ALHAJI MAMUDU SALLEY & ANOR. vs. RASHAD PEREGRINO BRIMAH & 5 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
ALHAJI MAMUDU SALLEY & ANOR. - (Plaintiffs/Appellants)
RASHAD PEREGRINO BRIMAH AND 5 OTHERS - (Defendants/Respondents)

DATE:  14th April, 2016
CIVIL SUIT NO:  H1/27/2016
JUDGES:  M.OWUSU (J.A.) PRESIDING, KORBIEH (J.A.), WELBOURNE (J.A.)
LAWYERS:  SAMIRATU SEIDU FOR PLAINTIFFS/APPELLANTS
FRANK ADEEKU FOR 1ST TO 5TH DEFENDANTS/RESPONDENTS
JUDGEMENT

 

MARIAMA OWUSU, J.A.:

On the 29th day of January, 2015, the High Court, Accra dismissed the plaintiffs’ claims. The 6th defendant’s counterclaim was also dismissed. Cost of GH¢10,000.00 was awarded against the plaintiffs in favour of the 1st to 5th defendants. No cost was awarded against the 6th defendant.

 

Dissatisfied with the decision of the High Court, the plaintiffs appealed to the court of Appeal on the following grounds:

a. That the judgment is against the weight of the evidence on record.

b. That the learned trial Judge erred in holding that the plaintiffs failed to prove their claim of ownership of the land in dispute and further erred in holding that the land did not belong to Amidu Butcher.

c. That the learned trial Judge erred in holding that the plaintiffs were caught by laches and acquiescence.

d. Further grounds of appeal would be filed upon receipt of the record of appeal.

 

Before dealing with the arguments canvassed in support and against this appeal, I will like to recount the brief case of the parties before the trial court.

 

Per their amended statement of claim, the plaintiffs averred that the 1st plaintiff is the Head of Amidu family of Accra and 2nd plaintiff is a grandson of Amidu Butcher of Accra. Whilst the 1st to 5th defendants are sons and siblings of Mobolaji Preregrino Brimah of Accra. The 6th defendant is the great grandson of Chief Brimah of Accra.

 

The plaintiffs averred that their grandfather purchased the land situate at Knutsford Avenue near Chief Brimah’s property between 1910 and 1920. The plaintiffs gave the boundaries owners of the disputed property with an approximate area of 0.26 acre. The plaintiffs averred further that during the life time of their grandfather the property in issue was a vacant land which he used as a stable for sometime and later a 17 zinc shed was built by the 2nd son of Amidu Butcher by name Abdulai Falke, who was a carpenter by profession. According to the plaintiffs, the zinc sheds were used by both Amidu and Peregrino Brimah families for residential purposes.

 

Plaintiffs continued that, the reason why the Peregrino family came to stay on the disputed land was because of a quarrel which developed between two rivals i.e. two wives of Chief Brimah who was a very close friend of Amidu Butcher who migrated together from Nigeria to Ghana. It is the case of the plaintiffs that Imoru Mobolaji Peregrino Brimah (IMPB), a son of one of the rival women and also a secretary to Amidu Butcher and his son Abdul Kadiri, came to seek a place of refuge for their mother to avoid further problems at home. Permission was granted by Abdul Kadiri to his mother, Fatima Okpedu to reside on the disputed land. The plaintiffs averred further that, in the 1940’s the disputed area begun to develop and Imoru Mobolaji Peregrino Brimah on behalf of the Amidu Butcher leased the land in dispute to Emmanuel Omari Anson and three others all of Accra on 6th of June, 1946 for a period of thirty (30) years whereof the zinc sheds were demolished for the redevelopment of the land by defendants’ predecessors led by Imoru Mobolaji Peregrino Brimah. The plaintiffs concluded that when the lease agreement was being registered, Imoru Mobolaji Peregrino Brimah fraudulently changed Amidu Butcher’s name to Imoru Mobolaji Peregrino Brimah and his siblings.

 

The plaintiffs gave the particulars of the fraud and concluded that, Imoru Mobolaji Peregrino Brimah was not only acting as secretary and caretaker for the Amidu family but also an agent, deponent and witness for the said family. Even though Abdul Kadiri who gave permission to Imoru Mobolaji Peregrino Brimah passed away in the early 1950’s, the disputed property remained in the hands of Imoru Mobolaji Peregrino Brimah and when the latter also passed away between the late 1950’s and early 1960’s, the land document and other documents remained with the family of Imoru Mobolaji Peregrino Brimah and his subsequent dealings with the disputed property, had changed the name of Amidu Butcher to Brimah without the consent of the plaintiffs’ predecessors. Since then the documents of the disputed property has continued to remain in the hands of the Peregrino family until 2009 when the Amidu’s discovered that the defendants were demolishing the second structure i.e. H/No D 963/3 Knutsford Avenue, Accra without their knowledge and consent hence this action claiming the following reliefs:

a. Declaration of title to the land in dispute on which stood the demolished H/No D 963/3 Knutsford Avenue, Accra.

b. Return of the documents of title still in the custody of the family of the late Chief Amida and Peregrino Brimah family.

c. Perpetual injunction restraining Chief Amida and Peregrino Brimah families from ever developing plaintiff’s predecessors’ land in dispute.

d. Damages for trespass.

e. An order for the demolition of the present structure being erected by the defendants and their agents and the land in dispute handed over to plaintiffs.

 

See paragraphs 1 – 23 of the plaintiffs’ amended statement of claim pursuant to leave granted on 9-9-2010, dated 14-9-2010 and filed on the 15-9-2010.

 

The 1st to 5th defendants per their amended statement of defence pursuant to leave granted filed on 22-9-2010 denied plaintiffs’ claim and put them to strict proof of the averments. In particular, they averred that their great grandmother who was one of the late Chief Alhaji Brimah Butcher’s wife was owed money by her husband. Upon the death of their grandmother and great grandmother by name Fatima Okpedu, a piece and parcel of land was given to her children in lieu of payment of money the sum of £121. This piece of land according to 1st to 5th defendants was recited in a document dated 1918 in which its boundaries owners were given. The 1st to 5th defendants denied that Imoru Mobolaji Peregrino Brimah was a secretary to Amidu Butcher and his son. They also averred that Imoru Mobolaji Peregrino Brimah signed the lease documents as a lessor not as a representative of plaintiffs’ family or on behalf of the family. They further averred that, the plaintiffs do not even possess any document whatsoever for Imoru Mobolaji Peregrino Brimah to change into his name.

 

On the contrary, the 1st and 5th defendants averred that if what plaintiffs averred is true which they denied, the plaintiffs’ ancestors had been alive since 1918 when the device to the children of Fatima Okpedu was made but have never raised a finger if in fact the land belonged to them. They are therefore caught by laches and acquiescence. In respect of the records at AMA, the city authorities that regulate buildings in Accra, they averred that Town Council Building Regulations granted permission to Imoru Mobolaji Peregrino Brimah at an approved cost of £600 dated 31-3-1947 with a site plan attached.

 

The 1st to 5th defendants concluded that, since the disputed land did not belong to plaintiffs, they could not expect the defendants to hand over any documents to them. On the contrary, the defendants averred that the disputed land belongs to them and they as the bona fide owners have the right to develop same for commercial purposes and urged the court to dismiss plaintiffs’ claim. See paragraphs 1 – 25 of the amended statement of defence.

 

On his part, the 6th defendant in his amended statement of defence pursuant to leave granted and filed on the 20-9-2010, denied plaintiffs’ claim and put them to strict proof of their averments. In particular, he averred that the disputed land has long been known to be the bona fide property of the late Chief Alhaji Brimah Butcher whiles the latter was alive and even after his death has been dealt with as part of his estate.

 

The 6th defendant continued that in October 1990, most of the properties of the late Chief Alhaji Brimah Butcher was distributed among his children and grandchildren by the Chief Imam, Chief Nuhu Sharabutu according to Islamic Law on the 5-10-1996. 6th defendant continued that the disputed house is among the properties of Brimah Butcher yet to be distributed. He further maintained that the records at AMA clearly shows that the property in dispute is for the late Chief Alhaji Brimah Butcher and no one else. He therefore concluded that the plaintiffs’ action is statute barred under the limitation decree.

 

Consequently, the plaintiffs are not entitled to their claim. He therefore counterclaimed as follows:

1. A declaration that H/No. D 963/3 Knutsford Avenue, Okaishie Accra, forms part of the Estate of the late Chief Alhaji Brimah Butcher and all his descendants are entitled to same.

2. Perpetual injunction restraining plaintiffs, their agents, assigns, successors, servants or anyone claiming through them from interfering, developing, renting or changing the status quo of H/No. D 963/3, Knutsford Avenue, Accra.

3. Costs and any other order(s) as the court seem fit.

 

See paragraphs 1 to 18 of the 6th defendant amended statement of defence.

 

At the trial, the plaintiffs testified through their attorney and called two witnesses. 1st to 5th defendants testified through 1st defendant and called two witnesses. 6th defendant also testified through an attorney and called two witnesses.

 

As stated supra at the end of the trial, the plaintiffs’ claim and 6th defendant’s counterclaim were dismissed as not proved hence this appeal.

 

At this stage, let me put it on record that even though this appeal is by the plaintiffs, their notice of appeal cannot be found in the three volumes of the record of appeal. I called for the original docket to see if I could find the notice of appeal filed but I drew blank in my efforts. In line with our Supreme Court’s directions in the case of Kwabena Ofori Oduro & 2 ors. Vs. Isaac Kwasi Owusu (Sub. by Adu Baffour) reported in 84 GMJ, 1 – 32 where their Lordships adopted the sound policy reasoning that; an appellate court cannot decide an appeal in the absence of the evidence on which the order appealed from was founded. Such defect is however curable by the court relying on some other pieces of evidence. In the words of Akamba, JSC, delivering the lead judgment:

 

“We would therefore state the law as follows: In civil proceedings, the ultimate question of whether or not evidence should be taken over again i.e. tried de novo because the judges or court’s notes are lost should be taken by the court depending upon whether or not the defect may be cured.

 

In appropriate circumstances the appellate court or court may accept short hand notes taken of the proceedings in court, counsel’s/solicitors notes (our emphasis) all properly verified by affidavit in order to fill in the missing evidence. Other recognized means of curing such defect may be by admission of reliable newspaper reports or publications by legal correspondents of the issue. In our present times reliable electronic recordings of the missing evidence may be considered. This is not an exhaustive list and may be added to subject to reliability and accuracy.”

 

Using the case cited supra as guidelines, both the plaintiffs/appellants and 1st to 5th defendants/respondents stated the grounds of appeal in their written submissions filed on the 26-10-2015 and 19-11-2015 respectively. For the plaintiffs/appellants, page 2, the last four (4) paragraphs stated the grounds of appeal whilst page two (2) of the 1st to 5th defendants written submissions paragraphs three (3) thereof stated the grounds of appeal.

 

In this appeal, the plaintiffs/appellants would be referred to as appellants, whilst the 1st to 5th defendants/respondents would be referred to simply as 1st to 5th respondents.

 

In arguing the appeal, counsel for the appellants on ground ‘a’ “that the judgment is against the weight of the evidence before the court”, cited the case of Oppong Kofi Vs. Awulae Attibrukusu III (2011) 1 SCGLR 176; DJIN Vs. Musah Baako (2007-08) SCGLR 686 and Aryeh and Akakpo Vs. Ayaa Iddrisu (2010) SCGLR 891 as to what is required of us as an appellate court and the duty of an appellant who appeals on such a ground. He then invited us to review the whole of the evidence on record and at the end of this exercise see whether the conclusions reached by the trial Judge is really supported by the evidence on record.

 

On their part, as appellants, according to counsel, this exercise is to demonstrate to us those pieces of evidence on record which if applied in the appellant’s favour, could have changed the decision in their favour or those pieces of evidence wrongly applied against them. He then submitted that, the appellants led evidence on their root of title through their lawful attorney to the effect that the disputed property was acquired between 1910 and 1920 as virgin land by their grandfather Amidu Butcher who used the property for his cola nuts business

 

Further, he built and lived on the property (stable) and permitted customers of his cola business to occupy parts of the property temporarily anytime they arrived to transact business with him. In addition, evidence was led that Amidu Brimah’s son Abdulai Falke, then a carpenter, constructed zinc sheds for purposes of the cola nut business and this piece of evidence is corroborated by Exhibit ‘E’, a search result conducted at the Accra Metropolitan Assembly that indeed zinc sheds were constructed on the property. Counsel continued that, the trial judge failed to make reference to this documentary evidence in his judgment resulting in his erroneous conclusion on the ownership of the property. Other acts of ownership Amidu Butcher and his children exercised on the disputed property was allowing the members of the respondents’ family at the time to live on the property. According to Counsel for the appellants, these pieces of evidence led by plaintiffs’ attorney were not challenged. Consequently, the evidential requirement that a plaintiff in an action for declaration of title to land must establish acts of possession in order to succeed was satisfied by these pieces of evidence on record

 

He cited the case of Mondial Veneer (Gh) Ltd. Vs. Amuah Gyebu XV (2011) SCGLR 466 to buttress his point. Additionally the appellants led evidence on their root of title of the subject matter but the trial judge failed to appreciate the probative value and apply them in the appellants’ favour as the justice of the case demand. He submitted that the transaction which took place in the early 1900s was undocumented as narrated by the appellants’ attorney. As such in the light of lapse of time, the appellants as descendants of Amidu Butcher could not reasonably be expected to know the exact date of acquisition of the property and the nuances surrounding its acquisition. Counsel continued that, it was sufficient that the appellants called traditional evidence to show the period within which the property was purchased as well as exercise of acts of ownership and possession by their grandfather in proving their title to the land. Therefore it was not fatal that they could not say in exactitude from whom Amidu Butcher purchased the land.

 

On the allegation of fraud against IMPB, counsel for the appellants’ submitted that plaintiffs’ attorney led evidence that Imoru Mobolaji Peregrino Brimah served as secretary to Amidu Butcher who was illiterate and hence relied on the services of a literate person in this case Imoru Mobolaji Peregrimo Brimah to handle documentary transactions and affairs together with his half-brother Abdul Rahim Brimah. The appellants’ attorney testified that in the course of this relationship, Imoru Mobolaji Peregrimo Brimah fraudulently used his name and that of his siblings to execute Exhibit B, a lease of the property entered into with Emmanuel Owusu Anson & Co. which lease described IMPB as lessors. Counsel submitted that, the trial judge on the fraud allegation made a finding of fact that Imoru Mobolaji Peregrino Brimah was not a secretary to Amidu Butcher but this finding is clearly not supported by the evidence on record and invited us to reverse same on the authority of Praka Vs. Ketewa (1964) GLR 423, 426.

 

This is especially so when the issue of IMPB being a secretary to Amidu Butcher was massively corroborated by documentary evidence like Exhibits D, F, G, H, J and K. Other evidence proving the allegation of fraud made against respondents’ predecessor IMPB is Exhibit 3, the instrument by which the administritix of the estate of late Chief Brimah Butcher granted the property to the Respondents’ predecessors in 1918 as payment of a debt owed their mother. According to counsel for the appellants, Exhibit 3 was discredited during cross examination of 1st respondent. The only reasonable conclusion to arrive at is that it is not genuine. This is because, neither Fatima Okpedu nor her husband acknowledged the existence of this debt during their lifetime. It was after their death that the issue of this debt was raised. He invited us to disbelieve this story about the debt owed to Fatima Okpedu by her husband Chief Brimah Butcher who is said to be a wealthy philanthropist. All these pieces of evidence according to counsel for the appellants should have excited the trial judge to reject as unauthentic Exhibit ‘3’ and not to be relied upon as the basis of the respondents purported interest in the disputed property. He cited the case of Osei (Sub. By) Gillard Vrs Korang (2013-2014) SCGLR 221 And In Re West Coast Dyeing Industry Ltd; Adams & Another Vs. Tandoh (1982-86) GLR 561,

 

Based on the forgoing, counsel for the appellant invited us to allow the appeal on this ground as the judgment of the trial court is clearly not supported by the evidence on record.

 

In response to ground (a) of the grounds of appeal filed, which is that the judgment is against the weight of evidence counsel for the respondents submitted that, that ground goes to facts and NOT LAW. He continued that the trial judge found as a fact that all that PWI said was a repetition of the pleadings without more. There was also no corroboration whatsoever and the evidence of acts of ownership was rebutted by the evidence of 1st respondent as well as DWI. Therefore it cannot be said that the evidence went unchallenged. Consequently, the appellants’ invitation to this court to set aside the findings of fact by the trial judge is misplaced. This is because, findings of fact can only be set aside where the judgment is not supported by evidence on record and in the instant case there is no good ground to warrant a setting aside of the findings by the trial judge. He invited us to review the whole of the evidence on record both documentary and oral. Counsel continued that what appellants testified to was hearsay evidence, i.e. PWI and 6th defendant. Not only that, the respondents rebutted acts of ownership by 1st defendant and DWI. Secondly Exhibit 8 showed that by 1919 Amidu Butcher, appellants’ grandfather did not possess any property and was living in someone’s house.

 

On the issue of fraud by Imoru Mobolaji Peregrino Brimah, that he fraudulently changed papers into his name, counsel for the respondent submitted that this is clearly not supported by any evidence on record. That allegation being criminal in nature required proof beyond reasonable doubt which in this case was not done. He submitted that, the trial Judge cannot be faulted since the family history the appellants’ anchored their case on was not in any way corroborated by any witness or witnesses. The fact that at one time or another respondents’ predecessor, Imoru Mobolaji Peregrino Brimah explained documents to Amidu Butcher in Hausa language do not make him a secretary or an employee to enable him perpetuate fraud on the appellants’ grandfather, Amidu Butcher or forged any of Amidu Butchers documents. All that IMPB did was to interpret documents like other people as stated in the documents. In other words, he witnessed the thumb printing of documents and these can hardly explain any fraud or forgery on the part of Imoru Mobolaji Peregrino Brimah. In the circumstances, counsel invited us to dismiss the appeal on this ground as same should fail.

 

As rightly pointed out by both counsel for the appellants and respondents, an appeal on the ground that the judgment is against the weight of evidence on record directs us as an appellant court to review the whole evidence on record both documentary and oral to ascertain whether indeed the conclusions arrived at by the trial judge is clearly supported by the evidence on record. See the following cases:

1. Djin Vs. Musah Baako (2007-2008) SCGLR 686

2. Aryeh & Akakpo Vs. Ayaa Iddrisu (2010) SCGLR 891

3. Oppong Kofi Vs. Awulae Attibrukusu III (2011) 1 SCGLR 176

 

See also Rule 8(1) of C. I. 19 which provides that an appeal is by way of rehearing.

 

In his submissions, counsel for the appellants pinpointed certain pieces of evidence on record if applied in their favour would have changed the decision in their favour or certain pieces of evidence on record wrongly applied against the appellants. For instance, according to counsel the appellant led evidence on their root of title through their attorney that the disputed property was acquired between 1910 and 1920 as a virgin land by their grandfather Amidu Butcher who used the property for his cola nuts business and also built a stable on it and permitted his customers of his cola business to occupy parts of the property temporarily anytime they arrived to transact business with him.

 

Secondly, his son Abdul Falke, then a carpenter constructed zinc sheds for purposes of the cola nut business and this is corroborated by Exhibit ‘E’ and thereby satisfying the evidential requirement that a plaintiff in an action for declaration of title to land must establish the exercise of acts of possession in order to succeed.

 

In his judgment the trial Judge stated the law correctly when he said:

 

“This is a claim for declaration of title to land and the law requires the person asserting title and to whom the burden of persuasion falls to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of the litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities that the party would be entitled to the claim.”

 

See the case of Mondial Veneer (Gh) Ltd. Vs. Amuah Gyebu XV (2011) 1 SCGLR 436, 467.

He continued;

“Now to the evidence on record, apart from saying that the land was acquired by Amidu Butcher between 1910 and 1920 the plaintiff could not tell the mode of acquisition and from whom the property was acquired. This is of cardinal importance where the parties agree and I so find that Amidu Butcher was a Hausa from Nigeria and migrated to Ghana. From the mondial case above a party who is asserting title bears the burden of persuasion to prove the root of his title, mode of acquisition and acts of possession exercised over the subject matter of the litigation.”

 

After quoting the cross-examination of plaintiffs’ attorney, the trial Judge ended on this point that:

 

“The impression I gather from the evidence generally is that Amidu Butcher was a shrewd and successful businessman and would in the normal course of events be able to identify his grantors in this or other such cases.

 

Surprisingly, the same attorney in cross-examination by counsel for the 6th defendant conceded that documents on other properties acquired by Amidu Butcher were prepared in his name...

 

From the foregoing, I find that the plaintiffs could not satisfy the court on the balance of probabilities that Amidu Butcher acquired the property from anybody. They could not establish any root of title.”

 

From the above analysis, the trial Judge evaluated the evidence on record correctly and came to the right conclusion. We say so for the simple reason that, Exhibit ‘D’ is an agreement between Amidu Butcher and Bawa Okai in respect of land at Ussher Town. Exhibit ‘F’ is also a transaction between Amadu Kotey and Amidu Butcher in respect of land at Tudu. These Exhibits were executed by Amidu Butcher in the presence of witnesses. Exhibits ‘D’ and ‘F’ are dated 10-6-1922 and 30-5-1923 respectively. Then there is Exhibit ‘8’ dated 31-7-1919 which also states that;

 

“Bawa Okai, Amidu Butcher (our emphasis) Abu and Tabarika Butcher since these four Hausas came to Accra, they have been staying at Ali Brimah’s house (that is the son of Chief Brimah Butcher)”

 

The appellants say that the disputed house was acquired by Amidu Butcher between 1910 and 1920. But Exhibit ‘8’ shows that in 1919 appellants’ predecessor was rather staying in Chief Brimah’s son’s house.

 

What should be noted in this case is that the narration by the parties of their respective case is in the nature of family or traditional history handed over to them through generations. The test for traditional history was laid down as far back as 1957 in the Privy Council case of Adjeibi-Kojo Vs. Bonsie & Ano. 3 WALR 257, where the Privy Council held that:

 

“The most satisfactory method of testing traditional history is by examining it in the light of such more recent facts as can be established by evidence in order to establish which of the two conflicting statements of tradition is more probably correct. Where there is a conflict of traditional history one side or other must be mistaken, yet both may be honest in their beliefs, for honest mistakes may occur in the course of transmission of the traditions down the generations. In such circumstances and particularly where Native Courts below have differed, an Appeal Court must review the evidence and draw their own inferences from the established facts (our emphasis) the demeanour of the witnesses before the trial court is little guide to the truth.”

 

This case was cited with approval in the case of Ago Sai & Ors. Vs. Kpobi Tetteh Tsuru III (2010)

SCGLR 762, where it was held in holding (1) that:

 

“It was well-settled that where in a land suit, the evidence as to the title of the disputed land was traditional and conflicting (as in the instant case), the surest guide was to test such evidence in the light of recent acts to see which was preferable.”

 

Relating the cases cited supra to the case under consideration, Exhibits 11 and 12 dated 26-11-2012 are records from Accra Metropolitan Assembly signed by the Director, Metro Works Department and the information on these Exhibits show that the owner of the property is the Braimah family/I. M. P. Brimah. These documents were tendered through DW2, Jacob Sebufor, a Building Inspector with Accra Metropolitan Authority (AMA). This witness said in 1947, a Permit No. 107 was approved in respect of the disputed property and it was in the name of I. M. P. Brimah. See Exhibit ‘4’.

 

These are recent acts that support the respondents’ case. Quite apart from these recent acts, these Exhibits are in the nature of documentations. The law is that documentary evidence should prevail over oral evidence. Thus where documents supported one party’s case as against the other, the court should consider whether the latter party was truthful but with faulty recollection. In the words of Atuguba, JSC;

 

“Given the high evidential potency of documentary evidence, in the eyes of the law, the trial Judge should have given cogent reasons for doubting the veracity of Exhibit ‘2’, being the undertaking given by the late Kwaku Poku.”

 

See the case of Fosua & Adu Poku Vs. Adu Poku Mensah (2009) SCGLR 310, 311 holding (1).

 

On the other hand, none of the documents tendered by the appellants had any bearing on the disputed property. The trial Judge was therefore on point when he found and held that;

 

“The evidence also established and I so find and conclude that Amidu Butcher had documents on properties he acquired prepared and executed in his name. I accordingly hold that the disputed property, H/No. D 963/3 did not belong to Amidu Butcher.”

 

The quotation supra also negates the allegation of fraud leveled against the respondents’ predecessor, Imoru Mobolaji Peregrino Brimah and as rightly pointed out by the trial Judge;

 

“None of the documents tendered made any reference to I. M. P. Brimah as secretary to Amidu Butcher. Further, the exhibits indicate that it was not I. M. P. Brimah alone who read and explained documents in the Hausa language to Amidu Butcher.

 

On the evidence generally, I am not convinced that I. M. P. Brimah acted as secretary, agent or caretaker of the properties of Amidu Butcher. I find the allegations of fraud not proven and same is dismissed.”

 

From the quotation supra, the findings of facts by the trial Judge that Imoru Mobolaji Peregrino Brimah was not secretary of Amidu Butcher (our emphasis) was correct and clearly supported by the evidence on record. This is because, the numerous documents tendered by the appellants, none show that he was a secretary of the appellants’ grandfather nor did these documents describe him as such.

 

Secondly, the finding that the allegation of fraud was not proved is also supported by the evidence on record. The allegation is that in executing the lease agreement in 1947 on behalf of the Amidu Butcher’s family, IMPB as secretary of Amidu Butcher used his name and that of his siblings is also not supported. As far back as 1923, Amidu Butcher executed documents which were witnessed by IMPB, his half-brother, Abdul Rahim Brimah and other witnesses. In one case as many as seven (7) witnesses witnessed the execution of his acquisition of land. See Exhibit ‘F’.

 

Consequently, the allegation that because Amidu Butcher was illiterate, IMPB in executing the lease agreement, Exhibit ‘B’ used his name and that of his siblings as lessors falls flat in the face.

 

Thirdly, counsel for the appellants made huge capital of Exhibit ‘3’, the instrument by which the administratrix of the estate of Chief Brimah Butcher granted the disputed property to the respondents’ predecessors as payment of debt owed their mother. His reasons being that the witness was discredited during cross-examination and secondly, Exhibit ‘3’ was executed after the debt of both Fatima Okpedu and Chief Brimah Butcher and this should have excited the trial Judge in coming to the conclusion that it is not a genuine document.

 

In his judgment, the trial Judge on Exhibit ‘3’ said:

 

“The 6th defendant has mounted a stiff opposition to Exhibit ‘3’. In his closing submissions, learned counsel for the 6th defendant has stated that the exhibit was executed in 1918, after the death of the principal actors namely Fatima Okpedu and Chief Brimah Butcher.

 

The matter was not raised during the lifetime of either spouse. The indebtedness of £121 was not documented nor was it ever claimed after the death of Fatima and during the lifetime of her husband who outlived her by five years...

 

Learned counsel then submitted that no such debt existed as it was not acknowledged by Chief Brimah Butcher

 

Counsel then pressed the cases of Kusi & Kusi Vs. Bonsu [2010] SCGLR 60 and Moses Vs. Anane [1989-90] 2 GLR 694 the ratio of which cases is that when an attempt is made to charge the estate of a dead person in a matter which if he were alive he might have answered, the evidence ought to be looked at with great care, the evidence ought to be thoroughly sifted and the mind of any Judge who hears it ought to be first of all in a state of suspicion.

 

The rationale for the principle above is of abiding value. This is because there is a grave danger in accepting such charges against dead persons who have no means of answering the charge if they were alive...”

 

He continued:

 

“In this case, Fatima Okpedu and her husband Chief Brimah Butcher are both dead. The allegations of the indebtedness were made by the 1st to 5th defendants. They are the descendants of Fatima Okpedu. The allegations were resisted by the 6th defendant, a great grandson of Chief Brimah Butcher. The issue is whether or not Chief Brimah Butcher owed his wife Fatima Okpedu the sum of £121…

 

In the instant case, apart from repeating the allegations about the indebtedness from the box the 1st defendant tendered Exhibit ‘3’ referred to above in support of the case. The document was prepared in 1918. Thus, it has been in existence for over ninety (90) years. There is no evidence that the administratrix did not exist. The document was witnessed by several people including the grandfather of the 6th defendant in the person of Alhaji Alidu Brimah. The necessary stamp duty was exacted thereon…”

 

He continued:

“From the evidence generally, I find and hold that Exhibit ‘3’ is an authentic document and the parties are bound by it. The 6th defendant is estopped from denying the contents of Exhibit ‘3’…”

 

The trial Judge ended on this point thus:

 

“I further hold that Exhibit ‘3’ is authoritative corroborative evidence of the fact that the land the subject matter of this suit was granted to the 1st to 5th defendants’ grandparents in lieu of the payment of the sum of £121 owed Fatima Okpedu by her husband Chief Alhaji Brimah Butcher.”

 

We have quoted at length from the judgment in contention just to show that the trial Judge addressed his mind in accepting Exhibit ‘3’ i.e. evidence against deceased persons and the relevant points to note.

 

Exhibit ‘3’ is an ancient document. We have look at it and its existence is more probable than not. Consequently, the findings of fact made by the trial Judge on the allegations of fraud are supported by the evidence on record and we do not intend to disturb these findings.

 

From all of the foregoing, there is no merit in grounds (a) and (b) of the appeal and it is accordingly dismissed.

 

This brings us to ground (c) which states:

 

“That the learned trial Judge erred in holding that the plaintiffs were caught by laches and acquiescence.”

 

On this ground, counsel for the appellants submitted that, the trial Judge erred in his examination of the respondents’ family’s conduct as amounting to an act of adverse possession. He also misdirected himself on the law governing laches and acquiescence. Laches and acquiescence according to counsel for the appellants can only be established where it is shown by the party relying on same that:

1. He reasonably believed that he had a good title to the disputed land;

2. He had expended money in improving the land;

3. His adversary was aware that he was expending money on the land but he remained silent or did some acts which encouraged him to develop the land

 

Counsel cited the cases of Kwaku Vs. Serwah & Ors. (1993-1994) 1 GLR 429 SC holding (3); Ntim Vs.

Boateng (1963) 2 GLR 97 and Ashong Vs. Asamoah (1974) 1 GLR 262 to buttress his point.

 

Counsel then submitted that, from the evidence on record, the respondents did not demonstrate that there exists legal justification for their claim of ownership of the land. All that they said was that, the disputed property was granted to them by way of payments of a debt owed their grandmother by their grandfather. They also failed to establish the root of title of their grandfather. Therefore the respondents could not be held to have acquired a good title in the land.

 

On the element of expenditure of money in improving the land, the appellants’ story of their grandfather and his sons constructing zinc sheds on the land should be preferred to the respondents as the latter destroyed the structures on the land in 1952 after the property was leased in 1946 and in resolving these conflicting pieces of evidence, the truthfulness of the appellants’ story is more probable than that of the respondents. Lastly, the respondents were required to show that the appellants’ family was aware that their family was expending money on the land but they remained silent or did some acts which encouraged them to develop the property. Counsel submitted that the respondents failed to satisfy these requirements. This is because I. M. P. never expended money in improving the property.

 

The only activity that I. M. P. and other members of the respondents’ family did in respect of the property is the 1946 lease Exhibit ‘B’ and as far as the evidence on record shows it was the appellants’ family that instructed the lease to be executed.

 

Secondly, the evidence is that the appellants’ family permitted the respondents’ ancestors to live on the property as gratuitous licensees and as such they cannot claim to have any legal or equitable interest in the property. Consequently, even if the respondents had been on the disputed land for some years as they claimed, their so-called long occupation could not convert their gratuitous licence into ownership and invited us to dismiss the conclusions reached by the trial Judge on laches and acquiescence.

 

In response to these submissions, counsel for the respondents referred to the cases of Ntim Vs. Abrokwa & Ors. (1963) 2 GLR 97, 113 and Ntim Vs. Boateng and the test laid down in these cases and submitted that, the trial Judge found as a fact that since 1918 when the said land was granted to the respondents’ forebears, the appellants know since Alhaji Mamudu Salley, the 1st appellant has lived in the said community with the respondents. Again, in 1946, I.M.P.B. and his other siblings granted a 30 year lease to Omari & Others, Exhibit ‘B’.

 

Then Chief Amida Peregrino Brimah IV also granted a ten (10) year lease to J.M.C on behalf of the respondents. This is Exhibit 5, all to the knowledge of the appellants and yet they never questioned the respondents. Counsel then posed this question, assuming without admitting that it was the appellants’ who instructed I.M.P.B to execute the lease agreement in Exhibit ‘B’ for thirty (30) years then the lease expired in 1976. The question is after 1976 what did the appellants do? Counsel submitted that, the respondents have had valid title since the grant in 1918 and all these series and glaring acts are adverse and challenging claim to the appellants’ title. He therefore concluded the trial Judge was right in coming to the conclusion that the appellants were caught by laches and acquiescence. He therefore invited us to dismiss the appeal on this ground also.

 

Our reaction to the submissions on laches and acquiescence is that we have already dealt with how to treat or the test of traditional history in resolving the first and second grounds of appeal. Secondly, from the documentary evidence, it is I.M.P.B. who had dealt with the disputed property since 1947 expending monies in redevelopment, applying for permits and granting leases.

 

These are documentary evidence that we cannot gloss over.  Then 1st appellant who is about ninety years and have lived in the community with the respondents stood by all these years for the respondents to develop and redevelop the disputed property. Clearly the trial Judge was right in coming to the conclusion that the appellants were caught by laches and acquiescence.

 

This ground of appeal also fails and it is accordingly dismissed.

 

The appeal fails in its entirety and it is accordingly dismissed.

 

(Sgd.)

MARIAMA OWUSU

[JUSTICE OF APPEAL]

 

(Sgd.)

Korbieh, (J.A.)           I agree                                  F. G. KORBIEH

[JUSTICE OF APPEAL]

 

(Sgd.)

Welbourne, (J.A.)      I also agree                     M. WELBOURNE

[JUSTICE OF APPEAL]