Property - Declaration of title
- Perpetual injunction -
Whether a
valid lease duly executed
between the President of the
Republic of Ghana in trust for
the Golden Stool and the Kumasi
state can be used as evidence of
ownership of property -Whether
the said property was
legitimately vested in the late
Kwasi Boateng - Whether Court of
Appeal rightly captured
the principles which regulate
the right of an appellate court
to interfere with findings of
fact made by a trial judge.
HEADNOTES
The plaintiffs say that both the
children of the late Kwasi
Boateng and his family did not
until recently, even know that
H/No Plot 23,Block IX A,
Dadiesoaba, Kumasi was the bona
fide property of the deceased
except that he (late Kwasi
Boateng) was all along living in
the said house as if he was a
tenant. it was quite recently
when a close friend of the
deceased informed the
plaintiff’s a
search at lands Commission to
ascertain and or confirm
revealed that the said property
was legitimately vested in the
late Kwasi Boateng before his
death, and he did not transact
any business on the file at
Lands Commission. The plaintiff,
and one of the surviving
children of the deceased,
applied to the Circuit Court,
Kumasi for grant of Letters of
Administration same of which was
granted The
defendant completely denied the
claim of the plaintiff and said
the property was acquired by his
predecessor Kwasi Boateng devolved
on his customary successor
called Nsomme, who continued
collection of rents from tenants
who had been put there by the
late Kwasi Boateng. Due to
Nsomme’s advanced age when she
succeeded to Kwasi Boateng, even
in her lifetime the defendant
was in charge of the day to day
management of the property. he
defendant therefore denied the
plaintiffs claim and
counterclaimed for a declaration
of title and perpetual
injunction -
HELD :-
After reviewing the rival
versions as narrated by the
parties and their witnesses
coupled with the long and
undisturbed possession by the
defendant and his family, we
hold that the defendant has
proved his title and is entitled
to his counterclaim. We
therefore endorse the conclusion
s arrived at by the Court of
Appeal.
Having come to this
conclusion in respect of grounds
7, we do not find it necessary
to go into the other grounds of
appeal. The appeal therefore
fails in its entirety and the
judgment of the Court of appeal
with regard to ownership of the
property is confirmed.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules 1954 LN 140A
High Court (Civil Procedure)
Rules, 2004 CI 47, Or11R8(2)
CASES REFERRED TO IN JUDGMENT
Golightly vrs. Ashrifi [1961] 1
GLR 28
Fori vrs Ayerebi [1966] GLR 627;
Asare vrs Appau II [1948-86]
GLR59
Abakam Effina Family vrs.
Mbibado Effina [1959] GLR 362 CA
Agyenim-Boateng v Ofori [2010]
SCGLR 861
Cross v Hillman Ltd [1969] 3 WLR
787 at page 798, CA,
Fofie v Zanyo [1992] 2 GLR 475
Kissiedu v Dompreh [1937) 2 WACA
281
PRAKA VRS KETEWA [1964] GLR 423
AMOAH V LOKKO & ALFRED QUARTEY
[2011] SCGLR 505,
KYIAFI VRS. WONO [1967] GLR 463
LAGUDAH vs. GHANA COMMERCIAL
BANK (2005-2006) SCGLR
KOGLEX LTD. (NO.2) VS. FIELD
(2000) SCGLR 175
HAMMOND vs. ODOI (1982-83) GLR
1215, at page 1235, Crabbe JSC
Zabrama v. Segbedzi (1991) 2 GLR
22
Appiah v. Takyi (1982-83)GLR 1
CA
ABAKAM EFFINA FAMILY V MBIBADO
EFFINA FAMILY (1959) GLR 362 CA,
BOOKS REFERRED TO IN JUDGMENT
“The Present Importance of
Pleadings”. Master I.H. Jacob
captured in “Current Legal
Problems” 1960 pp 171-176
DELIVERING THE LEADING
JUDGMENT
BAFFOE-BONNIE, JSC:-
COUNSEL.
RAYMOND BAGNABU FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
MICHAEL GYAN OWUSU WITH HIM
MONICA NERTLEY, AKUA AMPONG AND
LESLIE AMEDIOR FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
BAFFOE-BONNIE, JSC:-
This suit which was started in
the Circuit Court, has come to
us pursuant to leave granted by
this court.
The facts of this case are quite
settled and admit of little
controversy.
The
plaintiffs/respondents/appellants,
hereafter plaintiffs, instituted
this action in 2006 claiming as
follows;
1 A declaration that both the
legal and equitable interest in
H/No, Plot 23 Block 1X A,
Dadiesoaba, Asafo, Kumasi,
forms part of the intestate
estate of the late Kwasi Boateng,
pursuant to a valid lease duly
executed between the President
of the Republic of Ghana in
trust for the Golden Stool and
the Kumasi state and the late
Kwasi Boateng registered at
Lands Commission as LS K.T.L.
504/61 bearing plan No. K.7026
dated
1ST day of April,
1960.
2 Accounts
3 Permanent/perpetual injunction
4 Recovery of posession
In a 11-paragraph statement of
claim, the plaintiff said that
the property was acquired by his
predecessor, the late Kwasi
Boateng of Sewua, who had same
registered in the Lands
Commission and that the late
Kwasi Boateng of Sewua never
transferred his interest in the
property or encumbered it in any
way till he died in 1973. The
plaintiffs continued their
pleadings as follows;
4.“The plaintiffs say that both
the children of the late Kwasi
Boateng and his family did not
until recently, even know that
H/No Plot 23,Block IX A,
Dadiesoaba, Kumasi was the bona
fide property of the deceased
except that he (late Kwasi
Boateng) was all along living in
the said house as if he was a
tenant.
5. The plaintiff says that it
was quite recently when a close
friend of the deceased informed
the plaintiff’s family that H/No
23 Block IX A Dadiesoaba, Kumasi
was legitimately acquired by the
late Kwasi Boateng and that
there was a lease on the
property at Lands Commission.
6. The plaintiff says that when
the deceased’s family and
children conducted an official
search at lands Commission to
ascertain and or confirm the
ownership of the said house, the
search revealed that the said
property was legitimately vested
in the late Kwasi Boateng before
his death, and he did not
transact any business on the
file at Lands Commission.
7. The plaintiff says that
pursuant to the said discovery,
he plaintiff, and one of the
surviving children of the
deceased, applied to the Circuit
Court, Kumasi for grant of
Letters of Administration same
of which was granted dated the
13th day October,
2006”
Concluding his pleadings the
plaintiffs said,
“The plaintiffs say that the
defendant’s adverse claim for
this property has no legal
justification, reasonable,
probable or legitimate basis
whatsoever.”
In his 10-paragraph statement of
defence and counterclaim, the
defendant completely denied the
claim of the plaintiff. He said
the property was acquired by his
predecessor Kwasi Boateng of
Pease, who died in October 1965.
The property, which at the time
of his death was only an
outhouse, devolved on his
customary successor called
Nsomme, who continued collection
of rents from tenants who had
been put there by the late Kwasi
Boateng. Due to Nsomme’s
advanced age when she succeeded
to Kwasi Boateng
even in her lifetime the
defendant was in charge of the
day to day management of the
property. When Nsomme died he
became the customary successor
and he continued with the
management of the property. It
is the defence case that the
property as it is now was built
in phases. The first, outhouse
was built by Kwasi Boateng who
died in 1965. Between 1972 and
1975 the defendant says he built
another outhouse and started the
ground floor of the main house.
He then built the first floor
and roofed it in 1992. The
defendant says all tenants who
have lived in the house at one
stage or another were given
their rooms by Kwasi Boateng,
Akua Nsomme or himself, and they
all pay rents to him. Apart from
the tenants, other members of
Kwasi Boateng’s family live in
that house. The defendant
therefore denied the plaintiffs
claim and counterclaimed for a
declaration of title and
perpetual injunction
After a full trial the trial
Circuit Judge entered judgment
for the plaintiff, holding as
follows;
“In conclusion, and on the
preponderance of the evidence
adduced before this court, I
prefer the case of the plaintiff
to that of the defendant.
Consequently, I enter judgment
for the plaintiff and against
the defendant for the reliefs
endorsed on the writ of summons.
Consequently I declare that both
the legal and equitable interest
in the property House No Plot 23
Block IX A, Dadiesoaba, Asafo,
Kumas, forms part of the estate
of the late Kwasi Boateng
pursuant to the lease engrossed
in his favour and registered at
Lands Commission as LS No KTL
504/61 bearing plan No KTL280
and file NO K 7026 dated 1/4/60”
Aggrieved by this judgment the
defendant appealed to the Court
of Appeal on a number of grounds
among which was,
a.
The judgment is against the
weight of evidence.
The Court of Appeal unanimously
upheld the appeal and held as
follows
“Thus on a consideration of the
totality of the evidence in
terms of section 80(2) of the
evidence act, it leads one to
the conclusion in respect to the
substance of the rival versions
that the narration of the
defendant and witnesses looked
more credible than that of the
plaintiff and witnesses; coupled
with the other observations we
made as to the long undisturbed
possession of the defendant and
his family for over 33 years
prior to the action.
Under the circumstances, we will
interfere with the judgment of
the Circuit Court dated 22
January 2010 by setting same
aside. The appeal is hereby
allowed in its entirety.
Feeling aggrieved by the
decision of the Court of Appeal,
and pursuant to leave granted by
this court, the plaintiff has
appealed to us on a number of
grounds.
GROUNDS OF APPEAL
(i). The Court of Appeal erred
in law when it suo moto, raised
the question of failure to
tender the letters of
administration, which is a
matter of fact, and was not
raised in the trial court or by
the appellant in his written
submission; as that fact was not
in dispute, and the Court of
Appeal then proceeded to base
its decision on that matter
without calling on the
Respondent to be heard on it.
(ii). The Court of Appeal erred
in its judgment in law when it
referred to and relied upon the
declaration of moveable and
immoveable properties by the
plaintiffs filed in the
application for letters of
administration yet the court
nevertheless held that the
plaintiffs are not the
administrators of the estate of
the deceased.
(iii). The Court of Appeal erred
in law by vesting title to the
house in dispute in the
defendant whereas his case in
the trial court was that the
house devolved on the family of
Kwasi Boateng of Pease such that
he not being the head of the
family he has no authority to
hold family property.
(iv). The Court of Appeal erred
in law when it refused to follow
the decision of the Supreme
Court in the case of Djin vrs.
Musah Baako [2007-2008] SSCCLR,
which is binding on the Court of
Appeal, and to apply same with
regards to when time begins to
run under S.10(6) of the
Limitation Act which is a matter
of law.
(v). The Court of Appeal erred
in law when it failed to follow
the decision of the Privy
Council in Golightly vrs.
Ashrifi [1961] 1 GLR 28, which
is binding on the Court of
Appeal, and to apply same on
the question of whether estoppel
alleged to operate against the
plaintiff in a different
capacity continued to apply
against him in the capacity in
which he was in court, namely,
as administrator.
(vi). The Court of Appeal erred
in law by relying on the cases
of Fori vrs Ayerebi [1966] GLR
627; Asare vrs Appau II
[1948-86] GLR59 and Abakam
Effina Family vrs. Mbibado
Effina [1959] GLR 362 CA which
were decided when the High Court
(Civil Procedure) Rules 1954 LN
140A permitted a defendant in an
action for possession of his
immoveable property to rely only
on his possession, whereas that
position has been reversed by
the provision of Or11R8(2) of
the new High Court (Civil
Procedure) Rules, 2004 CI 47,
which provides that a
defendant’s reliance on
possession of immoveable
property in person or by a
tenant shall not be sufficient
answer to an action for
possession of land; consequently
the court applied a wrong
standard of proof to the case of
the defendant/counter claimant.
(vii).The judgment of the court
is against the weight of the
evidence.
(viii). Additional grounds of
appeal to be filed on receipt of
the Record of Appeal.
GROUND VII (JUDGMENT AGAINST
WEIGHT OF EVIDENCE)
In spite of the long list of
grounds of appeal, and in spite
of the order in which the
parties have argued them, we are
of the view that the issue of
ownership of the property in
dispute is at the core of the
problem and so its resolution
will completely dispose of this
appeal in its entirety. And
since the resolution of this can
only be done by looking at the
evidence adduced at the trial we
will like to take the seventh
ground of appeal first.
The case before the trial court
was simple. The main issue for
determination was the ownership
of property known as H/No. Plot
23 Block IX A, Dadiesoaba, Asafo
– Kumasi. The property is
covered by a lease made between
the President of the Republic of
Ghana, in trust for the Golden
Stool and the Kumasi State and
one Kwasi Boateng of Kumasi as
lessee. Whereas the plaintiff
claimed that the Kwasi Boateng
named in the lease was his
deceased relation who hailed
from Sewua, the defendant in his
counterclaim contended that the
Kwasi Boateng named in the lease
was his relation who hailed from
Pease.
At the time the action was
instituted, the defendant was in
possession of the property
exercising all rights of
ownership and had, among other
things, let out portions to
tenants. The action was
commenced to claim title through
one Kwasi Boateng who had died
30 years before the commencement
of the action. (See pages 237 to
238 of the record of appeal).
Arguing this omnibus ground, the
appellant has submitted that the
Court of Appeal overturned the
findings of fact by the trial
Circuit Court without observing
the correct principles laid down
by the legal authorities for
reviewing findings of fact made
by a trial court. He submitted
that the broad principles to be
observed by an appellate court
were stated by the Supreme Court
in the case of Agyenim-Boateng v
Ofori [2010] SCGLR 861. In the
unanimous decision delivered by
Aryeetey, JSC at page 867 the
court stated as follows;
“It is the trial court that has
the exclusive right to make
primary findings of fact which
would constitute building blocks
for the construction of the
judgment of the court where such
findings of fact are supported
by evidence on the record and
are based on the credibility of
witness. It is also the trial
tribunal which must have had the
opportunity and advantage of
seeing and observing the
demeanour of the witnesses and
become satisfied with the
truthfulness of their
testimonies touching on any
particular matter in issue. In
the case of Cross v Hillman Ltd
[1969] 3 WLR 787 at page 798,
CA, Lord Widgery cautioned that
an appellate court:
“…which sees only the transcript
and does not see the witnesses,
must hesitate for a very long
time before reaching a
conclusion different from the
trial judge as to the
credibility and honest of a
witness”.
The appellate court can only
interfere with the findings of
the trial court where the trial
court; (a) has taken into
account matters which were
irrelevant in law; (b) has
excluded matters which was
necessary for consideration; (c)
has come to conclusion which no
court properly instructing
itself would have reached; and
(d) the court’s findings were
not proper inferences drawn from
the facts. See the case of
Fofie v Zanyo [1992] 2 GLR 475”.
Further, in In Re Okine this is
what the court unanimously held
in the Headnote (1)
“(1) an appellate court must not
disturb the findings of fact
made by a trial court, even if
the appellate court could have
come to a different conclusion,
unless the findings of fact made
by the trial judge were wholly
unsupportable by the evidence.
Therefore, where the evidence
was conflicting, the decision of
the trial court as to which
version of the facts to accept
was to be preferred, and the
appellate court might substitute
its own view only in the most
glaring of cases. That was
primarily because the trial
judge had the advantage of
listening to the entire evidence
and watching the reactions and
demeanour of the parties and
their witnesses…
Counsel also cited Prof. Kludze
JSC in Re Okine (supra) as
follows;
“The
words of a witness in cold
print, though permanent, may not
be always easy to assess for
their impact and credibility.
If a witness hesitated in his
answer to the extent that his
demeanour cast a doubt on his
credibility, this may not be
apparent from the record of
proceedings,”
Concluding his attack on the
Court of Appeal, counsel cited
the case of
Kissiedu v Dompreh [1937) 2 WACA
281, where Lord Russell said (at
page 286 of the Report):
‘ Their Lordships find it
impossible to say that the Court
of Appeal could on the materials
before them, properly be
satisfied that this finding of
fact by the trial judge must be
erroneous. No doubt an appeal
in a case tried by a judge alone
is not governed by the same
rules which apply to an appeal
after a trial and verdict by a
jury. It is rehearing.
Nevertheless before an appellate
court can properly reverse a
finding of fact by a trial judge
who has seen and heard the
witnesses and can best judge not
merely their intention and
desire to speak the truth, but
of their accuracy in fact, it
must come to an affirmative
conclusion that the finding is
wrong. There is a presumption
in favour of its correctness
which must be displaced’.
Counsel then posed the question:
Was the defendant/appellant able
to displace the presumption of
rightness of the findings of the
trial judge in this case? He
answered in the negative.
We commend counsel for his
industry in reviewing the
various authorities on this
principle but wish to say that
counsel has failed to appreciate
in full the principles of law
governing the evaluation of
primary findings of facts by an
appellate court.
In the Supreme Court case of
PRAKA VRS KETEWA [1964] GLR
423 the principle was stated
that an appeal is by way of
re-hearing and an appellate
court is entitled to make up its
own mind on the facts and to
draw inferences from them to the
same extent that the trial court
could. So where wrong inferences
were drawn from admitted facts
or facts found by the trial
court, the appellate court can
interfere with those findings.
See also Tuakwa V. Bosom
[2001-2002] SCGLR 61
In the case of AMOAH V LOKKO
& ALFRED QUARTEY [2011]
SCGLR 505, this court, per
Aryeetey JSC. stated the
principle plainly that, just as
the trial court was competent to
make inferences drawn from the
facts and arrive at its
conclusions, the appellate court
is equally entitled to draw
inferences from findings of
facts by the trial court and
come to its own conclusions.
The principle is that the Court
of Appeal is required to
evaluate the primary findings of
facts and if after doing so they
come to the conclusion that the
learned trial judge had not
taken proper advantage of having
seen and heard the witnesses and
had drawn improper conclusions
from the primary facts, they
will be perfectly within their
right to interfere in the
conclusions of the trial judge.
The Court of Appeal
rightly captured the principles
which regulate the right of an
appellate court to interfere
with findings of fact made by a
trial judge in the case of
KYIAFI VRS. WONO
[1967] GLR 463 as follows:
“where the appellate court was
satisfied that the reasons given
by the trial court in support of
its findings were not
satisfactory or where it
irresistibly appeared to the
appellate court that the trial
court had not taken proper
advantage of having seen and
heard the witnesses, then in any
such case, the matter would
become at large for the
appellate court in which case
the appellate court was under a
duty to give such decision as
the justice of the case required
and if need be, reverse the
decision of the trial court and
substitute its own judgment”.
See also the case of LAGUDAH vs.
GHANA COMMERCIAL BANK
(2005-2006) SCGLR 388 where the
Supreme Court held that:
“an appellate Court would be
justified in overturning the
findings of a trial court where
taking into account the entirety
of the record of appeal there
are circumstances apparent in
the manner in which the previous
court dealt with the matter
either on the facts or the law
that clearly justify doing so”
In an earlier case of KOGLEX
LTD. (NO.2) VS. FIELD (2000)
SCGLR 175 this court, per Acquah
JSC (as he then was), outlined
the instances where an appellate
court will be justified in
setting aside the finding of a
trial court as follows:
1.
Where the said findings of the
trial court are clearly
unsupported by the evidence on
the record.
2.
The improper application of a
principle of evidence or where
the trial court had failed to
draw an irresistible conclusion
from the evidence.
3.
Where the findings are based on
a wrong proposition of law that
if that proposition is corrected
the finding disappears and
4.
Where the judgment is
inconsistent with crucial
documentary evidence on record.
Based on these cited authorities
and more, we hold that the Court
of Appeal was perfectly within
their jurisdiction when they
sought to re-evaluate the
evidence on record, examine the
conclusions and inferences drawn
therefrom by the trial judge,
and where need be substitute
their conclusions in line with
the evidence on record. That in
essence is the meaning of
“appeal is by way of rehearing”.
And this court being a
second appellate court is also
required to re hear the appeal
and come to its conclusion which
may be in accord with that of
the trial judge or that of the
Court of Appeal or a departure
from either of them.
In the case before us the trial
judge after evaluating the
evidence the trial judge held as
follows;
“In conclusion, and on the
preponderance of the evidence
adduced before this court, I
prefer the case of the plaintiff
to that of the defendant.
Consequently, I enter judgment
for the plaintiff and against
the defendant for the reliefs
endorsed on the writ of
summons.”
To support this conclusion the
trial judge made this
statement,
“I find that on the evidence
adduced in this matter as a
whole, the plaintiff by
tendering Exhibit A which is a
lease that borders on the
property in dispute and which
has not been disputed, has
succeeded in laying a concrete
basis of his claim to title to
the same”
This finding did not find favour
with the Court of Appeal which
said
“The above holding in our view
flies in the face of the
conflicting evidence of the
plaintiff as to how exhibit A
came into his custody.”
Another point raised by the
Court of Appeals evaluation of
the evidence on record vis a vis
the conclusions arrived at by
the trial judge, was the marked
departure of the plaintiff’s
evidence in the dock from his
pleadings. On this point the
Court of Appeal said
“A critical look at the
plaintiffs statement of claim
when compared to the evidence
adduced by the plaintiff and
witnesses amply support the fact
that the plaintiff departed
completely from his case set out
in the statement of claim”
(emphasis ours)
We have carefully evaluated the
evidence on record, and we fully
endorse this finding. To support
this endorsement let us recount
some of the pleadings put
forward by the plaintiff in his
pleadings as against the
evidence proffered at the trial.
STATEMENT OF CLAIM
4. “The plaintiffs say that both
the children of the late Kwasi
Boateng and his family did not
until recently even know that
H/No Plot 23,Block IX A,
Dadiesoaba, Kumasi was the bona
fide property of the deceased
except that he (late Kwasi
Boateng) was all along living in
the said house as if he was a
tenant.
5. The plaintiff says that it
was quite recently when a
close friend of the deceased
informed the plaintiff’s family
that H/No 23 Block IX A
Dadiesoaba, Kumasi was
legitimately acquired by the
late Kwasi Boateng and that
there was a lease on the
property at Lands Commission.
6. The plaintiff says that when
the deceased’s family and
children conducted an official
search at lands Commission to
ascertain and or confirm the
ownership of the said house, the
search revealed that the said
property was legitimately vested
in the late Kwasi Boateng before
his death, and he did not
transact any business on the
file at Lands Commission.
7. The plaintiff says that
pursuant to the said discovery,
he plaintiff and one of the
surviving children of the
deceased applied to the Circuit
Court, Kumasi for grant of
Letters of Administration same
of which was granted dated the
13th day October,
2006”(EMPHASIS ADDED)
Compare this pleading to the
evidence while in the box and
under oath.
PLAINTIFF:
I am the head of family. I know
the late Kwasi Boateng, I
succeeded him after his death.
The late Kwasi Boateng was
possessed of a house at the time
he died. The house is numbered
23 Block A Dadiesoaba. After
the death of my late uncle, we
looked through his property and
discovered documents covering
the house, ie the lease covering
the house. I sent the lease
to conduct a search at the lands
secretariat. The document was a
photocopy. At the lands
secretariat, the search revealed
that the house belonged to my
uncle. I do not know whether the
defendant’s late uncle was
living in the house, and are
still living there. My late
uncle was living at Sewua before
his death. While in Kumasi, he
was living in somebody’s house
while building this house.
Under cross examination this is
what happened.
Q. You said your uncle lived in
someone else’s house any time he
came to Kumasi. Who is this
someone?
A I do not know that person
Q. Have you personally been to
the house in dispute?
A. I saw it but never entered
into the house.
Q. When did your uncle die?
A. He died in 1973.
Q. And at the time of his death
was this house a completed
house.
A. Yes
The marked departure of
plaintiff’s evidence in chief
from his pleadings regarding how
the plaintiff’s family got to
know that the property belonged
to their late predecessor, Kwasi
Boateng of Sewua, cannot be
overemphasised and should not
have been glossed over by the
trial judge. This is
particularly so because the
resolution of this dispute
borders on oral and traditional
evidence and therefore the
credibility of witnesses is very
crucial.
Commenting on the importance of
pleadings In the case of HAMMOND
vs. ODOI (1982-83) GLR 1215, at
page 1235, Crabbe JSC stated as
follows;
“Pleadings are the nucleus
around which the case – the
whole case-revolves. Their very
nature and character thus
demonstrate their importance in
actions, as for the benefit of
the court as well as for the
parties. A trial court can only
consider the evidence of the
parties in the light of the
respective case of each of the
contestants. The pleadings bind
and circumscribe the parties and
place fetters on the evidence
they would lead. Amendment is
the course to free them from
such fetters. The pleadings
thus manifest the true and
substantive merits of the case”
The learned judge quoted from
the presentation by the learned
Master I.H. Jacob captured in
“Current Legal Problems” 1960
pp 171-176 on “The Present
Importance of Pleadings”.
“Pleadings do not only define
the issues between the parties
for the final decision of the
court at trial, they manifest
and exert their influence
throughout the whole process of
the litigation…they act as the
measure for comparing the
evidence of a party with the
case which he has pleaded…”
In effect the pleadings in a
case form the basis of the
respective case each party
indicates it will establish by
relevant evidence at the trial
in order to prove a cause of
action or to show that the other
party does not have a cause of
action. That being the case,
the evidence led at a trial must
have the function or purpose of
establishing the case that has
been set out in the pleadings.
If the evidence that is led is
at variance with the pleadings,
it cannot be held that the party
has proved the case set out in
his pleadings. He may by his
evidence have succeeded in
proving a case that he has not
pleaded but a court cannot
accept that case which is not
pleaded as the duty of the court
is to adjudicate upon the
specific case in dispute set up
by the pleadings.
In the oft cited case of DAM v.
ADDO 1962 2 GLR 200 the Supreme
Court held that
“A court must not substitute a
case proprio motu, nor accept a
case contrary to or inconsistent
with that which the party
himself puts forward, whether he
be plaintiff or
defendant”(holding 2)
Then in the case Zabrama v.
Segbedzi (1991) 2 GLR 22 the
court had this to say about
pleadings
“It is trite learning that where
a party’s evidence is
inconsistent with his pleaded
case, whilst that of his
opponent is consistent with his
pleadings, the opponent’s case
is preferable to the one who
departs from his pleadings. This
principle was reiterated by this
court in the case of Appiah v.
Takyi (1982-83)GLR 1 CA where it
was held that if there was a
departure from pleadings at a
trial by one party whereas the
others evidence accorded with
his pleadings, the latter case
was as a rule preferable”
On the basis of these settled
authorities and in view of the
marked departure of the
plaintiff’s evidence from his
settled pleadings as against the
consistency between the
defendant’s pleadings and
evidence on record, we agree
with the Court of Appeal that;
“A critical look at the
plaintiffs statement of claim
when compared to the evidence
adduced by the plaintiff and
witnesses amply support the fact
that the plaintiff departed
completely from his case set out
in the statement of claim”
(emphasis ours)
The result is that defendant’s
case is more believable than
that of the plaintiff
Another inconsistency in the
case of the pleadings is why the
action was started as recently
as 2006 December. The writ was
issued on 7th
December 2006. Kwasi Boateng
from whom the plaintiff claims
died in 1972. Obviously
anticipating the question why
they are bringing their action
so late in the day, ie 33-34
years after his death, the
plaintiff said in his pleadings,
5. The plaintiff says that
it was quite recently when a
close friend of the deceased
informed the plaintiff’s family
that H/No 23 Block IX A
Dadiesoaba, Kumasi was
legitimately acquired by the
late Kwasi Boateng and that
there was a lease on the
property at Lands Commission.
6. The plaintiff says that when
the deceased’s family and
children conducted an official
search at lands Commission to
ascertain and or confirm the
ownership of the said house, the
search revealed that the said
property was legitimately vested
in the late Kwasi Boateng before
his death, and he did not
transact any business on the
file at Lands Commission.
7. The plaintiff says that
pursuant to the said discovery,
he plaintiff and one of the
surviving children of the
deceased applied to the Circuit
Court, Kumasi for grant of
Letters of Administration same
of which was granted dated the
13th day October,
2006”(EMPHASIS ADDED)
This answer obviously will not
be in accord with the evidence
adduced at the trial. At the
trial as discussed already, the
plaintiff said the document was
found as far back as 1972 when
Kwasi Boateng died and they were
going through his things. The
question that remained
unanswered is if they found the
information about the ownership
of the property as far back as
1972 why did they wait till 2006
to apply for letters of
administration and use that as a
basis of claiming the property.
And funnily though the L.A. had
been procured to administer the
estate of Kwasi Boateng who had
died some 33 years earlier, the
property in dispute was not
specifically even mentioned in
the inventory in Form 68
attached to the application.
Again, the plaintiff in
paragraph 4 of his statement of
claim said as follows:
5.
“The plaintiffs say that both
the children of the late Kwasi
Boateng and his family did not
until recently even know that
H/No Plot 23,Block IX a,
Dadiesoaba, Kumasi was the bona
fide property of the deceased
except that he (late Kwasi
Boateng) was all along living
in the said house as if he was a
tenant. (emphasis added)
Again this is inconsistent with
the evidence adduced at the
trial. First, the plaintiff
never led any evidence to show
that Kwasi Boateng ever lived in
that house either as a tenant or
a landlord. Indeed all the
witnesses of the defendant said
that they rented their rooms
from the defendant or his
predecessor and that the Kwasi
Boateng plaintiff was referring
to was neither a tenant nor
their landlord. In fact none of
them had heard about Kwasi
Boateng of Sewua, plaintiff’s
predecessor. This piece of
evidence is confirmed by the
defendant himself. He said among
other things;
“My late uncle was living at
Sewua before his death. While in
Kumasi, he was living in
somebody’s house while building
this house.”
During cross examination this is
what transpired
Q. You said your uncle lived in
someone’s house any time he came
to Kumasi who is this someone
A. I do not know that person
Q Have you personally been to
the house in dispute
A I saw it but never entered
into the house.
Q When did your uncle die
A.
He died in 1873
Q. And at the time of his death,
was this house a completed house
A . Yes
Then later
Q When you said the late Kwasi
Boateng was your uncle, can you
tell this court what you mean by
uncle
A My mother is the immediate
younger sister of Opanin Kwasi
Boateng
Q Where did your uncle live
A . He was residing in
Dadiesoaba Ahenfie
Quite clearly this is another
material inconsistency that goes
to further weaken the case of
the plaintiff.
In the light of these
inconsistencies pointed out in
the pleadings and evidence in
chief, the rule in Appiah vs.
Takyi (supra), becomes relevant;
that if your evidence is
inconsistent with your pleaded
case, and the other party’s
evidence is consistent with
their pleadings, the court must
prefer the case of the party who
has succeeded in establishing
his pleaded case by the evidence
led.
We therefore hold that the
learned justices of the Court of
Appeal were right and their
decision to draw an inference
from the facts different from
that of the trial judge was
permissible in law.
In the instant case, apart from
denying the claim of the
plaintiff, the defendant also
counterclaimed for a declaration
of title to the property, and an
order of perpetual injunction.
But short of disbelieving the
plaintiff due to the
discrepancies between their
pleadings and their evidence in
chief, and also the
inconsistencies in their
evidence as a whole, did the
defendant himself lead any
evidence to prove his
entitlement to the property?
Order 12 Rule 1(i) of CI 47
says,
“A defendant who alleges that he
has a claim or is entitled to a
relief or remedy against the
plaintiff in an action in
respect of any matter, whenever
and however arising, may,
instead of bringing a separate
action make a counterclaim in
respect of that matter”.
By his counterclaim therefore
the defendant had put his own
title in issue and therefore
bore the evidential burden to
prove his own title. In the
case of Re Ashalley Botwe Lands:
Adjettey Agbosu &Ors v Kotey &
Ors [2003-2004] SCGLR it was
held as follows
“The burden of producing
evidence in any given case was
not fixed, but shifted from
party to party at various stages
of the trial, depending on the
issues asserted and/denied”
At page 425 Brobbey JSC said,
If the Court has to make a
determination of a fact or an
issue and that determination
depends on evaluation of facts
and evidence, the defendant
(counterclaimant) must realise
that the determination cannot be
made on nothing”
The logical sequel to this is
that if he leads no such facts
or evidence, the court will be
left with no choice but to
evaluate the entire case on the
basis of the evidence before the
court”
The defendant led uncontroverted
evidence to show that since the
building was put up, rooms in
the house have been occupied by
his family members and tenants
who have been put there by him
or his predecessors in title.
There was no evidence that any
member of the plaintiff’s family
has either lived in this house
or rented out any rooms in the
house. In deed some tenants who
had lived in the property for a
long time came to testify to the
fact that they rented their
rooms from, and pay their rents
to the defendant. This long
possession of the property in
dispute created a strong
presumption, though rebuttable,
of ownership in the defendant.
In the Supreme Court case of
Asare v Appaw II(1984-95)1 GLR
59 it was held
“A person in possession is prima
facie entitled to the land”
Then in the case of ABAKAM
EFFINA FAMILY V MBIBADO EFFINA
FAMILY (1959) GLR 362 CA, it was
said,
“where a defendant has been in
long possession and occupation
of land he is entitled to the
protection of the law against
all who cannot affirmatively
prove a better title”(emphasis
added)
Yes, the defendant did not
tender any documents on the
property, claiming they were
stolen in the lifetime of Nsomme.
Again, even though he claimed to
have been in charge of the
construction of a greater part
of the finished property since
the construction was done in
phases, he could not produce any
drawings or permit or anything.
But these were minor or trivial
details that could not take away
his credibility. And the
defendant could not prove
affirmatively a better title.
After reviewing the rival
versions as narrated by the
parties and their witnesses
coupled with the long and
undisturbed possession by the
defendant and his family, we
hold that the defendant has
proved his title and is entitled
to his counterclaim. We
therefore endorse the conclusion
s arrived at by the Court of
Appeal.
Having come to this conclusion
in respect of grounds 7, we do
not find it necessary to go into
the other grounds of appeal. The
appeal therefore fails in its
entirety and the judgment of the
Court of appeal with regard to
ownership of the property is
confirmed.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE
OF THE SUPREME COURT)
COUNSEL
RAYMOND BAGNABU FOR THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
MICHAEL GYAN OWUSU WITH HIM
MONICA NERTLEY, AKUA AMPONG AND
LESLIE AMEDIOR FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
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