F.G. KORBIEH, J.A.

The plaintiff’s case against the defendants in the trial High Court in Accra may be summarized as follows. She purchased House No. E227/16 situate and being at Mamobi, Accra from one Hawa Awa alias Hajia Bawa (deceased) and was given a receipt dated the 1/6/2001. She also averred that Hawa Awu gave her a deed of assignment dated 2/4/2001 which was “duly executed” by the Lands Commission on the 11/4/2001. The original lease on the house was executed between Abdulai Dagati (Lessee) and Nii Notei Owu III (Lessor) and registered at the Lands Registry with No. 4325/1985 was passed on to her by Hawa Awu. She averred that Hawa Awu was the junior sister of Abdulai Dagati and had inherited the property on the 23/9/1981 by virtue of a statutory declaration made by Abdulai Dagati on the 3/1/1976. She further averred that Hawa Awu had been granted Letters of Administration on the 6/2/1987 to administer the movable and immovable property of Abdulai Dagati who had died without wife or child. She further averred that Hajia Hawa Awu had been given vesting assent on the property and that all the original documents on the property had been handed over to her by Hajia Hawa Awu.

Subsequently, Hajia Hawa Awu, through her lawful attorney, Hajia Memona, tried to eject the 2^nd to 17^th defendants from the premises, recover arrears of rent and recovery of possession of the premises in a suit entitled:

“Hajia Hawawu per Her Lawful Attorney Hajia Memona – Versus Peter Serinye and 19 Others”

Later it was agreed that the 2^nd to 17^th defendants should remain in possession but pay rent to the plaintiff but they reneged on the agreement and refused to recognize the plaintiff as their landlord. The plaintiff also averred that she had eleven children and required all the rooms in the house to accommodate those children and herself and that when she informed the defendants to give her vacant possession of the rooms in the house, they refused, failed or neglected to do so. She therefore initiated the action in the Circuit Court, Accra claiming: a) a declaration of title to and recovery of possession of House No. E227/16, Mamobi, Accra and b) recovery of all arrears of rent and utilities.

In reaction to the plaintiff’s claim, the defendants denied all material allegations of fact made by the plaintiff save that 2^nd to 17^th defendants were tenants in the house in question. The 1^st defendant averred that he was the head of family of the family to which Abdulai Dagati belonged to and that upon the death of the latter he came to Accra to send the funeral of Abdulai Dagati to the North and it was only then that he permitted Hajia Hawa Awu, being the half-sister of Abdulai Dagati and his only relative in Accra, to give out the house on rent for her upkeep. The 1^st defendant averred further that without reference to the family, Hajia Hawa Awu fraudulently applied for and obtained Letters of Administration to administer the estate of Abdulai Dagati and that the family later instituted action in court for the revocation of the L.A. and the case was still pending in court. The 1^st defendant also averred that the plaintiff could not have been a bona fide purchaser for value without notice as the house had been sold to Suraj Abubakar who later became the plaintiff’s witness in the sale of the same house in dispute.

On the basis of these averments, the case went to trial before the trial Circuit Court in Accra who gave judgment in favour of the plaintiff. It was that judgment that the defendants appealed against on the following grounds:

a) The judgment is against the weight of the evidence.

b) The judge erred in law in not applying the nemo dat quod non habet principle.

c) The judge erred in finding that the late Abdulai Dagati transferred the house in dispute to Hajia Hawa Awu (deceased) in 1976.

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

The relief sought from this Court was for the judgment dated 11^th November, 2007 to be set aside. Let us say straightaway that no further grounds of appeal were filed and therefore we shall be dealing with just the three original grounds of appeal. It is also noteworthy that only counsel for the appellants filed his written submissions and we shall therefore be considering only one set of written submissions.

The said counsel decided to argue grounds a) and b) together first and ground c) separately later on. On our part however, we will take all three grounds together as they can all be subsumed under the omnibus ground that the judgment is against the weight of the evidence. In so doing we entirely agree with the authority cited by learned counsel in support of his argument that:

“On a submission by an appellant that the judgment of the trial court was against the weight of the evidence led, even though it was ordinarily within the province of the trial court to evaluate the veracity or otherwise of a witness, it was incumbent upon the appellate court in such a case, to analyse the entire record of appeal, take into account the testimonies and all documental evidence adduced at the trial before arriving at its.”

This was the decision in the case of the Supreme Court case of Oppong v. Anarfi [2011] SCGLR 556. This case actually follows a long chain of authorities that give this Court the power and authority to review or actually rehear the case brought before it on appeal. The power of rehearing stems from Rule 8(1) of the Court of Appeal Rules, 1997 (C.I. 19) wherein it is stated that an appeal “shall be by way of rehearing…” The law is settled that an appellant who appeals under this omnibus ground of appeal has the duty to point out those pieces of evidence which, if considered by the trial judge, would have turned the case in his favour but which the trial judge failed to consider or that some evidence was wrongly applied against him but for which the case would have gone in his favour and that the onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against. This was so stated in the case of Djin v. Musa Baako [2007-2008] 1 SCGLR 686. See also cases such as Bonney v. Bonney [1992-93] Part 2 GBR 779, Tuakwa v. Bosom [2001-2002] SCGLR 61, Aryeh and Akapko v. Ayaa Iddrisu [2010] SCGLR 891 and Chou Sen Lin v. Tonado Enterprises Ltd. [2007-2008] SCGLR 135 or (2008) 13 MLRG 197. We will therefore proceed to go through the appellants’ case to see whether or not they have succeeded in convincing us that the learned trial judge failed to consider their case properly. The first complaint made by counsel for the appellants is that there were a number of serious inconsistencies in the evidence of the plaintiff that the trial judge overlooked. He pointed out some disparities in exhibit E that the learned trial judge overlooked that made her finding of fact that Hajia Hawa Awu inherited the property of her deceased brother, Abdulai Dagati, on the basis of the statutory declaration faulty. In the first place, exhibit E was dated 3/1/1976 whilst the original lease of the property was executed between Abdulai Dagati (as lessee) and Nii Notei Owu III, Osu Mantse (as lessor) on the 1/6/1981. Counsel again pointed out that whereas on the lease document Abdulai Dagati thumb-printed, on the statutory declaration he signed it. This disparity ought not to have been lost on the trial judge because it was an issue before the court. The defendants had alleged fraud in their pleadings. (See paragraph 5 of the statement of defence) How was it possible for Abdulai Dagati to have executed a document in 1976 giving away property he was yet to acquire in 1981? If the trial judge had been more diligent, she would have seen through the anachronism in exhibit E and not hailed it as an express declaration of intent of Abdulai Dagati. We also think that the learned trial judge fell into a veritable trap set up by the very wording of exhibit E: “no family member or relative should stand against this my proposal and that after my death all my properties should be inherited by my said next of kin and successor Hawa Awu my sister, her heirs and assign forever.” But despite the stark inconsistencies in exhibit E that make it an obvious forgery, the learned trial judge held as follows:

“With this explicit declaration I am of the view that issue (b) is well settled that Hajia Hawa Awu inherited the property of her brother. Consequently until his death she had no dealings with it and therefore it was proper for her to go to Court and take Letters of Administration in respect of the same house in dispute as it still formed part of his property at his death according to Exhibit E.”

We are entitled to reverse this decision on the authority of the case of Agbeshie v. Amorkor &

Another [2009] SCGLR 594 at page 602 where Ansah, JSC said as follows:

“In the present appeal the trial court had no difficulty in accepting the documentary evidence in exhibits B, C, D, but the Court of Appeal saw chinks in them saying they were defective. We agree with those criticisms and affirm that the trial court put undue weight on these documents. The Court of Appeal was justified in interfering with the findings of facts by the trial judge and also reversing its judgment.”

In the case of Tema Oil Refinery v. African Automobile [2011] 2SCGLR 709 at page 921 Dotse, JSC said in the judgment of the Court that:

“What should be noted is that, in cases like the instant one, where in addition to the viva voce evidence, a mass of documentary evidence was tendered during the trial, the second appellate court, such as this court is virtually in the same position as the trial court. This is because most of the findings of fact have been made through a perusal of the documents and we have been put in the same position as the trial court to assess the totality of the evidence.”

We shall therefore proceed to examine other pieces of evidence on the record with a view to finding out for ourselves whether indeed the other complaints of the appellants are also justified. It is alleged that the house in dispute had earlier been sold to one Suraj Abubakari who later become PW2 in this case. Indeed in exhibit 4 (on page 147 of the ROA), Suraj Abubakari testified on oath that that the complainant in that case (Hajia Hawa Awu) had disposed of the house in dispute to him “since December 2000. I have made full payment for it and I have been issued with the necessary documents.” As part of the determination of the complaint in exhibit 4, it was ordered that “Respondents who were owing various sums in rent were requested to give up possession for the occupation of [Suraj Abubakari] and his family after the disposal of the premises to him.” (See page 151 of the ROA) In the same exhibit 4 Hajia Memuna (Hajia Memona testifying as PW1 in this case) said on that Hajia Hawa Awu was her mother and that

“The sick mother decided that the premises should be sold to pay her medical bills. It was subsequently sold to one Suraj Abubakari and he wants vacant possession.”

As opposed to the plaintiff’s claim is that of the 1^st defendant who says that he is the head of family of both Abdulai Dagati and his sister, Hajia Hawa Awu. In this suit no one has challenged that claim. The only contest between the plaintiff and the first defendant is the issue: whether or not there was a valid sale of House No. E227/16 situate and being at Mamobi, Accra between the plaintiff and Hajia Hawa Awu. The learned trial judge held that on the basis of exhibit E House No. E227/16 had passed from Abdulai Dagati to his sister. We think that that decision was legally faulty for all the reasons we pointed out above and therefore hereby set that decision aside. That means that the house remained part of the estate of Abdulai Dagati upon his demise. So we have to move on to the next issue which is whether or not Hajia Hawa Awu was entitled to take out Letters of Administration to administer the estate of Abdulai Dagati. This was an issue before the trial court because in paragraph 5 of their statement of defence, the defendants had denied the averment contained in paragraph 5 of the plaintiff’s statement of claim alleging fraud perpetuated by Hajia Hawa Awu on the family of Abdulai Dagati and further averring that the family had sued Hajia Hawa Awu in court to have the L.A revoked. The trial judge again relied on exhibit E to resolve all issues about the validity of the L.A. But apart from what we have already said about exhibit E being a forgery, it had nothing to do with Hajia Hawa Awu and the issue of whether Hajia Hawa Awu obtaining the L.A. was right or wrong. From the totality of the evidence on the record, it cannot be said that Hajia Hawa Awu did any wrong by obtaing the L.A. of her late brother. It was the 1^st defendant who alleged the fraud and therefore bore the burden of proof on the issue. But the only evidence adduced in support came from D.W.1 (Wing Commander Eric Dakura (Rtd)) who testified as follows:

“…Later we asked Memuna and she said the documents were with someone who was also not available. We never got the documents. These documents were Letters of Administration concerning the house. I then took up to conduct a search at the Registry of the High Court and got the Letters of Administration. I realized that those signatories were not our family members i.e. one Haruna claiming to be family Head others I cannot remember. Seeing the family was not involved we informed our lawyer to take action against the said grant. The Letters were issued to Hajia Hawawu.”

From the evidence of DW1 himself, both Abdulai Dagati and Hajia Hawa Awu belonged to his family. If therefore, after the demise of Abdulai Dagati, Hajia Hawa Awu applied for and obtained L.A. to administer his estate, we do not think that, that in itself, amounted to fraud. In law an L.A. by itself does not transfer property to a person. It only makes a person a sort of caretaker over the property until the property is legally transferred to the beneficial owner. DW1 confirmed that Hajia Hawa Awu had no intention of defrauding the family. This is what he said:

“The plaintiff’s claim that the house was sold to her by Hajia Hawawu is not known to the family. When I heard of the sale I asked the then sick now deceased Hajia Hawawu and she said she did not know about any such sale. And if anyone claimed they had sold the house in her own words that person is a thief and we should take that person to Court.”

We therefore hold that Hajia Hawa Awu did not commit any fraud on the 1^st defendant and his family when she took out the L.A. to administer the estate of Abdulai Dagati. What constituted the fraud was when Hajia Hawa Awu attempted to vest property in the house in herself. She knew or ought to have known that she was only part of a wider family that owned the house and that when she took out the L.A. she was only doing so in order to be a caretaker for the family. The evidence is overwhelming that both Abdulai Dagarti and Hajia Hawa Awu were the uterine children of one Salamatu Dagarti also known as Mwining Bangaa who was herself a Dagao (singular for Dagaaba) In other words all the three (Salamatu, Abdulai and Hawa Awu) were of Dagaare (or Dagarti) ethnic origin. It is true that Abdulai had a Ga father and Hajia Hawa Awu had a Kado father. Even though the Dagaaba are patrilineal and children inherit through their father’s side, it is the law, as was testified by DW1, that the children of a woman whose dowry has not been paid, as in the instant case, remain members of the woman’s family (a fortiori, her tribe or ethnic group). Even though these are legal issues we are talking about, we have the authority to pronounce on them because it is provided in section 55(1) of the Courts Act, 1993 (Act 459) as follows:

“(1) A question as to the existence of or content of a rule of customary law is a question for the Court and not a question of fact.”

In the judgment, the learned trial judge implicitly rejected this line of reasoning and decided that the Ga customary law (Abdulai’s father being a Ga) ought to prevail. But she forgot that there are rules governing the choice of law to be used when faced with a situation such as she had before her. It is provided in section 54(1) of the Courts Act, 1993 (Act 459) as follows:

“(1) Subject to clause (2) of article 11 of the Constitution, this Act and any other enactment, a Court when determining the law applicable to an issue arising out of a transaction or situation, shall be guided by the following rules in which references to the personal law of a person are references to the system of customary law to which that person is subject or to the common law where the person is not subject to a system of customary law:

Rule 1…………………

Rule 2. In the absence of an intention to the contrary, the law applicable to an issue arising out of the devolution of a person’s estate shall be the personal law of that person.”

Since the issue of the devolution of the property of Abdulai Dagarti was in contention, it was naturally the personal law of Abdulai Dagarti that would be used to settle the matter. This law was Dagaare (Dagarti) customary law. It could not have been any other law because of the evidence of DW1 to the effect that Abdulai Dagarti’s father did not pay his mother’s dowry which was corroborated by PW1 (Hajia Memuna) who testified that Abdulai was raised by his mother and not his father the Ga man who “did not look after him so he was a Moslem as a result.” (See page 119 of the ROA) It must be borne in mind that exhibit E has already been found to be a forgery and therefore counted for nothing. The trial judge’s decision that Ga customary law ought to govern the transaction was therefore given per incuriam. Under section 55(1) Act 459 we are empowered to pronounce on Dagaare (Dagarti) customary law which is that on the death intestate of a member of the family, his self-acquired property devolves on his family where he is not survived by a male child. Where he is survived by a male child or children, the deceased self-acquired property is automatically inherited by this child or children. If they are too young to look after the property and/or themselves, the head of family becomes a caretaker himself or appoints someone to become a caretaker. Invariably the widow is becomes part of the equation in the deal. In the olden days, the widow was part of the inheritance herself. In the case on hand, the house devolved on the 1^st appellant whom nobody challenged as the head of family. The evidence is that despite the vesting assent Hajia Hawa Awu never attempted to sell the house to anybody. As testified by DW1, Hajia Hawa Awu allegedly said that she did not know of any sale of the house. In exhibit 4, Peter Siniyen said in his examination-in-chief as follows:

“The original landlord has passed away and I am aware the premises has passed on to Complainant in this case, the landlord’s sister. She told other members of the family that she would live on the rent till she passed away for the family to take over the house.”

When he was being cross-examined by the complainant’s representative (Hajia Memuna) he said as follows:

“I was at a meeting at which the Complainant told the relatives that they could take over the house.”

But as pointed out by counsel for the appellants in his written submissions (and confirmed by the evidence on the record) there is evidence that the house in dispute had already been sold to Suraj Abubakari. It was therefore not available to be sold to the plaintiff. Nemo dat quod non habet. And yet Suraj Abubakari himself (as PW2) testified that the house was sold by Hajia Hawa Awu to the plaintiff. His evidence was intriguing at best and most probably full of perjuries. Since the case before this Court is the sale between Hajia Hawa Awu and the plaintiff, we can only pronounce on that sale. The trial judge, as pointed out earlier, was not diligent enough to go through all these inconsistencies and contradictions in the plaintiff’s case and therefore erred when she declared that the sale of the house to the plaintiff was valid. The problem of the trial judge was not only that she was not diligent in dealing with exhibit E, she also failed to apply the basic principle of the law of evidence that says that the party that asserts or alleges a thing has the burden of proof of that assertion or allegation. This can be found in sections 11 and 12 of the Evidence Act, 1975 (NRCD 323). It was the plaintiff who had asserted that Hajia Hawa Awu had sold the house in dispute to her. She therefore bore the burden of proof on the basis of the balance of the probabilities. The learned trial judge used exhibit E as the basis of the plaintiff’s discharge of this burden but we have pointed out that exhibit E was seriously flawed and could not and should not have been relied on. But beyond exhibit E there were a lot of other contradictions in the evidence of the plaintiff. For instance, PW2 (Suraj Abubarakari) actually perjured himself when he testified that he witnessed the sale of the house to the plaintiff by Hajia Hawa Awu even though in exhibit 4 he had testified that the same house had been sold to him. The evidence of Hajia Memuna Iddrisu (PW1) was evasive or inconsistent at best and outright lies at worst. We accordingly hereby reverse the trial judge’s decision and declare as invalid and null and void the alleged sale of House No.E227/16, Mamobi, Accra between Hajia Hawa Awu and the plaintiff. We accordingly hereby set it aside.

Following from all of the above, we uphold all the three grounds of appeal. We also order that all consequential orders made by the trial court be reversed. They indeed are hereby reversed.

The appeal therefore succeeds in its entirety.

(SGD)

FRANCIS G. KORBIEH

(JUSTICE OF APPEAL)

(SGD)

V.D. OFOE, J.A.                    I AGREE                      V.D. OFOE

(JUSTICE OF APPEAL)

(SGD)

C. H. SOWAH (MRS.), J.A.    I ALSO AGREE      CECILIA H. SOWAH (MRS.)

                            (JUSTICE OF APPEAL)