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J U D G M E N T
ATUGUBA, J.S.C.
THE FACTS
In this case the
Plaintiffs/Appellants/Appellants’
father, Nathaniel Fianko
Akotuah, on the face of a
registered title deed, exhibit
‘B’ was the owner of the
property on which stands H/No. B
565/6, Abossey Okai, Accra,
which is also said to belong to
their father. Other documents
tending to support this claim
include a building permit,
receipts for payment of property
rates etc. Accordingly they
sued the
Defendant/Respondents/Respondents
in a District Court, Accra for:
“an Order of Ejectment from
House No. B565/6 and an order of
payment of rend arrears from
January, 1992”. The
co-respondent was joint to
action upon his application
since he contended that he was
the real owner of the property
in question.
The courts below, from the
District Court, Court 6, 28th
February Road, Accra through the
High Court Accra, presided over
by Her Ladyship Mrs. G.
Kusi-Appouh J, to the Court of
Appeal, upheld the respondents’
case against the appellants.
They all held that
notwithstanding these said
documents the co-respondent is
the true or beneficial owner of
the property in dispute.
Against these triple concurrent
findings of fact the appellants
have battled this case up to
this ultimate court.
The grounds of appeal are as
follows:
“A) The learned judges,
with respect, clearly erred in
the face of crucial documentary
evidence and in its dealing with
the established facts in holding
that the
Co-Defendant/Respondent/Respondent
(“the Respondent”) herein is the
owner of the property in dispute
notwithstanding the clear,
overwhelming and unequivocal
documentary and oral evidence
confirming the Appellant’s late
father’s ownership of the
property in dispute and the
error has occasioned the
Appellant a substantial
miscarriage of justice.
B) The learned judges
erred in law in failing to
appreciate the legal
consequences of the documents
tendered by the appellant as
evidence of his late father’s
ownership of the property,
subject matter of the dispute,
which error has occasioned the
Appellant a substantial
miscarriage of justice.
i) The learned judges,
with respect, misappreciated or
misapplied the principles of
evidence relating, inter alia,
to conclusive presumptions,
estoppel by conduct and proof by
the Appellant of his case by a
preponderance of the
probabilities, to the facts
admitted or established by the
Court of Appeal particularly in
terms of the Respondent’s
unequivocal conduct in
executing, as a witness for the
Appellant’s late father, the
title deed covering the sale of
the property in dispute to the
Appellant’s late father by the
Vendor one Moses Bekoe
Kisseadoo.
ii)
The admission in evidence
without any objection by the
Respondent, of the title deed to
the property i.e., Exhibit ‘B’
at page 151 of the Record and
the building permits, building
plans, receipts of property
rates, basic rates and rent
cards all of which were in the
name of the Appellant’s late
father, had fatal legal
consequences for the
Respondent’s case and
constituted a declaration
against interest by the
Respondent which the learned
judges failed to so hold.
C) The findings of
the learned judges that the
turning over of rent on the
disputed property to the
Respondent constituted a
declaration against interest is,
with respect a misappreciation
of the significance of the issue
of passing over the rent to the
Respondent and an erroneous
proposition of the law in an
action which was primarily a
claim of ownership of House No.
B 565/6 Abossey Okai, Accra by
both the Appellant and the
Respondent and the error has
occasioned the Appellant a
substantial miscarriage of
justice.
D) The learned
judges erred in holding that the
Appellants late father knew that
he was just a bare legal owner
of the property in dispute prior
to the execution of Exhibit ‘B’
(i.e the title deed at page 151
of the Record) in 1957 when
there was no evidence whatsoever
to support such a conclusion
with the result that the error
has occasioned the appellant a
substantial miscarriage of
justice.
E) The learned
judges erred in holding that the
title deeds to the property in
dispute were in the custody of
the Respondent and therefore
that dislodged the evidential
effect of the said documents
which were in the name of the
Appellant’s late father when
there was no evidence to support
such a conclusion.
F) The judgment is
against the weight of evidence”.
THE ISSUE OF ESTOPPEL
The appellants’ counsel,
Haldane-Lutterodt & Co.
strenuously contend estoppel,
relying on Swiss African
Trading Co. Ltd vs. Aryee
(1961) 1 GLR 185 S.C wherein the
erstwhile Supreme Court held
that a person who had witnessed
a conveyance of the property in
dispute to his brother as owner
thereof was estopped from
contending that he was a joint
owner thereof. It was pointed
out by the Court of Appeal that
the difference in the present
case is that there is evidence
against the appellants’ interest
that in their father’s lifetime
and in their own time the
co-respondent was the person who
collected the rents of the
property and disposed of them as
he pleased, without challenge
from them.
They also rely heavily on
sections 25 (1) and 26 of the
Evidence Decree which provide as
follows:
“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.
26. Except as otherwise
provided by law, including a
rule of equity, when a party
has, by his own statement, act
or omission, intentionally and
deliberately caused or permitted
another person to believe a
thing to be true and to act upon
such belief, the truth of that
thing shall be conclusively
presumed against that party or
his successors in interest in
any proceedings between that
party or his successors in
interest and such relying person
or his successors in interest”.
The Commentary on the Evidence
Decree states as to these two
provisions as follows:
“Section 25 – Facts recited in
written instrument: conclusive
presumption
This conclusive presumption
states the common law rule.
Sometimes this rule is referred
to as estoppel by deed. However
treated, its effect is the
same. In the absence of relief
granted by law or equity, the
facts recited in the written
instrument are made binding on
the parties.
Section 26 – Estoppel by own
statement or conduct: conclusive
presumption
This conclusive presumption
states the common law rule of
estoppel by conduct. It applies
in all cases except where
relieved by equity. See
parallel provision, Nigeria
Evidence Ordinance, Cap. 62,
1958, section 150”.
The appellants’ counsel seem to
have struck out the words
“Except as otherwise provided by
law, including a rule of equity
…..” and also the words “between
the parties to the instrument or
their successors in interest”,
with regard to s. 25 and the
words “Except as otherwise
provided by law, including a
rule of equity, when a party……”
with regard to s. 26.
The co-respondent was never a
party to Exhibit “B” in this
case and therefore not within
the purview of these provisions.
In any case the exceptions in
those provisions with regard to
law and equity cannot be
repeated by the appellants.
It is settled law that in
equity, as stated by Eyre C.B in
Dyer vs. Dyer
(1788) 2 COX Eq. Cas. 92 at 93
that:
“The clear result of all the
cases, without a single
exception, is, that the trust of
a legal estate, whether
freehold, copyhold, or
leasehold; whether taken in the
names of the purchasers and
others 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 advances the
purchase-money”.
This was the situation contended
for by the co-respondent in this
case and in such cases the
provider of the purchase-money
or the true owner in equity is
not estopped from averring and
proving that to be the truth of
the transaction. See
Reindorf vs. Reindorf
(1974) 2 GLR 38,
Ussher vs. Darko
(1977) 1 GLR 476 C.A. It has
further been held that the
parties cannot be estopped from
relating the real truth known to
them at the time of the making
of the statement see
Sasu vs. Nyadualah
(1973) 1 GLR 221 C.A. and
SSB vs. Agyarkwa
(1991) 2 GLR 192 C.A. It is
obvious that in such situations
it would plainly be inequitable
to allow one of the parties to
rely on estoppel. How could a
person, in such circumstances,
with his own equal and clear
knowledge to the contrary,
contend that the other party in
question has by his own
statement, act or omission,
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such belief
…….” At common law or
as required by section 26 of the
Evidence Decree?
The appellants contend that the
courts below overlooked certain
considerations, such as that the
co-respondent did own another
plot of land with a house
thereon, at Osu, in his own name
and right and that this was
acquired prior to the one
indispute in this case. However
it is plain that on a further
reading of the evidence the
co-respondent rather
consistently with his claim,
held that other property in
another person’s name.
They also contend that the
evidence on record shows that
the co-respondent collected the
rents of the property in dispute
as agent for the appellants’
father, but what of themselves?
In any case the question is
whether the evidence as a whole
warrants the findings of the
courts below and the answer
clearly is that it does. The
appellants also fall on the
statutory definition of a
landlord in the Rent Act 1963
(Act 220), namely:
“any person who leases premises
to another person in
consideration of the payment of
rent and includes any person
deriving title under the
original landlord.”
It is difficult to understand
this contention since it cannot
be contended that a landlord
cannot be shown to hold his
position as a trustee for
another. Surely not even an
express conveyance of that
property to such a person with
the knowledge of the true
beneficial owner prejudices the
latter!
The true legal position of this
matter is stated by the
appellants themselves in their
statement of case as follows:
“the Supreme Court in the case
entitled
Achoro And Anor vrs. Akanfela
and Another (1996 – 1997) SCGLR
page 209
held that in an appeal against
findings of facts to a second
appellate Court, such as in the
instant case, where the lower
appellate court had concurred in
the findings of the trial court,
the second appellate court would
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. The
Supreme Court further held that
it must be established that the
lower courts had clearly erred
for example in the face of a
crucial documentary evidence
or that a principle of evidence
had not been properly applied or
that the findings was so based
on an erroneous proposition of
the law that if that proposition
be corrected the findings would
disappear (see also the Supreme
Court case
Obrasiwa Ii and Others vrs. Oti
and Another (1996 – 1997) SCGLR
page 618.
Indeed, ……., the conditions
under which the Supreme Court
will interfere with the
concurrent findings of the lower
appellate courts as in the
instance case, were also clearly
stated in the case of
Obrasiwa Ii & Ors vs. Oti and
Another (1996 – 1997) SCGLR,
18 in which case this Honourable
Court ruled that it would
interfere in circumstances where
it was established with absolute
clearness that some blunder or
error which had resulted in a
miscarriage of justice was
apparent in the way in which the
lower tribunals had dealt with
the facts.
The errors, this Honourable
Court held, would include; an
error on the face of a crucial
documentary evidence; a
misapplication of a principle of
evidence and finally a finding
based on an erroneous
proposition of law such that if
that proposition was corrected
the finding would disappear, it
must further be established that
the said errors had led to a
miscarriage of justice”.
As recently as the 31st
day of October 2007 this court
affirmed these principles in
Kwaku Ahamah vs. Pandit Adu,
suit no J4/2/2007 and held that
they could be consistently
applied with those stated by
the Privy Council in
Shrimati Bibhabati Devi vs.
Kumar Ramendra Narayan Roy
(1946) A.C 508,which we therein
set out.
It is obvious that these
principles as to concurrent
findings of fact, militate
against any disturbance by this
court, of the concurrent
findings of fact by the 3 lower
courts in this case.
For all the foregoing reasons
the appeal is dismissed.
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
R. T. ANINAKWAH
JUSTICE OF THE SUPREME COURT
MRS. S. O. ADINYIRA
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mills-Haldane Lutterodt for
Plaintiffs/Appellants
Frank Adeeku for
Co-defendant/Respondent
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