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RULING
TWUMASI:
This is an appeal from the
judgment of the High Court,
Tamale delivered on the 25th
January, 1993. The appellant
instituted an action against two
defendants claiming:
1) a declaration that House No.
1.147 Tamale was the joint
property of the appellant and
the first defendant.
2) A declaration that the
purported deed of gift of the
said house executed by the first
defendant in favour of the
second defendant by way of gift
inter vivos was null and void
and ought to be cancelled.
The appellant claimed further
orders for injunction and
account against the defendants.
The first defendant gave
evidence at the trial, but
judgment was given in favour
posthumously. The second
defendant (hereinafter called
the respondent) luckily survived
the full length of the trial
with victory over their common
opponent the appellant. The
first defendant was a cooked
food seller by vocation. Her
business activities took her to
Samreboi in the Western Region
of Ghana. While working in that
town, she felt the need for
someone to provide her the
comfort of a child. Apparently,
she had no biological child of
her own. And as it is customary
with Ghanaian family system, a
loving relation gave her a child
in the person of the appellant
to satisfy her avowed desire.
The latter was then of tender
age in primary three at
Sanlerugu in the Northern Region
but her mother, called Mamata,
released her to stay with the
first defendant (deceased).
After a short spell of stay with
the appellant, the first
defendant left Ghana for
business adventure in the Ivory
Coast where she continued with
her trade. She prepared the
food and sold it where it was
needed by prospective
consumers. For the purpose of
widening her entrepreneurial
horizon, she again moved to
Burkina Faso where they worked
at Quagadougou. In her
evidence-in-chief, the first
defendant stated that sometime
in 1964 she came down to Tamale
and purchased House No. 1.147.
She tendered in evidence Exhibit
A, and indenture dated 8th
September, 1996. She explained
the reasons for the delay in
obtaining the said indenture
from the Tamale Municipal
Council authorities. The
document bears the name of the
first defendant as the sole
purchaser. The appellant, for
her part, contended at the trial
in tune with her Writ of Summons
and Statement of Claim that she
and the first defendant jointly
acquired the house in dispute
and this claim had been stoutly
denied by the first defendant in
her statement of defense and
testimony at the trial. The
first defendant emphatically
stated that she bought the house
on her own initiative and out of
her own resources and that the
appellant made no contribution,
financial or otherwise and was
at no time considered as a
partowner. She denied ever
telling the appellant’s mother
that she jointly purchased the
house with the appellant or that
she bought it out of proceeds
from my business in which the
appellant was an equal partner.
In an answer to a question the
first defendant stated at page
31 of the record:
“Automatically plaintiff had to
assist me in the house-keeping
activities as well as in my
business. I also took care of
the plaintiff caring for her
needs like food, shelter and
clothing. When plaintiff came
of age she could not stay at
home and help me but rather
chose to follow young men. So
when we came home I complained
to the mother that I would not
return with her to Quagadougou.
The mother told me she had
spoken to the plaintiff. I
agreed and took her back. When
we got back she ran away from me
only after two months. I made a
report to the police who
arrested the boy who was keeping
her and was brought back to me.”
The first defendant continued
that the appellant was brought
down to Ghana to her mother but
she returned to Quagadougou to
the same boy. Later the first
defendant came to Ghana and
never heard of the appellant
ever since. In
cross-examination, this damaging
evidence was not discredited as
no question was put to the first
defendant on it. Also all
attempts by counsel to get the
first defendant to discredit her
on her assertion that she bought
the house from her sole
resources failed. The appellant
found it extremely difficult to
substantiate her claim to joint
ownership of the house. Earlier
in her evidence-in chief, the
first defendant stated that
while the while the appellant
was following me, she had four
other girls who assisted her in
the business. This evidence
also stood undiscredited. A
witness called by the appellant
to testify as PW1 is on record
as saying that the first
defendant had denied all the
claims which the appellant had
made. After reading his
judgment, I was filled with
great admiration for the learned
trial judge’s appreciation of
the law applicable to the claim
and the able manner in which he
analysed the evidence before he
made his findings of fact and
applied the law to them. The
learned judge was right when he
found that the relationship
between the appellant and the
first defendant was that of
parent and child with their
respective legal rights and
obligations owed to the other
and that this was the reality in
the instant case. Consequently,
the cases applied by the judge
namely Okwabi v. Odonu [1957] 2
WALR 268; Quartey v. Martey
[1959] GLR 377 and Adjabeng v.
Kwable (1960) GLR 37 which lay
down the customary law principle
that a child’s contribution
whether in kind or in cash to
the acquisition of property by
his or her parent or any person
in loco parentis did not ipso
facto make him or her a joint
owner were right and apposition.
On this essential and decisive
question of fact as to whether
it was true that the appellant
and the first defendant agreed
together to go to Tamale to buy
the house I say emphatically
that from the account given by
the defendant which I have
endeavoured to relate in
extenso, it would be highly
improbable that such an
agreement could take place.
Indeed the relationship between
the two had been strained when
she expressed her objection to
the immoral association the
appellant had established with
youngmen. This vital aspect of
the evidence eluded the learned
trial judge but this court is
always entitled to draw its own
inferences and conclusions on
evidence which is found to have
been undiscredited and true or
tilts the balance of
probabilities in favour of the
party in whose favour judgment
was given by the trial judge; in
other words, the appellate court
is in as good a position as the
trial court to draw its own
conclusions from the evidence
vital to the issues; see Ghana
Union Assurance Co. Ltd. v.
Assad (1981) GLR 634; Benmax v.
Auston Motor Co. Ltd. (1955) AC
370 at 376 per Lord Reid and
Barclays Bank Ghana Ltd. v.
Sakari (1996-97) SC GLR 639
(holding 3).
An observation which I must make
at the outset is that the
appellant did not call any
witness capable of giving an
eye-witness account or an
account within his or her own
knowledge. But for her part,
the first defendant called DW1
who testified that it was he who
arranged the sale transaction
between the vendor and the first
defendant and even thumbprinted
the cash payment receipt. The
document was tendered as Exhibit
‘C’ but Counsel for the
appellant never challenged the
authenticity of the thumbprint.
What Counsel sought to
capitalise upon was the apparent
discrepancy between the sum of
£12 (Twelve Pounds) which the
witness said was the price they
paid for the house and the
amount of £1220 appearing on the
receipt. This witness and the
first defendant asserted that
this £12 was paid to one Bibata,
the vendor. The two witnesses
were illiterates and they did
not make the documents. Since
the author of the document did
not testify the issue, no blame
could be appointed to these
witnesses and the discrepancy
cannot be used against them. In
any event, the central issues in
this case was whether the first
defendant alone purchased the
house or she and the appellant
did it jointly and for their
joint ownership. The appellant
claimed she and the first
defendant went together to
negotiate for and in fact bought
the house. She also said a
receipt was issued to them and
it was given to the first
defendant. According to her,
she did not know whose name was
on the receipt because she was
an illiterate just as the first
defendant was. She quoted the
price as £1220.00 which tallied
with the figure quoted on the
receipt. (see page 76) of the
record of appeal). In my view
the learned trial judge was
right in resolving the issue in
favour of the first defendant.
He observed their demeanour.
Be that as it may, sight should
not also be lost of the fact
that the discrepancy about the
price was not fundamental as the
trial judge rightly held.
Counsel’s contention that it was
material cannot be upheld. Two
documents were tendered, the
first one was Exhibit ‘C’
receipt No. T 582259 dated 8th
June, 1770 and described as not
type-written. I suppose this
was the original receipt which
DW1 thumbprinted. Then there
was the second one Exhibit ‘G’
which was the final deed of
assignment where the figure No.
¢2,440.00 is written as a
conversion of £1,220. When the
documents are carefully
examined, it appears clear that
the contention of the first
defendant was consistent.
Perhaps, I may end this analysis
on conflicts by quoting a
statement by Amissah J.A.
sitting as an additional High
Court Judge at Accra in Opoku v.
Omane (1972) 1 GLR 295 at 313 as
follows:
“With regard to the conflicts in
the evidence it is my view that
these conflicts as to matters of
detail do not have the effect of
discrediting the evidence of the
defendant and his witnesses on
the matter of substance …”
Even where it is conceded that
there is a material conflict in
the testimony of one witness or
two witnesses one contradicting
the other, the case of Asare
alise Fanti (1964) GLR 70 SC is
authority for the proposition
that despite conflict the
evidence of a witness can be
accepted if it is amply
supported by other evidence in
support of his credibility. In
the instant case DW1 who
thumbprinted Exhibit ‘C’ stated
that he negotiated for the sale
of the house for the first
defendant and he was positive
that the appellant was not a
party to the transaction. The
learned trial Judge therefore
rightly rejected the appellant’s
claim on this issue.
Counsel concede the correctness
of the Customary Law principle
as stated in the case of Okwabi
v. Adamu and the chain of cases
that adopted the principle as
have been cited above, but
submitted that the application
of the rule to a child who had
no inheritable interest in the
property the acquisition of
which such child had made
contribution was inequitable.
He submitted that the rule
should therefore not be applied
to the appellant. With the
greatest respect to Counsel, I
do not share the view that this
is the rationale behind the
rule. The rule applies
universally to all relationships
of child and parent or any
person in loco parentis as in
the instant case. It is in my
view terribly important to
stress that the rule operates on
the premises that the child has
made some contribution whether
in kind or in cash to the
acquisition of the property.
The first defendant did not
dispute contribution by the
appellant as a child would to a
parent but she stated that she
too fulfilled her parental
obligations to the appellant. In
the circumstances, therefore it
is my judgment that all the
protestations and recriminations
as to the appellant crediting
money and other things for the
business etc. were neither here
nor there. The fact remained
that it was the first defendant
who cared for and trained the
appellant to develop. This is
where the caveat comes in. The
ownership of any property
acquired with proceeds from any
business while the relationship
of child and parent subsisted
between the parties is vested in
the parent i.e. the first
defendant. The appellant
therefore has no cause to
complain against the deed of
gift made by the first defendant
to the second. I find no merit
in this appeal and I accordingly
dismiss it.
P.K. TWUMASI
JUSTICE OF APPEAL
ESSILFIE-BONDIE, JA:
I agree
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
FARKYE, JA.
I also agree
S.T. FARKYE
JUSTICE OF APPEAL
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