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Property - Acquision
of land - , Leasehold -
Ownership - Whether or not the
property in dispute was acquired
by E B Asante for and on behalf
of Asante Chemical - Whether or
not plaintiff was the successor
of Asante Chemical Store and
therefore owner of the property
- Whether or not was there any
sale by E B Asante of the
leasehold property
HEADNOTES
The defendant’s attorney was
approached by the deceased E B
Asante to get someone to buy the
disputed plot from him.and was
leased out. while the plaintiff
claimed through Asante Chemical
Store, the defendant asserted
his title through E B Asante
.
HELD
For
these reasons, the appeal herein
succeeds. In the result, the
judgment of the Court of Appeal
dated 17 May 2012 is set aside
and in place thereof is
substituted an order dismissing
the plaintiff’s claim.
DISSENTING
Also there
was clear divergence in the
signature of E.B Asante which
counsel for the respondent did
not dispute but sought to
explain away on grounds of old
age. In such circumstances it
cannot be said that the courts
below were clearly in error and
therefore ought to be
reversed.For these reasons I
would dismiss the appeal.
STATUTES
REFERRED TO IN JUDGMENT
Evidence Act,
NRCD 323 sections 24, 25 and 26
CASES
REFERRED TO IN JUDGMENT
African
Distributors Limited v CEPS
[2011] 2 SCGLR 955
Achoro v
Akanfela [1996-97] SCGLR 209
Berkeley v
Hardy (1826) 5 B & C 355;
Harmer v
Armstrong [1934] Ch 65 at 86
per Lawrence J;
Re Foster,
Hudson v Foster [1938] 3 All ER
357.
Bessela v
Stern ( 1877) 2 C PD 265
Wiedemann v
Walpole [1891] 2QB 534
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC
DISSENTING
OPINION
ATUGUBA, JSC
COUNSEL
OSAFO BUABENG
ESQ. FOR THE
DEFENDANT/APPELLANT/ APPELLANT.
JULIET
AKU-SIKA DADZIE ESQ. FOR THE
PLAINTIFF /RESPONDENT/
RESPONDENT.
__________________________________________________________________
JUDGMENT
____________________________________________________________________
GBADEGBE JSC:
This is an appeal from the
decision of the Court of Appeal
by which the decision of the
trial High Court was affirmed in
this matter herein. By its
decision, the Court of Appeal
accepted the plaintiff’s case in
preference to that of the
defendant. Being aggrieved by
the said decision, the
defendant-appellant-appellant
(hereinafter conveniently
referred to as the defendant)
has appealed to this court
seeking the reversal of the
judgment, the subject matter of
these proceedings. In his effort
to persuade us to yield to his
invitation, the defendant
through his counsel has in his
statement of case argued three
grounds of appeal that were
contained in the notice of
appeal and therein numbered as
“a”,” b”, and “c” and expressed
as follows:
“(a) That the learned justices
of Appeal erred in holding that
the property in dispute was
acquired by E B Asante for and
on behalf of Asante Chemical
Store notwithstanding the fact
that Asante Chemical Store was a
business name and not a legal
entity and therefore could not
enter into any legal transaction
including a lease.
(b) The learned justices of the
Court of Appeal erred in holding
that the plaintiff was the
successor of Asante Chemical
Store and therefore owner of the
property in dispute even in the
absence of any evidence on
record substantiating that fact.
(c) The learned justices of the
Court of Appeal erred in holding
that the defendant never
acquired the said property in
dispute from E B Asante contrary
to the presence of a Receipt and
Statutory Declaration executed
by E B Asante in his lifetime in
favour of the Defendant.”
The questions which we have to
determine in these proceedings
turning on the said grounds are
as follows: Who acquired the
leasehold in regard to the
disputed property? And if
indeed, as the appellant
contends, it was the deceased E.
B. Asante, to whom the grant was
made, was there any sale by E B
Asante of the leasehold property
to him? So stated, these
questions raise simple questions
of fact and law. The first of
these questions calls for the
construction of the leasehold
document and the second only
arises if the answer to the
first question is supportive of
the defendant’s case. The first
question turns on the combined
effect of the first two grounds
of appeal that were argued in
the defendant’s statement of
case while the second question
relates to the third ground.
Before turning to the task with
which the court is faced, it is
observed that from the record of
appeal, there were only two
persons who testified to the
facts in dispute- a
representative of the plaintiff
company and an attorney of the
defendant. The evidence placed
at the disposal of the court
compels me to the conclusion
that while the witness of the
plaintiff had no personal
knowledge of the transaction
from which the land was
acquired, the defendant’s
attorney offered some evidence
of matters that were personally
known to him and material to our
determination in these
proceeding to the effect that he
was approached by the deceased E
B Asante to get someone to buy
the disputed plot from him. The
evidence contained in the record
of appeal appears to hinge
mainly on the question that
concerns who took out the lease
from the Tema Development
Corporation (TDC).Within the
context of such a contest, where
there are available documents
that speak to the transaction,
they are preferable to the oral
testimony tendered to the court
by the rival parties.
Turning to the first question,
while the plaintiff claimed
through Asante Chemical Store,
the defendant asserted his title
through E B Asante. This calls
for a scrutiny of the leasehold
document which was tendered in
the course of the proceedings
variously as exhibit 1, exhibit
1K2 and exhibit TPTC 29. The
said documents which are all to
the same effect describe the
parties to the agreement of
leasehold as Tema development
Corporation and Ernest Boamah
Asante the Managing Proprietor
of Asante Chemical Store- P O
BOX 347 Tema, and indeed, he it
was who executed the leasehold
agreement in his own right
without any words of
qualification or limitation that
would constrain me to place a
different construction on the
description of the lessee. It
being so, and as the parties to
the action herein claim their
titles from the said leasehold
agreement they are bound by the
description of the parties in
the premises of the lease. See:
African Distributors Limited
v CEPS [2011] 2 SCGLR 955.
The determination of the
question as to whom the lease
was granted is in my opinion
thus becomes a simple issue of
law that involves construing the
agreement in terms of the
description of the lessee in the
premises of the lease.
Having carefully looked at the
lease, it appears that it was
made in favour of E B Asante and
not Asante Chemical Store. In
coming to this view of the
matter, regard has been had to
the letter that accompanied the
forwarding of the leasehold
agreement from TDC to the lessee
that is in evidence as exhibit
TPC 28, and the allocation
letter also from the TDC to the
intended lessee as TPC 30.
Although they relate to the
transaction of leasehold, the
statements contained therein
have been superseded by the
agreement of leasehold that
unequivocally refers to E B
Asante as the person to whom the
conveyance was made and the
utilisation of the words, “the
Managing Proprietor of Asante
Chemical Store” was merely
intended by the parties to
identify the particular E B
Asante to whom the grant was
made by the lessor. This view of
the matter appears to be
buttressed further by the
insertion in the lease of the
words “and having his place of
residential addresses as House
No 1/R. 80 Kortu-Gon (Community
11) Tema. It is interesting to
note of the said words “and
having his residential address
as………..” that the operative
words “his residential address
“were inserted after the words
“its registered office ....” was
deleted by using a type writer
to cancel out the words for
which they were substituted in
order to provide a residential
address of a living being
instead of an entity other than
a human being. Having determined
the first question, we are
precluded by the combined effect
of sections 24, 25 and
26 of the Evidence Act, NRCD 323
in view of the answer received
to the first question posed
above from considering any other
evidence to the contrary as the
presumptions to which they
relate are conclusive in nature.
Reference is made to the said
sections of the Evidence Act as
follows:
“24. Conclusive presumptions
(1)
Where the basic facts that give
rise to conclusive presumption
are found or otherwise
established in the action,
evidence contrary to the
conclusively presumed fact may
not be considered by the
tribunal of fact.
(2)
Conclusive presumptions include,
but are not limited to those
provided in sections 25 to 29.
25. Facts recited in written
instrument
(1)
Except as otherwise provided by
law, including a rule of equity,
the fact recited in a written
document are conclusively
presumed to be true as between
the parties to the document, or
their successors in interest.
(2)
Subsection (1) does not apply to
the recited of consideration.
26. Estoppel by own statement or
conduct
Except as otherwise provided by
law, including a rule of equity,
when a party has, by that
party’s own statement, act or
omission, intentionally and
deliberately caused or permitted
another person to believe a
thing to be true and to act upon
that belief, the truth of the
thing shall be conclusively
presumed against that party or
the successors in interest of
that party in proceedings
between
(a)
that party or the successors in
interest of that party, and
(b)
the relying person or successors
in interest of that person.”
It is difficult to comprehend
that notwithstanding the very
clear description of the lessee
in the leasehold agreement the
question of ownership of the
leased property had to be
determined in the courts below
by reference to other matters
such as the covenants and the
issue of receipts for ground
rents. Evidence extrinsic to a
document can only be resorted to
when there is some ambiguity but
in the case before us there was
clarity in the description of
the lessee that such a course
that was embarked upon in the
courts below must be deprecated.
The finding by the learned trial
judge that EB Asante was the
sole proprietor of Asante
Chemical Store renders the
urging by the plaintiff touching
and concerning the issue of the
said receipts devoid of any
legal significance.
The rule of preclusion created
by section 24 of the Evidence
Act to which reference has been
made earlier in the course of
this delivery, applies to the
two lower courts as well and if
the learned judges particularly
of the Court of Appeal had
adverted their minds to the
nature of the presumptions
brought into being by the
answer to the question : who
acquired the leasehold interest
to the disputed property , they
would not have proceeded in
view of the statutory provision
to consider the version of the
matter that was strenuously
pressed on them by the
plaintiff. As the answer to this
question is one of law and one
that turns purely on the
construction of a document,
there is no fetter on us as a
Court re-hearing the matter to
correct what appears to be an
obvious error of law committed
by the Court of Appeal and
indeed, the trial High Court by
coming to a contrary conclusion.
The error committed by these
courts relates to the
construction of a document that
properly speaking is in the
domain of law, and as such we
are not constrained by the
collection of cases of this
court that include Achoro v
Akanfela [1996-97] SCGLR 209
to the effect that where the
decision on appeal to us seeks
the reversal of concurrent
findings of fact made by the
two lower courts then we should
only intervene when there was a
blunder or error that that has
resulted in a miscarriage of
justice. The misconstruction of
the document in itself is an
instance of justice that had
miscarried and therefore
justifies our intervention as
the High Court and Court of
Appeal took into account matters
that they were precluded by the
mandatory provisions of
section 24 of the Evidence Act,
NRCD 323 from considering.
By not complying with the
provisions of the Evidence
Act, there was a resultant
instance a miscarriage of
justice. The observation is made
that whenever any court takes
into account matters that it is
by statute precluded from
considering, the decision
reached acquires the attribute
of miscarriage of justice and
it behoves us as the court of
last resort to correct such an
injustice in order to effectuate
our oath of doing justice
according to law.
When the controversy unfolded
before us in these proceedings
is substantively considered, one
cannot escape reaching the
conclusion that the plaintiff’s
claim to the disputed property
looks improbable for the reasons
that follow shortly. The claim
to having succeeded to Asante
Chemical Store is based only on
the certificates of
incorporation and commencement
of business but without the
regulations that serve the
purpose of indicating who the
subscribers to the company are
and also whether in fact the
incorporated entity has taken
over the business that was
formerly being undertaken by
Asante Chemical Store.
Additionally, if as the learned
trial judge found Asante
Chemical Store had as its sole
proprietor, E B Asante who died
long before the incorporation of
the company then as a matter of
law at the date of the
incorporation there was nothing
left of Asante Chemical Store
that could have been succeeded
to by anybody. Thus, on the
evidence adduced by the
plaintiff at the trial, in terms
of section 80 (2) (b) and (c)
of the Evidence Act, NRCD 323
was unimpressive. In coming to
this view of the matter one is
reminded of the fact that the
burden of proof in the matter
was on the plaintiff as the
defendant relied on his
possession of the disputed
property without making a
counterclaim.
Then there is the name by which
the plaintiff took out the writ
of the summons in the action
herein- Tenasa Pharmaceutical
and Trading Company Limited.
While it closely resembles the
name on the certificate of
incorporation, Tenasa Pharmacy
and Trading Company Limited (as
portrayed by TPTC 4) and that of
the certificate to commence
business, exhibit TPCT1 they are
dissimilar. Also regarding the
name of the company, while the
name on exhibit TPCT 1 and TPCT
4 read “Tenasa Pharmacy and
Trading Company Limited” with
the first word “Tenasa” having
one “s” that on the writ and
other processes bear double “ss”
and reads “Tenassa”. These
differences in corporate law
have huge consequences as the
name on the writ does not
correspond with the registered
entity and are enough to
disentitle the plaintiff to the
reliefs he claims. The question
that these dissimilarities raise
for our determination in these
proceedings remained unanswered
at the end of the plaintiff’s
case. The said question is
whether the incorporated entity
which claims to be the plaintiff
is Tenassa Pharmaceuticals and
Trading Company Limited or
Tenasa Pharmacy and Trading
Company Limited?
Although getting rid of the
question regarding the ownership
of the disputed plot should be
sufficient to dispose of the
action herein in view of the
fact that the parties have in
their journey from the trial
court to this court contested
the case on a common
understanding that requires the
defendant in any event to
establish the sale that he
alleges, that question next
comes to be considered. That
approach, however, is contrary
to the established judicial
opinion that only parties to a
contract can sue on it or take
steps to enforce it. See (1):
Berkeley v Hardy (1826) 5 B
& C 355;( 2) Harmer v
Armstrong [1934] Ch 65 at
86 per Lawrence J; (3) Re
Foster, Hudson v Foster
[1938] 3 All ER 357. As the
plaintiff does not claim to be
the personal representatives of
the deceased lessee, one would
have thought that the
defendant’s dealings with the
property which in their nature
are adverse to E B Asante should
not be of any concern to it at
all. What this means is that the
plaintiff does not appear in
view of the adverse
determination of the question of
ownership to have the capacity
to raise any issue regarding the
disputed property. The
plaintiff’s case can be likened
to a person who meddles in the
estate of a deceased person-“executor
de son tort”
By way of proof of his purchase
of the disputed property, the
defendant tendered a receipt of
purchase issued to him by his
grantor, E B Asante and also a
statutory declaration that was
made in his favour by the said
grantor to the TDC together with
a covering letter for the
purpose of enabling a change of
ownership to be made in his name
on 4 November 1996. Again, the
defendant went ahead and started
building works on the land
during the life of his grantor.
Faced with these acts of
ownership in the defendant’s
favour, the plaintiffs in
particular answer to the receipt
alleged in paragraph 11 of its
Reply that it was a forgery. At
the trial, however, the
plaintiff called no evidence to
sustain the forgery and by the
operation of rules of evidence
not having led any evidence to
sustain such a serious charge
its silence must be deemed under
the rule in Bessela v Stern
( 1877) 2 C PD 265 to be an
admission. See also:
Wiedemann v Walpole [1891]
2QB 534. It is interesting to
note that on the very day that
the grantor of the defendant
swore to a declaration in his
favour for a change of name, the
defendant also made a similar
declaration for the same
purpose. In my view, in the
absence of any credible
challenge to these acts, the
defendant has clearly
established his purchase of the
disputed property. The fact of
purchase that these acts tended
is not diminished by the absence
of a document bearing the change
of ownership as he being in
possession at the date of the
action requires a better title
to oust him.
But that is not all. While the
plaintiff’s witness from his
testimony was only engaged by
the company in 2004, sometime
after its incorporation in 2004,
and for that matter lacked any
personal knowledge of the
matters he testified to, the
witness of the defendant on the
other hand, had some knowledge
of the crucial circumstances in
which the defendant was
approached to buy the property.
According to his evidence, he
had previously assisted the
owner of the property to sell
some other land and so when he
was looking for a buyer he
approached him and he got the
defendant to buy the property
from him. The evidence of the
representative of the plaintiff
company, for example at page 132
of the record of appeal
portrays him as one who did not
have any personal knowledge of
the facts in contention and yet
in his narration before the
trial court, he offered no
explanation on how he came by
the facts to which he testified.
At that page, when led by his
counsel in Evidence in Chief, he
answered in relation to the
version of the defendants thus:
“Q: He also says in paragraph 4
that at the time of purchasing
the plot number D11/NKT/112/11
the said property were in the
personal name of Ernest Boamah
Asante and the lease document
signed between TDC and said
Ernest Boateng Asante was
registered as 3296/1979 on 17
July 1971?
A: it is never true. The receipt
and document is still in the
name of Asante Chemical Store.”
The above cannot be true in the
light of what appears on the
leasehold agreement and it is
surprising that even after it
had been exhibited by the
plaintiff earlier on in the
proceedings to an application
for interlocutory injunction,
the witness would subsequently
in the course of the same
proceedings fall into the
blunder of saying that it was in
the name of Asante Chemical
Store. This and other pieces of
evidence on the record speak to
his lack of knowledge about the
matters in dispute.
Further, it is surprising that
if indeed there was no sale of
the property to the defendant he
would have entered same and
commenced building works in the
life time of E B Asante without
any challenge from him. When one
considers the fact the fact that
the defendant must have obtained
permits to develop the property;
the challenge to his ownership
by the plaintiff company seems
to be an afterthought. The
question that one needs to
consider is why was the
challenge not made earlier than
after 2004? The only reasonable
explanation turning on the
evidence is that the defendant
had actually purchased the
disputed property from E B
Asante.
For these reasons, the appeal
herein succeeds. In the result,
the judgment of the Court of
Appeal dated 17 May 2012 is set
aside and in place thereof is
substituted an order dismissing
the plaintiff’s claim.
N. S. GBADEGBE
JUSTICE OF THE SUPREME
COURT
S. O.
A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
DISSENTING
OPINION
ATUGUBA, JSC
Since the
facts of this case have been
sufficiently stated in the
judgment of my brother Gbadegbe
JSC I would not repeat them.
Estoppel
It is trite
law that for a statement to give
rise to an estoppel the same
must be clear and unambiguous.
I do not see such clarity in the
description of the parties as to
unequivocally lead to the
conclusion that the property was
being acquired personally by E.B
Asante. I consider that if the
recitals have the effect of an
estoppels so do the succeeding
statements tending to the
contrary under sections 25-26 of
the Evidence Act 1975(NRCD
323). In such a situation the
common law rule is that where
there are conflicting estoppel
the matter should be determined
free from estoppel.
However these
provisions cannot debar the
court from reading the document
as a whole and in doing so there
was a leaning towards corporate
ownership of the property.
There is also
the evidence that the documents
evidencing the purchase of the
property such as the receipt
were issued in the name of
Tenassa Pharmaceutical Trading
Co. Ltd. whereas that company at
the time of the purchase of the
disputed property did not exist,
in that name.
Also there
was clear divergence in the
signature of E.B Asante which
counsel for the respondent did
not dispute but sought to
explain away on grounds of old
age.
In such
circumstances it cannot be said
that the courts below were
clearly in error and therefore
ought to be reversed.
For these
reasons I would dismiss the
appeal.
W. A. ATUGUBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
OSAFO BUABENG
ESQ. FOR THE
DEFENDANT/APPELLANT/ APPELLANT.
JULIET
AKU-SIKA DADZIE ESQ. FOR THE
PLAINTIFF /RESPONDENT/
RESPONDENT. |
