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JUDGMENT
GBADEGBE, J.A.
My Lords, we are in this appeal
which arises from the dismissal
of the appeal filed by the
plaintiffs/appellants
[hereinafter for convenience
referred to as the appellants]
against the decision of the High
Court, Accra concerned with the
question whether or not having
regard to the admitted evidence
as contained in the transcript
before the Court the verdict of
dismissal of the appellant’s
case in the court below was
right? In my opinion although
several grounds have been argued
by the appellants through their
counsel in the considerable
submissions filed before us our
task simply is to determine
whether the evidence contained
in the record of proceedings
justifies our intervention to
set aside the decision of the
High Court and in place thereof
substitute one allowing the
claim of the appellants as filed
before the trial court. In this
regard, I wish to say that I
shall in this delivery consider
the points raised by the instant
proceedings under two heads
commencing first with those
which touch and concern issues
of law and then lastly those
which turn on issues of fact.
Since those bordering purely on
matters of law such as the legal
effect of documents tendered by
the appellants against the case
set up by the defendants
[hereinafter for convenience
referred to as the respondents]
are likely to have a bearing on
the factual determination, I
wish to start from a
consideration of these before
turning to the factual
evaluation.
The appellants have argued that
the effect of the documents
which were admitted in evidence
such as the title deed of their
deceased father, the building
permit, the receipts for payment
of rates to the municipal
authority all of which bear his
name are more reliable by way of
proof of ownership to the
building in dispute than the
oral evidence which was led by
the respondents and which oral
evidence was at times
conflicting. Accordingly, it was
urged by them that this court
noting that the effect which the
High Court gave to these
documents was wring, a wrong
which has thereby occasioned
miscarriage of justice to them
should set aside the verdict
entered against them and allow
the appeal. I wish to observe of
this ground that whiles it is
true that in appropriate cases
the court should prefer
documentary evidence to that
which is oral this is purely
determined by the circumstances
which unfold from the record of
proceedings. In the instant case
it is my opinion that learned
counsel for the appellants has
placed a wrong interpretation on
what transpired in the court
below as far as the evidence
relating to the said documents
by way of the subsequent conduct
of the father of the appellants
goes. I think that his conduct
in turning over the rents from
the property to his younger
brother, the co-defendant [to
whom I shall for convenience
hereinafter refer to as the
co-respondent], as well as the
continuation of this practice by
his children even after his
death is a matter which raised
against him and his successors
in title a declaration against
interest which in the very
circumstances of this case
justified the conclusion which
the learned trial magistrate
came to a view which was rightly
affirmed by the High Court. I
also wish to say regarding these
documents that it is significant
that although the title deed,
exhibit 'B' was in his name the
documents covering this was in
the custody of the
co-respondent. In my opinion
these matters tended to dislodge
the evidential effect of these
documents bearing his name and
when placed against the
explanation of the co-respondent
that he provided the money
utilized in the building of the
disputed property looked more
probable to the trier of fact
than the version put up by the
appellants. I am therefore
unable to accept the arguments
urged on us by counsel by way of
seeking to impeach the effect
which was placed on the
documents by the High Court.
Then there is the resort to
provisions of the Evidence
Decree, NRCD.175. The argument
submitted to us on this was
based on section 25[1] which
reads as follows:—
"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 submission which was placed
before us on the above section
by learned counsel for the
appellants was that since the
co-respondent had witnessed the
title deed in which the father
of the appellants was described
as the owner of the land he was
as estopped from asserting to
the contrary that he was in fact
the one who had provided the
money for the land. I wish to
say that I hold a contrary view.
In my opinion the section deals
with parties to an instrument
and it cannot be said that a
witness is a party to a deed of
conveyance for a party in its
ordinary or technical legal
meaning when used in relation to
a transaction refers those who
have entered into the
contractual relationship and who
by the contract have acquired
rights and obligations against
each other. In the instant case
this would refer to the persons
who executed exhibit 'B'. I
cannot see by what means it
could be legitimately said that
a person who only signs as a
witness to a contracting party
has by the very act of he being
a witness become a party to the
agreement which he has
witnessed. It is therefore
apparent that the section was
not rightly invoked by the
appellants. In any event since
before the making of exhibit 'B'
the father of the appellants
knew that he was just a bare
legal owner the beneficial
ownership being that of his
brother the co-respondent herein
I do think that the said
circumstance which was known to
him precluded him from setting
up a plea of estoppel by deed
against the co-respondent and
accordingly his successors in
title cannot rely on such a
plea; to do so would be
fraudulent one of the excepting
circumstances to which the
operation of section 25 of the
Evidence Decree is subject to. I
have in the course of this
judgment had regard to the
decision of the Supreme Court in
the case of Swiss African
Trading Co. Ltd vrs. Aryee
[1961] 1 GLR. 184 which
concerned the effect of a person
signing a deed as a witness and
would like to say that although
in that case the decision turned
on estoppel the considerations
leading to the decision are
quite dissimilar to those which
arise before us in these
proceedings and as such the
decision would not be applicable
to the instant case. In that
case, a brother signed as a
witness to a deed in which his
brother was described as the
owner. Subsequently when the
property in respect of which the
deed was made was being attached
in execution of a debt he
interpleaded saying that the
real nature of the transaction
was that he was a joint
purchaser of the property in
respect of which the deed was
made. The said plea was rejected
by the Supreme Court which held
that having admitted knowing
that the transaction was in
favour of his brother only he
cannot turn round to be relieved
from the consequences on the
sole ground that he was an
illiterate. It is quite clear
from his decision that the plea
set up was not rejected on the
ground of he being a party to
the deed by virtue of having
signed as a witness, in fact he
was not conceived of as such and
nowhere in the judgment was the
word "party" used to describe
him. I think that this decision
reinforces the opinion herein
that such a person is not a
party within the contemplation
of section 25 of the Evidence
Decree. The decision in the
Swiss African case [supra] can
also explained on the ground
that there was no other evidence
such as the subsequent conduct
of the one who alleged that he
was a joint owner unlike the
present case in which there is
substantial evidence that the
person described as the owner in
his own life conducted himself
in a manner inconsistent with
his ownership in favour of his
brother the co-respondent herein
which conduct was persisted in
by his successors. Further to
this, I think that the section
by itself mentions that it is
subject to the rules of equity
such as that which follows in
the next section-section 26
which deals with estoppel by
conduct. In my thinking section
26 of the Evidence Decree is a
statutory recognition of the
rule in equity described
commonly as estoppel by conduct
which is provided for as
follows:—
"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 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.
I think that in the case before
us since the conduct of the
father of the appellants as well
as his own children subsequent
to the making of the title deed,
exhibit 'B' not being consistent
with the recital in the deed on
which so much reliance has been
placed, it operated to defeat
whatever presumption arose from
the making of the same and
therefore by his conduct which
was continued by his children of
passing over the rents to the
co-respondent there can be no
question at all that his
subsequent conduct was for no
other reason than that the
disputed property belonged to
his younger brother, the
co-respondent. I need also
mention one other matter. It is
this. In our society
transactions such as those
relating to the purchase of
property on which so much
argument has been submitted to
us by the appellants must be
scrutinized by our courts when
the contest is between blood
relations and concerns the
determination of which of them
actually provided the purchase
money for we are aware of the
practice of brothers and sisters
buying property not in their own
name. It would appear therefore
that to seek to place a meaning
of the making of the document
only without an examination of
the surrounding circumstances in
which it came to be made might
not advance the interests of
justice. I am of the opinion
that in all probability having
regard to the conduct of the
father of the appellants in
turning over the rents to his
younger brother he was openly
acknowledging his role as his
benefactor as far as the
provision of shelter for him
goes and no wonder after his
death his own children continued
in that fashion. On the admitted
evidence therefore, I think that
there was no misappreciation of
the evidential value to be
attached to the documents and I
so hold. In fact, if I may go
further why did the appellants
not seek an explanation from
their father during his life
time over his conduct in handing
over the rents to his younger
brother who from the evidence of
the respondents which I accept
as true was better financially.
I think that the obvious answer
to this if indeed they never
sought to know is that their
father was not the owner of the
disputed building, its owner
being the co-respondent.
Now, I turn my attention to the
evaluation of the evidence. In
my view there can be no showing
after a critical examination of
the evidence on which the
findings of the trial court
which were affirmed by the court
below were based that the
conclusions reached were not
reasonable but perverse. I think
that the findings were amply
justified by the evidence and
since this was a province of the
trial court and the conclusions
reached were not unreasonable
the High Court was right in
affirming them. I think that it
is important to note in this
regard that even if upon a
consideration of the evidence
this court in the exercise of
its appellate jurisdiction comes
to the view that a decision the
other way is likely to be as
right as the decision appealed
from that by itself is not a
legitimate ground for setting
aside the decision appealed
from. But that is not all. In my
view since the said findings
have been made by two courts
concurrently for this court to
intervene it can only do so when
it is established with absolute
certainly that there was some
error or blunder resulting in a
miscarriage of justice. The said
error might arise from the
consideration of crucial
documentary evidence or an
erroneous application of rules
of evidence or an erroneous
proposition of the law which
when corrected might dissolve
the finding. See Achoro and
Another vrs. Akanfela [1996-97]
SCGLR.209. I must say that it
was precisely because of the
binding effect of this decision
that I commenced the
consideration of the instant
appeal from the grounds of
appeal that raised purely legal
matters and having come to the
view that there was no merit in
the attacks raised by the said
grounds. I think that the
findings need not be disturbed
on the ground that the
appellants have not succeeded in
justifying this appellate
court’s intervention in matters
which are purely factual by
demonstrating clearly that the
findings of the courts below are
wrong. On my own, having weighed
the probabilities which arise in
the case as best as I can, I am
unable to say with a tolerably
clear conviction that the
position asserted by the
co-respondent that he bought the
land and provided the money used
in putting up the disputed
property is not more probable.
See also [1] Owners of the "P.
Caland" and Freight vrs.
Glamorgan Steamship [1893]
AC.207 at 216 per Watson LJ.
My lords, this being the case, I
proceed to dismiss the appeal
herein and uphold the judgment
of the High Court Accra.
N.S. GBADEGBE
JUSTICE OF APPEAL
ESSILFIE-BONDZIE, J.A.
I agree
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
ANNIN-YEBOAH, J.A.
I also agree.
ANIN-YEBOAH
JUSTICE OF APPEAL
COUNSEL
Frank Adeeku for
Co-Defendant/Respondent.
Neils Lutterodt for Appellant. |
