinterested. But so also do the defendants under the Intestate Succession Law, PNDCL 111, 1985, though the latter have the benefit of the rule of caution about claims against the estate of a deceased person, on their side.

CONCLUSION

For all the foregoing reasons including the rule about caution regarding claims against the estates of deceased’s persons it is quite clear that the concurrent findings of the two courts below suffered, in the respects indicated, from material misdirections and inadequate considerations as to the law and the evidence.

Such circumstances warrant the reversal or variation of such concurrent findings. See Adu v Akamah (2007-2008), SCGLR 143, In re Fianko Akotuah (Dec’d) Fianko v Djan (2007-2008), SCGLR 165.

Accordingly I will allow the appeal.

                                                            W. A. ATUGUBA

(JUSTICE OF THE SUPREME COURT)

ANSAH, JSC:

This is an appeal from the judgment of the Court of Appeal dated 17 May 2005 which dismissed an appeal brought before it from the judgment of the High Court, Kumasi, where the plaintiffs sued for certain reliefs.

The facts and issues in dispute as well as the respective cases of the parties have been stated so accurately in the opinions read my brother Atuguba JSC that I have anything to add to them, lest I create unnecessary boredom. I agree with them and adopt them as my own.

I only wish to add a few words of my own to the opinion just read.

The respective cases for the parties adumbrated in their pleadings, evidence and submissions, have been stated with equal accuracy.

The plaintiffs are the uterine sister and brother respectively of the late Kwaku Poku who died intestate on 21^st July 1996; the 2^nd plaintiff was his customary successor, whilst the defendants are his personal representatives, the first being his widow and the second, his son. 

The pleadings concerning the acquisition of the land in dispute by the parties have also been referred to by my esteemed brethren. I will not repeat them here.

 The trial judge entered judgment for the plaintiffs on their claims as endorsed on the writ of summons and on the strength of the evidence before him. The defendants felt aggrieved by the judgment and appealed against it, first to the Court of Appeal which affirmed the decision of the trial Court and further to this court, on the grounds that:

1)   “The Court of Appeal in its leading judgment erred in law when it’s (sic) accepted as facts that the subsequent plot acquired by Opanin Kwaku Poku was replacement of the plot acquired earlier by the 2^nd Plaintiffs.

2)   The Court of Appeal again erred in not giving adequate consideration to the inconsistencies of the evidence given by the Plaintiffs/Respondent as to the acquisition of the properties.

3)   The Court of Appeal erred in not bringing the issue of capacity witness’s exception of Kwan v Nyenia (sic) principle.

4)   The Court of Appeal erred in holding that the 2nd Plaintiff could sue in respect of thee properties as customary successor to the late Kwaku Poku (sic) when he was claiming same as family properties, as a responsibility that, in the actual head of family of the family of the plaintiff/Respondent.”                      

It is obvious this was a typical dispute between a family on one hand and the survivors of a deceased family member and his immediate family on the other, over title to a house and other properties. This being an action for the declaration of title to land and recovery of possession the issue is what must a plaintiff do in order to succeed?

Section 10, 11 and 12 of the Evidence Decree, 1973, (NRCD 323), come in handy in answering this question. Section 10 provided that:

1) “For the purposes of this Decree, the burden of persuasion means the

obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

2) The burden of persuasion may require a party

(a) to raise a reasonable doubt concerning the existence or non-

existence of a fact, or

(b) to establish the existence or non-existence of a fact by a

preponderance of the probabilities or by proof beyond a reasonable doubt, or that he establish the existence or non-existence of a fact by preponderance of the probabilities, or beyond a reasonable doubt.”

Section 11 on the definition of the burden of producing evidence provided in the relevant portions that:

  X      X      X       X      X       X      X      X    

(4) In other circumstances the burden of producing evidence requires a party to

produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. 

Section 12 of the Decree also defined proof by a preponderance of the probabilities as:

(1)“Except as otherwise provided by law, the burden of persuasion requires

proof by a preponderance of the probabilities.”

(2) “Preponderance of the probabilities” means that degree of certainty of

belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.”

Brobbey JA  (as he then was) wrote in explanation of these provisions of the Decree in Yorkwa v Duah [1992-93] GBR 278, at 282 that:

 “Part II of NRCD 323 which deals with the burden of proof covers on one hand the burden of producing evidence under sections 11, 12 and 13. Considering the wording of section 10(1) in the light of the Commentary on the Evidence Decree…I am of the view that the expression burden of persuasion should be interpreted to mean the quality, quantum, amount, degree or extent of evidence the litigant is obligated to adduce in order to satisfy the requirement of proving a situation or a fact. The burden of persuation differs from the burden of producing evidence.

Under sections 11, 12 and 13, particularly section 179(1) of the Decree, the burden of producing evidence means the duty or obligation lying on a litigant to lead evidence. In other words, these latter sections cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led.

… Therefore it is the plaintiff who will lose first, who has the duty or obligation to lead evidence in order to forestall a ruling being made against him. This is clearly amplified in section 11(1) of NRCD 323 which provides that:

‘“For purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.”’

The learned justice went further to explain that:

“The Evidence Decree makes provision for the duty or obligation to adduce evidence to shift from one party to the other. In a situation …the duty or obligation could shift from the plaintiff to the defendant. If and when it is shifted, the defendant would be required to lead evidence to establish the sale once he claimed to have had possession by reason of sale of the house to him. When the duty or obligation to adduce evidence shifts, and the defendant fails to adduce evidence or any evidence on the sale, the ruling of the court on the sale will be against the defendant. This is the reason for the provision in section 14 which says that:

“Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.’”

Applying these legal provisions, explained in such details by the learned Judge to the facts of this appeal, it becomes clear that the respective positions have been that whereas the plaintiffs asserted title to the properties in dispute to have belonged to the family, the defendants laid it in the late Kwaku Poku as his self-acquired properties. Section 11(4) of the Decree put the obligation in civil proceedings like the present, of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. It was all a question of which of the parties was better able to prove its case than the other on all the evidence led at the trial?

In Odoi v Hammond [1971]2 GLR 375, CA, Azu Crabbe JA, (as he then was), said at p 382 that:

 “it is now common learning in this country that in an action for declaration of title to land the onus is heavily on the plaintiff to prove his case, and he cannot rely on the weakness of to the defendant’s case. He must indeed ‘show clear title’: per Yates Ag C.J. in Kuma v Kuma 1934 2 WACA 178 at p 179. In Kponuglo v Kodadja 1933 2 WACA 24 at p. 25, the Judicial Committee of the Privy Council observed that in an action for a declaration of title the “first question logically and chronologically, to consider in the appeal is the traditional evidence regarding the acquisition of a title to the disputed territory.” For a stool or family to succeed in an action for a declaration of title it must prove its method of acquisition conclusively, either by traditional evidence, or by overt acts of ownership exercised in respect of the land in dispute.”

As stated the plaintiffs led evidence to discharge of the onus that lay on them./// as outlined above in this opinion. There was evidence from the PW1 Afua Manu the widow of the late Kwaku Manu that the original plot was eaten up or swallowed by the newly constructed road, PW5 operated the provisions store that was sold for #400.00 by Kwaku Poku out of which #300 was used for the building and #300 for developing the Abompe farm; PW2, Kofi Adu, supported the claim that Kwaku Poku cultivated the Abompe farm; PW3, Charles Kusi and the PW4 Amma Ode, corroborated the plaintiff’s evidence that the second plaintiff’s sister, the deceased 1^st plaintiff contributed to the acquisition of the house, which consisted of providing electricity power and other utilities to the building, and also cement blocks for a fence wall around the building.

The plaintiffs having led that kind of evidence in favor of the family as owners of the disputed properties, the onus shifted to the defendants who laid ownership in the properties in Kwaku Poku, to lead that kind of evidence that would tilt the balance of the probabilities in their favor.

The defendants accepted the gauntlet and led evidence by the DW1 Dauda Ali a caretaker for Kwaku Poku’s cocoa farm at Siiso and a house in the Stadium area in Kumasi. It is common knowledge that that is not the same as New Amakom where the disputed house is situated.  The DW2 Isaac Asare Lartey said he was a tenant and the first defendant his landlady as per the tenancy agreement in Exhibit D.

In this appeal, the learned trial judge properly directed himself in resolving the dispute before him by referring to the principle in Kodilinye v Odu (2 WACA), explained in Ricketts v Addo [1975] 2 GLR, before coming to his judgment.

It is trite that an appeal to this court is by way of a rehearing and this court will consider the evidence led at the trial to see whether or not it supported the judgment of the lower courts, and the submissions before it in support of or against the appeal. I must observe from the record that the 1^st plaintiff died in the course of the trial but was never substituted, thus leaving the second as the lone crusader.

In support of ground one of appeal, the appellant submitted that the Court of Appeal confirmed the findings of the trial judge relying on the evidence adduced at the trial by the second plaintiff, supported as it were by the PW1, Afua Manu the widow of Kwaku Poku and the PW5, Yaw Agyei his nephew. The Court of Appeal considered the evidence as corroborating each other; for example, the evidence of the second plaintiff was that the construction of the house started before the second plaintiff left the shores of Ghana for the United Kingdom (UK), whereas the evidence on the record showed that it took place whilst he was in the UK. The trial judge found as a fact that Kwaku Poku built the house in dispute.

The implication was that the house was under construction before the second plaintiff left for the UK, for there was evidence that the plot acquired by the second plaintiff was eaten up by the construction of the Kumasi-Accra road; whilst the second plaintiff was in the U.K; there was no development on the land for if there had been any that would have been eaten up as well by the said construction. But the evidence was that whilst the second plaintiff was in Ghana, the construction had not even started. That was why he only asked Kwaku Poku to take a replacement plot and not a replacement house. If his evidence were to be true, that would have been also eaten up during the construction of the road.

In another consideration, the evidence of the second plaintiff/ respondent was not too creditworthy. Why did he ask Kwaku Manu to take the replacement plot in his Manu’s name but not his if he was truly the owner of the lost plot?

On the acquisition of the house and the cocoa farms, the trial judge found that proceeds from the Abompe farms were used to acquire the Siiso farms and the house in dispute; and also that the family contributed substantially towards the acquisition. Besides this, the second plaintiff asserted in his evidence that proceeds from his store and stock-in-trade was used for the same purpose.

This finding has been severely criticized by the appellants. To their counsel, the evidence by the plaintiffs was inconsistent with each other on fundamental issues before the court, like the acquisition of the disputed properties and so the plaintiff’s claims should have been dismissed. I shall come back to this aspect of submissions by the appellant.

The admitted fundamental issues are issues of fact, and the law is settled that all issues of facts are for the trial judge to determine. Counsel cited Doku v Doku & Another [1992-93] GBR 367, CA, and Bisi v Tabiri alias Asare [1987-88] 1 GLR 360, to buttress his point. The facts in Doku v Doku (supra) were that each party claimed sole ownership of the property in dispute, but at the end of the trial, the trial judge made definite findings of facts and upheld the claim by the 2nd defendant on his counterclaim for a declaration of title. The plaintiff appealed against the judgment on several grounds a summary of which was that the judgment was against the weight of evidence on record. Dismissing the appeal, the Court of Appeal stated the settled principles governing appeals on such grounds to be that:

“The generally accepted principle of law is that findings of fact made by a trial judge should not be disturbed unless they are perverse or not supported by the evidence on record. In Bruce v Attorney General [1967] GLR 170, it was held, inter alia, that an appellate court should not disturb findings of fact made by a trial judge, but it was equally true that an appellate court was not precluded from doing so.”

These principles of law were correctly stated by the Court of Appeal and ought to be affirmed.

In Bisi v Tabiri alias Asare [1987-88] GLR 360, this court reiterated this principle when it held that:

“I cannot believe that it was ever intended that the Court of Appeal (or any other appellate court for that matter) should move into a new era of regular questioning of decisions of trial judges on issues of fact, as distinct from law, which are supportable. For this reason there could be no ground for caviling at the judge’s exercise of discretion or duty in the selection of witnesses to believe or in stating his findings of fact.”

In stating his the SC did not make any reference whatsoever to what was stated in Bruce v Attorney General.

On the sore question whether Kwaku Poku acquired the plot of land on which the Amakom house stood by himself, the trial judge minced no words when he found as a fact that it was given as a replacement to the plot that had been given out to him previously but was eaten up as a result of the construction of the Kumasi-Accra road. I think the judge had enough evidence to make his finding and for that reason was not so perverse as to be reversed on appeal. The question was where was the evidence led to corroborate this claim of replacement plot? The second plaintiff said in his evidence in chief that he obtained an allocation paper from the Amakom stool, but he did not tender it in evidence saying he left it with Kwaku Poku. Dead men do not speak. The second plaintiff also made a startling statement in his evidence in chief that there were no title deeds to the house. He was literate who knew the importance of such documents; he would have taken them from Poku if he truly owned or even built the house. He could have changed all names on all documents on the house into either his or the family as he said he had wanted to have built the house for. He did not and left a huge credibility gap in his evidence concerning the ownership of the house. I therefore have some disquiet about how the Court of Appeal affirmed the findings of ownership of the house by the trial court.   

It must be borne in mind in this appeal that the Court of Appeal unanimously affirmed the judgment of the trial court on all facts and concurred in its judgment. An appeal from such a judgment is governed by the principle stated in Koglex No 2 v Field [2000] SCGLR 175 that:

“(2) Where the first appellate court had confirmed the findings of the trial court, the second appellate court would not interfere with the concurrent findings unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice, was apparent in the way in which the lower court had dealt with the facts.”

Authorities on this principle abound in our books and Achoro v Akanfela [1996-97] SCGLR 209, Obresiwa II v Otu [1996-97] 628 are cited for further elucidation and support.

A second appellate court would justifiably reverse the judgment of a first appellate court where the trial committed a fundamental error in its findings of fact but the first appellate court did not detect the error but affirmed it and thereby perpetuated the error. In that situation it becomes clear that a miscarriage of justice had occurred and a second appellate court will justifiably reverse the judgment of the first appellate court.

Thus stated, it cannot be said an appellate court cannot set aside a judgment where two lower courts had made concurrent findings of facts.

An appeal this court is by way of a rehearing meaning this court is entitled to review the evidence on the record to ascertain whether there is enough satisfactory evidence in support of both the findings and conclusion which was supported by the Court of Appeal since an appeal is by way of a rehearing of the case: see Wangara Gyato v Gyato Wangara [1982-83] GLR 639, holding 1; Akufo-Addo v Cathline [1992] GLR 377, holding 3; Fijal Stool v Effia Stool…   

In the present appeal the appellant assayed to demonstrate why the judgment of the Court of Appeal ought to be reversed by submitting before us that there were inconsistencies, and contradictions in the evidence proffered by the plaintiffs in support of their case.

The above submissions deserve some analysis. In Effisah v Ansah [2005-2006] SCGLR 943, one of the issues in the appeal was the submission by the appellant that there were inconsistencies and contradictions in the evidence of the plaintiff.  This court had no difficulty in dismissing the appellant’s complaint and said, in stating the law, in the opinion delivered by Mrs. Georgina Wood JSC (as she then was, but now CJ) that:

“In the real world evidence led at any trial which turns principally on issues of fact and involving fair number of witnesses, would not be entirely free form inconsistencies, conflicts or contradictions and the like. In evaluating evidence led at a trial, the presence of such matters per se should not justify a wholesale rejection of the evidence to which they may relate. Thus, in any given case, minor, immaterial insignificant or non-critical inconsistencies must not be dwelt upon to deny justice to a party who has substantially discharged his or her burden of persuasion.”

The learned Chief Justice then went on to give a proper direction which I find very useful in guiding a court in the face of such criticisms in a judgment as a ground of appeal, at page 960 of the judgment that:

“Where inconsistencies or conflicts in the evidence are clearly reconcilable and there is a critical mass of evidence on crucial or vital matters, the court would be right to gloss over these inconsistencies.”

In this appeal, the Court of Appeal observed that the events about which the witnesses testified took place over 40 years earlier and in circumstances as these there were bound to be inconsistencies in the narratives without any intention to tell a lie, as explained in Adjeibi Kojo v Bonsie….

I have examined the so called inconsistencies and found the criticism to have been well founded. They were not inconsistencies at all, or even if they were any, they were not so monumental or irreconcilable that the evidence must be rejected. At the highest, the most important part of the evidence was that the house was built by Kwaku Poku and whether it was before or after the second respondent journeyed to Europe was of a little or no significance. At any rate this was an issue of fact entirely within the province of the trial judge to determine one way or the other. Provided he resolved the issue in favor of or against one side based on the evidence before him, the settled law is that an appellate court would be slow to interfere with or set aside the finding of fact so made. ///And that corroborative evidence was not lacking for it was provided by the PW1, Afua Manu, the widow of Kwaku Poku and the PW5, Yaw Agyei, his nephew. The trial judge not only had the benefit of hearing these witnesses in their viva voce evidence in court, he also saw their demeanor as they did so. He came to the conclusion that their evidence was credible and worthy of belief. The veracity or otherwise of a witness is a function reserved exclusively for the trial judge and will ordinarily not be interfered with except it was proved he did not take advantage of seeing the witnesses as they testified before him, or drew the wrong inferences from the evidence. That appears to have been the case here.

From the nature of the facts and issues before the court, all the evidence must be considered dispassionately. The appellants relied heavily on the fact that documents on the house like building plans and permits, demand notices and receipts for payments of rents were in the name of Kwaku Poku but though in law that, per se, was no proof of title to a property in dispute, they are not be glossed over for they serve as strong acts of ownership which may be spokes in a claim for declaration of title by a plaintiff.

I am bold to say that in the face of the strong challenge by the defendants on the title to the house in dispute, it was not enough for the plaintiffs to have relied on only the viva voce evidence by the plaintiffs no matter who how many they are. Corroborative evidence that was likely to exist were their evidence to be believed as true; official documents from official or public sources could have been produced, see Majolagbe v Larbi [1959] GLR…But in this case nothing like that came from the plaintiffs.    

The respondent led no sufficient evidence to show how the second plaintiff acquired the plot of land on which the house stood. The evidence in the documents in his name must be matched against the totality of the evidence on record that even if Kwaku Poku built the house, the family made contributions, substantial or otherwise, towards the acquisition, for the store run by the PW5 and the stock in trade were sold and the proceeds or part thereof were pooled together for the acquisition, proceeds from the farm at Siiso was utilized in acquiring the Abompe farm.In circumstances like this the legal conclusion was that the house at New Amakom Extension, Plot Number 11, Block 24, so acquired are stamped with the family character, or badge was against the weight of the evidence . The case that they were acquired by the second plaintiff was not supported by the evidence on record as found by the trial court. The appeal by the respondent must fail.

The sum total of grounds one and two of appeal was that the judgment of the trial court was against the weight of evidence. It requires no authority to be cited in support of the proposition that an appeal to this court is by way of a re-hearing and even though it is not the function of the appellate court to assess the veracity, truthfulness or otherwise of the witnesses in a civil case, it is incumbent on the court to take into account the testimonies and all the evidence, documentary or oral, adduced at the trial before arriving at its decision so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence: see Tuakwa v Bosom [2001-2002] SCGLR 61.

Accordingly the Court of Appeal erred in affirming the findings of fact by the trial court and grounds 1 and 2 of Appeal are both allowed.   

Grounds 3 and 4 of appeal touching and dealing with the plaintiffs’ capacity to sue raise important issues of law and will be considered together.

   These grounds of appeal were that:

3. “The Court of Appeal erred in not bringing the issue of capacity within the reception (sic) of Kwan v Nyieni principle and the Court of Appeal erred in holding that the 2^nd plaintiff could sue in respect of these properties as customary successor to the late Kwaku Poku when he was claiming properties a responsibility that, in the prerogative of the actual Head of family of the Plaintiff/Respondent.

4. The issue of capacity is fundamental to our law and being a question of law can be raised at anytime even on appeal. The Court therefore erred in holding that the Defendants/Appellants did not raise that issue at the trial court and therefore could not do so at the Appellate Court.”

The material holding in Kwan v Nyieni [1959] GLR 67 was:

“as a general rule the head of family, as representative of the family is the proper person to institute suits for the recovery of family land;

(1)                 to this general rule there are exceptions in certain special circumstances, such as:

(i).where the family property is in danger of being lost to the family, and it is shown that the head either out of personal interest will not make a move to save or preserve it;

(ii). where owing to a division in the family, the head and some of the principal members will not take any step;

Or

iii.           where the head and the principal members are deliberately disposing of the family property in their interest, to the detriment of the family as a whole.

In any such special circumstances, the Court will entertain an action by any member of the family, either upon proof that he has been authorized by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property.”    

The grounds of appeal quoted above sum up much of the dispute in this appeal.

There is no paucity or dearth of authority on this point. Nyamekye v Ansah [1989-90] 2GLR 152 CA considered who qualifies to be head of family and made it clear at page 162 of the report, that when a successor is appointed by the family he/she automatically becomes the head of family; he can also be appointed by popular acclamation or by virtue of the fact that he/she is the oldest member of the family. Again, any person who the family permits to deal with family property for and on behalf of the family, or to exercise the functions of a head of family, is deemed to be the head of family until the contrary is proved: see Mills v Addy (1958) 3 WALR 357, and also Sarbah’s Fanti Customary Laws (1897 ed).

In Nyame v Ansah (supra), the Court of Appeal held further that:

“As a general rule, the head of family as representative of the family is the proper person to institute suits for the recovery of family land: see Kwan v Nyieni [1959] GLR 67 at 72, CA. And where the authority of a person to sue in representative capacity is challenged, the onus is on him to [prove] that he has been duly authorized. He cannot succeed on the merits without first satisfying the court on that important preliminary issue.

The plaintiffs/appellants sued as the “customary successor of the late Kwaku Poku for themselves and on behalf of the family of the late Kwaku Poku” for reliefs itemized above. They sought declarations that the properties were for the family, pleaded facts and led evidence in support. In those circumstances the exception in the proviso to the principle in Kwan v Nyieni (supra), does apply as respondents acted to claim and protect the family character of the properties in dispute.

At the application for directions the parties settled, inter alia, the following issues for trial:

“3 Whether or not the purchase price of the Beer Bar and provisions Shop was given to the late Kwaku Poku to put up house on Plot 11, Block 24, New Amakom, for the family.

5 Whether or not the house in dispute is family property.

8 Whether H/No. Plot 11, Block 24, New Amakom extension is family property.

9 Whether or not the Abompe and Siiso cocoa farms are family properties.

12 Whether or not the plaintiffs are entitled to the reliefs being sought by them.”

Thus, whether the plaintiffs had the requisite capacity to sue was made an issue for trial. That issue was raised by virtue of the general traverse in the statement of defense.

It is unfortunate the trial judge did not consider the issue of capacity anywhere in his entire judgment. When he considered whether or not the properties in dispute were for the family he should have gone forward to also consider if they were family properties then whether or not the plaintiffs were clothed with the requisite capacity to sue in respect thereof. That was irrespective of whether or not the parties made that an issue for trial. Capacity to sue was a matter of law and could be raised at any stage of the proceedings even on appeal. It can be raised by the court suo motu.

It was the Court of Appeal which raised the issue and resolved it by holding that the plaintiffs pleaded in paragraph 4 of their statement of claim that the second plaintiff was “the customary successor of the late Kwaku Poku.” The respondents admitted the averment in the said paragraph 4 and with that there was no need to prove the fact any further. Akamba JA, concurring with the opinion of Anin Yeboah J.A (as he then was, who read the leading judgment), said that in Akan customary law, a person appointed a customary successor to a deceased in the family becomes the head of the immediate family and is the proper person to sue and be sued in respect of that particular family

 Property. The Court relied on Atta v Amissah (1970) CC 73, that:

“The person appointed successor to the deceased becomes, under customary law, the head of the immediate family, and is as such head, the proper person to sue and be sued in respect of that particular family property.”  N.A. Ollennu’s invaluable Customary Land Law in Ghana made the same point at page 151.

In Sarkodie I v Boateng II [1982-83] GLR 715, SC, this court said that

“It was elementary that a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence. And it was no answer for a party whose capacity to initiate proceedings has been challenged by his adversary to plead that he should be given a hearing on the merits because he had a cast-iron case against his proponent.”(es)

The Supreme Court considers the question of capacity in initiating proceedings as very important and fundamental and can have a catastrophic effect on the fortunes of a case. Thus, in Republic v High Court, Accra, Ex parte Aryeetey (Ankra Interested Party, [2003-2004] SCGLR 398, the brief facts were that the interested party knew that his father had died testate and the will had been read, though probate had not been taken, he failed to disclose to the court that he was one of the executors of the said will, and that probate had not been taken. In suing, therefore as a beneficiary and customary successor, of his late father the interested party lacked the capacity to sue, rendering the writ and subsequent proceedings thereon null and void.       

The Court held that:

“Any challenge to capacity therefore puts the validity of a writ in issue. It is a proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is not concerned with the merits so that if the axe falls, then a defendant who is lucky enough to  have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled to insist upon his rights: see Akrong v Bulley [1965] GLR 469 SC.”

 It must be pointed out that in the present appeal, there was no issue raised on the position of the plaintiff as a head of family for that was admitted on the pleadings.

Thus, it became clear that the Court of Appeal did consider all the issues at stake including the capacity of the plaintiff to sue, took into consideration all the relevant authorities governing the issue before concluding that any attempt by the appellants at this stage to question the Respondent’s capacity after the initial admission thereof, is unfounded, uncalled for and a mere waste of time and effort.

In my opinion, the Court of Appeal did err on grounds 1 and 2 of the appeal, as the findings by the trial court were not supported by the evidence on record, and the conclusion was not proper. The Court of Appeal disabled itself from coming to the proper conclusion in affirming the decision of the trial court.

With that I am persuaded that the appeal ought to succeed and is consequently allowed.

 I may remark now that in United Products Ltd. v Afari (1929) D.C. ’29-’31 at p11, Deane CJ held that:

 “the (frequently adopted) presumption with regard to land in this country is that it is family land.” Lingley J made the same point in Andoh & Anor. v Franklin & Ors. D,C.(Land) 52-55; see also Codjoe v Kwatchey 1935 (2) WACA 371, and more recently, Nti v Amina [1984-86] 2 GLR 135 at 146-147, C.A.  With the passage of time the presumption reduced in strength and became rebuttable. By 1935, it had become not too strong a presumption as it used to be in time past, so however that in 1960 the then Court of Appeal summed up the situation in Larbi v Cato [1960] GLR 146 that:

“Whilst it is true that customary law requires that the presumption in favor of family property should be rebutted by evidence and that the onus is on who asserts sole ownership, that onus shifts once it is shown that that person has been dealing with the property as his own….”

In 1986, the Court of Appeal held at p 147 that: “in modern Ghana the said presumption should not be a strong one and the burden of proof on the one who asserts sole ownership should be very light and that any slight but reliable evidence should be sufficient to rebut that presumption.” see Nti v Amina (supra) The defendants in this appeal bore the onus of rebutting the presumption in favour of the plaintiffs even though it may be weak now.      

Now, it is common knowledge that statute has given more recognition to the ownership of property by the individual than the family. See The Intestate Succession Law, 1986, PNDCL 111. In this appeal, the defendant who assumed the burden of proving on the preponderance of the probabilities that the properties were for the estate of Kwaku Poku and not the family, was able to rebut the presumption with evidence that was more than slight and reliable. Now, the old order has changed giving way to the new. The lower courts did not pay proper regard to the law applicable to the facts of this case, and came to the wrong conclusions and gave judgment in favor of the plaintiffs on their claims. This is a proper case to interfere with and to set aside the concurrent judgments of the lower courts.

The judgment of the Court of Appeal is hereby set aside and the appeal allowed.       

J. ANSAH

(JUSTICE OF THE SUPREME COURT)

ADINYIRA (MRS), JSC:

I have had the privilege of reading the judgments of my brothers Ansah JSC and Dotse JSC, and I agree that the appeal be allowed. After a careful scrutiny of the record, I find it very difficult to accept the concurrent decisions of the trial and appellate court that the properties in dispute were family properties. The principles governing appeals against concurrent findings of fact by two lower courts is well grounded and expounded in the case cited by my brother Dotse, ACHORO & Anr v. Akanfela & Anr [1996-97] SCGL 209. In support I wish to add the cases of Kpoglex Ltd. No. 2 v. Field [2000] SCGLR 175 and the more recent case of Adu v. Ahamah [2007 -2008] SCGLR 143. Boateng (No.2) v. Manu (No.2) [2007-2008] SCGLR 1117. Social Security Bank Ltd. V. CBAM Services Inc. [2007-2008] SCGLR 894. Applying the principle to this case I agree that there was overwhelming evidence both documentary and overt acts of ownership by Opanin Kwaku Poku which if the Court of Appeal had properly appreciated and evaluated, they would have come to a different conclusion from the trial court. Had the lower courts applied the rule of evidence of presumption of title raised by acts of ownership under section 48 (2) of the Evidence Decree, 1975 NRCD 323 their conclusion would have been different. 

I wish to cite one example of overt acts of ownership, to add to what my brother Dotse enumerated in his well written opinion. The 2^nd Plaintiff who claimed he bought the land and provided money to put up the house in dispute was ejected from this same house by the late Opanin Kwaku Poku. Yet during Opanin Kwaku Poku’s lifetime, the 2^nd plaintiff did not lift a finger to protest nor assert his right even if not as the owner but as a member of a family that is alleged to own the house. Clearly the 2^nd Plaintiff’s conduct exposes the hollowness of his claim against the widow and children of Opanin Kwaku Poku.  The preponderance of the evidence weighs heavily against the findings of the courts below and accordingly this Court ought to interfere and reverse the finding of the lower courts. The appeal accordingly succeeds.

S. O. A. ADINYIRA (MRS)

      (JUSTICE OF THE SUPREME COURT)

DOTSE, JSC:

FACTS

The Plaintiffs/Respondents/Respondents, hereinafter referred to as the Plaintiffs instituted action against the Defendants/Appellants/Appellants, hereinafter referred to as the Defendants in the High Court, Kumasi claiming reliefs in the nature of Declarations in respect of three immovable properties as their family properties, namely;

i.             House No. Plot II Block 24 Amakom Kumasi

ii.            Cocoa farm situate at Siiso on Kwapong Stool lands and

iii.           Farmstead situate at Abompe and Kunso stool lands.

The Defendants did not counterclaim before the trial court.

FACTS OF THE CASE

The Plaintiffs are the sister and brother of one Opanyin KWAKU POKU who died intestate in Kumasi on the 21^st day of July 1996.

Following his death intestate, the Defendants herein, who are the widow and son respectively of the said OPANYIN KWAKU POKU successfully applied for and obtained Letters of Administration in respect of the estate of their deceased husband and father.

Included in the inventory of the properties listed in the application for the grant of the letters of Administration are the properties referred to supra. The Plaintiffs contending that the said properties are family properties, initiated the suit against the Defendants in the High Court Kumasi.

The Defendants denied the claims by the Plaintiffs and asserted that the properties in dispute were the self acquired properties of the deceased Opanyin Kwaku Poku.

On 23-09-03, judgment was entered for the Plaintiffs on all their reliefs in the trial court and aggrieved by that decision the Defendants filed a notice of Appeal in the Court of Appeal. The Defendants main ground of appeal was that the judgment was against the weight of the evidence.  The Defendants subsequently argued two additional grounds of appeal namely that the learned trial judge shifted the burden of proof onto the Defendants and the Plaintiffs lacked the capacity to institute the action in the first place.

On the 17^th day of May 2005, the Court of Appeal by a unanimous decision dismissed the appeal on the grounds that the appeal in its entirety lacked any merits whatsoever.

Further aggrieved by the decision of the Court of Appeal the Defendants appealed to the Supreme Court by filing a notice of Appeal on the 15^th of July 2005.

GROUNDS OF APPEAL

The grounds of appeal were as follows:

1.       The Court of Appeal in its leading judgment erred in law when it accepted as fact that the subsequent plot acquired by Opanin Kwaku Poku was replacement of the plot acquired earlier by the 2^nd Plaintiff.

2.       The Court of Appeal again erred in not giving adequate consideration to the inconsistencies of the evidence given by the Plaintiffs/Respondents as to the acquisition of the properties.

3.       The court of Appeal erred in not bringing the issue of capacity within the reception of Kwan v Nyieni principle.

4.       The Court of Appeal erred in holding that the 2^nd Plaintiff could sue in respect of these properties as customary successor to the late Kwaku Poku, when he was claiming same as family properties, a responsibility that is the prerogative of the actual Head of family of the Plaintiff-Respondent.

At the trial court, both parties testified and called witnesses.

Whilst it was the 2^nd Plaintiff who testified for and on behalf of the Plaintiffs, and  called five witnesses, both Defendants testified and also called witnesses.

PLAINTIFFS CASE

What was the evidence led by the Plaintiffs to prove the method of acquisition of the property in dispute? According to the 2^nd Plaintiff sometime around 1949, he acquired a piece of land from the Amakomhene on orders from the Asantehene Prempeh II. In 1952, he traveled to the United Kingdom and whilst there, he was informed by his mother that the plot of land he had acquired had been affected by the construction of the Accra-Kumasi highway. According to the Plaintiff, his mother assured him that she had informed the Otumfuo and the Amakomhene who promised to give him a replacement plot but his absence from Ghana at the time was going to pose a problem. He therefore instructed his mother to let his brother, the late Kwaku Poku to act on his behalf.

He also led evidence that he owned a beer bar and a provision store which he left in the care of his late brother when he departed for the UK. He later directed that the bar and the stock in it be sold and the proceeds used to fund the construction of the house. According to the 2^nd  Plaintiff, he came back from England in 1955 and the Deceased took him round to show him the completed house. He said the property had not been fenced at the time. He left again for the UK and came back in 1960 where the house was in the same condition as he had seen it in 1955 except that a fence wall had now been built around the house. He said the fence wall had been constructed by the 1^st Plaintiff out of her own resources. Later in 1974, he visited again and the 1^st Plaintiff informed him that she had moved into the house and had connected water and electricity to the House. He tendered in Evidence Exh A, which is a receipt from the Ghana Water and Sewerage Corporation dated January 1994 and in the name of Akosua Dufie who until her demise was the 1^st Plaintiff in this matter.

From the record, this was the only evidence tendered by the Plaintiff in support of his case of proving title to the land. The 2^nd  Plaintiff also said in his evidence that he had been given an “allocation paper” evidencing the acquisition of the property. This the Plaintiff alleges he handed over to his brother before he left for England after explaining to him what it was.

DEFENDANTS CASE

2^nd Defendant in his evidence stated that the properties in dispute were the self acquired properties of his late father. In support of this, he tendered in exhibits 1-13. Exhibit 1 was a goldsmith’s license even though it was not in dispute that the deceased had been a goldsmith before becoming a farmer. Exh 2  entitled “undertaking”  was dated 23^rd June 1958 and attested to by the deceased and an officer from the Asantehene’s Land office. It was also copied to the Amakomhene. Also tendered in evidence were copies of site plans and receipts for the payment of tribute to various stools and property and ground rent all issued in the name of Kwaku Poku the deceased.

From the grounds of appeal filed by the Defendants in this court, coupled with the Statement of Case filed by Counsel for the parties, it is clear the thrust of the appeal revolves around the rival contentions of the Plaintiffs that the properties in dispute are family properties in contrast to the Defendants claims that that the properties were the self-acquired properties of the deceased, KWAKU POKU.

From the evidence on record, the resolution of this dispute will revolve around

1.       Assessment of the conflicting pieces of evidence adduced by the parties at the trial court.

2.       The source of funding as determined by the learned trial judge at the trial court and;

3.       Since the issue of CAPACITY has been argued, it will be considered first as a matter of procedure.

SUBMISSIONS ON CAPACITY

The Counsel for the Appellants argued doggedly the issue of capacity of the Plaintiffs to institute the present action. Counsel advanced the argument that as the Plaintiffs were claiming family property, they had to be clothed with the requisite capacity. The endorsement on the Writ of Summons read as follows:

1.   MADAM AKOSUA DUFIE                        PLAINTIFFS

2.   KINGSLEY ADU POKU-MENSAH   

(Customary successor to the late Kweku Poku For themselves and on behalf of the family of the late Kwaku Poku)

It is apparent that the 2^nd Plaintiff was the customary successor of the late Kwaku Poku and this was admitted by the Defendants in their defence and testimony.  Capacity is a point of law which if raised goes to the root of the action. The law on the position of a customary successor must then be examined to determine whether or not the 2^nd Plaintiff was clothed with the capacity.

In GHANA MUSLIMS REPRESENTATIVE COUNCIL AND OTHERS v SALIFU AND OTHERS [1975] 2 GLR 246-265, the learned Judges held that in a representative action it was necessary, both in the writ and all subsequent pleadings to state clearly that the parties were suing or being sued in their representative capacity on behalf of the members  of a defined class.

It must be stated that the Plaintiff/Respondent had endorsed their Writ and pleadings as such and therefore no issue could be raised about the procedure or the capacity in which they sued.-

In NYAMEKYE v ANSAH [1989-90] 2 GLR 152-163 it was held that as a general rule, the head of a family as representatives of the family was the proper person to institute suits for the recovery of family land. And where the authority of a person to sue in a representative capacity was challenged, the onus was upon him to prove that he had been duly authorized. He could not succeed on the merits without satisfying the court on that important preliminary issue. The customary law position was that when a successor was appointed, he was ipso facto the head of the immediate family. In the instant case, the 2^nd Plaintiff had been appointed the successor and therefore he became the head of the immediate family. He therefore had the capacity to sue and the judgment of the court of Appeal in that respect ought not to be disturbed.

What weight then ought to be put on the conflicting evidence adduced by both parties?

In the case of Yorkwa v Duah [1992-93] GBLR 278, CA, it was held that whenever there was in existence a written agreement and conflicting oral evidence over a transaction, the practice in the Court was to lean favourably towards the documentary evidence, especially if it was authentic and the oral evidence conflicting. See also Nsiah v Atuahene, [1992-93] GBLR 897 C.A

It is interesting to note that in an action for a declaration of title to land, all the Plaintiffs  were able to produce in support of their claim was a utility receipt dated January 1994 especially also as the burden of proof and persuasion rested firmly on them.

The Defendants on the other hand have been able to produce enough compelling evidence to support their claim that the properties were the self acquired properties of the deceased. The Plaintiff claimed that the building was completed in 1955 whereas the Defendant tendered in Exh 4 dated 9-5-58 which was a receipt for the preparation of permit to develop Plot No 11 Block 24 which is the property in dispute.

Other pieces of evidence which go to confirm that the deceased exercised overt acts of ownership more than the Plaintiffs were able to prove, are the following;

1.       It was not disputed that the deceased exercised overt acts of ownership over the properties without  challenge from either the 1^st or 2^nd Plaintiff. He rented out the property to tenants and was never once called to account for the proceeds of the rent.

2.       He paid all the ground rent and property rates by himself without any help from anyone. All these acts go to support the assertion of the Defendants that indeed the properties were the self acquired properties of Kwaku Poku.

In cross examination, the 2^nd  Plaintiff was asked if he ever asked his brother about the title deeds to the properties and his answer was that he never did because the deceased was his elder brother and he didn’t have to ask him for the title deeds.

Indeed this flies in the face of reason especially if as he claims he only put the deceased in charge because he was outside the country at the time. This assertion by the 2^nd Plaintiff is contrary to logic and his subsequent conduct in seeking to establish that the properties were family properties. His conduct any time he came back from the UK was inconsistent with someone who was financing or had financed the acquisition of the disputed properties.

Indeed in the Defendants statement of case, learned Counsel for the Defendant strongly argued that both the Trial Judge and the Court of Appeal failed to consider the inconsistencies in the evidence of the Plaintiffs and their witnesses and rather tended to give weight to such inconsistencies contrary to the principle of law laid down in Odametey v Clocuh [1989-90]1 GLR 14 @ 28 S.C. 

3.       The evidence of  PW1 that she divorced the deceased Kwaku Poku because he did not give her a portion of the farm they cultivated together is telling and should have been scrutinized by the learned trial judge. If she knew that it was family property why would she be claiming a part when she was aware that she was not  part of Kwaku Poku’s family and in her own testimony, this was the reason why she divorced the deceased. This in my view would rather corroborate Defendants assertion that the property was not family property but rather the self acquired property of Kwaku Poku.

4.       In addition to this, from the evidence on record, Kwaku Poku was never called upon to account for the proceeds from the cocoa farms in his lifetime, neither is there evidence on record to show that he of his own volition ever accounted to the family for the proceeds from the cocoa farm or for the Amakom property.

All these pieces of evidence lead to one irresistible conclusion that the property was not family property.

WEAKNESSES IN PLAINTIFFS CASE

i.        2^nd Plaintiff also gave evidence that it was his sister the 1^st Plaintiff who connected utility services to the property in Amakom.  P.W 3 also testified that he was responsible for connecting electricity to the house. In his testimony, he informed the Landlord Kwaku Poku and this was before 1^st Plaintiff came to live in the house. He also testified that 1^st  Plaintiff refunded the money to him but does this refund of the money convert the property to family property? I don’t think so. Indeed in Ghana, it is not unreasonable nor uncommon for tenants to make certain improvements to properties they have rented to make conditions favourable for them. It is therefore not unreasonable for the 1^st Plaintiff to pay for the water connection to the house.  Afterall, she was living in the house at the time and did it to make life easier for herself. Since the deceased was not living there himself at the time I would think that it certainly was not on his list of priorities.

ii.       Again, in the testimony of PW5, he claims the cocoa farm at Abompe was acquired around 1949, this was a full three years before the 2^nd Plaintiff left for his sojourn in the UK. The evidence that it was ₤100 realised from the sale of the beer bar that was used to cultivate the farm therefore cannot be correct. This is because from the evidence, the beer bar was sold much later. PW5 further testified that he helped in the cultivation of the farm during vacations from school, however PW1 contradicts this as she said no member of the family helped in the cultivation. PW 2 also testified that so far as he knew the cocoa farm belonged to Kwaku Poku. In my opinion, these are the inconsistencies and conflicts in the Plaintiffs case which are weaknesses inherent in their entire story. In this regard, if one considers the restatement of the principle in KODILINYE v ODU (1935) 2 WACA 336 in the case of ODAMETEY v CLOCUH already referred to supra, it would mean that the Plaintiffs had not met the standard of proof required on a balance of probabilities to require a consideration of the weaknesses if any in the Defendant’s case.

Obeng v Bempomaa [1992-93] GBR 1027, held that inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence.

iii.      Furthermore, in the Statement of Claim of the Plaintiffs, they pleaded that it was the proceeds from their father’s cocoa farm which was used to acquire the farms at Abompe and Siiso. They alleged that their father died testate but they put Kwaku Poku in charge as he was the eldest among the siblings. The question one may be tempted to ask is why the deceased will want to engage in the arduous task of cultivating virgin land when he already had three cocoa farms to take care of.  Again, no evidence was led as to what happened to the cocoa farms bequeathed to them by their father. The only reasonable inference to draw here is that Kwaku Poku went to all that trouble to acquire the two new farms because he intended it for himself and not as family property. In any case, the Plaintiffs did not lead any credible evidence to prove that the Deceased used the proceeds from his father’s estate to enrich himself.

As has already been stated, the glaring inconsistencies should not have been glossed over by the court below as “minor discrepancies” but should have been put under the strictest of scrutiny as they leave gaping holes in the evidence proffered by the Plaintiffs.

Besides, as the deceased himself could not be brought to testify, the learned trial judge should have gone through the evidence with a fine toothed comb to untangle all the knots. See the English case of Garnett, In re; Gandy v Macaulay (1886) 31 Ch D 1 @ 9 where Brett MR stated as follows

“The law is that when an attempt is made to charge a dead person in a matter, in which if he were alive he might have answered the charge, the evidence ought to be looked at with great care; the evidence ought to be thoroughly sifted, and the mind of any Judge who hears it ought to be, first of all in a state of suspicion…”

In my opinion, the judgment of the trial court was indeed against the weight of the evidence as the Plaintiffs were not able to discharge the burden to entitle them to the declaration they sought.

Secondly, it has to be noted that from the pieces of evidence referred to above, it is clear that the Plaintiffs have not been able to establish convincingly that the source of funding the acquisition of the properties came from the 2^nd Plaintiff. This will be explained.

PRINCIPLE ON DEPARTING FROM CONCURRING FINDINGS OF FACT BY LOWER COURT

At this stage, it must be observed that any attempt to come to different findings of fact other than those that have been made by the learned trial judge and affirmed by the learned justices of the Court of Appeal would be met by an established principle of law. This principle of law is that, an appellate court, such as this court, can only differ from the findings of fact made by a trial court and concurred in by an appellate court (just as happened in the instant case) unless it is satisfied that any advantage enjoyed by the trial court in seeing, hearing and observing the demeanour of witnesses cannot be explained by the conclusions reached by the trial court.

Indeed, there is a long line of distinguished foreign and local cases to illustrate this time honoured and hallowed principle of law.

Cases which immediately come to my mind and attention are the following:

1. THOMAS v THOMAS [1947] All ER 582
2. CLARKE v EDINBURGH TRAMWAYS CO [1919] S.C H.L 35@36
3. POWELL v STREATHAM MANOR NURSING HOME [1935] AC 243 @250 H.L
4. AKUFO-ADDO v CATHLINE [1992] 1 GLR 377 per Osei-Hwere JSC
5. ASANTE v CFAO [1961] GLR 12 PC
6. NTIRI & ANR v ESSIEN & ANR [2001-2002] SCGLR 451
7. ACHORO & ANR v AKANFELA & ANR [1996-97] SCGLR 209, holding 2

Where the Supreme Court, speaking with one voice through Acquah JSC as he then was stated the principle as follows:

“In an appeal against findings of facts to a second Appellate Court like [the Supreme Court] where the lower appellate court had concurred in the findings of the trial court especially in a dispute of which the subject matter was peculiarly within the bosom of the two lower courts or tribunals, this court will not interfere with the concurrent findings of the two lower courts unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice was apparent in the way in which the lower tribunals had dealt with the facts. It must be established e.g that the lower courts had clearly erred in the face of a crucial documentary evidence, or a principle of evidence had not been properly applied, or that the finding was based on an erroneous proposition of the law that if that proposition be corrected, the finding would disappear. It must be demonstrated that the judgment of the courts below were clearly wrong.”

See also the Nigerian Supreme Court case of ADEGBITE v OGUNFAOLU & ANOR [1990]  3 N.S.C.C 66 Holding 1.

From the above authorities, the principle might be stated that an appellate court such as this court may interfere with the findings of fact of a trial court where the latter failed properly to evaluate the evidence or make the proper use of  the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from the accepted evidence or where its findings are shown to be perverse.

In the instant case, it must be noted that one of the principal characters, Opanyin Kwaku Poku had died. The law is settled that whenever issues touching the estate of a person who is deceased comes into play, the courts must be very slow in construing evidence against the dead person.

See cases of In re Krah (Decd) Yankyeraah & Ors v Osei-Tutu & Anor [1989-90]1GLR 638 @ 662,  Bisi v Tabiri [1987-88] 1 GLR, 360 @ 409, where the principle was stated that;

“The well-known rule is that claims against a deceased’s estate must be scrutinized with circumspection”   

Secondly, if the trial court and the Court of Appeal had adverted their minds to the fact that the Plaintiffs by their common desire to claim the property as family property needed to produce very cogent, reliable, credible and convincing evidence that the properties in dispute did not belong to the deceased, they would have been more cautious in their evaluation of the case. This is especially crucial and important in view of the overwhelming  documentary evidence proffered by the Defendants to support their contention that the properties were self-acquired by the deceased, Kwaku Poku.

This has been further buttressed by the many overt acts of possession and ownership exhibited by the deceased in his lifetime without challenge by the Plaintiffs and their collaborators.

What must be equally noted is that the evidence of PW1 AFUA MUNU, the divorced wife of the deceased should have been evaluated and assessed with circumspection.

This is because she claimed she was married to the deceased before the widow, 1^st Defendant was married to the deceased. However, as at the time of the deceased’s death, PW1 was no longer married to him.

The evidence of  this witness PW1 differed materially from that of the 2^nd Plaintiff and in some instances exposed herself as someone who is bitter against the deceased and the Defendants.

The 2^nd Plaintiff in his evidence-in-chief testified thus:

“In respect of the replacement plot, I directed my mother to tell Kwaku Poku to use the proceeds from my store to clear the plot and sell the beer bar and the provisions shop for ₤400 and use all these proceeds to put up a house on the plot. I further directed that the balance be used to cultivate cocoa farm at Abompe”     

However, PW1 in her testimony told the court that one day in the company of the deceased to Kumasi, she heard 2^nd Plaintiff inform the deceased that he had acquired a plot at Krofofrom and that he 2^nd Plaintiff had come to see the deceased for the purposes of  the latter building a house on the plot for him. This meant that the 2^nd Plaintiff was in Kumasi when he gave those instructions. There was no indication that he had traveled or had planned to travel. As between the deceased who was reputed to be living in the cottage and the 2^nd Plaintiff who lived in Kumasi who had the better chance to supervise a house if indeed the 2^nd Plaintiff wanted to build a house?

Secondly, PW1 stated that the 2^nd Plaintiff sent money to the deceased but she was unable to say whether that was the money used for the construction of the house.

Thirdly, PW1 stated in clear terms that the deceased cultivated the Abompe farms first, and with the proceeds from the said farms, went on to cultivate the farm at Siiso.

In view of the claims by the PW1 that the deceased was not assisted by anybody in cultivating the said farms except herself, is it not surprising that the learned trial judge failed to appreciate the import of the said testimony?

Finally, PW1 stated clearly that it was because of the failure of the deceased to give her a portion of the farms that they jointly cultivated that she divorced him. If the farms were family farms or property, why would PW1 ask for a portion? PW1 definitely does not belong to that family..

It is because it was the deceased who personally cultivated these farms from his own resources that PW1 demanded a share which was rejected.

Thus, it must be noted that PW1 as an estranged wife to the deceased is bitter and jealous of the 1^st Defendant who was her rival in the marriage. The learned trial judge should have seen through the intrigues that were at play in this case.

Again, the evidence of PW5 a nephew of the Plaintiffs is suspect. He is someone who definitely stands to gain if the properties are declared family properties in contra distinction to the claims of the Defendants that they were the self-acquired property of the deceased.

With the passage of the Intestate Succession Law, 1985, PNDCL 111 as amended, which law has as it were strengthened the succession rights of widows and children by giving them the protection under the law, it is to be expected that courts of law will look at the public policy measures behind the passage of PNDCL 111.

If that is not done, spurious claims by family members as has happened in the instant case to deprive widows and children from succeeding to their husbands properties would be protected.

Furthermore, it is to be noted that the law is firmly settled that for a family or stool to succeed in an action for declaration of title to properties, it must prove its method of acquisition beyond doubt either by traditional evidence , documents of title or by overt acts of ownership exercised over the properties. See Odoi v Hammond [1971] 1 GLR 375 per Azu Crabbe J.A as he then was.

In the instant case, the Defendants have been able to establish evidence by recent facts of overt acts and documentary evidence that the properties in dispute were self-acquired by the deceased.

Finally, once there is such abundant evidence on record to establish conclusively that the Plaintiffs did not lead evidence to meet the standard of proof settled in the locus classicus of ODAMETEY v CLOCUH, already referred to supra, the trial court should have rejected the Plaintiffs story.

Thus it has been established that the Plaintiffs have not made out a case sufficient enough to entitle them to their reliefs, it is pointless to consider the Defendant’s case whether there are any weaknesses therein or not. It is only when the Plaintiff in a civil case has met the first part of the test in the ODAMETEY v CLOCUH case already referred to supra that a court will go forward to consider the Defendants case.

From the above, it is clear that there are cogent and credible pieces of evidence which this court on its own can use to differ from the findings of fact made by the trial court and the first appellate court.

I am therefore of the view that since there are enough pieces of evidence to interfere with the findings of fact made by the two lower courts because the said findings are not supported by the conclusions arrived at by the said courts, any advantage enjoyed by the trial court as a court of first instance is clearly eroded by the wrong conclusions arrived at.

Since it is the duty of the courts of law to do substantial justice, I will depart from the said findings of fact.

See Hanna Assi (No 2) v GIHOC Refrigeration & Household Products Ltd. [2007-2008] SCGLR 16 Review Decision per Prof. Ocran JSC of blessed memory.

Using the said principles, I will therefore hold and rule that the properties in dispute are the self-acquired properties of KWAKU POKU deceased, and the findings of fact by the trial court and the Court of Appeal on the score that they are family properties are accordingly set aside.

CONCLUSION     

In the result, the appeal herein against the Court of Appeal decision dated 17^th May 2005 is hereby allowed. By parity of reasoning, the judgment of the High Court, Kumasi, dated 23^RD September 2002 is also hereby set aside. Instead there will be judgment for the Defendants.

J.V. M. DOTSE

(JUSTICE OF THE SUPREME COURT)

J.V. M. DOTSE

(JUSTICE OF THE SUPREME COURT)

J.V. M. DOTSE

(JUSTICE OF THE SUPREME COURT)

J.V. M. DOTSE

(JUSTICE OF THE SUPREME COURT)

J.V. M. DOTSE

(JUSTICE OF THE SUPREME COURT)

COUNSEL

TOTOE LEGAL SERVICE FOR THE APPELLANT.

W. A.N. ADUMUAH-BOSSMAN FOR THE RESPONDENTS.