IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2018
THOMAS COBBINAH (Claimant / Appellant) YAW ASIEDU (Judgement / Debtor)
ISAAC KWOFIE - (Plaintiff / Respondent)
DATE: 12 TH JULY, 2018
CIVIL APPEAL NO: H1/25/2017
JUDGES: F. KUSI-APPIAH JA (PRESIDING), G. TORKORNOO (MRS.) JA, M. M. AGYEMANG (MRS.) JA
LAWYERS: MR. DAVID ANAN FOR CLAIMANT/APPELLANT
In this appeal against the judgment of the High Court, Accra, delivered on the 30th day of May, 2014, the claimant/appellant (referred to hereafter alternately as the claimant or the appellant), seeks a setting aside of the judgment entered on favour of the plaintiff/respondent (referred to as the plaintiff, or the respondent.
This judgment arose out of convoluted circumstances that commenced with a simple transaction for the sale of a Tipper truck by the judgment/debtor herein, to the plaintiff/respondent sometime in February 2008. The plaintiff/ respondent, a sand and stone contractor, negotiated to buy the Tipper truck for ¢550,000,000 (Five Hundred and Fifty Million Old Cedis). He made part-payment of ¢380,000,000 (Three Hundred and Eighty Million Old Cedis) to the judgment/debtor. He also bought new parts to replace parts out of use. He allegedly rented out the vehicle to the Rubber Estate Company for its use, in consideration of daily payment of the sum of ¢2000000 (Two million Old Cedis).
This transaction for the purchase of the truck went awry when two months after he took delivery of it, it was taken from him by the Police. This was in execution of a court order issued in respect of a suit another purchaser of the vehicle had successfully prosecuted against the judgment debtor.
Thus did the plaintiff commence suit against the judgment debtor at the court below. Judgment was entered for the plaintiff for the sums of: ¢10, 550,000; ¢380,000,000; ¢3402; ¢290,000; ¢690,000, with costs of GH¢3,000.
The plaintiff served the judgment debtor with an entry of judgment for the sum of GH¢516,412.00, and went into execution for the said sum by attaching property described as: Adepa Guest House, No.5 Nsawam Road, ABC Junction, Accra, allegedly belonging to the judgment debtor.
The claimant herein filed a notice of interpleader alleging the said property to be his, and not the judgment debtor’s. He alleged that the judgment debtor occupied the said property as his tenant.
An affidavit in opposition challenging the matters contained in the claimant’s affidavit having been filed, the matter was set down and determined as an interpleader suit, with the claimant as plaintiff and the judgment creditor as defendant. The plaintiff was allocated the burden of proof regarding his claim of ownership of the attached property.
The parties adduced evidence in respect of their respective positions. At the end of the hearing, the learned trial judge dismissed the claim of the claimant, thus entering judgment for the plaintiff execution creditor who was ordered to proceed with the execution.
The learned trial judge made the finding that the property did not belong to the claimant, and that although he once owned it, he had sold it to the judgment debtor. He held thus for the following reasons: that the claimant who alleged that he had rented the property out to the judgment debtor as residential property did not appear to “careless” about the fact that the said property had been put to commercial use and was being used as a guest house. Furthermore, that while the claimant said he had come from the United States of America to prosecute his claim, he had not, after two weeks, gone to see the house in dispute, been in contact with the agent he had appointed to eject the judgment debtor from the premises, nor paid property rate to the Accra Metropolitan Authority or rent tax to the relevant authorities. Lastly, he adverted to the conduct of the claimant after he gave evidence before the court and was cross-examined. It was his view that the claimant abandoned the suit.
Thus did he dismiss the suit in spite of a title deed to the property tendered by the claimant as exhibit B, as well as exhibits D and D1 receipts for the payment of rent by the judgment debtor in respect of the property.
It is against the said judgment that the present appeal has been brought.
The appellant set out six grounds of appeal, five of which are substantive. The sixth promised a further ground that was never filed.
We reproduce them in extenso:
The judgment is against the weight of the evidence;
The learned judge’s finding that the property did not belong to the claimant was against the evidence in record;
The court erred in making a finding that the claimant had sold the property to the judgment debtor and had only put in a claim to assist the defendant debtor, for neglecting to produce evidence of property rates payments on the building as well as payments made in respect of rents received from the defendant/debtor;
The learned judge erred in holding that the claimant had failed to prove his claim and was care free for failing to visit the attached property fourteen days after his arrival in Ghana and during the period claimant was prosecuting his claimant the High Court and also seeking to eject defendant at the Rent Control;
The learned judge erred in holding that the property attached had been sold to the judgment debtor on the grounds that claimant had failed to produce evidence of an action initiated at the Rent Control Office seeking to eject the defendant/judgment debtor from the attached premises.
Before we get on with our business of considering the issues raised by this appeal, we will deal with the propriety of the grounds of appeal set out. While we do not find any of the grounds incompetent under any of the provisions of Rule 8 (4) - (6) of the Court of Appeal Rules CI 19, we find that since Grounds (b) to (e) all complain of the evaluation of the evidence, they may all be subsumed under the omnibus clause which is set out as the first ground of appeal. In considering the omnibus ground, these specific matters of complaint will be addressed.
Was the judgment of the court below against the weight of the evidence led?
An appeal is by way of rehearing. In considering this ground, this court is empowered under Rule 8(1) of the Court of Appeal Rules CI 19, to rehear the matter. In the performance of this task, we will evaluate the evidence led, both oral and documentary, and come to our own conclusions, in support of, or against the trial court’s findings, see: Oppong Kofi and Ors v. Attibrukusu III  1 SCGLR 176 also: Tuakwa v Bosom [2001-2002] SCGLR 61.
The issue raised by the instant appeal is simple indeed, and we shall make short work of it.
The learned trial judge rightly stated that in the interpleader suit before him, the claimant bore the burden of proof as plaintiff, and the execution creditor, the defendant. In this enterprise, the plaintiff (claimant) bore the burden of persuasion which is the obligation of a party “to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact…” The claimant was required to prove what he alleged on the preponderance of the probabilities, see S. 10(2) (b) of the Evidence Act, 1975, NRCD 323, and in this regard, he bore the burden of producing evidence which required him to introduce sufficient evidence to avoid a ruling on the issue against him, see S. 11(1) of the Evidence Act (supra).
It is trite that in a suit for declaration of title to land, it is the duty of the plaintiff to establish what he asserts by adducing evidence of his root of title, mode of acquisition including purchase, and acts of possession including user of the land over a long period, see: Mondial Veneer Gh Ltd v Amuah Gyebu
XV  1 SCGLR 468; also Abbey and Ors v Antwi  SCGLR 17.
The interpleader suit was a claim to landed property. The claimant who begun the suit per an attorney adduced evidence regarding the purchase of the house in dispute which has been attached. In this regard, the plaintiff’s attorney testified of her involvement in the purchase of the house for the claimant, a non-resident Ghanaian who on his visit to Ghana in 1985, evinced an intention to buy a house. It was her evidence that she went with the claimant to one Mr. Asamoah from whom the claimant bought the house in dispute. The witness tendered the claimant’s title deed showing the purchase of the house. This was admitted as exhibit B. She then testified that after the property’s acquisition, the claimant rented it out to the judgment debtor. It was her evidence that the latter had stayed on the premises as tenant for a long time, staying in the boys’ quarters and operating the main house as Adepa Guest House.
The claimant took over the prosecution of his claim upon revoking by exhibit C, the Power of Attorney he gave to the previous witness (exhibit A). He testified that the defendant judgment debtor was his tenant and that he renewed the tenancy every two years. He alleged that initially, he let the premises at a yearly rent of USD 4,500 per year, but that the rent had been increased to USD 9,600 per year. Although he did not produce a tenancy agreement for 2012 the material time of his testimony, he tendered in evidence two tenancy agreements between himself and the judgment creditor, dated 1st September 2004 and 1st October 2008. These were admitted without objection as exhibits D and D1.
In our judgment, the evidence led by the claimant of his root of title (exhibit B), and acts of possession or use, (as rental premises) was prima facie evidence of his title to the property. This could only be displaced by cogent evidence such as would negate the import of the tenancy agreements and receipts for the payment of rent as evidence of the judgment’ debtor’s tenancy at the premises attached.
In line with his duty to point out pieces of evidence which were wrongly evaluated by the trial court, leading to a wrong conclusion, see: Djin v Musa Baako [2007-2008] 1 SCGLR 686, the appellant has pointed out the finding of fact made by the trial judge that the property was purchased in 1986, and has argued that his subsequent finding that he had sold the property to the respondent had no basis on the evidence.
We are persuaded that such is the case.
The learned trial judge held that in 1986, the claimant purchased the property from one Kofi Adu Asamoah. This purchase was evidenced by Exhibit B, the title deed which bore the name of the claimant as the purchaser. Having made that finding, there had to be evidence that at some point, title was transferred from the holder of the title, the claimant, to another person, for a contrary finding to be made that he was not owner of the property.
By the provisions of the Conveyancing Act 1973, NRCD 175, a “… transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorised in writing, unless relieved against the need for such a writing by the provisions of section 3”.
The said section 3, excepts such circumstances as the operation of law; the operation of the rules of equity relating to the creation or operation of resulting, implied or constructive trusts; by order of the court; by will or upon intestacy; by prescription, among other matters.
It is evident from this provision, that for a finding to be made that the claimant transferred his interest in the land to the judgment debtor, there had to be evidence of such transfer in writing, unless evidence was led of circumstances relieving the claimant from doing so in writing.
No such evidence by way of receipt, conveyance or other document evidencing such transfer of title, or circumstance relieving him from that duty, was led by the judgment/creditor. In the face of this, rather than drawing the conclusion from the evidence, that the claimant who he held to have purchased the property in 1986, and who tendered receipts of rent payment as landlord of the property, was owner thereof, the learned trial judge, rather held the contrary.
This subsequent holding by the learned trial judge that the claimant had transferred title to the judgment debtor was not anchored on any evidence led, nor was it supportable in law. On the contrary, in the enterprise of making the said finding, the learned trial judge was exercised by circumstances of the appellant’s conduct which he considered untoward, (or perhaps suspicious), but which were quite irrelevant in the determination of this interpleader suit, to arrive at a holding that the property was sold by the claimant to the judgment debtor. This he was not entitled to do, see:
Fofie v Zanyo  2 GLR 475.
As aforesaid, the matters upon which the learned trial judge relied on to find the existence of a sale of the disputed property by the claimant to the judgment debtor, was based on the claimant’s conduct as the learned trial judge saw it and interpreted it. These included what he described thus: that the claimant appeared to “careless” about the fact that the said property had been put to commercial use; that he had neglected to visit the property after two weeks of being in Ghana (he was ordinarily resident in the USA); that he had not been in contact with the agent he had allegedly appointed to evict the alleged tenant (the judgment debtor) from the property; that he had not paid outgoings such as rates and taxes to the relevant authorities and furthermore, that he had not been to court after he gave evidence and was cross-examined.
It seems to us that some of these matters, more particularly, the fact that the claimant did not appear to be perturbed that his residential property had been turned into a commercial enterprise, or his seeming lack of interest in the physical state of the property (as he had not been to see it), suggested a detachment of sentiment from the property, which could be interpreted as suspicious of one whose claim thereto would suggest otherwise.
We daresay however, that but by no means could these ‘suspicious’ circumstances or acts amount to evidence upon which a finding could be made that the property did not belong to the claimant who had been held to have purchased the property in 1986. Most certainly, on no account could the said pieces of evidence, be evidence of a transfer of interest in the property from the title holder: the claimant, to his tenant, the judgment debtor.
Thus, the holding of the learned judge that “from the evidence on record I agree with the plaintiff judgment creditor that the disputed property had been sold by the claimant to the defendant judgment debtor” had no basis in fact and in law.
Evidently, the matters the learned trial judge adverted to, which he considered suspicious, led him to speculate that there must have been such transfer at some point.
As aforesaid, if there ever was a transfer, when was such transfer done, what the circumstances were, and the requisite writing evidencing such transfer, were not before the court. In fact, there was nothing before the court upon which a finding of transfer of the interest of the claimant in the property, evidenced by exhibit B, to the judgment debtor, or at all, could be made.
Thus the finding of the court was undoubtedly, based on mere conjecture in turn, based on conduct of the claimant which the learned trial judge considered suspicious, rather than an inference drawn from established facts.
To expatiate on the lack of place of conjecture in making findings of fact, we are guided by the celebrated dictum of Lord Macmillan in Jones v. Great Western Railway Co. (1930) 144 L.T. HL 194, at 202 “The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof”.
The learned trial judge was not entitled to be engaged in conjecture, in his duty to make findings of fact regarding the evidence before him. This was undoubtedly a blunder or error in the evaluation of the evidence led by the trial court resulting in a miscarriage of justice, see: Koglex Ltd No.2 v Field  SCGLR 175.
Thus we find that the holding of the trial judge that the disputed property had been sold by the claimant - whom he held to have purchased the property in 1986 - to the judgment debtor, cannot be supported from the evidence led, and must be set aside.
The appeal has thus been found to have merit and succeeds in consequence.
It is accordingly allowed, and the judgment of the court below, as well as the consequential order that execution proceed, are hereby set aside.
An order is made for the property described as Adepa Guest House No. 5 Nsawam Road, ABC Junction, Accra, to be released from attachment.
Costs of GH¢10,000 to the claimant/appellant.