|
Succession - Self-acquired
property - Ownership - Recovery
of possession- Intestate
Succession Law, 1985, PNDCL 111
- Documentary evidence -
Whether or not the property is
the self-acquired property of
the late Opanin Yaw Manu or that
of his extended family. -
whether the Court of Appeal was
justified in interfering with
the trial court’s findings of
fact and conclusion -
HEADNOTES.
The
plaintiff pleaded that through
his own efforts, their late
father Opanin Yaw Manu acquired
the plot numbered EB 26 and
erected a swish house thereon.
Some years later he pulled down
the swish building and erected a
block house in its place. Among
other acts of ownership, the
plaintiff pleaded that their
late father obtained a site plan
in respect of the plot. He also
discharged all bills, rates and
levies in his own name. Their
late father also enjoyed
absolute possession of this
property until his demise. He
listed some personal assets of
their late father which he
claimed the defendant had taken
over; he also averred that the
defendant had taken over the
only house of their late father
and let out the rooms to tenants
and had refused to account to
them. the defendant pleaded that
the plot was given to their
family at the instance of the
Asantehemaa, who they were
serving as messengers, when they
were moving from the old
settlememt called Old Ebuorso to
the present site at Mamponteng.
put up the swish house on the
plot. At all material times the
plaintiff’s late father was
living at Benimase in the
Asante-Akim area of Ashanti. she
was sent, to go and fetch the
defendant, plaintiff’s father to
return home which she did.
because they needed him to come
and take care of their mother
that is Yaw Manu’s grandmother.
That was how come the late Yaw
Manu assumed control of this
property. She also averred that
the his ancestors pulled down
the swish house and erected the
block house in its place. The
defendant also pleaded that the
late Opanin Yaw Manu was the
head of family and thus through
succession he inherited all
family assets. So whatever he
did with the property in dispute
was done in trust for the
family. The trial court gave
judgment in favour of the
defendant, upholding the
counter-claim and dismissing the
plaintiff’s claim. On appeal to
the Court of Appeal, the appeal
was upheld and judgment was
entered in favour of the
plaintiff upon a review of all
the evidence on record.
HELD
From the
totality of the evidence the
plaintiff was able to establish
his case on a balance of
probabilities, in respect of the
construction of the sandcrete
block, the payment of property
rates as owner, physical
occupation of the property with
his wife and children till his
death, the approval he got from
the grantor stool, by way of
exhibit B, the renting out to
tenants and keeping proceeds
without any objection. It is
reasonably safe to accept the
plaintiff’s case that Yaw Manu
acquired the land and built the
swish house on it before
travelling to Benimase with his
wife to work The defendant did
not succeed in rebutting this
clear presumption which the
evidence raised in favour of the
plaintiff
STATUTES REFERRED TO IN JUDGMENT
Intestate Succession Law, 1985,
PNDCL 111
Evidence Act, 1975 (NRCD 323)
CASES REFERRED TO IN JUDGMENT
ACHORO vs. AKANFELA (1996-97)
SCGLR 209
KOGLEX LTD. vs. FIELD (2000)
SCGLR 175
IN
RE TAAHYEN & ASAAGO STOOLS;
KUMANIN vs. ANIN (1998-99) SCGLR
399
ADJEI vs. ACQUAH (1991) 1 GLR
ADJEIBI-KOJO vs. BONSIE (1957) 3
WALR 257
AGO SAI & Ors. Vs. KPOBI TETTEH
III (2010) SCGLR 762.
IN
RE KODIE STOOL; ADOWAA vs. OSEI
(1998-99) SCGLR 23
BOATENG (No. 2) vrs. MANU (No.
2) & Or. (2007-08) SCGLR 1117
ENYIDADO COMPANY LTD. vs.
ODEEFO OWUSU AMOAYE II,
unreported judgment S C dated 29th
November 2013
RAWLINSON vs. SCHOLES, (1899) 79
L.T. 350
RE
HODGSON; BECKETT vs. RAMSDALE;
(1886) 54 LT Rep (No. 5) 224; 31
Ch. D 177, 183
ASANTE vs. BOGYABI (1966) GLR
232 SC
HAYFRON vs. EGYIR (1984-86) 1
GLR 682,
TONADO ENTERPRISES vs. CHOU SEN
LIN (2007-08) SCGLR 135
BOOKS REFERRED TO IN JUDGMENT
Phipson on Evidence, 15th
edition
DELIVERING THE LEADING JUDGMENT
BENIN,
JSC:-
COUNSEL
OBENG MANU (JNR) ESQ. FOR THE
DEFENDANT /RESPONDENT/APPELLANT.
F. K. BUOR ESQ. FOR THE
PLAINTIFF/APPELLANT/RESPONDENT
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J U D G M E N T
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BENIN, JSC:-
My Lords,
the issue that is raised in this
appeal is a familiar one,
familiar in the sense that since
the promulgation of the
Intestate Succession Law, 1985,
PNDCL 111, upon the death
intestate of a person, the
extended family immediately
argues that the immoveable
property that the deceased’s
immediate family seek to enjoy
is the property of the extended
family. The deceased’s immediate
and extended family would
therefore embark upon oftentimes
protracted litigation to
determine whether or not the
property in question is the
self-acquired property of the
deceased or that of his extended
family. This is one of such
cases that we are called upon to
finally resolve. The good
intentions behind the
promulgation of PNDCL 111 have
unfortunately resulted in a new
wave of litigation, and who
knows when this type of
litigation will end, especially
given the fact that a lot of
properties acquired in this
country have been, and continue
to be, done through customary
grant of land without any form
of title registration. And so it
happened in this case that as
soon as Opanin Yaw Manu of
Mamponteng-Ashanti died in the
year 2001, his customary
successor, the
defendant/respondent/appellant
herein, hereafter called the
defendant, assumed full control
of all the assets, both moveable
and immoveable, which the
children of the deceased claimed
were owned by him. The children
of the late Opanin Yaw Manu, who
are being represented in these
proceedings by one of their
number called Ofori Agyekum,
resisted the defendant’s control
over their late father’s assets,
saying property numbered EB 26,
subsequently re-numbered as Plot
11C, Block F, situate at
Mamponteng was their father’s
self-acquired property. The
defendant’s position was that
Opanin Yaw Manu only enjoyed
this property as caretaker for
his life since it was family
property. Thus the familiar
issue whether or not the
property in dispute numbered EB
26 but renumbered as Plot 11C,
Block F, Mamponteng is the
self-acquired property of the
late Opanin Yaw Manu or that of
his extended family. Indeed it
was the key issue to be resolved
on the pleadings between the
plaintiff/appellant/respondent,
hereafter called the plaintiff
and the defendant; all other
issues are ancillary and not
quite controversial.
By the
endorsement on the amended writ
of summons the plaintiff sought
these reliefs against the
defendant:
i.
A declaration that H/No.
EB 26 renumbered as Plot 11C,
Block F, Mamponteng-Ashanti was
the self-acquired property of
Opanin Yaw Manu (deceased).
ii.
A declaration that the
distribution of H/No. Plot 11C,
Block F Mamponteng-Ashanti as
well as the intestate estate of
the late Opanin Yaw Manu is
governed by the Intestate
Succession Law, 1985, PNDCL 111.
iii.
Damages for trespass.
iv.
An order for accounts.
v.
Recovery of possession.
vi.
Perpetual injunction
restraining the defendant by
herself, her agents, servants
and workmen or any other persons
claiming through or by her from
in any manner interfering with
the subject-matter.
The
plaintiff pleaded that through
his own efforts, their late
father Opanin Yaw Manu acquired
the plot numbered EB 26 and
erected a swish house thereon.
Some years later he pulled down
the swish building and erected a
block house in its place. Among
other acts of ownership, the
plaintiff pleaded that their
late father obtained a site plan
in respect of the plot. He also
discharged all bills, rates and
levies in his own name. Their
late father also enjoyed
absolute possession of this
property until his demise. He
listed some personal assets of
their late father which he
claimed the defendant had taken
over; he also averred that the
defendant had taken over the
only house of their late father
and let out the rooms to tenants
and had refused to account to
them.
For her
part the defendant pleaded that
the plot was given to their
family at the instance of the
Asantehemaa, who they were
serving as messengers, when they
were moving from the old
settlememt called Old Ebuorso to
the present site at Mamponteng.
Their ancestors called Kwabena
Ofori and Osei Kwame, both
deceased, put up the swish house
on the plot. At all material
times the plaintiff’s late
father was living at Benimase in
the Asante-Akim area of Ashanti.
The late Kwabena Ofori and Osei
Kwame sent her, defendant, to go
and fetch the plaintiff’s father
to return home which she did.
They sent for him because the
two ancestors were themselves
living at Dunkwa-on-Offin in the
Central Region and at Goaso in
the Brong-Ahafo Region,
respectively and they needed him
to come and take care of their
mother that is Yaw Manu’s
grandmother. That was how come
the late Yaw Manu assumed
control of this property. She
also averred that the two named
ancestors pulled down the swish
house and erected the block
house in its place. The
defendant also pleaded that the
late Opanin Yaw Manu was the
head of family and thus through
succession he inherited all
family assets. So whatever he
did with the property in dispute
was done in trust for the
family. She averred the late Yaw
Manu rented some of the rooms
out in his lifetime. She
rejected the claims that she had
taken over the late Yaw Manu’s
personal assets. In the latter
days of his life, the late Yaw
Manu suffered a severe illness
and became bedridden, and as a
result she, the defendant,
rented some rooms out in order
to raise money to maintain him.
She also averred that in his
lifetime, the late Yaw Manu
attempted to gift one room in
the house to one of his children
but the family rejected it.
Moreover, on the fortieth day
celebration of his death, nobody
came forward to claim that this
property was the self-acquired
property of the deceased Yaw
Manu. What the children claimed
that day was another plot
acquired by the late Yaw Manu as
his own property, and the family
accepted the claim and
surrendered the document on it
to them. The defendant
counter-claimed for these
reliefs:
a.
A declaration that plot
no. 11 Block F is the family
property of the defendant.
b.
Ejectment of the children
and recovery of the rooms being
occupied by any of the children
of the late Yaw Manu.
c.
General damages.
d.
Perpetual injunction to
restrain the plaintiff and his
siblings, successors and indeed
anybody claiming through him
from in any way dealing with the
house in dispute.
This was
the state of the pleadings.
Evidence was adduced by both
sides. The plaintiff testified
by himself and called his
mother, the divorced wife of
Opanin Yaw Manu as a witness.
This woman called Amma Dapaah
testified that it was during the
period she was married to the
late Yaw Manu that the latter
constructed the property. They
left for Benimase to seek
greener pastures. At Benimase
they carried out trading from a
shop. Later the late husband
secured a tipper truck by the
kind courtesy of a white man.
They returned to Mamponteng with
the tipper truck and there the
husband used it to cart sand
with which he moulded cement
blocks which he used to
reconstruct the building. They
lived in this house with their
children as well as the mother
and grandmother of her husband.
The plaintiff tendered a number
of documents evidencing payment
of property rates and
conservancy fees all bearing the
name of Opanin Yaw Manu dating
back to 1980. The site plan
dated March 1989 bearing his
name and duly signed by the
Mampontenghene as well as two of
his key chiefs was also tendered
as exhibit B.
The
defendant testified by herself
and called two witnesses. One of
them was the wife of the late
Yaw Manu’s brother. She said she
saw the late Ofori, one of the
defendant’s ancestors physically
constructing this building. The
other witness is the current
Gyasehene of the grantor
Mamponteng stool. He said the
late Nana Kofi Owusu told him
the plot was granted to the
defendant’s two named ancestors.
He admitted the Mamponteng stool
signed a site plan of this land
for the late Yaw Manu in 1989,
and he DW1 was one of the
signatories to this site plan,
exhibit B. However, he went on
to explain that Yaw Manu was
told to come for an allocation
note accompanied by members of
the family but he never came
back. The plaintiff rejected
this claim.
The trial
court gave judgment in favour of
the defendant, upholding the
counter-claim and dismissing the
plaintiff’s claim. On appeal to
the Court of Appeal, the appeal
was upheld and judgment was
entered in favour of the
plaintiff upon a review of all
the evidence on record. The
findings and inferences drawn
from the evidence by the two
courts below will be highlighted
as we discuss the issues. The
defendant brought the present
appeal against the judgment of
the Court of Appeal on these
grounds:
a.
The learned justices of
the Court of Appeal erred in law
when after they had made a
concurrent finding of fact with
trial Circuit Judge to the
effect that the evidence the
plaintiff led in proof of his
claim for declaration of title
to land fell short of the
standard of the preponderance of
probabilities, they then made a
sudden u-turn to enter judgment
for the self same plaintiff for
most of the reliefs sought by
him on the sole ground that the
defendant counterclaimed.
PARTICULARS OF ERRORS OF LAW
i.
The Court of Appeal erred
in law when they failed to
affirm the decision of the
learned trial Circuit Judge to
dismiss plaintiff’s claim even
after they themselves had cited
the case of ABAKAM EFFIANA
FAMILY V. MBABIDO FAMILY (1959)
GLR 362 at 364 , where it was
held thus “if the whole evidence
in a case be conflicting and
somewhat confused, and there is
little to choose between rival
traditional stories the
plaintiff fails in the decree he
seeks, and judgment must be
entered for the defendant.”
ii.
The Court of Appeal erred
in law when they were swayed by
the presence of the defendant’s
counterclaim which also bore an
equal burden of proof and was
equally capable of being
dismissed by the Court of Appeal
which said court in the instant
case was bent on pronouncing one
party a victor at all cost.
b.
The judgment is against
the weight of evidence.
Counsel for the defendant
appeared to have argued all the
grounds of appeal together. We
think that approach was
appropriate in a case like this
which could be decided largely
on the facts and laws which are
well settled. Counsel for the
defendant cited two decisions of
this court namely ACHORO vs.
AKANFELA (1996-97) SCGLR 209 and
KOGLEX LTD. vs. FIELD (2000)
SCGLR 175 which decided that
where a first appellate court
has confirmed the findings of
the trial court, the second
appellate court would not
interfere with the concurrent
findings unless it was
established with absolute
clearness that some blunder or
error, resulting in a
miscarriage of justice, was
apparent in the way the lower
court had dealt with the facts.
He cited these in reference to
the fact that the Court of
Appeal had agreed with the trial
judge that the plaintiff’s case
failed to reach the required
standard of proof and that there
was very little to choose
between the rival traditional
stories. He believed that the
Court of Appeal having cited the
authority of ABAKAM EFIANA
FAMILY vs. MBIBADO FAMILY,
supra, it ought to have
dismissed the plaintiff’s
action. In counsel’s view “the
Court of Appeal ought to have
affirmed the decision of the
learned trial Circuit Court but
they did not. They rather gave
judgment for the plaintiff in a
bizarre twist………..” Counsel
believed the Court of Appeal had
contradicted itself. We do not
see it that way. What the court
did was to point out all the
shortfalls in the evidence and
the trial court’s evaluation
before making its own findings
where the trial court failed to
do so and drawing what appeared
to it to be the correct
inferences from the accepted
facts. In the process they
appeared to be contradicting
themselves but when one examines
the decision critically they did
not. What the court did was to
examine other forms of evidence
on record especially documentary
when it found itself not to rely
on any of the traditional
stories narrated in support of
the acquisition of the plot, the
construction of the swish house
and the subsequent construction
of the block house. The court’s
conclusion did not endorse what
the trial court had found; for
instance it rejected the trial
court’s reliance on the
financial means of the parties
which was a key finding by the
trial court. It also rejected
the trial court’s refusal to
place any weight on the
documents tendered as exhibits.
These were the core reasons the
trial court dismissed the
plaintiff’s case. The Court of
Appeal could not therefore be
said to have endorsed the trial
court’s findings of fact. It
only agreed with the trial court
that the oral testimony alone
did not reach the required
standard of proof, but when the
documents were taken into
account the court concluded the
plaintiff had reached that
standard where judgment ought to
be entered for him. It behoves
this court, therefore, to
examine the entire record to
decide whether the judgment of
the Court of Appeal should be
upheld or not. The Court of
Appeal concluded thus: “The
courts have long fashioned out a
pragmatic approach in resolving
such a puzzle in cases where the
evidence led is traditional. In
the first place, it is cautioned
in the case of IN RE TAAHYEN &
ASAAGO STOOLS; KUMANIN vs. ANIN
(1998-99) SCGLR 399 that, the
coherence of one of the party’s
version or his demeanour should
not be the sole criterion for
its preference over the
opponent’s version. That apart,
it was held in ADJEI vs. ACQUAH
(1991) 1 GLR 13 that in a case
where the evidence is
traditional, a favourable
finding on the evidence is not
essential to the case of a party
seeking a declaration of title
to land. Rather, the traditional
evidence must be weighed
alongside recent acts or facts.
More specifically, it is advised
in ADJEIBI-KOJO vs. BONSIE
(1957) 3 WALR 257 that the
traditional evidence must be
examined in the light of more
recent acts such as long
occupation and exercise of
rights over the land. This
principle was unanimously
approved and applied in AGO SAI
& Ors. Vs. KPOBI TETTEH III
(2010) SCGLR 762.
And in IN RE KODIE
STOOL; ADOWAA vs. OSEI (1998-99)
SCGLR 23, it is directed that
the assessment of the
probability of the correctness
of the rival traditional stories
must be in two stages as
follows: (a) the rival stories
must be weighed along the recent
acts to ascertain which appears
more probable, and (b) the facts
established by matters and
events within living memory must
necessarily take precedence over
traditional evidence.
Applying the above
principles to the facts as
established in the instant case,
the occupation of the disputed
house by plaintiff’s late father
Yaw Manu is acknowledged by
defendant and her witnesses.
There is an authentic plan in
the name of plaintiff;s
father……There are also receipts
for the payment of property rate
in the name of plaintiff;s
father in respect of the
disputed property. These
documents were in existence
during the lifetime of the
defendant’s uncles.
On the part of the
defendant, until the death of
plaintiff’s father, she was not
living in the house. And all
claims that she lived in the
house before or that family
members lived and are still
living in the house have
remained throughout the trial
mere assertions without proof…….
In the premises it is
our view that the preponderance
of probability of the evidence
which is proved tilts in favour
of the plsintiff.”
We find there was no
contradiction in the inferences
drawn from the proven evidence
and the conclusion reached by
the Court of Appeal, and we are
in agreement with them. We
would, however, proceed to
evaluate the evidence on record.
The parties agree that the land
in dispute is stool land
originally owned by the stool of
Mamponteng. The parties also
agree that at the time the land
was acquired in or around 1947,
the occupant of the Mamponteng
stool was Nana Kofi Owusu, who
from the record was no longer
the stool occupant as at 1989
and as at the commencement of
these proceedings. Both the
plaintiff and the defendant told
the court the history of the
acquisition and development of
the plot. The plaintiff was
supported by a former wife of
the late Yaw Manu who said she
was still married to him when
Yaw Manu constructed this house.
This assertion was refuted by
the defendant and Hanna Fordjour,
the wife of late Kofi Nyamekye,
junior brother of late Yaw Manu.
Whereas the defendant testified
to the construction of both the
original swish house and the
reconstruction with blocks,
Hanna Fordjour, DW2 testified to
the reconstruction only. She
said it was her husband who told
her the original swish house was
put up by their ancestors the
late Kwabena Ofori and Osei
Kwame. Dw2 said the house was
rebuilt by Osei Kwame who also
physically took part in the
construction, as well as her own
mother.
Dw1, the present Gyasehene of
Mamponteng spoke about the
relocation of some five
different families from old
Ebuoso to the present site at
Mamponteng when the stool of
Mamponteng gave them land to
settle on at the request of the
Asantehene. But he personally
did not see these five families,
including the defendant’s put up
their houses. Whatever he
narrated was what he was told by
the Mampontenghene. He said that
when he swore the oath of
allegiance to the then
Mampontenghene Nana Kofi Owusu,
the latter briefed him on all
these. He admitted in cross
examination that the Mamponteng
stool signed a site plan of this
land for the late Yaw Manu.
It is clear that the Court of
Appeal was not satisfied that
from the totality of the
evidence on record that either
party was able to proffer
sufficient and convincing
evidence based on traditional
history about the acquisition of
the land, to begin with. The
plaintiff as well as his only
witness both did not give any
detailed account as to how the
land was acquired, except to say
it was given to the late Yaw
Manu by the then Mampontenghene
Nana Kofi Owusu. The evidence
does not say anything about the
acquisition of a customary grant
of land, how it was done,
whether any form of
consideration was paid, whether
any form of ‘aseda’ was
presented by way of customary
drinks and so on and so forth.
On the other hand, the defendant
said the land was granted to
their family at the instance of
the Asantehemaa. Needless to say
the alleged Asantehemaa was not
named. The name of the family to
which the alleged grant was made
was not stated and it is still
not known to the court. Here
again no incidents of a
customary grant were mentioned.
Pw1 who said he was told by Nana
Kofi Owusu about the grant was
the same person who signed the
site plan exhibit B in favour of
the late Yaw Manu as owner of
the same plot of land. Dw2 did
not know how the land was
acquired. Hence the court below
found it difficult to choose
between the competing stories.
That was why counsel for the
defendant argued that it should
be possible to dismiss both
claims. A court should be slow
in dismissing both a claim and a
counter-claim, unless there is
no credible and sufficient
evidence on the record from
which a decision could be
reached one way or the other.
The court should examine every
piece of evidence and evaluate
same, taking into account who
has been more consistent,
pointing out contradictions and
inconsistencies in the two
versions, and arrive at an
overall assessment of the
competing stories. These are all
legitimate steps open to a court
to follow in arriving at a
decision.
In the circumstances the High
Court judge placed reliance on
the financial means of the
parties as regards the
construction of the building on
the land. The Court of Appeal
did not accept it but rather
placed reliance on the
documentary evidence. We would
have due regard to all the
pieces of evidence as well as
the material contradictions and
inconsistencies in the
presentation of the respective
cases.
It is clear from the pleadings
and evidence that the
acquisition of the land and the
construction of the swish house,
and subsequently the block house
on it were done by the same
person/s. It was either Yaw Manu
alone, or Kwabena Ofori and Osei
Kwame jointly who acquired the
plot and built both the swish
house and subsequently the block
house on the plot. It was thus
reasonable for the courts below
to find from the totality of the
evidence adduced that this or
that person constructed the
building and exercised acts of
ownership over it in arriving at
the decision that the land was
acquired by either party. And in
seeking to arrive at a just
conclusion, the High Court
relied on the financial means of
the parties, and rejected
entirely all the documents
presented at the trial by the
plaintiff, namely the property
rates, conservancy fees and site
plan. In his view these did not
establish any form of ownership.
The trial judge made some
relevant findings and
inferences. The first relates to
a building plan pleaded by the
plaintiff and in respect of this
the trial judge said: “The
question now is between the two
versions which one should I rely
on? paragraph 6 of the
plaintiff’s statement of claim
reads: ‘plaintiff states that
subsequently his father pulled
down the swish building on the
said plot and erected a new
house with cement blocks which
was renumbered by the planning
authorities as plot 11C Block F.
Plaintiff states that his father
had earlier caused a plan
of the new building to be made
for him.’ It is of essence
that the said building plan was
not tendered in evidence to
enable the court form an opinion
on same.”
And in respect of the site plan,
exhibit B, this is what the
trial court said: “It is also
not a denying fact that the
plaintiff relied heavily on
exhibit B a site plan covering
the disputed land. DW1 the
Gyasehene of Mamponteng was a
signatory to same. He stated
further that since they knew the
land was a family property they
refused to give an allocation
paper to Yaw Manu until he
brought one of his family
members but he failed to do
that. If I may ask how come it
took Yaw Manu too long a time to
cause Exhibit B to be prepared.
No doubt the defendant told the
court it was after the death of
her uncles that Yaw Manu told
her he was going to prepare
documents to cover the plots.”
On the financial means, the
trial court judge posed the
question: “Was the late Yaw Manu
financially sound when he put up
the swish house in 1949 as
claimed by the plaintiff?” And
his answer was “I must say no
evidence was led to prove his
financial position when he
allegedly put up the swish house
which clearly goes to show that
the swish house was put up by
the uncles of the defendant. I
say so because the swish house
was constructed before same was
demolished and the house in
dispute was put up. This
invariably goes to show that
whoever put up same obviously
acquired the land on which
stands the house in issue. On
the contrary there is
uncontroverted evidence before
me that the late uncles of the
defendant who she claimed put up
the swish house were cocoa
farmers. I think financially
they were capable of putting up
the house in issue.”
As regards the payment of
statutory bills like property
rates and other utility bills
like conservancy fees, which
were paid by Yaw Manu in his own
name from 1980 or thereabouts
and which were tendered as part
of the plaintiff’s claim of
ownership, the trial court
disregarded them completely.
This is what the learned judge
said: “I shall attach no weight
to Exhibits A1-A17, receipts
covering payments of property
rates. I say so because the act
of paying property rates does
not vest title in the person who
effects such payment.”
The trial court judge did not
analyse the evidence to
determine whether the
defendant’s version of the
construction of the property as
against that of the plaintiff
was preferable. He concluded
that the defendant’s version was
acceptable because Osei Kwame
and Kwabena Ofori had financial
means to construct the building.
Indeed if it is true that Yaw
Manu was not financially capable
of constructing the house, then
the trial court’s conclusion
could be supported.
On possession, the trial court
found that various members of
the defendant’s family lived in
the house rent free. Deceased
members of the family were also
laid in state there. Upon these
findings the trial court
dismissed the plaintiff’s claim
and accepted the counter-claim
of the defendant.
In its judgment dated 31st
January 2014, the Court of
Appeal appropriately cautioned
itself as to the requirement
that an appellate court be
rather slow in interfering with
the findings of fact made by a
trial court. This principle is
very well known and does not
require any further discussion.
After going through the evidence
the Court of Appeal upset the
trial court’s findings on some
issues, and set aside its
conclusion. It is our duty
therefore to decide whether the
Court of Appeal was justified in
interfering with the trial
court’s findings of fact and
conclusion.
In a civil trial, the standard
of proof required is that of a
balance of probabilities. In
this case the Court of Appeal
found that none of the
traditional evidence satisfied
the requirement of the standard
of proof on a balance of
probabilities. Thus the court
was bound to take into account
various acts of ownership
exercised over the property in
times past and in recent past,
as well as any relevant
documents that have a bearing on
the property, if such documents
are authentic and not
fraudulently procured.
We would examine the Court of
Appeal’s decision in relation to
each one of the six factors
and/or reasons the trial court
relied upon or omitted in
arriving at its decision, which
have been summarized above.
First the trial court said the
failure to tender the building
plan disabled it from forming an
opinion. The Court of Appeal
mentioned this in passing but
made no comment on it. The
acquisition of a building plan
is no evidence that the holder
owns the plot. And even when a
building permit is issued, it is
clearly indicated thereon that
it is not confirmatory of
ownership of title. The failure
to produce a building plan was
not fatal; indeed it was not
even a material piece of
evidence, especially having
regard to the fact that the
defendant also had no such plan
of the building bearing the name
of her uncles or their family.
Be that as it may, where no
evidence is adduced on a fact
that has been pleaded, it is
treated as having been abandoned
by the pleader; the court does
not call it into question in its
judgment. The court’s only duty
is to consider the evidence the
party has proffered in
determining whether or not he
has met the required standard of
proof.
Secondly, the trial court
rejected exhibit B because of
the evidence of DW1 that the
late Yaw Manu failed to produce
a member of the family to enable
the stool give him an allocation
paper. The Court of Appeal
discussed this issue at length
in the following words: “The
site plan was endorsed by the
Mampontenghene, DW1 and the
Akwamuhene. DW1 admitted
knowledge of the site plan and
its authenticity because the
three of them actually signed it
but that an allocation paper
could not be issued him unless
his family members consent to
the same. But then the contrary
evidence of DW1 is that after
signing the site plan, Opanin
Yaw Manu requested for an
allocation paper to cover the
land. But the chief told him
that since the land does not
belong to him exclusively but to
his family, an allocation paper
could not be issued him unless
his family members consent to
the same. He concluded that an
allocation paper was not issued
to him because he failed to
bring any family
member…………………..This evidence of
DW1 needs to be carefully
analysed to determine whether
the inference the trial judge
made therefrom is right. In
BOATENG (No. 2) vrs. MANU (No.
2) & Or. (2007-08) SCGLR 1117,
at holding 3, the court held
that the allocation paper is the
initial process to evidence that
the land has been acquired by an
individual or corporate body.
The allocation paper cannot by
itself represent the acquisition
of the land. The court then went
on to give three reasons why an
allocation paper is not a
registrable instrument. The
allocation paper thus represents
the first process/step in the
acquisition of land from a
grantor. It is a paper which
gives the grantee the right to
perfect his title or access to
the land…………….The issue of an
allocation paper is such a
notorious practice in the
Ashanti Region that we cannot
fail to take judicial notice of
it-see the case of ENYIDADO
COMPANY LTD. vs. ODEEFO OWUSU
AMOAYE II, unreported judgment
of this court dated 29th
November 2013. The allocation
paper enables a grantee to enter
the land, and take measurements
for purpose of making a site
plan. A site plan drawn to scale
by a qualified surveyor is not
only accurate but also
identifies the location and
boundaries of the land granted.
That is what is shown on Exhibit
B……….That being so, DW1’s
evidence that after they signed
the site plan for Opanin Yaw
Manu, he asked for an allocation
paper is a complete
afterthought………….If the
Mampontenghene and his elders
including DW1 were satisfied
that the land was not granted to
Opanin Yaw Manu exclusively as
appeared in the site plan, then
they should not have endorsed it
in the first place in the
absence of an allocation
paper……….
I noted that DW1 admitted the
authenticity of Exhibit B. In
HAYFRON vs. EGYIR (1984-86) 1
GLR 682, it was held that
whenever there is in existence a
written document and oral
evidence over a transaction; the
practice of the court is to
consider both the oral and the
documentary evidence and often
to lean favourably towards the
documentary evidence; especially
where the documentary evidence
is authentic and the oral
evidence is conflicting.”
In the result the court
concluded as follows: “On the
weight attached to Exhibit B by
the trial judge and its effect
on the plaintiff’s claim, we
hold the view that the
conclusion reached by the trial
judge is not supported by
practice and evidence on
record.”
We think the analysis of the
issue by the Court of Appeal was
well thought through. In the
first place, the grantor stool
knew the person/s to who it gave
the land in dispute. It is
therefore logical that the
occupant of the grantor stool
and his elders would only
endorse any document in respect
of the land for their grantee
only. Dw1 admitted the
authenticity of Exhibit B, yet
he wanted the court to believe
that he, together with the chief
of Mamponteng and one other
principal stool occupant the
Akwamuhene, with full knowledge
that the land did not belong to
Yaw Manu nevertheless signed
exhibit B for him as owner. Were
they helping Yaw Manu to
perpetrate a fraud on the true
owners or what? Surely they knew
what they were doing, that is
they knew they were signing the
site plan for the true owner.
There was no case of duress or
misrepresentation on the part of
Yaw Manu. As between the chief
of Mamponteng and his elders and
successors in interest on one
side and Yaw Manu or his
descendants on the other,
exhibit B raises a conclusive
presumption in favour of the
latter. Exhibit B was signed in
March 1989 so it would be caught
by the provision in section
25(1) of the Evidence Act, 1975
(NRCD 323) which reads:
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.
Having admitted the authenticity
of exhibit B, DW1 was bound by
it. It is noted that an
allocation paper is the first
step in the process of acquiring
and perfecting title to land
especially in the Ashanti
Region. It follows logically
that any other document follows
the initial acquisition of
title. In the instant the land
was granted as far back as 1947,
and it had been fully developed.
It was thus reasonable that a
site plan, rather than an
allocation note would be issued,
therefore the issue of the site
plan was in order. For unless
the chief and his elders knew
who their grantee was, they
would never endorse a site plan
for him as owner before asking
him to come for an allocation
note, when the latter should be
the first in time. They were
bound by exhibit B.
The subsequent evidence by DW1,
that the chief asked him to
bring a member of the family
before they would give Yaw Manu
an allocation note was an
afterthought. At any rate that
was evidence being offered
against a deceased estate which
should be accepted with caution.
At page 306, paragraph 13-11,
the learned authors of Phipson
on Evidence, 15th
edition, wrote on the title
‘Claimants to to the property of
deceased persons’ that ‘It is
a rule of practice that courts
will not act upon the
uncorroborated testimony of such
claimants unless convinced that
such testimony is true.’
They cited the case of RAWLINSON
vs. SCHOLES, (1899) 79 L.T. 350.
The case cited followed what Sir
J. Hannen said in RE HODGSON;
BECKETT vs. RAMSDALE; (1886) 54
LT Rep (No. 5) 224; 31 Ch. D
177, 183 that “The statement
of a living man is not to be
disbelieved because there is no
corroboration, although in the
necessary absence through death
of one of the parties to the
transaction it is not natural
that in considering the
statement of the survivor, we
should look for corroboration in
support of it, but, if the
evidence given by the living man
brings conviction to the
tribunal which has to try the
question, then there is no rule
of law which prevents that
conviction being acted upon.”
Much as a court could rest its
decision on the relevant
testimony of only one competent
witness if it passes the twin
test of personal knowledge and
credibility, such evidence when
offered against a deceased
person ought to be accepted only
if it is the truth. In this case
it is noteworthy that at the
date exhibit B was signed, both
Osei Kwame and Kwabena Ofori
were alive. Yet DW1 did not find
it necessary to inform them that
Yaw Manu had come to take a site
plan of their property in his
personal name. Indeed he did not
tell any member of that family
until he testified in this case.
That evidence could not be true
for DW1 had every opportunity to
have refused to sign that
document since he claimed to
know the true owners; he had
every opportunity to have
informed any member of the
family that Yaw Manu had taken
this document in his own name
but he did not. His testimony
which ran counter to the
contents of exhibit B required
some amount of confirmation from
the Chief of Mamponteng or the
Akwamuhene or, if they were
dead, from their successors in
interest since the document
binds all of them.
Rather unfortunate to recall,
the trial judge accepted the
defendant’s case that it was
after the death of the two
uncles that Yaw Manu told her he
wanted to secure documents on
the land. The trial court judge
wrongly found that the site plan
was obtained after the death of
the two named uncles Osei Kwame
and Kwabena Ofori. But the
unchallenged evidence of the
plaintiff was that Kwabena Ofori
died in 1993 whilst Osei Kwame
died in 1997. On 30th
October 2009, the defendant was
under cross examination and this
is a relevant extract therefrom:
“Q-Between Osei Kwame
and Kwabena Ofori who died
first?
A-Ofori.
Q-How long ago was
this?
A-A long time ago.
Q-Give a rough idea
about the date.
A-About 20 years.
Q-I suggest to you
that Kwabena died before Osei
Kwame died in 1993.
A-That is not
correct.
Q-What of Osei Kwame.
A-About 11 years
ago.”
From the foregoing evidence of
the defendant, Osei Kwame died
in or about 1998. Thus the date
1997 which the plaintiff stated
positively should be accepted as
the correct one. And whether
Osei Kwame died in 1997 or 1998,
the truth is that the trial
court’s conclusion was not
factually correct. The truth
again was that exhibit B was
issued to the late Yaw Manu
during the lifetime of both Osei
Kwame and Kwabena Ofori.
Exhibit B is authentic, and was
endorsed by the chief and elders
of the grantor stool; they have
never rejected it as their act,
having endorsed it with full
knowledge of who their grantee
was. At the time both Osei Kwame
and Kwabena Ofori were alive,
yet the chief and his elders
signed this document for Yaw
Manu. The conclusion reached by
the Court of Appeal is therefore
supportable.
The next reason given by the
trial court in dismissing the
plaintiff’s action was the fact
that there was no evidence of
Yaw Manu’s financial means as
opposed to Osei Kwame and
Kwabena Ofori who were cocoa
farmers. The Court of Appeal did
not agree with the trial court
for the following reasons: “The
trial judge made no
determination of whose version
of the construction of the house
as it stands today is more
reasonably probable. He went
straight to determine the
financial ability of the
ancestors of the parties to put
up the building. He held that
because there was no evidence
that Yaw Manu was financially
sound to put up the swish
building in 1949, it meant the
swish house was put by the
defendant’s uncles who later
demolished it as owners of this
land. He credited the
defendant’s uncles with the
financial means to put up the
house because they were cocoa
farmers. He referred to no
evidence on the work the
plaintiff’s father did in his
life. But the plaintiff’s
evidence is that his father was
a trader in his lifetime.
According to PW1 at Benimase,
she manned a store they
operated. As a trader DW1 stated
that he met Yaw Manu trading at
Yeji along the river Volta. He
said Yaw Manu even traded in
drugs………This evidence of DW1
which supports the plaintiff’s
case that his father was a
trader contradicted sharply,
defendant’s claim that Yaw Manu
was a hewer of wood for a mining
firm. Should the case of the
plaintiff on his father’s
occupation not be preferred to
defendant’s uncorroborated
evidence on the authority of
ASANTE vs. BOGYABI (1966) GLR
232?
That is not all. PW1 stated her
ex-husband Yaw Manu was given a
tipper truck by a white man. He
returned to Mamponteng with the
tipper truck with which he
carted sand to mould blocks to
put up the sandcrete
building……………..”
In the first place there was no
issue as regards the financial
means of the deceased persons,
namely Yaw Manu, Osei Kwame and
Kwabena Ofori. It did not even
arise by implication from the
pleadings. Secondly, the
evidence as to what type of work
these persons were doing in
their lifetime was clearly not
intended to establish their
financial capability. If that
was the intention, then all the
evidence failed to reach the
required standard of proof on a
balance of probabilities. That
is so because there was no
evidence as regards the volume
of trade that Yaw Manu was
carrying out both at Benimase
and at Yeji or how much he was
earning from the use of the
tipper truck. And so too there
was no evidence as to how much
acreage of cocoa these uncles of
the defendant were engaged in,
what their production levels
were or how much they earned
from them. It is a known fact
that cocoa is purchased by the
State per its agents so it is
easy to have documents including
receipts to show how much the
farmer has sold to the State.
Being a cocoa farmer is per se
not evidence that a person is
financially sound. This was the
fallacious assumption underlying
the trial court’s conclusion. It
is clear the trial court drew
wrong inferences and conclusion
from the accepted facts. The
court ought to have applied the
same consideration to the case
of the plaintiff that Yaw Manu
being a trader at Benimase and
at Yeji and an operator of a
tipper truck was also capable of
earning money to put up the
building. The Court of Appeal’s
conclusion on this matter was
thus justified. In the absence
of evidence as regards the
income of any of the parties, it
was wrong for the trial court to
have concluded that Kwabena
Ofori and Osei Kwame had the
financial means to put up the
house simply because they were
cocoa farmers.
On the construction of the
building, as earlier pointed
out, the trial court did not
analyse the evidence, it largely
relied on the financial means of
the deceased persons. The Court
of Appeal did the right thing by
considering all the relevant
evidence. The construction of
the swish house in 1949 was not
very clear. There was very
little to choose between the two
stories, there is clearly no
certainty as to which of them
did put up the swish house. And
in respect of the sandcrete
building too the evidence on
record left little to choose
between them. The plaintiff and
PW1 said Yaw Manu constructed
it. Yaw Manu used his tipper
truck to cart sand to mould
blocks for the construction. And
Pw1 said she was still married
to him and she witnessed it. On
the other hand the defendant
supported by PW2, wife of Yaw
Manu’s brother said Osei Kwame
constructed this house
personally. In the face of such
conflicting evidence, which
leaves the court unable to
choose between them, the law
permits the court to make
reference to other pieces of
evidence in respect of acts of
ownership and possession to
determine which one should be
accepted on a balance of
probabilities. We believe the
trial court found itself in the
difficult situation of choosing
between these competing stories,
hence the recourse to the
financial means of the actors in
resolving who could have
constructed the building. The
Court of Appeal analysed the
contradictions in the evidence
of the defendant and her witness
DW2 on the construction of this
property. But it concluded that
the evidence on both sides was
inconclusive. We do not agree
with this conclusion by the
Court of Appeal, because having
carefully analysed the evidence
and rightly pointed out the
contradictions in the case by
the defendant and her key
witness on the construction, and
not having any cause to
discredit what the plaintiff and
Pw1 said, the only logical
conclusion should be that the
plaintiff’s case was made out on
a balance of probabilities.
The contradiction or at least
inconsistency between the story
of the defendant and her key
witness DW2 on the construction
leaves one with the impression
that they intended to discredit
Yaw Manu for no just cause. The
defendant said the construction
of the block house was the joint
effort of the two uncles.
According to her the role of Yaw
Manu during the construction was
an overseer or keeper of the
building materials. At least she
acknowledged that Yaw Manu was
present and somehow played a
minor role in the construction.
But according to DW2, Yaw Manu
was nowhere around during the
period of the construction. At
page 58 of the record this is
what DW2 said: “The house was
re-built by Osei Kwame. He mould
(sic) some sandcrete blocks and
thereafter he was assisted by a
mason……….All the while I did not
know the whereabouts of Yaw
Manu. In fact I did not know him
then. It was later that I got to
know him…..” We would point out
some more contradictions and
inconsistencies in the narration
of events later in this
delivery. But for the moment it
is certain the defendant’s key
witness was only determined to
support her case at any cost, to
the extent of even saying Yaw
Manu was not around during the
construction. This was blatantly
false which does the defendant’s
case no credit. On the evidence
the plaintiff’s story on the
construction was acceptable on a
balance of probabilities, in
view of its consistency and
credibility.
We would go further to consider
various acts of ownership and
possession exercised by the
actors in respect of this
property which would help decide
this case. As part of his case
that Yaw Manu was the owner of
the property, the plaintiff
testified that his late father
settled all the bills in respect
of the house in his own name.
The receipts covering these
payments were put in evidence as
exhibits A-A17. The receipts
cover property rates for the
years 1982, 1983, 1984, 1985,
1986, 1988, 1991, 1993 and 1994;
the others are for conservancy
fees for the period 1980 to
1987. As stated earlier the
trial court judge just brushed
aside these exhibits as proving
nothing. That conclusion is
unfortunate, especially in view
of the fact they were introduced
in support of the plaintiff’s
claim of ownership. In other
words, that the late Yaw Manu
paid these bills in his name
because he was the owner of the
property. The Court of Appeal
disagreed with the trial court
on this issue and it delivered
itself in these words: “The
trial judge attached no weight
to the receipts because he held
the view that receipts do not
vest title in the person who
makes the payment. That
conclusion is true but there is
more to it. In TONADO
ENTERPRISES vs. CHOU SEN LIN
(2007-08) SCGLR 135 where the
payment of ground rent was
relied on as evidence of
ownership of the land in
dispute, the court held in
holding 1 that ‘payment of
ground rent may be some evidence
of ownership. It is however, not
an invariable rule that any
payment of any ground rent
should be construed as evidence
of ownership because caretakers
and tenants can pay ground rents
and when that happens, it will
be wrong to interprete the
payment as conclusive of
ownership. The principle that
can be laid down on such
payments is that payment of
ground rent may in some
circumstances represent evidence
of occupation, control (by
caretakers) or in some cases
evidence of ownership (where
payment is by the landlord) but
it cannot be taken that payment
of any ground rent is conclusive
evidence of ownership. Such
payments merely raise a
presumption of ownership which
is rebuttable.
The Court of Appeal went on to
state that like ground rent,
property rate demand comes in
the name of the land owner. Thus
unless the name of Yaw Manu is
in the records of the Kwabere
Sekyere District Assembly as the
owner of property no EB 26, he
would not be able to effect such
payments in his own name upon
receipt of the demand notice.
However, that per se is not
evidence of ownership, but all
these exhibits A-A17 and B raise
a rebuttable presumption in
favour of the plaintiff. Thus
the trial judge was bound to
consider the evidence led by the
defendant to decide whether she
succeeded in rebutting that
presumption. At this stage it is
necessary to recall what the law
says on rebuttable presumptions
and the burden of producing
evidence and of persuasion. The
relevant provisions are in NRCD
323 and they are:
11(1) For the purposes of this
Decree, the burden of persuasion
means the obligation of a party
to establish a requisite degree
of belief concerning a fact in
the mind of the tribunal of fact
or the court.
14 Except as otherwise provided
by law, unless and until it is
shifted a party has the burden
of persuasion as to each fact
the existence of which is
essential to the claim or
defence he is asserting.
17(1) Except as otherwise
provided by law, the burden of
producing evidence of a
particular fact is on the party
against whom a finding on that
fact would be required in the
absence of further proof.
What then was the rebuttal
evidence that was led by and on
behalf of the defendant? The
defendant’s case as pleaded was
that the late Yaw Manu inherited
the properties of his late
uncles so as head of the family
he was holding them in trust for
the family. But at the hearing
she did not speak to this plea,
meaning she had abandoned it.
She rather dwelt on the fact
that Yaw Manu was made a
caretaker of this property by
their late uncles. It was she
who was sent to Benimase to go
and fetch Yaw Manu to return to
Mamponteng. That Yaw Manu was to
take care of his mother and
grandmother in this house that
was why he was sent for. She
then spoke about the fact that
in his lifetime Yaw Manu wanted
to gift a room in the house to
his daughter which request was
rejected by the family. That
request was repeated during the
40th day celebration
of Yaw Manu’s death but it was
rejected. The children of Yaw
Manu made no claim for this
house; the only request they
made was for a plot Yaw Manu had
acquired and used for a piggery
which the family obliged. She
also talked about the occupancy
of the house, but that will be
addressed when we consider the
issue of possession. The issue
of the construction of the block
house has been disposed of
already. She also gave the
impression that Yaw Manu was not
doing any gainful employment
which misled the trial court to
conclude that it was her uncles
who had the financial means to
build the house. But this has
been found to be false in the
light of the evidence of PW1 and
DW1.
The evidence of the defendant
that she was sent by their
uncles to go and bring Yaw Manu
to come and look after his
mother and grandmother was not
accepted by the Court of Appeal
for reason that it was odd to
ask a man to come and look after
older women when there were
female adult children and
grandchildren available. Much as
it sounds odd, it might still be
possible if the situation called
for it. We would thus not read
too much into that. What is
important to consider is that
evidence as against that of Yaw
Manu’s wife who said she
returned with Yaw Manu to
Mamponteng when the husband
secured a tipper truck which
enabled him to cart sand, mould
blocks and rebuild the house.
After that they stayed there
with their children as well as
Yaw Manu’s mother and
grandmother. The story as told
by PW1 appears more reasonably
probable because Yaw Manu who
had left to seek greener
pastures and was working at
Benimase would return to
Mamponteng if he had acquired or
had something to do. Hence
having acquired the tipper truck
it sounds reasonable that he
would return home as his ex-wife
said.
On the purported gift of a room
in the house to Yaw Manu’s
child, this is what the
defendant said at page 46 of the
record: “At his 40th
celebration one of Yaw Manu’s
daughters called Boahenemaa told
me that she was gifted a room by
Yaw Manu but I told him (sic)
the family will not accept same.
In the lifetime of Yaw Manu,
Boahenemaa came in the company
of his (sic) uncle to inform the
family of the said gift to (her)
the family refused since…..the
house is a family property. Yaw
Manu agreed to this and
apologized to his uncles.” The
event which took place
especially on the 40th
day celebration where the family
and sympathisers had gathered
would readily find supporting
evidence. The story itself
sounds incredible because even
whilst her father was alive
Boahenemaa failed to secure a
gift of the room, and defendant
would want the court to believe
the same lady Boahenemaa
repeated the gift after the
death of her father. It is a
story which certainly required
more than the bare assertion of
the defendant offered against
the deceased estate.
Then the defendant wanted the
court to believe that the only
property of Yaw Manu that his
children asked for on the 40th
day celebration was a piece of
land he acquired for a piggery.
In the amended statement of
defence, the defendant averred
that documents on the only plot
acquired by Yaw Manu were handed
to his children during the 40th
day celebration of his death.
Apparently this was the plot
acquired for the piggery. The
defendant’s case on this was put
across to the plaintiff under
cross examination at pages 37-38
of the record as follows:
“Q-Apart from the disputed plot,
did your father have any other
plot?
A-No, he did not have a building
plot. But he acquired a land to
rear animals.
Q-And on the 40th day
celebration the said plot was
handed over to you and your
siblings.
A-That is not true.
Q-Are you saying the said plot
is in possession of the
defendant’s family?
A-No, the chief reclaimed and
sold same.
Q-I put it to you that this plot
was handed over to you and your
siblings during the 40th
day celebration of your father’s
death.
A-This is not true.”
From the foregoing discourse,
the defendant’s position on this
land acquired by Yaw Manu for a
piggery was the only land
acquired by him and that the
family handed it over to the
children. However, the
defendant’s witness DW1 rather
confirmed the plaintiff’s
position. DW1 spoke about this
land for piggery in his
evidence-in-chief saying:
“During the lifetime of Opanin
Yaw Manu, he pleaded with the
then chief for a place to rear
his pigs and same was granted.
However same later revert (sic)
the chief after the collapse of
the pig farm.” From the answers
given by the plaintiff during
cross examination which find
support from DW1’s clear
testimony this piece of land was
not in the hands of Yaw Manu
before his demise. How then
could the family have handed it
over to the children on the 40th
day celebration? This was
nothing but a deliberate attempt
to bolster the defendant’s case
that Yaw Manu was not owner of
the disputed plot that was why
on the 40th day only
the land for piggery was handed
over to his children. When a
party resorts to plain falsehood
it is indicative that he has a
bad case.
The sixth and final
consideration is the issue of
possession. It is noted that in
a community setting in this
country, it is normal for an
owner of property to permit
members of the family, both
immediate and extended, to live
in his self-acquired property.
Indeed that is the hallmark of
family life. And until PNDCL 111
came into force, there would
have been no problem at all for
this property would have passed
on to Yaw Manu’s extended family
notwithstanding that he acquired
it on his own. Thus as far back
as 1949 when the house was
built, it would not be
surprising that different
persons, including the parents,
uncles, siblings, grandparents,
wives and children of the
landlord would all at one time
or the other be living in the
house in harmony. It is only
when a dispute as to ownership
arises that naturally parties
try to draw lines of
demarcation, trying to separate
the wheat from the chaff.
In this respect the Court of
Appeal considered all the
evidence on possession and
concluded that the defendant had
not succeeded in her claim that
members of the extended family
occupied the house as of right.
Indeed the late Yaw Manu lived
in the house with his wife, PW1
a fact admitted by the defendant
and with difficulty by DW2; he
also lived there with his
children up to his death. As
against this clear evidence, the
witnesses called by the
defendant were not helpful to
her cause as regards the issue
of possession. This extract from
the cross-examination of DW1 at
page 56 of the record of
proceedings is revealing:
“Q-Did Yaw Manu, his wife and
children live in the house in
dispute?
A-Yes. Even before his death
none of his children was living
in the house.
Q-Presently some of his children
are residing in the house.
A-I know that one lived there
but I cannot tell whether the
child is living there since it
has been a long time.”
Thus according to this witness
none of the children of Yaw Manu
was living with him before he
died. And after his death one of
them came back to live in the
house. This contradicts the
defendant’s own story. Under
cross-examination of the
defendant it was suggested to
her that Yaw Manu’s wife and his
children lived in the house and
that after his death some of his
children are still in the house.
Her answer to be found at page
51 of the record was that
“throughout his lifetime and
after his death only 3 of his
children are still living
there.” What did DW1 seek to
achieve by denying that Yaw
Manu’s children were living with
him in this house before his
death and have continued to live
there at least up to the time
they testified in court? It was
clear he was eager to bolster
the defendant’s case and was
lying about facts which were
easily verifiable.
The least said about the
testimony of DW2 the better. In
her evidence in chief she said
she never saw Yaw Manu living in
this house, see page 59 of the
record. Then in cross
examination when asked whether
any of Yaw Manu’s children lived
in this house, her answer was
that they only stayed there
during celebrations, the obvious
inference being that they did
not live there but only stayed
there temporarily during
celebrations. But when pressed
further during cross examination
to the effect that it was Yaw
Manu who built the house and it
was suggested to her that Yaw
Manu lived in the house with his
children till his demise, DW2
took a contrary position to her
earlier stand when she said: “I
met Yaw Manu’s wife and children
who were then young at the time
living in the house till their
marriage was dissolved and PW1
left. I was also living in the
house at the time.” It is clear
that both DW1 and DW2 were
trying to support the
defendant’s claim that the
family were in exclusive
possession, but in the process
they went beyond what the
defendant herself had said and
their story contradicted the
defendant’s. The only consistent
story in respect of possession
was that Yaw Manu lived in this
house with his wife (until she
was divorced), and three
children throughout, and these
children continue to live in the
house even after the death of
their father. Other persons
might have lived there at one
time or the other but not
permanently unlike Yaw Manu and
his children. Every other story
is either inconsistent or
contradictory or plainly
unsupportable. In this scenario
the court would prefer the
consistent story of the
plaintiff which defendant and
eventually DW2’s admission
supported as against the
defendant’s which has no
credible support.
It was clear that besides
occupying the house throughout
with his children, the late Yaw
Manu was in full control of the
property as owner in all other
respects. There was clear
evidence that he rented out some
rooms to tenants and took the
rents and nobody complained,
including those who were said to
have built the house.
From the totality of the
evidence the plaintiff was able
to establish his case on a
balance of probabilities, in
respect of the construction of
the sandcrete block, the payment
of property rates as owner,
physical occupation of the
property with his wife and
children till his death, the
approval he got from the grantor
stool, by way of exhibit B, the
renting out to tenants and
keeping proceeds without any
objection. It is reasonably safe
to accept the plaintiff’s case
that Yaw Manu acquired the land
and built the swish house on it
before travelling to Benimase
with his wife to work, as PWI
said. All these cumulatively
point to one and only one
conclusion that the late Yaw
Manu was the owner of this
property. Section 48(2)
of NRCD 323 provides that ‘A
person who exercises acts of
ownership over property is
presumed to be the owner of it.”
The defendant did not succeed in
rebutting this clear presumption
which the evidence raised in
favour of the plaintiff.
We therefore find no merit in
the appeal which we hereby
dismiss, and uphold the
decision/s of the Court of
Appeal.
(SGD)
A. A. BENIN
JUSTICE OF THE
SUPREME COURT
(SGD) W. A.
ATUGUBA
JUSTICE OF THE
SUPREME COURT
(SGD) S. O. A.
ADINYIRA (MRS)
JUSTICE OF THE
SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) J.
B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
OBENG MANU (JNR) ESQ. FOR THE
DEFENDANT /RESPONDENT/APPELLANT.
F. K. BUOR ESQ. FOR THE
PLAINTIFF/APPELLANT/RESPONDENT
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