This is an appeal from the High Court Land Division, Accra dated 11^th January, 2011 which dismissed the Plaintiff’s action with costs of Gh₡1,000.00 to each of the two Defendants.

The fact in dispute as well as the respective cases of the parties have been stated accurately in the opinion read by my learned sister Mabel Agyemang JA. I agree with them and adopt them as my own. I also agree with her opinion and I only wish to add to it.

It is settled law that documentary evidence should prevail over oral evidence. In the instant case, the Plaintiff’s main claim in the High Court is for declaration of title to the land described on the writ.

The Plaintiff in evidence tendered Exhibit ‘A’ an Indenture made on 12^th August 1981, between Nii Odai Ayiku IV, Nungua Mantse as Lessor and Kwame Nkrumah as Lessee. He also tendered the Land Certificate issued to Kwame Nkrumah on the 5^th October, 2002 as Exhibit ‘B’. He said he cleared the land and erected four (4) pillars at the corners and proceeded with processing of documents. He tendered a building Permit Application Form approved on the 24^th June, 1985 in evidence as Exhibit ‘D’. He said he put up a four (4) bedroom house up to roofing level and put a caretaker called Kwabena in occupation.

In 1996, he used the building as a collateral for a loan from the Agricultural Development Bank Limited (ADB) and tendered an “Approval of Loan Facility” note dated 21^st November, 1996 and a Written Consent to Mortgage Property situate at East Legon dated 27^th September 2000 as Exhibits ‘E’ and ‘E1’.

We noticed that, apart from the Exhibits “E” and “E1” all the documents tendered by the Plaintiff namely the Lease, Land Certificate, Building Permit and the Building Plan all had the name of Kwame Nkrumah as the owner. Further, the Search Report on the land (Exhibit “G”) the Notice of Application for Registration of title to Land are also in the name of Kwame Nkrumah.

Section 11(4) of the Evidence Act, 1975 [NRCD 323], puts the obligation in civil proceedings on a party who asserts to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable that its non-existence.

See: FOSUA & ADU-POKU VRS. DUFIE (Deceased) & ADU POKU-MENSAH [2009] SC GLR 310;

KUSI & KUSI VRS. BONSU [2010] SC GLR 60 JASS CO. LTD. & ANOR VRS. APPAU & ANOR. [2009]SC GLR 265.

That apart, the Plaintiff in an action for declaration of title to land must be able to establish by cogent evidence his own case before he can take advantage of any weakness in the Defendant’s case which supports his claim to strengthen his case.

See: AIKINS VRS. DAKWA [2013] 58 GMS 187.

From all the decided cases supra, it is clear that the Plaintiff in such a case has to meet the standard of proof on the balance of probabilities to require a consideration if any in the Defendant’s case.

In paragraph 1 of the Plaintiff’s statement of claim, he averred that:

“The Plaintiff is a Lecturer at the University of Cape-Coast  and the beneficial owner of the property known as……………………which said property was bought by the Plaintiff on the 12^th day of August, 1981 in the name of Plaintiff’s son at the time by name Kwame Nkrumah…………………” .

Osborns Concise Law Dictionary, 8^th Edition defines a beneficial owner as:-

“The person who enjoys or who is entitled to the benefit of property being entitled at law and equity”.

The Plaintiff in his evidence had sought to raise a presumption that he was the true owner of the land having purchased it in the name of his son who was at the time of purchase a minor.

In order for the court to determine title, the court had to make a finding relating to the one who provided the money for the purchase of the land. Significantly, the court will expect the Plaintiff to tender the receipt covering the money he alleges he paid to purchase the land. This, the Plaintiff failed to do. The Plaintiff also failed to produce any Birth Certificate to support his assertion that he is the father of Kwame Nkrumah. Concerning the Lease “Exhibit A” which the Plaintiff was using as a trump card in support of his assertion that he purchased the land for his son, he under cross-examination dented his own case when he distanced himself from any involvement in the preparation and execution of the said Exhibit ‘A’ at page 110 of the record of Appeal as follows:-

Q: Take a look at Exhibit ‘A’, it does not bear you signature, does it?

A: No.

Q: Who signed Exhibit “A” for and on behalf of the Lessee?

A. If you see page 1 of Exhibit “A”, you see the name of Bediakoh, he signed it.

Q. I am suggesting to you that per Exhibit “A”, the said Bediakoh you are referring signed as witness but I am asking you that who signed for the Lessee?

A: I have said that the person who was there and who did all these things was Mr. Osei Bediakoh”.

The said Mr. Osei Bediakoh was thus in our view, a material witness who could have significantly assisted the case of the plaintiff had he been called as a witness. The Plaintiff could also have called the mother of Kwame Nkrumah as witness and even if for some reasons who could not be available, his alleged son, Kwame Nkrumah could have been so called as a witness to buttress his assertions. Needless to say that he could join Kwame Nkrumah as a Plaintiff and/or procure a Power of Attorney from him.

Per Ollennu J (as he then was) in MOJALAGBE VRS. LARBI [1959]1 GLR 190 at 192,

“Proof in law is the establishment of facts by proper legal means where a party makes an assertion capable of proof in some way eq. by producing documents, description of thing, reference to other facts, instances or circumstances and if his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the court can be satisfied that what he avers is true”.

The Supreme Court in the case of T.K. SERBEH & CO. LTD. VRS. MENSAH [2005-2006] SC GLR 341 crystalized proof in law as follows:-

“For, however credible a witness may be his bare affirmation on oath or the repetition of his averment in the witness box cannot constitute proof”.

On the issue of trust which was introduced into the submission of counsel for the plaintiff perhaps in an attempt to salvage the devastation caused by the lack of proof to support the Plaintiff’s case as the beneficial owner, we are of the view that it was neither pleaded nor is it applicable in this case.

Counsel quoted correctly from the Learned Authors BJ da ROCHA and CH Lodoh in their book, GHANA LAND LAW AND CONVEYANCING 1995 Edition at page 55 on TRUST as follows:-

“The basis of the law of trusts. is that there is a split between the legal and the equitable ownership of land. The legal owner is treated as a mere trustee for the equitable owner who is the real beneficiary. In such a situation equity protects the beneficial owner and will not permit the legal owner to deal with the property in a manner adverse to the interest of the beneficiary.

Trust may be expressly created or may arise by implication of law. The latter kind of trust may be implied or resulting trusts or constructive trust.

At page 57 the learned authors supra wrote under “Implied Trust” thus:

“(2) Resulting Trust: In certain circumstances equity will imply what is known as resulting trust. The following are situations in which resulting trues may be implied.

a) Where one person purchases property in the name of another (Emphasis mine).

As we earlier indicated, no evidence apart from the oral was placed before the court to convince the court that the Plaintiff was the one who in fact paid the purchase price for the land.

We are not unmindful of the evidence of the Plaintiff that he used the title documents to secure a loan from the Bank. In our view the Exhibits “E” and “E1” which the Plaintiff tendered in support of his evidence in respect of the loan are not only self-serving but raises other issues as to how a Bank could accept documents covering landed property in the name of Kwame Nkrumah when the said Kwame Nkrumah who is the holder of legal title to the land is not a guarantor of the loan. The least said about the loan, the better.

Needless to add that resulting trust would arise where the matter to be resolved would between the one who paid the purchase price for the property and the intended beneficiary.

The Learned Trial Judge in the concluding paragraph of his judgment held that “the Plaintiff has failed to produce or introduce sufficient evidence to prove by a preponderance of probabilities that he is entitled to the reliefs he claims by the endorsement on his writ against the Defendants”.

This being an action of declaration of title to land and recovery of possession, the issue as the what a Plaintiff must do in order to succeed is amply set out in Section 10, 11 and 12 of the revised Evidence Act, 1975 [NRCD 323].

Proof by a preponderance of the probabilities test is clearly defined in Section 12 of the Evidence Act supra which states;

(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence”.

(3) Thus the holding of the Learned Trial Judge that the Plaintiff’s claim of title as the beneficial owner of the land is not supported by the evidence he led cannot be faulted.

IRENE C. LARBI (MRS).

(Justice of Appeal)