Evidence – Burden of persuasion
– Inconsistencies in testimony –
Minor colourless inconsistencies
may cumulatively discredit claim
of proponent of evidence.
Practice and procedure –
Pleadings - Evidence – Conflict
of – Judge may reject evidence
inconsistent with pleadings.
By his will, the deceased
devised the disputed house to
his widow and her children. The
plaintiff as head of family and
customary successor of the
deceased sued the widow for a
declaration that the disputed
house was family property,
injunction and recovery of the
property and an order to delete
the devise from the will. The
plaintiff pleaded that the land
on which the house stood was
jointly acquired by Salome
Nketia and Salome Obenewaah. He
explained in his testimony that
the plot was purchased in the
name of the deceased because he
was the eldest of son of Salome
Nketia and that he constructed
the disputed house thereon and
lived in it with the defendant
and some family members. During
the lifetime of the deceased,
Salome Nketia lodged a complaint
with the session of the
Presbyterian Church at Agogo
that the deceased had conveyed
the property to his son.
According to the plaintiff the
deceased apologised before the
session and promised to transfer
the property back to his name.
The session decided that the
property was acquired by Salome
Obenewah. Again, when it was
discovered that the deceased had
devised the property to his
widow and children, the family
complained to the session of the
Presbyterian Church which
decided that the property was
family property.
The defendant on her part
testified that the property was
the self-acquired property of
the deceased; that the deceased
put up the dwelling house and
moved in with her newly married,
where they lived until his
death. After moving in, the
deceased invited some family
members to live in the house but
for over sixty years the
deceased treated the property as
his and let out some of the
rooms to tenants. She denied
that the second session of the
Presbyterian Church decided that
the land was family property.
The trial judge found that
neither the plaintiff nor his
witnesses had proved that the
property was family property,
dismissed the plaintiff’s claim
and entered judgment for the
defendant on her counterclaim.
On appeal the plaintiff argued
that the trial judge erred by
holding that he had failed to
establish title to the disputed
property and that the trial
judge placed undue weight on the
evidence of the defendant
without giving reasons for so
doing.
Held:
(1) Inconsistencies, though
individually colourless, may
cumulatively discredit the claim
of the proponent of the
evidence. The conflicts in the
evidence of plaintiff and his
witnesses weakened the merit of
his case and proved fatal to his
claim.
(3) The plaintiff’s averment in
his pleading that Salome Nketia
and Salome Obenewaah jointly
acquired the land in dispute was
in conflict with his evidence
that the session decided that
the property was acquired by
Salome Obenewaah. The trial
judge was right in rejecting the
evidence, which showed that the
property was family property.
Cases referred to:
Duagbor v Akyea Djamson
[1984-86] 1 GLR 697, CA.
Ebu v Ababio
(1956) 2 WALR 55, PC .
Kodilinye v Odu
(1935) 2 WACA 336.
Rufai v Ricketts
(1934) 2 WACA 95.
Wangara v Wangara
[1982-1988] GLR 639.
APPEAL against decision of High
Court.
Kwaku Baah
for the appellant.
Berchie-Antwi
for the respondent.
LAMPTEY JA.
On the 20 December 1974 Moses
Yaw Obeng made a will and by
clause 2 devised house No 36
Agogo in the Ashanti Region to
his wife, Felicia Bempomaah (the
respondent herein) and her
children. Death laid its icy
hands on Moses Obeng on 14
January 1983 at Agogo Ashanti.
When the will of the deceased
Moses Obeng was read after his
death, Isaac Kwaku Obeng, in his
capacity as head of the family
and customary successor of the
deceased, authorised one Seth
Oduro Amaa to sue the respondent
for a declaration that house No
36 Agogo Ashanti was family
property, not the self-acquired
property of the deceased, Moses
Obeng. Additionally, the
plaintiff sought the following
ancillary reliefs: recovery of
possession and perpetual
injunction. He also sought an
order striking out clause 2 of
the will. At the conclusion of
the hearing of the case, the
Kumasi High Court judge
dismissed the action. Aggrieved
by the judgment, the plaintiff
appealed to this court.
Two grounds of appeal were
argued on behalf of the
plaintiff. The first ground was
that the trial judge erred in
law when he held that the
plaintiff did not prove the
title he claimed. Learned
counsel for the plaintiff
submitted that the evidence
adduced by the plaintiff and his
witnesses established the claim
of the plaintiff. He contended
that the trial judge should have
believed and accepted the
evidence proffered by the
witnesses of the plaintiff to
prove the acquisition of the
land on which the house in
dispute stood. According to him
the conflicts in the evidence of
the plaintiff and his witnesses
were minor conflicts. He
complained that the trial judge
placed undue weight on the
evidence led by the respondent
without giving reasons for so
doing. He stated that the case
of the respondent was also full
of inconsistencies yet the trial
judge overlooked these. He
submitted that the trial judge
was wrong in accepting the case
of the defendant.
In reply, learned counsel for
the respondent submitted that
the trial judge was right in law
in the conclusion he reached. He
took the court through the
record to demonstrate that the
plaintiff failed to attain the
standard of proof required of
him. He pointed out serious
conflicts and glaring
contradictions in the evidence
led by the plaintiff and his
witnesses and submitted that
they were fatal to the case put
forward by the plaintiff. The
defence put up by the defendant
was not disputed or challenged.
The trial judge was right in
believing and accepting it.
I must observe at this early
stage that the trial judge was
in no doubt that the plaintiff
assumed the burden of proving
his claim and was to succeed on
the strength of his own case. On
this issue he made reference to
the following decided cases:
Rufai v Ricketts (1934) WACA
95, Kodilinye v Odu
(1935) 2 WACA 336, Wangara v
Wangara [1982-83] GLR 639,
Duagbor v Akyea Djamson
[1984-86] 1 GLR 697, CA and
Ebu v Ababio (1956) 2 WALR
55, PC. It has not been shown
that the trial judge applied the
wrong principles of law to the
facts before him. Indeed, the
evidence before the court
supported the findings of fact
made by the trial judge. The
argument that the conflicts in
the evidence of plaintiff and
that of his witnesses were not
fatal to his claim is clearly
and plainly misconceived.
In the instant case, the
evidence led by the plaintiff
and his witnesses failed to
establish who had actually
purchased the land in dispute.
There was no evidence to explain
why the late Moses Obeng was
permitted to build on the land
in dispute and further, why he
exercised overt acts of
ownership over the land in
dispute throughout his lifetime.
There was no evidence that
Salome Nketia and or Salome
Obenewaah who, according to the
plaintiff bought the land,
farmed on the land in dispute.
There was no evidence that any
of the female or male members of
the family of these two women
farmed on the land in dispute.
Contrary to custom among the
Akans, there was undisputed
evidence that the wife of the
late Moses Obeng, the respondent
herein, and a stranger in
Obeng’s family farmed onions on
the land in dispute. More
importantly, there was
undisputed evidence that the
late Moses Obeng built house No
36 on the land in dispute. When
the house was completed, it took
him some time to invite Salome
Nketia and after some further
passage of time to invite Salome
Obenewaah to come and live in
one room each in the house. In
my opinion, the above pieces of
evidence adduced by the
respondent destroyed the claim
put forward by the plaintiff.
I now turn to the evidence
relating to what transpired at
the first session. There was
evidence from PW2, R M Wireko on
this issue. He repeated evidence
which he stated was given before
the first session of the
Presbyterian Church at Agogo.
This was what he said:
“At the first session, Mama
Nketia told us that it was her
mother who had acquired the land
and because Moses Obeng was the
eldest child they used his name
on the plot.”
It will be seen from the above
passage that the land was
acquired by Salome Nketia’s
mother. This meant that the
mother of Moses Obeng was not a
co-purchaser and therefore not a
co-owner or joint owner with
Salome Nketia. The pleading of
the plaintiff was that the land
in dispute was jointly acquired
by Salome Nketia and Salome
Obenewaah. From all the above
matters it is plain and clear
that the issue of who had
purchased the land in dispute
was decided in favour of Salome
Nketia’s mother by the first
session. This decision of the
first session is in conflict
with the pleadings. The trial
judge was right when he rejected
the evidence which showed that
the first session held that the
land in dispute was the family
property of the late Moses
Obeng.
I wish to make a further
observation on the meeting and
decision of the first session.
The evidence of PW1, Rev Darko
was plainly hearsay evidence. He
admitted that he was not present
and did not take part in the
proceedings of the first
session. The plaintiff’s
attorney, Isaac Kwaku Obeng told
the court that he did not attend
the meeting of the first
session. His evidence touching
upon what took place at that
meeting was hearsay, and clearly
not admissible evidence. The
other piece of evidence as to
what took place at the meeting
of the first session was given
by PW2, Wireko. I have already
reproduced the evidence he gave.
I have found that, that piece of
evidence did not support the
case of the plaintiff, namely
that the land in dispute was
jointly purchased and acquired
by Salome Nketia and Salome
Obenewaah. The evidence before
the trial judge as to what took
place at the first session did
not prove and support the case
of the plaintiff that the land
together with the house were
family properties of the late
Moses Obeng.
The attention of this court was
drawn to documentary evidence
which according to learned
counsel for the appellant proved
and supported the case of the
appellant. The first document
was exhibit A. This document
related to events connected with
the second session. The next
document was exhibit B. This
document also related to the
second session. The third
document was exhibit C which was
a letter written by the
registrar of the High Court,
Kumasi after the death of Moses
Obeng. These three exhibits in
my opinion do not prove and
establish the case of the
appellant.
The other matter which I must
now deal with was the evidence
touching upon the second
session. The meeting of the
second session was provoked by a
provision in the will of the
late Moses Obeng by which he
devised the house in dispute to
his wife and children. Evidence
of what took place at the
meeting of the second session
was given by PW2 Wireko. He
stated as follows:
“At this meeting there was no
confrontation or challenge in
respect of the house between the
two.”
That the above statement was
confirmed as the truth of the
matter was supported by the
following extract from the notes
recorded at the meeting of the
second session and tendered in
evidence as exhibit 1:
“2. In the light of the first
decision the house No 36 should
be the property of the relatives
of Opanin Moses Yaw Obeng.”
The following significant note
was recorded:
“Madam Felicia Bempomaa, the
widow stated emphatically that
she was the first person to
dwell in the house when she was
a young married woman with her
husband. She said further
that she was not prepared to
move away [out of] from the
house if someone wanted to move
her from the house.”
(Emphasis supplied.)
From the matters recorded in
exhibit 1 in particular and the
passages reproduced above, it is
clear that the claim by the
plaintiff that the second
session conclusively decided
that house No 36 Agogo was
family property was not proved.
The trial judge was right when
he expressed the following
opinion:
“...what happened at the second
session cannot be described as
an arbitration properly so
called or a settlement because
there is hardly such evidence as
would convince this court that
the ordinary principles of
arbitration were fulfilled at
the second session meeting of
the church.”
I affirm the finding of the
trial judge that on the evidence
before him, neither the first
session nor the second session
decided and determined that the
land and house in dispute were
family property of the family of
the late Moses Yaw Obeng. For
the reasons given above, I
dismiss the appeal. I affirm the
judgment of the High Court dated
11 June 1990.
BROBBEY JA.
I agree that the appeal fails
and should be dismissed.
FORSTER JA.
The plaintiff in this case is
the customary successor to the
late Moses Yaw Obeng, a native
of Agogo, who died on 24 January
1983; and the defendant, is the
widow of the deceased.
The deceased Moses Yaw Obeng
died testate and probate was
given to the widow. The testator
devised in his will house No 36
Agogo to his wife, the
defendant, and their children.
On 30/4/82, the plaintiff took
out a writ of summons against
the defendant in the High Court,
Kumasi. In his statement of
claim, he averred, inter alia,
that house No 36 was family
property and asked for a
declaration to that effect. The
defence was a general denial
coupled with an assertion that
the said house was the personal
property of the deceased Moses
Yaw Obeng and that the devise of
that house to the defendant and
her children was valid.
The gravamen of the action is
best shown by reference to the
summons for directions which set
down the following issues:
“(1). Whether or not house No 36
Agogo, Ashanti Akim is the
family property of Moses Yaw
Obeng (deceased).
(2). Whether or not plot No 36
Agogo Ashanti Akim was acquired
by plaintiff’s grandmother
Salome Obenewaah and Salome
Nketia;
(3). Whether or not Alfred
Kwabena Obeng (deceased) built
two rooms on the said plot No 36
Agogo;
(4). Whether or not Salome
Nketia made a complaint against
the said deceased at the
Presbyterian Church session
Agogo, about his wrongful
transfer of the said house No 36
Agogo to his son.
(5). Whether or not the said
session went into the matter as
to whether or not the said house
No 36, Agogo, is the family
property of the said deceased;
(6). Whether or not the said
session decided that house No 36
Agogo is the family property of
the deceased after hearing from
the parties;
(7). Whether or not the said
Moses Yaw Obeng (deceased)
accepted the finding of the
session and apologised before
the session, his relatives and
the defendant;
(8). Whether or not the said
Moses Yaw Obeng (deceased) did
restore his name to the said
house No 36 Agogo, as a result
of the finding of the session
and upon the insistence of
Salome Nketia;
(9). Whether or not the
session’s ruling of 4 April 1983
after the death of the said
Moses Yaw Obeng and the
defendant’s subsequent aseda
were binding on the defendant;
(10). Any other issue or issues
arising from the pleadings.”
On 11/6/90 Lartey J dismissed
the plaintiff’s claim and
entered judgment for the
defendant’s counterclaim for a
declaration that the house in
dispute was the self-acquired
property of the deceased Moses
Yaw Obeng and title to and
possession of the house in
favour of the defendant and her
children. It is against that
judgment that the plaintiff now
appeals to this court. The
plaintiff contends: (a) that the
judgment is against the weight
of evidence, (b) that the
learned judge erred by putting
weight on the rent receipts as
title of Obeng’s (deceased)
house.
In his additional grounds of
appeal, the plaintiff identified
in grounds (c) (d) and (e) the
parts of the judgment that the
judge erred. To fully appreciate
the submissions of counsel, it
would be pertinent to refer to
the matters at which his
submissions were directed. The
issues raised in the court
below, and argued in this
appeal, may be conveniently
dealt with in succession.
The acquisition of the plot on
which house No 36 was built.
The plaintiff’s evidence was
that the plot was acquired by
Madam Nketia and her sister,
Salome Obenewaah, and that the
deceased being the eldest male
child the property was acquired
in his name. It is significant
to note that of the three
witnesses called by the
plaintiff none testified as
regards the acquisition of the
property within their personal
knowledge. The witnesses’
evidence sought to prove the
substance of a settlement of a
dispute concerning the house and
in which the deceased Moses Yaw
Obeng and his mother Abena
Nketia were the parties. This
took place long before the death
of Moses Yaw Obeng. The
plaintiff’s evidence was that
when Madam Salome Nketia got to
know that the deceased had
transferred the ownership of the
disputed house to his son in the
records of the Ashanti Akim
District Council, she lodged a
complaint with the session
(hereinafter called the “1st
session”) of the Agogo
Presbyterian Church. He further
testified that the late Obeng
having admitted that he was
wrong, apologised to his mother
for giving the “family house to
his wife and children.” Moses
Yaw Obeng therefore promised to
cancel the son’s name from the
records and restore his name as
the owner of house No 36. It is
common cause between the parties
that Moses Yaw Obeng did restore
his name to the records of the
council. The plaintiff who gave
this evidence admitted that it
was his brother, Moses Obeng,
who informed him later of the
proceedings at the session. His
evidence was therefore
admissible hearsay, if the court
believed that indeed it was
Moses Obeng who passed on the
information to him. PW1 was the
pastor for Agogo Presbyterian
Church when Moses Yaw Obeng
died. He was not at Agogo when
the 1st Session heard the
alleged complaint of Madam
Salome Nketia. His evidence was
that sometime after the death of
Obeng his will which he had
lodged with the Mission was
read. It was then that the
family raised the objection to
the devise of house No 36 to the
defendant and her children on
the grounds that it was family
property. It was when the 2nd
Session at Kumasi met to resolve
the issue that PW1 was told of
the earlier proceedings before
the 1st Session at which Moses
Obeng was alleged to have
admitted that the property was
family property. Thus, PW1 had
no personal knowledge of the
matters that were raised at the
1st Session nor the conclusions
of its proceedings.
Commenting on the evidence of
PW1 and PW2 the judge said:
“There is nothing in the
evidence of this key witness,
PW2, that the late Moses Yaw
Obeng apologised to all present.
It will at this stage be seen
that so far the plaintiff and
his two witnesses have failed to
produce any strong evidence to
prove that the disputed house is
the family property of the
plaintiff.”
I think in the light of the
evidence of the defendant and
her witness, DW1, whatever
weight that could presumably be
attached to the evidence in the
plaintiff’s case completely
dissipated. The defendant and
her witness were present at the
meeting of the 1st Session. They
were assertive that the
complaint was rather lodged by
the deceased Moses Obeng.
The gist of the deceased’s
complaint, according to the
defendant, was that his sisters
were not on good terms with his
wife, the defendant. The
deceased therefore appealed to
the session to resolve the
misunderstanding. The defendant
further said that when the
matter was raised, Madam Nketia
informed the session that the
cause of the misunderstanding
was the fact that Moses Yaw
Obeng had transferred the
ownership of the disputed house
to his son. The deceased then
promised to restore his name in
the records of the Council in
place of that of his son.
As regards what was said by
Madam Nketia, at the 1st Session
the defendant told the court
that she said:
“... my husband had put the name
of his son on the plot and that
she (Nketia) knew that she was
living in her son’s (my
husband’s) house and that she
did not know that she was living
in her grandson’s house. She
said she was not happy with the
way her grandson’s name had been
put on the house. Mame Nketia
said if my husband had given the
house to his son, she would
accept it. But my husband should
find a place for his sisters.”
I do not think I offend any
sensibilities by saying that the
reaction of Madam Nketia as
testified to by the defendant is
quite conceivable and plausible.
The notion that the property of
a member of the family vested in
his family upon his death to the
exclusion of his widow and
children was a view faithfully
held in the Akan matrilineal
communities, of course, until
the making of the Intestate
Succession Law 1985 (PNDCL 111).
Thus, were it even established
that Madam Nketia protested that
the disputed house was family
property, I would hold, on the
evidence, that it was purely an
anticipatory claim, contingent
upon the death of her son Moses
Yaw Obeng.
DW1, Yaw Antwi Poakwa was at the
time of the 1st Session a
head-teacher and catechist of
the Presbyterian Church, Agogo.
He was also a clerk of the
session. The witness who at the
time of the trial was a district
magistrate Grade II, confirmed
that it was the late Moses Yaw
Obeng who lodged a complaint to
the session of the Presbyterian
Church Agogo. Yaw Obeng wanted
the session to settle a
misunderstanding between his
wife and children on the one
part and his relatives who lived
with them in the disputed house.
He said:
“as the clerk I took down rough
notes of what transpired. I sent
the notes home with the view of
transcribing same in the session
minutes book. After writing the
heading something in the nature
of an emergency cropped up so I
could not continue the full
proceedings.”
He tendered what he had written
down as exhibit 3. First, it
shows the tail end of an earlier
recording of a case and signed
by the witness after the legend
“Recorded by.” After this entry
is the following record:
“MINUTES OF THE SESSION HELD
ON MONDAY
25 DECEMBER AT THE SESSION ROOM
An arbitration between Op. Moses
Obeng, Senior Presbyter, his
wife and children on the one
part and Alice Nyarko and her
sisters and mother – relatives
on the other side.”
The authenticity of exhibit 3 is
beyond dispute. It does not only
contain a record of the
complaint of Moses Obeng but
also the folio number of the
record book, though not clearly
decipherable, and in addition
the concluding record of an
earlier short prayer. The
identity of the parties, the
complainant, his wife and
children as against his
relatives, confirms the
testimony of DW1, Poakwa, the
recorder.
On the evidence before the
court, the trial judge was right
in preferring the testimony of
the defendant and her witness to
that of the plaintiff. He was
not satisfied that the plaintiff
had discharged the burden on
that issue.
The second session held at
Kumasi
When Moses Obeng died his will,
which he had earlier lodged with
the Presbyterian Mission, was
read at the Mission House at
Kumasi. When the devise of house
No 36 to his wife (the
defendant) and her children was
read, the family raised an
objection to the devise on the
ground that that house was
family property. The session
then purported to resolve the
matter and decided that house No
36 which the testator had
devised to his wife and
children, should go to the
family and that the wife and
children should take house No
558 which the testator had
devised to members of his
family.
I do not find it a useful
exercise to comment on the
evidence in detail. What the
Mission purported to do was
illegal; it amounted to
intermeddling in the estate of
the testator. If the family
challenged that devise, their
legitimate course was to pursue
their claim in the courts.
Whatever decision was taken at
the Mission was therefore null
and void and of no effect
Acquisition of the disputed
house.
As regards the main issue of the
acquisition of the disputed
house, the judge found that the
plaintiff’s evidence fell short
of discharging the burden he
assumed. The plaintiff’s
evidence was that the plot on
which the house was built was
acquired by two sisters, Abena
Nketia and the late Amma
Obenewaah, who were at the time
of acquisition members of the
Presbyterian Church. His
evidence was that the late Moses
Obeng being the elder son of the
two sisters, the plot was
acquired in his name. Plaintiff
said that the late Moses Obeng
constructed three rooms on the
plot and Alfred Kwabena Obeng
also put up two rooms on the
land.
The defendant on the other had
maintained that the plot was
acquired by her late husband
Moses Obeng from the
Presbyterian Church. It was in
evidence that Moses Obeng was a
member of the Presbyterian
Church when he acquired the
plot. It is relevant to note
that the plaintiff’s case was
that the two sisters acquired
the plot from a chief called
Kenkensaw in 1926 or 1928. PW1,
a reverend minister of the
church, who was in charge of the
church at Agogo at the time
Moses Obeng was alive, told the
court that the house was
situated on the property of the
Mission, and, more
significantly, that before a
plot was allocated to a person
he should be a member of the
church. In the light of this
evidence from the plaintiff’s
own witness, it is thus clear
that the plaintiff’s evidence
that the two sisters acquired
the plot from chief Kenkensaw
cannot be true, for the plot
being part of the Mission’s
property could only have been
acquired from the Mission. The
defendant’s claim that her
husband, as a member of the
church, acquired the plot from
the Mission was the truth.
The defendant’s evidence even in
cold print has all the hallmarks
of reliability. Having
established how the husband
acquired the plot, she further
testified as to how the husband
put up the buildings or rooms on
the plot and the circumstances
which brought each member of the
family to live with them, and
with the consent or permission
of Moses Obeng. For some 60
years until his death Moses Yaw
Obeng was the owner of the house
and let out some of the rooms to
tenants. The plaintiff who also
testified in proof of the title
of the family did not obviously
impress the trial judge. He
never lived in the disputed
house and he acknowledged that
the defendant, who was married
when she was very young, lived
with the husband in the house
until his death on 24 January
1983.
Counsel for the plaintiff
submitted that the trial judge
erred when he placed more weight
on the evidence of the defendant
than that of the plaintiff. I do
not see any merit in this
contention. The trial judge was
perfectly entitled to prefer the
defendant’s evidence to that of
the plaintiff. The defendant’s
evidence was on the face of the
record more weighty and
convincing than that of the
plaintiff; it tilted the
latter’s claim out of
significance. Counsel further
contended that the judge erred
in discrediting the plaintiff’s
case by minor inconsistencies in
his evidence. Minor
inconsistencies, though
individually colourless, may
cumulatively discredit the claim
of the proponent of the
evidence, as indeed it did to
the case of the plaintiff. The
finding of the trial judge that
the cumulative effect of these
inconsistencies weakened the
merit of the plaintiff’s case
cannot be faulted.
The judgment of a trial court is
presumptively right until that
presumption is displaced by the
appellant. In the instant case,
I am not prepared to say that
the plaintiff has demonstrated
that the conclusion of the court
was not supported by the
evidence. I have examined the
evidence on record and the
findings of the trial judge. It
seems to me that the findings
were supported by the evidence
and it is my duty therefore to
defer to the judgment of the
trial judge. I would accordingly
dismiss the appeal and affirm
judgment of the lower court
dated 11 June 1990.
Appeal dismissed.
Kizito Beyuo, Legal Practitioner
|
