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GHANA BAR REPORT 1993 -94 VOL 1

Yorkwa v Duah

COURT OF APPEAL

ESSIEM, BROBBEY JJA, OMARI-SASU J

19 NOVEMBER 1992

Land law and conveyancing - Declaration of title - Action for, - Appellant’s predecessor in possession of disputed land for over ten years - Appellant alleging a sale of disputed property, respondent alleging a pledge - Burden of producing evidence on respondent - Evidence Decree 1975, (NRCD 323) ss 10, 11, 14.

Evidence - Witness - Death of, - Witness dying before cross-examination - Testimony to be expunged from record - Evidence to be considered with caution if not expunged.

Practice and procedure - Parties - Capacity to sue - Plaintiff’s capacity in issue though not raised at hearing - Judge obligated to consider issue of capacity as a serious point of law.

Evidence - Documentary evidence - Weight - Court to prefer authentic documentary evidence to conflicting oral evidence.

One Newman and Isaac jointly took a loan from the First Ghana Building Society to be repaid by monthly instalments and mortgaged the disputed house to the Society. They fell into arrears and the Society threatened to foreclose. The two mortgagors approached one Nyieni, a money-lender, who advanced various amounts to them and was let into possession of the disputed property. Nyieni died having willed the house to the appellant. The mortgagors instituted an action in the High Court for a declaration of title to the property, an order setting aside the devise, an order for recovery of possession, perpetual injunction and account of rents collected by the appellant. Newman died in the course of his testimony and had willed the property to his widows one of whom was the respondent. The appellant tendered in evidence exhibit 1 by which the mortgagors informed the Society that they had sold the property to Nyieni. The trial judge gave judgment for the respondent. On appeal the appellant contended that the onus was on the respondent to establish the alleged pledge. The respondent on the other hand contended that the appellant had to establish the alleged sale.

Held - (1) This being a land case the respondent must succeed on the strength of her own case; secondly, for nearly ten years previously, the father of the appellant was in possession of the house. A person in possession and occupation of land was entitled to the protection of the law against the whole world except the true owner or someone who could prove a better title. Further, the Evidence Decree (1975) NRCD 323 required that in a case like the instant one the obligation to adduce evidence should first be placed on a plaintiff. The onus of adducing evidence lay on the respondent initially to establish the alleged pledge. In re Adjancote Acquisition, Klu v Agyemang II [1982-83] GLR 852, Twifo Oil Plantation Project Ltd v Ayisi [1982-83] GLR 881, Asare v Apau II [1984-86] 1 GLR 600, Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, Odametey v Clocuh [1989-90] 1 GLR 14 followed. Kyiafi v Wono [1967] GLR 463 not followed.

(2) In so far as Newman was not cross-examined on his evidence the trial judge ought not have relied on it but ought to have expunged it from the record. The least he could have done was to have cautioned himself before giving consideration to the testimony. Laryea v Foriwah [1984-86] 2 GLR 410 cited.

(3) Where a person’s capacity to initiate proceedings was in issue, it was no answer to give that person a hearing on the merits even if he had a cast-iron case. Even though the point of respondent’s capacity was not raised at the trial it involved a serious point of law that the trial judge ought to have considered. Sarkodie v Boateng II [1982-83] GLR 881 cited.

(4) Whenever there was in existence a written document and oral evidence over a transaction, the practice in the court was to lean favourably towards the documentary evidence, especially if it was authentic and the oral evidence conflicting. As between the conflicting and inconsistent oral evidence and the authentic exhibit 1 on the pledge, the court would lean favourably towards exhibit 1 that supports the case of the appellant that the transaction was a sale and not a pledge. Hayford v Egyir [1984-86] 1 GLR 682 cited.

Cases referred to:

Adjancote Acquisition, In re Klu v Agyeman II [1982-83] GLR 852, CA.

Akyea-Djamson v Duagbor [1984-86] 1 GLR 223, SC.

Asare v Apau II [1984-86] 1 GLR 600, CA.

Bulstrode v Lambert [1953] 2 All ER 728, [1953] 1 WLR 1064, 97 Sol Jo 557, Digest (Repl) 121.

Canadian Oil Works Corporation, Re, Hay’s Case (1875) 10 Ch App 593, 44 LJ Ch 721, 33 LT 466, 24 WR 191.

Conney v Bentum-Williams [1984-86] 2 GLR 301,CA.

Cordell v Second Clanfield Properties Ltd [1968] 3 All ER 746, [1969] 2 Ch 9, [1968] 3 WLR 864, Estates Gazette 1001, 19 PCR 848, Digest Cont Vol C 42.

Hayfron v Egyir [1984-86] 1 GLR 682, CA.

Kyiafi v Wono [1967] GLR 463, CA.

Laryea v Foriwah [1984-86] 2 GLR 410, CA.

Mason v Clarke [1954] 1 All ER 189, [1954] 1 QB 460, [1954] 2 WLR 48, 98 Sol Jo 28, 162 Estates Gazette 620, CA; revsd [1955] AC 778, [1955] 1 All ER 914, [1955] 2 WLR 853, 99 Sol Jo 274, 165 Estates Gazette 384, HL.

Moses v Anane [1989-90] 2 GLR 694, CA.

Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, SC.

Odametey v Clocuh [1989-90] 1 GLR 14, SC.

Sarkodee I v Boateng II [1982-83] GLR 715, SC.

Twifo Oil Plantation Project Ltd v Ayisi [1982-83] GLR 881, CA.

Nana Tabi Amponsah for the respondent.

APPEAL from the judgment of the High Court, Kumasi.

BROBBEY JA. The facts which gave rise to the litigation between the parties to this case are as follows: One Charles Oduro Newman and Kwadwo Adom Isaac jointly took a loan from the First Ghana Building Society to build a house on plot No 4, 9A, Dadiesoaba in Kumasi. The house thus became jointly owned by the two men. As security for the repayment of that loan, they mortgaged the house to the First Ghana Building Society which I will refer to hereafter as ‘the building society’. According to PW1 who was one of the joint owners, they were to repay the loan by monthly instalments of £40. The loan was taken from the building society in 1959. The repayment fell into arrears. By 1964 the two mortgagors jointly owed £500 on the monthly repayments in addition to the outstanding capital of £2,050. The building society threatened to sell the house.

In these circumstances, the two mortgagors approached one Kwame Nyieni for financial assistance. Nyieni was a money-lender. From the evidence of PW1, two separate amounts were taken from Nyieni, one in 1961 possibly taken by Newman alone, and the other in 1964. The 1961 amount had not been re-paid when Newman and Oduro approached Nyieni for further financial assistance in 1964. In fact, Nyieni gave them the amounts they required. Possession of the house was given to him. In 1975 Nyieni died, having willed the house which they jointly owned as per exhibit 2 to his son Kwaku Duah who is the appellant herein.

Kwaku Duah refused to surrender the house to the two joint owners. The two instituted action in the High Court Kumasi claiming five reliefs. Charles Oduro Newman gave evidence but he did not conclude it before he died. His testimony was admitted in evidence as exhibit C. He was substituted by one Kofi Nimoh. Eventually, Adom and Nimoh learnt that Newman had willed the property to his two widows. Akosua Yorkwa, one of the widows, joined the suit as 3rd plaintiff. Nimoh and Adom withdrew from the case for the reason that Newman had willed the house to his widow. Oduro however testified as PW1 for Akosua Yorkwa who fought the case to the end and now pursues it as the sole respondent. In the High Court, judgment was given in favour of the respondent. It is against that judgment that the appellant has appealed to this court.

A number of issues have been raised in this appeal. By far the most fundamental one is whether the transaction between the appellant’s father, Kwame Nyieni, and the two original joint owners was a pledge or a sale. In the first place, the appellant contends that the onus was on the respondent who asserted that the transaction was a pledge to establish the pledge. The respondent on the other hand maintains that the appellant who asserted that the transaction was a sale had to establish that sale. In other words, each party bases his case on the issue which, if established, will effectively exclude the consideration of the other party’s case.

I proceed to resolve the issue of onus of proof as follows: Firstly, this is a land case and therefore the plaintiff-respondent must succeed on the strength of her own case. Secondly, there was the issue of possession of the house. The transaction took place in 1964. For nearly ten years the father of appellant was in possession of the house. Possession was still with the appellant and his predecessor at the very time the respondent’s predecessors in title instituted the instant action to retrieve the house. It is now a settled principle that a person in possession and occupation is entitled to the protection of the law against the whole world except the true owner or someone who can prove a better title: see In re Adjancote Acquisition; Klu v Agyeman II [1982-83] GLR 852, Twifo Oil Plantation Project Ltd v Ayisi [1982-83] GLR 881.

Thirdly, the provisions of the Evidence Decree (1975) NRCD 323 require that in a case like the instant one the obligation to adduce evidence should first be placed on the plaintiff. This view will be further elaborated upon when the respondent’s case, as argued by her counsel, is considered below. On the basis of these three principles, it is my considered view that, initially, the onus of adducing evidence lies on the plaintiff-respondent to have established her assertion of pledge on which her writ and her entire case was based.

Nana Tabi Amponsah who appears for the plaintiff-respondent contended that because the initial ownership of the property was in the original joint owners and that fact was admitted by the original defendant, the onus shifted to the original defendant who was in possession to have established that he had better title than the original owners. Counsel founded his contention on the authority of Kyiafi v Wono [1967] GLR 463 in which Ollenu JA of blessed memory stated at pages 466-467 that:

“Where in an action for recovery of possession of land in which it is alleged that the defendant is a licensee, or for redemption of land alleged to have been pledged, the defendant pleads ownership based upon title acquired from the plaintiff, the onus shifts upon the defendant who so admits the original title of the plaintiff to show that the transaction by which he entered into possession of the land is a sale or gift and not a licence or pledge.”

That case was decided by the erstwhile Court of Appeal. The practice in this court is that the Court of Appeal usually follows its previous decisions. The decision in that case can therefore only be departed from on reasoned and convincing grounds. In the first place, that decision is contrary to the provisions of the Evidence Decree 1975, (NRCD 323). Part II of NRCD 323 which deals with the burden of proof covers on the one hand the burden of producing evidence under sections 11, 12 and 13. Considering the wording of section 10(1), in the light of the Commentary on the Evidence Decree (pages 14-16), I am of the view that the expression “burden of persuasion” should be interpreted to mean the quantity, quantum, amount, degree or extent of evidence the litigant is obligated to adduce in order to satisfy the requirement of proving a situation or a fact. The burden of persuasion differs from the burden of producing evidence.

Under sections 11, 12 and 13, particularly section 179(1), the “burden of producing evidence” means the duty or obligation lying on a litigant to lead evidence. In other words, these latter sections cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led.

In our jurisprudence, if two parties go to court to seek redress to a dispute, it is the plaintiff who initiates the litigation and literally drags the defendant into court. If both parties decide to lead no evidence, the order which will be given will necessarily go against the plaintiff. Therefore it is the plaintiff who will lose first, who has the duty or obligation to lead evidence in order to forestall a ruling being made against him. This is clearly amplified in section 11(1) of NRCD 323 which provides that:

“For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.”

The position in the instant case is this: the house was originally in the possession of the plaintiffs. Some time in the history of the house, possession of it went to the defendant. Plaintiffs wanted to re-possess it, so they instituted the instant action claiming ownership and re-possession for the reason that the house went to the defendant on the basis of a pledge whose terms justified their claim to ownership and re-possession. Pledge is a positive averment which must be proved and its terms clearly established. If the plaintiffs who pleaded pledge gave no evidence the averment of pledge would remain unproved. A ruling that no pledge has been proved or established would go against the plaintiffs and that would mean further that the basis of the claim to re-possession and ownership would have failed.

The Evidence Decree makes provision for the duty or obligation to adduce evidence to shift from one party to the other. In a situation like the instant case, the duty or obligation could shift from the plaintiff to the defendant. If and when it is shifted, the defendant would be required to lead evidence to establish the sale, once he claimed to have had possession by reason of sale of the house to him. When the duty or obligation to adduce evidence shifts, and the defendant fails to adduce sufficient or any evidence on the sale, the ruling of the court on the issue of sale will be against the defendant. This is the reason for the provision in section 14 which states that:

“Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.”

If these were to be applied to the facts of this case, it would mean that, first and foremost, the plaintiffs had the obligation to adduce sufficient evidence on the pledge which is essential to the claim they asserted.

This duty or obligation on the plaintiffs is further emphasised in section 11(4) of NRCD 323 which reads:

“In other circumstances [which could only be referable to civil trials since the preceding two paragraphs had dealt with criminal trials] the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.”

In the instant case where the plaintiffs relied on a pledge while defendant relied on a sale, it is obvious that the duty or obligation on the plaintiffs was to have produced evidence so that the trial court would conclude that the existence of the pledge was more probable that its non-existence. If they established pledge and the onus thereafter shifted to the defendant, he too would have been obligated to adduce sufficient evidence on sale which was essential to the defence he asserted.

In terms of NRCD 323, therefore, the duty or obligation is on the party against whom a ruling on that issue would be given if he fails to lead sufficient evidence. Since the ruling on the initial basis for going to court, i.e. pledge would be against the plaintiffs, the initial obligation to adduce evidence will remain on the plaintiffs.

The principles enunciated in Kyiafi v Wono simply shift the onus of proof from plaintiffs to defendant as soon as the defendant admits that original ownership was vested in the plaintiff. According to that principle, the plaintiff did not have to prove the pledge once the defendant admitted that the property was initially owned by the plaintiff. In terms of the Evidence Decree however the plaintiff has to lead evidence on the pledge which is the basis of their case or risk a ruling on pledge being given against them. It is thus apparent that the principles enunciated in the Kyiafi case are in conflict with the express provisions in NRCD 323.

Where the terms of a statute are in conflict with principles in a decided case, it is well-established that the statutory provisions must prevail. This was what happened when an issue arose as to the authority of a High Court decision and a Court of Appeal decision on the effect of reservation in conveyances. The first decision was given in Mason v Clarke [1954] 1 All ER 189 and the second decision was given in Kyiafi v Wono [1967] GLR 463. Both decisions were contrary to the express terms of the Law of Property Act 1925 (15 & 16 Geo 5, C 20), s 65 (1). In Mason v Clarke Meggary J, sitting in the Chancery Division of the High Court was faced with the choice of having to follow the statutory provisions or the decided cases of which at least the Court of Appeal one was binding on him. In ruling on the issue in Cordell v Second Clanfield Properties Ltd [1968] 3 WLR 864 at p 871 he stated:

“If in those cases the court had put a particular construction on the words “without ... any regrant by him” I should, of course, bow to authority. But as one judgment did not refer to the subsection and the other, although referring to it, made no mention of the particular words in question, I think that I must discharge my double duty of obedience to case law and to statute by giving effect to the statute.”

In the instant case, the decided case predated the statute and therefore could not have referred to the non-existent statute. Additionally the provisions of the Evidence Decree being later in time than the decision in the Kyiafi case, the Evidence Decree should be deemed to have overruled the principles enunciated in that case. Further the decision in the Kyiafi case, if taken on its face value, may result in chaos and a plethora of litigation in our land tenure system.

If the decision in the Kyiafi case were correct, all that would be required of a person desiring to re-possess landed property from an occupant would be to issue a writ and aver that the land was originally owned by his family or stool. If the fact of the initial ownership is admitted by the defendant then the mere averment coupled with the admission would suffice to put the occupant on the offensive. No matter how legitimate and no matter how long his occupation of the land may be, the onus would at once shift onto the defendant to establish how he came by the possession or occupation of the land. However the reality of our land tenure system is that in this country almost every land was originally owned by a stool, skin, family or individual. On this, see the effect of Akyea-Djamson v Duagbor [1989-90] 1 GLR 223 (holding 2). The fact of the original ownership of lands in most land disputes is often undeniable and therefore such averment will readily be admitted by the defendant. This is because it is almost a truism that modern living in Ghana has necessitated mass movement of Ghanaians so much so that, very few Ghanaians occupy lands originally owned by their own indigenous stool, skin, family or ancestors. This did not come out in the evidence. It is however a notorious fact of which judicial notice can safely be taken. It cannot be a correct proposition of the law that mere averment followed by such admission should suffice to shift the onus of proof in land disputes of all cases.

From these analysis, it should come as no surprise that the principle enunciated in the Kyiafi case has never been followed in subsequent cases. That principle seemed to have been still-born and perished at birth. We would be doing litigation in this country incalculable disservice to resuscitate the mortal remains of that case from their quiet slumber. Like the reaction of James LJ in the case of Re Canadian Oil Works Corporation (1876) 10 Ch App 593 at 600 when a virtually defunct case was sought to be resurrected:

“It is most to be regretted that that case was not left requiescere in pace, and that its frailties should have now been dragged forth to public gaze.”

That proposition in the Kyiafi case is a principle which should be more honoured in the breach than in its observance as Shakespeare would put it.

Over and above all what has been stated here, there are several decided cases of this court and the Supreme Court, which point to the fact that in actions for declaration of title to land, the statement that the plaintiff should succeed by the strength of his own case pre-supposes that the plaintiff should lead evidence to establish his case. Three of such cases will be instanced to illustrate this point. In Asare v Apau II [1984-86] 1 GLR 600, it was held that the plaintiff must “prove his title and not rely on the weakness of his opponent’s”. Needless to say, the plaintiff can only prove his title by adducing evidence. Then there was the case of Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314 in which Adade JSC stated that a “person who comes to court, no matter what the claim is, must be able to make a good case for the court to consider, otherwise he must fail”. Lastly, in Odametey v Clocuh [1989-90] 1 GLR 14 it was held that if the plaintiff totally failed to make out a case for title to land, he could not rely on the weakness in the defence case.

All these cases and others too many to permit easy elaboration here lay down that if the plaintiff fails to lead evidence to make out his case he should lose the case. It cannot therefore be correct to assert that mere averment that the plaintiffs originally owned the disputed house and admissions of that fact by the defendant should suffice to constitute a case for the plaintiff.

I have taken pains to go to the length that appears in this judgment because as stated already, that decision coming from this court should not be treated or dismissed lightly. However, from the foregoing reasons and analysis, it is my considered view that the principle in Kyiafi v Wono is no longer good law. That case raises a presumption in favour of plaintiffs which is contrary to modern decisions and the provisions of the Evidence Decree.

The plaintiffs in this case cannot rely on the Kyiafi case to shift the onus of proof on the defendant. Since the plaintiffs came to court to claim the house on the basis of a pledge, that pledge should be established by them; if they failed to do that, their case should collapse.

The onus can surely shift from plaintiffs to the defendant as clearly provided in section 14 of NRCD 323. The shifting will however take place only after the plaintiffs have established the very basis on which they came to court and on which they claim to be better entitled to the house.

Finally, it must be borne in mind that what have been adumbrated upon here concern onus of proof in claims for declaration of title to land or landed property and possession thereof. Different considerations may well affect the onus of proof in the trial of some other civil cases.

In spite of the submission based on the Kyiafi case, Nana Tabi Amponsah contended further that the plaintiffs established a pledge on the evidence before the trial court. Indeed, the trial judge found that the pledge had been established. His conclusion was not based on his assessment of the creditability of the parties and witnesses, following his observation of their demeanour in the box for it to be said that this court is deprived of the opportunities available to the trial judge in making his conclusion. His conclusions were based on his own evaluation of the evidence on record which is equally available to this court. This court is therefore in as much a position as the trial judge to evaluate the evidence on record to come to its own conclusion, bearing in mind of course that at this stage of the proceeding, we cannot make findings of fact.

The decision of the trial judge was based, in the main, on the fact that he accepted the explanation offered by PW1 and Newman. That explanation was that Nyieni was to collect £80 as monthly rent from the house, out of which he was to have kept £40 as his drink. The remaining £40 was to be used by him to pay off the mortgage loan owed to the building society. According to the trial judge, Newman and PW1 further explained that the only document on the transaction, exhibit 1, was to enable Nyieni to pay the arrears of the instalment and subsequent instalments owed to building society. It was on the basis of these explanations that he held that the transaction was a pledge and not a sale.

At the time of the trial Newman had died without completing his evidence-in-chief. What he said was not cross-examined upon. His entire evidence was tendered as exhibit C. In so far as there was no cross-examination on that evidence, the trial judge should not have relied on it as he did. The unexamined evidence should have been expunged from the record. On a similar issue, this court held in Laryea v Foriwah [1984-86] 2 GLR 410 at 420 that:

“The absence of the cross-examination made the evidence of Codjoe incomplete and the incomplete evidence of a witness ought to be expunged from the record of proceedings. A party was entitled to test, under cross-examination, the veracity and the accuracy of the evidence-in-chief given by a witness produced by the opponent, and if through no fault of his, he is denied the opportunity of cross-examination on the evidence-in-chief of his opponent’s witness, then the whole of the evidence given by that witness ought to be expunged from the record...”

The least the judge could have done with exhibit C was to have cautioned himself on it before giving it consideration. No such caution was administered. The judge therefore erred to have placed blanket reliance on exhibit C without question.

It is evident from the record that at the trial the most important document was exhibit 1. From the tenor of the judgment the trial judge took the position that the respondent successfully relied on exhibit 1 to show that the transaction was a pledge. Counsel for the respondent however attacked exhibit 1 in some parts of his submissions. In other parts he seemed to have relied on it to emphasise that Nyieni was merely introduced to the building society.

The first attack of the respondent’s counsel was that exhibit 1 was not pleaded. That contention cannot be correct. The whole of the appellant’s case was based on the testimony of the appellant and exhibit 1. The fact that the letter was written by the original two joint owners to transfer the property to the appellant’s father was expressly pleaded in paragraph 6 of the statement of defence filed on 25 October 1983. Exhibit 1 was tendered by appellant’s counsel through the respondent without any objection being raised by the respondent or her counsel. The contention that exhibit 1 was never pleaded was not also raised at the trial. The trial judge treated exhibit 1 on the understanding that it was properly pleaded. That submission is therefore dismissed as baseless. It is not borne out by the evidence on record.

My view is that exhibit 1 is not an agreement of sale. There is nothing on the face of exhibit 1 which indicates that it was an agreement of sale. I found all the submissions of counsel for the respondent that the exhibit was not an agreement of sale to be like one combating a shadow. Even counsel for the appellant did not contend that exhibit 1 was an agreement of sale.

Properly considered, exhibit 1 should be construed to be evidence of the intent of the parties, i.e. Nyieni, Newman and PW1 when they entered into transaction. It was their intention that a sale should take place while the two were taking the money from Nyieni and which was the time exhibit 1 was prepared. If a sale took place, transfer of the subject-matter of the sale, i.e. the disputed house, was a necessary corollary to the collection of the money from Nyieni. That, to my mind, was the reason why exhibit 1 used the all-important word “transfer” and no other word. I say this because it was prepared by the original two joint owners who were both literate and they signed it as such. It is significant to point out that it was prepared by the two men while they were in the process of taking the loan. Having regard to the time exhibit 1 was prepared, the exhibit could only be taken to reflect why the loan was taken. The wording of exhibit 1 clarifies further the intent of the two owners who prepared it. Exhibit 1 which was addressed to the building society reads as follows:

“House No. 4 Block 9A Dadiesuaba-Kumasi

We have to request the society to transfer our above mentioned House to Opanyin Kwasi Nyieni of House No. KO 43, Ashanti New Town, Kumasi.

Thanks very much,

(1) (Sgd) C. K. Oduro

(2) (Sgd) K. A. Isaac.”

I think the most significant word in the document is “transfer”. In its plain ordinary sense, the word “transfer” has been defined as the passage of a right from one person to another by virtue of an act done by the transfer with the intention, as in the case of conveyance or assignment by way of sale or gift...” See Osborn’s Concise Law Dictionary 7th ed p 326. Wharton’s Law Lexicon, 14th ed p 1006 also defines “transfer” to mean, inter alia, “to convey” etc. The use of the word “transfer” clearly indicated that the original two joint owners intended to convey their interest in the house to Kwame Nyieni.

This, in my view, was the reason why exhibit 1 was addressed to the building society. In the circumstances when the property had been mortgaged to the building society, the two men knew that only the building society could effect transfer of their interest in the house.

Further it was probably because Nyieni had obtained the note of transfer that he did not ask for the receipt for the amount he gave the two men. If the consideration for the amount given was the house and the borrowers had indicated the transfer of their interest in the house to the lender, why should the lender worry about a receipt? On these analyses alone, if no receipt was taken I think one should understand that it was the conduct of the original two joint owners in producing exhibit 1 that must have induced Kwame Nyieni to believe that a receipt over and above the authority to secure the transfer was otiose or surplussage. It was simply superfluous in the circumstances.

I should not be taken to be saying that exhibit 1 itself constituted transfer or amounted to agreement of sale. These are not my conclusions in this judgment. My view is that exhibit 1 is eloquent testimony that PW1 and Newman had decided to transfer the house to the lender Nyieni. That transfer came about as a result of the sale, because when they were taking the money from Nyieni they knew that they were taking it for the sale of the house to him. That is why I am of the view that exhibit 1 should have been construed by the trial judge as positive evidence confirming the sale, rather than a pledge. If the joint owners merely pledged the house to Nyieni, exhibit 1 would not have been couched the way it was. A pledge does not involve transfer of title to property. It merely places the lender in possession for the purpose of making use of that property. To my mind, the use of that word “transfer” in exhibit 1 negates the respondent’s argument that the transaction was a pledge. In a situation where neither pledge, nor transfer nor agreement of sale was proved, but the evidence implicitly showed that the parties clearly intended to sell the disputed house, the court has a duty to give effect to the intent.

I reject as far-fetched and unrealistic the argument of the respondent and PW1 that exhibit 1 was an introductory letter or a note to introduce Nyieni to pay the mortgage balance to the building society. The operative word in exhibit 1 is “transfer”. That word can never be interpreted to mean or connote “introduction” or “introductory”. The word “introduction” or “introductory” appears nowhere on exhibit 1. If it was an introductory letter, exhibit 1 would have said so. Exhibit 1 did not say so because that was not on the mind of the two joint owners when they made exhibit 1. This was not a case in which Nyieni prepared exhibit 1 and sent it to the joint owners to append their signatures to it at the time when they would have signed anything because of their desperate need for assistance from Nyieni and could be said to be underdogs without any bargaining power. There is no evidence to that effect. It was voluntarily prepared by the two owners in the privacy of their houses or offices. When they prepared it, they inserted their own terms and chose words which they knew would reflect their own intentions or objectives for preparing exhibit 1.

Consistent with the explanation given by PW1, counsel for the respondent invited the court to interpret exhibit 1 to amount to an introductory note. However, on the face of exhibit 1, I do not see by what stretch of the imagination or strength of argument it could be said to amount to a note introducing Nyieni to the building society.

A more formidable reason why exhibit 1 could not have been intended to be an introductory letter was this: the two men owed money to the building society. The moneys had to be paid. Ordinarily, when money is owed to a banking institution like the building society, all that the building society is interested in is to receive the regular repayments. The building society would not reject money meant to pay regular instalments merely because either the one paying it or the source of the money is unknown to the society. That would be absurd and it is never done. In fact the building society would not care two hoots who physically makes the payment or where the source of the money is from. The building society would not care about the identity of the one paying so long as the person on whose behalf it was paid was sufficiently identifiable so that the correct credit or payment entries will be made in the appropriate books. For that matter, whether the repayments would be made by the tenants of the house, friends, relations or business partners of the two mortgagors was irrelevant to the building society. All these emphasise the fact that introducing Nyieni to the building society was totally irrelevant. The two joint owners could not therefore have given exhibit 1 with the intention of introducing any debtor or Nyieni to the building society.

In any case, to say that £40 of the rent was to be used to pay the loan obviously meant that the two joint owners intended the rent moneys to be collected from the tenants and paid to the building society. If introduction was required, one would have expected the letter to have been addressed to the tenants from whom Nyieni was to collect the rents. Instead, exhibit 1 was not even copied to the tenants. The fact that it was not copied to the tenants showed that nothing was required of them from the point of view of what the document was intended to do, namely, transfer of the house. It was addressed to the building society because that was the institution which could have effected the transfer.

When exhibit 1 was tendered, Nyieni was dead but one of its authors, PW1, was alive and he testified. The law is now well-settled that evidence concerning a dead person should be evaluated so carefully as not to prejudice the dead person who will not be available to controvert it. This was the decision of this court in Moses v Anane [1989-90] 2 GLR 694 where it was held that proof in such cases must be utterly convincing. Similar to what happened in that case, if the trial High Court judge had scrutinised evidence against the dead Nyieni with utmost suspicion as he was required by law to have done, the hollowness of the plaintiff-respondent’s claim would have been apparent.

In the instant case, if exhibit 1 was ambiguous, the trial judge could not in law have resolved the ambiguity against the dead person as he did. In any case, the analysis I have given demonstrates that it was wrong for the trial judge to have held that the mere fact that Nyieni failed to take receipts for the moneys he gave to the two original owners meant that there was no sale. He might as well have drawn the same conclusion against the issue of pledge because a receipt could have been issued if there was a pledge. It is not the law that in pledge transactions receipts should not be issued for moneys paid and therefore once no receipt was issued the transaction became a pledge. There is no authority for that proposition. It is for the foregoing reasons that exhibit 1 should have been considered to be evidence of the intention of the parties.

There are three major ways by which the oral evidence relied on by the respondent is inconsistent: The first is the conduct of the two joint owners in not redeeming the pledge when they knew that the loan had been fully repaid.

At the time of the transaction the amount owed was £2,050. That was in 1964. PW1 and Newman said it was a self-liquidating pledge by which £40 was to be used to pay the instalment and £40 as drink. If £40 were to be have been paid to the building society monthly, the debt owed to the society would have been fully liquidated in or around 1969. The evidence on record shows that the two original joint owners were alive in 1969. No effort was made to redeem the pledge in 1969. In fact it was not until 1972 or thereafter that the original two joint owners attempted to redeem the pledge. If these explanations of PW1 and Newman were correct both should have known the exact time when the amount would have been paid so as to decide when to act in order to re-claim their house. For three years or more they did not act and no explanation was offered as to why they had to wait for that long before attempting to redeem the pledge. If their explanation of self-liquidating pledge was correct, these were some of the essential features of the transaction which would necessarily have been noted at least by the two original owners and who would have moved to redeem it so soon after the debt had been paid. Surprisingly, the trial judge made no comment on the delay.

He simply glossed over the issue of the delay in attempting to redeem the alleged pledge. It is my view that the two joint owners made no effort to redeem it in 1969 because they knew perfectly well that they had sold the house and had no more interest in it. This is why I hold that the evidence on record shows that the conduct of the two joint owners is more consistent with the behaviour of persons who had severed their interest in the house by sale to Kwame Nyieni. That conduct was visibly inconsistent with the allegation of pledge by PW1 and Newman. If indeed it was a pledge but they omitted to make the period of redemption clear to Nyieni, then this is another piece of evidence involving a dead person and whose ambiguity or uncertainty should not have been resolved against the deceased Nyieni.

Also inconsistent and indeed conflicting was the attitude of PW1 and Newman concerning ownership of the house. Both admitted that they took a loan to put up the house and therefore jointly owned it. Indeed the building society held both liable as joint-mortgagors when the mortgage repayments fell into arrears. Newman nevertheless devised the house to his beneficiaries in his will. If the house belonged to Newman alone and therefore he could properly dispose of it in his will, then PW1 and Newman lied when they said on oath in court that they jointly owned it. On the other hand, if the house was jointly owned then the devise in the will was legally wrong and unenforceable. The latter would clearly fault the order of the trial judge decreeing the house for the respondent on the strength of will. This latter event would have meant that no legitimate or legally enforceable basis existed for the order that the house should go to the respondent as a result of the will. Thirdly, these apparent conflicts on the face of the record affected the respondent’s capacity to sue and weakened her case even more seriously. As counsel for the appellant rightly pointed out, if she sued as a beneficiary, she had no vesting assent. If she sued as executor she was one of three executors. The law requires that all three executors should have sued. She did not plead that she had authority to sue to save the property from going to waste.

The mere fact that PW1 withdrew as one of the plaintiffs did not mean that if the respondent’s claim is not legally sustainable it should be endorsed by a court of law by reason of that withdrawal. The point of respondent’s capacity was not raised at the trial. But it involves a serious point of law which the trial judge should have considered. It is obvious that if the trial judge had analysed the facts in greater detail than he did, the issue of capacity could not have escaped his attention. Indeed the issue of capacity of the respondent when she took over the litigation as the sole plaintiff seriously undermined her entire case and the reliefs which the trial judge granted to her.

The judge obviously erred in glossing over the issue of capacity and then proceeding to consider the respondent’s case on its merits. Where a person’s capacity to initiate proceedings is in issue, it is no answer to give that person a hearing on the merits even if he has a cast-iron case: see Sarkodee II v Boateng II [1982-83] GLR 715.

Whenever there is in existence a written document and oral evidence over a transaction, the practice in this court is to consider both the oral and the documentary evidence and often to lean favourably towards the documentary evidence, especially where the documentary evidence is found to be authentic and the oral evidence conflicting: see Hayford v Egyir [1984-86] 1 GLR 682.

In that case, both parties produced identical documents and one of them impugned its authenticity. The documentary evidence was preferred to the oral evidence which was conflicting. In the instant case, while both appellant and respondent relied on exhibit 1 whose authenticity is not in doubt, the oral evidence relied on by the respondent is conflicting and inconsistent in material respects. As between the conflicting and inconsistent oral evidence and the authentic exhibit 1, I lean favourably towards the documentary evidence in exhibit 1 which supports the case of the appellant that the transaction was a sale and not a pledge.

Pledge, as known at customary law, takes this form: a person in need of money (borrower) approaches any person (lender) he believes can lend him that money. The lender gives the borrower the required amount. He then delivers to the lender his property, so that the lender will make use of the property until the full amount given is repaid, subject of course to a conditional power of sale if the debt is not paid at a certain specified period. See, for instance, Fanti Customary Law by J M Sarbah, 1987 ed at pages 70 and 72 and Principles of Customary Law in Ghana by Nii Armah Ollennu, (1962 ed), pp 94, 95.

If the alleged pledge in the instant case was like any ordinary pledge known at customary law, the facts should have been such that the house and its entire rent would have been made available for use by Nyieni till the amount was refunded in full at an agreed date, after which the borrowers would have re-possessed their house. PW1 and Newman did not assert that this was what happened for the pledge to have been described as one of the ordinary pledges known at customary law. Instead, PW1, Newman in exhibit C and counsel for the respondent contended that this was a self-liquidating pledge by which Nyieni was to have collected £80 as monthly rent from the house, use £40 as his drink and the remaining £40 to be paid to the building society to liquidate the mortgage loan. These are special conditions which the appellant who fought the case single-handedly as the sole plaintiff should have proved. She was not one of the eye-witnesses to the transaction. PW1 who was an eye witness asserted those special conditions, which the trial judge accepted and relied upon as reasonable explanation. At the end of the day one may well ask why the trial judge gave judgment for the respondent. In his judgment he said he did so because he believed the explanation offered by PW1 and Newman as to how the house went into the possession of Nyieni. He also added that he believed that exhibit 1 confirmed that the transaction was a pledge. His interpretation of exhibit 1 was wrong. I have already demonstrated why exhibit 1 could only be construed to be evidence of the intention of Newman to sell the house and not evidence of pledge. Apart from exhibit 1, the trial judge gave no other reason for believing the explanation of Newman and PW1 in preference to that of the appellant. Of course it could not have been that the plaintiffs were two while the defendant was one since cases of this nature are not decided on plurality of parties or witnesses, assuming that he could even have relied on the unexamined evidence of Newman at all. If it was because they were eye-witnesses to the transaction, the appellant too was an eye-witness.

This was thus a case in which two eye-witnesses to one transaction gave their own divergent interpretations to the same transaction - with one saying it was a pledge while the other said it was a sale. The case therefore boiled down to the oath of PW1 against that of the appellant. In such a situation, it behoved the trial judge to have evaluated the two versions of the evidence before preferring, with reason, one version to the other. If he had evaluated the evidence more critically he would have realised that with the conflicts in the case of the respondent and her questionable locus standi as against the unshaken stand of the appellant and his consistent evidence, the latter palpably supported by exhibit 1, the case of the appellant was more probable than that of the respondent.

On the totality of the evidence on the record the respondent’s assertion of pledge was not proved. The balance of probability however weighed in favour of the appellant’s assertion that the parties intended that there was to be a sale of the house by the two original joint owners to Nyieni, appellant’s father. That was why they voluntarily transferred the house to him.

Once it is found that the transaction was clearly intended to be a sale, the respondent’s assertion that it was a pledge collapsed and her entire case should have been dismissed since all the reliefs claimed were grounded on the allegation of pledge.

For the foregoing reasons the appeal is consequently allowed. The judgment of the trial court is set aside.

OMARI-SASU J. My brother Brobbey JA showed me in advance the judgment which he has just read. I noticed that after giving the facts of the case he dealt exhaustively with the issues of onus of proof and the question as to whether the transaction which the litigants herein originally entered into was a customary pledge or sale.

I am in entire agreement with the reasoning of my learned brother and the conclusions he has come to. I would, however, like to make a brief contribution on the capacity of the plaintiff-respondent (who shall henceforth be referred to simply as ‘the respondent’) to sue, and further on the nature of the transaction the parties originally entered into.

In the court below the respondent sued for five reliefs namely (1) declaration of title on House No Plot 4 Block 9A, Dadiesoaba, Kumasi; (2) an order setting aside the gift of property in (1) herein by Opanin Kwasi Nyieni to the appellant herein; (3) an order for recovery of possession of the said house from the appellant; (4) perpetual injunction against the appellant and others and (5) an order for account in respect of rents collected by the appellant from the said house.

I. Capacity of respondent to sue.

It should be recalled that from the pleadings of plaintiffs filed on 17th June 1976; 25th June 1984 and 15th May 1987 plaintiffs pleaded that:

“Plaintiffs (i.e. Charles Oduro Kwame (deceased) and Adom Isaac) are the joint owners of the storey building on Plot 4 Block 9A Dadiesoaba, Kumasi.” (Emphasis is mine).

In course of the hearing in the court below the respondent joined the suit for the reason that she was the widow of the original first plaintiff (Oduro Kwame, deceased) who had devised the property in dispute to her as beneficiary and since she was also a co-administratrix of late Oduro’s estate she was joining the action to protect her interest.

These observations have to be made at this stage: (i) even if the property in dispute had been the sole or self-acquired property of Oduro (deceased) the respondent as beneficiary would under the provisions of sections 1, 2 and 96 of the Administration of Estates Act 1961 (Act 63) require a vesting assent to clothe her with authority to sue. See the pronouncements of this court in Conney v Bentum-Williams [1984-86] 2 GLR 301. The record shows that the respondent was never clothed with a vesting assent before she joined the suit; (ii) since the two original owners of the property have been described as joint owners because both of them took a joint loan from the First Ghana Building Society to build the house in dispute, the said joint owners are by law (i.e. s 14(3) of the Conveyancing Decree 1973 (NRCD 175)) either joint tenants or tenants-in-common of the property. If they were joint tenants then since in his lifetime the property in dispute was not partitioned for the two owners, Oduro Newman (deceased) had no legal power to devise the property to respondent and others in his will for, the other tenant - Adom Isaac (2nd plaintiff, but later PW1) - enjoyed the automatic legal right of successorship (jus accrescendi) and he became the owner of the house on the death of Oduro Newman (deceased); (iii) if Oduro Newman (deceased) and Adom Isaac were tenants-in-common, still Oduro Newman (deceased) could not devise the whole house to respondent as Oduro Newman (deceased) and Adom Isaac were holding the house in undivided shares prior to the death of Oduro - even though the share of Oduro Newman (deceased) goes to his heirs on his death.

From the foregoing it is clear that respondent was improperly joined to the suit as she lacked legal capacity to join the suit as 3rd plaintiff or sue the appellant as sole plaintiff.

II. The nature of the original transaction between Oduro Newman (deceased) and Adom Isaac, on one part, and Opanin Kwasi Nyieni (deceased) on the other part.

For the respondent, it has been contended that the transaction was a customary pledge and a self-liquidating pledge whereas learned counsel for the appellant says it was a sale. Whatever the transaction was it must be observed at this stage that Opanin Kwasi Nyieni (deceased) died in 1975 before the action in the court below was instituted in 1976.

In the case of Moses v Anane [1989-90] 2 GLR 694 this court sounded a note of caution that: “a claim against the estate of a deceased person should be scrutinised with the utmost suspicion”. The reason is obvious for the dead man cannot resurrect to rebut the evidence adduced against him by the claimants. Thus I propose to examine the customary law on a pledge and sale of real property and to find out from the record where the axe should fall.

At page 101 of Ollenu & Woodman on Principles of Customary Land Law in Ghana (2nd ed) it is stated that:

“Pledge in customary law is the delivery of possession and custody of property, real or personal, by a person to his creditor to hold and use until a debt due is paid, an article borrowed is returned or replaced, or an obligation is discharged.”

At page 103 the learned authors state, inter alia, as follows:

“Its purpose is not so much to hold the pledged property as security, as to have its use as interest on the amount borrowed or as mesne profit upon the article or goods lent or given on credit. Therefore, when land or other property is pledged, the legal implication is that the pledgee may use it, and that he is not answerable for any deterioration which is the natural consequence of such user.”

Dr S K B Asante states at p 213 of his Property Law and Social Goals in Ghana 1844-1966 as follows:

“A [customary] pledge, unlike its common law counterpart, involves the transfer of the possession of the security - the farm or landed property - to the pledgee (i.e. the lender), with full rights of beneficial enjoyment until repayment of the loan ...

This right of beneficial enjoyment is additional to the lender’s right to the repayment of the capital.”

Three main characteristic features of customary pledge stand out from the authorities cited above. In a customary pledge (a) the pledgee is given possession, (b) the pledgee is also given the right to use the property pledged, (c) the pledgee must be re-paid the original loan by the pledgor before the pledgor becomes entitled to repossess his property. In our case all the litigants both original and substituted are deceased. No formal document evidencing the transaction was made by them and in the absence of any cogent evidence to the contrary they are bound by the above principle of customary pledge.

From the record, the original lst and 2nd plaintiffs took a loan from Opanin Nyieni (deceased) who paid the indebtedness of the original two plaintiffs to the First Ghana Building Society in respect of the property in dispute. These plaintiffs put the late Opanin Kwasi Nyieni in possession of the property and he Opanin Kwasi Nyieni (deceased) collected the rents therefrom for his own use.

Plaintiffs say Opanin Nyieni was to use one-half the proceeds of rent to liquidate the loan, and one-half was for his own use. This is denied by the appellant. The record shows that before his death Opanin Nyieni refused to give back possession of the house to plaintiffs when they requested for same. The next question is, at this stage, had the plaintiffs paid back the loan they took from Opanin Nyieni (deceased) assuming the transaction was a pledge? The answer is in the negative. The record shows that the plaintiffs never repaid the loan to Opanin Nyieni (deceased) nor did they ever tender it nor pay same into court before or at the commencement of the original action.

Plaintiffs relied on the so-called “self-liquidating pledge” in their claim. I find this to be at best new-fangled and at worst non-existent and I reject same. Granted that plaintiffs’ transaction they entered into with Opanin Nyieni was a customary pledge, plaintiffs were not entitled to the reliefs they sought, since they had not repaid the loan granted them on the pledged property at the commencement or close of the present action in the court below.

On the part of the defendant it is said that the transaction was a sale and in support thereof reference has been made to exhibit 1. Exhibit 1 was made by the original plaintiffs to the First Ghana Building Society on 4 December 1964 and its operative part is: “We have to request the Society to transfer our above-mentioned House to Opanin Kwasi Nyieni of House No K O 43, Ashanti New Town, Kumasi.” (Emphasis is mine.) Exhibit 1 is definitely not an agreement for sale of the property in dispute nor does it convey the property. It is however a voluntary declaration of intention of plaintiffs made against their own interests and contemporaneous with the transaction in dispute.

According to plaintiff exhibit 1 means the property must come back to plaintiffs. I reject this contention for the term “transfer” in exhibit 1 means no more than that Opanin Nyieni (deceased) would have the property for ever. I also find that late Opanin Nyieni relied on this declaration of intention by plaintiffs and he transferred the property to his son, the appellant herein. I therefore find, and hold, that the original plaintiff and respondent are estopped by s 26 of NRCD 323, the Evidence Decree, from denying that what the original parties contemplated was a sale. When this request to “transfer” the property is thoroughly examined with the fact that the plaintiffs were not able to repay the original loan on the house to Opanin Nyieni (deceased), one must of necessity come to the conclusion that what the parties intended was a sale. The learned trial judge of the High Court thus erred in law when he entered judgment for the respondent against the appellant in the court below. I shall set aside that judgment and in its place enter judgment in favour of the appellant. An order for the conveyance of the house in dispute shall also be made in favour of the appellant.

ESSIEM JA. I agree with the opinions which have been expressed by my brothers in this case. I do not have any useful points to add to their opinions as I entirely agree that the appeal be allowed.

Appeal allowed.