IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ROSE AMELE SAKA - (Plaintiff/Appellant)
AKUTEY AZU AND KORYOO AZU - (Defendants/Respondents)
DATE: 26 TH JULY,2018
SUIT NO: H1/99/2018
JUDGES: MARIAMA OWUSU J.A (PRESIDING), DENNIS ADJEI J.A, HENRY KWOFIE J.A
GEORGE ADDO YOBO FOR DEFENDANTS/RESPONDENTS
GODFRED ACHEAMPONG FOR PLAINTIFF/APPELLANT
HENRY KWOFIE J.A:
The present appeal has been launched by the Plaintiff/Appellant against the judgment of the High Court Accra delivered on 17th May 2016. The trial High Court in that judgment dismissed the Plaintiff’s claims and entered judgment in favour of the Defendants/Respondents on their counter-claim. The notice of appeal dated 21st June, 2016 is at pages 236-237 of the record. The grounds of appeal set out in the Notice of Appeal were:
The appeal (sic) is against the weight of evidence led.
That the trial Court took a simplistic view of the evidence in respect of the acquisition of the property and thus erred
The Court erred when it ruled that the Plaintiff/Appellant’s deceased father acquiesced in his right when he was dead at the time of the acts complained of.
The trial Judge erred when he failed to analyse the Will that Defendants/Respondents tendered to see whether the Testator had the capacity to make those Wills.
The trial Court erred when it granted the counterclaim of the Defendants/Respondents when they had no capacity to make those counterclaims
The judgment appealed against is at pages 218 to 235 of the Record and the reliefs sought from the Court of Appeal were the reversal of the judgment of the High Court and entry of judgment for the Plaintiffs/Appellant.
Before dealing with the arguments advanced in support and against the appeal, I will give a background of the case.
By her Writ of Summons filed on 23rd October 2007, the Plaintiff/Appellant in her capacity as the personal representative and beneficiary of the estate of the late Jonathan Ruben Adokwei Saka, claimed against the Defendants/Appellants the following reliefs:
i. A declaration of title in favour of Plaintiff’s late father’s estate for ALL THAT piece and parcel of land situate at Anorhor in Christianburg in Accra and bounded on the north by properties partly for the late Tawiah Hammond and partly of Ajibu measuring one hundred (100) feet more or less and on the south by the Lokko Road extension measuring one hundred feet more or less and on the east by the property of the late Kodjoetse Obodai measuring one hundred and ten (110) feet more or less and on the west by the property of the late Agnes Teteley and measuring one hundred and ten(110) feet more or less covering an approximate area of 0.253 which property has been numbered as H/No. F468/2 Osu.
ii. An order for recovery of possession of the land the subject matter of this suit from the Defendants and the family of the late Madam Amerley Agbomeso.
iii. An order that Defendants demolish all and any structure constructed by Defendants on the land or an order directed at Defendants to defray all expenses incurred by Plaintiff for purposes of demolishing the structures constructed by Defendants on the land
iv. An order of perpetual injunction to restrain the Defendants whether by themselves, servants, workers or agents or any other person or otherwise from trespassing or otherwise conducting any development or dealing with or in any manner interfering with Plaintiff’s late father’s estates ownership right and as well as possession of the land the subject matter of the suit.
It is the case of the Plaintiff that the she belongs to the same family as the Defendants. Both the Plaintiff and the Defendants are descendants of Madam Amerley Agbomesu who was Plaintiff’s grandmother and the great-grandmother of the Defendants. The Plaintiff’s father was the late Jonathan Ruben Adokwei Saka who was a pharmacist/civil servant. The Plaintiff contends that the land the subject matter of the suit was acquired by her father through his mother Amerley Agbomesu after which her father put up a house on the land. The father lived in the house with his wife and children and later permitted his mother Amerley Agbomesu to join him in the house.
It is the further case of the Plaintiff that his father Jonathan Ruben Adokwei Saka died in 1944 and thereafter Plaintiff’s aunt one Elizabeth Ashorkor Saka moved into Plaintiff’s late father’s house to live with Plaintiff’s mother and grandmother. The relationship between Plaintiff’s mother and her in-laws grew cold by reason of which Plaintiff’s mother was forced out of the house and she relocated to Abokobi. It is the further case of the Plaintiff that following the departure of her mother from the house, Plaintiff’s grandmother Amerley Agbomesu and aunt Elizabeth Ashorkor Saka took over the said property and built additional structures on the land and rented same out. The aunt continued to occupy her late father’s property until the 1950’s when she gave out the structure Plaintiff’s late father had built on the land to the Plaintiff and her siblings excluding the other structures on the land.
It is the case of the Plaintiff that the land is her late father’s property for which reason she has obtained letters of administration to administer same and has notified the Defendants and their siblings who took over her aunt’s structures on the land that she intends to recover possession of the land. It is her case that the Defendants are illegally and unlawfully depriving the beneficiaries of her late father’s estate of their property rights.
The Defendants denied the Plaintiff’s claim and contend that the Plaintiff has never been the personal representative of Jonathan Ruben Adokwei Saka. They further contended that they are nephew and niece respectively of the Plaintiff and cannot be described as extended relations of the Plaintiff. It is the case of the Defendants that the land the subject matter of litigation was acquired by Amerley Agbomesu (deceased) who happened to be the Plaintiff’s grand-mother and the Defendants great grand-mother. It is the case of the Defendants that Amerley Agbomesu permitted her son Jonathan Ruben Adokwei Saka to build a house on part of her land. She also permitted her daughter Elizabeth Ahsiorkor Saka to erect buildings on portions of her land. The house erected by Jonathan Ruben Adokwei Saka was numbered as House No. F468/2 whilst those erected by Elizabeth Ashorkor Saka was transferred to her and numbered House No. F468A/2.
The Defendants further aver that by the Last will of Elizabeth Ashorkor Saka, House No. F468A/2 was devised to Comfort Torshie Sai the mother of the Defendants. The Defendants denied that the Plaintiff has obtained Letters of Administration to administer the estate of his father Jonathan Ruben Adokwei Saka. By the Last Will of Comfort Torshie Sai H/No. F468A/2 was devised to the Defendants. The Defendants accordingly counterclaimed as against the Plaintiff as follows:
i. An order that property No. F468/2 and F468A/2 are separate and distinct Properties
ii. An order that the Plaintiff is the beneficial owner of property No. F468/2 built by Plaintiff’s deceased father Jonathan Ruben Adokwei Saka.
iii. An order that Defendants are beneficial owners of property No. F468A/2 built by Elizabeth Ashorkor Saka devolved to her daughter Comfort Torshie Sai and subsequently devolved from Comfort Toshie Sai to Defendants.
iv. Perpetual injunction to restrain the Plaintiff by herself, assigns, successors in title, workmen etc. from dealing in any way with Defendants property No. F468A/2.
A study of the grounds of appeal filed shows that most of them could be dealt with under ground a) which is that the judgment is against the weight of evidence. This is because by the Supreme Court decision in OWUSU DOMENA VS. AMOAH (2015-2016) 1 SCGLR 790 this Court in the exercise of its Statutory duty of rehearing under Rule 8(1) of C.I.19 in dealing with the omnibus ground of appeal can consider not just factual issues, but also consider matters of Law. I propose to conveniently deal with all these 5 grounds of appeal under the omnibus ground. The Plaintiff appellant will be referred to as the appellant and the Defendants/Respondents as Respondents.
Arguing ground (a) of the appeal Counsel for the Appellant submitted that the combined effect of Exhibit A and Exhibit B together with the evidence of the appellant herself, the PW2 and the 2nd Respondent affirm vividly that the Plaintiffs father actually bought the land and was the first to put up a house on same. He asserted that the Appellants grandmother in whose name the receipt covering the land was issued did not put up a single structure on the land. He submitted that the trial judge came to the conclusion that the property belongs to Amerley Agbomasu simply because the document says so without looking at the other evidence, be it oral on documentary. Counsel further referred to exhibit C a Statutory Declaration dated 1st August 1990 confirming the handing over of House No. F468/2 to the children of the late Jonathan Ruben Adokwei Saka and asked the rhetorical question why the family handed over the actual receipt covering the land to the appellant and her siblings if indeed the land belongs to Amerley Agbomasu and by extension the family as a whole. Counsel submitted that Exhibit C which was prepared by the sole surviving administrator of the estate of the late Jonathan Adokwei Saka to the appellant and his siblings was stricto sensu a Vesting Assent. He submitted that the trial Judge took a simplistic view of the matter because evidence abounds that Appellant’s father had in the year 1937 procured a building permit to build on the land and that the receipt dated 1940 could solely not evidence the purchase of the land.
With regard to the issue of acquiesance, Counsel submitted that during the lifetime of the Appellants father the only building on the land in dispute was what Appellants father put up. The structures put up by Elizabeth Ashiorkor Saka were erected after the death of Appellant’s father. The trial Court therefore misinterpreted the state of the buildings on the land in dispute. Counsel asserted that from the records, it is very clear that the Appellant’s father never slept on his rights nor did he acquiesce to the developments made by his sister Elizabeth Ashiorkor Saka.
Counsel further argued that the Respondents consistently maintained that the disputed property was a family property and yet they were claiming the property through Elizabeth Ashiorkor Saka who had devised House No. F468A/2 to their mother Comfort Torshie Sai. Counsel submitted that the said property being family property, paragraph 9 of the Last Will and Testament of Elizabeth Ashiorkor Saka is null and void because of the principle of Nemo Dat Quod Non Habet. Similarly Counsel contended that the clause in the Last will of Comfort Torshie Sai devising the H/No. F468A/2 to the Defendants is also null and void.
Finally, Counsel for the Appellants submitted that the trial Court erred in granting the Respondents counterclaim as the Respondents did not have a Vesting Assent in respect of the property devised to them.
Responding to the arguments in Support of the appeal, Counsel for the respondents submitted that throughout her testimony, the Appellant could not produce a single document to establish that the land the subject matter of dispute was acquired by her deceased father Jonathan Ruben Adokwei Saka. Counsel submitted that even Exhibit F a document tendered by the Appellant to establish the root of title of her deceased father rather had the name of Madam Amerley Agbomesu.
Counsel also referred to the Statutory Declaration Exhibit C confirming the handover of House No.F468/2 to the children of Jonathan Ruben Adokwei Saka and submitted that the administrator of the estate of the late Jonathan Ruben Saka was very clear in his mind that the house he was handing over to the children of the deceased was specifically H/No. F468/2 Lokko Road, Osu. He submitted that if House No. F468A/2 was part of the estate of Jonathan Ruben Saka, Mrs Ruby Aku Odamtten and others and the Appellant herself would have insisted on the said property being included.
Counsel further submitted that the Appellant was not consistent in her evidence and kept approbating and reprobating. He submitted that at one point, the Appellant insisted that her father died testate leaving a Will yet in another breadth saying that her paternal Uncle Emmanuel Kwashie Saka had taken letters of Administration to administer the estate of her deceased father.
Counsel submitted that the Appellant woefully failed to discharge the burden imposed on her as a Plaintiff on the balance of probabilities to prove her title to the land in dispute.
Counsel again asserted that the Plaintiff did not file a defence to the counterclaim of the Defendants and is deemed to have admitted Respondents counterclaim. Counsel referred to Order 11 Rule 13 of C.I. 47 and submitted that not having done so, it lies ill in the mouth of the Appellant to argue against the grant of the Defendants’ counterclaim.
Per Rule 8(1) of the Court of Appeal Rules as amended, an appeal is by way or re-hearing. The law is settled as to what is required of an Appellate Court when an Appellant appealed on the ground that the Judgment is against the weight of evidence. We are required to examine the entire record to ascertain whether the decision reached by the High Court is amply supported by the evidence on record. Additionally the Appellant is under an obligation to pinpoint the lapses he is complaining about. See the cases of OPPONG KOFI VRS ATTIBRUKUSU III (2011) 1 SCGLR 176 at 178; OPPONG VS AMARFI (2011) 1 SCGLR 556; ABBEY and OTHERS VS, ANTWI (2010) SCGLR 17 at 20 and ARYEH & AKAKPO VS. AYAAA IDDRISU (2010) SCGLR 891.
The evidence on record shows that the Plaintiff claimed that the disputed land was acquired by her late father Jonathan Ruben Adokwei Saka. She tendered in evidence Exhibit F to support her case that the land was acquired by her late father. She also tendered Exhibit C and building permits and drawings to support her case that the disputed plot belongs to her late father. Exhibit F is an indenture dated 22nd May 1946 between Nii Adjah Abebrense, Shipi of Osu Anorhor, Christianburg of the one part and Madam Amerley Agbomesu and registered at the Deed Registry as No. 409/1946 (see pages 252 to 257 of the record of Appeal) Exhibit C is a receipt covering the purchase of the disputed land by Amerley Agbomesu.
Nowhere in these two critical documents (ie the receipt and the indenture) does the name of the Plaintiff’s father Jonathan Ruben Adokwei Saka appear as the owner of the disputed plot of land. In the case of HAYFRON VS. EGYIR (1984/86) 1 GLR 682 it was held that:
“where there is in existence a written document and oral evidence on the same transaction, the Court should consider both the oral and documentary evidence but lean favourably towards the documentary evidence while the oral evidence is conflicting”
The record shows that the Plaintiff called the PW2 Alexander Philip Lutterodt to support her claim that Madam Amerley Agbomesu bought the disputed property on behalf of the Plaintiff’s father, but his evidence was in my view irrelevant. Under cross- examination the PW2 was asked:
Q, You told the court that you lived with Plaintiff’s mother, what year was it
A, To be frank, I cannot recollect
Q, How old were you by then
A, I cannot recollect
Q, You have also said in open court that Plaintiff’s father bought the land from Osu Anorhor, in what year was this?
A, I cannot recollect the year because it has been a while now.
Q, Were you physically present when he bought the land
A, No My Lord I was not present
Q, How did you get to know that Plaintiff’s father purchased the land?
A, We were there when Amerley Saka’s father came and informed us that he has put up a building sothey are moving in.
Clearly the evidence of the PW2 was not credible and did not support the Plaintiff’s case in any way.
In his judgment the trial Judge stated that he was convinced that the disputed plot was personally acquired by Amerley Agbomesu and that she did not acquire it on behalf of Plaintiff’s father. Having perused the record, we cannot but agree with the trial judge on this point that the disputed plot was bought by Amerley Agbomesu personally.
The record also shows that the Plaintiff described herself as the Personal representative of her late father Jonathan Ruben Adokwei Saka. She tendered in evidence Letters of Administration granted by the District Court Osu, Accra in respect of the estate of her father as Exhibit G. (See page 258 of the record). Exhibit G was issued on 15th May 2007 to the Plaintiff to administer the estate of her late father who died on 14th June 1944. At the time the Plaintiff applied for the grant of Letters of Administration at the District Court in 2007, she clearly was aware that an earlier application for letters of Administration in respect of the estate of her father Jonathan Ruben Adokwei Saka had been granted by the High Court Accra to Emmanuel Kwashie Saka and Mercy Tawia Saka the administrators of the estate of her father on 11th December 1944. See paragraph e) of the Statutory Declaration (Exhibit C) of Emmanuel Kwashie Saka confirming the handing over of H/No. F468/2 to the children of Jonathan Ruben Adokwei Saka (page240 of the Record).
It was based on this letters of Administration granted in December1944 that the sole surviving administrator Emmanuel Kwashie Saka handed over the said House No. F468/2 to the Plaintiff and her siblings who are children of Jonathan Ruben Adokwei Saka. There is no evidence on record to show that the December 1944 letters of Administration had been revoked. And yet the Plaintiff who was aware of the previous grant, concealed this fact from the District Court and applied for a new grant. In the case of In Re SACKITEY (Deceased) SACKITEY AND ANOTHER VS. DZAMIOJA (1987-88) 2 GLR 434 C. A. it was held as follows in holding 1:
By the mandatory provisions of section 67 of the Administration of Estate Act, 1961 (Act 63) there could be no valid grant when a previous grant was in existence, ie. Until there was an effective revocation there could not be a new grant. Accordingly, since the High court Koforidua, purported to grant probate of the Will of 1975 whilst letters of Administration with the 1965 Will annexed had already been granted by the High Court Accra, and that remained subsisting and unannulled, the probate issued at Koforidua was not valid”
See also the dictum of DIPLOCK L. J in JOLLEY, RE; JOLLEY VS. JARVIS (1964) 2 WLR 556 at 565
At page 440 of In Re Sackitey (supra) Francois J.A (as he then was) stated that
“This means that until there is an effective revocation, there cannot be a new grant. Put differently there cannot be two valid grants subsisting at the same time”
It is obvious that the letters of administration exhibit G was applied for by the Plaintiff for the purpose of overreaching the Court and the Defendants. Since under the law there cannot be two valid grants subsisting at the same time, Exhibit G is hereby declared invalid. The Plaintiff cannot therefore hold or describe herself as a personal representative of her deceased father Jonathan Ruben Adokwei Saka.
The evidence on record further shows that after the land in dispute had been purchased by Madam Amerley Agbomesu her son Jonathan Ruben Adokwei Saka built on a portion of the land where he lived with his wife and children and his mother Amerley Agbomesu. Subsequently his sister Elizabeth Ashiorkor Saka also built on a portion of the land. The evidence on record also shows that the building put up by Jonathan Ruben Saka was numbered F468/2 while the building put up by Elizabeth Ashiorkor Saka was transferred to her and numbered F468A/2. The record further shows that it was the House No. F468/2 built by Jonathan Ruben Saka that was transferred to his children including the Plaintiff by the administrator of his estate Emmanuel Kwashie Saka. The evidence also shows that the house built on the said land by Elizabeth Ashiorkor Saka and numbered H/No. F468A/2 was devised in her Last Will to Comfort Torshie Sai the mother of the Defendants. Comfort Torshie Sai also by her Last Will devised the said house to her children the Defendants herein.
Indeed the evidence shows that Elizabeth Ashiorkor and her devisee Comfort Torshie Saka gave out portions of some of the rooms in the House No. F468A/2 to tenants including the DW1 Kingsley Somuah Okyere who had lived in the said house No. F468A/2 for about 40 years without let or hinderance.
On the whole the Plaintiff failed to prove his claims before the trial Court and the trial Judge was right in dismissing the Plaintiff’s claims and entering judgment in favour of the Defendants in terms of their counter-claim. This appeal fails and same is dismissed as being without merit. The judgment of the trial Court is hereby affirmed.
Costs of GH¢5,000.00 in favour of the Defendants/Respondents
JUSTICE HENRY A. KWOFIE
(JUSTICE OF THE COURT OF APPEAL)
I AGREE …………………
(JUSTICE OF THE COURT OF APPEAL)
I ALSO AGREE ……………………..
(JUSTICE OF THE COURT OF APPEAL)