IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2016
A. L. BOAKYE OF APAGYA AND MR AGYAPONG OYOKO - (Defendants/Appellants)
ATTA GYAMFI AND MARY BOAKYE - (Plaintiffs/Respondents)
DATE: 19TH JULY, 2016
CIVIL APPEAL NO: H1/05/2015
JUDGES: E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) J.A , A. M. DOMAKYAAREH (MRS) J.A
DOMAKYAAREH (MRS),J. A.
This is an appeal from the judgment of the High Court, Kumasi dated 4th February 2014 which went in favour of the plaintiffs therein.
The substrata of the appeal lay in the Estate of one Konadu Yiadom Boakye. The plaintiffs contested some devise in the Will of the deceased Konadu Yiadom Boakye.
The case of the plaintiffs/respondents as deduced from the Record of Appeal is that:
The plaintiffs/respondents are siblings, their father being the late Atta Kwame. They instituted the suit at the High Court on behalf of themselves and on behalf of the other children of the late Atta Kwame. The defendants/appellants are the Executors of one late Konadu Yiadom Bonsu. The late Konadu Yiadom Bonsu was the nephew (maternal) of the late Atta Kwame, father of the plaintiffs/respondents.
The plaintiffs’/respondents’ case is that their father, the late Atta Kwame acquired plot No. 65 Block C, Anomangye-Kumasi and constructed the ground floor of the building on the land for the plaintiffs/respondents. The plaintiffs/respondents state that upon the demise of their father, the late Konadu Yiadom Bonsu succeeded him. That the late Atta Kwame, in his lifetime, directed his nephew, Konadu Yiadom Bonsu who he had appointed as caretaker of his property to convey the whole ground floor to his children after his death. After the death of Atta Kwame, Konadu Yiadom Bonsu added two more floors to the building. The plaintiffs averred that notwithstanding the fact that the late Konadu Yiadom Bonsu, promised during his lifetime in the presence of the Odikro of Anomangye to hand over the ground floor to the plaintiffs and their siblings for which he demanded and they paid an amount of ¢10,000,000.00 old Cedis to enable Konadu Yiadom Bonsu prepare documentation reflecting their interest in respect of the property, he failed to fulfill his promise. The plaintiffs pleaded fraud and asserted that instead, the late Konadu Yiadom Bonsu left a Will in which he devised three rooms on the first floor to the plaintiffs and their siblings while he devised the ground floor of the house, which is for the plaintiffs to his family. Dissatisfied with this state of affairs, the plaintiff instituted an action against the defendants, Executors of the Estate of the late
Konadu Yiadom Bonsu on 7th May 2007, seeking four reliefs namely:-
a) A declaration that ownership to the ground floor of H/No. Plot 65 Block C. A. Anomangye-Kumasi is vested in the plaintiffs
b) Recovery of possession
c) Damages for trespass
d) An order for perpetual injunction restraining the defendants, their agents, servants and any person claiming title through them from interfering with the plaintiffs’ property in dispute.
2. The defendants, on their part, vehemently denied the assertions of the plaintiffs. Their case was that the late Konadu Yiadom Bonsu constructed the house in dispute. They contended that the plot in question was acquired by Akua Konadu (deceased) who was the mother of Konadu Yiadom Bonsu. They also asserted that Akua Konadu permitted her son, Konadu Yiadom Bonsu to use his name on the allocation paper issued by the Anomangye Stool in respect of the plot of land; that Konadu Yiadom Bonsu then used his own resources to construct the entire building and devised it in his will to his maternal family and the plaintiffs. The defendants also denied the assertion of the plaintiffs that the late Konadu Yiadom Bonsu made a promise in the presence of the Odikro of Anomangye to convey the ground floor to the plaintiffs for which reason he demanded and received ¢10,000,000.00 old Cedis from the plaintiffs. They therefore denied any fraud perpetuated on the plaintiff’s by the late Konadu Yiadom Bonsu, asserting that he had the requisite testamentary capacity to devise the whole house in his Will as he built it from his own resources. The defendants therefore counter claimed for “an order for the declaration of title and recovery of possession of the ground floor of H/No. 65 Block C.A. Anomangye-Kumasi as forming part of the Estate of Konadu Yiadom Bonsu (deceased)and the devise of same per paragraph 4(a) of the late Konadu Yiadom Bonsu’s Will dated 14/11/2006 be upheld”.
3. The case went through full trial and except for the relief of damages for trespass which was refused, judgment was entered for the plaintiffs on the rest of the reliefs they claimed while the defendants counter-claim was dismissed the reason being that they failed to prove same.
The defendants demonstrated their dissatisfaction with the judgment of the High Court by launching the instant appeal. The Notice of Appeal filed to that effect on 17th March 2014 listed two grounds of appeal, namely:-
1. The judgment is against the weight of evidence
2. Additional grounds of appeal will be filed upon the receipt of the Record of Appeal.
In his written submission filed on behalf of the defendants/appellants, Counsel for the appellants stated that pursuant to ground 2 above, three additional grounds of appeal were filed, namely:-
i) The judge was wrong in rejecting the evidence of DW1 without giving consideration to same describing it as hearsay evidence
ii) The judge erred when he held that the evidence of DW2 was concocted because DW2 could not tell how long it took him to complete the construction of H/No. Plot 65 Block C. A. Anomangye-Kumasi.
iii) The judge erred when he held that the failure by the defendants to produce the expenditure details by Konadu Yiadom bonus relative to the maternal used in the construction of H/No. 65 Plot 65 C.A Anomangye-Kumasi was fatal to their case.
Counsel went ahead to take the liberty to argue these additional three grounds of appeal first.
We shall now consider the grounds of appeal
Grounds I, II and III of the Additional grounds of appeal: These are immediately stated above.
4. We must say at the very outset that Counsel for the defendants/appellants did not disclose the basis for these additional grounds of appeal in that from the Record of Appeal, there is no application by the appellants to seek the leave of the court to file or amend their grounds of appeal. Again, the Record of Appeal does not disclose that any Notice of Additional grounds was filed and served on the respondents to put them on Notice. This state of affairs pointed directly to the fact that the appellants failed to comply with Rule 8(7) of the Court of Appeal Rules, 1997, C.I. 19 which provides as follows: “The appellant shall not without leave of the court, argue or be heard in support of any ground of objection not mentioned in the Notice of Appeal, but the court may allow the appellant to amend the grounds of appeal upon such terms as the court may think just.”
It is therefore not surprising that counsel for the plaintiffs/respondents, submitted that on the basis of the above lapses on the part of the appellants, this court should dismiss the three additional grounds of appeal as improperly advanced and contrary to law and procedure. We agree with him, and we accordingly dismiss the three additional grounds of appeal. Several decided cases also point unequivocally to this line of action. See for instance the case of the REPUBLIC V. JUDICIAL COMMITTEE OF CENTRAL REGIONAL HOUSE OF CHIEFS, EX PARTE AABA [2001-2002] S.C.G.L.R. 545.
5. We are therefore left with only one ground of appeal to consider which is the omnibus ground that the judgment is against the weight of evidence. Because this ground of appeal appears to be a permanent feature in all civil appeals, the authorities expatriating on the ambit of this ground of appeal have been so flogged that anybody with the slightest legal training on grounds of appeal cannot fail to notice same. Some of the leading cases on this omnibuses ground of appeal are TUAKWA V. BOSOM [2001-2002] S.C.G.L.R. 61; PRAKA V. KETEWA  G.LR. 423; DJIN V. MUSAH BAAKO [2007-2008] S.C.G.L.R. 686; AMPOMAH V. VOLTA RIVER AUTHORITY [1989-90] 2 G.L.R. 28 AND BOATENG & ANOTHER V. BOATENG [1987-88] 2 G.L.R. 81. The collective import of all these authorities is that this ground of appeal implies that certain pieces of evidence have been wrongly applied against the appellant and or that certain pieces of evidence on the record which if they were to be applied in favour of the appellant would have changed the decision in his or her favour. The onus therefore lies on the appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against. Again, the authorities direct that as an appeal is by way of rehearing pursuant to Rule 8(1) of C.I.19, the appellate court must analyse the entire record of appeal, take into account the testimonies and evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that on the preponderance of probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.
6. Although the three additional grounds of appeal together with the arguments canvassed in support of same have been dismissed as being filed and canvassed contrary to law and procedure, yet it is now pertinent to consider those arguments since same were relied upon in support of this ground of appeal. It is however to be noted that those arguments and submissions that relate to points of law will not be taken on board as points of law cannot be canvassed in support of this omnibus ground of appeal.The case of BROWN AND QUASHIGAH [2003-2004] S.C.G.L.R. 930 is emphatic that an appellant must not be heard to argue any additional ground of appeal on point of law if he files and relies solely on the omnibus ground of appeal. To the extent that the arguments canvassed in support of the omnibus ground are on point of law, they are accordingly dismissed.
7. In point of fact or evidence, the appellants sought to fault the trial judge for rejecting the evidence of DW1; that the judgeerred when he held that the evidence of DW2 was concocted; and that the judge also erred when he held that the failure by the defendants to produce expenditure details by Konadu Yiadom Bonsu relative to the material used in the construction of the house in dispute was fatal to their case. These points will be considered as part of the court’s rehearing function. In this regard, the court hasanalyzed the entire Record of Appeal so as to assure itself of the soundness or otherwise of the Judgment of the trial court. We must say that we find the Judgment to be very sound.
There were three core issues before the trial judge:
1. Whether or not the plot in dispute was acquired by the late Atta Kwame as per the plaintiffs/respondents or by Madam Akua Konadu (deceased) as per the defendants/appellants;
2. Whether or not the ground floor of the house in dispute was constructed by Atta Kwame before his demise according tothe plaintiffs/respondents or by Konadu Yiadom Bonsu according to the defendants/appellants.
3. Whether or not the late Konadu Yiadom Boakye went to the Chief of Anomangye with the plaintiffs and their siblings and promised before all of them that he would convey the ground floor of H/No. 65 Block C A Anomangye to the plaintiffs if they would pay ₵10,000,000.00 (ten million old Cedies)and give their consent for the allocation paper to be issued in his name.
Since the plaintiffs claimed reliefs and the defendants also counterclaimed for reliefs, it means both parties bore the same burden of proof on the preponderance of probabilities as far as their respective claims and counter-claims are concerned. From the Record of Appeal, what is the evidence in support of the respective and conflicting position of the parties?
8. The case of the defendants was that the plot was acquired by Akua Konadu who instructed her son to put his name on the allocation paper. They averred at paragraph 4 of their Statement of Defence that they would tender the said allocation paper and the site plan during the hearing of the matter. This they failed to do. In paragraph 4 of their Statement of Defence the defendants averred thus: -
“Paragraph six is also denied and in reply theretostate that after the acquisition of the said plot by Akua Konadu (deceased) same instructed her son (late Konadu Yiadom Bonsu) to put his name on the allocation paper. And leave would be sought from the Honourable Court during the hearing of the matter to refer to the said allocation paper and site plan and tender same for its full force and effect.”
On the contrary, DW2 gave the conflicting evidence that the plot in dispute was originally acquired by one Nuhu who then sold it to Akua Konadu and Konadu Yiadom Bonsu jointly. DW1 the younger brother of Konadu Yiadom Bonsu said it was their mother who acquired the plot and asked his brother to use his name in the documentation. They failed to produce that documentation. The 2nd defendant/appellant for his part did not know how the plot was acquired. This could be understandable as he was an Executor of the Will of the late Konadu Yiadom Bonsu and did not know much if any at all about the family affairs of the late Konadu Yiadom Bonsu. The defendants were thus on slippery grounds as far as acquisition of the plot in dispute was concerned.
9. As to who constructed the ground floor of the said building, the defendants, per paragraph 5 of their Statement of Defence averred that the late Konadu Yiadom Bonsu constructed the ground floor from his own resources and asserted that they would seek leave of the court to refer to the daily activities (expenditure) contained in the Ledger Book of the Late Konadu Yiadom Bonsu and “tender same for its full force and effect.”This the defendants failed to. DW2, the mason who claimed to have been hired to construct the entire building could not tell how long it took for the building to be constructed. Clearly on the balance of probabilities one cannot say the defendants have proved their counterclaim by any positive evidence. One cannot therefore fault the learned trial judge for rejecting the evidence of both DW1 and DW2. The evidence of DW1 was clearly hearsay and the evidence of DW2 being at variance with the pleadings of the defendants/appellants can only be concocted and nothing else.
Per paragraph 9 of their Statement of Defence the defendants merely denied the plaintiffs averments on the promise made by the late Konadu Yiadom Boakye before the chief of Anomangye and the ₵10,000,000.00 (ten million old Cedies) that the plaintiffs paid to him and in a show of bravado stressed that they would “put the plaintiffs to the strictest proof for asserting same”as if the matter were a criminal trial.
There is therefore no basis to interfere with the findings of the trial judge in the counterclaim.
10. On the side of the plaintiffs, the 1st plaintiff testified on their behalf as per their pleadings. His evidence was corroborated by the evidence of PW1 who happened to be the widow of the late Konadu Yiadom Bonsu.Counsel for the defendants did not cross-examine PW1.The effect of the failure to cross-examine the 1st Plaintiff is that the defendants/appellants have admitted the veracity of her evidence. Technically and legally therefore, the defendants could not be heard to put forth a contrary case. If they did as happened in this case, the trial court will be entitled to place no value on it. PW2, a 90 year old farmer who was a friend to the then chief of Anomangye corroborated the evidence of plaintiffs as he was present at the chief’s house when the late Konadu Yiadom Bonsu came to the chief’s house with the 1st plaintiff and PW1 to make the promises and demand the ¢10,000,000.00 that the plaintiffs referred to in their pleadings and evidence. PW2 was not shaken under cross-examination despite his advanced age. As between the two divergent positions, on the balance of probabilities, it is not difficult to see why the trial judge chose to believe the plaintiffs version of the story. It was consistent from beginning to the end whereas the defendants’ case was amply laced with contradictions on points pleaded and completely new matters that were not pleaded at all.
11. This court can find no reason to disturb the judgment of the learned trial judge. The judgment of the High Court in this matter dated 4th February, 2014 is affirmed while the instant appeal is dismissed in its entirety.