|
Property -
Purchase of
-
Ownership - Resulting trust -
Legal presumption -
Declaration of title - Recovery
of possession - Damages for
trespass - Perpetual injunction
– Whether or not the judgment of
their Lordships at the Court of
Appeal was against the weight of
evidence - Whether or not said
document was a bilateral
document - Section 25 - Evidence
Act, NRCD 323
HEADNOTES
The case of
the Appellant is that she is the
widow who, , is the beneficial
owner of house number 461,
Kwadaso Estate, Kumasi.
According to her, she and her
children (together with her
husband before his death) had
been in undisturbed possession
of the said house at Kwadaso
Estate, Kumasi, the subject
matter in dispute herein.
However, sometime after the
death of her husband, the
Respondent succeeded in throwing
her (the Appellant) and her
children out of the house, in
the process of which some of her
personal effects were even
damaged. The Appellant further
alleged that her late husband
who was a junior member of the
Ghana Army and functioning as a
security personnel was on
friendly terms with the
Respondent and intimated to him,
his desire to purchase a house
in Atonso. According to the
Appellant, the Respondent, who
held the rank of Commander, and
was thus a senior member of the
army, advised her late husband
that Atonso was not a good
neighbourhood and that he would
rather help him purchase a house
in Kwadaso. The Appellant
contended by her statement of
claim that, accordingly, her
late husband advanced an amount
of money, to the Respondent to
enable him purchase the house on
behalf of her late husband. The
Appellant explained that her
husband, as a junior member of
the army, could not make the
purchase himself, in view of the
location of the house being
purchased. Hence, the 3rd
Respondent, being a senior
officer, made the purchase on
his behalf. For their part, the
1st and 2nd
Defendants contended that the
subject matter in dispute
belongs to the Respondent, who
purchased the same from the
State Housing Corporation
(hereinafter referred to as ‘SHC’);
with mortgage financing he
obtained from Ghana Commercial
Bank The Respondent stated that
he allowed the 1st
and 2nd Defendants
(his sister and nephew
respectively) to join the
Appellant and her family at the
house because he wanted to avoid
the situation where the latter
would lay adverse claim to the
house. At the conclusion of the
trial in the High Court,
judgment was entered in favour
of the Respondents herein, which
judgement was subsequently
affirmed on appeal by the Court
of Appeal
HELD
MAJORITY
OPINION
It is my
considered opinion that the
trial court and their Lordships
allowed themselves to be unduly
influenced by the documentary
evidence proferred by the
co-defendant while paying scant
attention to the single most
important document, exh H, on
the part of the appellant. If
they had adverted their minds
properly to the fact of the long
occupation of the property by
Kyei and his family, the
inaction on the part of the
co-defendant for the long period
lived that Kyei lived in the
house till he died while; the
fact that exhibit H was evidence
against self interest, and
finally the fact that the
co-defendant sought to repudiate
the clear and unambiguous
contents of exhibit H, or give
it a different meaning only
after the death of the
beneficiary of that exhibit,
they surely would have come to a
different conclusion than they
came to
. From the totality
of the evidence on record it is
my view that decision of their
Lordships was against the weight
of evidence on record and so the
appeal succeeds. I will
therefore allow the appeal and
set aside the judgment of the
trial High Court, as confirmed
by the Court of Appeal .
Judgment in favour of the
plaintiff/appellant/appellant.
MINORITY
OPINION
Finally, we
need to keep in mind that this
is an appeal from concurrent
judgements of the High Court and
the Court of Appeal. In the
absence of compelling reasons,
beyond any view we might have
that, had we been the
adjudicators of fact or the
first appellate judges, we would
have made different findings
and/or arrived at a different
conclusion, the applicable
guiding principle is that we
must allow the previous findings
and decisions to stand.
Therefore, in the circumstances
of this case, there is nothing
on the record that would justify
our overturning the concurrent
judgements of the courts below
Consequently, it is our view
that there is no merit in the
appeal before us and same is
hereby dismissed. We affirm the
decision of the Court of Appeal.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act,
NRCD 323
High Court
Civil Procedure Rules CI. 47
CASES
REFERRED TO IN JUDGMENT
PY Atta &
Sons Ltd v Kingsman Enterprise
[2007-2008] SCGLR 947
Lagudah v.
Ghana Commercial Bank
[2005-2006] SCGLR 388;
Achoro v.
Akanfela [1996-1997] SCGLR 209;
Obrasiwa II v
Otu [1996-1997] SCGLR 618;
Tuakwa v.
Bosom [2001-2002] SCGLR 61
Gregory v
Tandoh IV and Hanson [2010]
SCGLR 971
Barkers-Woode
v Nana Fitz [2007-2008] SCGLR
879
Koglex Ltd v.
Field (no 2) [2000] SCGLR 175,
Bisi
vrs Tabiri alias Asare
[1984-86] GLR 282.
Neequaye(decd) Adee Kotey V
Kootso Neequaye [2010] SCGLR
348.
Praka v.
Ketewa [1964] GLR 423
Akuffo Addo
v. Catheline (1992) GLR 377SC
Bonney v.
bonney (1992-93) GBR 779 SC
Re Fianko
Akotuah (decd); Fianko & Anor v
Djan and Ors [2007-2008]
SCGLR165
In re
Koranteng (dec’d), Addo v
Koranteng and others [2007-2008]
SCGLR 1039
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BAFFOE-BONNIE,
J.S.C.
MINORITY
OPINION
SOPHIA. A. B.
AKUFFO (MS),J.S.C
COUNSEL
HANSEN K. KODUA FOR THE
APPELLANT
KWAKU YEBOAH FOR THE RESPONDENTS
____________________________________________________________________________________
J U D G M E N T
____________________________________________________________________________________
MINORITY
OPINION
SOPHIA. A. B.
AKUFFO (MS),J.S.C
Background
This is an
appeal from the decision of the
Court of Appeal, Kumasi, dated
17th December 2010,
affirming the judgement of the
High Court, Kumasi. It worth
noting that although on the
cover of the Record of
Proceedings as well as in the
statements of case respectively
filed by both counsel for the
parties herein one gathers, from
the title of the case, an
impression that there are three
Respondents, it is evident from
the Notice of Appeal in this
Court that the sole Respondent
herein is Commander G. E. Osei,
who had been Co-Defendant at the
trial of the matter. In this
judgment, therefore, he will be
referred to as the Respondent
and his co-defendants at the
high court will be referred as
the 1st and 2nd
Defendants.
Now, the
brief background of the appeal
is that, by a writ of Summons
issued on 22nd
January 2001, the Appellant
herein sued the 1st
and 2nd Defendants in
the High Court, Kumasi,
claiming:-
1.
Declaration of title
to H/No. 461, Kwadaso Estate,
Kumasi
2.
Recovery of possession
3.
Damages for trespass
4.
Perpetual injunction
restraining the defendants,
their servants and or workmen
and agents from in any way
interfering with Plaintiff’s
possession of the property.
Subsequently,
the Respondent, upon his own
application, was joined in the
suit as a Co-Defendant.
The case of
the Appellant is that she is the
widow of one Mr. Samuel Kwame
Kyei who, she contends, is the
beneficial owner of house number
461, Kwadaso Estate, Kumasi.
According to her, she and her
children (together with her
husband before his death) had
been in undisturbed possession
of H/No. 461, Kwadaso Estate,
Kumasi, the subject matter in
dispute herein, for twenty years
prior to the commencement of the
action. However, sometime after
the death of her husband, the
Respondent succeeded in throwing
her (the Appellant) and her
children out of the house, in
the process of which some of her
personal effects were even
damaged. The Appellant further
alleged that her late husband
who was a junior member of the
Ghana Army and functioning as a
security personnel was on
friendly terms with the
Respondent (at the material
time, the Regional Secretary for
Ashanti Region) and intimated to
him, his desire to purchase a
house in Atonso. According to
the Appellant, the Respondent,
who held the rank of Commander,
and was thus a senior member of
the army, advised her late
husband that Atonso was not a
good neighbourhood and that he
(the Respondent) would rather
help him purchase a house in
Kwadaso. The Appellant contended
by her statement of claim that,
accordingly, her late husband
advanced an amount of ¢25,000.00
(old currency) (¢20,000.00
according to her testimony) to
the Respondent to enable him
purchase the house on behalf of
her late husband. The Appellant
explained that her husband, as
a junior member of the army,
could not make the purchase
himself, in view of the location
of the house being purchased.
Hence, the 3rd
Respondent, being a senior
officer, made the purchase on
his behalf. However, the
Appellant, whether in her
statement of claim or her
evidence at the trial (or
elsewhere), never explained how
the rest of the alleged purchase
money for the house was paid.
For their
part, the 1st and 2nd
Defendants contended that the
subject matter in dispute
belongs to the Respondent, who
purchased the same from the
State Housing Corporation
(hereinafter referred to as
‘SHC’); with mortgage financing
he obtained from Ghana
Commercial Bank.
According to the Respondent, the
SHC initially offered him a
house at South Suntreso but he
declined that offer because the
location was not desirable. SHC
subsequently offered him the
subject matter in dispute
herein, situated at Kwadaso
Estate. Also according to the
Respondent, he was a senior
government official in the era
of the Supreme Military Council
and, during the overthrow of the
government by the Armed Forces
Revolutionary Council, in 1979,
he fled the jurisdiction and
went into exile. He averred
that, although he entrusted the
house into the care of one Mrs.
Darko, the Appellant, her late
husband and children managed to
gain occupancy in the house.
The
Respondent stated that he
allowed the 1st and 2nd
Defendants (his sister and
nephew respectively) to join the
Appellant and her family at the
house because he wanted to avoid
the situation where the latter
would lay adverse claim to the
house.
After joining
in the suit, the Respondent, by
his statement of defence,
counterclaimed against the
Plaintiff as follows:
1.
Declaration of title to H/No.
E461 Kwadaso Estate, Kumasi
2.
Recovery of possession of the
said house
3.
Perpetual injunction to restrain
Plaintiff and all persons
claiming through her from
interfering with Co-defendant’s
right to the said house.
At the
conclusion of the trial in the
High Court, judgment was entered
in favour of the Respondents
herein, which judgement was
subsequently affirmed on appeal
by the Court of Appeal.
The
Appellant’s grounds of appeal in
this Court are that:
1.
The Court of Appeal erred in its
judgement when their lordships
rejected the authentic and
reliable documentary evidence
voluntarily executed by the
Co-defendant dated the 9th
day of September, 1986 tendered
in the lower court as exhibit
‘H’ which conclusively and
preponderantly established that
the disputed landed property
herein described as H/No. Plot
461 more particularly situate at
Kwadaso Estate, Kumasi is owned
by the Plaintiff’s late husband
without their Lordships
prescribing any satisfactory
reason(s) for rejecting the said
documentary evidence.
2.
The judgment of their Lordships
at the Court of Appeal was
against the weight of evidence
on the record
3.
Their Lordships at the Court of
Appeal erred when they held that
to the extent that exhibit ‘H’
did not make any specific
reference to H/No. 461 more
particularly situate at Kwadaso
Estate, Kumasi, the Appellant
could not rely on the said
exhibit to claim the disputed
house despite preponderant and
overwhelming circumstantial
evidence on record irrestibly
pointing to the singular
conclusion that exhibit ‘H’ is
referable to H/No. 461
4.
Their Lordships at the court of
Appeal erred when they held that
there was no material
corroborative evidence on record
to substantiate the provision of
the purchase price of the
disputed House by the late Kyei
when there were material pieces
of evidence on record
corroborating the said
acquisition in equity.
5.
Their Lordships at the Court of
Appeal erred when they failed to
appreciate the fact that the
entire case centred on a charge
against a dead person who could
not mount the witness box to
answer any of the charges
levelled against him.
Discussion
Grounds (i)
and (iii) are essentially the
same as they raise the issue of
whether or not proper weight was
assigned to the evidence on
record; specifically exhibit
‘H’. As such they are also not
much different from ground (ii)
and they are really the crux of
the Appellant appeal. We will
therefore consider them
together.
Exhibit ‘H’ is a letter written
by the Respondent to one Mr.
Kwarteng. And since the
Appellant has placed such great
store, it is useful to set out
verbatim the relevant text of
the Exhibit, which is actually a
letter and reads as follows:
“My dear junior brother, this
note is from your senior brother
Cdr. Osei. Mr. Kyei was very
lucky to have found me. From him
he has been searching for me and
he has not been able to trace
where I have been residing. All
have been proved failure until
today he got me near the PTC
Head Office where I also saw you
some time ago. Mr. Kwarteng, it
is all about a house I got for
him. You know very well that I
am not corrupt and would never
get myself into such a
situation. It is all true it is
for him and he even spent a lot
of money on it. I remember
giving him a paper to that
effect but due to 1979 episode
most of my personal effect was
stolen. So please handle the
problem prudently and on
humanitarian bases. I hope you
would recall and reflect on to
help the poor guy. Thanks and
God bless.
Yours
Cdr. Osei
9/9/86
In evaluating
Exhibit ‘H’, the Court of Appeal
considered
Section
25 of the
Evidence
Act, NRCD 323 which provides
that:
25(1) “Except
as otherwise provided by law
including a rule of equity, the
facts recited in a written
document are conclusively
presumed to be true as between
the parties to the instrument or
their successors in interest.”
The learned
Justices of the Court of Appeal
also took into account the case
of PY
Atta & Sons Ltd v Kingsman
Enterprise [2007-2008] SCGLR 947,
wherein our esteemed brother,
Brobbey JSC, stated that:
“The general
rule is that a document should
be given its ordinary meaning if
the terms therein are clear and
unambiguous... In such a
situation, the rules of
interpretation mandate that the
document should be interpreted
in a view that would cause the
intention of the parties to
prevail”
However, as
was rightly noted by the Court
of Appeal, the case of P. Y.
Atta and Sons Ltd v Kingsman
Enterprise concerned a bilateral
agreement between the parties in
the suit and is, therefore,
distinguishable from the instant
case. The Court of Appeal
further noted, correctly in our
view, that not only was Exhibit
H not a
bilateral document, but also
it cannot be categorized as an
instrument, as envisaged under
the Evidence Act, to bind the
Respondent and the late Kyei and
their successors. As is patently
clear on its face, and as was
noted by the Court of Appeal,
Exhibit H was written by the
Respondent to Mr. Kwarteng. It
is a letter and there is nothing
suggestive therein that could
create a legal relationship
between the Respondent and Mr.
Kyei because neither of them had
any terms, conditions or
obligations to observe, fulfil
nor perform. Indeed, there is no
evidence on the record that Mr.
Kwarteng, the addressee of
Exhibit H, when he received the
letter, acted upon it. But the
most significant observation
made by the Court of Appeal is
that Exhibit ’H’ did not give
any material particulars of the
house mentioned therein. The
Court concluded that to know
what house the letter was
referring to, it was necessary
to look at extrinsic evidence
such as paragraphs 20 and 21 of
the Respondent’s amended
Statement of Defence. Thus, it
was not the view of the Court
that the house mentioned in
Exhibit ‘H’ was not the house in
dispute, but rather, it was
that, in order to arrive at such
a conclusion, evidence extrinsic
to the letter had to be
considered, thereby placing the
exhibit outside the purview of
Section 25 of NRCD 323.
Therefore, the purport of
exhibit H was a question of
credibility and the trial judge
chose to believe its author, the
Respondent.
The universal
principle in appeals is that
they are by way of rehearing.
The Court of Appeal therefore
referred to the case of
Barkers-Woode v Nana Fitz
[2007-2008] SCGLR 879
wherein this Court held that:
‘what weight
to give to which part of the
judgement is for the trial judge
and, even if there is room for
an appellate court logically to
reach a different conclusion on
the evidence, this does not
necessarily mean that there is a
basis for reversing the trial
judge’s findings of fact.’
The Court of
Appeal also considered Order 12
rule 3(a) of
CI. 47, as well as Sections
10(1), (2) and 11 of NRCD 323.
Without doubt, the evidential
burden on the Appellant, at the
trial, was to adduce admissible,
relevant, intelligent and
incontrovertible evidence to
prove her case, especially since
the averments made by her were
denied and put in into issue by
the Respondent. It was also upon
the Respondent was also to meet
the same standard of proof
required from the Appellant in
order to satisfy the court on
the balance of probabilities.
Having
weighed the evidence before him,
the trial judge had dismissed
the Appellant’s case claims for
the following reasons:-
a.
That it was the 3rd Respondent
who entered into negotiations
with the SHC in 1977 as is
evident from Exhibit 1
b.
That, as was buttressed by
Exhibit 2, the Respondent upon
inspection of H/No. M30 rejected
same and rather accepted the
disputed property in
replacement.
c.
That he was convinced, on the
strength of Exhibit 2, that
H/No. 461 had been completed by
28th April 1978.
Therefore it would have been
difficult for the late Kyei to
have advanced money to the
Respondent in May 1978 towards
the acquisition of the said
property
d.
That the disputed property was
completed in 1978 and same was
handed over to the Respondent in
the same year
e.
That the negotiation concerning
the disputed property commenced
between the SHC and the
Respondent before the late Kyei
allegedly conceived the idea of
acquiring the house in
contention.
In arriving at his conclusions,
the learned trial judge has
observed, inter alia, that:-
“What is fascinating about the
Plaintiff’s evidence is that the
deposit of 20,000 old Cedis
advanced by Kyei to the
Co-defendant conflicts with her
pleadings. Both in paragraph 6,
7 and 10 of the statement of
claim and amended reply
paragraph 2 thereof Margaret
Osei Assibey maintained that
Kyei advanced 25,000 old Cedis.
But is instructive that
Co-defendant’s evidence that he
made a deposit of 10,000 old
Cedis towards the purchase of
the house and persuaded his
banker’s GCB to agree to give
him a personal mortgage loan to
make good the outstanding
balance was consistent with his
pleadings. And the law is that
where there was a departure from
pleadings at a trial by one
party whereas the other’s
evidence accorded with his
pleadings, the latter’s was a
rule preferable.
Accordingly, I am satisfied that
on the preponderance of
probabilities, it was Commander
Osei who negotiated the house
for himself and that he did not
do so on Kyei’s behalf”.
For our part,
we are also of the view that
Exhibit H cannot by any stretch
of the law or the imagination
serve as any valuable proof, let
alone conclusive proof against
the Respondent’s claim of
ownership of the subject matter
in dispute herein. Thus,
grounds i to iii of the Grounds
of Appeal are, in our view,
quite unfounded.
Regarding
ground 4 of the appeal herein,
the ‘material pieces of
evidence’ with which the
Appellant sought to base this
ground are:
a.
PW1’s evidence that the
Co-defendant introduced the late
Kyei to him as the owner (i.e.
Kyei) of the disputed property
b.
Water bill issued in Kyei’s name
c.
Electricity bill issued in
Kyei’s name
d.
Property rate receipts issued in
Kyei’s name
e.
Receipts and invoices issued in
Kyei’s name
f.
Petition addressed to the
Confiscated Assets Committee by
Kyei
g.
Letter dated 11/06/1987 by the
Regional Confiscated Assets
Committee ordering Kyei to
vacate the premises
h.
Letter dated 30/06/1987 from the
National Office of the
Confiscated Assets Committee in
reference to the order to Kyei
to vacate the premises,
suspending the ejection.
A study of
these pieces of evidence clearly
shows that, quite simply, they
cannot be taken as
substantiating or establishing
the Appellant’s assertion that
her late husband, Kyei, was the
one who provided the money for
the purchase of the house or
that the purchase was made on
his behalf. Also as was held in
the case of Quagraine v Adams,
[1981] GLR 599 such evidence
does not necessarily found
ownership.
With regard to the 5th
ground of appeal, the Plaintiff
sought to rely on a quotation
from Addo v Anyowuo [2006] 6
MLR... which held that:
‘The law is
that when an attempt is made to
charge a dead person in a
matter, in which, if he were
alive, he might have answered
the charge the evidence ought to
be thoroughly sifted and the
mind of the judge who hears it
ought to be, first of all, in a
state of suspicion; but if in
the end the truthfulness of the
witnesses is made perfectly
clear and apparent, and the
tribunal which has to act on
their evidence believes them,
the suggested doctrine of
corroboration becomes absurd.’
However, in
our view, it is patent from even
the most charitable reading of
the Record of Appeal that the
truthfulness of those testifying
in support of Kyei’s title to
the house was anything but
perfectly clear and apparent.
Rather what is clear is that the
trial judge disbelieved them on
the balance of the
probabilities, and, as such, the
above-quoted dictum cannot avail
the Plaintiff, and does not
persuade me.
Finally, we
need to keep in mind that this
is an appeal from concurrent
judgements of the High Court and
the Court of Appeal. In the
absence of compelling reasons,
beyond any view we might have
that, had we been the
adjudicators of fact or the
first appellate judges, we would
have made different findings
and/or arrived at a different
conclusion, the applicable
guiding principle is that we
must allow the previous findings
and decisions to stand.
This has
been the longstanding principle
that has been upheld and applied
by this Court in numerous cases,
including
Lagudah v. Ghana Commercial Bank
[2005-2006] SCGLR 388; Achoro v.
Akanfela [1996-1997] SCGLR 209;
Obrasiwa II v Otu [1996-97]
SCGLR [1996-1997] SCGLR 618;
Tuakwa v. Bosom [2001-2002]
SCGLR 61 and Gregory v Tandoh IV
and Hanson [2010] SCGLR 971.
The grounds for overturning
concurrent decisions were
clearly enunciated in the
majority decision of this court
in the case of
Koglex
Ltd v. Field (no 2) [2000] SCGLR
175, in the following
terms:-
i.
Where the findings of the trial
court are clearly unsupported by
evidence on record or the
reasons in support of the
findings are unsatisfactory.
ii.
Where there has been improper
application of a principle of
evidence or where the trial
court has failed to draw an
irrestible conclusion from the
evidence.
iii.
Where the findings are based on
wrong propositions of law and,
if that proposition is
corrected, the finding
disappears and
iv.
Where the finding is
inconsistent with crucial
documentary evidence on record.
Therefore, in
the circumstances of this case,
there is nothing on the record
that would justify our
overturning the concurrent
judgements of the courts below.
As has been demonstrated
hereinabove, exhibit H cannot be
ascribed as being ‘crucial
documentary evidence’ of the
kind envisaged in the
abovementioned dictum in the
Koglex case.
Conclusion
Consequently,
it is our view that there is no
merit in the appeal before us
and same is hereby dismissed. We
affirm the decision of the Court
of Appeal.
(SGD) S. A.B. AKUFFO
(MS)
JUSTICE OF THE SUPREME COURT
(SGD) DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
MAJORITY
OPINION
BAFFOE-BONNIE, J.S.C.
The
plaintiff issued a writ against
the defendants claiming for and
on behalf of her children;
1
Declaration of title to H/No.
461, Kwadaso Estate, Kumasi
2 Recovery
of Possession.
3 Damages
for trespass.
4 Perpetual
injunction restraining the
defendants their servants and or
workmen and agents from in any
way interfering with the
plaintiff’s possession of the
property fully described ….
Her statement
of claim could be briefly
captured as follows. Her husband
the late Kyei a retired sergeant
of the Ghana Army, was employed
as a security personnel at the
Ashanti regional office when the
co-defendant, a serving senior
military officer was also there.
There developed a close
relationship between them. When
Kyei evinced an intention of
acquiring a house, he discussed
with his friend the
co-defendant. The co-defendant
discouraged him from acquiring a
house at Atonsu but rather
advised that if Kyei could
provide an amount of money to
the tune of ¢25,000 cedis he
could help him acquire an estate
house built by the SHC. Though
he had been assured that the
¢25000 cedis was enough, after
it had been started Kyei
realised that it was not enough
and that he had to look for
extra money for some more
building materials. He was
eventually introduced to the
project foreman of SHC as the
owner of the building and the
one to purchase the extra
building materials. Kyei
therefore paid for the necessary
materials required for the
completion of the project. He
also did the terrazzo works and
moved in with his family. Even
though Kyei kept requesting for
the title documents on the
property and also the receipt
for the monies paid to the
Commander, he never had them.
Kyei and his family started
living in the house before
the1979 military uprising and
lived in it till he died in
1996. Before he died however the
defendants, a sister and a
nephew of Commander Osei were
permitted by him at the request
of Commander Osei to live in the
house temporarily when the
sister was divorced from her
husband. Kyei died intestate in
1996 and his family continued
their long occupation of the
house until 16th
December 2000 when men from the
police striking force, without
any court warrant, but acting at
the instance of Commander Osei,
in a sheer brute show of force,
forcibly ejected Kyei’s family
and effectively installed
Commander Osei’s people in the
house. The plaintiff therefore
instituted an action at the High
Court claiming the reliefs
earlier referred to.
After the
defendants had entered
appearance and filed a defence,
the co defendant applied and was
joined to the action. He filed
his defence and counterclaimed
as follows;
A.
Declaration of title to H/no E
461 Kwadaso Estate Kumasi.
B. Recovery
Of possession of the said house
C. Perpetual
injunction to restrain plaintiff
and all persons claiming through
her from interfering with
co-defendant’s right to the said
house.
The
defendants did not give any
evidence. The Co-defendant’s
case could be summarized as
follows:
He bought
the property with his own money
and not with money from Kyei as
was being alleged by the
plaintiff. He indeed acquired
the property with an initial
payment of ten thousand cedis
and subsequently a mortgage
facility from the bank. On
completion of the construction
he gave the keys to one Mrs
Danso. Kyei went and demanded
for the keys from the said Mrs
Danso and when she refused to
give him the keys Kyei forcibly
broke into the house then
changed the locks and started
living in it with his family. He
went into exile following the
1979 uprising and returned to
Ghana in 1984. When he came he
found that the government of the
day had confiscated the
property. Kyei convinced him
that he knew the man in charge
of the confiscated Assets
Committee. He therefore gave him
a note to be given to the person
so that the property will be
released. He denied that it was
Kyei who permitted the
defendants to live in the House.
It was he the co-defendant who
asked the defendants to live in
the house when Kyei started
laying adverse claims to the
property.
At the close
of pleadings the following
issues were set down for trial.
1. Whether or
not the house in dispute was
acquired by co-defendant or for
the husband of plaintiff, late
Samuel Kwame Kyei.
2. Whether
the whole construction of the
house in dispute was completed
by the state housing company or
the plaintiff’s late husband had
to spend substantial amount to
complete same to the knowledge
of co-defendant.
3. Whether
or not late Kyei forcibly took
possession of the house in
dispute after same had been
entrusted to a certain woman by
co-defendant.
4. Whether
or not the co defendant is
estopped either by conduct,
limitation or both from putting
up his present claim
5. Whether
or not the plaintiffs is
entitled to the reliefs or at
all.
6. Any other
issues raised by the pleadings.
In his
judgment the trial judge stated
as follows;
“I need to
reiterate the point that
although as many as about 6
issues were raised nevertheless,
the most crucial and fundamental
is whether the house in dispute
was acquired by Commander Osei
by himself and for his own
benefit or was acquired for the
late Samuel Kyei for his
benefit. All other issues shall
fall in their proper places when
the most crucial issue has been
dealt with.”
In the end
the trial judge concluded as
follows;
”Now, having
considered this case in its
entirety l find that on the
balance of probabilities the
co-defendant has satisfied me
that his story is more probable
than the plaintiff’s and is
therefore entitled to judgment
on his counterclaim. The
plaintiff’s case is dismissed.”
In his appeal
to the Court of Appeal the
appellant herein argued
forcefully that the equitable
doctrine of resulting trust was
clearly made out in favour of
the appellant and that the
judgment to the respondent was
against the weight of evidence.
In their judgment their
Lordships at the Court of Appeal
stated as follows;
“….the
fundamental issue to be
considered in this appeal is
whether or not the appellant was
able to adduce such credible,
intelligent and quality evidence
with such certainty that the
trial court ought to have been
convinced that the appellant had
met the essential criteria for
proving her case on the
preponderance of probability
test.”
Their
Lordships then concluded thus;
“Clearly
looking at all those pieces of
evidence both oral and
documentary how could the trial
court have erred when it held
that on the preponderance of
probability that there was
sufficient evidence to prove
that the house belonged to the
respondent and not Kyei? In
BISI
vrs TABIRI alias Asare
[1984-86] GLR 282 at page 287
CA. Adade JSC stated that;
‘As a judge
of fact, it is his peculiar
province, listening to the
evidence and having the
witnesses before him, to weigh
the several statements on each
issue and to decide which to
believe and which to reject. So
long as his conclusion can find
support from statements on
record, it is not open to an
appellate tribunal, except for
just and compelling reasons to
disturb them’
In fact we
find no just and compelling
reasons to disturb the findings
made and the conclusion arrived
at by the trial court.”
Before us the
Appellant has argued the
following grounds of appeal;
1.
The Court of Appeal erred in its
judgment when their Lordships
rejected the authentic and
reliable documentary evidence
voluntarily executed by the co-
defendant/respondent/respondent
dated the 9th day of
September, 1986 tendered in the
lower court as exhibit “H” which
conclusively and preponderantly
established that the disputed
landed property herein described
as H/No. Plot 461 more
particularly situate at Kwadaso
Estate, Kumasi is owned by the
plaintiff/Appellant/Appellant’s
late husband without their
Lordships prescribing any
satisfactory reason(s) for
rejecting the said documentary
evidence.
2.
The judgment of their Lordships
at the Court of Appeal was
against the weight of evidence
on the record.
3.
Additional grounds may where
necessary be filed upon receipt
of the record of proceedings.
I must say
that the arguments canvassed
before us have been no different
from those canvassed before both
the Trial High Court and the
Court of Appeal. The cumulative
conclusion is that the two lower
courts failed to properly
evaluate the evidence on record
as to the
ownership of the property,
failed to attach the proper
weight to a vital documentary
evidence, and therefore came to
the wrong conclusion. In other
words the decision of both
courts was against the weight of
evidence.
This court
has held in several cases that
where there are concurrent
findings of fact made by two
lower courts an appellate court
should be slow in overturning
such concurrent findings.
In the case
of ACHORO V.
AKANFELA. [1996-97]SCGLR 209
Acquah JSC (as he then was)
said; “now in an appeal
against findings of facts to a
second appellate court like this
court, where the lower appellate
court had concurred in the
findings of the trial court,
especially in a dispute, the
subject-matter of which is
peculiarly within the bosom of
the lower courts or tribunals,
this court will not interfere
with concurrent findings of the
lower courts unless it is
established with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice, is apparent in the
way in which the lower tribunals
dealt with the facts.
See also the
case of In re
NEEQUAYE(decd) ADEE KOTEY V
KOOTSO NEEQUAYE [2010] SCGLR
348.
However, it
must also be stated that this
court has also held in several
cases that an appeal is by way
of re hearing and that an
appellate court should put
itself in the same position as
the trial court. In the case of
PRAKA V KETEWA [1964] GLR 423,
this court said
“An appeal is
by way of rehearing and so an
appellate court is entitled to
make up its own mind on the
facts and to draw inferences
from them to the extent that the
trial court could.”
Since the
appellant in his first ground of
appeal charges that the Court of
Appeal drew wrong inferences
from documentary evidence
thereby coming to the wrong
conclusions, the said ground is
in fact not any different from
the ground 2 which is the
omnibus ground of judgment was
against the weight of evidence.
I therefore intend to treat the
two grounds of appeal together
as JUDGMENT IS AGAINST THE
WEIGHT OF EVIDENCE
I will start
by quoting two statements on
this subject
In the case
of
AKUFFO ADDO v.
CATHELINE (1992) GLR 377SC
this court said:
“Where an
appeal is against the weight of
evidence, the appellate court
had jurisdiction to examine the
totality of evidence before it
and come to its own decision on
the admitted and undisputed
facts.”
Then in the
case of
BONNEY v.
BONNEY (1992-93) GBR
779 SC this court held;
“Where an
appellant contended that a
judgment was against the weight
of evidence, he assumed the
burden of showing from the
evidence that that was infact
so. The argument that an appeal
is by way of rehearing and
therefore the appellate court
was entitled to make its own
mind on the facts and draw
inferences from them might well
be so but an appeal court ought
not under any circumstances
interfere with findings of fact
by the trial judge except where
they were clearly shown to be
wrong, or that the judge did not
take all the circumstances and
evidence into account, or had
misapprehended some evidence or
had drawn wrong inferences
without any evidence in support
or had not taken proper
advantage of his having seen or
heard in support the
witnesses.”
As was
rightly found by the trial
judge, from both the pleadings
and the evidence adduced at the
trial by both parties, the money
was paid to the State Housing
Corporation by Commander Osei in
whose name the documents on the
property were also prepared. The
presumption here therefore is
that the property was acquired
by the co-defendant for himself.
This presumption however can be
rebutted if the plaintiff can
show that the money that was
paid to the SHC by the co
defendant was indeed provided by
the late Kyei and that the
property was being purchased for
the benefit of Kyei. If this was
proved then the equitable
doctrine of resulting trust
could be invoked.
In the recent
case of
RE FIANKO AKOTUAH (DECD);
FIANKO & ANOR v DJAN AND
ORS [2007-2008]SCGLR165
holding one it was said;
“It is
settled law in equity that the
trust of a legal estate whether
freehold, copyhold, or
leasehold; whether taken in the
name of the purchasers and
others jointly, or in the name
of partners jointly or in the
name of others without that of
the purchaser; whether in one
name or several; whether jointly
or successive, results to the
man who advanced the purchase
money or the true owner in
equity is not stopped from
averring and proving that to be
the truth of the transaction;
neither can they be stopped from
relating the real truth known to
them at the time of making of
the evidence on record and on
the balance of probability”
In the case
of In re
Koranteng (dec’d), Addo v
Koranteng and others [2007-2008]
SCGLR 1039 This was said;
“In
essence, a
resulting
trust was a
legal
presumption made by the law
to the effect that where a
person had brought property in
the name of another, that other
person would be deemed to hold
the property in trust for the
true purchaser. It was a trust
implied by equity in favour of
the true purchaser or his estate
upon death. The trust was
regarded as arising from the
unexpressed or implied intention
of the true purchaser. Thus for
a resulting trust to be
established there had to be
proof that the purchase money
for the disputed property had
been advanced by the beneficiary
of the resulting trust.”
Now, in their
judgment their Lordships at the
Court of Appeal said;
“In the
instant case, and as already
stated in this judgment, apart
from the appellant merely
mounting the witness box to
repeat what is contained in her
statement of claim, there was no
other evidence to convince the
trial court and for that matter
this court, that indeed and in
fact the late Kyei parted with
any consideration to the
respondent for the purchase of
the house. Again, it is clear
from the face of the documents
tendered by the respondent that
the authenticity of those
documents could not be doubted.
Therefore the trial court was
right in tilting the weight of
the evidence in favour of the
respondent.
This court is
equally satisfied that in view
of the ample documentary
evidence and on the balance of
probabilities, it was the
respondent who negotiated and
paid for the subject matter in
dispute for himself and not for
the late Kyei”
The
documentary evidence referred to
in the above quoted passage was
listed as follows;
i.
Letter dated 25th
April 1978 from SHC and
addressed to the Respondent in
which the SHC informed the
Respondent of its decision to
offer him H/No. 461 Kwadaso
Estate Kumasi in replacement for
M.30 South Suntreso Estate,
Kumasi. The SHC requested the
Respondent to surrender the
lease on M.30 to enable the SHC
prepare a new lease form him in
respect of H/No. 461. [Exhibit
2]
ii.
A letter dated 2nd
August 1977 from the SHC
confirming the negotiation
between the Respondent and the
SHC. [Exhibit 1]
iii.
Letter dated 30th
December 1977 from Ghana
Commercial Bank, Mortgage
Department, Head Office and
addressed to the Respondent
advising him that the Bank had
approved a personal mortgage
loan of ¢45,000.00 old cedis in
the Respondent’s favour.
[Exhibit 3]
iv.
A letter dated 4th
January 1978 from Ghana
Commercial Bank and addressed to
the Respondent setting out the
terms upon which the personal
mortgage of ¢45,000.00 old cedis
was granted and requesting the
Respondent to call on the Legal
Department of the Bank to
complete the necessary
formalities. [Exhibit 4]
v.
An undertaking dated 27th
September 1978 from the Legal
Offices of SHC acknowledging
receipt of a deposit of
¢10,000.000 old cedis from the
Respondent and a further sum of
¢43,900.00 old cedis paid by
Ghana Commercial Bank in favor
of the Respondent being purchase
price for a House Type SH9 on
Plot No. 461, Kwadaso Housing
Estate, Kumasi [Exhibit 5]
vi.
Letter dated 23rd
April 2001 from the office of
the President, Confiscated
Assets Committee and addressed
to the Respondent inferring him
of the deconfiscation and
release of H/No. 461 Kwadaso
Estate effective 6th
April 2001. [Exhibit 7]
But really,
what is the evidential value of
these documents in the
resolution of the main issue? My
answer to this question is that,
taken individually or together,
they add little or nothing to
the co-defendants case. The
issue at stake was not who
negotiated with or paid the
money to, or simply who dealt
with, the SHC. The issue is who
provided the money that was used
to purchase the property and for
whose benefit was the property
purchased? Incidentally as l
will show presently, the
documentary evidence that seemed
to have influenced the two
earlier courts did not address
the main issue.
The first two
documents identified only show
that negotiations to purchase
the property were between the
co-defendant and the SHC. This
is not strange seeing that the
plaintiff herself admitted that
the arrangement to purchase the
property was for the
co-defendant to front for her
husband using her status as a
senior officer since the late
Kyei was made to believe that it
was only senior officers of the
army who could own properties
there. The averment in (vi) does
not amount to much either. The
co-defendant’s name was on the
property and so if it was being
confiscated it would be
confiscated as his property and
if it was being deconfiscated it
would be done in his name and
any correspondence to that
effect would be sent to him. It
still will not negate the fact
that he fronted for somebody in
the acquisition of the property.
Bullets iii,
iv and v are all correspondence
in respect of a personal
mortgage loan procured by the
co-defendant for the purchase of
a house. Indeed it is these
particular documents that
influenced the two lower courts
to say that the initial deposit
could not have been provided by
the late Kyei.
To them if
the late Kyei had provided as
much as 20,000 cedis for the
purchase of the property, there
would not have been any need for
the co-defendant to have again
entered into a mortgage
transaction for the same
property. An argument like this
clearly shows a lack of
understanding of the minds of
public servants. For obvious
reasons senior public servants
in the limelight, like
co-defendant, are not likely to
make a down payment of a large
amount of money towards the
purchase of any property if they
have the opportunity and choice
of paying for the same property
either by installments or
through a purchase plan like
mortgage. Indeed, if Late Kyei
had given the whole amount to
him, or even if he himself had
the full purchase price of the
property, the co-defendant would
not have paid the full price!
This is done to avert suspicion
of corruption and avoid public
scrutiny. It is this same
thought mentality that makes
some people purchase properties
in other people’s names. The
documents are therefore not
conclusive that no money was
given by Kyei to the
co-defendant for the purchase of
the property in dispute for the
benefit of Kyei. At best they
are presumptions which can be
rebutted.
What was the
appellant required to prove and
what evidence did she proffer?
As already
established since her case
hinged on the equitable doctrine
of resulting trust what she was
required to prove was that the
purchase price for the property
was provided by her husband and
the purchase was to be for his
benefit. This really was a tall
order. But her story was simple.
Her late
husband and the co-defendants
were very good friends. Since
the late Kyei by his status as a
retired sergeant in the Ghana
armed forces could not have
acquired property in that area
reserved for senior officers,
the friend Commander Osei
undertook to front for him for
the purchase of the property.
Kyei produced the initial money
of 20,000 cedis and same was
allocated. Late Kyei was
subsequently introduced to the
foreman working on the property
as owner by the co-defendant.
More building materials were
purchased by Kyei and the
building was completed. He moved
in and lived in it with his
family until he died in 1996. In
1986 when there were attempts to
confiscate the property as
belonging to the co-defendant,
the co-defendant gave him a note
to the assets confiscation
committee for the release of the
property to Kyei, he being the
owner.
As indicated
earlier the appellant really had
a herculean task proving by
direct evidence that the late
husband actually provided the
money used to purchase the
property. This is because the
money was paid before 1980 and
this action was instituted in
2001; the money was supposed to
have been paid by Kyei who had
died in 1996, five years before
this action was instituted; this
was supposed to be an
arrangement between friends who
trusted that each will act with
utmost good faith; no adverse
claims were made by the
co-defendant in the lifetime of
Kyei for him to be put on notice
to prepare against any
eventuality. In these
circumstances her inability to
lead any direct evidence or
produce any documentary proof of
payment can be understood.
This is what
their lordships at the Court of
Appeal said;
“The question
is, was the Appellant at the
trial able to prove that her
late husband actually did
provide the purchase price?
In the
statement of claim, the
appellant averred in paragraphs
6 and 7 thereof as follows:
“6.
Subsequent to this promise
Commander Osei requested Kyei to
make a down payment of
¢25,000.00 old cedis to enable
him secure one of the type SH9
buildings of the SHC for him
Kyei.
7. The SHC
indeed started with building in
dispute after the payment of the
¢25,000.00 old cedis to
Commander Osei Kyei felt all was
well.”
In her
evidence-in-chief however, the
Appellant testified at page 76
of the record as follows:
“Q. Do you
know if your husband paid any
consideration towards the
purchase?
A.
My Lord later my husband told me
he made a deposit of over
¢20,000.00 old cedis to the
Co-defendant toward the purchase
of the house.” [Emphasis]
This piece of
evidence is obviously hearsay
but it was allowed because it is
a first hand hearsay. But apart
from the difference in the
consideration the late Kyei was
alleged to have paid in the
statement of claim and the
unspecific consideration the
Appellant testified that he
paid, there was no other
evidence on the record to
substantiate that the alleged
amount was actually paid to the
Respondent.”
But the
absence of direct evidence is
not fatal if credible
presumptive or circumstantial
evidence could be led in support
of her case.
1. There was
evidence on record that the late
Kyei started living in the house
in dispute from the late 1970s
to 1996 when he died and after
his death his family lived there
until this action was
instituted.
2. Water bill
and electricity bills on the
house in dispute bore the name
of the late Kyei.
3. Property
rates receipts issued in the
name of the late kyei
Letters
addressed to the confiscated
assets committee by Kyei in
respect of the house and vice
versa.
Admittedly
all these pieces of evidence
only go to establish a long
period of possession by Kyei and
not necessarily ownership. But
how did Kyei come to live in
this house for a period of over
eighteen years before he died?
According to the appellant Kyei
was living in the house because
it was his. The co-defendants
answer to the long occupation by
Kyei was that Kyei forcibly
broke the locks to the house and
replaced same and moved into the
house. Further, he the
co-defendant was forced to run
away into exile in the wake of
the 1979 military uprising. Even
though he returned to Ghana from
exile in 1984 he still did
nothing to move Kyei out of the
house.
I have
carefully read through the
evidence adduced at the trial
and It is my view that the
co-defendant was very economical
with the truth and that at both
the trial court and the Court of
Appeal the first thing that
should have aroused their
suspicion was the outright lie
told by the co-defendant
regarding the relationship
between himself and the late
Kyei! Seeing that the case of
the appellant hinged on the fact
that this was an arrangement
between friends, hence the lack
of proper documentation, the
co-defendant went to all lengths
to distance himself from Kyei
and was prepared to even swear
that Kyei was not his friend!
During cross
examination this is what took
place;
Q Now
commander if you accept my
suggestion then we will not go
into any detail. Late kyei was
your very close friend
A. My lord I
didn’t know him. He was not my
friend it is through
Akyempimhene that I got to know
him
Q Kyei was
never your friend you say?
A Yes my
lord he was not my friend but I
know him through the late
Akyempimhene.
There were
several suggestions and there
were several denials. It was
like Peter and Jesus being
played back all over again,
except that this time the
denials were not three but
several! But what did the
totality of the evidence
suggest. In his evidence in
chief he was asked to cast his
mind back to the year 1986, two
years after his return from
exile and tell the court what
happened. This is what he said;
“A. My lord
after my return, l went to my
mother in Kumasi and lived with
my mother. So Kyei came to me at
my mother’s place. I requested
for my properties from him. He
told me that he had put them to
some place but we went round the
whole Kumasi and could not find
them. .About two days later he
came and told me that he knows
the officer of the confiscated
assets unit. He knows the
director very well. My Lord he
mentioned the name as Mr
Kwarteng. This man I also gave
him a note to be given to the
confiscated assets unit for the
release of the disputed house.
During cross
examination this took place
Q Commander
you have said in this court that
you requested for your
properties from the late Kyei.
It is in evidence. What
properties are they?
A. My Lord
when I returned from exile I was
informed that Kyei went to the
Regional Office and packed all
my things. My Lord some of the
things were building material.
My Lord I also brought some
fridges and air conditioners
from America. My Lord when I
returned from exile I could not
find them so I was informed that
it was Kyei who had taken
possession of these items.
Q. Now
commander how did Kyei go to
collect your things if he was
not your friend?
A. My Lord I
cannot tell.
Q. You are
talking about moveable
properties
A. Yes my
lord
Q. And then
you were going round the whole
town you couldn’t find them?
A. Yes my
lord.
Q. And when
you could not find these
properties you still went
forward and wrote this exhibit 6
for him. You trusted him to that
extent?
A. That is
not correct.”
So
nauseating was this persistent
denial that at a point his
obviously frustrated Lawyer
remarked,
“……..My lord
this is the difficulty. That is
why I started by telling him
that let us admit certain facts
which are there and then we
proceed from there. Because to
say that Kyei was not your
friend is difficult”
Clearly this
was not the voice of a truthful
person. What was he trying to
prove denying Kyei now that he
is dead? What was he trying to
hide? Surely this was not a
credible person and anything he
said from now on had to be taken
with a pinch of salt.
Evidence on
record is that Kyei lived in
this house from !979 till he
died in 1996, a period of no
less than 17 years. All through
this period he exercised rights
of ownership over this property.
What did the co defendant do?
His answer was that Kyei forced
himself into the house and again
he went into exile following the
1979 mutiny. But he admitted
that he returned from self
imposed exile in 1984 and has
actually remained in the country
since then. He did nothing while
Kyei was alive and indeed until
4 or 5 years after his death.
This behavior lends credence to
the claim by the appellant that
the property belonged to her
late husband Kyei.
The most
important piece of documentary
evidence that was not properly
evaluated or improper inferences
drawn from, was the letter
written by the co-defendant for
Kyei variously described as exh
6 or exh H. For a better
appreciation let me re-produce
the letter unedited’
9/9/86
My dear
junior brother,
This note is
from your senior brother Cdr
Osei. Mr Kyei was very lucky to
have found me. From him, he has
been fishing for me and he has
tried all places he knew and was
told I was residing. All was a
failure until today he got me
near the PCT head office where I
also saw you some time ago. Mr
Kwarteng its all about a house I
got for him. You know very well
that I am not corrupt and will
never ever get myself into it.
So it is all true that that its
for him. I got it for him and he
even spent a lot on it. I
remember giving him a paper to
that effect but due the 1979
situation most of my personal
effects got stolen. So please
handle the problem prudently and
on humanitarian basis.
I hope you
would recall and reflect on me
to help the poor guy.
Thanks and
God bless
Yours
(signed)
Cdr Osei
Before the
Court of Appeal, counsel for the
respondent argued that this
document does not mention the
house in dispute and that
reference to the word House in
the letter does not mean the
house in dispute. So there is
the need for extrinsic evidence
to interpret. This argument
seemed to have found favour with
their Lordships at the Court of
Appeal.
In their
judgment their lordships noted
thus;
“…..But the
most significant observation is
that exhibit did not give any
material particulars of the
house mentioned in that letter.
Indeed a careful reading of the
said exhibit gives a strong
impression that the author was
being economical with or
choosing his words carefully.
Therefore it was not apparent on
the face of the document the
subject matter that was being
discussed. In the absence of any
reference to H/NO/461, Kwadaso
Estate, Kumasi the trial court
was left with no option but to
take extrinsic evidence to
assist in deciding what weight
to attach to it.”
. How the
Court of Appeal came to the
conclusion that this clearly
unambiguous document needed to
be subjected to interpretation,
because there was no indication
in the document that the house
in dispute was the subject
matter of the letter, is not
easy to fathom. When he was
being led in evidence by his own
counsel this is what took place.
Q…You have
said that you went into exile.
Tell this court when did you
return from exile?.
-
My Lord in 1984
Q. Cast your
mind back to the year 1986 ie 2
years after you had returned
from exile. Did anything happen
between you and the late Kyei in
respect of the property in
dispute?
A. My Lord
after my return, I went to my
mother in Kumasi and lived with
my mother. So Kyei came to me
at my mother’s place. I
requested for my properties from
him. He told me that he had put
them to some place but we went
round the whole Kumasi and could
not find them - about 2 days
later he came to and told me
that he knows the officer of the
Confiscated Assets Unit. He
knows the director very well.
My Lord he mentioned the name as
Mr. Kwarteng. This man I also
give him a note to be given to
the Confiscated Assets Unit for
the release of the disputed
house.
Q. Tell this
court, what did Kyei ask you to
write in the said letter.
The content of the said letter?
A. My Lord he
asked me to write that if he
sent this letter to the Unit it
would be released.
Q. What was
the purpose of this letter?
A. My Lord
the purpose of the letter was to
release the house to me.
Q. So you
wrote this letter for Kyei. Now
have a look at this and see if
this is the letter that you
wrote for him. This is a
photocopy?
A. Yes My
Lord.
Q. We want to
tender the said letter in
evidence?
D. M. Adusei:
No objection
By Court:
Copy of letter dated 9-9-86
admitted in evidence without
objection and marked Exhibit 6.
Then under
cross examination this is what
happened;
Q. Now
commander please look at exhibit
6. Commander exhibit 6 was
written by you?
A. Yes my
Lord I will not lie
Q. And it was
written on the 9th
September 1986?
A. Yes my
Lord
Q. And to
whom was it addressed?
A. My Lord it
was addressed to a man whom Kyei
had already mention my name to
him. So I have written there my
junior brother.
Q. So you
know him?
A. Yes My
Lord.
Q. And this
particular person had something
to do with de-confistication of
Assets.
A. My Lord he
was a member of a committee of
Confisticated Asset Committee.
Q. And he was
somebody who was in the position
to help?
A. My lord I
believe he could help
Q. Now please
look at your exhibit 6 and read
out the content to his lordship?
A. (The
witness reads the letter)
Q. And this
letter was signed by you?
A. Yes my
Lord
Q. Now the
Kyei referred to in exhibit 6
and which you have just read is
the deceased husband of the
plaintiff?
A. Yes my
lord he is the one
Q. And the
property which you were asking
Kwarteng to assist the release
was the same property which is
now the subject matter of the
suit?
A. Yes my
lord.
So how did
their lordships come to the
conclusion that it was not clear
the subject matter that was
being discussed in that letter?
This was a
document voluntarily written by
an adult retired Senior Officer
of the Ghana Armed Forces; a
Naval Commander. Not in exile or
custody but from the comfort of
his home. The Commander then
goes to sleep. Thereafter the
beneficiary of this letter lives
in the said property for ten
more years before he dies. Then
like the proverbial Rip Van
Winkle the Navy Commander wakes
up 4 years after his death, and
suddenly realizes that the
property is actually his and
starts scheming to get it back.
And his answer to the long
period of inaction is that the
officers in the mutiny ie AFRC
that forced him into exile, were
the same people who had come
back as PNDC. What he failed to
tell the court was why he felt
emboldened to return to Ghana in
1984, just two years after the
coup that had brought the same
people to power. We still have
not been told what he did even
when Ghana was retuned to
constitutional governance in
!993. I am sure his answer would
be that it was the same AFRC in
79 that came back as PNDC in 82
and metamorphosed into NDC in
1993! Despite the documented
turbulence associated with the
1979 military uprising, this is
a story that I find too
incredible.
It is my
considered opinion that the
trial court and their Lordships
allowed themselves to be unduly
influenced by the documentary
evidence proferred by the
co-defendant while paying scant
attention to the single most
important document, exh H, on
the part of the appellant. If
they had adverted their minds
properly to the fact of the long
occupation of the property by
Kyei and his family, the
inaction on the part of the
co-defendant for the long period
lived that Kyei lived in the
house till he died while; the
fact that exhibit H was evidence
against self interest, and
finally the fact that the
co-defendant sought to repudiate
the clear and unambiguous
contents of exhibit H, or give
it a different meaning only
after the death of the
beneficiary of that exhibit,
they surely would have come to a
different conclusion than they
came to.
As was said in the Achoro . v
Akanfela case;by Acquah JSC,
Instances
where concurrent findings may be
interfered with are
(i) Where the
said findings of the trial court
are clearly unsupported by
evidence on record; or where the
reasons in support of the
findings are unsatisfactory;
(iv) where
the finding is inconsistent with
crucial documentary evidence on
record. the very fact that the
first appellate court had
confirmed the judgment of the
trial court does not relieve the
second appellate court of its
duty to satisfy itself that the
first appellate court’s judgment
is, like the trial court’s, also
justified by the evidence on
record; for an appeal, at
whatever stage is by way of
rehearing. And every appellate
court has a duty to make its own
independent examination of the
record or proceedings.”
From the
totality of the evidence on
record it is my view that
decision of their Lordships was
against the weight of evidence
on record and so the appeal
succeeds.
I will
therefore allow the appeal and
set aside the judgment of the
trial High Court, as confirmed
by the Court f Appeal . Judgment
in favour of the
plaintiff/appellant/appellant.
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME
COURT
(SGD) V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
HANSEN K. KODUA FOR THE
APPELLANT
KWAKU YEBOAH FOR THE RESPONDENTS
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