ADUM AKYEAMPONG & MRS ADUM AKYEAMPONG vs. MRS OWUSU BROWN, EDMUND OWUSU BROWN, WINIFRED OWUSU BROWN
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
ADUM AKYEAMPONG AND MRS ADUM AKYEAMPONG - (Plaintiffs/Respondents)
MRS OWUSU BROWN - (1ST Defendant/Appellant) EDMUND OWUSU BROWN - (2ND Defendant/Respondent) WINIFRED OWUSU BROWN - (3RD Defendant/Respondent)

DATE:  11TH FEBRUARY, 2016
SUIT NO:  H1/133/2014
JUDGES:  OFOE J.A KORBIEH J.A, MENSAH J.A
LAWYERS:  RAYMOND BAGNABU FOR THE PLAINTIFF/ RESPONDENT
DAVID AMETEFE 1ST DEFENDANT/APPELLANT
HUMPHREY MODZAKAH FOR 2ND DEFENDANT/RESPONDENT
KWABENA DARKO ASIEDU FOR 3RD DEFENDANT/RESPONDENT
JUDGEMENT

 

OFOE, J.A:

This suit started as a straight forward claim for money had and received by the 1st defendant from the plaintiffs with the promise to give plaintiffs an uncompleted property to rehabilitate and occupy, which promise had failed. Each party is accusing the other of breaching the understanding reached for the rental of the property. It was in the course of proceedings but before commencement of trial on the 14th of November 2012 that the 2nd and 3rd defendants were join to the suit on application by the plaintiffs. The reason they were joined was because they were executors of this uncompleted property which formed part of the estates of the late Edmund Oppong Owusu Brown. They were joined as 3rd and 4th defendants. I will explain how they became 2nd and 3rd defendants shortly.

 

After the joinder the parties filed their respective pleadings, issues and additional issues were set down for trial which proceeded to conclusion with judgment on the 29th October 2013. Undoubtedly on the joinder of the 2nd and 3rd defendants the suit enlarged beyond the proportion anticipated by the plaintiff whose simple claim was for return of monies they paid and spent on the property rented out to them by the 1st defendant. The 2nd and 3rd defendants on joining the suit filed a counterclaim against the 1st defendant who also in response filed a counterclaim against the 3rd and 4th defendants.

 

A summary of the pleadings of the parties will make this point clearer.

The plaintiffs’ statement of claim is found at page 47 of the record of appeal as amended statement of claim. The case of the plaintiffs was that they entered into an oral tenancy agreement with the 1st defendant and paid to her 600 pounds and $2000 (an equivalent of GH¢2,200) for her to complete the property for their occupation. The 1st defendant failed and it was agreed that the plaintiffs use their own money to complete the house and the expenditure incurred thereby used to defray future rent.

According to the plaintiffs when they were getting to completing the property, the 1st defendant asked for an interim account which they gave to the 1st defendant. Not long after the 1st defendant interrupted progress of work again asking to renegotiate the rent. She complained also that the plaintiffs were spending too much on the property. Plaintiffs therefore requested the 1st defendant to use the monies she earlier collected from them to complete the property herself. 1st defendant did complete the building but surprisingly gave it out to some other tenant. They had no other option but to ask for the return of all monies they had sank into the property. Their writ of summons was for

 

“a. An order that the plaintiff recovers the amount of 600 pounds and $2000 or its current cedi equivalent being the equivalent of GH¢2200 which 1st defendant demanded in foreign currency which was paid to her, to be used to complete the house aforementioned plaintiff to move in which amount was represent two (2) years rent.

 

An order that the 1st defendant pays to plaintiff the total expenditure incurred by the plaintiffs in the completion of the house to the stage at which the 1st defendant stopped them inclusive of the cost on the building materials, namely the 25 pieces of ply wood and the reservoir stand left at the site which 1st defendant has since utilized.

 

Interest on (b) and (c ) at the current bank rate from January 2003 till date of final payment Cost”.

 

These claims were initially made against not only the 1st defendant but the estate agent, Mr. Nyarko, who led the plaintiffs to the defendant. He was sued as the 2nd defendant. In the course of proceedings his name was struck out as a 2nd defendant. The 3rd and 4th defendants then had to be 2nd and 3rd defendants, the original 2nd defendant having been struck out. I will maintain their description as 2nd and 3rd defendants. The appellant I will continue to describe as 1st defendant.

 

The 1st defendant does not dispute there was this rental agreement and payment of GH¢2,200 to her by the plaintiffs to complete the property. She did buy all the materials to complete the job but the plaintiffs complained that the materials she had bought for the work was of low quality. All window frames she had bought and fixed were removed by the plaintiffs and replaced by other window frames, the choice of the plaintiffs with their own workmen. They did all these without her approval.

 

When confronted the plaintiffs claimed they were doing all that at their own cost. 1st defendant admits that at a certain point during the construction by the plaintiffs she stopped the work. She did this because the plaintiffs had taken over the construction with materials of their own choice without her consent. As regards the rent, it is the case of the defendant that she was to have been give ¢24m at a monthly rental of 1million cedis but the plaintiffs paid ¢22m leaving a balance of C2m which the plaintiffs are yet to pay.

 

The 2nd and 3rd defendants in their amended statement of defence, (found at page 144 of the records), contended that they would put the plaintiff to proof of the amounts they are claiming against the 1st defendant. But more important is their claim that the property is not for the 1st defendant. She has no proprietary interest in it and therefore has no capacity to rent it out to the plaintiff or anybody. 2nd and 3rd defendants deny any knowledge of the transaction between the plaintiff and the 1st defendant since they have been resident outside the jurisdiction. They are the executors of the Will of their father Edmund Oppong Owusu Brown and the property is part of the deceased estates. The will was read in the presence of the 1st defendant and probate has been granted. According to the 2nd and 3rd defendants under the said will the property, the subject matter of this suit, was devised to the wife of the deceased, Comfort Aburam Owusu Brown, who is currently residing in the UK for her life time and thereafter for the enjoyment of the 2nd and 3rd defendants and their siblings. As for the 1st defendant she only lived with the deceased in the property but has no interest and is just being tolerated by the beneficiaries of the property. Even though they blame the plaintiffs for not investigating the title of the property before entering into the agreement, they are ready to settle the matter with the plaintiffs. They have a counterclaim for

 

“(a) For a declaration that the 1st defendant has no beneficiary interest in the house.

(b) A declaration that the 3rd and 4th defendants and their siblings are the beneficial owners of the property

(c) An order for recovery of possession

(d)An order directed at the 1st defendant to account for all rents and income received from tenants and lessees in the house

(e) An order for perpetual injunction restraining the 1st defendant, her personal representatives,

successors, agents, assigns, privies, servants and all those claiming from or under the 1st defendant from entering the house or any part thereof and/or from doing anything concerning the house which is adverse to the interest of the 3rd and 4th defendant and the other beneficiaries under the will of the late Edmund Oppong Owusu Brown”.

 

To this defence and counterclaim, the 1st defendant filed what she described as “1st defendant’s reply, defence and counterclaim”. Under this she claimed to have put up this property jointly with the deceased and stayed in thereafter from 1979 till 2000 with their two children, when her husband, the deceased died. A major claim which she made and was fiercely contested was her claim to be the only surviving widow who is the person referred to as “wife” in the will of the deceased, Edmund Oppong Owusu Brown, and not Comfort Aburam Owusu Brown. Being a joint owner of the property and the sole surviving wife she has the capacity to deal with the property as she deemed fit. She accused the 2nd and 3rd defendants of failing to execute the will and by that deprived her of her benefits under the will. She also has a counterclaim against the 2nd and 3rd defendants as follows:

 

“1.An order by this court compelling the 3rd and 4th defendants as executors and trustees of the will of the deceased to execute the said will in accordance to law.

a. An order compelling the executors to refund to the 1st defendant her monetary losses resulting from the actions and inactions of the executors

b. Costs”.

 

So we have the plaintiffs claim embroiled in a form of probate matter. It is not surprising that the 1st defendant has raised the issue whether the joinder of the 2nd and 3rd defendants was appropriate.

 

Issues were filed by all the parties: important amongst which were whether the 1st defendant is indebted to the plaintiffs to the tune of their claim, whether the 1st defendant is the wife referred to in the will and the only surviving wife, whether the property was jointly erected by the deceased and the 1st defendant, whether the 1st defendant has any interest in the property for which she could have rented it out to the plaintiffs and whether the 2nd and 3rd defendant have capacity to make any claim against the 1st defendant without the authority of their siblings. One other issue was whether the claim of the 2nd and 3rd defendant was not statute barred.

 

At the end of trial the judge found the 1st defendant liable to the plaintiffs as per their writ of summons and ordered the 1st defendant to refund the money denominated in dollars or its cedi equivalent. He awarded the usual interest rate on the determined amount. He also found that expenditures were borne by the plaintiffs in rehabilitating the property for their occupation. The total cost which he found to be GH¢5,615.50 was also to be refunded. He rejected the 1st defendant’s claim as the wife of the deceased and found rather that she was a concubine to the deceased. 1st defendant’s claim to be joint owner of the property in issue was also rejected.

 

The 1st defendant who is the appellant in this case is aggrieved at the conclusions of the trial court, hence her presence in the Court of Appeal. She is asking this court to review the evidence in its entirety and set aside the judgment of the trial court in her favour. The grounds for which she is challenging the judgment she has formulated as follows:

 

“GROUNDS OF APPEAL

1. That the judgment is against the weight of the evidence adduced at the trial

2. The Honourable High Court Judge erred in law when he allowed the 3rd and 4th Defendants to be joined to the suit when the application for joinder and his order for joinder had not been served on them.

3. The Honourable High Court Judge erred in law when he allowed the representative of the 3rd and 4th Defendants who were never in court to testify on their own behalf when she had no power of Attorney executed jointly by the 3rd and 4th Defendants

4. The honourable High Court judge erred in law when he entertained the claims of the 3rd and 4th defendants who did not have any valid Vesting Assent

5. The learned judge also erred in law when he misinterpreted the Will of Edmund Oppong Owusu Brown (deceased) to exclude the Appellant and her two children she had with the deceased from being beneficiaries` under the Will

5A. That the learned trial judge erred in law by his failure to demand strict proof of the capacity of the 1st and 2nd defendant/respondents and their purported attorney even though same was fiercely challenged

5B.That the learned trial judge erred in law when he used his discretion in a non-judicial way by allowing the Plaintiffs to join 2nd and 3rd Respondents to the suit only to pursue a Counterclaim

5C.That the learned trial Judge grievously erred in law when he proceeded to hear the 2nd and 3rd Respondents who were resident outside the jurisdiction without first ensuring that the Amended Writ of Summons & Statement of Claim or Notice of the said Writ of Summons was served on them in accordance with law

5D. That the learned trial Judge misdirected himself in law by non-direction as regards the legal effects of Article 22 of the Constitution 1992 of Ghana and Section 13 of the Will Act 1971 (Act 360) with respect to the Appellant’s property rights, or in the alternative, the law of presumption of advancement in favour of the Appellant

5E.That the learned trial judge demonstrated without justification, palpable judicial bias against the Appellant and her lawyer, which bias manifested in the trial and the judgment leading to gross miscarriage of justice

5F. That the learned trial judge erred in law by his failure to carefully investigate the fraudulent schemes carried through by the respondents with respect to the purported grant of probate, powers of attorney, vesting assent, and fictitious documents in support thereof

6. The learned judge erred in law when he described as concubinage the twenty two years old customary marriage between the appellant and deceased

7. The learned High Court Judge erred in law when he entertained the claims of the 3rd defendant and

4th defendants when their action to recover the matrimonial home of the appellant was statute barred”.

 

Reading the grounds of appeal and submissions made by both parties in the light of the record of appeal, I find it appropriate to begin with the grounds of appeal that go to the capacity of the

 

Attorney to be in court on behalf of the 2nd and 3rd defendants. These are grounds 3, and 5A. For the sake of clarity I will reproduce them.

“3.The Honourable High Court Judge erred in law when he allowed the representative of the 3rd and 4th Defendants who were never in court to testify on their own behalf when she had no power of Attorney executed jointly by the 3rd and 4th Defendants.

5A. That the learned trial Judge erred in law by his failure to demand strict proof of the capacity of the 1st and 2nd Defendants/Respondents and their purported attorney even though same was fiercely challenged”.

 

Issue 5A appears to me to so embrassive in its effect that it was, as it were, inviting this court to examine all issues of capacity dealt with by the trial High Court. But what to me may limit the ambit of this invitation is to examine the submissions made by the 1st defendant before us which issues of capacity dealt with during the trial or judgment were addressed by counsel for the 1st defendant. For those not addressed in the submissions, as is the common legal principle, is to be considered abandoned in this appeal. So let us begin by a review of the capacity issues considered by the trial judge during the trial and in his judgment and which did counsel for the 1st defendant abandon.

 

It needs a reminder that it is a common legal principle that issues for trial should arise from the pleadings of the parties. Refer to the case of Agbosu vrs Kotey (2003-2005)1GLR 699 for a detail exposition of the value of pleadings and issues arising therefrom. On reading the pleadings put before the trial judge it doesn’t appear that any issue of capacity was raised at all. Surprisingly the following was set out for trial by paragraph 5 of 1st defendant’s additional issues filed:

 

“Whether or not the 3rd and 4th defendants have the capacity to make any claim against the 1st defendant without the authority of the other siblings?

 

This notwithstanding this issue was determined by the trial judge. He held that as executors and beneficiaries of the property the 2nd and 3rd defendant did not need the authority of their siblings to be in court.

 

When cross examination of the 2nd and 3rd defendant’s attorney was yet to end, counsel for the 1st

defendant filed a motion on the 25th of July 2013 asking for the 2nd and 3rd defendant’s to be struck out as parties because at the time the Order to join the 2nd and 3rd defendant was made they were not beneficiaries of any vesting assent in respect of the house for which they were seeking a declaration as owners.

 

The trial judge dismissed this application also on the ground that the 2nd and 3rd defendants were both beneficiaries and also executors of the will of the property in issue. They therefore had capacity to be parties to the suit.

 

Another issue raised during the trial was whether the appointment of the 2nd and 3rd defendant as executors when they were minors should not deny them capacity to be in court as executors or persons with capacity to vest the property as they purported to do. The trial judge found that at the time their father died they were 31years and 19 years respectively and were therefore capable to act as executors. It was his view that it was their ages at the date of implementing the contents of the will that was important and not the date the will was executed.

 

One other thing which I will say also concerned the capacity of the 2nd and 3rd defendant’s presence in the court room was counsel’s application to the trial judge to make a referral of certain identified documents for forensic examination. This application was again refused.

 

One may then ask if these were the issues of capacity determined by the trial judge, what is ground 5A of the grounds of appeal asking us to review?

 

I have read the submissions of counsel and I will not say he made any submissions on these capacity issues determined by the trial judge. All he did, in substance, was mentioning them in passing without any detail submissions. He appeared rather, to be asking of this court’s decision declaring the vesting assent and Power of Attorney fraudulent. Indeed that is one of the reliefs he is asking from this court. It is my view that that request cannot be examined by this court in view of the earlier decision by this court, differently constituted, that the 1st defendant may want to issue a fresh writ to determine the issue of fraud. On reading the record of proceedings and the submissions made by counsel, I will consider all these capacity issues, apart from that in which the trial judge refused the referral to forensic expert abandoned. In fact if she had maintained them as grounds of appeal I would have had no hesitated dismissing them, having regard to the records and the reasoning of the trial judge.

 

So let’s take a few details of what happened in respect of the application for referral to a forensic expert whether anything favourable to the 1st defendant would come out of this complain.

 

On the 7th of August 2013, the then counsel for the 1st defendant filed a motion seeking an order from the court for a forensic examination of the signatures on the Power of Attorney (exhibit 11), supposedly issued by the 2nd and 3rd defendants, an affidavit sworn to by the 3rd defendant in the course of trial (exhibit 20) and the Vesting Assent,(exhibit 15) (refer to page 400). The purpose of the application was to determine whether or not these mentioned documents were personally signed by the 2nd and 3rd defendants. The court ruled refusing the application. The following sequence of events should make it easy to understand the trial judge’s decision. The attorney for the 2nd and 3rd defendants started her evidence in chief on the 18th of July 2013. The following day the 1st defendant filed a motion to strike out the 2nd and 3rd defendants from the suit. This was eventually dismissed as mentioned in this opinion. The evidence of the attorney continued on the 22nd and ended 23rd July. Her cross examination continued on the 24th, 26th and 29th July 2013, 7th and ended on the 9th of August 2013. It was on the 7th of August that 1st defendants counsel decided to file his motion for an order to verify the authenticity of signatures on the named exhibits. By this date the attorney for the 2nd and 3rd defendant had long finished her evidence in chief. In effect counsel was asking the court to suspend trial until the forensic expert came with his report or that the trial should continue and when the report was ready the case resumed, with a possible recall of the attorney or any other witness to respond to the report of the expert. There was the possibility of any of the parties also calling for another forensic examination of the documents by another expert. The question to ask is what was it that prevented the 1st defendant from raising this issue of signatures all this time until when the attorney had left the witness box? Looking at the earlier applications he filed wanting to deny the 2nd and 3rd access to the court, it would not be wrong to say that the 1st defendant was just shopping for grounds to unseat the 2nd and 3rd defendants in the trial. If he was able to file similar applications bordering on capacity earlier in the trial, what prevented him from doing the same until this late time in the trial? At the commendable case management rate at which the trial was progressing, counsel’s application for an appointment of a forensic expert was definitely tardy in all aspects and in the circumstances of the case was rightly refused by the trial judge. Even if the trial judge gave unsatisfactory reasons for the rejection, it is my view that there are supportable reasons on record for exercising a discretion against the grant of the application. But again let’s ask, what the 1st defendant was asking the trial court to order the forensic examination for. Paragraph 12 of the motion paper stated:

 

“That in the circumstances the interest of justice would be served if this Honourable Court ordered a forensic examination of the signatures on all the documents tendered in evidence by the 3rd and 4th defendants attorney in order to determine whether or not they were personally signed by the 3rd and 4th defendants”.

 

The court should refer all the documents to forensic and be compared with what document and to determine what? To determine whether all were signed by the 2nd and 3rd defendants? The forensic report would be that all were sign, or all were not signed or some were signed and others not by the 2nd and 3rd defendants. Depending on the results time for completion of trial was going to adversely affected. Which of the documents was the 1st defendant contending was not signed by the 2nd and 3rd defendant? Is it all the documents? I find this request of the 1st defendant not focused and without adequate direction, particularly when no issue has been set for the trial of any such matters. If she was disputing the fact that the Power of Attorney was signed by the 2nd and 3rd defendant one expected her request to the court to be tidier than was made before the court. Such a request in the circumstances of the case, can attract no other result to the applicant than a refusal. The trial judge’s exercise of discretion refusing the application cannot be questioned, if that is what the 1st defendant wants from this court. It is an exercise of discretion and on the authorities like Ballmoos vr Mensah(1984-86)1GLR725 and Kyenkyenhene vrs Adu (2003-2004)1SCGLR142 such discretion can be interfered with only where wrong principles were applied or where the trial judge applied wrong or inadequate material or the conclusion reached by the trial judge would work manifest injustice. I do not find any of these breached by the trial judge.

 

We are left with the ground of appeal number 3 which was argued together with grounds 5A. Why did the trial judge allow the attorney of the 2nd and 3rd defendants to testify in the case when she had no power of attorney executed jointly by the 2nd and 3rd defendant?

 

In arguing these grounds of appeal together, counsel submitted that though on the face of the Power of Attorney, exhibit 11, everything may appear regular, it was not co-authored by the 2nd and 3rd defendant as contended by the attorney. Counsel argued that considering the fact that the order for joinder was made on the 19th of June 2012 and the pursuant amendment was made on the 27th of June 2012 it was not possible for a Power of Attorney to have been issued by the 2nd and 3rd defendants

 

on the 18th day of June 2012. His argument continued that he belatedly, after the trial, applied to the Immigration Service and they confirmed that Edmund Owusu Brown was not in Ghana during the period the Power of Attorney was purportedly issued. Edmund couldn’t therefore have executed the said power of attorney. He alluded to an application for fresh evidence he put before this court, differently constituted, in the course of proceedings which was refused and submitted that that refusal was an affront to case law. To him the application should have been granted since they had evidence to convince the court, including an affidavit sworn to by Edmund denying knowledge of the suit and this appeal before us, that he knew nothing about the suit. Counsel’s submission continued, that when it became obvious to him that some documentation tendered in the trial had suspicious signatures he applied to have forensic examination conducted to confirm whether the signatures on the Power of Attorney were indeed that of the 2nd and 3rd defendants but the court refused the application. It is the view of counsel that it is permitted on the legal authorities to make a declaration of fraud where there is evidence to that effect in a trial and that in such situations there was no need to ask that fresh suit should be mounted to raise the issue of fraud. Where the case is on appeal and evidence of fraud is unearthed it is also permissible for the appeal court in suitable circumstances to allow fresh evidence of the fraud to be adduced before it. Counsel mentioned the cases of Dzotepe vrs Hahormene 111(1987-1988)2 GLR 681, Ahyia vr Amoah(1987-88)2 GLR 289, Poku vrs Poku(2007-2008)SCGLR 996. He argued further that since the power of Attorney was not executed by the parties as contended by Rosina Brown, the purported attorney, then section 1 of the Power of Attorney’s Act was not adhered to and therefore on the authority of Asante-Appiah vrs Amponsah (aliasMensah) (2009) SCGLR 90 the Power of Attorney, exhibit 11has no legal force and therefore the attorney has no capacity.

 

Responding to these submissions counsel for the 2nd and 3rd defendants argued that the 2nd and 3rd defendants knew of the existence of this case before the 18th of June and had the Power of Attorney prepared before departing the country, it is therefore not correct for the 1st defendant to argue that the Power of Attorney could not have been prepared before the 19th of June when the order for joinder was made. He urged on this court further not to engage itself with the issue of fraud raised by the 1st defendant. According to counsel, attempt at raising the issue of fraud in this court had been rejected and the advice of the court was that the 1st defendant has the option to issue a fresh writ to litigate the fraud, if she was so minded. Continuing his submission counsel emphasized that there was a Power of Attorney duly signed by joint authors and duly stamped. This document was tendered without objection. And the only time the 1st defendant’s counsel introduced this issue was in cross examination when counsel sought to suggest that at the date of the issue of the Power of Attorney the 2nd defendant was not in Ghana. Since there was no such objection to the tendering of the Power of Attorney, the trial judge was not given the opportunity to examine and make any decision on it. It would be therefore unfair to castigate the trial judge for admitting the said Power of Attorney. There was nothing patent on the face of the Power of Attorney suggesting that it was flawed or had a fault, counsel submitted. He drew the courts attention to the right of counsel to object to the admission of evidence when it was being tendered and the legal consequences that flow where there is failure to object. He reminded the court also of documents that are inadmissible per se and those that would be admissible if not objected to. Counsel cited the case of Isaac Osei Sarfo vrs Samuel Kwame Sackey(2011) 31 GMJ where the court of appeal stated that there was no need for a power of attorney if the attorney, an agent, was to testify on behalf of her principals in court. Applying this case, it is the submission of counsel that the attorney did not even need the Power of Attorney to testify on their behalf. On the affidavit referred to by counsel for the 1st defendant which went before the court of appeal for leave to adduce fresh evidence, it is the view of counsel that that was not before the trial judge. Also not before the trial judge was the letter from the Immigration Authorities. Counsel submitted that all these are documents that were procured by the 1st defendant after the trial. In any case, counsel argued that all these rulings made in the course of trial were not appealed against and cannot be proper appeal before this court. He drew the courts attention that all issues of capacity that were raised by the 1st defendant before the trial court were determined and this ground of appeal about Power of Attorney raises a different capacity issue all together which did not come before the trial judge. What came before the trial judge, which he determined were the ages of the executors when they were appointed executors and whether the 2nd and 3rd defendants had the authority of their siblings to be in court to make claims against the 1st defendant.

 

It appears to me that this last submission of counsel for the 2nd and 3rd defendant that this issue of Power of Attorney was not before the trial court raise a very pertinent issue worth our attention. In other words would this ground of appeal be a proper ground of appeal to be considered by this court if it did not arise out of the trial? I will answer this question, but before then let me tackle the issue of failure of the 1st defendant to appeal against the interlocutory rulings made in the course of trial, raised by counsel for the 2nd and 3rd defendants.

 

The answer is provided by settled legal opinion. By these legal authorities a person who is dissatisfied with an interlocutory decision does not lose his right to appeal against that decision merely because he had failed to bring the appeal within fourteen days as provided by the rules of court. He still has the right to include complaints against such interlocutory decisions in an appeal against the final decision. Refer to the case of R.T. Briscoe (Ghana Ltd) vrs Amponsah(1969)CC 99, Ankumah vrs City Investment Co. Ltd(2007-2008)SCGLR 1064.

 

Now is this ground of appeal concerning the validity of the Power of Attorney properly before us? Generally that an appeal and therefore a ground of appeal should arise out of decisions made by the trial court cannot be disputed. Generally speaking, it would therefore be an error for a ground of appeal to be filed when that ground or grounds do not arise anywhere in a decision of the trial court or the trial. In this instant case it would have served the 1st defendant better if her grounds of appeal had zoomed directly on the specific decisions of the trial court she is uncomfortable with. Going through the record of appeal it is true that the issue of validity of power of attorney was not ventilated. All that can be read from the record of proceedings is the cross examination of the 1st defendant’s counsel of the attorney denying the signatures on the Vesting Assent, denying that on an affidavit sworn to by the 3rd defendant and denying also that on the Power of Attorney, as that of the 2nd and 3rd defendants. The attorney for these defendants maintained throughout the cross examination that the signatures were theirs. That is all the evidence we have on the Power of Attorney. There was no contested issue of the validity of the Power of Attorney on the grounds that it was not executed by the 2nd and 3rd defendants. This issue of the validity of the Power of Attorney is being raised for the first time in this court. Capacity of a person in court being such a vital element in a trial one would have expected the 1st defendant to have raised it properly, directly and clearly to enable the duty of establishing it to be strictly proved by the attorney for the 2nd and 3rd defendant, as demanded by the authorities. Refer to the case of Fosua (2009) SCGLR 310, Ex parte Aryeetey(2003-2004)SCGLR399 Where there is no challenge no such duty arises.

 

It is worth emphasizing, however, that matters of law are allowed to be raised for the first time on appeal, even if they were not raised during the trial provided the evidence on record can admit of the legal challenge. So in respect of a ground of appeal on the capacity of a person anchored on Power of Attorney, being a challenge on grounds of law, even where no issue is raised at the trial and the Power of Attorney is admitted in evidence without objection, the authorities have it that an appellate court can still examine the document whether it satisfies the law that governs the execution of a Power of Attorney. Such issue can even be raised for the first time on appeal by the court suo motu. This is the position taken by the Supreme Court cases of  Fosua & Adu Poku vrs Adu Poku Mensah(2009) SCGLR 310, Husein vrs Moru(2013-2014)1 SCGLR 363 and Asante Appiah vrs Amponsah(2009)SCGLR 90. A.G vrs Faroe Atlantic (2005-2006) SCGLR271, SG-SSB vrs Hajaara Farms Ltd (2012)1SCGLR1

 

In the Amponsah case for instance it was patent on the face of the Power of Attorney that no one signed as a witness and it was therefore invalid on application of section 1(2) of Act 549, The Power of Attorney’s Act. The court held that on application of section 8 of the Evidence Act, NRCD 323, the appellate court can reject it as inadmissible evidence.

 

On the above mentioned authorities I am entitle to examine this document for its formal validity within the evidence proffered at the trial. I have already mentioned all that was said in evidence about this Power of Attorney and I am of the view that none has the potential of successfully questioning it’s validity. But is there anything patent on its face that can deny it validity? In the case of Asante Appiah vrs Amponsah(supra) the Supreme Court rejected the Power of Attorney because it had no witness as demanded by the Power of Attorney’s Act. I find nothing such as these on the Power of Attorney before us. Rather it is clear on its face that it has been executed by the donors and witnessed as demanded by the Power of Attorneys Act. Indeed there is a commissioner for oath’s stamp for evidential purposes. All of counsel’s argument to justify the invalidity of exhibit 11 are grounded on matters (which he calls evidence) that cannot be found in the record of appeal. As stated earlier it is on record that 1st defendant applied to this court (differently constituted) to be allowed to adduce fresh evidence which application was refused. The 1st defendant was advised to rather mount a fresh action to set aside the judgment as having been obtained by fraud. At that juncture three options were open to the 1st defendant: one was to heed the advice of the court and institute fresh action (which implies that the instant appeal would be abandoned). The second was to appeal against the ruling of the Court of Appeal and if successful, adduce fresh evidence to show that exhibit 11 was a forgery and third, was to continue with this appeal without the fresh evidence. From the record of appeal she chose the third option. In other words, the 1st defendant chose to argue her appeal solely on the basis of the record of appeal as it is. That being the case the 1st defendant cannot advance any argument in support of her appeal that is grounded on any matter that is not in the record of appeal. But all the arguments pertaining to the purported invalidity of exhibits 11 are matters that are extraneous to the contents of the record of appeal. The 1st defendant is more or less trying to enter through the back door when entry through the front door was denied her. That is not permissible in law. It is said that the record of appeal cannot admit of extraneous matters: which is to say that unless a matter can be found in the record of appeal, it cannot be used in determining the appeal. So for the 1st defendant to argue that exhibit 11 is invalid on the basis of matters that are not in the record of appeal is to invite us to take extraneous matters into account in deciding this appeal. In conclusion I will dismiss in whole grounds of appeal 3 and 5A all on the 2nd and 3rd defendant’s capacity and the capacity of their attorney to be in court to represent them.

 

I will provide a quick answer to the 2nd and 3rd defendant’s counsel’s reliance on the unreported case of Safo vrs Sackey contending that the 2nd and 3rd defendants did not need a power of attorney to litigate their claim. On reading this judgment my view is that that case should be understood within its own facts. It did not state that no power of attorney is needed in litigating on behalf of a party not in court. The court’s reasoning in that case was that the attorney/father was, on the facts, an agent for his son particularly when the son came down to testify in support of the father/attorney that he authorized the father to mount the suit. The court conferred capacity on the father, even though he had no power of attorney from the son to sue. That is not the situation in this case.

 

The 1st defendant’s next ground of appeal argued by counsel concern the joinder of the 2nd and 3rd defendants. The wrongs identified by the 1st defendant were

“1. The trial judge giving the 2nd and 3rd defendants hearing without ensuring that the amended writ of summons and statement of claim were served on them

2. Allowing them to be joined to the suit only to pursue a counterclaim, and

3. Allowing them to join the suit when the order for joinder was not served on them”.

 

In disposing off this appeal I do not intend any detail excursus than asking the question whether the parties, if indeed they were not served with whatever originating process, were prejudiced in anyway by the trial and judgment that followed. Probably what may have to engage our attention a little more

 

is the joinder of the 2nd and 3rd defendant and the counterclaim 2nd and 3rd defendants sought against the 1st defendant.

 

It should be coming clearer amongst legal practitioners that Order 81 of the C.I 47 has been given an overriding and supervisory role within the rules such that objections and appeals relating to the rules of procedural should be resorted to only in very clear cases where breach of the rules are likely to or has occasioned some degree of prejudice or injustice to the complainant. Reference needs to be made here also to Order 1 rule 2. Indeed case law has given support to the intention of the makers of the rule as clearly stated in Order 1 rule 2. It provides

 

“2. These rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense and ensure that as far as possible all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.”

 

Under Order 81 the court has been given the power when to declare an act or omission an irregularity and if so declared to exercise a discretion to save the lapse. Indeed there is a duty also on parties before the court to timeously draw the courts attention to any irregularity after knowledge of it, failing which the party is forbidden from complaining after taking any step in the proceedings.

 

In respect to joinder of parties copious provisions have been made to guide the court in bringing to reality avoidance of multiplicity of suits, and convenient trials between parties, noting the requirement that unnecessary expense needs to be avoided. Refer to Order 4 of the High Court Rules. Because the framers of the rules foresaw misjoinders and non- joinders during trials that is why the rules have provided that misjoinder and non- joinder shall not defeat the proceedings. Refer to rule 5 of Order 4. It is in line with these provisions that I will have to examine these grounds of appeal.

 

The evidence is clear that it was the plaintiffs who applied to join the 2nd and 3rd defendant to the suit. In their supporting affidavit praying for the joinder they deposed as follows:

 

“4. That it has only recently(sic) that the property the subject matter of this action for which defendant demanded and received money as rent and also used plaintiff’s money to complete forms part of the estates of the late Edmund Oppong Owusu Brown which the parties sought to be joined are executors of the said property.

5. That I am informed and believe same to be true that that Edmund Owusu Brown and Winifred Owusu Brown are children of the late Edmund Oppong Owusu Brown.

6. That in view of the above mentioned fact it is necessary for the executors to be joined to the instant action so that in the event of any decision being taken in the matter they cannot claim they were not part of the action.

7. That in the circumstances I pray the executors of the estate of the late Edmund Oppong Owusu Brown are joined to the instant suit as 3rd and 4th defendants ………………………”

 

The trial court granted the order for joinder as prayed for by the plaintiffs. The plaintiffs in terms of the rules amended their writ and by that the suit had 4 defendants: Mrs. Owusu Brown and Mr. Nyarko, who were the original defendant and the two executors joined by the court. Koi Larbi entered appearance for the 2nd and 3rd defendant and filed a defence and a counterclaim against the 1st defendant, which was subsequently amended (page 144). The 1st defendant on service of this amended defence and counterclaim file a “reply and defence and counterclaim to 3rd and 4th defendants amended statement of defence” and also made a counterclaim against the 2nd and 3rd defendants. The 2nd and 3rd defendants offered a reply and defence to the counterclaim. Plaintiffs, 1st defendant, 2nd and 3rd defendants all filed issues for trial and the case proceeded to trial until completion.

 

I will quote the complaint of the 1st defendant as submitted by her counsel

 

“What this therefore means is that the grant of the joinder, like similar applications, is done by the court in exercise of its judicial discretion only in appropriate cases and based on sound legal principles. It is on the basis of the aforementioned position that this court is being respectfully urged to scrutinize the circumstances of this case whereby persons joined by the plaintiffs as defendants purported to mount a defence in the nature of a counterclaim against the original defendant, and in absolute support of the plaintiffs, thereby setting up a completely new cause of action.That joinder of parties therefore occasioned a joinder a joinder of causes of action totally unrelated, which in fact ought to have been tried separately. This is the kind of wrongful exercise of discretion that the appellate court shall interfere with…..”

 

He continued

 

“My Lords, on the basis of the above stated, the court shall find that, in exercising its discretion to grant plaintiff’s motion for joinder of the said purported executors as defendants, when in fact by their writ of summons  and  pleadings,  plaintiff’s  claims  made  no  allegations  against  them,  nor  claim  any reliefs(directly or indirectly or implicitly) against them nor did the 1st defendant herein deny liability and shifted same to the said joinder parties or any other person, the trial judge could not be said to have exercised his discretion based on sound legal principles governing such applications”.

 

The foregoing appears to be the complaint of the 1st defendant. She does not understand why in the first place the joinder should be granted when nothing in the processes filed concern the 3rd and 4th defendants- no allegations have been made against them and the 1st defendant is not denying liability and shifting liability to them. Relying on rule 2, 3, and 4 of Order 4 she argues that the joinder which resulted in joinder of a new cause of action completely unrelated to the existing suit flouted these subrules. On decided cases counsel referred us to cases like Bonsu vrs Bonsu(1971) 2 GLR 242, Apratwum Manufacturing Co. Ltd vrs D.I.C(2009)SCGLR 692, Montero vrs Redco Ltd(1984-86)1 GLR710.

 

There can’t be any doubt that in the grant or refusal of an application for joinder the discretion of the trial judge is being sought for. No doubt that after the joinder of the 2nd and 3rd defendants the processes filed looked a little murky and the trial judge could have ordered an ordered processes that would have resulted in a separate trial but I am of the firm view that that was an option and a discretion of the trial judge. At the close of pleadings what really came before him was plaintiff claiming against the 1st defendant monies they have sank into the property. They got to know that the property was for a deceased person represented by executors. Since the property may be in jeopardy in a likely execution process the plaintiffs decided to join the executors. The executors come in to say that the property is not for the 1st defendant but for beneficiaries under a will. In so far as the court was able to try the case as resulted from the joinder satisfactorily without any objection from any of the parties it is my view that the discretion exercised by the trial judge and the subsequent trial to completion without any objection from any of the parties does not merit appreciating the cry of the 1st defendant. Under Order 81 she had the right to object to the joinder if she found it irregular. Having participated fully without any objection, taking several procedural steps to completion of the case, I think it is the best option for me to give respect to the spirit behind Order 81, and in particular to this case, rule 2(2) which states that:

 

“No application to set aside any proceedings for irregularity shall be allowed unless it is made within a reasonable time and the party applying has not taken any fresh step after knowledge of the irregularity” .

 

Under rule 5 of Order 4, it is provided that at any stage of proceedings the court, either on its own motion or on application by a party order the ceaser of any party improperly joined to a proceedings.

 

This option was there for the 1st defendant but she failed to invoke it but rather went through all the trial processes without complaint. It is true that the rules may not have provided for the nature of counterclaim filed by the 2nd and 3rd defendants against the 1st defendant, another defendant, but the circumstances of this case makes it inappropriate to set aside the judgment because of that counterclaim.

 

It is worth noting also that under Order 4 rule 5 no proceedings shall be defeated by virtue of a misjoinder and the court is enjoined to determine the dispute so far as it affects the rights and interest of the persons who are parties in the proceedings. Who were the parties in the proceedings were clear to the trial judge and he dutifully determined the dispute between them. It will be of some value reading also the case of Oklika vrs Amuzu (1998-99) SCGLR 144 where the Supreme Court emphasized that pleadings should not be allowed to stand in the way of justice. Also relevant is the cases that have rejected any mechanical application of the rules of court. In the unreported consolidated case of 1. Major Mac Dorbi 2. W. O. Saviour vrs Richard Adom Frimpong & 2 others,Civil Appeal no J4/45/2011 of the 30th January 2013 where the Court of Appeal set aside the trial High Court judgment because W. O. Saviour did not enter appearance or file a defence, the Supreme Court upturn the Court of Appeal with the reason that in so far as W. O. Saviour participated fully in the trial without any objection he cannot be denied his victory on a technical grounds that he did not enter appearance or file a defence. The 2nd and 3rd defendants participated in the trial through their attorney and have not raise any issue concerning a counterclaim he contends is faulty and therefore the 1st defendant has no grounds to complain against the trial judge as he is seeking to do with this ground of appeal

 

Even if there were any irregularities arising out of the joinder there was no miscarriage of justice occasioned to the 1st defendant.

 

The other leg of this appeal concerns service on the 2nd and 3rd defendant of the court processes after the joinder. I will quote counsel:

 

“The point we are urging here is that the failure of the trial judge to ensure that the joinder parties were properly served with the order for joinder as well as the amended writ of summons and statement of claim, particularly the said Edmund Owusu Brown, was a fundamental error as same goes to jurisdiction. The error is not one that can be waived”.

 

Counsel referred us to the cases of Frimpong vrs Nyarko(1999-2000) SCGLR 429 at 442 and Oppong vrs Attorney General (2000) SCGLR 275 at 280. I have read both cases and it is my firm view that if counsel had patiently read these cases he would have realized that they are not applicable to the instant case which arose out of different facts and circumstances. In the Frimpong case it was a matter of the Supreme Court determining whether there was any competent document initiating the appeal before it. It found that the one purportedly file at the National House of Chiefs (the proper forum) was fraudulently filed. But there was another filed at the Court of Appeal and fees paid. Counsel for the appellant therein argued before the court that it should be possible to adopt that filed at the Court of Appeal if that filed at the National House of Chiefs had been found to be fraudulent. It was in response to this invitation that the Supreme Court had to state as counsel for the 1st defendant quoted that:

 

“… where the error is fundamental or goes to the jurisdiction, thereby exposing the court’s incompetence or lack of jurisdiction in the matter in which the said error was committed the court is incompetent to correct or waive such an error, as a court of law has no authority to grant itself jurisdiction in matters where the relevant statute does not confer such power…”.

 

The Supreme Court had to determine whether to adopt the process filed before the Court of Appeal against the rules of court. The process should have been filed at the National House of Chiefs not the Court of Appeal. One was filed at the House of Chiefs but out of time. If the appellant was out of time should that filed at the Court of Appeal be adopted against the clear dictates of the rules as to filing of appeal before the National House of Chiefs? The Supreme Court decline the invitation to adopt the process filed before the Court of Appeal.

 

In respect to the case of Oppong the appellant was enjoined to initiate the process before the Supreme Court by a writ. This appellant failed to do. He rather initiated the action by filing an affidavit. It was in those circumstances that His Lordship Atugubah stated, as quoted by counsel for the 1st defendant that:

 

“Where the step by a party to the proceedings before this court is fundamentally wrong, such error is not within the purview of the rule and cannot be waived..”

 

In the instant case before us the 2nd and 3rd defendants who the1st defendant is crying for have not raised any query that they were not served with any court process. They have entered appearance, filed a defence and gone through trial to the end. What reason has the 1st defendant to wail for the bereaved who has found no reason to shed any tears? It should always be remembered that that case law has established that it is the right of a party to waive a statute that is ordained to his advantage. Refer to the cases of Obeng vrs Boateng(1966)GLR 689, Standchart vrs Western Hardwood (2009) SCGLR 201, Ex parte Appenteng (2010) SCGLR 328 The 2nd and 3rd defendants if they were not served and are aggrieved, but are not, have waived any right to object having participated fully by their pleadings and evidence in court. One finds it difficult to understand the 1st defendants complain about service. This complaint has no merit.

 

1st defendant’s next two grounds of appeal and which were argued together concerned the trial court’s description of the 1st defendant’s 20 years relationship with the deceased as concubinage and by that excluded the 1st defendant and her children from any benefit under the will. That she is a wife was her assertion which by the rules of evidence carried with it the onus of proving that she is the surviving widow of the deceased. Refer to the cases of Takoradi Flour Mills vrs Samir Faris(2005-2006)SCGLR 882, Adjetey Agbosu vrs Ebenezer Nikoi Kotey(2003-2005)

 

In fact this issue of whether or not the 1st defendant is the surviving spouse of the late Edmund Oppong Owusu Brown was an additional issue filed by the 1st defendant herself.

 

The trial judge after analyzing the evidence on record stated at page 512

 

“From the evidence analyzed above and on the preponderance of probabilities, the 1st defendant could not and did not marry the deceased in either 1977 or 1978. Given the formula that that she was born in 1959 and got married at the age of 24 years makes the probable date of his marriage to be in 1983”.

 

He continued

 

“From 1981 to 2001 is almost exactly 20 years which means that Mr. Owusu Brown married the 1st defendant after 1981. This makes the alleged marriage between the 1st defendant and the deceased in 1978 or 1979 invalid or untrue and if it were so and in view of the deceased polygamous marriage to Comfort Aburam on 20th July 1979 renders any other type or form of marriage after that date a nullity and void. It is the 1st defendant’s awareness of that fact that is why she was forcefully trying to fit her date of marriage in either 1977 or 1978 but her own formula using dates of birth and the age at which she married (1959 and at the age of 24 years) gives the date of her marriage at 1983 and therefore shoots herself in the foot.

 

From the totality of the above evidence, I hold that 1st defendant did not marry the deceased Mr. Owusu

Brown in either 1977 or in 1978 but lived with her as his mistress or concubine until his death on 30th June 2000. And even if she attempted to marry him that could have happened after 1981 or in1983 when the deceased was legally and lawfully married to Comfort Aburam under the English Monogamous system of marriage which did not validly permit or admit of any other form of marriage.

 

In view of this conclusion, I hold that on the preponderance of probabilities Mrs. Owusu Brown a.k.a. Doris Nyakoh is not the surviving spouse of the late Mr. Edmund Owusu Brown as at 30th June 2000 when he died”.

 

These are findings of fact made by the trial judge. As rightly stated by counsel for the 1st defendant these can be set aside by this appellate court only when they are not supportable by the evidence on record Refer to the cases of Akuffo Addo vrs Cathrine(1992) 1GLR 337, Agbemashor vr Amorkor(2009) SCGLR 601

 

Counsel for the 1st defendant finds it difficult to accept the trial judge’s conclusion denying the 1st defendant the status of a wife in the face of clear evidence that Comfort Aburam had not been performing any role as a wife of the deceased years before his death, particularly when even 9 years before his demise the deceased had filed a petition for divorce, an indication that they have not been together for all that long as man and wife. Counsel would have preferred the trial judge making a finding of divorce based on the petition and not demand a divorce certificate as proof of divorce. He made reference to the funeral brochure of the deceased where the 1st defendant was mentioned as the only wife and she read the tribute as a wife. Further reference was made to a picture in which 1st defendant had posed with the mother of the deceased. Also note worthy is the fact that the deceased stayed in their east legon house with only the 1st defendant and her children. Counsel argued that these pieces of evidence show that the 1st defendant was performing the functions of a wife and the court should have so found her as the wife of the deceased at the time of his death.

 

Counsel for the 2nd and 3rd defendants, as expected, found the arguments of his colleague misplaced. It is his argument that that Comfort Owusu Brown (Aburam) was married to the deceased was admitted by the 1st defendant but it is her case that Comfort was divorced before the deceased married her. With such admission it cast a duty on the 1st defendant to prove the divorce. Such divorce can only be proved in the circumstances by a certificate of divorce and not a petition for divorce. Going by these pieces of evidence which established a monogamous marriage between Comfort Aburam and the deceased, even if there was some relationship between the 1st defendant and the deceased it can’t be a legal marriage, counsel argued. The divorce petition that was filed in 1999 mentioned therein that the parties separated in 1987. That being the case the 1st defendant couldn’t have legally married the deceased before 1987 because the deceased and Comfort were then married under the common law. Counsel’ argument continued that the pictures tendered by the 1st defendant has nothing to do with marriage and therefore does not prove anything. Counsel asked: if the 1st defendant could take and keep pictures of such events what prevented her from taking pictures of her alleged customary marriage. In respect to 1st defendant’s own marriage, counsel submitted that she gave no evidence worth any finding that she was married customarily. And the only witness Atta Asante, who 1st defendant mentioned was the one who went in for the customary marriage was not called by the 1st defendant even though she testified that Atta was around and she knew his house. According to counsel, even the date of her alleged marriage, 1st defendant appeared not to know. She mentioned January 1977. Elsewhere she mentioned March and also May 1977. Somewhere in her evidence she changed the date to 1978. On the evidence it is counsel’s conclusion that if there was anything like marriage then it would have been in 1983, going by the 1st defendant’s own evidence. Noting that the will of the testator was made in 1981 it follows that the wife mentioned in the will could not be the 1st defendant but Comfort Owusu Brown.

 

After a careful reading of the judgment of the trial judge I come to the conclusion that there cannot be any bases for interfering with his findings that the 1st defendant failed to prove her marriage to the deceased and therefore cannot be the subsisting widow referred to as “wife” in the testament of the deceased. Not even to talk about the monogamous marriage entered into by the deceased and

 

Comfort Brown (Aburam), the 1st defendant led no evidence to satisfy the ingredients of a marriage as established by the legal authorities. Refer to the cases of Yaotey vrs Quaye(1961)2 GLR 573, Asumah vrs Khair(1959)GLR 353, Kofi vrs Agbotse(1959) GLR 305. As rightly mentioned by the trial judge the 1st defendant called no evidence of her marriage, not even Attah, her alleged brother in law. And a Kwesi Kusi who she called to testify told the court he was not at the ceremony. The little said about the dates 1st defendant mentioned as the date of the marriage the better for she left the court with at least three different dates to choose from. The trial judge alluded to this evidence at page 509 to 511.

 

Having concluded in support of the trial judge’s findings that the 1st defendant has failed to proof that she was a wife of the deceased, it follows that she cannot make any claim under Article 22 or section 13 of the Wills Act which are meant to make reasonable provision from the estates of deceased persons to wives where the circumstances permit. By these enactments children are similarly catered for but on condition that the application to provide for them from the will of their deceased father’s estates is made 3 years after the grant of Probate and the children should at the time be not more that 18 years.

 

Grounds of appeal 5D and 6 are hereby dismissed. No submissions were made in respect to grounds 5. I consider it abandoned.

 

Now to the last issue of whether the plaintiff paid the rent to the 1st defendant in foreign currency and spent GH¢5,800 as development expenditure on the property? In respect of 1st plaintiff’s claim for having paid foreign currency counsel found the failure of the 1st plaintiff to call the wife, the 2nd plaintiff as his witness fatal. To counsel the wife was a very material witness that could have corroborated his case if indeed there was any such payment. There was this witness called by the 1st defendant, William Nyarko. He happened to have been the estate agent who took the plaintiffs to the 1st defendant for the hiring of the accommodation. Initially he was the 2nd defendant but was dropped as a defendant to emerge as a witness for the 1st defendant. Counsel considers this witness evidence corroborative of that of the 1st defendant. He being the only witness to the payment there was no reason the trial judge should reject his evidence that the rent payment was in cedis and not dollars. Counsel referred to an earlier letter written by plaintiffs’ lawyer in which he made demand for refund in cedis and not foreign currency. In respect to the development cost counsel found the receipts the plaintiff tendered in support of his claim self serving. He asked how the plaintiff could have entered into such development cost without agreement with the 1st defendant.

 

The evidence is not disputed that the payment for the rent was made before Mr. Nyarko. His evidence should therefore be material on this issue. In fact the trial judge considered it as such. He alluded to the defence Mr. Nyarko filed when he was a defendant where he stated that the amount was paid in foreign currency. Even though in his evidence in court he denied that the payment was in foreign currency the trial judge considered that evidence an afterthought and disbelieved him. He found that 600 pounds and $2000(then GHC22m) was the currency used in paying for the rent. Refer to page 502 to 503. This is a finding of fact made by the trial judge which has support in the record of appeal I have no legal mandate to interfere with it.

 

In respect of the expenses incurred by the plaintiff in developing the property the trial judge found that the plaintiff was entitled to the amount of GH¢5,615 and interest to be paid from the date of the last receipt, exhibit B23 dated 27/5/03 at the current bank rate or at the prevailing commercial lending rate, until date of final payment. He found the receipts, exhibit B, B1to B23, supporting the plaintiffs claim, genuine and accepted same. He also found that the plaintiff did not collect any material from the site when the 1st defendant rented out the property to someone else. Here again these findings are sound having regard to the records. These supporting receipts can’t be described as self serving. There is nothing on the face of these receipts that make them dubious. They were tendered without objection and on examining them, I do not see what objection could be raised. To say, as counsel for the 1st defendant argued, that there was no agreement for the plaintiff to make such spending is to misread the record of appeal. There is clear evidence that the 1st defendant agreed to the plaintiff making the expenditures. It is only fair that these expenses be refunded to them.

 

Now to the last ground of appeal which is alleging bias against the trial judge. This bias it is alleged was shown to the appellant and her lawyer in the course of trial and in the judgment of the court. I must be quick to say that I find this allegation a little strange. Strange, because it does not stand proven on the reading of the whole trial proceedings. Counsel in his submission to the court mentioned some instances of bias he alleged against the trial judge. First is the trial judge making a comment when an exhibit was being tendered that “Note there is nothing on the face of the picture as linking it to the witness mother’s funeral” The other identified act of bias is in the judgment when the trial judge said “In spite of her fore knowledge of the existence of the will, she surreptitiously engaged the services of the same lawyer…..” Counsel is not amused at the use of the word “surreptitious”. The other is where the trial judge stated in the judgment “Only the 1st defendant told a cock and bull story to the marines that her husband sent the brother Attah Asante to seek the customary divorce at Anum” There might be something to say against the trial judge’s use of language but to imply bias only because of these, to me is an unfair charge. Taking the matter further one would have thought that at the trial when the alleged signs were being exhibited by the trial judge, counsel for the 1st defendant would have complained by adopting the appropriate process to give relief to the client. At this stage of trial when the trial judge cannot respond to the allegation, all that speaks for him are the records and I have stated that the records do not bear out the allegation.

 

From the foregoing I am in a position to say that the appeal alleging that the judgment is against the weight of evidence cannot stand since the 1st defendant has not been able to make such a case worth our consideration from the records.

 

In conclusion I will dismiss the appeal in its entirety.

 

 

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