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Property –
Title to land and building -
Order of perpetual injunction -
Recovery of possession -
Statutory Declaration. – Whether
or not defendants are entitled
to evict the plaintiff from the
house - Whether or not the
Plaintiff shall give vacant
possession of the said house -
Whether or not the plaintiff
indeed made some contribution to
the construction of the disputed
house - Whether or not Statutory
Declaration was rightly rejected
on grounds that the Plaintiff
and 1st Defendant
were not signatories was
therefore erroneous in law.
HEADNOTES
The Plaintiff
is an African American now
resident in Ghana, Ankaful, near
Cape Coast The Defendants, are
husband and wife with the 1st
Defendant being a Traditional
Ruler in Elmina and both also
reside in the same house as the
Plaintiff The plaintiff visited
Ghana in or about 1988, met the
1st defendant and
they subsequently became friends
with the latter introducing the
Plaintiff to his wife the 2nd
defendant. This friendship grew
in leaps and bounds with the
plaintiff accepting an
invitation to lodge and reside
with the defendants anytime she
visited Ghana It must be noted
that, the Defendants, were by
then residing in rented premises
and the Plaintiff had made it
known to the defendants that she
had planned to relocate to Ghana
and make it her home.Plaintiff
thereafter resided with the
Defendants anytime she visited
Ghana and with the passage of
time the Plaintiff and 1st
defendant fell in love.
According to the facts on
record, the 1st
defendant then proposed to marry
the plaintiff at the Cape Coast
Municipal Assembly. Even
though this marriage ceremony
never took place, the
relationship between the parties
grew stronger with the 2nd
defendant not showing any signs
of rivalry and jealousy as women
are by nature bound to show
According to the plaintiff, she
was convinced by the defendants
to provide funds for the
construction of a house on a
vacant plot of land belonging to
the defendants. The plaintiff
obliged and appears to have
contributed substantially to the
construction of the house on
this land. When the house
was barely completed, the
plaintiff moved into occupation
later followed by defendants
with the plaintiff virtually
occupying the first floor of the
house and the defendants the
ground floor. Even though
the defendants dispute the
substantial contributions of the
plaintiff towards the
construction of the house, they
did not take steps to prevent
the plaintiff from either
occupying the house altogether
or the almost 50% sharing of the
occupancy. The Plaintiff
later brought her daughter from
the United States of America to
reside with the defendant’s in
Ghana and provided a bus which
was run commercially by the 1st
defendant who was reputed to
have rendered accounts to the
plaintiff anytime she returned
from the United States of
America to Ghana. Matters soon
got out of hand and it became
increasingly clear that the
plaintiff’s family and the
defendant’s family cannot
cohabit together in peace in the
same premises, With series of
skirmishes, quarrels and
criminal acts which often time
were reported to the police, the
plaintiff on the 24th
day of November, 1997 issued a
writ at the High Court, Cape
Coast against the defendants,
the High Court gave Judgment in
favour of defendant As was to be
expected, the plaintiff filed an
appeal against this High Court
judgment to the Court of Appeal
which was dismissed
HELD
For the above
reasons, it is our considered
opinion that the Statutory
Declaration which was rejected
by the learned trial Judge when
the plaintiff sought to tender
it into evidence was wrongly
rejected. We accordingly admit
the said Statutory Declaration
into evidence, for the purposes
of confirming the contents of
the document as the truth of the
state of affairs between the 2nd
defendant and the plaintiff.
What should be noted is that,
the Statutory Declaration is not
being accepted as a document
conferring title on the
plaintiff or 2nd
defendant, but one evidencing
the statement of the facts
therein contained. Reasons that
the document was not stamped and
or registered, such as was
proffered by the learned trial
Judge were really not germane to
the circumstances of this case.
On the evidence, it is clear
that the findings of fact by the
learned trial Judge and
concurred in by the Court of
Appeal are unsupported by the
evidence on record. Under the
circumstances the judgment of
the Court of Appeal dated 14th
July, 2006 and by necessary
implication, that of the High
Court, dated 23rd
August, 2002 are hereby set
aside. Instead, the appeal
herein by the plaintiff succeeds
in part as follows:-Plaintiff’s
share in H/No. AV. 31/3 Ankaful
Cape Coast is put at 50%. This
is because this court considered
her contributions as substantial
coupled with the customised
completion she did on the first
floor where she lives. The
defendants are entitled to 50%
share or interest in this house
AV 31/3 Ankaful.In order for
lasting peace to prevail between
the parties in the house, it is
ordered that, the house, the
subject matter of this appeal
shall be valued by the Land
Valuation Board and the parties
herein shall bear the cost of
the valuation equally. The
defendants herein who are also
entitled to 50% interest in the
said property are given the
first option to buy the interest
of the plaintiff, within six (6)
months from the date of
judgment, that failing the
plaintiff shall also be given
the next option, failing which
the offer will be made in the
open market. It is further
ordered that until these are
completed and the plaintiff paid
off to enable her relocate,
the defendants and their agents
are restrained from
interfering with the quiet,
peaceful enjoyment and the
occupation of the plaintiff in
her portion of this H/No. AV
31/3, Ankaful. The first
defendant to take steps to
convey to the plaintiff the
plots of land the plaintiff paid
him to purchase for her to wit
land at Ankaful and Elimina,
within six (6) months of the
date of judgment. The
Court below that is the trial
High Court at Cape Coast to
carry out these directives
STATUTES
REFERRED TO IN JUDGMENT
Evidence
decree (1975) NRCD 323.
Supreme Court
Rules 1996 C. I. 16
Statutory
Declarations Act, 1971 Act 389
CASES
REFERRED TO IN JUDGMENT
Assemblies of
God Church, Ghana vrs Rev.
Ransford Obeng & 3 others. Suit
No. CA/J4/7/09 dated 3rd
February 2010
Achoro vrs
Akanfela [1996-97] SCGLR 209
Akuffo-Addo
vrs Cathline [1992] 1 GLR 377
Thomas vrs
Thomas [1947] AER 582
Powell vrs
Streatham Manor Home [1935] AC
243 at 250
Doku vrs Doku
[1992-93] GBR 367
Koglex Ltd.
(No. 2) vrs Field [2000] SCGLR
175
Jass Co. Ltd.
vrs Appau [2009] SCGLR 26 5
Awuku Sao vrs
Ghana Supply Co. Ltd. [2009]
SCGLR 710
Fosua and
Adu-Poku vrs Dufie (deceased) &
Adu Poku Mensah 2009 SCGLR 310
Mensah vrs
Mensah [1998 – 99] SCGLR 350
Boafo vrs
Boafo [2005-2006] SCGLR 705
Tuakwa vrs
Bosom [2001-2002] SCGLR 61.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DOTSE, JSC:
COUNSEL
EBOW QUASHIE
FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
KWABENA OWUSU
FOR THE
DEFENDANTS/RESPONDENTS/RESPONDENTS.
J U D G M E N
T
______________________________________________________________________
DOTSE, JSC:
INTRODUCTION
The parties
in this case began their
relationships on a good note as
friends, presumably later as
lovers and lately as bitter
enemies, who are residing in the
same house, albeit in different
apartments.
When a
similar set of facts emerged in
the unreported Sekondi High
Court case of suit No. TS 2/2000
intituled I.B. Clement –
Plaintiff vrs Andrews Annietey –
Defendant dated 4th
June, 2003 I quoted the
following passage from William
Shakespeare’s Book, Julius
Caesar Act IV, Scene 3, to
depict the circumstances and
this reads as follows:-
“There is a tide in the
affairs of men. Which taken at
the floods, leads on to fortune;
omitted, all the voyage of their
life, is bound in shallows, and
in miseries. On such
a full sea are we now afloat; we
must take the current when it
serves or lose our ventures.”
FACTS:
Even though
the facts of this case admit of
no serious controversies, in
view of the concurring findings
of fact made by the trial High
Court and the first appellate
court, to wit the Court of
Appeal, we will set out the
facts in some detail in order to
set the records straight.
The
Plaintiff/Appellant/Appellant,
hereafter referred to as the
Plaintiff is an African American
now resident in Ghana, Ankaful,
near Cape Coast in H/No. AV.31/3
to be precise.
The
Defendants/Respondents/Respondents
hereafter referred to as
Defendants, are husband and wife
with the 1st
Defendant being a Traditional
Ruler in Elmina and both also
reside in the same house as the
Plaintiff.
The plaintiff
visited Ghana in or about 1988,
met the 1st defendant
and they subsequently became
friends with the latter
introducing the Plaintiff to his
wife the 2nd
defendant. This friendship grew
in leaps and bounds with the
plaintiff accepting an
invitation to lodge and reside
with the defendants anytime she
visited Ghana thereafter.
It must be
noted that, the Defendants, were
by then residing in rented
premises and the Plaintiff had
made it known to the defendants
that she had planned to relocate
to Ghana and make it her home.
Plaintiff
thereafter resided with the
Defendants anytime she visited
Ghana and with the passage of
time the Plaintiff and 1st
defendant fell in love.
According to the facts on
record, the 1st
defendant then proposed to marry
the plaintiff at the Cape Coast
Municipal Assembly.
Even though
this marriage ceremony never
took place, the relationship
between the parties grew
stronger with the 2nd
defendant not showing any signs
of rivalry and jealousy as women
are by nature bound to show.
According to
the plaintiff, she was convinced
by the defendants to provide
funds for the construction of a
house on a vacant plot of land
belonging to the defendants. The
plaintiff obliged and appears to
have contributed substantially
to the construction of the house
on this land.
When the
house was barely completed, the
plaintiff moved into occupation
later followed by defendants
with the plaintiff virtually
occupying the first floor of the
house and the defendants the
ground floor.
Even though
the defendants dispute the
substantial contributions of the
plaintiff towards the
construction of the house, they
did not take steps to prevent
the plaintiff from either
occupying the house altogether
or the almost 50% sharing of the
occupancy.
The Plaintiff
later brought her daughter from
the United States of America to
reside with the defendant’s in
Ghana and provided a bus which
was run commercially by the 1st
defendant who was reputed to
have rendered accounts to the
plaintiff anytime she returned
from the United States of
America to Ghana.
Matters soon
got out of hand and it became
increasingly clear that the
plaintiff’s family and the
defendant’s family cannot
cohabit together in peace in the
same premises.
With series
of skirmishes, quarrels and
criminal acts which often time
were reported to the police, the
plaintiff on the 24th
day of November, 1997 issued a
writ at the High Court, Cape
Coast against the defendants,
claiming the following reliefs:-
“The plaintiffs claims against
the defendants jointly and
severally is for
a. An order directed at
the defendants compelling them
to convey
the land on which H/No. AV.
31/3, Ankaful, Cape Coast is
standing to the plaintiff.
b. An order of perpetual
injunction directed at the
defendants
restraining them by
themselves, their dependants,
agents and
persons claiming title through
them from interfering with
plaintiffs possession of H/No AV
31/3, Ankaful, Cape Coast.
c. Any order that the
court may deem fit on the
justice of
plaintiff’s case.”
The
Defendants entered appearance
and defended the suit by putting
in a counterclaim in the
following terms:-
“The
defendants repeat the averments
contained in paragraph 1-35 of
the statement of Defence and
counterclaim against the
plaintiff as follows:-
a. A declaration that
title to H/No. AV. 31/3 Ankaful,
Cape Coast is
vested in the
defendants.
b. An order for recovery
of possession of the portion of
the
premises occupied by
the plaintiff.
c. An order of perpetual
injunction restraining the
plaintiff her
agents/servants/relatives
assigns from in anyway
interfering
with the defendant’s title to
the said property”.
The case then
proceeded apace, with the issues
being set down for trial, both
parties testified and called
witnesses.
JUDGMENT OF
THE HIGH COURT
On the 23rd
day of August, 2002, the High
Court, Cape Coast presided over
by Tweneboa-Kodua J as he then
was, delivered judgment in the
case, and stated in part as
follows:
“The principle is well
settled, he who owns the land,
owns whatever is on it, for
guidguid plantatur solo solo
cedit (what is attached to the
land is part of the land). The
defendant’s ownership of the
house is not in doubt,
notwithstanding the plaintiff’s
contribution, ill-defined except
as acknowledged in pleadings and
sworn testimony by the
defendants set against the
foregoing, the defendant’s
counterclaim must succeed and it
is accordingly granted as
follows:
a. A declaration that
title to House No. AV. 31/3
Ankaful, Cape
Coast is vested in
the defendants.
b. An order of recovery
of possession of a portion of
the premises
occupied by the
plaintiff.
c. An order of perpetual
injunction restraining the
plaintiff, her
agents, servants,
relatives, assigns from in
anyway interfering
with the defendant’s title to
the said property.
The defendants are entitled to
evict the plaintiff from the
House No. AV 31/3,
Ankaful, Cape Coast and the
Plaintiff shall give vacant
possession of the
said house thirty (30) clear
days after this day, that is
to say on 23 September, 2002.
That to
my mind is not the end of the
matter. The court has been
invited in limb (c) of the
plaintiff’s claim to make
“any order that the court may
deem fit on the justice of the
plaintiff’s case”. In her
misguided anxiety and dream to
own a house in Ghana, the
plaintiff indeed made some
contribution to the construction
of the disputed house. The
defendants have admitted some
contributions she made by way of
assistance. As demonstrated in
their Solicitor’s address, the
defendants do not begrudge her
being adjudged to recover her
contribution, they would not, it
was suggested, resent paying the
monetary equivalent of the
assistance received”.
“It is reasonable on the justice
of the plaintiff’s case” to
order the defendants to return
the plaintiffs assistance or
contribution .
The Registrar of this Court,
with the assistance of the
Regional Auditor of the Judicial
Service, Cape Coast, shall
assess the contribution in
monetary terms for recovery by
the plaintiff within 30 days
from this day.
The parties
shall bear their own costs and I
therefore make no order as to
costs”
As was to be
expected, the plaintiff filed an
appeal against this High Court
judgment to the Court of Appeal
on 5th September,
2002.
JUDGMENT OF
COURT OF APPEAL
The Court of
Appeal on the 14th
day of July, 2006, by a
unanimous decision dismissed the
appeal filed by the plaintiff
herein in the following terms:-
“In the instant case, the
learned trial judge found that
the plaintiff did not
contribute substantially to the
construction of the house in
dispute and that
whatever assistance she rendered
in the course of the
construction of the house was
insignificant. He also found
that no valid
marriage existed between the
plaintiff and the 1st
defendant. I find nothing
wrong with these findings of
fact and I will not therefore
disturb them. It is obvious
therefore that a resulting trust
in any of its forms was clearly
inapplicable in the
circumstances of this case.
In conclusion and for the
reasons given in this judgment I
find no merit in this appeal. I
will therefore dismiss it and it
is accordingly dismissed. The
judgment of the court below is
thereby affirmed.”
Feeling
naturally aggrieved and
dissatisfied with the decision
of the Court of Appeal, the
plaintiff on the 21st
day of February, 2007 sought
leave and was granted same by
the Court of Appeal to appeal to
the Supreme Court.
APPEAL TO
SUPREME COURT
Pursuant to
leave that was granted by the
Court of Appeal, the plaintiff
herein through her new
Solicitors, Messrs Cann, Quashie
and Co. on the same 21st
day of February, 2007 filed an
unbelievable 18 grounds of
appeal with the proviso that
more grounds of appeal could be
filed.
GROUNDS OF
APPEAL TO THE SUPREME COURT
It is now my
painful duty to set out
concisely the 18 grounds of
appeal.
i.
The judgment is against the
weight of evidence.
ii. That both the trial
Court and the Court of Appeal
failed to
adequately or at all
to consider the case of the
Plaintiff.
iii. The court of Appeal
misconstrued the imports of
Exhibits 12,
12A & 12E with regard to the
construction of the House.
iv. The Court of Appeal
failed to consider the
relationship (albeit
erroneously) held by
the Appellant that she and 1st
Defendant/Respondent
were “husband” and “wife” as a
result
of which she left the
documentation of the
construction of the
house
to him.
v. Since the relief
claimed against the
Defendants/Respondents
was jointly and
severally the statutory
declaration by the 2nd
Defendant which was against her
interest ought to have been
admitted and that it’s rejection
has occasioned miscarriage of
justice.
vi. The holding that the
Plaintiff could not take
advantage of a
Statutory
Declaration of which she is not
a party is not
supported by law having regard
to the fact that a Statutory
Declaration is NOT an agreement
between parties but a
unilateral solemn declaration by
whoever is the declarant.
vii. That the holding that
the 1st Defendant not
being a signatory to
the Statutory Declaration and
thus same could not be tendered
through him is also erroneous in
law having regard to the fact
that the 1st
Defendant testified for and on
behalf of the 2nd
Defendant who was the Declarant
of the Statutory Declaration.
viii. That the consequent
conclusion by the Court of
Appeal that the
Statutory Declaration was
rightly rejected on grounds that
the
Plaintiff and 1st
Defendant were not signatories
was therefore
erroneous in law.
ix. That the rejection of
the Statutory Declaration thus
occasioned
a miscarriage of justice as its
admission would have shown the
Plaintiff’s contribution to the
construction of the house being
admitted by the Defendants.
x. Both the trial Court
and Court of Appeal failed to
appreciate
that the Appellant’s possession
and occupation of the top floor
with
American specifications and
fittings which is bigger in size
than the ground floor occupied
by the Defendants conclusively
shows
the extent and nature of the
Appellant’s interest in the
house.
xi. The Court of Appeal
failed to appreciate the
reliance of the
Appellant on the
representation by the 1st
Defendant that the
Appellant and 1st
Defendant were “man” and “wife”.
xii. The Court of Appeal
failed to appreciate that by
reason of the
Defendant’s
counterclaim, the defence of
equitable estoppels
raised by the Appellant was a
shield in protection of her
contribution towards the
construction of the house.
xiii. Both the trial Court
and the Court of Appeal erred in
delegating the quantification of
the Appellant’s contribution to
the Registrar and the Regional
Auditor of the Cape Coast High
Court having regard to the
evidence on record.
xiv. Both the trial Court
and the Court of Appeal erred in
not quantifying the so called
“insignificant” contribution by
the Appellant.
xv. The Court of Appeal
failed to recognize the issue
that an Appeal is by way of
rehearing and failed to
critically examine and
evaluate the evidence on record.
xvi. The Court of Appeal
seriously erred in law when it
concluded that the
Plaintiff failed to discharge
the burden of proof on her
in accordance with Sections 10
(1) and (2) and 11 (1) and (4)
of the Evidence decree (1975)
NRCD 323.
xvii. The both the trial
Court and Appellate Court
misapplied the law on the
burden of proof as between the
Plaintiff in relation to the
relief sought by her and
Defendants who had also
counterclaimed for a declaration
of the title to the house.
xviii. The finding that there
was no evidence that Plaintiff’s
contribution to the construction
of the house in dispute was
substantial is not supported by
the evidence on record.
xix. (Additional grounds of
Appeal will be filed upon
receipt of record of
proceedings).
CONTENTS OF
GROUNDS OF APPEAL
Rule 6 of the
Supreme Court Rules 1996 C. I.
16 deals with Notice and grounds
of appeal in the Supreme Court.
Rule 6, 2 (f) of C. I. 16
provides as follows:-
“ A notice of
civil appeal shall set forth the
grounds of appeal and shall
state
(f) the particulars of a
misdirection or an error in law,
if that is alleged”.
Rule 6 (5)
provides that the grounds of
appeal shall be set out
concisely and under distinct
heads the grounds which the
appellant intends to rely upon
at the hearing without any
argument or narrative.
Rule 6 (4) on
the other hand provides that
vague or general grounds of
appeal which do not disclose any
reasonable ground of appeal
except the general ground that
the judgment is against the
weight of evidence shall not be
permitted.
In the
instant appeal, as we have
already pointed out, the
plaintiff herein has filed no
less than 18 grounds of appeal.
We have
observed that Counsel for the
plaintiffs did not comply with
the requirements stated in Rule
6 of the Supreme Court Rules in
the formulation of the grounds
of appeal. The result has been
that, there are so many grounds
of appeal which could have been
subsumed under one broad
ground, whilst particulars of
misdirection or error of law
that is alleged will be stated
in the Notice of Appeal, instead
of setting them out as distinct
heads or separate grounds of
appeal.
It should
therefore be noted that, Counsel
who formulate grounds of appeal
for their clients, should
endeavour to comply with the
provisions of Rule 6 of the
Supreme Court Rules C. 1. 16 to
prevent unnecessary and
sometimes repetitive grounds of
appeal being filed in clear
breach of the Rules of the
Supreme Court, reference grounds
v, vi, vii, viii and ix of the
grounds of appeal which all
dealt with Statutory Declaration
which could have been subsumed
under one ground of appeal,
touching and dealing with the
issue of Statutory Declaration.
CONCURRENT
FINDINGS OF FACT
We have noted
that the Court of Appeal in
their judgment concurred in the
findings of fact made by the
learned trial Judge.
There is this
general principle of law which
has been stated and re-stated in
several decisions of this Court
that where findings of fact such
as in the instant case have been
made by a trial court and
concurred in by the first
appellate court, in this case
the Court of Appeal, then the
second appellate Court such as
this Supreme Court must be slow
in coming to different
conclusions unless it is
satisfied that there are strong
pieces of evidence on record
which are manifestly clear that
the findings of the trial court
and the first appellate court
are perverse.
This point
was re-emphasised by the Supreme
Court in the recent unanimous
unreported judgment in Suit No.
CA/J4/7/09 dated 3rd
February 2010 intituled
Assemblies of God Church, Ghana
vrs Rev. Ransford Obeng & 3
others.
The same
point had been made in the
following cases:
1. Achoro vrs Akanfela
[1996-97] SCGLR 209 holding 2
2. Akuffo-Addo vrs
Cathline [1992] 1 GLR 377 per
Osei Hurere
3. Thomas vrs Thomas
[1947] AER 582
4. Powell vrs Streatham
Manor Home [1935] AC 243 at 250
5. Doku vrs Doku
[1992-93] GBR 367
6. Koglex Ltd. (No. 2)
vrs Field [2000] SCGLR 175
7. Jass Co. Ltd. vrs
Appau [2009] SCGLR 26 5 which
deals with circumstances
justifying interference with
findings of fact by Supreme
Court
8. Awuku Sao vrs Ghana
Supply Co. Ltd. [2009] SCGLR 710
also deals with conditions
under which the Supreme Court
will interfere with findings.
There are
however a host of other
respected authorities to support
the contention that the above
principle is not a cast iron
situation which is incapable of
being departed from.
From the
reading of the cases referred to
supra and others not referred
to, it appears the rationale for
the principle is that, an
appellate court must be slow in
interfering with the findings of
fact, made by a trial court
because it is the trial Judge
alone who had the advantage of
seeing, hearing and observing
the demeanour of the parties and
the witnesses which appeared
before him. For example, if
quite apart from the facts of
the case as stated on record,
the findings of fact were
influenced or based solely on
the demeanour and credibility of
the witnesses, then it would be
manifestly unjust to vary or
depart from such findings of
fact. But then, sufficient
indication must be given in the
judgment based on the record of
proceedings to indicate the
credibility and demeanour of the
witnesses.
However,
where the findings were based on
established facts such as in the
instant case, then the appellate
court was in the same position
as the trial court and was
perfectly in a position to draw
its own inferences from the
established facts.
In Koglex
Ltd. (No. 2) vrs Field [2000]
SCGLR 175, at 176 holding 1, the
Supreme Court by a majority
decision on a review application
held that
“A
second appellate court, like the
Supreme Court, must satisfy
itself that the judgment of the
first appellate court was
justified or supported by
evidence on record. Where
there was no such evidence that
finding ought to be set aside”.
It is
therefore clear that, a second
appellate court, like this
Supreme Court can and is
entitled to depart from findings
of fact made by the trial court
and concurred in by the first
appellate court under the
following circumstances:
1. Where from the record
the findings of fact by the
trial court are clearly not
supported by evidence on record
and the reasons in support
of the findings are
unsatisfactory.
2. Where the findings of
fact by the trial court can be
seen from the record to be
either perverse or inconsistent
with the totality of evidence
led by the witnesses and the
surrounding circumstances of the
entire evidence on record.
3. Where the findings of
fact made by the trial court are
consistently inconsistent with
important documentary evidence
on record.
4. Where the first
appellate court had wrongly
applied the principle of law
in Achoro vrs Akanfela
(already referred to supra) and
other cases on the principle,
the second appellate court must
feel free to interfere with the
said findings of fact, in order
to ensure that absolute justice
is done in the case.
In the recent
unanimous decision of the
Supreme court in the case of
Fosua and Adu-Poku vrs Dufie
(deceased) & Adu Poku Mensah
2009 SCGLR 310 at 313
the court, per Ansah JSC held as
follows:-
“A second appellate court
would justifiable reverse the
judgment of a first appellate
court where the trial court
committed a fundamental error in
its findings of fact but the
first appellate court did not
detect the error but
affirmed it, and thereby
perpetuated the error. In that
situation, it becomes clear that
a miscarriage of justice had
occurred and a second appellate
court will justifiable reverse
the judgment of the first
appellate court”.
I also made
the following observations in
the Fosua and Adu Poku vrs Dufie
case referred to as follows:
“An appellate
court such as this court may
interfere with the findings of
fact of a trial court where the
latter failed properly to
evaluate the evidence or make
the proper use of the
opportunity of seeing or hearing
the witnesses at the trial or
where it has drawn wrong
conclusions from the accepted
evidence or where its findings
are shown to be perverse. It is
clear that there are cogent and
credible pieces of evidence
which this court on its own can
use to differ from the findings
of fact made by the trial court
and the first appellate court.”
In the
instant appeal, after a perusal
of the entire record and the
submissions of learned counsel
for the parties, we are of the
considered opinion that, based
on the following pieces of
evidence, the findings of fact
made by the learned trial Judge
and concurred in by the first
appellate court are not
supported by the evidence on
record and clearly perverse
having regard to the
circumstances of this case.
In evaluating
the evidence on record, we note
that the 1st
defendant testified and
recounted the circumstances
under which he met the plaintiff
on a Tour bus which he
conducted. This is what the 1st
defendant said.
“In the course of operating the
Tour company, I met the
Plaintiff on a Tour Bus
(vehicle) which has been
arranged by the said Company.”
Continuing
the 1st defendant
stated as follows:
“In the process, the
plaintiff was making the loudest
noise inviting me to sit by
her. She was sitting alone at
the rear of the bus. In the
process we chatted for sometime.
She in the process offered me
finally $70 U.S dollars.
When I arrived back home, I
informed my wife about the gift
of $70 U.S dollars from the
plaintiff. So my wife and I went
to her in the Elmina Motel to
thank her for the gift.”
It was during
this visit according to the 1st
defendant that the plaintiff and
members of her group were
invited to lunch at the rented
premises of the Defendants at
the Ramblers Cottage, at Ankaful.
The 1st
defendants stated that, whilst
at the lunch, “the plaintiff
expressed an amorous interest in
me and that apparently was a
standing joke” because as 1st
defendant put it, he was then,
and still is married to his dear
wife the 2nd
defendant.
It is clear
therefore that, the defendants
considered this gift of $70 U.S
dollars so significant and
important in 1988 that it
demanded both man and wife going
to express appreciation to the
plaintiff.
Secondly, it
is also clear that the 1st
defendant knew or had an inkling
about the amorous intentions of
the plaintiff in him from that
early stage. Any movement by
either of them from then onwards
towards each other must be
deemed to be concretising the
consummation of such an
interest.
Thereafter,
it was also very much evident
that the plaintiff and the
defendants were very close to
the extent that in 1990, the
plaintiff brought her daughter
from the United States of
America to reside with the
defendants in Ankaful.
Based on the
above background, the following
pieces of evidence when properly
evaluated would show that the
learned trial Judge made the
wrong findings of fact, which
cannot be supported.
What then are
these?
The evidence
of the plaintiff was
corroborated to a large extent
by her witnesses.
1.
PWI Abubakar Mustapha confirmed
plaintiff’s assertion that she
and the 1st defendant
procured building materials with
which the disputed house was
built. This PW1 also confirmed
the destruction of
some land crete blocks that the
1st defendant on his
own moulded before his contact
with the plaintiff. This PWI was
the person who offered to keep
the building materials of the 1st
defendant free of charge as they
were close to his house. What
must be noted is that, unlike
the plaintiff who is a
foreigner, all the witnesses
called by the plaintiff are
Ghanaians and citizens of
Ankaful or its environs. There
is no reason for them to tell
lies against the 1st
defendant.
2. PW2 - John Kweku
Eshun- Carpenter
This witness
together with his brother PW3
worked on the disputed house.
Even though an attempt was made
during cross-examination of this
witness to cast doubt on his
sanity and therefore
credibility, his evidence
remained, unshaken because of
the following:
a. His evidence was
confirmed by PW3 his brother.
b.
The evidence of the witness on
the material and relevant
pieces of evidence was not
affected by the cross-
examination. He stated thus,
“I
am talking about the work
upstairs: that one we did
carry out”
It was PW2
who first corroborated the
evidence that when they needed
to be paid for work done on the
project from 1st
defendant, they were informed by
1st defendant that
the plaintiff had travelled and
so they should wait for her.
Later, when the plaintiff
returned, the materials were
bought jointly by the plaintiff
and 1st defendant and
in some instances, payments were
made directly from the plaintiff
through 1st defendant
to them.
3. PW3 - Kwasi Obeng,
also a carpenter a brother of
PW2 corroborated the evidence
of the Plaintiff and his brother
on the record. For example, PW3
stated during evidence in chief
that even though it was 1st
defendant who handed over the
job to him, he told him the
project was for the plaintiff
who had travelled outside the
country and that money would be
made available upon his
return.
As a matter
of fact, funds started to flow
when the plaintiff returned and
PW3 testified that he was paid
by funds provided by plaintiff.
Out of
abundance of caution, let us
refer to some pieces of evidence
led by PW3 during
cross-examination:-
Q. “From whom did you
receive the payments
A. The 1st
defendant but it was the
plaintiff who gave the money to
the 1st defendant to
pay me.
Q. These payments were
made in the absence of the
plaintiff.
A. The plaintiff was
there but the 1st
payment was done behind the
plaintiff but later payments
were made in the presence of
the Plaintiff.”
Continuing
further, PW3 answered thus:-
Q. “Are you saying the
payment was made to you in the
presence of the plaintiff.
A. Yes, when the 1st
defendant paid me the plaintiff
was present.
Q. On all three occasions
the 1st defendant
paid you.
A. When we needed the
money we told the first
defendant and the 1st
defendant went to the plaintiff
to collect the money.
Q. You never saw the
plaintiff gave money to the 1st
defendant for payment to you.
A. I did see
Q. Where did you see this
A. The plaintiff brought
the money upstairs and the 1st
defendant collected the
money from the plaintiff and
paid me.”
4.
PW4 – Mrs Juliana Appiah, the
wife of the landlord of the
defendants when they were
residing in the rented apartment
at Ramblers Cottage. The
evidence of PW4 is important in
the sense that it gave an
account of the circumstances of
the defendants when they resided
in the rented premises. As a
matter of fact, it was not all
that rosy as the 1st
defendant would want this court
to believe. This explains why
they were so excited about the
gift of the $70.00 U.S dollars
to the 1st defendant
by the plaintiff.
5. EXHIBIT G
This exhibit
is a handwritten record of
programme for completion of the
house by the 1st
defendant. In it, were estimates
in U.S dollars which is the
legal tender of the plaintiff.
The only
conclusion to be drawn by this
court is that these were items
of expenditure which the 1st
defendant expected the plaintiff
to provide and pay for to
complete the house.
It is
therefore correct to infer that
once the house had been
completed and is now being
occupied, then the said items of
expenditure must have been paid
for by the plaintiff. As a
matter of fact, if the issue of
marriage which the plaintiff and
1st defendant toyed
with to the extent that marriage
forms were even collected from
the Cape Coast Municipal
Assembly, then what began as an
amorous intent had been
concretised.
Considered
from this background, the
payments and contributions by
the plaintiff towards the house
must be understood with this
idea of an intended marriage or
subsisting amorous relationship
and that explains why the
plaintiff did not produce
documentary proof other than the
handwritten document, exhibit G.
As was stated
by Atuguba JSC in the Fosua &
Adu Poku vrs Adu Poku Menash
case, already referred to supra
on page 311, where he stated as
follows:-
“Given the high evidential
potency of documentary evidence,
in the eyes of the law, the
trial Judge should have given
cogent reasons for doubting
the veracity of exhibit 2, being
the undertaking given by the
late Kwaku Poku.”
In the
instant case, it is our
considered view that the learned
trial Judge should have given
some really serious examination
and consideration to exhibit G.
If the learned trial Judge had
done that, he would have come
to an irresistible conclusion
that really the 1st
defendant depended on the
plaintiff in the construction of
this house.
6. A.G.C SHARES (ASHANTI
GOLD COMPANY SHARES)
The 1st defendant
himself in answer to a question
during cross- examination stated
as follows:-
“Before
this case came to court, the
Counsel for the plaintiff
wrote a threatening letter to
me, the effect that all legal
avenues and if need be the press
would be used to ensure that the
plaintiff received justice. I
have the letter here in my
capacity then as the Acting
President of the Traditional
Council, I weighted the
opportunity of costs or the
value of these shares as opposed
to publication of wild story
about Nana Kwesi Tandoh VII (the
1st defendant herein)
and the rationale behind
reclaiming those costs was that
such wild story by which I was
threatened were published in the
National Dailies for the
gullible readers. It was the
reason why I wrote the letters
in question. So I wrote the
letter as a result of
intimidation.”
This is
exhibit E. It is also clear that
but for the timely intervention
of learned Counsel for the
plaintiff, the 1st
defendant would have
unjustifiably held on to the
A.G.C shares which as it turned
out was paid for by the
plaintiff.
7. RESPONSIBILITY OF THE
PLAINTIFF IN UPKEEP OF THE
HOUSE
The plaintiff
testified that her intention of
coming to Ghana was to settle
in Ghana in addition to the
United States of America. It was
in pursuit of that resolve that
the plaintiff brought her
daughter to reside with the
defendants because they had
their own children. According to
the plaintiff, before her
daughter came, she purchased a
“Trotro” bus for their use. The
plaintiff continued her
evidence in chief thus:-
“So my daughter came, I took
over responsibility for food,
school fees,
clothing,
transportation, etc. So my
daughter’s presence here was to
their advantage.”
Continuing
further, the plaintiff stated as
follows:-
“At one point, I took the 2nd
defendant to America for four
months and she
saw
what I was doing and the source
of the money I was bringing”.
All the above
pieces of evidence were not
shaken during cross examination.
For example, plaintiff
reiterated her case during cross
examination that the defendants
could not pay their own bills,
and for that reason needed
assistance which she provided.
We believe
the plaintiff’s explanation on
the record of proceedings that
it was because of the marriage
she thought she had contracted
with the 1st
defendant that she did not
demand and or obtain receipts
for all that she did for the
defendants as she thought they
were all one family.
Under the
circumstances, we believe it is
correct to presume that the
plaintiff assumed she was
married to the 1st
defendant and therefore provided
all that was necessary for the
upkeep of the home, i.e.
maintenance. If therefore
assuming the 1st
defendant used his own money for
the construction of the house
which is denied, will the
plaintiff be left helpless
without any remedy in the house
built by the 1st
defendant at a time she honestly
believed she was married to the
1st defendant and
took up the upkeep of the house?
We think not. Under the
circumstances, and in line with
the decision in a number of
respected Ghanaian cases like:
1. Mensah vrs Mensah
[1998 – 99] SCGLR 350
2. Boafo vrs Boafo
[2005-2006] SCGLR 705
The
plaintiff’s contribution in
equity will be deemed as
contributions towards the house.
We shall therefore call in aid
equitable principles to give
meaning to the quest of this
court to do justice in all cases
and to all manner of persons.
8. PLAINTIFF’S
OCCUPANCY OF THE 1ST
FLOOR
From the
evidence on record, it is clear
that whilst the plaintiff alone
virtually occupied the 1st
floor save one bedroom which was
strategically reserved for the 1st
defendant, the rest of the
defendant’s family were confined
to the ground floor. Even though
the 1st defendant
gave some explanation for this
state of affairs, no critical
mind will accept such a lame
excuse. We are definitely of the
view that the occupancy of the
entire floor by the plaintiff is
another way of stamping her
authority on the building.
9. LAND TRANSACTIONS
There is also
uncontroverted evidence that the
plaintiff entrusted so much
confidence in the defendants,
especially the 1st
defendant so much so that she
virtually made him her trustee
of her properties. For example,
the plaintiff testified as to
how she paid monies to the 1st
defendant for the purchase of
lands at Ankaful, and in Elmina.
From the beginning, because the
plaintiff had confidence in the
1st defendant, she
entrusted everything in his
name. This is the confidence
that the 1st
defendant and his wife abused.
We take note of the fact that
all these facts go to explain
why the plaintiff dealt with the
defendants in absolute good
faith. This should have been
noted by the learned trial
Judge.
10. STATUTORY
DECLARATION
From the
record of proceedings, the
learned trial Judge delivered a
ruling in which she rejected the
tendering of a Statutory
Declaration made by the
plaintiff, 1st and 2nd
defendants, but executed only by
the 2nd defendant. It
must at this stage be noted that
the defendants were sued jointly
and severally and the 1st
defendant also testified on
behalf of the 2nd
defendant his wife. The 1st
defendant admitted that his wife
contacted a notary public to
prepare a document and explained
the reasons for this document as
follows:
“Q The 2nd
defendant offered the plaintiff
50% share of the
house in
dispute. I put that to you.
A. What
I know about this is that
amongst several attempts made,
as I have earlier on indicated.
Plaintiff’s Counsel had already
threatened to use the media to
embarrass myself and my wife, so
my wife indicated to me in the
interest of peace we get a
notary public to come in,
working out something to bring
peace. This was the height we
were prepared to go in order to
avoid publication of lies in the
papers, radio and on the
internet. So after all when we
realised that all that did not
make any difference, the offer
never took place. It was not
consummated, so to speak.”
Taking the
above explanation into
consideration and the Evidence
Act 1975, NRCD 323, section 25
(1) thereof which states:
“25
(1) 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.”
it is clear
and apparent that the 2nd
defendant, who on her own made a
statement voluntarily against
her own interest must be held
bound by the depositions so
contained in the Statutory
Declaration which is on page 189
of the record as a rejected
document. We must note that the
rejected Statutory Declaration
actually conforms to the
precedent set out in the
Statutory Declarations Act, 1971
Act 389, and for that matter
satisfies the requirements in
section 2 of Act 389 on the use
of statutory declarations.
We take
further note that the said
declaration was duly sworn by
the 2nd defendant
before a Notary Public and by
virtue of section 5 of the Act,
a person who makes a statutory
declaration knowing it to be
false in a material particular,
or who makes a declaration which
is false in a material
particular, or reckless whether
it is true or not, commits a
misdemeanor.
This
therefore means that Statutory
Declarations are to be
considered as serious, solemn
and sacred documents which
should be treated seriously
hence the creation of a criminal
offence for those who willingly
and knowingly make false
declarations.
Besides, a
walk through the rejected
declaration makes it quite clear
that it contains all the items
of properties that the plaintiff
entrusted the 1st
defendant to procure or acquire
for her. These include:
1. The disputed house
2. A.G.C. shares
3. Two undeveloped plots
for plaintiff’s daughter Tersah
Bumbry at Ankaful
4. Poultry project
What must be
noted is that, once the 2nd
defendant has executed the
document, which was admitted by
the 1st defendant,
the explanation that it was
executed in order to put to rest
their harassment by the
plaintiff is an after thought
and is soundly rejected by this
court.
The reasons
given by the learned trial Judge
for rejecting the Statutory
Declaration executed by only the
2nd defendant are
wrong in Law and also erroneous.
This is because:
i.
The Statutory Declaration had
been executed by the 2nd
defendant and notarized.
ii. As between the 2nd
defendant and the plaintiff, the
declarations therein contained
are deemed to be true hence the
criminal sanctions provided
for in Act 389.
iii. The 1st
defendant must be deemed to have
given evidence for and on
behalf of himself and the 2nd
defendant.
iv. The defendants were
sued jointly and severally, that
meant what can be used against
one party can bind the other
party. In this case, the
execution of the document by 2nd
defendant binds the 1st
defendant.
v. It
must be noted here that, the
contents of a statutory
declaration must be understood
to mean a solemn declaration of
the contents of the document as
between the declarant and the
plaintiff herein. Therefore as
in the instant case, the 2nd
defendant made declarations
against her own interest,
affirming in all material
particulars the version of the
plaintiff’s case, a court of law
like this Supreme Court cannot
gloss over such an event.
For the above
reasons, it is our considered
opinion that the Statutory
Declaration which was rejected
by the learned trial Judge when
the plaintiff sought to tender
it into evidence was wrongly
rejected.
We
accordingly admit the said
Statutory Declaration into
evidence, for the purposes of
confirming the contents of the
document as the truth of the
state of affairs between the 2nd
defendant and the plaintiff.
What should
be noted is that, the Statutory
Declaration is not being
accepted as a document
conferring title on the
plaintiff or 2nd
defendant, but one evidencing
the statement of the facts
therein contained. Reasons that
the document was not stamped and
or registered, such as was
proffered by the learned trial
Judge were really not germane to
the circumstances of this case.
GENERAL
OVERVIEW OF THE EVIDENCE
From the
above pieces of evidence which
have been analyzed and referred
to supra, it is our contention
that if the learned trial Judge
and his senior brethren in the
Court of Appeal had been more
circumspect and critical, they
would have realised that the
plaintiff was able to make a
strong enough case to entitle
her to be granted judgment. What
must be noted is that, once the
plaintiff has made a case which
is reasonably probable, the
learned trial Judge should have
applied the same burden of proof
to the defendant’s case since
they had also counterclaimed. An
appeal is definitely by way of
re-hearing, see case of
Tuakwa vrs Bosom [2001-2002]
SCGLR 61.
Based on the
totality of the evidence before
this court, it is our considered
view that the trial court and
the court of Appeal both erred
in their findings and came to
the wrong conclusions.
On the
evidence, it is clear that the
findings of fact by the learned
trial Judge and concurred in by
the Court of Appeal are
unsupported by the evidence on
record.
Under the
circumstances the judgment of
the Court of Appeal dated 14th
July, 2006 and by necessary
implication, that of the High
Court, dated 23rd
August, 2002 are hereby set
aside.
Instead, the
appeal herein by the plaintiff
succeeds in part as follows:-
1.
Plaintiff’s share in H/No. AV.
31/3 Ankaful Cape Coast is put
at 50%. This
is because
this court considered her
contributions as substantial
coupled with the customised
completion she did on the first
floor where she lives.
2.
The defendants are entitled to
50% share or interest in this
house AV
31/3 Ankaful.
3. In
order for lasting peace to
prevail between the parties in
the house, it is ordered that,
the house, the subject matter of
this appeal shall be valued by
the Land Valuation Board and the
parties herein shall bear the
cost of the valuation equally.
The defendants herein who are
also entitled to 50% interest in
the said property are given the
first option to buy the interest
of the plaintiff, within six (6)
months from the date of
judgment, that failing the
plaintiff shall also be given
the next option, failing which
the offer will be made in the
open market.
4. It
is further ordered that until
these are completed and the
plaintiff paid off to
enable her relocate, the
defendants and their agents are
restrained from interfering
with the quiet, peaceful
enjoyment and the occupation of
the plaintiff in her portion of
this H/No. AV 31/3,
Ankaful.
5. On
the authority of Hanna Assi
No (2) vrs GIHOC Refrigeration &
Household Products Ltd. No. 2
[2007-2008] SCGLR, this
court on the basis of doing
substantial justice to the
parties directs as follows:-
The first defendant to take
steps to convey to the plaintiff
the plots of land the plaintiff
paid him to purchase for her to
wit land at Ankaful and Elimina,
within six (6) months of the
date of judgment.
6.
The Court below that is the
trial High Court at Cape Coast
to carry out
these
directives.
J.V.M. DOTSE
JUSTICE OF
THE SUPREME COURT
GBADEGBE, JSC:
I agree
entirely with the judgment that
has just been delivered by my
worthy brother Dotse JSC; but as
we are differing from the two
lower courts on the correct
inferences to be drawn by the
established facts, I propose to
add a few words of my own. I
begin by saying that I accept
Dotse JSC’s statement of the
facts that he carefully narrated
in his judgment and the proper
inferences to be deduced from
them. I think that he correctly
expounded the law regarding the
role of this court when faced
with concurrent findings of fact
by the trial court and the first
appellate court and desire in
this delivery not to detain the
precious time of the court in
referring to them but to limit
myself only to the determination
of the nature of interest that
the appellant acquired in the
disputed property by virtue of
her contribution. The record of
appeal on which the proceedings
herein turn establishes quite
plainly that she provided sums
of money towards the property
but unfortunately she was unable
to prove the extent of quantum
her contribution. That aside,
she hugely contributed to the
upkeep of the home that she
occupied with the respondents.
In my view, however her failure
to prove how much she actually
expended on the building should
not prevent us from determining
the interest that she acquired
by virtue of her contribution as
the other contributors; the
respondents herein were also
unable to prove beyond the value
of the plot on which the
disputed property stands the
exact amount that they expended
on the property. I observe that
very often as happens in cases
like this, it is difficult to
determine the exact contribution
of the parties but this should
not prevent us from doing
justice to the parties in the
light of all the circumstances
of the case.
Although the
parties herein acknowledge each
other as joint contributors, the
appellant, not being a citizen
of Ghana is precluded by Article
266 of the 1992 Constitution
from acquiring a freehold
interest in any land situate
within Ghana. It is therefore
impossible for us to confer on
her a tenancy in common with the
other contributors. I think that
from the evidence the parties
for some time now have not been
living in harmony such that in
the absence of the
constitutional bar contained in
Article 266 to make such an
order would not be in accord
with good reason. Although the
appellant is not a spouse of the
1st respondent, I am of the
opinion that it is permissible
for us to grant to her a
beneficial interest that is
proportionate to her
contribution. I think that the
effect of her contribution to
the acquisition of the disputed
property is creating a resulting
trust in her favor to the extent
of her contribution. In the case
of Cooke v Head [1972] 2
All ER 38, the Court of
Appeal applied the doctrine of
resulting trust imposed by the
courts on a legal owner in the
case of a husband and wife who
by their joint efforts acquired
property to be used for their
joint benefit to the case of a
mistress and a man who had by
their cumulative efforts
acquired a property for the
purpose of setting up a home
together. In the course of his
judgment at page 42, Lord
Denning MR observed of the
approach in apportioning
beneficial interest to persons
other than husband and wife as
follows:
“In the light
of recent developments, I do not
think it is right to approach
this case by looking at the
money contributions of each and
dividing up the beneficial
interest according to those
contributions. The mater should
be looked at more broadly, just
as we do in husband and wife
cases. We look to see what the
equity is worth at the time when
the parties separate. We assess
the shares as at that time. If
the property has been sold, we
look at the amount, which it has
realized, and say how it is to
be divided between them.”
In my opinion
having regard to the
circumstances under which the
appellant came to contribute to
the property she must have
believed that she was entitled
to remain in the property with
the 1st respondent and his
family even though they were not
married. From the evidence, I am
left in no doubt that this is a
reasonable inference to be
deduced from the conduct of the
parties. It being so, I think
that the court must do that
which is in accord with their
reasonable expectations as at
the time that the building works
were being carried out.
Approaching the matter this way,
the court is enabled to give
effect to the common intention
of the parties in a manner that
is fair and just. In this
regard, I take into account the
fact that she is a foreigner and
for that matter as said earlier
on in this delivery unable to
acquire a freehold interest in
the property against the
background of exhibit G, which
appears to show that the
appellant must have borne a
substantial part of the
expenditure on the building. I
then turn to consider the extent
of area that she occupied in the
building; and think if her
contribution were insignificant
the respondents and their family
would not have sat by to allow
her to occupy virtually the
entire first floor of the
building as though that part of
the building was meant only for
her occupation. In my opinion by
allowing the appellant to occupy
what appears to be half of the
disputed property without any
objection the respondents must
be deemed to have accepted her
as being entitled to one-half
share of the property that was
intended by them to be used as a
dwelling house in common. As it
is since the respondents are a
husband and wife and entitled to
have a freehold interest in the
property, I should think that it
is reasonable and just to allow
in their favor fifty percent
beneficial interest in the
property with the remaining
fifty percent going to the
appellant. In my thinking this
apportionment represents what is
fair and just having regard to
the facts, which have unfolded
before us in the proceedings
herein.
N. S.
GBADEGBE
JUSTICE OF
THE SUPREME COURT
G.T. WOOD
(MRS)
CHIEF JUSTICE
R.C. OWUSU
(MS)
JUSTICE OF
THE SUPREME COURT
V.
AKOTO-BAMFO (MRS)
JUSTICE OF
THE SUPREME COURT
COUNSEL:
EBOW QUASHIE
FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
KWABENA OWUSU
FOR THE
DEFENDANTS/RESPONDENTS/RESPONDENTS.
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