• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  KUMASI - A.D 2016
  

DR. EMMANUEL HARRYN TAWIAH - (Plaintiff/Appellant)

vs.

KWAME APPIAH KUBI & 5 ORS - (Defendants/Respondents)

JUDGEMENT

---

TORKORNOO (MRS), J.A.

The Plaintiff/Appellant contends in his amended Statement of Claim that ‘sometime between 1994’, he negotiated with and purchased two plots of land from one F.D Nsiah Asare (FD), now deceased, when the latter was living in Cote D’Ivoire. In his evidence in chief found on page 23 of the Record of Appeal (ROA), Appellant put the date of the transaction in ‘the early nineties’. On page 53 of the ROA, he changed his averment about 1994 and testified that the transaction was ‘…in the early part of 1992 and during the pulmugation (sic) of the 1992 constitution’.

 

According to the Appellant, he attended Mfantsipim School with his lawyer friend K A Nsiah Asare (PW1) who is the son of the said late FD. It is PW1 who told him about the availability of the land for purchase and who took him to his father in Cote D’Ivoire.

 

Appellant alleges in his pleadings that he agreed to buy the two plots of ‘industrial’ but ‘waterlogged’ land for 20 million cedis (now 2000 Ghana Cedis) a plot and paid 40 million cedis (4,000 Ghana Cedis) for the two plots. He paid 20 million cedis upfront.

 

Thereafter, he returned to Ghana and paid the remaining 20 million cedis in some 6 instalments. According to the Appellant and PW1, FD issued a number of receipts for the moneys paid by the Appellant. They testified that all these receipts remained in the custody of PW1. It is noteworthy that according to PW1, the receipts for the 20 million cedis paid in instalments were written in the name of PW1 and not the Appellant who paid for the land.

 

Appellant also said that he took possession of the said land by making the caretaker on the land farm it and give him the benefit of the farm produce.

 

Appellant’s case is that FD returned to Ghana in 1995, became ill and died in 1999. He gave the Appellant no Site Plan nor title documentation on the land over the entire period commencing 1992 to 1999 when he died.

 

After FD’s death in 1999, Appellant averred in his Statement of Claim that PW1 informed the 1^st Respondent who was the customary successor of FD and co-administrator of his estate, to give the

 

Appellant title to the land. The 1^st Respondent gave excuses for not preparing the title documents which excuses included lack of finances and the non-application of letters of administration.

 

Eventually when the 1^st and 3^rd to 5^th Respondents took the letters of administration, they refused to transfer title in the claimed property to Appellant. This is what sparked this dispute and Appellant’s claims for:

 

Declaration of title to Plot Nos. 3 and 4 Ohwimasi Industrial Area.

 

An order to compel the Defendants to execute the Deed of Assignment in respect of Plot Nos. 3 and 4 Ohwimasi Industrial Area in favour of Plaintiff herein.

 

Damages for trespass.

 

Perpetual Injunction restraining the Defendants, their agents/servants and assigns from interfering with the Plaintiffs’ possession and enjoyment of the said plot Nos. 3 and 4 in dispute.

 

And any other reliefs that the court may deem appropriate.

 

The 1^st Respondent is the Customary Successor to F.D; the 2nd Respondent is the beneficiary of FD’s estate who obtained an interest in the land in dispute, and the three other Respondents are the widows of F.D. The Respondents denied the entire claim of the Appellant and counterclaimed for:

 

Declaration of title to Plots Nos. 3 BLK XV and 4 BLK XV Ohwimasi Industrial Area, Kumasi.

 

Damages for trespass.

 

Perpetual Injunction restraining the Plaintiff herein, his agents, privies, workmen, assigns, friends and all those claiming title through him from dealing with the disputed land until the final determination of the suit.

 

After hearing the Appellant and his five witnesses, and the Respondents, the learned trial judge dismissed the Appellant’s claims and gave the Respondents judgment on their counterclaims. The Appellant is seeking to reverse the judgment on the following grounds:

 

Grounds of appeal

i. The judgment was against the weight of evidence.

ii. The learned trial judge erred when he held that Section 3 of the Conveyancing Act, 1973 (NRCD) 175 was not applicable in the instance case where the transaction in land was not evidenced by documents.

iii. The trial judge erred when he ignored applicable principles of equity and dismissed the Plaintiff’s claims on the basis that Plaintiff has no documents evidencing the land transaction.

iv. The trial judge erred when he granted the Defendants’ Counterclaim when the Defendants had failed to meet the requirements under the rules of evidence.

 

I will deal with the first three grounds of appeal which were argued together.

 

It is established that when an Appellant complains that a judgment is against the weight of evidence, he means that there are pieces of evidence that should have been construed in his favour which the trial court failed to do, and pieces of evidence have been wrongly construed and evaluated by the trial court. The appellate court ‘is bound to consider comprehensively the entire evidence on record before coming to a conclusion on the matter.’ Aryeh & Akakpo v. Ayaa Idrissu 2010 SCGLR 891 at 894.

 

Rule 8 (1) of the Court of Appeal Rules 1997 CI 19 also directs that ‘Any appeal to the Court shall be by way of re-hearing…’

 

This means that this court is enjoined to carefully peruse the evidence and determine the proper import of all the evidence presented.

 

In his submissions in support of his appeal, Appellant counsel submitted that the ‘the trial judge ignored the overwhelming evidence on record indicating that late F.D. Nsiah Asare sold his interest in the land the subject-matter of the instant action to the Plaintiff for valuable consideration’. It was his submission that the Appellant’s witnesses corroborated his story of the purchase of land and PW4 testified regarding the Appellant’s acts of possession of the land. He complained that the judge was only interested in documentary evidence to prove the sale and thereby ignored the overwhelming oral evidence.

 

He pointed to the testimony of PW1 that Plaintiff paid 20 million cedis to his father on the first day that they went to Cote D’Ivoire, and one Mr. Tutu showed Appellant and PW1 the plots 3 and 4 claimed. PW1 also confirmed that Appellant would give him money to pay FD for the rest of the transaction price, and he would send this money on through PW2. And all these payments were receipted in PW1’s name.

 

PW2 confirmed receiving money given by Appellant from PW1 in envelopes which she carried to FD on about six or seven occasions. On receipt of the money in the envelope, FD ‘would write something and envelope it’ to be given to PW1 in the presence of his wife Aunty Joana who testified as PW3.

 

PW3 confirmed seeing PW2 bringing money that was supposed to be part payment for land that Appellant had purchased from FD and seeing FD write something and envelope same for PW2 to carry back.

 

PW5 also heard from FD that his land at Ohwimase had been sold to the Appellant by PW1 though he did not know if payment had been made for the said sale or where the land was situate. Counsel for Appellant submitted that ‘if the trial judge had taken these pieces of evidence into consideration he would not have come to the conclusion he came to’.

 

He also pointed to the part of the judgment where the Judge said that he found it very difficult to appreciate why neither PW1 nor Appellant informed the family of FD at the 40^th day celebration about the land that had been paid for but not documented, contrary to Akan custom. According to Appellant counsel, Akan custom did not require that everyone with business dealings inform the family about every transaction. What usually happened was information given by creditors of the deceased about his debts and so the Judge had wrongly misconstrued the import of the non-information at the 40^th day celebration.

 

On the question of why the court refused to believe the Appellant’s case because he waited from 1999 to 2015 to claim for the documentation on the property from the customary successor, the Appellant’s counsel drew attention to the fact that the obligation of the customary successor to provide the documentation did not arise until he had obtained letters of administration. Relying on the Supreme Court’s decision in Djin v Musah Baako 2007-2008 SCGLR 686 at 687where the court’s second holding is set down as ‘The right of action to recover land of an intestate accrues from the date of grant of letters of administration’, Appellant counsel submitted that till the legal obligation to exercise the duties of the late FD were placed on the Respondents, time did not begin to run against Appellant and his claim.

 

He therefore urged this court to reverse the decision of the trial court. Counsel for Respondents disagrees with these submissions and after carefully examining the submissions and reading the pleadings and testimonies, we also disagree with the submissions made on appeal. We have to agree with the learned trial Judge on his conclusion.

 

Appellant is relying on the equitable doctrine of specific performance arising from part performance of an enforceable contract in this suit. This direction of equity has found legislative grounding in Section 3 of the Conveyancing Act 1973 NRCD 175 which provides that though every transaction on immovable property is required to be in writing, transactions without writing may be permitted under certain circumstances. Section 3 provides:

 

Section 3 – Transactions Permitted without Writing

 

Sections 1 and 2 shall not apply to any transfer or contract for the transfer of an interest in land which takes effect.

 

by operation of law.

 

by operation of the rules of equity relating to the creation or operation of resulting, implied or constructive trust

by order of the court.

 

by will or upon intestacy.

 

by prescription.

 

by a lease taking effect in possession for a term not exceeding three years, whether or not the lessee is given power to extend the term.

 

by a licence or profit other than a concession required to be in writing by section 3 of the Concessions Ordinance (Cap 136).

 

by oral grant under customary law (emphasis mine).

 

Sections 1 and 2 shall be subject to the rules of equity including the rules relating to unconscionability, fraud, duress and part-performance. (Emphasis mine)

 

Equity follows the law. So the rules of equity regarding part-performance as raised in this case need to be undergirded by the finding of legal rights first. As held in Kobi & Others v. Ghana Manganese Co Ltd 2007-2008 SCGLR 771 the essential matters raised in any case must be proved or the action must fail.

 

The court has to be extremely clear that the Appellant proved on the preponderance of probabilities the essential elements of the transaction he is alleging. In the present case, because the Appellant’s case was for declaration of title to land, the Appellant ‘had an onerous burden to discharge and this is trite law’ to quote Ansah JSC in in Abbey & Others v Antwi V 2010 SCGLR 17 at page 23. It is appreciated that the burden a person claiming land carries is not proof beyond reasonable doubt as clarified by the Supreme Court per Acquah JSC in Adwubeng v . Domfeh 1996-97 SCGLR 660 but still, the Appellant had to prove the root of his title, prove clear and positive acts of unchallenged and sustained possession or substantial user of the land, the actual identity and boundaries of the land, and the mode of acquisition of the land.

 

Applying these directions to the case at hand, the Appellant had to prove that he purchased Plot Nos. 3 and 4 Ohwimasi Industrial Area from FD for the sum of 40 million cedis; that he paid for it in the manner that he described, and exercised acts of unchallenged possession of those lands from 1992 to 2013 when his possession of the land was challenged leading to this suit.

 

Placed within this light, it is easy to see the difficulty that arises with reaching the firm conclusion that the Appellant did indeed prove all these essential elements of this contract of purchase.

 

No wonder the honourable court heavily intoned these words that were quoted by Appellant counsel in his bid to submit that the court relied inordinately on written evidence of the contract.

 

The words can be found on page 11 of his judgment and on page 226 of the ROA thus:

 

‘If I cam (sic) to be guided by a receipt of payment in full purchase of the disputed plots even without further details as in the Bio-chedid (sic) case I would not have hesitated to throw overboard the expressed provisions of section 1 and 2 of the Convincing (sic) Act and invoke the rules of equity relating to the creation or operation of resulting, implied or constructive trust, and or the rules of equity including the rules relating to unconscionability, fraud, duress and a wrong done to a purchaser and apply the provisions of law for such wrong done to a purchaser not to go without an available remedy to wit the principles of equity’

 

But we can sympathise with the court because we are saddled with the same inability to find that the Appellant clearly proved the contract he allegedly performed fully and for which he is seeking enforcement. And it is not only because Appellant did not submit any written evidence of this contract but because the various oral testimonies did not unequivocally point at the contract of purchase he is alleging.

 

Let me first speak to the issue of written record and how the failure to present any written record of the transaction cannot be swept under the carpet in this suit just because many witnesses testified about having heard about the transaction.

 

The failure to bring any written record to court is significant because it introduced critical elements which marred the legal import of the alleged actions of the participants in the transaction.

 

In his testimony found on pages 23 and 24 of the ROA the Appellant testified that on the first day he met FD in Cote D’Ivoire, he and FD ‘negotiated the amount which we agreed to pay by instalment. I began making the payment by instalment through Lawyer Kwabena Nsiah Asare’.

 

He went on to testify that he ‘was given a receipt by Lawyer Nsiah Asare’, (found on page 53). Now the import of this testimony is that the receipt was in the name of Appellant himself, although issued by Lawyer Nsiah Asare. He reiterated this at the beginning of his cross examination with these words found on page 58.

 

A I have receipt of payment.

 

When questioned further, he said that the receipt was with lawyer Nsiah Asare because

 

He collected the receipt to use to prepare document on the land

 

Again on page 60 he said that he had paid for the land on the first day with cash and in response to the question

 

Q. What was the form of transfer;

 

He answered

 

Nothing but I had the receipt

 

Notwithstanding all of the above, when it was the turn of PW1, his testimony was that all the receipts that were allegedly issued by his father FD when Appellant sent money to pay for the plots of land were written in the name of the PW1 and not Appellant!

 

That part of his evidence in chief is recorded on page 68

 

‘Thereafter Plaintiff started releasing the payment to me. I gave the money to Beatrice Nsiah Asare who will give the money to my father in the Ivory Coast.

 

For every instalment paid to my father he gave me a receipt in my name through my sister...’

 

After testifying that he has forgotten how much Appellant paid on the first visit to Cote D’Ivoire (although the receipt for that payment was supposed to have been given by the PW1, PW1 went on to testify thus:

 

Q. Are you saying that those monies paid to you, you did not know the outstanding balance.

 

A. I cannot keep all that in my head. My father was giving receipts ‘in my name’

 

This testimony of FD issuing receipts in the name of PW1 when PW1 had issued a first receipt to Appellant is totally inconsistent with acts that can be construed as dovetailing into one transaction. They are also inconsistent with acts that can be construed as forming acknowledgement of purchase of land by Appellant from FD.

 

All the players in this receipt issuing saga are worldly wise. Appellant is a doctor and PW1 is a lawyer. FD was a man who was described as having significant properties. From the record, he had at least three storey buildings of different levels. He had a vast stretch of land. He had registered his interests in the Lands Commission. How could PW1 issue a first receipt for Appellant which Appellant handed back to the same PW1 to use to prepare transfer documents, and then later FD issue receipts for sums paid by Appellant in the name of PW1, when he knew that PW1 was not the one buying his property? If FD wanted PW1 to be issuing the receipts, why did he go on to issue receipts after receiving the later instalment payments? Since those payments came through PW1, why couldn’t PW1 issue receipts directly to Appellant after Appellant gave him the money in Ghana to send to FD in Cote D’Ivoire? Why did FD fail or refuse to give some written acknowledgement of Appellant’s payments in Appellant’s own name? Could it be that FD all along believed that he was selling the land to his son, PW1? Or could it be that the money given to PW1 for the land never got to him? Or that he received the money as PW2 testified, but had a different understanding with his own son PW1? The clumsiness and incoherence in this receipt arrangement make it difficult for this court to find that Appellant had discharged the onerous burden of proving his payments for these lands he was claiming.

 

I find even more difficult the testimony that FD never wrote a receipt for the first 20 million cedis which was allegedly paid directly to him by Appellant. This was at a time that he was not sick and Appellant was sitting before him – having travelled all the way to Cote D’Ivoire to negotiate and pay for this land. If he could write receipts for the later payments in the name of PW1, why did he not write a receipt in the name of Appellant when Appellant fully paid for a full plot of land on that first day? Why did the parties need PW1 to write the first receipt?

 

As much as it is true that ‘the demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or such precision as would fit a jig-saw puzzle’ as stated in Bisi v Tabiri alias Asare 1987-88 1GLR 360, it is also true that ‘the standard of proof required of a Plaintiff in a civil action was to lead such evidence as would tilt in his favor the balance of probabilities on the particular issue.’

 

And ‘probability’ denotes an element of doubt or uncertainty and recognized that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected’ (Holding 2, Bisi v Tabiri alias Asare)

 

I find that on the balance of probabilities, Appellant failed to establish the alleged payment of 40 million cedis to FD which FD received with full understanding that the money was payment for the two plots of land claimed by Appellant. Those critical elements of contract cannot be found from the incoherent testimony on the receipts that were issued in the wrong name and eventually vanished.

 

It must be remembered that all the parties and witnesses agreed that the two plots of land that the Appellant purported to have bought was part of a stretch of land. Thus, the identity of the lands negotiated and paid for had to be distinctly taken out of this stretch of land and properly proved as the subject matter of the contract of purchase. It would not be enough for the Appellant to merely urge that he negotiated for two plots of land and so he was entitled to particular two plots of land.

 

But what was the situation with the testimonies of Appellant and his witnesses.

 

Apart from the oral testimony of the Appellant and PW1 who said that one Mr. Tutu took he and Appellant to FDs stretch of land and showed them the plots 3 and 4, the only corroboration of the exact identity of the land Appellant allegedly purchased from FD was from a site plan dated 2012, created almost twenty years after he claimed that he had negotiated to purchase the land from FD.

 

FD had died in 1999, thus he could not have been the giver of this site plan nor party to its creation, neither did the Appellant allege that FD was the one who caused the site plan to be created. According to the Appellant, he was also not a party to the creation of the site plan. He said under cross examination and on page 56 of the ROA

 

Q. What document did you use to prepare the Site Plan?

 

A. With the help of lawyer Nsiah Asare. Mr. Nsiah Asare did. I was not there’

 

Now what I find difficult about this testimony was that the said lawyer Nsiah Asare – PW1, was supposed to have been part of this transaction from 1992. Why did he wait for 20 years, after letters of administration for the estate of Nsiah Asare had been granted before preparing the site plan?

 

The credibility and validity of the site plan regarding its author is suspect. It had no input from the parties to the purchase contract, and was done almost twenty years after the fact and more than 13 years after the death of FD. This is another weakness in the testimony that must rightly be construed against the Appellant. And more so when there was no reason why the site plan could not have been created in 1992 immediately Appellant returned from Cote’ Divoire after the payment of the first instalment. PW1, as a lawyer, was one of the best professionals to oversee the creation of this site plan. According to Appellant, he gave him his first receipt to see to the preparation of the documentation. Why did he not do it at that time?

 

As I stated in the High Court case of Harrison Edward Nartey Martin v Barclays Bank, Suit No

 

BFS/166/2011 dated 21^st March 2012’ The determination of whether a party has met the thresholds of sufficiency in producing evidence on a particular issue is a question of law. This is because sufficiency of evidence as required by Section 10 of the Evidence Act, NRCD 323, is a legal concept and has nothing to do with quantity of evidence and everything to do with quality of relevant evidence. Just as ‘proof in law’ is defined in Majolagbe v. Larbi & Others 1959 190 at 192 to be ‘the establishment of facts by proper legal means ….by producing documents, description of things, reference to other facts, instances, or circumstances, by producing other evidence of facts and circumstances, from which the court can be satisfied that what he (a party) avers is true’; sufficiency of evidence compels the tendering of relevant evidence which has such weight, credibility, cogency and consistency that a court must prefer it over the evidence of the other contesting party.

 

Sufficiency of evidence demands that the evidence before the court satisfies the ‘the factors or ingredients’ of the legal relief claimed. The matters proved must have proper nexus with the issues that need to be proved.

 

In Kusi &Kusi v. Bonsu, 2010 SCGLR 60 at 82, the Supreme Court per her Ladyship Georgina Wood C.J gave this warning regarding the receipt of testimony which affects a dead person thus

 

‘Fundamentally, the authorities do not lay down any intractable rule of law that charges or claims against a dead person cannot succeed without corroboration. To the contrary, the discernible principle is that a court can proceed on the uncorroborated evidence if satisfied about its truthfulness. The only rider or caution is that the court must examine the evidence critically, with utmost care, weighing or sifting it thoroughly, to ensure there are no loopholes or that the charge or claim does not suffer from any absurdities or the like. A judge in receipt of uncorroborated evidence consisting in the main of charges against a deceased person does not swallow the story lock, stock and barrel, but first view it from a suspicious standpoint. If the story as presented is neither incongruous, preposterous, unreasonable, illogical, nor incredible, then the judge may proceed to give it the weight it deserves. The exercise relates to the cogency or the weight to be attached to the evidence given. In this regard, the question of the credibility of a witness is critical to a determination of the cogency issue’.

 

As a function of rehearing, I find the testimonies regarding the receipts, the identity of the land and site plan incongruous, unreasonable, illogical and incredible. It must be appreciated that as stated in Bisi v Tabiri (cited supra), ‘Preponderance of evidence is the trier’s belief in the preponderance of probability’. Just like the learned trial judge decried the non-tendering of even one receipt on all the various payments allegedly made on this transaction, I also find it particularly strange that the Appellant made no effort to place any pillars on the plots 3 and 4 that he claimed to have purchased as far back as the early 90s or bring any evidence of how he established the boundaries of those particular plots of land. I am satisfied that contrary to the requirements of law, the identity of the exact land negotiated for between Appellant and the late FD was not established in any proper form during the trial by any of the witnesses, except by the mere statement of the Appellant that it is these two plots of land that he paid for, the testimony of PW1 that one Mr Tutu showed them the lands, and the testimony of the caretaker, PW3, that he was giving the proceeds on the land he was taking care of to the Appellant until he was stopped.

 

I find it little wonder that his witness PW4, the 4^th wife of FD, who assured the court that she knew of the transaction, could not protect the claimed plots of land for the Appellant when she signed as co-administrator to vest the same plots of land in the 2^nd Respondent. Because clearly, until 2012, there was no document identifying the Appellant’s purchase of these lands.

 

The next matter that the Appellant ought to have provided cogent proof of was the mode of acquisition. Appellant was clear that he travelled to Cote D’Ivoire to negotiate with the late FD and paid cash in the sum of 40 million cedis for plots 3 and 4. This position was corroborated by PW1, PW2, and PW3. This surfeit of testimonies should have helped to establish Appellant’s case. But alas, it did not.

 

Now, I find no problem with the credibility of these witnesses particularly the sister PW2 and the wife PW4, or their testimony that they were informed that Appellant was paying for land to FD, nor do I think that they came to court to hoodwink the court. The credibility deficit lies in what amount of money the Appellant actually paid to the late FD, and when he paid it, and whether he paid it towards plots 3 and 4. The exact sums of money Appellant sent to FD over six different occasions and dates of those payments were never properly established save for the testimony that Appellant would give undisclosed sums of money to PW1, and PW1 would give sealed envelopes to PW2, and PW2 would carry these sealed envelopes of money to FD’s home and give it to PW4, who would give it to FD (see PW1’s testimony on page 53). By the time the relay ended, was there actually any money in those envelopes? How much money actually moved? That record was totally unavailable to the court.

 

Indeed, there were so many inconsistencies in Appellant’s case that the court could only construe the import of those inconsistencies against him. I have already pointed out the inconsistencies around the alleged time of the transaction which Appellant variously put as ‘between 1994’ in his pleadings and 1992 in his testimony. He also was inconsistent with how long FD was in Ghana before he died. On page 54 of the ROA, he is recorded as saying ‘He died between 1997-99’. For someone who was supposed to have been the doctor of the late FD and a person who is educated in two of the science based professions of pharmacy and medicine, it is unnerving that the Appellant would place the date of death as occurring over a two year space of time.

 

For the reasons enumerated above, I must disagree with Appellant counsel and state that I do not find any piece of evidence that should have been construed as establishing the critical elements of the transaction that Appellant came to court to urge nor the interest he came to court to demand.

 

Grounds A, B, and C of the appeal are dismissed. Having lost his own claims to the lands, I believe it will not be helpful to evaluate whether the court rightly pronounced title in the Respondents since it was not in contention that the 1^st and 3^rd to 5^th Respondents were administrators of the estate of FD Nsiah Asare. Cost of Two Thousand Ghana Cedis (GH¢2,000.00) in favour of Respondents.