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Property - Ownership - Recovery
of possession -
Res Judicata - Whether or not
Richard Peprah was the rightful
owner of the disputed land -
Whether the plaintiff is
entitled to all or any of the
reliefs claimed in this case -
Whether or not there was an
issue of resulting trust.
HEADNOTES
Richard Peprah (deceased) was
one of the plaintiff’s (Veronica
Opoku) children. They both
resided in the U.S.A. In 1984,
Richard was involved in a
ghastly motor accident which
left him with serious permanent
injuries; (and now, this is
where the divergence begins)
According to the mother, she
subsequently travelled to Accra
Ghana in the year 2000 and
purchased the House in issue, No
C48/22. Abofu, Accra from one
Doris Lolonyo Hotse; the
transaction was reduced into
writing. She put her son in
occupation and left for the USA.
When Richard subsequently died
in the year 2003, she came down
to Ghana only to find the
defendant in occupation. Her
efforts at getting her to
surrender vacant possession
yielded no fruits; for the
defendant claimed that she was
in the house at the behest of
her elder sister in whom the
property was vested on account
of a bequest in a Will made by
Richard.
In resisting the claim, the
defendant had this story to
tell. Her elder sister, Mrs.
Iris Peprah, was married to
Richard Peprah in 1997 after
Richard’s involvement in the
serious motor accident in the
USA. Upon receipt of his
compensatory award; Richard
travelled to Ghana in 1994 and
purchased the house in dispute
from one, Aunty Efe; since he
was unmarried at the time; the
documents of title were prepared
in his mother’s name, ie the
plaintiff. Richard subsequently
sought to change the name on the
document by sending an amount of
500 US dollars through her
(defendant) to Aunty Efe for the
purpose. Since the defendant met
the absence of Aunty Efe, she
left the money with an inmate of
the house. The change could
however not be effected until
the demise of Richard in 1983.
According to the defendant,
Richard, after the purchase,
lived in the house with her
sister and later let it to
tenants. Richard died testate
and bequeathed the house to her
sister. She therefore asserted
that she was in the house at the
behest of her sister, the owner
of the house
HELD :-
Since the defendant
clearly demonstrated that she
was contesting the case on
behalf of the Mrs. Peprah, it
would be extremely difficult in
the face of the evidence on
record for Mrs. Peprah to deny
that she had notice of the
proceedings. Having gone through
the record of proceedings
therefore, we are satisfied that
the defendant has not met the
standard set in the Achoro line
of cases and so has failed to
rebut the presumption of
correctness of the findings of
the two courts. There is no
evidence that there were any
errors in the findings in the
face of the documentary evidence
nor evidence of a misapplication
of any principle of evidence.
The allegations made in the
notice of appeal and the
submissions made thereon have
therefore not been
substantiated. We are satisfied
that the findings, the subject
of the challenge, are amply
supported by evidence on
record.We would therefore
dismiss the defendant’s case in
its entirety.
STATUTES REFERRED TO
IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
In RE Okine (DECD); Dodoo
and Another v Okine and Ors
2003-2004 SCGLR 582
In Re Krobo Stool (No1);
Nyamekye (No1) v Opoku (2000) SC
GLR 347
In Achoro v Akanfela supra
at 214
Thakur Harihar Buksh v
Thakaur Umon Parshad (1886) LR
141A7
Robins v National Trust Co
(1927) AC 515
Allen v Quebec Warehouse
Co (1886) 12 App Cas 101
Akese v Ababio 1935 2 WACA
254.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ญญญญญญญญญญญญญญญญญAKOTO-BAMFO,
JSC:-
COUNSEL
SHAHADU MOHAMMED FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT
KWAKU ANKAMA OFEI-BADU FOR
THE
DEFENDANT/APPELLANT/APPELLANT
ญญญญญญญญญญญญญญญญญญญญญญญญญญญญAKOTO-BAMFO,
JSC:-
On the 5th of
February 2015, the Court of
Appeal, in a unanimous decision,
dismissed an appeal lodged
against the decision of the High
Court entered in favour of the
Plaintiff/Respondent/Respondent.
The
defendant/appellant/appellant
promptly registered her protest
against the decision by filing a
Notice of Appeal consisting of 6
grounds.
For the ease of reference,
the parties shall, hereafter
simply be referred to as
plaintiff and defendant.
Briefly, the events which
culminated into the present
proceedings, run as follows:
Richard Peprah (deceased)
was one of the plaintiff’s
(Veronica Opoku) children. They
both resided in the U.S.A. In
1984, Richard was involved in a
ghastly motor accident which
left him with serious permanent
injuries; (and now, this is
where the divergence begins)
According to the mother,
she subsequently travelled to
Accra Ghana in the year 2000 and
purchased the House in issue, No
C48/22. Abofu, Accra from one
Doris Lolonyo Hotse; the
transaction was reduced into
writing. She put her son in
occupation and left for the USA.
When Richard subsequently
died in the year 2003, she came
down to Ghana only to find the
defendant in occupation. Her
efforts at getting her to
surrender vacant possession
yielded no fruits; for the
defendant claimed that she was
in the house at the behest of
her elder sister in whom the
property was vested on account
of a bequest in a Will made by
Richard.
She therefore issued a
writ claiming against the
defendant the following reliefs:
1.
An order for recovery of
possession of the aforesaid land
together with the house numbered
C48/22, Abofu, Accra, the
subject matter of this suit from
defendant.
2.
Perpetual injunction restraining
defendants the heirs, privies,
assigns and all other persons
claiming through defendants and
whatsoever described from
interfering or in anyway
disturbing plaintiffs peaceful
and/or quiet enjoyment of her
land together with house
numbered C48/22, Abofu, Accra,
the subject matter of this suit.
3.
General damages for trespass.
In resisting the claim,
the defendant had this story to
tell.
Her elder sister, Mrs.
Iris Peprah, was married to
Richard Peprah in 1997 after
Richard’s involvement in the
serious motor accident in the
USA. Upon receipt of his
compensatory award; Richard
travelled to Ghana in 1994 and
purchased the house in dispute
from one, Aunty Efe; since he
was unmarried at the time; the
documents of title were prepared
in his mother’s name, ie the
plaintiff.
Richard subsequently
sought to change the name on the
document by sending an amount of
500 US dollars through her
(defendant) to Aunty Efe for the
purpose. Since the defendant met
the absence of Aunty Efe, she
left the money with an inmate of
the house. The change could
however not be effected until
the demise of Richard in 1983.
According to the
defendant, Richard, after the
purchase, lived in the house
with her sister and later let it
to tenants.
Richard died testate and
bequeathed the house to her
sister. She therefore asserted
that she was in the house at the
behest of her sister, the owner
of the house, and therefore
counter claimed for these
reliefs:
a.
A declaration that the disputed
house numbered C48/22 Abofu,
Achimota, Accra, has now
devolved upon Mrs. Iris C.
Peprah by virtue of a devise
made by Richard Peprah
(deceased) as contained in his
Last Will and Testament dated 24th
2003 and admitted to Probate.
b.
Perpetual injunction to restrain
the plaintiff her agents,
assigns, servants, workmen
privies, grantees and by all
claiming through under and in
trust of the plaintiff from
interfering in anyway whatsoever
with the H/No C48/22 Abofu,
Achimota Accra, in the
Greater-Accra Region of the
Republic of Ghana.
The learned High Court Judge set
down these issues for
resolution:
i.
Whether or not plaintiff is the
rightful owner of the disputed
land?
ii.
Whether or not Richard Peprah
was the rightful owner of the
disputed land?
iii.
Whether or not defendant has any
valid interest in the disputed
land?
iv.
Whether the plaintiff is
entitled to all or any of the
reliefs claimed in this case?
v.
Whether or not defendant is
entitled to any of the reliefs
claimed in her counterclaim?
vi.
Any other issue arising from the
pleadings filed in this case.
In his judgment, the
learned Judge, found, inter
alia, that it was the plaintiff
who bought the house and put her
son in occupation and
additionally that the Will made
by Richard was not specific as
to the house referred to therein
since he found that Richard paid
rates in respect of other
houses, as per the Exhibit 5
series.
He therefore dismissed the
defendant’s counterclaim and
entered judgment for the
plaintiff.
Naturally dissatisfied,
the defendant launched an attack
against the decision by filing a
Notice of appeal before the
Court of Appeal. The defendant
however suffered the same fate,
the appeal was dismissed.
Undaunted, she mounted the
instant appeal, the premise upon
which she launched the attack is
set out as follows:
1.
The judgment is against the
weight of evidence adduced at
the trial.
2.
Their Lordships misdirected
themselves and erred in law when
they held that the issue of
resulting trust was tangential
and not one of the issues for
determination though the learned
Trial Judge suo motu directed
counsel for parties to address
him on that issue because there
was evidence on record that the
money for purchase of the
disputed property came from
Plaintiff/Respondent/Respondent’s
son Richard Peprah.
3.
Both the High Court and the
Court of Appeal erred in law
when they failed to consider the
issue of resulting trust.
4.
Their Lordships neglected their
Judicial Duty when they failed
to consider the address of
Counsel for the
Defendant/Appellant/Appellant to
the effect that though
Plaintiff/Respondent/Respondent
pleaded that she acquired the
disputed property from Doris
Lolonyo Hotse, in her
evidence-in-chief she said she
acquired the property from Madam
Efe Ampomah Mensah which meant
she failed to prove her root of
title.
5.
Their Lordships in the Court of
Appeal misdirected themselves
and erred in law when they held
that the Defendant in her
pleadings admitted that
Plaintiff bought the property
the subject-matter of dispute
from Madam Lolonyo Hotse and
therefore there was no need for
the
Plaintiff/Appellant/Appellant
admitted that Claim but rather
put up a rival story.
6.
Further grounds of appeal to be
filed upon receipt of the
Record.
No additional grounds were
however filed.
Counsel for the defendant
submitted that both the High
Court and the Court of Appeal
seriously failed to consider the
defendant’s case and that if
they had, they would have
entered judgment in her favour.
Arguing under the omnibus
ground ie the judgment being
against the weight of the
evidence on record, it was
contented that it would be
unfair for Mrs. Iris Peprah to
loose the Property when the
plaintiff knew that the
defendant was only a caretaker,
but nonetheless proceeded
against her, thus affording the
bona fide owner no opportunity
to be heard.
It was further submitted
that the claim was Res Judicata
in so far as the plaintiff did
unsuccessfully challenge the
Will in the USA, and that having
lost in both the trial and
appellate courts in the USA, the
plaintiff was estopped from
re-litigating on the issue in
this country, for he urged that
the fact of the House being the
subject of the specific devise,
was sufficient to raise the
issue.
It was a further
submission that since the
plaintiff pleaded that she
purchased the disputed house
from Doris Lolonyo Horste but
testified that her vendor was
Madam Efe, the two courts erred
when the High Court found that
the plaintiff had discharged the
burden placed on her, which
finding was concurred in by the
Court of Appeal.
According to him, the
conflicts in the evidence of the
plaintiff ought to have been
resolved in the defendant’s
favour.
On the issue of resulting
trust, it was submitted that the
Court of Appeal erred in finding
that the issue was tangential
and that having suo motu raised
it; the court ought to have made
a pronouncement thereon.
In response, it was
submitted, essentially relying
on the concurrent findings rule
as established in the Achoro v
Akanfela line of cases, reported
in the 1996-97 SCGLR 209 that
the appellants had failed to
displace the burden imposed by
the rule since they failed to
demonstrate the errors in the
findings.
It was further contended
that some of the issues raised
were neither part of the
proceedings in the High Court
nor were they set out in the
Grounds of Appeal.
A perusal of the Record
shows that, in the main, the
defendants simply reproduced the
grounds and submissions which
the two courts considered and
pronounced upon.
It is generally
established that an appellate
court must not disturb findings
of fact made by a trial Court,
even if the appellate Court
could have come to a different
conclusion unless the findings
of fact made by the trial Judge
were wholly unsupported by the
evidence.
In RE Okine (DECD); Dodoo
and Another v Okine and Ors
2003-2004 SCGLR 582
Atuguba JSC re-echoed this
principle In Re Krobo Stool
(No1); Nyamekye (No1) v Opoku
(2000) SC GLR 347 at 380 in
these terms “ It is a worn-out
principle of law that findings
of fact made by a trial Judge
are presumed to be right and the
onus is on the
plaintiff-appellant to displace
that presumption”.
The defendant having lost
before the High Court and the
Court of Appeal, she is
undoubtedly before this court on
a 2nd attempt at
derailing the decision of the
High Court.
In Achoro v
Akanfela supra at 214;
Acquah JSC as he then was stated
the rule in these terms “ Now in
an appeal against findings of
fact to a second appellate court
like this court, where the lower
appellate court had concurred in
the findings of the trial court,
especially in a dispute, the
subject-matter of which is
peculiarly within the bosom of
the two lower courts or
tribunals, this court will not
interfere with the concurrent
findings of the lower courts
unless it is established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, is
apparent in the way in which the
lower tribunals dealt with the
facts. It must be established,
eg, that the lower courts had
clearly erred in the face of a
crucial documentary evidence, or
that a principle of evidence had
not properly been applied: see
Thakur Harihar Buksh v Thakaur
Umon Parshad (1886) LR 141A7;
or, as pointed out in Robins v
National Trust Co (1927) AC 515,
that the finding is so based on
erroneous proposition of the law
that if that proposition be
corrected, the finding
disappears. In short, it must be
demonstrated that the judgments
of the courts below are clearly
wrong: see Allen v Quebec
Warehouse Co (1886) 12 App Cas
101”.
Indeed there is a
presumption of correctness in
respect of concurrent findings
of fact by courts of competent
jurisdiction. Akese v Ababio
1935 2 WACA 254.
The plaintiff asserted in
her statement of claim that she
purchased the disputed property
from Doris Lolonyo Hotse who
gave her Exhibit A, the
documents of title. Before the
court she testified that she
made the purchase through Madam
Efe. Significantly the defendant
averred that Richard bought the
House from Aunty Efe and that he
used his mother’s name as the
purchaser because he was not
married then. That document was
however not produced; the
defendant pleaded though that
she subsequently came upon the
conveyance Exhibit A.
The averment in Paragraph
2 of the plaintiff’s statement
of claim that she purchased the
property from Doris Lolonyo
Hotse was admitted by the
defendant in paragraph 14 of her
defence. Before the Court the
plaintiff explained that she
made the purchase through Madam
Efe. This explanation was
accepted by the trial Judge
therefore the assertion that
these were conflicts in the
story of the plaintiff was not
borne out of the evidence since
the basis of the learned Judge’s
acceptance of the plaintiff’s
explanation on the issue cannot
be faulted.
In the light of the
evidence placed before the
court, the learned Judge rightly
found that the plaintiff
discharged the burden placed on
her. As to whether the learned
Judge wrongly allocated the
burden on the defendant on the
issue it is pertinent to note
that the defendant, having filed
a counterclaim assumed the
position of the plaintiff and
was therefore under a duty to
discharge the burden of
persuation on the issue. She
only asserted in her pleadings
that Richard bought the house
for his benefit. When she
mounted the box she only
repeated those averments without
any attempt at substantiating
those allegations either by
documentary evidence or calling
persons with personal knowledge
of the matters raised.
Consequently, the learned Judge
rightly made those findings of
fact. This court has no basis
for disturbing same.
Even though the issue of
Resulting Trust was originally
not an issue before the court;
the learned Judge having raised
the issue did sufficiently
address same. The court of
Appeal in its concurring finding
dismissed the claim as well that
Richard was the beneficial
owner; it found that there was
no evidence to support that
assertion and noted that it was
in consonance with our
traditions and customs for a son
to buy property for the benefit
of the mother, even if there had
been evidence that it was
Richard who purchased the house.
The plaintiff commenced
the action against the occupier
of the disputed house, it was
the defendant’s statement of
defence which disclosed that she
was on the property as a
licensee and proceeded to mount
a counterclaim for a declaration
that the property was owned by
Mrs. Peprah by virtue of the
devise in the last Will and
Testament of Richard.
Since the defendant
clearly demonstrated that she
was contesting the case on
behalf of the Mrs. Peprah, it
would be extremely difficult in
the face of the evidence on
record for Mrs. Peprah to deny
that she had notice of the
proceedings.
Having gone through the
record of proceedings therefore,
we are satisfied that the
defendant has not met the
standard set in the Achoro line
of cases and so has failed to
rebut the presumption of
correctness of the findings of
the two courts.
There is no evidence that
there were any errors in the
findings in the face of the
documentary evidence nor
evidence of a misapplication of
any principle of evidence. The
allegations made in the notice
of appeal and the submissions
made thereon have therefore not
been substantiated.
We are satisfied that the
findings, the subject of the
challenge, are amply supported
by evidence on record.
We would therefore dismiss
the defendant’s case in its
entirety.
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
SHAHADU MOHAMMED FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT
KWAKU ANKAMA OFEI-BADU FOR
THE
DEFENDANT/APPELLANT/APPELLANT
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