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JUDGMENT
ASARE KORANG J.A.
This is an appeal
against the judgment of the Circuit Court, Tarkwa dated
24th February, 1997 wherein the learned Circuit judge
entered judgment in favour of the plaintiff/respondent
[hereinafter described as the Respondent], on his claim
and dismissed the counterclaim of the
Defendant/Appellant [hereinafter called the Appellant].
In the court below, the
respondent sued for himself and the children of the late
Henry Francis Burns-Blisseth for a declaration of
ownership of House No. MS1 situate on main street
Tarkwa, possession thereof and perpetual injunction.
In her Statement of
Defence, the appellant counterclaimed against the
Respondent for a declaration that the house in dispute
is family property belonging to the Appellant's family.
In his statement of
claim as amended, the Respondent averred that his
grandfather was one Francis Burns-Blissett, a Sierra
Leonean national who came to the then Gold Coast, now
Ghana and worked with the Gold Coast Railway
Corporation.
The late Francis
Burns-Blissett married one Madam Ekua Duku, a Ghanaian
and they had two children, namely Henry Francis Burns
Blissett, the Respondent's father, and Arthur Roland
Blissett.
In the course of his
work Francis Burns-Blissett, respondent's grandfather,
died in a rail accident and compensation arising out of
the accident was paid to his widow Madam Ekua Duku who
used some of it to put up a building Numbered MS.1 at
Tarkwa.
Madam Ekua Doku also
owned other houses No. TB,38 on Padmore Road, Tarkwa and
another along CYANIDE Road, Tarkwa.
When the Respondent’s
paternal uncle, Arthur Roland Blissett died, and during
his final funeral rites in August, 1976, Madam Ekua Duku
informed members of her family that in the event of her
death the building on the CYANIDE road and the other
numbered MS. 1, should be inherited by her children and
grandchildren and House No. TB.38 which she built from
her own resources should be occupied by members of her
family.
In November, 1976, soon
after the respondent's paternal uncle passed away, Madam
Ekua Duku also died.
Just as respondent's
father, Henry Francis Blissett was preparing to perform
the funeral rites of Madam Ekua Duku scheduled for
March, 1977, he also died suddenly on 8th November,
1977.
After the funeral of
the respondent's father and Madam Ekua Duku had been
performed, a Fire Insurance policy on House No.MS.1
executed in 1972 between the State Insurance Company and
Madam Ekua Duku was discovered by respondent. Also
discovered by respondent was an affidavit sworn to by
Madam Ekua Duku transferring her interest as owner in
House Nos. T.B. 38, MS.1 and Plot Nos. 3 and 4 Cyanide
Road to her two sons, Messrs Henry F. Blissett and
Arthur Roland Blissett and her grandchildren by her two
sons begotten.
According to the
Respondent, the family of Madam Ekua Duku took advantage
of the sudden death of Henry Francis Blissett and
assumed control over all the buildings.
Later the family gave
the building along the CYANIDE road to the children of
Arthur Roland Blissett. The Respondent and her siblings
got nothing. They were completely ignored.
It was contended by the
Respondent that since the family of Madam Ekua Duku is
now occupying House No. TB38, it was only fair that he
[Respondent] and his siblings be given the other house
No. MS.1 by the family.
The story of the
appellant was that House No. MS.1 was family property
constructed through the joint efforts of Ebusuapanyin
Atta Boadi, Efua Nyaa, Kwesi Amissah and Nyaa Ekua, the
said Nyaa Ekua being the same person called Madam Ekua
Duku, the respondent's grandmother.
The appellant stated
that the Respondent has no stake whatsoever in House No.
MS.1 which is family property and that when the
appellant's predecessors learnt of attempts by Madam
Ekua Duku alias Nyaa Ekua to transfer ownership of the
disputed house to his two sons, they protested
vehemently to some elders who settled the matter in
favour of the family.
At the time this matter
came up for hearing, the evidence disclosed that the
elders mentioned as having settled the matter had all
died.
It was pleaded by the
appellant in paragraph 4 of her Statement of Defence and
Counterclaim that the Respondent was estopped by conduct
and acquiescence from denying that the house in dispute
was family property.
In his judgment, the
learned trial judge dismissed the appellant's
counterclaim and upheld the respondent's claim and
declared that the Respondent and his brothers and
sisters should take possession of House No. MS.1, they
being owners of that house. The Appellant was also
restrained from interfering with the Respondent's title
to and possession of the said house.
The learned trial judge
made findings of fact and arrived at conclusions of law
based on the five issues set down to be heard and
determined and the evidence led before him.
Those issues were as
follows:—
"(a) Whether or not
House No. MS.1 Main Street, Tarkwa was built with the
proceeds of compensation for Francis Burns Blissett
(deceased)
(b) Whether or not the
house in dispute is family property.
(c) Whether or not the
plaintiff or the Defendant is [sic] estopped from making
their respective claims.
(d) Whether or not the
Plaintiff is entitled to his claim.
(e) Whether or not
Defendant is entitled to her counterclaim."
The trial judge
resolved all these issues in favour of the Respondent.
For instance on issue [a], the trial judge observed that
the only evidence given on it came from the respondent
who said his grandmother Nyaa Ekua was the source of his
information.
The learned judge took
the view that the respondent's evidence was hearsay but
it was admissible as an exception to the hearsay rule
under Section 123 [2] [a] of the Evidence Decree, 1975
[NRCD.323], the side note of which reads:
On the same issue, the
trial judge stated that whether compensation money was
owed by Nyaa Ekua to build House No. MS.1 was an issue
whose resolution was dependent on other available
durative evidence.
And as there was
evidence on record, accepted by the parties that Nyaa
Ekua built House No. TB.38 before she put up the house
in dispute No. MS.1, the fact was indisputable that Nyaa
Ekua was capable of putting up House No. MS 1.
The trial judge also
expressed the opinion that since Exhibits 'A' and 'S',
respectively the receipt for the purchase of the land on
which House No. MS.1 was built and the Indenture on the
land were prepared in the name Nyaa Ekua those exhibits
speak to the fact that the land was purchased by Nyaa
Ekua in her personal capacity.
Reference was also made
by the trial judge to the evidence of the appellant that
when the principal members of Nyaa Ekua's family
discovered that she had made an affidavit [Exhibit 'F']
claiming sole ownership of House Nos. MS.1, TB.38 and
plots Nos. 3 and 4 she was summoned for an arbitration
[or settlement] by members of her family and found
liable.
Regarding this piece of
evidence, the trial judge said if a settlement actually
took place then those who claimed joint ownership of
House No. MS.1 with Nyaa Ekua should out of prudence,
have retrieved all the copies of Exhibit 'F' which were
deposited with the Tarkwa/Abosso Urban council, the PWD
and the Tarkwa Stool land Administration so that Exhibit
'F' was either destroyed or rendered ineffective. That
this was not done by those who allegedly jointly built
the disputed house with Nyaa Ekua, two of whom on the
evidence namely Atta Buadu and Kwasi Amissah, were
literate, showed that House No. MS. 1 like the other
houses were solely built and owned by Nyaa Ekua.
When the learned trial
judge came to consider the issue whether the house in
dispute was family property or not, he stated that Nyaa
Ekua made a customary gift inter vivos of the disputed
house to her sons and their children and gave written
expression to the gift so made in paragraphs 2 and 3 of
Exhibit 'F' which was an affidavit prepared after a
customary grant and on the principle emaciated in AWUAH
vrs. ADUTU [1987-88] GLR. Exhibit 'F' was only
documentary evidence of the grant and was not a
conveyance or instrument transferring title to land so
as to make it registrable under the Land Registry Act.
1962 [Act. 124].
It was also held by the
trial judge as a matter of law that having regard to the
evidence of the plaintiff that the intention of Nyaa
Akua clearly expressed and communicated by her was that
"after her death, the houses should be given to her sons
and their children but House No. TB.38 should be taken
by members of her family", the grants made by Nyaa Ekua
were ambulatory and constituted an oral customary Will
and not a gift intervivos.
The learned trial judge
also found as a fact that Atta Buadee and Akoma Aso,
being the head and a member respectively of Nyaa Ekua's
family swore to an affidavit dated 4th August, 1978
vesting some of the houses mentioned in this action in
the children of Arthur Roland Blissett, this affidavit
having been annexed to a motion for default judgment
filed by the Respondent on 15th august sic, 1994.
In the vesting
affidavit sworn to by Atta Buadee and Akoma Aso, the
learned judge found that even though members of Nyaa
Ekua's family purported to distribute her estate
according to her wishes as stated in Exhibit 'F', they
neglected to give any portion of the properties to the
children of Henry Blissett.
In the circumstances,
the learned judge ruled that it would be equitable to
give one of the houses to the children of Henry Blissett
and since the Respondent, a child of Henry Blissett was
already in occupation of House No. 1, it was convenient
to order that house be allocated to them.
On the issue whether
the Respondent was estopped by conduct or acquiescence
from making his claim, the trial judge examined the
evidence and found that the Respondent had protested
when the interest of only the children of Arthur Roland
Blissett had been taken into account in the distribution
of the estate of Nyaa Ekua by members of her family. The
trial judge denied the right of Nyaa Ekua's family to
rely on the principle of estoppel when the hands of its
members had been soiled with naked fraud in not making
any provision for the Respondent and his siblings when
Nyaa Ekue'ssic estate was being distributed.
Against this judgment
the appellant lodged the following grounds of appeal:
"[i] The learned trial
judge failed to appreciate the nature of the burden on
the Plaintiff in proving his case.
[ii] The learned judge
did not consider the defence and counterclaim of the
Defendant.
[iii] The learned trial
judge based his decision on matter completely different
from the case of the plaintiff.
The appellant later
filed three additional grounds. They are:—
"[1] The learned trial
judge erred in law when he based his decision on a
rejected document.
[2] The learned trial
judge also misdirected himself on the principles of law
involved in the case.
[3] The judgment is
against the weight of evidence.
As to the burden of
proof, the law is that the appellant having counter
claimedsic, the burden was as much on her to prove her
counterclaim as it was on the respondent to prove her
claim.
See MALM vrs.
LLUTTERODT. [1963] 1 GLRl. S.C.
And the conclusions
arrived at by the learned trial judge show that he
decided to accept the story of the respondent for which
reason he dismissed the appellant's counterclaim.
I have, I believe,
adequately given a detailed account of the decision of
the trial judge and I find nothing in his judgment
indicating that he did not consider the appellant's
defence and counterclaim.
The issues set down for
trial were amply addressed by the trial judge. While
dealing with the issue of estoppel which formed part of
the appellant's defence, the trial judge invoked section
26 of NRCD.323 and said it was not applicable against
the respondent inasmuch as he had protested when he was
denied a share in the estate of Nyaa Ekua.
Nowhere in the judgment
did I find that the trial judge based his decision on a
matter completely different from the case of the
respondent. Nor did I discover that the decision was
underpinned by a rejected document. The affidavit
attached to the appellant's application to set aside the
Respondents writ was part of the record before him and
he was entitled to refer to it and determine its effect
on the Respondent's claim and the appellant's
counterclaim,
Assuming that the grant
of the properties of the late Nyaa Ekua did not qualify
as a gift inter vivos or a customary Will, there was
other sufficient evidence in record, including the
affidavit of Atta Buadee annexed to the application to
set aside the writ at page 14 of the record in which he
acknowledged that House No. MS. 1 was owned by Francis
Herbert Burns Blissett to support the learned trial
judge's decision upholding the Respondents claim.
In the said affidavit,
Atta Buadee, who is deceased, stated in paragraphs 2 and
4 that the late F.H.B Blissett [the respondent's father]
was his brother and he [f.h.b. Blissett] was the owner
of House No. MS. 1, situate and lying at Commercial
Street, Tarkwa.
This appeal is grounded
essentially on the submission by counsel for the
appellant that on the balance of probabilities the
findings of the trial judge in support of his judgment
are not borne out by the evidence on record and that the
judge misdirected himself on the application of the law
to the facts [see CONCLUSION at page 10 of the Statement
of Appellant's case.]
Considering that
counsel for the appellant meticulously listed the issues
set down for trial in the court below and argued as a
ground of appeal that the judgment of that court was
against the weight of evidence, it was necessary for
this court on appeal to examine the totality of the
evidence on record and to determine whether it
sufficiently supports the conclusions reached by the
trial judge as have done in this case.
In AMPOMAH vrs. VOLTA
RIVER AUTHORITY [1989-90] 2 GLR.28, the Court of Appeal
held that:
"Where an appellant
charged that the judgment of the Court below was against
the weight of evidence, there was a presumption that the
judgment of the court below on the facts was correct.
The appellant in such a case assumed the burden of
showing from the evidence on record that the judgment
was against the weight of evidence."
See also the cases of
KOJO II vrs. BONSIE [1953] 14 WACA 242 and In RE-KROBO
STOOL vrs. OPOKU [2000] SCGLR.374.
It was also held in
ATTIASE vrs. ABOBBTEY [1969] CC. 149 that:—
"An appellate court
should not reverse findings of fact made by a trial
court unless those findings are not supported by the
evidence and it is not for the appellate court to
substitute its opinion on the facts for the opinion of
the trial court.
The case of BONNEY vrs.
BONNEY [1992-93] GBR part 2 at page 799 also decided
that:
"where an appellant
contended that a judgment was against the weight of
evidence, he assumed the burden of showing from the
evidence that this was in fact so. The argument that an
appeal was a rehearing and therefore the appellate court
was entitled to make its own mind on the facts and draw
inferences might well be so, but an appeal court ought
not under any circumstances interfere with the findings
of fact by the trial judge except where they were
clearly shown to be wrong."
In this appeal, there
was ample evidence on record supporting the conclusions
arrived at on the facts by the trial judge.
I think the findings by
the trial judge that, the intention of Nyaa Ekua was
carried out by members of her family, albeit to the
exclusion of the children of Henry Francis Burns
Blissett; that House No. MS.1 like the other houses
mentioned in this action, was solely built and owned by
Nyaa Ekua; that House No. MS.1 was not jointly
constructed by Nyaa Ekua and other members of the family
and was therefore not family property; That the doctrine
of taches and acquiescence in no way affected the
conduct of the respondent and that it was rather the
appellant who was estopped from denying the interest of
the respondent in House No. MS.1, Tarkwa and that this
litigation was taken because of omissions or errors on
the part of the predecessors of the parties, are all
conclusions based on the evidence and I am unable to
discern any compelling reasons why those findings and
conclusions should be disturbed or overturned.
In the circumstances,
the judgment of the trial Court is affirmed and this
appeal dismissed.
(SGD.)
A. ASARE KORANG
JUSTICE OF APPEAL
OMARI-SASU, J.A.
I agree.
K. OMARI-SASU
JUSTICE OF APPEAL
ANINAKWAH, J.A.
I also agree
R.T. ANINAKWA
JUSTICE OF APPEAL
COUNSEL
Albert Adaare for
Baafour Dwumoh for Appellant
Felix Kwabi for Fred
Awuah for Respondent. |
