Evidence – Documentary evidence – Weight – Authentic documentary evidence preferable to conflicting oral evidence.

Practice and procedure – Appeal – Findings of fact – Appellate court not to set aside the factual findings of a trial court unless unsupported by evidence.

Land law and conveyancing – Deeds and documents – Non-registration – Unregistered memorandum of deposit of title deed admissible not as evidence of title but to establish a state of fact.

In his capacity as the customary successor of the late Antwi, the appellant sued the respondent in the High Court claiming a declaration that the disputed house was the family property of the appellant, an order that the respondent assign the house to the appellant and perpetual injunction restraining the respondent from interfering with the appellant’s enjoyment of the property. The respondent originally acquired the disputed house. Throughout the lifetime of the late Antwi, the title deeds were in the name of the respondent and he had remained in possession of the house.

The case of the appellant was that the respondent incurred a debt to his employers, which Antwi paid on his behalf. The respondent could not repay Antwi and offered the land to Antwi to build thereon. Antwi entrusted the construction of the house to the appellant. When the house was completed, Antwi let the house to tenants and moved to stay in the house some years later. He paid the rates on the house in the name of the respondent. Soon thereafter he died. Upon Antwi’s death the appellant demanded the title deeds which the respondent rejected and laid claim to the house.

At the trial, the respondent resisted the claim, maintaining that he acquired the plot for himself and provided the money for the construction of the disputed house, hence the title deed, exhibit 1, remained in his name. He denied borrowing money from the late Antwi or surrendering the plot to him in payment of any debt. Exhibit 2 admitted in evidence established that Antwi had incurred a debt that a moneylender repaid and the respondent deposited his title deed on the disputed house with the moneylender as security for Antwi’s debt.

The High Court dismissed the appellant’s claim and entered judgment for the respondent. On appeal to the Court of Appeal the appellant contended inter alia that exhibit 2 was invalid and not reliable as it was not registered and could pass no title.

Held: (1) The findings and decision of the trial court were amply supported by the facts. Antwi’s root of title was not established. He was an educated person but no explanation was offered for allowing his house to stand in the name of the respondent or for paying the rates in the name of respondent. Besides his conduct in relation to exhibit 2 was intriguing. If the house truly belonged to him there could have been no better opportunity to assert his ownership than to sign the exhibit that recited that the property belonged to the respondent. The exhibit was clearly an admission by Antwi not only against his own interest but the interest of all who claimed through him. His successors were estopped from asserting that the property belonged to Antwi. Donkor v Alhassan [1987-88] 2 GLR 253, CA applied.

(2) A document purporting to pass title could not validly be relied upon unless it has been registered. The submission on the legality of exhibit 2 was untenable as the exhibit was neither tendered nor accepted as proof of title. It was admitted to disclose the intentions of Antwi himself while he was alive. Asare v Brobbey [1971] 2 GLR 331, CA distinguished; Odametey v Clocuh [1989-90] 1 GLR 14, SC, Donkor v Alhassan [1987-88] 2 GLR 253, CA referred to.

(3) Where there was documentary evidence over a transaction, the practice was to consider both the oral and documentary evidence but often to lean favourably towards the documentary evidence, especially when the documentary evidence was found to be authentic while the oral evidence is conflicting. The authenticity of the lease on the land was not in doubt, so also exhibit 2. On the other hand, the oral evidence adduced on behalf of the appellant was conflicting. Hayfron v Egyir [1984-86] 1 GLR 682, CA applied.

(4) This being a land case, the appellant on whom lay the onus of proof could only succeed on the strength of his own case. On the facts the trial judge who saw the witnesses and observed their demeanour concluded that the respondent’s case was more preferable to that of the appellant. An appellate court could not set aside the factual findings of a trial court unless there was no evidence in support of the findings, or the preponderance of the evidence weighed heavily against those findings or the inferences from the facts were wrong. Re Yendi Skin Affairs, Yakubu II v Abudulai [1984-86] 2 GLR 239, SC followed.

BROBBEY JA. The property in dispute in this appeal consists of a piece of land with a house on it numbered as plot 8 Block IV, Odumasi Extension, Kumasi. The case of the appellant in the trial court was that the land was originally acquired by the respondent. The respondent incurred some debt to his employers. One Mr Antwi paid the debt on behalf of the respondent. The respondent could not refund to Antwi the amount paid on his behalf. The respondent, in repayment, offered the land to the late Antwi to build on it. Antwi entrusted the construction of the house to the appellant. Eventually construction of the house was completed. Antwi rented rooms in the house to tenants. He moved to stay in the house some years later. Not long after moving into the house, Antwi died.

Throughout the lifetime of the late Antwi, the documents showing the ownership of the land which were in the name of the respondent, remained in the possession of the respondent. After Antwi died, the respondent rejected requests from Antwi’s family for the documents. Instead, he laid claim to ownership of the house and land in dispute.

In his capacity as the customary successor of the late Antwi, the appellant sued the respondent in the High Court claiming:

(a) Declaration that the house is the family property of the appellant and members of his family.

(b) An order enjoining the respondent to assign the legal estate in the house to the appellant.

At the trial court, the respondent resisted the claim, averring that he acquired the plot for himself and provided the money for the construction of the house and that accounted for the documents on the house being in his name. He denied borrowing money from the late Antwi or surrendering the plot to him in payment of any debt.

After the trial, the High Court dismissed the appellant’s claim and entered judgment for the respondent. It was against that judgment that the appellant appealed to this court.

In arguing the appeal, counsel for the appellant submitted that the late Antwi provided money for the construction of the house and therefore the trial judge should have ruled that a resulting trust was created. If there was evidence in support of that submission, counsel’s argument could have been unassailable. A critical examination of the record showed however that the evidence relied on to support this contention was inadequate.

Evidence on this issue was given by the son of the late Antwi who testified as PW2. He said he saw his late father giving moneys to the respondent to construct the house. This evidence was grossly discredited by the analyses of the trial judge.

Firstly, while his mother, PW1, could not give the value of the house, he confidently stated the value to be ¢30,000. This, the trial judge rejected for the reason that his mother said at the time of the construction of the house, a bag of cement cost two shillings and six pence and therefore it surely could not have cost as much as ¢30,000 then to build a mere boys quarters.

I think the logic in that argument cannot be faulted. In any case his own evidence showed that while the house was being constructed in 1952, he was only about five years old. He could not have been old enough to recollect the series of moneys taken from his late father by the respondent, let alone the precise value of the moneys he collected, which he said totalled ¢30,000. Considering the price of cement then, the trial judge rightly accepted the evidence of the respondent that the house cost no more than ¢5,000 to be constructed.

The other evidence relied upon to found resulting trust came from PW1 who testified that she could not state with certainty the value of the moneys given to the respondent. All she said on the amounts given to respondent was challenged by the respondent. For instance, her assertion that the respondent was a contractor was denied by him. Yet she led no other evidence in proof of that assertion.

In the long run the issue as to who provided money for the construction of the house boiled down to the oath of PW1 against that of the respondent. The trial judge preferred the version of the respondent that he provided the money. There was more than ample evidence on record to support that conclusion. It follows that there was no evidence in support of resulting trust. Counsel’s submission therefore failed.

Counsel for the appellant further argued that the late Antwi was in possession of the house for over twenty years before his death and that supported the claim that Antwi was the owner of the house. There is no doubt that Antwi was in control and possession of the house for a considerable length of time. That was however explained away, and in my opinion successfully too by the respondent, by his testimony that at all relevant times he was living and working about 80 miles from Kumasi while the late Antwi was based at Ejusu, obviously much closer to Kumasi. He therefore entrusted the management of the house to Antwi.

One point which militated against Antwi was that he had two wives. One was resident in Kumasi. She never lived in the disputed house. Instead he rented a house for her. One would have expected Antwi to have got his wife to live in the house if the house really belonged to him. Secondly, even though Antwi claimed that he owned the house, he never lived in it until the last few years of his life before he died. The evidence on record sufficiently supported the conclusion of the trial judge that Antwi was in the position of caretaker and that was why he exercised acts of possession and control over the house. That capacity of caretakership further explained why Antwi was the one who paid rates on the house.

The most important point in this case relates to the root of title to the land on which the house was situated. As already stated, it was the case of the appellant that the land originally belonged to the respondent. However the respondent gave it to the late Antwi when Antwi paid off some debt owed by respondent to his employers. The respondent denied ever owing any amount to his employers.

In any case, no evidence was led to prove the nature of the transaction which was relied on to assert the title of Antwi. It was not established to be an assignment, deed of exchange, transfer, conveyance, lease or any mode of acquiring title known in law.

The late Antwi was certainly an educated person. No explanation was given as to why Antwi, having acquired the land in his lifetime, allowed it to remain in the name of the respondent till he died. Ironically, too Antwi paid rates on the house in the name of respondent for a greater part of his life. Even more intriguing was the conduct of Antwi as reflected in exhibit 2. Antwi was said to have incurred some debt. A moneylender paid the debt for Antwi. The document on the disputed house was offered by the respondent, not Antwi, as security for Antwi’s debt. If the house truly belonged to Antwi there could have been no better opportunity than at that crucial moment to have established his ownership by changing the name on the lease to his (Antwi’s) own name in order to use it as security for the payment of his debt. Antwi did no such thing. Instead he allowed exhibit 2, the document evidencing the loan transaction and the security for that loan to state that respondent was the owner of the house in dispute. Exhibit 2 was clearly an admission against interest on which the trial judge properly placed much reliance since it was made in the lifetime of the late Antwi.

It was not an admission against the interest of only Antwi but against all who claimed through him like the appellant, PW1 and PW2. As counsel for the respondent rightly pointed out, by exhibit 2, the late Antwi and his successors were estopped from asserting that the property belonged to Antwi. Counsel for the appellant attempted to impugn the validity of exhibit 2 by arguing that it had not been registered and therefore could not pass title, relying on the case of Donkor v Alhassan [1987-88] 2 GLR 253, CA.

That argument is untenable. Exhibit 2 was not tendered, and was not accepted by the trial judge as proof of title. It was admitted to disclose the intentions of Antwi himself while he was alive. In any case, the case relied on concerned receipts, which could not pass title and bore no signature of the opponent.

In the instant case, Antwi signed exhibit 2 in which he acknowledged that respondent was the landlord. So his successors cannot turn round after he has died to say Antwi did not regard respondent as the landlord.

Counsel further relied on Asare v Brobbey [1971] 2 GLR 331, CA on the same issue. Again that case is distinguishable from the instant one in that it concerned a mortgage deed capable of passing title. A document purporting to pass title could not validly be relied upon unless it has been registered as all the known authorities provide, particularly Odametey v Clocuh [1989-90] 1 GLR 14, SC.

As already stated, exhibit 2 in the instant case was not tendered to prove any title. It was tendered to evidence the intention of Antwi towards ownership of the land and house while he was alive. Over and above all these, the respondent maintained consistently that the land was acquired by him. In support of his stand, he tendered the lease on the land as exhibit 1 duly executed in his name, and which remained in his name till Antwi died.

The situation apparently came up to this; while the late Antwi himself was alive he did not merely allow the document on the house to remain in respondent’s name, but also went forward to sign exhibit 2 admitting that the land and house belonged to the respondent. Could the successors of Antwi, after his death, denounce Antwi’s conduct and claim on the contrary that the land and house no longer belonged to respondent? I think the answer is in the negative.

It has been well-established that where there is in existence a written document over a transaction, the practice in this court is to consider both the oral and documentary evidence but often to lean favourably towards the documentary evidence, especially when the documentary evidence is found to be authentic while the oral evidence is conflicting: see Hayfron v Egyir [1984-86] 1 GLR 682, CA.

In the instant case the authenticity of the lease on the land is not in doubt: neither is the authenticity of exhibit 2 in which the late Antwi admitted in writing that the land and house belonged to the respondent.

On the other hand, the oral evidence adduced on behalf of the appellant, was conflicting. These are borne out by the evidence led on behalf of the appellant concerning how the late Antwi sought to acquire the land from respondent, the total want of evidence as to the nature of the transaction and conflicts on the evidence led on the amounts given for the construction of the house. In the circumstances the trial judge was right in relying on the indenture on the lease, exhibit 1 and on the loan transaction, exhibit 2.

This being a land case, the plaintiff-appellant on whom lay the onus of proof could only succeed on the strength of his own case. On the facts the trial judge who saw the witnesses and observed their demeanour concluded that the respondent’s case was more preferrable to that of the appellant. An appellate court like this one cannot set aside the factual findings of a trial court unless there is no evidence in support of the findings, or the preponderance of the evidence heavily weighs against those findings, or the inferences from the facts were wrong: See In Re Yendi Skin Affairs, Yakubu II v Abudulai [1984-86] 2 GLR 239, SC.

In the instant case, none of these conditions exist for setting aside the findings of the trial court: Critical examination of the evidence and submissions of counsel on this case support without any measure of doubt that the findings and conclusions of the trial court were clearly borne out by the evidence on record. In my opinion there is no merit in the appeal and I will dismiss it.