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Customary law - Property - Joint
ownership - Presumption against
joint ownership at customary law
- Proponent of joint tenancy in
customary law to satisfy the
court by clear and strong
evidence in support thereof -
Quality of evidence required in
proof of joint ownership to be
clear.
Land law and conveyancing -
Title to land - Burden of proof
- Defendant making no
counterclaim - Burden of proof
on plaintiff claiming
declaration of title to prove
title - Weakness of the
defendant’s case not to avail
plaintiff.
Evidence - Burden of persuasion
- Claim against estate of
deceased - Claim to be
scrutinised with utmost
suspicion - Evidence in proof to
be utterly convincing.
The plaintiff, the son of KT who
died testate instituted action
against the defendants,
executors of the will of KT for
declaration that House No 62/29
and 63/29 left by the deceased
to his nephews and nieces were
the joint properties of the
deceased and the plaintiff and
therefore not subject to
disposition under the will of
the deceased. The plaintiff
averred that he substantially
contributed to the construction
of House No 63/29 and testified
that, upon the suggestion of the
deceased, he contributed in cash
and in kind towards the
construction of the building.
Upon completion of the building
the deceased handed over the
title deeds to him with the
instructions to let it and use
the proceeds to pay property
rates and finance the
construction of House No 62/29.
The defendants on the other hand
claimed that the property was
constructed by the deceased with
financial assistance from one EG
and KG. The trial judge
dismissed the plaintiff’s action
on the ground that he failed to
discharge the burden of proof.
On appeal the plaintiff’s
counsel argued that the trial
judge erred in holding that
joint ownership of property
between father and son was not
known at customary law and that
the failure of the defendants to
call EG as a witness was fatal
to their case.
Held:
(1) The quality of evidence in
proof of joint ownership must
necessarily be clear since at
customary law there seemed to be
a presumption against joint
ownership. The proponent of a
joint tenancy in customary law
ought to satisfy the court by
clear and strong evidence that
the parties intended a joint
tenancy. Yeboah v Yeboah
[1974] 2 GLR 114, Adjabeng v
Kwabla [1960] GLR 37,
Adom v Kwarley [1962] 1 GLR
112 approved.
(2) In the instant case, the
title deeds were in the name of
KT who had, subsequent to the
alleged oral declaration of
intention, willed the disputed
property to a person other than
the plaintiff. Besides, in view
of the fact that KT was dead,
the quality of evidence required
from the plaintiff in proof of
the claim would be enhanced by
the principle that a claim
against a deceased’s estate
ought to be scrutinised with the
utmost suspicion and the
evidence in proof ought to be
utterly convincing. The evidence
on record in support of the
plaintiff’s case was too weak to
discharge the burden on him and
the appeal would be accordingly
dismissed. Moses v Anane
[1989-90] 2 GLR 694 followed.
(3) The plaintiff must succeed
on the strength of his own case
because the weakness of the
defendants’ case could not avail
him. The defendants had not
counterclaimed for any relief
and therefore did not assume any
burden of proof and it was not
necessary for them to call EG as
a witness.
Cases referred to:
Abrebeseh v Kaah
[1976] 2 GLR 46.
Adjabeng v Kwabla
[1960] GLR 37.
Adom v Kwarley
[1962] GLR 112.
Moses v Anane
[1989-90] 2 GLR 694, CA.
Yeboah v Yeboah
[1974] 2 GLR 114.
APPEAL from the decision of the
High Court.
Gwira
for the appellant.
Winney
for the respondent.
FORSTER JA.
This is an appeal by the
plaintiff-appellant (hereinafter
called “the plaintiff”) from the
judgment of Adjabeng J (as he
then was) sitting at the High
Court, Sekondi, dated 30
November 1987 whereby he
dismissed the plaintiff’s claim
for declaration of title. The
plaintiff is the son of Kobina
Tandoh of Ekuasi, near Sekondi.
He died testate on 12 July 1979.
The defendants-respondents
(hereinafter called “the
defendants”) were the executors
of the will of the deceased
Kobina Tandoh. The deceased had
three houses, of these House No
63/29 was the subject-matter of
the suit. By his said will the
deceased left the houses to his
nephews and nieces. On 18 March
1982 the plaintiff by his writ
sued for “a declaration that
houses Nos. 62/29 and 63/29 are
the joint properties of Kodwo
Tandoh (deceased) and Ebow
Kobina Tandoh, and therefore not
the subject of disposition in
the will of Kodwo Tandoh”.
In his statement of claim, the
plaintiff averred that he
substantially contributed to the
construction of House No 63/29
and therefore the property was
not subject to disposition under
the will. The defendants on the
other hand claimed that the
property was wholly constructed
by the deceased and without any
assistance from the plaintiff
and other children of the
deceased.
In his grounds of appeal the
plaintiff contends that:
“1. The court was wrong in its
interpretation of the customary
law on joint ownership of
property between father and son.
2. The court erred in believing
defendants that the plaintiff
collected documents under a
false pretence when available
evidence including defendants’
point to the contrary.
3. Failure by the defendants to
call a material witness, i.e.
Efua Grant, was fatal to their
case.
4. Trial court erred in holding
that the plaintiff and his
brothers and sisters did not
contribute substantially to the
building of House No. 63/29 and
that the judgment is
unreasonable having regard to
the evidence adduced.”
Arguing the first ground of
appeal, counsel for the
plaintiff submitted that the
judge erred when he failed to
correctly interpret the
customary law on joint
ownership, in this case between
father and son. It is evident
from the judgment that the trial
judge did accept the soundness
of the proposition that joint
ownership was known to customary
law. He however cautioned that
evidence tendered to prove an
intention to hold property
jointly “... must be quite
strong so as to leave the court
in no doubt that the parties
indeed intended that the
customary law principle should
not apply”.
That was no mis-statement of the
customary law. In Yeboah v
Yeboah [1974] 2 GLR 114, a
case which counsel himself
relied on before us,
Hayfron-Benjamin J (as he then
was) having stated that joint
ownership between persons who
are not connected by blood was
recognised by customary law,
held at page 115, that the law
would give effect to such
intention “where there was clear
evidence that the parties
intended to hold the property as
joint tenants”. See also
Abebreseh v Kaah [1976] 2
GLR 46.
The quality of the evidence must
be necessarily clear since
primarily at customary law there
seems to be a presumption
against joint ownership. The
position of the early cases on
the subject was stated by Ollenu
J in Adjabeng v Kwabla
[1960] GLR 37 at p 41 where he
said in a passage which has
become well known:
“... where a son or ward works
with his father or guardian and
out of the proceeds of that
joint labour the father or
guardian acquired property, the
son or ward does not become
joint owner of that property
with the father or guardian.”
See also Adom v Kwarley
[1962] 1 GLR 112.
It is therefore settled law that
at customary law the proponent
of an intention to hold property
as joint tenants, must satisfy
the court by clear and strong
evidence that the parties so
intended, otherwise customary
law would hold the parties to
the contrary that there was no
such intention.
In the instant case where the
title deeds were in the name of
Kobina Tandoh who had,
subsequent to the alleged oral
declaration of intention, willed
the disputed property to a
person other than the plaintiff,
and especially, where Kobina
Tandoh’s lips are forever sealed
in death, the evidence proffered
to prove the alleged intention
must be very strong indeed. The
additional factor of the death
of the declarant makes such
assertion rather suspect. As
rightly held by the Court of
Appeal in Moses v Anane
[1989-90] 2 GLR 694.
“a claim against a deceased’s
estate must be scrutinised with
the utmost suspicion. Proof must
be strict and utterly convincing
as one of the protagonists was
dead and could not assert his
claim.”
This therefore is the quality of
the degree of proof required of
the plaintiff if he should
succeed in the instant case.
The case of the plaintiff was
that when he returned to the
country from overseas in 1965,
his father called him and
suggested that he and the other
children should contribute
towards the construction of the
disputed house, hereinafter
referred to as House No 63/29 at
Ekuasi, near Sekondi. The
plaintiff said that he therefore
gave cash of ¢4,250 to the
father as his contribution. A
further contribution of ¢500 was
made by him in 1974.
Subsequently, he also purchased
some bags of cement and iron
rods. He tendered exhibit A and
A1 as covering the purchases.
Exhibit A which was dated
16/9/77, covered payment for a
ton of iron rods. Exhibit A,
dated 28/8/78 was issued in
respect of 10 bags of cement.
The plaintiff also tendered
exhibits B and B1, being title
deeds for House No 62/29 and
63/29 respectively. According to
the plaintiff these documents
were given to him by the father
in 1968 with the instruction
that he should rent out the
rooms and use the proceeds to
pay the property rates and
finance the construction of the
uncompleted house, No 63/29. He
also tendered, exhibit C27 being
rate demand notices and receipts
for property rates paid by him.
As regards the financial
contributions of ¢4,250 and ¢500
made by him, the plaintiff
called PW1, his younger brother,
who until 1975 was a school
pupil. In his evidence-in-chief,
the witness testified that the
plaintiff bought iron rods and
cement as his contribution and
said:
“When our father was putting up
the building most of us were
school children. Only the
plaintiff was working and we,
the school children, helped by
carrying water, sand, stones and
so on for the construction.”
In cross-examination however,
PW1 who at the time of the trial
in 1987 was a messenger, said
that when he left school he then
assisted the father financially.
He made no mention of the amount
of money he contributed. It is
however revealing that the
plaintiff never mentioned any
financial contribution by his
brothers and sisters. According
to him “they used to collect
sand in the gutter around the
area for the construction of
this house”.
It is thus obvious that the
evidence of PW1 lacked the
required consistency for
veracity. His evidence therefore
was inherently weak to be of any
assistance to the courts. The
plaintiff’s next witness was
PW2. He was called to support
the plaintiff’s claim that he
contributed to the construction
of the building. The gist of his
evidence was that some time in
1967 he went to the house but
met only the deceased. He said:
“... he told me he wanted to see
me. I sat down near him and he
told me that the blocks which
were beside his house were
blocks he was going to use to
build a house for his children.
He said that he discussed the
matter with the plaintiff but
the plaintiff was not
co-operating. So he asked me to
speak to the plaintiff to assist
him to put up the building.”
Two days later the witness met
the plaintiff and succeeded in
persuading him to give the
assistance requested by the
father. The trial judge did not
believe the evidence of PW2,
and, in my opinion, rightly so.
At no time during his evidence
did the plaintiff make any
mention of the intervention of
PW2 to persuade him to
contribute to the construction
of the house in dispute as
claimed by PW2. The evidence of
the plaintiff was simply that:
“When I returned from overseas
my father called me and told me
that he was putting up a
building for me, my brothers and
sisters so we should help .... I
had some money with me and so I
gave ¢4,250 towards the
construction of the house.”
In the light of this evidence of
the plaintiff, the claim of PW2
that he had intervened to
persuade the plaintiff to assist
the father must be false and
intended only to give more
dressing to his evidence. It is
equally telling that PW2 never
at any time got to know that the
other children used to carry
sand and stone from the area
around the building; a more
observable fact than an
understanding between a father
and his son. His credibility was
rightly doubted by the trial
judge.
In paragraph 6 of the
plaintiff’s reply to defendants’
statement of defence filed on
18/11/82, the plaintiff averred
that:
“... it was in the presence of
Papa Mensah, John Eshun,
Veronica Koens, among others
that he (the father) stated that
the disputed house was for his
children.”
John Eshun, PW2 and junior
brother of the plaintiff, never
referred to this most vital
circumstance in his evidence and
none of the several persons
specifically named were called
to substantiate the plaintiff’s
case. The plaintiff’s failure to
do so must weigh heavily against
his claim.
As mentioned supra, the
plaintiff tendered exhibit A and
A1 being receipts for purchase
of 10 bags of cement and 1 ton
of iron rods respectively.
Exhibit A was issued in his
name. Exhibit A1 bore the name
of PW2, his brother. These
receipts were meant to
substantiate his claim that he
personally bought the materials
to assist in the construction of
the disputed house. By exhibits
C - C27, the plaintiff meant to
support his story that he paid
all property rates after the
father had given him the title
deeds. Except exhibits A and A1
all the exhibits were issued
after the death of the deceased
on 12/7/79 and in his name.
Thus, the only relevant exhibits
were A and A1 dated 16/9/77 and
28/8/78 respectively.
These exhibits must be
scrutinised to determine how far
they could sustain the
plaintiff’s claim. The fact that
the exhibits were issued in the
names of the plaintiff and his
brother is a relevant
circumstance. If indeed it was
the plaintiff who financed the
purchase of these materials then
one would have expected both
receipts to have been issued in
the plaintiff’s name or in the
father’s name only. It seems to
me that the receipts rather show
that the purchases were financed
by the father himself, using
either of the sons as messenger
when they were available to
serve him. After the plaintiff
had tendered exhibits A and A1
he said:
“I also bought stones and sand.
These receipts were not the only
receipts I was issued with. Many
more were with my father which
were put in a certain box but
when my father died the receipts
disappeared. Some of the
receipts were in my name. Most
of the receipts in the box were
in my name.”
The plaintiff therefore was
contending that apart from
exhibits A and A1 there were
several other receipts in his
name covering payments for
materials he bought and these
were with the father until his
death on 12/7/79. It seems to me
that this evidence was a
make-up. The defendants in their
evidence sought to explain how
exhibits B and B1, the title
deeds, came into the plaintiff’s
possession. DW2, the paternal
half-brother of the deceased,
said in evidence that when he
visited him at Kansawurodu where
he was under-going treatment,
the deceased told him that the
plaintiff had come to collect
the key to his room, saying that
he was going to paint that room.
According to the witness at that
time the wife of the deceased
had left him and he therefore
had his key with him at
Kansawurodu. When the deceased
died the family met and asked
the plaintiff to return all the
documents which had been in the
room of the deceased but which
had disappeared. The evidence
given by the plaintiff and the
exhibits tendered by him rather
lend support to the truth of the
defendants’ claim. For if indeed
exhibits B and B1 were given to
the plaintiff in 1963 and he
bought building materials, the
receipts the majority of which
were with the father until his
death, then how come that
exhibits A and A1 and C15, C17
and C20, receipts for rates paid
and dated 19/4/79 and 20/10/78,
came to be in his possession?
Could it be true that the “many
more” receipts for the purchases
he made would have been given to
the father to be put in a box
while the plaintiff opted to
retain custody of exhibits A and
A1, the only receipts which
evidenced purchases of building
materials. I cannot believe the
implication of the plaintiff’s
story that he would make
purchases of building materials,
collect the receipts, retain
just two (exhibits A and A1) and
take the many others to his
father to be kept by him. I find
the story so romancing that I
refuse to be baited by its
seductive appeal. It seems to me
more plausible that the
plaintiff obtained access to the
room by the ruse practised on
the deceased, as testified to by
DW1, and collected all the
exhibits which were tendered by
him, except of course those
receipts issued after the
father’s death.
On the question of contribution,
the defendants’ case was that
the plaintiff did not contribute
to the construction of the
building as he claimed. DW2, the
paternal brother of the deceased
denied that the plaintiff
assisted the deceased. He was
insistent that the building
which had the ground floor
completed before the death of
Kojo Tandoh, was put up without
any help from the plaintiff. He
mentioned one Efua Grant and
Kobina Gyan as the persons who,
according to his deceased
brother, assisted him
financially. Efua Grant became a
tenant in the house on condition
that she assisted the deceased
financially. The witness said
that he was very close to his
brother. The following exchange
occurred during his
cross-examination by plaintiff’s
counsel:
“Q. You know Esther
Tetteh who once lived in your
brother’s house popularly called
Mame Nkran?
A. Yes, I gave her the
room to rent.”
The witness having denied that
he collected the key to the room
from the plaintiff, counsel
pressed the point further:
“Q. I put it to you that
you collected the key from him
and that was because his father
entrusted the house to him?
A. No. It is not true.
Even I gave the room which the
plaintiff occupies to him.
Q. It is not correct that
you gave the room to Mame Nkran.
A. I did. She was my
wife’s friend.
Q. It is not also correct
that you gave the room to the
plaintiff?
A. My brother, his father,
refused to give him a room and
I, Kwesi Itu, gave him the room
in which he stays.
Q. When Mame Nkran came
to rent the room your brother
said there should be a tenancy
agreement on it?
A. Yes, that was because the
house was not completed and Mame
Nkran was asked to complete it
and that the expenses would be
deducted from the rent.”
(Emphasis mine.)
The witness further said that
some three years previously it
was Mame Nkran who repaired the
house. This was in response to
counsel’s earlier suggestion
that in 1984, the roof of the
building was stripped off during
a heavy rainfall. I have quoted
these excerpts to show that DW2
was closely acquainted with the
deceased’s brother and had
intimate knowledge about matters
concerning the disputed house.
It is telling that his crucial
answers were unsolicited and
spontaneous. He was demonstrably
a truthful witness whose
evidence rightly impressed the
trial judge. His evidence
discounted counsel’s suggestion
that the plaintiff’s father
entrusted the house to him, for
if indeed the contention were
the least probable then one
would have thought that the
plaintiff would let out the
rooms and hand over the keys to
the tenants and not that, as the
evidence and counsel’s
suggestion implied, the two
functions would be performed by
DW2 letting out the rooms, and
the plaintiff releasing the keys
to DW2 for the tenants. Again,
the unrebutted evidence of DW2,
so spontaneously given, that his
deceased brother refused to give
a room to the plaintiff and “I
Kwesi Itu, gave him the room in
which he stays” is immensely
significant. The witness further
said that at that time the
relations between son and father
were strained and that he
intervened on behalf of the
plaintiff. In the light of the
testimony of DW2 and the
compelling inferences that could
reasonably be drawn, the claim
of the plaintiff that the father
entrusted the building to him is
utterly absurd.
Counsel contended further that
the defendants’ failure to call
Efua Grant, a material witness,
was fatal to their case.
According to DW2, the deceased
brother told him that Efua Grant
and Kobina Gyan were helping him
to put up the building. The
persons involved in that
transaction were the deceased
and Efua Grant. Both were
material witnesses on that
issue. DW2 testified to what the
deceased, an unavailable
material witness, told him. Just
as the deceased’s evidence, had
he lived, would have been
material, so was the evidence of
DW2 who was merely giving in
evidence the admissible hearsay
declaration of the deceased. The
fact that Efua Grant, another
material witness, was not called
was irrelevant. It was equally
open to the plaintiff to call
her, if indeed the evidence of
DW2 was worth challenging. It
was entirely for the trial judge
to either believe him or not. In
any case, having regard to the
evidence on record the case of
the plaintiff was too weak to
discharge the burden that was on
him. It is trite law that a
party succeeds on the strength
of his own case and not on the
weakness of the opponent’s case.
The defendants’ other witness,
DW1, was a mason. His uncle was
a friend of the deceased. He
said that the deceased told him
that Efua Grant had agreed to
help him put up the house so
that “she would stay there and
the amount she would spend be
deducted from her rent”. And the
woman therefore came to stay in
the house when the witness was
working on the building. He
denied the plaintiff’s
suggestion that it was rather
one Essien who put up the
building. The witness was
obviously very close to the
deceased because of the
friendship between him and the
uncle. He said “because of this
Kojo Tandoh used to come to me
to discuss matters concerning
the building, I was putting up
for him”.
His evidence confirmed the
testimony of DW2 that Efua Grant
contributed to the construction
of the building.
Upon a careful scrutiny of the
evidence, I am of the view that
the judgment of the learned
trial judge was entirely correct
and I would accordingly dismiss
the appeal.
LAMPTEY JA.
I have had the opportunity to
read the judgment of my brother
Forster JA and agree with his
conclusion that the instant
appeal be dismissed. I wish
however to make a few
observations on the arguments
and submissions before the
court.
Before the High Court, Sekondi
the appellant had sought a
declaration “that House No 62/29
and House No 63/29 Ekuasi are
the joint properties of Kodwo
Tandoh (deceased) and Ebow
Kobina Tandoh and therefore not
the subject of disposition in
the will of Kodwo Tandoh
(deceased)”. I must point out
that Ebow Kobina Tandoh is the
present appellant. Some six
months later the appellant
caused to be filed on his behalf
a notice to amend the
endorsement on his writ of
summons in the following
language:
“In the alternative a
declaration that House No 63/29
Ekuasi is the property of
plaintiff and his brothers and
sisters.”
This motion was never taken and
therefore the appellant’s case
remained as was stated in the
original writ of summons. The
respondents resisted the claim
of the plaintiff. The trial
judge rejected the claim of the
appellant and accordingly
dismissed his action. Against
the decision of the trial court
the appellant appealed to this
court.
The first ground of appeal
argued by learned counsel was
that the trial judge erred in
holding that joint ownership of
property between father and son
was not known to customary law.
He submitted that joint
ownership of real property is
recognised and known to the
customary law. He contended that
the facts given in evidence by
appellant and his two witnesses
satisfactorily proved and
established the case of joint
ownership of House No 63/29,
Ekuasi in the appellant and his
late father. In reply, learned
counsel for the respondents
argued that the case put forward
by the appellant was a claim of
customary gift of House No 63/29
Ekuasi from their late father to
all his children and not a case
of joint ownership of that
property. He submitted that the
trial judge was right in
rejecting the case of the
appellant because the evidence
adduced by him did not prove a
customary gift of the property
in dispute to him. He pointed
out that there was no evidence
that the appellant gave “aseda”
as required by customary law to
seal the gift.
I have referred to the claim of
the appellant as was endorsed on
the writ of summons. The
appellant was in law bound by
his pleadings. No useful purpose
would be served if I repeat here
the case law on this issue. It
has been adequately dealt with
in the judgment of my brother
Forster JA. I do not think the
appellant put forward a case
other than he clearly and
plainly spelt out in his writ of
summons and the explanatory
statement of claim. I reject the
submission of learned counsel
for the respondent that
appellant’s case was that the
houses in dispute were gifted to
him and his brothers and
sisters.
The next observation I must make
is that the appellant did not
adduce any shred of evidence to
support and prove his claim in
respect of House No 62/29
Ekuasi. The trial judge was
right in law in dismissing the
claim made in respect of that
house; little wonder appellant
had not pressed his appeal in
respect of that house. I affirm
the decision of the trial judge
dismissing the appellant’s claim
to House No 62/29 Ekuasi.
In respect of House No 63/29
Ekuasi did the appellant adduce
evidence which on the balance of
probabilities proved and
established his claim? The trial
judge answered that question in
the negative. The trial judge
gave reasons for rejecting the
evidence of the appellant on the
issue of the contributions he
claimed he made in cash and in
building materials towards the
construction of the house in
dispute. Before us, it has not
been shown that on the evidence
adduced by the appellant and his
two witnesses the trial judge’s
finding could not be supported.
The case of the appellant on
careful examination was full of
conflicts on crucial issues. A
few examples would illustrate
and support the above finding.
First on the evidence as to the
date on which the request to
appellant by his late father to
assist with funds to build the
house, the appellant gave this
date as 1965. PW1, Kojo Mensah,
a younger brother of appellant
told the court that the request
was made to all the children. He
did not state the date on which
the request to them was made.
PW2, John Ashun who described
himself as a friend of appellant
for 30 years gave the date on
which the request was made as
1967. The court, no doubt, was
left with two conflicting dates
on this issue, namely 1965 and
1967.
Secondly, the evidence of PW2
was that when he discussed the
issue of the request for
assistance with appellant’s
father it became clear to him
that appellant had definitely
refused to offer any assistance.
He undertook to persuade the
appellant to offer assistance.
If this piece of evidence is
true then the evidence of
appellant that in 1965 he had
given to his late father cash in
the sum of ¢4,250 cannot be
true. This must be the
inevitable conclusion if PW2’s
evidence that the discussion
with appellant’s father took
place in 1967 is true. Again the
evidence of PW2 was that at the
time the discussion on the issue
of assistance took place in 1967
the actual construction of the
building had not commenced. This
was how he put it:
“I sat down near him
(appellant’s father) and he told
me that the blocks which were
beside his house (i.e. House No.
62/29) were blocks he was going
to use to build a house for his
children.”
PW2 testified further that the
actual construction of the
building commenced in 1972. The
evidence of the appellant did
not show that the construction
of the building began in 1972.
It sought to show that the
building of the house was
commenced long before 1972;
probably it was commenced soon
after he gave his late father
¢4,250 that is to say some time
in 1965. On this issue, this was
the reply PW1 gave to the court:
“Q. When did you finish school?
A. In 1975.
Q. Do you know when the house
was started?”
A. I cannot tell.”
It is significant to note that
PW1, the younger brother of the
appellant, claimed he gave
assistance to his late father
towards the building of the
house in dispute. He completed
his elementary education in 1975
yet could not tell the court
when the actual construction of
the house was commenced. I have
drawn attention to the above
conflicts and contradictions in
the case of the appellant to
show that the trial judge was
right in the conclusion he
reached on the evidence before
him.
There was further justification
for the finding by the trial
court that the appellant failed
to prove on the balance of
probabilities the case he
presented. A careful examination
and consideration of the
evidence led by the appellant
showed that the evidence that he
made substantial payments of
cash namely ¢4,250 in 1965 and
¢500 in 1974 was not
corroborated by other evidence.
In my opinion the trial judge
was right in rejecting those
pieces of uncorroborated
evidence.
The other ground of appeal was
that the failure of the
respondents to call Efua Grant
and Kobina Gyan was fatal to the
case of the respondents. Learned
counsel for the appellant argued
that the evidence of 2nd
defendant which showed that Efua
Grant and Kobina Gyan
financially assisted the father
of appellant to put up the house
in dispute should have been
corroborated by evidence from
Efua Grant and Kobina Gyan. He
submitted that the trial judge
erred when he accepted the
uncorroborated evidence of 2nd
defendant that Efua Grant and
Kobina Gyan gave financial
assistance to the father of
appellant to enable him build
the house in dispute. In reply
to the above argument, learned
counsel for respondents
submitted that the trial judge
was right in the view he took on
this issue. He contended that
since the respondents did not
counterclaim for any relief and
remedy they did not assume any
burden of proof in this case.
I will deal with this last issue
first. It is trite learning that
the appellant must succeed on
the strength of his own case
because the weakness in the case
of the respondents would not
avail him. What this
well-established rule means,
briefly stated, is that the
appellant must discharge the
burden of proof that he assumed.
In the instant case, the
respondents had not
counterclaimed for any relief or
remedy and therefore did not
assume any burden of proof. The
respondents’ defence to the
action was that the appellant
did not make any financial
contribution towards the
building and construction of the
house in dispute. They put
forward Efua Grant and Kobina
Gyan as persons who gave some
financial help to the father of
the appellant towards the
building of the house in
dispute. This defence enjoined
the appellant at the very least
to lead evidence to prove that
Efua Grant and Kobina Gyan did
not give financial assistance as
claimed by 2nd defendant. In my
opinion it was not necessary for
the respondents to call Efua
Grant and Kobina Gyan as
witnesses. The argument of
learned counsel for the
appellant on this issue is
misconceived. This ground of
appeal fails.
In conclusion I hold that the
appellant failed to fault the
judgment of the High Court.
There is no merit in the appeal.
It is for the reasons given
above that I would also dismiss
the appeal and affirm the
judgment of the lower court.
KPEGAH JA.
I have read both opinions just
read by my brothers Forster JA
and Lamptey JA. I do not think
there is anything useful for me
to add except to say that the
trial judge’s findings are amply
supported by the evidence on
record.
I therefore agree that the
appeal be dismissed.
Appeal dismissed.
Kizito Beyuo, Legal
Practitioner. |
